Saturday, April 2, 2011

Not On The Varsity

A disciplinary summary from the web page of the Massachusetts Board of Bar Overseers:

The respondent received a six-month suspension from the practice of law for misrepresenting his qualifications during a job search, as described below.

The respondent received a Bachelor of Science degree from Purdue University in 1997 and a Juris Doctor degree from Washington and Lee University in 2002. In 2008, the respondent enrolled as a student in the Graduate Tax program at Boston University (LL.M. program). Although the respondent attended classes in the LL.M. program from September 2, 2008, to May 8, 2009 (as a full-time student), and from January 12, 2010, to May 7, 2010 (as a part-time student), he never graduated.

After leaving the LL.M program, the respondent began a job search and contacted a Minnesota law firm that was seeking to hire a tax and estate planning attorney. The respondent provided the firm with his resume, in which he intentionally made the following misrepresentations: (i) he received an LL.M. degree from Boston University School of Law in May of 2010; (ii) he received a Bachelor of Science degree from Tufts University in May of 1997; and (iii) while attending Tufts University, he was on the “Dean’s Honor List” on three separate occasions, was the recipient of a department scholarship and a prize for overall achievement, and was a six-time varsity letter winner in hockey and lacrosse. He also falsely claimed to have worked as an attorney at another law firm for two years; he had only worked there for less than a year.

The respondent also provided the Minnesota law firm with a purported copy of his grade report from the LL.M. program. The respondent had altered this report to show that he graduated from the LL.M. program by increasing his grades in several subjects and inflated his overall grade point average.

In the course of this job search, the respondent also knowingly made similar misrepresentations about his professional qualifications and employment record in a publicly available, online directory of lawyers.

The respondent did not obtain employment at the Minnesota law firm. He has since removed all false information from his online profile and from his resume.

(Mike Frisch)

April 2, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Lawyers, Guns, Arson And Other Stuff: The California Bar Journal

From the April 2011 California Bar Journal:

[An attorney] was suspended for four years, stayed, placed on four years of probation with a two-year actual suspension and until he proves his rehabilitation and he was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. He was given credit for the interim suspension that began Nov. 6, 2009. The order took effect Dec. 24, 2010.

[The attorney] has been convicted three times for driving under the influence, a crime that does not involve moral turpitude. In the third incident, in 2008, [he] drove 120 MPH, and drove on the center divide and the right shoulder to evade a police officer. He eventually parked and locked the car in a residential neighborhood, where the police found and arrested him. Officers found an assault rifle and magazine in the trunk. He pleaded guilty to felony evasion and DUI. His blood alcohol content was .15.

In mitigation, [he] had substantial family and emotional problems and he is being treated for alcoholism.

And another matter:

[An attorney] was suspended for two years, stayed, placed on two years of probation with a nine-month actual suspension and he was ordered to take the MPRE within one year. The order took effect Dec. 24, 2010.

[The attorney] stipulated to misconduct in two matters. In the first, he was convicted of three felonies after he fired a rifle into the air when two people attempted to repossess his car. He was convicted of two counts of assault with a firearm with enhancements for personal use of a firearm, one count of discharge of a firearm with gross negligence and one count of misdemeanor brandishing a firearm.

In a second case, he filed suit in a real estate matter, but the case was dismissed when he failed to appear for a hearing. He did not refile the case or notify the client of the dismissal and stipulated that he failed to perform legal services competently or keep a client informed of developments in his case.

In mitigation, he had no prior discipline record, cooperated with the bar’s investigation and presented evidence of his good character.

A third summary reported these ususual circumstances in mitigation of discipline:

In mitigation, [the attorney] had no prior discipline record, repaid $16,000 to one client, and for most of two years was the target of a joint federal and local investigation of child pornography. He was never charged and a relative was convicted, but he suffered tremendous stress during the investigation. In addition, his law office was burned in a suspicious fire and he lost all his documents and files. An unstable client of another attorney confessed to arson and committed suicide when law enforcement tried to arrest him.

(Mike Frisch)

 

April 2, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fox To Guard Henhouse

My alma mater, the District of Columbia Office of Bar Counsel, has hired Hamilton P. ("Phil") Fox III as an assistant disciplinary prosecutor. A bar hire is not normally news, but Phil brings a rather unusual background to the position. Among other things, he has served as the Chair of the Board on Professional Responsibility.

As his biography on the Georgetown Law web page indicates, he has had a distinguished career in public service and private practice:

As a member of Sutherland’s Litigation Practice Group, Professor Fox focuses his practice on white-collar criminal defense work (trial and appellate) and civil trials and appeals in various courts.  In addition, Professor Fox represents lawyers in the disciplinary process and advises lawyers and law firms on ethical issues and also advises corporations with respect to the implications of the sentencing guidelines and compliance programs applicable to organizations.

Professor Fox received his B.A., with honors, from the University of Virginia and his LL.B. from Yale Law School, where he also was an Article and Book Review Editor for the Yale Law Journal.   He clerked in the U.S. Court of Appeals for the First Circuit for the Honorable Frank M. Coffin and then in the U.S. Supreme Court for Justices Stanley F. Reed and Lewis F. Powell Jr.  Professor Fox spent more than seven years as a federal prosecutor, spending part of his time in the U.S. Attorney’s Office for the District of Columbia where he tried approximately 50 jury trials.  He argued approximately 30 appeals in the District of Columbia Court of Appeals and the U.S. Court of Appeals for the District of Columbia Circuit, including four en banc arguments.

Professor Fox’s appointment with the U.S. Attorney’s Office was interrupted briefly when he worked as an assistant special prosecutor for the Watergate Special Prosecution Force.  When he left the U.S. Attorney’s Office, he joined the Organized Crime and Racketeering Section of the U.S. Department of Justice.  As the Deputy Chief of that Section, he supervised Strike Forces in six cities as well as the Labor Unit located in Washington.  He also was responsible for approving Racketeer Influenced and Corrupt Organizations (RICO) Act prosecutions.  Professor Fox left the Department of Justice in 1980 and has practiced in the District of Columbia ever since.

Professor Fox served for 16 months as Associate Special Counsel to the House Committee on Standards of Official Conduct.  In that capacity, he conducted a lengthy investigation into allegations that members of Congress had engaged in misconduct in connection with their supervision of House pages.  Two members of Congress were censured as a result of this investigation.  In January 1989, he was appointed by the Court of Appeals to serve as a member of the Board on Professional Responsibility.

 Professor Fox has served as the Chair of the Legal Ethics Committee for the District of Columbia Bar and General Counsel and Director for the Lawyers Committee on Civil Rights.  He is a former member and Chair of the D.C. Circuit’s Committee on Admissions and Grievances and a former Chair of the Board on Professional Responsibility.

I am gratified to see that a lawyer of this quality is willing to devote his energies to this vital public service. (Mike Frisch)

April 2, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 1, 2011

Voicemail Threats

Another California disciplinary summary:

[An attorney] was suspended for two years, stayed, placed on probation for two years with an actual suspension of 90 days and he was ordered to comply with rule 9.20 of the California Rules of Court and take the MPRE within one year. The suspension took effect July 9, 2010.

[The attorney] was charged with moral turpitude for sending more than 50 abusive and threatening voicemails to officials involved in the execution of his father’s estate after he was removed as co-executor. Among other things, he threatened to report the officials to various state and federal agencies in an attempt to gain an advantage in a civil dispute and accused an ex-officio judge of taking a bribe.

(Mike Frisch)

 

April 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Divorce Cases To Disbarment

A recent disbarment is summarized in the April 2011 online California Bar Journal:

The State Bar Court found that [the attorney] committed numerous acts of misconduct in two client matters, including misappropriating more than $200,000.

A client who was going through a divorce was owed money by a prior lawyer. [The attorney] received the refund check, endorsed the client’s name and wrote “pay to the order of [her name]” on the back. She had no authorization to do so. She deposited the check in her personal bank account, treating it as a payment of additional advanced fees. The client, who said she was struggling to pay her bills, tried without success to contact [the attorney] to determine the status of her case and eventually fired her. She asked for both a refund of her advance $5,050 fee and the refund from the prior lawyer.

[The attorney] eventually provided a refund of the advance fee, short $50.

In a second divorce case, she represented the husband and pursuant to a court order received a check for $225,021.17, which represented the proceeds from the sale of the couple’s home. She did not put the money into a trust account in the clients’ names, never provided monthly statements for the account and almost immediately began misappropriating the funds. Eventually the account balance stood at zero. When confronted by the opposing attorney about her non-compliance with the court’s order, she lied to the attorney, to the parties and to the accountant hired to provide an accounting. She prepared a misleading accounting of the funds that completely misrepresented how she handled her client’s funds.

[The attorney] took $90,345 to pay personal expenses and separately misappropriated $57,000 to buy a motor home (that she sold for a profit of $4,000) and $74,577.72 to fund the escrow for her purchase of a home in Huntington Beach. She had intended to use the proceeds from the sale of her home to buy a new house, but because of a delay in closing escrow on the home she was selling, she used $74,577.72 of client funds to close escrow on the home she was buying. She later replaced the money.

The wife’s lawyer repeatedly repeatedly asked [the attorney] for copies of the monthly trust account bank statements and when she didn’t provide them, he filed an order to show cause for contempt. [The attorney] convinced him the statements were forthcoming so he took the matter off calendar.

The bar court found that [she] failed to obey a court order, inform clients of significant developments or deposit funds in a trust account or account for those funds, and she committed four acts of moral turpitude.

In mitigation, [the attorney] had no prior discipline record, entered into a stipulation with the bar and made restitution. However, Judge Donald Miles recommended her disbarment, noting in particular that the misappropriations “were of significant amounts of money and involving two separate clients; her actions were intentional and knowingly dishonest; and she sought to conceal those acts by subsequent efforts at concealment and misrepresentation.”

(Mike Frisch)

April 1, 2011 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

No Discipline For Record Company Executive

A California attorney who sent two cease-and-desist letters on company stationary while on inactice status did not engage in conduct involving moral turpitude, according to a recent decision of the State Bar Court Review Department. The "recipients of these two letters...were aware that [his]  license to practice law was inactive, and were not misled in any way."

While the attorney had failed to update his address with the Bar, he had fixed the problem promptly and been reinstated. The court found the conduct did not warrant discipline.

The attorney had left active practice to found Centaur Entertainment, Inc., which is a recording company. He devoted himself to the company on a full time basis and is the president ans sole owner. The letters were written on behalf of Centaur. (Mike Frisch)

April 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Up Against A Wall

The New Jersey Supreme Court has imposed a censure of an attorney with a significant record of prior discipline. He had been privately reprimanded in 1990, reprimanded in 2001 and 2004 (in separate matters) and suspended for three months in 2008 for gross neglect of two client matters.

Here, the misconduct was unlike the prior matters. The attorney had assaulted a federal officer after two Department of State investigators came to his office to interview the attorney and his spouse "in connection with an ongoing federal investigation." The attorney became "increasingly agitated and aggressive." He "pushed [an agent] against a wall and struck him with his hands and arms."

The ensuing criminal charges were dismissed after the attorney completed pretrial diversion. (Mike Frisch)

April 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Iowa Stubborn

The Iowa Supreme Court revoked the licenses of two attorneys who are husband and wife. The court reected the sanction of an indefinite suspension of no less than six months as proposed by its Grievance Commission.

The conduct involved the estate of the wife's mother, who died in July 2000. Social security payments continued and were deposited into the account held in trust for the mother. The funds were used to reimburse the husband's legal fees and to repair the mother's real property. The couple promptly reimbused the overpayments when the situation came to light.

A federal indictment relating to the social security payments followed. Each pled guilty a one misdemeanor count. Kansas (where both were admitted) suspended the wife for two years and imposed an indefinite suspension of the husband. Iowa was less forgiving:

When a sanction less severe than revocation has been imposed against attorneys who have misappropriated a client's money or fiduciary funds, we have found the attorneys "had a colorable claim to the funds or did not take the funds for their own use." We find no factual basis in the record supporting a finding that the [couple] had a colorable future claim to the government funds in the trust's bank account or that the funds were not taken for their own use.

(Mike Frisch)

April 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Joy Of Self-Regulation

A Louisiana hearing committee has recommended disbarment of an attorney convicted in federal court of conspiracy to commit health care fraud. The two attorney members of the committee declined to propose that the disbarment be permanent.

Worthy of note is the two-page dissent of the non-attorney member of the committee, who would make the disbarment permanent. The list of reasons--commission of criminal fraud, lying to the committee among them--makes a rather persuasive case. It is always heartening to see a lay member of a disciplinary panel cutting through the analysis to get to the heart of a matter.

I guess that's why we lawyers never give them a majority vote. (Mike Frisch)

April 1, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 31, 2011

Disclose, Disclose, Disclose

An attorney admitted in 2009 resigned from and was disbarred by the New York Appellate Division for the Third Judicial Department. He had been "charged with failing to fully disclose his criminal record on his application for admission, among other things."

The attorney resides in London, England. (Mike Frisch)

March 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Censure Too Light

The New Jersey Supreme Court rejected a proposed censure recommended by the Disciplinary Board in favor of a three-month suspension.

The attorney had negligently misappropriated entrusted funds. Bad enough. He had compounded the misconduct by submitted false evidence about the escrow shortfall to disciplinary authorities. Shortly thereafter, he came clean, claiming that he had "panicked."

A minority of the board favored the suspension imposed by the court, which had ordered the attorney to show cause why greater discipline than a censure should not be imposed.

Note that the court's order appears at the end of the board's report. (Mike Frisch)

March 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 30, 2011

Gender-Based Epithet Draws Censure

An attorney who, among other things, referred to a female judge with a four-letter word that begins with a "c" and ends with a "t" in the course of negotiating a plea deal with prosecutors, was publicly censured by a Colorado hearing board.

The underlying case involved DUI charges against the attorney's client. The attorney had harsh words with court staff in a series of phone calls over the procedure for vacating a hearing scheduled later that day. He sought to speak to the judge directly and was advised that he could not do so. The judge later called him to confront him about his behavior but the two did not speak. A stayed bench warrant was issued for the client.

The attorney called a staffer to apologize the following day.

The hearing board found the attorney's treatment of court staff was "ill mannered" and "impolite" but that he had a substantial purpose other than to embarrass, delay or burden the staff. He was trying to obtain relief for his client.

The attorney later met with the prosecutor to discuss a possible plea agreement in the case. He expressed his intent to file a motion to recuse the judge: "Respondent listed his reasons for seeking her recusal, chief among them his belief that the judge was biased against him and his client, after which he launched into a discussion of his history with the judge." The offending remarks were in the course of the discussion.

They then appeared before the judge: "...accounts...differ as to the tone, mood, and aspect of the colloquy between Respondent and [the judge]. While no one present during the hearing would characterize their dialogue as cordial, reactions otherwise run the gamut." The hearing board declined to find that the in-court conduct violated any ethics rule.

As to the slur (he also had called the judge an "idiot."), the attorney claimed First Amendment protection:

...[he] argues that his remark was not a statement of fact, but rather an idea or an opinion that is incapable of being proved false...[his] slur was nothing more than emotive language designed to convey disgust, disdain, and loathing-- the essense of subjective opinion.

The hearing board rejected the contention, noting it raised an issue of first impression in Colorado. The board discusses a number of cases from other jurisdictions in rejecting the claim of protected speech.

The board concluded that the attorney's "lack of civility to court staff, intemperate behavior during a hearing, [and] use of a gender-based epithet in the course of representing a client" did not violate Rules 4.4(a), 3.5(d) or 8.4(d). However, the slur did violate Rule 8.4(g), which prohibits conduct that exhibits bias or prejudice in the course of representing a client. (Mike Frisch)

March 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Eight Is Enough

A Colorado hearing board imposed a two-year suspension of an attorney who had "failed to comply  with a court order to pay 'retroactive child support' and post-majority child support to his son over a period of approximately eighteen years." He had twice been held in contempt and a warrant for his arrest was issued. He also falsely represented on his attorney registration statements on eight occasions that he was not under an order to pay child support. (Mike Frisch)

March 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege And Girl Scouts

The Oklahoma Supreme Court has held that the attorney-client privilege did not prohibit disclosure of otherwise confidential information from counsel to an entity client to an entity created by a merger. The facts:

The defendant/appellant Marilyn Barringer-Thomson (Attorney) is an attorney who represented Girl Scouts-Sooner Council, Inc. (Sooner) on employee severance and other matters related to employees of Sooner. Subsequently, Sooner merged with Girl Scouts-Red Lands Council, Inc. (Red Lands) and the surviving corporation is the plaintiff/appellee, Girl Scouts-Western Oklahoma, Inc. (Western). Western filed a replevin action to obtain all Sooner files and documents, including confidential employee severance agreements, in the possession of Attorney and now owned by Western as a result of the merger. The petition recited that the documents sought contained details of agreements between Sooner and its former employees for which Western is now responsible as Sooner's successor in interest. Attorney objected, claiming attorney-client privilege and attorney work product. Western asserted that the attorney-client privilege transferred to it as a result of the merger. Both sides filed motions for summary judgment and the trial judge granted summary judgment in favor of Western. Attorney appealed and we granted her motion to retain the case.  

The court concluded:

 The attorney-client privilege belongs to the client and not to the lawyer, and it may be waived only by the client...if the client is a corporation, the privilege may be claimed by the successor, trustee, or similar representative.This is in accord with Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343,348-49, 105 S.Ct. 1986, 1991, 85 L.Ed.2d 372 (1985). There, the Supreme Court stated that the power of a solvent corporation to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors. When control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well. New managers installed as a result of a merger, or simply normal succession, may waive the attorney-client privilege with respect to communications made by former officers and directors. The displaced managers may not assert the privilege over the wishes of current management. Weintraub held that the trustee in bankruptcy of an insolvent corporation had the power to waive the corporation's attorney-client privilege for pre-bankruptcy communications.

To the same effect is Tekni-Plex, Inc. v. Meyer and Landis, 674 N.E.2d 663 (NY 1996). Tekni-Plex merged into TP Acquisitions, which became the surviving corporation. The merger agreement conveyed all of the assets, rights and liabilities of Tekni-Plex. The merger agreement contained warranties by Tang, the owner of Tekni-Plex, that Tekni-Plex was in full environmental compliance, and Tang indemnified TP against loss as a result of breach of the warranties. TP Acquisition later renamed itself Tekni-Plex, Inc. (new Tekni-Plex). New Tekni-Plex obtained arbitration against Tang for breach of warranties of environmental compliance. The law firm representing Tang in the arbitration had represented Tekni-Plex and Tang on environmental compliance matters and also represented them in the merger transaction. New Tekni-Plex moved to disqualify law firm and, among other things, sought an order directing law firm to return to new Tekni-Plex all of the files in the law firm's possession concerning its prior legal representation of Tekni-Plex.

The New York Court of Appeals held that where the successor corporation continued the business operations of the pre-merger entity, ownership of the law firm's files regarding its pre-merger representation on environmental issues passed to the successor, as did control of the attorney-client privilege attached thereto. Thus, ownership of the law firm's files regarding its pre-merger representation of Tekni-Plex on environmental compliance matters passed to the management of new Tekni-Plex. The court held that the privilege did not pass on files regarding the merger transactions because the arbitration arose from representations made in the merger agreement.

 The court concluded that it was necessary for new Tekni-Plex to have the right to invoke the pre-merger attorney-client relationship if it should have to prosecute or defend against third-party suits involving the assets, rights or liabilities that it assumed from Tekni-Plex.

We find the reasoning in Weintraub and Tekni-Plex persuasive. Tekni-Plex holds that where the successor corporation carries on the business and assumes managerial responsibilities, ownership of a lawyer's files regarding its pre-merger representation of a corporation passes to the management of the successor corporation. In the present matter, plaintiff's evidentiary materials show that the business of both Sooner and Red Lands is being continued by Western. Western has assumed Sooner's rights and liabilities and may have to prosecute or defend third-party suits involving those rights and liabilities. Attorney did not represent Sooner in the merger transaction and the materials sought from attorney are not materials regarding the merger transaction itself.

 Sooner did not exempt or exclude confidential or any other materials from the merger agreement; it adopted a merger agreement that transferred all assets, properties and privileges to the surviving corporation. Ownership of Sooner's assets, as well as its attorney-client privilege, has now transferred to Western by operation of law as a result of the merger. To allow Attorney to assert Sooner's attorney-client post-merger would be in derogation of the merger agreement transferring ownership to Western.

(Mike Frisch)

March 30, 2011 in Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 29, 2011

Cocaine, Cooking And Reinstatement

The New York Appellate Division for the First Judicial Department imposed a three-year suspension of an attorney, with credit for time served since 2004. As a result, the attorney was reinstated.

 The misconduct:

In 1999, while still practicing law, respondent bought a building with a restaurant, which he named Chameleon. In late 2000, respondent started to cook at the restaurant at night while practicing law during the day. In early 2003, Victor Maldonato began coming to Chameleon's bar and offered respondent cocaine, which he accepted. Over time, respondent's drug use escalated and Victor started to sell drugs on the premises, allegedly soliciting sales inside Chameleon and making them outside. Respondent claims that he never profited from these sales.

As his addiction worsened, respondent allegedly realized that his life had become unmanageable and he tried to sell Chameleon. In September 2003, he opened a second restaurant called Onyx, where he was executive chef. In early 2004, before the proposed sale of Chameleon could be closed, the police raided the restaurant. Respondent was arrested a few weeks later.

On November 9, 2004, respondent pleaded guilty to the sixth count of an indictment accusing him and Dominic Sclafani of criminal sale of a controlled substance in the third degree [Penal Law § 220.39(1)], a class B felony.

The attorney was disbarred as a result of the conviction. The conviction was later vacated and the felony charges were dismissed. The attorney then sought immediate reinstatement.

As to sanction:

Contrary to the Hearing Panel's finding, when respondent testified before the Committee he patently recanted this admission [in the criminal case]. When asked if he knew Sclafani, respondent replied that he was "a patron of the restaurant." When asked if he sold or attempted to sell a controlled substance with Sclafani on February 24, 2004, he replied: "No, I did not. No, I did not." When asked if Sclafani attempted to sell a controlled substance that day, respondent replied: "I don't know."

These responses were part and parcel of respondent's attempt to distance himself from the admission at his allocution that he and Sclafani knowingly and unlawfully sold cocaine to a police officer by claiming that he only felt responsible for the drug sales because he allowed them to occur in his bar. Although respondent admitted that Victor had brought his friends to the bar and it "became a haven for people hanging out buying drugs, doing drugs", and that Victor sold drugs, respondent repeatedly denied that he himself was involved in selling the drugs. Respondent also denied knowing whether Victor and Kjiel Lucas, individually or in concert, sold a controlled substance in the bar on December 16, 2003, December 30, 2003, and February 23, 2004, January 14, 2004 and February 24, 2004, as charged in counts one through five and seven of the indictment. He similarly denied selling a controlled substance with Lucas on February 25, 2004 and March 9, 2004, as charged in counts eight, nine, ten and eleven of the indictment. Indeed, respondent denied knowing Lucas and testified that the police just "sort of linked" his name to Lucas in the counts charging the two of them with sales.

By deliberately recanting his plea and dissembling, under oath during a deposition before the Committee, his role in the drug activities that took place in his bar, respondent deliberately and intentionally engaged in deception and failed to cooperate with the Committee...

As to the appropriate sanction, respondent has not practiced law since at least November 9, 2004, the date he pleaded guilty to a drug felony, over six years ago. After completing an intensive drug rehabilitation program, he now stands convicted of a misdemeanor offense and remains drug free. Respondent has presented substantial and impressive evidence that he has successfully turned his life around and that he is fit to resume the practice of law. In mitigation, respondent testified that subsequent to his completion of the ASPIRE drug treatment program he sold his interest in Onyx and opened a successful, family-style sandwich shop in the Union Square area. Respondent created a not-for-profit organization providing work training at that shop for older high school students; he provides assistance to recovering drug addicts through Beth Israel Hospital; he has provided free meals to the homeless during the holiday season, and he has engaged in other community activities.

In addition, at the hearing, Donna Boundy of the Daytop drug rehab program testified that respondent was a "stand out," that he had a great attitude, was remorseful and motivated, that he was given great trust by the program insofar as he was given the responsibility of escorting other residents outside the facility, and that during a kitchen incident, respondent attempted to spare other residents from any injury by spilling sauce over himself instead. Numerous character letters were also submitted noting respondent's strong work ethic and teaching skills, and that respondent has included his shop in the internship/mentoring program, as well as respondent's involvement as a guest speaker and panelist at student events and competitions.

Given the passage of time and these exceptional mitigating circumstances, the Hearing Panel's recommendation that respondent be suspended nunc pro tunc from November 9, 2004, and that his suspension should be limited to "time served," is appropriate (see Matter of Keiser, 304 AD2d 96 [2003]). Notwithstanding petitioner's troubling and disingenuous recantation and our belief that Charges 2 and 3 should also be sustained, in light of the present posture of this matter, the Hearing Panel is correct that it would serve no purpose to further delay respondent's reinstatement by requiring further proceedings...

(Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Charged With Forgery In Nominating Petition

The web page of the Pennsylvania Disciplinary Board reports that an attorney was suspended on an interim basis as a result of a criminal conviction.

DailyTimes reports on the charges:

Magisterial District Judge David J. Murphy was arrested Monday on charges he had a hand in forging signatures on his nominating petition for re-election, according to Delaware County District Attorney G. Michael Green.

Murphy, 57, of Scott Road, Aston, along with Deborah West, 53, of the first block Vernon Lane, Rose Valley, were both charged Monday with criminal wrongdoing in connection with his successful re-election bid last year.

“Usually, the candidate is not involved at all and has no knowledge of (the forged signatures). But here, (Murphy) did have knowledge. He actually participated,” said Green during a press conference Monday announcing the arrests.

“These charges stem from each of the defendants participating in the forging of signatures on Mr. Murphy’s nominating petitions for the magisterial judgeship position he currently holds.”

A handwriting expert brought in by the D.A.’s office “determined positive matches on the handwriting samples of David Murphy and Deborah West compared to the petitions submitted,” according to officials.

Both West and Murphy are facing charges including multiple felony counts of forgery, identity theft and conspiracy. He is facing added charges of solicitation, as well as violations of the election law.

The charges allege that 64 signatures were forged on Murphy’s nominating petitions for his election last year. The forgeries even included misspelling a street where those residents lived, according to the affidavit of probable cause.

Authorities said four of the people whose signatures were forged lived on “Cashel Drive” in Aston. “Their names and forged signatures appear with the street named ‘Cashell Drive.’”

Murphy — a Democrat turned Republican — was re-elected to his post Nov. 3, 2009. However, he hasn’t been handling the duties since Aug. 26, when the allegations of illegalities involving the nominating petitions first surfaced triggering a probe by the D.A.’s special prosecutions unit.

Note that the web page indicates a conviction and that the article indicates that a plea of not guilty was entered. (Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Jail Time Sufficient

The New York Appellate Division for the Fourth Judicial Department vacated an order imposing a 30 day imprisonment for criminal contempt of court. The attorney had continued to practice while suspended.

The reason for the court's decision was not forgiveness. Rather, the attorney had been found guilty of grand larcery and sentenced to an indeterminate prison term of 1 1/3 to 4 years.

Inasmuch as respondent has been continuously incarecerated since his arrest in September 2009, and will likely remain incarcerated for an additional period of at least one year, the sentence of imprisonment previously imposed for his contempt of court is vacated and respondent is resentenced to an unconditional discharge.

The link above takes you to the court's web page. The case is Matter of Marmor.(Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Liability For Failure To Train

A 5-4 United States Supreme Court has held that the New Orleans District Attorney's office cannot be held liable for failure to train prosecutors in their Brady obligations when there is a single violation of disclosure obligations. The unethical behavior by the prosecutor sent an innocent man to death row. The court majority overturned a damage award for violation of civil rights.

One interesting aspect of the case is that the information leading to exoneration came from an attorney friend of the prosecutor. The Louisiana Supreme Court found that the attorney had violated Rule 8.3 (duty to report misconduct) for not coming forward sooner. (Mike Frisch)

March 29, 2011 | Permalink | Comments (0) | TrackBack (0)

New Ohio Reinstatement Rule

The web page of the Ohio Supreme Court reports:

The Supreme Court of Ohio has adopted amendments that will allow suspended attorneys, in limited circumstances, to apply for reinstatement while subject to probation or other post-conviction sanction. The amendments become effective April 1.

Amendments to Rule V, Section 10 for the Government of the Bar of Ohio will allow a respondent who is serving a term suspension of six months to two years to apply for reinstatement to the practice of law before “completing a term of probation, community control, intervention in lieu of conviction, or sanction imposed as part of a sentence for a felony conviction” if the disciplinary order allows it.

A lawyer serving a suspension of more than two years is ordinarily barred from seeking reinstatement to the practice of law while subject to probation or other post-conviction sanction. However, the amendments permit an indefinitely suspended lawyer to petition for reinstatement if the lawyer can demonstrate compliance with the terms of the court-ordered sanction and can provide evidence sufficient to show by clear and convincing evidence that good cause exists for reinstating the lawyer.

Under the revised rule, the Board of Commissioners on Grievances and Discipline could only recommend early reinstatement if it finds by clear and convincing evidence that good cause exists for waiving the reinstatement requirement. The Supreme Court would review the board’s recommendation and make the final decision as to whether reinstatement is appropriate.

Click Access the text of the amendments.

(Mike Frisch)

March 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tax Lawyer In Tax Trouble

The United States Court of Appeals for the Seventh Circuit affirmed the conclusion that an Indiana couple fraudulently understated their 2001 income. The court forewarns the reader of the opinion:

Appellants [husband and wife] (a married couple from Brownsburg, Indiana) ran into trouble with the Internal Revenue Service (IRS) in 2003, when a revenue agent began auditing their 2001 joint tax return. Through this audit, the agent discovered a web of corporate and partnership entities serving dubious purposes, undocumented financial transactions, and inconsistent reports regarding the [couple's] income. Incongruously, although [the husband] engineeered much of the financial and legal tangle that landed him and [his wife] in hot water with the IRS, [he] is a licensed Indiana attorney with a practice focused on business planning and tax matters. We outline the confusing maze of entities and financial dealings below, but be forewarned that much of it makes little business or legal sense as the [couple] fail to dispel the perception underlying the Tax Court's finding that the perplexing arrangements served as nothing but the after-the-fact attempts to avoid taxation on the substantial income [he] earned in 2001.

The court held that the Tax Court's reliance on a number of "badges of fraud" was not clearly erroneous. These factors included  the couple's education and experience, the omission of over $2.5 million in income, the failure to maintain records, commingling business and personal assets,  and the absence of a business purpose in moving funds around. (Mike Frisch)

March 29, 2011 in Law & Business | Permalink | Comments (0) | TrackBack (0)