Saturday, October 22, 2011

Non-Organic Tomato Selling Scheme Draws Reprimand

An attorney who had entered into an organic tomato growing business with a longtime client has been reprimanded by a Committee on Professional Conduct panel of the Arkansas Supreme Court.

When the organic crop failed, the attorney entered into a scheme to buy non-organic tomatos and falsely label and sell them to customers as organic. The committee found 103 willful violations.

The client has undergone a sex change and is now employed with the IRS as a revenue agent. The panel's opinion refers to the client as "Mr." of "Ms." depending on the time.

The Arkansas Times has this report. (Mike Frisch)

October 22, 2011 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Sharp Practices

An attorney who agreed to undertake a wrongful termination case against the Commerce Bank was disbarred by the Kansas Supreme Court. The attorney had first met the client in Sharp's 63rd Street Grill in Kansas City , Missouri.

The attorney was not admitted in Missouri, where the case needed to be filed. He used the retainer for his own purposes and never performed the services for which he had been retained. He also had his license suspended three times for non-compliance with registration and CLE obligations. (Mike Frisch)

October 22, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 21, 2011

Not Horsing Around

The Louisiana Supreme Court has suspended an attorney based on a recent guilty plea in federal court.

Nola.com reports on the situation:

Less than a week before he was scheduled to go to trial in federal court, Sean Alfortish pleaded guilty in federal court Wednesday to conspiring to rig the elections of the Louisiana Horsemen's Benevolent and Protective Association, then helping himself to funds controlled by the agency. Alfortish admitted to one count of conspiracy to commit mail fraud, wire fraud, health care fraud and identification document fraud. Alfortish admitted he created a scheme to get re-elected as the head of the nonprofit in 2008 after his first term as president was marred by charges of financial mismanagement.

Thanks to a raft of falsified ballots, Alfortish won re-election and a slate of his hand-picked candidates were elected to the board, replacing some of those who had questioned Alfortish's leadership. When the election results were challenged, Alfortish "presided over a hearing ... knowing that he had participated and directed others to mail falsified ballots," said a summary of the case signed by Alfortish.

Alfortish also admitted using the association's medical benefits trust fund for personal expenses, doubling the trust's expenditures during his first term as president, from 2005 to 2008. He also admitted settling an employee's sexual harassment grievance for $25,000, then reimbursing himself with the same amount and calling it "back pay" for work that other employees did.

The horsemen's association takes a 6 percent cut of the purses at Louisiana's four racetracks, a percentage that tops $5 million a year. With that money, the association acts as the bookkeeper at tracks, pays out purses after races and provides services to horse owners and trainers, including medical insurance and workers' compensation insurance.

Alfortish now faces up to five years in prison and a fine of up to $250,000 or twice any monetary gains for him or losses he caused for others. He is the last defendant remaining, after the recent plea of Mona Hebert Romero, 53, the group's former executive director. Romero admitted to conspiring to commit mail fraud, wire fraud and fraud in connection with identification documents, court records show.

The suspension is imposed pending consideration of final discipline. (Mike Frisch)

October 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bad Math

A prosecutor's closing argument on the mathematical possibility of an erroneous eyewitness identification resulted in the reversal of a robbery conviction by the Massachusetts Supreme Judicial Court.

The court evaluated the argument:

The gist of the prosecutor's argument to the jury was that there was a one in forty-nine chance that the victim would have identified as his assailants two persons who knew each other well and therefore a ninety-eight per cent probability that the victim had accurately identified the defendant as one of the assailants, which constituted proof beyond a reasonable doubt. The apparent simplicity of the mathematics belies the complexity of the conclusion regarding the probability of an accurate identification, and conceals the assumptions implicit in the conclusion.

It is true that, if the victim were shown two arrays of six photographs and given a seventh choice of "none of the above," and if the victim closed his eyes and randomly selected one of the seven options in each array, there was a one in forty-nine chance that he would select any combination of two. But if the identification were truly random, it would have no evidentiary consequence. The victim's eyewitness identification has potential evidentiary consequence only to the extent that it is not random, but reflects his recognition of two persons who had robbed him approximately ninety minutes before the identification procedure. For this reason alone, the prosecutor's probability analysis is false and misleading. And without the implicit assumption of random selection, the probability analysis, at a minimum, becomes far more complex.

There are two other fundamental problems with the probability analysis. First, the victim testified that he saw the assailant in the hooded sweatshirt "a lot more," and picked him from the array "[a]lmost right away." Having identified Pacheco from the first array, the probability that the victim would randomly select the photograph of a person Pacheco knew well from the second array depended on how many people in the second array Pacheco knew well. But there was no evidence whether Pacheco knew the other persons depicted in the array, even though the prosecutor obtained an order of immunity and called Pacheco to testify. Nor was there any evidence as to the source of the photographs that comprised the array, apart from Officer Kimball's testimony that he put the victim's physical descriptions of the assailants into "our computer database" and "look[ed] up" people who had been arrested. If the computer database only contained photographs in the possession of the Fall River police department, and if the photographs were selected to reflect persons similar in age to Pacheco, it would not be surprising if Pacheco knew others whose photographs were in the second array apart from the defendant. Therefore, implicit in the prosecutor's argument was the factual representation that the defendant was the only person in the second array whom Pacheco knew, a fact not in evidence.

The court had serious concerns about a wrongful conviction:

 Our conclusion is strengthened by the evidence of the defendant's innocence: Pacheco's testimony that Dias, not the defendant, committed the robbery with him; Dias's testimony that he committed the robbery with Pacheco, and Bennett's testimony that the defendant was baby-sitting her children on the evening of the robbery. While the jury apparently did not credit this evidence, it cannot be ignored in evaluating whether there was a substantial risk of a miscarriage of justice.

The defense had not objected to the argument.

The link timed out. The case is Commonwealth v. Ferreira. (Mike Frisch)

October 21, 2011 | Permalink | Comments (2) | TrackBack (0)

Mexican Food

The New York Appellate Division for the First Judicial Department has imposed a public censure of an attorney who had engaged in various violations of the rules governing trust accounts. The attorney's practice focused on business immigration.

The reason:

In 2008, respondent began using his escrow account as a business account for his newly created Mexican food company, commingling business funds with client funds and failing to maintain records of those funds. Also in 2008, he made ATM withdrawals from the escrow account totaling $9,900 to pay bills for the company's activities. In June 2008, an escrow account check in the amount of $22,625 was issued to pay for a company expense and was returned for insufficient funds, triggering the Committee's investigation.

A trust account overdraft is a sure way to get the Bar's attention. (Mike Frisch)

October 21, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wallow In Watergate With John Dean

An announcement from the web page of the D.C. Bar:

On November 17 The George Washington University (GWU) will host a historic seminar on the Watergate scandal and how it influenced current legal ethics rules, featuring former Nixon White House counsel John W. Dean.

“The Leagacy of Watergate” focuses on the week after the Watergate break-in and uses Dean’s conversations with those involved as a case study to compare and contrast the applicable rules in 1972 with the ensuing rule changes.

Using his experience as President Richard Nixon’s counsel, Dean will explore an attorney’s obligations under current rules of professional conduct when the attorney uncovers wrongdoing within the organization he or she represents.

Participants will watch a film of Dean’s 1973 Senate testimony, review documents and personal notes, and listen to White House tapes that ultimately forced Nixon to resign. The course offers continuing legal education credit for other jurisdictions. Check with your state bar for ethics credit details.

The course takes place from 1:30 to 5:30 p.m. at GWU’s Jack Morton Auditorium, 805 21st Street NW. The cost is $150; GWU alumni and Washington Metropolitan Area Corporate Counsel Association members are eligible for the $75 discount rate.

For more information, visit the Legacy of Watergate or register at Thompson Hine.

As a law student, I was a research assistant with the Senate Select Committee on Presidential Campaign Activities AKA the Ervin Committee. This is a great opportunity to learn history from one who lived it. (Mike Frisch)

October 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 20, 2011

A New Life

An Illinois Hearing Board has recommended that a petition for reinstatement be denied. The petitioner had been convicted of billing fraud offenses. Her then-husband was also convicted and disbarred for billing fraud. At the time he was the managing partner of the Chicago office of Winston & Strawn.

Lisa Lerman has an in-depth study of the billing fraud cases against petitioner and her then-spouse in an article published in the Hofstra Law Review. After her lengthy analysis of the available facts, Lerman muses:

The Fairchild saga is one of those “truth is stranger than fiction”
stories. How strange are they? Obviously most practicing lawyers do not
bill thousands of fictitious hours or ask their firms or their clients to pay
for their spa visits or their vacation charter planes. Only a small number
of lawyers steal hundreds of thousands of dollars. But how do the
Fairchilds compare with other lawyer thieves? If they are sui generis, we
might draw wrong lessons from their stories.

The rest of Lerman's story is told by the Hearing Board.

After prison, the petitioner moved to Idaho and has lived there ever since. She produced evidence concerning her mental condition at the time of the misconduct, but that evidence was refuted by testimony from an attorney who had worked closely with her at the time. She has worked productively in a law-related field and wants to practice in Idaho. She has sought and been denied admission there.

There were several issues that troubled the Hearing Board. She sued her former firm, claiming that it had treated her differently than an allegedly thieving male colleague. The suit was eventually dropped. There were also concerns about restitution and whether she accepted responsibility for her misconduct.

The Hearing Board was not entirely negative:

Since her conviction, sentence, and disbarment, Petitioner has truly made a new life for herself and her children. The success of Petitioner’s children, after significant upheaval during their earlier years, is a testament to Petitioner’s sincere efforts to be a good parent and to provide her children with continuity and support.

Petitioner met the basic requirements of serving her sentence, successfully completing probation, and paying restitution as ordered by the court. Petitioner also paid the costs assessed in connection with the disciplinary proceedings and has maintained employment.

Petitioner’s character witnesses, each of whom, we believe, testified sincerely, included an Illinois Appellate Court Justice, a former Idaho Attorney General and Lieutenant Governor, and other prominent members of the legal and business communities in Idaho. We accept the testimony concerning Petitioner’s good reputation in Idaho as relevant; she has lived and worked in Idaho for years and intends to continue doing so.

Many of Petitioner’s witnesses traveled from Idaho to testify on Petitioner’s behalf. All of Petitioner’s character witnesses were aware of her misconduct.

Knowledge of the current state of the law is one of the elements a person seeking reinstatement must show. We find Petitioner is very knowledgeable about the current state of the law.

But:

Among the things we must consider in evaluating Petitioner’s request to be reinstated is the impact of her conduct on the legal profession, the public and the administration of justice. Petitioner’s misconduct was of enormous proportions. To allow Petitioner to be reinstated at this time would deprecate the seriousness of her misconduct and significantly devalue the importance of restoring the confidence of the public in the legal profession, and in the administration of justice.

After having carefully considered the evidence and law, we conclude, while Petitioner has fulfilled some of the requirements necessary for reinstatement, she has not fully met her heavy burden of proof at this time. Therefore, we recommend reinstatement be denied.

Petitioner had entered an Alford plea to the criminal charges in 1997 and was disbarred in 2000. (Mike Frisch)

October 20, 2011 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 19, 2011

Assistant AG Reprimanded

An Illinois Assistant Attorney General agreed to a reprimand for conduct during the course of litigation involving a condominium. He wanted to view the property at issue.

Upon arriving, Respondent looked around the outside of the building and found that he could not tell from publically [sic] accessible places how the basement was outfitted. With Ipjian, he approached the main door to the building and found it was locked. Without telling Ipjian his intent, he rang the bell and falsely informed the building manager who came to the door that he and Ipjian were siblings, and that they were interested in viewing the building because their grandmother was interested in moving from Wisconsin. At no time did Respondent inform the building manager that he and Ipjian were the attorneys prosecuting the case against the owners of Onan Senior Suites.

Based upon the information that Respondent provided to the building manager regarding his grandmother’s purported desire to move to the building, the building manager showed Respondent and Ipjian areas of the building that were not accessible to the public, including the finished areas of the basement/garage, a one-bedroom unit, and a two-bedroom unit. At no time prior to entering the building did Respondent advise opposing counsel of his intent to view the building.

As to sanction:

In mitigation, is 49 years old and has not been disciplined previously since his admission in 1992. His entire career has been devoted to working for public service organizations such as the Legal Assistance Foundation of Chicago, the HIV/AIDS project, Lifespan, the Lawyers Committee for Better Housing, and the Office of the State Appellate Defender. Before Respondent was licensed to practice law, he was employed as a fair housing tester, and in this matter, he resorted to testing methods which he had used in that capacity. He has acknowledged that his role as counsel in the case made those methods improper, and regrets his failure to recognize that at the time he acted.

In aggravation, Respondent, as an assistant Attorney General, was a public advocate whose duties were to promote and protect the rights of people in Illinois. However, in prosecuting a case, he directly lied to a person at the site at issue in the lawsuit in order to gain information to assist him in prosecuting his case. Based on Respondent’s work history, he should have known that gaining evidence by means of deception was improper.

Wonder how Onan Senior Suites got its name. (Mike Frisch)

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

Ponzi Scheme Warrants Disbarment

An Illinois Hearing Board has recommended the disbarment of an attorney who participated in a Ponzi scheme as set forth in the report:

Beginning in November, 2007, and continuing through November 2008, Respondent participated in a scheme by which he and others advised 93 individuals ("the investors") of a purported opportunity to invest in Omicron by making "investments loans" to Omicron. Respondent and others told the investors those "investment loans" were to be used for purposes of "trading platforms" and other purported investment opportunities. Respondent and his business associates also told the investors, both orally and in writing: that Omicron would use the investors’ money to invest in trading platforms; that the investors could expect an annual return of the greater of fifteen percent paid quarterly, or sixty percent of the net profits generated by Omicron; that their initial investments would be secure because none of the money obtained from the investors would be placed directly in trade; that the funds in the trading account would be leveraged by the trader and never touched; and that investors could request withdrawals from their account which would be paid out within 72 hours.

Between November 2007 and November 2008, Respondent and others agreed to accept at least $1,915,205 in purported "investment loans" from the investors; provided those individuals with purported loan agreements and promissory notes relating to investments platforms; and promised to repay the loans with investment returns one year after the loan agreement. Pursuant to the agreements for the investment loans, the term of the purported "investments loans’ were to be one year, calculated from the first day of disbursement, or on demand of the lender.

The "loans" were then run through an escrow account on their way to the pockets of the attorney and his associates:

Between December 2007 and March 2009, Respondent made a series of disbursements and directed a series of transfers to various accounts maintained by Respondent and his business associates. Respondent also used the account to make periodic payments of purported interest and principal to investors. Those payments were not made from the purported profits of the Omicron investments, but were instead made with money obtained from other investors in what is commonly referred to as a "Ponzi scheme"...At no time after receiving the funds from the investors did Respondent invest in their funds in a secure investment opportunity from which any of the investors benefitted. To date, Respondent owes various investors $1,866,316.31, which represented the difference between the amounts Respondent, had received from the investors and the amounts that have been repaid to one investor.

(Mike Frisch)

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

Third Times No Charm

An Illinois Hearing Board has recommended the disbarment of an attorney who was the subject of a third disciplinary proceeding.

The board discussed the relationship between the three matters in connection with sanction:

The misconduct at issue here involved misuse of client funds during 2001, extending into 2002 as to one count, Count XX. The misconduct in Milks II occurred primarily in December 2001, post-dating most of the misconduct at issue in these proceedings. However, Respondent is still properly considered a recidivist. This is his third disciplinary proceeding. The misconduct which led to Respondent’s suspension in Milks I predated the misconduct in both this case and Milks II.

In addition, Milks I was pending and discovery and prehearing proceedings were being conducted in 2001. The fact that Respondent engaged in his current misconduct while another disciplinary proceeding was pending against him is a serious aggravating factor. Milks, 05 CH 44 (Review Bd. at 15); In re Davies, 01 CH 60, M.R. 18141 (Sept. 19, 2002).

The misconduct in Milks I primarily involved solicitation and assisting non-lawyers in the unauthorized practice of law. Milks, 99 CH 20. This is serious misconduct, though different from Respondent’s current misconduct. However, Milks I also included misconduct similar to that here, arising out of Respondent’s failure to properly disburse settlement funds.

In addition, since conduct for which Respondent was disciplined in Milks I included failure to maintain records, his current claims that he destroyed files and, therefore, did not have them available for use in his defense are particularly disingenuous. Further, the discipline in Milks I would have required Respondent to maintain these records. S.Ct. R. 764(a).

Most of the misconduct for which Respondent was disciplined in Milks II involved mishandling of funds belonging to two clients. Essentially Respondent paid each client one-third of the proceeds he had received for her and retained most of the balance. Most of the misconduct in this case predated the misconduct in Milks II. However, Respondent should have learned something from Milks II about the proper way to handle client funds. Unfortunately, as demonstrated by his testimony in this matter, it does not appear that Respondent learned anything, as it is clear he still does not understand how an attorney is to handle client funds.

(Mike Frisch)

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

Medicaid Planning And Unauthorized Practice

From the web page of the Ohio Supreme Court:

An advisory opinion recently issued by the Board on the Unauthorized Practice of Law of the Supreme Court of Ohio outlines the activities non-attorneys can and cannot engage in concerning Medicaid benefits.

According to Opinion UPL 11-01, non-attorneys may review documents, prepare and file Medicaid applications and attend state hearings on behalf of an individual “to the extent that those activities are authorized by federal law.”

The opinion draws the line for non-attorneys at performing “Medicaid planning” for current and prospective nursing-home patients and/or their families regarding qualification for Medicaid benefits “if it requires specialized legal training, skill, and experience.”

The opinion clarifies this point further.

“Medicaid planning, which consists of arranging assets and income to meet Medicaid eligibility requirements, is outside the scope of the non-attorney assistance permitted by federal law. State regulation of Medicaid planning is therefore not preempted by federal law. In many cases, Medicaid planning involves estate work and legal expertise. Accordingly, the board further concludes that the establishment of a Medicaid planning strategy for another by a non-attorney constitutes the unauthorized practice of law.”

A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/UPL/advisory_opinions/UPLAdvOp_11_01.pdf.

October 19, 2011 in Law & Society, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 18, 2011

Taxing Situation

The New York Appellate Division for the First Judicial Department imposed a one-year suspension of an attorney for failure to file and pay state income taxes over a multi-year period.

The facts:

In 1987, respondent, an experienced tax lawyer with an LLM in tax law who, since graduating law school in 1975, practiced law at several law firms and was also employed in the tax department of an accounting firm, became an equity partner at the law firm of Strook Strook & Lavan (Strook) where he remained until 1999. Thereafter, respondent, who in 1998 earned $653,539, started a company called Retail Development Partners (RDP). In 2001, however, approximately after two and one half years with RDP, during which time respondent's yearly income precipitously dropped, never exceedeng $122,682, respondent deemed RDP a failure and returned to law firm practice, working at several law firms and ultimately joining the firm of Helpern Syracuse & Hirschtritt, LLP (Helpern). Respondent joined Helpern as a partner in 2004 and is currently so employed. Since 2001, after respondent wound down RDP and resumed private law practice, respondent's income has steadily increased, generally exceeding $200,000 per year. In 2007, respondent earned $497,667.

In 1998, respondent was diagnosed with an atrial septal defect, a congenital heart defect, which required respondent to undergo surgery. Complications from the surgery, however, left respondent with an atrial flutter, atrial fibrillation, and two heart arrhythmias, requiring further surgery in 1999. Respondent's surgery in 1999 successfully repaired his atrial flutter, however, his arrhythmias were irreparable and they continue to plague him. Besides the foregoing, in 1999, respondent was diagnosed with Type 2 Diabetes, a cancerous thyroid requiring surgery, and hepatitis C. In 2001, as a result of RDP's failure his multitude of health issues, respondent became "quite upset" and depressed and therefore began and continues treatment with a psychiatrist.

As to sanction:

It is certainly true that an extreme financial reversal coupled with mental stress during the time period within which a lawyer fails to file tax returns and pay taxes has been found to constitute a mitigating factor (Matter of Hornstein, 232 AD2d 134, 136 [1997]). Similarly, a substantial drop in income together with a significant increase in expenses has also been deemed a mitigating factor (Eppner at 153-156). In this case, however, the testimony at the hearing failed to establish that respondent's ailing health, beginning in 1998, coupled with his sudden decrease in income, beginning in 1999, prevented him from filing tax returns and paying taxes. First, respondent himself testified that his failure to file tax returns and pay his taxes were not attributable to his decreased income or due to his tax liability. Second, and more importantly, while respondent attributes depression brought about by his failed business, decreased income, and ailing health as the cause of his failure to file tax returns and pay his taxes, such claim is belied by respondent's ability to successfully manage all other aspects of his life during this same time period. Specifically, in 1998, notwithstanding respondent's heart condition, he worked at Strook where he made well over $600,000 and paid his taxes. Similarly, in 1999, despite his deteriorating health, respondent managed to start RDP, embark on a new career, file tax returns and pay his taxes. Lastly, in the seven years that respondent failed to file tax returns and pay taxes, he successfully managed his personal affairs, met all of his other financial obligations, and ostensibly-if wages are any measure-resuscitated his legal career. In sum, timing does not necessarily imply causation and here, beyond the fact that respondent's financial and health issues preceded his failure to file tax returns and pay taxes, we decline to find that those issues were the cause of his failure such that they constitute a mitigating factor.

In addition to the one aggravating factor found by the Panel, namely, respondent's failure to voluntarily discontinue and self-report his illegal behavior, we also find that insofar as respondent's gross income in 2005-2007 was $328,754, $301,213, $497,667, respectively, his income during those years, when he failed to file tax returns or pay taxes, was substantial such that his failure to pay when he ostensibly could, constitutes an aggravating factor...

The court rejected the suggestion that the ensuing conviction was a mitigating factor. (Mike Frisch)

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

Better Left Unsaid

The Montana Supreme Court affirmed sanctions against  pro se litigants for non-compliance with court rules and orders as well as abusive behavior during the discovery process.

One of the litigants failed to attend a scheduled deposition. The other would have better off not attending: she told opposing counsel to "blow it out his ass," called the attorneys "disgusting" and "sick," and said that the attorneys "probably [are] going to chase down our witnesses and kill them or whatever." The witness also called the opposing party a "thing" and accused the attorneys of buying off judges.

The court found the lower court did not abuse its discretion by imposing sanctions. Pro se litgants "must still adhere to procedural rules" and "[a]buse of [this] kind will not not be tolerated." (Mike Frisch)

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

Assaulted Attorney May Sue For Damages

The New Jersey Appellate Division has held that an attorney who sued the chief executive officer of a state psychiatric hospital and others as a result of a physical attack by the attorney's client.

The court concluded that plaintiff/attorney raised "a triable issue of act as to whether defendant affirmatively place plaintiff in a position of danger" and that, because the rights asserted by the plaintiff were not "clearly established at the time time plaintiff was attacked, defendants are entitled to qualified immunity."

The attack took place at Ancora Psyhiatric Hospital. the attorney was employed by the Department of the Public Advocate and was interviewing clients to prepare for court hearings. The client struck the attorney in the face several times, grabbed her hair and "pulled her backwards until her head hit the floor."

The court noted that the hospital was aware of problems with assaults by its patients and did not take reasonable steps to protect potential victims such as the plaintiff here. (Mike Frisch)

October 18, 2011 in Clients | Permalink | Comments (0) | TrackBack (0)

Multijurisdictional Unauthorized Practice

From the Ohio Supreme Court:

Out-of-state debt settlement lawyers are not authorized to provide legal services on a temporary basis to Ohio clients, according to a Supreme Court of Ohio Board of Commissioners on Grievances & Discipline advisory opinion.

It is the first time the board has addressed Professional Conduct Rule 5.5 (Unauthorized practice of law; multijurisdictional practice of law), which took effect in 2007.

Section (c) of the rule contains “safe harbors” that permit an out-of-state lawyer to provide legal services in Ohio temporarily.

Opinion 2011-2 applies the “reasonable relationship” factors found in the comments to Rule 5.5. The board concluded that allowing the multijurisdictional practice at issue would not serve the interests of clients and public when the “matters are not connected to the lawyers’ home state of admission, there is not a pre-existing relationship between the lawyers and the Ohio clients, and the lawyers do not have a recognized expertise in a particular body of federal, nationally-uniform, foreign, or international law that is applicable to the consumer debt matters.”

A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2011/Op_11-002.pdf.

(MIke Frisch)

October 18, 2011 in The Practice | Permalink | Comments (0) | TrackBack (0)

Monday, October 17, 2011

No Collateral Estoppel In Bar Proceeding

The California State Bar Court affirmed the dismissal of ethics charges brought against an attorney for his handling of an appeal in a bitterly-contested domestic relations proceeding. The attorney, an associate, and his client were all sanctioned by the Court of Appeal for frivolous litigation.

The State Bar Court rejected the State Bar's collateral estoppel argument based on the opinion in the underlying case:

The evidentiary centerpiece of the State Bar’s disciplinary case is the Court of Appeal’s finding in In re Marriage of Gong and Kwong, supra, 163 Cal.App.4th 510, that Eytan filed a frivolous appeal.The State Bar asks us to apply the Court of Appeal’s finding preclusively, so that Eytan is collaterally estopped from relitigating this finding. However, in In the Matter of Lais (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 112, we were unwilling to rely on the principles of collateral estoppel to preclude an attorney who had filed a frivolous appeal from defending himself against charges of violating rule 3-200 and section 6068, subdivision (c)...

The State Bar Court, while recognizing that the Court of Appeal had found the attorney's conduct "repugnant," nonetheless concluded that the charges were not proven:

...when we view his actions on behalf of [the client] through the lens of the clear and convincing standard, and we take into account his testimony in the hearing below explaining his actions, we find that his admittedly aggressive advocacy does not constitute disciplinable misconduct under rule 3-200(A), rule 3-200(B), or section 6068, subdivision (c). Based on the evidence adduced in these proceedings, we find no reasonable basis to overturn the hearing judge’s decision to dismiss this case.

The accused attorney may petition for reimbursement of some of the costs of defending the bar charges. (Mike Frisch)

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

Forced Draw

An Illinois attorney is the subject of a complaint alleging ethical violations.

One instance involves an accident that led to a DUI arrest and his failure to cooperate in providing evidence:

 At 4:30 a.m., West Dundee police transported Respondent to Sherman Hospital for a forced draw. At the hospital, Respondent refused to cooperate with a nurse who attempted to take his vital signs, and advised ER staff that he would not allow them to take blood or urine samples. ER staff advised Respondent that he would be restrained and catheterized to forcibly obtain blood and urine samples, at which time Respondent provided a urine sample and allowed for blood to be drawn, but informed staff that both samples were taken against his will. Respondent’s blood alcohol level would later be determined to be .249 g/dL. After providing the samples, Respondent was transported back to the West Dundee police station...

He also is charged with appearing in court and for an evaluation in the bar case while intoxicated. (Mike Frisch)

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

Break Up Browsing Leads To Suspension

The Michigan Attorney Discipline Board affirmed a tri-county hearing panel's imposition of a 179 day suspension (i.e. with automatic reinstatement) of an attorney convicted of possessing sexually explicit child photographs.

The images were discovered by the attorney's then-girlfriend, who "was going through [his] laptop [computer], in contemplation of a break-up, to remove pictures and videos they had taken together." She then called the police.

The panel had found that the conduct involved the attorney's "private browsing habits" and that he is not a danger to the public. (Mike Frisch)

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

Scurrilous, Untenable And Incomprehensible

The New Jersey Supreme Court has disbarred an attorney for misappropriation and other ethical violations.

The attorney had moved to vacate a default on the charges but the Disciplinary Review Board found that she had failed to reasonably explain the failure to answer and had not set forth a meritorious defense to the charges;

Rather than attempt to satisfy the [requirements to vacate default], respondent submitted a scurrilous attack on the OAE counsel handling the matter, an untenable interpretation of the Court Rules regarding service of ethical complaints, and circuitous -- and at times incomprehensible -- reasons why we should grant her motion and dismiss the complaint.

Disbarred. (Mike Frisch)

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

Thrown Brick Results In Suspension

The Georgia Supreme Court has suspended an attorney until March 2013 for criminal conduct: "[The attorney], angry with his then-girlfriend who had thrown a brick that struck him on the arm, picked up the brick and threw it at her, striking [her] feet." He was given first offender treatment for the offense.

The court notes that such violations are generally sanctioned with disbarment. Here, a lesser sanction was imposed in light of mitigating circumstances that included no prior discipline and personal problems for which he has taken rehabilitative steps. (Mike Frisch)

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