November 12, 2007
A Matter Of Timing
An attorney who had been placed on indefinite suspension in Maryland was charged with a series of fresh violations. The cases were heard by two different circuit court judges and consolidated by the Maryland Court of Appeals. One judge found no misconduct in two matters. The other made findings regarding post-suspension conduct that led the court to find two instances of misconduct.
The lawyer had entered an appearence in a criminal case on December 14, was suspended on December 22 and appeared at a motions hearing on December 30. The judge was aware of the suspension, which was effective on the date it was issued. The suspended lawyer mistakenly believed he was permitted a wind-up period prior to the effective date of the suspension. The court noted that this was the first reported case that interpreted rule changes that made suspension immediate and felt that leniency was appropriate on that basis. The other post-suspension practice was deemed more serious. Indefinite suspension was continued in place. (Mike Frisch)
Lawyers Avoiding Service (Process, Not Military)
Most state bar disciplinary procedures provide for alternative service of bar charges if the accused attorney creates a situation where personal service is made unduly difficult. A hearing board in Illinois found the following efforts sufficient to permit the bar to proceed on charges in the lawyer's absence:
"... Respondent was served with the Complaint pursuant to Commission Rule 214(b), which allows service by regular mail if a person authorized to make personal service files an affidavit stating that Respondent is concealed within the state so that process cannot be served upon him. An ARDC investigator, Humberto Bobadilla, filed an affidavit stating that in April 2007, he attempted to contact Respondent by telephone at each number listed on Respondent’s most recent registration. Respondent’s business telephone was disconnected, and a message at his home telephone number indicated that his voice mailbox was full. Bobadilla then visited Respondent’s business address and home address, but found that his office had been vacated and no one responded at his home address. Bobadilla visited Respondent’s home address on four additional occasions and each time left business cards in plain sight with a request that Respondent contact him. On April 23, 2007, Bobadilla traveled to Respondent’s home address and spoke to an adult male who identified himself as Respondent’s brother, Martin Fitzgibbons. Fitzgibbons acknowledged that Respondent lived at that address but stated he was not home. Bobadilla then gave Fitzgibbons a copy of the Complaint packet to deliver to Respondent. On three subsequent occasions Bobadilla attempted to reach Respondent at his home address, but no one answered. On June 28, 2007, Bobadilla telephoned Respondent at a cellular telephone number obtained from Respondent’s landlord. Respondent did not answer the call, but several hours later Bobadilla received a call from the cellular number he had dialed. The caller identified himself as "Ryan Fitzgibbons" and asked Bobadilla to identify himself. When Bobadilla stated his name and title, Respondent terminated the call. Bobadilla’s affidavit states that he received no further communication from Respondent, and believes that Respondent concealed himself so that service could not be made upon him. "
The hearing board found misconduct in four matters, failure to cooperate and significant aggravating factors. It recommends a suspension for three-years and until further court order. (Mike Frisch)