Friday, August 19, 2011

Split Sanction For Advanced Fee Misuse

The full Massachusetts Supreme Judicial Court has issued an opinion discussing the appropriate sanction for negligent misappropriation of advanced fees:

Sanctions in cases involving the misuse of retainers advanced for attorney's fee and expenses have depended on the totality of the circumstances at issue including the presence of other misconduct and, of importance, whether the misuse was found to be intentional or the product of negligence. In Matter of Garabedian, 415 Mass. 77, 84, 86 (1993), the respondent was suspended for three months for multiple acts of misconduct, including a "brief misappropriation" of a client's funds. In Matter of Hopwood, 24 Mass. Att'y Discipline Rep. 354 (2008), the respondent was suspended for one year for intentionally misusing a retainer, failing to refund the unearned part of the retainer, and failing to cooperate with bar counsel. Similarly, in Matter of Okai, 11 Mass. Att'y Discipline Rep. 187 (1995), the respondent was suspended for one year for (among other things) neglect, misrepresentations, commingling, spending unearned attorney fees advanced by his client, failing to return the unearned portion of the advanced fees, and failing to cooperate with bar counsel's investigation. In imposing the sanction, the board found the most serious matter to be the respondent's contumacious behavior in his own divorce case. With respect to the misuse of advanced legal fees, the board cited Matter of Garabedian, supra, and noted that such conduct standing alone would merit private discipline. In Matter of Morgan, 17 Mass. Att'y Discipline Rep. 437 (2001), the respondent received a one-year and one-day suspension for multiple failures to return the unearned portion of retainers, the failure to turn over client files, neglect, the failure to communicate with clients, an admission to criminal behavior (operating while under the influence of alcohol), and the failure to cooperate with bar counsel.

The respondent's conduct in the present case is marked by repeated instances of negligence in failing to observe the required formalities of proper accounting for and separating lawyer and client funds. Notably, the hearing committee found that the respondent withdrew $9,950 out of $10,000 the client had advanced for legal fees despite the fact that (as reconstructed during the hearing process) it was apparent that he had earned no more than $4,820 of it, and had failed to account for an additional $2,000 payment Barbuto made toward legal fees. Another troubling aspect is the respondent's handling of monies he sought and received for expenses. While the respondent intimated that he had incurred "expert consulting witness costs for the attorneys we have used for our side of the case" and received $7,350 to cover those costs, he never incurred them, and could not fully account for his use of the funds.

After comparing the respondent's conduct to the cases noted above, and taking into consideration the period of time during which the principal violations occurred (1997-2004), we conclude that the discipline recommended by the board is not markedly disparate, and is sufficient to protect the public and maintain confidence in the integrity of the bar. A judgment shall enter suspending the respondent from the practice of law for one year, six months of which is to be stayed on the condition that he provide audit reports of all his trust accounts quarterly for two years.

The case is Matter of Pudlo, decided today. (Mike Frisch)

August 19, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Wrong Way To Start Your Own Practice

A decision imposing disbarment by the Maryland Court of Appeals is described in the headnote:

Disbarment is the appropriate sanction for an attorney who violated Maryland Lawyers’ Rules of Professional Conduct 1.4(a) and (b) and 8.4 (a) - (d), by wrongfully deleting and altering his law firm’s clients’ electronic computer files in an effort to make viable cases appear closed for lack of merit. The attorney engaged in such conduct in order to conceal the cases from the firm, with the intent of pursuing the cases on his own once he started his own law practice. The attorney also wrongfully used the firm’s resources in an effort to solicit new clients for his proposed law practice. Given the absence of compelling extenuating circumstances, the attorney’s intentional, dishonest conduct warranted disbarment.

The findings indicate that approximately 200 prospective clients were solicited. The law firm was involved in lead paint litigation and the disciplined attorney was paid over a quarter of a million dollars in 2008.

There is a dissent in which three justices indicate that they would impose an indefinite suspension. (Mike Frisch)

August 19, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Urban Legend

An Illinois Hearing Board has recommended disbarment of an attorney convicted of conspiracy to distribute cocaine. He also had converted the funds of several clients.

The hearing board describes the criminal and other misconduct

Respondent’s crimes are extremely serious and represent the most egregious professional misconduct the members of this panel have encountered. As Judge Guzman commented in sentencing Respondent on remand, it is quite frightening to have an attorney, a person involved in the legal system, engage in serious criminal activity, use a police officer to "help him rip off drug dealers," and act and sound like a gang banger or drug dealer while doing so...

Judge Guzman observed:

I don’t frankly know of a series of actions that would more tend to undermine the safety of our community…than those; drugs, violence, the perversion of our system of law enforcement, the betrayal of his professional duties and responsibilities as an officer of the court ….

We fully concur in these observations. The conduct that led to Respondent’s conviction alone warrants disbarment...

In addition to his flagrant criminal misconduct, Respondent engaged in multiple acts of conversion. While the exact amount converted is not clear, it is clear Respondent converted a very sizable sum. Count VIII alone involves conversion of over $22,000.00 from five separate clients. Conversion of client funds is a gross violation of an attorney’s responsibilities to his or her clients, warranting disbarment when no mitigating factors are present.

Particulars about the criminal conviction (and gang bang-ese dialogue) can be found in the decision of the United States Court of Appeals for the Seventh Circuit remanding the conviction for resentencing. The court described the case:

In August 2004, Harvey Gooden, a police informant,
invited an attorney, Christopher Millet, to participate
in a robbery of a drug dealer. Millet, who
claimed to be well versed in the art of robbing drug
dealers, readily accepted Gooden's offer. After the
robbery, Gooden asked Millet for a gun, purportedly
to protect himself from the dealer they had
robbed, and after some prodding, Millet obliged.

The court noted that the attorney became addicted to heroin after more than a decade of sobriety during which he had attended law school and obtained admission to the Bar. (Mike Frisch)

August 19, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, August 18, 2011

"Bartending Is Not My Forte"

The Illinois Administrator has filed a complaint alleging that the attorney failed to disclose information on his law school and bar admission applications.

As to the law school:

 John Marshall Law School’s application asked the following question of all applicants: "Have you ever, either as an adult or juvenile, been cited, arrested, charged or convicted for violation of any law including traffic violations?" Respondent answered "yes." Respondent further submitted a Statement of Explanation stating as follows:

On June 18, 1999, I was cited for a Zero Tolerance, Reckless Driving, and Disregarding Official Traffic Control Device. I was stopped for failing to make a complete stop at a stop sign, and I had a .01 BAC. My license was suspended for three months from August 03, 1999, to October 10, 1999. I pled guilty to Disrgarding Official Traffic Control Device. The other charges were dropped.

On February 23, 2001, I was issued a citation for failure to reduce speed to avoid an accident. I was involved in a minor traffic accident in which there was was minor damage to both vehicles, and no one was injured. The citation was dismissed in court.

 Respondent’s answer to the question on his application to the John Marshall Law School, as set forth...above was false, and Respondent knew that it was false, as it omitted the following:

  1. a July 21, 1996, speeding citation;

  2. a January 15, 1998, ticket for disobeying a stop sign;

  3. a June 3, 1999, speeding citation;

  4. a June 15, 1999, citation for indecent conduct; and,

  5. a February 23, 2001, failure to reduce speed citation;

With respect to the incident on June 15, 1999, Respondent failed to disclose in his application to the John Marshall Law School that he had been using an illegal substance, gamma-Butyrolactone, commonly known as "Liquid G," at the time of that incident.

With respect to the incident of June 18, 1999 while Respondent did disclose the incident in his application, and acknowledged that his BAC registered .01; Respondent did not inform the Law School that he was using an illegal substance, Liquid G, at the time of that incident.

At the bottom of the application, Respondent was required to certify that the information he provided on the application form contained no omission, misrepresentation or concealment of any significant fact in any statement. Respondent signed the application certifying that the information was true and complete, when he knew that it was not.

At the time he completed the application, Respondent knew that the information he provided on the application was both false and incomplete in that he failed to set forth his violations of the law as set forth...above, and that he did not disclose his use of Liquid G in connection with the incidents on June 15, 1999 and June 18, 1999.

Respondent knew that John Marshall Law School would make a decision regarding his admission based upon the information in the application, and Respondent intended to deceive or mislead John Marshall Law School by submitting the false and incomplete application.

Respondent was admitted to John Marshall Law School based upon his false application. At no time prior to the time he commenced his studies at John Marshall, graduated, and was certified by the Dean for admission to the Illinois Bar, did Respondent change his application to correct the false information he provided to the law school.

Many of the allegations are repeated with respect to bar admission. There is also this:

Question 28 of Respondent’s Character and Fitness questionnaire asked Respondent if he "had ever been discharged or requested, formally or informally, to resign from or terminate employment." Respondent answered "no." A supplementary form, Form 25, entitled description of non-legal employment, asked Respondent to state his reason for leaving his employment as a bartender at the Colosseum Bar. Respondent answered, "Bartending is not my forte." In fact, Respondent’s answer that he had not been fired was false, and Respondent knew his answer was false, because he had been fired from the Colosseum Bar for cause.

Respondent’s failures to advise IBAB of the incidents set forth...above, as well as the role of his use of Liquid G in the incidents on June 15, 1999, and June 18, 1999, and the informal detentions by the police when he was a juvenile, were deliberate omissions, and Respondent’s intention was to mislead the Committee in order to further advance his chances for admission to the Illinois Bar. Further, Respondent made a deliberate misrepresentation to IBAB in stating that he was not fired and that "bartending is not my forte" when asked his reason for leaving his employment, in order to further advance his chances for admission to the Illinois Bar.

There were further inquiries (and alleged failures to disclose) but the applicant was admitted. (Mike Frisch)

August 18, 2011 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Video Game Addiction Leads To Neglect, Suspension

A Pennsylvania attorney who had career as a "competent and productive lawyer, highly respected by his peers" was suspended for three years as a result of his neglect, mishandling advanced fees and related misconduct in 17 client matters.

The reason for the pervasive neglect:

Respondent reacted to the pressures of practice as well as the pressures of a troubled home life by retreating into a world of computer and video games even as he was employed by others.

Respondent testified that when he experienced problems he lost focus on his legal work and diverted his attention to electronic recreation.

Respondent's escapism led to his loss of employment which in turn caused him to open his own practice in 2007. Respondent testified that when attempting to conduct his own law practice he sought refuge from his problems by playing video and computer games with even greater intensity. He describes himself as "addicted" to the games.

The Disciplinary Board rejected the five year suspension proposed by the hearing committee. (Mike Frisch)

August 18, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Access A Maybe

The New Jersey Appellate Division has held that a court must consider a number of factors in determining public access to unfiled discovery:

In this appeal we consider whether unfiled discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection (NJDEP) against ExxonMobil Corp. (the Exxon litigation) is subject to access pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common-law right of access. We hold that N.J.S.A. 47:1A-9b exempts unfiled discovery from disclosure; however, we reverse the dismissal of plaintiff Drinker, Biddle & Reath LLP's (Drinker) common-law right of access claim, and remand for the court to conduct the appropriate common-law balancing test.

The law firm sought access to unflied portions of the depositions of three Exxon experts. (Mike Frisch)

August 18, 2011 | Permalink | Comments (0) | TrackBack (0)

The Way It's Supposed To Work

The District of Columbia Court of Appeals approved a consent disposition in a matter involving false vouchers in court-appointed criminal matters. The court concluded that the hearing committee had properly weighed the evidence and factors in aggravation and mitigation, and that the sanction was within the range of those imposed in comparable cases.

The best news--the court acted promptly after receiving the committee report.

Bravo! (Mike Frisch)

August 18, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 17, 2011

Stimulating The Child Pornography Market

The web page of the Massachusetts Board of Bar Overseers reports a recent order imposing reciprocal disbarment based on action in California:

On February 18, 2011, the respondent...was disbarred by the Supreme Court of California. The disbarment was based in part upon the respondent’s conviction on December 19, 2008, in the Superior Court of California, County of Los Angeles, of two counts of possession of child pornography, a felony. In addition, in connection with the California bar discipline proceedings, the respondent admitted that on three occasions in 2005 though 2007, he had distributed child pornography by uploading images onto the internet.

In aggravation of the respondent’s misconduct, the respondent stipulated that he engaged in a pattern of misconduct over at least three years, that his misconduct involved dishonesty because he used a fictional name on the internet,and that his misconduct caused harm by stimulating the market for illegal child pornography.

In mitigation, the respondent had no prior discipline; during the period in question, he experienced financial and personal problems relating to the care of his sick and elderly parents. In recommending that the respondent be disbarred, the California State Bar Court approved the facts agreed to by the respondent.

The respondent did not report the California disbarment to Massachusetts bar counsel, as required by S.J.C. Rule 4:01, § 16(6).

(Mike Frisch)

August 17, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Reprimand For Prosecutor's Disclosure Violation

A Virginia prosecutor has agreed to a public reprimand for failing to disclose evidence in a criminal matter, according to this report from the Williamsburg Yorktown Daily:

[Prosecutor] Addison faced misconduct charges from her prosecution of Carlos Chapman, Marquis Edwards and Kwaume Edwards in the 2006 shooting death of Michael Tyler. Michael Morchower, the lawyer defending accused shooter Kwaume Edwards, alleged that Addison negotiated a plea agreement with Chapman’s lawyer, Doug Walter, for his testimony against his co-defendant Kwaume without notifying the defense. Morchower filed a motion for a new trial in May 2007, and Kwaume was acquitted.

In her agreed disposition, Addison acknowledged that she had violated two rules. First, she failed to make a timely disclosure to the defendant’s counsel of evidence that could negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment. Second, she violated the rules of professional conduct.

During the conference call hearing, [Bar Counsel] Montgomery said she was satisfied with the disposition because Addison has no prior record of misconduct.

The report also states that the prosecutor, who serves as Commonwealth's Attorney, is running for reelection. (Mike Frisch)

August 17, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Privilege Assertion Leads To Reversal Of Conviction

A criminal conviction has been reversed by the Maryland Court of Appeals because the trial court permitted an attorney for the defendant to testify in the prosecution's case-in-chief about the "surrounding facts and circumstances" of the representation.

The court held:

Upon a showing that an attorney and a client communicated in a professional capacity, the
attorney-client privilege is invoked, and, pursuant to Maryland Rule 5-104, a trial judge must
perform a preliminary inquiry into the surrounding facts and circumstances of the
representation and determine the nature and scope of privileged communication, the State’s
intended use of the allegedly privileged communication, as well as the extent of any waiver.

The case involved allegations that a husband had stolen from his wife. The attorney had prepared a deed (at issue in the trial) and had asserted that he represented both husband and wife.

The Washington Post had these details on the criminal allegations. The Post reports that the alleged victim was an 83 year old widow who married the 66 year old defendant.

 A guardian was appointed for the widow. He sought to void a deed and invalidate a will drawn by the lawyer-witness. The guardian also sought and obtained annullment of the marriage. The defendant's attorney had testified in the annulment proceeding, which the trial court viewed as a waiver of the privilege.

On a personal note, the Parkway Deli (the scene of the alleged crime, according to the Post) is the deli I grew up with. The food is still great.  (Mike Frisch)

August 17, 2011 in Clients, Privilege | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 16, 2011

"Flippant, Cagey And Cavalier" No Way To Get Reinstated

The Michigan Attorney Discipline Board has concluded that a petitioner had failed to establish his current fitness for reinstatement to practice. The board disagreed with a 2-1 panel decision that had ordered the attorney's return to practice.

The board found that the petitioner (who had been disciplined on a number of occasions without a fitness requirement) "had been given more than his fair share of chances to show that his misconduct was an aberration..." and was less than impressed with his present attitude:

The Administrator quotes various portions of petitioner's testimony in the reinstatement hearing which shows him to be flippant, cagey and cavalier with respect to his handling of his trust accounts in general (his wife maintains them and he never bothers to check that they are maintained appropriately), and with respect to accounts of his legal and real estate firms used to collect funds he manages for his father as attorney-in-fact.

The board noted that the burden is on the petitioner to establish present fitness. "[H]e must do more than simply state that he has learned his lesson and is ready to return to practice." (Mike Frisch)

August 16, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 15, 2011

Go And Have A Ball

A recent Judicial Ethics Committee opinion from Massachusetts:

You have received an invitation from a bar association to participate in a conference. Specifically, the bar association has asked you to serve as advisor to the conference, to moderate a bench bar panel, and to attend a bench bar reception. The bar association has also indicated that you are welcome at any other events, including a ball. You ask if participating in these activities is consistent with your obligations under the Code. The Committee believes that it is.

The advice has caveats, including:

The Committee also cautions you that while you may attend the ball or any other conference event when bar association leadership presents the scholarship and publicly acknowledges the sponsors, Commentary to Section 4C(3)(b), you may not participate in those fund-raising-related events by playing an obvious role in connection with that presentation and acknowledgment.  It is on this basis that the Committee's warning in CJE Opinion 92-2 that a judge could not attend an event that had "a dual function of supporting both a charitable cause and a political cause" does not apply.

     Therefore, the conference is structured in such a way that your participation in the educational aspect is consistent with the Code in that it will not give the impression that you are participating in or using the prestige of judicial office for the fund-raising aspect...

(Mike Frisch)

August 15, 2011 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Duty Of Defense Counsel When Client Wants New Attorney

A decision from the Maryland Court of Appeals explains a defense attorney's ethical obligations when the client advises the attorney he or she wants to discharge counsel.

From the headnote:

As an officer of the court, the lawyer who represents a criminal defendant is required by MRPC 1.2 to abide by the defendant’s decision concerning the services to be performed on the defendant’s behalf, and is prohibited by MRPC 3.3 from making a false statement to the trial court. When a lawyer has been told by a criminal defendant that the defendant wants to be represented by some other lawyer, unless the defendant thereafter consents to the lawyer’s continued representation, the lawyer is obligated to advise the trial court of the defendant’s wishes.

The court held that the defendant was not entitled to a new trial but remanded for consideration of claims not addressed below. (Mike Frisch)

August 15, 2011 in Clients | Permalink | Comments (0) | TrackBack (0)

An Unusual Theft Conviction

The web page of the Texas Board of Disciplinary Appeals reports a recent disbarment order:

On July 6, 2011 the Board of Disciplinary Appeals signed a final judgment of disbarment against San Antonio attorney Mary S. Roberts, 55...On June 25, 2008, the Board of Disciplinary Appeals signed an interlocutory order of suspension against Roberts because on or about February 26, 2008, she was convicted of five counts of theft...and was sentenced to 10 years in the Institutional Division of the Texas Department of Criminal Justice on each of counts I-III and two years for counts IV and V, sentences to run concurrently. The sentences were fully probated. Roberts appealed the conviction and on January 11, 2011, the Court of Appeals for the Fourth District of Texas affirmed her criminal conviction. Roberts appeared pro se.

The underlying criminal case received significant attention from the press, including this 2004 post from People Magazine:

It was loneliness and dissatisfaction with her marriage, says San Antonio lawyer Mary Roberts, that prompted her three years ago to start cruising an Internet sex site looking for lovers. Posting an ad that read "Professional woman who is full of desire but not having her needs met," she didn't stay lonely for long. During the fall of 2001 she struck up relationships with at least five men, including a vice president of a pharmaceutical company, an Army officer and a top executive of a tech firm. In between trysts, she and her lovers traded steamy e-mails, one of which she signed, "Your demon love slave." Their frolicking, Roberts, 48, had said in her Web come-ons, should have "no strings" attached.

But what she didn't mention was that a legal noose was about to be slipped around her paramours' necks. As the San Antonio Express-News disclosed in June, within weeks of Roberts ending the brief affairs, several of the men received letters from her husband, Ted, 47, a successful medical malpractice lawyer, threatening court action unless they coughed up a monetary settlement. In all, the men paid out a total of as much as $155,000 to keep the matter quiet. What makes the episode all the more remarkable is that no laws may have been broken. While declining to explain exactly why she and her husband did what they did, Mary insists that everything was perfectly above-board. "This was not a case of extortion," she told PEOPLE. "I cannot emphasize that enough."

But that doesn't mean that people in San Antonio aren't appalled by what appears to be the skirting of ethical boundaries. For weeks the case was subject No. 1 on talk radio and at cocktail parties. "This is the kind of thing you read in the paper in the morning and it makes you spit your coffee," says San Antonio's district attorney Susan Reed. "It bothers me a lot." Whether Reed will be able to do anything about it, though, is another issue. The Robertses operated under the cloak of an obscure Texas legal procedure, known as Rule 202, that allows a lawyer to go directly to a judge with the facts of a case and ask if further investigation and a possible lawsuit are justified; even if the case has no merit, it becomes a matter of public record. In letters to his wife's lovers, Ted Roberts enclosed drafts of his proposed Rule 202 filings, implying he would go public with the affairs.

Jonathan Turley had this post and opines:

Unfortunately, the two Roberts have fulfilled every stereotype of lawyers for some in the public. The fact is that these are two truly obnoxious — if not toxic — individuals who deserve lengthly punishment — and long walks in the rain in the prison yard — to consider their choices as both lawyers and human beings.

For the bar, the convictions of these two lawyers was a welcomed event.

Now, however, Roberts will not go to jail and instead perform community service. It is hard to imagine what community service would work for her but legal and marriage counseling should probably be excluded.

Additional information about the criminal case from the web page of the Texas District & County Attorneys Association. (Mike Frisch)

August 15, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)