August 13, 2011
Gambling Away Law License
A Massachusetts attorney has been indefinitely suspended for misconduct described in this summary.
The violations include:
From 1985 to 2003, the respondent engaged in illegal gambling by placing bets with a bookmaker. In return, the respondent provided legal services to the bookmaker and his family.
In early January 2001, the respondent borrowed $30,000 from the bookmaker. As
part of his repayment of this debt, between January 2001 and January 2002, the respondent
permitted the bookmaker to operate an illegal gambling operation from the basement of the
respondent’s home. For approximately three weeks during this period, the respondent
assisted in the gambling operation by answering the telephone installed in his basement.
In a second matter, the respondent was friends with an owner of an out-of-state
electric company who suggested that the respondent could earn money to repay the
bookmaker by helping the friend receive cash over $10,000 without triggering a report from
the friend’s bank pursuant to 31 C.F.R. §103.22(b)(1). The respondent and the friend
devised a scheme whereby the friend wrote checks to an entity created by the respondent
called “Suffolk Lighting,” which the respondent then deposited to a “Suffolk Lighting” bank
account. The friend agreed to pay the respondent 10% of the cash withdrawn.
On some occasions, the respondent intentionally made a series of cash withdrawals
under $10,000 to avoid triggering a bank report and turned the cash to the friend. This
“structuring” violated 26 U.S.C. §6050I. On other occasions, he wrote checks to an account
established by his friend. Between 2001 and 2004, the respondent delivered $700,000 to
$800,000 in cash to the friend.
Jailing En Masse For Contempt Violated Due Process
Immediately after the conclusion a hearing on a motion to reduce sentence, a judge held 32 spectators in criminal contempt and sent them to jail. The contempt was imposed on all who were sitting in the east gallery of the courtroom.
The New Mexico Supreme Court held that the judge had violated the due process rights of the jailed spectators:
Respondent’s warnings of what he expected of the spectators lacked the clarity required
either by our caselaw or by the need to achieve courtroom control without resorting to contempt
sanctions. The hearing had recessed when Respondent countermanded the bailiff’s instruction
for the spectators to stand and told them to be seated. Respondent never told the spectators that
they could not speak. He certainly never effectively communicated to any of the spectators,
collectively or individually, that standing or speaking would result in contempt citations or jail.
His single reference to the possibility of contempt sanctions before ordering an entire group of
spectators to jail was when he yelled, “That’s enough—I’ll hold every one of you in contempt
and jail you all!” If he had simply stated that anyone who did not sit down or anyone who
continued talking would be jailed for contempt, he probably would have achieved the control
that he did just seconds later when he yelled, “You’ll all go? Okay, take them all. Go on, all
of you, go on to jail!” And if he had made reasonable efforts to identify the person or persons
who stated their willingness to go to jail, he could have avoided sweeping up the innocent with
The court concluded that the judge had abused his judicial power and order immediate relief:
Given the extraordinary request for immediate judicial relief presented to us in this case
by thirty-two people jailed indefinitely without any semblance of due process, for this Court to
have remained idle, waiting for routine appellate processes to have worked their course, would
have seriously compounded the ongoing grave injustice being committed by a court subject to
our superintending control. We therefore granted the requested emergency relief.
The Taos News reports that the judge has resigned. (Mike Frisch)
August 12, 2011
No Appeal For Dissatisfied Complainant
The New Jersey Appellate Division has affirmed the dismissal of an action brought against a district ethics committee.
The plaintiff was unhappy because his bar complaint had been dismissed pursuant to established procedures as failing to state a claim of an ethical violation. He had his wife were involved in a dispute with an electrician over a bill. He complained about the conduct of the electrician's attorney.
That plaintiff is dissatisfied with the procedure
established by the disciplinary rules and the Committee's
decision, or has suggestions for what he considers to be
improvements to the process, does not translate into a
cognizable claim in the court system. As the Committee followed
the applicable rule pertaining to the processing of ethics
complaints, plaintiff received all due process to which he was
entitled under law. As Judge Feinberg noted, there was a
process, an opportunity for participation by plaintiff, and a
result; plaintiff simply disagrees with that result. Plaintiff
presented his grievance, supplemented by a brief by his
attorney, which was reviewed and declined twice by the
Committee's Secretary after conferring with the public member in
accordance with R. 1:20-3(e)(3) & (5). Accordingly, pursuant to
Rule l:20-3(e)(6), the Committee's decision is final and
plaintiff has no judicial recourse.
The opinion provides a useful history of the New Jersey disciplinary intake and review process. (MIke Frisch)
No Third Party Liability For Health Care Providers
The New York Appellate Division for the Second Judicial Department has held that claims that sound in medical malpractice should have been dismissed where the plaintiff did not have a doctor-patient relationship with the defendants.
The patient, who was in outpatient treatment, had murdered the spouse of the plaintiff:
...we conclude that the extension of a physician's duty of care beyond a narrow class of potential defendants, such as immediate family members, cannot be supported under any analysis of duty. Clearly, medical professionals should not be singled out to be subjected to liability to a limitless class of potential defendants. In addition, we cannot justify such an extension of duty based solely upon moral or even ethical considerations. As indicated, "[w]hile moral and logical judgments are significant components of the [duty] analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that " the legal consequences of wrongs [are limited] to a controllable degree' "...Therefore, regardless of any sense of outrage which is evoked by the heinous actions of Evan Marshall, society's interest is not best served by concluding that a doctor who treats a patient, within the context of mental health, undertakes a duty to the public at large.
Indeed, it seems certain that such a greater risk of liability would negatively impact the medical treatment of mental health patients. At worst, mental healthcare providers may be reluctant to even undertake treatment of those who are most in need of their services. At the very least, the extension of possible liability would encourage such health care providers to opt in favor of what may be unnecessary confinement for such patients, and concomitantly, decrease the ability of such patients to ultimately successfully integrate into society.
August 11, 2011
Judge Suspended For Advocating Vigilante Justice
A justice court judge has been reprimanded and suspended for 270 days without pay for his conduct in actively participating in the indictment and arrest of a person ("A.B.") charged with a crime in which the victim was a relative of the judge.
The judge criticized the sheriff's office and interfered with the defendant's attempts to secure counsel.
On or about the 13th day of April, 2009, Respondent appeared at the public
hearing for acceptance of A.B.’s misdemeanor guilty plea and sentencing in
the Circuit Court of Alcorn County, Mississippi. The presiding Circuit Judge
allowed the Respondent to address the Court and the following was stated by
Respondent on the record and in open court:
I could assure you that if anything like this ever happened to
anybody that I know, my advice to them would be do not use the
court, handle it themselves.
I would like for everyone in this court to know that had I had
this to do over again we would never had went to a grand jury,
that we would have taken care of this down at Biggersville,
Mississippi, down on the farm like things should have been
taken care of.
A dissenting justice would impose the 120 day suspension proposed by the Commission on Judicial Performance.
The judge is not an attorney. (Mike Frisch)
Suspended, Disbarred, Disbarred
An attorney who had been suspended for two years in Massachusetts was disbarred as reciprocal discipline in the District of Columbia. The New York First Department agreed with D.C. and today also imposed disbarment as reciprocal discipline.
The New York court set forth the facts:
Respondent's misconduct is predicated upon acts that occurred in connection with respondent's position at NetFax Incorporated (NetFax), a Delaware corporation which he and others founded in 1995 to develop and exploit technology for the transmission of faxes through the internet. As of August 1996, respondent was NetFax's chief executive officer and sole director. In 1996, respondent opened a checking account at US Trust in NetFax's name, on which account he was the sole signatory and for which the bank statements were sent to his home. While respondent provided NetFax with some legal services, including ensuring compliance with federal and state securities law, he did not bill NetFax for such services and was not specifically compensated for those services.
In April 1996, the Maine Supreme Judicial Court affirmed an order foreclosing on property that respondent and his wife owned in Maine. Respondent believed that the property could be redeemed for $130,000. In July 1996, he withdrew $130,000 from NetFax's US Trust account by issuing a check payable to the bank, which he used to purchase a bank check with which he paid his mortgage company and its counsel. The mortgage company accepted the funds, but deemed them insufficient and refused to discharge the mortgage. Respondent did not obtain NetFax's consent before withdrawing the funds or inform NetFax that he would be doing so.
In December 1996, in anticipation of an outside audit of NetFax's accounts, respondent borrowed $130,000 from a NetFax investor, Victor Lombardi. He secured this loan based upon his false representation that the money would be used to pay off the mortgage on respondent's Maine property. Respondent did not inform Lombardi that he had already used NetFax's funds for such purpose and intended to use the loan to repay NetFax.
In June 1997, respondent prepared a "reconciliation report" for NetFax's auditors wherein he falsely represented that his $130,000 withdrawal was a payment to Acorn Computers, Inc. (Acorn). In a separate "schedule of deposits," respondent falsely identified the December 1996 deposit as a "[r]eturn of deposit" from Acorn. Respondent knowingly made these misrepresentations to cover up his use of funds. Lombardi later learned of respondent's misconduct. In July 1998, he filed a complaint against respondent with the Massachusetts Bar Counsel.
The court here considered the attorney's failure to advise New York of the Massachusetts and District of Columbia sanctions as a reason (along with the underlying misconduct) to impose disbarment. D.C. picked the case up through the ABA National Regulatory Data Bank.
The Data Bank was created when I was still at the D.C. Bar Counsel. I spent the next several years processing reams of unreported sanctions that we discovered as a result. (Mike Frisch)
No Million Dollar Judgment
The New York Appellate Division for the First Judicial Department has accepted the resignation of an attorney who admitted the following misconduct:
...he acknowledges that he falsely advised a former client that a $1.25 million medical malpractice judgment had been entered in her favor and gave her an IOLA check in the amount of $858,390, which allegedly represented her share of the award and which was returned for insufficient funds when, in fact, the action had been stayed nearly four years earlier after the defendant hospital filed for bankruptcy protection and no award or funds were ever paid to respondent in relation to the action. Respondent expresses his regret and apologizes for his conduct.
What could this (now former) attorney have been thinking? (Mike Frisch)
The South Carolina Advisory Committee on Standards of Judicial Conduct opines that a judge need not be recused from a matter in which her law clerk's uncle represents the State. The law clerk may only participate in such matters with the consent of all parties:
A circuit court judge need not automatically disqualify himself or herself from a proceeding in which the solicitor appears where the solicitor’s nephew is the judge’s law clerk; the judge can prevent the law clerk from working on this cases, which eliminates any potential conflict, or the judge can allow the law clerk to participate and disclose for the record the law clerk’s relationship with the solicitor and disqualify himself or herself if any party objects.
Letter Of Caution Does Not Require Recusal
The New Hampshire Supreme Court had held that a trial judge was not obligated to recuse himself from a contentious domestic matter.
The unhappy litigant had filed a complaint with judicial authorities about the judge that had resulted in a letter of caution:
Even were we to find that the [Judicial Conduct Committee] had the authority to issue a letter of
caution, we do not find that the letter required recusal. While the letter may
have expressed concern over the tone used by Judge Lynn, the letter expressed
no concerns as to his partiality. Because judicial remarks that are “critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge,” Bader, 148 N.H. at 271
(quotation omitted), we do not find that the letter of caution, without more than
a concern over the judge’s tone, would cause an objective, disinterested
observer, fully informed of the facts, to entertain significant doubt that justice
would be done in the case.
The court also rejected the claim that the judge had engaged in ex parte communications that required recusal. (Mike Frisch)
D.C. Court Approves Consent Disposition
A hopeful sign from the District of Columbia Court of Appeals in a case decided this morning. The court approved a consent disposition in a matter involving 162 instances of double-billing on vouchers in criminal justice act appointments.
Although the case has a rather tortured history, the court now concludes that the consented-to sanction falls within the range of discipline imposed in comparable cases. The court imposed an 18 month suspension, with six months stayed and one year of probation.
The court had rejected a lesser proposed sanction in 2009. The court's earlier order of remand to the Board on Professional Responsibility and the board's response may be found here. You need to search by the name of the attorney.
As in all disciplinary matters, all's well that ends.
The decision can be found at this link. (Mike Frisch)
August 10, 2011
Misuse Of Credit Report Service Draws Admonition
The summary of a recent admonition imposed in Massachusetts:
The respondent's practice includes collections litigation and domestic relations
cases. In connection with his collections work, the respondent established a subscription
for his firm with a credit reporting service. The respondent agreed when he set up the
subscription to use it only for permissible purposes and otherwise in strict compliance
with the Fair Credit Reporting Act, 15 USC § 1681 et seq. (FCRA).
During 2009, the respondent represented a client in a contempt action by the
client's former wife for nonpayment of child support and in a modification brought for
the client to reduce the client's support obligation. The ex-wife had provided a number
of addresses during the proceedings. The chent suspected that one of his children for
whom he was providing child support did not actually live with the ex-wife.
The respondent wanted to verify the ex-wife's current address. To do so, in June
2009, he used the credit reporting subscription to obtain an on-line collection report on
the ex-wife. The report provided address information as well as, among other things,
credit accounts, account numbers and account status. Address verification is not a
permissible purpose for obtaining such a report under § 1681b ofthe FCRA, and the
respondent had no entitlement to credit information on the ex-wife. In addition, the
respondent had requested and obtained the report in circumstances where it was illegal
for the credit agency to furnish the information under the FCRA and G.L. c. 93, § 51.
The respondent did not print the collection report and did not use information
from the report in the probate court proceedings. The ex-wife subsequently learned of
the respondent's inquiry when she obtained a copy of her own credit report.
The attorney is not identified by name. He must take a CLE course. (Mike Frisch)
No Grave Injustice
The Arizona Presiding Disciplinary Judge has imposed a reprimand and probation as reciprocal discipline for the following Indiana misconduct:
Respondent stipulated that in Indiana he held himself out to the public and or represented that he was licensed to practice law in Indiana and used public communication containing false, fraudulent, misleading, deceptive, self laudatory or unfair statement or claim which also implied that he was a lawyer certified or recognized as a specialist. Those statements or claims, specifically that Respondent’s firm was a national firm and specialized in automobile accidents, may have caused a person to misunderstand or be deceived.
Respondent’s negligent misconduct cause actual and potential injury to clients, the legal system and as a professional and constituted grounds for the imposition of discipline pursuant to the Rules of the Supreme Court of Arizona...
Both sides had contended that identical discipline to that imposed in Indiana would be a "grave injustice." (Mike Frisch)
A senior judge who provides mediation services may permit a photograph and biography to be used in advertisements, according to a recent opinion of the Florida Judicial Ethics Advisory Committee:
...the Florida Supreme Court has expressly authorized senior judges to be affiliated with entities such as the aforementioned mediation group. We believe that implicit in such authorization is that senior judges may permit such an entity to disclose the name (and image and biographical information) of such senior judge in its advertising and on its website. However, a senior judge may not permit the mediation services entity, when referencing the senior judge, to 1) use the title "judge;" 2) disclose the judge's senior judge status; or 3) use a photograph of the senior judge in a judicial robe. To do so would lend the prestige of the judicial office to advance the private interests of the mediation services entity. See Canon 2B.
The opinion further states that the senior judge may not solicit business or participate in promotional activities. (Mike Frisch)
August 9, 2011
Teed Off In Crete
Disciplinary charges from the Illinois Administrator set forth the following alleged facts:
On or about October 2, 2009, Barry Weiss ("Weiss"), Jeremy Holland ("Holland"), Brendan Donovan ("Donovan") and Raymond Baron ("Baron"), four employees of Northern Indiana Public Service Company, were engaged in a game of golf at Lincoln Oaks Golf Course in Crete, Illinois. At the seventh hole, Baron teed off, but his golf ball went wide and struck Respondent’s residence which adjoined the golf course.
When Baron retrieved his errant golf ball from Respondent’s yard, Respondent came out of his home and approached the foursome. Respondent then punched Weiss on the left side of his face and kicked him, resulting in facial injuries to Weiss and a broken set of eye-glasses...
The complaint alleges that the attorney was charged with and convicted of battery. The sentence included an evaluation for anger management. (Mike Frisch)
Gift Box OK
An ethics opinion from the Connecticut Statewide Grievance Committee finds that the following approach is permissible:
The proposed advertisement is a card advertising the requesting attorney's services and offering a free one hour consultation. The card will be part of a gift box distributed at a business event hosted by a women's networking group. The reviewing committee concluded that the advertisement complies with the Rules of Professional Conduct. The advertisement provides the following information: the name of the attorney and her photograph, a listing of the attorney's areas of practice and her education, the attorney's phone number and email address, and an offer for a complimentary one hour consultation. The submitting attorney indicates the proposed advertisement will be enclosed in a gift box containing other products offered by members of the networking group, who paid $25 to be included in the box. (Mike Frisch)
The proposed advertisement is a card advertising the requesting attorney's services and offering a free one hour consultation. The card will be part of a gift box distributed at a business event hosted by a women's networking group. The reviewing committee concluded that the advertisement complies with the Rules of Professional Conduct.
The advertisement provides the following information: the name of the attorney and her photograph, a listing of the attorney's areas of practice and her education, the attorney's phone number and email address, and an offer for a complimentary one hour consultation. The submitting attorney indicates the proposed advertisement will be enclosed in a gift box containing other products offered by members of the networking group, who paid $25 to be included in the box.
A municipal court judge was suspended for 30 days and reprimanded by the South Carolina Supreme Court.
The judge's sister was a town clerk. The sister embezzled funds over a eight-year period by issuing checks in the judge's name and forging her signature. The judge was not aware of or involved in these crimes.
The sister also issued a series of checks payable to the judge from the police department victim's assistance fund. The police chief approved the checks for the judge's extra work. The judge believed that the checks were legitimate salary supplements. At the time, the judge was paid $100 per month for her part-time duties.
The judge received 43 checks over a four-year period in amounts that totaled $4,890. She was "unaware it would be improper for her to receive supplemental payments from the police department that prosecuted cases in front of her."
There was no allegation that the payments had affected her rulings. (Mike Frisch)
August 8, 2011
Tasered And Reproved
The California State Bar Court approved the imposition of the "moderate discipline" of public reproval for intoxicated behavior that led to disorderly conduct, public intoxication and disturbing the peace convictions:
[He] became highly inebriated while attending a Celtic festival at the Sonora County Fairgrounds (Festival)...Other attendees reported to Festival security that [he] was being obnoxious and bumping into people while dancing. When Festival security guards approached him, he was verbally aggressive and repeatedly yelled, "Am I being detained?" [He] confronted the Festival head of security so closely that he spit in her face while yelling at her, and she asked him to leave.
After [he] refused to leave the Festival, the Sonora Police were called to intervene. [He] was so aggressive toward the police officers that they shot him twice with a Taser gun and arrested him. His blood alcohol level registered .19% when he was booked at the police station.
The attorney was admitted in 1992 and had no record of prior discipline. He had contended that his conduct involved "generalized obnoxiousness" that did not warrant discipline. (Mike Frisch)
The Value Of Continuing Legal Education
The South Carolina Supreme Court has publicly reprimanded an attorney on these facts:
From December 2003 through early September 2004, respondent conducted numerous closings involving Johnny Hoy. On more than twelve occasions Hoy purchased a parcel of land and, in a back-to-back transaction, sold the parcel and a mobile home on it to another purchaser. In these back-to-back transactions, Hoy financed his purchase of the parcel with the proceeds of his sale of the parcel and mobile home. The individuals who purchased the properties from Hoy secured financing though Branch Banking & Trust (BB&T).
Respondent's contact at BB&T was loan officer Robert Byron Green. Respondent used the instructions Green provided for completing the HUD-1 settlement statements. The settlement statements respondent submitted to BB&T failed to reflect that Hoy used the proceeds he received from his sale of each parcel and mobile home to fund his purchase of the parcel. Additionally, the settlement statements for Hoy's sale of the properties indicated the purchasers made substantial down payments to Hoy outside of closing. Respondent notes that Green advised him that BB&T would not review the HUD-1 settlement statements prior to closing and that BB&T was aware of the back-to-back transactions.
In June 2004, respondent had his office staff attend a South Carolina Bar seminar where they learned they should be on the lookout for closings like the Hoy back-to-back closings. On July 20, 2004, the Court issued In the Matter of Barbare, 360 S.C. 560, 602 S.E.2d 382 (2004), which addressed the importance of ensuring that HUD-1 statements submitted to lenders accurately reflect the transactions of the buyer, seller, and lender. After learning of the Barbare decision, respondent immediately changed all closings involving Hoy and began requiring Hoy to bring certified funds to the closings where he was purchasing properties. In early September 2004, Hoy stopped using respondent's services.
Hoy, Green, and several others were indicted by a federal grand jury for one count of conspiracy to commit bank fraud and thirty-nine counts of making (and aiding and abetting each other in making) false statements to BB&T, a federally insured financial institution. The superseding indictment explained that Hoy, Green and the other defendants conspired with each other to deceive BB&T as to the credit-worthiness of certain mortgage loan applicants. Some of the properties on which respondent had conducted the back-to-back closings were identified in the superseding indictment.
And many complain that CLE is a waste of time. Here, it likely prevented the attorney's indictment. (Mike Frisch)
No Trip To the Dentist
A South Carolina attorney agreed to a public reprimand for the following conduct:
Respondent submitted seven affidavits to the family court on behalf of a client at a temporary hearing and provided opposing counsel with copies of the documents. Respondent had notarized each statement, indicating the affiants had personally appeared before him. However, he had not personally witnessed any of the affiants sign or affirm the statements.
Respondent explains he asked his client to provide the names of possible witnesses on contested issues and his client responded by delivering numerous signed statements to respondent. None of the statements were notarized and respondent submits he believed he could notarize each statement if he verified its content as well as the authenticity of the signature with the witness. Further, respondent submits he believed it would be proper for him to do this over the telephone. Respondent maintains he spoke by telephone with the individual affiants for six of the seven statements, however, two of these individuals do not recall speaking with respondent about their statements.
The seventh statement, purportedly of the dentist who treated the couple's children, presented the client as an active participant in the children's dental care and appointments. Regarding this statement, respondent maintains he spoke with the dentist's assistant by telephone and she confirmed the dentist had signed the statement.
A few days after the temporary hearing, however, opposing counsel informed respondent that the dentist had not signed the statement. When respondent explained his notarization process, opposing counsel advised him that the procedure was improper. Respondent immediately researched the matter and confirmed the procedure he used was improper. In a letter confirming the conversation with respondent, opposing counsel noted respondent's genuine surprise upon learning of the impropriety of the procedure he had used as well as respondent's reputation for honesty among the local bar.
In a letter to the family court, respondent withdrew the affidavits he submitted at the temporary hearing, explained the procedure he had used for notarizing the documents, and provided an affidavit that opposing counsel had secured from the dentist. In this affidavit, the dentist denied previously signing any affidavit in the case and stated he did not know or recall whether respondent's client had been present during his children's dental appointments. It has since been discovered that the dentist's assistant signed the statement originally attributed to the dentist. The dentist's assistant does not recall speaking with respondent about the statement.
The attorney must read the South Carolina notary public manual and attend ethics school. (Mike Frisch)
Bounced Check Leads To Resignation
An attorney who had misappropriated settlement proceeds resigned from the Bar. The resignation was accepted by the New York Appellate Division for the First Judicial Department:
...[the attorney] acknowledges that during the course of her representation of a client, she deposited settlement proceeds in the amount of $22,000 into her attorney escrow account and, after withdrawing disbursements and her legal fee, and paying outstanding medical liens, she withdrew the net proceeds of $7,999.61, due to her client, for her own personal use. Thereafter, respondent deposited personal funds into her escrow account to replace the converted funds and disbursed the funds to her client that she was entitled to receive. Respondent has consulted with counsel and has determined that her resignation as an attorney is appropriate at this time.
The Committee learned of this matter upon receipt of a bounced check notification from the Lawyer's Fund for Client Protection. The Committee reports that there are no outstanding complaints against respondent from clients as a result of the misconduct for which she is resigning. The client at issue never complained to the Committee, presumably because she was unaware that her funds had been misappropriated by respondent and then replaced.