Tuesday, September 16, 2008
A Cincinnatti attorney was suspended for two years, with the second year stayed on conditions, for misconduct summarized on the Ohio Supreme Court web page as follows:
The Court adopted findings by the Board of Commissioners on Grievances and Discipline that Farrell forged his wife’s signature on a power of attorney that he used to borrow $50,000 against a line of credit secured by the couple’s home, and also fabricated multiple letters and other fictitious documents purportedly offering him high-paying jobs.
The Court found that Farrell’s actions violated attorney discipline rules that prohibit engaging in illegal conduct involving moral turpitude and conduct involving fraud, deceit, dishonesty or misrepresentation. The justices overruled objections by Farrell seeking a less severe sanction for his misconduct, noting that his forgery resulted in the granting of a sizable loan that now is at risk of default and his false attestation to the authenticity of his wife’s signature induced another attorney to engage in misconduct by improperly notarizing the forged document.
The attorney's apparent motive was to deceive his wife, also an attorney, into believing that he had left his own small firm and obtained more lucrative employment. She left her job as a senior associate in a firm earning about $100,000 as a result. When he was unable to increase his earnings, he engaged in forgery to borrow money to sustain their lifestyle. She divorced him when he revealed what he had done and he reported himself to the bar. Although he suffers from depressive disorder, he conceded that the condition did not cause the misconduct. The court noted that "[he] cannot explain his fabrications and forgery, so we have nothing from which to conclude that he will not repeat his wrongdoing." (Mike Frisch)
A defendant who was convicted of a delivery or sale of cocaine was given a suspended sentence and placed on probation. When the defendant was charged with violation of the probation, an attorney was appointed to represent him. The appointed attorney had been the prosecutor in the original case. After admitting the violation (he had been charged with a positive cocaine test and violation of curfew), the defendant appealed and contended that the finding should be vacated due to the conflict of interest.
The North Carolina Court of Appeals rejected the claim:
Defendant offers no evidence of a conflict of interest outside of Moody's status as a prosecutor more than two years prior to her representation of defendant in the instant case. However, assuming arguendo that a conflict of interest did exist, defendant fails to show how counsel's performance at his probation violation hearing was adversely affected.
The record reflects that the 7 September 2007 hearing was defendant's third probation violation hearing on his fourth violation report. The hearing was originally scheduled for 4 September 2007. Defendant's probation officer testified that a surveillance officer attempted to serve defendant with a violation report, defendant ran from the officer and later failed to be present for a hearing in July. Defendant was arrested and presented before the court for the hearing on 7 September. The probation officer recommended that defendant's probation be revoked. Attorney Moody addressed the court in defendant's defense and argued that there was mis-communication between the probation department and defendant as to a change in defendant's residence, that defendant had attended some classes at the Day Reporting Center but had transportation issues, and that defendant turned himself in to the Ahoskie Police Department. Defendant was then given an opportunity to address the court during which he acknowledged that he suffered from a drug addiction but that he was working. Defendant maintains that this representation was inadequate, yet offers no evidence of adverse effects based on the performance of his appointed counsel. Accordingly, defendant's assignment of error is overruled.
Clearly, the probation matter was either the same or substantially related to the cocaine charges. If I were the defendant, I would find it difficult to feel fairly treated in a matter where the prosecutor who had obtained my conviction became my champion when charged with the probation violation. (Mike Frisch)
Monday, September 15, 2008
A proposed three year consent suspension was adopted by the Pennsylvania Supreme Court in a matter where a non-practicing lawyer was convicted in federal court of bribery in connection with federal program funds. The attorney was operating a computer software company that developed software "to enable large urban school systems to monitor and integrate their attendance, security and administrative issues." He was advised by a lifelong friend that the company might receive a $200,000 opportunity grant. The friend was employed by the Governor's Action Team and was responsible for encouraging business opportunity into Pennsylvania. The friend apparently saw an "opportunity" and assisted in the award of the grant, insisting on a $20,000 kickback. The payment was made from the escrow account of the attorney's former law firm and concealed as a disbursement in connection with a real estate transaction. There is no indication from the stipulation as to how the misconduct came to light. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended the reinstatement of an attorney who had been suspended for three years as a result of his federal conviction for seven counts of lying to a federal agent. The attorney had been elected as Commissioner of Insurance and was charged with conspiring with former Governor Edwin Edwards, Judge Foxy Sanders and others "to allow [an] insurance company president to enter into a settlement that was nothing more than a sham, thereby derailing a lawsuit to recover millions of dollars which the insurance company president should have reimbursed to the State."
One usual aspect of the reinstatement process relates to the petitioner's belief that he was wrongly convicted. He authored a book called "Justice Denied: How the Federal Court System Failed Former Louisiana Insurance Commissioner Jim Brown." After publishing the book, he frequently hosted a radio show for Clear Channel Communications. While protestations of innocence would normally be a significant impediment to reinstatement, the petitioner had acknowledged that it was wrong to lie to the FBI and that his conviction had harmed the legal profession. The board concluded that he was remorseful and presently has the requisite honesty and integrity to resume the practice of law. (Mike Frisch)
A Louisiana hearing committee has recommended a suspension of two years with an additional one year of supervision if the attorney is reinstated. The complex case involved a attorney who had been retained by two clients to pursue a class action lawsuit against Equitable Life Assurance Company. After a three-day hearing, class certification was denied. The lawyer had associated with the law firm of O'Quinn and Lamineck in the representation, which in turn associated with Milberg Weiss. The case settled for $15 million, only $4 million of which went to the claimants. The misconduct involved a number of rule violations including failure to communicate, settling the claims without the input or approval of the clients, conflicts of interest, excessive fees and dishonesty. The decision notes that no one from the out-of-state law firms provided any testimony in the disciplinary case. (Mike Frisch)
The Illinois ARDC has filed a complaint alleging that the lawyer, an equity partner in a law firm that had represented approximately 2,500 plaintiffs in product liability litigation, was sued for $1.7 million in loans that he had guaranteed. The complaint alleges that the attorney transferred his assets to another attorney with whom he "lived together and had a personal relationship." After an adverse judgment, the lawyer declared bankruptcy and is alleged to have made false denials of the transfer of assets.
According to the charges, the civil court addressed the fraudulent conveyance issue and concluded:
The court deemed Respondent's and Stackler[the friend]'s explanation for the transfers, i.e., that the transfers were in consideration for loans Stackler had purportedly made to Respondent and his law firm, "inherently unbelievable." The court ruled that the transfers were fraudulent and made with the "actual intention of hindering, delaying or defrauding [Respondent's] creditors," and that the various agreements executed in connection with the alleged assignment and transfer of Respondent's assets to Stackler "were all executed between [Respondent] and Stackler as an elaborate hoax to put his assets into her hands and shield them from his creditors."
The bankruptcy court denied the lawyer a discharge in bankruptcy. (Mike Frisch)
Posted by Alan Childress
Mike, who posted this morning on this interesting Louisiana bar discipline recommendation for a convicted bank robber, has heard me express before in detail that permanent disbarment is an abdication of future responsibility. Why decide now, and forever, that no set of circumstances and no amount of proof of change allows reentry into the profession? Permanent disbarment has public relations value now, sounding tougher than "just disbarment," but I know of no statistical rash of the recidivist-disbarred.
Here is a crime not in the practice of law--related of course and worthy of disbarment--but not related to clients. I would hope permanent disbarment would at least be reserved for crimes most related to practice. Last week Mike reported zero bar discipline in Michigan for a drunk driver because it was his "private life." (And in Louisiana merely a suspension for repeated drunk driving and attacking the ex's car.)
Hmm. This robbery is not just as much his personal life? The Michigan drunk driver's bar found, you will recall, "no evidence whatsoever regarding his competence to practice law or the quality of the services rendered to his clients." Same could be said for bank robbery, though I agree it should get more than zero discipline and disbarment is appropriate. But note the huge disparity in how the bar treats these two crimes: zero discipline versus never again, even though neither involved clients or law practice.
They seem to be both crimes that threaten human life recklessly. I am more scared of drunk drivers than bank robbers, personally, because there are a lot more of them and society goes easy on them. And I am not scared that future bar committees cannot competently decide on an application for reinstatement. Likely the answer will be "no" at that time, but can we say now that it will be forever, no matter what? Even after he has served his time?
A Louisiana Hearing Committee has recommended the permanent disbarment of an attorney convicted in a Tennessee federal court of armed bank robbery. The attorney was able to get away with $37,600 and had been arrested approximately two months after the crime. (Mike Frisch)