Friday, July 22, 2011
The California State Bar Court Review Department has recommended the disbarment of an attorney who represented United Computer Systems in "protracted litigation" against AT&T and others.
The attorney had engaged in what was characterized as a "relentless crusade against AT&T."
He had been declared to be a vexatious litigant in state and federal court. The Ninth Circuit had imposed sanctions against him.
As to sanction:
Despite countless opportunities to conform his behavior to the ethical demands of the profession, [the attorney] chose instead to continue his meritless litigation. We are troubled that he fails to realize that his actions go beyond zealous advocacy, and believe he will continue abusing the legal system. After considering the aggravating and mitigating factors and decisional law, we recommend that [he] be disbarred as the discipline necessary to protect the public, the courts and the legal profession.
The Review Department rejected the claim that the charges were barred under California's five-year statute of limitations. The violations were of a continuing nature and charges were brought within the limits. (Mike Frisch)
The Indiana Supreme Court Court reduced by half a forty year sentence imposed on a defendant who had fallen asleep in a dentist's office (either drunk or drugged) while waiting for an appointment. The police were called after staff was unable to wake him. A weapon was found along with drug paraphernalia.
He was charged and convicted of felon in possession of a firearm and being a habitual offender.
The court found that twenty years was an "adequate response" to the situation. (Mike Frisch)
An attorney who had represented multiple clients in a transaction was suspended for three months by the Delaware Supreme Court. The suspension will be followed by a period of probation.
Te attorney had testified that he did not "feel conflicted" in the transaction. The court held that he is "deemed to know the requirements of Rule 1.7." The determination of a conflict is an objective standard, not based the subjected view of the accused attorney.
The attorney had been reprimanded twice prior to this matter. (Mike Frisch)
An attorney who accepted a loan from a client has been reprimanded by the Nebraska Supreme Court. The attorney had settled a claim for the client and had held a portion in escrow per the client's instruction.
Two years later, the attorney sought the loan due to his financial circumstances. He did not comply with the formalities of the rule governing business transactions with a client and did not provide security for the loan, which was repaid with interest. However, he had previously been sanctioned by the Iowa Supreme Court for similar misconduct.
The Iowa loan had been discharged in bankruptcy. (Mike Frisch)
Thursday, July 21, 2011
The New York Appellate Division for the Second Department found some mitigation in a bar discipline matter involving neglect and conversion of entrusted funds:
In mitigation, the respondent testified that she withdrew money from her escrow account in order to make repairs and improvements on her mother's house so that her mother, whom she was caring for, could be made more comfortable. The respondent's mother, who was 85 years old at the time, suffered from Alzheimer's and Parkinson's diseases. The respondent also testified that her neglect of two matters was directly attributable to clinical depression, which at the time had gone untreated.
The respondent has no prior disciplinary history.
Notwithstanding the fact that the respondent is remorseful, and that she replaced the converted funds before any investigation began, the respondent committed serious professional misconduct when she intentionally converted client funds for personal use and neglected legal matters entrusted to her. In view of the significant mitigation advanced, we conclude that the respondent's suspension from the practice of law for a period of 2½ years is warranted.
The court's opinion is linked here. (Mike Frisch)
An Illinois Hearing Board agreed that a reprimand as jointly recommended by the parties was the appropriate sanction for a former client conflict of interest and failure to cooperate in a series of bar complaints.
The Administrator and Respondent jointly stipulate that the evidence would establish, and the Hearing Board may find, that in 2007, Respondent entered his appearance on behalf of Aaron Eggers in a dissolution of marriage case, after having previously advised Egger’s former spouse, Tina Swim, in 2002, on issues in the same case while Swim was visiting Respondent’s then secretary and spouse, Julie Wolfe. Respondent did not use any confidential information he may have learned from Swim against her during his representation of Eggers.
On October 30, 2007, Swim filed a motion to disqualify Respondent. The motion was never heard, and on July 29, 2008, Respondent voluntarily withdrew from the dissolution of marriage case, cited reasons other than the asserted conflict, including that his father was terminally ill and dying. Respondent’s actions violated Rule 1.9(a) and tended to defeat the administration of justice, in violation of Supreme Court Rule 770.
In 2008 and 2009, the Administrator was conducting four investigations into allegations involving Respondent. Respondent did not respond in any way to the Administrator’s requests for information regarding his contacts with Tina Swim, and Respondent had no good cause for failing to respond. In all four of the matters, Respondent agreed on several occasions to appear for a sworn statement, then cancelled each appearance. For some of the non-appearances, Respondent felt that he could not appear in front of the assigned Administrator’s counsel because he had sued her in federal court, an order staying discovery had been entered in the federal case, and he felt the assigned counsel had a conflict of interest in investigating Respondent. While the Administrator does not concede there was such a conflict during the investigation, the Administrator notes that once the instant hearing case was filed, Respondent cooperated by, among other things, appearing for a deposition and complying with the Administrator’s discovery requests.
The New York Appellate Division for the First Judicial Department imposed a six-month suspension of an immigration attorney who experienced practice difficulties described in the opinion:
Respondent represented immigration clients, primarily in asylum matters, conducting business from her office at 1170 Broadway in Manhattan. The majority of respondent's clients were from the French-speaking countries of West Africa, and because few of them spoke any English, she communicated with them through interpreters.
Respondent testified that her practice began to fail due to sabotage by disloyal employees who began to steer respondent's business to another immigration attorney. Ultimately, due to the fact that respondent had few new clients in 2004, she was forced to close her office in August 2005. Thereafter, she met clients in restaurants and coffee shops and used the office of another attorney, located at 292 Fifth Avenue, for the purpose of interviewing and meeting with clients.
A primary issue at the hearing concerned the steps respondent took to notify her clients about the closing of her office and how they could contact her. Respondent testified that clients with pending cases were informed in person that she would be closing her office and provided with phone numbers and the address of a nearby Fifth Avenue office she sometimes used. Respondent claimed to have apprised her clients of the office closure, but was unable at the hearing to produce the letters she allegedly sent to them informing of the closure.
Shortly thereafter, respondent moved to Teaneck, New Jersey. Respondent testified that she kept the files of the clients with pending cases accessible at her mother's Teaneck home and put the older cases into storage. However, respondent did not produce certain client files pursuant to the Committee's investigation and ultimately testified that she believed she may have accidently placed a few client files with pending matters into inaccessible storage.
The misconduct primarily involved neglect and failure to cooperate with the investigation. (Mike Frisch)
The New Jersey Supreme Court held that a defendant was denied effective assistance of counsel at sentencing in a case where a wife had killed her police officer husband.
The prosecutor had a rather creative presentation:
At sentencing, without objection from defense counsel, the prosecutor played a professionally produced seventeen-minute video set to popular and religious music consisting of a montage of approximately sixty still photographs of Jimmy’s life from childhood to adulthood, including a photograph of his tombstone, four homevideo clips of Jimmy, a television segment that covered his funeral, and three poems. The prosecutor’s remarks described defendant and Jimmy as “America’s couple”; detailed defendant’s financial motives and the calculated manner in which she shot her husband; emphasized the aggravating sentencing factors; and suggested that defendant’s character nullified any mitigating factors. Defense counsel’s short response stated the plea agreement “somewhat tied” his hands; did not mention any of the evidence supporting that defendant was a battered woman who feared for her life; did not argue against any aggravating factor or in favor of a mitigating factor; and asked the court to independently evaluate whether a thirty-year sentence was appropriate. The court found support for two aggravating factors and two mitigating factors; expressed that they were “at least in balance if not for the fact that the aggravating factors really do outweigh the mitigating factors”; and concluded that “this is the kind of a case where [defendant] certainly could have been sentenced to more had she gone to trial . . . and been found guilty.” On the judgment of conviction, the court wrote: “This was a negotiated plea agreement between the Prosecutor and the defendant. It appears fair and in the interests of justice, the Court is imposing the recommended sentence.” The court majority concluded that defense counsel provided ineffective assistance at sentencing and that the issue could be raised through post-conviction relief. (Mike Frisch)
At sentencing, without objection from defense counsel, the prosecutor played a professionally produced seventeen-minute video set to popular and religious music consisting of a montage of approximately sixty still photographs of Jimmy’s life from childhood to adulthood, including a photograph of his tombstone, four homevideo clips of Jimmy, a television segment that covered his funeral, and three poems. The prosecutor’s remarks described defendant and Jimmy as “America’s couple”; detailed defendant’s financial motives and the calculated manner in which she shot her husband; emphasized the aggravating sentencing factors; and suggested that defendant’s character nullified any mitigating factors. Defense counsel’s short response stated the plea agreement “somewhat tied” his hands; did not mention any of the evidence supporting that defendant was a battered woman who feared for her life; did not argue against any aggravating factor or in favor of a mitigating factor; and asked the court to independently evaluate whether a thirty-year sentence was appropriate. The court found support for two aggravating factors and two mitigating factors; expressed that they were “at least in balance if not for the fact that the aggravating factors really do outweigh the mitigating factors”; and concluded that “this is the kind of a case where [defendant] certainly could have been sentenced to more had she gone to trial . . . and been found guilty.” On the judgment of conviction, the court wrote: “This was a negotiated plea agreement between the Prosecutor and the defendant. It appears fair and in the interests of justice, the Court is imposing the recommended sentence.”
The court majority concluded that defense counsel provided ineffective assistance at sentencing and that the issue could be raised through post-conviction relief. (Mike Frisch)
THe New Hampshire Supreme Court has held that a $100 fine of an attorney for failing to appear was an "unsustainable exercise of [the trial court's] discretion."
The attorney could not be in two places at once and had made efforts to deal with the scheduling conflict:
In this case, [the attorney] was scheduled to appear for a pretrial conference in another court at the same time, and the outcome of that conference bore directly on the scheduling of the Wolfe case. [He] filed a motion to continue, informing the court of the conflict, conferred with opposing counsel, and indicated that he would be available to appear in court to discuss the Wolfe case on June 11. Opposing counsel promised to inform the judge of the situation. [The attorney] made timely and diligent efforts to ascertain the status of his motion to continue, and nothing in the record suggests any negligence on his part. Further, as noted by the amicus brief in this case, while scheduling conflicts are an inherent part of criminal defense practice, the filing of “motions based on contingent scheduling conflicts filed far in advance of hearing[s] [is] discouraged by most trial courts, as the burden of processing these motions would otherwise be unwieldy and conflicts oftentimes dissipate before the time of hearing.” Reversed. (Mike Frisch)
In this case, [the attorney] was scheduled to appear for a pretrial conference in another court at the same time, and the outcome of that conference bore directly on the scheduling of the Wolfe case. [He] filed a motion to continue, informing the court of the conflict, conferred with opposing counsel, and indicated that he would be available to appear in court to discuss the Wolfe case on June 11. Opposing counsel promised to inform the judge of the situation. [The attorney] made timely and diligent efforts to ascertain the status of his motion to continue, and nothing in the record suggests any negligence on his part. Further, as noted by the amicus brief in this case, while scheduling conflicts are an inherent part of criminal defense practice, the filing of “motions based on contingent scheduling conflicts filed far in advance of hearing[s] [is] discouraged by most trial courts, as the burden of processing these motions would otherwise be unwieldy and conflicts oftentimes dissipate before the time of hearing.”
Reversed. (Mike Frisch)
Wednesday, July 20, 2011
An attorney who misappropriated advanced fees was suspended for 2 1/2 years by a Michigan panel. The attorney appealed, seeking lesser discipline. The Grievance Administrator cross-appealed and sought revocation.
The Attorney Discipline Board agreed with the Administrator and imposed revocation (disbarment):
Respondent was the only witness at the hearing. His testimony included assertions that he
did not keep close track of whether funds in his trust account had been earned or not, and he
admitted - and Exhibit 1 demonstrates - that he paid Walmart, Comcast, and a host of other
personal and business expenses out of the trust account. A portion of his testimony shows that
respondent possesses, if not the integrity to act as a fiduciary, at least the common sense and
intellectual honesty to reject an overture to blame his misconduct entirely on poor bookkeeping:
RE-EXAMINATION BY MR. COTE:
Q. If you had been a better bookkeeper and if you had had
bookkeeping support staff that you had previously, this
wouldn't have happened would it?
A. . . . Bookkeeping would have helped but I think just things
outside of bookkeeping would have been better too. I mean
when you get something like this where you have to pay
somebody money back and you know you owe it from day
one, I think that I should have given it the attention it
deserves and put that right next to pictures of my family
basically is what it amounts to.
We agree. Attempts to blame misuse of client funds on poor bookkeeping practices seldom
make any sense. With respect to the handling of trust funds, "poor bookkeeping" is often actually
a refusal to assign priority to the lawyer's role as a fiduciary. The public is asked to trust lawyers
with their confidences, their liberty, and their fortunes. The public is also asked to trust lawyers as
repositories of funds. The duty to keep client and third party funds safe and separate from lawyer
funds is a fundamental one.
The board found no "compelling mitigation" that would warrant a lesser sanction.
The board reached the same result in a second case where a hearing panel had suspended the attorney for 120 days.
Fair warning from member Kienbaum's concurring opinion in the first case:
On the same day we heard this Respondent's case, another case...was before us. In that case, the Grievance Administrator asked for an increase of the 120 day suspension imposed on that Respondent - but he did not seek disbarment, only a one year suspension. The facts were almost identical - certainly there were no material distinctions - and we were compelled there to increase the penalty to revocation, just as we did in this case. We have not done so lightly in either case, and can only hope that the message this Board sent to the profession in Grievance Administrator v Petz...is again heard clearly.
Both attorneys had practiced for over 30 years without a disciplinary blemish. (Mike Frisch)
A former criminal prosecutor has been charged with ethical violations alleging misconduct with an underage victim/witness and her friend. He was the State's Attorney for Rock Island County.
The Illinois Administrator's complaint states that the attorney prosecuted and convicted a high school teacher charged with having sex with a student. The specifics:
Between May 10, 2010, and October 2010, Respondent exchanged numerous phone calls and text messages with JW [the victim] and BY [her friend]. Some of the calls and text messages related to requests by JW and BY that Respondent supply them with alcohol.
In some of the text messages sent by Respondent, he made false representations to JW and BY, including falsely claiming that he was divorced and that he had a girlfriend he was dating regularly. At the time Respondent was exchanging calls and text messages with JW and BY, he was married and had one child.
In or around late June or early July, 2010, Respondent spoke to JW by telephone and JW invited Respondent to attend a party at BY’s home, while BY’s parents were out of town. Respondent drove to the party around midnight where he spoke to JW.
Between July 1, 2010 and August 15, 2010, Respondent provided alcohol to JW and BY on at least five occasions. On each occasion, Respondent and JW or BY exchanged text messages or phone calls and then met in a parking lot or a park in the East Moline area where Respondent provided the girls with alcohol (usually Mike’s Hard Lemonade or Smirnoff Twist). Respondent knew that JW was 16 years old at the time and BY was 19 years old and that neither was old enough to lawfully consume alcohol.
During the week of July 12, 2010, Respondent was scheduled to attend a continuing legal education seminar for prosecutors at the University of Illinois in Champaign.
On Wednesday, July 14, 2010, Respondent drove JW and BY to Champaign. JW and BY stayed in Respondent’s hotel room with Respondent on Wednesday night, July 14, and Thursday night, July 15, 2010. Respondent did not advise either of the girls’ parents about the trip. He provided both minors with alcohol on the trip, during which he also accompanied them to a bar in Champaign.
Respondent provided JW and BY with alcohol on other occasions after July 16, 2010, including supplying JW with alcohol at Mitchell Park in East Moline, Illinois, on August 15, 2010. A copy of some of the text messages sent between Respondent [JT] and JW prior to the meeting in Mitchell Park on August 15, 2010 are attached as Exhibit 1.
On or about August 20, 2010, Respondent learned that the Illinois State Police were investigating his conduct with respect to JW and BY. He did not provide either JW or BY with alcohol after August 20, 2010.
On April 26, 2011, the Illinois Attorney General’s Office filed a criminal complaint against Respondent in the Circuit Court of Rock Island County, charging him with one count of Unlawful Delivery Of Alcoholic Liquor To A Person Under The Age of 21, a Class A misdemeanor, in violation of ILCS ch. 235, sec. 5/6-16(a)(iii)...
On April 26, 2011, Respondent pled guilty to the charge alleged in the complaint and he was sentenced to two years of probation with conditions, including the payment of court costs and a $2,500 fine. The Court also ordered that Respondent forfeit any future pension from the Illinois Municipal Retirement Fund, and ordered that he not seek public office at any time in the future.
The complaint further alleges that he lied to investigators about the events.
River Cities' Reader reports on his resignation from office.
The Florida Judicial Ethics Advisory Committee has issued an opinion concerning the propriety of a judge's spouse hosting a campaign event in their home:
ISSUE: Whether a judge’s spouse hosting a campaign event for a candidate at the home of the judge and spouse poses any potential ethical violations for the judge.
ANSWER: Yes. The judge may not attend the event, and the judge should adamantly and genuinely encourage the spouse to host the event elsewhere to avoid the appearance of impropriety on the part of the judge.
The inquiring judge’s spouse is an elected official in a municipality located within the jurisdiction in which the inquiring judge serves. A candidate has requested the inquiring judge’s spouse to host a campaign event at the home of the inquiring judge and spouse.
The committee recognized that the spouse could do what spouses can do, but
We expect that the inquiring judge’s spouse would abide by the inquiring judge’s request to host the event elsewhere. However, we also recognize that the spouse is free to reject that request. Thus, the inquiring judge should seek to avoid the appearance of impropriety by adamantly and genuinely encouraging the spouse to host the event elsewhere.
One member of the committee believes that the inquiring judge should not permit the inquiring judge’s home to be used for a campaign gathering on behalf of a political candidate who is not a member of the household. This member assumes that most married judges are in marriages in which spouses would not schedule campaign events in the marital home without clearing it with the other spouse. This member believes that this assumption accords with reality, not to mention public perception.
The Minnesota Supreme Court has imposed a suspension of not less than 90 days on an attorney who possessed cocaine in a courthouse while in trial in a criminal case. The attorney was convicted of possession. The StarTribune reports that he was sentenced to two days in jail and community service.
The attorney advised his clients, arranged for new counsel and entered treatment after his January 2009 arrest. He relapsed in February 2010 bur self-reported the slip. He is now back in treatment and maintaining sobriety.
The attorney is subject to conditions on reinstatement that include compliance with his criminal probation. He also must take and pass the professional responsibility portion of the state bar examination.
The court accepted the joint sanction recommendation of the Office of Lawyer Regulation and the attorney.
Justice Alan Page dissented and would impose a greater penalty. He notes that the attorney was representing a client in extremely serious matters, including first degree murder, at the time.
The Winona Post has some details. (Mike Frisch)
The Washington Examiner reports the suspension of a Maryland attorney:
Maryland's highest court has suspended the law license of a major ally of Montgomery County Executive Ike Leggett, causing some critics to question whether the executive appointee and former County Council member should hold a nearly $200,000 position to "coordinate communication" among law enforcement agencies.
In an opinion released Tuesday, the Maryland Court of Appeals suspended the law license of Michael Subin, the director of the county's Criminal Justice Coordinating Commission, for 90 days -- effective Aug. 1 -- after he took thousands of dollars from a trust account reserved for his legal clients.
The court's order (which provides no details) is linked here.
A recent decision of the Maryland Court of Appeals:
An indefinite suspension with the right to reapply for admission after sixty days is the appropriate sanction where the hearing judge made no findings, by clear and convincing evidence, that the attorney’s misappropriation of client fees was either intentional or knowing. But, under the
circumstances the hearing judge found by clear and convincing evidence that the attorney
placed unearned fees into his operating account before completion of the work to be
performed, failed to represent his client diligently, failed to keep proper Attorney Trust
Account records, but, did not knowingly or intentionally mislead Bar Counsel or his
investigator in failing to produce records, in a timely manner.
In money cases, intent is everything when it comes to sanction. (Mike Frisch)
From the web page of the Virginia State Bar:
Kathryn R. Montgomery has been promoted to deputy bar counsel for the Virginia State Bar. She will assist Bar Counsel Edward L. Davis in overseeing professional regulation of Virginia’s 45,000 lawyers, and she will continue to prosecute ethics cases.
Montgomery has been an assistant bar counsel for the VSB since 2003. She is a native of Danville and holds bachelor’s and law degrees from the University of Virginia. She practiced in Arizona, then returned to Virginia, where she had a litigation practice with McGuireWoods LLP in Richmond for five years.
She succeeds Harry M. Hirsch in the deputy counsel position. Hirsch retired in June after 27 years with the agency.
I worked with Harry on a number of matters involving attorneys admitted in both Virginia and D.C. as well as in the National Organization of Bar Counsel. A wonderful fellow.
Best wishes for a long and happy life after Bar Counsel. (Mike Frisch)
The South Carolina Advisory Committee on Standards of Judicial Conduct opines that a judge may not write a letter congratulating his church for hosting a conference.
A family court judge is a member of a church, which holds a conference every four years. A souvenir journal is generated as a part of the conference. Individuals and businesses place ads in the journal. A member of the journal committee has asked the judge to write a letter for the journal. In the past, letters have been written by the mayor and other city officials. In the letters, the writer congratulates the church for hosting the conference and welcomes the conference attendees. The judge wants to know if it is appropriate to write a letter and if so, can it be on the judge’s letterhead.
The Committee has not addressed the exact question presented. However, the Committee has considered whether a judge could write letters to the congregation to pray for the church and its stewardship mission (Op. No. 16-1995). The Committee determined that such activity was too closely related to solicitation of funds and uses the prestige of judicial office to solicit funds, and thus, concluded that the judge could not write such letters. Similarly, in 26-2000, the Committee found that a judge should not participate in a church video that encouraged parishioners to become active in the church and its fund-raising activities. Here, there is no indication that the judge’s letter will in any way solicit funds, and thus Op. Nos. 16-1995 and 26-2000 do not apply.
However, a judge must not use the prestige of office to advance the private interest of others. The inclusion of the judge’s letter could possibly be used as an incentive to get individuals or businesses to place ads in the journal. If the judge’s involvement is to be used as an enticement to others to buy ads, then it would appear that the judge is lending the prestige of office to the church in violation of Canon 2, and would not be permitted. Thus, the judge should not write a letter for the conference’s souvenir brochure.
Tuesday, July 19, 2011
The (very busy lately) Illinois Administrator has filed a complaint alleging ethical violations as a result of a bribery conviction.
The alleged facts:
Starting on June 7, 1998, Respondent was employed as Assistant Chief Counsel by the Office of Chief Counsel, which was a department of the Office of Principal Legal Advisor, within the United States Immigration and Customs Enforcement ("ICE"). As Assistant Chief Counsel, Respondent was responsible for arguing on behalf of the government in civil administrative deportation removal hearings and provided legal advice to the other components of ICE.
Between October, 2004 and June, 2008, Respondent and Maria Gabriela Kallas, his wife, utilized a recruiter, who sought out undocumented aliens and legal permanent residents and told the prospective clients that Respondent was a high-level immigration official who could help them obtain work authorization permits and permanent residency status for a fee. After the recruiter collected the required fee and documents, the recruiter delivered the fee and documents to Respondent and Respondent's wife. Respondent and his wife utilized two shell corporations to submit false information to the United States Custom and Immigration Service and the United States Department of Labor claiming that at least 45 undocumented aliens were being hired to occupy skilled labor positions in one the shell companies. Respondent also filed false documents for at least two permanent residents.
Respondent and his wife charged each alien between $10,000 and $20,000 for submitting the false documentation. Respondent and his wife collected amounts totaling at least $950,000 through their immigration scheme.
According to the complaint, the attorney was tried and convicted by a jury.
The Los Angeles Times had this coverage of the criminal case.(Mike Frisch)
The New Jersey Supreme Court has followed the recommendation of its Disciplinary Review Board and imposed a censure of an attorney who had failed to appear for two court proceedings.
Nothing remarkable about the DRB recommendation and the court's sanction other than the attorney's prior record of bar discipline.
He was suspended for three months in 1999 for twice misrepresenting his failure to appear in criminal matters. The DRB quotes that case: the attorney was "brazen enough to lie to the same judge who had recently given him a stern warning that his misconduct would not be tolerated."
The attorney has also been admonished twice, in 2001 for recordkeeping violations and in 2004 for marijuana possession.
Here, he will be supervised for two years. (Mike Frisch)
A Louisiana Hearing Committee has recommended a stayed six-month suspension of an attorney for misconduct in settlement negotiations with the state Patient's Compensation Fund. The attorney for the fund filed the bar complaint.
The client died while the negotiations were ongoing. The attorney continued to attempt to achieve a settlement that included future medical bills.
The proof that the attorney knew of the client's death?
He attended the wake. (Mike Frisch)