December 3, 2011
Walking The Dogs
A disciplinary matter reported in the December 2011 California Bar Journal:
[An attorney] was suspended for two years, stayed, placed on four years of probation with a 30-day actual suspension and she was ordered to take the MPRE within one year. The order took effect May 21, 2011.
[The attorney] stipulated that she committed three acts of misconduct, including two that involved moral turpitude. While walking her three dogs in a Los Angeles city park, she was stopped by a ranger who believed she was not in control of the animals. She gave a false name and refused to provide her address.
At a hearing with the city attorney, the question of whether she provided false information was resolved without criminal charges. [She] then sued the ranger and the city of Los Angeles alleging false arrest, negligence, assault and battery and a violation of her civil rights, among other things. When she was deposed, she claimed she never provided a false name.
About a year later, when [she] had applied to become a member of the State Bar, she disclosed the lawsuit in her moral character application. However, she also claimed the ranger wrote the name Mary Smith before she could provide her true name and said she offered to give him her mailing address. She admitted in the stipulation that her statements were false.
[The attorney] later settled the lawsuit by paying Los Angeles $600.
In mitigation, she had extreme emotional difficulties at the time of the misconduct.
December 2, 2011
Statutory Sodomy Conviction Leads To Disbarment
The Kansas Supreme Court has disbarred an attorney convicted of statutory sodomy and related offenses.
The evidence at the criminal trial established that he encouraged teenage boys to do yard work and cleaning for him. He would then offer bikes, cars, cell phones and cigarettes in exchange for "sexual work." The boys paid for the items with oral and anal sex and other sex acts.
The attorney was earlier disbarred in Missouri. (Mike Frisch)
December 1, 2011
The Illinois Administrator has filed a complaint alleging misconduct by a former employee of the state Department of Healthcare and Family Services.
Count One of the complaint alleges a variety of work-related misconduct including that she falsified timesheets to cover excessive tardiness and absenteeism, falsified travel vouchers, used a state vehicle for personal purposes and violated internet use policies "including displaying sexually explicit material and nude photos of herself and others..." The count also alleges failure to report the misconduct of other employees.
Count Two alleges criminal conduct:
In August, 2009, the Champaign County State’s Attorney’s Office filed charges against Respondent for telephone harassment...related to a complaint made to the Rantoul police. The woman who filed the complaint ("complainant") and the Respondent were both dating the same individual. The complainant alleged that Respondent sent text messages and made telephone calls threatening to keep their mutual acquaintance from getting or keeping a job with the State of Illinois if he continued to see the complainant. The complainant further alleged that Respondent called her a "fucking bitch" and made threats against her life and advised the victim that their mutual acquaintance had taught her how to fire a gun.
Respondent also posted notes on Facebook that referenced the complainant and her daughter and contained a picture of Respondent and the subject of the womens’ dispute, holding an assault rifle, and Respondent holding a handgun.
After being contacted by a Rantoul police officer and being admonished by the officer that she should not conduct herself in such a manner, Respondent stated that she did not care about her job and that the subject of her messages would never work in Illinois again.
The charges against Respondent were dismissed after Respondent’s completion of a deferral program.
Finally, in Count Three:
In or about July, 2007, in the early morning hours, Respondent arrived at her Springfield office building, repeatedly identified herself to the guard as the "Boss Lady" and requested entry. Respondent, who smelled strongly of alcohol, slurred her words and had difficulty standing. The guard escorted Respondent into the building where Respondent began doing a hula dance in the elevator. Respondent left the office later that morning.
In 2007, at an after-hours event for the opening of the Chicago office of two lobbyists, Respondent was intoxicated or under the influence of drugs and fell to the floor screaming, then ran outside into traffic.
In February 2008, at approximately 5:30-6:00 a.m., Respondent called the guard of her Springfield office building and stated that she was unclothed in a car outside and further stated that she required something to wrap around her in order to enter the building. A while later, two women brought Respondent a coat to cover herself, and all three entered the building, with Respondent wearing the coat wrapped around her, covering her head and face.
On two different occasions, Respondent exposed her breasts to female co-workers to request their opinion on the results of her breast augmentation surgery.
On April 2, 2008, Respondent entered J.P. Kelly’s, a tavern in Springfield, and exposed her breasts to two State officials, after which Respondent conversed with those officials for several minutes. At the time of the incident, Respondent was also unsteady on her feet and had been drinking.
Later in the evening, on April 2, 2008, Respondent went to The Plaza, a downtown Springfield tavern. Some time thereafter, she was wobbling and barely able to stand on her feet in the alley behind The Plaza. Respondent recognized a former HFS employee, and then loudly confronted the former employee by stating that the former employee had "fucking called my husband."
On January 6, 2009, at approximately 1:30 a.m., Respondent appeared at her Springfield office building dressed in sleepwear and barefoot, escorted by a man. Respondent requested a master key from the guard, proceeded upstairs to the executive offices, and then returned the key to the guard at the main entrance. Respondent and the man entered the elevator hugging and kissing. Respondent and her companion left the office at about 6:30 a.m.
The various incidents set forth in count three are alleged to have defeated the administration of justice or brought the legal profession into disrepute.
Frankly, I'm not sure that each of these incidents defeated the administration of justice. I'm also not entirely certain that "bring[ing] the legal profession into disrepute" is an enforceable standard of professional conduct. (Mike Frisch)
The December 2011 online edition of the California Bar Journal has a report on the application for bar admission of Stephen Glass:
For the first time in 11 years, the California Supreme Court agreed to hear the case of a would-be lawyer denied admission to the State Bar because of moral character issues. The bar petitioned the court to consider the case of Stephen Glass, a disgraced former journalist who won national infamy for making up whole or parts of stories and now wants to practice law in California. Although the Committee of Bar Examiners (CBE) denied Glass admission on moral character grounds, it was overruled by both a State Bar Court hearing judge and a split review panel that said he should be admitted. The Supreme Court granted review last month on a petition from the CBE.
It's a pretty rare character and fitness case where the conduct at issue has been the subject of a movie. (Mike Frisch)
Unauthorized Settlements Draws Censure
The Rhode Island Supreme Court has imposed a public censure of an attorney who was retained by a Mr. Lambert and two other Wackenhut Corporation employees in claims of unpaid raises. He then prepared blank retainer agreement for 29 more similarly-situated clients that Lambert had signed by the 29 and returned to him.
The attorney settled all the claims without any direct contact with the 29 clients. In three instances, he signed their names to settlement checks without the client's knowledge, authorization or consent. The value of each claim was different. Only Lambert got an individual consultation.
The attorney violated client solicitation rules and failed to consult with clients about the objectives of representation. (Mike Frisch)
Drugs, Sex And Sanction
A Colorado attorney who had "sexual relations with a client who was in recovery from drug addiction while he served as her attorney" was suspended for a year and a day with all but six months stayed. He must complete three-years of probation with conditions.
The sanction was imposed pursuant to a conditional admission of misconduct. (Mike Frisch)
November 30, 2011
The New Mexico Supreme Court has imposed a suspension of one year without automatic reinstatement of an attorney, rejecting the automatic reinstatement proposed by its Disciplinary Board. The court concluded that the series of complaints of misconduct in state and federal court "set forth a deeply troubling mosaic of ethical misconduct that...unquestionably calls for discipline and seriously calls into question [the attorney's] fitness to practice law."
Notably, the court was constrained to state that "resolution of these complaints was delayed inexcusably before the Disciplinary Board, which enabled [the attorney] to claim an appearance of innocence for far too long. As a result, this Court has undertaken substantial revisions to our disciplinary process to ensure that no such delays will reoccur." (Mike Frisch)
A disbarment decision by the Colorado Presiding Disciplinary Judge imposes the ultimate sanction where the attorney
...engaged in an elaborate scheme to defraud the prospective purchaser of a store owned by [the attorney's] wife. As a result of [his] dishonesty, the purchaser lost over five-hundred thousand dollars. [The attorney] neither paid a civil arbitration award nor participated in the disciplinary proceeding.
The store in question was a Subway sandwich shop. The sale went forward without the approval of the national frachiser of the Subway chain. The attorney's wife received wire payments totalling $350,000 and thereafter (with his knowledge) locked the purchaser out and took all the funds in his operating account. He then aided his wife in withdrawing the wired funds and left the LLC that had received the funds "essentially judgment-proof." (Mike Frisch)
From the web page of the Pennsylvania Disciplinary Board:
The Disciplinary Board has added a Google Search capability to its website, www.padb.us. The search window, located at the top of the Attorney Information, Consumer Information, and Look Up an Attorney pages (and most pages under those portals), allows a simple search on a name, term, number, or a multiword term, and has some Boolean search capability. The search will locate results on most pages such as the Recent Discipline, Disciplinary Reporter, Frequently Asked Questions, and news items. The Google search feature will retrieve some but not all results from the Attorney Registration database. To assure that users find all available information in the Attorney Registration database, we recommend using the flexible search feature built into the Look Up Attorney page in addition to or instead of the Google search.
It's nice to see a disciplinary system that actually wants consumers and other interested persons to find information about disciplined attorneys. (Mike Frisch)
Dreier - Related Claims Dismissed
The New York Appellate Division for the First Judicial Department has dismissed a complaint alleging legal malpractice and breach of fiduciary duty against Dechert LLP premised on the following alleged facts:
In 2005, Marc Dreier, who was then an attorney, proposed to plaintiffs that they participate in a short-term note program to finance the purchase of foreign real estate assets. The designated borrower would be Dreier's clients, Solow Realty & Development Company, LLC, and affiliated companies controlled by real estate developer Sheldon Solow (collectively Solow Realty), and Dreier would be the guarantor. The parties executed two loans totaling $60 million in 2006, and, in 2008, Dreier proposed another $50 million loan transaction. For this last loan transaction, plaintiffs required Solow Realty and Dreier to retain independent counsel to issue a legal opinion as to whether Solow Realty and Dreier had carried out the necessary formalities to render the loan documents valid and binding on them. Ostensibly, Solow Realty and Dreier retained defendant for this purpose. Dreier furnished the necessary documents and information to defendant for the preparation of the opinion. All the documents to which Solow Realty was a signatory appeared to have been signed by Solow Realty, and some bore "what appeared to be" the signatures of Sheldon Solow and Solow Realty's CEO.
Plaintiffs contend that they relied on defendant's legal opinion that the loan documents were duly executed and delivered and that the loan was a valid and binding obligation on Solow Realty and Dreier. Plaintiffs wired $50 million to an attorney trust account set up at Dreier's firm. Several months later, Dreier was arrested in connection with another fraud scheme, and plaintiffs discovered that Solow Realty had no knowledge of and was never a party to the loan transactions and that Dreier had falsified the documents and forged the Solow Realty signatures.
The malpractice claim failed because there was no attorney-client relationship. As to the fiducuary claims:
Although there is no contractual privity between the parties, the complaint sufficiently alleges a relationship of "near privity" for the purpose of stating a cause of action for negligent misrepresentation or negligence. Plaintiffs allege that the particular purpose of the opinion letter was to aid them in deciding whether to enter into the loan transaction, that defendant was aware that they were relying on the opinion in making that decision, and that defendant evinced its understanding of that reliance by addressing the legal opinion to them. However, the complaint fails to allege (a) that plaintiffs informed defendant that its obligations were not limited solely to a review of relevant and specified documents or (b) that plaintiffs informed defendant that it was to investigate, verify and report on the legitimacy of the transaction. Absent such factual allegations, plaintiffs cannot establish that defendant breached a duty of care. As Dreier was Solow Realty's attorney and the guarantor of the loan, defendant had no reason to suspect that Solow Realty was not in fact a party to the loan transaction or that Dreier forged the signatures of its principal and CEO. We note that plaintiffs had previously made two large loans to Dreier, while represented by international firms that specialized in financial transactions. Prior to Dreier's arrest, plaintiffs never suspected fraud.
Moreover, the opinion, by its very terms, provided only legal conclusions upon which plaintiffs could rely. The opinion was clearly and unequivocally circumscribed by the qualifications that defendant assumed the genuineness of all signatures and the authenticity of the documents, made no independent inquiry into the accuracy of the factual representations or certificates, and undertook no independent investigation in ascertaining those facts. Thus, defendant's statements as contained in the opinion, were not misrepresentations. Finally, in accordance with the loan agreement, the opinion was reviewed by plaintiffs' counsel before plaintiffs accepted it. (citations omitted)
November 29, 2011
Too Late To Mitigate
An attorney was retained and paid a $10,000 non-refundable retainer for a criminal case. A few days later, the client committed suicide. At the time, the attorney had done no more than five hours of work on the case.
The client's widow sought a refund. The attorney refused, "asserting that he had earned the entire amount." The attorney refunded the fee during the ensuing disciplinary proceeding.
The Indiana Supreme Court ordered a suspension of 30 days for charging an excessive fee and failure to return an unearned fee. The court found that restitution after a grievance is filed "does not qualify as a mitigating circumstance." (Mike Frisch)
Reinstatement Unopposed But Denied
The Maryland Court of Appeals has denied the reinstatement request of a high-profile lawyer/lobbyist comviction of bribery in California. The conviction was later overturned, but the court nonetheless declined to reconsider its previous order accepting his disbarment by consent.
The Daily Record had this report in October 2008 on the argument before the court:
Cooke was disbarred by consent based on the 2004 conviction, which arose out of the failure of a publicly funded counseling clinic in Kern County, Calif. Cooke was accused of funneling half the fees he received from the clinic to the wife of its owner, some $57,000 in all. The state of California declined to prosecute either Cooke or his co-defendant on remand.
While Thursday’s proceeding was called an oral argument, the Web cast shows precious little in dispute. Figinski laid out the case in favor of his old friend and former law partner. [Bar Counsel] Grossman’s presentation was at least as compelling in Cooke’s favor as Figinski’s. Each pointed to prosecutorial misconduct in the underlying conviction.
Cooke’s innocent explanations for the payments to Bobbie Cumberworth — principally, that she was a legitimate consultant on special education issues — “were buried,” Grossman told the court, while inadmissible evidence was allowed in.
“I don’t know what the trial judge was thinking,” he said.
Given the chance to respond after Grossman, Figinski rose, stood at the microphone and paused briefly before saying, “I think I’ve said quite enough.”
He couldn’t leave it at that, of course, but the judges rewarded the sentiment with a hearty round of laughter.
The court gave no indication of when it would decide.
The court in its order gave no indication of the cause of the three-year delay between the argument and the decision. (Mike Frisch)
Privilege Trumps Public Records Act Discovery Claim
From the web page of the Ohio Supreme Court:
In a 7-0 decision announced today, the Supreme Court of Ohio declined to issue a writ of mandamus compelling a school district to provide copies of requested documents to a parent involved in a lawsuit against the district. The Court based its ruling on a finding that the requested documents were subject to the attorney-client privilege between the district and its lawyers, and therefore were not subject to disclosure under the state Public Records Act.
Angela Dawson, the mother of two students enrolled in the Bloom-Carroll Local School District who was pursuing a lawsuit against the district, submitted public records requests demanding that the district provide her with copies of 1) detailed invoices sent to the district by a law firm it had retained to defend against Dawson’s suit; and 2) copies of all correspondence the district had received from its insurance carrier appointing Janet Cooper as the district’s insurance attorney and describing the liability and exposure of the district and the insurance company related to the claims asserted in Dawson’s lawsuit.
The district provided Dawson with summaries of the law firm invoices noting the attorney’s name, the invoice total and the matter involved, but refused to provide copies of the detailed monthly billing statements that described the specific work performed, legal issues that were researched, and detailed communications among the attorneys, the district and its insurer. The district also refused to provide Dawson with a letter that the insurance company’s claims analyst had sent to the district and its attorneys regarding Dawson’s lawsuit, on the ground that the information it contained was privileged.
Dawson filed suit in the Supreme Court seeking a writ of mandamus to compel the district to disclose the requested documents. After an unsuccessful attempt to resolve the dispute through mediation, the Court issued an alternative writ directing the parties to submit evidence and written briefs, and ordered the district to provide copies of the disputed documents to the Court for in-camera inspection.
In today’s per curiam opinion denying the requested writ, the Court wrote: “R.C. 149.43(A)(1)(v) exempts ‘[r]ecords the release of which is prohibited by state or federal law’ from the definition of ‘public record.’ ... In Ohio, the attorney-client privilege is governed both by statute, R.C. 2317.02(A), which provides a testimonial privilege, and by common law, which broadly protects against any dissemination of information obtained in the confidential attorney-client relationship.”
“ ... The school district refused to make the requested itemized attorney-billing statements available to Dawson because the statements contained detailed descriptions of work performed by the district’s attorneys, statements concerning their communications to each other and insurance counsel, and the issues they researched. The withheld records are either covered by the attorney-client privilege or so inextricably intertwined with the privileged materials as to also be exempt from disclosure. Therefore, the school district properly responded to Dawson’s request for itemized invoices of law firms providing legal services to the district in matters involving Dawson and her children by providing her with summaries of the invoices including the attorney’s name, the fee total, and the general matter involved. No further access to the detailed narratives contained in the itemized billing statements was warranted.”
“The February 9, 2010 letter from the school district’s insurance company to the district identifying Janet Cooper as the district’s attorney in Dawson’s due-process lawsuit against the district is also protected by the attorney-client privilege. The letter, which was addressed to the district and copied to the insurance counsel who would represent the district, evaluates Dawson’s claim and the extent to which the claim might be covered by the district’s insurance policy and instructs the district to cooperate with the insurance company and the attorney selected by the company to represent the school district to preserve its insurance coverage. In effect, the insurance company stands in the shoes of the district, and its letter naming Cooper as the district’s attorney in Dawson’s due-process lawsuit is covered by the attorney-client privilege.”
The Court’s 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 concurred in judgment only.
The court's opinion is linked here. (Mike Frisch)
What's In A Name?
The South Carolina Supreme Court has imposed a prospective suspension of six months on the following agreed facts:
In 2005, respondent and his wife separated and, in 2007, became involved in a contentious divorce. Between July 2007 and February 2008, respondent was charged with criminal domestic violence, two counts of trespassing, second degree burglary, stalking, and simple assault. As a result of these arrests, respondent was placed on interim suspension...The criminal charges involved matters with respondent's former wife and former sister-in-law.
All charges against respondent were later dismissed with prejudice and the solicitor issued a letter stating that, after thorough and complete investigation, he believed that the matters did not rise to the level of criminal wrongdoing and that all of the matters should be dealt with by the Family Court.
Respondent denies he committed any crimes as alleged by his former wife and former sister-in-law. However, he admits he could have used better judgment.
In 2010, after the criminal charges were dismissed, respondent filed a pro se action against the City of Columbia alleging false arrest. In the course of representing himself in the matter, respondent subpoenaed Witness A, a former neighbor and long-time friend of both he and his former wife, to give a deposition. Witness A was not a witness to any of the matters out of which the criminal charges against respondent arose; however, Witness A had provided an affidavit in support of respondent's former wife during the divorce proceeding. Respondent also subpoenaed two other former neighbors who had supported his former wife during the divorce proceedings. Respondent admits he subpoenaed the three witnesses to take their depositions as he believed that they might have information regarding the allegations of criminal wrongdoings made by his former wife. Respondent fails to explain why the testimony of any of these witnesses was pertinent to his suit against the City.
Over the course of two days, respondent deposed Witness A for over five hours, including breaks. Respondent admits he asked improper questions during the deposition. He further admits that there were times when he talked over the deponent and there were instances where he did not let Witness A finish his answer.
In addition, respondent admits he asked a number of improper questions of Witness A. In particular, he asked Witness A about his sexual orientation and whether he had been tested for HIV. He also asked Witness A whether he had Alzheimer's Disease when the witness' recollection was incomplete. Respondent admits the question should not have been asked in this fashion.
Respondent regrets and apologizes for his questions during the deposition. He submits that the stress of his divorce and of deposing a former friend who had sided with his former wife in their divorce caused his emotions to get the better of him.
Respondent has since signed a Settlement Agreement and Release and Stipulation of Dismissal concluding the matter against the City of Columbia and its police department.
The court noted:
Although we accept the Agreement, the Court is deeply concerned about respondent's emotional state and his ability to execute sound judgment. As evidenced by the facts presented in the Agreement and respondent's testimony during oral argument, respondent is obsessed with regaining his reputation in the community and with his ex-wife from whom he has been separated and/or divorced for approximately six years. Further, during argument, he initially refused to accept any responsibility with regard to the instances which led to his several arrests and, instead, characterized himself as the victim in each of the situations. Consequently, we order respondent to continue psychological counseling for two (2) years, require respondent's counselor to file quarterly reports addressing respondent's progress with the Commission, and authorize the Investigative Panel of the Commission to extend the counseling requirement at the conclusion of the two (2) year period if it deems it necessary.
The suspension was imposed prospectively because the deposition misconduct took place during the interim suspension. Given the allegations in the first matter, it is unfortunate that the attorney's last name is Hammer. (Mike Frisch)
November 28, 2011
Suspension Imposed For Craigslist Ad
The disciplinary case involving an attorney who advertised on Craigslist for a secretary with duties other than secretarial has been brought to closure with the following order of the Illinois Supreme Court:
The motion by the Administrator of the Attorney Registration and Disciplinary Commission to approve and confirm the report and recommendation of the Hearing Board is allowed, and respondent Samir Zia Chowhan is suspended from the practice of law for one (1) year and until further order of the Court.
Our prior coverage is linked here. The misconduct also involved a follow up e-mail to an applicant. (Mike Frisch)
Not "Endorsed By the New York Times"
A New York City civil court judge has been admonished for misconduct in connection with her campaign for judicial office.
A majority of the Commission on Judicial Conduct found that the judge reviewed and used a campaign palm card that included photos of her and another judge.
The other judge had been endorsed by the New York Times. The disciplined judge had not. The words "Endorsed by the New York Times" appeared on both sides of the card "in such a manner that it could be interpreted to mean that both respondent and [the other judge] had been endorsed by the Times."
The other judge raised concerns about the palm card prior to the election. The judge consulted with her father and her campaign manager and relied on their advice to continue to use the palm card.
A dissent would find the activity protected by the First Amendment:
As a Commission, our duty is to respect both the First Amendment and the quandry this system imposes on judicial candidates. It ain't pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That's the least the First Amendment demands and the least we can do to be fair to judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.
In this case, the referee has ably documented the reasons why [the judge] should not be disciplined for participating in the process we all require her to endure. Though she and we may wish that the palm card had been handled differently in retrospect, her hindsight and our aspirations are not a basis to find that she violated the rules.
The commission's press release is linked here. (Mike Frisch)
A Louisiana hearing committee has found no misconduct in two matters charged by the Office of Disciplinary Counsel.
One matter involved allegations that the attorney engaged in unauthorized Colorado practice. The hearing committee found that she had responded to the Colorado district court's invitation for a submission and that she represented that she was the litigant's Louisiana attorney:
Suffice it to say, Respondent unknowingly stepped into the trap unwittingly divined by [the Colorado judge] by complying with his orders to provide further submissions to the court...
She had sought no relief from the Colorado court.
The findings in the other matter were ordered sealed by the hearing committee. (Mike Frisch)