Friday, July 21, 2017

Partially- Indigent Defendant May Be Eligible For Court-Compensated Services

The Kansas Supreme Court has recognized a right to have retained criminal defense counsel seek court compensation for investigative or other defense-related services

This original action in mandamus raises the question of whether a partially indigent defendant who has retained counsel may pursue funding for certain services through the State Board of Indigents' Defense Services (Board or BIDS). The parties readily acknowledge that K.S.A. 22-4508 contemplates that a court-appointed attorney may request an ex parte hearing before the district court when acting as counsel for a partially indigent defendant who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense. If the district court determines that (1) the defendant is financially unable to pay for such services and (2) the requested services are necessary to an adequate defense, then the district court shall authorize counsel to obtain the services on the defendant's behalf. We conclude the plain language of K.S.A. 22-4508 also permits privately retained counsel to pursue the same procedure, so long as the defendant is financially unable to obtain investigative, expert, or other services necessary to an adequate defense.

Justice Luckert authored the opinion. (Mike Frisch)

July 21, 2017 | Permalink | Comments (0)

Dismissal Of Suit Against WilmerHale Reversed: Operating Agreement Created Obligations To Frozen Out Minority Members

The Massachusetts Supreme Judicial Court reversed the dismissal of claims brought against Wilmer Hale and others

Minority members of a Massachusetts limited liability company seek to hold the company's attorneys liable for their involvement in an alleged "freeze-out" orchestrated by and on behalf of the majority members. According to the minority members, the majority members secretly retained the attorneys, one of whom is the daughter of a majority member, to, at least ostensibly, represent the closely held company. The attorneys then worked behind the scenes to assist the majority in merging the company with and into a newly created Delaware limited liability company, all for the purpose of eliminating significant protections afforded minority members under the Massachusetts company's operating agreement. By the time the attorneys' involvement came to light, the majority members had unfettered control of the resulting entity, with a new operating agreement that extinguished the minority's rights to, among other things, participate in management, access the company's records, and prevent dilution of their interests. The minority members, the plaintiffs in this action, responded by asserting claims against the attorneys and their respective law firms for breach of fiduciary duty, aiding and abetting tortious conduct,civil conspiracy, and violation of G. L. c. 93A. The matter now comes before this court for de novo review after a judge of the Superior Court, acting on motions filed by the defendants, dismissed the plaintiffs' claims against the attorneys and their law firms for failure to state a claim upon which relief can be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). For the reasons discussed below, we reverse the portion of the judgment dismissing those claims.

The court

the determination of whether a fiduciary duty exists is largely fact specific. And the factual inquiry here is particularly complicated due to the alleged covert nature of counsel's actions. On the one hand, there are no allegations in the complaint of any personal history or interaction between counsel for the company and the minority members, but on the other, the complaint does allege that counsel should have communicated with the minority members, particularly given the terms of the ATT-MA agreement providing strong protections of minority rights. Instead of communicating with minority members about the proposed actions, counsel allegedly took purposeful steps to conceal their activities undermining the ATT-MA agreement. Given the protections contained in the ATT-MA agreement, the minority members should have been able to repose trust and confidence that any counsel hired by the company would have communicated and consulted with them prior to undoing those protections...In light of those allegations, we cannot conclude, as a matter of law, that company counsel did not owe a fiduciary duty to the minority members because of the lack of a prior relationship and interaction.

Further, the potential conflict did not negate the fiduciary obligations as a matter of law.

Chief Justice Kafker authored the opinion. (Mike Frisch)

July 21, 2017 | Permalink | Comments (0)

His Own Worst Enemy

A suspension of at least 180 days without automatic reinstatement has been ordered by the Indiana Supreme Court of an attorney who practiced after a suspension and engaged in substantive misconduct.

He represented the client in two matters against General Motors.

As to fees, the attorney charged $10,000 for an "appeal"

The Commission further alleged Respondent violated Professional Conduct Rule 1.5(a) by charging an unreasonable fee in several respects. The hearing officer found a violation in part, concluding that the Appeal Fee was unreasonable but the Additional Fee was not unreasonable. Both parties have sought review of these conclusions. We agree with the hearing officer’s conclusion that the Appeal Fee was unreasonable and accordingly find that Respondent violated Rule 1.5(a). The action taken by Respondent was not an “appeal” in the traditional sense but rather an objection to a magistrate’s pretrial order lodged with the district judge pursuant to Rule 72(a) of the Federal Rules of Civil Procedure, and the parties accordingly dispute whether this work was encompassed within the scope of the original fee agreement. But however this work is characterized, its ultimate purpose was to challenge a pretrial order in the Second GM Case requiring Client to provide medical records that already had been provided by Client to GM in the First GM Case. In other words, Respondent charged Client $10,000 to try to avoid giving GM materials that Respondent knew GM already had. 

And violated the "business transaction with client" rule by renegotiating the fee

Finally in Count 1, the Commission alleged, and the hearing officer found, that Respondent violated Professional Conduct Rule 1.8(a) by renegotiating his fee agreement with Client on terms more advantageous to Respondent without adhering to the safeguards required by the rule, including the need to advise the client in writing of the desirability of seeking independent counsel and to give the client a reasonable opportunity to do so. Respondent disputes the notion that the renegotiated terms disadvantaged Client, arguing that a settlement was better for Client than losing the case outright. The relevant inquiry, though, is not whether some recovery is better than no recovery, but whether the terms of a renegotiated fee agreement are more advantageous to the attorney than the terms of the original fee agreement. Moreover, the original fee agreement between Respondent and Client expressly contemplated the possibility of a settlement. Application of the terms of that agreement to the $30,000 settlement amount would have given Respondent about $10,000 and Client about $20,000 of that amount, and additionally would have credited Client with his $5,000 retainer. Instead, the renegotiated terms essentially flipped these sums, giving Client $10,000 and Respondent $20,000 of the settlement amount, and failed to credit Client with his $5,000 retainer.

Respondent also argues “time was of the essence” in settlement discussions with GM and therefore his failure to comply with the requirements of Rule 1.8(a) should be excused. Respondent cites only his own self-serving testimony in support of his contention that time was of the essence, which the hearing officer does not appear to have credited. Regardless, Rule 1.8(a) does not provide the type of exception Respondent appears to seek, and we decline to carve out such an exception here. Accordingly, we find Respondent violated Rule 1.8(a).

Sanction

Describing Respondent as “his own worst enemy,” the hearing officer cited Respondent’s prior suspensions, his pattern of combativeness toward the Commission, and his lack of insight into his misconduct as factors in aggravation. (HO’s Report at 21-24). Respondent’s representation of Client included actions taken in disregard of suspension orders issued by this Court and the District Court. Further, Respondent used his representation of Client as a vehicle to extract fees at every opportunity, and he did so to Client’s detriment. Respondent charged Client $10,000 for the First GM Case, which settled for $3,000 and left Client indebted to Respondent. In the Second GM Case, Respondent charged a $5,000 retainer which he promised to (but never did) credit against an eventual recovery; charged another $8,000 for work that was never carried out (and under the circumstances, likely could not have been carried out); charged another $10,000 to resist giving GM discovery that GM already had; negotiated a settlement agreement that effectively doubled the contingent fee previously agreed upon by Respondent and Client; and then, after collecting his own share of the settlement from GM, made only token efforts to collect Respondent’s share. When all is said and done, between the two cases Respondent collected over $50,000 for himself and nothing for Client, and Respondent claims Client still owes him money.

(Mike Frisch)

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

Self Report Leads To Interlocutory Suspension

A Hearing Division Tribunal of the Law Society of Upper Canada has ordered the interlocutory suspension of an attorney who had self-reported his misconduct

 The evidence supported the granting of the interlocutory suspension. On May 29, 2017, Mr. Findlay self-reported that he had used and was not able to replenish trust funds that the Superior Court had ordered him to hold in reserve for final distribution to class members in a class action. The amount that the court had ordered Mr. Findlay to hold in reserve was $1.5 million.

Background

In 2006, Mr. Findlay launched an action on behalf of a group of individuals who claimed they had sustained financial loss on account of reclamation efforts by members of the Six Nations communities. The action was certified as a class action in 2010.

 In June 2011, the class action was settled. The Government of Ontario paid $20 million in settlement funds to Findlay McCarthy LLP in trust. The parties then negotiated the distribution of the settlement funds. In an order dated September 28, 2011, the Court approved the Caledonia Compensation Plan (the “Plan”) which set out the proposed distribution of the settlement funds to class action members and others. The Order provided that if there were any settlement funds remaining after completion of the administration of the Plan, those funds would be repaid to Ontario.

The sum of $3,391,432.50 was paid from trust to Findlay McCarthy for fees and disbursements. The remaining $16,605,567.50 was invested and re-invested in ever-decreasing amounts as the settlement funds were disbursed. 

A subsequent Order, dated June 8, 2012, ordered Findlay McCarthy to hold a reserve fund of $1.5 million for two years after there had been final distribution of the settlement funds under the Plan. Further distribution was thereafter to be pursuant to direction of the Court.

The self report

On May 29, 2017 Mr. Findlay sent an email to the Law Society as follows:

Dear Sir/Madam:

My Name is John Findlay. LSUC No. 19502C

I am a lawyer with Findlay McCarthy Professional Corporation.

I wish to self-report on the use of trust funds that I have held in trust.

I am class counsel in a class action involving compensation to class members who received compensation from the Province of Ontario with respect to the occupation in Caledonia.

Following the initial distribution of the settlement funds there were funds that were held back pending final direction from the court.

I have used the holdback funds and I was not able to replenish the funds before effecting the final distribution.

My partner, Martha McCarthy, had no knowledge of this.

Nor did the final administrator of the fund, whom I have just informed.

I can be reached at the number below for any further questions or investigations.

John Findlay

Mr. Findlay was previously suspended from practice for two years from June 30, 2001 until June 30, 2003 after a finding that he misappropriated monies held in trust for two separate clients (total $75,647) and misapplied trust monies held on behalf of a third client ($9,674).

Thus

The Law Society investigation is at an early stage and all of the facts are not yet known. The evidence currently available, however, strongly indicates that Mr. Findlay has misappropriated trust funds and disobeyed a court order. Mr. Findlay admits that he used and was not able to replenish trust monies that he was ordered by the Court to hold for final distribution to class members. The court Order is very clear. Mr. Findlay’s records also acknowledge the Order and his obligation. He brought a motion for final distribution of the reserve fund. His ledger and annual report indicate, at least on paper, that he was holding these funds in trust as required.

Allowing Mr. Findlay to practise when there is strong evidence that he has misappropriated trust funds and disobeyed a clear court order risks causing harm to the public and the public interest in the administration of justice.

(Mike Frisch)

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

Is Accepting A Pardon A Confession Of Guilt?

Well, it would appear that the nature and extent of the Presidential power to pardon has become somewhat newsworthy.

I had the opportunity to delve into the issue when President George H.W. Bush pardoned Elliott Abrams a few days after a disciplinary hearing that I prosecuted was held based upon his guilty plea to charges brought by Independent Counsel Lawrence Walsh. 

A divided District of Columbia Court of Appeals held that the pardon did not preclude professional discipline for the underlying conduct, although a bar prosecutor may no longer rely on the fact of the conviction itself.

Mr. Abrams (through his counsel Charles Cooper) sought certiorari review and did not garner a single vote.

One of the cases I came across was a 1915 Supreme Court decision in United States v. Burdick, where the court stated

Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.

Acceptance of a pardon thus would appear to at least "imply" a confession of guilt. (Mike Frisch)

July 21, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, July 20, 2017

New York Admits Undocumented Immigrant To Practice

An order of bar admission from the New York Appellate  Division for the Second Judicial Department

Applicant passed the July 2016 New York State bar exam and the State Board of Law Examiners certified her for admission to this Court (see Rules of Ct of Appeals [22 NYCRR] § 520.7). Applicant is an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government. This Court's Committee on Character and Fitness has conducted the required investigation of applicant's application for admission, including a personal interview of applicant, and has approved the application and certified to this Court that applicant possesses the character and general fitness requisite for an attorney and counselor-at-law (see CPLR 9404; Rules of App Div, 3d Dept [22 NYCRR] § 805.1).

Being satisfied that applicant possesses the character and general fitness requisite for an attorney (see Judiciary Law § 90 [1] [a]) and finding no legal impediment to applicant's admission (see Matter of Vargas, 131 AD3d 4 [2015]), we approve the application and direct the Clerk of the Court to admit applicant to
the bar, including scheduling the administration of the attorney's oath of office to applicant (see Judiciary Law § 466).

The opinion does not identify the applicant. (Mike Frisch)

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

Two Fees In Ohio

The usual excellent summary from Dan Trevas on the web page of the Ohio Supreme Court

The Ohio Supreme Court today sanctioned two attorneys for fee-related misconduct and other violations of the rules governing Ohio attorneys.

In separate, unanimous per curiam opinions:

  • Robert L. Johnson of McDonald was indefinitely suspended.
  • Patricia A. Pickrel of Centerville was suspended for two years, with one year stayed on conditions. (Justice Patrick F. Fischer did not participate in Pickrel’s case.)

Two Bar Associations Complain About Lawrence
In March 2014, Johnson received an interim suspension because of his failure to respond to a disciplinary complaint filed by the Lorain County Bar Association. Johnson obtained a lawyer and was engaged in Board of Professional Conduct proceedings when the Trumbull County Bar Association filed a separate set of charges against him. The board consolidated the two matters, which involve multiple allegations of misconduct involving multiple clients.

One of the charges investigated by the Lorain County Bar Association stemmed from a 2012 notification by Chase Bank that Johnson’s client trust account contained insufficient funds to cover a $5,000 check he wrote to attorney Michael J. Godles. Godles signed a contingent-fee contract to represent Alice Stevanus in a personal injury lawsuit. Godles later asked Johnson, who was not a member of the same law firm, to serve as co-counsel, but violated rules by not obtaining Stevanus’s written consent to Johnson’s representation and not disclosing their fee-sharing arrangement. Johnson also did not notify Stevanus that he did not carry professional-liability insurance.

The attorneys settled Stevanus’s claim for $65,000 and deposited the funds in Johnson’s client trust account, of which Johnson indicated he sent $7,500 to Stevanus, allotted $21,500 for attorney fees, and retained a $36,000 account balance. Johnson actually sent $37,500 to Godles in three checks, and while he claimed the account had a $36,000 balance, a $5,000 check he sent to Godles was twice returned because the bank had placed a hold on the account.

Johnson testified he received $7,500 for his services, sent Stevanus $7,500 and that the $37,500 he had sent to Godles was to cover Godles’ fee, and to pay Stevanus’s outstanding medical bills. However, Johnson failed to account for the remaining $12,500, and the professional conduct board found he either failed to maintain or refused to produce receipts, invoices, ledgers, or any other material documenting his handling of Stevanus’s funds.

The board found he violated several rules in the matter, including failing to maintain certain records regarding client funds and failing to promptly deliver funds to a client. The board also found several instances where Johnson accepted fees from clients and failed to perform the promised services.

“The board recommends that we indefinitely suspend Johnson from the practice of law with no credit for the time served under his interim default suspension based, in part, on findings that he neglected 11 separate client matters and that he failed to reasonably communicate with at least one client, maintain records regarding client funds in his possession, refund unearned fees on the termination of his representation, and cooperate in no fewer than 14 disciplinary investigations,” the opinion stated.

Board Considers Johnson’s Sanction
The opinion noted that the board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it.

The board found Johnson acted with a dishonest and selfish motive, engaged in a pattern of misconduct that involved multiple offenses, initially failed to cooperate in the disciplinary process, harmed multiple clients, and failed to make restitution, noting he owes about $13,000 to 15 former clients.

The board also found Johnson had no prior disciplinary record, made full disclosure to the board, and cooperated with the disciplinary process once he retained a lawyer.

In addition to the suspension, the Court ordered him to pay restitution to his clients, and in order to be reinstated, he will have to submit to a mental-health evaluation by the Ohio Lawyers Assistance Program (OLAP), enter into an OLAP contract, and comply with all recommendations from OLAP and his treating professionals.

2014-0136 and 2014-1403Lorain Cty. Bar Ass. v. JohnsonSlip Opinion No. 2017-Ohio-6869.

Pickrel Overstates Hours
Pickrel has been registered as an inactive attorney since 2005, and in 2016 the Office of the Disciplinary Counsel alleged she violated several professional conduct rules by overbilling a law firm for more than $87,000 for nonattorney, document-review services.

In 2005, Pickrel became an independent contractor for the Ulmer & Berne law firm performing document review services for the Cincinnati office. In 2012, she started working on a large project in which she was paid $65 per hour. The arrangement required she perform her work on the firm’s secured website and it was only possible to do the work while logged on.

Twice a month Pickrel would report via email the amount of time she worked in a two-week period and that figure was logged into a separate firm system used to generate her payment. From 2012 to 2015 she collected $125,000 working on the project.

In December 2015, a firm associate discovered a discrepancy between the number of hours Pickrel reported for the last two weeks of November and the hours she was logged onto the secure website. When notified, Pickrel alleged the application she used to track her hours was “all screwed up” and her time may have been inaccurate for the past month.

The firm conducted an audit and found Pickrel overbilled the firm by more than $87,000 during a four-year period, with excess billing accounting for up to 89 percent of her annual compensation. When contacted by the firm partner in charge of the project, Pickrel stated she was a bad record keeper and had computer trouble, but eventually admitted to her misconduct. She requested an opportunity to reimburse the company and paid $87,260 in 2016.

The board found she violated the rules by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The opinion stated that while Pickrel was not registered as an active attorney, the conduct rules still apply.

The board found Pickrel acted with a dishonest or selfish motive, engaged in a pattern of misconduct, and committed multiple offenses. It also found she had no prior disciplinary record, made timely restitution, fully disclosed her behavior to the board, cooperated in the disciplinary process, and voluntarily refrained from the practice of law.

Pickrel also established she had a mental-health disorder, submitting evidence that she was diagnosed with dysthymia in 2016, and had been treating the disorder with a therapist. The therapist has certified that Pickrel is able to return to the competent, ethical, professional practice of law.

“Having considered Pickrel’s lengthy pattern of dishonest and deceitful billing practices, the applicable mitigating factors, including her contributing mental disorder and her prompt payment of full restitution, and the sanctions we have imposed for comparable misconduct, we agree that a two-year suspension with one year stayed on the conditions recommended by the board is the appropriate sanction in this case,” the Court wrote.

The Court stayed the second year of her suspension on the condition that she continue to participate in counseling, remain in compliance with her OLAP contract, and not engage in further misconduct. If she is reinstated to the active practice of law, she must serve a two-year period of monitored probation.

2017-0225Disciplinary Counsel v. PickrelSlip Opinion No. 2017-Ohio-6872.

(Mike Frisch)

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

From $3.80 To $201,048.43

The Ohio Supreme Court permanently disbarred an attorney for misconduct described in the report of the Board of Professional Conduct.

From the court's opinion

According to the parties’ stipulations, from 2007 to 2014, Little primarily represented plaintiffs in personal-injury cases. During that time period, she misappropriated $363,444.30 in settlement funds in 23 separate client matters. With one exception, she engaged in a similar pattern of misconduct in each of those client matters. Specifically, after settling her clients’ cases, she deposited the settlement funds into her client trust account and paid out her clients’ share and amounts for her attorney fees—if she charged a fee—and other expenses. However, she wrongfully withheld all or portions of the remaining settlement amounts that should have been either paid to various lienholders or co-counsel or held in trust pending discovery of any additional liens...

The amounts that Little misappropriated in the 23 client matters ranged from $3.80 in one case to $201,048.43 in the McIntires’ case. In most of the matters, she stole between $500 and $11,000 from her clients’ settlement funds. In addition to using the misappropriated funds to pay liens in unrelated cases, she also used the money for her own personal and professional benefit, including to pay office-related expenses.

Little’s misconduct in one of the 23 client matters identified in relator’s complaint was slightly different than the others. As alleged in count 11, she represented Ashley Ruth in a personal-injury matter and after settling the case, she deposited $440,890.19 into her client trust account. She should have disbursed $281,951.80 to Ruth but instead disbursed only $281,451.79, and therefore misappropriated $500 from her client. Little also failed to promptly withdraw her share of attorney fees from her client trust account, and she ultimately withdrew only $43,899 of the $75,000 in fees that she was entitled to, which resulted in her commingling personal and client funds.

 In September 2014, Little self-reported her misconduct to relator and later commenced repaying some of the amount that she had stolen. At the time that the parties entered into stipulations, Little still owed $104,989.65 in restitution. She also admitted that since 2007, she had failed to maintain required ledgers for her client trust account, which made it difficult to determine the source and purpose of many of her transactions.

The court concluded that the only sanction for such conduct was permanent disbarment. (Mike Frisch)

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

No Laughing Man: Unjust Enrichment Claims Reinstated

The District of Columbia Court of Appeals reinstated unjust enrichment claims against an international law firm, holding that the trial court erred in concluding the claims were time-barred.

We summarize the facts as they are stated in appellant‟s complaint. Appellees Kilpatrick Townsend, an international law firm, and Gingold, a sole practitioner, represented the Native American plaintiffs in Cobell v. Salazar, a class action lawsuit against the United States Department of the Interior for mismanagement of trust funds. In December 2009, the Cobell plaintiffs and the plaintiffs in a separate class action lawsuit against the United States Department of Agriculture concerning past discrimination against black farmers, Pigford v. Vilsack, reached a joint settlement agreement with the Government. Appellant, who was then President of the National Black Farmers Association, became involved in Pigford by lobbying for minority farmers who had missed an earlier filing deadline to be compensated under a consent decree. A second lawsuit was filed on behalf of these late-filers, and through the efforts of appellant and many others, was eventually combined with the other Cobell and Pigford litigants into a joint settlement agreement. The settlement agreement compensating the Cobell and Pigford plaintiffs required funding by a congressional appropriation. 

On March 5, 2010, John Loving, a government relations advisor at Kilpatrick Townsend, contacted appellant and requested his assistance in lobbying for the passage of the Claims Resolution Act (CRA), the funding bill for the Cobell and Pigford plaintiffs. Mr. Loving “asked [appellant] to use his extensive contacts . . . to drum up the necessary support for the . . . legislation.” Appellant and Mr. Loving did not discuss appellant‟s fees or any specific tasks to be performed. Appellant also spoke with Geoffrey Rempel, an accountant the Cobell plaintiffs hired, in order to coordinate lobbying efforts.

Soon thereafter, on June 1, 2010, appellant met Messrs. Rempel and Gingold for lunch at the Laughing Man Tavern, a pub in the District of Columbia. Appellant‟s complaint states that:

 [During that lunch at the Laughing Man Tavern, appellant] specifically told both Defendant Gingold and Mr. Rempel that he expected to be paid for this efforts to secure funding for the Cobell settlement. In response, Defendant Gingold encouraged [appellant] to continue working with and for Defendants. Defendant Gingold never indicated to [appellant] at any time at the restaurant, or at any subsequent time thereafter, that [appellant] would not be compensated for his efforts. . . . Every time [appellant] raised issues of compensation or the amount of such compensation, Defendant Gingold always indicated to him that compensation should not concern him — clearly indicating to [appellant] that payment would be forthcoming. Indeed, according to Defendant Gingold, the issue of payment was not whether [appellant] would be compensated, but when Eloise Cobell would focus on the amount of compensation for him. (emphasis omitted).

After the lunch meeting, appellant continued to lobby for passage of the CRA, which President Obama signed into law on December 8, 2010. The complaint alleged no further communications between appellant and appellees after the bill was signed.

The statute of limitations issues are for the jury on remand

At an appropriate point during those proceedings, and unless other developments arise that obviate the need to do so, the trial court shall have the jury make findings of fact as to the time after appellant last rendered services by which he should reasonably be deemed to have demanded payment for his services, plus the reasonable time thereafter within which appellees should have responded to said demand, and thus determine when appellant‟s cause of action for unjust enrichment accrued. The trial court can then
determine whether appellant filed his complaint within the applicable limitations period for unjust enrichment claims.

Thus the holding

we (1) affirm the trial court‟s dismissal of appellant‟s claim for breach of an implied-in-fact contract against Gingold as time-barred; (2) affirm the trial court‟s determination that appellant failed to state a claim for breach of an implied-in-fact contract against Kilpatrick Townsend; (3) vacate the trial court‟s dismissal of appellant‟s claims for unjust enrichment against both appellees as time-barred; and (5) remand for further proceedings consistent with this opinion.

Judge McLeese would reinstate and remand on all the asserted claims.

Cision PR Newswire covered the litigation by carrying a statement from Appellant's counsel. (Mike Frisch)

July 20, 2017 in Billable Hours | Permalink | Comments (0)

Misconduct Alleged In Alcohol And Drug Related Incidents

The Illinois Administrator has filed a complaint alleging

On October 13, 2016, Respondent left her home alone, driving a white pickup truck. Respondent drove to Bogies Sports Bar ("Bogies") near the intersection of Chapin Street and Liberty Street in Morris, Illinois. After leaving Bogies, Respondent crashed her truck into a parked utility vehicle.

On October 13, 2016, at about 11:20 p.m., Mia Shannon ("Shannon"), a concerned citizen, called 911 about a car crash on Chapin Street. Shannon saw Respondent’s white truck driving on west Chapin Road and then saw the truck crash into a parked utility vehicle. Morris Police Department Officer Mark Vanderploeg was dispatched to the area to investigate.

On October 13, 2016, at 11:23 p.m., Officer Vanderploeg found a white pickup truck on Chapin Street. The truck had crashed into a parked heavy duty utility vehicle. Respondent was not inside or near the truck. Inside the truck, the officer found a deployed airbag with blood on it, an earring in the driver seat, an empty plastic cup next to spilled liquid and a strong odor of alcohol, drug paraphernalia with residue, cannabis and pills.

After conducting some investigation about the circumstances of the crash, Officer Vanderploeg, found Respondent at the hospital and spoke with her

Respondent told officer Vanderploeg that her truck had been stolen. Respondent had crashed her truck on Chapin road. Her statements that her truck was stolen were false and she knew they were false. Respondent’s speech was slurred and she smelled of alcohol.

Count Two

On December 24, 2016, at 1:42 a.m., Deputy Butterfield and Sergeant Clampitt, both of Grundy County Deputy Sheriff Department, located Respondent inside Honest Abe’s Tavern ("Abe’s"), a local bar in Will County. Respondent was wanted in Will County on a failure to appear warrant stemming from a Joliet traffic ticket. Deputies entered the bar and saw Respondent inside of Abe’s. Deputies told security that they were there to speak to Respondent. Security located Respondent and informed deputies of her exact table inside the bar.

Security informed Respondent that the police were there to speak with her. Respondent then picked up her jacket and walked over to the bar section of Abe’s. Respondent had two small plastic bags containing cocaine and cannabis inside her jacket pocket. Respondent walked over to Philip Centracchio ("Centracchio") and handed him both plastic bags. Respondent and Centracchio were immediately detained by deputies.

While being detained by deputies, Centracchio stated that the plastic bags did not belong to him and that Respondent had walked up to him and handed them to him. The contents of the plastic bags were suspect cannabis and cocaine and one bag field tested positive as cocaine.

On December 24, 2016, Respondent was arrested for possession of cocaine and charged with Possession of a Controlled Substance in case number 2016CF282 in Grundy County. A custodial search of Respondent found drug paraphernalia (a bowl) with cannabis residue. The suspect cannabis was entered into evidence. As of the date of this filing, the case remains pending in Grundy County.

 Count Three

 On January 15, 2017, Respondent visited Fergy’s Bar & Grill ("Fergy’s") on Main Street in Seneca, Illinois. Also on January 15, 2017, Office Michael Hettelle was on routine patrol in and around Main Street in Seneca. Shortly after 3:00 a.m., Respondent and one other person were in the parking lot of Fergy’s yelling at two people on the other side of the parking lot. Respondent and the one person with her got into a pickup truck with the Respondent driving.

Respondent drove out of Fergy’s parking lot on to the roadway. After driving for approximately two blocks, Respondent drove through a stop sign and was pulled over by Officer Hettelle. Inside the car, Respondent was driving with a plastic cup containing alcohol in the center console next to Respondent. Respondent’s breath smelled of alcohol and Respondent admitted to Officer Hettelle that she had consumed alcohol before driving that evening. Officer Hettelle also smelled alcohol on Respondent’s breath, observed her eyes to be glassy and red and her speech to be slurred. Respondent agreed to submit to standardized field sobriety test ("SFST"). Respondent failed all SFSTs that were administered. Respondent refused to submit to a preliminary breath test.

Respondent was arrested for Driving Under the Influence ("DUI") and taken to the police station. Respondent was also offered a breath alcohol test at the police station and declined. Respondent was issued a Summary Suspension. Respondent was issued citation numbers 11791, 11792 and 11794 for Disobeying a Stop Sign, Driving Under the Influence and Illegal Transportation of Alcohol by Driver respectively. Respondent was given a notice to appear in court on March 3, 2017 at the LaSalle County Courthouse. The cases were assigned case numbers 17 TR 465, 2017 DT 21 and 17 TR 466. As of the date of this filing, the cases remain pending in the LaSalle County Courthouse.

The attorney also is charged in an instance of client-related neglect. (Mike Frisch)

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

Wednesday, July 19, 2017

Quicken Loans Not Engaging In Unauthorized South Carolina Practice

The South Carolina Supreme Court absolved Quicken Loan on civil allegations of unauthorized law practice

We accepted this declaratory judgment matter in our original jurisdiction to determine if Respondents/Petitioners Quicken Loans, Inc. (Quicken Loans) and Title Source, Inc. (Title Source) have engaged in the unauthorized practice of law (UPL). In their complaint, Petitioners/Respondents Vance L. and Thelma Boone, Travis G. and Theresa S. Messex, and Brian and Kelli Johnson (collectively "Homeowners"), alleged the residential mortgage refinancing model implemented by Quicken Loans and Title Source in refinancing the Homeowners' mortgage loans constitutes UPL. In addition to seeking declaratory relief, Homeowners' complaint also sought class certification and requested class relief.

We referred this matter to a Special Referee to take evidence and issue a report containing proposed findings of fact and recommendations to the Court regarding the UPL issue, as well as on the issues of class certification and class relief. Following an evidentiary proceeding during which the parties submitted extensive testimony and documentary evidence, the Special Referee issued a report proposing various factual findings and recommending this Court declare that Quicken Loans and Title Source engaged in UPL but opining that neither class certification nor class relief were appropriate under the circumstances. Quicken Loans and Title Source took exception to the Special Referee's proposed findings of fact and UPL recommendation. Homeowners took exception to Special Referee's recommendation that class certification and class relief were unwarranted under the circumstances.

No UPL

We find the record in this case shows licensed South Carolina attorneys were involved at every critical step of these refinancing transactions, as required by our precedents. We also find that requiring more attorney involvement would not effectively further our stated goal of protecting the public from the dangers of UPL. We therefore respectfully reject the Special Referee's conclusion that Quicken Loans and Title Source committed UPL. Because we reject the finding of UPL, we need not address the parties' ,remaining exceptions, including Homeowners' request that we declare their mortgages void and certify this case as a class action.

...we believe requiring more attorney involvement in cases such as this would belie the Court's oft-stated assertion that UPL rules exist to protect the public, not lawyers...we do not believe requiring more attorney involvement would appreciably benefit the public or justify the concomitant increase in costs and reduction in consumer choice or access to affordable legal services. Cf. In re Unauthorized Practice of Law Rules, 309 S.C. at 306, 422 S.E.2d at 124–25 (recognizing the strict licensing requirements for becoming a Certified Public Accountant (CPA) and holding "that allowing CPAs to practice in their areas of expertise, subject to their own professional regulation, will best serve to both
protect and promote the public interest").

(Mike Frisch)

July 19, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Sex And Reinstatement

The Palmetto State reports on an attorney's reinstatement effort

A Charlotte attorney, accused of mixing sex and the law, has asked for his license back after he was caught sleeping with a woman he was suing at the same time.

Steven DeCillis, according to a 2013 complaint by the North Carolina State Bar, “elevated his sexual interests above the best interests of his clients.”

The complaint says that while representing one woman in 2010, the lawyer improperly began representing a second woman his original client was suing. To compound matters, he then began having sex with his new client.

In 2013, his law license was suspended for five years, and DeCillis was ordered to seek psychological treatment for what is described in the complaint as a “sexual compulsive disorder.”

Now, DeCillis wants to resume his legal practice that began 24 years ago when he joined the North Carolina bar. Four years into his suspension, he’s scheduled to meet in Raleigh with a star bar disciplinary panel in October in hopes of having his law license reinstated. He did not respond this week to Observer emails and texts seeking comment.

 The case marks the second time the bar has confronted DeCillis about his behavior around women.

The state bar oversees North Carolina’s legal profession, while also attempting to protect the public from unscrupulous attorney practices.

The language of the organization’s findings against DeCillis summarizes the case this way:

“Defendant’s decisions to ... represent a client and have sex with that client at the same time he was suing that client on behalf of another client evidence a lack of judgment, trustworthiness and integrity.”

According to the complaint, here’s what happened:

In April 2010, DeCillis agreed to take the case of a woman who had been injured in a car wreck and wanted to sue the other driver. DeCillis filed her complaint that August.

Ten months later and while the lawsuit was still pending, DeCillis, without alerting his original client, agreed to represent the other driver in a series of unrelated legal matters.

At some point in this new business relationship, DeCillis also began sleeping with the other woman, the bar says. That represented a blatant conflict of interest that “violated the trust of both his clients and the justice system,” the complaint says.

The original client did not learn the full scope of DeCillis’ entanglements until August 2011, when the attorney presented her with a settlement check from the lawsuit and a document informing her of his personal and professional ties to the other woman.

While the bar was investigating the case, DeCillis underwent therapy for what he learned to be his compulsive behavior. According to the complaint, the attorney’s medical provider determined DeCillis “should not have unsupervised contact with female clients for the foreseeable future.”

This is not the first time DeCillis’ actions around women have come to the bar’s attention. In 2003, it threw out a complaint against the attorney for lack of evidence, but it noted a pattern sexually aggressive behavior “not in accord with accepted professional practice.”

It added this warning: “Similar conduct in an attorney-client relationship would be the basis for discipline and could result in suspension and/or disbarment.”

In its suspension order a decade later, the bar gave DeCillis the option of applying for reinstatement after three years – provided , among other conditions, he can prove he has undergone extensive psychological treatment and “does not currently pose a sexual threat to females with whom he comes in contact with professionally,” including clients and witnesses.

He must also undergo an assessment by a therapist of the bar’s choosing.

Hat tip to Reddit Bar Lawyer. (Mike Frisch)

July 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Federal Appeals Court Holds "Significant Romantic Relationship" Unduly Vague; Overturns Penile Test As Release Condition

The United States Court of Appeals for the District of Columbia Circuit has held that certain conditions cannot be imposed on a released convicted sex offender.

The opinion was authored by Senior Circuit Judge Sentelle

Appellant Brandon Rock was sentenced to 172 months’ imprisonment and 10 years of supervised release after pleading guilty to distribution of child pornography. He appeals the length of his sentence and the conditions of his supervised release. For the reasons stated below, we affirm his sentence length but vacate two of the release conditions.

Prior to June 2011, appellant Brandon Rock was involved in a romantic relationship with a woman who had an 11-year-old daughter. Rock installed a hidden camera in the child’s bedroom at the woman’s house. Over the course of six months, Rock captured numerous video segments of the child in her bedroom, some of which showed the child completely naked from the front and back. From these videos Rock made still pornographic images. Subsequently, Rock entered an internet chat room where, unbeknownst to him, he began communicating with undercover Metropolitan Police Department Detective Timothy Palchak. Palchak was posing as an individual who had access to a fictional 12-year-old girl.

He was arrested and his computer searched after he sent images to the officer.

He is properly prohibited from computer use but

Another imposed condition of supervised release, the only preserved objection in the district court, under the heading “Additional Standard Conditions of Supervision,” states that Rock “shall notify the U.S. Probation Office when he establishes a significant romantic relationship and then shall inform the other party of his prior criminal history concerning the sex offenses.” Rock argues that this condition should be vacated because such a condition is unconstitutionally vague, not reasonably related to the goals of sentencing, and constitutes a greater restriction on liberty than necessary.

The condition was vague in light of the difficulty in quantifying matters of the heart

We cannot agree with the government’s proposition that people of common intelligence would share a conclusion as to whether the affairs of two people constituted a “significant romantic relationship.” Indeed, we think it likely that in many cases, the two persons involved might not agree as to whether they had such a relationship. In short, we agree with Rock that the vagueness of this condition is problematic.

Finally

Another condition of supervised release imposed upon Rock is that he “shall submit to penile plethysmograph testing as directed by the United States probation office as part of your sexual offender therapeutic treatment.” Rock contends that when the district court ordered him to submit to penile plethysmograph, there was no demonstration of what such testing actually required or if it is effective, and no discussion of why it is necessary.

The court concluded that the testing was not appropriate

The dissenter [in an earlier case] would have stricken the penile plethysmograph testing condition on the grounds that the procedure “implicates significant liberty interests and would require, at a minimum, a more substantial justification than other typical conditions of supervised release.” Id. at 566. We agree with the Malenya dissent and order this condition vacated as well.

The Malenya decision is linked here. 

Wikipedia describes the test. (Mike Frisch)

July 19, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, July 18, 2017

Sunshine

The Maryland Court of Appeals imposed disbarment by consent of an attorney convicted of tax offenses.

The United States Attorney f or the Northern District of Florida reported on the plea

 James R.J. Scheltema, 56, of Pensacola, has pled guilty to filing false tax returns and tax evasion. The guilty plea was announced by Christopher P. Canova, United States Attorney for the Northern District of Florida.

Between 2010 and 2013, Scheltema, a certified public accountant and attorney, received restricted stock as compensation for his legal and accounting services. He initially reported no compensation on his 2011 and 2012 individual income tax returns, despite receiving substantial compensation from stock issuance and the sale of stock. Scheltema also failed to file timely 2013 individual and corporate income tax returns for two companies he owned and operated. Scheltema tried to evade notice of stock sales by instructing checks be made payable to his wife and to one of the companies he owned, rather than to himself. After being notified of the IRS investigation, Scheltema filed amended 2011 and 2012 returns and a delinquent 2013 return, which were still false.

The sentencing hearing is scheduled for April 10, 2017, 3:00 p.m.

For each charge of filing false tax returns, Scheltema faces a maximum of three years in prison. For the tax evasion charge, he faces a maximum of five years in prison.

This case resulted from an investigation by the Internal Revenue Service—Criminal Investigation. Assistant United States Attorney David L. Goldberg is prosecuting the case.

In better days, Cision PR Wire had this news  in June 2016

 Sunshine Capital, Inc. (Pink Sheets: SCNP) today announces that it has appointed James R J Scheltema as the Company's new President and CEO to execute "Daniel J Duffy's plan" of turning the Company into a well-structured, revenue, earnings and asset based company.

Mr. Scheltema is a licensed attorney in Maryland and the District of Columbia as well as being a Certified Public Accountant in Florida. In the last decade, he has concentrated on developing microcap companies. He was a founder of both HEMP and MJNA and was general counsel during their infancy. More recently, he provided services to many microcap companies to either maintain or bring them into compliance with SEC, OTC and FINRA standards. In several circumstances, he has accepted appointment as the President and CEO of a few special situation microcap companies.

"My education and experience provide the perfect springboard to lead a company which is focused on growth through acquisitions," stated James Scheltema, newly appointed President and CEO of Sunshine Capital, Inc. "Sunshine Capital provides the ideal platform for this type of company and I look forward to making smaller companies stronger through accretive acquisitions, alliances and cooperative operating agreements under the Sunshine Capital umbrella."

"With Jim's skill depth in mergers makes him the ideal candidate to execute the apt named 'The Duffy Plan,'" stated Daniel J Duffy, noted investor and Investment Trustee to his children's trust. "I have had many meetings with Mr. Scheltema and his conservative and careful style will be instrumental in making the Duffy Plan a reality in creating a growing company based on a strong foundation. I anticipate Sunshine Capital will be as successful as when I participated in 2003 thru 2008 including turning my first public company Preferred Internet Technologies from nothing to the final stage company Sebastian River Holdings of over $140 million dollars in executed and pending mergers and acquisitions, including the cash buy out of Global Communications Solutions (GCS Wireless) which turned my company into the largest T-Mobile authorized dealer in the Florida Market."

(Mike Frisch)

July 18, 2017 | Permalink | Comments (0)

Fake Asylum Stories Get Lawyer Disbarred

Readers of this blog with an interest in bar discipline processes may be aware that New York imposes automatic disbarment when an attorney is convicted of a felony under New York law.

Where an attorney is convicted of either federal or state offenses outside the Empire State, the courts look to whether the felony is "substantially similar" to a New York felony. If it is, disbarment follows as night follows day.

This brings us to a disbarment imposed today by the Appellate Division for the First Judicial Department.

The crimes

On April 14, 2014, respondent was found guilty, after a jury trial, in the United States District Court for the Southern District of New York, of conspiracy to commit immigration fraud in violation of 18 USC § 371, a felony. Respondent was sentenced to 60 months imprisonment, followed by three years of supervised release, fined $12,500, and a forfeiture money judgment of $7,245,000 was imposed against her jointly and severally with her codefendants.

Respondent's conviction arises from her participation in a scheme that involved the submission of hundreds of fraudulent asylum applications to federal immigration authorities on behalf of Chinese aliens by two Chinatown law firms operated by respondent. Respondent initially operated a law firm under the name of Law Offices of Feng Ling Liu. Later, she changed the name of the law firm to Moslemi and Associates, Inc. Respondent and her co-conspirators created and submitted asylum applications containing false stories of persecution purportedly suffered by alien applicants.

Specifics

At bar, respondent was convicted after trial, where she did not testify, thus, there are no plea admissions. Nevertheless, respondent's conduct as described through evidence and testimony in the trial record, that she supervised and actively participated in the preparation of falsified asylum applications which were filed with immigration authorities, when read in conjunction with the indictment upon which she was found guilty, corresponds to the New York felony of offering a false instrument for filing in the first degree (Penal Law § 175.35). Consequently her conviction is a proper predicate for automatic disbarment under Judiciary Law § 90(4)(a) and (b) (see e.g. Matter of Skelos, 142 AD3d 196 [2d Dept 2016] [trial record established essential similarity between federal felony and New York felony]; Matter of Simels, 94 AD3d at 111).

Respondent's former employee testified that he was hired by respondent as a "storywriter" to craft false stories of persecution for clients seeking asylum. He testified that at the time of hiring it was his understanding that the stories he would be writing were "fake." He further testified that during the two years he worked at the firm, he worked on hundreds of asylum applications and, out of those applications, he believed less than 20 were "real, meaning they stated a real claim for asylum based on actual events." The employee explained that even the applications that were "real" were changed to provide a more sympathetic case or circumvent certain immigration requirements for asylum. The former employee generally testified that respondent supervised him and would review, edit, or provide comments to him as a "storywriter" employee, and he gave specific examples of such conduct.

Another employee, who began as a paralegal and was later admitted to the New York bar, [*3]testified that she worked on hundreds of asylum applications during her three years at the firm. She stated that approximately 10% of cases were based on actual facts involving persecution, and that some asylum applications containing actual facts were prepared in a manner to make their stories look better. She also admitted to writing fake attesting letters in support of clients' asylum claims and that these letters were often reviewed and approved by respondent prior to filing with the USCIS.

 In addition to the above witness testimony, the Judge's comments at sentencing further support that respondent's conduct is equivalent to a New York felony. The Judge stated that the evidence established that respondent was the leader of the conspiracy, which had as its goal "to trick immigration officials into granting asylum to countless inapplicable applicants", she "[was] the one who benefitted most from this most egregious effort to defraud our government," and, unlike many of her codefendants who accepted responsibility for their criminal conduct, respondent continued to blame others.

Notably, the court looked at the facts and found sufficient evidence of substantial similarity

The record of respondent's conviction is "conclusive evidence of [her] guilt" in this disciplinary proceeding and the trial testimony cited by the Committee, read in conjunction with the indictment upon which respondent was found guilty, establishes "essential similarity" between the offenses at issue (22 NYCRR 1240.12[d]; Matter of Margiotta, 60 NY2d at 150).

(Mike Frisch)

 

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Agreement Created Fee Shift

An opinion of the Maryland Court of Appeals is summarized in the court's headnote

Maryland follows the common law American Rule, which states that, generally, a prevailing party is not awarded attorney’s fees. Maryland law draws a distinction between the recovery of attorney’s fees incurred in defending against a third-party claim and those expended in prosecuting a claim against the indemnitor.

There are four exceptions to the American Rule where a prevailing party may be awarded attorney’s fees, including that the parties have an agreement to that effect. The scope of
indemnification is a matter of contract interpretation, where a court looks to the terms of the contract to decide whether the parties agreed expressly that attorney’s fees would be  recoverable in a first-party action.

The contract between the parties in this case, specifically Article 19, provides expressly for the payment of “attorney’s fees;” and it ties payment of those fees expressly to an action for “breach” of the contract. Therefore, the Easement Agreement contains sufficient language to authorize first-party fee shifting, and subsequently White Flint is entitled to recover attorney’s fees.

The dispute involves a construction project in the heart of downtown Bethesda. White Flint - which leased to a restaurant and children's dance studio - sought and secured indemnification for damage caused in building over their properties.

Bainbridge, an entity formed by the Bainbridge Companies to manage the construction and operation of a new 17-story high rise apartment building in Bethesda, owns the property immediately adjacent to 4904 and 4909 Fairmont Avenue (“the Fairmont Properties”). Located on the Fairmont Properties were two one-story concrete buildings owned by White Flint that were leased to a restaurant and a children’s dance studio. Bainbridge engaged sub-contractor Turner to build the 17-story apartment building on its property for an estimated cost of $45,000,000. The construction project required excavation of a 50-foot-deep hole on the property, to be held open by steel cables protruding under and onto White Flint’s property to prevent soil and sub-surface structures from moving toward or into the excavation area. Bainbridge sought an easement from White Flint for access to the space “under, over, across and on the Fairmont Properties.” Bainbridge also wanted additional easements to swing a crane and extend scaffolding above the Fairmont properties.

During the Project’s excavation stage, White Flint’s experts detected damage to White Flint’s Property, alerted Bainbridge to the damage, and asked for assurances that the damage would be remedied. White Flint claimed that Bainbridge and its contractors did not drill the holes properly for the steel beams, resulting in soil loss beneath the Fairmont Properties, and that pile-drivers were used instead of drills to install the steel beams, in contravention of the express language of the Agreement. White Flint complained that the use of the pile-driver caused the buildings to shake, causing additional damage and soil movement underneath the buildings. By February 2012, the owner of the children’s dance studio on White Flint’s property reported seeing numerous cracks in the walls, that she feared a roof collapse on her students, and that many parents would not bring their children to class until she received assurances by Montgomery County that the building was safe. 

As you might imagine, litigation ensued.

Holding

The Agreement here is closer to the surety contract in Atlantic than the truck rental lease in Nova Research. Bainbridge and White Flint designed the agreement to ensure that Bainbridge, and not White Flint, carried all of the risk from the construction work; otherwise, White Flint had no incentive to support Bainbridge’s plans. Thus, the parties designed Article 19 to ensure that White Flint would be made whole if Bainbridge breached the agreement, which supports first-party fee shifting...

We hold that the Agreement contains express provisions that authorized first-party fee shifting, and subsequently White Flint is entitled to attorney’s fees.

Judge Raker authored the opinion. (Mike Frisch)

 

July 18, 2017 in Billable Hours | Permalink | Comments (0)

Card Holder Theft Leads To Judge's Resignation

Reddit Bar Lawyer has posted a story of judicial misconduct from the Los Angeles Times.

A Napa County judge has agreed to resign from office after he was caught swiping a handful of fancy business card holders from a San Francisco social club earlier this year, a state watchdog agency announced Monday.

Judge Michael S. Williams has agreed to take leave from the bench in October and officially resign from office Dec. 5 after the Council of Judicial Performance notified him it had launched proceedings against him for violating cannons [sic]  of the Code of Judicial Ethics.

Williams’s attorney, Edith Matthai, told The Times that her client opted to resign rather than fight the allegations because he planned to retire soon anyway.

According to the commission’s complaint, on March 9, 2016, Williams stole the card holders at a “Judge’s Night” dinner put on by the Northern California chapter of the American Academy of Matrimonial Lawyers at the City Club of San Francisco.

“The cardholders were consistent with the art deco decor of The City Club” and cost up to $50 each, the complaint said. They were holding cards for the City Club’s managers.

As the event wrapped up and people began to leave, Williams, who said he drank “a couple glasses of wine” and saw the card holders on a table near the elevators on the building’s 10th floor.

Williams “pocketed at least one cardholder, left, and then returned and took one or two more before taking an elevator down to the first floor,” the commission wrote.

About two weeks later, a City Club fellow told the judge the thefts had been caught on security camera and that he should notify the commission himself.

(Mike Frisch)

Williams sent the card holders back to the City Club the next day with a note saying he had “no excuse” and that he’d been drinking and “was not thinking of what I was doing.”

He notified the commission of what he’d done a day later on March 30, 2016, and said he’d taken the card holders to display joke business cards he and a friend had made 40 years ago and that he’d recently found.

The commission wrote that he expressed “deep remorse, embarrassment and regret over his actions.”

Williams became a judge in Napa County Superior Court in 2012. He previously served as a court commissioner from 2001 to 2012.

“Judge Williams’s conduct seriously undermines public confidence in the integrity of the judiciary,” the commission wrote in its decision. “The judge’s agreement to resign … affords protection to the public and the reputation of the judiciary in the most expeditious manner by avoiding the delay of further proceedings.”

Williams agreed never to sit on the bench again after he resigns. His last day on the bench is expected to be Oct. 19.

July 18, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Overreach Draws Reprimand

There seem to be a significant number of recent improper withdrawal from representation disciplinary matters.

The New Jersey Supreme Court reprimanded an attorney whose fee demand on discharge was found to be more than a tad excessive. 

From the Disciplinary Review Board letter

In late August 2013, [client] Tosun’s former husband filed another motion to terminate alimony and to reduce child support payments. On September 4, 2013, respondent informed Tosun that he required a new retainer for this latest because he had exhausted the fixed fee she had paidin May 2013.

Tosun objected to the request and retained new counsel. Counsel sought the turnover of Tosun’s file and a refund of a portion of the $35,000 retainer, noting that respondent had performed services during a period of fewer than two months in 2013. Respondent refused to refund the retainer, prompting Tosun to file a fee arbitration request, in December 2013. The fee arbitration panel awarded Tosun $34,100, concluding that respondent was entitled to only $900. On appeal, the Board upheld the fee arbitration panel’s determination. Respondent, thereafter, promptly refunded $34,100 to Tosun.

As per usual, the tepid New Jersey response to misconduct

The Board determined that respondent’s fee was so excessive that it evidenced an intent to overreach. Such a finding ordinarily results in the imposition of a reprimand.

The DRB noted the absence of prior discipline. (Mike Frisch)

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Motorcycle Riding And The Duty To Cooperate

An attorney who defaulted on disciplinary charges has been disbarred by the Arizona Presiding Disciplinary Judge

The bar’s investigator found Ms. Morley at her home on October 19, 2016. She told the investigator she knew about the charges , knows she needs to respond, health issues arose  in August at about the time she received this charge (although the State Bar transmitted the charge in June), she thinks she has lupus and takes some kind of medication for it, and she may have some type of connective tissue disease but cannot obtain an unambiguous diagnosis due to insurance coverage issues and her doctor’s retirement.

Ms. Morley’s active Facebook profile that she updated in July and August, 2016, shows her looking healthy and riding a motorcycle.

The attorney's misconduct involved four client matters

ER 1.16(d) provides that upon termination of representation a lawyer must take reasonable steps to protect the client’s interest, such as giving reasonable notice, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payments of unearned fees or unincurred expenses. See, e.g., In re Mitchell, 727 A.2d 308 (D.C. 1999). She did none of these and more than ignored her duties. She was actively avoided her duties.

In similar manner she knew that the State Bar was screening her for possible ethics and professionalism violations in these four cases, that she was required to respond, and did not respond. She knew that she was unresponsive, unprepared, misled the court and failed to serve her clients resulting in her essentially abandoning and injuring them financially...

Ms. Morley deserted her clients and abdicated her duties to the court and the State Bar. She harmed the public, the profession and the administration of justice. Disbarment is the appropriate sanction and meets the objective of attorney discipline, which is to deter other attorneys from engaging in similar misconduct and to instill public confidence in the integrity of those lawyers who conduct themselves appropriately, ethically, and responsibly.

The presiding judge also imposed a restitution requirement in each matter. (Mike Frisch)

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Bicycle Accident Led To Representation Lapses

An attorney who suffered a shattered pelvis in a bicycle accident has agreed to a six-month suspension for ethical lapses in cases that were ongoing at the time of the accident.

The Arizona Presiding Disciplinary Judge accepted a consent to the discipline. 

In four counts, Mr. Nelson accepted fees from clients and then, because of unforeseen medical reasons he experienced in 2016, failed to provide the legal services for which he was contracted to perform. Mr. Nelson further failed to safekeep client property and return unearned fees upon request. Because of his medical issues both physical and mental, Mr. Nelson determined he was no longer able to represent clients and was forced to withdraw from all client matters. In Count Three, Mr. Nelson failed to adequately communicate and diligently represent his client when he failed to comply with requests for discovery and to respond to a motion for summary judgment...

The parties agree that the presumptive sanction is suspension and that the following aggravating/mitigating factors are present in the record: 9.22(a) prior disciplinary offenses; 9.32(c) personal or emotional problems, 9.32(e) full and free disclosure and 9.32(l) remorse. Mr. Nelson is unable to work, has removed himself from the practice of law, and currently receives social security/disability payments.

The sanction also requires probation and restitution to the affected clients. (Mike Frisch)

 

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)