Friday, October 23, 2009

30 Year Law School Reunion

Posted by Jeff Lipshaw

I'm attending my 30 year law school reunion (Stanford, '79) and coping.  Several of us were standing in the courtyard of the law school, noting that it was pretty easy to spot our classmates:  there is just a certain look to the mid-fifties; not quite doddering, but clearly having been around the bases several times.  In 1998, when I was a mere child of 43 or 44, one of my then-law partners, who was 58, and a former Division I varsity baseball player, told me that the most significant change (read: decline) was in the ten years between 45 and 55.  Sorry, guys, but I haven't yet met the Dorian Gray of our law school class.  Everybody shows some ravage of age, whether it's thickness, lines, exposed pate.  I didn't remember thinking that even five years ago.  That's not that people don't look good:  they look good for 55.  But that ain't 25, and it ain't even 45.

Other notes.  Stanford Law School, despite the budget issues facing everybody, is building a new building, very similar in purpose, I think, to the edifice I see most days down on Mass. Ave. in Cambridge.  The complaint is lack of space, and I wondered about that, because neither the faculty nor the student body is significantly larger than when I was in school.  It only took about five minutes of walking the halls to see why there is a problem.  Thirty years ago, there were very few "centers" or "programs."  Now the entire basement hallway that housed the law review (I think that's where it was - I didn't get there much) is taken up by the Center for Law and the Internet.  The space that used to house the alumni relations people is taken up by the public interest law center.

IMG_0044 Part of the building campaign is a completed law/graduate residence complex, funded by a $35 million gift from Charles Munger, of Berkshire Hathaway and Munger, Tolles fame.  Lunch today was a dedication of the William Rehnquist Courtyard (in honor of a noted alum), in which his mentee and successor, John Roberts, spoke briefly and eloquently.  Plus there was a swarm of what were either Secret Service agents or agents from The Matrix - complete with dark suits, ear pieces, and sunglasses. (You can see from the picture, snapped with my iPhone, that I was not sitting in the VIP section.)

Finally, not many people who are here are doing the same thing they did upon graduating.  I don't know if that's a change from prior classes or not.

October 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Gang-Related Misconduct

The Colorado Presiding Disciplinary Judge approved a conditional admision of misconduct and imposed reciprocal discipline of a public censure based on the sanction of the California Supreme Court. The attorney had served in a District Attorney's Gang Protection team and had failed to produce statements to a defendant in a homicide prosecution in violation of the California Penal Code.

Recordnet.com reports here on the underlying criminal case. (Mike Frisch)

October 23, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Third DUI

An attorney who had a long history of alcohol abuse was suspended for six months by the Iowa Supreme Court for his third alcohol-related driving offense. The court noted that the alcohol problem had not been found to affect his representation of clients, although he previously had been admonished for appearing in court under the influence. The court noted that there is no standard sanction for such misconduct but imposed a shorter period of suspnsion than the nine months proposed by its Attorney Disciplinary Board. (Mike Frisch)

October 23, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, October 22, 2009

Ethics Of Endorsement Of Judicial Candidates

The web page of the Ohio Supreme Court notes:

A recent advisory opinion from the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline advises judicial candidates to be specific when referencing a political party endorsement in person or in advertising.

Opinion 2009-8 addresses the following question: “Is it proper for a judicial candidate to use the phrase ‘Democratic Party Endorsed’ or ‘Republican Party Endorsed’ in judicial campaign advertisements, such as on billboards or yard signs?”

The opinion finds that: “Throughout a judicial campaign, a judicial candidate may truthfully state in person or in advertising that he or she is ‘Endorsed by (or a nominee of) the Democratic Party’ or ‘Democratic Party Endorsed (or nominee)’ or ‘Endorsed by (or a nominee of) the Republican Party’ or ‘Republican Party Endorsed (or nominee)’; provided that the phrase identifies which political party entity endorsed the candidate, for example, the county, state, or national Democratic or Republican Party.”

The opinion also notes that a judicial candidate’s statement that he or she is a nominee of or endorsed by a political party is treated differently under the Ohio Code of Judicial Conduct than a judicial candidate’s statement that he or she is a member of or affiliated with a political party.

Several examples of case law refer to endorsement statements found to be either false; or were truthful, but misleading or deceiving, pursuant to Judicial Conduct rules.

(Mike Frisch)

October 22, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Computer Technician Discovers Pornography, Lawyer Convicted And Disbarred

The New York Appellate Division for the Third Judicial Department has disbarred a New South Wales attorney convicted in Australia for possession of child pornography. The attorney has already been disbarred on consent by the New South Wales Court of Appeal. The New York court accepted his resignation in imposing disbarment.

Details about the lawyer and the criminal case may be found in this Wikipedia entry:

On 4 July 2006 [the attorney] requested the information technology department of his office to repair his personal computer which had been experiencing technical problems. During repairs, the technician examining the computer discovered a sub-directory (folder) containing evidence of files associated with child pornography including 31 video files and links to additional material on a removeable hard drive.

The technician notified his superiors and [the attorney] was subsequently arrested on 6 July 2006. He was then also suspended from his duties, but remained on full pay until his formal resignation in January 2007. His annual base remuneration amounted to $ 221,000.

[The attorney] pleaded guilty to possessing child pornography during his court appearance at Sydney's Downing Centre Local Court. Victorian chief Crown prosecutor Jeremy Rapke said [he] had collected in excess of 29,000 pornographic images including 433 pictures and 31 videos depicting children. He said, they were of "the worst and highest grade pornography" involving "humiliation and sadistic bestiality".

Fifty-nine members of the community provided references of their former colleague's good character to the court. This included a statement by the state's most senior Crown Prosecutor, Mark Tedeschi QC, a colleague... of 26 years.

(Mike Frisch)

October 22, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Getting Reciprocal Discipline Right

The District of Columbia Court of Appeals has rejected a recommendation of Bar Counsel and the Board on Professional Responsibility to increase a Massachusetts public reprimand to a 30 day suspension. The misconduct found in Massachusetts involved mishandling of a political asylum matter. After new counsel was retained, the client was deported.

In the D.C. reciprocal matter, Bar Counsel initially sought a 60 day suspension, contending that the record established serious prejudice the client. The attorney pointed out that there was no prejudice finding in Massachusetts. The Court: "We agree with [the attorney." Further, the court concluded that a non-suspensory sanction was within the range of possible outcomes in an original matter. The court instructed the board to reprimand the attorney.

I handled the vast majority of D.C. reciprocal matters for over a decade. My motto was always "The Bar Counsel that lives by the upward departure dies by the downward departure." The court gets it right here. It is also noteworthy that the attorney has been on inactive status since 1999 and thus has no D.C. clients. What point would be made with a meaningless 30 day suspension in a jurisdiction where he has not practiced in a decade? (Mike Frisch)

October 22, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 21, 2009

Religious Legal Theory Symposium at Seton Hall


“Religious Legal Theory: The State of the Field”
Seton Hall University School of Law

Newark, New Jersey

Thursday-Friday, November 12-13, 2009

Seton Hall Law School will host Religious Legal Theory: The State of the Field, a conference to assess the state of the field of religiously-informed legal theory and its contributions. 

Through presentations and in-depth discussions, presenters and participants will help consolidate the advances and chart new directions for religious perspectives on law and public policy. The conference will feature five plenary speakers, and twenty-four presentations of papers by legal scholars representing a wide range of religious traditions.

Visit http://law.shu.edu/religiouslegaltheory for the full program and registration information.

For more information, please contact Professor David Opderbeck at david.opderbeck@shu.edu or Professor Angela Carmella at angela.carmella@shu.edu.

[Jeff Lipshaw]

October 21, 2009 | Permalink | Comments (0) | TrackBack (0)

"Adult Gig" Craigslist Post Leads To False Statement Charges

The Illinois Adminstrator has filed a disciplinary complaint alleging three counts of misconduct against an attorney. Two of the matters allege misconduct in immigration matters. The third relates to a Craigslist posting:

In May 2009, Respondent was a sole practitioner who shared office space with several other attorneys.

On May 28, 2009, Respondent logged onto the Internet at his law office at 134 N. LaSalle, Suite 1800, Chicago, Illinois through AT&T Internet Services, the Internet provider of the attorney who had an office in the same suite and building and from whom Respondent was then renting an office. At approximately 1:25 p.m. Respondent accessed the website, "Craigslist.org," ("Craigslist") and posted an ad in the "Adult Gigs" section of the classified advertisements of Craigslist. The title of the post was "Loop lawyers hiring secretary/legal assistant." The post read as follows:

Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.

§

Location: Loop

§

It’s NOT ok to contact this poster with services or other commercial interests

§

Compensation: Annual salary negotiable

The Craigslist post by Respondent...provided that replies were to be made to gigs-cdxwa-1193445671@craigslist.org. Subsequently, replies to the ad would be forwarded via Craigslist to Respondent’s immigration law office’s e-mail address.

On or about May 28, 2009, at 10:26 p.m., [an applicant] sent Respondent an e-mail response to Respondent’s posting...[her] response included her employment history. Also, although [she] found Respondent’s request for a description of her physical features unusual, she believed Respondent was seeking an attractive secretary. At the end of her response, she did included a photo, her height, clothing size and her measurements.

Between May 28, 2009, at 10:26 p.m. and May 29, 2009, at 9:23 a.m., Respondent received and read [the applicant's] e-mail. On May 29, 2009, at 9:23 a.m., Respondent responded by e-mail to [her] e-mail. Respondent’s response read as follows:

[Applicant],

Thank you for your interest in the job. I just wanted to give you some more info about the job and see if you are still interested in interviewing.

Our law firm is a boutique firm, concentrating solely in immigration law. The name of the law firm is Chowhan Law, P.C. You can see the website at www.chowhanlaw.com. You would be working with the two partners of the firm. Your duties will include the general secretarial work and legal work. The legal work will include filling out visa applications, etc. As mentioned in the posting, you will have an annual salary which will depend on your experience and other factors, the range will be from $50,000 to $75,000. In addition, we provide several benefits such as medical, dental, retirement, life, disability.

As this is posted in the "adult gigs" section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.

If you think you’re comfortable so far, please let me know and we can proceed with the process.

The next step is to set up an interview. When are you available to interview? I am free to interview today. Please let me know what your availability is.

Lastly, we’ve actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you’re comfortable with that aspect, because I don’t want you to do anything that you’re not comfortable with. So since that time, we’ve decided that as part of the interview process you’ll be required to perform for us sexually (i didn’t do this before with the other girls i hired, now i think i have to because they couldn’t handle it). Because that aspect is an integral part of the job, I think it’s necessary to see if you can do that, because it’ll predict future behavior of you being able to handle it when you have the job.

If you’re still okay with everything, let me know what you’re availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.

Samir

[The applicant] was frightened by Respondent’s response and did not reply to Respondent’s e-mail.

On or about June 1, 2009, [the applicant] sent a request for investigation to the Administrator of the Illinois Attorney Registration and Disciplinary Commission, attaching a copy of Respondent’s Craigslist post, her e-mail reply, and Respondent’s e-mail response...

As a result of [her] request, on June 3, 2009, the Administrator docketed an investigation...

On June 16, 2009, counsel for the Administrator mailed a letter to Respondent attaching the request for investigation...and requesting Respondent respond in writing within fourteen days. Respondent received the request shortly thereafter.

On July 22, 2009, Respondent sent a response to 09 CI 2310 via facsimile to counsel for the Administrator.

In his response to counsel for the Administrator, Respondent stated as follows:

…It appears that somebody with malice [sic] intentions has used my business information to post the advertisement on Craigslist. I did not post the advertisement for a legal secretary…

Respondent’s statement that he did not post the advertisement on Craigslist...was false, and Respondent knew it was false when he made it, because Respondent did in fact post the advertisement on Craigslist and knew when he responded to the ARDC investigation that he had in fact posted the advertisement.

On September 22, 2009, Respondent appeared for a sworn statement at the Chicago office of the Attorney Registration and Disciplinary Commission. At that time, Respondent was sworn upon his oath. In his statement, Respondent acknowledged that he posted the May 28, 2009 Craigslist advertisement and sent the May 29, 2009 responsive e-mail to [the applicant]...

The attorney is charged with making a false statement in response to the complaint as well as conduct that tends to bring disrepute on the legal profession.  (Mike Frisch)

October 21, 2009 in Bar Discipline & Process | Permalink | Comments (3) | TrackBack (0)

Anonymous Bar Complaint Is "Troubling"

The Louisiana Attorney Disciplinary Board has rejected a hearing committee's proposed suspension of an attorney and imposed a public reprimand. The attorney had filed two motions to recuse a judge and had asserted a variety of claims of  personal bias and prejudice against him on the part of the judge: rude and unprofessional tendencies, behavior towards him that "potentially undermine[d his] ability to practice law and earn a living," rude behavior from the judge's staff, false accusations against him to cause his termination as an assistant district attorney and related claims.

The board sustained a finding that the contentions in the motions violated Rule 8.2(a) when judged by an objective standard: "the [attorney] both knew, or should have known, of the falsity of the allegations which concerned [the judge's] qualifications and integrity." The committee had found as a fact that the judge "does not harbor racial animus, prejudices or bias, and that he conducts himself in a fair and impartial way."

In assessing sanction, the board gave "great weight" to a conversation between the judge and the attorney's superior in the district attorney's office about the attorney: "The Board finds the subject and nature of this conversation to be highly unusual, given the fact that [the judge] did not have authority to manage [the district attorney's] office. Moreover, this incident has proven to be very helpful  to the Board in understanding the Respondent's subjective belief that [the judge] harbored a racial bias towards him as a professional." The board was "also troubled by the fact that the complainant in this matter has remained anonymous, and as late as the oral argument, the Respondent did not know with certainty who had filed the disciplinary complaint against him." (Mike Frisch)

October 21, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

More Than Doctor's Note Needed To Justify Stay Of Disciplinary Proceeding

An Illinois hearing board has recommended disbarment based on an attorney's criminal conviction for conspiracy to commit securities fraud. The underlying misconduct:

From September 1998 through October 1999, Respondent was a consultant specializing in mergers and acquisitions of publicly traded companies. In December 1998, Respondent became a shareholder of Global Datatel, Inc. ("Global"). Global, which was a publicly traded company in 1999, purported to have expertise in the areas of Internet/intranet implementation, e-commerce, enterprise resource planning and Y2K testing and compliance. eHola.com Online Service Network ("eHola"), a division of Global, ostensibly offered integrated Internet access service and Spanish content information to individuals in North, Central, and South America.

Beginning in February 1999, Respondent conspired with other Global shareholders, the president of eHola, and the president of an Internet website to disseminate or cause the dissemination of false and misleading information about Global and eHola in order to artificially raise and maintain Global's stock price and trading volume. Among other acts in furtherance of the conspiracy, Respondent and his co-conspirators caused Global to issue a press release falsely stating that Global maintained offices that it did not maintain. They also caused Global to issue a press release falsely stating that eHola had a substantial number of subscribers, which it did not. From January 1999 to April 1999, Respondent and his co-conspirators caused the price of Global stock to rise from $7.25 per share to a high of $16.84 per share, increasing the market capitalization from approximately $163 million to approximately $378.8 million. By November 1999 the price of Global stock dropped to approximately $3 per share.

The hearing board found that the attorney's health claims were not sufficiently documented to warrant a postponement of the hearing:

...Respondent provided a letter from his treating physician that stated Respondent was recovering from a "normally deadly bout with the bacteria MRSA." In addition Respondent was suffering from circulatory, respiratory, and heart problems in addition to Gout. Respondent's physician also stated as a result of his health difficulties, Respondent could not meaningfully participate in these disciplinary proceedings.

The Administrator agreed to a short stay of the proceedings provided that Respondent continue to provide medical documentation of his health issues. Accordingly, the Chair stayed the matter until March 26, 2009. The Chair also directed Respondent to provide additional medical documentation to support any further stay on or before March 23, 2009.

Respondent failed to file any additional medical documentation and failed to participate at a pre-hearing conference held on March 26, 2009. By order that same day, the Chair lifted the stay and set the matter for hearing on June 17, 2009. As Respondent had failed to file a responsive pleading to the Administrator's Complaint, the Chair also granted the Administrator's Motion to Deem the Allegations of the Administrator's Complaint Admitted Pursuant to Commission Rule 236, thereby limiting the evidence presented at the hearing to matters of aggravation and mitigation.

(Mike Frisch)

October 21, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Do The Wrong Thing

An attorney was suspended for six months with all but 30 days deferred by the Louisiana Supreme Court. The attorney had practiced while suspended for non-compliance with CLE obligations. He was retained on behalf of a criminal defendant by a bail bonding company called Do The Right Thing. He entered an appearence and filed pleadings without the client's knowledge and consent. He obtained discovery from the prosecutor and caused some delay in transmitting the information to counsel retained by the client.

The court characterized the misconduct as "grossly negligent" and noted the vulnerability of the client. The attorney had no record of prior discipline. (Mike Frisch)

October 21, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 20, 2009

The Crime and Death Scene Cleaning Business

Posted by Jeff Lipshaw

Every honest occupation is an honorable one, but you kind of wonder how people happen to get into some.  I wonder about it when I see a commercial for the Orkin man.  Do people grow up thinking about getting into that line of business?  When we lived in Ann Arbor, we had an exterminator by the name of Mr. Roache, who had taken over the business from his father, and that all seemed pretty fated to me.  (If you live in the area, by the way, he was first-rate, and I want the federal government to know this plug is entirely gratuitous on my part - Mr. Roache fully earned the praise by the way he handled both the carpenter bees in the eaves, and the yellow jackets in the porch steps back in 1998.)

I was driving back from my weekly pastime in the bucolic exurbs of Boston (taking riding lessons), and got onto to Route 128 to find myself behind a van indicating it was from the "Crime and Death Scene Cleaning" company, with a logo of a hand wiping a bright red swatch.  Ick.  Some of you might want to tuck this piece of information away for future reference.

October 20, 2009 in Law & Society | Permalink | Comments (2) | TrackBack (0)

The Twenty Percent Rule

The Maryland Court of Appeals has held that a proffered expert witness in a medical malpractice case was properly prevented from testifying at trial "when the expert devoted annually more than 20 percent of his professional activities to activities that directly involved testimony in personal injury claims."

The proposed witnessed had been educated in France and had practiced interventional neuroradiology (the area of practice at issue) for 45 years prior to his retirement in 2001. He had performed the medical procedure over 30 times, although the procedure is now done with a stint that the witness had never used. He testified that he is retained in 3-4 cases a year and devotes approximately 50 hours a year to expert witnessing. His only income is his expert fees and his pension. He testified that he devotes over 500 hours to professional activities such as reading journals, attending conferences, observing procedures and the like.

The court interpreted the so-called Twenty Percent Rule (which derives from a Maryland statute) to conclude (contrary to the Court of Special Appeals) that the witness may not testify. Activities are considered to be "professional" when the function "contributes to or advances the profession to which the individual belongs or involves...active participation in that profession." Excluded are activities "undertaken for personal or leisurely reasons." Reading, attending and observing does not count.

The rule "allows a qualified doctor to continue to utilize his or her expertise, but prevents him or her from launching a second career as purely an expert witness. The primary professional activities (at least 80 percent) must still be in the medical profession that he or she is professing."  (Mike Frisch)

October 20, 2009 in Comparative Professions | Permalink | Comments (0) | TrackBack (0)

Charges Of Incompetence, Confidentiality Breach, Rejected

A Louisiana hearing committee found no misconduct and has recommended dismissal of bar disciplinary charges brought against an attorney appointed to defend a death penalty case. The attorney's second chair in the case was granted leave to withdraw and the attorney was sole counsel at trial. After conviction, the defendant was able to secure habeas corpus relief based on a claim of ineffective assistance of counsel: "The court's opinion was not flattering of [the attorney's] representation. There was detailed coverage of the reversal."

 The attorney then provided extensive confidential information to the prosecutors in aid of their motion for new trial. The Office of Disciplinary Counsel brought charges, contending that "[s]olely and exclusively because his feelings had been hurt and his ego bruised, [he] reached out to his former opponent...and purported to disgorge himself of any and all information allegedly given to him by his client."

The committee found that the lapses identified (late engagement of experts and failure to interview an eyewitness) did not amount to ethical violations relating to competent representation. The committee also found  that the attorney had not either presented perjured testimony or a false affidavit in the prosecutor's motion.  The committee further found that the disclosure of confidential information was permissible under the "self defense" exception to the duty of confidentiality and that the client had explicitly waived any claim of privilege. 

As with the last Louisiana post, I suspect that this matter is not finished. The committee simply states its legal conclusions without extended analysis. In particular, there may be an issue of the proper interpretation of the duty of confidentiality, which authorizes a response to defend a claim but not explicitly disgorgement of all protected information.

Perhaps the disclosure of all confidential information can be justified by the waiver, but it reflects an understanding of ethical behavior that differs from mine. Former clients (even those who criticize) still are owed diligence in the protection of confidential information. Anger at the former client may be fully justified, but it is a dangerous emotion. (Mike Frisch)

October 20, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Federal Practice Not Unauthorized

A Louisiana attorney was suspended for three years, with all but 18 months stayed, for misconduct in connection with class action litigation. He applied for reinstatement. The fighting issue in the reinstatement hearing was whether or not he had engaged in the unauthorized practice of law while suspended. The evidence established that he had continued to represent clients in federal court in matters that had involved application of state law.

A majority of the Louisiana Attorney Disciplinary Board agreed with a hearing committee that the attorney's continued federal practice did not violate rules governing unauthorized practice and has recommended reinstatement. There are dissents. One dissent suggests that the attorney had immediately made efforts to circumvent the order of suspension; another notes that the issue is one of first imprssion in Louisiana and relies heavily on a Pennsylvania decision.

I would guess that the Office of Disciplinary Counsel will contest this legal conclusion before the Supreme Court. (Mike Frisch)

October 20, 2009 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Two Brothers, One Removed

The New York Court of Appeals on review of the proposed removal of Supreme Court and New York City Civil Court justices (who are brothers) agreed with its Commission on Judicial Conduct that removal of one was appropriate but disagreed as to the other.

The removed justice had accepted a loan from his campaign manager and failed to keep his promise to repay: "His evasiveness creates a strong inference that he was dishonest in his dealings with [the campaign manager] and her attorney with respect to [a] requested affidavit, and in his testimony in [the judicial misconduct] proceedings."

The court was unconvinced that the other justice had deliberately omitted  required information from his financial disclosure statements. The court was "unable to conclude by a preponderance of the evidence that any of the omissions was intentional." The court imposed an admonition.

The court's decision is linked here. The commission's determination and proposals for removal are linked here and here. (Mike Frisch)

October 20, 2009 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, October 19, 2009

Misconduct Discovered By Client Review Of Court Web Page

An Illinois hearing board has recommended a two-year suspension without automatic reinstatement of an attorney hired to defend a lawsuit. The client discovered the neglect through the court's web site:

In September 2008, Kenyon [the client] discovered from the circuit clerk’s website that the Respondent had missed a few court dates and that a default judgment had been entered against Kenyon because of his failure to appear. Kenyon then tried to reach the Respondent by telephone without success. The Respondent did not reply to Kenyon’s messages. Kenyon also went to the Respondent’s office and left a note under the door. He noticed that there were numerous other notes under the door. The Respondent did not reply to Kenyon’s note. A few days later, Kenyon saw on the circuit clerk’s website that the Respondent had filed (on September 9, 2008) a motion to vacate the default judgment. However, Kenyon had no contact with the Respondent about the motion. About two weeks later, Kenyon went to the Respondent’s office and found it empty.

Kenyon then hired another attorney, Bret Kepley, to represent him in the above case. Mr. Kepley filed his appearance on October 31, 2008.  Mr. Kepley has kept Kenyon informed and they have met "numerous times." Kenyon said that the matters against him in the case have been resolved.

Finally, Mr. Kenyon said that the Respondent has not refunded the $750 retainer that Kenyon paid.

The hearing panel also described the efforts to serve the accused attorney:

Respondent left the Champaign area and was living in an extended-stay hotel in the St. Louis, Missouri area.  In March 2009, Burton [a  bar investigator] and another investigator went to St Louis in order to locate the Respondent. They found that the Respondent was registered at a hotel in Bridgeton, Missouri. They went to that hotel, introduced themselves, and asked the desk clerk for the Respondent’s room number. The desk clerk would not provide the room number, but did connect Burton to the Respondent’s room by telephone from the front desk.

Burton heard the telephone ring and then a man answered. Burton identified himself and asked "is this Gregory German." The man replied "yes, it is." Burton said he recognized the voice as that of the Respondent, based upon the conversation Burton had with the Respondent in April 2008. Burton asked the Respondent to come to the lobby so that Burton could personally serve him with the disciplinary complaint. The Respondent said he did not want to go to the lobby, and suggested that Burton leave the complaint at the front desk. Burton explained to him that the complaint had to be personally served on him. The Respondent again refused to go to the lobby, and he hung up. Burton waited in the lobby for about one hour, but the Respondent did not appear. Burton then exited the hotel without leaving the complaint at the front desk.

The complaint in this matter was sent by certified mail to the Respondent’s registered address and to the hotel in Bridgeton, Missouri. A signed return receipt from the mail sent to the hotel was later received at the ARDC office. Burton looked at the signature on the return receipt, which was some kind of "lines and scribble," and said it was "exactly the same as on previous documents that we had on file that we received from Mr. German."

We have deleted the citations to the transcript and exhibits. (Mike Frisch)

October 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Tennessee Bar Admission Change Proposed

The Tennessee Supreme Court has called for comments on a proposed revision to its rules governing bar admission. If adopted, an applicant will no longer be required to aver that an intent to practice in Tennessee. The order and propored new rule are linked here. (Mike Frisch)

October 19, 2009 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Time To Suspend

An attorney had pleaded guilty to operating an unlicensed money transmitting business was suspended by the New York Appellate Division for the First Judiicial Department based on the plea. The court summarized the factual basis for the plea:

On December 1, 2006, respondent pleaded guilty in the United States District Court for the Eastern District of New York to a charge of operating an unlicensed money transmitting business in violation of 18 USC § 1960(a), a federal felony. Respondent admitted to having provided loans to certain Yemeni immigrants, using checks in amounts of less than $10,000, with knowledge that the checks were intended for deposit in Yemen. On occasion, he received money in exchange for the issuance of checks for the sole purpose of converting cash to checks.

The Departmental Disciplinary Committee (the Committee) advises that additional criminal charges against respondent have not been formally dismissed, and his sentencing remains pending. Respondent has entered into a cooperation agreement with the Office of the United States Attorney for the Eastern District of New York and has testified for the Government against his co-defendants, and may be a witness in cases that remain to be tried, all of which involve allegations of money smuggling and loan sharking, with Yemeni immigrants being the alleged victims.

The court rejected the suggestion that suspension was inappropriate prior to sentencing:

Respondent has pleaded guilty to a federal felony and the "possibility" of his moving to withdraw his plea neither affords any basis to refrain from determining his conviction a "serious crime" nor from suspending him immediately. If his conviction is subsequently vacated, any disciplinary sanction may be revoked.

(Mike Frisch)


October 19, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

To Suspend Or Not To Suspend

An attorney admitted to practice in 2002 filed suit in state court on behalf of a client who alleged that his employer had released his confidential medical records. The defendant had the suit removed to a federal court where the attorney was not admitted. The attorney thereafter dropped the ball and the case was dismissed. The attorney failed to notify the client and initially ignored an order in the ensuing bar discipline case.He thereafter had fully cooperated in the bar matter.

The Louisiana Supreme Court adopted the sanction proposed by its Attorney Disciplinary Board and imposed a fully-stayed one year suspension. The attorney will be subject to probation for one year. The court found aggravating factors but noted that the attorney (who accepted the matter while working primarily as a public defender) was inexperienced.

Three dissenting and concurring justices would impose a period of actual suspension. The most extensive of the three is linked here. (Mike Frisch)

October 19, 2009 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)