July 16, 2011
A Virginia attorney has consented to license revocation. The underlying conduct was a third DUI within ten years. (Mike Frisch)
July 15, 2011
The Wisconsin Supreme Court has imposed a three-year suspension of an attorney for (among other things) the following conduct:
Much of Attorney Schoenecker's misconduct relates to his relationship (both personal and professional) with M.F. In 2007 Attorney Schoenecker and M.F. were engaged to be married. In December of that year they opened a joint checking account. M.F. also obtained a $100,000 home equity line of credit and then made a loan of $48,500 to Attorney Schoenecker. In exchange for the loan, Attorney Schoenecker executed a promissory note, in which he promised to repay the loan with interest.
Two days after making the loan to Attorney Schoenecker, M.F. learned that Attorney Schoenecker had made cash withdrawals from her checking account at a casino. Those withdrawals had resulted in a $1,500 negative balance in the account. This discovery apparently caused M.F. to close the joint checking account and to end her engagement to Attorney Schoenecker.
Attorney Schoenecker repaid only $26,500 of the loan balance. With interest, he still owed M.F. approximately $23,000. At some point in 2009 M.F. filed a collection action against Attorney Schoenecker. The parties ultimately reached a settlement, pursuant to which Attorney Schoenecker paid the total sum of $32,106.36 to M.F. as part of a full resolution of the financial issues between the individuals.
In March 2008, between the end of the parties' engagement and M.F.'s filing of the collection lawsuit, Attorney Schoenecker became an associate at the Clair Law Offices (Clair law firm) in Lake Geneva. It appears from the stipulation that prior to this time Attorney Schoenecker had been representing M.F. in a dispute with a contractor who had performed some work on a property owned by M.F. Attorney Schoenecker informed the law firm that he was representing M.F. and sent her a Legal Representation and Fee Agreement letter on behalf of the Clair law firm. M.F. was then considered a client of the firm. Ultimately, after the contractor filed a lawsuit against M.F. in small claims court, Attorney Schoenecker withdrew as M.F.'s attorney.
Attorney Schoenecker provided legal representation to M.F. at the same time as he was a debtor to her pursuant to the December 2007 loan and promissory note. Attorney Schoenecker did not obtain M.F.'s written consent to waive any actual or potential conflict of interest in the legal representation caused by the creditor/debtor relationship.
The policy of the Clair law firm was that senior attorneys of the firm had to approve bills before they were sent to clients. Attorney Schoenecker, however, sent out two invoices to M.F. in September and October 2008 without obtaining the necessary approval. The total amount shown on the bills was $13,523, but a substantial number of the entries on those invoices were fraudulent. The OLR's memorandum in support of the stipulation alleges that Attorney Schoenecker's submission of these inflated invoices to M.F. was an attempt to offset the remaining amount that he owed M.F. from the December 2007 loan.
In addition to attempting to defraud M.F. through the invoices, Attorney Schoenecker also engaged in a pattern of attempted and completed thefts from her bank accounts. In December 2008 he obtained some of M.F.'s personal information without her consent and began attempting to withdraw money from a business account that she maintained.
Attorney Schoenecker used M.F.'s personal information to enter her business account without her permission and set up an online bill paying account. He changed the e-mail address on the account so that M.F. would not receive notice of any checks he intended to draw on her account.
Attorney Schoenecker first generated two checks in December 2008 that he made payable to himself in the amounts of $950 and $450. He was able to cash the $950 check, but his attempt to cash the $450 check was apparently unsuccessful. Attorney Schoenecker tried to cash a third check in the amount of $1,750 in January 2009, but the check did not clear due to insufficient funds in the account. Attorney Schoenecker did not have M.F.'s consent to generate or cash any of these checks.
Attorney Schoenecker was charged in two separate criminal proceedings arising out his actions concerning M.F. In a Walworth County proceeding, State v. Schoenecker, Case No. 2009CF250, the state charged Attorney Schoenecker with two counts of felony identity theft for the purpose of obtaining money for his attempts to withdraw money from M.F.'s business account. On January 27, 2010, pursuant to a plea agreement, Attorney Schoenecker pled guilty to one felony count of identity theft. See Wis. Stat. § 943.201(2)(a). The second count of identity theft was dismissed and read in for sentencing purposes. The Walworth County circuit court imposed two years of probation and ordered Attorney Schoenecker to pay restitution and court costs.
There also were stipulations of misconduct in his dealings with his law firm and in his personal bankruptcy.
The court majority called the conduct "quite disturbing..."
Justice Bradley, joined by Chief Justice Abrahamson, would reject the stipulation in favor of greater discipline. (Mike Frisch)
Shooting Results In Permanent Disbarment Recommendation
The Louisiana Attorney Disciplinary Board has recommended permanent disbarment of an attorney who was suspended for two years in 1986 and has never been reinstated. The attorney pled guilty to manslaughter arising out of the shooting of a co-worker on Thanksgiving Day.
The board found that he admitted the shooting and accepted a hearing committee finding that he had not acted in self-defense. The board rejected the attorney's contention that the conduct did not reflect adversely on his fitness as a lawyer. (Mike Frisch)
An attorney on retired status has been suspended by the New York Appellate Division for the First Judicial Department on charges that he had failed to pay an arbitration award and cooperate in the investigation of the client's complaint.
His attitude to the bar investigation did not help. For example:
On March 24, 2009, the Committee wrote respondent requesting copies of documents related to the original arbitration, his motion to reargue, his appeal of the February 11, 2009 judgment and to provide dates that he would be available for a deposition. In a letter dated March 30, 2009, respondent answered in a condescending tone. For example, in response to the Committee's notice in its March 24 letter that his failure to cooperate would result in a judicial subpoena compelling his attendance at a deposition, respondent wrote, "Wow. A judicial subpoena! Perhaps you expect us to be concerned. Prepare to be disappointed."
On April 1, 2009, the Committee wrote back, noting that respondent's insulting and patronizing tone called into question his fitness to practice law and again asked him to schedule a deposition. On April 13, 2009, respondent wrote then Chief Counsel Alan Friedberg, insulting Committee Staff and stating that he would only communicate further with a new Staff Attorney.
And, after a year of efforts to locate him:
The Committee wrote to respondent at his new address in Rhode Island on December 9, 2010. On December 30, 2010, respondent wrote the Committee, but did not address the Committee's attempts to locate him or suggest a date for his deposition. Rather, he stated, "[i]f you are still wasting your time and money on the alleged complaint of that deadbeat perjurer, Edward Chalpin,' here is more reading material," and attached a copy of Judge Kaplan's decision in the Hendrix litigation."
The suspension is an interim one pending resolution of the complaint. (Mike Frisch)
July 14, 2011
Here's a bar discipline case that even the Wisconsin Supreme Court can agree on. The court imposed consent revocation in a matter described in part below:
The petition for consensual revocation and the OLR's summary of the misconduct allegations against Attorney...state that there are 59 separate investigations pending against him. The OLR's summary indicates that for each investigation there appear to be violations of multiple rules. Thus, if a formal complaint were to be filed against Attorney..., there could apparently be scores or even hundreds of counts of professional misconduct. In addition to the underlying misconduct at issue in these grievance investigations, Attorney...would also be subject to multiple additional counts related to his failure to cooperate with the OLR's separate grievance investigations.
The court ordered restitution to a long list of former clients in an amount totalling nearly a quarter of a million dollars.
A per curiam decision without concurring or dissenting opinions. (Mike Frisch)
No Immunity For Clinical Medical Faculty
A decision issued yesterday by the Ohio Supreme Court:
In a 7-0 decision announced today, the Supreme Court of Ohio ruled that a physician who serves as a volunteer “clinical faculty member” by allowing students at a state university medical school to observe his private practice is not entitled to personal immunity from malpractice liability under R.C. 9.86 as an employee or officer of the state. The Court’s opinion, which reversed a ruling by the 10th District Court of Appeals, was authored by Justice Paul E. Pfeifer.
The Ohio Court of Claims Act, Section 9.86 of the Revised Code, generally immunizes “officers and employees” of the state from personal liability for injuries caused by the negligent performance of their job duties. Rather than seeking recovery from the individual who allegedly caused injury, the law authorizes persons harmed by state employees’ acts or omissions to recover damages by filing suit against the state in the Court of Claims.
In this case, patient Larry Engel Jr. suffered injuries as a result of alleged malpractice by Dr. Marek Skoskiewicz during the performance of two vasectomy surgeries on Engel at the Henry County Hospital in Napoleon. Engel was a patient of Dr. Skoskiewicz’ private medical practice. The hospital is a private, non-profit facility that is not affiliated with the University of Toledo or any other state agency. The surgeries were observed by a third-year medical student at the University of Toledo College of Medicine (UTCM) who was “shadowing” Dr. Skoskiewicz at the time as part of a program in which private physicians across the state serve as volunteer “clinical faculty members” of the state’s six medical schools by allowing medical students to observe the day-to-day operation of their private medical practices.
Engel filed a malpractice lawsuit against Dr. Skoskiewicz in the Henry County Court of Common Pleas. While Engel’s suit against him remained pending, Dr. Skoskiewicz entered a motion to dismiss or postpone proceedings in the common pleas court. He argued that because he was being observed by a medical student at the time he operated on Engel, he was acting within his capacity as an appointed member of the UTCM faculty. Accordingly, the doctor claimed he was immune from personal liability for Engel’s injuries, and Engel must pursue recovery for his damages by suing UTCM in the Court of Claims. The common pleas court postponed further proceedings pending a ruling by the Court of Claims on whether or not the doctor qualified for personal immunity under R.C. 9.86.
In order to obtain such a ruling, Engel filed suit against UTCM in the Court of Claims. The Court of Claims concluded that Dr. Skoskiewicz had “performed the operations as a state employee” and that, therefore, he was entitled to personal immunity. Engle appealed. The 10th District Court of Appeals affirmed, based on its conclusion that Dr. Skoskiewicz “satisfies the definition of ‘officer or employee’ in R.C. 109.36(A)(1)(a).” The Supreme Court accepted Engel’s discretionary appeal.
Writing for a unanimous Court in today’s decision, Justice Pfeifer agreed with UTCM’s arguments that Skoskiewicz was not acting as a state employee at the time he operated on Engel because there was no contract of employment between the doctor and the medical school, the school did not exercise control over the doctor’s conduct of Engel’s surgery, which was conducted on a private patient in a private hospital, and the medical school did not pay Skoskiewicz either directly or through a university-affiliated organization for providing medical services.
In order to meet the alternative requirement for immunity that Skoskiewicz was acting as an elected or appointed “officer” of the state, Justice Pfeifer wrote: “To be sure, the letters that Dr. Skoskiewicz received from the College of Medicine stated that the College of Medicine had approved his ‘appointment’ to the volunteer faculty at the rank of clinical assistant professor. As support for the proposition that Dr. Skoskiewicz had been appointed to an R.C. 109.36 ‘office or position,’ however, these letters are a slender reed. We refuse to read so much into the letters’ use of the word ‘appointment’ because, to us, the more significant words in R.C. 109.36(A)(1)(a) are ‘office and position with the state.’
“In State ex rel. Newman v. Skinner (1934) ... (w)e stated that ‘[a] public officer, as distinguished from an employee, must possess some sovereign functions of government to be exercised by him for the benefit of the public either of an executive, legislative, or judicial character.’ ... Clearly, Dr. Skoskiewicz possessed no ‘sovereign’ function of an executive, legislative, or judicial character. And his duties were not of a level consonant with those of a public office. The appointment did not entitle Dr. Skoskiewicz to office space, staff, or authority at the College of Medicine; did not enable him to lecture or teach a class at the College of Medicine; did not allow him to conduct university-sponsored research, although he was allowed to collaborate with College of Medicine researchers; did not allow him to practice at the university clinic; and did not entitle him to payment from the College of Medicine. In truth, based on the record before us, the appointment did not enable Dr. Skoskiewicz to do anything except, as stipulated, allow students to ‘rotate through Dr. Skoskiewicz’s practice as a part of one-month clerkships.’”
“Dr. Skoskiewicz and the many other volunteer clinical faculty in Ohio provide an important service. But that service, however commendable, does not transform the volunteers behind it into an arm of the state. Based on the record before us, we conclude that Dr. Skoskiewicz did not hold an appointed office or position with the state. ... Accordingly, he is not entitled to personal immunity pursuant to R.C. 9.86.”
A Pennsylvania attorney has been the subject of a public censure for agreeing to undertake a case that he was unable to properly attend to because of other commitments. While the various explanations that he provided to the court were not dishonest, he was obligated not to undertake a matter that did not fit into his schedule. (Mike Frisch)
July 13, 2011
Huffpost Divorce has this post from Laurie Giles titled "Red Flags That You Hired The Wrong Divorce Attorney."
Shocked, Puzzled And Reprimanded
The Arizona Presiding Disciplinary Judge has reprimanded a county attorney and his chief deputy:
In Count One, Respondents, in their capacity as county attorney and chief deputy county attorney, authorized county investigators to interview a criminal defendant (who was incarcerated and represented by counsel) to ascertain whether or not the defendant had been advised by his attorney of the pending plea offer. Respondent Brannan erroneously believed that pursuant to Montejo v. Louisiana, 129 S.Ct. 2079 (Louisiana 2009), it would be permissible to interview the defendant regarding the plea as long as the investigators "Mirandized" the defendant and he waived his right to have his counsel present. The defendant’s attorney did not receive advanced notice of the visit and was not present during the visit.
Additionally...Respondent Whiting issued a press release in the criminal matter that criticized the judge and his decision to release the defendant and dismiss the matter with prejudice. Respondent Whiting’s statements in the press release indicated that the judge’s ruling contained political statements and personal attacks. The press release further stated that the judge’s ruling quoted from the record entirely out of context and he (Whiting) was shocked and puzzled by the decision, which lacked any supporting legal authority.
The conduct described in count one on the part of Respondent Brannan violated Rule 4.2.
This was an agreed disposition. (Mike Frisch)
Home From the Hill
A Pennsylvania attorney has consented to a two-year suspension for failures to disclose and misrepresentations with respect to information in his application to Albany Law School, transfer application to Rutgers Law as well in his Pennsylvania and New Jersey Bar applications.
The failures involved a series of incidents starting with his being caught smoking marijuana in 1995 while enrolled at The Hill School. As a result, he was expelled.
While an undergraduate at Washington & Lee, he was arrested twice for public intoxication. One matter also involved charges of public urination and indecent exposure. He was involved in an automobile accident for which he was sued. He also had 1997 and 2000 marijuana arrests and had failed to complete court obligations.
In the attorney's favor were a number of mitigating factors, in particular that he had self-reported the misconduct.
As we have often advised, disclose, disclose, disclose. If there is an omission on a law school application, advise your school and seek to amend well before seking bar admission. (Mike Frisch)
Short Relapses Do Not Prevent Reinstatement
An attorney who had been suspended for a total of 24 months in a series of orders has been reinstated to practice by the North Dakota Supreme Court.
The attorney has struggled with alcohol addiction and the hearing panel found:
In its Report, the Hearing Panel found [the attorney] has a long history of alcohol addiction and recovery. The Hearing Panel found that at the time of her suspension, she was not participating in an appropriate recovery program, which contributed to mental health issues that were a causative factor in the misconduct for which she was disciplined. The Hearing Panel found [she] has since completed an intensive inpatient program for chemical dependency, aftercare, participated in Alcoholics Anonymous, worked with sponsors, and attended addiction support meetings at intervals recommended by the sponsors. The Hearing Panel noted her addiction counselor, sponsor, and her support group sponsor testified or filed written evidence in support of [her] reinstatement.
The Hearing Panel found [the attorney] was, at the time of the hearing and for the proceeding year, employed as a legal assistant in the legal department of the Dawson County Domestic Violence Program, in Glendive, Montana, but was not engaging in the practice of law. Sheila Newman and John T. Hrubes, attorneys with the Dawson County Domestic Violence Program, submitted written evidence of her work performance and in support of her reinstatement.
The Hearing Panel was concerned about two short incidents of relapse in July and November 2010. Its concern was allayed by testimony from [the attorney], her addiction counselor, and her support group sponsor that she reported each incident to her support group sponsors and staff members at the aftercare program, and that she reworked her recovery program.
The attorney will be subject to monitoring. (Mike Frisch)
The New York Appellate Division for the Fourth Judicial Department ordered a one-year suspension of two partners in a law firm for admitted escrow violations. The court stayed the suspension so long as quarterly reports are filed by a CPA demonstrating compliance with required procedures.
The court found mitigation:
We have considered, in mitigation, that respondents reported their misconduct to the Grievance Committee and funded an audit of their attorney trust account, and that no client was permanently deprived of funds or was aware that funds were used improperly. Additionally, we have considered the previously unblemished record of respondents, their expression of remorse and their cooperation with the Grievance Committee’s investigation. Finally, we have considered respondents’ submission establishing that the misconduct occurred at a time when they were under extreme stress arising from the reorganization of their law firm.
WKTV Utica has this report. (Mike Frisch)
In a complicated series of domestic relations matters, a husband and wife settled with a provision that the wife would be maintained as the beneficiary of a $1.5 million insurance policy. This became an issue when the husband bcame terminally ill (he is now deceased). He had violated the agreement by designating his girlfriend as his beneficiary. The now ex-wife retained a law firm to protect her interests.
The law firm later sued the ex-wife for fees. As so often happens, she counterclaimed on allegations of legal maplractice. The law firm sought deposition discovery from the ex-wife's present counsel. Counsel move to quash but the court nonetheless ordered compliance.
The Maryland Court of Appeals held that the order denying the motion to quash was not immediately appealable under the collateral order doctrine. (Mike Frisch)
July 12, 2011
Wisconson "Mirrors" Supreme Court
The Wisconsin Supreme Court has held that it lacks authority to review the decision of an individual justice to decline recusal:
We have concluded that this court does not have the power to remove a justice from participating in an individual proceeding, on a case-by-case basis. State v. Henley, 2011 WI 67, ¶25, __ Wis. 2d __, __ N.W.2d __. We explained that our decision in regard to the scope of the court's power when asked to remove a justice on a case-by-case basis is consistent with the court's Internal Operation Procedures, IOP II.L.1., and that it is also "mirrors the way in which the United States Supreme Court addresses motions to disqualify a Supreme Court Justice." Henley, __ Wis. 2d __, ¶¶26-27. We also concluded that due process is provided by the decisions of the individual justices who decide to participate in the cases presented to the court. Id., ¶¶13, 31. Accordingly, for the reasons stated more fully in Henley, we deny Polsky's motion to disqualify Justice Roggensack.
As this is Wisconsin, there is a dissent, authored by Chief Justice Abrahamson:
I dissent for the reasons set forth in the dissents in State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863; in State v. Henley, 2011 WI 67, ___ Wis. 2d ___, ___ N.W.2d ___ (recusal motion); and in State v. Henley, 2011 WI 68, ___ Wis. 2d ___, ___ N.W.2d ___ (amicus reconsideration). I conclude that as a matter of federal and state constitutional due process the court must determine whether a party is denied due process when a justice refuses to recuse upon motion of a party.
I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this dissent.
Justice Ziegler did not participate.
Ohio Rejects Same-Sex Custody Rights By 4-3
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today upheld lower court rulings that a biological mother who acknowledged her same-sex partner as a “co-parent” of her daughter while the two women were in a relationship did not permanently give up her sole custody of the child to create legal shared custody with the partner.
In a 4-3 decision authored by Justice Robert R. Cupp, the Court affirmed a 1st District Court of Appeals ruling that competent, credible evidence supported the Hamilton County Juvenile Court’s judgment that although Kelly Mullen of Cincinnati shared the responsibilities of parenting her daughter Lucy with former partner Michele Hobbs while the women lived together, Mullen’s actions did not confer on Hobbs a permanent right to shared custody of Lucy after her relationship with Mullen ended...
Justice Cupp’s opinion was joined by Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger. Chief Justice Maureen O’Connor and Justice Paul E. Pfeifer entered separate dissenting opinions.
In her dissent, which was joined by Justice Yvette McGee Brown, Chief Justice O’Connor wrote that because the statutory and case law applicable to Hobbs’ claim is well established, and the majority decision established no new governing principle, she would dismiss the appeal as having been improvidently accepted for review.
The opinions are linked here. (Mike Frisch)
July 11, 2011
Hit Man Paid With Post-Dated Check
The South Carolina Supreme Court has imposed a disbarment by consent in a disciplinary matter involving a litany of ethical violations, some related to the practice of law and some not.
This violation stood out from the crowd:
In August 2010, respondent pled guilty to solicitation of a felony. Specifically, respondent admitted attempting to hire a "hit man" to murder another member of the South Carolina Bar. Respondent paid the "hit man" in part with a post-dated check because he did not have sufficient funds in his account to pay the check's face value. Respondent was sentenced to ten (10) years imprisonment, suspended upon service of three (3) years imprisonment and five years of probation...
Complainant, the attorney respondent attempted to have murdered, represented the wife in a domestic matter. Respondent represented the husband. After being relieved from the case, respondent went with the husband to the wife's home and convinced her to fire Complainant and reach an agreement with the husband. Respondent told the wife not to tell anyone about the visit. Respondent prepared a quit claim deed for the husband to sign as part of the settlement he was proposing.
The attorney may not seek reinstatement until after he completes the sentence, pays restitution, costs and satisfies other conditions set by the court.
Hope the checks are not post-dated (MIke Frisch)
On review of a recommendation of its Unauthorized Practice of Law Committee, the Rhode Island Supreme Court has referred a non-attorney for possible criminal prosecution and directed Disciplinary Counsel to investigate a bar member for his relationship with the non-attorney. The court adopted the committee's findings of fact.
The non-attorney is fluent in Spanish and had worked as a paralegal/translator for the attorney. The committee made findings in connection with a series of complaints and after review of the advertisements for business in various media. (Mike Frisch)
New Arizona Disciplinary System In Operation
Those who are interested in how Arizona is progressing with its new Presiding Disciplinary Judge format for attorney discipline should visit the new web page.
The page had links to bar discipline decisions under the new regime. It appears that things are going well--note that there are a number of approved consent sanctions.
Readers will note my oft-expressed concerns about the difficulty of achieving consent sanctions in the District of Columbia. No such problem in Arizona. For an example, see the case at this link. D.C. could never resolve such a case on a consensual basis. (Mike Frisch)
Pool Table No Substitute For Cash
The Georgia Supreme Court has imposed a reprimand for fee violations during the course of a domestic relations matter. The attorney represented the client from 2001 to 2006 at an hourly rate of $225.
A fee dispute arose after trial. The client wanted to give the attorney a pool table in lieu of some fees, but the attorney wanted something else of a green nature.
The client filed a complaint with the State Bar. In a response, the attorney admitted that the client had not been fully credited for payments. In a supplemental response, the attorney created a document in an attempt to end the dispute. The attorney admitted that she had done so, out of "fury" and with poor judgment. (Mike Frisch)