June 17, 2011
Judge May Not Require Defendant To Attend Church As Condition Of Release
The Mississippi Supreme Court has reprimanded and suspended for 30 days without pay a justice court judge for misconduct in connection with a number of criminal cases. The matter was submitted on an agreed statement of facts.
Among the violations: requiring the defendant to attend church as a condition of release, initiating and inviting ex parte contacts and presiding over the initial appearance of her nephew.
Justice Kitchens dissented, concluding that the court lacked adequate details about the conduct on which to determine judicial misconduct. (Mike Frisch)
On Grandfather Mountain
The North Carolina State Bar has filed charges against an attorney alleging that he had made inappropriate remarks, sought sex and had sexual relations with a number of female clients. The charges contend that he followed one client home and entered the house without an invitation. There are instances where he is alleged to have suggested that his efforts on behalf of client would be enhanced by sexual relations.
In another representation, he is alleged to have had sexual relations with a client in a wooded turnoff on Grandfather Mountain.
The web page for the Mountain states: "The views are ancient. The experiences are all brand new." (Mike Frisch)
Dismissal From Tenured Position For Plagiarism Affirmed
The New York Appellate Division for the First Judicial Department has affirmed the dismissal of an action brought by a tenured Columbia professor who was removed from her position after an investigation into plagiarism charges:
Respondents' decision to terminate petitioner from her tenured position at respondent college was not arbitrary and capricious. The findings of the college's Faculty Advisory Committee (FAC) that petitioner committed plagiarism and fabricated documents that she presented in her defense was supported by the evidence (see Matter of Bigler v Cornell Univ., 266 AD2d 92 , lv dismissed 95 NY2d 777 ). There exists no basis to disturb the credibility determinations
of the FAC (see Matter of Ebert v Yeshiva Univ. 28 AD3d 315, 316 ).
Further, the record establishes that respondents substantially complied with the college's statutes (see Matter of Loebl v New York Univ., 255 AD2d 257, 257-259 ). Petitioner was also provided with a full and fair opportunity to present her defense against the charges of plagiarism (see Ebert at 315; cf. Tedeschi v Wagner Coll., 49 NY2d 652, 661-662 ). There is nothing in the college's "Statutes" prohibiting its president from referring the investigation of this matter to outside counsel or prohibiting the college from indemnifying certain witnesses.
The New York Times had this report from 2008. The professor had received national publicity after reporting that a noose had been left hanging on her office door. (Mike Frisch)
The Price Of Gas
The web page of the Massachusetts Board of Bar Overseers reports a public reprimand of an attorney for the following:
In January of 2008, the respondent was retained to represent a client in a contentious
divorce from her husband. During the course of the marriage, the husband had permitted the
client to use a gasoline credit card in the name of the husband’s business for her personal use.
The client’s continued usage of the credit card was an issue raised by the husband early in
the divorce and was a subject of an order of the court in March of 2008 permitting her
Beginning in July of 2008 and continuing through July of 2009, the client periodically
gave the respondent the gasoline card to use for his own personal use, without the knowledge
of her husband or his counsel. The respondent used the card to pay for gasoline for his own
automobile at least twenty times. During this same time period, the respondent also knew
that the client gave the gasoline card to other people to use without the consent of her
husband or his counsel.
The respondent did not advise the client of the risks involved in allowing others to use
the gasoline card. The respondent’s representation of the client in the divorce was materially
limited by his personal interest in using the gasoline card for his own expenses and the
respondent did not obtain the consent of the client, after consultation, to the respondent’s
continuing representation of her in the divorce case.
By September of 2008, the husband and his counsel suspected the gasoline card was
being used by persons other than the client. When the issue of possible misuse of the card
was raised to the respondent, the respondent did not disclose that he had been using the
gasoline card, did not discuss with the client whether such disclosure should be made and did
not discuss whether the client should cease allowing others to use the card. The respondent
did not withdraw from representing the client in the divorce matter at this time.
The attorney violated Rules 1.2(a) and 7.1. The attorney made restitution in an amount over $1,100. (Mike Frisch)
June 16, 2011
A Massachusetts attorney who made a false statement on a public document when entering into a bigamous marriage was suspended for one year with six months stayed. According to the summary on the web page of the Board of Bar Overseers:
In 2002, the respondent married his first wife. There were no children of the
marriage. Sometime in early 2005, the two were separated and the respondent left the
marital home. In the summer of 2007, the respondent approached his first wife about a
divorce but she was not cooperative.
In October of 2007, while still legally married, the respondent became engaged to
another woman. The respondent told her that he had never been married. On April 11, 2008,
the respondent and the other woman applied for a Notice of Intention of Marriage
(commonly referred to as a marriage license) at a local town hall. On the application, the
respondent falsely reported under the penalties of perjury that his contemplated marriage was
to be his first marriage and that there were no known impediments to the marriage.
On May 31, 2008, the respondent married his “second wife”, knowing that he was
still married to his first. The second wife was unaware that the respondent had been
On June 12, 2008, the respondent, for the first time, admitted to his second wife that
he had been married before and then falsely claimed that he believed his marriage to his first
wife had been annulled in 2002. Thereafter, the respondent was ultimately divorced from his
first wife and the marriage to his second wife was annulled.
In marrying and subsequently seeking an annulment from the respondent, the second
wife and her family incurred substantial expenses. The emotional distress caused by the
respondent’s deception resulted in the second wife is becoming depressed and receiving
professional counseling for over one one year.
An aggravating factor--experience in domestic relations law. (Mike Frisch)
"Any Reasonably Prudent Person..."
An Illinois attorney has been charged with ethical violations as a result of the following alleged facts:
In 2003, Respondent was residing in Marina del Ray, California.
For several days prior to December 16, 2003, Respondent communicated with a female individual, C.G., on the internet. On December 15, 2003, Respondent and C.G., agreed to meet the following day, and decided on a Walgreens store near C.G.’s home in Torrance, California, as the location for their meeting. C.G. informed Respondent that she would wear a pink dress so that he would be able to identify her.
On December 16, 2003, Respondent met with C.G. at the Walgreens store. Upon meeting C.G., due to her youthful appearance, Respondent knew or should have known that C.G. was under the age of 18.
Respondent and C.G. exited the Walgreens together and entered Respondent’s vehicle. Respondent and C.G. then stopped at a fast food drive-through, where C.G. purchased some food. Shortly thereafter, Respondent and C.G. parked Respondent’s vehicle in an isolated parking lot and began engaging in a sexual act.
...Los Angeles Sheriff’s Department Officer Daryl L. Williams observed Respondent’s automobile parked in an isolated area. Officer Williams pulled his vehicle in behind Respondent’s vehicle and observed Respondent and C.G. in the back seat of Respondent’s vehicle. Officer Williams approached Respondent’s vehicle and observed Respondent and C.G. hurriedly attempting to replace their clothing. Officer Williams observed Respondent trying to pull up his pants to cover his exposed penis, and C.G. attempting to pull down her dress. C.G.’s panties were in the backseat area of Respondent’s vehicle.
Officer Williams immediately observed that C.G.’s physical appearance was that of someone younger than 18 years of age. Officer Williams asked C.G. her age and C.G. informed Officer Williams that she was 18 years old. Officer Williams asked C.G. how she knew Respondent and C.G. said that they had been introduced over the internet by a mutual friend, had been corresponding for about a week, and had agreed to meet on that date.
Officer Williams asked Respondent how he knew C.G. and Respondent said he had just met C.G. while shopping in the Walgreens. Respondent told Officer Williams that he had never seen or talked with C.G. before.
Respondent’s statement that he had never seen or talked to C.G. before was false, and Respondent knew it was false when he made it, because Respondent had been communicating with C.G. over the Internet for several days prior to his meeting with C.G.
Upon further questioning by Officer Williams, C.G. admitted that she had lied about her age, and C.G. advised Officer Williams that she was 16 years old. During the questioning, C.G. denied that that she and Respondent had engaged in sexual intercourse.
Officer Williams observed through the open car door a condom and a condom wrapper, as well as C.G.’s panties, in the rear seat area of Respondent’s vehicle.
Officer Williams concluded that Respondent had committed or was attempting to commit a crime in his interactions with C.G., based on C.G.’s age. Officer Williams transported Respondent and C.G. to the Lomita, California, police station.
At the station, Officer Williams reviewed a videotape from the Walgreens store where Respondent and C.G. had met. Officer Williams noted that Respondent and C.G. exited the store approximately one minute after Respondent entered the store, where C.G. had been waiting. Officer Williams concluded that those facts were was not consistent with Respondent’s statement that he and C.G. happened to meet while shopping at the Walgreens and struck up a conversation that led them to leave together.
Officer Williams determined that any reasonably prudent person would have recognized that C.G. was not 18 years old based on her youthful appearance. Based on C.G.’s appearance, the manner of the meeting of Respondent and C.G., the state of their undress, and the presence of items such as a condom that would indicate preparation for sexual intercourse, Officer Williams determined that Respondent had contacted C.G. for the purposes of a sexual encounter. Officer Williams placed Respondent under arrest and charged Respondent with attempting to commit an act of unlawful sexual intercourse with a minor, annoying/molesting a child and contributing to the delinquency of a minor.
The attorney was charged with a felony and pled no contest to a misdemeanor. Here, he also is charged with failing to report the conviction to the bar. The complaint alleges that the matter came to light in 2010 when the attorney applied for admission to the California Bar. (Mike Frisch)
The Blind Eye
The Indiana Supreme Court has imposed a suspension of 120 days in a case in which a prosecutor engaged in conflicts of interest in forfeiture proceedings:
The parties stipulate that the narrow issue in this case is whether there is a conflict of interest when a deputy prosecutor contracts privately to do what the elected prosecutor could properly contract with private counsel to handle. At this point in these proceedings, the parties do not dispute the hearing officer's findings of fact or his conclusion that Respondent violated the rules as charged. The only issue the parties briefed was what discipline is appropriate.
Although [Chief] Prosecutor Reed set up and approved the procedure under which Respondent retained 25% of civil forfeiture judgments, the conflict of interest created by this system of compensation when he was also prosecuting the criminal action should have been apparent to Respondent. At no time did he undertake an independent assessment of the procedure. Had Respondent at any time taken a critical look at the system, he should have been able to see that a [Deputy Prosecuting Attorney's] representation of the State could have been materially limited by the DPA's personal financial interest in the [confidential settlement agreements] or the outcomes of civil forfeiture actions. Respondent essentially turned a blind eye to these now-conceded ethical violations for well over a decade.
As to sanction:
Although there is no evidence in this case that Respondent made any explicit quid pro quo offer of favorable treatment to any criminal defendant in exchange for the forfeiture of property from which Respondent would be compensated, it would doubtless be evident to such a defendant, and to his or her attorney if represented, that prosecutorial discretion in how to proceed with the criminal case was held by one who stood to reap personal financial gain if the defendant agreed to the forfeiture of his or her assets. Respondent's misconduct created an environment in which, at the very least, the public trust in his ability to faithfully and independently represent the interests of the State were compromized.
The attorney had sought the guidance of the Indiana Prosecuting Attorneys Council but did not fully disclose the procedure and conflict of interest. (Mike Frisch)
No Defense Of Assisted Suicide
The South Dakota Supreme Court has held that a person who kills a friend who wished to die cannot offer an "assisted suicide" defense to the charge of first degree murder. The friend had a failed suicide attempt. He was addicted to drugs, feared a likely return to prison, and was terminally ill. They went to a remote location where the defendant shot his friend at close range. The body was found by fishermen. (Mike Frisch)
An attorney suspended for a year in April has now been disbarred by the New York Appellate Division for the Third Judicial Department. This highlights a procedural issue that often confronts bar counsel and disciplinary adjudicators. We call it the problem of the "follow on" case.
When bar counsel has investigated a lawyer and decided to file charges, there may be ongoing investigations that are not completed. Also (and quite typically when the attorney is neglecting a practice), an attorney will continue to accumulate complaints after charges are filed.
When do you hold up pending matters to allow the "follow ons" to catch up? Delay may not be in the public interest.
When do you say enough and shut down? At least in D.C., you can only disbar someone once. We don't have consecutive disbarments in the District of Columbia--it's always five years. The answer to this question also implicates the limited resources of a bar disciplinary system.
In my day (which ended almost exactly a decade ago), once we had an attorney suspended with fitness, we would continue to investigate fresh complaints but hold them for consideration if the attorney sought reinstatement.
Here, it makes sense to have completed case two, which upped the ante from suspension to disbarment. The attorney did not help his cause by ignoring the disciplinary process. (Mike Frisch)
The Washington State Supreme Court has disbarred an attorney who accepted representation on receipt of a $25,000 retainer without making clear the fee arrangements. He then claimed it was a flat fee and refused to negotiate terms with the client. He did little work and failed to communicate settlement offers despite the client's desire to resolve the matter. When a bar complaint was filed, the attorney submitted conflicting and inflated bills in an effort to justify the fee.
The court summarized conflicting expert testimony on the issue whether the flat fee was excessive. The court fond that it was.
The client was a car enthusiast who had purchased a Shelby Mustang. The deal went sour and the seller filed suit in federal court. The client found the attorney by consulting the telephone book. This did not turn out to be a wise choice. (Mike Frisch)
June 15, 2011
False Statement By Justice Draws Suspension
The New York Appellate Division for the Third Judicial Department has suspended an attorney for six months and until further court order for the following misconduct:
The Referee found that respondent admitted under oath that, while he was serving as a Supreme Court Justice, he filed an affidavit in Hamburg Town Court containing false and intentionally misleading statements in an effort to obtain a dismissal of criminal charges pending against a friend and that, prior to his resignation, he sought private employment as an arbitrator or mediator in two matters that had been pending before him. The Referee also determined, and the Grievance Committee has conceded, that respondent did not fail to cooperate with the investigation of the Grievance Committee.
The case is Matter of Makowski, decided June 10, 2011.
BuffaloNews.com has this report. The false statement was made on behalf of an attorney, who was later disbarred.(Mike Frisch)
A dissatisfied former client sued his attorney for malpractice and also sought as relief an order compelling the Montana Office of Disciplinary Counsel and Commission on Practice to suspend the attorney.
The Montana Supreme Court held that the trial court has no authority to take action against the attorney's license:
...we hold that the District Court was correct in concluding that it does not have the authority to compel the ODC or the COP to take action of any kind.
The client's complaint to the ODC had been dismissed. (Mike Frisch)
Welcome Back But Behave From Now On
The Wisconsin Supreme Court has reinstated an attorney with a disciplinary history that includes a six-month suspension (for sex with a client and with a juvenile client's mother) and an eighteen-month suspension. The Office of Lawyer Regulation had concerns about reinstatement, but the court concluded:
The court has carefully evaluated whether Attorney...has indeed met the requirements for reinstatement of his license to practice law in Wisconsin. We remain troubled by the very serious misconduct he committed and its impact on some vulnerable clients. Attorney...has been suspended twice and publicly reprimanded once in the last five years. His misconduct has included misrepresentation, improper sexual relationships with female clients in vulnerable personal situations, failure to act with reasonable diligence, failure to immediately refund unearned fees, contacting a client after receiving notice successor counsel had been retained, and a trust account violation. However, the referee was persuaded that Attorney... has met the requirements for reinstatement and we defer to a referee's credibility determinations. Therefore, upon careful consideration of the entire record, we agree that Attorney...has met his burden of proof with respect to the elements necessary to justify reinstatement.
The court did say that it expects exemplary behavior from the attorney in the future. (Mike Frisch)
Shell Game Leads To Disbarment
An attorney convicted of obstruction of justice was disbarred by the New York Appellate Division for the First Judicial Department. The court summarized the underlying facts:
Respondent was charged in connection with his involvement
in setting up several limited liability companies that were actually shell companies used to fraudulently transfer more than $25 million. The Statement of the Offense sets forth in detail the respondent's false and misleading statements to FBI agents and federal prosecutors in connection with a grand jury investigation into this scheme to defraud, which false statements were intended to curtail the scope, duration and direction of that investigation. In accepting the plea offer, respondent agreed to forfeit to the United States $275,000 which he agreed approximated his net proceeds derived from his participation in the transactions.
The court rejected disciplinary counsel's argument that disbarment for such a conviction was automatic, because there is no analogous state offense. The attorney did not object to the discipline. (Mike Frisch)
South Korean Conviction No Basis To Summarily Disbar
The District of Columbia Board on Professional Responsibility has issued an interesting report on a complicated question of law. The case involves an attorney who was convicted in Incheon District Court, South Korea, on charges that she had stolen $1,100 on a flight from the United States to South Korea.
Bar Counsel reported the conviction and statutes (with translations) to the Court of Appeals and sought an interim suspension for a "serious crime" conviction. The attorney objected and disputed the translations.
The court suspended the attorney and sent to the matter to the board for a moral turpitude inquiry. If it's moral turpitude, it's disbarment in the District of Columbia. This legal principle dates back to the bar discipline case against Charles Colson.
Bar Counsel sought a moral turpitude finding based on the fact of conviction. The attorney argued the the Korean legal system is "quite different" from that in the U.S. and that the conviction should not be treated as would a state or federal felony.
The board agreed with the attorney, concluding as a matter of law that the South Korean conviction was not a "serious crime" within the jurisdiction of the court's Rule XI, Section 10, which sets forth the procedures for criminal convictions. In effect, the board's interpretation would limit the rule to convictions in the United States.
If the court disagrees on the jurisdictional point, the board indicates that it would not find moral turpitude per se but would send the matter to a hearing committee rather than treat the conviction as a felony theft. A hearing was held in Maryland (where the attorney also is admitted) which led to a finding of no misconduct.
The case is In re Jinhee Kim Wilde and can be accessed though this link. (Mike Frisch)
June 14, 2011
More Than Incivility
The Rhode Island Supreme Court has imposed a public censure of an attorney in connection with an appeal in a medical malpractice case.
filed several pleadings with this Court relating to his appellate claims. It is the content and tone of those pleadings that brings him before us...Rather than providing a reasoned explanation of the facts and law that supports his client's case, he filed pleadings that are replete with false and outrageous libels and accusations directed against opposing counsel and defendant-appellees.
The offensive language
He falsely accused opposing counsel of “deceit,” falsely alleged that she had engaged in “ambush tactics and trickery,” and falsely claimed she was “dishonest.”
The court found that the "conduct demonstrated more than a lack of civility" and that "[t]he resources of this Court were diverted from deciding the important issues before it to chastising inappropriate conduct not worthy of a member of the bar." (Mike Frisch)
Attorney Inflates His Own Claim, Consents To Disbarment
The Maryland Court of Appeals accepted the consent to disbarment of an attorney recently convicted of fraud charges. localKicks reports that the crime involved the attorney's own personal injury claim:
Lahuti is an attorney who is licensed to practice in Maryland and the District of Columbia. Lahuti owns and operates the Law Offices of Ryan Lahuti, P.C., and has offices in Silver Spring and Langley Park, Maryland. According to court documents, Lahuti had an ongoing business relationship with chiropractor Jason Carle, wherein the two would refer clients to one another. In May 2009, Lahuti was involved in an accident during which he was reportedly hit by a vehicle while riding his bicycle. Lahuti subsequently contacted Carle and asked Carle to create a patient file for him to document purported treatment related to the bike accident that Lahuti could use to submit a fraudulent insurance claim.
Carle never examined Lahuti or treated him for any injuries sustained in the accident, but fabricated patient files to document over $7,000 in treatment that he purportedly provided to Lahuti on 32 different occasions between May and August 2009. Carle also created documentation that falsely stated that Lahuti was totally incapacitated and out of work for two weeks after the date of the accident.
Lahuti used the false documents created by Carle to file a fraudulent bodily injury insurance claim with GEICO in November 2009. Lahuti used the same documentation to also file a false Personal Injury Protection (PIP) claim with GEICO. Lahuti demanded a $140,000 settlement from GEICO but eventually settled the bodily injury claim for $11,000 and the PIP claim for $6,435. Carle received approximately $3,500 of the settlement money for his role in the scheme.
The chiropractor also entered a guilty plea. (Mike Frisch)
Stay Out Of Rhode Island
The Rhode Island Supreme Court has entered an order finding that a business located in San Antonio, Texas violated restrictions on unauthorized practice through an online web site. The business is known as Low Cost Paralegal Services. The business held itself out to Rhode Islanders as "competent and qualified to prepare legal documents for uncontested divorces and to assist with a child support problem..." The court rejected as incredible the principal owner's representation that she will cease and desist from future unauthorized practice.
The court forwarded its order to the Rhode Island Attorney General with the recommendation that the matter be referred to the Attorney General of Texas and the Federal Trade Commission. (Mike Frisch)
Attorney Charged With Confidentiality Violation
The Columbus Dispatch reports that disciplinary charges have been filed against an attorney alleging a violation of the duty of confidentiality by sending e-mails to the (now former) Ohio State football coach:
The Ohio Supreme Court's Office of Disciplinary Counsel today filed a complaint against Christopher T. Cicero, accusing him of violating attorney-client confidentiality when he sent three e-mails to [former coach Jim]Tressel telling him that players had been given free tattoos in exchange for signed memorabilia.
Cicero, a criminal-defense lawyer, learned of the situation when the owner of the tattoo parlor came to him for legal advice about a federal-drug investigation against him.
Edward Rife, owner of Fine Line Ink on the West Side, met with Cicero twice but never hired him, opting to retain another lawyer to represent him.
This is not the first time Cicero, who played football for Ohio State in the early 1980s, has been in trouble with the legal profession. In 1997, the Ohio Supreme Court suspended his law license for misconduct after he told lawyers and others that he was having sex with then-Judge Deborah P. O'Neill, who had appointed Cicero to defend a client in a criminal case.
Cicero ultimately admitted that he had overstated the affair and that it did not start until after O'Neill stepped down from the case.
June 13, 2011
The Utah Supreme Court concluded that an appeal of a district court order of suspension was untimely. The suspension was imposed as reciprocal discipline based on the attorney's suspension in federal court.
The court here rejected the attorney's assertion that the lower court did not have jurisdiction to impose the sanction, and closed with a bit of advice:
In affirming the denial of [the attorney's] attempt to revive his initial appeal, we cannot help but wonder whether the time and effort [he] devoted to this appeal may have been better spent seeking readmission under RLDD 14-525 or, as suggested by counsel for the OPC at oral argument, by compliance with RLDD 14-525(j). [His] one-year suspension has long since lapsed. His compliance with these provisions as a condition of reinstatement seems a small price to pay to resume the practice of law— presumably a smaller price than the time and effort spent on this untimely appeal. (Mike Frisch)
In affirming the denial of [the attorney's] attempt to revive his initial appeal, we cannot help but wonder whether the time and effort [he] devoted to this appeal may have been better spent seeking readmission under RLDD 14-525 or, as suggested by counsel for the OPC at oral argument, by compliance with RLDD 14-525(j). [His] one-year suspension has long since lapsed. His compliance with these provisions as a condition of reinstatement seems a small price to pay to resume the practice of law— presumably a smaller price than the time and effort spent on this untimely appeal.