August 27, 2011
Fraud Results In Five-Year Suspension
The Hawaii Supreme Court has imposed a five-year suspension for misconduct described in the court's order:
...it appears that Respondent...falsified two letters that were material to a lawsuit pending against him and presented them to opposing counsel as authentic, fraudulently misrepresented his financial assets to a federal bankruptcy court for personal benefit, violated his professional duty of diligence and competence to a client in the underlying divorce matter, and has demonstrated a pattern of misconduct before tribunals...
He also must pay costs as a condition of reinstatement. (Mike Frisch)
August 26, 2011
Citing "unique factual circumstances," the Wisconsin Supreme Court has imposed a 60-day suspension with requirements that the attorney undergo evaluations to determine whether he suffers from medical incapacity. The court '[did] not impose these conditions lightly" as the attorney "has been a respected and productive attorney in this state for many years." The attorney must waive medical confidentiality as a condition of reinstatement.
The Lawyer Regulation System filed a complaint in a client's matter. Personal service could not be accomplished as the return indicated "HOUSE IS BARRICADED - NO CONTACT." There were further efforts to serve but eventually a default was entered:
Because of the nature of the allegations in the LRS's complaint and an apparent concern for Attorney...'s welfare, the referee took the unusual step of having Investigator Rosen testify at the default hearing regarding his attempts to communicate with Attorney... and the results of his investigation. Investigator Rosen testified that as a result of his inquiries he became concerned that Attorney...may have been experiencing some mental health problems. He noted that he had learned that Attorney...had apparently cut off communication with his family. When that fact was combined with the facts that Attorney..., a respected and successful attorney, had abruptly disconnected his office telephone, had closed his law office, had stopped communicating with clients, had refused to communicate with Investigator Rosen orally, had spoken to the other special investigator only because he had been compelled to do so, and had virtually barricaded himself in his house so that the sheriff's department could not even serve him with process, Investigator Rosen concluded that there were sufficient reasons to believe that Attorney...was experiencing problems.
Justice Roggensack would impose the suspension but not the reinstatement conditions. (Mike Frisch)
Not Admitted, Now Suspended
An attorney who engaged in unauthorized Maryland practice has been suspended for one year and until further court order by a court that actually had admitted her to practice - the New York Appellate Division for the Second Judicial Department:
The Maryland Court of Appeals found that the respondent violated MRPC 5.5 by establishing an office for the practice of law and by representing that she was admitted to practice law in the State of Maryland, as well as having violated MRPC 7.1, which prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer's services, and MRPC 7.5, which prohibits a lawyer from using a professional designation that violates MPRC 7.1.
Although not a member of the Maryland bar, in August 2007, the respondent established the "Sucklal Law Firm, LLC," in Rockville, Maryland.
The Maryland court found that the attorney had undertaken several Maryland csaes on behalf of clients. (Mike Frisch)
More Praise for Mike Frisch
Looking at the news summaries for the week that the ABA emails me on Fridays too early, I have noticed that Mike's posts got hat-tipped a lot by the ABA Journal and its blog. That has happened regularly since he started systematically blogging bar discipline here (or they hat-tip a blog that itself traces back to this blog), plus many other sources and news services have picked up on his leads since 2006. Of course we've been happy with all that and are not complaining, and there is nothing wrong with their doing so (to their credit, they hat-tip). I just note that this week they seem to be especially relying on his uncovering issues and filings re ethics. While this is a blog and not a newspaper as such, and we do not purport to be journalists, there is extra value (beyond the many other things he accomplishes on this blog) to getting the journalistic ball rolling by uncovering publicly available (but often obscurely disseminated) state ethics reports. That ball is Mike. Please keep it up--or else at the very least the ABA Journal and its blogs would have fewer pages and pixels. True, I blog here too, and valuable contributions by Jeff and Bill have also been picked up on and fill the blog-iverse, but I'm sure they'd agree with me that it is nothing close to the regular and firm reliance people have come to place upon Mike. Just sayin'. [Alan Childress]
August 25, 2011
A Day In Mississippi
The Mississippi Supreme Court has ordered a reduction of its three-day bar examination to two days.
There is a dissent from Justice Randolph, quoted in part below:
A matter of particular concern to this Justice is Exhibit 2 to the petition. It reveals that
the proposed structure adopted by today’s order would require only three hours of
examination on Mississippi law, a proposition which seems alarming at first blush. In the
absence of either conclusive evidence to the contrary or opinions of the Board, based on
sound reasoning and logic, I would opine that eight hours of examination on Mississippi law
would be in the best interests of both prospective attorneys and the citizens of this state, prior
to admission to practice law in this state.
Justice Chandler also dissented:
At the present time, Mississippi administers a three-day examination for admission
to the bar. Before this Court is a petition by the Board of Bar Admissions to reduce the
testing period from three days to two. I believe this Court’s grant of the petition is
premature. While it is a laudable goal to reduce an unnecessarily lengthy testing period, this
Court first should determine, with specificity, what we are attempting to measure before
deciding how to measure it and what length the test should be. The Board’s petition indicates
that the Board has rigorously studied the impact of changes to the testing period, but fails to
set out what the bar examination purports to measure, and what a reduction of the testing
period will accomplish toward those goals. The petition fails to set out any testing objectives
the Board wishes to accomplish by reducing the testing period.
The two dissenting justices joined each other's opinion. (Mike Frisch)
An attorney who had voluntarily surrendered from the Arkansas Bar was disbarred by the New York Appellate Division for the Second Judicial Department for the following misconduct:
...Respondent acknowledges in his affidavit submitted herein that he could not successfully defend himself on the merits against charges that he violated Rule 1.7(a) of the New York Rules of Professional Conduct in connection with a corporate investment transaction where he sought to represent both the buyer and seller ( "A lawyer shall not represent a client if a reasonable lawyer would conclude that the representation will involve the lawyer in representing differing interests"). Although he obtained a waiver of his conflict of interest from the seller, he did so after he requested that the seller keep its corporate attorney out of the negotiation process and he deal only with the corporate officers. Additionally, respondent obtained two "loans" from the seller for himself to cover transaction expenses. However, he did not place the funds into a trust or escrow account until such funds were actually used for the stated purpose, nor did respondent inform his law firm of his receipt of these funds, in violation of Rule 1.15(b), which requires an attorney to maintain funds in an attorney trust account or attorney escrow account.
Finally, respondent acknowledges that he could not successfully defend himself against charges that he violated Rule 8.4(c) of the New York Rules of Processional Conduct ("A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation") when he repeatedly made promises and false representations to the Arkansas Arts Center in connection with $500,000 in pledged funds.
Additional information is linked here from the Arkansas Times. (Mike Frisch)
Make Weight Argument
Not a legal profession case but one that is hard for me to resist as a former wrestler.
The Maine Supreme Court has held that a school district is not liable for damage caused to a motel room used during a school-sponsored event.
Four members of MSAD 43’s wrestling team stayed in room 216. At
some point that night, the team members in room 216 turned on the shower,
blocked the ventilation system, and used the motel’s hairdryer to create a makeshift
sauna to help one of their teammates “make weight” for the next day’s match. As
a result of the students’ actions, the motel’s sprinklers activated.
Middlesex [the insurer] paid out $10,693.68 to repair the damage caused by the
The court rejected the insurer's subrogation claim. (Mike Frisch)
No Stay Of Arbitration Awards When Attorney Declares Bankruptcy
In an opinion issued today, the New Jersey Supreme Court has held that fee arbitration and disciplinary proceedings qualify for relief from an automatic stay when an attorney declares bankruptcy.
From the headnotes of the court's decision:
The attorney fee arbitration system in New Jersey has been used since 1978 to enhance the confidence of the public in the bar and the judicial system, an important governmental function. Attorneys are required to submit to fee arbitration proceedings, and ensuring attorneys' adherence to it is an important regulatory goal because it facilitates the expedited resolution of fee disputes between attorneys and clients and fosters public confidence in the legal profession. Bolstering of the fee arbitration process and restoration of public confidence in the authority of fee arbitration committees to resolve fee disputes are at the heart of the Court's action.
The action to suspend [the attorney] from practice is to redress his disregard of determinations of the fee arbitration committee in the exercise of the authority delegated to the committee by the Court, and although [he] may have to satisfy the fee awards in favor of his clients to forestall suspension, that requirement is entirely collateral to the primary purpose of supporting the fee arbitration process and retaining public confidence in the system.
The stay of suspension ordered by the Court is vacated and [the attorney] is suspended from the practice of law in accordance with the order accompanying this opinion, pending his full compliance with the of the January 27, 2011 order and the applicable provisions of Rule 1:20-20.
Yellowbook Ad Draws Reprimand
The Indiana Supreme Court has imposed a public reprimand of two attorneys for the following stipulated ethical violation:
In a 2010-2011 "Yellowbook," Respondents published an advertisement promoting themselves as "Specializing in Bankruptcy Relief." Neither Respondent has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education.
The parties cite no facts in aggravation. The parties cite the following facts in mitigation: (1) Respondents have no disciplinary history; (2) Respondents were cooperative with the Commission; and (3) Respondents are remorseful.
Attorney "Misappropriates" Football Tickets
The web page of the Ohio Supreme Court reports:
The law license of [a] Toledo attorney...has been suspended for two years, with the second year of that term stayed on conditions, for multiple acts of professional misconduct during his representation of a defendant in an aggravated murder case, failure to notify another client that he was not covered by professional malpractice insurance, and improper use of his law office trust account.
In a 7-0 per curiam decision announced today, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that after obtaining the murder case client’s ATM card and PIN number and a power of attorney over the client’s affairs, [The attorney] made multiple withdrawals from the client’s bank account without accounting to the client or placing the funds in his law office trust account, transferred more than $24,000 from the client’s 401(k) retirement account into [his] business account before having earned such an amount as fees, and induced his secretary to falsely notarize the client’s signatures signing over the titles of two cars to [him] when the secretary had not actually witnessed those signatures.
The Court also found that, when his client filed a grievance with the Toledo Bar Association, [the attorney] fabricated hourly bills that he claimed to have presented to the client during the representation, including 22 hours that he claimed to have spent conferring with the client in jail that were not consistent with the jail’s visitor registration log.
The Court rejected the stipulated sanction of a one-year suspension with six months stayed, and instead imposed a two-year suspension with the second year stayed on the conditions that [his] practice be monitored by an attorney selected by the Toledo Bar Association, and in addition to his standard continuing legal education requirements, he must complete additional continuing education course work in law office management prior to being reinstated.
From the opinion:
Respondent also used the POA to gain access to [the client's] home, where he took possession of some of [the client's] personal property, including a pair of Cleveland Browns football tickets. Respondent claimed that he had intended to use the tickets as evidence in [the] trial.
However, respondent used the tickets to attend the game with a friend.
During the representation, respondent also obtained possession of [the client's] 1983 Porsche 928 and a 1990 Cadillac Fleetwood by causing [the client] to sign the backs of the titles to both vehicles as transferor. Respondent then filled in his own name as transferee on both vehicles without any written authorization from [the client]. Respondent then had a secretary notarize [the client's]
signature on the titles, even though she had not seen [the client] sign them. Respondent stipulated that he had failed to keep records of, or account to [the client] for, the personal property he received.
The court's opinion is linked here.
Toledoblade.com reports that the client pleaded guilty on the second day of trial. He will not be using those Browns tickets for quite awhile. (Mike Frisch)
New Rules For South Carolina Lawyer Ads
The South Carolina Supreme Court has amended its rules governing solicitation of clients.
New language in Rule 7.2 requires that advertisements be "predominately informational."
The new language on testimonials is underscored:
(d) contains a testimonial about, or endorsement of, the lawyer
(1) without identifying the fact that it is a testimonial or endorsement;
(2) for which payment has been made, without disclosing that fact;
(3) which is not made by an actual client, without identifying that fact;
(4) which does not clearly and conspicuously state that any result the endorsed lawyer or law firm may achieve on behalf of one client in one matter does not necessarily indicate similar results can be obtained for other clients.
August 24, 2011
Forcible Touching Conviction Leads To Two Stayed Suspensions
The attorney was convicted of a misdemeanor described in this post from WNBZ:
A former Franklin County public defender has accepted a plea deal by admitting to one count of forcible touching, a class A misdemeanor.
[The] 40 year-old [attorney] was arrested last year on charges of forcible touching stemming from incidents at the Pines Bar in the Town of Malone.
He was accused of touching the breasts and buttocks of three women, all of whom were employees of Franklin County.
In July of last year, [he] again for another incident in a Malone bar. He was charged with two counts of criminal contempt for violating an order of protection. He was also charged with disorderly conduct.
[His] guilty plea this week to a single count of forcible touching was in satisfaction of all the charges against him.
The Adirondack Daily Enterprise described the allegations in the second bar incident:
According to Malone village police, [the attorney] went to Fat Jake's Bar in Malone Saturday evening and refused to leave, even though a woman who had a stay-away order against him was in the bar. After he left the bar, he stood on the sidewalk and yelled obscenities.
Details concerning the incident that led to the conviction are reported by the Press-Republican. (Mike Frisch)
Three's No Charm
A justice of the Massachusetts Supreme Judicial Court has ordered the temporary suspension of a former Speaker of the state House of Representatives. The Herald News reports on the criminal conviction that led to the suspension:
After a six-week trial, a jury needed only hours before finding former House Speaker Salvatore DiMasi guilty on seven of nine counts in his public corruption case, including conspiracy, two counts of mail fraud, three counts of wire fraud and extortion.
The verdict made DiMasi the third consecutive House speaker convicted of a felony. Jurors found DiMasi, a North End Democrat often described as the most powerful person in state government during his run as leader of the House, had deprived Massachusetts citizens of his honest services.
Codefendant and lobbyist Richard McDonough was also found guilty on seven of eight counts, including conspiracy, two counts of mail fraud, and three counts of wire fraud.
The attorney had not yet been sentenced. (Mike Frisch)
Doctor! Doctor! Give Me The News
A new opinion from the District of Columbia Bar Legal Ethics Committee:
The principal question presented is whether a lawyer may ask his or her client’s treating physician not to have ex parte communications with opposing counsel in a medical malpractice case where legal restrictions on such communications based on privacy laws and/or physician-patient privilege have been removed.
Under D.C. Rule 3.4(f), the lawyer may inform his or her client’s treating physician that the treating physician has no obligation to speak with opposing counsel and that the treating physician may decline to speak to opposing counsel without the lawyer also present. To the extent that privacy laws or applicable privileges may restrict the scope of information that the treating physician may disclose, the lawyer may also demand that the physician comply with confidentiality obligations that have not been removed and may state his or her client’s position as to the scope of information that may be legally disclosed. The lawyer may not, however, request or instruct the physician not to have communications with opposing counsel or request or instruct that any communications take place only if the lawyer is present.
August 23, 2011
Service to this blog is now restored after the Great East Coast Earthquake of 2011.
An Illinois Hearing Board has recommended the disbarment of an attorney for false statements in efforts to obtain financial aid for his child's schooling. The findings:
Applications were filed for financial aid for Respondent’s daughter for the 1999-2000 school year (Count I), the 2002-03 school year (Count II), and the 2003-04 school year (Count III). [The Francis W.] Parker [School] required parents applying for financial aid to submit an application, entitled Parents’ Financial Statement, containing information about the parents’ income for the preceding year. Parents were also required to submit to Parker a copy of the federal income tax return they had filed for the preceding year.
Respondent prepared and signed the Parents’ Financial Statement for each of the three academic years involved. By signing the Parents’ Financial Statement, Respondent declared the information in the document was true, correct, and complete.
In each Parents’ Financial Statement, Respondent significantly underreported the income obtained during the preceding year. The admitted allegations of the Complaint established Respondent knew the information he placed on the Parents’ Financial Statements was false and intended to mislead Parker. The admitted allegations of the Complaint also constituted proof the tax returns Respondent submitted to Parker were not accurate copies of his tax returns, but altered copies containing false information.
Based on the false information thus provided, Parker awarded financial aid to Respondent’s daughter. Specifically, Parker gave Respondent’s daughter $6,160 in financial aid for the 2001-02 school year, $7,884 in financial aid for the 2002-03 school year; and $8,786 for the 2003-04 school year. Respondent’s family would not have been eligible for the financial aid awarded for these years if Respondent had not submitted false information.
Then there is this about the attorney's lack of response to the charges:
Respondent’s behavior in these proceedings is especially mystifying in light of his background. Respondent is a Harvard graduate. For years, he was a partner at a major law firm. Respondent is someone who knows, or should know, how to practice law. Yet, he
hid in the courthouse to evade service of process,
did not pick up his mail, fearing it might involve a claim against him,
filed frivolous pleadings rehashing the same issues,
purported to have no idea why he might be culpable for preparing, signing and submitting applications for financial aid which contained false statements and were based on fraudulently altered documents,
e. continually blamed others for everything wrong in his life,
f. did not properly respond to basic discovery,
g. repeatedly engaged in invective behavior in the course of a legal proceeding.
A dissent would impose a three-year suspension. (Mike Frisch)
Self-Dealing With Elderly Clients Draws Proposed Suspension
An Illinois Hearing Board has proposed a suspension of eighteen months for an attorney's self-dealing with two elderly clients. The clients were brothers.
The board concluded that the attorney's friendship with the clients did not diminish his obligations as a fiduciary.
The attorney prepared a series of documents that gave him and his wife increasing shares of the estates of the two clients:
Adam and Anton were elderly, reclusive and estranged from their family. They had a very small social circle, consisting of Respondent, Respondent’s brother Dale and their neighbor, Gembala. By September 2005, Dale had died and Gembala had moved out of the neighborhood. From that time on, the only people with whom Adam and Anton had regular contact were Respondent and Johnson [a caregiver]. These circumstances rendered Adam and Anton vulnerable to exploitation. Anton was especially vulnerable, given his long-standing cognitive and memory problems, which Anton’s doctor testified affected his ability to make financial decisions and rendered him susceptible to suggestions from others.
After Adam died, Anton was in an even more weakened state, both physically and psychologically. Respondent’s conduct at that time is especially troubling. Within a few weeks after Adam died, despite Anton’s condition, Respondent arranged for Anton to execute a series of documents under which Respondent and his wife would receive almost all of Anton’s property when Anton died. These documents also eliminated almost all of the remaining rights of third parties to Anton’s estate. Specifically, Anton added Respondent as a joint tenant on Anton’s bank account. Anton executed a Transfer on Death Agreement for his UBS account, which removed Gembala and named Respondent and his wife as the only beneficiaries upon Anton’s death. Respondent had Poirier notarize the signature on this document, even though Anton was not present, and Poirier did not see him sign the document. Respondent also prepared and had Anton sign a document, which amended the terms of the land trust to add Respondent and his wife as joint tenants with Anton.
Adam or Anton did not have any independent advice concerning any of the documents Respondent prepared or presented to them for signature, which left their property or the right to direct its disposition to Respondent. Respondent did not advise Adam or Anton to obtain independent legal advice, explain the conflict of interest inherent in his preparation of documents under which he would benefit or inform them of the risks his preparation of such documents would entail. As to at least some of the documents, no one other than Respondent was involved at all. Respondent’s wife and son witnessed some of the documents, including Adam’s 2004 Durable Power of Attorney, Adam’s 2006 will and Anton’s 2005 will. Although it was improper for him to do so, 5 ILCS 312/6-104, Respondent notarized certain documents, such as Adam’s 2004 Durable Power of Attorney and 2006 will. Respondent improperly had Poirier notarize Anton’s 2006 UBS Transfer on Death Agreement, even though she could not verify the identity of the signer.
The prioposed sanct ion would also require the attorney to take a professionalism course. (MIke Frisch)
August 22, 2011
"He Said, She Said"
The South Carolina Supreme Court has ordered a suspension of six months of an attorney who had relocated his South Carolina practice to Maryland. The misconduct at issue involved his representation of a divorce client ("Assistant") who was employed by the lawyer from whom the attorney rented office space.
The court found that the attorney had disclosed confidential information, split fees and encouraged the client to commit fraud.
As to the confidentiality violation:
Respondent admits to violating Rule 1.6(a)...by disclosing private details of the circumstances surrounding Assistant's divorce action to his friend through e-mail. These disclosures included intimate details about Assistant's marital relationship and the financial settlement Respondent secured for her.
The e-mails contained photos of Assistant and comments "objectifying [her] as a sexual manner during the time she was a client."
As to the fraud:
... In our opinion, the hearing testimony and admissible exhibits, as a whole, establish that Respondent knowingly aided Assistant in misleading DHHS as to Assistant's income.
This issue presents a classic case of "he said, she said." Assistant gave detailed testimony of the conversations she and Respondent had regarding her need to maintain Medicaid coverage, his suggestion that they split her income between a 1099 and W-2 form, and their exchanges about the verification letters to be sent to DHHS. Respondent denies ever having these conversations and maintains Assistant asked him to split her income and he naively complied. The Panel found Assistant's testimony to be more credible than Respondent's. A reading of the record as a whole convinces us of the same. Although the Panel held inadmissible the e-mails and pictures exchanged between Respondent and his friend, the ODC read them into evidence for impeachment purposes. The evasive and patently dishonest manner in which Respondent answered questions about the documents, in our view, denigrates his credibility in this factual determination. For instance, the ODC asked Respondent about pictures taken of Assistant in the office, a space only they shared, and taken of her walking outside the office from the vantage point of Respondent's office window. Respondent testified he did not recall taking any of the pictures, although he knew of no one else who could have taken them. The ODC produced over seventy e-mails ostensibly exchanged between Respondent and his friend. Respondent testified he could not recall writing any of the content of the e-mails. Although it is conceivable that one might not specifically recall writing every word of past correspondence, we believe it unlikely that Respondent does not remember taking any of the pictures or writing any of the content included in approximately eighty exhibits. Respondent's testimony regarding the e-mails and pictures calls his credibility into question.
Furthermore, Respondent had a personal interest in assuring Assistant maintained her Medicaid benefits because he wished to bring her on full time, but he was either unwilling or unable to pay the costs of her health insurance. The record establishes their close relationship and Respondent's desire to help Assistant in her personal matters. Respondent's interest in assuring Assistant maintained health coverage weighs in our factual determination that Respondent aided Assistant in misrepresenting her income to the government.
Although Respondent testified he was unaware of the specifics of Assistant's Medicaid coverage, we believe he was fully apprised of her coverage, having represented her during her domestic case. With knowledge of her dependence on Medicaid, Respondent testified he believed Assistant requested the split in income for legitimate tax planning purposes, and that it suddenly "dawned on him" a month after Assistant left his employment, and shortly after he was notified she planned to pursue a legal malpractice suit against him.
In its entirety, we find Assistant's rendering of the facts regarding the representation of her income more credible than Respondent's. Therefore, we conclude Respondent violated Rules 8.4(d) and 8.4(e)...
The attorney also mishandled escrowed funds. (Mike Frisch)