Tuesday, November 3, 2009
A bar discipline matter reported in the current California Bar Journal:
The State Bar Court found that..a former deputy district attorney in both San Joaquin and Santa Cruz counties, committed four acts of misconduct, including acts of moral turpitude and failing to report that a two-count felony indictment was filed against him. Judge Lucy Armendariz rejected the State Bar’s request that [he] be disbarred. She expressed concern, however, that [his] “excessive consumption of alcohol” could “spill over into (his) professional practice and adversely affect (his) representation of clients and (his) practice of law.”
[His] first brush with the law occurred in 1995 when the truck in which he was a passenger was stopped by police because it was weaving from side to side. [His] then-wife was driving. An officer described [him], who identified himself as a deputy DA, as “highly intoxicated and highly agitated at being stopped.” He was suspended from work for five days for misusing his identification, interfering with a patrol officer’s investigation and compromising the relationship between his office and the California Highway Patrol.
The bar court found that his conduct violated a requirement that he uphold the law.
In the second matter, [he] involved himself in insurance fraud and hit and run driving charges filed against his girlfriend by his office. He represented his office in a hearing and made a recommendation that his office had not approved. Armendariz did not believe [his] explanation that he believed his statements were true. She found that [he] committed an act of moral turpitude by telling the court he was authorized to handle the case and by falsely representing the DA’s position.
In another matter, the court found that [he] committed an act of moral turpitude by lying to a police officer, blaming a non-existent individual for an accident he caused while driving drunk. [He] claimed he does not recall seeing the officer at the scene of the accident.
As a result of that accident, [he] was charged with driving under the influence and causing bodily injury to another driver. He did not report the charges to the bar.
[He] was terminated for cause in 2002 by the San Joaquin DA and resigned as a Santa Cruz County prosecutor last year.
[His] “exceptional legal abilities and dedication to public service” were considered as mitigation.
Monday, November 2, 2009
The Georgia Supreme Court affirmed a trial court determination that two criminal defense lawyers and their law firm did not engage in conversion by accepting fees for services rendered to a widow later convicted of the murder of her husband.
The suit had been brought by the administrator of the husband's estate based on a Georgia statute that prevents a murderer from financially benefiting from the crime. The court held that the husband passed good title to property inherited by the surviving spouse. The murderer may use what are estate proceeds unless and until there is a judicial condemnation proceeding. The lawyers were properly paid prior to conviction and are not liable to the estate under a conversion theory.
The Wyoming Supreme Court summarily affirmed a district court's order of summary judgment against two appellants after striking the appeals briefs "due to Appellant's repeated use of disrespectful language against the district court, this Court, and others." The brief cast aspersions at a federal district judge who presided over a federal case involving the appellants, "include[d] innuendo about the potential for bribing judges," and "criticize[d] the members of a particular religion." The court does not give any details:
While a curious onlooker may be interested in the exact nature of [the] criticisms and disrespectful language, this Court will not sully this order, or the Court's files, with the language used...Suffice it to say that [the] digressions were numerous and improper.
One of the appellants is an inactive member of the New Mexico Bar. The court sent the order to that bar "for whatever action it deems appropriate." (Mike Frisch)
The Review Department of the State Bar Court of California recently opined on the "progressive discipline" provision of the bar sanction standards. The attorney was admitted in 1976 and had been previously suspended for four months for making misrepresentations. Under the standard at issue, the attorney must receive a stiffer sanction for a second offense unless the earlier suspension was so remote and minimal that a greater sanction would be "manifestly unjust." Both the State Bar and the attorney appealed from a proposed public reproval by the hearing judge.
The Review Department recommends a stayed two-year suspension with an actual period of suspension for 150 days and probationary conditions. The attorney had "significant experience representing landlords in unlawful detainer actions...his office typically filed about 60 to 70 unlawful detainer actions monthly." He signed a false verification that his clients were absent from LA County. The hearing officer found that the falsity arose from "gross neglect" rather than intentional dishonesty and the Review Department affirmed that conclusion. The attorney also failed to update his address with the State Bar for 28 months.
The Review Department found that the prior misconduct and the attorney's efforts at "dishonesty and concealment" were aggravating factors. The prior discipline (twelve years ago) was not "so remote as to devalue it to the extent that the hearing judge did." The present conduct is serious and warrants application of the progressive discipline standard. (Mike Frisch)
The California Bar Journal reports on the following discipline case:
[An attorney] was suspended for one year, stayed, placed on two years of probation and was ordered to take the MPRE within one year. The order took effect April 11, 2009.
[The attorney] stipulated that he failed to perform legal services competently while representing a minor who was charged with murder. He had a fee agreement with the child’s grandmother that called for a fee of $25,000; $10,000 was due immediately and the remainder was due “ASAP.”
The day he was hired, the grandmother paid $10,000 and told him her grandson’s arraignment was the following day. [The attorney] did not appear because he had not received the full fee. The hearing was continued for three days, and although [he] went to the courthouse, he intentionally did not appear, again because the grandmother had not paid the full fee.
[The attorney] met with the alternate defense counsel who represented the defendant at both hearings and received the police report and other information. He met the client once. The grandmother fired him.
According to the stipulation, [the attorney] “intentionally did not provide
… the pre-trial services” for which the grandmother had contracted. Twenty months after he was fired, he refunded $8,000.
The Louisiana Supreme Court has entered orders of interim suspension against two lawyers who pleaded guilty to charges that they had schemed to bribe a judge. This posting from the web page of the Office of the United States Attorney for the Eastern District of Louisiana describes the plea:
WAYNE G. CRESAP, age 62, NUNZIO SALVADORE CUSIMANO, JR., a/k/a Sal Cusimano, age 58, both residents of St. Bernard Parish, and VICTOR J. DAUTERIVE, a/k/a V. J. Dauterive, age 57, a resident of Prairieville, Louisiana, pled guilty in federal court tody before U. S. District Judge Mary Ann Vial Lemmon to conspiracy to deprive the citizens of St. Bernard Parish of their right to receive the honest services of Judge WAYNE G. CRESAP, announced U. S. Attorney Jim Letten.
According to court documents, CRESAP, an elected judge of the 34th Judicial District Court for the Parish of St. Bernard, entered into an illegal agreement with lawyers CUSIMANO and DAUTERIVE, in which CRESAP converted secured bond obligations to unsecured personal surety bonds, thereby allowing the releases of charged individuals on signatures, and without collateral security. The scheme would begin when clients of CUSIMANO or DAUTERIVE would retain them to facilitate the release of an inmate being held on a secured bond which they could not afford. CUSIMANO or DAUTERIVE would then place a telephone call to CRESAP and request that the secured bond be converted to an unsecured surety bond which allowed the inmate’s release on a mere signature. After CRESAP converted the bond, thereby allowing inmate’s release, either CUSIMANO or DAUTERIVE would make a cash payment to CRESAP. Court documents further reveal that CRESAP received over $80,000 in illegal payments, that DAUTERIVE paid over $70,000 to CRESAP and that CUSIMANO paid over $10,000 to CRESAP in furtherance of and during the course of the scheme to defraud.
The defendants face a maximum prison term of five (5) years and a $250,000 fine, as well as possible restitution and supervised release. Sentencing is set for January 14, 2010.
The New York Appellate Division for the First Judicial Department held that a federal felony conviction for conspiracy to commit securities fraud triggered the automatic disbarment provisions of the law:
A conviction of a federal felony does not trigger automatic disbarment unless the offense would constitute a felony under the New York Penal Law (see Matter of Kim, 209 AD2d 127, 129 ; Judiciary Law § 90[e]). The federal felony need not be a mirror image of the New York felony, precisely corresponding in every detail, but it must be essentially similar (Matter of Margiotta, 60 NY2d 147, 150 ).
The underlying federal felony of conspiracy to commit securities fraud has no direct felony analog under New York law. Nevertheless, the requisite essential similarity may be established by reading the admissions made under oath during respondent's plea allocution in conjunction with the federal information.
During his plea allocution, respondent admitted that he was a consultant specializing in mergers and acquisitions of publicly traded companies. On or about December 2, 1998, respondent became a shareholder of Global Datatel, Inc. Respondent admitted that in 1999, he conspired with others to disseminate or cause the dissemination of false and misleading information about Global and its subsidiary in order to induce the investing public to purchase shares of the company. This activity caused Global's stock prices to artificially rise and its market capitalization to increase. Respondent further admitted that his actions were designed to violate federal securities laws for the purpose of enriching himself and others.
Here, respondent's admitted conduct would constitute a class E felony under General Business Law § 352-c(5) or (6) which both involve fraud in inducing or promoting the sale or purchase of securities. Automatic disbarment is, therefore, proper.