March 15, 2010
"Tried And True"
The Delaware Supreme Court has imposed a public reprimand of an attorney who had conducted 10 closings for a private money lender. The attorney has been in practice for over 30 years and had significant experience in residential real estate closings.
The attorney began represnting the private money lender in 2007. He used loan documents provided by that client's principal and did not review them because the principal told him they were "tried and true." In fact, they were tried and false-- the loans violated the Home Ownership and Equity Protection Act of 1994 and failed to contain the Truth in Lending Act's required notice of the right to rescind.
The attorney failed to provide written notice to the borrowers that he was not their attorney and they had a right to choose their own counsel. The court approved findings that he did not provide competent representation and had violated his duties of communication. The court also rejected the propsed private reprimand by the Board on Professional Responsibility. (Mike Frisch)
Not Giants But Not Prohibited
The United States Court of Appeals for the Second Circuit has, in the main,affirmed the Disrtict Court's determination that certain aspects of the New York regime for regulating attorney advertising do not pass constitutional muster. The court rejected attempts to regulate "nicknames, mottos and trade names" and advertising gimmicks:
...the sort of gimmicks that this rule appears designed to reach--such as [a firm's] wisps of smoke, blue electrical currents, and special effects- do not actually seem to mislead. It is true that [the lawyer] and his partners are not giants towering above local buildings; they cannot run to a client's house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens.
However, such attention-getting devices do not mislead the public.
The court also agreed with the District Court that the 30 day New York ban on solicitation of accident victims and their families was permissible under Florida Bar v. Went For It. The court discusses the concepts of the porcelain heart, Wemmick's Castle (it's from Dickens) and lawyers' reputations in reaching its conclusion in that regard.
Hat tip to the ABA Journal. (Mike Frisch)
Petition For Voluntary Discipline Rejected
The Georgia Supreme Court rejected a joint petition for voluntary discipline that had called for a suspension in a range from six months to a year, concluding that the higher-end sanction was "an inappropriate sanction in light of the scope and extent of [the attorney's] fraudulent and deceptive conduct." The attorney was an associate at a law firm doing bankruptcy and commercial foreclosure work. He diverted fees to himself. For a six-year period, he performed investigative services and used false invoices to vendors to get himself paid for the work. The misconduct was discovered during the course of a client's billing review by the firm. The attorney cooperated with the firm's investigation and repaid $526, 922.00.
The attorney has mitigation including no prior discipline and a number of misfortunes including the deaths of his grandparents and his wife's personal injuries and ensuing lawsuit. His wife had also had a miscarriage and a complicated second pregnancy. He also had been treated for depression, was "deeply sorry" and had a number of charitable activities.
A concurring opinion notes that he
is fortunate not to be incarcerated in a state or federal prison for the half-million dollar fraud he perpetrated against his employer, along with the related crimes of identity theft and misuse of someone else's social security number. His multi-year, multi-faceted scheme ended only when he was caught.
The concurring justice wrote "to express how troubling I find it that [the attorney] and, even worse, the State Bar apparently believe that such a short 'break' from practicing law is appropriate discipline for his extended, extensive, and serious misconduct, notwithstanding the factors he presents in mitigation." (Mike Frisch)
Convicted Former DA Suspended
The web page of the Disciplinary Board of the Pennsylvania Supreme Court reports that a former deputy district attorney was suspended as a result of a criminal conviction. Pennlive.con had reported last October that the attorney had been accused a sexually assaulting a woman in his home as well as a responding police officer and an emergency medical technician. There was an earlier report from the same source that the attorney was fired from his deputy district attorney position as a result of the incident.
The suspension was imposed on March 12. (Mike Frisch)
Reciprocal Discipline Imposed
The District of Columbia Court of Appeals rejected the contentions of a high-profile attorney that he had been denied due process and that there was an infirmity of proof in the Florida bar disciplinary sanction of a three-year suspension. The attorney is perhaps best known for his representation of the defendant in the so-called D.C. Madam case. The court imposed the identical sanction of a three-year suspension with fitness.
The attorney was found to have engaged in misconduct involving failure to pay court-ordered child support for his three childreen. He was held in civil contempt and incarceration until the contempt was purged. He also had been sanctioned for filing "vexatious and meritless litigation" based on findings that he had filed over three dozen meritless appeals or lawsuits, including "at least twelve actions in federal court against judges assigned to his cases."
The Florida hearing was held in the absence as he was engaged in a high-profile case in D.C. He thereafter submitted a proposed report to the referee and claimed that the referee had adopted the Bar's proposed report "almost verbatim." The court here rejected his contentions that the proceedings deprived him of due process because the charges were not under oath (citing Ex Parte Burr) and noted that the complaint was based on public record court orders.
The court also rejected claims of delay in Florida, that the Florida suspension was void because the judges failed to take loyalty oaths, that he was prejudiced by having his affirmative defenses struck ("It is no defense to a charge of 'vexatious and meritless' litigation that Respondent has a constitutional right of access to the courts, because there is no right to access to the courts to conduct vexatious litigation"), and that he had been denied his confrontation rights as
it is well-settled that there is "no confrontation right in an attorney discipline case."
The court further found that there was no violation od due process rights in denying his efforts to subpoena judges, as the attorney was not entitled to probe their mental processes.
Finally, the court found no infirmity in the proofs. The attorney had paid not a penny of child support and there was no basis to question the Florida findings with respect to the non-meritorious litigation. (Mike Frisch)
That's A Wrap
The Louisiana Supreme Court permanently disbarred an attorney who had accepted a bribe in his capacity as director of the Louisiana Film Commission. The sanction was imposed in the wake of a federal felony conviction. The court concluded that its sanction guidelines "present useful information concerning the types of conduct the court might consider worthy of permanent disbarment" and found that the attorney's felony conviction for malfeasance in office was worthy:
Respondent's actions fall within the parameters of the guidelines. Respondent misused his office as director of the Louisiana Film Commission to fraudulently inflate state tax credits in exchange for bribes. His actions resulted in federal felony charges, to which Respondent has pled guilty.
This court has consistently held that an attorney occupying a position of public trust is held to a higher standard of conduct than an ordinary attorney.
While the court does not "lightly impose the sanction of permanent disbarment...we are firmly convinced that we would be remiss in our constitutional duty to regulate the practice of law if we did not impose that sanction under the egregious facts of this case." (Mike Frisch)