June 16, 2009
Misconduct Findings Vacated
An attorney who was reprimanded for ethical violations in a divorce case appealed to the Utah Supreme Court. Although the court concluded that the review sought was a petition for extraordinary relief rather than an appeal, the court held that the attorney had been denied the right to cross-examine the complainant at a hearing on his exceptions after an initial hearing had resulted in findings of misconduct. The plain language of the Utah rules allow for cross-examination of an adverse witness called at the exceptions hearing. The court further found that the panel chair had properly ruled that a favorable witness, who could have been called at the initial (or screening) hearing, could not testify at the exceptions hearing. The findings of misconduct were vacated and the matter was remanded for a new exceptions hearing. (Mike Frisch)
June 15, 2009
The Pennsylvania Supreme Court ordered the reinstatement of an attorney who had been suspended for two years in 2006.The misconduct, which involved misuse of entrusted funds, had been the product of his alcoholism. The principal issue in the reinstatement proceeding was his efforts at recovery. He had achieved five years of sobriety as of last Saturday. He had supporting testimony from his AA sponsor, attorneys in his community, a deputy sheriff and his wife, also an attorney in recovery for addiction issues. He also had been employed as a judicial clerk for approximately 18 months. The judge was "[o]ne of the most persuasive witnesses" on his behalf. (Mike Frisch)
Court Considers Source Of Complaint As Mitigating Factor
A New York attorney formed a corporation for the purpose of bidding on a HUD contract to provide closing agent services on the sales of previously foreclosed properties. The corporation consisted of himself and a non-lawyer, who owned a majority share of the corporation. The lawyer was paid an annual salary and fee for his services as general counsel.
They won the HUD contract and the nonlawyer set up an office in Buffalo.The nonlawyer administered the HUD contract without supervision from the lawyer. The nonlawyer was a joint signatory on the trust account and the closings were attended by nonlawyer employees of the corporation. The lawyer also set up a separate law firm that administered a HUD contract in the same manner.
The lawyer was charged with aiding the unauthorized practice of law. The New York Appellate Division for the Fourth Judicial Department affirmed a referee's finding of misconduct. The services were "routinely performed, were of the character usually performed by lawyers, and were performed pursuant to a contract that required an admitted attorney as a necessary presence."
The court imposed a censure, noting that the complainant was not an unhappy purchaser, but a losing bidder on the contract. The services were performed in a competent manner and the lawyer had a previously unblemished record.
This link will take you to the court's web page. The case is Matter of Garas, filed June 12, 2009. (Mike Frisch)
Random Audit Leads To Discipline
In a matter that was initiated as a result of a random audit of an attorney's trust account, the Vermont Professional Conduct Board imposed a public reprimand of an attorney who kept a "positive balance" in his trust account. The conduct involved commingling but not misappropriation. The board found the following facts:
Respondent is a solo practitioner who focuses on real estate work. He was admitted to the Vermont Bar in 1979. In November of 2007, Respondent’s trust account was chosen to be audited as part of the audit program conducted by Disciplinary Counsel. A Certified Public Accountant performed the audit in January of 2008 and as a result of the audit, Disciplinary Counsel opened an investigation into Respondent’s trust account management.
In the course of the investigation, Respondent admitted that since 1978, it has been his practice to “maintain a positive balance” of his own funds in his trust account to provide a cushion against the various errors that, in his experience, can occur in the process of closing real estate transactions. On the date of the audit, there was approximately $1200 of Respondent’s own money in his trust account.
Respondent also admitted that for approximately ten years, not all deposits to his trust account were properly recorded in his trust account ledger, and at the time of audit, the ledger balance was approximately $4000 less that the actual balance in the trust account.
Over the years, Respondent had received and reviewed his monthly trust account statements, but he did not compare or reconcile his bank statements to his trust accounting system. Had he made the reconciliation, he would have realized that the balance on the bank statement was more than the balance reflected in his trust account ledger, and he would have realized that some deposits had not been properly recorded in his ledger.
Respondent cooperated with the audit and Disciplinary Counsel’s investigation and, at the suggestion of the CPA who performed the audit, he has made several changes to his trust accounting system. He has also reconciled his trust account.
Neither the audit nor the investigation revealed any evidence to suggest that Respondent intended to misuse client funds or to put client funds at risk. Respondent has no previous discipline and there is no evidence to suggest that he had a dishonest or selfish motive for maintaining his own funds in his trust account and for failing to reconcile his bank statements to his ledgers.
While the investigation was pending, Disciplinary Counsel received a notice of overdraft to the trust account. This did not result from unethical conduct and in the past six months there have been no other overdraft notices.
More Reciprocal Discipline News
An interesting day for reciprocal discipline fans. The National Organization of Bar Counsel has posted a recent decision summary:
A lawyer may be subject to reciprocal discipline in a jurisdiction where that lawyer is not licensed.
Carl M. Weideman, III, who was licensed to practice law in Michigan in 1992, submitted a letter to the United States Court of Appeals for the Second Circuit stating that Michigan had suspended his law license for thirty days. The immigration practitioner represented that he could not appear before the federal tribunal over that period and requested that the Second Circuit adjourn a matter that he had pending before it. The Second Circuit usually initiates reciprocal disciplinary action following notification of an attorney’s suspension by a state bar or the bar of another court. However, after a preliminary investigation, the Second Circuit decided to refer the matter to its Committee on Admissions and Grievances.
The Second Circuit’s initial review revealed that Weideman had been admonished in Michigan on five prior occasions between 2000 and 2005 for incompetence, lack of diligence in attending to legal matters, and failing to communicate with a client. Several admonishments involved immigration matters. Also, Weideman was the subject of a suspension order that was being appealed at the time that he sent his letter to the Second Circuit. The Second Circuit then had an opportunity to review the report of the Michigan hearing panel that led to the thirty day suspension, Grievance Administrator v. Weideman , Case No. 06-117-GA, Michigan ADB (Michigan March 30, 2007). The hearing panel noted that, during the course of proceedings. Weideman had testified that he had improved his office procedures and practices that led to his previous admonitions in immigration matters, but opined that his testimony was “very vague and unpersuasive” and that the changes that he made were inadequate.
The Second Circuit reviewed Weidman’s license status in the Second Circuit. Court records revealed that one “Carl M. Weideman” had been admitted to the Second Circuit bar in 1998, but the listing did not include “III” after the surname. It should be noted, however, that there is a history of lawyers named Carl M. Weideman who have been licensed to practice in Michigan. See e.g. , http://en.wikipedia.org/wiki/Carl_M._Weideman. Curiously, in an appearance that Weideman III filed before the Second Circuit, he left blank the space for his date of admission to that court’s bar and instead stated that he had been admitted to another unspecified “Federal/State Bar” in 1997. The Committee on Admissions and Grievances was asked to determine Weideman’s actual standing with the Court, perform a more thorough and complete investigation and submit a report with its recommendations for discipline, if any.
Weideman asserted in his initial letter to the Court that he had one appearance of record in a case pending before it. In its preliminary investigation, the Court discovered that he actually had two. He failed to mention a case that had been pending without significant activity since its filing in 2005, Zeft v. Ashcroft , 05-0191-ag. In 2005, Weideman indicated to the Second Circuit that he was considering transferring the case to the Eleventh Circuit, but the docket sheet did not indicate that a transfer request had been filed. A scheduling order was filed in that matter by the Second Circuit in 2007. The Second Circuit also found that it had been critical of Weideman in other immigration cases. For example, in Urita v. Gonzalez , 02-4553-ag, the Second Circuit ruled that his client waived two of major arguments by failing to comply with a federal rule of appellate procedure. In particular, the Second Circuit held that Weideman’s arguments were not supported by substantial evidence, were deficient because he merely recited the substantial evidence standard, and merely made conclusions about evidence without citing the record or connecting the law to the facts. The Court also noted that it had also recently dismissed Gashaj v. Gonzalez , 07-0438-ag, in which Weideman failed to file a certain necessary document. The Court said it was unclear whether the default constituted misconduct, but Weideman did not request a time extension to comply with the requirements, move to withdraw from the case, or respond to the Court’s notification that the omission needed to be cured. In other appeals where defaults occurred, Weideman’s motions for leave to file late briefs consisted of boilerplate verbiage and factual assertions lacking a clear connection to the relief requested.
While the Committee on Admissions and Grievances was investigating, Weideman was suspended in Michigan for four years for serious misconduct involving funds entrusted to him as an executor of an estate and misrepresentations regarding the availability of those funds. Grievance Administrator v. Weideman , Case No. 05-79-GA, Michigan ADB (Michigan September 28, 2007). Weideman loaned estate monies to himself without court approval and with no notice to interested parties in violation of the California Probate Code. He told no one except his father, who was his law partner and was also named Carl M. Weideman, about the loan. The loan did not rise to the level of theft or misappropriation in the eyes of the hearing panel. The panel did not find that Weideman had commingled and misappropriated estate funds, but did say that he violated his fiduciary duty to the estate and its beneficiaries. The ADB reluctantly deferred to the panel’s uncontested findings. The ADB noted that such serious misconduct typically received sanctions ranging from suspension requiring reinstatement proceedings to disbarment. The ADB warned that a secret loan arrangement by a lawyer makes “the likelihood of actual embezzlement…so great” that such conduct should in the future generally be regarded as tantamount to knowing conversion.
The Committee on Admissions and Grievances eventually concluded that Weideman had never been admitted to appear in the Second Circuit. Therefore, Weideman had repeatedly made appearances that violated a local rule requiring counsel of record to be admitted before the Court. Interestingly, Weideman never addressed any of the evidence considered by the Committee. He failed to respond to any of the communications from the Committee and did not participate in the Committee’s proceedings. The Committee considered Weideman’s failure to cooperate to be an aggravating factor and constitute an independent basis for discipline.
The Committee findings raised an issue as to whether or not the Second Circuit had the authority to take disciplinary action when he was not licensed in that jurisdiction. The Committee determined that they could proceed without a hearing, and recommend that the Second Circuit take action against Weideman. The Committee cited Fed. R. App. P. 46(c), which provides that a court of appeals can discipline any attorney who appears before it. Therefore, Weideman was subject to the Court’s discipline despite the fact that he was not a member of the bar of the Court.
The Committee opined that federal courts perform only a “limited review” before imposing reciprocal discipline, citing an old decision, Selling v. Radford , 243 U.S. 46, 50-51 (1917). If Weideman were a member of the Court’s bar, the Michigan suspension would have triggered a reciprocal suspension, the Committee believed, pointing to In re Selling , 295 F. 3d 331 (2d. Cir. 2002). The Committee advised the Court to give the Michigan suspension reciprocal effect, notwithstanding the fact that Weideman was not admitted to the Court’s bar and to further discipline him, in light of his Michigan misconduct and suspension, his repeated improper appearances before the Court in violation of Local Rule 46(d), his failure to cooperate with the committee’s investigation and several aggravating factors. The committee recommended that Weideman should not be permitted to seek admission to the Court’s bar until two years after the completion of his Michigan suspension, nor be permitted to practice before the Court under any circumstances until he successfully sought admission to the Court’s bar.
After receipt of the Committee’s report, the Court became aware of still further discipline imposed on Weideman in Michigan. Grievance Administrator v. Weideman , Case No. 07-162-GA, Michigan ADB (Michigan June 16, 2008). Weideman’s license was revoked and he was ordered to pay restitution in the aggregate of $6700 to three clients. The hearing panel held that, among other things, Weideman’s neglect of an immigration appeal in the Sixth Circuit Court of Appeals. The panel said that Weideman appeared to be preying on vulnerable clients and demonstrated a pattern of neglect in client immigration matters. Because the clients had run out of status, they became fugitives without their knowledge, subject to the possibilities of arrest, detention and deportation. Two of the clients experienced those consequences.
The Second Circuit, taking the revocation into account, held that, although the nature of the discipline imposed by Michigan had changed, no additional proceedings were required. The Second Circuit accepted the committee’s recommendation that Weideman should not be permitted to apply for admission to the Court’s bar until two years after he is in good standing in Michigan. The Court also instructed Weideman that he must disclose its order in any future attorney disciplinary proceeding or bar application, or if required by any bar rule or court order. The Clerk of the Court was directed to release the order on the Court’s website and to make copies of the order available to the public in the same manner as all other unpublished decisions of the Court.
The case is In re Weideman , 07-9035-am (2d. Cir. May 4, 2009).
In D.C., the court mposed reciproal discipline based on Maryland orders imposing sanctions against lawyers who were not admitted in Maryland. (Mike Frisch)
Like Ceaser's Wife
The New Jersey Advisory Committee on Judicial Conduct has recommended a public admonishment of a part-time municipal judge based on findings that the judge's law firm had made a series of four political contributions in the firm name. The judge had claimed that he was unaware of the contributions and should not be held vicariously liable for the acts of his law partner. The committee concluded that he "cannot avoid responsibility by simply contending that he was not aware of [the contributions]" which were in the form of checks drawn on the firm's account. The committee emphasized the importance of avoiding an appearence of impropriaty by judicial officers. (Mike Frisch)
No State Reciprocal Discipline For Federal Contempt
The Georgia Supreme Court dismissed a reciprocal discipline action based on a finding in federal district court that the attorney had engaged in unauthorized practice. The district court found the lawyer in contempt and imposed a fine and fee forfeiture. The Georgia court found that:
Reading our reciprocal discipline rules as a whole...it is clear that the deference given to disciplinary proceedings of "another jurisdiction" is predicated on the existence of comprehensive disciplinary procedures adopted by a licensing jurisdiction, that is, a jurisdiction with authority similar to that granted to this Court to assess a lawyer's perofessional fitness to hold a license to practice law and resolve matters pertaining to a lawyer's professional ethics and responsibility.
Because the federal district court "has no authority to confer or revoke [the attorney's] license to practice law," it is not "another jurisdiction" for reciprocal discipline purposes. The misconduct found by the federal district court may be found in an original proceeding but not under the abbreviated reciprocal procedures.
A dissent (joined by two other justices) would reject the bright-line rule of the majority and impose reciprocal discipline where the federal court provides due process guarentees before imposing discipline. The dissent also finds the disposition inconsistent with prior Georgia case law.
This case should get a lot of attention from disciplinary counsel. If this reasoning catches on, it will have a significant impact on federal-state bar comity. (Mike Frisch)
June 14, 2009
Serious Anger Management Issues
After a defendant charged with assaulting a correctional officer had threatened his attorney, the judge determined that he had forfeited his right to counsel. He was convicted and appealed. The Massachusetts Supreme Judicial Court found that the judge had not made the appropriate inquiry and reversed the conviction:
Any rapprochement between the defendant and his counsel was short lived. In March, 2005, the defendant filed a further pro se motion for the "immediate withdrawal" of his counsel and for the appointment of new counsel to represent him at his trial. In an affidavit attached to this motion, the defendant disclosed that he had sent a blood-smeared letter dated March 6, 2005, to appointed counsel threatening to harm him and his family if counsel did not withdraw from the case. The defendant's affidavit also stated that, if the judge did not allow his motion, then at the "very first chance," the defendant "will physically assault, spit, kick, head-butt, etc." appointed counsel. To emphasize his point, the defendant added that he was "not playing around; this isn't any joke, I'm very serious! I have major mental health deficiencies, and present very serious anger management issues, due to lack of treatment." The defendant concluded his affidavit by noting that he was "not prepared" for his April 27 trial date, and did not have any documents with which to present his defense.
The hearing in this case fell well short of what is adequate in view of the severity of the sanction of forfeiture of the right to counsel. Although the judge knew of the threats made by the defendant, which the judge rightly characterized as serious, in March, 2005, because the defendant disclosed them in his affidavit in support of his motion for appointment of new counsel, the judge did not conduct a hearing on the motion until five months later, in August, 2005. That hearing, which was conducted by video conference, was on the motion for appointment of new counsel; the judge gave no notice that she was considering a sanction, let alone a sanction of forfeiture of counsel. The hearing was perfunctory. Because no notice had been given that the judge was considering forfeiture, there was no evidence presented as to the defendant's psychological condition, the circumstances that led up to the threatening letter, or even defense counsel's willingness to continue as counsel if the alternative was that the defendant would be required to proceed without counsel.
The case is Commonwealth v. Means, decided June 12. (Mike Frisch)