August 14, 2010
A Shelter Called Homer
The Louisiana Supreme Court has entered an order of interim suspension of an attorney recently convicted in a tax fraud case. This report from Chicago Breaking Business provides details concerning the criminal case:
[The attorney] started selling the tax shelters while he was employed at Chicago-based Bank One between 1999 and 2002, before it was acquired by JPMorgan Chase & Co. The shelter was called Homer, for the character in “The Simpsons.”
He was part of a scheme to fraudulently obtain referral fees. [A] Louisiana attorney...also was convicted on the conspiracy charge.
The shelters were aimed at wealthy clients of the bank and Jenkens & Gilchrist, a national law firm that went out of business in 2007 after settling civil and criminal investigations related to the bogus tax shelters. [The attorney] continued selling the shelters after leaving the bank and forming his own company, Chicago-based Dumaine Group LLC.
Additional details from Law.com. (Mike Frisch)
August 13, 2010
The Value Of Consent Disposition
The value of conditional admissions/consent discipline is displayed by an order for a 90 day suspension entered today by the Nebraska Supreme Court. The charges were fully resolved almost six months to the day after the filing of the charges.
The attorney was retained to pursue a child custody modification for a client who wished to move to Nevada. The attorney learned that another firm lawyer was suing the client in an unrelated matter. Although the attorney told the client, he also said they could "work around it" and failed to get informed consent to the conflict. He thereafter failed to timely file a witness list and was discharged by the client.
In a jurisdiction where consents are not allowed or disfavored (read: the District of Columbia), a case like this could take years to resolve and use resources that would be better directed to contested matters. Such a result benefits both the accused attorney (who does not have to suffer through years of unresolved bar issues and uncertainty as to result) and the public, which has an interest in prompt and fair bar disciplinary processes.
Just a thought. Not a sermon. (Mike Frisch)
Posted by Jeff Lipshaw
Over the course of a career, I've mentored enough people to be proud when they achieve good things after we've parted company, but I haven't been teaching long enough to get a lot of that yet from my law students.
One of my students (and my research assistant) at Tulane in 2006-07, Matthew Kirkham, is an assistant DA in Orleans Parish (New Orleans), Louisiana. This story is about the successful prosecution of a guy who stole $500,000 by not providing contractor services to Katrina victims. As reported, "Assistant District Attorneys Alex Calenda and Matt Kirkham handled the case."
* Per Merriam-Webster, "Yiddish kveln to be delighted, from Middle High German quellen to well, gush, swell."
August 12, 2010
Dred Scott Argument Fails To Move Judge
A Massachusetts attorney was sanctioned with a public reprimand as a result of a conviction for reckless assault and battery. According to this report in the Merrimack Valley Eagle-Tribune (quoted below), the assault took place while the attorney was employed as a substitute teacher. The victim was a first grader who the attorney-teacher had picked up by the shirt coller and banged into a door. The incident was caught on the elementary school's surveillance tape.
The attorney's lawyer made these reported comments at sentencing:
Murphy [counsel to the attorney] argued that [the attorney's] crime didn't warrant jail time because he didn't intentionally try to hurt the boy. He argued during the trial that [he] was trying to keep the boy from running out of the school.
Prior to yesterday's sentencing, Murphy also made a rare, and unsuccessful, attempt to get the judge to overturn the guilty verdict. Typically, that is done during a separate appeal.
Murphy mentioned the Dred Scott decision, a pivotal Supreme Court case in which a slave sued unsuccessfully for his freedom in 1858, in trying to get the judge to overturn the jury's guilty verdict of [the attorney]
"That was an instance of judicial cowardice," Murphy said of the Dred Scott case. "This court, at this stage, has the ability to remedy, in effect, what the jury did wrong (in the [attorney's] case)."
[The judge] denied Murphy's request, saying that the evidence was sufficient to sustain the charge.
The summary of the disciplinary case indicates that the victim suffered minor injuries. (Mike Frisch)
Wrestling Experience As Aggravating Factor
A Louisiana hearing committee has recommended a 90-day suspension, with all but 30 days suspended, in a matter involving a conviction for domestic abuse battery. The victim of the assault was the attorney's former wife and the mother of his children. The children were present when the abuse took place.
The committee found aggravating factors that included the vulnerability of the victim, as well as the fact that the attorney is a "former wrestler and practicioner of the martial arts." The committee refused to find remorse as a mitigating factor notwithstanding his testimony that he "was remorseful, embarrassed and humiliated for himself and his family" because, in the committee's view, "he still appeared to be resisting the wrongful nature of his conduct."
The committee further recommended probation for eighteen months with "at least monthly psychological or psychiatric counseling for personal judgment and decision making skills." (Mike Frisch)
Reciprocal Discipline For Loren Friedman
Just when you think that the Loren Friedman saga is over, something else happens.
The New York Appellate Division for the Third Judicial Department today imposed reciprocal discipline of the three-year suspension based on the sanction imposed in Illinois. (Mike Frisch)
Judicial Campaign Rule Changes In Ohio
From the web page of the Ohio Supreme Court:
Justices Take Action in Response to Federal Court Decision
The Supreme Court of Ohio has amended portions of two rules governing disclosure of political party affiliation and solicitations of campaign contributions by judicial candidates. The Supreme Court took the action in response to a decision by the U.S. Sixth Circuit Court of Appeals last month that struck down similar rules in Kentucky. The amendments become effective Thursday.
The amendments to the Ohio Code of Judicial Conduct remove a ban on judicial candidates identifying themselves in advertising as a member of or affiliated with a political party after the primary election. Justices concurred 5-0 in adopting the amendments to Rule 4.2 with Chief Justice Eric Brown and Justice Judith Ann Lanzinger not participating.
In the Comment portion of the revised Rule 4.2, the Justices adopted language urging judicial candidates to minimize references to their party affiliation in campaign materials. “Although these affiliations and others may be communicated to the electorate, a judicial candidate should consider the effect that partisanship has on the principles of judicial independence, integrity, and impartiality.” The vote to adopt the comment was 4-1 with Justice Paul E. Pfeifer voting no and Chief Justice Brown and Justice Lanzinger not participating.
The amended solicitation rule continues to bar judicial candidates from personally soliciting or receiving campaign contributions, but establishes two new exceptions to the personal solicitation ban. Justices concurred 4-1 in adopting the amendments to Rule 4.4 with Justice Paul E. Pfeifer voting no and Chief Justice Brown and Justice Lanzinger not participating. Those exceptions are:
- “A judicial candidate may make a general request for campaign contributions when speaking to an audience of twenty or more individuals;”
- “A judicial candidate may sign letters soliciting campaign contributions if the letters are for distribution by the judicial candidate’s campaign committee and the letters direct contributions to be sent to the campaign committee and not to the judicial candidate.”
The Comment portion of revised Rule 4.4 contains an explanation of the continued need for a prohibition on the personal solicitation or receipt of campaign contributions. “These limitations protect four vital interests: (1) avoiding the appearance of coercion or quid pro quo, especially when a judicial candidate engages in a one-on-one solicitation of a lawyer or party who appears before the court; (2) preserving both the appearance and reality of an impartial, independent, and noncorrupt judiciary; (3) ensuring the public’s right to due process and fairness; and (4) furthering the public trust and confidence in the impartiality of the judicial decision-maker. Rule 4.4(A) recognizes that some forms of solicitation are less coercive and less intrusive than others and permits a candidate to engage in solicitations that are less personal and directed at a wider audience.”
The vote to adopt the comment was 4-1 with Justice Paul E. Pfeifer voting no and Chief Justice Brown and Justice Lanzinger not participating.
Information about the rule amendments will be included in court documents filed Thursday in response to a lawsuit in Ohio federal court that challenges the Code of Judicial Conduct provisions.
August 11, 2010
A recent admonition is reported in the Utah Bar Journal:
On May 10, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 7.5(a) (Firm Names and Letterheads), 7.5(d) (Firm Names and Letterheads), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
A client spoke to a partner in a firm about retaining the partner to assist in a legal matter. The partner was going on inactive status and referred the case to the other partner within the firm. At the time of initial contact with the client, the attorney utilized a letterhead and firm name indicating two partners within the firm. The attorney used that letterhead a significant portion of the time during which time the attorney was in contact with the client. The attorney’s letterhead and firm name were somewhat misleading, due to the partner not being in a partnership.
A Tough Practice Area
The Maine Supreme Judicial Court has suspended an attorney for 30 days, with the possibility of a fully-stayed sanction. The attorney was retained to represent a client in a matter that included a dispute over visitation with the client's minor child.
The client went to California before a court case management conference. While the attorney filed a motion to allow the client to participate by telephone, the client did not do so. The attorney entered into an agreement without the client's authorization that allowed the opposing party alternate weekends.The attorney failed to advise and then lied to the client. When the opposing party picked up the child, the client panicked and sought other counsel (the attorney had an injured shoulder and was on meds). The attorney lied about the situation to the new counsel. As a result, proceedings were brought on the misunderstanding that the opposing party had violated the court order. The attorney made misrepresentations to the tribunal.
The court noted in mitigation that the attorney "has, for decades, practiced in an area replete with opportunities for missteps, misunderstandings, and disgruntled clients" without a blemish save for a 1983 reprimand for a conflict of interest. If the attorney completes six hours of ethics CLE prior to the end of the year, the suspension will be stayed in its entirety.
The matter was submitted to the court on stipulated facts. (Mike Frisch)
The Cost Of A Button
The North Carolina State Bar has filed charges against an attorney who is alleged to have made inappropriate comments and advances toward a client who he represented in a divorce and property distribution matter. Among the allegations are claims that the attorney inquired of the client the cost to unbutton or remove each button on her top. The charges further allege that the attorney said to the client "I would expect us to explore everything in the world sexually tonight we could think of..."
The attorney's answer to the complaint has an introductory paragraph that notes that "[i]t is difficult for me to make statements that adversely affect the position of a lady...It is necessary that I make honest derogatory statements in regard to my former client..." The attorney denies that he assaulted or coveted the client and suggests that the complaint to the State Bar was motivated by her jealousy over his relationship with another woman.
August 10, 2010
An Illinois attorney and the Administrator have agreed that she be struck from the rolls from the Bar in light of concessions that she had falsified court orders and an affidavit in a series of domestic relations cases.
At the time of the misconduct, the attorney was practicing in a partnership with another attorney made famous by an advertising campaign that used the catchy slogan "Life's Short. Get a Divorce." (Mike Frisch)
Divorce Appeal Claims Rejected
The Connecticut Appellate Division has rejected the appeal of a divorcing wife and affirmed the judgment of the trial court. The court rejected claims that the trial court had abused its discretion in its disposition of the case and had improperly declined to hold the divorcing husband in contempt. The husband was a retired Wachtell, Lipton, Rosen & Katz partner; the wife a former professional model born in Brazil who was 28 years his junior.
The court in a separate opinion affirmed the denial of the wife's post-judgment motion to recuse the judge based on allegation that the husband had been given advance notice of the court's decision. The court found the claim to be both speculative and discredited. (Mike Frisch)
False Statements In Lawyer's Own Divorce Lead To Suspension
A proposed public reprimand was rejected as unduly lenient by a justice of the Massachusetts Supreme Judicial Court. The misconduct involved dishonest behavior in the attorney's own divorce. This summary sets forth the facts:
The Board found that [the attorney] committed three acts of misconduct, all related to her divorce proceeding. First, she made handwritten suggested revisions to a letter to her husband's attorney drafted by her employer...which caused [the employer] to revise an accurate description of her compensation arrangement with him (that they had a verbal agreement by which he would pay her, over and beyond her weekly draws, fifty percent of the net fees she generated) to an inaccurate description (that, apart from her weekly draws, she may receive bonuses in his discretion, and that there was no specific method of determining how much he would pay her in bonuses). Second, the financial statement she filed in her divorce action left blank the line where she was asked to state her gross yearly income in 2003. As a result, she failed to reveal that her gross income had increased from $55,302.58 in 2002 to $126,365.40 in 2003. Third, despite this material omission, when asked by the judge at the hearing in the Probate and Family Court on February 10, 2004, whether she had "accurately and completely" stated her income, expenses, assets, and liabilities on the financial statement, she answered under oath, "To the best of my knowledge, yes." When she was then asked whether she had "fully and completely disclosed [her] financial circumstances and resources to [her], husband," she again replied, "To the best of my knowledge, yes.
A three-month suspension was imposed. (Mike Frisch)
August 9, 2010
Under The Table
A Massachusetts attorney has been suspended for three months with two months stayed and one year of probation. The summary of the matter from the web page of the Board of Bar Overseers describes the misconduct:
In August of 2007, the respondent hired a former client to work in his office as a receptionist. The respondent asked the employee to sign a W-4 form. The employee refused to do so, stating that she needed to be paid “under the table” so that she could maintain her MassHealth benefits because her husband was ill. The respondent understood that the employee wished to hide her income from the state authorities so that she could continue to receive MassHealth benefits for which she otherwise might not be qualified and agreed to not report the employee’s income to the state and federal authorities.
The respondent paid the employee approximately $400 per week for about seven months without reporting her income. On February 12, 2008, the respondent terminated the employee’s employment. The employee was initially unable to collect unemployment benefits after the respondent terminated her employment, but, at her request, the respondent made the appropriate payments to the state unemployment commission and acknowledged her status as a former employee. The employee received unemployment benefits beginning in June of 2008. After an investigation by the Massachusetts Attorney General’s Office, the respondent paid the Commonwealth a civil penalty of $2,000.
By not reporting to state and federal authorities the income paid to his employee, the respondent knowingly engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Mass. R. Prof. C. 8.4(c).
A magistrate was placed on interim suspension by order of the South Carolina Supreme Court. The order contains an interesting provision:
...respondent is prohibited from entering the premises of the magistrate court unless escorted by a law enforcement officer after authorization from the Chief Magistrate of Horry County. Finally, respondent is prohibited from having access to, destroying, or canceling any public records and he is prohibited from access to any judicial databases or case management systems. This order authorizes the appropriate government or law enforcement official to implement any of the prohibitions as stated in this order.
NOBC Case Of The Month
The National Organization of Bar Counsel has chosen a bar discipline matter from Iowa that we previously reported as its case of the month. Jim Grogan's typically lyrical case summary in part:
The mere act of committing a crime does not necessarily constitute conduct that is prejudicial to the administration of justice in violation of the lawyer ethics code.
Lady Godiva was an Anglo-Saxon noblewoman who, according to legend, rode naked on her horse through the streets of Coventry to protest the oppressive taxes her land-owning husband, Leofric, Earl of Mercia, had imposed upon the local peasantry. Her husband had promised her that he would be more forgiving to his minions if she stripped naked and traveled through town on her steed. In facilitating her journey, he issued an edict commanding all town folk to stay indoors, close their shutters, and keep their eyes off of his wife. One citizen, a tailor named Tom, decided to disobey the edict and drilled a hole in his shutters so that he might gaze upon the lady when she passed by his shop. While staring at Godiva, Tom the Tailor was struck blind. All ended well for the rest of the citizenry, however, as Leofric rescinded the taxes.
[The sanctioned attorney] is a modern day Tom. He wasn’t struck blind, but he did suffer some degree of retribution owing to a predilection to peep.
Our coverage of the decision of the Iowa Supreme Court is linked here. (Mike Frisch)
Former Law Firm Associate Suspended
The South Carolina Supreme Court has ordered a six-month suspension of an associate who took retainers due to his firm. The court described the misconduct:
For a period of four years, respondent was employed as an associate attorney in a law firm. Sometime during the months of September and November 2009, a client retained the law firm to quiet title to a tract of land that was purchased from an estate. Respondent informed the client that the fee for the action would be $1,500.00. Prior to the final hearing, respondent requested the client pay the fee in full. The client wrote a check made payable to respondent individually and not to the firm. Respondent deposited the funds into his personal bank account. Respondent represents that he completed the quiet title action for the client.
Sometime during late 2007 or early 2008, another client retained the law firm to perform a partition on a tract of land in which the client had an interest. Respondent informed the client that the attorney fee for the action would be $3,000.00. The client agreed to pay the fee in installments. Prior to the fall of 2009, the client had paid $2,500.00 to the firm. In the fall of 2009, at respondent's instructions, the client sent a check and money order made directly payable to respondent. The check and money order totaled $500.00. Respondent deposited the $500.00 directly into his personal account.
When confronted by the partners of the law firm, respondent admitted that he took the $2,000.00 from the two clients and deposited the funds into his own personal bank account. Respondent made full restitution to the law firm; he resigned from the law firm on November 25, 2009. The law firm reports that no client funds were at risk and that the funds deposited into respondent's personal accounts were the firm's earned fees.
Wisdom That Should Migrate To D.C.
An Indiana attorney has been suspended for 30 days for ethical violations in representation of a family corporation and one of seven siblings with a legal interest in the corporation.
The attorney had purported to represent both the single client and the corporation while actively assisting the single client's efforts to take sole control. The Indiana Supreme Court found that the conflicts in the dual representations were apparent and that the attorney's "ethical violations extended over several years to the considerable detriment of the Corporation."
The court was concerned that the attorney has failed to appreciate his ethical obligations but noted that the proposed sanction had been submitted by agreement between the attorney and disciplinary counsel. The attorney has an extensive history of public service.
Most notably, the court was concerned that the sanction might be unduly lenient but expressed a "desire to foster agreed resolutions of lawyer disciplinary cases..." and accepted the proposed discipline. The parties had jointly agreed that the attorney committed several ethical violations and proposed the 30 day suspension with automatic reinstatement.
I have been meaning to post some disquieting recent board and hearing committee opinions in the District of Columbia that make me fear for the future of agreed dispositions here. How I wish D.C.'s system would see and understand the wisdom displayed here by the Indiana Supreme Court in recognizing the importance of consent dispositions to a fair and efficient disciplinary regime.
I am not optimistic. (Mike Frisch)
August 8, 2010
Former DA Pleads Guilty, Suspended By Consent
The North Carolina State Bar and a former county district attorney recently agreed to an order of interim suspension in the wake of misdemeanor charges involving assault and misuse of office. This report provides some details concerning the charges, courtesy of WTVD-TV Raleigh Durham:
According to the court papers, [the attorney] allegedly stopped motorists by flashing a gold badge. District Attorneys in North Carolina don't carry badges and can't make traffic stops.
The misdemeanor documents also allege that [he] touched women inappropriately - resulting in the misdemeanor assault charges.
All of the misdemeanors happened between June of 2008 and September of 2009.
In one assault, warrants say [he] kissed a woman on her neck and grabbed her hand. In another, he allegedly put his hand on a woman's leg and touched the inside of her thigh. Another victim says [he] touched her buttocks.
All of the acts were allegedly committed without the women's consent.
The affidavit also alleges he "routinely dismissed random citations" --keeping them in a "manila folder in his office," separated into male and female piles.
It went on to state that at election time [he] "reminded those people of what he did, asked them for their vote, and for help working the polls."
It was also revealed on Thursday that back in 2008, the former DA had a personal relationship with one of the women he helped --directing an assistant DA to dismiss her case.
Attorney General Roy Cooper's Special Prosecutions Section and the SBI Professional Standards Division have been investigating [the attorney] since last November. He retired earlier this year as district attorney of Person and Caswell counties after 28 years.
This report from Newsrunner indicates that the attorney entered a guilty plea and was sentenced in the criminal case. (Mike Frisch)