December 11, 2010
Duty To Cooperate
The web page of the Pennsylvania Disciplinary Board reports that a rule change is under consideration that would mandate attorney cooperation with a bar investigation at an earlier stage than under existing rules, which only require cooperation after charges are filed:
The Disciplinary Board has now decided that cooperation of the respondent-attorney should be mandatory at an earlier stage in the disciplinary process. Absent Disciplinary Counsel's serving a respondent-attorney with a subpoena for records or documents, there is no requirement in the current rules that a respondent-attorney cooperate with a disciplinary investigation prior to the filing and service of a petition for discipline. Complaints that survive Office of Disciplinary Counsel's initial screening and investigative process proceed under Disciplinary Board Rules (''D.Bd. Rules'') § 87.7(b), which requires Disciplinary Counsel to give the respondent-attorney written notice (DB-7 Letter) of the nature of the grievance and 20 days to respond by filing in the district office a statement of position. A respondent-attorney's ability to ignore a DB-7 Letter or to decline to provide a statement of position, without consequence, is inconsistent with those obligations requiring attorneys to participate in the profession's process of self-regulation. As a practical matter, experience has shown that a respondent-attorney, by virtue of the present or former professional relationship with the client and the case-related information received during that relationship, is uniquely positioned to respond to complaints filed by a client; the information that the respondent-attorney provides in the statement of position oftentimes provides a defense to some or all of the allegations, which results in a resolution favorable to the respondent-attorney, including dismissal of the complaint, or serves to mitigate any discipline that may result. A rule requiring a respondent-attorney to participate during the early stages of an investigation will also encourage the respondent-attorney to secure counsel at that point in the process, and the prompt retention of counsel will in most instances be of benefit to the respondent-attorney.
A good idea. (Mike Frisch)
December 10, 2010
Ex-Governor Suspended, Faces Bar Complaint
Former North Carolina Governor Michael Easley has consented to the entry of an order of interim suspension. He recently tendered a plea of guilty to one count of certifying a false campaign report, a felony. The order provides that the State Bar will file a formal complaint in connection with the conduct that resulted in the conviction.
The SunNews.com has details about the criminal proceedings here. (Mike Frisch)
Rue The Day
The web page of the California State Bar has a disbarment story with a Hollywood connection:
A Los Angeles attorney who represented a client who tangled with “Golden Girls” star Rue McClanahan in “contentious and acrimonious” litigation was disbarred. The State Bar Court recommended that [the attorney] lose his license to practice for, among other things, offering to dismiss a case his client brought against McClanahan in exchange for $5 million. Paolino’s client, former documentary filmmaker Dirk Summers, had sued the late actress for defamation, slander and libel.
Bar court Judge Richard Platel found that [the attorney] committed eight acts of misconduct, three stemming from the Summers-McClanahan litigation and the remainder for essentially selling his law license to a non-lawyer who appeared before the immigration court.
High Volume, Soft Tissue
The New York Appellate Division for the First Judicial Department has imposed a relatively light two-month suspension in a case involving a conviction of a misdemeanor serious crime.
The court described the facts:
In 1998, respondent began what became a high-volume practice focusing on soft-tissue motor vehicle accident cases. Between June 2003 and January 2005, respondent accepted about 150 referrals from three medical clinics (the Clinics), which constituted approximately 15% of his practice. Respondent purchased narrative medical report packages for $500-$1,000 in each case the Clinics referred to him. In addition, he testified that he agreed to represent 10 to 15 clients from the Clinics that he did not want to represent and paid for medical report package fees for those cases in order to keep referrals flowing. As a result of his arrest and conviction, respondent's law firm dissolved. He is currently a solo practitioner with reduced earnings, handles only a couple of new cases a year and makes per diem appearances for other attorneys, with a nearly 75% decrease in income from $500,000 per year to $130,000. Respondent expressed remorse and testified that he has since learned the importance of credibility and has been diligent in observing the ethical rules.
The misconduct was less serious than cases cited by the court:
While respondent admits that his acceptance of the 10 to 15 cases that he would have preferred not to handle was akin to a bribe and made in order to induce future referrals and thus, constituted solicitation, there was no evidence that respondent's representation of those individuals was in any way compromised. Further, given the reduction in respondent's case load and his remorse and contrition, there is no reason to believe that he poses a future threat to the public. Additionally, while respondent's $100 cash payment to a medical clinic manager is troubling, there is no evidence that the conduct was ever repeated and the one-time payment is considerably less than the repeated conduct which warranted only a three-month suspension in Ehrlich, 252 AD2d at 75. We also find that the payment for medical narratives in the subject 10 to 15 cases is less egregious than the cash payments Ehrlich paid for referrals since the "market price" was paid for the narratives, those documents are useful in prosecuting soft-tissue motor vehicle accident claims, and they represent work actually performed by the Clinics in preparing the reports. As recognized by the Hearing Panel in Meyerson, this type of "quid pro quo arrangement" is "qualitatively less pernicious than the classic cash-for-client solicitations depicted in Ehrlich, Setareh, Hankin and Santalone" (46 AD2d at 145).
December 9, 2010
The Greater Fear
The web page of the North Carolina State Bar reports on recent discipline:
[An attorney] of Raleigh forged his wife's signature and affixed a false jurat to a deed of trust securing a loan he obtained to pay delinquent taxes. [He] did these things because he was afraid to tell his wife he owed back taxes. He did not intend to defraud the lender. The DHC suspended [him] for six months.
Prison Rather Than State Bar Presidency
[The attorney], 47, was a civil lawyer for the downtown Minneapolis firm Gray Plant Mooty and was in line to become president of the Minnesota State Bar Association next July. He was president of the Hennepin County Bar Association in 2001-2002.
[He] must serve at least 12 years in prison. He would then be under supervision of the court system for 10 more years.
The conviction involved the rape of a 15 year old neighbor. (Mike Frisch)
The Oklahoma Supreme Court has refused to accept a resignation by letter and referred for disciplinary proceedings a criminal conviction for sexual exploitation of a child. The attorney was suspended pending further proceedings.
The Army Times reported the attorney's arrest in October 2009:
FBI agents arrested an Army lawyer and West Point graduate Wednesday on charges of producing and distributing child pornography.
Maj. Daniel A. Woolverton of Arlington, Va., 35, is scheduled to appear in court Friday, according to the U.S. Attorney’s Office for the Eastern District of Virginia.
Court documents state Woolverton faces one count of production of child pornography and two counts of distribution of child pornography. All three are felonies.
As of Thursday, an attorney for Woolverton was not listed in federal court records.
The case began May 22, when an undercover FBI special agent, using peer-to-peer software, came upon a user named “VERONICA_S2000” who had made available for sharing “several child pornography images and videos,” according to an affidavit submitted to the court by FBI Special Agent Chad Gallagher.
The undercover agent browsed through the user’s folder and viewed images that appeared to be child pornography, according to the affidavit.
On or about July 21, through an administrative subpoena, investigators learned that the images were coming from an IP address assigned to a Daniel Woolverton at an Arlington address, according to the affidavit.
FBI agents searched the address Wednesday and seized a 4-gigabyte camera memory card that contained about 19 images and videos depicting sexually explicit conduct, including one involving an infant who appeared to be less than a year old, according to the affidavit.
WUSA9.com has more information about the crimes:
A former Army Major from our area was sentenced to 27 years in federal prison for a horrific crime: raping a baby.
Federal authorities found 30,000 images and 100 videos of child pornography on the computer of 35 year-old Daniel Woolverton.
Daniel Woolverton was a 1997 West Point graduate, with a career as an Army trial lawyer that appeared to be on the fast track. Now, hes behind bars after raping a boy as young as three months old, an act he videotaped.
"Well, its repulsive," said an Arlington neighbor.
"Raping an infant? Oh boy. Thats terrible," said another.
Neighbors say Woolverton lived with his wife and children on a quiet Arlington street. Quiet until law enforcement descended on the home last fall and seized tens of thousands of pornographic images and videos, including a memory card with images of a man raping an infant.
"The day that it happened, the entire street was alive from about five in the morning on," remembered a neighbor who lives across the street. "More police than I've ever seen. Ever. And they were from, you name it."
"It can happen anywhere in today's world. Somebody with a computer," said another neighbor, who lives next door.
According to court records, the wristwatch on the man in the videos and items in the Arlington home linked Woolverton to the crimes. Agents also found a bib worn by the baby in the pornographic images inside Woolverton's car.
9News spoke with a young couple cradling their newborn as they took an evening stroll.
"I just think that's horrifying. It's just beyond my comprehension," said the new father.
"To even fathom that, I think is impossible," said the new mother.
The attorney may resign under procedures that would impose a sanction tantamount to disbarment. (Mike Frisch)
No Place Like Home
An Illinois Hearing Board has recommended a one year suspension of an attorney for her dealings with her stepfather after the death of her mother. The attorney had a 50% interest in the marital residence subject to the life estate of the stepfather. She had a friend and mentor draft documents that gave her the remaining interest (which the stepfather had previously willed to his own relatives) as well as power of attorney. The attorney claimed she had acted in the stepfather's interests to help secure public assistance.
The hearing board did not fully accept the motivation agruments of either side:
Respondent testified that her purpose in taking ownership of Dancik’s half of the Woodridge property and using his assets in connection with the property was to benefit Dancik in his application for public aid, and not to feather her own nest. She explained that Dancik had no health insurance and therefore he needed to seek public aid to cover his medical costs. In order to ensure his eligibility, Respondent spent down his assets and transferred ownership of the Woodridge property to herself. She believed that depriving Dancik of ownership of his property would be, in the end, the best way to keep him in the house.
The Administrator, on the other hand, attached the most sinister of motives to Respondent’s actions, arguing that Respondent’s long history of frustrations with Dancik’s drinking and her resentment of the manner in which he treated her mother led to hatred, revenge and a plot to systematically strip Dancik of all of his financial assets so she could recoup what she believed was rightfully hers. The Administrator theorized that Respondent’s goal was to take ownership of Dancik’s property and then have him confined to a long-term care facility at the expense of taxpayers. We reject this motive.
Having reviewed the evidence with respect to Respondent’s and Dancik’s relationship, we do not believe the Administrator proved that Respondent’s actions stemmed from any deep-seated vengeance. Respondent testified that after her mother’s death she and Dancik visited often, spent holidays together, and she and her husband helped Dancik maintain his household. Although Dancik’s memory was poor on many events, he did acknowledge that he probably spent holidays with Respondent and that she visited him at his house
However, although we were not convinced that Respondent was acting out of bitterness or malice toward Dancik, neither do we believe that she was acting purely for Dancik’s benefit. If Respondent were merely attempting to ensure Dancik’s eligibility for public aid, as she claimed, his interest in the Woodridge property could have been transferred to anyone, with the most likely candidates being his own blood relatives. Instead, Respondent was the beneficiary of all of the transactions and ultimately managed to become the owner of a piece of property unencumbered by any mortgage. Further, Respondent’s claim that she was trying to find a way to keep Dancik in the house was contradicted by [Dancik's sister's] testimony that Respondent told her in the summer of 2001 that she could dislodge Dancik from the Woodridge property at any time. Further, Respondent sought no guidance from any other attorney or family member in avoiding situations where her interests clearly conflicted with Mr. Dancik’s.
The impropriety of taking someone’s property without compensation, and then using that person’s funds to maintain the property and pay off the mortgage, should have been obvious to Respondent. In short, she took ownership of the Woodridge property while Dancik was hospitalized, and thereafter acted under the guise of trying to assist him.
The stepfather is alive and testified at the hearing. The attorney also made a false statement to secure public assistance for the stepfather. (Mike Frisch)
No Moral Turpitude
In a victory for common sense and negotiated sanctions, the District of Columbia Court of Appeals held that a criminal conviction may be the subject of an agreed disposition after the court has referred the conviction for a moral turpitude inquiry. The question was one of first impression. In D.C., a conviction for an offense involving moral turpitude requires disbarment pursuant to a provision of the District of Columbia Code.
The attorney was convicted of false entries in an FCC matter. He was suspended as a result of the conviction in August 2006. A hearing committee was convened and the parties submitted a petition for a negotiated sanction. Pursuant to guidelines set forth by the Board on Professional Responsibility, a hearing committee "evaluate[d] the thoroughness of Bar Counsel's investigation into the matter" and approved the petition.
The court found no evidence of moral turpitude and imposed a one year suspension, which has been fully served. In the criminal case, the government conceded that it could not prove that the attorney had knowingly signed false documents. (Mike Frisch)
December 8, 2010
The Price Of Patronizing
The Indiana Supreme Court approved a conditional agreement for discipline and imposed a public reprimand of an attorney. The attorney had been charged with patronizing a prostitute, a class A misdemeanor. An agreement was reached in the criminal case to withhold prosecution in exchange for six hours of community service and attendance at a "Patronizing Impact Panel." The attorney fulfilled the obligations and had no prior criminal or bar disciplinary record.
The parties agreed that the attorney violated Rule 8.4(b) in that the criminal act reflected adversely on honesty, trustworthiness, or fitness as a lawyer. (Mike Frisch)
Lawyers, Guns And Marijuana
The Pennsylvania Supreme Court accepted the resignation of an attorney and disbarred him on consent.
The attorney had entered a guilty plea in the Eastern District of Pennsylvania to federal charges of possession of a machinegun and manufacturing marijuana. (Mike Frisch)
From "Debt Relief" To Bar Charges
The Illinois Administrator has filed a complaint alleging misconduct on the part of an attorney involved in a national debt relief practice. The charges arise from the following alleged facts:
1. Between 2005 and 2010, Respondent and Philip Manger, an attorney licensed in New York and residing in Connecticut, were the two members of the Credit Collections Defense Network ("CCDN"), a Nevada limited liability corporation. Manger, who was not licensed to practice law in Illinois, was the managing member of CCDN.
2. Between 2005 and 2010, Respondent and Manger together operated CCDN as an entity providing legal services to consumers nationwide relating to consumer credit card debt and other debt collection matters.
3. Specifically, CCDN offered its potential clients the opportunity to use its "Debt Reconciliation Program" in order to validate existing consumer debts; restore their credit; and, where applicable, seek redress for alleged violations of the Fair Debt Collection Practices Act.
4. Between 2005 and 2010, CCDN conducted its operations at several different locations, including, between approximately 2005 and 2009 a residence in Cattaraugus, New York, which it designated as the "CCDN Support Center." Between approximately 2009 and 2010, the "CCDN Support Center" was located at an office suite in Brick, NJ. Further, various promotional materials created by Respondent or Manger for CCDN gave the address for CCDN's headquarters as 7144 North Harlem Ave, Suite 323, Chicago, which was a private mailbox located at a UPS Store.
5. Between 2005 and 2010, CCDN had several employees, including two paralegals who worked from their home in Ohio, and a manager of the "CCDN Support Center" who had, prior to being employed by CCDN, owned and operated a lawn-care service in Florida.
6. Between 2005 and 2010, CCDN received payments in amounts between $2,500 and $4,800 from at least 2,219 clients seeking its assistance with relation to credit card debts and other debt collection matters, including, but not limited to, CCDN's assistance in communicating with original creditors in relation to validation or invalidation of debts.
7. Between 2005 and 2010, Respondent, together with Manger, drafted and revised materials given by CCDN's agents or employees to its clients relating to the Debt Reconciliation Program, including a document entitled "Debt Reconciliation Program Enrollment Manual" ("the Enrollment Manual").
8. Respondent knew that the Enrollment Manual stated, inter alia, that the Debt Reconciliation Program purported to involve three phases: Phase I (Credit Restoration); Phase II (Reconciliation); and Phase III (Federal Lawsuit). Respondent further knew that the Enrollment Manual stated that the Debt Reconciliation Program was to continue for 24 months after the customer or client began participating in the program.
9. Between 2005 and 2010, the sole "credit restoration" service CCDN provided to its clients was to refer its clients to The Fulfillment Center, a Delaware business entity in which neither Respondent nor Manger participated. At no time during Respondent's participation in the operation of CCDN did CCDN take action to challenge any information on its clients' or clients' credit reports, or otherwise "monitor" any such reports.
The attorney is alleged to have engaged in multiple acts of dishonesty, misleading communications concerning his servicers and splitting fees with a non-lawyer.
These charges may reflect an increasing regulatory interest in such practices. (mike Frisch)
December 7, 2010
Prison Sex Results In Disbarment
From the State Bar of California web page:
The California Supreme Court today disbarred [a] Hollister lawyer...who had sexual relations with two incarcerated clients when he was a contract public defender. Disbarment is effective Jan. 1.
[The attorney] was charged in May 2004 by the Office of Chief Trial Counsel with engaging in sexual misconduct with two female clients who were incarcerated in San Benito County. [He]argued that the sex was consensual.
Over the objections of the chief trial counsel’s office, [the attorney] was admitted to the State Bar’s Alternative Discipline Program, which allows for substance abuse or mental health treatment before a case is decided. [He]entered into an agreement to assist in his recovery process from depression disorder, sexual disorder, narcissistic personality disorder and obsessive compulsive disorder.
When he completed the program in 2007, the State Bar Court Hearing Department imposed a one-year stayed suspension and two years’ probation for his misconduct. State Bar prosecutors appealed the decision to the Supreme Court, which, in 2009, ordered the State Bar Court to conduct further hearings.
Following the hearings, State Bar Court Judge Lucy Armendariz agreed that a stayed suspension was too lenient for [the attorney] and recommended disbarment. “Despite respondent’s successful completion of the ADP and LAP [Lawyer Assistance Program] and years of therapy,” Armendariz wrote in her disbarment recommendation, [he] “has not fully grasped the egregiousness of his offenses and the extreme harm he had caused the administration of justice and integrity of the legal profession.” The judge noted that [he] went so far as to argue that a mitigating factor should be that his misconduct accounted for no more than “an hour’s total duration.”
“Violation of one’s professional and ethical duties is not measured by the length of time,” Armendariz wrote. “Having improper sexual relations with a client breaches the basic notions of trust and integrity and endangers public confidence in the legal profession, irrespective of its duration . . . His persistent claims that the sexual relations were consensual and that [one woman] never told him to stop are indeed troubling and adversely reflect on his fitness to practice law.” The judge referred to an Iowa Supreme Court decision which stated that “the professional relationship renders it impossible for the vulnerable layperson to be considered ‘consenting.’”
The link may be found here. (Mike Frisch)
December 6, 2010
Bad Behavior Not Unethical
In a bar complaint brought by the opposing party and a "friend and supporter" in a highly-charged domestic relations matter, a single justice of the Maine Supreme Court held that none of the charges of ethical misconduct (and there were a laundry list of such charges involving virtually every form of litigation abuse) had been proven by a preponderance of the evidence.
The court handed out no plaudits for the behavior of counsel for both husband and wife. The accused had represented the husband throughout the proceedings; the complainant had been represented by seven different lawyers and also had been pro se. The single justice concluded that the four discreet instances of alleged "intemperate and bad practice, and perhaps ethical violations" must be considered in light of the years of highly charged exchanges between the parties and their attorneys:
...finding an ethical violation proved by a preponderance of the evidence requires more than showing that an attorney was uncivil, or used harsh words, or forgot good manners. It requires proof that a specific rule was violated...
The attorney is held to the standard of a competent and rational attorney acting on circumstances as they reasonably appear.
The opinion in 65 pages long and explains in exacting detail why, in the justice's view, the bad behavior did not rise to the level of an ethics violation. Comfort to those who labor in contentious litigation: a pox on both houses. (Mike Frisch)
Incident In Yellowstone County Leads To South Carolina Disbarment
The South Carolina Supreme Court has disbarred an attorney for criminal conduct that took place in Montana:
On or about May 5, 2005, respondent was charged by information with two (2) counts of Assault with a Weapon (Felony) and one (1) count each of Partner or Family Member Assault (Misdemeanor), Intimidation (Felony), and Tampering with Witnesses and Informants (Felony). The information was issued in Yellowstone County, Montana. On August 26, 2005, the Court placed respondent on interim suspension...
On or about October 24, 2007, respondent was convicted of two counts of Assault with a Weapon (Felony), one count of Partner or Family Member Assault (Misdemeanor), one count of Intimidation (Felony), and one count of Tampering with Witnesses and Informants (Felony). On or about March 25, 2008, respondent was sentenced to twenty years imprisonment on the first count of Assault with a Weapon (Felony), twenty years imprisonment to run consecutively on the second count of Assault with a Weapon (Felony), one year imprisonment to run consecutively on the count of Partner or Family Member Assault (Misdemeanor), ten years imprisonment to run consecutively on the count of Intimidation (Felony), and ten years imprisonment to run consecutively on the count of Tampering with Witnesses and Informants (Felony). The Montana Supreme Court affirmed the convictions on or about June 30, 2009.
Reprimand, Fine, Ethics Course, Probation
For those who think that bar discipline is too lenient, try a recent decision of the Maryland Court of Appeals that affirmed the order of an administrative law judge in a medical discipline matter. The charges were brought by the State Board of Physicians against a doctor who had falsely denied in a license renewal application that he had been sued for medical malpractice.
The doctor had claimed that he misunderstood the question and that English was his second language. The court agreed with the ALJ that the doctor was proficient in English. Further, the court found that the false statement to the licensing authority was sufficiently related to the practice of medicine to warrant professional discipline.
The sanction: reprimand, a $5,000 fine, an ethics course and probation. The appeal of the sanction that the court rejected came from the doctor. (Mike Frisch)