Tuesday, September 26, 2017

Dishonesty To Law Firm Draws Suspension

The Colorado Presiding Disciplinary Judge approved a conditional admission of misconduct and imposed a three-year suspension

 Barker, a specialist in the field of oil and gas litigation, joined a law firm as an independent contractor in 2014. Under the terms of her employment agreement, she was to divide client fees with the law firm. Barker built a personal and separate client base using the firm’s assets and referrals. She also used the firm’s resources to represent these clients. Barker modified invoices created in the firm’s billing software, instructing clients to remit payments to her own home address. She failed to disclose to the firm that she maintained these clients. She further failed to remit to the firm the portion of earned fees called for in her employment contract, thereby knowingly converting funds belonging to the firm.

In 2016, Barker joined a new law firm in an "of counsel" position. She falsely told the firm that she had not been subject to any recent disciplinary grievances. The firm terminated its association with her in 2017, when she disclosed to the firm a pending disciplinary proceeding.

Through this conduct, Barker violated Colo. RPC 4.1(a) (a lawyer shall not, in the course of representing a client, knowingly make a false statement of material law or fact to a third person) and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). A three-year suspension, rather than disbarment, was deemed appropriate in this case due to Barker’s unusually significant personal and emotional problems, as demonstrated by an independent medical examination.

(Mike Frisch) 

September 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 25, 2017

Ghetto Comment Violated Rule 8.4(g)

An attorney's conditional admission of misconduct accepted by the Colorado Presiding Disciplinary Judge acknowledged a violation of Rule 8.4(g) and the sanction of public censure

In 2015, [attorney] Wareham represented a woman with two children in a dissolution matter in Douglas County. The court held a hearing in July 2015, during which appointment of a child and family investigator was discussed. As part of that discussion, the judge made a passing and oblique reference to the possible involvement of the Colorado Department of Human Services.

Later that day, Wareham’s client called him about her fifteen-year-old son, who she said was “being really unruly.” She asked Wareham to talk to the son, who she said was listening to the conversation via speaker phone. Wareham responded that during the hearing earlier that day, the judge had said she “will call in the Department of Human Services and she will place [the son] under the custody of the state” if he “doesn’t get himself under control.” Wareham continued, “If he doesn’t want to be placed in foster care, he better start behaving.” Later in the conversation, Wareham told the son: “You will obey your mother . . . . You go to [ ] a Christian high school. You’re behaving like some kid out of the ghetto.” There is no indication that the son had ever been involved in any delinquency action.

Through his comments, Wareham violated Colo. RPC 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person). In addition, by making comments exhibiting a bias against the client’s son on account of his race, Wareham violated Colo. RPC 8.4(g) (in representing a client, a lawyer shall not engage in conduct that exhibits bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process).

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Firing Offense

The Illinois Supreme Court filed a number of actions in bar discipline matters last week such as

In re RAYMOND EDWARD CLUTTS, Attorney Number 6186587 1111 North Plaza Drive, Suite 405 Chicago, Illinois  60173-4981

File Information:  M.R. 28794; 2017PR00048

Mr. Clutts, who was licensed in 1984, was disbarred. He entered the home of his former spouse and his daughter while armed with a gun, and fired the gun in the direction of his former spouse. He was convicted of attempted home invasion and aggravated discharge of a firearm.

And

In re D.G. DONOVAN, Attorney Number 3127050 124 North Nova Road #5020 Ormond Beach, FL 32174-5122

File Information: M.R. 28848, 2015PR00129

Mr. Donovan, who was licensed in 1980, was suspended for six months. While involved in a dispute with a condominium association, he sent an e-mail to the association president, threatening to hit an association board member on the head or legs with a crowbar, in an attempt to have the association president contact an upstairs unit owner to fix a purported leak that was affecting his deceased mother’s unit. He also made a false statement about having paid for groceries when questioned by a store manager who saw him place unpaid groceries into a grocery cart. The suspension is effective on October 13, 2017.

 In re JAMES WINDSOR EASON, Attorney Number 6281329 124 Gay Avenue, Suite 200 St. Louis, Missouri 63105-3620

File Information: M.R. 28824, 2017PR00060

Mr. Eason was licensed in Illinois in 2003 and in Missouri in 2005. He was indefinitely suspended in Missouri, with the suspension entirely stayed in favor of a one-year period of probation, after he was convicted of third degree assault for pushing opposing counsel into a glass table during a deposition. The Illinois Supreme Court imposed reciprocal discipline and suspended Mr. Eason for six months and until further order of the Court, staying the suspension in its entirety by a one-year period of probation, nunc pro tunc to May 23, 2017, and until he completes his period of probation in the State of Missouri.

In re THEODORE EDWARD MALPASS, Attorney Number 6182120 901 Dove Street, Suite 120 Newport Beach, California  92660-3023

File Information: M.R. 28847, 2017PR00068

Mr. Malpass was licensed in Illinois in 1982 and in California in 1984. The Supreme Court of California entered an order suspending him for two years, and staying the suspension after 90 days in favor of a three-year period of probation, subject to conditions, for improperly receiving $42,000 in fees to represent clients in a bankruptcy matter without obtaining the approval of the bankruptcy court, and for failing to follow a bankruptcy court order directing him to refund the fees to his clients. In addition, the Supreme Court of California entered an order suspending him for one year, and staying that suspension in its entirety in favor of a one-year period of probation, subject to conditions, for striking the face of a female acquaintance assisting him in clerical work, and for failing to report a resulting battery conviction to disciplinary authorities. The Supreme Court of Illinois imposed reciprocal discipline and entered an order suspending him from the practice of law in Illinois until he is reinstated to the practice of law in California, and, should he be reinstated to the practice of law in that state, suspending him for two years, with that suspension stayed after 90 days in favor of a three-year period of probation, nunc pro tunc to the date discipline was effective in California, subject to the conditions imposed by the Supreme Court of California and until the successful completion of the conditions imposed in California.

(Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

From The Last Stop Bar To Disbar

An Illinois attorney is seeking disbarment by consent for an alcohol-related driving incident

On December 4, 2015, Movant, after consuming two drinks at the Last Stop Bar in Dixon, was driving southwest on state Route 2 when he attempted a left turn on River Road and caused a collision with a another motor vehicle that was being driven by Daniel Coers ("Coers"). The collision caused massive damage to both vehicles.

As a result of that collision, Coers suffered a severe ankle sprain and is required to wear a device that will be permanently attached to his ankle in order to provide stability.

After the accident, Respondent was taken to the hospital and submitted to a mandatory blood draw. An analysis of Movant’s blood showed that he had a blood-alcohol concentration ("BAC") of 0.15%, or approximately twice this State’s limit of 0.08%.

On September 7, 2016, following a preliminary hearing and the court’s subsequent finding of probable cause, the Lee County State’s Attorney’s Office charged Respondent by way of information with four counts of aggravated DUI. The matter was docketed in the Fifteenth Judicial Circuit in Lee County as People of the State of Illinois v. James M. Allen, 15-CF-258.

On January 5, 2017, Movant entered into a plea agreement with the State and pled guilty to count one of the information, a Class 4 Felony, in violation of 625 ILCS 5/11-501(a)(2) and (d)(1)(C). On that same day, the court sentenced Movant to 180 days in county jail (with 136 days credit based on Movant’s actual time in custody), 24 months of probation, fines in the amount of $2,420, and a Continuous Alcohol Monitoring ("SCRAM") device to be installed on Movant’s person for a period of one year after his release from jail.

At the time this statement of charges was filed, Movant had been subject to two prior disciplinary proceedings: he was first suspended in 1999 for a period of nine months, with the suspension stayed in full, following his conviction of aggravated DUI for which Movant was sentenced to 24 months in prison. (see In re Allen, 96 CH 643, M.R. 16110) Movant was suspended again in 2002 for a period of 90 days for converting approximately $900 in client funds and failing to reduce a contingency fee to writing. (see In re Allen, 01 CH 25, M.R. 17930).

A stiff sanction. (Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Bankruptcy Misconduct and Default Equals Disbarment

The North California Record has the story of a recent Nevada disbarment

Nevada attorney Mary Lynn Wyatt has been disbarred by the California State Bar over allegations involving 16 counts of misconduct in two client matters, none of which she contested, according to a recent decision.

In addition to recommending Wyatt be disbarred, the state bar also recommended she be ordered to pay $4,606, plus interest in restitution to the two clients, according to the eight-page decision and order of involuntary inactive enrollment issued Aug. 10.

 Wyatt, of Carson City, Nevada, failed to participate in person or via counsel and state bar's decision and order for disbarment was entered by default. In cases such as this, when an attorney fails to participate in a California State Bar disciplinary proceeding despite adequate notice and opportunity, the bar invokes Rule 5.85, which provides the procedure for the state bar to recommend an attorney’s disbarment.

The bar's decision is pending final action by the California Supreme Court, an appeal before the bar's Review Department or expiration of time in which parties to may request further review within the State Bar Court.

Wyatt was admitted to the bar in California on Sept. 29, 1993, according to her profile at the state bar's website.

In one of the two client matters, Wyatt allegedly failed to file a bankruptcy petition on her client's behalf and to respond to the client's multiple status inquiries, according to the decision and order. She also allegedly failed to make deposits in her client trust fund on the client's behalf and to refund unearned fees after she terminated her employment as counsel to the client May 1, 2016.

Wyatt's profile lists a previous discipline against her by the state bar. In May 2008, Wyatt, then practicing in Encino, received a suspended one-year suspension and was placed on two years' probation after she stipulated to three counts of misconduct, according to information on her state bar profile. Those allegations of misconduct stemmed from a divorce petition she filed on behalf of a client.

Wyatt's health issues, the death of her mother and the doctor's care she was receiving for stress and grief-related issues were considered mitigating factors in that discipline, according to information on her state bar profile.

(Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Room For Doubt

The Law Society of Upper Canada Tribunal Hearing Division revoked an attorney's license

We found that the Licensee engaged in professional misconduct. With respect to penalty, the fraud is very clear in this case. Mortgagees and purchasers lost more than $3 million. There is no room for doubt. 

The Law Society of Upper Canada v. Abbott2017 ONCA 525 (CanLII), states very clearly at para. 22: 

There is, as yet, no precedent for a lower penalty than licence revocation for a lawyer who has knowingly participated in mortgage fraud.

 Ms. Grewal's licence is revoked effective immediately. She is ordered to comply with the Guidelines for Former Lawyers Whose Licences Have Been Revoked or Who Have Been Permitted to Surrender Their Licences.

As to notice

The Licensee sent an e-mail dated November 22, 2014, to her former mentor indicating she was aware of "what exactly happened, after reading newspapers."

In addition, the Law Society sent its Notice of Application by mail to the last known address on file with the Law Society, and it was not returned. The Request to Admit was sent to an e-mail on file with the Law Society, and it was not returned. 

Based on the provisions of Rules 9 and 10, along with the Licensee's admission in her e-mail of November 22, 2014, we conclude that the Licensee had both actual knowledge of the allegations in this matter and appropriate service of the documents.

The Star.com reported on the attorney's travails.

One day she was working as a lawyer in an office plaza in Mississauga, handling millions of dollars of her clients’ mortgage funds in a trust account.

The next day she was gone — and so was $3.5 million.

Real estate lawyer Rita Grewal abandoned her office, her home and her clients in July, allegedly fleeing to India as a millionaire, according to the Law Society of Upper Canada.

She has not been heard from since. In a Law Society Tribunal Hearing last month her licence was urgently suspended to “protect the public.”

The law society filed a motion to the tribunal for Grewal’s licence to be suspended on Oct. 3, claiming it had reasonable grounds to believe she was involved in a “dishonest and fraudulent scheme” to swindle mortgage funds from her clients.

Grewal “mishandled, misapplied or misappropriated millions of dollars,” abandoned her law practice, failed to serve clients to the standard of a competent lawyer and was not cooperating with the law society’s investigation, according to the motion.

(Mike Frisch )

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex Texts To Minor Draws Conviction, Suspension

The web page of the Pennsylvania Disciplinary Board notes a recent interim suspension pursuant to Rule 214 (conviction of crime).

The Scranton Times-Tribune reported a July 2016 arrest

A local attorney is facing charges after investigators say he sent lewd, suggestive texts to the teenage child of a client.

Jeffrey Toman, 33, 1515 Pittston Ave., Scranton, turned himself in at police headquarters Wednesday, according to police. Mr. Toman is charged with three felonies related to sending obscene and sexual content to a minor, plus a misdemeanor charge of corruption of minors.

The 14-year-old told investigators during an interview that Mr. Toman started sending the texts last summer. Mr. Toman first started to ask the child personal questions of a sexual nature, like if the child was a virgin, and as time went on, he began asking for photos of the child in underwear and also sent pictures of his genitals, according to court documents.

The Times-Tribune does not identify victims of sexual crimes.

The teen also said Mr. Toman would ask if he could come over to the juvenile’s house when no one else was home, according to charging papers. The teen said the texting ended because the child was afraid of getting in trouble.

City detectives started investigating the texts last month and spoke to the child’s mother.

The woman showed texts to Detective Jeffrey Gilroy where Mr. Toman asks her not to turn him into the police and ruin his life and that he would be seeking psychological help, according to court documents.

A call to Mr. Toman’s office number Tuesday afternoon went unanswered and a message requesting comment was not returned.

Mr. Toman was arraigned before Magisterial District Judge Theodore Giglio on Wednesday and released on $100,000 unsecured bail. A preliminary hearing is scheduled for July 20.

Contact the writer: cover@timesshamrock.com, @ClaytonOver on Twitter

The same source reported his recent no contest plea to a corruption of minors charge. 

Toman pleaded no contest to corruption of minors before Judge Vito Geruolo in March. Toman was sentenced to six to 23 months in county prison, where he is still in custody.

(Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Interim Suspension For Attorney Who Threatened Bar Prosecutors

The Northwest Herald has a recent story on a lawyer with charges in Illinois that we previously had discussed 

A Crystal Lake lawyer facing drunken driving and weapons charges had his law license suspended.

The Attorney Registration and Disciplinary Commission ruled that Donald F. Franz, 50, is suspended for two years and until further order of the court, according to a news release.

Franz was arrested Jan. 19 after police responded about 10:20 p.m. to North Williams Street in Crystal Lake after a report of a possible intoxicated motorist. Crystal Lake police later obtained a warrant to search Franz’s vehicle and residence. Inside, they found 36 high-powered rifles, assault-style rifles and shotguns; 20 assorted handguns; and thousands of rounds of ammunition, authorities have said. Franz is believed to be a hunter.

He already was under investigation by the ARDC after threatening an ARDC employee.

The commission first filed a complaint against Franz in 2014, alleging that he pressured a client to sign a promissory note requiring the client to pay a $10,000 fee for legal representation in a divorce without informing the client of his options.

(Mike Frisch)

An additional count was added to the complaint last year, alleging that Franz challenged a client to a duel and insulted him during a dispute over fees.

In October, a third count was added to the pending complaint, accusing Franz of sending threatening emails and voicemails to a former client, commission counsel Scott Renfroe and ARDC administrator Jerome Larkin.

Franz allegedly threatened to kill Larkin over the ARDC’s efforts to sanction him as recently as September 2016, according to the complaint.

“Jerry Larkin, my name is Don Franz. I’m the attorney you are trying to murder because of the installment note, so the day you suspend me, I’m going to stop taking my pills, I’m going to get my affairs in order, I am going to kill you. Have a nice day,” Franz allegedly said in a voicemail message to Larkin on Sept. 14, 2016.

The ARDC, an agency of the Illinois Supreme Court, investigates alleged wrongdoing by Illinois attorneys, holds hearings on specific charges and recommends discipline when warranted.

The state Supreme Court announced disciplinary orders Friday during the September term of court. Sanctions are imposed when lawyers become engaged in professional misconduct by violating the state’s ethics law, according to the release.

Franz was licensed in 1993 and removed from the master roll March 10 after failing to register, according to the release.

Franz has pleaded not guilty to all criminal charges against him, and he has tried to arguethat evidence collected during his arrest cannot be used against him in court. The most serious charge, a Class 2 felony, is punishable by up to seven years in prison if convicted.

He is due in court at 1:30 p.m. Nov. 30.

hat tip to redditbadlawyer. (Mike Frisch)

September 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 22, 2017

Mitigation Reduces Sanction For Billing Misconduct

The Louisiana Supreme Court sanctioned an attorney for billing misconduct described in the court's order

By way of background, respondent joined the law firm of Liskow & Lewis (“the firm”) as an associate attorney in 1998. After his promotion to shareholder in 2005, respondent served as the firm’s hiring partner and head of recruiting. He also chaired the firm’s diversity committee as the firm’s first minority recruiting and retention partner. In 2012, respondent was elected to the firm’s board of directors and served as the board’s junior director through April 2015.

As a member of the firm, respondent generally billed on an hourly basis but sometimes worked on cases on a contingency basis. The firm’s policy set hourly billing targets for shareholders at 1,800 billable hours annually. These billing targets were one of several factors taken into consideration for annual salary increases, discretionary bonuses, and promotion within the firm.

In November 2015, the firm’s compensation committee noted that respondent’s “fee bill credit,” which is a measure of collections attributable to an attorney’s recorded billable time, seemed low. Therefore, the committee inquired into the status of certain files for which respondent had recorded significant billable time. This inquiry led to the discovery that, between 2012 and 2015, respondent had recorded billing entries on a contingency fee case that had been dismissed in October 2012. Because this particular case was an unsuccessful contingency fee matter, the falsely billed hours were not billed to the client or submitted to any court for approval. The committee found two other files containing entries that had not been billed to clients.

The firm presented these preliminary findings to respondent on November 9, 2015. At that meeting, respondent acknowledged and apologized for his misconduct and assured the firm that his actions had not impacted any of the firm’s clients. Respondent informed the firm about other files in which he had recorded false or inflated time or in which he created false receivables that were never billed to clients. With respondent’s assistance and cooperation, the firm conducted a full investigation in order to assess whether his conduct had impacted any of the firm’s clients. Upon completion of the investigation, the firm confirmed that respondent’s conduct did not adversely impact any clients.

The firm identified seven files containing, in part, false entries or receivables. Regarding the contingency fee file that was dismissed in October 2012, the firm discovered false entries totaling 52.25 hours in 2012, false entries totaling 385 hours in 2013, false entries totaling 270 hours in 2014, and false entries totaling 376 hours in 2015. In three other cases, respondent recorded false and inflated entries totaling $91,544.50; he then prepared and reported the bills to the firm’s accounting office, but the bills were never sent to the clients. In three additional cases, respondent recorded false and inflated entries that were written off without the preparation of bills and were not billed to the clients. In total, respondent submitted 428 entries that the firm classified as “certainly false” and an additional 220 entries that the firm classified as “reasonably certain” to be “false or inflated.”

Between 2012 and 2014, respondent received merit bonuses totaling $85,000. The firm concluded that respondent would most likely have received some or all of these merit bonuses even without the false inflation of his billable hours.

Respondent indicated he engaged in this misconduct because he was concerned that his accurate billable hours, when coupled with an insufficient book of business, were not commensurate with his leadership position in the firm. He denied that he engaged in the misconduct out of a desire for discretionary bonuses or any other monetary gain.

On November 22, 2015, respondent voluntarily submitted his letter of resignation to the firm, effective November 30, 2015. He also voluntarily renounced his entire termination bonus, which totaled approximately $85,000, owed to him for his share of the firm’s accounts receivable. The firm determined that this renunciation likely exceeded any losses the firm incurred as a result of respondent’s conduct.

The motivation was apparently not financial as the hearing committee found

Respondent received a discretionary bonus from the firm’s compensation committee for 2012, 2013, and 2014. Scott Perkins, the firm’s executive director, testified that even when he subtracted all potentially false time entries, respondent still met and exceeded his billing targets in each of these years. The testimony  confirmed that respondent dedicated an extraordinary amount of hours annually during the relevant time period as a member of the firm’s board of directors, as board secretary, as chair of the diversity committee, as a member of the hiring committee, as a firm liaison to Judge Zainey’s homeless program, and as chair of a number of ad hoc committees appointed by the firm’s president. Mr. Brown testified that respondent’s extraordinary firm involvement and leadership was sufficient to warrant a merit bonus. He further confirmed that respondent’s extraordinary efforts in firm management alone would have merited him a bonus. While the testimony of Mr. Brown and Mr. Angelico supports the conclusion that respondent would have been eligible for merit bonuses, the testimony also supports the conclusion that not all of the merit bonuses would have been paid to respondent had his hours been accurately recorded.

Sanction

Turning to the issue of an appropriate sanction, we find that respondent’s conduct involved a long and repetitive pattern of dishonesty. As such, the lengthy thirty-month suspension sought by the ODC is clearly appropriate. However, there are significant mitigating circumstances present, including respondent’s voluntary resignation from the firm and his renunciation of his entire termination bonus. These factors, coupled with the lack of harm to respondent’s clients and the firm, justify the deferral of all but twelve months of the suspension.

 The attorney was suspended on an interim basis since December 2015.  

Thus, unless I am mistaken, the functional effect of this order is to reinstate him from the interim suspension as he has served more than the year. (Mike Frisch)

September 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Undisclosed Accident Leads To Bar Charges

An amended complaint filed by the illinois administrator alleges misconduct by an attorney retained as successor counsel in an accident case

In September 2007, [client] Henley and Respondent agreed that Respondent would represent Henley in her claims arising out of the July 22, 2006 collision, and Henley discharged Schaaf. Respondent determined that Henley had a legal malpractice claim against Schaaf and [her law firm] SOS, in part because the attorneys had failed to initiate litigation against the City of Metropolis ("City") prior to the statute of limitations expiring on or about July 23, 2007. Respondent believed that prior to the expiration of the statute of limitations, Henley had a claim against the City because the City had allowed a tree to obscure a stop sign, and Sutton had failed to stop at the stop sign immediately before the collision.

The underlying claims were settled but the legal malpractice did not

the trial court entered an order bifurcating the trial. Pursuant to the court’s order, Respondent would first need to prove that Henley would have succeeded in the claim against the City had the claim been timely filed, and that she suffered financial and other damages for which the City would have been liable. If Henley obtained a favorable jury verdict on that issue, the court would then immediately conduct a further portion of the jury trial relating to whether Schaaf and SOS were negligent in failing to raise the claim against the City.

The client was involved in another accident shortly before the trial

On August 13, 2012, one week before the jury trial was set to begin in case number 2007 L 28, Henley was involved in another motor vehicle accident in Kentucky. Henley was a passenger in a motor vehicle driven by Alice Jeffords ("Jeffords") when Jeffords’s car was struck on the passenger side by a vehicle driven by Erica Ross ("Ross"). Henley was taken by ambulance from the scene of the accident to the emergency room at Western Baptist Hospital and received emergency medical treatment.

The complaint alleges that respondent was obligated to update interrogatory responses to disclose the accident but

Prior to the jury trial in case number 2007 L 28, Respondent advised Henley and her witnesses not to discuss the August 13, 2012 accident during the trial.

The jury trial in case number 2007 L 28 commenced on August 20, 2012. At no time prior to the trial did Respondent disclose to defense counsel that Henley had been in another accident or that she had received medical care following the accident.

During the August 2012 jury trial, Henley, Henley’s husband, Henley’s son, and Jeffords (the driver during the August 13, 2012 accident) all testified, and none of these witness mentioned the August 13, 2012 accident.

During the jury trial beginning August 20, 2012, Henley asked to be absent from the courtroom during certain parts of the trial because her pain prevented her from sitting for long periods of time. Henley also testified about the pain she was presently feeling.

On August 30, 2012, after jury deliberations, the court declared a mistrial as the jury was unable to come to a unanimous verdict.

On December 17, 2012, the parties attended court-ordered mediation. Respondent did not disclose prior to or during mediation that Henley had been involved in a second car accident on August 13, 2012. The mediation did not result in a settlement of the case.

On January 13 2013, Respondent sent a supplemental discovery response in response to the interrogatories served by defense counsel, revealing the August 13, 2012 accident and subsequent medical care to defense counsel for the first time. Respondent also filed supplemental discovery in February 2013 disclosing records showing that Henley discussed the August 13, 2012 accident with her mental health counselor.

The trial court imposed sanctions on request of defense counsel.

He is also accused of twice violating court orders concerning admissible evidence. (Mike Frisch) 

September 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Different Kind Of Wife Swap

The North Carolina State Bar imposed a consent interim suspension of a convicted former district attorney

The Charlotte News & Observer reported

Craig Blitzer, a former Rockingham County district attorney, pleaded guilty in Wake County Superior Court on Monday to playing a part in a scheme that allowed him and a district attorney in a neighboring district to hire each other’s wives and pay them for doing little to no work.

Sentencing was postponed for Blitzer, who resigned in March amid a State Bureau of Investigation probe into the allegations that state money had been misused to carry out the plan.

Wake County District Attorney Lorrin Freeman told Judge Donald Stephens that Blitzer, a Republican, had been cooperating. Freeman said he agreed to continue cooperating with investigators as they looked further into the actions of Wallace Bradsher, former district attorney for Person and Caswell counties who also has been accused of failure to discharge the duties of his office.

“This is not a happy day for anybody,” Freeman said after the hearing. “As DAs, we are elected to uphold the law to try and make a determination between right and wrong on behalf of our communities, and it’s important we uphold the highest ethical standards. And clearly today, by having a sitting DA who has been forced out of office to come in and plead to willfully failing to discharge his duties, it’s a disappointing day.”

Blitzer and his attorney declined to discuss the case after the hearing.

 The charges stem from an arrangement that investigators contend the two district attorneys made after Blitzer was elected Rockingtham County district attorney in November 2014. Blitzer served as district attorney from Jan. 1, 2015, until his resignation in March.

Blitzer had been a successful defense attorney, Freeman told Stephens in laying out her case against Blitzer. After Blitzer was elected, he worried about being able to continue to provide for his family financially on a public salary as he had while in private practice, Freeman said.

Bradsher, a Republican, talked with Blitzer around that time about the plan to hire their spouses, Freeman told the judge.

While state ethics rules allow legislators to hire their spouses, district attorneys are prohibited from employing family members.

So the district attorneys decided to try to get around the rule, and the wives swapped jobs.

The SBI probe found that Pam Bradsher did the work she was paid to do by Blitzer. But investigators found that Cindy Blitzer was taking nursing classes at a school in High Point when Bradsher reported that she was on the clock.

Freeman said Blitzer raised questions about what kind of work his wife should be doing while on a trip to a district attorneys conference at the Outer Banks several years ago.

Freeman said Bradsher told Blitzer not to worry about it.

Blitzer has been under public scrutiny since October when Superior Court Judge Joe Crosswhite confirmed the SBI was investigating the two district attorney offices over allegations that state money was stolen. Crosswhite had ordered the investigation in July 2016 at the recommendation of the state Administrative Office of the Courts.

In January, Debra Halbrook, a former employee in Bradsher’s office, filed a whistleblower lawsuit alleging that she was fired for reporting the district attorneys to the SBI.

As part of a plea arrangement, Blitzer has agreed to provide information to prosecutors as Bradsher’s case remains unresolved. He also paid $48,000 to the Administrative Office of the Courts, money that was paid to his wife to benefit his family. No charges were filed against the wives.

Freeman said Blitzer could be a key part of the prosecution’s case against Bradsher. He also could be called to testify in Halbrook’s whistleblower lawsuit.

Freeman said Monday that had it not been for the actions of Halbrook, the scheme might not have been revealed to investigators and the larger public.

Anne Blythe: 919-836-4948@AnneBlythe1

(Mike Frisch)

September 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"Numerous Acts Of Financial Misconduct"

The Massachusetts Supreme Judicial Court disbarred an attorney for misconduct summarized on the web page of the Board of Bar Overseers

The respondent, Andrew M. Porter, resigned from the practice of law pursuant to S.J.C. Rule 4:01, § 15, and was disbarred. In his affidavit of resignation, dated January 30, 2017, the respondent acknowledged that bar counsel could establish by a preponderance of the evidence at a disciplinary hearing that the respondent had committed numerous acts of financial misconduct against his former law firm and clients. The misconduct included the improper billing of the law firm and clients for the respondent's own personal expenses unrelated to the practice of law; the respondent's intentional misuse of client funds from client trust accounts; and his personal receipt and retention of a retainer paid by a client for legal services, which payment belonged to his firm. The respondent acknowledged that the foregoing acts of fraud, deception, and misuse of funds totaled over $400,000 in the aggregate. By his conduct, the respondent violated Mass. R. Prof. C. 1.15(b), 1.15(c), 8.4(c), and 8.4(h).

(Mike Frisch)

September 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 21, 2017

The Lesser Of Two Sanctions

Reciprocal discipline was imposed by the West Virginia Supreme Court of Appeals where the attorney had been sanctioned in both Virginia and the District of Columbia for the same misconduct.

On June 26, 2013, the Virginia State Bar Disciplinary Board issued a public reprimand with probationary terms to the respondent herein, attorney David A. Downes, for his negligent misappropriation of client funds and his failure to properly maintain a client trust account in violation of Virginia Rule of Professional Conduct 1.15. Furthermore, in connection with a lawyer disciplinary case initiated in the District of Columbia (“D.C.”) based upon the same Virginia disciplinary matter, the respondent consented to the annulment of his D.C. law license effective September 25, 2014.

Notably, Virginia (which handled the original bar complaint) was lenient for a matter involving misappropriation

After considering the stipulations and evidence presented, by order entered June 26, 2013, the Virginia State Bar Disciplinary Board issued a “public reprimand with terms” to the respondent. The specified terms were probationary: he was prohibited from engaging in any further professional misconduct for a period of eighteen months; during the eighteen-month period, he was required to submit to a minimum of four and a maximum of eight periodic, random reviews of his trust account records and reconciliations; and he was required to pay all costs of those reviews. 

The District of Columbia disciplinary system took a dimmer view

Based upon the June 26, 2013, order of the Virginia State Bar Disciplinary Board, the D.C. Office of Bar Counsel opened a lawyer disciplinary complaint in that jurisdiction. On September 11, 2013, Joseph C. Perry, Assistant D.C. Bar Counsel, wrote to the respondent asserting that even in cases of negligent misappropriation of client funds, the District of Columbia Court of Appeals has specified that a period of suspension from the practice of law is the appropriate sanction to be imposed. The respondent answered this letter by arguing that application of the D.C. Bar’s rules should result in the imposition of the same sanction as was imposed in Virginia. Subsequently, however, the respondent consented to be disbarred in D.C. instead of continuing to defend the disciplinary case. In an affidavit signed on August 27, 2014, the respondent acknowledged the truth of the material facts upon which the allegations rested; acknowledged that in accordance with D.C. case law, he had recklessly misappropriated funds entrusted to him in Mr. Brown’s case; and admitted he could not successfully defend the allegations in D.C. Accepting the respondent’s affidavit, by order of September 25, 2014, the D.C. Court of Appeals disbarred the respondent from the practice of law in that jurisdiction. 

Faced with wildly varying sactions between the two jurisdictions, the West Virginia court chose the lesser one

In this case, the respondent received public discipline in Virginia and he voluntarily surrendered his law license in D.C. Pursuant to RLDP 3.20,12 each of those events triggers the initiation of reciprocal disciplinary action in our State. However, in its second report, the HPS determined that under the specific facts and circumstances of this case, the appropriate reciprocal discipline to be imposed by this Court should be based upon the Virginia disposition, not the D.C. outcome. We agree. The respondent’s voluntary disbarment in D.C., although a more severe outcome than in Virginia, was pursuant to a charge based entirely upon the conduct committed and penalized in Virginia. Moreover, there is no indication that D.C. authorities would have disbarred the respondent had the matter been litigated to a conclusion; rather, in his September 11, 2013, letter, the D.C. Bar Counsel advised the respondent he was facing a suspension for negligent misappropriation. The record is clear that the respondent voluntarily surrendered his D.C. law license because he saw no utility in undertaking the expense or effort toward maintaining that license. Accordingly, after considering the respondent’s underlying misconduct and the reasons for the surrender of his D.C. law license, we are convinced the respondent’s actions warrant a substantially different disposition than occurred in D.C. See RLDP 3.20(e)(4).

West Virginia had only learned of the two sanctions when told by the D.C. Disciplinary Counsel.

Thus there were consequences to the attorney's failure to report 

To reinforce the importance of the mandatory reporting obligation, we now hold that pursuant to Rule 3.20(b) of the West Virginia Rules of Lawyer Disciplinary Procedure, a member of The West Virginia State Bar, whether on active or inactive status, shall notify the Office of Disciplinary Counsel of any form of public discipline imposed by the authorities of another jurisdiction, or of the voluntary surrender of his or her license to practice law in connection with disciplinary proceedings in another jurisdiction. A member’s failure to comply with this rule shall constitute an aggravating factor in a reciprocal disciplinary proceeding and may result in an increase in the sanction imposed by this Court. In the case sub judice, the respondent’s failure to timely report the Virginia public discipline and the D.C. voluntary disbarment to the West Virginia ODC constitutes an aggravating factor warranting the increase of his sanction to a thirty-day period of suspension from the practice of law in West Virginia, instead of a public reprimand as was issued in Virginia.

 (Mike Frisch)

September 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorneys Not Liable For Distributing Settlement Proceeds To Client; Third Party Had No "Just Claim"

Attorneys were not liable for distributing settlement proceeds of a wrongful eviction claim to their client rather than a third party claiming entitlement per a decision of the District of Columbia Court of Appeals

Mr. Banks hired Mr. Zucker and Ms. Daus to represent him in the wrongful eviction case against ESB. Before any suit was filed, Mr. Banks signed a settlement with ESB that gave Mr. Banks $100,000 in exchange for a release of the wrongful eviction and other claims. Mr. Papageorge learned of the settlement two days later, and his lawyer told Mr. Zucker that Mr. Papageorge had a claim to the settlement money. The same day, Mr. Papageorge showed Ms. Daus a copy of his agreement with Mr. Banks and his cotenant along with documentation of $88,740.86 in costs and fees he claimed he was owed. Despite Mr. Papageorge‘s repeated demands, Mr. Zucker and Ms. Daus refused to pay him out of the settlement money, and instead disbursed the money to their client, Mr. Banks. Mr. Papageorge asked the lawyers to stop payment on a check they had already given Mr. Banks, warning that the money would soon be gone because Mr. Banks would spend it, but they rebuffed him.

The attorneys were sued for conversion and negligence in which the plaintiff

contends that an attorney also owes a duty of care to a nonclient third party who presents the attorney with a "just claim" against property in the attorney‘s possession.

He had no "just claim" under Rule 1.15 and the disciplinary rules did not form a basis for civil liability.

The "just claim" concept stems from Rule 1.15 of the District of Columbia Rules of Professional Conduct, which governs the ethical obligations of a lawyer who is in possession of property in which others claim an interest. In particular, the rule requires a lawyer to "promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive." Rule 1.15 (c). Comment 8 on Rule 1.15 states:

Third parties, such as a client‘s creditors, may have just claims against funds or other property in a lawyer‘s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client.

The rule does not create an obligation to the plaintiff enforceable in civil litigation

Mr. Papageorge identifies no source of "applicable law" under which Mr. Zucker and Ms. Daus owed him a duty of care other than Rule 1.15 itself and the case law interpreting that rule. Yet as Mr. Papageorge concedes, the Rules of Professional Conduct do not give rise to a private cause of action for their violation.

Here, Mr. Papageorge signed a contract with Mr. Banks and his cotenant that gave him a right to the proceeds from the tenants‘ wrongful eviction claims, but this right was a contractual right enforceable against Mr. Banks and the cotenant, not a property right enforceable against whomever might be in possession of those proceeds. As Mr. Papageorge‘s only entitlement to the settlement money stemmed from the as-yet-unperformed contract with Mr. Banks and his cotenant, he did not have any property rights in the settlement money when he made his demand, and his conversion claim therefore fails.

Associate Judge Beckwith authored the opinion. (Mike Frisch)

September 21, 2017 in Bar Discipline & Process, Clients | Permalink | Comments (0)

More Than Mere Negligence Gets Attorney Disbarred In D.C.

An attorney did not waive her right to assert that her misappropriation was negligent, but nonetheless lost the point, according to a disbarment imposed today by the District of Columbia Court of Appeals.

Here, the Hearing Committee‘s findings (adopted and incorporated by the Board), based upon clear and convincing evidence, do not support Ms. Abbey‘s argument that her behavior amounted to negligent rather than reckless misappropriation. Nor does our case law suggest that Ms. Abbey‘s conduct was simply negligent. The Hearing Committee found that Ms. Abbey received the insurance settlement check from Liberty Mutual in January 2012; properly deposited the check in her IOLTA account; and properly prepared and signed (along with Mr. Vouffo) a settlement distribution sheet in January 2012, showing the amount withheld for payment to Mr. Vouffo‘s medical providers. Nevertheless, she made a cash withdrawal of $2,000 from her IOLTA account on March 22, 2012, and another cash withdrawal from the same account on November 9, 2012, despite being "aware of her responsibility to pay all of Mr. Vouffo‘s medical providers."

The Hearing Committee also determined that one of Mr. Vouffo‘s medical providers, Medtaris Rehabilitation (through its representative, Mr. Pappas), agreed to reduce Medtaris‘s bill from $5,200 to $2,700 after speaking with Ms. Abbey on January 9, 2012. When Medtaris did not receive the medical fee, Mr. Pappas sent communications to Ms. Abbey, making multiple requests for payment from February 23, 2012, through August 9, 2012. Even when Medtaris‘s representative notified Ms. Abbey in a letter of July 12, 2012, that he would file a Bar complaint if Medtaris was not paid the reduced fee on which they had reached agreement, Ms. Abbey still did not pay the bill. Nor had she paid Medtaris‘s fee by October 3, 2012, the date on which Medtaris filed its Bar complaint; in fact, she did not pay the fee until November 14, 2012. In addition, the record contains no proof that Ms. Abbey has paid all of Mr. Vouffo‘s medical providers, including Doctor‘s Community Hospital, Doctor‘s Emergency Physicians, and Diagnostic Imaging."

In addition, the Board determined that Ms. Abbey "did not reconcile her IOLTA records during the time she held Mr. Vouffo‘s funds in trust and she did not keep a ledger." She also "failed to track settlement proceeds relating to individual clients."

The aforementioned findings of the Hearing Committee and the Board do not reveal a good-faith, genuine, or sincere but erroneous belief that entrusted funds were properly safeguarded and paid, or that Ms. Abbey‘s failure to pay Mr. Vouffo‘s medical bills in a timely manner was inadvertent or due to an honest mistake.

On the key legal issue

When we apply the legal principles embedded in our misappropriation case law to Ms. Abbey‘s conduct, the record before us lacks clear and convincing evidence to support a conclusion of inadvertence or honest mistake, or a good faith belief that the funds entrusted to her were being handled properly. Rather, the record before us contains clear and convincing evidence that Ms. Abbey‘s misappropriation was deliberate and reckless. Ms. Abbey (1) was clearly aware that she owed entrusted funds to Mr. Vouffo‘s medical providers; (2) failed to reconcile her trust account, examine the status of the trust account on a regular basis, or institute an accounting system that enabled her to determine what funds were allocated to what client or what medical provider and the status of those funds; (3) ignored repeated inquiries about and request for the agreed upon reduced medical fee by one of Mr. Vouffo‘s medical providers; (4) made two $2,000 (total $4,000) unexplained cash withdrawals from her trust account prior to paying some of Mr. Vouffo‘s medical providers, leaving insufficient funds, for months, to pay medical providers; and (5) apparently has not yet paid all of the medical providers from the funds entrusted to her care. 

Thus disbarment. (Mike Frisch)

September 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Stingray Search Violated Fourth Amendment

The District of Columbia Court of Appeals reversed a conviction on Fourth Amendment grounds

A jury found appellant Prince Jones guilty of various offenses arising out of two alleged incidents of sexual assault and robbery at knifepoint. Mr. Jones appeals his convictions on the ground that much of the evidence offered against him at trial was the direct or indirect product of a warrantless—and thus, Mr. Jones argues, unlawful—search involving a cell-site simulator or "stingray." Mr. Jones presented this Fourth Amendment claim to the trial court in a pretrial motion to suppress, but the trial court denied it under the inevitable-discovery doctrine and did not reach the question whether the government violated Mr. Jones‘s rights. We agree with Mr. Jones that the government violated the Fourth Amendment when it deployed the cell-site simulator against him without first obtaining a warrant based on probable cause. Further, we reverse the trial court‘s inevitable-discovery ruling and reject the government‘s argument (not resolved by the trial court) that the good-faith doctrine precludes applying the exclusionary rule in this case. Because the admission at trial of the evidence obtained as a result of the unlawful search was not harmless beyond a reasonable doubt, we reverse Mr. Jones‘s convictions.

Associate Judge Beckwith authored the opinion in which Senior Judge Farrell concurred in large part.

Associate Judge Thompson dissented. (Mike Frisch)

September 21, 2017 | Permalink | Comments (0)

Wednesday, September 20, 2017

Breach Of "Shiduch" Lawsuit Sees A New Year

The New York Appellate Division for the Second Judicial Department agreed with the trial court's denial of a motion to dismiss a civil action 

The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. The defendants Rabbi Haim Yosef Sharabi and Michal Hadad (hereinafter together the defendants) moved pursuant to CPLR 3211(a)(2) to dismiss the complaint insofar as asserted against them for lack of subject matter jurisdiction, arguing, inter alia, that courts are prohibited from resolving controversies that require consideration of religious doctrine. The Supreme Court denied the motion, and we affirm.

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d 282, 286; see Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696). However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d at 286;see Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d 1017, 1017; Drake v Moulton Mem. Baptist Church of Newburgh, 93 AD3d 685, 686; Merkos L’Inyonei Chinuch, Inc. v Sharf, 59 AD3d 403, 406).

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles (cf. Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d at 1017). Accordingly, the Supreme Court properly denied the defendants’ motion to dismiss the complaint insofar as asserted against them.

The New York Post had a story about the case.

A lonely Brooklyn woman got her heartstrings played by a grifting Jewish mystic, who promised to find her a husband and three lucky magic Torahs for a payment of $214,000, a new lawsuit claims.

Cecilia Lifschitz says she handed over the huge sum to controversial Borough Park mystic Rabbi Chaim Sharabi in a desperate bid to find a life mate — but the hustling holy man never came through with what he promised.

“Plaintiff was an easy target for defendants and defendants were aware of this,” her suit says.

The woman claims that Sharabi and two collaborators — his daughter-in-law, Michal Hadad, and Alon Jacobi — promised they would quickly find her a husband in exchange for the money.

“Defendants had every reason to know Plaintiff would do anything, including paying a large sum of money, to get married,” the suit states.

Sharabi apparently told the woman he’d secure the lucky holy texts for the woman, and that they would be housed in synagogues in Israel and Brooklyn.

“Plaintiffs made these knowingly false statements about her finding a husband and the existence of the Torah books when she paid them $214,000,” the suit says, adding: “Purchasing a Torah book is considered a very significant good deed in the Jewish religion, one which brings a person good luck.”

Lifschitz noted that parties are typically held after someone buys a new handwritten Torah and that the purchaser is invited to attend. But she never got any proof that he bought the books.

Sharabi, however, disputed the woman’s claims — saying he really did set up Lifschitz with a man, named Alon. They even went on a trip to Brazil, he said.

“When things didn’t work out with her and Alon, she got upset,” he told The Post on Tuesday.

Sharabi also claimed he got the Torahs for her. He showed The Post a Torah that he said had her name written in it in Hebrew. He said it cost $42,000 and that the other two were in Israel.

“Sometimes you don’t get what you want and you have to say thank you to God because he knows best,” he told The Post. “I love her, I want to help her, she’s a good person.”

According to published reports, Sharabi has successfully styled himself as a clairvoyant in the Borough Park community, selling everything from promises of wealth and marriage to lucky amulets.

A 2009 story in The Forward reported that Sharabi received clients in the back of a Borough Park optician and occasionally kept people waiting for six hours to bask in his wisdom.

Lifschitz and her attorney declined to comment on the case.

(Mike Frisch)

September 20, 2017 in Current Affairs | Permalink | Comments (0)

Recusal Denied Despite Improper Independent Investigation By Judge

The Tennessee Supreme Court reversed an order granting a judge's recusal in a civil case for an improper ex parte telephone call

This case is on appeal from a trial court judge’s decision not to recuse herself based on a telephone call to a university department director concerning a potential expert witness’ qualifications. Upon the trial court’s denial of the defendant’s motion for recusal of the trial court judge, the defendant filed an accelerated interlocutory appeal in the Court of Appeals pursuant to Tennessee Supreme Court Rule 10B, section 2. The Court of Appeals reversed the trial court’s decision, holding that recusal of the trial judge was necessary. We granted the plaintiff’s accelerated application for permission to appeal to this Court. Having thoroughly reviewed the filings of both parties and the applicable law, we conclude that the trial court’s denial of the motion to recuse was appropriate in this case. Therefore, we reverse the decision of the Court of Appeals.

Holding

While perhaps ill-advised because she did not consult with the parties first, the trial judge simply sought general information regarding whether a court-appointed CRC would be a workable option to help the parties resolve their dispute. And importantly, the trial judge ultimately allowed the Defendant’s proposed expert to examine the Plaintiff again, even though the matter had been pending for almost four years. In sum, the trial judge’s conduct throughout these proceedings would not give a person of ordinary prudence reason to question her impartiality.

Justice Page dissented

Regardless of her motive, the trial judge undertook an independent investigation of disputed facts by telephoning the director of the program at the University of Tennessee and inquiring about credentials of CRCs, contrary to the Code of Judicial Conduct. Id. at Canon 2.9(C) (“A judge shall not investigate facts in a matter independently[] and shall consider only the evidence presented and any facts that may properly be judicially noticed.”). The majority acknowledges that the trial judge’s actions constituted ex parte communications and an independent investigation. This is exacerbated by the fact that the conversation was held off the record, and the parties did not know the full content of exactly what was said. As noted by Judge Dinkins’ concurring opinion, by engaging in ex parte communications with the professor “without the knowledge or consent of the parties, the court was not only denied the opportunity to create a record of the purpose fornthe call prior to it being made, but the parties were denied the opportunity to preserve an objection.” Holsclaw, 2016 WL 7364901, at *9 (Dinkins, J., concurring).

While there was no record evidence of actual partiality, appearances matter

While I acknowledge that the question of recusal is close, I have concluded that a line was crossed in this case and that the conduct in question created an appearance of impropriety. I have also concluded that communication of the type in this case wherein a trial judge has an off-the-record ex parte discussion with an individual whose advice could have potential impact on the trial court’s decision-making process would, in most cases, create an appearance of impropriety.

(Mike Frisch)

September 20, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Judge Should Have Recused But Error Harmless

The South Dakota Supreme Court affirmed a fourth-degree rape conviction

Approximately one month before [defendant] Shelton’s trial, his attorney moved to withdraw from the case. Shelton’s former cellmate came forward with information that Shelton confessed to him that Shelton had committed the rape. The attorney represented both Shelton and the former cellmate. Due to the conflict, the court allowed the attorney to withdraw and appointed a new attorney to represent Shelton. A week later, the circuit judge overseeing the matter sent a letter to the new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s law firm and that this was a potential basis for disqualification. The judge stated:

You are now advised that I will disqualify myself from this proceeding, and another judge will be assigned to hear this case, unless you and your client agree in writing that I should not be disqualified, and that I may continue to preside over this action.

But

A written agreement waiving disqualification was not provided and there was no further mention of the issue in the record. Nevertheless, the same judge continued to preside over the trial.

The court concluded that the judge erred in failing to recuse but

In upholding the conviction in this case, there is little risk of injustice to the parties. Initially, Shelton does not argue that the judge was biased or prejudiced against him in any way. Instead, Shelton erroneously argues that the judge lacked jurisdiction to proceed in the case, and as a result, the judgment of conviction was void. A thorough review of the record does not reveal any evidence of partiality. Further, it is not alleged, and it does not appear from the record, that the judge’s ex-wife had any involvement in the matter. And while Shelton argues that in his experience, “an overwhelming majority of divorce cases have at least some level of animosity[,]” none was shown here...

There is also little risk that denial of relief would produce injustice in other cases. Unlike the situation presented in Liljeberg, where the judge failed to disclose the potential basis for disqualification to the parties, the judge in this case upheld his ethical obligations under the Code of Judicial Conduct and made a full disclosure. The judge sent a letter to Shelton’s counsel informing him of the potential basis for disqualification and filed the letter in the record. Although the judge erred by continuing to preside over the matter absent a waiver, Shelton compounded this error by failing to raise it.

The court held that the error was harmless. (Mike Frisch)

September 20, 2017 in Clients, Judicial Ethics and the Courts | Permalink | Comments (0)

Their Old Kentucky Home

The South Carolina Supreme Court permanently debarred an attorney

The numerous charges against Respondent Heather Mary Boone McKeever in this disciplinary matter include the unauthorized practice of law, improper fee arrangements, false statements before the court, and attempting to intimidate a former client. Because McKeever failed to answer the formal charges against her and failed to appear at her hearing before the Commission on Lawyer Conduct, she is in default and the charges against her are deemed admitted. The only matter before the Court is determining the appropriate sanction for McKeever's misconduct. At the hearing before this Court, McKeever offered no mitigating evidence or explanation for her conduct. Because of her pattern of abusing the judicial process, masking her misconduct, and, perhaps most troubling, attempting to intimidate a former client through meritless lawsuits, we find it appropriate to permanently debar McKeever in this state, order her to pay the costs of the investigation and subsequent proceedings, and other sanctions as will be described herein...

McKeever is a licensed attorney in Kentucky who moved to Charleston with her husband, Shane Haffey, in the midst of the foreclosure of a $1,000,000.00 loan on their Kentucky home. Upon arriving in Charleston, McKeever came into contact with Betty McMichael, who owned two properties––991 Governors Road where she resided, and 986 Governors Road which she rented out. After learning that McMichael faced foreclosure on both of these properties, McKeever offered her legal representation, despite not being licensed to practice law in South Carolina. McMichael initially declined the offer, but she ultimately agreed to the arrangement after repeated phone calls and visits from McKeever. In exchange for McKeever's legal services, McMichael allowed McKeever and her family to live in the 986 Governors Road house rent-free during the course of representation––an improper fee arrangement because McKeever did not advise McMichael on the scope of her legal representation or the basis for her fees. Moreover, McKeever obtained a possessory interest in the property that was the subject of the litigation––a conflict of interest of which McKeever did not make McMichael aware.

Upon obtaining McMichael's consent to represent her in the foreclosure actions, McKeever's subterfuge began. Sometime after McMichael accepted her legal representation, McKeever induced her to issue a quitclaim deed granting title to 986 Governors Road to Bondson Holdings, a fictitious entity owned by McKeever and Haffey. Moreover, after the judge granted permission for McKeever to appear pro hac vice in the 991 Governors Road foreclosure action in July 2011, she took no steps to protect McMichael's interest for the next year while living rent-free in a house owned by McMichael in exchange for her legal representation. Ultimately, a licensed South Carolina attorney was forced to make an appearance on behalf of McMichael in 2012 and the case was eventually dismissed in 2013.

While representing McMichael in connection with the first foreclosure action brought against 986 Governors Road, McKeever again sought pro hac vice admission with a licensed South Carolina attorney serving as local counsel. Without consulting local counsel or McMichael, McKeever filed a document entitled "Answer Class Action Complaint" under local counsel's name. In the document, she asserted thirty-nine affirmative defenses, apparently in an effort to remove the encumbrances on the property and secure clear title, which McKeever and Haffey held after receiving the deed from McMichael.1 Additionally, in an attempt to delay and hinder the foreclosure proceedings, McKeever falsely claimed that McMichael resided at the property, levied allegations against opposing counsel, and filed notices of depositions for numerous named and unnamed individuals. When local counsel discovered McKeever filed the answer under her name and without her knowledge, she moved to be relieved as counsel. Eventually the mortgage holder voluntarily dismissed its action against McMichael, and in November 2011 McKeever filed the quitclaim deed to 986 Governors Road. McKeever took no further legal action on McMichael's behalf; however, she retained the benefit of living at 986 Governors Road rent-free and holding title to the property.

In late 2012, Bank of America acquired the entity which held the note on 986 Governors Road and reinstituted foreclosure proceedings on the property. Prior to filing, Bank of America's attorneys conducted a title search and discovered the quitclaim deed granting title to Bondson Holdings. Bank of America then filed its action naming both McMichael and Bondson Holdings in its summons and complaint. McKeever contacted South Carolina attorney Parker Barnes, Jr. and requested he serve as local counsel for McMichael, falsely representing that she was eligible to appear pro hac vice. McKeever filed no answer, responsive pleadings, or any other motions on behalf of McMichael aside from a motion for an extension of time to file a response and objection to a transfer to the Master in Equity. This Court issued a letter to the Charleston County Clerk of Court advising that McKeever was not licensed to practice law in South Carolina, nor had she filed an application for pro hac vice admission in the matter. Nevertheless, McKeever continued to file pleadings and motions on behalf of Bondson Holdings and Haffey. In these various motions and pleadings, McKeever asserted frivolous or meritless legal positions, made false statements, and threatened civil action and criminal prosecution against Barnes, opposing counsel, the presiding judge, and the clerk of court.

The attorney filed two actions and engaged in other efforts to forestall foreclosure.

Sanction

In light of McKeever's blatant disregard for this state's regulation of the legal profession, her abuse of the judicial system, threatening and coercive behavior directed at McMichael, and her lack of candor with various courts, we impose the following sanctions and declare McKeever be: (1) permanently debarred, prohibiting her from seeking any form of admission to practice law (including pro hac vice admission) in South Carolina, and prohibiting her from advertising or soliciting legal services in the state; (2) ordered to pay McMichael $1,500.00 for attorney's fees related to the actions filed in Kentucky; and (3) ordered to pay the costs of the disciplinary investigation and formal proceedings. Moreover, pending the outcome of the bankruptcy proceeding in which Haffey has subjected the 986 Governors Road property, we reserve the right to void any deed through which McKeever wrongfully granted title to herself and Haffey in violation of our Rules of Professional Conduct.

September 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)