Monday, October 20, 2014

Mitigation Avoids Disbarment

A three year suspension was imposed by the Louisiana Supreme Court on a lawyer on these findings

The record in this consolidated matter supports the hearing committees’ factual findings, as modified by the disciplinary board. Respondent neglected a legal matter, failed to communicate with a client, charged an unreasonable fee, failed to refund unearned fees, converted client funds, made false statements to the ODC, shared legal fees with a nonlawyer, facilitated the unauthorized practice of law by a nonlawyer, shared fees with a corporation not licensed to practice law, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. This conduct violated the Rules of Professional Conduct as found by the disciplinary board.

There was mitigation

The board also found that respondent suffered from various illnesses during the time of her misconduct, that she worked primarily as a solo practitioner since 2001 without the benefit of professional mentoring relationships, and that she devoted a substantial portion of her practice to representations in the public interest in under-served areas of the community.

The court this found that a lesser than than disbarment was appropriate. (Mike Frisch)

October 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, October 18, 2014

In And Out

The Louisiana Supreme Court decided a number of bar admission matters last week.

The court granted admission to an applicant who had a prior history as a civilian and in the military.

The Committee on Bar Admissions ("Committee") opposed petitioner’s application to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his prior criminal history and his military disciplinary history. In addition, the Committee cited a finding by the Texas Board of Bar Examiners that petitioner had failed to fully and accurately disclose his criminal and military disciplinary history on his law school application and on his bar application in Texas. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence.

There was a dissent from Justice Clark

I voted to deny petitioner’s request to sit for the bar exam, I voted to deny petitioner’s application for the appointment of a commissioner, and, for the same reasons, I would deny admission.

Petitioner has a record of both civilian criminal conduct and military criminal conduct. Further, and perhaps more seriously, petitioner shown a pattern of dishonesty by failing to report his complete criminal history and/or his employment history on his law school admission, his application for admission to the Texas Bar, and his application for admission to the Louisiana Bar.

A license to practice law in Louisiana is a privilege, not a right, and petitioner has shown by his illegal and dishonest conduct that he is not entitled to that privilege. By admitting petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.

Justice Clark also dissented from an order admitting another applicant who was not forthcoming with his law school and the bar concerning his criminal history

Petitioner has a record of criminal conduct, and perhaps more seriously, petitioner has shown a pattern of dishonesty by failing to report his complete criminal history on his law school admission and on his application for admission to the Louisiana Bar.

This applicant was denied admission.

These issues included petitioner’s involvement in a hit and run accident in which alcohol was allegedly a factor, a pattern of financial irresponsibility on the part of petitioner, and a lack of candor by petitioner in connection with his application for admission to the Louisiana Bar.

The applicant must wait two years to reapply. (Mike Frisch)

October 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2014

Credible Self-Regulation

Any credible disciplinary system requires that a complained-about attorney provide substantive and meaningful cooperation with the bar investigation.

Failure to cooperate is treated as conduct prejudicial to the administration of justice.

New York provides real teeth to the duty to cooperate, as demonstrated by a recent interim suspension ordered by the Appellate Division for the First Judicial Department.

The circumstances

Respondent's client filed a complaint with the Committee, alleging that respondent neglected her landlord-tenant case. The client further alleged that, after she paid respondent $1,000 to work on a bankruptcy case, respondent informed her that he could not handle the case because he was not a bankruptcy lawyer. She requested a refund of the $1,000, but respondent never returned the funds.

After the Committee initially contacted respondent, respondent submitted an answer generally denying his client's allegations. The Committee then requested respondent provide a chronology of the work he performed on behalf of the client along with any documents in support. When no response was received, the Committee made numerous attempts to contact respondent, including serving a subpoena requiring respondent's appearance for a deposition. Respondent failed to appear, and did not contact the Committee.

The law

Pursuant to 22 NYCRR 603.4(e)(1)(i), this Court may temporarily suspend from the practice of law an attorney who is the subject of an investigation by the Committee, pending consideration of charges, upon a finding that the respondent is guilty of professional misconduct that immediately threatens the public interest. Such a finding may be made based upon the attorney's failure "to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation. . . ."

Although respondent submitted an answer to the complaint, he has not cooperated with the Committee in its ongoing investigation, and failed to appear for a deposition as ordered by a judicial subpoena. In addition, he has defaulted on this motion. Such conduct demonstrates a willful noncompliance with the Committee's investigation and warrants his immediate suspension.

I'd simply note that the District of Columbia Board on Professional Responsibility has opined that a general denial of allegations is a sufficient response. Further, D.C. Bar Counsel does not have the authority to depose an accused attorney.

Illinois gives discovery and deposition authority to its disciplinary counsel.

The Administrator, the Inquiry Board and the Hearing Board are empowered to take evidence of respondents, petitioners and any other attorneys or persons who may have knowledge of the pertinent facts concerning any matter which is the subject of an investigation or hearing.

The deposition is an invaluable tool to establish the facts both undisputed and at issue. Disagreements come into focus, charges can be brought with particularity and the entire process is streamlined as a result.

God forbid D.C. would ever grant such authority to its Bar Counsel.

Just a couple of things to add to the list of deficiencies in a system that no one seems remotely interested in correcting or improving. (Mike Frisch)

October 17, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, October 16, 2014

Computergate Conviction Leads To Consent Disbarment

The Pennsylvania Supreme Court has accepted the consent disbarment of an attorney convicted in the so-called Computergate matter.

Matt Miller of pennlive reported on the conviction and appeal in September 2013

The state Superior Court refused on Wednesday to overturn the criminal convictions and 4- to 12-year prison sentence of former state Rep. Brett O. Feese in the so-called Computergate scandal.

In a 53-page ruling, a court majority rejected Feese's claims that prosecutors from the state Attorney General's Office committed misconduct and prejudiced his case by destroying raw notes of witness interviews and that they had failed to prove that he had broken the law.

The 59-year-old Feese, who was also the former director of the House Republican Campaign Committee and chief counsel for the House Republican Caucus, was one of only two of nine Computergate defendants to go to trial in Dauphin County Court. The others entered guilty pleas.

Feese was convicted of 40 charges, including theft, obstruction of the administration of law and conspiracy, after a 23-day trial in October 2011. Besides his prison term, he was ordered to pay $1 million in restitution and a $25,000 fine.

Feese, who once represented Lycoming County, and the other Computergate defendants were charged with using state-paid computer resources and employees to abet GOP political campaigns from 2000 to 2007.

Other Republicans who pleaded guilty to Computergate charges included former House Speaker John Perzel, who received a 2 1/2 to 5-year prison term and the same restitution order as Feese.

In denying Feese's appeal, the Superior Court found "too speculative" his accusations that prosecutors had acted in bad faith and skewed the outcome of the case by destroying the raw witness interview notes.

Prosecutors denied the allegations, saying the notes were destroyed under a long-standing policy of the attorney general's office and that the witness statements from those notes were transcribed in reports to which Feese's lawyer, Joshua Lock, had access.

Feese's argument about the note destruction did gain some traction with Superior Court Senior Judge James J. Fitzgerald III. In a dissenting opinion, Fitzgerald concluded that a hearing should have been held regarding the allegation that prosecutors had violated their own guidelines for destroying notes.

Lock is making the same arguments regarding the note destruction in a federal lawsuit he is pursuing on Feese's behalf against the Computergate prosecutors and Gov. Tom Corbett.

Meanwhile, Feese is serving his sentence in the state prison at Waymart.

(Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Long Shot, Not Slap Shot

Reuters has this report on a candidate for the Washington State Supreme Court

 A disbarred lawyer and former driver of an ice-smoothing machine at Seattle hockey games is waging a long-shot bid for the Washington state Supreme Court, targeting the seat of a justice who stripped him of his license.

John "Zamboni" Scannell, whose nickname will appear on November's ballot, was disbarred in 2010 after the state Supreme Court ruled he obstructed a multi-year Washington State Bar Association investigation into alleged violations.

The violations included aiding a lawyer with a suspended license who performed legal work using Scannell's name, in preparation for a lawsuit in Virginia.

In upholding the disbarment, Justice Debra Stephens, who now faces Scannell in her re-election bid, wrote in the opinion that Scannell's obstruction "poses a serious threat to lawyer self-regulation."

"He continues to assert that his conduct is upright and characterizes the entire disciplinary process as 'fascist'," the opinion said.

Scannell would likely be unable to serve if elected because justices are required under the state's constitution to be admitted to practice law.

David Ammons, spokesman for the Secretary of State, said it does not check whether a person has been disbarred before letting a potential candidate enter the statewide Supreme Court race in Washington state.

"When people file, we don't investigate their background or do anything other than make sure they are a registered voter in Washington," Ammons said.

Should Scannell win the election, the state's Supreme Court would decide whether or not he is allowed to take the oath of office and be seated, Katie Blinn, director of legislative policy for the Secretary of State, said. If he is ineligible,Governor Jay Inslee would appoint a new justice.

Justice Stephens, a Spokane native appointed to the court effective Jan. 1, 2008, according to a profile on the court's website, did not immediately respond a request for comment, nor did Scannell.

The long-bearded, ponytail-wearing former lawyer was for years a Zamboni driver at Seattle-area hockey games, local media have said.

"If elected, I will serve," Scannell told The Stranger, a local weekly newspaper.

(Mike Frisch)

October 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Password Unprotected

The New York Appellate Division for the First Judicial Department has imposed a reciprocal  public censure of an attorney sanctioned in federal court.

The misconduct

the Southern District publicly censured respondent for permitting a nonattorney to use his username and/or password to electronically file involuntary bankruptcy petitions in violation of New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 5.5(b) (aiding a nonlawyer in the unauthorized practice of law) and rule 8.4(d) (conduct prejudicial to the administration of justice).

In the original matter

In his response to the order to show cause, respondent explained that the filings at issue were made on behalf of the creditors, Goldsmith and Minko, by Benjamin Herbst, a nonattorney and Executive Director of the Council for Community Preservation, Inc. (CCPI), a community organization which had an affiliation with a paralegal training program. In providing legal services to the community, respondent had previously used Herbst and paralegal students in preparing legal documents. Respondent had permitted Herbst to use his ECF username and password when filing bankruptcy cases in which respondent was retained as counsel. However, in the case of the Lipschitz filings, for which respondent was not retained as the attorney, Herbst used respondent's ECF password without informing him that he was doing so, and without his permission.

Respondent subsequently discovered that Herbst and his paralegal students had used his ECF password on other occasions without his knowledge or consent. Respondent emphasized that: he terminated his relationship with Herbst and CCPI; he no longer accepts referrals from them; and he was extricating himself from representing clients referred to him through CCPI.

On April 3, 2012, the bankruptcy court held the sanction hearing at which respondent and Herbst appeared. Herbst, who corroborated respondent's version of events, explained that he had been under the misapprehension that it was permissible for CCPI to file pro se bankruptcy petitions through respondent's ECF account. It appears that Herbst may have filed the involuntary petitions to assist Lipschitz, the debtor. As a result of the bankruptcy filings, an eviction proceeding commenced against Lipschitz by his landlord was automatically stayed. Notably, the landlord testified before the bankruptcy court that Herbst had appeared before the housing court and claimed to be respondent.

During the hearing, respondent acknowledged that he failed to properly monitor the use of his ECF password, but emphasized that he did not directly participate in filing the petitions at issue. Respondent further acknowledged that he had previously represented the debtor, Lipschitz, in a landlord-tenant proceeding, and that the proceedings before the bankruptcy court presented a conflict of interest. Respondent emphasized, however, that he had become unknowingly involved in the conflict. As to his failure to appear at the prior hearings, respondent explained, inter alia, that he "may have" received the court's prior orders to show cause, but he was not sure because for a period of time, the court had been using an incorrect address to contact him. Nonetheless, respondent acknowledged that he may have had one or two conversations with the judge's law clerks in regards to the orders. In addition, respondent emphasized that he had acted under the incorrect belief that, as he was not the attorney for the petitioning creditor, he was not obligated to appear.

There were mitigating factors involving health issues of the attorney's spouse. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


The Florida Supreme Court has reprimanded a circuit court judge for issues relating to her on-bench demeanor and testimony on behalf of her arrested sister.

As to demeanor

From a review of the audio recordings of those cases, it is apparent that Judge Kautz was frustrated by the use of the court system by some as a solution to the many prob[l]ems inherent in those cases. It is clear that Judge Kautz was intending to engender a more self-reliant spirit in those appearing in court. However in doing so, she at times demeaned those who appeared seeking injunctions or family members seeking assistance from the Court.

For her sister

Judge Kautz appeared at a First Appearance hearing before Judge Ritterhoff Williams, on behalf of her sister, Rhonda Kautz. At that hearing Judge Kautz first vouched for her as a character witness. She also argued on her sister’s behalf about the circumstances surrounding the allegations contained in the probable cause affidavit. Finally she requested that the Judge order law enforcement to assist her sister by accompanying her to the house to retrieve personal items.

She did not identify herself as a judge in her testimony and now concedes that the appearence violated judicial canons.

On sanction

Judge Kautz has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. Judge Kautz now recognizes that this understanding was incorrect and has undertaken steps to prevent their reoccurrence.

The Judicial Qualifications Commission has concluded that while the judge’s conduct was misguided, it was not ill intentioned. Accordingly, the Commission therefore finds and recommends that in the interests of justice, the public welfare and sound [judicial] administration will be well served by a public reprimand of Judge Kautz.

(Mike Frisch)

October 16, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

The Second Time Around

An attorney who was disbarred in 1986 and reinstated in 1994 has again been disbarred by the Pennsylvania Supreme Court.

The attorney was convicted of wire fraud as a result of a scheme to use entrusted funds for personal expenses.

The first disbarment involved conversion of funds held in connection with a real estate transaction.

His direct appeal and subsequent collateral attack on the conviction did not succeed. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Writ Denied In Clash Between West Virginia Attorney General And Disciplinary Counsel

The West Virginia Supreme Court of Appeals has denied a writ sought by the state Attorney General against the Office of Disciplinary Counsel.

This matter was brought under the original jurisdiction of this Court by Patrick Morrisey, Attorney General of West Virginia. The Attorney General seeks a writ of prohibition against the Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board (collectively "ODC") to prevent ODC from enforcing an informal advisory opinion that it issued.  The informal advisory opinion determined that the Attorney General did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted by W. Va. Code § 5-3-2 (1987) (Repl. Vol. 2013). The ODC also indicated in the informal advisory opinion that Rule 8.4(d) of the Rules of Professional Conduct would be violated if the Attorney General prosecuted criminal cases outside the scope of that which was provided by statute. The ODC further also concluded that Rule 1.7(b) of those rules could potentially be violated.

The court

we have determined that the Attorney General lacked standing to have this Court determine the enforceability of an informal advisory opinion issued by ODC. We also have determined that this Court could not address the merits of the informal advisory opinion because to do so would result in this Court issuing an advisory opinion. As a result of a collateral issue being raised in this proceeding, regarding the authority of the Attorney General to prosecute criminal offenses, we took the extraordinary measure of addressing this issue in this opinion because of its widespread implication to our criminal justice system. In this regard, we have determined that county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney General as a special prosecutor. We further conclude that under West Virginia Constitution article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal prosecutorial authority of the Attorney General was abolished. After resolving the collateral issue raised in this opinion, the writ of prohibition prayed for is denied.

The issue arose upon the Attorney General's inquiry into whether a member of the office must resign in order to serve as Mingo County prosecutor.

Justice Benjamin concurred and dissented, reserving the right to file an opinion. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Relationship Led To Reprimand

The New Jersey Supreme Court has reprimanded an attorney who engaged in a consensual sexual relationship with a client  in domestic abuse and divorce matters.

The client had initially been sent to him for pro bono representation by the New Jersey Battered Women's Shelter in charges of domestic violence made by and against the client.

He was then retained and paid for the divorce.

He expressed romantic feelings toward the client after researching ethics rules and concluding that she was not "vulnerable," thus all was smooth sailing. The client testified that she felt pressured to respond to his overture due to her dire financial situation and that she viewed the attorney as an "authority figure" .

They lived together for a time and planned to buy a house.

The attorney continued to represent the client after the romantic relationship had ended. He engaged in an ex parte communication with the judge about terminating the representation after the client threatened a bar complaint.

The Disciplinary Review Board

One of the essential factors in this case is that, although the relationship was consensual, as in Warren, [the client]...was an assigned client, when the representation began. She and respondent were not on an equal playing field and, therefore...the client was not in a position to freely consent to the relationship. Moreover, it was because of their relationship that respondent was representing her at a reduced (or no) fee. [The client] had limited financial resources. As seen from her communications with [associate attorney] Vallejo, she was concerned about whether she was being charged for the representation, if respondent was not handling her case. Clearly, their financial arrangement, which came about because of their personal relationship, was of great importance to [the client].

In addition, respondent became sexually involved with [the client], knowing that she had fled an abusive relationship. He had to know that she was emotionally vulnerable to his advances. It was respondent who professed his feelings for her, a confession that left her utterly surprised and confused.

There was a dissent that would not find the conflict and would dismiss the the ex parte communication as de minimis

This case concerns a love affair gone bad, but apparently a true love affair, in which both parties expressed deep feelings for each other. There is no dispute that all the conduct at issue between the respondent and his female client...was purely consensual and began a considerable time after they first met...

within a few weeks of their moving in together, [the client] suddenly and unpredictably had a change of heart, moved out, and accused respondent of "initiating an inappropriate relationship" with her, while at the same time telling him, "all I ever did was love you." That same email, sent on March 8, 2009, demanded that respondent refund her retainer, claiming he had promised to represent her for nothing, and told him to communicate with her only in writing or by voice mail, while at the same time demanding that he continue to represent her and suggesting that, if he did not represent her for nothing, she would file an ethics complaint against him.

The record shows that respondent was emotionally devastated by this sudden turn of events. He also correctly realized that, under these emotionally charged circumstances and with her threatening to file ethics charges, he could not continue the representation. Indeed, she did file an ethics grievance against him two days later, on March i0, 2009.

 The DRB found both violations and recommended a censure.

The DRB notes that the client engaged in and complained about a sexual relationship with her next attorney.

Respondent’s counsel referred to [the client] as a "predator," pointed to her "pattern of conduct," and elicited testimony that her marriage to [her then-husband] Nonio had lasted only two-and-a-half months. None of this has any bearing on the allegations against respondent.

The next attorney was reprimanded.

The client also sued the attorney for malpractice. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Still A Candidate

An Idaho attorney has been sanctioned for ethics violations in two matters. He was given credit for time served on interim suspension.

The web page of the Idaho State Bar notes

The  Disciplinary Order further provides that Bar Counsel agrees not to file any  formal charges relating to four other pending disciplinary investigations until  a pending federal criminal case against Mr. Bujak is completed at the trial  level, either by trial or entry of a plea to any criminal charge in that  case.  Mr. Bujak agrees that if he is  convicted of any criminal charge in the federal criminal case, he will resign  his license to practice law in Idaho in lieu of disciplinary proceedings, which  will encompass the four other pending disciplinary investigations.  If that occurs, Mr. Bujak will receive credit  for the remaining time he served on interim suspension. 

Some information from the Idaho Press Tribune

Former Canyon County Prosecuting Attorney John Bujak violated four rules of the Idaho State Bar's Rules of Professional Conduct between 2004 and 2011, the Idaho Supreme Court ruled in a disciplinary order filed Sept. 24.

Idaho's highest court further ruled that a one-year suspension of Bujak's law license is an appropriate sanction for these violations, but since he underwent a 19-month interim suspension when the complaint was filed three years ago, the terms of the penalty are already satisfied.

That means Bujak still has seven months of suspension banked, and Idaho State Bar counsel Brad Andrews said there are additional matters still under investigation.

“It's kind of an anomaly of how suspensions work,” Andrews said.

Bujak described it as “last chapter” of the story that began when he was charged with grand theft by unauthorized control in 3rd District Court. He agreed to give up his law license pending the resolution of that case, he said, and got it back after his acquittal.

The Idaho State Bar's investigation and subsequent review by the Idaho Supreme Court took a bit longer to resolve, he said.

“It's been sitting at the Supreme Court since March, presumably under review — I don't know what took them so long review it — but this is (its) final decision accepting the stipulation between bar counsel and me,” Bujak said. “It doesn't affect my ability to practice law. It's just the case finally winding through the other leg of the process.”

The Idaho Supreme Court's disciplinary order, filed with the Idaho State Bar on Sept. 24, ruled that Bujak violated ethical rules involving communication, safekeeping of property, conduct prejudicial to the amendment of justice and conflict of interest involving current clients.

The original 14-page complaint was filed against Bujak in October 2011, alleging that he'd failed to properly deposit checks intended for a client's estate in 2008.

A second count alleged that Bujak convinced an elderly client to name himself and his assistant as beneficiaries to the client's will. Another attorney, hired by the same elderly woman in 2011, voided the will. In her affidavit, the woman stated that Bujak convinced her that he and his assistant should be listed as beneficiaries for her protection, but that could be changed later.

Bujak was found not guilty of the associated criminal charges in January 2013.

Bujak is the Libertarian candidate for governor in the Nov. 4 general election.

(Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Niagara Fails

A justice of the Niagara Falls City Court has been admonished by New York Commission on Judicial Conduct for mistreatment of a pro se litigant

Respondent asked Mr. Santana some basic informational questions about, inter alia, his employment, falnily and birthplace. Mr. Santana gave the name of his employer, but then said something in Spanish and indicated he could not understand respondent's inquiry regarding the nature of his work. When respondent asked, "Where were you born?" Mr. Santana asked, "Como est' Ms. Vasquez said, "Pardon me?" Respondent repeated the question, and Ms. Vasquez answered, "Puerto Rico." Mr. Santana then stated, "Puerto Rico, yeah."

Respondent thereupon stated: Okay. Go ahead, Mr. Koryl. I think he understands English. The last time I heard, I think Puerto Rico was bilingual.

Respondent did not inform Mr. Santana and Ms. Vasquez that no interpreter would be appointed and that the proceeding would not be adjourned.

 From the news release of the commission

 In 2013, Judge Merino presided over a summary eviction proceeding involving a Spanish-speaking native of Puerto Rico, who had limited proficiency in English. At the outset of the proceeding the judge stated that he would adjourn the proceeding so that an interpreter could be provided. However, after asking the tenant some basic questions, to which the tenant had trouble responding, the judge decided to move forward without an interpreter and ultimately issued a warrant of eviction.

The judge agreed to the sanction. (Mike Frisch)

October 15, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Money Gone Missing

The Knoxville News Sentinel has this report on a recent disbarment in Tennesee

A veteran East Tennessee lawyer has been disbarred after more than $183,000 in clients' money went missing.

The Tennessee Supreme Court last week stripped Carl Robert Ogle Jr. of his license to practice law. The move came after a state Board of Professional Responsibility probe by board investigator Eileen Burkhalter Smith and a disciplinary petition by board attorney Alan Johnson.

Ogle has practiced law in Sevier and Jefferson Counties for nearly four decades.

The News Sentinel requested and received Tuesday the board's disciplinary file on Ogle. It shows Ogle blamed the missing money on his wife's gambling addiction but, at the same time, sought to protect her from prosecution.

His woes began in August 2013 when he told a judge in Jefferson County all monies owed the estate had been paid to the beneficiaries, Susie White and Garrett Tweed. Part of the estate included a lawsuit settlement check for more than $161,000.

In October 2013, Ogle told White the money from that check was gone from his client trust account and that his wife, who served as his bookkeeper, had "gambled the money away," records show.

Two months later, Ogle wrote to the board, which polices attorneys, after White's new attorney filed a complaint. Ogle said he learned in January 2013 monies were missing from three bank accounts, including the client trust account. While he stopped short of saying his wife stole the money, Ogle wrote his wife "began to search for treatment options for gambling addiction."

He denied telling White his wife took the money, and he never mentioned in that letter that two other clients' money also was missing.

Investigator Smith then asked Ogle to supply her with his banking records and "let me know whether you filed a police report about your knowledge of the theft of client funds."

A month later, he disclosed in a second letter two more thieveries he had not reported to the board.

Ogle admitted in that second letter he knew more than $3,600 awarded to client Thomas Martin also had gone missing. He paid that back in April 2013, the BPR file showed. He conceded he tried to fend off client Daniel Mays — owed more than $8,500 — by promising to repay him once another client who owed Ogle money sold "a piece of property." That never happened.

The order is linked here. (Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension Discovered On Facebook

An attorney who engaged in misconduct in several matters that included misappropriation was disbarred by the South Carolina Supreme Court.

The court described the circumstances that led to the discovery of the misconduct

On January 3, 2014, respondent wrote a check on a law firm petty cash account for $3,000 payable to Client B in an attempt to replace some of the misappropriated funds. At the time he wrote the check, the law firm petty cash account did not have sufficient funds to cover the check. Notice of the overdraft on the petty cash account alerted respondent's law partner (Partner) to the misappropriation of funds from the Doe Estate. Partner made arrangements to cover the check on the petty cash account, removed respondent as a signatory on the firm accounts, terminated the partnership, and reported respondent's conduct to the Commission on Lawyer Conduct (the Commission). In addition to the $3,000 paid from the petty cash account on January 3, 2014, respondent paid a total of $10,895.10 to or on behalf of the Doe Estate from petty cash and from personal funds.

In another matter

On January 27, 2014, respondent was placed on interim suspension. In the Matter of Moody, Id. Although he was suspended, respondent continued to communicate with Client D regarding the scheduling of mediation and other matters related to the civil action. During this communication, respondent did not advise Client D of his interim suspension or the Rule 40(j) dismissal of the case.

On February 5, 2014, Client D sent a text message to respondent inquiring about the opposing party's Facebook posting stating respondent had been suspended. Respondent responded with a text message that he was "not sure" where the opposing party got that information and that he would call Client D the following morning.

On February 6, 2014, respondent called Client D and informed him of his suspension. Respondent still did not tell Client D about the Rule 40(j) dismissal. Client D discovered the dismissal when he retrieved his file from Partner who had been appointed to protect the interests of respondent's clients.

The sanction is effective as of the date of the  interim suspension. (Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Something Fishy

An attorney who uased entrusted funds for personal purposes has been suspended for 18 months by the Rhode Island Supreme Court.

The attorney held funds for his client Jennifer Fisheries, Inc. in connection with litigation relating to a fishing vessel.

The court

[The attorney] provided mitigation testimony that at the time of his misconduct he suffered from a major-depressive disorder that affected his judgment. He made full restitution prior to the filing of any disciplinary complaint, and he fully cooperated with the investigation conducted by Disciplinary Counsel. He has sought treatment for his condition, for which he takes medication. He came to the conclusion on his own that his condition rendered him incapable of continuing to represent clients, and he voluntarily requested that he be placed on inactive status. Having heard the respondent’s admission of misconduct and considering the mitigation evidence, the board recommended that the respondent be suspended from the practice of law for eighteen months, retroactive to the date he went on inactive status.

The court held that the mitigation did not excuse the misconduct. (Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Consent Disbarment For Witness Bribery Conviction

An attorney convicted of bribery, obstruction of justice and related conspiracy charges was disbarred on consent by the Rhode Island Supreme Court. reported on the conviction

Attorney General Peter F. Kilmartin today announced that Superior Court Justice Robert D. Krause sentenced Gerard Donley (DOB: 10/15/58), with a last known address of 50 Betsey Williams Drive, Cranston, to a total of 11 years, with six years to serve and the remainder suspended with probation.

In June, a jury found Donley guilty of obstruction of justice, conspiracy to obstruct justice, bribery and conspiracy to bribe a witness.  

During the trial, the State proved beyond a reasonable doubt that Donley conspired with two indicted co-conspirators to bribe a witness to prevent him from testifying against this client in a criminal matter.   The State also proved that Donley obstructed the judicial system by influencing a witness' testimony which resulted in him providing false testimony before the Grand Jury.

Commenting on the sentence, Attorney General Peter F. Kilmartin said, "Our system of law, the very best in the world, is built upon the simple principles of trust and faith.  If we do not have trust and faith in our legal system, it will fail.  When those who are entrusted to uphold the law violate that trust, obstruct justice and bribe witnesses to not testify, it erodes the foundation of our justice system; putting it at risk for all. 

Laws are not made for the benefit of the few, and nor should laws be broken to benefit the few.  The defendant chose to knowingly and brazenly break the law, thumbing his nose at the system of law he took an oath to uphold.  He chose to make a mockery of law enforcement, the prosecution and the Court, and today was held accountable."

The attorney had been suspended as a result of the conviction. (Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Federal Campaign Laws Preempt State "Push Polling" Inquiry

The New Hampshire Supreme Court has affirmed a district court ruling that the State Attorney General cannot seek civil penalties for alleged misconduct in a federal election.

The court described the circumstances of the investigation into the campaign committee of former Rep. Bass

In September 2010, the AG’s Office received information regarding polling telephone calls made to New Hampshire residents that were described as containing negative content about United States congressional candidate Ann McLane Kuster. The AG investigated, and concluded that the Committee had engaged in "push-polling" as defined in RSA 664:2, XVII (2008) (amended 2014) without complying with the disclosure requirements set forth in RSA 664:16-a.

The court

we conclude that RSA 664:16-a imposes a disclosure requirement on campaign expenditures related to the election of a candidate for federal office. Accordingly, we hold that the FECA preempts RSA 664:16-a as applied to federal candidates and political committees.

 (Mike Frisch)

October 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Agreement Not To Sue Draws Reciprocal Censure

An attorney who was reprimanded in New Jersey for a Rule 5.6(b) violation was reciprocally censured by the New York Appellate Division for the First Judicial Department.

As part of a settlement in a landlord-tenant dispute

 respondent and counsel for Bloomfield negotiated a settlement of the Rubinstein litigation pursuant to which the plaintiffs received cash and rent credits totaling $150,000. Contemporaneously with the negotiation of the settlement, respondent entered into an agreement with counsel for Bloomfield and its principals, Stathis and Silverman, whereby respondent agreed to refrain from representing clients adverse to Bloomfield, Stathis and Silverman, or their affiliates (the Cardillo Agreement).

The court found that the misconduct violated New York ethics rules

...the conduct for which respondent was disciplined in New Jersey constitutes misconduct in New York. The provision under which respondent was censured in New Jersey, RPC 5.6(b), provides that a lawyer is prohibited from "offering or making ... an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties." That rule is essentially identical to the language of former New York Code of Professional Responsibility DR 2-108(b) (22 NYCRR 1200.13[b]), which states that "[i]n connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts the right of a lawyer to practice law."Such conduct is also sanctionable under rule 5.6(a)(2) of the current New York Rules of Professional Conduct (22 NYCRR 1200.0).

(Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Neither A Borrower Or Lender Be

The New York Appellate Division for the First Judicial Department has accepted the resignation of an attorney based on the following allegations

Specifically, it was alleged that respondent: (1) jointly represented two clients at the closing of the sale of their home; (2) held a portion of the sale proceeds in his escrow account, the disbursement of which was delayed because his clients were involved in divorce proceedings; (3) during the period of time in which the funds were held in escrow and without his clients consent, he  borrowed' $600,000 "to meet certain obligations in the face of the economic downturn and [his] consequent inability to borrow the money from regular institutional sources"; and (4) he provided accountings to counsel for one of his clients which did not reflect his misappropriation of funds from the escrow account. Respondent advised that "he fully described" his misappropriation to his client's counsel subsequent to providing the inaccurate accounting, and promised to restore the funds to his escrow account. When counsel requested disbursement of the proceeds, respondent paid over the funds in full, after certain proper payments and distributions, along with interest for the entire escrow period.

As a result, the attorney is struck from the rolls. (Mike Frisch)

October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Complains, Prosecutor Fired

The Daily News Journal reports

A Rutherford County [Tennessee] assistant district attorney was fired earlier this week after a verbal altercation with a judge during a rape trial in September.

ADA Laural Hemenway said she was fired after Judge Keith Siskin filed an official complaint about her behavior in the courtroom.

Hemenway had been with the DA's office since 1999, first as a domestic-violence prosecutor and then as a crimes-against-children prosecutor. As lead prosecutor in child abuse-and child sexual-abuse cases, she had a 95 percent conviction rate over her career, according to DNJ archives.

Siskin has sat the bench for 10 years, first as a magistrate in Juvenile Court before being appointed to Circuit Court in 2012. Earlier this year he was re-elected unopposed to an eight-year term. In September he was selected as presiding judge of the Sixteenth Judicial District in Rutherford and Cannon Counties.

Requests for comment were made to District Attorney Jennings Jones and Siskin.

Siskin declined to comment, citing the rules of judicial conduct. Jones did not respond by press time.

The disagreement occurred Sept. 18 after Hemenway violated an order from Siskin that prompted the judge to call a mistrial, according to the complaint filed by Siskin with the Tennessee Board of Professional Responsibility.

The case involved Christopher Hernandez, who was standing trial for multiple counts of rape of a child, aggravated sexual battery and solicitation for rape of a child. Hernandez was indicted by the grand jury in 2013.

He was arrested April 4, 2013, in Nashville by the Rutherford County Sheriff's Office with help from the Metro Nashville Police Department.

According to Siskin's complaint, the judge and attorneys had agreed during a pre-lunch conference without the jury present that Hernandez's past arrest was off limits.

After lunch, Hemenway specifically asked Hernandez about the arrest in front of the jury, prompting Siskin to call a mistrial, according to Siskin's complaint.

When Siskin announced his decision, Hemenway accused him of sexism, he said in his complaint, adding that his courtroom was a "hostile environment for a female."

Siskin then filed the ethics complaint with the Tennessee Board of Professional Responsibility and took the issue to District Attorney Jones.

Jones then offered Hemenway the chance to resign, she said. She refused and was fired Tuesday.

In response to the complaint, Hemenway sent a letter to Jones accusing him of ignoring her requests for help during the trial and a pending workers' compensation claim.

"I do not believe that the reason you gave for firing me is valid," Hemenway said in the letter dated Oct. 7. "I believe I am being terminated because of my age, my health issues and because I expressed my feelings when asked by the judge about sexual discrimination."

On the same day Hemenway was fired, Rutherford County Circuit Court cases were reassigned. Judge Royce Taylor was assigned criminal cases while Siskin took over the civil case load. As a criminal prosecutor, Hemenway would have been moved out of Siskin's court.

On Wednesday, The DNJ filed a Freedom of Information Act request to the Rutherford County Human Resources Department for Hemenway's personnel record. It has yet to be filled.

Inquiries into the Board of Professional Responsibility and the Board of Judicial Conduct provided little information. Complaints against judges and attorneys are confidential in Tennessee; only disciplinary actions are public record.

James Vick with the BPR could only confirm Hemenway has never been disciplined by the board.

Likewise Timothy R. Discenza with the BJC confirmed Siskin had never been disciplined.

(Mike Frisch)

October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)