October 17, 2008
Clerk Was Crime Victim
The Tennessee Court of Criminal Appeals affirmed a conviction on a guilty plea to a number of serious offenses. The defendant was one of a group "knocking down mailboxes and otherwise enjoying themselves" who decided to burn down a barn.
A dissent would reverse the convictions because one of the victims was the Circuit Court Clerk in the county where the charges had been brought. The public defender withdrew from representation based on his professional relationship with the victim. The original trial judge recused himself, but the district attorney and the clerk's office remained in the case. A motion for venue change was denied.
The dissent notes that the plea likely waived the conflicts issue, but that "the record is notably silent regarding any waivers of the conflicts of interest." While court clerks "are not governed by a code of professional conduct...[t]here is nothing in the record that reveals a justification for the Circuit Court Clerk's participation in the case." (Mike Frisch)
New Admission Rules Proposed In North Dakota
The North Dakota Supreme Court has proposed amendments to its bar admission rules. The court notes:
The overall goals of the State Board of Law Examiners in proposing the amendments were cleaning up inconsistent language, conform the rules to the long term practice of the Board, and bring more transparency of the process to the applicants.
One rule change makes explicit the authority to order a medical examination as part of the admission process where deemed necessary:
Lines 150-158 allow the Board to require an applicant to undergo an independent medical evaluation. The Board believes it is already within their investigative authority to require a medical evaluation. However, because of past questions and concerns, the Board would like a rule to put applicants clearly on notice of the Board's authority. Note the Board is willing to pay the costs for any required independent medical evaluation, which is one of the concerns frequently raised.
Internal Investigation Evidence Did Not Improperly Convey Opinion On Guilt
The New York Court of Appeals affirmed the convictions of two former Tyco executives "for crimes associated with corporate wrongdoing." The court rejected the contention that the "admission of an attorney's testimony concerning certain facts related to a corporate internal investigation improperly conveyed to the jury an opinion regarding...guilt." The testimony and arguments concerning the terstimony "did not convey such an opinion." (Mike Frisch)
Payment Without Performance
An attorney who had accepted fees but failed to perform services was suspended for two years by the Ohio Supreme Court. The court's web page reports:
The Supreme Court of Ohio has suspended the law license of Columbus attorney Madry L. Ellis for two years based on a course of professional misconduct during which Ellis accepted fee advances but then failed to perform promised legal services for 18 different clients who retained him to represent them in criminal cases.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that, between 2003 and 2006, Ellis accepted fee advances ranging from $750 to $10,000 from clients or their families but then neglected or abandoned their cases and failed to answer their phone calls or other attempts to communicate with him or obtain refunds. The cases included several clients who were incarcerated and retained Ellis to file appeals or seek postconviction relief on their behalf. In five cases, Ellis accepted an initial fee and had no further contact with the client and/or his family.
The Court agreed with the board’s conclusion that Ellis committed multiple violations of state attorney discipline rules, including, among others, the rules that prohibit neglect of an entrusted client legal matter, failure to pursue the lawful objectives of a client, failure to pay or deliver funds to which a client is entitled, conduct involving deceit, conduct prejudicial to the administration of justice and failure to notify clients that an attorney lacks malpractice insurance.
Among conditions for his reinstatement after serving a two-year license suspension, the Court ordered that Ellis must remain in compliance with a recovery contract with the Ohio Lawyers Assistance Program, serve a two-year probationary period during which his practice will be monitored, and submit evidence from a psychiatric expert that he is able to return to the competent and ethical practice of law.
The court's decision is linked here. (Mike Frisch)
October 16, 2008
Failure To File Leads To Suspension
A joint petition for a suspension of one year was approved by the Pennsylvania Supreme Court. The attorney admitted that he had failed to file federal income tax returns for the period 2001-2005, resulting in a criminal conviction. The unpaid taxes were over $150,000. The one year suspension was imposed nunc pro tunc to May 2008. (Mike Frisch)
Mississippi Welcomes You
The Mississippi Supreme Court has adopted a new admissions rule that returns to a regime of reciprocity rather than a one-day examination. The order and rule are linked here. (Mike Frisch)
"An Unresolved Question Of Fact"
A physician who served as chair of the emergency department at a hospital began to suffer from a delilitating spinal condition. He and his fellow doctors negotiated a new employment contract after meeting with a lawyer regarding the new contract. The new contract allowed the physician to purchase long-term disability insurance, which he did. When the insurer limited his benefits, he sued the lawyer and his firm for malpractice. Summary judgment was granted against the physician.
On appeal, the New York Appellate Division for the Third Judicial Department reversed, concluding that the question whether the lawyer had an attorney-client relationship with the individual doctors was "an unresolved question of fact" and that causation could not be resolved by summary judgment. (Mike Frisch)
Practicing While Suspended
A lawyer who was suspended for three months based on findings of "non-venal" conversion and other misconduct was charged with violation of the suspension order. The lawyer had held himself out as eligible to render legal services and had acted as a lawyer during the period of suspension, notwithstanding his affidavit stating that he had complied with the order. The New York Appellate Division for the First Judicial Department accepted the lawyer's resignation from practice and struck him from the rolls. (Mike Frisch)
No Contest, No Report
The Florida Supreme Court approve a referee's findings of misconduct but rejected as unduly lenient a proposed 90 day suspension. Rather, the court imposed a suspension of 18 months followed by three years probation. The attorney had entered no contest pleas to five criminal charges, including two felonies. The felonies involved possession of cocaine and battery on a law enforcement officer. The lawyer "[m]ost significantly" had failed to notify the bar of the determinations of guilt. The court rejected the "reliance on counsel" defense to the non-report as "utterly incredible." Although the court rejected a finding below that the lawyer had engaged in decetive practices and found substantial mitigation, "the fact that under [bar rules], his nolo contendere pleas to two felony charges constitute determinations of guilt, coupled with the inexcusable fact that he concealed those pleas from the bar for more than seven years, requires the imposition of a lenghty suspension. " (Mike Frisch)
No Winning Ticket
A Massachusetts lawyer was suspended for a year and a day in connection with two matters. One involved his self-representation in a landlord-tenant matter involving his failure to make rental payments. He disobeyed court orders and appeared in court late and in a state (as opposed to a commonwealth) of intoxication. As a result, the trial was continued.
The other matter involved misconduct in the course of representing a client who claimed to have won the Massachusetts lottery:
...the client retained the respondent in or about April 2002, to represent him in his claim against the Massachusetts State Lottery Commission. The client claimed to have a winning instant game ticket in the amount of $1,000,000, but was advised by the Commission that he did not have a winning ticket. The client appealed the denial to the Commission.
The lawyer was found to have failed to pursue the matter through available legal means and to have misled the client concerning the status of the case. (Mike Frisch)
Understanding the Financial Crisis
[By Bill Henderson, cross-posted on ELS Blog]
Like everyone else, I am struggling to get my head around exactly what happened to produce our current financial crisis. That is a precondition of anticipating the longer term consequences. In a single paragraph, this is what (I surmise) happened.
Sometime during the 1990s, momentum began to build on Wall Street for securitizing home mortgages in new and exotic ways. Residential real estate seemed like an attractive business because the yields were decent, the historical default rates were low, risk of loss was mitigated by pooling thousands of mortgages (which were, themselves, divided into parts), and the underlying assets (homes) generally went up in value, sometimes by a lot in major metropolitan areas. Institutional investors had an insatiable appetite for these debt instruments, which were graded as safe by all the major rating agencies. Further, respected companies like AIG wrote insurance on these instruments on the theory that they would never have to pay. All the risk was supposedly hedged by "credits swaps," which are fancy and unregulated contracts between private parties. So money gushed in. Because virtually any loan could be sold the next day to Wall Street (who, in turn, could repackage them for a large profits within a short time), banks and other mortgage originators could make money with no risk (zero risk!). This cycle continued even though the pool of mortgage applicants became weaker and weaker--eventually people with (a) bad credit, (b) no assets, and (c) no job. This had the predictable effect of driving up the price of real estate to a frothy bubble.
If we want to get back to good old-fashion, sane capitalism where risk is actually assessed before a lender gives a borrower money (and I do), we need to know what the underlying asset (a home) is really worth.
Here, the news is not good. According to this story in the New York Times, the price of real estate could tumble throughout 2009. Frankly, this is where analogies to the 1930s seem like they have some traction. When an average person's largest asset turns out to be a terrible investment, they have lost a lot of money in the stock market (any opinions on privatizing Social Security now?), and banks are failing left and right, it has a devastating effect on society's ability to pool risk--all the money ends up in the mattress, so to speak. No surprise, people like my grandparents who lived through the Great Depression tended to be very cautious and risk averse with money.
Frankly, the issue now is not how to regulate Wall Street--the investment banks are gone. It is how to unwind this mess. The larger tragedy here is not the loss of money; it is the loss of trust by ordinary people in basic financial and commercial institutions. They worked hard and played by the rules. Yet many of their homes will be worth less than what they paid for them, and retirement seems beyond reach. Unregulated capitalism failed. Like it or not, government is the only entity that can fill the breach.
These two stories from This American Life, both 1-hour long audios, are the two best resources I have found on these topics:
October 15, 2008
Thicker Than Water
We had previously reported on ethics charges filed against a Tennessee judge alleged to have used his office to benefit a private probation service run by his brother-in-law. The charges have resulted in a settlement order by which the judge agrees to stop without admitting liability: "[the parties] agree to forego any allegations in the formal complaint. Disciplinary Counsel's agreement is not based on the allegations against them by Judge Bell but in an effort to resolve these issues in an economic and efficient manner." (Mike Frisch)
The Illinois Hearing Board imposed a public censure on an attorney who had filed an inappropriate pleading in a litigated matter. The board described the misconduct as follows:
Harrison represented Pedro Rey in a criminal matter. Rey’s case was assigned to Cook County Circuit Court Judge John J. Fleming. When Harrison filed his appearance, he also filed a motion to continue the trial date of November 3, 2003. Judge Fleming continued the trial until January 12, 2004, and informed Harrison that he would not grant another continuance because the case was a year old.
On January 24, 2004, Harrison filed another motion to continue the trial. He did not appear personally to present the motion. An investigator hired by Harrison presented it and told the court that Harrison was involved in another trial. In relevant part, Harrison asserted in the motion that the proceedings in his client’s case were a "criminal court fiasco" and "may also necessitate criminal charges for obstruction of justice, malicious prosecution, and/or prosecutorial misconduct as well as conspiracy to do same by the Circuit Court of Cook County, Criminal Division, located at 2600 S. California, in Chicago, IL, in room 102." Harrison signed the motion "Indignantly Submitted."
Harrison admitted that at the time he filed his motions for continuance he had no information as to whether the statements about the court were true or false. Harrison went on to explain that the statements were not direct allegations, but "allusions" to a "possible need to pursue this or that avenue of criminal proceedings.
When Harrison next appeared before Judge Fleming on January 21, 2004, he filed an amended motion to continue the trial date. The amended motion contained the allegations regarding obstruction of justice, malicious prosecution and prosecutorial misconduct. Harrison told Judge Fleming that he could not be ready for trial until September 2004. Judge Fleming set the trial for March 2004. According to Judge Fleming, Harrison then began raising his voice, raised the motion over his head and said loudly that he would "jam these pleadings down the throat of the record as much as I feel I need to."
Harrison testified that he is a demonstrative person and has a loud voice. He denied that he yelled and posited that his behavior was due to his lack of experience in the criminal court and his perception that his client was being treated unfairly.
The judge held the lawyer in contempt and had the sheriff remove him from the courtroom.
The board found that the lawyer had not been prejudiced by the arguments of the Administrator and that the comments by the lawyer were not protected by the First Amendment. (Mike Frisch)
Duty To Report
The Massachusetts Committee on Judicial Ethics recently opined that a judge is obligated to report to the Board of Bar Overseers conduct of an attorney who is counsel in several matters before the judge, including a domestic relations matter where the attorney represents himself. The attorney filed a recusal motion in all matters on the following basis:
...the attorney filed a motion to recuse in the case in which he is appearing pro se, as well as any matter in which he has entered an appearance. He alleged that you have "exhibited a bias, prejudice, a conflict of interest, lack of impartiality or the appearance of same." His assertions include the claims that you have entered the courtroom with his estranged wife's former attorney and made a scheduling error in another case in which he was involved. You denied the initial motion to recuse. On January 30, 2008, the attorney filed a second motion to recuse. As grounds for this motion he stated that there has been a clear pattern of corrupt behavior and that the court lacks the minimum competence to sit as a justice in the probate court. In expanding upon his initial allegations, he states that "[r]ats hate sunlight," and "[t]here will be a floodlight shone..." upon your conduct. Not surprisingly, you have found these assertions to be inappropriate and inflammatory. In your Memorandum you found the attorney's statements in his pleadings and on the record to have no basis in fact and to have been made with the intent to discredit the court. For example, in a supplemental memorandum filed in February of 2008 the attorney alleged that you gave a $15,000.00 wedding present to Wife's prior counsel, which you note was an award for counsel fees; an award that was neither challenged or appealed. The wife filed a complaint for modification two weeks later. Both complaints have been scheduled for trial.
The judge sanctioned the attorney with a $500 fine, which was not paid and sought an opinion from the committee regarding a number of questions including whether he should recuse himself and report the matter to disciplinary authorities. The committee gave some guidance on recusal but concluded that the judge must report the lawyer:
In these circumstances, the Committee is of the opinion that you are required to report the attorney to the Board of Bar Overseers because of the false affidavits filed and your concerns that the attorney has compromised his ability to represent his client. Additionally, you may choose to report the attorney even while there are matters pending. In making your decision to recuse you must apply the Lena test. A judge is not automatically disqualified because of the filing of an ethical complaint or because of pending contempt proceedings. You must apply the Lena test in determining whether the line has been crossed. Finally, while the Code does not require you to send the attorney a copy of any report you send to the Board, it may be appropriate to do so.
I am on board with the false affidavit part of the opinion. Is a judge really ethically obligated to report any instance where the judge believes "the attorney has compromised his ability to represent a client?" A slippery slope. (Mike Frisch)
October 14, 2008
Getting Mad, Not Getting Even
When a lawyer who is the subject of a bar complaint sues the complainant in retaliation, such a suit may form the basis for a separate disciplinary charges. A lawyer admitted in 1962 was suspended for a year and until further court order by the New York Appellate Division for the First Judicial Department. The lawyer denied that he had ever represented the complainant, a contention rejected by the referee:
The Referee found Mr. Crowley [the complainant] "completely credible" and, in rejecting respondent's contention that there was no attorney-client relationship between the two of them because there was no written document or payment of a fee, found:
[t]he documents indicate the retention of Alliance by Crowley. Respondent admitted sharing offices with Alliance, (admitting that he was a sub-tenant) having a desk and telephone, with his name on the door and paying no rent, except rendering legal service in the nature of opinions on collectability of debts. He admitted speaking to Crowley on the phone but never met him. He admitted taking referrals from Alliance and representing them when his own interest was involved e.g. defending an ejectment action against the landlord , and forming a corporation for them. In addition Respondent never gave Crowley an address or phone number other than Alliance's and his pleadings in the Supreme Court action against Crowley contained that same address.
The lawyer denied any misconduct and responded to the complaint with a multi-facted attack:
Respondent, pro se, opposes the petition in its entirety, arguing, among other things: his demand for discovery and an adjournment was wrongfully denied; prosecutorial misconduct by the Committee; the findings of misconduct were not supported by the credible evidence; reversible errors were committed by the Referee; the complaint was five years old when acted upon and the Committee had prior notice of his intention to sue the complainant but did nothing; and a vigorous defense does not constitute lack of remorse or an admission of guilt as found by the Referee.
In reply, the Committee argues that respondent has restated as "reversible error" virtually every objection and argument made by him and rejected by the Referee and the Hearing Panel, including the claims of wrongful denial of discovery, prosecutorial misconduct, coaching of the witness, and denial of his ability to question Mr. Crowley about his "alternative lifestyle." It points out that, although respondent was given ample opportunity to present his defense, he declined to call any witnesses or to testify on his own behalf, instead offering only one exhibit, a blank Committee complaint form. The Committee also contends that respondent has failed to offer any support for his allegation that the witness's testimony was "doctored" and cites no case law to support his claim that his defenses to the charges are valid or that reversible errors were made. Respondent did not present any evidence in mitigation and, as he did before the Committee, has not offered any legal argument or precedent to support a less severe sanction.
The evidence shows that respondent threatened to sue Mr. Crowley when he advised respondent that he would complain to the Committee about respondent's failure to bring a collection suit on his behalf as promised. Within weeks of receipt of Crowley's disciplinary complaint, respondent followed through with his threat and sued Crowley for $1.75 million specifying that the damages were due to the fact that Mr. Crowley had complained to the Committee about him. Respondent then served Crowley with interrogatories and a motion for summary judgment, which, without notifying Crowley, he never placed on the court calendar.
The attorney had been subject to four prior admonitions, had been abusive in his cross-examination of the complainant and "lacked candor" in the disciplinary process. The court found that the suspension "gives notice to the bar that such behavior will not be tolerated." (Mike Frisch)
Nix To Turkey Hunt
A recent opinion of the Judicial Ethics Advisory Committee in Florida:
Judge knew all 5 siblings in a family before they ended up in litigation over a family trust. Judge presided over the litigation, which was concluded in 2004. Recently the husband of one of the prevailing litigants asked Judge and others to join him on a 2-day turkey hunt on one of the family ranches. Judge and the others hunters would not be asked or expected to pay for the hunt. Although Judge declined the invitation, Judge expects to be asked again next year. Judge therefore sought an opinion from the Florida Supreme Court's Judicial Ethics Advisory Committee regarding whether he ethically may accept the invitation, should it be offered.
A majority of the committee answered the question in the negative.
Hat tip to sunEthics. (Mike Frisch)
Suspension For Fraud Conviction
The Wisconsin Supreme Court suspended an attorney for three years in the wake of a criminal fraud conviction. The court described the facts that established the criminal conduct:
The plea agreement said that between November 2002 and November 2003, Attorney Hughes' creditors wrote off as bad debt or referred to collection agencies approximately 28 of Attorney Hughes' credit card loans, resulting in over $270,000 in principal debt plus additional unpaid fees and interest. The federal sentencing transcript indicates that Attorney Hughes conspired with his girlfriend to use the proceeds of the credit card loans, without repayment, to purchase a house in Gulf Shores, Alabama. According to the plea agreement, Attorney Hughes agreed to pay restitution as ordered by the federal court for at least the principal amounts owed to the credit card issuers and their assignees for the credit card debts he incurred in the course of the conspiracy to which he pled guilty. The court ordered $146,100 in restitution.
The mitigation evidence was found to justify a lesser sanction of disbarment:
After reviewing the federal sentencing transcript, the OLR recommended a three-year license suspension. Although the offense to which he pled was serious, the mitigating circumstances discussed at sentencing involved Attorney Hughes' immediate cooperation with authorities. In short, he cooperated fully in the investigation and successful prosecution of the co-conspirator and provided documentary evidence to corroborate his account of the scheme. The federal prosecutor observed that Attorney Hughes' assistance was significant, his testimony was truthful, and he had accepted responsibility. The prosecutor said that Attorney Hughes should be rewarded for the extraordinary steps he had taken to pay a significant amount of restitution after being charged and before sentencing.
The web page of the Ohio Supreme Court summarizes a disciplinary case decided today:
The Supreme Court of Ohio has suspended the law license of [an] attorney for two years, with 18 months of that term stayed on conditions, for neglecting a legal matter entrusted to him by a client and then avoiding the client until after the statutory time limit for filing her claim had expired. [His] license has been under an administrative suspension since May 2007 for failure to comply with continuing legal education requirements.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] dealings with his client violated multiple state attorney discipline rules including those that prohibit an attorney from accepting legal work without adequate preparation, failing to competently represent a client, intentionally failing to pursue the lawful objectives of a client and intentionally failing to carry out a contract for professional services.
Among conditions set for [his] reinstatement after the first six months of today’s suspension, the Court directed that he must remain in compliance with a recovery contract with the Ohio Lawyers Assistance Program, serve a two-year monitored probation period, pay $350 in restitution to his client and provide medical evidence that he has been successfully treated for a psychological condition that contributed to his misconduct and that he is able to return to the competent and ethical practice of law.
The court's decision is linked here. (Mike Frisch)
October 13, 2008
Something Rotten In Denmark
A public reprimand--the most severe sanction that could be imposed in light of the resignation from office--was imposed by the South Carolina Supreme Court on a`magistrate for two instances of misconduct. One matter involved the following misconduct:
On August 19, 2004, respondent was about to enter Highway 321 from his driveway when he noticed a pick-up truck traveling toward Denmark at what he thought was a high rate of speed. Respondent estimated the truck’s speed to be 100 miles per hour. Once he entered the highway himself, respondent observed the truck attempting to pass slower vehicles, almost causing some oncoming cars to veer off the road.
Gregory Brown was driving the truck. Brown eventually stopped at a red light in Denmark. Respondent pulled up on the left side of the truck, looked at Brown, and shook his head in a disapproving manner. Brown rolled down the window and asked what respondent was looking at, to which respondent replied, “I’m looking at you,” and made a comment about Brown’s driving. Brown responded that he did not care what respondent thought, to which respondent replied: “You might ought to care, you might run into me at some point.” When Brown asked why, respondent said that he was the municipal judge for Denmark.
The light changed, and as the truck pulled forward, respondent turned right, across the traffic lane and pulled in behind the truck to an adjacent parking lot. According to respondent, he pulled off the road in order to retrieve his cell phone, which had slid off the passenger seat, so he could call police.
As respondent exited his vehicle, he noticed the truck coming backward toward him. Respondent assumed the truck was trying to run over him, reported that it narrowly missed him and would have hit him had he not jumped out of the way. According to Brown, however, he did not know who respondent was or what he was doing, and he drove backwards to keep respondent in front of him in order to see what respondent was doing.
After additional verbal exchange between respondent and Brown, respondent entered his vehicle, drove through a red light, and proceeded to the Denmark police department where respondent reported that someone had tried to run over him. An officer accompanied respondent back to the scene, and a bystander reported that the truck had gone toward Barnwell. The bystander gave them Brown’s license plate number. Respondent then went to the local magistrate’s office and began the process of taking out a warrant against Brown for the offense of threatening a public official.
Brown was stopped by police a short while later in Barnwell. A Denmark police officer brought Brown back to the magistrate’s office where respondent was seeking a warrant.
The presiding magistrate examined the applicable statute and determined that a warrant for the offense of threatening a public official should not be issued and suggested that perhaps another charge would be more appropriate. After some discussion, the officer issued a reckless driving ticket to Brown. The magistrate set bond, and Brown was transported back to his truck. Brown subsequently mailed in a $200 bond, which was forfeited; he was convicted for reckless driving.
Respondent asserted to Disciplinary Counsel that his intention was to dissuade Brown from further dangerous driving that he believed was an imminent threat to other motorists. Respondent acknowledges that reference to his judicial office was not appropriate.
The other charges involved a foreclosure action against marital property held solely in his wife's name. He had attempted to set aside the foreclosure as a purported purchaser from his`wife.
For whatever it's worth, Wikipedia`reports the following about Denmark:
Due to the limited income, which is close to three times less than that of the overall U.S. household, the municipality has had to resort to other revenue-generating means, such as speed traps. The most noted, documented one is located on State Highway 70 near Wisteria Street. Leaving town, the 30 mph through-town speed limit changes to 45 on an uphill curve (conversely, entering town from the 45 mph highway speed, it abruptly changes to 30 mph on a downhill curve) with no notice or warning. The local police wait in a ditch nearby behind a hill looking for cars with no front license plates (which means it is not a South Carolina vehicle). As little as a few miles above speed limit earns a ticket.
"Magic" Explanation Rejected
The South Carolina Supreme Court imposed a two-year suspension in a`bar discipline matter involving charges of misconduct in six matters. The attorney had contended that two findings of fact should be rejected. The court agreed that there was insufficient evidence of a false statement in a motion to withdraw. However, a finding that the lawyer had submitted falsified documents in the disciplinary case was upheld. The court explained:
After reviewing the testimony, we find there is clear and convincing evidence that Respondent allowed the submission of falsified documents to ODC. Respondent’s secretary testified in detail about the circumstances surrounding the faxing of the backdated documents to ODC. She stated Respondent sent her to the courthouse to retrieve the client’s file, and when she returned Respondent told her the documents in question had “magically” appeared. Respondent asked her to sign the letters and fax them to ODC, which she did. Respondent then shredded the originals. In contrast, Respondent testified that he did not produce the documents and had no knowledge of them before they were sent to ODC as he did not review them. He stated his secretary might have fabricated the documents as a means of revenge against him.
Respondent contends the panel applied the wrong burden of proof because, in the report prepared by the subpanel, it is stated: “We may be unable to determine that ODC has proved Respondent fabricated the documents, however, the totality of the evidence makes it difficult for us to free the Respondent from any responsibility.” Respondent asserts this shows a mere preponderance of the evidence standard was applied rather than a clear and convincing evidence standard. We disagree. The subpanel (and panel) found Respondent was involved in the submission of the admittedly falsified documents, regardless of whether Respondent personally prepared them.
This conclusion is supported by the following evidence relied upon by the subpanel, which noted (1) the format of the falsified letters does not match the format typically used by Respondent’s secretary, such as the signature line and the initials indicating who prepared the letter; (2) the properties on the electronic version of the documents indicate they were prepared at a time when the secretary’s cell phone records show she was not in the office; (3) Respondent’s disciplinary history reveals a pattern of attempting to place blame on his staff for his own conduct; and (4) Respondent testified falsely regarding a number of inconsequential issues, only to retract his testimony when ODC pointed out his contrary statements in his prior appearances. Accordingly, we find there is clear and convincing evidence indicating Respondent was involved in the submission of falsified documents to ODC, which is sanctionable conduct.