Monday, February 28, 2011
In a defamation action brought against an attorney who had defended a criminal matter against an embezzling former law firm employee, the New York Appellate Division dismissed claims against a third-party defendant but allowed the defense that the statements at issue were true. The court described the facts:
The plaintiff Peter J. Galasso, a partner in the plaintiff law firm Galasso, Langione & Botter, LLP (hereinafter GLB), represented Stephen Baron in his divorce action. Baron designated GLB as his escrow agent in June 2004, to hold almost $5 million in an escrow account. Peter J. Galasso's brother, Anthony Galasso, was GLB's bookkeeper. In January 2007, Anthony Galasso confessed that he had stolen approximately $4.4 million from the escrow account. The defendant third-party plaintiff, Thomas F. Liotti, is a criminal defense attorney who represented Anthony Galasso in the criminal action against him. Anthony Galasso eventually pleaded guilty to all 22 counts charged in Nassau County Indictment No. 2349N/2007 and, in his allocution, stated that the attorneys at GLB played no role in his crimes. Following Anthony Galasso's arraignment, Liotti made a statement to a reporter, which was published in the October 25, 2007, edition of Newsday, in effect, accusing the attorneys at GLB of "[d]ipping into company accounts." The plaintiffs commenced the instant action, inter alia, to recover damages for defamation. Thereafter, Liotti commenced a third-party action against the plaintiffs' attorney, Frederick K. Brewington, inter alia, to recover damages for defamation, abuse of process, and intentional infliction of emotional distress.
The defense of truth of the statements may go forward:
Liotti proffered, inter alia, an affidavit by Anthony Galasso, wherein Anthony Galasso now stated that he was "directly ordered" by the plaintiffs Peter J. Galasso and James R. Langione to "falsify disbursement expenses for clients for the express purpose of making more money for Peter [J. Galasso] and James [R. Langione]."
The New York Appellate Division for the Second Judicial Department has imposed reciprocal discipline based on a sanction of a federal bankruptcy court. The court describes the facts:
By Stipulation and Order of the United States Bankruptcy Court for the Eastern District of New York, dated January 22, 2009, the respondent was suspended for a period of one year from engaging in the practice of law before the United States District Court, Eastern District of New York, and the United States Bankruptcy Court, Eastern District of New York. The Stipulation and Order resolved allegations made by a former client of the respondent, for whom the respondent had filed a bankruptcy petition. The respondent acknowledged that he had filed a certificate of credit counseling over the Internet stating that his client had completed a required credit counseling course before filing the bankruptcy petition, when, in fact, he had taken the credit counseling course on behalf of his client. The respondent was permitted to conclude certain specified bankruptcy matters currently pending. He was directed to expeditiously transfer all other bankruptcy matters to substitute counsel. At the end of the one-year period, the United States Trustee would not object to the respondent's reinstatement, provided that he satisfactorily complied with all terms of the Stipulation and Order, was in good standing before the New York State Bar and the United States District Courts, and complied with all requirements under the applicable provisions of the law to resume his practice before the United States District Court within one year after entry of the Stipulation and Order. Prior to seeking reinstatement, the respondent was required to complete 12 hours of Continuing Legal Education (hereinafter CLE) in the area of bankruptcy and 4 hours in the area of ethics. In addition, the Bankruptcy Court imposed a fine in the sum of $40,000. After paying the fine and obtaining the required CLE credits, the respondent was reinstated to practice by order of the United States District Court, Eastern District of New York, dated March 8, 2010.
The reciprocal sanction is a public censure. (Mike Frisch)
The New Jersey Appellate Division reversed the conviction of a defendant convicted of murdering his pregnant girlfriend. The court concluded that the jury instructions on the insanity defense require a new trial:
The judge's instructions on the insanity defense did not preclude the possibility that the jury believed the defendant acted on God's command and yet rejected the insanity defense by finding the defendant understood what he did was legally wrong. Because it is not inconceivable that the jury rejected the insanity defense because it did not know that insanity could have been found if defendant knew what he did was legally wrong but nevertheless acted because of God's command, we are compelled to conclude the charge was capable of producing an unjust result.
[The judge], 67, was arrested Friday shortly after paying an undercover FBI agent $160 for cocaine and Roxycodone, a narcotic pain medication, that he intended to use with the exotic dancer, according to the criminal complaint filed with U.S. District Court. Camp had two firearms in the front seat of his vehicle at the time of his arrest.
The charges against [him] were laid out in an eight-page affidavit released late Monday.
[The judge] met the confidential informant, who recently began cooperating with the FBI, at the Goldrush Showbar in Atlanta in early 2010 and he soon began paying her for sex and buying cocaine from her, according to the affidavit.
In June 2010, [the judge] followed the informant to a drug dealer in Marietta to buy Roxycodone. He was also recorded in a wiretapped telephone call on Sept. 28 talking with her about getting together over the weekend to split more pills and cocaine with her, according to the charges.
He showed up at a Publix parking lot in northeast Atlanta around 7:15 p.m. Friday to meet with the an undercover agent posing as the dealer. When the informant told her she was worried about his safety, the judge told her “I not only have my little pistol, I’ve got my big pistol so, uh, we’ll take care of any problems that come up,” according to the affidavit.
He handed over $160 in cash to pay for the drugs around 7:35 p.m. Ten minutes later, authorities arrested the judge and seized the two guns from the front seat of his vehicle, according to AP.
The judge faces four drug-related charges and one count of possessing firearms while illegally using drugs, according to the affidavit.
Two Georgia judges disciplined in one day. (Mike Frisch)
The Georgia Supreme Court has disbarred a former superior court judge who pled guilty to honest services fraud conspiracy in federal court. He had served as a judge for 27 years. The court rejected a special master's recommendation of a three-year suspension:
It hardly bears stating that a judge occupies a unique and crucial position of power, trust and responsibility in our society. We cannot rightfully expect members of the public to respect the law and remain confident in the integrity and impartiality of our judiciary where judges themselves do not respect and follow the law. No matter how one looks at this case, [his] felony conviction deals a serious blow to the public's confidence in the legal system...
Details from AJC.com. (Mike Frisch)
The Pennsylvania Supreme Court suspended an attorney for two years for practicing while serving a six-month suspension.
The reason for the prior suspension?
He had practiced law while suspended for failure to comply with CLE obligations. This matter involved practice while serving the six-month suspension.
The attorney met with a person (and his family) who was facing criminal drug charges. The suspended attorney provided legal advice and was paid $3,000 (which he split with another attorney without advising the client). The attorney then went with the client to surrender to authorities and to the preliminary arraignment, where he sat in the gallery rather than at counsel's table.
The client was asked to sign a document and turned to the attorney. He signed after the attorney nodded in approval. The judge noticed. When questioned by the judge, the attorney admitted that he was suspended.
The client retained new counsel and sought a full fee refund. The attorney did not promptly return the fee, which was late paid by the attorney who had received half of the $3,000. (Mike Frisch)
Sunday, February 27, 2011
The Vermont Professional Responsibility Board has publicly reprimanded an attorney admitted in 2005. The attorney represented a criminal defendant through a contract with the public defender. The case involved charges of aggravated sexual assault and domestic assault. The attorney sought to introduce evidence of past sexual acts of the victim:
In the week prior to the trial...the court made several specific pre-trial rulings that prohibited the defense from referring to the complaining witness’ sexual behavior. On the first day of the trial, before the jury came in, Respondent asked that the court reconsider the rulings. The request was denied, and the court noted that these rulings had been made on at least three prior occasions. On Respondent’s cross-examination of Detective Tyler Kinney, one of the State’s witnesses, Respondent asked the detective if he had learned during his investigation that the complainant had had sex with three other men. The court sustained the State’s objection to the question. The court then excused the jury and told Respondent that he was in direct contempt of the earlier rulings. The court later granted the State’s motion for mistrial.
Respondent stipulated that his disobedience of the court order was knowing. The trial court found that his conduct “was an intentional violation of the court’s pre-trial rulings and the Vermont Rape Shield Law.” The court found him directly in contempt and fined him $2000.00, the cost of drawing the jury and one day of trial. Respondent appealed to the Vermont Supreme Court. The Supreme Court affirmed the trial judge’s ruling in rather strong language. “Counsel’s conduct is particularly egregious given the purpose of the rape-shield law. . . . Under no circumstances could counsel have reasonably believed that his question about the victim’s sexual encounters in 2006 was appropriate, and the court’s finding that he willfully violated its prior rulings is amply supported by the evidence. The only purpose of this question was to intentionally prejudice the jury, and the court correctly characterized counsel’s conduct as calculated and outrageous. It acted well within its discretion in finding [him] in contempt.”
The board found that mitigating factors made suspension inappropriate notwithstanding the attorney's knowing disobedience of a court order. (Mike Frisch)
Friday, February 25, 2011
The South Carolina Supreme Court has imposed a public reprimand with terms on an attorney for failure to properly administer his escrow account. The facts:
Until 2006, respondent's secretary conducted monthly reconciliations of his trust account. In 2006, the secretary left the law firm and, at that time, reported to respondent that she had been unable to balance his books for some period of time. Respondent stopped his monthly reconciliations at that time.
Between December 2008 and August 2009, respondent's paralegal, Ann Pressley, issued twenty-nine checks payable to herself for a total of $117,000.00 on respondent's trust account. Ms. Pressley issued the checks by either forging respondent's signature on the checks or signing her name to others. Ms. Pressley was not entitled to these funds and respondent did not authorize issuance of these checks. Respondent had not given Ms. Pressley signatory authority on the account; however, he did delegate the preparation of trust account checks to her and allowed her to sign his name on those checks.
Respondent did not discover Ms. Pressley's misappropriation because he did not review his monthly bank statements or conduct monthly reconciliations of his trust account. On three occasions between April and July 2009, respondent did ask Ms. Pressley for his bank statements, but she did not comply with his request.
In August 2009, respondent discovered the defalcation when he obtained copies of his bank statements and checks. Ms. Pressley had been able to remove funds from the trust account without detection because she did not issue checks to clients and third parties who were entitled to funds from the account. If respondent had conducted monthly reconciliations, he would have discovered a significant number of outstanding checks, some more than four years old.
In August 2009, a warrant was issued for Ms. Pressley's arrest in connection with the checks drawn on respondent's trust account. Respondent fully cooperated with law enforcement in the investigation and prosecution of Ms. Pressley. Respondent also retained an outside accountant to reconcile his account and to determine the extent of the misappropriation. Further, he replaced his clients' funds with personal funds, and he opened a new trust account and made arrangements with his bank to insure that outstanding checks were paid from the new account. Respondent reissued checks to replace outstanding checks that had not been delivered. He self-reported this matter to ODC in January 2010.
Respondent admits he violated other provisions of the Court's rules. In particular, he admits he failed to adequately account for law firm funds maintained on deposit in his trust account to cover bank charges and fees, resulting in overdrafts to that subaccount. Further, he did not prepare settlement statements on all of his contingency cases in violation of Rule 1.5, Rule 407, SCACR. Moreover, respondent's firm had a practice of disbursing checks to clients and to his firm prior to actually depositing and collecting the funds to cover the disbursements.
In addition, respondent issued at least two checks to cash. Although he has been able to document the purposes of those checks and demonstrate the funds were properly paid, respondent acknowledges he violated the provision of Rule 417, SCACR, that requires trust account checks be made payable to a named payee and not to cash. Finally, on two occasions following the opening of his new trust account, respondent inadvertently wrote checks from the wrong account, resulting in insufficient funds. The errors were corrected upon discovery and no client funds were lost.
...within six months of the date of this order, respondent shall complete the Legal Ethics and Practice Program Trust Account School and, for a period of one year from the date of this opinion, respondent shall submit his monthly trust account reconciliations to the Commission on Lawyer Conduct.
This was a consent disposition (and, in my view, a very favorable result for the attorney). There are places where inattention to an escrow account for a perod of years will get a lawyer suspended from practice. (MIke Frisch)
Thursday, February 24, 2011
A Louisiana Hearing Committee has recommended a fully-stayed suspension of an attorney who had provided legal assistance to impeached federal judge Thomas Porteous and his spouse.
After failed attempts to achieve a non-bankruptcy workout for debt problems, the attorney advised his clients to file a chapter 13 petition by using the name "Ortous" and a post office box address. The committee found that the attorney concocted and "sold" the idea to the judge and his spouse in which they would "purposefully misspell their names" on the initial petition in order to
protect then Judge Porteous and his wife's identities from the press and the public. Apparently, during this time the local newspaper, the Times Picayune, would publish the names of all those persons who filed for bankruptcy. The data used to compile the information for these publications were solely the initial petitions.
According to the committee, "the plan worked flawlessly." The attorney sought to amend the next day with the correct names and address, claiming it was a typo. The trustee testified that he would have recommended a bad faith dismissal if he had known the truth.
The committee recommendation is for a downward departure from the baseline sanction of suspension for such misconduct. The attorney has no record of prior discipline.
WWLTV.com had this report (with video) of the attorney's testimony at the impeachment trial. (Mike Frisch)
The Indiana Supreme Court has imposed a 30-day suspension of an attorney who had a sexual relationship with a client who he represented in a dissolution matter. After the sexual relationship began, the attorney refunded the fees paid by the client but continued to represent her for about two months. The court then granted his motion to withdraw his appearence. The client and her spouse reconciled and dismissed the dissolution action.
The attorney will be automatically reinstated after the suspension. He has no prior discipline and a history of pro bono and community service. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has recommended the permanent disbarment of a former New Orleans assistant city and district attorney convicted in federal court of "misusing his formal official positions...to commit sexual assaults and rapes of young women in the New Orleans area." The charges involved evidence from five victims who had been forcibly raped or sexually assaulted over a six year period from 1998 to 2004.
The attorney was sentenced to life in prison. As to sanction, the board concluded
By his actions, respondent has revealed he falls far short of the high ethical standard expected of attorneys in this state, particularly given his role as a public official when the acts were committed.
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio has suspended the license of [a] Cleveland attorney...for two years, with the final 18 months of that term stayed on conditions, for mishandling and misappropriating funds belonging to an incompetent ward and failing to properly supervise her employees resulting in the filing of a false guardian account and forged affidavit.
The Court adopted findings by the Board of Commissioners on Grievances & Discipline that after being appointed successor guardian for an incompetent person by the Cuyahoga County Probate Court, and deducting her court-approved fees, [the attorney] held $16,972 of the ward’s remaining assets in her law office trust account. As part of stipulations by the parties in the case, [the attorney] admitted that over an ensuing six month period she wrote 25 checks payable to herself from the trust account that completely exhausted the client’s funds.
While [the attorney] subsequently restored the full amount of the ward’s funds to her trust account and made an additional deposit of $2,000 as compensation for interest that would have accrued on those funds, the Court agreed with the board’s conclusion that [her] conduct violated, among others, the state disciplinary rules that require an attorney to hold property of clients in a dedicated account separate from the lawyer’s own property, and that prohibit an attorney from engaging in conduct involving fraud, deceit, dishonesty or misrepresentation and conduct that adversely reflects on an attorney’s fitness to practice.
In staying the final 18 months of the suspension, the Court specified that [she] must be monitored by another attorney during that period, remain in compliance with an alcohol and mental health recovery contract with the Ohio Lawyers Assistance Program, and complete extra continuing legal education course work in law office management.
The court's opinion is linked here. The sanction determination was influenced by evidence that depression had contributed significantly to the misconduct. (Mike Frisch)
The Maryland Court of Appeals has held that a trial court committed reversible error in a medical malpractice case by refusing to grant a continuance sought for a religious observation that had been sought by the plaintiff and his counsel.
Shavous fell in the middle of the ten-day trial. Plaintiff and his counsel had on four occasions sought a continuance during the two days. Defense counsel objected and the court refused to grant any delay. Plaintiff rested prior to Shavous but the court allowed the defense (on behalf of the hospital) to go forward in the absence of the palintiff and his counsel. They returned in time to get the losing result.
There are two concurring opinions. (Mike Frisch)
Wednesday, February 23, 2011
A majority (the two attorneys) of a Louisiana Hearing Committee has recommended a fully-deferred three month suspension of an attorney who sued a number of law firms who had represented his client in connection with litigation in federal court that grew out of a 1995 explosion of a chemical plant in Bogalusa, Louisiana. The majority rejected a number of charges relaing to disobeying court orders and vexatious litigation.
After judgment was entered in the underlying litigation and his client was awarded attorneys' fees and costs, the attorney e-mailed opposing counsel that he would not provide his firm's statement, "At least, not until the next trial." Counsel responded: "in light of the rulings and verdict, haven't we had our last trial?" Rejoinder:
You Wish!!! No, I plan to make your firm a lot a money, not to mention mine. As long as they pay you sooner than my client. See you at the 5th--I hope you have that appeal bond ready.
The majority rejected charges based on the e-mail, as well as a number of other alleged rule violations.
The federal court had imposed sanctions of over $27,000 in attorneys' fees and costs against the respondent.
The lay member dissented (Bravo for not rubber-stamping the conclusions of the lawyers) and would find a number of additional violations.
The use of the word "vexation" to me means a lot, looking up the definition of this word is: the act of harassing. The use of the word "vex" one finds in its defintion: to agitate, to bring trouble, distress. So I do hope that the Disciplinary Board will find that respondent did violate the rules stated by Disciplinary Counsel.
The lay member would impose a period of actual suspension of a year and a day. (Mike Frisch)
The Mississippi Supreme Court has approved the proposed public reprimand of a chancery court district chancellor who appointed a youth court public defender. After news of the appointment was released to the media, the judge asked members of the county board of supervisors to appear before him "to determine who was upset about the appointment and who had released the information to the media.
The judge had subpoenas issued to two supervisors without indicating a title or cause number. The judge granted a motion to quash the subpoenas he had issued, admitted he had failed to comply with the law, and "stated he was unconcerned that he had failed to comply."
The public reprimand will be read in open court "on the first day of the next term of that [county circuit] court in which a jury venire is present after this decsion becomes final." (Mike Frisch)
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today indefinitely suspended the law license of [a] Columbus attorney...for professional misconduct arising from her indictment for possession of cocaine and heroin and admitted addictions to alcohol and drugs. [The attorney] was arrested on the drug possession counts after being involved in a serious traffic accident when police investigating the crash found a used crack cocaine pipe and syringes containing heroin residue in her car.
In a 7-0 per curiam opinion, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] had violated the state disciplinary rules that prohibit an attorney from engaging in an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
In setting the sanction for [her] misconduct, the Court noted that she had previously received administrative license suspensions for failure to comply with state attorney registration procedures and failure to complete required continuing legal education requirements. The Court adopted the board’s recommended sanction of an indefinite suspension and also specified that any future application for reinstatement of [her] license will be conditioned on proof that she has successfully completed treatment for substance abuse and is capable of returning to the competent, ethical and professional practice of law.
The opinion is linked here. (Mike Frisch)
Tuesday, February 22, 2011
The South Carolina Supreme Court has disbarred a former county court clerk as a result of a criminal conviction:
On July 30, 2009, while respondent was the Beaufort County Clerk of Court, she was indicted and charged with writing checks on two Clerk's Office accounts between August 2006 and April 2009 for uses unrelated to her role as a lawyer or duty as the Clerk of Court. The checks totaled $23,500. On September 21, 2009, following a trial, respondent was convicted of three counts of embezzlement of public funds less than $5,000, one count of embezzlement of public funds more than $5,000, and one count of misconduct in office.
Respondent was sentenced to five years on each of the three counts of embezzlement of public funds less than $5,000, six years on the count of embezzlement of public funds more than $5,000, and one year on the count of misconduct in office, all of which were suspended upon service of five years of probation. The sentences were ordered to run concurrently. All of the funds have been repaid.
The attorney consented to the discipline. (Mike Frisch)
Monday, February 21, 2011
A three-judge court in Virginia Beach, Virginia has imposed a suspension of 30 days followed by a year of probation in a matter involving a number of disciplinary violations.
The attorney had, among other things, advertised his practice as himself "& Associates" when in fact he had a solo practice. He also had a video linked to his web page in which a non-attorney was presented as a member of the firm. The web page listed non-existent firm practice groups, and falsely indicated that he had three office locations and decades of experience.
The probation requires the attorney to retain a practice consultant approved by Bar Counsel. If the attorney engages in further misconduct or fails to follow office procedures, he will be suspended for three years. (Mike Frisch)
The New York Court of Appeals recently adopted rules regarding the provision of legal services in the wake of a major disaster. The amended rule governs the provision of pro bono legal services on a pro hac vice basis after the Governor or other authority declares that a disaster has occurred. (Mike Frisch)
The Louisiana Supreme Court conditionally admitted an applicant who had withdrawn an application for admission in 2007 in light of information that he had not fully disclosed his criminal history in his law school admission application. The court noted that he had entered treatment for alcoholism and completed a year-long aftercare program. The court relied on the findings of a commissioner:
The commissioner made a factual finding that petitioner carried his burden of
proving rehabilitation not only from his alcohol-related issues, but also from the
lack of candor he demonstrated in his admitted omissions from his law school
application. Based on these findings, the commissioner recommended that
petitioner be conditionally admitted to the practice of law, subject to the terms and
conditions of his LAP agreement. Neither petitioner nor the Committee objected
to that recommendation.
The conditional admission involves a probationary period and compliance with conditions set by the Lawyers' Assistance Program. (Mike Frisch)