Friday, January 14, 2011

Neither Judge Or Lawyer

The Louisiana Supreme Court accepted the permanent resignation of impeached federal judge G. Thomas Porteous, Jr.

The court ordered that he be permanently prohibited from the practice of law in Louisiana and any other jurisdiction where he is admitted. The order further prohibits him from seeking reinstatement anywhere. (Mike Frisch)

January 14, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Self-Report Mitigates Sanction

The Louisiana Supreme Court agreed with the recommendation of its Attorney Disciplinary Board and imposed a six-month suspension with all but thirty days stayed in a case where an assistant district attorney had used her position to assist a lifelong friend in the collection of a debt.

The attorney had self-reported the misconduct to her employer and lost her job as a result of the inappropriate use of the authority of her office. (Mike Frisch)

January 14, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Blood Libel

The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted of identity theft and other offenses, concluding that as a result his felony offenses under state law he ceased to be an attorney by operation of law. The particulars:

Respondent's conviction arose from his use of fictitious email aliases to engage in a campaign using the internet to intimidate and harass five Dead Sea Scrolls scholars who differed with his view on the ancient texts, which was greatly influenced by his father's well-renowned scholarship on the subject.

The Wikipedia entry on the father is linked here.  An article from the New York Daily News about the criminal case may be found here.

(Mike Frisch)

January 14, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, January 13, 2011

No Second Bite

The Washington State Supreme Court has disbarred an attorney convicted on plea of guilty to securities and wire fraud. The court rejected the attorney's claim that the bar rule that the conviction conclusively establishes the criminal conduct violates due process of law:

[The attorney] mistakenly refers to the use of his federal conviction in disciplinary proceedings as a "presumption."  The ability of disciplinary counsel to utilize [his] felony conviction at the disciplinary proceeding is not a mere "presumption" but is a collateral consequence of his criminal conviction.  Convicted felons face a variety of nonpunitive collateral consequences in addition to their punitive criminal sentence.   See  In re Reinstatement of Walgren, 104 Wn.2d 557, 569, 708 P.2d 380 (1985) \(discussing collateral consequences of a felony conviction under Washington law).  The lawful judgment of a federal court is not a mere "presumption,"and its use in collateral proceedings is legally unproblematic.

(Mike Frisch)

January 13, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Nonrefundable Mitigation

The North Dakota Supreme Court has imposed a reprimand, rather than the 30 day suspension proposed by its Disciplinary Board, in a matter involving an attorney who had failed to appear for a hearing after his request for a continuance was denied. 

The underlying case involved termination of parental rights and had been continued previously due to Yom Kipper. The court describes the circumstances of the attorney's failure to appear:

On January 20, 2009, the State, its witnesses, and [the attorney's] clients appeared at the scheduled trial, but [the attorney] did not appear. According to [the attorney], he took his daughter to Mayo Clinic from January 4 through January 8, 2009, and he was with his father in Florida from January 9 through January 23, 2009. According to a social worker, the parents had informed the social worker that [he] would not be present for trial and another lawyer would appear to advise the court about the situation. [The attorney] had contacted attorney Tim McLarnan to attend the first day of trial to renew the request for a continuance, and McLarnan attended the trial as a "professional courtesy" to [him]. A referee denied the renewed motion for a continuance, but thereafter granted a continuance of the termination proceeding on its own motion, recognizing the parents' important interests in the termination proceeding and their lack of representation at the January trial.

The court was somewhat sympathetic:

 Disciplinary counsel also claimed [the attorney's] misconduct constituted an aggravating selfish motive because he visited his father using non-refundable airline tickets after his request for a continuance was denied. However, the hearing panel did not find his misconduct had a selfish motive, which suggests the mitigating factor of the absence of a selfish motive under N.D. Stds. Imposing Lawyer Sanctions 9.32(b). Moreover, [he] is a sole practitioner without an available associate to cover scheduling conflicts on his behalf, and we decline to minimize his family responsibilities for his daughter and for his elderly father. Those family responsibilities clearly and convincingly establish a personal quandary for a father and a son and militate against a selfish motive.

There is also evidence the State had not fully complied with [his] discovery requests at the time of the scheduled January trial, and a referee thereafter compelled the State to provide complete answers to those requests. Those circumstances are not indicative of an adverse affect on [the attorney's] clients, and there is evidence his clients had been informed of his predicament. The record also clearly and convincingly reflects [he] accepted responsibility for the initial scheduling error, made full disclosure during the disciplinary process, and has been cooperative and remorseful throughout these proceedings, which are mitigating factors under N.D. Stds. Imposing Lawyer Sanctions 9.32(e) and (l).

We do not condone [his] misconduct in this case. However, we conclude there are several relevant mitigating factors not cited by the hearing panel, and after considering all the extenuating and mitigating circumstances in this case under our de novo review, we conclude a reprimand is a sufficient sanction for [his] isolated instance of misconduct.

(Mike Frisch)

 

January 13, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D.C. Finds First Ever "Extraordinary Circumstance"

The District of Columbia Court of Appeals for the first time since its en banc Addams decision in 1990 has found an "extraordinary circumstance" that overcomes the presumption of disbarment in a case involving intentional misappropriation. The division of the court imposed a six-month suspension and ordered the suspension stayed in favor of probation.

The attorney has practiced for 15 years without a bar complaint. The misconduct related to his appointment as  successor conservator to a ward of the probate court. He took entrusted funds when the ward was undergoing a Medicaid eligibility review to "spend down the [ward's] bank account." He then petitioned the court for legal fees. The fee petition was denied because the services were non-legal in nature.

A show cause hearing was scheduled for his failure to file an annual accounting. The hearing committee in the bar discipline case found that the attorney discovered at that time that his fee petition was denied. The attorney later filed the accounting and repaid the fees he had taken.

The Board on Professional Responsibility majority concluded that the misappropriation was negligent but presented the first post-Addams exceptional circumstance. Three board members found intentional misappropriation. The board majority had recommended a stayed six-month suspension, which the court here adopted. Board Chair Martin Baach recommended disbarment.

The court "conclude[s] that the facts of the case-in particular that the motivation for the misappropriation was protection of the client's interest-present the type of 'extraordinary circumstances' in which disbarment is not the appropriate sanction."

The attorney who achieved this victory for his client is not one of the usual suspects who defend bar cases in the District. Rather, he is the Assistant Dean of Student Services at North Carolina Central School of Law.

This is a major decision. The court had a big bar discipline day. We will be posting some other decisions of interest. (Mike Frisch)

January 13, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 12, 2011

No Delite

The Hawai'i Supreme Court denied a petition for reinstatement of an attorney who was suspended for five years in 2005. The court concluded that extended consideration of the petition was not necessary in light of his representation of a company (as well as himself) in a disputed matter. The company is called Gourmet Delite, Inc.

The court found that, while he could represent himself, he could not represent the company, notwithstanding his claim that such representation was permissible under Hawai'in law.

The suspension order is linked here.  (Mike Frisch)

January 12, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Firm Pays For Dates, Disbarment Imposed

The New Jersey Supreme Court has imposed disbarment as recommended  by its Disciplinary Board of a former Fox Rothschild and Margolis Edelstein partner for what the board described as a "premeditated, continuous, and extensive fraudulent scheme" relating to the submission of falsified entries into the time-keeping systems of both firms.

The attorney also engaged in a conflict of interest by entering into a sexual relationship with a divorce client. The attorney denied the relationship with the client, which the board found established by "numerous e-mail exchanges..."

Finally, the attorney submitted reimbursement vouchers to Margolis Edelstein to have the firm pay for dinners with two women he met through an Internet dating service by claiming they were "potential clients or potential souces of client referrals." Presumably, this was not the sort of business development that the firm wished to fund.

A special master had proposed an eighteen month suspension. The court's order of disbarment is attached to the board's recommendation.  (Mike Frisch)

January 12, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

Brownie's Will

 An Illinois hearing board has recommended a censure of an 81 year old attorney who wrote a series of wills for a client that gave, among other things, a round antique occasional table to the attorney 's wife. Over time, the bequests came to include a percentage of the client's estate.

The attorney had practiced law since 1954 without any prior discipline.

The representation involved a client who is referred to as "Brownie." The relationship between Brownie and the attorney is described as follows:

The Respondent first met Charles Ellsworth Brown in the early 1940s, when the Respondent was in grade school. Brown, who most people refer to as "Brownie," is 13 years older than the Respondent, and lived in Beeson, a town about 12 miles from Lincoln [Illinois]. Brownie was a good baseball player, and started to pursue a professional baseball career. Brownie ultimately became a baseball scout for the Chicago White Sox and then for the Minnesota Twins. Brownie received two World Series rings from the Twins. Brownie also worked for the State of Illinois for 8 to 10 years in the 1960s. Brownie was active in politics, but never held any elected office other than precinct committeeman. The Respondent was also active in politics, and frequently was at meetings, lunches, and dinners with Brownie.  Brownie referred some clients to the Respondent.  The Respondent described Brownie as a "social acquaintance."

In the early 1980s, the Respondent did legal work for Brownie’s mother. About the time Brownie’s mother died, in 1986, the Respondent started doing legal work for Brownie. For example, the Respondent did tax work for Brownie throughout the remainder of Brownie’s life.

The attorney described the circumstances of Brownie's final will and the ensuing bar complaint:

The final will the Respondent prepared for Brownie was in 2007. Brownie again came to the Respondent’s office with handwritten changes on his previous will.  The 2007 will contained the same bequests to the Respondent’s wife as in the 2005 will. Specifically, the Respondent’s wife was to receive the table, woodworking, shop tools, and 15% of the residual estate.  The Respondent said he suggested to Brownie that he change the gifts to Respondent’s wife, but Brownie refused to do so and said "he didn’t know anybody that had treated him better than myself and my wife."  The Respondent also told Brownie that he should go to another attorney, but Brownie refused. The Respondent then prepared the 2007 will, and Brownie executed it.  At the time he prepared the 2007 will, the Respondent believed that Brownie’s estate was worth "around" $500,000 and that 15% of the estate would be an amount over $75,000.

The Respondent further testified that during the period of time he prepared the wills for Brownie, Brownie would often stop by the Respondent’s home and his office to visit.  During the last year or so of his life, Brownie obtained the services of a caregiver, who took care of his home and drove him places.  Brownie died on January 21, 2009, and the Respondent said he was "competent right up to the day he died."

Probate proceedings for Brownie’s estate were initiated on February 4, 2009.  The Respondent was, initially, both the executor and the attorney for the estate. The value of the estate was about 1.6 million dollars. The Respondent said he had no idea that the value of the estate would be so large. There had been no will contest filed.  The Respondent said that an auctioneer in Logan County offered to purchase the "round table with four chairs" for $100, and the tools left on Brownie’s premises at the time of his death sold for less than $30.

A cousin of Brownie filed a charge against the Respondent with the ARDC. Thereafter, on May 6, 2009, the Respondent’s wife filed a disclaimer of every bequest to her in Brownie’s will.

Brownie and his wife had no children. The hearing board found no evidence of undue influence and that the evidence established Brownie's competence up until his death. One of the witneses who testified for the attorney was a United States District Judge who met Brownie when the judge played baseball at Illinois State University. They became close and attended games together. The judge testified that Brownie had a high regard for the attorney.

(Mike Frisch)

January 11, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Matter Of Public Record

The New York Appellate Division for the First Judicial Department has disbarred an attorney convicted by a jury of immigration fraud:

The criminal charges against respondent alleged that from in or about 2000 to in or about 2008, respondent and his co-defendant paralegal ran an immigration law practice in Bronx County during which time they prepared hundreds of fraudulent applications for amnesty and other immigration related benefits and filed those applications with the U.S. Department of Citizenship and Immigration Services. In addition, it was alleged that in November 2005, respondent falsely signed, under penalty of perjury, an amnesty application avowing that he had personal knowledge of the information contained therein and that the information had been provided to him directly by the applicant.

The court rejected the attorney's request for confidential treatment of the disciplinary order. (Mike Frisch)

January 11, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

Drive-By Representation Draws Reprimand

An Illinois hearing board has imposed a reprimand of an attorney for his representation in a domestic relations matter. The text of the reprimand:

During the course of your representation of [the husband] in his domestic relations matter, you knew that the Court had entered an emergency order of protection against your client which prohibited his, or any 3rd party, contact with his wife...However, on September 3, 2009, after receiving a call from your client requesting that you drive by the martial [sic] residence to determine whether [the wife] was moving your client’s belongings from the home, you drove to the martial residence, parked your car in front of the driveway, blocked the exit for two other cars, took pictures of [the wife's] actions to be used as evidence at the hearing on the order of protection scheduled for September 4, 2009, and refused to leave the marital residence after a request made by [the wife] and her friend...After the police were called, you were arrested, and on September 18, 2009, you were charged with one count of Criminal Trespass – Remain on Land. On January 15, 2010, pursuant to a negotiated plea of guilty, the Court sentenced you to a six-month period of supervision and payment of fines and costs. Further, in connection with the representation of [the husband], you continued to represent him in his domestic relations and dissolution of marriage matter following a September 9, 2009 court order directing you to withdraw your participation as counsel due to a possible conflict of interest. In so doing, you used methods of obtaining evidence that violated the legal rights of another person in violation of Rule 4.4(a), engaged in criminal conduct in violation of Rule 8.4(a)(3) and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(a)(5) of the 1990 Illinois Rules of Professional Conduct.

The attorney also must take a professionalism seminar. (Mike Frisch)

January 10, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Distraction

The Georgia Supreme Court has ordered a three-year suspension of an attorney for misconduct while representing a client in a case alleging violation of a municipal ordinance. The client was found guilty and sentenced to three days in jail and a $400 fine. The ethical violations involved the attorney's behavior in a series of appeals.

The client filed a bar grievance while the case was still on appeal. The attorney "advise[d the client] that the Bar complaint was contrary to her interests and would distract him from addressing issues that were actually adverse to her...and most likely would be dismissed as lacking merit." The attorney continued to represent the client despite her discharge of him.

The attorney must satisfy conditions for reinstatement that include a psychiatric evaluation establishing his fitness to practice law. (Mike Frisch)

January 10, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Anger Management

An attorney convicted of simple assault was suspended for nine months by the South Carolina Supreme Court. The suspension was imposed nunc pro tunc to the date of his interim suspension. The attorney also must successfully complete a course in anger management.

The court's opinion notes that the attorney had a previous suspension for conduct that, in part, involved his temper. (Mike Frisch)

January 10, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)