Saturday, September 3, 2011

Brownie's Will

In a manner similar to the case posted directly below, the Illinois Review Board found that a censure was the appropriate sanction to recommend in a matter involving an attorney's drafting of a will that left a small portion of the deceased's residual estate to the attorney's wife.

The facts:

At the hearing, the following facts were presented to the Hearing Board, by way of the testimony of numerous witnesses, including the Respondent. At the time of the hearing, Respondent was 81 years old. Respondent has been practicing for over fifty years in Lincoln, Illinois. He served in the United States Army from 1954 to 1956 and was then in the Army reserve for six years. He is married to Jean...and has six daughters. He maintains a general practice in Lincoln. At times, he has also been employed as an Assistant States Attorney and as a city attorney for the town of Lincoln. He was elected and served as Logan County State’s Attorney from 1964 to 1968.

Respondent first met Charles Ellsworth Brown when Respondent was in grade school. Most people in Logan County referred to Mr. Brown as "Brownie". Mr. Brown was older than Respondent but they shared a common interest in sports. Mr. Brown went on to become a Major League baseball scout and later a state meat inspector. Respondent has lived and practiced in Lincoln; Mr. Brown lived in Beeson, Illinois, about 13 miles from Lincoln. It is a small community and they would often meet throughout the years at political and social events. Mr. Brown was married but had no children; he would often stop by Respondent’s office or home to visit. Respondent attended Mr. Brown’s 50th wedding anniversary party and his 90th birthday party; Respondent remembered that Mr. Brown had attended respondent’s surprise 60th birthday party. Mr. Brown knew Respondent’s wife and daughters through Respondent.

Respondent performed some legal services for Mr. Brown’s mother. He also handled Mr. Brown’s tax returns for a number of years. In 1986, Mr. Brown asked Respondent to draft wills for him and his wife. Mr. Brown did not have any brothers or sisters and Mrs. Brown had only one niece who was not particularly close to Mr. Brown. Mr. Brown’s will left his estate to his wife, but included a bequest which read, "I give and bequeath the round antique occasional table with four legs and all my woodworking and shop tools to Jean..." Jean..., Respondent’s wife, is not related to Mr. Brown. Respondent engaged in woodworking at the time. Respondent testified he did not solicit the gift. Respondent knew there might be an ethical issue with a bequest by a client to Respondent, but he did not then research the issue of a client giving a gift to his wife.

In 1992, Mr. Brown came to Respondent to make changes to his will. The 1992 will provided for the same bequest to Respondent’s wife as the 1986 will. Respondent was unaware that by 1992, the Illinois Supreme Court had adopted the Rules for Professional Conduct. He did not, therefore, look at the Rules...

Then:

After the death of Mr. Brown’s wife in 1998, Mr. Brown again came to Respondent to draft a new will. The will made the same bequest to Respondent’s wife. In 1999, Mr. Brown wanted to again amend his will. At this time, along with other changes, Mr. Brown added a bequest to Jean Peters of five percent of the residuary of his estate. Mr. Brown insisted on the bequest, telling Respondent that they were friends and that Respondent’s wife had been good to him. Respondent testified he told Mr. Brown that it could be a conflict of interest, that one of the other beneficiaries might raise that question, and that he could consult with another attorney. Mr. Brown replied that he did not trust other attorneys. Respondent testified he thought Mr. Brown’s estate at the time was modest, although he knew Mr. Brown owned a two-thirds interest in a $300,000 family farm, received pension and social security benefits, and owned some certificates of deposit.

 Mr. Brown died of an aneurysm on January 21, 2009 at the age of 94. Respondent and several other witnesses, including Judge Michael McCuskey, a close friend of Mr. Brown, testified Mr. Brown was mentally competent until his death. Judge McCuskey also testified that Mr. Brown talked about Respondent favorably, but he did not talk about his relatives. Although Judge McCuskey was not aware of the specific bequests in Mr. Brown’s will, he testified he was not surprised that Mr. Brown had favored Respondent’s wife with a bequest, nor was he surprised that Mr. Brown had not solely favored his relatives. He knew that Mr. Brown did not plan to leave much to his distant relatives. Because Judge McCuskey was concerned that one of Mr. Brown’s relatives might try to contend that Mr. Brown was not mentally competent, he asked another judge, Judge John McCullough of the Illinois Appellate Court, to visit Mr. Brown shortly before his death to confirm Mr. Brown’s mental state.

After Mr. Brown’s death, one of the other legatees in the will, Marjorie Devore, filed a charge against Respondent with the Attorney Registration and Disciplinary Commission. She did not, however, ever file a will contest. After Respondent learned of the ARDC investigation, Jean... disclaimed any interest in Mr. Brown’s estate. Respondent withdrew as attorney from the estate but remained as executor. The estate was worth approximately $1.6 million dollars, which surprised Respondent. The table bequeathed to Respondent’s wife was worth about $100 and the tools sold for less than $30. At the time of the hearing, the estate had not yet been closed.

As in the prior case, there was no suggestion of undue influence or any other blemish on the attorney's record. (Mike Frisch)

September 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Like Family

The Illinois Review Board has recommended that a public censure be imposed for an attorney's ethical violation in drafting a series of trusts and wills in which he was one of the beneficiaries. The attorney met the deceased in 1959 when she and her husband were his upstairs neighbors.

The board found it significant that there was a close, longstanding relationship between the attorney and the deceased:

We find it significant that when the Margolises returned to the Chicago area in 1988, and when Sylvia returned in 1992, Respondent again became a primary figure in their lives. He visited Herman many times before his death. He visited Sylvia monthly between 1992 and 2006, and more frequently after that. Pilar testified that Respondent was the only person to visit during the nineteen months that she took care of Sylvia, other than Sylvia’s niece, who came twice and a cousin who visited once. It was Respondent whom she called when Sylvia was hurt or sick, or had a doctor’s appointment. It was Respondent who received the condolence cards from those who had contact with Sylvia near the end of her life, who gave Sylvia’s eulogy and who handled her personal effects.

The relationship mitigated the proposed sanction:

It is clear from the evidence that a close, nurturing, familial relationship existed between Sylvia and Respondent. Sylvia considered Respondent to be her family. Given the unique circumstances of this case, namely the long-term, close relationship between the parties, the care that Respondent provided to Sylvia at the end of her life and the other evidence in mitigation, we conclude that censure is appropriate. Therefore, after consideration of all the circumstances of this case, we affirm the Hearing Board’s factual findings and findings of misconduct and recommend that the Respondent...be censured.

The Administrator had declined to pursue undue influence charges. (Mike Frisch)

September 3, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, September 2, 2011

The Moonlighting Taxman

The New York Appellate Division for the First Judicial Department has publicly censured an attorney employee of the Department of Taxation and Finance for engaging in outside practice without permission and using confidential information that he had access to as an employee for the benefit of a private client.

The attorney was convicted:

Pursuant to his guilty plea entered in Kings County, Criminal Court, respondent was convicted of official misconduct (Penal Law § 195.00[1]), a class A misdemeanor, upon his admission that while employed by the New York State Department of Taxation and Finance (DTF) from July 1988 until February 9, 2007, he engaged in the practice of law without seeking permission and accessed the confidential tax records of a company for use in a client's civil suit. Respondent was sentenced to three years' probation, a $1,000 fine and a $160 surcharge upon his agreement not to work for the State of New York any further.

He claimed to be unaware of the outside practice limitations of his job.

The court described the conduct and mitigation:

In 2004, respondent opened a law office in the Bronx, while employed full-time by the DTF, without seeking authorization to practice law from the Commissioner of Taxation and Finance. His clients that year included the partner of a New York company, whom he represented in a dispute with her partners in an action he brought against the company in Supreme Court, Bronx County. He accessed the department's database, with his client's authorization, to find out where her partners were located and to ensure that they were not moving partnership assets. He also accessed a tax reporting system in order to ascertain whether the partnership filed a tax return and view the addresses listed for it and the "sales tax reporting system," "access[ing] at least three databases" which contained information derived from tax returns. Respondent was aware that he had done something wrong and that his conduct exposed him to disciplinary and criminal action. Respondent admitted that, from 2004 through 2006, he used his computer at DFT to verify addresses of other adverse parties for the purpose of process service.

In mitigation, respondent, who was 46-years-old at the time of the hearing and married with two children, is a recovering alcoholic and substance abuser, who attends Narcotics Anonymous and Alcoholics Anonymous meetings weekly. He has been drug free and sober since 1988. In 1992, while working full-time for DTF, respondent, who was born to an alcoholic family, became the first member of his family to graduate from college. He then attended Fordham Law School at night while continuing to work to support his family, and graduated in May 1998. His decision to begin practicing law was motivated by his wife's loss of employment due to a disability and the expiration of his student loan waiver. His annual salary was in the high $40,000's to low $50,000's, and he was not sure how he would make ends meet. He testified that his supervisors and co-workers at the DTF, some of whom he represented, were aware of his law practice.

(Mike Frisch)

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

A Series Of Petty Thefts

From the September 2011 California Bar Journal:

[An attorney] was suspended for four years, stayed, placed on four years of probation with a two-year actual suspension and until she proves her rehabilitation and she was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. She received credit for a period of interim suspension that began Nov. 20, 2009. The order took effect Feb. 18, 2011.

[The attorney] stipulated to three counts of misconduct following three convictions for misdemeanor shoplifting.

She pleaded no contest to petty theft in 2002 after taking merchandise worth $391 from a Long’s drugstore. In 2005, she took $96 worth of merchandise from a Von’s and pleaded no contest to misdemeanor petty theft with a prior. In 2008, she left a Rite-Aid store with four items in her purse and pleaded no contest to felony petty theft with priors. Pursuant to a plea agreement, the felony was reduced to a misdemeanor and the priors were stricken.

In mitigation, she had no prior record in 20 years of practice and was inactive at the time of the incidents, she cooperated with the bar’s investigation and she had personal problems involving depression and excessive use of alcohol. She underwent treatment for those conditions.

(Mike Frisch)

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

Thursday, September 1, 2011

From Tenacity To Truculence To Disbarment

From the latest California Bar Journal:

[An attorney] was disbarred April 29, 2011, and was ordered to make restitution and comply with rule 9.20 of the California Rules of Court.

The disbarment is the result of a 10-year dispute between [the attorney] and his former longtime secretary, Barbara Dailey, over ownership of a piece of commercial property in Corona. Dailey consistently maintained that she acquired the property as a retirement asset at [his] urging. [He]repeatedly and unsuccessfully sued Dailey, asserting that he owns the property.

Dailey eventually complained to the bar, after spending thousands of dollars defending her right to the property and weathering years of litigation. After the bar filed charges against [him], he engaged in extensive pretrial proceedings, a 24-day trial in which he filed 144 motions. The hearing judge found he committed six acts of misconduct, including moral turpitude for repeatedly lying under oath, and misappropriating more than $88,000 in settlement proceeds from Dailey and an additional $60,000 security deposit from a tenant on the property. He also failed to provide her file, pay her additional funds he owed and he filed an unjust action against Dailey.

[He] appealed the hearing judge’s disbarment recommendation to the State Bar Court review department, which upheld the recommendation and said it was affected by two factors: Numerous trial and appellate courts found that Dailey owns the property, and the hearing judge found that much of [his] testimony lacked credibility because it was “evasive, hostile, and inconsistent and implausible.”

Dailey, who was [his] secretary in the 1960s, acquired the property, a 3.2 acre commercial parcel that included a dilapidated gas station and restaurant. She said she bought the land at [his] urging to secure her retirement. [He] claimed Dailey held the property in trust for his benefit. He managed the property, collected rent and paid expenses until 1998, when his relationship with Dailey deteriorated and she stopped working for him.

She hired a lawyer, asked for copies of contracts and an accounting of all financial matters [the attorney] had handled. [He] said he owned the property.

In seven lawsuits, some filed against Dailey in which Wells acted as her attorney, the courts confirmed Dailey as the property owner. In one case, the court ordered that Dailey should receive $88,029 from the opposing side and a bank transferred more than $118,000 to [the attorney] to satisfy the judgment and his $28,000 fee award. He never gave Dailey any of the funds. Nor did he give her a $60,000 security deposit she was owed.

The review department also found that Wells brought a frivolous lawsuit in his wife's name challenging Dailey’s ownership after the court found that Wells did not own the property.

“[The attorney] engaged in a 10-year vendetta against Dailey,” wrote review Judge Judith Epstein. “He continues the same relentless tactics in this court, filing 144 motions, almost all of which were denied as unmeritorious. . . . Put simply, [he] went beyond tenacity to truculence.”

In mitigation, [the attorney] practiced for 35 years without any discipline prior to 1994, when the court found he misappropriated settlement funds.

(Mike Frisch)

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

Interim Chief Trial Counsel Named

From the September 2011 California Bar Journal:

Jayne Kim, a former State Bar prosecutor and current assistant U.S. Attorney in Los Angeles, was named interim chief trial counsel last month. She said her goal is to achieve a “zero/zero” goal — eliminating the discipline backlog while assuring zero tolerance for attorney misconduct in California. Kim replaces James Towery, who resigned in June after less than a year on the job.

The comment of David Cameron Carr is worth reading. Whether "zero tolerance" is rhetoric or policy, it does ignore the principle that the bar should educate its members as well as punish those who present a danger to the public. Perhaps the comment will trigger some useful debate about the proper role of professional disciplinary regulators.

(Mike Frisch)

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

Judge May Not Honor Vets

A judge may not attend an event honoring veterans that helps to raise funds for such veterans, according to a recent opinion of the Florida Judicial Ethics Advisory Committee.

The question posed:

The inquiring judge has been invited to attend the annual black tie affair of a respected veterans’ organization. The event honors our past and present armed forces, and awards will be given to several individuals who continue to fight for the veteran population, locally, regionally, and nationally. The inquiring judge has been selected to receive a prestigious award for dedication and commitment to our veterans and their families. The event is also a fundraiser, and estimates are that 50-60% of funds generated will assist veterans identified in court as needing assistance.

Worthy event or not:

As with other noble charitable causes, this Committee does not question the value of an event honoring past and present armed forces, veterans and their families, and individuals who continue to fight for veterans. However, such an event does not qualify under the 2008 amendments to the Code as law-related.

Likewise this respected veterans’ organization is devoted to veterans, and so it does not qualify under the 2008 amendments to Canon 4D as being devoted to the law, the legal system, or the administration of justice.

The inquiring judge should decline the invitation.

Any thoughts as to whether this result stems from a crabbed view of judicial ethics? (Mike Frisch)

Typo corrected per Rick Underwood's comment.

September 1, 2011 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Suspension For Class Action Solicitation

The Florida Supreme Court has imposed a suspension of one year with probation for three years on reinstatement in a matter involving solicitation of present and former adult education teachers for a purported class action.

The solicitation letter "contained inaccuracies and statements of fact that induced approximately 50 clients to retain respondent's services." The class action had not yet been certified and the letter stated (contrary to the law) that the court would not recognize the prospective clients' claim if the attorney was not retained.

The court rejected the referee's proposed 90 day suspension in light of the nature of the misconduct and the attorney's record of prior discipline for serious misconduct. (Mike Frisch)

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

False Notarizations Draw Suspension

From the Ohio Supreme Court:

The Supreme Court of Ohio has suspended the license of [a] Strongsville attorney...for six months for improperly notarizing signatures on legal documents on three separate occasions.

In its 6-1 per curiam decision, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [the attorney] engaged in conduct involving fraud, deceit, dishonesty or misrepresentation when he notarized a promissory note, mortgage and quitclaim deed and a land contract, attesting that in each instance he had witnessed the signing of those documents by both the borrower and his wife.

Despite [his] continuing insistence that both the borrower and a person purporting to be his wife had signed the documents in his presence, the Court noted that both the borrower and his wife testified before a disciplinary hearing panel that the wife had not signed any of the documents, and the borrower testified that in each instance he had signed his wife’s name. The Court also noted that after analyzing the documents in question, a forensic handwriting analyst from the state Bureau of Criminal Identification and Investigation testified that the signatures on the respective documents were not those of the borrower’s wife, and that there was “a high degree of certainty” that the wife’s purported  signatures that had been notarized by [the attorney] had in fact been forged by her husband. 

The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.  Justice Paul E. Pfeifer dissented, stating that he would impose a six-month license suspension with all six months stayed as the appropriate sanction.

The attorney also had testified falsesly in a related deposition.

The court's opinion is linked here. (Mike Frisch)

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

Playing Chicken

A Louisiana Hearing Committee has recommended the reinstatement of an attorney disbarred for a misprison of felony conviction. The underlying case involved a custody dispute between Popeye's founder Al Copeland and his ex-wife.

The judge in the custody case was the subject of an FBI investigation. He was trying to "shake down" Mr. Copeland. The misconduct, in part, involved the petitioner's dealings with the FBI.

The hearing committee noted an unusual circumstance. The ex-wife wrote two letters in support of reinstatement notwithstanding her status as a victim of the petitioner's misconduct. (Mike Frisch)

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

What Does Someone Have To Do To Get Disbarred Around Here? Next Installment

The District of Columbia Court of Appeals agreed with its Board on Professional Responsibility that a three-year suspension with fitness, rather than disbarment, was the appropriate sanction for a former Holland & Knight attorney. The court deferred to the board's exercise of discretion notwithstanding a rather shocking pattern of lies and deceit, including lies in the disciplinary investigation and hearing. The court felt that dishonesty in the bar process was not as bad as lying to cover up the misconduct.

The court notes its obligation to defer to the Board's choice of sanction and, within "these settled principles of deferential review" calls the recommendation "unimpeachable." I view that as a rather interesting word choice. The court then cites past cases of lenient treatment of serious dishonesty in support of the result. These cases might well be labeled the Roll Call of Shame. 

Our prior coverage of the case (excerpted below) describes the violations and asks this question: What does someone have to do to get disbarred around here? The question still stands.

The attorney had joined a prominent law firm in 1994 and was made partner in 1995. His practice involved real estate. A firm client retained him to negotiate and prepare an easement relocation agreement between the client and adjacent land owners and others. The attorney started but never completed the work. Rather, he gave the client a forged and falsely notarized document and assured the client (also falsely) that it had been recorded. As a result, the client proceeded to a closing and entered into a construction contract. The attorney falsely advised that he had provided notice to interested parties.

The attorney for an adjacent landowner learned of the construction project and complained to the client. The client could not reach the attorney but contacted another firm partner, who confronted him. The attorney "admitted his actions and attributed them to stress, his use of cocaine and drinking." The problem was cured "at a substantial cost to the law firm." The client did not suffer material injury.

The firm immediately suspended the attorney and later terminated him. The attorney was advised that the firm would report him to Bar Counsel if he did not self-report. When he did not do so, the firm reported him. He responded to the bar complaint and "[m]ost of what he told Bar Counsel was false." He lied about his ongoing cocaine abuse and treatment. He had dropped out of a treatment program by falsely claiming that his father had died. He postponed a meeting with Bar Counsel by falsely claiming that his fictitious nephew had been killed in a traffic acccident.

Does anyone see a pattern here?

The board did, as the attorney had acknowledged "that he had trouble telling the truth." The board also agreed that the attorney had failed to establish any significant mitigation other than a lack of prior discipline. It rejected claims based on ADD, depression and alcohol addiction.

While the attorney admitted cocaine use since college and daily use while at the firm, his work was otherwise excellent. The District of Columbia does not mitigate sanctions based on cocaine addiction and, in any event, the hearing committee had found that substance abuse did not cause the misconduct. The board nonetheless (and wrongly, in my view) concludes that the precedents in the District of Columbia do not require disbarment.

The board cites cases where the Court of Appeals (usually at its urging) declined to impose a full measure of reciprocal discipline on lawyers disbarred in Maryland for serious dishonesty. It finds distinguishable at least two original cases where disbarment was imposed for serious dishonesty absent prior discipline.

If the board is correct, it's a sad commentary of the state of legal ethics in the District. False document, false notarizations, multiple lies to client, severe harm to firm, lies to the disciplinary system, lies to treatment facility. Lies, lies, lies.

I understand that the proposed sanction is not all that different from a disbarment. However, disbarment is a meaningful sanction that identifies the type of behavior that a self-regulating profession must condemn. If an informed public infers that a big-firm lawyer got special treatment, so much the worse. This is a disbarment case.

Another sad day for the District of Columbia Bar. (Mike Frisch)

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

Wednesday, August 31, 2011

Making A Positive Impression

The New York Appellate Division for the Second Judicial Department has imposed a censure of an attorney who was convicted of two driving while impaired offenses.

The court on sanction:

In determining an appropriate measure of discipline to impose, we note that the respondent has successfully participated in alcohol counseling. Moreover, with the exception of a Letter of Caution issued in December 2007 related to his 2006 conviction, the respondent has no prior disciplinary history in 38 years of practice.

Under the totality of circumstances, including the positive impression of the respondent noted by the Special Referee, the respondent is censured for his professional misconduct.

The court censured another attorney for cocaine possession:

In determining an appropriate measure of discipline to impose, we note that the respondent has successfully participated in, and completed, a substance abuse program, tested negative for alcohol or drugs during his participation in same, fully complied with the requests of the Grievance Committee, and successfully completed the terms of his one year conditional discharge. However, we note that the respondent was publicly censured by opinion and order of this Court dated May 8, 2007, as a result of his one year suspension in Connecticut and that, prior to his public censure, the respondent received a Letter of Caution dated March 4, 2003, based upon his involvement in a sexual relationship with a client in a matrimonial action immediately upon the finalization of her divorce, which "raised questions about the independence of [the respondent's] professional judgment during the course [of his] prior representation" and was, at a minimum, "imprudent and unprofessional."

Under the totality of circumstances, including the likelihood that said discipline resulted from the respondent's prolonged substance abuse, and the absence of any specific client harm in the instant case, the respondent is censured for his professional misconduct.

(Mike Frisch)

August 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Man's Car Is His Castle

The Mississippi Court of Appeals has reversed a manslaughter conviction as a result of the trial court's failure to give a requested jury instruction on the so-called Castle Doctrine.

The facts:

On March 8, 2008, a fundraising party was being held at the Performing Arts Building in Southaven, Mississippi. After the party, a crowd gathered in the parking lot and a fist fight ensued. Security attempted to stop the fight but could not. [Defendant] Thomas shot a gun in the air, and the attack stopped. The State and defense each called several witnesses who were in the parking lot on the night of the shooting to testify as to the events that followed. Thomas chose not to testify at trial.

Kenetric Randolph testified for the State. He had attended the party and witnessed Thomas shoot a gun in the air during the fight in the parking lot. Randolph testified that he thought Thomas was shooting at him or the young men standing with him. Randolph testified that Thomas immediately ran and got into his car. Randolph and several other men ran after Thomas and tried to open Thomas’s car doors, but Thomas had locked the doors. Randolph testified that Thomas began to reload his gun, and Randolph and the other men ran to the back of the car. He testified no one was in front of the car. Dexter Harris was to Randolph’s left at the rear of the car. Randolph testified that he then threw a cell phone at the car in an attempt to break the back window. Thomas then rolled down the driver’s side  window and fired several shots from his car. Two of the shots hit Harris in the chest and thigh. Harris subsequently died from his wounds. Thomas then drove off. Randolph testified that Thomas could have fled in the car at any time as nothing was blocking the car’s path.

The court concluded that the Castle instruction was appropriate along with a self-defense instruction. (Mike Frisch)

August 31, 2011 in Law & Society | Permalink | Comments (0) | TrackBack (0)

Short Suspension For Pattern Of Misconduct

The Indiana Supreme Court approved an agreed disposition of a 90 day suspension with all but 30 days stayed, followed by probation for two years. The court described the circumstances:

 Count 1. Respondent admits to a pattern of misconduct from 2003 through 2004 involving his handling of the funds of 42 clients, including failure to keep adequate records, having insufficient funds to cover checks written on his attorney trust account, commingling of personal and client funds, failure to hold client funds in trust, and using the funds of some clients to pay the filing fees of other clients. In responding to a grievance, he asserted that he had rectified the situation, but he had not. Count 2. Respondent admits to a pattern of similar misconduct during 2007 involving his handling of client funds.

 Count 2. Respondent admits to a pattern of similar misconduct during 2007 involving his handling of client funds

Other facts. The parties cite the following facts in aggravation: (1) Respondent engaged in a repeated and prolonged pattern of misconduct that put client funds at risk; (2) Respondent failed to take action to correct his trust account mismanagement for years after becoming aware of it, taking corrective action only after the Commission began a thorough investigation in 2010; (3) Respondent's pattern of misconduct demonstrates a gross disregard for protecting his client's property. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; and (2) Respondent's misconduct was not due to a dishonest or selfish motive.

The court noted that no client funds were lost as a result of the above-described misconduct. (Mike Frisch)

August 31, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

One Bounced Check

A Massachusetts attorney has been suspended for 18 months for the following misconduct:

In August 2009, the respondent wrote a check from his IOLTA account to pay a personal obligation. The respondent knew when he wrote the check that he did not have sufficient funds in the IOLTA account to fund the check and that the bank likely would not honor the check. The check was dishonored due to insufficient funds.

Bar counsel contacted the respondent in August 2009 and requested account records and an explanation for the dishonored check. The respondent received two extensions to reply, then failed to send in the requested information. As a consequence, he was administratively suspended by the Supreme Judicial Court on January 13, 2010 for failure to cooperate with bar counsel. He has not been reinstated and has failed to close his IOLTA account or otherwise comply with the order of administrative suspension.

The respondent’s conduct in writing a check from his IOLTA account to pay a personal obligation violated Mass. R. Prof. C. 1.15(e)(4). The respondent’s conduct in writing a check that he knew would be dishonored due to insufficient funds violated Mass. R. Prof. C. 8.4(c) and (h). The respondent’s conduct in intentionally failing without good cause to cooperate with bar counsel’s investigation violated Mass. R. Prof. C. 8.1(b) and 8.4(g). The respondent’s knowing failure to comply with the order of administrative suspension and the provisions of S.J.C. Rule 4:01, § 17, violated Mass. R. Prof. C. 8.4(d).

A lot of trouble for bouncing one check. Never write an escrow check to pay a persoonal obligation. If an escrow check bounces, fully cooperate with the (inevitable) Bar investigation. (Mike Frisch)

August 31, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 30, 2011

NOBC Case Of The Month

The National Organization of Bar Counsel has a case of the month that is summarized by the incomparable Jim Grogan of the Illinois Administrator's office:


Case of the Month

A Murderer Loose In Apache County

Topic:
Both the dismissal of a criminal case with prejudice and the imposition of a lawyer disciplinary sanction can result when a prosecutor violates the no-contact rule with a represented defendant.

Apache County is big. Having a total area of over 11,200 square miles, Apache is the sixth largest county in the United States. Located in Northeastern Arizona, it is the longest county in the country, 211 miles from the Utah border to just south of Alpine. Two-thirds of the population, and over one-half of the land area, is comprised of the Navajo Nation, the largest Native American tribe. According to the 2010 census, 71,518 people live in Apache County, of who almost 77% are Native American. A high percentage of its land is comprised of Indian reservations, more so than any where else in the country. More community residents speak Navajo than English. Apache County is stunningly beautiful. Notwithstanding its extraordinary scenery, however, most Apache County residents live in poverty. The county's per-capita income makes it one of the poorest places to live in the United States. 

St. Johns, with a population of approximately 3,500, is the county seat. William “Stoney” McCarragher, 72, owned a ranch just outside St. Johns. He was known to carry large amounts of cash. McCarragher often employed young people to do work around his ranch. At some point, he hired a teenager named William Inmon. Inmon murdered McCarragher in 2007. The murder initially went unsolved. Two years later, a 60-year Vietnam veteran named Daniel “Hummer Dan” Achten was murdered and his body buried in a shallow grave near his home in St. Johns. Inmon had murdered him too. At some point after Achten’s killing, Inmon was travelling by car with a 16-year-old acquaintance of his named Ricky Flores. According to Inmon, the two argued about Flores’ drug use. Inmon drove Flores to a rural location outside of town where they exited the vehicle. Inmon then chased Flores down, shot him to death, and buried the body in a shallow grave.  

 Eventually, Inmon was implicated in all three murders. According to authorities, his overwhelming motive was that he wanted to rid society of less than desirable people, although a desire for guns and money also sparked the crimes.  Inmon told police that he would have continued his vigilante killing spree had he not been caught. Inmon agreed to plead guilty to the deaths if prosecutors would not seek the death penalty. Prosecutors agreed. At all times relevant to the Inmon St. Johns murder inquiries, Michael B. Whiting was the elected Apache County Attorney and Martin E. Brannan served as his Chief Deputy. 

As to each of the three murders, Inmon hinted that he had at least one accomplice. After further investigation, prosecutors alleged that Inmon had killed Flores at the suggestion of the father of Flores’ girlfriend. Both the father and Inmon’s girlfriend were charged with murder in Flores’ death. The mother of Flores’ girlfriend also faced charges. In 2009, the Apache County Sheriff’s Office arrested a 22-year-old friend of Inmon named Joseph Douglas Roberts. Roberts was charged with first degree murder, conspiracy, theft of a means of transportation, mutilating a human body, concealment of a dead body, tampering with physical evidence, and hindering prosecution. Prosecutors claimed that Roberts helped Inmon shoot and kill McCarragher and also helped Inmon dispose of Achten’s body.

Roberts hired a lawyer to defend him. At some point, the prosecutors formulated a plea offer and transmitted it to defense counsel, who was informed that the proposal would expire on the day of Roberts’ preliminary hearing. The day before the preliminary hearing, an Apache County Attorney’s Office investigator consulted with Whiting and Brannan and informed them that he was concerned that defense counsel had never communicated the plea offer to Roberts. Whiting and Brannan authorized two office investigators, Brian Hounshell  and Jerry Jaramillo, to contact Roberts in jail and communicate the plea offer directly to him. When asked if defense counsel would need to be present, the prosecutors informed the investigator that defense counsel did not need to be present, so long as the investigators provided Roberts with Miranda warnings. According to a report published in the Arizona Republic, Whiting claimed that, in allowing the investigators to make the contact with Roberts, he was merely acceding to the legal conclusions reached by Brannan, who believed that contacting the defendant without notice to the defendant’s lawyer would be permissible. “If the chief deputy says it's OK, I guess it's OK,” Whiting said. “I didn't go research it.” Apparently, Brannan erroneously interpreted a then-recent United States Supreme Court decision in Montejo v. Louisiana, 556 US ___ (May 26, 2009).

The Apache County Attorney’s Office investigators met with Roberts without his counsel present, communicated the plea offer to him, and made several statements to Roberts that could be considered an attempt to pressure him into ultimately accepting the plea. Specifically, they noted that Roberts was facing the death penalty, discussed the fact that Roberts’ wife had recently lost a child through miscarriage, and noted that Roberts’ wife could be charged with felony crimes unless he agreed to waive his legal rights. Roberts said nothing incriminating during his eight-minute jailhouse conversation with the investigators. 

Upon subsequently learning of the contact, Robert’s defense lawyer filed a motion to dismiss the criminal charges. Superior Court Judge Donna J. Grimsley  initially removed the Apache County Attorney’s Office from the case for violating Rule 4.2, but then ultimately determined that the misconduct was of such a grave and serious nature that it had deprived Roberts of his Sixth Amendment guarantees. The court dismissed the criminal case against Roberts with prejudice and ordered him released.  Judge Grimsley called the behavior of the Apache County Attorney's Office “outrageous” and “unethical” and said that the defendants’ trust in the judicial system was betrayed. Specifically, she ruled that, “The court is of the view that the flagrant and manipulative subversion of the Sixth Amendment constitutional rights in this case trumps all other considerations and that dismissal is the only remedy that will preserve the defendant's inviolable constitutional right…"

Aggravating an already bad situation, Whiting’s office issued a press release immediately after the dismissal. The release, emblazoned with a caption reading, “JUDGE ORDERS RELEASE OF MURDER DEFENDANT”, described the judge’s actions as a “murder dismissal”, and provided, in relevant part, that:

 The Apache County Attorney’s Office is surprised and deeply concerned by Judge Donna Grimsley’s decision to release a defendant charged with murder back into the community. Judge Grimsley ordered Joseph Roberts released at 5:00 p.m. on January 19, 2011. Judge Grimsley’s order does not cite a case, statute or legal rule allowing her to release a person accused of murder. Grimsley’s order contains political statements, personal attacks, and quotes from the record entirely out of context…County Attorney Michael Whiting said “like the rest of the county we are shocked and left wondering why a judge would do such a thing without referencing any legal authority to do so.” Whiting stated, “Judge Grimsley’s decision to release the defendant, who was being held on first degree murder, has re-victimized the victims. Also, Whiting stated “these actions may place the citizens of Apache County and surrounding areas in danger.” Finally, County Attorney Whiting went on to say, “it is frustrating when a court cares more about a defendant’s rights than victims’ rights, this is a travesty of justice in the 1st degree.”

 Formal disciplinary charges were lodged against the two prosecutors by the State Bar of Arizona. Thereafter, the Presiding Disciplinary Judge approved an agreement for Discipline by Consent and Whiting and Brannan were reprimanded. In entering into the agreement, the prosecutors conceded that they had violated Rule 4.2, but that their violation was negligent. Whiting also agreed that his issuance of the press release in response to the dismissal violated Arizona Rule 41(c) because he did not maintain the respect due courts of justice and judicial officers.

The case is In the Matter of Michael B. Whiting and Martin E. Brannan, PDJ-2011-9006 (Arizona June 30, 2011).

(Mike Frisch)

August 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Charity Begins At Home

The New York Appellate Division for the Fourth Judicial Department has disbarred an attorney notwithstanding an unblemished record in 30 years of practice. The misconduct occurred in connection with his dealings with an incapacitated person ("IP"):

Respondent admits that, in July 2009, he was appointed as guardian for the IP, who was a plaintiff in a pending personal injury action. Respondent further admits that, in August 2009, the IP received settlement funds in an amount in excess of $5 million and, on numerous occasions thereafter, Supreme Court instructed respondent to retain independent counsel to draft a will on behalf of the IP.

Respondent admits that, in contravention of those instructions, he prepared a will for the IP, which was executed in March 2010, appointing himself as sole executor of the estate and designating respondent’s wife, in her maiden name, as sole beneficiary of the will. Respondent further admits that, prior to the execution of the will, the IP did not receive advice from independent counsel and was not evaluated to determine if she possessed testamentary capacity. In addition, respondent admits that two members of his immediate family served as subscribing witnesses to the will.

The court rejected as incredible the attorney's suggestion that his goal was to donate the inherited funds to charity. (Mike Frisch)

August 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lien Times

An attorney with a record of prior discipline has been suspended for three years by the Kentucky Supreme Court.

The most serious misconduct in the present case involved the attorney's conduct in a divorce matter. The husband and wife had resided in a house that was the wife's premarital property. The husband (the attorney's client) entered into a post-nuptial agreement that disclaimed any interest in the property.

The attorney thereafter filed a notice of lien against the property for unpaid legal fees. The attorney refused to remove the lien until losing an arbitration over the matter. The wife was unable to refinance her home due to the lien. (Mike Frisch)

August 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Worth Litigating

The Pennsylvania Supreme Court accepted an agreed four year suspension of an attorney for misconduct involving shortfalls in his escrow account.

The petition approved by the Disciplinary Board noted that factors of age and health justified a sanction less than disbarment. The attorney suffers from "excruciating pain" and depression as a result of an accident that led to an amputation of a portion of one  leg.

While there is a dispute over the causal connection between his physical condition and the misconduct (which started prior to the accident), the suspension with fitness was deemed a sufficient sanction.  The attorney avoids the stigma of disbarment and the bar avoids a drawn out proceeding over whether one more year should be added to the sanction.

This makes perfect sense to me.

D.C., are you paying attention? (Mike Frisch)

August 30, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

No Reinstatement for Attorney Who Sold Vote

The California State Bar Court agreed with a hearing officer that an attorney had not shown that reinstatement was appropriate.

The court described the misconduct:

After being admitted to practice law in California in 1992, [the attorney] worked for ten years in the Public Defender’s Office in Carson, California. Her final assignment was with the Public Integrity Assurance Section where she prosecuted those accused of public corruption. In 1999, [she] was elected to the city council for a four-year term. During this time, [she] lived with her husband, an attorney who was abusing alcohol, and their two small children.

Shortly after her election, [the attorney] became aware of corruption among council members but failed to take any action or report it. Then in 2001, she was asked to join two other council members in a conspiracy to sell their three-vote majority to approve a new waste-hauling contract. [She] was promised $100,000 in $5,000 installments. She was hesitant about the plan because she knew it was wrong. So she discussed it with her husband who, to her surprise, pressured her to participate. [She] agreed to the conspiracy and on February 19, 2002, cast her illegal vote. A few months later, law enforcement discovered her involvement when she talked about the conspiracy with another council member who was wearing a "wire." By this time, [she] had received two $5,000 installments.

The attorney pleaded guilty to conspiracy to interfere with commerce by extortion. She resigned from the Bar with charges pending in 2003.

The court found that the attorney had made "substantial progress toward rehabilitation" but that insufficient time had passed to warrant reinstatement. (Mike Frisch)

August 29, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)