March 28, 2011
Shots In the Dark
The Illinois Administrator has filed a two-count complaint alleging ethics violations against an attorney. Count One involves allegations of criminal misconduct:
At approximately 1:30 a.m. on March 14, 2004, Respondent and John Zonzo ("Zonzo"), were arrested in Berwyn, Illinois, after an eyewitness saw one of the men fire several shots into a brick bungalow in the 2400 block of East Avenue in Berwyn, Illinois. The residents of the home, including two minors, were asleep at the time the shots were fired.
On April 11, 2006, following a bench trial before the Honorable Thomas M. Tucker, the Judge granted Respondent’s motion for a directed finding on the charges of aggravated discharge of a firearm and criminal damage to property, but found Respondent guilty of two counts of aggravated unlawful use of a weapon for failure to have a valid FOID, in violation of 720 ILCS 5/24-1.6(A)(1)(3)(C).
The second count alleges that the attorney failed to report the conviction. Details here from the Chicago Tribune. (Mike Frisch)
Employee "Cloaked With...Apparent Authority;" Firm May Be Sued
The New York Appellate Division for the Second Judicial Department affirmed an order denying a defendant law firm's motion to dismiss claims of fraud and negligent hiring:
In May 2008, the plaintiff Robin Shimoff, through her attorney, tendered a check in the sum of $710,000 to the defendant Mario A. Tolisano, an employee of the defendant Law Office of Howard R. Birnbach (hereinafter the law office), to cover the purchase price of certain parcels of real property. In July 2008, Shimoff tendered to Tolisano the additional sum of $502,500 as a down payment for the purchase of certain other real property. Shimoff apparently borrowed the aforesaid funds from the plaintiff Jacob Selechnik. No closings of title occurred on either transaction, and the plaintiffs later learned, among other things, that Tolisano, whom they believed to be an attorney representing the seller of the properties, was not a licensed attorney. The plaintiffs commenced this action in November 2009, inter alia, to recover damages for fraud and negligent hiring and retention, and the law office moved to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). The Supreme Court denied the motion. We affirm.
The court concluded:
Here, while the complaint contains no allegations of any affirmative misrepresentations by the law office itself, a fraud cause of action was sufficiently stated by the allegations contained therein which give rise to permissible inferences that the law office had certain knowledge or information regarding Tolisano's employment with it and his activities thereunder that were not ascertainable by the plaintiffs.
The complaint alleges, inter alia, that Tolisano was employed by the law office, held himself out as an attorney with the law office, and distributed his business card to the plaintiffs, which, while not explicitly stating that he was an attorney, indicated that he was employed by the law office. Furthermore, the complaint alleges that at the time Tolisano made his representations to the plaintiffs, which induced them to turn over their money to him, the law office knew or should have known "that its attorney-employee-impersonator, cloaked with the apparent authority that comes from employment at the [law office], would offer false representations." These allegations were supplemented by the affidavit of the plaintiffs' real estate attorney, wherein he stated that when he met with Tolisano, Tolisano said he was a lawyer and gave him a business card "that made it appear as if [Tolisano] was a lawyer at the [law office]," and that during the pendency of the transactions, the plaintiffs' attorney sent a certified letter to Tolisano at the law office and made several telephone calls to the law office asking to speak with Tolisano and left messages, to which he received no reply.
Based on these allegations, the complaint adequately states causes of action to recover damages from the law office for the torts allegedly committed by Tolisano under the doctrine of respondeat superior and on the theory of negligent hiring and retention, which are not required to be pleaded with specificity.
Recycled Boilerplate Gets Attorney Reciprocally Suspended
An attorney who had been sanctioned by the Second and Ninth Circuits has been suspended for six months as reciprocal discipline by the New York Appellate Division for the Second Judicial Department. The court describes the misconduct found by the federal circuits:
...the Second Circuit referred the respondent to the Committee on Admissions and Grievances (hereinafter the CAG) for an investigation and a report. Since September 2005, the Second Circuit had dismissed at least 24 of the 71 petitions for review for which the respondent was counsel of record, based on his failure to comply with that court's scheduling orders. The order also noted that the respondent had submitted boilerplate motions in connection with these defaults, and where the respondent moved to reinstate the defaulted petitions, he "often relied on the same excuse for failing to comply with the applicable scheduling orders: that he had not received a copy of the scheduling order or had not received a response to his motion for an extension of time." The Second Circuit also expressed concern that the respondent had submitted deficient briefs to the court.
By order dated January 3, 2008, the Second Circuit publicly censured the respondent based on the opinion and order of this Court dated December 26, 2007. However, by order dated April 1, 2008, the Second Circuit vacated the January 3, 2008, order on the basis that its Local Rule 46(f) did not provide for such a disposition. In that same order, the Second Circuit referred to the CAG the issue of whether the respondent should be reciprocally disciplined based on the Ninth Circuit's 2007 order. This Court's decision and order dated December 26, 2007 (see Matter of Roman, 48 AD3d 25) provides further details with respect to the Ninth Circuit's determination. In a separate order dated April 1, 2008, the Second Circuit asked the CAG to consider, in determining appropriate sanctions, the conduct referred in both referral orders.
The attorney attributed the motions to reinstate to his partner and secretary, but:
The CAG reviewed all of the briefs cited in the referral order, and found that the respondent had filed defective briefs in at least 3 cases in 2006 and 2007. In one case, he failed to address the central issues, and in a second case, he recycled boilerplate language from other briefs. In a third case, he failed to address the extensive and detailed concerns raised in an Immigration Judge's decision. The outcome in the latter case suggests that the petitioner in that case may have been significantly prejudiced by this omission.
At the hearing before the CAG, the respondent testified that he had not personally prepared the briefs in question. They were drafted by Mr. Singh or his assistant. The respondent testified that he now personally handles all of the Second Circuit cases for which he is counsel of record. The CAG reviewed a sampling of his briefs in 2008 and found significant improvement. Nonetheless, the CAG found that the respondent was responsible for his failure to properly supervise the work of the attorneys in his office with regard to the preparation and filing of deficient briefs, citing Code of Professional Responsibility DR 1-104(b) and (c) (22 NYCRR 1200.5[b], [c]).
The CAG noted both aggravating factors, e.g., prior disciplinary sanctions by the Ninth Circuit for failure to comply with that court's scheduling orders, a pattern of dilatory conduct, multiplicity of offenses, filing of deficient briefs in multiple cases, and vulnerability of the respondent's clients, as well as mitigating factors, e.g., good faith effort to rectify the consequences of his mistakes, remorse, cooperation with the CAG, and the absence of a dishonest or selfish motive. The CAG noted also that "although [the respondent] may not have intended to neglect his clients, it was [his] decision to greatly increase his caseload without making adequate provision to protect his clients from the risks inherent in an over-stretched practice."
With respect to the imposition of discipline, the CAG found that reciprocal discipline was warranted under Rules of the United States Court of Appeals, Second Circuit, Local Rule 46(f) on the basis of the order of suspension issued by the Ninth Circuit, citing Selling v Radford (243 US 46, 60-61). The CAG also found that the respondent's conduct before the Second Circuit warranted discipline.
Last call for the Tulane Spetses Greece summer school, open to students at all law schools
Posted by Alan Childress
Not The Attorney's Fault
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice action:
The documentary evidence conclusively disposed of plaintiff's legal malpractice claims. The hearing court found that plaintiff's disobedience of the so-ordered stipulation directing her to transfer certain custodial accounts to her husband's attorney to be placed in escrow or immediately liquidate the accounts and transfer the proceeds was willful. In light of such willful conduct, the motion court properly found that plaintiff — not her attorneys — was the proximate cause of her contempt adjudication and the resulting incarceration. We note that letters from the husband's attorneys, which were provided to plaintiff by defendants, unambiguously indicated that plaintiff's compliance with the so-ordered stipulation was a condition precedent to further settlement discussions. Defendants' alleged failure to correct the purge amount set forth in the contempt order to conform to the stipulation was also not a proximate cause of plaintiff's incarceration from December 23 through December 26, since the stipulation identified the amounts in the subject accounts as "approximate current balance[s]," thus recognizing that their values were subject to market fluctuation. In addition, the slightly higher purge amount in the contempt order conformed to plaintiff's own authorization to transfer the accounts dated just the previous day. Defendants' alleged failures to obtain and provide discovery and with respect to support could have been remedied by successor counsel; moreover, any attempt at modification of the pendente lite award would have had limited prospects of success. (citations omitted)
Another Prosecutor On Drugs
The Indiana Supreme Court suspended an attorney for 180 days, with an actice suspension of 60 days and the remainder stayed suject to probation of 18 months.
The attorney suffered from migrane headaches and began taking a schedule III contolled substance in the mid-1970s. He began to experience severe muscle spasms in 2001. From February 2009 to February 2010, he obtained 85 prescriptions from three doctors for the medication. The drugs were obtained in violation of Indiana law.
At the time, the attorney was a deputy prosecutor. He resigned and is currently umemployed. He began treatment for his addiction to pain medication and has been abstinent since March 2010. (Mike Frisch)
The Georgia Supreme Court granted an application for certification of fitness of an attorney who had voluntarily surrendered his license in 1993 after pleading guilty to manufacturing marijuana. The Office of Bar Admissions supported the application on review of letters of support from 23 attorneys and 37 community members.
A full pardon for the offense was granted in 2002.
The court concluded that "since his conviction [he] has shown remorse and had strived to act with integrity and responsibility through his hard work, his devotion to family, and as a volunteer in his community." (Mike Frisch)
March 27, 2011
A Potent Mix Of Alcohol And Drugs
The Pennsylvania Supreme Court imposed a six-month suspension and immediately reinstated an attorney who already had been suspended for a criminal conviction. The attorney was serving as a deputy district attorney at the time of the incident that resulted in the criminal charges.
The incident began in the attorney's home, where he experienced a "mixed bipolar episode." He medicated himself with a combination of prescribed drugs and alcohol.
A colleague visited him and was concerned by his bizarre behavior. She splashed a glass of wine on his face and struck him on the head with a large glass vase. A confrontation ensued in which the attorney struck her and grabbed her breast.
As she fled, the attorney's brother-in-law arrived. He called for an ambulance. The assaultive behavior continued when the police and emergency personnel came to transport him to a hospital. The behavior continued in the ambulance and on arrival at the hospital.
The attorney had no memory of the incidents and pled to a series of offenses including four counts of simple assault.
WGAL.com reports that the attorney was fired from his position as a prosecutor after his arrest. The attorney had sought treatment and cooperated with the disciplinary process. (Mike Frisch)