Friday, October 21, 2016

Costs May Not Be Taxed To Public Defender Who Withdrew Due To Ethical Obligation

The Iowa Supreme Court has held that a public defender cannot be compelled to pay costs when the defender withdraws due to a disqualifying conflict of interest

The Iowa District Court for Story County assessed court and travel costs against the state public defender in a juvenile detention proceeding because it concluded the local defender improperly refused to represent the juvenile in the proceeding. The state public defender brought this certiorari action pursuant to Iowa Rule of Appellate Procedure 6.107(1). We must determine whether the district court exceeded its jurisdiction or otherwise acted illegally in taxing the costs against the state public defender. We conclude the district court erred and sustain the writ.

The story from Story

Around 9:00 a.m. on April 7, 2015, the district court issued an order appointing the local public defender of Nevada, Iowa, to represent S.J., a juvenile who had been detained the night before on a burglary charge in Story County. At 10:07 a.m., the public defender filed a motion to withdraw from representing S.J., citing concurrent conflicts of interest between S.J. and other clients.

 At 2:20 p.m. on the same day, the court held a hearing in Marshalltown on S.J.’s detention and the local public defender’s motion to withdraw. After counsel for the state made his opening statement, Katherine Flickinger, an attorney with the local public defender’s office, informed the court that S.J.’s interests were directly adverse to the interests of three of the local public defender’s other current clients. Flickinger argued she was ethically bound to withdraw from representing S.J. because of the concurrent conflicts of interest. See Iowa R. Prof’l  Conduct 32:1.7(a)(1)–(2) (providing that except in specific circumstances, an attorney "shall not represent a client if the representation involves a concurrent conflict of interest"). Following a brief colloquy between the court and Flickinger about the public defender’s policies and procedures on handling withdrawals in such circumstances, the court took the motion to withdraw under advisement and continued questioning Flickinger...

The order granting withdrawal was entered later that day.


We conclude the district court made an error of law and exceeded its authority in determining the state public defender or the local public defender violated either statutory or ethical duties under the circumstances of this case. Accordingly, we sustain the writ and vacate the district court’s April 17 order taxing court costs and travel expenses to the state public defender. The state public defender complied with its statutory and ethical duties to avoid conflicts of interest. The district court therefore exceeded its lawful authority when it assessed court and travel costs against the state public defender for refusing to represent the child-in-interest at the detention hearing.

(Mike Frisch)

October 21, 2016 | Permalink | Comments (0)

Thursday, October 20, 2016

No Bully Pulpit: Removal Of Judge Upheld

The New York Court of Appeals has upheld the removal from office of a judge

The misconduct giving rise to [the judge's] concession "qualifies as 'truly egregious'" (Restaino, 10 NY3d at 590). The record reflects that, among other things, petitioner used a sanction -- a tool meant to "shield" from frivolous conduct -- as a "sword" to punish a legal services organization for a perceived slight in an inexcusable and patently improper way (see 22 NYCRR 130-1.1 [a] [authorizing the imposition of sanctions, but precluding town and village courts from applying such penalties]). The record is also replete with instances in which petitioner used his office and standing as a platform from which to bully and to intimidate. To that end, it is undisputed that petitioner engaged in ethnic smearing and name-calling and repeatedly displayed poor temperament -- perhaps most significantly, by engaging in a physical altercation with a student worker.

Those actions are representative of an even more serious problem. Petitioner -- in what allegedly was a grossly misguided attempt to motivate -- repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process. Those threats "exceeded all measure of acceptable judicial conduct" (Matter of Blackburne [State Commn. on Jud. Conduct], 7 NY3d 213, 221 [2006]), and we are particularly troubled by the testimony of one court officer, who suggested that petitioner's threats were so common that they became "a joke." The matter may have been a laughing one to that officer, but it was not to others.

 Significantly, too, petitioner's hectoring extended beyond the courthouse. In what ostensibly was an attempt to undermine a former co-Judge and an apparent political adversary, petitioner willfully injected himself into the political process involving the election of an office other than his own. All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner's assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench.1 Petitioner's misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct -- all of which renders suspect his guarantees of better behavior.

Details on the misconduct may be found here in the Determination of the Commission on Judicial Conduct. (Mike Frisch)

October 20, 2016 in Judicial Ethics and the Courts | Permalink | Comments (1)

Call Me Suspended

The Wisconsin Supreme Court has imposed a one-year suspension as reciprocal discipline for a sanction imposed by the New York Appellate Division for the First Judicial Department against attorney Ishmael Gonzalez

On August 11, 2015, the New York Appellate Division Supreme Court First Judicial Department suspended Gonzalez's law license for one year, effective September 10, 2015, based upon 12 counts of misconduct involving five clients, violation of escrow rules, and failure to file income tax returns for specific years. Gonzalez's misconduct included: belligerent and verbal abuse towards his client's wife; threatening his client's wife that he would have his client arrested and deported; communicating information to the immigration authorities that he wanted his client arrested and deported; falsely telling the immigration authorities that his client would not appear for his deferred inspection appointment; and intentionally damaging his client during the course of the professional relationship. He also entered into several written retainer agreements that contained a nonrefundable clause, delayed filing a bankruptcy petition for 21 months, and failed to file federal and state personal income tax returns for 2002 through 2007.

A sanction such as this can only be described as a damp, drizzly November in an attorney's soul. (Mike Frisch)

October 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, October 19, 2016

The District Of Columbia: Where Lawyers Get The Gold Mine And Clients Get The Shaft

I am reading a recent District of Columbia Hearing Committee report involving an attorney's violation of the duty of confidentiality.

The governing D.C. Rule reads in pertinent part

 (a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:

(1) reveal a confidence or secret of the lawyer’s client;

(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;

(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.

Contrast this provision with the ABA Rule

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

Note the distinction - under the ABA Model Rule, the duty of confidentiality is taken seriously enough to strictly prohibit any breach. In D.C. , the breach must be a knowing one.

The reason for the departure from the ABA version?

It provides less protection to clients and adds an element that Disciplinary Counsel must prove to establish a violation.

It also may assist attorneys who seek to avoid civil liability for so-called "negligent" or 'inadvertent" confidentiality lapses.

Once again, D.C. leaves no stone unturned in making its ethics rules as pro-lawyer and anti-client as is humanly possible. (Mike Frisch)

October 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Lease Of The Misconduct

The Illinois Administrator has filed a complaint alleging misconduct in an attorney's office leasing and subtenant interactions

From January 2015 to January 21, 2016, Respondent leased office space for his law practice, the Law Offices of Scott T. Kamin, at 55 East Jackson Boulevard in Chicago. As part of his lease, Respondent agreed to make rent payments for the office space, Suite 1050, in the range of $5,523 to $5,800 on a monthly basis to the landlord, 55 East Jackson, LLC ("the landlord"). The rent payment also included a payment for electricity and real estate taxes, which, on average, was $250 per month.

From January 1, 2015 through January 21, 2016, Respondent subleased the offices in Suite 1050 to at least three attorneys, including Carla Buterman ("Buterman"), Jason Epstein ("Epstein") and Erik Rakoczy ("Rakoczy") (collectively "the subtenants"), pursuant to written agreements with each subtenant.

From May 1, 2015 through January 2016, Respondent received individual monthly rent payments from the subtenants, which they paid to Respondent by cash and check.

During that same period, Respondent made only two monthly rent payments for the months of August and September 2015, to the landlord.

The non-payment resulted in a suit for possession in which the attorney is alleged to have accepted service on behalf of his subtenants without authority.

On January 21, 2016, the court entered an order allowing the landlord to recover possession of Suite 1050 from Respondent, Brigham, Epstein, Rakoczy and Buterman. Judge Steffen also entered on that date a judgment against Respondent and his law firm for $43,468.48, which included $434 in filing fees, approximately $40,000 in past-due rent and $3,000 for Glass’ attorney’s fees.

The allegations is that he engaged in

conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including, stating to deputy Lampkin that he was authorized to accept service on behalf of Brigham, Buterman, Epstein and Rakoczy when he knew he was not so authorized, not informing the court that he had no authority to accept service or appear in court on behalf of Brigham, Buterman, Epstein or Rakoczy and concealing the eviction lawsuit from the other defendants, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

(Mike Frisch)

October 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Anger Mismanagement

The North Carolina Court of Appeals affirmed an order of discipline against an attorney admitted in 2001

David C. Sutton (“Defendant”) appeals from an order of discipline entered by the Disciplinary Hearing Commission (the “DHC”) of the North Carolina State Bar suspending his law license for a period of five years after determining that he had committed numerous violations of the North Carolina Rules of Professional Conduct. In addition to asserting challenges to various constitutional and procedural aspects of his disciplinary proceeding, Defendant argues on appeal that a number of the DHC’s findings of fact were not supported by evidence in the record and that several of its legal conclusions were incorrect. After careful review, we affirm.

The case involved seven matters, including

Defendant represented Barbara Pollard in a wrongful death lawsuit against her daughter-in-law in connection with the 2005 death of Pollard’s son, Stacey Pollard. During Pollard’s May 2011 deposition, which was taken by attorney Kathryn Fagan, Defendant repeatedly interjected his own questions and commentary, made sarcastic remarks, coached Pollard on how to respond to particular questions, and answered questions for Pollard. After the deposition had concluded, Defendant stated — in the presence of his client, the court reporter, and a law student in attendance — “Fagan, you know what your problem is? Your problem is that you need a boyfriend or a husband or something. . . . I understand your client goes both ways so . . . maybe you could have a little lickety-lick with her.


In 2013, Defendant represented Norman Shackley on a charge of impersonating a law enforcement officer. In connection with the case, Defendant obtained by subpoena phone records from one of the State’s witnesses, Jimmy Hughes. At 10:00 p.m. one evening, Defendant called a phone number listed in these records and told the person who answered the phone, Jean Sugg (whom Defendant did not know), that Hughes had “hit on” Shackley’s wife, who had “big boobs” and ran a prostitute website.


Defendant defended a client charged with child abuse in 2013. Upon learning that the district attorney had refused to drop the charges against his client, Defendant left a voicemail for Detective Nikki Dolenti, the investigating officer in the case, in which he made the following statement in a harsh and threatening tone: “You obviously don’t know what the hell you’re doing. So I’m just gonna whoop your ass real bad next week unless you get your ass down there and get this case dismissed. And do your job and have some sense.”

The court

The extensive additional findings of fact in the Order of Discipline relating to the dispositional stage described numerous other instances of abusive, belligerent, threatening, and profane communications and conduct by Defendant — both inside and outside of the courtroom — that occurred between 2008 and 2014. The Order of Discipline also noted

numerous examples of a recurrent pattern in Defendant’s practice of law. When Defendant believes someone with whom he interacts professionally is wrong about the facts, the law, procedure, or a matter of judgment, he demands instant redress. If the person with whom he disagrees does not immediately capitulate, Defendant threatens to harm that individual in some way.

The Order of Discipline further noted numerous incidents demonstrating Defendant’s penchant for “us[ing] graphic sexual commentary to embarrass and/or demean others in professional contexts.” It also cited numerous instances showing that “in retaliation for perceived wrongs, [Defendant] is willing to breach his duty of loyalty to clients and former clients by disclosing confidential information and/or attempting to prejudice their interests.”

(Mike Frisch)

October 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, October 18, 2016

Immigration Attorney Who Was Not Legally In US Disbarred For Violating Suspension Order

The Louisiana Supreme Court has imposed disbarment as reciprocal discipline based on a Colorado sanction

Respondent, who is originally from India, came to the United States in 1987. Although he had already completed a law degree in India, he earned a second law degree from Tulane University. He was admitted to the practice of law in Louisiana in 1988 and to the practice of law in Colorado in 1992.

Respondent legally remained in the United States under a work visa until December 1995, when his visa expired. He did not obtain a new work visa and, thus, was in the country illegally. Nevertheless, he continued to practice law in Colorado, representing clients in immigration matters. In 1999, respondent married a United States citizen.

It was not until June 2009, after immigration authorities discovered he was in the United States illegally, that respondent obtained official authorization to work. At that time, he also applied for permanent residency, but he did not receive permanent residency status until May 2012.

In the meantime, on July 21, 2009, the Supreme Court of Colorado suspended respondent from the practice of law for one year and one day for practicing law while unlawfully present in the United States. The Supreme Court of Colorado also banned him from applying for reinstatement until he obtained permanent lawful immigration status and employment authorization. This court imposed reciprocal discipline on December 18, 2009. In re: Kanwal, 09-2192 (La. 12/18/09), 24 So. 3d 189.

In 2011, while he was still suspended from the practice of law in Colorado, respondent assisted a previous client with an immigration matter; he failed to inform the client that he was suspended from the practice of law. Another attorney working for the client discovered respondent was under suspension and reported him to the Colorado attorney disciplinary authorities.

As it was in Colorado, so shall it be in Louisiana.

Our coverage of the initial suspension is linked here. (Mike Frisch)

October 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Recent DUI Does Not Prevent Conditional Admission In Louisiana

An applicant for bar admission has been conditionally admitted to practice by the Louisiana Supreme Court

Petitioner successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) subsequently advised petitioner that he would not be certified for admission as a result of his failure to update his bar application to disclose that approximately one month earlier, he had been arrested and charged with second-offense DWI.1 The Committee also cited three other criminal charges against petitioner, all alcohol-related.

Petitioner then applied to this court for admission to the practice of law. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. Neither petitioner nor the Committee objected to this recommendation.

The conditions are

Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program (“JLAP”) on May 2, 2016.

The period of this conditional admission shall coincide with the period of petitioner’s JLAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.

Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel (“ODC”).

Upon the expiration of the term of petitioner’s JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner’s continued participation in JLAP.

Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.

Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.

Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.

(Mike Frisch)

October 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Misconduct Found In Shirvell Disciplinary Case

A Tri-County Hearing Panel of the Michigan Attorney Discipline Board has issued findings in the case brought against a former Assistant Attorney General concluding that some of the charged misconduct had been proven

 In 2010, Christopher Armstrong was elected president of the student council at the University of Michigan in Ann Arbor. The student council does not make University policy, but it works with, reports to, and advises the University on a range of issues.

Respondent Andrew Shirvell, a 2002 graduate of the University, worked as an Assistant Attorney General for the State of Michigan. In early 2010, respondent learned via an online newspaper report of Armstrong's election and also learned that Armstrong was openly gay. Respondent began posting on his Facebook page about Armstrong, whom he had never met. Among other comments, respondent called Armstrong "dangerous" and a "radical homosexual activist" and a "major-league fanatic who is obsessed with imposing the radical homosexual agenda on the student body." Respondent also set up a Facebook "fan page," entitled "Michigan Alumni and Others Against Chris Armstrong's Radical MSA Agenda," which purported to "expos[e] the real Chris Armstrong." Respondent urged others, via Facebook and email, to join the "pro-family" group in order to "fight[] against Satan's representative." Respondent took to his personal Facebook page to express outrage when Facebook deleted his "fan page" about Armstrong. Respondent wrote: "I will not be SilENCED by the likes of Armstrong. You're going down fruity-pebbles." Respondent's self-proclaimed "outrage" continued from there: "I better not see Chris Armstrong at MY [church] parish in Charlotte -that's all I got to say." Respondent claimed that Armstrong was scared of him and-in commenting on another story involving gay students-"remember[edJ the good old days when 'guys' like this would get their asses kicked at school"

Not content with Facebook posting, respondent then established a blog entitled "Chris Armstrong Watch," which discussed Armstrong's "character and his agenda and other items." The blog purported to be a "watch site," providing "testimony" and "an expose of the REAL Chris Armstrong." The blog was accessible to the public from April 201 0 until September 30, 2010, when respondent removed it from public view. The blog featured a picture of Armstrong's face next to a swastika. The blog called Armstrong "a radical homosexual activist, racist, elitist, & liar" and attributed to Armstrong a "Nazi-like hatred of the First Amendment," explaining, "Much like Nazi Germany's leaders, many of whom were also homosexuals, Armstrong believes that any and all opposition must be suppressed by whatever means necessary." The blog further stated that Armstrong "mocks Christians," and called Armstrong an "anti-Christian bigot." One entry claimed that Armstrong attended an event "whose intent was to encourage underage drinking," and that Armstrong "spent most of this time [after the semester ended] engaging in underage binge-drinking." The blog made repeated references to Armstrong's participation in -and facilitation of -underage drinking. It alleged that Armstrong showed contempt toward law enforcement. Respondent -re-posting online conversations between Armstrong and another student at the University -claimed that these conversations revealed Armstrong's "tendency toward sexual promiscuity," and thus labeled Armstrong "a perverted homosexual exhibitionist." Respondent interpreted another online conversation as demonstrating that Armstrong had previously hosted an "orgy" in his college dormitory, at which "homosexual shenanigans" were rampant. Days after this entry, respondent authored another blog post proclaiming: "Armstrong engages in sexual escapades at 'churches & children's playgrounds.'" Respondent linked Armstrong to "possible involvement" in violent attacks against places of worship in the wake of California's passage of Proposition 8. Respondent alleged that Armstrong used his welcome to freshmen as "a thinly veiled attempt to cause sexually confused, and perhaps some impressionable, 17 -and-18-year-olds to experiment sexually with members of their own gender."

Respondent also reported on an alleged romantic relationship between Armstrong and another student. Respondent claimed that the other student was "not out of the closet," but that Armstrong "basically seduced" the student and quickly became obsessed with him. Explaining that the other student, "[t]hanks in large part to Armstrong's influence ... has indeed morphed into a proponent of the radical homosexual agenda," respondent called Armstrong "a very, very twisted sick individual who is manipulative and cunning in a most devilish way."

Respondent also appeared on television to rant about Armstrong. In September 2010, in an interview on local station WXYZ, respondent said that Armstrong held the presidential position in order "to promote special rights for homosexuals at the cost of ... heterosexual stUdents." Respondent later appeared in front of a national audience with CNN's Anderson Cooper. Standing by his blog and Facebook posts, respondent told Cooper that he had "gotten stuff from third-party sources," and argued that Armstrong was not giving interviews because "he can't defend what's on the blog." When Cooper suggested that respondent was a bigot, respondent retorted, "The real bigot here is Chris Armstrong." Two days later, back before a national audience on Comedy Central's The Daily Show, respondent said that Chris was "acting like a gay Nazi," and that this explained his decision to include a picture of Armstrong next to a swastika on the blog.

Findings of ethics violations

 the panel finds, by reason of the conduct described above and set forth in the evidentiary record, respondent violated MCR 9.104 in contacting the police to complain about a party hosted by Armstrong while intending to film the subsequent police action for his public blog, respondent failed to treat all persons involved in the legal process with courtesy and respect in violation of MRPC 6.5...

 Respondent's testimony, and the exhibits introduced at the April 26, 2016 hearing which, in their totality, result in a finding that respondent has failed to rebut prima facie evidence of engaging in "frivolous litigation" as defined under MCl 600.2591.3

The panel rejected conflict of interest allegations.

The panel has set the matter for a sanction hearing. (Mike Frisch)

October 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Order Posted In Discipline Case Involving Romance Between Prosecutor And ATF Agent

The Virginia State Bar Disciplinary Board has posted the order of public reprimand of a former federal prosecutor in Georgia whose 'intermittent romantic relationship" with an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives led to motions for new trials in two matters and resentencing in another case.

The Board applied Georgia ethics rules and found that the conduct related only to potential impeachment evidence.

The Virginia investigation did not reveal clear and convincing evidence of any other misconduct. (Mike Frisch)

October 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Second Circuit Orders Disqualification In Russian Fraud Case

The United States Court of Appeals for the Second Circuit reversed the trial court and ordered the disqualification of BakerHostetler in a case where the court found that the firm had "switched sides" in litigation.

The underlying litigation arises out of a 2013 civil forfeiture action (the “Forfeiture Action”) brought by the United States alleging that Prevezon received the proceeds of a complex, sweeping scheme that defrauded the Russian treasury of roughly $230 million (the “Russian Treasury Fraud”). The government alleges Prevezon laundered portions of the fraud proceeds in New York by buying various real estate holdings in Manhattan. We draw much of the background section from the second amended complaint, and note that the accuracy of the government’s allegations remains untested...

In granting the petition, we are sensitive to the fact that the motion to disqualify came late in the litigation, on the eve of trial after several years of pretrial discovery and motion practice and while several million dollars of property  remains under pretrial restraint. However, Prevezon shares in the responsibility for the unfortunate timing, as Prevezon did not reveal its strategy of arguing Hermitage committed the Russian Treasury Fraud until the government moved for partial summary judgment in the fall of 2015.

The circumstances leading to our grant of the writ, moreover, truly are extraordinary: it is rare that a nonparty, nonwitness will face the risk of prosecution by a foreign government based on the potential disclosure of confidential information obtained during a prior representation. That real risk, however, coupled with the misapplication of the law by the district court, outweighs the delay and inconvenience to Prevezon of obtaining new counsel.

The court found the situation to present an "extraordinary circumstance" meriting reversal of the trial court.

Thanks to a reader for sending this to us. (Mike Frisch)

October 18, 2016 | Permalink | Comments (0)

Suspension For Sexual Battery

A two-year suspension without credit for time served has been imposed by the Ohio Supreme Court

In the consent-to-discipline agreement, Warren stipulates that on August 8, 2013, a friend with whom he had a social—but not sexual—relationship joined him for dinner at his home and planned to stay overnight. After dinner, Warren’s friend lay down in his room to sleep because she had taken some pain medication and was not feeling well. Unaware that she had taken that medication, Warren gave her a sleeping pill to help her fall asleep. At some point during the night, Warren removed his friend’s pajamas and she awoke to his penetrating her vagina with his finger and tongue. She told him to stop and due to the medication she had taken, fell back asleep. She is unaware whether any other sexual contact occurred.

After a jury trial, Warren was found guilty of sexual battery but acquitted of rape on October 31, 2014. On March 5, 2015, he was sentenced to 30 months of community control and was ordered to stay away from the victim, complete a sex-offender treatment program, and pay a $2,500 fine plus court costs.

The parties stipulate that Warren’s conduct violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness).

The parties further stipulate that the applicable mitigating factors include the absence of prior discipline during Warren’s 39-year career, his full and free disclosure to the board and cooperative attitude toward the proceedings, evidence of his good character and reputation apart from the charged misconduct, his acknowledgement that his actions were improper, and the imposition of other penalties.

Two justices dissented. One would grant credit for time served on an interim suspension; the other would remand for further sanction consideration. (Mike Frisch)

October 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 17, 2016

A Song For Charm School: I Can't Help Myself

The Louisiana Attorney Disciplinary Board found that an attorney's conduct in litigation and in the wake of an interim suspension merited an upward departure from the presumptive sanction of disbarment.

Ergo permanent disbarment.

Among the communications at issue

On March 30, 2009, Respondent confirmed his receipt by mail of the Court's order of Interim Suspension by replying to the Court's administrator, and copying the Disciplinary Counsel Ad Hoc, that the Court was a "gutless" "bunch of pigs" and referred to Chief Justice Kimball with a sexual and offensive nickname.

On April 8, 2009, at 1:31 p.m., he sent another email to Disciplinary Counsel Ad Hoc denying the use of racially disparaging terms, yet including many such terms along with other offensive terms, in this email. Later the same day, at 4:34 p.m., he notified Disciplinary Counsel Ad Hoc that he was a "pimp", a "puppet", an "Uncle Tom", and an "OREO."

On April 14, 2009, at 6:34 p.m., Respondent sent an email to Disciplinary Counsel Ad Hoc with only a subject line using the same objectionable terms. Later, at 8:16 p.m., Respondent notified Disciplinary Counsel Ad Hoc by email that “I Just Can’t Help Myself” and then launched into a string of racially offensive and obscene terms.

 It began with Hurricane Katrina litigation in federal court

Respondent made plain his intention to disobey an obligation under the rules of a tribunal when, in response to the November 7, 2008, En Banc Order of the federal court suspending him from practice, he filed his motion styled, “Ashton O’Dwyer’s 28 U.S.C. § 1746 Declaration of His Intentionally Contemptuous Non-Compliance with the Court’s Order of 11/07/08 Which is Directed to the Court En Banc.” 70 In the filing Respondent declared that “he has no intention of ever complying” with the order’s requirements that he pay all outstanding monetary sanctions against him and that he obtain stress and anger management treatment. He flippantly asserted that he would “agree to submit to . . . counseling/treatment, only upon the condition that each Member of the Court first complete ‘charm school.’” Respondent concluded by stating “the Court en banc is invited to disbar Respondent, forever.”

Despite the express terms of the November 7, 2008, En Banc Order which placed him on suspension, Respondent continued mailing, faxing and hand delivering documents to the Court and to individual judges without first paying his outstanding monetary sanctions, or obtaining permission from a member of the Court, in violation of the terms of the orders.71 On July 27, 2009, in open contempt of the March 4, 2009, Order of Disbarment, Respondent caused to be hand delivered to Judge Lemelle a handwritten note containing an outrageous racial slur directed at the judge, resulting in the Court’s issuance of an order barring Respondent from entering the federal courthouse.


Clearly, and as previously discussed, the record supports the Hearing Committee’s findings that Respondent violated numerous provisions of the Rules of Professional Conduct. He engaged in conduct involving dishonesty, fraud, deceit and misrepresentation by his unrelenting misuse and abuse of the legal system, filing frivolous pleadings containing unsupported and inflammatory allegations, misrepresenting the conduct of opposing counsel, using offensive, racist and vulgar language, and impugning the integrity of the judiciary, as well as the disciplinary authorities. Respondent acted with deceit when he sought to mislead the federal court by using his cousin’s name as a ploy so that he could continue to file pleadings after he had been disbarred from practice in the Eastern District and after he had been placed on interim suspension by the Louisiana Supreme Court. He hurled threats of civil, criminal and disciplinary proceedings at judges, opposing counsel and disciplinary authorities. Furthermore, as the Committee found, though the Respondent was notified of his obligations under Section 26 of Rule XIX, relative to his duties to notify clients, co-counsel and opposing counsel of his status and contact information, he failed to do so in violation of Rule 8.5(a).

The Times Picayune had a story on the litigation and its aftermath.

Our earlier coverage is linked here. (Mike Frisch)

October 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Almost Heaven

The West Virginia Supreme Court of Appeals reprimanded an attorney not admitted in the state

A Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board has determined that the respondent, Kevin E. McCloskey, a lawyer who is not admitted to the West Virginia Bar, violated the West Virginia Rules of Professional Conduct by engaging in the unauthorized practice of law in this state, committing acts of professional misconduct in this state, and failing to respond to the Office of Disciplinary Counsel’s ("ODC") requests for information in response to an ethics complaint.

...we adopt the HPS’s findings of fact and conclusions of law. However, exercising our exclusive authority to determine the appropriate sanction in lawyer disciplinary matters, this Court imposes a different sanction than that recommended by the HPS. Our review compels this Court to impose a public reprimand; a five year prohibition on the respondent’s opportunity to apply for admission to practice law in West Virginia, including pro hac vice admission; a five year prohibition on the respondent’s appearance in any court in West Virginia; a requirement that if the respondent should ever seek admission to the West Virginia State Bar, he first obtain twelve hours of continuing legal education in the areas of law office management and/or legal ethics; and a requirement that he pay the costs of these disciplinary proceedings.

The attorney, who is admitted in Pennsylvania, entered an appearance in a West Virginia civil matter and falsely represented that he was admitted in West Virginia.

Justice Benjamin concurred and added that he would refer the case for a criminal investigation and to Pennsylvania disciplinary authorities. (Mike Frisch)

October 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Brother Against Brother

The New York Law Journal has a report on allegations against a judge

A Sullivan County Court judge has been placed on restricted status amid an investigation of whether the judge intentionally ran over his older brother with an all-terrain vehicle.

Peter Labuda, 70, is accusing his brother Judge Frank LaBuda, 66, of breaking his leg and his rib by intentionally knocking him over with an ATV on Sept. 25 on property Peter Labuda owns in Wurtsboro, which adjoins property owned by the judge. The brothers capitalize their name differently.

Sheriff's deputies responded to a call about the afternoon incident but did not arrest Frank LaBuda, as his brother requested. The next day, from his hospital bed at the Orange Regional Medical Center, Peter Labuda told the Middletown Times Herald-Record that he believes his brother drove over him "full throttle" without trying to avoid him, after he told the judge to get off his property.

 Relations between the brothers were known to have been strained prior to Sept. 25, with the Times Herald-Record reporting that Frank LaBuda refused to talk to his brother when the two ran into each other the previous week at a local coffee shop, according to Peter Labuda.

No charges had been filed in connection with the case as of Monday, state and county officials said.

Benjamin Ostrer, an attorney representing Frank LaBuda, said that while the brothers' relationship has been difficult at times, he believes the judge will be exonerated.

"I can't imagine Judge LaBuda having intentionally struck his brother," Ostrer, of Chester, said Sunday. "I am confident that the investigation will reveal that it was truly an accident."

After the Sullivan County Sheriff's Department initially investigated the incident last week, Sullivan County District Attorney James Farrell announced Friday that he was handing the case over to state Attorney General Eric Schneiderman's office, and that the sheriff's department would forward all information it had gathered to state police.

"While I believe that my office could have fairly and impartially handled this matter, out of an abundance of caution and to avoid even the appearance of impropriety, I have requested the attorney general take over this case," Farrell said in a statement. "All of the people involved in this incident, Peter Labuda, Frank LaBuda and the citizens of this county deserve a full, fair and independent evaluation of the facts of this case."

Farrell said he is certain that state authorities will handle the matter in a "thorough, comprehensive and professional" way.

Lucian Chalfen, a spokesman for the Office of Court Administration, said LaBuda was placed on "annual leave" effective Monday after the judge conferred with Thomas Breslin, the chief administrative judge for the state's Third Judicial District.

Chalfen said that under annual leave, a judge remains on the bench but takes vacation time for the interruption in service. He said LaBuda will not return until the investigation and any prosecution of the Sept. 25 stemming is resolved.

Chalfen said LaBuda began to handle only civil cases last week once it was clear the allegations by his brother were being handled as a criminal matter.

In LaBuda's absence, Chalfen said Sullivan County Supreme Court Justice Stephan Schick and County Court Judges Michael McGuire and Mark Meddaugh will handle his caseload.

(Mike Frisch)

October 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Attempted Judging While Armed

An admonition was imposed on a non-lawyer judge by the New York Commission on Judicial Conduct

On three separate occasions in July 2013, May 2015 and June 2015, as set forth below, respondent asserted the prestige of judicial office while attempting to enter an Otsego County-owned building in possession of a firearm, in violation of a local law prohibiting the possession of weapons in county buildings...

At all times relevant to the matters herein, a sign was posted by the exterior door to the public entrance of the Meadows, stating "No Weapons Permitted." Posted below this sign was a copy of County of Otsego Local Law No. 2 of 1995, titled "A Local Law Banning Possession of Firearms and Other Dangerous Weapons in Otsego County Buildings" (hereinafter "Local Law")...

respondent possessed a license to carry a concealed firearm and carried a .380-caliber Ruger pistol in his pants pocket.

In each instance he had asserted his authority as a judicial officer to security officers

While respondent now understands that his conduct in identifying himself as a judge during these three incidents was inappropriate and created at least the appearance that he was attempting to use the prestige of his judicial office to enter the building with his pistol, respondent avers that he did so because he believed at the time that his status as a judge exempted him from security procedures in county buildings...

Throughout the incidents, respondent repeatedly referred to his judicial status and asserted that his judicial position exempted him from security procedures and compliance with the local law prohibiting possession of a weapon in county buildings. Notwithstanding his professed belief that, as a judge, he was entitled to special treatment for security purposes, the local law, which was posted at the entrance to the building, exempts "law enforcement officials only." Since that law was enacted in 1995, it seems unlikely that respondent- as a judge for 35 years and a gun owner-would have been unfamiliar with it. It was specifically brought to his attention in the first two incidents. Indeed, the fact that in the first two incidents he did not reveal that he had a gun or produce it when he emptied his pockets suggests that he was attempting to conceal the gun because he knew that bringing it into the building was prohibited. Regardless of whether the security procedures were enforced on other occasions, he was obligated to comply with those requirements when they were properly enforced by security officials. Even if he was not abusive or discourteous in confronting the security officers, he should have recognized that his repeated insistence that his judicial status entitled him to special treatment would place them in a more difficult position in carrying out their assigned responsibilities.

The Commission's news release is linked here. (Mike Frisch)

October 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Disbarred At Last

The New Jersey Supreme Court has disbarred an attorney with a record of prior discipline.

I was aware of one of the prior cases because I used it in my teaching materials - a case where the attorney was suspended for six months for a negligent misappropriation that had all the earmarks of intentionality but triggered a institutional desire to skew the findings to avoid disbarment.

The Disciplinary Review Board in the present matter

respondent is guilty of failing to communicate with his client, failing to memorialize a contingent fee agreement, failing to protect a client’s interests upon of the representation, and failing to cooperate with disciplinary authorities, violations of RPC 1.4(b), RPC 1.5(b) and (c), RPC 1.16(d), and RPC 8.1(b)...

Here, due to respondent’s default, a reprimand is the baseline sanction for his misconduct, were there no aggravating factors. There is, however, the presence of respondent’s extensive disciplinary history: a 1993 six-month suspension; a 1997 reprimand; a 2005 reprimand; a 2013 three-month suspension; and a 2015 one-year suspension for misconduct in two separate defaults.

This case marks respondent’s third consecutive default in the span of one year, and the third time he has failed to cooperate with disciplinary authorities, a requirement for all New Jersey attorneys. Moreover, he continues to commit some of the same misconduct for which he previously has been disciplined.

We conclude, thus, that he has both failed to learn from his prior mistakes prior mistakes and that, by his repeated failures to cooperate and multiple defaults, he places little value on the law.

 (Mike Frisch) 

October 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand Is First Sanction Imposed On Attorney Admitted In 1955

The Maine Board of Bar Overseers has reprimanded an attorney  who has had no other discipline since his admission to practice in 1955.

He did not have a written fee agreement with a longtime client and 

Attorney Foley acknowledges that while he discussed the Financial Durable Power of Attorney with R.P. and provided her a copy, in hindsight he did not fully and completely describe the breadth of the powers granted to him, including the breadth of the powers that would allow him to self-gift. He agrees that his failure to do so constituted a per se violation of M. R. Prof. Conduct 1.8(c).

Attorney Foley has represented that he believes his actions, regardless of the terms of the Financial Durable POA, were governed by his fiduciary and ethical obligations under the Maine Rules of Professional Conduct as well as by 18-A M.R.S. � 5914(a) which limits the agent acting pursuant to a POA to serve as a fiduciary to the Grantor of the Power of Attorney and to act in good faith and in accordance with the Grantor’s reasonable expectations.


Attorney Foley acknowledges that he is bound by Rules 1.7 and 1.8, (conflicts of interests) and specifically the portions of those Rules dealing with his transactions that could implicate Attorney Foley’s own personal interests in a way that is adverse to those of R.P., his client. While Attorney Foley did not solicit a gift from his client or prepare an instrument giving the lawyer a substantial gift, nonetheless the POA could be construed to have allowed Attorney Foley the power to make such a gift once the POA became effective. In so doing, Attorney Foley did not fully disclose and transmit in writing to R.P. the powers and transactions that she was granting him in a manner that could be reasonably understood by her, nor did he advise her of the desirability or opportunity for her to seek independent legal counsel with regard to that transfer. Attorney Foley’s failure in that regard constituted a violation of M. R. Prof. Conduct 1.8(a).

Attorney Foley also concedes that he relied upon his practice of sending periodic bills reflecting his services to R.P., but that he did not explain, specifically orally or in writing to R.P., the entire scope of his representation and the basis for his fees and expenses, except to the extent reflected in his bills. More particularly, he did not specifically advise R.P. that he would be charging her for the professional services he provided her with regard to her investments at his regular hourly rate. Attorney Foley agrees that his failure to do so constituted a violation of M. R. Prof. Conduct 1.2(a), 1.4 and 1.5(a)(b).

Probably there are few attorneys whose first sanction comes after 61 years of practice. (Mike Frisch)

October 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, October 16, 2016

Across The Pacific

Reciprocal disbarment has been imposed by the Hawai'i Supreme Court based on a like sanction from the Northern Mariana Islands Supreme Court

Upon consideration of the Office of Disciplinary Counsel’s petition for issuance of a reciprocal discipline notice to Respondent Stephen Carl Woodruff, the memorandum, affidavit, and exhibits appended thereto, the materials subsequently submitted by Respondent Woodruff, and the record as a whole, we note the Supreme Court of the Commonwealth of the Northern Mariana Islands (CNMI) affirmed Respondent Woodruff’s disbarment on December 9, 2015 and the matter has since become ripe for disposition by this court, pursuant to Rule 2.15 of the Rules of the Supreme Court of the State of Hawai'i (RSCH).

Upon a thorough review of the record in this matter, and a careful analysis of Respondent Woodruff’s arguments, we conclude that Respondent Woodruff did not establish any of the four grounds available under RSCH Rule 2.15(c)(1) – (4) to avoid reciprocal discipline in this jurisdiction. We further conclude that, had Respondent Woodruff engaged in this jurisdiction in the misconduct at issue in this matter, in nine separate client representations, said conduct would represent multiple violations of Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.5, 3.1, 3.2, 3.3(a)(2), and 8.1(b) of the Hawai'i Rules of Professional Conduct (1994), conduct which would warrant disbarment in this jurisdiction...

Details from Marianas Weekly

Nine complaints were submitted regarding Woodruff’s conduct as an attorney between 2008 and 2012, alleging Woodruff’s failure to communicate with clients and complete work for which he was paid.

Based on these claims, disciplinary counsel filed a request with the high court for Woodruff’s interim suspension from practicing law pending resolution of a disciplinary proceeding. The high court granted the interim suspension, and disciplinary counsel subsequently filed a complaint against Woodruff in the trial court. Two weeks later, disciplinary counsel filed and served upon Woodruff an amended complaint, indicating the deadline for a response. When Woodruff failed to respond by the due date, disciplinary counsel filed for an entry of default, which the trial court granted. Woodruff then requested that the trial court set aside the entry of default, asserting he was unclear about when his response was due. The trial court denied the request, held a hearing on the default judgment, and disbarred him from the practice of law.

In the majority opinion, the court held the trial court did not err by applying the Rules of Civil Procedure to determine Woodruff’s response deadline. Although the NMI Rules of Attorney Discipline and Procedure do not expressly incorporate the Rules of Civil Procedure with regard to amended pleadings, the trial court appropriately referred to the Rules of Civil Procedure in light of gaps in the disciplinary rules.

As to whether the trial court erred by refusing to set aside the default, the high court noted Woodruff admitted his failure to respond was due to his own inattention. In paragraph 24 of the opinion, the high court commented: “[T]he basis for the disciplinary action involved multiple complaints that Woodruff failed to diligently pursue legal matters, including repeated allegations of his failure to adequately communicate with clients and to timely complete work. If he were a layperson, his conduct in this case might not rise to the level of an act that is willful, deliberate, or in bad faith that would qualify as intentional. But because Woodruff is an attorney, who should appreciate the legal consequence of default, we conclude his failure to respond was due to his culpable conduct.”

The minority agreed that the trial court did not err by entering default and refusing to set aside the entry of default. However, because disbarment is a severe consequence, the minority would have exercised the high court’s inherent authority to regulate attorney conduct in reversing and remanding for a disciplinary hearing.

Ultimately, the majority affirmed the trial court’s entry of default and default judgment order disbarring Woodruff from the practice of law.

(Mike Frisch)

October 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, October 14, 2016

Comparing Bar Discipline Systems

The highly transparent Ohio Supreme Court web page has a link to the recent disciplinary cases submitted for the court's review

The Ohio Board of Professional Conduct today announced it has filed the following reports and recommendations for disciplinary cases involving attorneys and judges charged with professional misconduct with the Supreme Court of Ohio.

Except in consent-to-discipline cases, the parties will have an opportunity to file objections to the board’s report and recommendation with the Supreme Court. If objections are filed, the case will be scheduled for oral argument. Oral argument is not scheduled in reinstatement cases, except upon order of the Court. In cases in which the board recommends acceptance of a consent-to-discipline agreement, no objections are permitted, and the case is submitted to the Court for consideration.

Additional information about each case, including the report and recommendation, may be obtained by clicking on the hyperlink for each case. Questions regarding pending cases should be directed to the Office of Public Information at 614.387.9250.

Cases on Report of the Board

Butler County
Disciplinary Counsel v. Gregory Lawrence Peck
Case No. 2016-1490
Recommended sanction: Six-month suspension, stayed

Cuyahoga County
Disciplinary Counsel v. Scott Clifford Smith
Case No. 2014-0197 (on remand)
Recommended sanction: Indefinite suspension

Ohio State Bar Association v. Harry Joseph Jacob III
Case No. 2016-1488
Recommended Sanction: Two-year suspension, one year stayed

Cleveland Metropolitan Bar Association v. Edward Joseph Heben, Jr.
Case No. 2016-1495
Recommended Sanction: One-year suspension, six months stayed

Franklin County
Disciplinary Counsel v. Thomas Patrick Maney Jr.
Case No. 2016-1494
Recommended sanction: One-year suspension, six months stayed

Hamilton County
Disciplinary Counsel v. Robert Hansford Hoskins
Case No. 2016-1496
Recommended sanction: Disbarment

Warren County
Disciplinary Counsel v. Jeremiah Justin Denslow
Case No. 2016-1487
Recommended sanction: Six-month suspension, stayed

Wood County
Wood County Bar Association v. Robert Eugene Searfoss III
Case No. 2016-1489
Recommended sanction: Two-year suspension, one year stayed

Reinstatement Case

Mahoning County
Mahoning County Bar Association v. William Charles Helbley Jr.
Case No. 2012-0200
Recommendation: Grant reinstatement

Dismissal Based on Finding of No Misconduct

Cuyahoga County
Disciplinary Counsel v. Alan Jack Rapoport
Board Case No. 15-073

For those who may find it useful to compare the work load of one state system with another, note that the D.C. Board on Professional Responsibility has submitted five reports (one involving co-respondents) in the past ninety days.

A review of the calendars of the D.C. Court of Appeals reflect that one bar case was argued in October and one was submitted on the court's summary calendar. For November, there were no bar discipline cases either argued or submitted.

There are 33 bar disciplinary matters pending  hearing in North Carolina. The web page of the D.C. BPR reports four pending matters.

It is nice to know there is so little sanctionable attorney misconduct in the District of Columbia. 

Or does the answer lie elsewhere? (Mike Frisch)

October 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)