Saturday, October 23, 2010
The Arizona Disciplinary Commission has affirmed findings of misconduct against an attorney who had "channeled" a client's deceased wife but increased a hearing officer's proposed suspension from six months and one day to one year. Both recommendations propose that reinstatement be followed by two years probation.
Our coverage of the hearing officer's report highlights the unusual facts:
The hearing officer has recommended a six month and one day suspension of an attorney who, while in an intimate relationship with a client involving his late wife's estate, "claimed to be able to convey the thoughts of the deceased wife to the client." The attorney also was charged with falsely denying in a bar proceeding that "she had ever 'channeled' the thoughts of a deceased person to a client."
The attorney met the client while taking ballroom dancing lessons from him. She was retained to handle his divorce, but that representation terminated upon the wife's suicide. The attorney channeled the wife for three years, until she and the client stopped dancing together and parted ways.
The State Bar had sought disbarment. (Mike Frisch)
Thursday, October 21, 2010
The New Jersey Disciplinary Review Board has ordered a censure of an attorney admitted in 1974. The attorney was employed by the state Department of Human Services ("DHS"). He was observed stealing items from a DHS refreshment vendor. The police were advised of the behavior and installed a surveillance camera.
Fourteen times over a five week period, the attorney was "observed taking various food and/or beverage items from the refreshment vendor, without paying for the items. The vendor was a blind operator for the Commission for the Blind and Visually impaired Enterprise Program."
The attorney was not criminally prosecuted and had no record of bar discipline. As part of a settlement, he paid the vendor $1,200. He is listed as "retired" with the Bar and it was not clear in the record whether he had ever actively practiced law.
The sanction was imposed notwithstanding the board's expressed view that the offenses were "particularly repugnant" because the attorney took advantage of the vendor's blindness.
Anyone think censure is a tad light? (Mike Frisch)
The New York Appellate Division has issued an order suspending attorneys (with last names from L to Z) for failure to file the required biennial registration statement:
The attorneys in question have been duly notified of their noncompliance and given an opportunity to cure their default. The Office of Court Administration mailed each of the defaulting attorneys a biennial registration form to their last known home address, a second notice to their last known business address, and a final notice to their home address. Attorneys who remained in default following these three notices were referred to the Disciplinary Committee. On October 31, 2008, this Court published notice in the New York Law Journal that the Disciplinary Committee would institute an omnibus disciplinary proceeding seeking immediate suspension from the practice of law against those attorneys who did not cure their default by November 24, 2008. Thereafter, a list of approximately 1700 attorneys who failed to submit satisfactory proof of registration and payment of fees was forwarded to the Committee. The Committee then filed its motion for service by publication of the notice of petition to suspend.
Pursuant to the order of this Court entered May 27, 2010, which provided for service of the petition to suspend by publication in the New York Law Journal for five consecutive days, a list of the defaulting attorneys along with their last known business addresses or in the absence of a business address, the home address of the defaulting attorney, was so published commencing June 8, 2010. A notice was also posted on the Court's website. The order further provided that attorneys on the default list may submit proof from the Office of Court Administration that they are in compliance with all the registration requirements (including payment of registration fees), and an explanation of their failure to respond to previous notifications of default, within thirty (30) days of the return date of the Notice of Petition, or they would be subject to a further order of the Court immediately suspending them from the practice of law in the State of New York.
The attorneys who remain in noncompliance with Judiciary Law § 468-a despite the notification process described above are the subject of the Committee's instant motion to suspend. No opposition has been filed.
Accordingly, due to the continued failure to comply with the statute, petitioner's motion to suspend such attorneys shall be granted to the extent of suspending those attorneys whose names are enumerated in the attached schedule from the practice of law in the State of New York, effective immediately.
A former public defender has been suspended in Tennessee as a result of a criminal conviction. WMCtv.com reports that the offense involved shoplifting $1,300 worth of jewelry from Macy's.
The web page of the Tennessee Board of Professional Responsibility indicates that the state Supreme Court imposed an interim suspension pending resolution of disciplinary proceedings brought as a result of the criminal matter. (Mike Frisch)
The career threatening danger when an attorney misappropriates entrusted funds is on display in a recent recommendation for disbarment from the New Jersey Disciplinary Review Board.
The matter came to the Bar's attention as a result of two escrow account overdraft notices. The attorney responded that his account records "were a mess" and that he was depositing $10,000 into the account to cover shortfalls. The Bar investigator considered the deposit to be "red flag" and continued to probe, with predictable results.
The board rejected the attorney's suggestion that he was only temporarily embezzling and had replaced the missing funds as a basis to avoid the ultimate sanction. (Mike Frisch)
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio today indefinitely suspended the law license of [a] Cincinnati attorney...for misconduct that resulted in his convictions on three counts of felony theft.
In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] engaged in a scheme in which he deposited checks drawn on bank accounts that had been closed or accounts with insufficient funds into other bank accounts, and then made cash withdrawals from the latter, artificially inflated accounts. These transactions resulted in losses of $5,809 to Fifth Third Bank, $11,804 to U.S. Bank, and $4,459 to Huntington Bank.
[The attorney] entered guilty pleas to three counts of theft, felonies of the 5th degree. He was sentenced to three years of community control and ordered to pay restitution to the banks he had defrauded. His law license has been under an interim suspension since the Supreme Court was notified of his felony convictions in February 2009.
In today’s decision, the Court unanimously accepted the disciplinary board’s conclusions that [his] conduct violated the rules of professional conduct that prohibit an attorney from engaging in illegal acts that adversely reflect on his honesty or trustworthiness; and require attorneys to respond to a demand for information from a disciplinary authority and to report their own rule violations to disciplinary authorities.
The court's opinion is linked here. (Mike Frisch)
Wednesday, October 20, 2010
The New York Appellate Division for the First Judicial Department has disbarred an attorney for misconduct in connection with a personal injury case that settled for $3 million. The attorney had accepted substantial litigation funding from third parties and pledged the same assets as collateral. The client had been sued by the funding source after the settlement.
The court accepted findings of misconduct of the referee:
Respondent maintained that he accepted a gift given by Mr. Veneski [the client] to extricate the Veneskis from the [third party] Core Funding lawsuit and that any claim of duress or undue influence was vitiated by Mr. Veneski reaffirming the gift multiple times over the ensuing years while represented by other counsel. Respondent credited himself with shutting down his practice to devote his time to defending the Veneskis in the LAF litigation, at no cost.
On November 24, 2009, the Referee submitted his report and recommended disbarment. The Referee found "incredible" respondent's testimony that Mr. Veneski intended to make a gift of $454,000, or that respondent believed in good faith that it was a gift. In addition to the fact that Justice Heitler had also rejected respondent's claim as "incredible," the Referee based his conclusion on several factors, including that at the time each installment of the settlement payment was due, respondent wrote to Mr. Veneski that he was "owed" one-third of the amounts as "attorney's fees"; Mr. Veneski originally wrote "attorneys fees" on the memo line of the $454,000 check and only wrote "gift" at respondent's request; nothing in the relationship between Mr. Veneski and respondent would explain a gift of that amount; respondent did not "take any of the precautions one would expect a lawyer to take when accepting a gift' of this magnitude from a client in circumstances such as this"; and respondent's belated motion for increased legal fees was inconsistent with his claim that he had received such a substantial gift.
The Referee also identified several aggravating factors, including the vulnerability of Mr. Veneski, whom respondent himself had characterized as severely brain-damaged; respondent's lack of remorse, candor and insufficient appreciation of the seriousness of the proceedings; respondent's prior Admonition for false notarization, which was made worse by his attempted minimization thereof; and respondent's failure to satisfy the judgment. Further, a loan respondent brokered between Mr. Veneski and another of his clients, and three other lending scenarios he proposed, constituted a pattern of improper business dealings, or at the least a lack of "appropriate sensitivity to his fiduciary responsibilities as an attorney".
As to sanction:
Respondent charged a brain-damaged client over $500,000 more than the statutory maximum in attorney's fees. He tried to disguise those fees as a gift, and deceived his client to secure his assistance in the charade. Respondent has yet to satisfy the judgment directing him to return those fees and the over-billed disbursements, and he has a pending petition for Chapter 7 Bankruptcy relief. His other attempted and accomplished plans to obtain financing from clients demonstrate a pattern of conduct which, at best, reflects an indifference to his clients.
The Referee, who had an opportunity to observe respondent, found him to be deficient in honesty, remorse, and insight. Even at this stage of the proceeding, respondent attempts to relitigate the orders underlying the collateral estoppel finding, seeks to delay (by requesting an examination of Mr. Veneski), and tries to use clients with pending cases (the three affiants) to extricate himself from an adverse position and to the detriment of another client (the Veneskis).
The Massachusetts Board of Bar Overseers has recommended a one-year suspension of an attorney based on findings that she made three false statements in her application for bar admission. The attorney also must be certified as fit to practice by the Board of Bar Examiners. Prior to attending law school, the attorney had been a licensed physical therapist.
The attorney had been admitted notwithstanding the (disclosed) fact that she had been suspended from law school for plagiarism. The Board summarized the hearing committee's findings:
In July 2007, the respondent sent a letter to the BBE reporting that her answers were inaccurate in the petition for admission. The BBE reported the matter to the Massachusetts Office of Bar Counsel.
The hearing committee concluded that the respondent’s conduct violated Mass. R. Prof. C. 8.1(a) (knowingly make false statement of material fact in connection with bar admission application) by providing false answers to three questions on her petition for admission to the Massachusetts bar. The three questions were:
Question 10(b): “Have any charges or complaints been made concerning your conduct as an attorney, or as a member of any other profession, or as a holder of any public office?
Question 12(b): “Have you ever been a party on either side in a civil action or proceeding involving a claim of fraud, conversion, breach of fiduciary duty, professional malpractice or other wrongful conduct?”
Question 12 (c): “Have you been a party in any other legal or administrative proceedings?”
The respondent answered “No” to each of these questions. The hearing committee found that these answers were knowingly false.
With regard to Question 10(b), the Board of Registration in Allied Health Professions (the Board of Registration) had received two complaints against the respondent that she failed to disclose in her petition for admission. In approximately 1999, the Board of Registration dismissed a complaint filed by an insurer alleging that the respondent had engaged in over-utilization of services. Ex. 9; Ex. 11. In 2005, the Board of Registration dismissed without prejudice a complaint against the respondent regarding her supervision of a physical therapist, and it issued a non-disciplinary letter advising the respondent to review the pertinent regulations. Ex. 8.
With regard to Question 12(b), the respondent was a defendant in two lawsuits charging fraud. On June 10, 2004, a complaint in Kotlyar v. Zelyony, Essex Superior Court No. 2004-01115, was filed alleging that the respondent and her husband had committed fraud and deceit in connection with their work as business managers of a doctor’s medical practice. Ex. 2. In October 2009, the claims were dismissed. Ex. 3. On December 30, 2005, a complaint in Sivokozov v. Discount Corp. of America, Miami-Dade Co. Superior Court No. 2005-25547-CA-01, was filed alleging that the respondent and a corporation that she had controlled committed common law fraud in the inducement and violated the Florida Deceptive and Unfair Trade Practices Act. Ex. 4.
With regard to Question 12(c), on January 16, 2001, the respondent failed to disclose that she had filed a complaint, Resnick v. White, Essex Superior Court No. 2001-00070. Ex. 6. The matter was dismissed on September 12, 2003, for failure to prosecute after the respondent won a related arbitration award. Tr. 99-100. On January 9, 2006, the respondent filed a complaint, Resnick v. Global Assets, Inc., Miami-Dade Co. Superior Court No. 2006-366-CA-01. Ex. 7. This matter settled shortly afterwards, and was dismissed for lack of prosecution in December 2007. Ex. 7; Tr. 103.
The hearing committee did not credit the respondent’s testimony that she failed to disclose, when answering Question 10 (b), the complaints filed with the Board of Registration because (1) she had not been found to have committed any wrongdoing and (2) she had not been disciplined. In addition to disbelieving her explanations in her July 2007 letter to the BBE, the hearing committee did not credit her testimony during the hearing. It did not believe her claim that she had misinterpreted Question 10(b) as asking for disclosure only when formal proceedings had been commenced against her. The hearing committee did not believe the respondent when she testified that she did not think of the last complaint filed with the Board of Registration as having been filed “against” her. The hearing committee found that Question 10(b) was clear and unambiguous, and that the respondent’s interpretations of Question 10(b) were not only wrong, but also not credible.
With regard to Questions 12(b) and 12(c), the hearing committee did not credit the respondent’s testimony that she did not recall that she was a party in a total of four different lawsuits. The two lawsuits charging her with fraud were each filed before she submitted her petition for admission and both were still pending at the time the bar counsel filed the petition for discipline. The hearing committee did not credit the respondent’s explanation that she did not disclose that she had been named a defendant in Kotlyar because the lawsuit concerned her business dealings, and therefore did not think that it was a matter of concern to the BBE. The hearing committee also concluded that the respondent’s intentionally false answers were material.
The attorney practices immigation law in Florida. Two board members would recommend a shorter period of suspension. (Mike Frisch)
Tuesday, October 19, 2010
A town court justice (who is not an attorney) has been admonished by the New York State Commission on Judicial Conduct. According to this press release, the justice improperly served as both judge and court clerk, sold raffle tickets on behalf of her son's wrestling club, participated in a fund-raising car wash for her softball team, and failed to appear for sentencing on a leash law violation.
The sanction was an agreed disposition. The justice will not seek or accept future judicial office when her term expires at the end of the year. (Mike Frisch)
The full Massachusetts Supreme Judicial Court agreed with a single justice that disbarment was the appropriate sanction for an attorney's course of criminal conduct. The court described the facts:
In March, 2008, the respondent was temporarily suspended from the practice of law. The temporary suspension was based on the respondent's criminal conduct. In March, 2007, he admitted to sufficient facts to warrant a finding of guilty of operation of a motor vehicle with a suspended license and suspended registration. The matter was continued without a finding and he was placed on unsupervised probation. While on probation, he was charged with various new crimes, including assault and battery. The altercation that led to this charge occurred at the home of one of the respondent's clients. The respondent then failed to appear for a probation violation hearing. As a result of the probation violation and the failure to appear for the hearing, the continuation without a finding on the motor vehicle charges was vacated and findings of guilty were entered on both counts. The respondent was sentenced to ten days in a house of correction and placed on probation until July 14, 2008. He thereafter violated his probation again by, among other things, driving with a suspended license; testing positive for marijuana; and failing to report to a probation officer. His probation was revoked and he was sentenced to serve an additional ten days.
Then, in January, 2008, while visiting a client who was a defendant in a murder case and incarcerated at the Plymouth County house of correction, the respondent exchanged sneakers with the client. He wore new sneakers into the house of correction, exchanged them for his client's sneakers, and wore those when he left. He reported the incident and a complaint issued charging him with violating G.L. c. 268, §§ 28 and 31, which prohibit the delivery of articles to or receipt of articles from an inmate.
At the time of the March, 2008, temporary suspension, the complaint under G.L. c. 268, §§ 28 and 31, and the assault and battery complaint were still pending. The single justice, in issuing the order of temporary suspension, noted that he would "revisit" the matter if the pending criminal charges were resolved in favor of the respondent. They were not. In July, 2008, the respondent was convicted of assault and battery and sentenced to thirty days in a house of correction with two days to serve and the balance suspended for one year. In September, 2008, he admitted to sufficient facts on one count of delivering an article to and one count of removing an article from a prisoner (the sneakers), in violation of G.L. c. 268, §§ 28 and 31, a felony. The case was continued without a finding with probation to run concurrent with probation that the respondent was serving on the assault and battery conviction. In a separate proceeding, the respondent also admitted to sufficient facts to three charges of operating with a suspended registration and operating with a suspended license, subsequent offense. These charges were also continued without a finding.
In January, 2009, bar counsel filed with the Board of Bar Overseers (board) a petition for discipline alleging that the respondent had engaged in and been convicted of various crimes, including a felony, and that his conduct violated certain Massachusetts Rules of Professional Conduct. A hearing panel found that the respondent had violated Mass. R. Prof. C. 3.4(c), 426 Mass. 1389 (1998), and Mass. R. Prof. C. 8.4(b), (c), (d), and (h), 426 Mass. 1429 (1998). The committee recommended that the respondent be disbarred and that the disbarment be effective on the date of the order of disbarment. The board agreed. An information was filed and heard by a single justice, who ordered that the respondent be disbarred effective on the entry of the judgment (i.e., on the date of the order, as recommended by the board). The respondent appeals, seeking a two-year suspension rather than disbarment.
As to sanction:
No special mitigating circumstances exist here. The respondent argues that the hearing committee, and in turn the board, overlooked certain evidence and mitigating factors in reaching the conclusion that disbarment is the appropriate sanction. He argues, for example, that the hearing committee erroneously determined that the assault and battery, which occurred at a client's home, occurred in connection with the respondent's practice of law. The board concluded that it need not reach the issue because the respondent's felony conviction for exchanging items with an incarcerated client clearly was in connection with the practice of law. We agree, although we also note that to the extent that the respondent argues that the hearing committee did not credit his testimony regarding why he was visiting his client, we "accord to the hearing committee the position of 'the sole judge of the credibility of the testimony presented at the hearing.' " Matter of Saab, 406 Mass. 315, 328 (1989), quoting S.J.C. Rule 4:01, § 8(3), as appearing in 381 Mass. 784 (1980).
The respondent also argues that the hearing committee, and the board, did not give sufficient consideration as a mitigating factor to the respondent's having reported the incident involving the exchange of sneakers with his incarcerated client. Even if this were viewed as a mitigating factor, the fact remains that the respondent committed a felony, and has demonstrated repeatedly that he is not prepared to comply with the law. He has a history of prior discipline, has been convicted of various other crimes, and has more than once violated the terms of his probation. These are not the type of "special circumstances" that warrant, as the respondent requests, a lesser sanction than disbarment...
There may be a problem with the link. The case is Matter of Taylor, decided October 18, 2010. (Mike Frisch)
A case summary from Kentucky Court Report:
Kentucky Bar Association v. Sandra Camille Brooks 2010-SC-00000139-KB September 23, 2010
Opinion of the Court. All sitting; all concur. Brooks operates a business, “Legal Self Help,” in which she sells legal forms, assists customers in completing the forms, and gives legal advice to customers. In 1997, the KBA issued a directive to Brooks to cease and desist engaging in the unauthorized practice of law. Brooks refused to comply and in 2004 the United States Bankruptcy Court in the Eastern District of Kentucky found Brooks guilty of engaging in the unauthorized practice of law. In 2005, the Supreme Court held her in contempt, imposed a monetary sanction and again ordered her to refrain from the unauthorized practice of law. Brooks still refused to comply and in April, 2010 this Court ordered Brooks to show cause why she should not be held in contempt for violating the 2005 Order. Kentucky case law clearly establishes that Supreme Court has jurisdiction to sanction and enjoin non-lawyers from practicing law without a license. Kentucky Constitution § 116 provides for the Supreme Court to govern admission to the bar and to discipline members of the bar. This express authorization carries with it an implied corollary power to sanction those who invade the province of the profession without obtaining admission to the bar. Brooks held in contempt for violating the 2005 Order because her activities create the misleading impression that she is providing legal services in the capacity of an attorney. Sanction of $5,000 imposed for Brooks’ continued contemptuous actions.
The Illinois Review Board has affirmed a hearing board finding that an attorney engaged in dishonest conduct by improperly notarizing four documents but overturned the finding that the attorney committed a criminal act in violation of the applicable Illinois ethical rule. The Review Board reduced the proposed sanction from a nine-month suspension to a public censure.
The Review Board's analysis of the "criminal act" provision of Rule 8.4:
Rule 8.4(a)(3) states, in part, that "[a] lawyer shall not…commit a criminal act." Therefore, in our view, a finding by either the Hearing or Review Board that a criminal act was committed should not be made in the absence of a criminal conviction rendered by a court of law.
A Hearing or Review Board panel may find, based on clear and convincing evidence, that a lawyer violated a statute that has criminal penalties, and may sanction him based on that violation if his conduct was contrary to a professional conduct rule or established precedent. But we conclude that it cannot take the additional step of finding him guilty of "a criminal act" if there has been no court rendered conviction. The reasons for this conclusion are implicit in our system of justice. A criminal defendant is entitled to trial by jury and his guilt must be proved beyond a reasonable doubt, not by clear and convincing evidence.
Supreme Court precedent supports our conclusion. See, for example, In re Harris, 93 Ill.2d 285, 292-94, 443 N.E.2d 557, 66 Ill. Dec. 631 (1982), which states:
Attorney disciplinary proceedings are not criminal in nature….a disciplinary proceeding is not to be equated with a criminal proceeding, nor is the respondent attorney entitled to the same specificity as to the offense charged, or to the full panoply of rights afforded a criminal defendant.
The point we make is illustrated most vividly by In re Ettinger, 128 Ill.2d 351, 368-69, 538 N.E.2d 1152, 131 Ill. Dec. 596 (1989). In that case a lawyer who had been acquitted of bribery in a federal criminal trial was subsequently disciplined for the same conduct. The Supreme Court affirmed the principal that "an acquittal in a criminal proceeding against an attorney will not act as a bar to subsequent disciplinary proceedings based upon substantially the same conduct," pointing out that "the burden of proof in the two proceedings is different."
Although the issue of whether the lawyer had committed "a criminal act" never arose in the disciplinary proceeding in that case, clearly no Hearing or Review Board panel, in the face of a criminal court acquittal, could have found that the lawyer had committed "a criminal act." And so it must be with all cases. In short and from a legal perspective, it simply cannot be known whether "a criminal act" has been committed until there has been a conviction rendered by a court of law.
Because there was no evidence presented that Respondent was convicted of a crime with respect to the issues in this disciplinary case, we conclude that the Hearing Board erred in finding a violation of Rule 8.4(a)(3).
The attorney has a record of prior discipline. Howver, the misconduct found here took place before the conduct that had led to the earlier sanction.
My own view is that the legal analysis here is flat-out wrong. The rule prohibits the commision of a criminal act. It does not, by its plain terms, require a criminal conviction. Many criminal acts are not prosecuted for a wide variety of reasons. This does not render the conduct meaningless as a matter of legal ethics.
The D.C. Court of Appeals took a contrary view in In re Gil, 656 A.2d 303 (D.C. 1995).
Monday, October 18, 2010
A timely annoucement from Samuel J. Levine at Touro:
Submissions and nominations of articles are now being accepted for the first annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2010. The prize will be awarded at the AALS Professional Responsibility Section program at the 2011 Annual Meeting in San Francisco in January 2011. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: firstname.lastname@example.org. The deadline for submissions and nominations is November 1, 2010.
Fall Newsletter by AALS Professional Responsibility Section Is Available for Download, Packed with Info
Through the generosity of the AALS Section on Professional Responsibility and the hard work of many people and especially its editor Margaret Tarkington, a BYU law prof who is visiting at Cinncy right now, comes the fall newsletter: Download Fall_2010_Newsletter. It contains recent developments, bibliography, a letter from the Chair, and announcements including job postings, conferences, calls for papers, and the like. Margaret's own recent article contributing to this field is The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation, 97 GEO. L.J. 1567 (2009). [Alan Childress]
An attorney who was suspended for nine months by the Superior Court of North Carolina received the same sanction as reciprocal discipline from the Louisiana Supreme Court. The attorney was a party plaintiff in a suit assigned to business court in Wake County, North Carolina.
The attorney signed a case management report by which she agreed to use the court's electronic filing system and to communicate by e-mail. Then, "[a]pproximately one year later, respondent intentionally blocked all e-mails from the court's site, preventing her from receiving court orders and communications."
As a result of the ensuing failures to deal with court obligations, the attorney was ordered to show cause why she should not be held in contempt. She failed to appear at the show cause hearing.
The Louisiana court found no basis to impose a sanction different from that imposed in North Carolina. (Mike Frisch)
Sunday, October 17, 2010
Five members of a law firm's management committee were publicly reprimanded by consent for their admitted failure to properly supervise a non-lawyer employee. The employee caused false information to be posted on the law firm web page. The web page claimed that a former Louisiana Governor was a partner in the firm. In fact, he was not associated with the firm and is not admitted to practice in Louisiana.
One of the five orders of reprimand is linked here. (Mike Frisch)