Monday, July 6, 2015

Regardless of Harm

The Georgia Supreme Court accepted the voluntary license surrender of an attorney

In the petition Barnes admits that he withdrew approximately $275,000 from his law firm’s trust account for his personal use, though the funds did not belong to him. He admits he held the funds in a fiduciary capacity and the funds he took were not earned fees. Barnes asserts that he replaced the funds so no clients were harmed, but the special master noted that this is only an assertion and there is no documentation to support that assertion. The special master found that whether the funds have been replaced is not controlling, given the other admissions, and that clients are harmed even if all funds are returned or the clients have not complained to the State Bar...

The surrender is the functional equivalent of disbarment. (Mike Frisch)

July 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Learning Tool

The Wyoming Supreme Court has imposed a public censure of an attorney for a series of incidents while he was intoxicated.

It started with his car crash into a mechanical gate at the Sheridan airport. He had appeared to not notice the gate and failed to brake, causing $11,000 in damage.

The attorney disregarded police direction and left the scene, driving home.

When police responded to the home, he had an altercation with them involving "significant struggle and resistance"  and which caused injury to an officer's thumb.

He was profane, belittling and caustic to the officers and asked them whether they had ever shot anyone or attended college.

He reported the arrest to his employer and the State Bar,  was convicted of two misdemeanors and has responded well to alcohol treatment.

He also apologized for his actions to the officers and expressed remorse.

He testified that the incident had served as a "learning tool" and had been sober for seven months when the report of the Board on Professional Responsibility was filed.

 The court did not order monitored compliance with the Bar's lawyer assistance program. (Mike Frisch)

July 6, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 3, 2015

D. C. Bar Wants To Raise Dues Ceiling

An announcement on the web page of the District of Columbia Bar should raise a concern for members that I have had for some time - that the recession-proof Bar is soaking its membership as it gorges at the spending trough.

Before the Court of Appeals authorizes raising the dues limit by 1/3, I respectfully suggest that a full and truly independent audit be conducted to see what in the present spending constitutes waste, fraud and abuse.

I'm confident that such an audit would reveal that D.C. has by far the best paid (read most overpaid) employees of any state bar.

Their profligate spending on travel to conferences on our dimes is nothing short of scandalous. 

And we pay through the nose for a disciplinary system that is spectacularly slow and inefficient. The answer to that problem is not to throw more money at it.

The notice

Bar Seeks Dues Ceiling Increase Authorization From Court of Appeals

July 1, 2015

The D.C. Bar Board of Governors has filed a petition with the D.C. Court of Appeals recommending an increase in its dues ceiling to $380 to fund its projected operating expenses for at least the next five fiscal years.

The petition, filed on June 30, 2015, seeks only to set the new ceiling for dues, which currently is $285. The current ceiling was set by the court in 2008 and enabled the Bar to operate for seven fiscal years—two more than originally projected. Actual Bar dues amounts—currently $280 for active members, $145 for inactive members, and $142 for judicial members—are set annually by the Board after an extensive budgeting process and in keeping with the established ceiling.

“The D.C. Bar has demonstrated strong fiscal integrity in the past that should provide confidence in the future,” according to a memorandum in support of the Board’s recommendation. “The Bar, acting through its elected leadership and professional staff, has a history of conservative budgeting.

“We believe that the additional dues authority that would be available through the requested dues ceiling increase is critical if the Bar is to continue to maintain its disciplinary and regulatory functions and to provide the levels of other services that are required by Court rules and that our members have come to expect,” the memorandum stated.

In reaching its recommendation, the Board relied on the work of its special Dues Ceiling Rate Authorization Committee, chaired by former D.C. Bar president Thomas S. Williamson Jr., which examined the Bar’s current and projected finances and used conservative financial modeling to project the funding needed to allow continued operations through 2021. It also noted that the current request represents a smaller percentage increase than the previous request—34 percent versus 40 percent—and that D.C. Bar dues are consistently among the lowest in the country for a bar of its size, and its operations include comprehensive programs to support professional competence, professionalism, and ethical conduct, an attorney discipline system, and a Clients’ Security Fund.

The memorandum also noted the Board’s recent adoption of a series of strategic priorities and objectives to guide the Bar’s operations for the next five years.

Under Rule II, Section 5, of the Court’s Rules Governing the D.C. Bar, the Board’s recommendation will be published by the court for a comment period of at least 60 days and are not subject to member referendum.

To view the full petition, click here.

And that "lowest dues for a bar its size" mantra is a disingenuous dodge that ignores a fact obvious to anyone who understands the true composition of the D.C. Bar.  

D.C. has more out-of-state lawyers than anywhere else. They pay full dues for no service. They are the Bar's hidden endowment and they fund the profligacy.

The people who propose the raising of the dues ceiling depend on a docile membership to let it happen. Maybe its time for there to be an organized opposition to these looming increases.

It is way past time to rein in the wasteful spending of the self-selected Bar leadership and the apparently life-tenured Bar executives. (Mike Frisch)

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

Thursday, July 2, 2015

The Passage Of Time

An attorney benefitted from his failure to report a federal conviction to bar authorities and, as a result, avoided automatic disbarment.

The New York Appellate Division for the Second Judicial Department accepted his resignation

A federal felony conviction does not trigger automatic discipline unless the offense would constitute a felony under the New York Penal Law (see Judiciary Law § 90[4][e]). The federal felony need not be a "mirror image" of the New York felony, but it must be "essentially similar" to trigger automatic disbarment. In determining whether a federal felony is essentially similar to a New York felony, this Court may consider the attorney's plea allocution.

In the decisions of this Court cited by the Grievance Committee in support of its motion, a conviction under 18 USC § 371 was found to be essentially similar to a New York felony in light of the admissions made by the attorney upon his or her plea, and as evidenced by the transcript of the plea proceeding. Here, the Grievance Committee has submitted copies of the indictment and the judgment of conviction. However, as a result of the respondent's failure to report his conviction and the passage of 16 years since he was convicted, the Grievance Committee was unable to obtain transcripts or other evidence of the respondent's admissions made during the course of his plea proceeding or at the sentencing proceeding. Therefore, we conclude that the judgment reflecting the respondent's conviction of one count of conspiracy to commit securities fraud and to making misleading statements to auditors, in violation of 18 USC § 371, without more, does not warrant automatic discipline pursuant to Judiciary Law § 90(4)(a). Accordingly, the Grievance Committee's motion to strike the respondent's name from the roll of attorneys and counselors-at-law must be denied.

Disbarment was nonetheless imposed based on the resignation. (Mike Frisch)

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

It's My Party

An attorney convicted of bribery and wire fraud has been disbarred by the New York Appellate Division for the Second Judicial Department

The respondent was convicted for his role in a bribery scheme to allow Malcolm A. Smith, a Democratic member of the New York State Senate, to run on the Republican ticket in the 2013 race for Mayor of New York City. On March 4, 2015, he was sentenced to 60 months of imprisonment on counts one, three, and six, and 120 months on counts two and five, to run concurrently. In addition, he was sentenced to two years of supervised release and a $500 assessment fee.

The court

By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

(Mike Frisch)

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

Angry When Intoxicated

The Oklahoma Supreme Court has imposed a suspension of one year based on a conviction for domestic violence and other misdemeanors.

A criminal Information was filed against the Respondent, James M. Demopolos, in the District Court for Oklahoma County. One count was dismissed and he pled guilty to violating: (1) 21 O.S. § 540, obstructing a public officer; (2) 21 O.S. § 1378(B), threatening to perform an act of violence involving or intended to involve serious bodily harm or death; and (3) 21 O.S. § 644(C), domestic abuse assault and battery. Upon Respondent's guilty plea, the District Court deferred its two-year sentence until its review on January 6, 2017, and ordered Respondent to pay specific fines and costs. The court ordered he be placed under the supervision of the Oklahoma Department of Corrections and successfully complete a 52-week Batterers Intervention Program with substance abuse testing.

The story

The evidence before the trial panel was that one Saturday evening in May of 2014, Respondent was verbally abusive and consuming alcohol. His condition caused his wife to leave their residence and spend the night with a relative. Upon her return the next morning she made a 911 telephone call seeking help because Respondent was drunk, verbally abusive, and physically abusive having hit her in her arm and head with his closed hand.

The police arrived and observed his intoxicated state. He made threats of physical violence against his wife in the presence of the police, including statements describing what he would do to her when he was no longer in custody. They noticed a bruise on his wife consistent with her complaint. The police sought identifying information from him and he responded with a contemptuous epithet. He admitted to the police that he had hit his wife. These facts served as a basis for three counts in the Information filed against him and his subsequent guilty pleas.

Other relevant circumstances

The evidence at the mitigation hearing was that Respondent had practiced law since 1978 and had no previous complaints for professional discipline. Respondent had previously worked as an oil and gas title lawyer, and no allegations have been made that his conduct has injuriously affected a client. Respondent is currently employed as a landman, and he works on title examinations authored by his employer who is a lawyer. An affidavit was submitted to show that Respondent has been compliant with the Lawyers Helping Lawyers program. A lawyer testified concerning Lawyers Helping Lawyers and Respondent's participation in the program.

A lawyer testified that he became Respondent's sponsor in Alcoholics Anonymous (AA). He explained that Respondent had made progress in that program. The evidence shows that Respondent's continuous participation in AA had been for less than a year at the time the mitigation hearing occurred. Another lawyer testified that he had shared an office with, and rented an office to, Respondent for several years. He stated that he had never seen him consume alcohol while working, or show any indication that alcohol had affected his practice of law.

The evidence at the mitigation hearing also included Respondent's previous chronic use of marijuana as well as his use of sedatives. Respondent successfully completed a thirty-day in-patient treatment program for substance abuse after his arrest. However, he had two relapses of consuming alcohol shortly after returning home after treatment, and these two events occurred approximately five months prior to the mitigation hearing. The evidence showed that immediately after the relapses he continued with attending his AA meetings and informed his AA sponsor of the events. The record shows that Respondent has not failed any of his post-conviction drug tests, and testimony shows that he has not used marijuana or sedatives after his in-patient treatment.

Testimony at the hearing included an incident that occurred eleven years earlier when Respondent had been drinking alcohol and was arrested after having a physical altercation with a male relative. No criminal charges were filed relating to this arrest.

Testimony at the hearing from both Respondent and his wife showed that Respondent had previously pushed, shoved, and slapped his wife when he was drinking alcohol. His wife's testimony shows that she is supportive of her husband, does not want him to lose his Bar license, and that she felt compelled to call the police because she needed help from someone to control Respondent or defuse the situation. She expressed her hope that the two of them could live in an alcohol-free environment. She testified that without alcohol consumption in the home they are kind to each other, there is no verbal or physical abuse present, and that they have been together for twenty-four years.

She stated that their future life as a married couple had to be based upon the absence of alcohol consumption in the home. She testified that she participated in Respondent's in-patient counseling sessions, attended AA meetings, and that she and Respondent were working on the issues as both a couple and as individuals. She testified that Respondent's mother, sister, two aunts, and an uncle had died during the previous five years and she thought that his increased alcohol consumption during this period was tied to what she perceived to be his depression concerning these events. She testified that during the last two years Respondent became angry when he was intoxicated. She testified that Respondent's consumption of alcohol occurred only at home.

The court noted that the attorney had reconciled with his wife and was maintaining sobriety. He will be on deferred suspension after the year of actual suspension. (Mike Frisch)

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

Wednesday, July 1, 2015

She'll Always Have Paris

The Minnesota Supreme Court has suspended an attorney with no possibility of reinstatement for at least 120 days

The referee’s conclusions that the respondent attorney violated the rules of professional conduct by willfully disobeying a court mandate, making false or misleading statements to a tribunal, and committing a criminal act that reflects adversely on her fitness as a lawyer are supported by the record. Respondent’s misconduct is aggravated by her selfish motive, lack of remorse, and failure to acknowledge the wrongful nature of the conduct.

The attorney represented a criminal client

At a January 21, 2011, pretrial conference, the district court established a May 2, 2011, trial date. On April 14, Tayari-Garrett filed a motion to continue the trial date, citing, among other reasons, an undefined personal commitment. Before the hearing on the motion, Tayari-Garrett purchased a nonrefundable plane ticket for travel to Paris from May 4 to May 9 to attend her brother’s wedding. The court ultimately denied the motion.

Tayari-Garrett failed to appear for the first day of trial, May 2. A lawyer who appeared on her behalf informed the court that Tayari-Garrett called him on May 1, told him that she was in the hospital in Dallas, and asked him to appear and request a continuance. The court continued the proceedings to the following day, May 3, and ordered Tayari-Garrett to provide documentation of her hospitalization; her prognosis, including her ability to travel and conduct trial; and the plans she had made for traveling from Dallas to Minneapolis for trial on May 2. At a hearing the next day,Tayari-Garrett failed to appear and did not produce the ordered documentation. The court again continued the proceedings, to May 5.

Tayari-Garrett later established that she had been admitted to the hospital around 9 a.m. on May 2 and released at approximately 3 p.m. on May 3. Shortly after her release from the hospital, Tayari-Garrett e-mailed the trial judge’s law clerk, stating, “Please inform Judge Howard that I have just been released from a hospital and will definitely not be able to attend a scheduling conference this Thursday [May 5]. Too soon.” The next morning, May 4, Tayari-Garrett flew from Dallas to Paris via a connecting flight at the Minneapolis-St. Paul International Airport. After the State brought a motion for an order to show cause, the court scheduled a hearing on May 5 and allowed Tayari-Garrett to appear by telephone.

Tayari-Garrett appeared by telephone from Paris for the May 5 hearing. She discussed her medical situation and prognosis, but made no mention of having traveled to France. During the hearing, the court scheduled a contempt hearing for May 9. In response, Tayari-Garrett stated, “I have a follow-up appointment next week so I cannot, and I believe the Court is aware of that, that I cannot be there on Monday [May 9].” Tayari-Garrett did not appear for the May 9 hearing either in person or by telephone. In fact, at the time of the May 9 hearing, Tayari-Garrett was en route from Paris to Dallas. By order dated May 25, the court found that probable cause existed to find Tayari-Garrett in constructive contempt of court. The court then referred the matter to prosecutors for further handling.

She was convicted on contempt of court and willful disobedience of a court order.

The conviction was affirmed on appeal.

In October 2010, appellant was hired to represent E.M.M., who was charged with theft by swindle in a $2.8 million mortgage fraud scheme. Appellant is an experienced criminal defense attorney who practices in both Texas and Minnesota. The case involved multiple defendants and was one of the largest cases that the complex crime division of the Hennepin County Attorney’s Office brought to trial in 2011. The district court set aside two weeks for the trial.

The court here found that the contempt merited a period of suspension. (Mike Frisch)

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

"Meant To Be Rich"

The Oklahoma Supreme Court has accepted an attorney 's resignation.

Such an action is "tantamount to disbarment."

NewsOK had this report 

A Delaware County attorney known for saying to her friends she “was meant to be rich” was charged Friday in Delaware County District Court with attempting to steal away from her former boyfriend a million-dollar luxury Grand Lake residence.

 Betty Pitts-Cartwright, 61, of Afton; Julie Anne Pitts, 37, of Langley and Heather Hogshooter, 24, of Spavinaw are each charged in Delaware County District Court with obtaining property by fraud. Cartwright also faces three additional counts of contradictory statements as perjury.

Pitts is Cartwright’s daughter and Hogshooter is her former employee.

A $40,000 outstanding warrant was issued on Friday for Cartwright, a $10,000 outstanding warrant was issued for Pitts and a $10,000 outstanding warrant was issued for Cupp, court records show.

Sheriff Harlan Moore said he expects Cartwright and her daughter to surrender to authorities next week. Hogshooter surrendered to authorities Friday afternoon and is free on $10,000 bail, he said.

The women are accused of preparing a phony land deed and a bogus Oklahoma corporation to obtain ownership of a 5,500 square-foot waterfront residence that sits along an 18-hole golf course and has four bedrooms and 4.5 bathrooms.

The house is now listed for sale at $1.75 million, according to Duck Creek Realty.

Donna Ann Cupp, 59, of Sallisaw, another former employee, is charged with embezzlement. She is accused of stealing over $15,000 from Cartwright’s clients.

A $10,000 outstanding warrant was issued for Cupp, court records show. Sallisaw police are attempting to locate the woman, Moore said.

According an arrest affidavit Cartwright and Tor Staubo, a professional boat racer from Norway, were involved in a romantic relationship from the summer of 2011 to August 2012. In July 2012, Staubo paid $1.2 million in cash for a luxury Grand Lake residence then spent another $250,000 to furnish the residence, the affidavit states.

After ending the relationship with Cartwright, Staubo left instructions the attorney was only to look after the property — not live there, the affidavit states. Six months later Staubo instructed Cartwright to put the house up for sale.

Cupp, who has been friends with Cartwright for 30 years, told authorities Cartwright said, “he bought it for me and it’s gonna be mine,” the affidavit states.

Staubo received an anonymous letter in May 2013 saying Pitts was the homeowner, the affidavit states.

 When Staubo confronted Cartwright, she told him “he’d agreed to the property transfer,” the affidavit states. Cartwright said she would get the deed reversed but never did so, the affidavit states.

Hogshooter testified under oath Staubo signed a new deed in her presence on Oct. 29, 2012 and that she notarized his signature and filed the deed at the Delaware County Courthouse.

Problem was Staubo was not in Jay on Oct. 29, 2012 and that the bogus company was not formed until Nov. 1, 2012 and the deed transaction was filed Nov. 7, 2012, the affidavit states.

A handwriting expert confirmed neither Staubo nor Hogshooter signed the land deed, the affidavit states.

Staubo received several threatening emails from Pitts that said, “Don’t question anything about your house that is really mine or you will be deported never to return to my country again.”

Cupp also told investigators about minor inconsistencies Cartwright purposely did when preparing the fake company filing. She told investigators she overheard Cartwright give specific instructions regarding the bogus company filing and she wanted someone other than herself to go the courthouse and file the new company information because “it might draw attention to her,” the affidavit states.

In an unrelated matter, Cartwright prepared a letter for Sequoyah County District Attorney Brian Kuester outlining how Cupp embezzled from one of Cartwright’s guardianship cases.

Monies drafted from the guardianship case was taken and used to make payments on existing bank loans belonging to Cupp and Cartwright’s sister and to pay Cartwright’s monthly bills, according to the affidavit.

Some of the bank’s financial statements included notes saying, “Betty called and she advised Donna has authority for the transactions,” the affidavit states.

Cupp admitted to making the cash transfer for her own personal business, but it at the direction of Cartwright, the affidavit states.

In 2004, Cupp pleaded no contest to multiple counts of embezzlement in Sequoyah County and received a 5-year suspended sentence, court records show.

(Mike Frisch)

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

Divorce And Abandonment

From the web page of the Ohio Supreme Court

The Ohio Supreme Court today suspended Deborah M. Marinelli of North Canton for two years, with one year stayed, for abandoning personal bankruptcy matters for 20 clients in late 2012 and in 2013.

Many of the clients had paid a bankruptcy filing fee and some or all of Marinelli’s retainer. But after her husband began divorce proceedings, Marinelli stopped communicating with clients. She also ceased paying her office rent and going to work at the office. Her office landlord sent her an eviction notice In March 2013, and the Stark County Bar Association took possession of her client files. She later paid full refunds to the 20 clients at a disciplinary hearing.

The attorney disciplinary board in the state found that Marinelli violated six professional conduct rules, including ones requiring competent representation and reasonable diligence. The board noted that Marinelli held onto her clients’ funds for several years while providing little in legal services to them and that she had not started counseling for her depression. The board also pointed out that she failed to answer multiple grievances filed against her by the bar association.

In a unanimous per curiam decision, the court adopted the board’s factual findings and legal conclusions. The second year of Marinelli’s suspension will be stayed if she meets specific conditions set out by the court, including treatment for her depression and following the recommendations of mental health professionals. If she abides by the conditions and is reinstated to practice law, she will be subject to two years of monitored probation.

2014-0971Stark Cty. Bar Assn. v. MarinelliSlip Opinion No. 2015-Ohio-2570.

(Mike Frisch)

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

Apparent Authority Of Attorney Makes Settlement Agreement Enforceable

A recent decision of the Arizona Supreme Court

Agreements between parties or attorneys in civil lawsuits are not binding if disputed unless they are evidenced by a writing or made orally in court. Ariz. R. Civ. P. 80(d). We here consider whether Rule 80(d) makes a written settlement agreement unenforceable because it lacked the written assent of clients who dispute their attorney’s authority to make the agreement. Holding that no such written assent is required and that the agreement here satisfied Rule 80(d), we also conclude that it is enforceable because the attorney acted within the apparent authority given by his clients.

The facts

Petitioners (“the Robertson Group”) sued neighboring property owners (“the Alling Group”) concerning a water line. On January 29, 2013, the parties and their attorneys attended a mediation but did not reach an agreement. At the end of the mediation, the Alling Group, represented by attorney Mark Sifferman, made a settlement offer requiring acceptance within forty-eight hours.Hours before the offer expired, Robert Grasso, the Robertson Group’s attorney, told Sifferman that the Robertson Group needed more time to respond to the offer because one group member had a family emergency. Grasso proposed that the attorneys discuss the offer the next week. Sifferman did not extend the January 31 deadline, and the offer expired.

Sifferman advised his clients of Grasso’s request and recommended they “leave the door open” for settlement. Two of the Alling Group members emailed Sifferman on February 4 stating that they and others favored “removing the settlement offer proposed in the mediation.” But Sifferman did not read the email and mistakenly thought all his clients were willing to settle on the terms previously conveyed to the Robertson Group.

On February 6, after talking with another attorney at Grasso’s law firm, Sifferman sent that attorney an email extending a new settlement offer with terms that mirrored the prior offer but would expire at 5:00 p.m. on February 8. Grasso timely accepted the offer via email. Later, after Grasso’s law firm had informed the trial court of the settlement (the “February 8 settlement”) and circulated draft settlement documents, Sifferman discovered he had lacked authority to extend the settlement offer. After conferring with his clients, Sifferman made a new settlement offer, which materially varied from the February 8 settlement.

The Robertson Group moved to enforce the February 8 settlement. Without an evidentiary hearing, the trial court granted the motion, ruling that Sifferman had actual and apparent authority to extend the settlement offer and, alternatively, that the Alling Group was equitably estopped from disputing that authority. The court also ruled that Arizona Rule of Civil Procedure 80(d) did not apply but, if it did, the emails exchanged between counsel satisfied the rule.

The court here reversed the Court of Appeals, which had found that the settlement was not enforceable.

...we hold that the Alling Group’s actions allowed the Robertson Group to reasonably assume that Sifferman had authority to keep a settlement offer on the table or reoffer the same settlement terms days after the agreement’s expiration, and the Robertson Group reasonably relied on the attorney’s apparent authority...

Rule 80(d) applies only if a party disputes the existence or terms of an agreement. If such a dispute exists, the rule can be satisfied by writings exchanged by counsel. Rule 80(d) does not also require the written assent of a client who disputes that it is bound by the agreement. Because the parties here do not dispute the existence or terms of the February 8 settlement, Rule 80(d) does not apply. Finally, because the evidence shows that Sifferman was cloaked with apparent authority to bind the Alling Group to the February 8 settlement, the trial court correctly enforced the agreement. We vacate the court of appeals’ opinion, affirm the trial court’s judgment, and award the Robertson Group its reasonable attorney fees on appeal.

 (Mike Frisch)

July 1, 2015 in Clients | Permalink | Comments (0)

Reinstatement Favored For Attorney Disbarred For 15 Years Of Misappropriations

A disbarred attorney who had misappropriated funds from two law firms over a 15 year period should be reinstated to practice, according to a recent recommendation of a Louisiana Hearing Committee.

The petitioner presented evidence from his psychiatrist that he had "made tremendous  growth in his life..."

From the 2007 disbarment order

Based on our review of the record in its totality, we find Dr. Scrignar's conclusion that respondent's actions were beyond his control is at odds with many  of the objective facts in this case.   For example, although Dr. Scrignar testified respondent was not motivated by greed, the testimony of respondent's law partners uniformly established that it appeared respondent was living beyond his means and that his lifestyle was not consistent with the income he earned.   Additionally, the record reveals respondent's methods of misappropriating funds evolved over time in order to allow him to avoid detection, suggesting his actions were not purely impulsive.   See Stoller, 04-2758 at p. 12, 902 So.2d at 988 (“Respondent's repeated and deliberate actions over this lengthy period of time belie his contention that his misconduct was an aberration.”).   Finally, respondent himself admitted that he knew his actions were wrong when he testified, “[y]ou mull it over in your head so much that you rationalize any the moral implications of something you know is wrong.”

Considering all these facts, we are unable to find that respondent's mental condition was the sole cause or even a principal or substantial cause of his misconduct.   While respondent may have used his “lack of fulfillment” as a moral justification for his misappropriation, the record does not support the conclusion that there is any significant causal nexus between any mental disability and the misconduct.   Accordingly, pursuant to ABA Standard 9.32(i), we give little weight to respondent's alleged mental disability.

Reduced to their essentials, respondent's actions demonstrate a fundamental lack of honesty which falls far below the standards expected of attorneys admitted to the bar of this state.   We are particularly disturbed by the fact that after being dismissed from Lowe Stein, respondent sought employment at Sessions Fishman without disclosing the reason for his discharge.   After the facts came to light, respondent represented to his law partners that “it would never happen again.”   Of course, this representation turned out to be a lie.

Notably, the hearing committee public member did not favor reinstatement.

It is notable, in my view, because public members may see things from the perspective of a potential future client.

Too often lawyers see things from the view that "there but for the grace of God go I." Mike Frisch)

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

ATM Withdrawals From Escrow Account

The New York Appellate Division for the First Judicial Department has disbarred an attorney for misappropriation of entrusted funds.

The court has previously ordered an interim suspension

In September 2013, the [Departmental Disciplinary] Committee opened an investigation into respondent's professional conduct after receiving a complaint from a buyer in a real estate transaction who alleged that respondent failed to refund his $65,000 down payment in an aborted transaction...

we find that the record presents evidence that respondent misappropriated and/or converted third-party funds, improperly made repeated ATM cash withdrawals from his escrow account, and commingled personal funds with client funds while $200,000 in tax liens loomed over any funds that he maintained outside of his escrow account.   Such conduct constitutes professional misconduct that immediately threatens the public interest, thereby warranting his immediate suspension from the practice of law.

In New York, a failure to respond to a notice of disbarment for six months results in the entry of a disbarment order. (Mike Frisch)

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

Tuesday, June 30, 2015

Unappealing Conduct Leads To Suspension

An attorney who had "essentially abandoned" a client in a civil matter before the Maryland Court of Appeals was suspended for 30 days by the state's Court of Appeals.

Respondent, a member of the Bar of Maryland, agreed to represent Kevin Wilson (“Wilson”) as the appellant in an appeal in a civil case. Shuler failed to appear before the Court of Special Appeals at the oral argument that had been scheduled in Wilson’s case. On that morning, Shuler telephoned the Office of the Clerk of the Court of Special Appeals to state that she felt too ill to travel that morning and to request that oral argument be rescheduled. Sometime afterward, Shuler telephoned the Office of the Clerk of the Court of Special Appeals to check the status of Wilson’s case. Shuler failed to take any further action in Wilson’s case. For example, Shuler failed to file a written explanation for her absence or a written request that oral argument be rescheduled. After the Court of Special Appeals treated Wilson’s case as “submitted on brief” and affirmed the trial court’s judgment, Shuler failed to inform Wilson that he had not prevailed in the appeal. Wilson filed a complaint against Shuler with the Attorney Grievance Commission (“the Commission”), Petitioner.

The medical issues

Shuler testified that she has cardiomyopathy and that, on both the day before and the day of oral argument in Wilson’s case, she was vomiting and experiencing diarrhea. Consistently, in her exceptions, Shuler asserts that, from December 2012 through February 2013, she was “continuously ill” and “had the flu, sinus infections[,] and [a] stomach virus.”

She lived in Richmond and relied on public transportation.

As to sanction

we suspend Shuler from the practice of law in Maryland for thirty days, with a condition precedent to reinstatement that Shuler satisfactorily demonstrate, by the report of a health care professional (acceptable to the Commission and, ultimately, this Court) or other appropriate evidence, that she is mentally and physically competent to resume the practice of law.

Judge Battaglia noted the attorney's lack of remorse and would impose an indefinite suspension.

 The attorney was informally admonished in the District of Columbia for similar misconduct. (Mike Frisch)

June 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Bristol Stomp

A Virginia attorney has consented to license revocation in the wake of a recent criminal conviction

The Bristol Herald Courier had this report on the crimes

Hutchinson, a bankruptcy attorney, worked for a law firm in Bristol, Virginia. After the firm’s Bristol office closed, Hutchinson worked in the firm’s Kingsport, Tennessee office. Hutchinson was the only lawyer in the firm who actively practiced bankruptcy law and the bankruptcy practice was somewhat separate from other operations of the firm.

When clients retained the law firm for the purpose of filing bankruptcy petitions on their behalf, Hutchinson collected initial payments from clients ranging between approximately $500 to $1,000, according to the statement.

Those payments were supposed to be used to pay bankruptcy filing fees, among other things.

Hutchinson was required to deposit those initial payments into the firm’s trust account and then used the money to pay bankruptcy filing fees. However, beginning in approximately 2013, Hutchinson received the initial payments from clients as cash and blank money orders, did not deposit the funds into the trust account, did not record the payments on the firm’s books, and used most of the money for his personal purposes.

To keep the scheme going, Hutchinson used the firm’s credit card account to pay the client’s bankruptcy filing fees in the bankruptcy court for the Western District of Virginia. Through the scheme, Hutchinson fraudulently used the firm’s credit card for more than $70,000 in bankruptcy filing fees that should have been paid from the initial payments collected from clients.

In approximately January 2015, based on insufficient return on its investment, the firm decided to close down the bankruptcy practice. Hutchinson was instructed to close down the bankruptcy practice and not take on any more clients. Unbeknownst to the firm, Hutchinson continued to take on new clients, collect initial payments from clients, and to not record receipt of these payments on the firm’s books. Hutchinson fraudulently retained those funds for his personal use, failed to pay any filing fees for those clients, and failed to file bankruptcy petitions for those clients.

United States District Judge James P. Jones scheduled sentencing for August 12 at 10:30 a.m.

(Mike Frisch)

June 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Debt Collection Regulations Apply To New York Attorneys

The New York Court of Appeals has held that debt collection laws apply to attorneys

Plaintiffs, law firms involved in debt collection, commenced this action in federal district court to challenge certain amendments to the New York City Administrative Code (Local Law 15) pertaining to debt collection activities. The Second Circuit certified for our review the issue of whether the Local Law is preempted by the State's statutory authority to regulate the conduct of attorneys. We conclude that the Local Law is not preempted.

The local law governs the conduct of debt collection agencies.

the courts' authority to regulate attorney conduct does not evince an intent to preempt the field of regulating nonlegal services rendered by attorneys. "Intent to preempt the field may 'be implied from the nature of the subject matter being regulated and the purpose and scope of the State legislative scheme, including the need for State-wide uniformity in a given area'" (People v Diack, 24 NY3d 674, 679 [2014] [citations omitted]). Although the courts may have preempted the field of regulating attorney misconduct, that authority does not extend to all nonlegal aspects of attorney behavior, which can be governed by both civil and criminal law, including regulatory proscriptions. To the extent that the courts have exercised some authority over nonlegal services provided by attorneys (see Rules of Professional Conduct 5.7), the regulation in that area is not "so detailed and comprehensive so as to imply that" the field has been preempted...

The court answered one of two questions certified by the United States Court of Appeals for the Second Circuit, (Mike Frisch)

 

June 30, 2015 | Permalink | Comments (0)

Resigned To His Fate

A former prosecutor who is serving a prison sentence for child pornography and flight offenses had his resignation accepted by the Maine Supreme Judicial Court.

The Portland Press Herald reported on the criminal case

Cameron spent a year behind bars after being convicted in 2010 of 13 counts of child pornography before he was released on bail during part of his appeal to the 1st U.S. Circuit Court of Appeals.

He fled Maine in November 2012 and was arrested on a warrant Dec. 2, 2012, in New Mexico following a nationwide manhunt that lasted about two weeks.

He has been held since then, apparently at one point in a New Hampshire facility. There Beneman says in the sentencing memo, “Jim was attacked and suffered a broken shoulder. … As a former drug prosecutor he is at higher risk of physical assault while incarcerated.”

...Cameron spent 18 years as an assistant attorney general. He became the target of an investigation after the National Center for Missing and Exploited Children reported that Yahoo! found multiple images of child pornography in an account belonging to Cameron’s wife.

Cameron was fired from his state job in April 2008 and indicted on the child pornography charges Feb. 11, 2009. He was convicted by Woodcock following a nonjury trial in federal court in Portland in August 2010.

The resignation affidavit was "impounded" and will be made public only if he seeks reinstatement.

He was disbarred in Michigan. (Mike Frisch)

June 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 29, 2015

Not Perfect But Not Unethical

Disciplinary charges against a criminal defense attorney were dismissed by the Maine Board of Overseers of the Bar.

The attorney was alleged to have provided incompetent representation and failed to communicate with his client

While the Panel heard testimony regarding office practices that could be strengthened (such as file organization, office coverage, phone issues and itemized bills for time spent on non-court appointed cases), the Panel is convinced from the testimony, including the testimony of Carrie Linthicum, the prosecutor in Mr. Adams' case, that Mr. Pickering provided competent representation to Mr. Adams and that he acted with reasonable diligence and promptness in that representation. Therefore, the Panel finds no violation of M. R. Prof. Conduct 1.1 and 1.3.

 The Board further contends that the fact that Mr. Pickering did not give Mr. Adams a paper copy of the discovery produced in the case is a violation of M. R. Prof. Conduct 1.4(a). Although it may be a good practice in most cases, the Board did not cite a rule or any authority at the hearing which requires or even recommends that attorneys provide criminal defendants with actual paper copies of the discovery turned over by the prosecution. Mr. Pickering cited a good example of when providing such copies could be harmful to the criminal defendant. There was no evidence that Mr. Adams requested copies of the discovery prior to his sentencing. Nevertheless, it is clear to the Panel that Mr. Pickering reviewed the discovery with his client to prepare his theories and strengthen his ability to negotiate for a plea bargain during their conferences in Mr. Pickering’s office and at the Caribou courthouse. Mr. Pickering would not have known of the absence of a knife when Mr. Adams was arrested without that review. He would not have known about Mr. Madore's wife's apology without that review. He would not have known the details set forth in the Alford plea had it not been for that review and those conversations. (Exhibit #10, p.7; Exhibit #11, pp. 8 - 15) Mr. Pickering's system of communicating with his client, while not perfect, resulted in Mr. Adams being present at the many court dates scheduled during the pendency of the case. It resulted in Mr. Pickering having the necessary information from his client to be able to negotiate a very favorable plea deal with the prosecutor. Although the sentence imposed was harsher than usual for the charges, the Panel is satisfied that Mr. Pickering's communication with his client was not in violation of M.R. Prof. Conduct. 1.4(a). Likewise, Mr. Pickering’s conduct did not violate M.R. Prof. Conduct. 8.4(a)(d).

(Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Breathtaking Contempt For Courts Precludes Reinstatement

A petition for reinstatement was denied by the Maine Supreme Judicial Court.

Jonas graduated from law school in 1974. That same year, he was admitted to the bar of Pennsylvania, and was then admitted to the bar of New Jersey in 1975. He engaged in private practice in Pennsylvania, and then in New Jersey.

In 1987, Jonas took and passed the Maine bar exam and was admitted to the Maine bar.  Shortly thereafter, he and his wife separated. A contentious and protracted series of divorce proceedings followed, spanning multiple decades and several jurisdictions. It is Jonas’s conduct during these proceedings that ultimately led to his professional disciplinary troubles. 

The Board of Bar Overseers noted that "[u]ntil 1995, his law practice was primarily in New Jersey, where he was an active and successful civil litigator, with a number of large commercial clients."

The misconduct was committed after the attorney's divorce in 1990.

In 1995, a series of decisions that Jonas had made was discovered, changing the course of his life. Apparently tired of being required to pay what he considered to be an unfair amount of spousal support, Jonas took action to undermine the divorce judgment, avoid his support obligations, misrepresent his financial status, and interfere with [ex-wife] Linda’s contact with the children.

The court

...Jonas attempted to explain his actions in 1995, 1996, and 1997 by asserting that he believed the [New Jersey] court was either biased against him or actually corrupt, and that he was suffering from depression and anxiety. If Jonas had not compounded the lack of judgment and integrity he demonstrated from 1995 until 1997 through his actions over the next twenty-plus years, I would have little trouble accepting Jonas’s explanation and his acknowledgement of responsibility and remorse. As the following recitation shows, however, Jonas continued with his single-minded and grossly erroneous belief that he did not have to comply with court orders. His admission that he is “persistent and bull-headed,” although not inaccurate, does not justify his subsequent behavior...

The historical facts reproduced here represent just a small and simplified sampling of the most significant moments in Jonas’s litigation history; that history displays a complexity that anyone would be loathe to describe in full. In total, dozens of jurists in the trial, intermediate appellate, and appellate courts of five states and eight federal jurisdictions for more than two decades have considered and rejected Jonas’s arguments regarding his divorce.

The story involved actions he had taken from Montana to Florida with stops in between and a persistent disregard for court rulings.

In sum

That Jonas has, from time to time, found lawyers to make his arguments for him does not insulate his actions. Whether with or without counsel, he has demonstrated a level of contempt for courts and their authority that is breathtaking. In sum, Jonas’s litigation history, though all relating to his personal affairs, reflects a pattern of conduct that could not possibly meet any definition of integrity. Indeed, a small sampling of the terms that have been used to describe Jonas and his filings and actions in court include the following: vexatious, defiant, subversive, disruptive, guerilla warfare, wasteful, single-minded, adamant, obstinate, dogged retaliatory, duplicative, abusive, especially egregious, unnecessary, unrelenting, specious, deliberate, frivolous, bad faith, improper, ill-advised, retributive, ongoing, expensive, impertinent, delaying, invalid, needless, unsupported, and contemptuous. Jonas has mischaracterized, misrepresented, refused to appear, failed to obey, feigned ignorance, manipulated, and harassed his way through the last twenty-five years, and in every such incident, he has ignored his own conduct, failed to acknowledge any wrongdoing, and expressed no remorse or contrition.

Notably, the Board of Bar Overseers had favored reinstatement, finding misconduct to be "very unlikely to be repeated in the future." 

He was suspended for six months and until further order in New Jersey.  Pennsylvania suspended him for six months and placed him on inactive status in 2014. (Mike Frisch)

June 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

The Law Of Incredible Dubiosity

The Indiana Supreme Court reversed its Court of Appeals and reinstated the conviction of a criminal defendant charged with burglary of a Dollar General.

The court found that the prosecution did not knowingly use perjured testimony. Rather, the key witness had changed her testimony at trial from assertions made at her plea proceeding.

The inconsistencies were disclosed and exploited by the defense.

Further, with respect to the defense's claim of "incredible dubiosity"

the defendant seeks application of Indiana's rule of incredible dubiosity. He alleges that his conviction should be vacated because [witness] Greenlee's testimony as a State witness was so dubious and contrary to the facts that it must be disregarded, leaving insufficient evidence to sustain the conviction...

In essence, the defendant asserts that because the store video images show that the burglar was Caucasian, Greenlee's testimony identifying the burglar as the defendant, an African American, is incredibly dubious, requiring that his conviction be vacated. From testimony at trial and statements of the defendant's counsel at trial, we understand that Greenlee is Caucasian and the defendant is African-American.

The court

We recently summarized that, to warrant application of the incredible dubiosity rule, there must be: "1) a sole testifying witness; 2) testimony that is inherently contradictory, equivocal, or the result of coercion; and 3) a complete absence of circumstantial evidence."

we find as to the first factor that, while Greenlee was not the sole testifying witness, the testimony of the two other witnesses would have been an insufficient basis for the jury to find the defendant guilty. The second and third factors, however, are not satisfied. While at variance with prior statements or arguably with the video images, Greenlee's trial testimony was not internally contradictory. And there was not a complete absence of circumstantial evidence. "In a case where there is circumstantial evidence of an individual's guilt, 'reliance on the incredible dubiosity rule is misplaced.'" Id. at 759 (quoting Majors v. State, 748 N.E.2d 365, 367 (Ind. 2001)). The incredible dubiosity doctrine does not warrant reversal of the defendant's conviction in this case.

(Mike Frisch)

June 29, 2015 | Permalink | Comments (0)

Noteworthy

The Georgia Supreme Court granted a new trial to a plaintiff who lost a medical malpractice case before a jury.

The trial judge had communicated with jurors in response to a note without advising the parties. The note was not preserved .

The plaintiff was contacted by two jurors who expressed concern about the deliberations several weeks later

the unique circumstances of this case, which include the untimely and serendipitous disclosure of the communication to Plaintiffs or their counsel; Plaintiffs’ inability to make the actual note or response a part of the record; the differing recollections about the nature and timing of the communication; the failure to resolve the perceived conflicts; and the inability to make a determination that a verdict for Defendants was demanded, regardless of any effect of the communication on the jury, support Plaintiffs’ entitlement to a new trial.

The court also reversed the Court of Appeals and concluded that the defendant had failed to preserve evidence. (Mike Frisch)

June 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)