September 24, 2011
More Than A Say So
The Louisiana Supreme Court has imposed a suspension of a year and a day of an attorney as a result of two driving under the influence arrests. In the Louisiana case, the charges (and related drug possession charges) were eventually dismissed. In an Illinois case, he failed to appear and there is a bench warrant.
Notably, the hearing committee had found that the attorney had been alcohol and drug free for three years. The court agreed with the board that the attorney's claim of sobriety was insufficient:
Although the hearing committee found respondent has not used alcohol or
illegal drugs since he entered the 90-day treatment program at Home of Grace, we
agree with the board that respondent has provided no evidence, other than his own
testimony, that this is, in fact, true. He is not active in Alcoholics Anonymous or a
similar support group and does not participate in the Lawyers Assistance Program.
Furthermore, he is not currently being tested for alcohol and drug use.
The sanction will require him to prove fitness at a hearing.
In Louisiana it appears that, in order to mitigate sanction for addiction-related misconduct, you have to be in the compliance with bar's treatment program. (Mike Frisch)
September 23, 2011
"Inherent, Obvious, and Blatant" Conflict
An Arkansas committee has imposed a suspension of 24 months of an attorney who had engaged in conduct that included failure to provide competent and dilgent representation to a client he had been retained by to defend a civil claim.
Matters got worse when the client hired new counsel, who wrote to the attorney advising him of a legal malpractice claim. Notwithstanding that arrestion, the attorney continued to represent the client in a bankruptcy matter: an "inherent, obvious, and blatant conflict [of interest...]." There was no waiver of the conflict. (Mike Frisch)
Black Porsche To Big House
The Providence (Rhode Island) Journal had this description of a once-prominent attorney:
Robert S. Ciresi once loomed large over the North Providence landscape, tooling around town in a $49,000 black Porsche and helping pull the strings of town government for legendary Mayor Salvatore Mancini.
Now add suspended in the wake of his federal conviction for bribery and related offenses. He is incarcerated while his appeal of the conviction is pending. (Mike Frisch)
September 22, 2011
Bar Can Inquire Into Bankrupt Applicant's Finances
An applicant for admission to the Oregon Bar disclosed past due debts and, when the bar admission authorities sought further information, declared bankruptcy and contended that the bar no longer had the authority to inquire into his finances. On appeal, he contended that the court had not previously denied admission solely for issues of financial irresponsibility.
It may not shock the reader that the Oregon Supreme Court rejected the argument and denied admission. The court noted that it was the applicant's failure to cooperate with the inquiry, not his declaration of bankruptcy, that led to its decision. (Mike Frisch)
Harm To Clients Draws Suspension
From the Ohio Supreme Court:
The Supreme Court of Ohio today indefinitely suspended the law license of [a] Cleveland attorney... for professional misconduct in her dealings with two clients, and for failure to cooperate with disciplinary authorities during the investigation of the grievances filed against her by those clients.
In a 7-0 per curiam decision, the Court agreed with findings by the Board of Commissioners on Grievances & Discipline that in one case [the attorney] made improper use of her law office trust account. This included using client funds on deposit in that account to advance $1,000 to another client she was representing, failing to reconcile or maintain accurate records for the trust account, and overdrawing the account. In a second case, the board found that [she] agreed to represent a client in the appeal of a criminal conviction, but despite being granted multiple continuances, she never filed a brief in the case, resulting in the dismissal of her client’s appeal.
After the clients involved in both cases filed grievances with disciplinary authorities, [she] failed to file an answer to either complaint or respond to repeated demands that she appear and produce documents related to the clients’ cases. The board ultimately conducted default disciplinary proceedings on the complaints.
The Court adopted the board’s conclusion that [the attorney] violated the state attorney discipline rule that prohibits an attorney from providing financial assistance to a client other than court or litigation costs. The Court also affirmed the board’s findings that Ranke failed to maintain accurate records of client funds on deposit in her trust account, engaged in conduct prejudicial to the administration of justice, and engaged in conduct that reflects adversely on her fitness to practice law.
In imposing the board’s recommended sanction of an indefinite suspension, the Court noted the aggravating factors that [she] was previously reprimanded for neglect of an entrusted legal matter, failed to cooperate with the investigation of her current misconduct, and caused harm to her clients.
The opinion is linked here. (Mike Frisch)
Theory Of Evolution
The Maryland Court of Appeals has held that circuit court judge who was appointed and then elected to office must retire at 70, even if the term of election extends beyond his seventieth birthday. The judge had sued in federal court, claiming an equal protection violation.
The court found that the provision at issue mandated retirement at the set age regardless of the results of election. According to the court, the convention that adopted the retirement provision "argued that the age limit ensured timely adoption of modernization in judicial administration, in trial techniques, or in evolution of the law itself because it required older sitting judges to step aside for younger men. " And women, too, I would add.
BNET had this coverage.
Disclosure: the judge was my first boss and mentor at the Federal Public Defender. A hell of a lawyer. (Mike Frisch)
September 21, 2011
Suspended Notwithstanding Sympathy
An attorney who had practiced for approximately 60 years was suspended for 2 1/2 years by the Oklahoma Supreme Court.
The attorney had "provided services to indigent clients and championed unpopular causes" throughout his long career. His sole prior discipline was a three-month suspension for failure to file accountings in an estate matter.
Here, the attorney failed to communicate with clients, made misrepresentations to "clients, court clerk personnel, and th[e] Court," provided incompetent services and failed to respond. While the court had some sympathy for him, nonetheless:
While we are mindful of the respondent's current health issues and of the past important contributions the respondent has made to unpopular causes and clients, to his community, to this nation with his military service, and to the bench and bar, we cannot ignore the clear and convincing evidence of his current unfitness to practice law. [He] has repeatedly failed competently and diligently to represent his clients. He has shown contempt for the Bar and for this Court by his refusal to respond to disciplinary inquiries, by making at least one deceptive filing regarding the state of a record on appeal, and by alleging, without a scintilla of evidence, that the proceedings against him have been tainted by prejudice.
A sad likely end to a long career. (Mike Frisch)
Discipline Inspires "Walk Through Sobriety"
The Oklahoma Supreme Court has reinstated an attorney who had been suspended for misconduct that inckluded instances of failing to respond to bar complaints. The court found that he had recovered from the alcohol and drug abuse that caused the ethical lapses:
[Petitioner] testified at his reinstatement hearing that he was suspended from the practice of law for his addiction to methamphetamine and alcohol and the consequences which arose from it. His disciplinary hearing was originally set because of other misconduct, the most frequent violation being his failure to respond to the Bar's allegations. However, he stated his addictions to methamphetamine and alcohol were not mentioned in the allegations, and he told the trial panel at his disciplinary hearing "that I was a drug addict addicted to methamphetamine and I was an alcoholic." He testified he did not know whether the Bar would have been otherwise aware of these addictions. He said he made it known because it was a fact, and he had an affirmative duty to report it.
Petitioner described how his addiction to alcohol destroyed his professional and family life. It destroyed him "economically, mentally, spiritually and physically as well." He discussed having cirrhosis and hepatitis, being homeless, and going long periods of time without seeing his children. He stated his addictions created quite a "wreckage" in his personal life, involving the things "nearest and dearest" to him. He testified his professional life was even more neglected.
However, he stated he "reached bottom" and cried out for help by calling his mother, who called his ex-wife, who called his father. His ex-wife took him to his father's home. He stayed with his father who nursed him back to health from a liver condition which, based on a series of blood tests, would have soon required him to be hospitalized. He started spending time alone, removed from everything.
He credits this change with starting him down the right path. He admitted to his father and mother that his illness was caused by his methamphetamine addiction. He told his ex-wife who had custody of his two sons, that "I'm the person on the street you point at and tell your kids to stay away from." He stated it was a "real eye opener" for him and occurred a couple of months before his disciplinary hearing.
He also credits "the event of" his disciplinary hearing "[f]or the genesis of my walk through sobriety." He explained he was still very physically ill at the time and was experiencing mental and emotional discomfort, as well. He recalled talking to his older son who rode with him to the hearing. His son asked him if he would get to keep his license. Petitioner answered, "'[i]f there's any justice in the world, son, no. No. We're going to go down and we're going to tell them the truth . . .' Professionally, I couldn't practice. I said 'I owe an obligation to my profession, to my clients, to the bar association and most importantly to you, your brother and myself, to look the world in the eye and tell them the truth.'" He described that event as the "opening of recovery for me . . . ." He stated he had been so low that complete candor and honesty with the world was palatable to him. As he had heard a friend say frequently at AA meetings, "When the pain of changing or the fear of changing is less than the fear of the pain of staying the same, then people will be open . . . to change." He chose honesty and to look people "in the eye" and tell them what's going on in his world and what type of person he is. He'll accept the consequences, which is the legacy he wants for his children, that "regardless of the mistakes you make, look the rest of the world in the eye and accept your consequences and I'll respect you as a man."
The court found the attorney better qualified to practice than he was when he was admitted to the bar. (Mike Frisch)
Conspiracy Draws Permanent Disbarment
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio has permanently revoked the law license of Cleveland attorney Bruce A. Zaccagnini for professional misconduct arising from his involvement in a conspiracy with his law partners and others through which they unlawfully obtained lucrative contracts to provide appraisals of commercial real estate for the Cuyahoga County Auditor’s Office.
Zaccagnini, whose license has been under an interim suspension since his 2010 conviction in federal court on a felony count of conspiracy, is currently serving a 60-month term of incarceration at the Morgantown Federal Correctional Facility. He was also ordered to pay restitution of more than $3.2 million to Cuyahoga County.
In a 7-0 per curiam decision announced today, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that between 1998 and 2008, Zaccagnini and others obtained commercial property appraisal contracts totaling more than $21 million from the Cuyahoga County Auditor. From the proceeds of those contracts, the conspirators and companies they controlled paid kickbacks of more than $1.4 million to two employees of the auditor’s office, and collected fees totaling more than $9 million, an amount that exceeded the value of the services provided to the county.
The Court affirmed the board’s conclusions that Zaccagnini’s conduct violated the state attorney discipline rules that prohibit a lawyer from engaging in criminal conduct involving moral turpitude; conduct involving fraud, deceit, dishonesty or misrepresentation; conduct prejudicial to the administration of justice; and conduct that adversely reflects on a lawyer’s fitness to practice law.
In adopting the board’s recommended sanction of permanent disbarment, the Court noted that Zaccagnini‘s unethical conduct had “lasted approximately ten years, victimized every taxpayer in Cuyahoga County and resulted in a restitution order of $3,215,845.” The Court agreed with the board’s determination that Zaccagnini had engaged in a “widespread pattern of criminal misconduct and corruption that resulted in great harm to the residents of Cuyahoga County and all county government.”
Incompetent Service Makes Fee Excessive
The Maryland Court of Appeals has imposed an indefinite suspension of not less than six months of an attorney for misconduct in the operation of his IOLTA account and client-related misconduct.
In one matter where the court affirmed findings of incompetent representation, the court found the fee for services was unreasonable as a result and thus violated Rule 1.5: "In light of [the trial judge's] findings concerning Respondent's lack of competence and diligence in representing [the client] and the result obtained, it was not unreasonable for [the trial judge] also to find that the $2500 fee became excessive."
Respondent did not diligently pursue his clients’ cases; he did not respond to his clients’ repeated requests for information about the status of their cases; he blamed his delay on his alleged clients’ failure to supply certain documentation rather than on his own idleness; and he did not respond to Bar Counsel’s inquiries. We recognize Respondent’s MS as a mitigating factor for his unresponsiveness towards Bar Counsel, though it does not altogether excuse his inaction. (Mike Frisch)
Respondent did not diligently pursue his clients’ cases; he did not respond to his clients’ repeated requests for information about the status of their cases; he blamed his delay on his alleged clients’ failure to supply certain documentation rather than on his own idleness; and he did not respond to Bar Counsel’s inquiries. We recognize Respondent’s MS as a mitigating factor for his unresponsiveness towards Bar Counsel, though it does not altogether excuse his inaction.
September 20, 2011
Corporate Law Compliance Scam!
Posted by Jeff Lipshaw
I'm a pretty sophisticated guy, I like to think, but even I was taken aback by a piece of marketing junk mail today. I don't practice law very much, but I have a Massachusetts professional corporation, which means that I get a lot of stuff in the mail that goes straight into the wastebasket. This came in a green letter-sized envelope from an outfit called "Compliance Services" on Commercial Street in Boston. It does say "THIS IS NOT A GOVERNMENT DOCUMENT" but in larger font it has the usual scammy statements like IMPORTANT and TIME SENSITIVE. I wasn't quite sure if it was the annual report I'm required to file, and I was in a hurry so I opened it.
Inside is a document that looks just like a government form (like a required annual report) with the following:
Submit the Annual Minutes Requirement Statement (CS FORM MIN-MA11-1) together with payment for the preparation of documents to satisfy the annual minutes requirement for your corporation. Submit a check for $125.00 payable to [Official Sounding Name] and mail to: [Official Sounding Name, etc.]
What are you doing? You are paying some nudnik $125 to write up the usual form annual meeting minutes. Not quite like the "grandson's been in an accident scam," but close. Warn your clients.
Ex-Adjunct Professor Disbarred
The Maryland Court of Appeals has disbarred on consent an attorney arrested in a Florida online predator sting operation.
The Washington Post reported on attorney's arrest in March 2011 and described his background:
Lieberman is listed as a principal at the District law firm McCarthy, Sweeney & Hathaway. According to his profile on the company Web site, he has worked at the firm since 1999 and his specialty is government contract litigation. He worked previously as a deputy inspector general for the Department of Defense and for the U.S. Senate Appropriations Committee.
As an adjunct professor at the George Washington University Law School, he taught courses on advocacy. A university spokeswoman confirmed that Lieberman previously served as a part-time instructor. "He was last employed by GW in fall 2010."
NewsChief.com reported on his August 2011 sentencing. (Mike Frisch)
Cause Of Misconduct: Airbag
The Wisconsin Supreme Court has imposed a one-year suspension as reciprocal discipline of an attorney convicted of an offense and suspended in California.
On March 23, 2008, Attorney...was driving his car when he collided with another car. Both vehicles were damaged. Attorney...remained at the accident scene for a few minutes, and then walked away leaving the scene and abandoning his car. On March 24, 2008, Attorney...went to a police station and reported that his car had been stolen. That same day he reported to his insurance company that his car had been stolen and a claim was initiated.
The police department investigated the accident and identified Attorney...as the owner of the car involved in the hit-and-run accident. On May 30, 2008, Attorney...'s counsel wrote to the insurance company saying Attorney...was withdrawing his theft claim and would hold the insurance company harmless.
On April 28, 2009, Attorney...entered an initial guilty plea to insurance fraud, a felony involving moral turpitude. On December 8, 2009, the charge was reduced to a misdemeanor and Attorney...entered a final plea.
The attorney's story:
Attorney...maintains that he did not recall being involved in an auto accident at the time he initiated the insurance claim that led to his conviction. He asserts he suffered a concussion/brain trauma caused by airbag deployment during the automobile collision which gave rise to the subsequent charge of knowingly providing false information in support of an insurance claim. Attorney...says after his memory resurfaced in the weeks following the accident, he formally withdrew his insurance claim, and he expresses deep remorse for the entire incident.
California had imposed a two-year suspension with one year stayed. (Mike Frisch)
The Rest Of The Story: Permanent Disbarment
From the web page of the Ohio Supreme Court is a case in which an attorney "scammed his own clients and exploited dozens of current and former clients, office staff, and his own daughter..."
The court's summary:
The Supreme Court of Ohio has permanently revoked the law license of [a] Cincinnati attorney...for professional misconduct arising from his involvement in a criminal conspiracy with a physician and another person through which [the attorney] obtained hundreds of prescriptions for the pain-killing drugs Percodan, Percocet and OxyContin by deception between August 2003 and January 2007.
[The attorney], whose license has been under an indefinite suspension since 2008 for previous violations of state attorney discipline rules in his dealings with multiple clients, was convicted in 2009 on a federal felony count of conspiracy to obtain Schedule II controlled substances by deception. He was sentenced to 24 months’ incarceration and other sanctions
In a 7-0 per curiam decision announced today, the Court adopted findings by the Board of Commissioners on Grievances & Discipline that [his] conduct in connection with the drug conspiracy violated, among others, the state attorney discipline rules that prohibit a lawyer from engaging in criminal conduct involving moral turpitude; conduct involving fraud, deceit, dishonesty or misrepresentation; conduct prejudicial to the administration of justice; conduct that adversely reflects on a lawyer’s fitness to practice law; accepting employment if the lawyer’s professional judgment will be affected by the lawyer’s financial and personal interests; counseling a client in conduct the lawyer knows to be illegal; and knowingly engaging in illegal conduct.
In setting the sanction for [his] most recent misconduct, the Court rejected the disciplinary board’s recommendation of a second consecutive indefinite suspension and instead voted unanimously in favor of disbarment.
In its opinion, the Court acknowledged that when it imposed an indefinite license suspension rather than disbarment as the sanction in [his] 2008 discipline case, it took note that his chemical dependence was a significant contributing factor in the misconduct charged in that case. The Court noted, however, that it was not then aware of [his] involvement in a 3½ year criminal conspiracy during which he provided legal services to the physician with whom he was conspiring in exchange for drugs, involved members of his law office staff and former clients in filling falsified prescriptions, and fraudulently attempted to obtain $50,000 from his physician co-conspirator, purportedly to bribe law enforcement officials that [he] claimed were investigating the physician.
The Court concluded that: “Respondent could have been found unfit to continue to practice law in 2008. Had this court known of the full extent of respondent’s abuse of the legal system, of his deception, and of his criminal enterprise in 2008, the court likely would have disbarred him at that time. While we are sensitive to the respondent’s struggles with chemical dependency, this elaborate and felonious conspiracy to obtain prescription narcotics by exploiting current and former clients, staff, and family goes far beyond simple drug addiction. Respondent intentionally deceived clients, family, office staff, fellow attorneys, and judges alike. Having weighed the aggravating and mitigating factors in this case as found by the board and having considered the sanctions previously imposed for comparable conduct, we reject the board’s recommendation. Accordingly, we permanently disbar [the attorney] from the practice of law in Ohio.”
The Court’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Robert R. Cupp and Yvette McGee Brown. Chief Justice Maureen O’connor and Justice Judith Ann Lanzinger concurred in judgment only.
The opinion is linked here.
The Cincinnatti Enquirer.com had this 1988 profile of the attorney. The profile reports that he billed himself as the "junkyard dog of justice" and had a busy criminal practice. (Mike Frisch)
September 19, 2011
"Intimate Contact" With Kwame Kilpatrick Draws Proposed Censure
A District Of Columbia Hearing Committee has approved the negotiated sanction of a public censure in a matter in which the attorney had been appointed by the United States District Court for the Eastern District of Micgigan to serve as the monitor of two consent judgments in United States v. City of Detroit.
The consent reflects that "the Court interviewed Respondent to make sure she was conflict-free and that she understood the need to remain neutral and independent of the parties." She acted as monitor for six years.
The problem involved her "undisclosed and personal communications with then Detroit Mayor Kwame Kilpatrick. In early 2004, Respondent had intimate contact with then Mayor Kilpatrick." The attorney resigned when confronted by the court with the information about the contacts.
The attorney agreed that her conduct was prejudicial to the administration of justice.
As always, we will hold our breath and see if the consent passes muster with the D.C.Court of Appeals. The hearing committee concedes that there are no prior D.C. cases with comparable facts. The one case they chiefly rely on is from 1977 and clearly involves worse facts if you accept (as is stipulated) that the attorney did not alter any offical act because of the relationship.
Under the D.C. consent rule, the hearing committee report goes directly to the court. The court can adopt it or seek the views of the Board on Professional Responsibility.
If the court sends the proposed disposition to the board, I can state with a high degree of confidence that the board will have concerns. It always does.
The committee's report can be found at this link. The attorney is Sheryl L. Robinson Wood.
Former Mayor Kilpatrick's conduct resulted in five Michigan attorneys getting prosecuted for ethics violations. This is the first D.C. lawyer added to his list. When it comes to getting lawyers in ethical hot water, Mr. Kilpatrick may go down in history as the Richard Nixon of mayors.
The Detroit Free Press had this coverage. (Mike Frisch)
Consent To Disbarment Motion For Tax Shelter Conviction
A former Jenkins & Gilcrist attorney and certified public accountant convicted of a series of offenses relating to illegal tax shelters has sought to consent to disbarment in Illinois. The motion for consent disbarment is pending before the Illinois Supreme Court. According to the motion, sentencing is set for October 14.
The ABA Journal had this coverage of the jury verdict. (Mike Frisch)
September 18, 2011
Five Years On
We began this blog five years ago today.
Speaking for myself, my goal in undertaking this endeavor was to bring light to the often shadowy world of lawyer discipline. I think that goal has in the main been achieved, as scores of bar discipline cases that might otherwise have gone unnoticed have been posted here and drawn a wider audience.
Some were cases of significance in better understanding and appreciating how discipline does (or does not) work. Some addressed issues of rule interpretation that were of interest to the profession and the clients it serves. Many have simply (or not so simply) reinforced the eternal truth that none of us are perfect. Some are just terminally strange and invoke wonder in the wide array of things that imperfect humans are capable of.
One contribution I hoped to have made is to bring some understanding to the role and mind set of the disciplinary counsel. As I spent nearly 18 years of my professional life serving as a bar prosecutor, it is natural for me to view the role of bar counsel as an important and honorable thing to do with one's professional life.
If the job is done properly, many of your state bar colleagues will certainly view you with, at best, fear and distrust. At worst, loathing. Your phone calls do get returned and, if they don't, you can file charges.
If you take your job seriously, you come into the office every day trying to figure out which case assigned to you presents the greatest urgency in terms of protecting the public from an unfit attorney. You try to move that case forward. Often, the process of moving forward is painfully slow. When you are prosecuting a lawyer for neglect, you appreciate the irony of a hearing committee report that is several years overdue.
I once tried a bar complaint that involved, inter alia, charges that an attorney had appeared late for court. One of my hearing committee members showed up 45 minutes late. While things like that can happen in D.C. traffic, it was pretty amusing when that member jumped all over the respondent for tardiness.
You don't come in every day hoping that some lawyer will mess up and that the case will be assigned to you. Honestly, you don't (even if members of your state bar feel otherwise).
The dedicated and diligent bar counsel will inevitably encounter frustration at the role that bar politics plays in the process. Many of the best chief bar prosecutors end up fired or burned out. In my view, if the organized bar largely controls the disciplinary process, there is a high degree of likelihood that the process is deeply flawed.
Frisch's rule number one: a jurisdiction's highest court should take the responsibility to appoint the bar counsel, who should serve at the court's pleasure.
If there was one thing I would fix in the District of Columbia, this would be it.
The Maryland Court of Appeals appoints Bar Counsel based on the recommendation of the Attorney Grievance Commission. The result has been stability and competence. During the period in which Maryland has had two Bar Counsel, the District of Columbia (where Bar Counsel is appointed by and serves at the pleasure of the Board on Professional Responsibility) has had seven. This is not mere happenstance.
The recent brouhaha in California should be proof positive that you can't leave regulation to the organized bar.
Frisch's rule number two: use real judges to adjudicate bar discipline cases, not volunteer attorneys. My jeremiad on the subject (now a bit outdated) is linked here. While no system of adjudication is free from error, you have a better chance of getting at the truth with real judges. Too often, lawyer adjudicators issue decisions that reflect the "parochial or self-interested concerns of the bar." See ABA Model Rules, Scope at .
Frisch's rule number three: you judge a bar's commitment to transparency by its web pages. If lawyer discipline cases are hard or impossible to find anywhere on line, that bar doesn't want potential clients to know about an attorney's disciplinary history. Unfortunately, many jurisdictions fit this description.
Anyhow, my thanks to those who have visited this blog. The readership is what makes the effort worthwhile. (Mike Frisch)