January 6, 2012
Not For The Sake Of The Children
The web page of the Pennsylvania Disciplinary Board reports a recent disbarment by consent of an attorney who is the subject of this press release from the Philadelphia office of the FBI:
Roosevelt Hairston Jr. was charged in a three-count information with mail fraud, money laundering, and filing a false tax return for his embezzlement of $1.7 million from the Children’s Hospital of Philadelphia, United States Attorney Zane David Memeger announced. Hairston was employed in various senior positions at CHOP, including most recently as general counsel and executive vice president. The information alleges that, between 1999 and February 14, 2011, Hairston used dozens of false invoices he created for shell companies to steal from CHOP. Hairston was able to steal for so long because he occupied a position of trust at the hospital and because he engaged in extensive efforts to conceal and prolong the scheme. For example, when CHOP accounting personnel questioned some of the bogus invoices Hairston submitted, Hairston stole the identity of a long-time friend and created bogus e-mail addresses in the name of his friend. Hairston then sent e-mail messages to CHOP personnel to make it appear that the invoices were real.
Hairston used the funds he stole from CHOP to live a lavish lifestyle, purchasing luxury items like real estate, a luxury yacht with a captain to maintain the yacht, high-end automobiles, and many other luxury items.
The Daily Record had this report on the attorney's guilty plea. (Mike Frisch)
What We've Got Here Is A Failure To Communicate
A Louisiana Hearing Committee has proposed a suspension of 18 months for an attorney's lack of diligence, failure to communicate and failure to respond to the Bar's investigation in two matters.
In a separate matter, a Louisiana Hearing Committee has found similar violations and has recommended disbarment.
The post title comes from the movie Cool Hand Luke. (Mike Frisch)
The Iowa Supreme Court imposed a 60-day suspension of an attorney who had served as part-time county attorney in Lee County for nearly thirty years.
The attorney was permitted to have a part-time practice. The misconduct involved his forging the signature of a witness to a will. According to the court, "[a] vigilant employee in the clerk of the court's office doubted the authenticity of the purported signature of [the] witness..." The witness denied signing and the attorney admitted the forgery.
The court rejected the sanction of public reprimand proposed by the Grievance Commission, notwithstanding its "respectful consideration" of the recommendation. The court concluded that suspension was required to deter such misconduct. (Mike Frisch)
On The Road
The Iowa Supreme Court has imposed a 30-day suspension for misconduct that primarily involved trust account violations and failure to return unearned fees.
The court noted that the attorney has an extensive statewide criminal defense practice and handles major felony cases: "He drove over 120,000 miles throughout the state while pursuing a challenging and complex trial practice. In the last ten years alone, [he] represented 1105 clients of whom 225 were indigent. " He also "complied an admirable record of public service" coaching youth teams and in other community service.
Sloppy billing practices and a stressful trial schedule might explain delays in preparing and sending clients accurate billing statements, but does not justify a lawyer paying himself fees before earning them or failing to properly bill for them.
January 5, 2012
Judge Not Lest Ye Be Not Judged
The Illinois Review Board has recommended a two-year suspension of an attorney with one year stayed and probation for two years in a matter involving three counts of misconduct.
One aggravating factor found by the board is particularly noteworthy:
...Respondent sat for a number of years as a member of the ARDC Hearing Board. Indeed, he had served alongside the Chair of the panel that heard his own disciplinary case. Not long before the conversions in Count I and Count III, Respondent was part of the panel that issued the Report and Recommendation in the case of In re Handy, supra, 03 SH 118 (Hearing Bd., Sept. 29, 2004), Administrator’s motion to approve and confirm allowed, M.R. 19825 (Jan. 14, 2005), which recommended discipline for conversion and other misconduct. The panel commented that it "is well-established that funds an attorney receives on behalf of a client for a specific purpose must be held by the attorney and used only for the specific purpose." Id. at 31.
In our opinion, Respondent’s years of sitting in judgment of other attorneys should have given him a heightened awareness of the need to comply with the Rules of Professional Conduct where his clients’ money was concerned and to avoid dishonest behavior. Sadly, it did not. See In re Bush, 09 CH 113 (Hearing Bd., Nov. 1, 2010) ("In aggravation we also consider that during much of the time Respondent engaged in misconduct he served as assistant State’s Attorney….As a public official prosecuting crimes, Respondent should have been particularly sensitive to the impropriety of his conduct, …and the potential for damage to the reputation of his public office.").
The foregoing is of concern for two reasons. First, Respondent’s ability to turn a blind eye to his own conduct is troubling. The disconnect between his ARDC work and his own concurrent misdeeds, as well as his almost complete inability or unwillingness to accept responsibility for his actions or express remorse, suggests that the public may well need protection from Respondent. Throughout the hearing he denied any misconduct and offered excuses or explanations that the Board rejected as simply not believable. When asked by his attorney at the end of his examination if Respondent had anything to tell the panel, Respondent replied only that he "deeply regretted" his self-styled "technical conversion."
Secondly, that a Hearing Board member could engage in a pattern of serious misconduct from 2004-2007 while serving on Panels must surely impact the public’s confidence in the legal profession and also negatively impact the public’s view of the legal disciplinary system. In re Bush, Id., 09 CH 113 (Hearing Bd., Nov. 1, 2010).
There was additional aggravation in Respondent’s lack of candor and lack of remorse before the Board.
The board also rejected the claim that the Hearing Board Chair was biased against him. (Mike Frisch)
Discharge From Law Firm Employment Not Pretexual
In this employment discrimination action arising from the termination of the petitioner attorney by the respondent law firm, we reiterate that a petitioner's disability does not shield him from the consequences of workplace misconduct.
Respondent Hill Betts & Nash (hereinafter referred to as "HBN") terminated the petitioner, James Hazen, on March 15, 2006, upon discovering that the petitioner charged hotel rooms, limousines, alcohol, adult movies and calls to escort services to his corporate American Express card and then attempted to have these charges billed to clients. On August 30, 2006, HBN reported the petitioner's misconduct to the Departmental Disciplinary Committee for the First Judicial Department (hereinafter referred to as the "DDC"). The petitioner filed a verified complaint with the New York State Division of Human Rights (hereinafter referred to as the "DHR") on November 7, 2006 charging HBN with unlawful discrimination and retaliation. The petitioner claims that his misconduct was caused by his bipolar disorder, that HBN failed to accommodate his mental illness, that his termination was discriminatory, and that HBN retaliated against him by reporting him to the DDC.
The court concluded:
The record reflects that until the petitioner began receiving requests from HBN in December 2005 to account for his credit card expenses, there was no indication that the petitioner was suffering from a mental illness. By his own account, the petitioner was able to produce "quality professional legal work" during the time he was allegedly disabled, and argued his portion of a complex summary judgment motion on December 9, 2005. [petitioner's friend] Russotti testified that when he saw the petitioner in December, shortly before their January meeting, the petitioner's behavior did not seem unusual. The petitioner's doctor's records also indicate that neither the internist who had been treating him for more than a year for diabetes, nor the therapist who had been treating him for post-9/11 stress, diagnosed the petitioner with bipolar disorder or even mentioned the possibility that he was bipolar.
Furthermore, once the petitioner began alluding to an "emotional illness," HBN specifically requested the details of the petitioner's condition in order to evaluate the medical benefits available to the petitioner, and the petitioner flatly refused to provide any information. The communications from Russotti, the petitioner, and the petitioner's doctor, contained only vague references to emotional illness or "mood disorder," and thus did not fall into the category of an "impairment [...] which [...] is demonstrable by medically accepted clinical [...] techniques." Executive Law § 292(21)(a).
Thus, all that was before HBN when it terminated the petitioner on February 3 was that he had charged more than $21,000 in hotels and other personal expenses to the corporate credit card and tried to bill HBN's clients for personal expenses. Then, when confronted and asked for an explanation, he did not reimburse HBN and instead blamed his conduct on a "mood" illness, which he still did not identify.
Despite this total lack of evidence as to the petitioner's termination due to his bipolar disorder, the ALJ incomprehensibly found that HBN's legitimate reason for terminating the plaintiff was a pretext. The ALJ relied on evidence that another HBN attorney had charged $25,000 to his corporate credit card and was not terminated. However, this demonstrates only that the ALJ misapprehended the nature of the professional misconduct. The other HBN attorney did not attempt to charge clients for his personal expenses and paid the money back over time; therefore, his conduct is clearly distinguishable from the petitioner's, which essentially amounted to attempted theft from HBN and its clients.
Court Declines To Consider Permanent Disbarment In D.C.
The District of Columbia Court of Appeals agreed with a hearing committee's proposed denial of a petition for reinstatement. The court noted that the petitioner had not sought review of the adverse recommendation.
The court declined to consider the argument of Bar Counsel that the crimes committed by the petitioner were so grave that the disbarment should be deemed permanent.
The hearing committee described the offenses:
Petitioner was convicted of crimes that strike at the very integrity of the legal profession and judicial system. As a court-appointed attorney, he was given access to an array of juvenile defendants; he admittedly engaged in grossly inappropriate behavior with a number of them; perhaps as many as twenty. His admitted actions ranged from fondling to oral sex. His victims were particularly vulnerable to someone like Petitioner, who was generous to them. He was also able to exploit the power of his position - a fear that, if the victims did not succumb to his advances, Petitioner might lose interest in them as clients.
The petitioner had been disbarred in 1981. This was his first application for reinstatement.
There is no provision for permanent disbarment in the rules or decisions in the District of Columbia. The en banc court overruled an earlier precedent that prevented reinstatement of attorneys convicted of crimes involving moral turpitude.
Disclosure: I argued the en banc case on behalf of the Office of Bar Counsel. (Mike Frisch)
January 4, 2012
Drug Conspiracy And Moral Turpitude
A rather unsurprising outcome reported in the California Bar Journal:
[An attorney] was summarily disbarred Aug. 7, 2011, and was ordered to comply with rule 9.20 of the California Rules of Court.
[He] pleaded guilty in 2006 to conspiracy to import methamphetamine and conspiracy to import ephedrine. According to the charging document, [he] intended to manufacture and distribute methamphetamine knowing it would be imported to the United States. The Supreme Court has held that drug distribution involves moral turpitude. Because the crime is also a felony, it meets the criteria for summary disbarment.
[The attorney] has been on interim suspension since March 30, 2011.
It's A Puzzlement
The Maryland Court of Appeals has held that a defendant who qualifies for appointed counsel is entitled to representation at the bail hearing that takes place at an initial appearance. While other related proceedings may go forward, the defendant must be afforded the opportunity to have counsel before the bail is set. The court interpreted the state's Public Defender Act to require the result.
A concurring and dissenting opinion refers to the "otherwise righteous" majority opinion as "turn[ing] a deaf ear to the pleas of the Office of the Public Defender" and invokes Yul Brynner as the Pharoah in the movie The Ten Commandments:
So it is written; So let it be done.
The concurring/dissenting opinion would impose a modest stay to consider the budgetary and logistical issues that will result from the majority's ruling. (Mike Frisch)
January 3, 2012
Cheap Labor Costs Law License
The January 2012 online edition of the California Bar Journal reports:
[An attorney] was disbarred Aug. 13, 2011, and was ordered to make restitution and comply with rule 9.20 of the California Rules of Court.
[The attorney] pleaded guilty in 2009 to a felony violation of harboring an illegal alien for private financial gain. Between 1974 and 1984, while he was a police officer, [he] harbored an illegal Philippine immigrant who performed a variety of domestic duties at below-market rates. He had helped the victim enter the U.S. unlawfully.
In mitigation, [he][ had no prior discipline record, he cooperated with law enforcement and the State Bar and he agreed to pay the victim $15,000 plus interest.
Back To Practice In Pennsylvania
An attorney who had consented to disbarment in New Jersey and was disbarred as reciprocal discipline in Pennsylvania has been reinstated by the Pennsylvania Supreme Court.
The attorney had engaged in three instances of misappropriation motivated by his "desire to live a lifestyle that his earnings could not support."
He had filed and withdrawn an earlier reinstatement petition. Among the issues in that proceeding was evidence that he had misrepresented his status as an attorney on a Internet dating site after he was disbarred.
The court followed the recommendation of its Disciplinary Board, which cited his employment record as a security guard and later as a supervisor with a security company.
Disciplinary Counsel had opposed reinstatement. (Mike Frisch)
Ohio Bar Exam Questions And Answers
From the web page of the Ohio Supreme Court:
A compilation of the 12 essay questions and two multistate performance test (MPT) items from the July 2011 Ohio Bar Examination, along with actual applicant answers to each question, is now available, the Supreme Court of Ohio announced today.
Lee Ann Ward, director of the Supreme Court Office of Bar Admissions, stressed, “It’s important to remember that the published answers should not be considered model answers. They are not necessarily complete or correct in every aspect.”
“The published answers merely represent above-average performance by applicants who passed the July 2011 bar exam,” Ward said.
The Ohio Board of Bar Examiners is required by court rule to publish the essay questions from each exam.
The MPT items included on the July 2011 exam were prepared by the National Conference of Bar Examiners. Information about ordering copies of the MPT items and corresponding point sheets is available at www.ncbex.org.
The February bar exam will be administered February 28 through March 1.
An Illinois Hearing Board has recommended a stayed suspension with conditions of an attorney who received a deferred judgment in Colorado on felony charges of internet exploitation of a child.
The hearing board noted mitigating evidence:
Respondent also presented persuasive character evidence. Traditionally, character evidence is limited to an individual’s reputation in the community for truth and veracity. In this case, four witnesses testified regarding this point. All four stated Respondent’s reputation in the community for truth, veracity and integrity was good, but also opined most people in the community are not aware of his misconduct. Generally, based on these facts, the character testimony would be of limited value. However, we find the character testimony compelling for two reasons. First, as we have found, Respondent’s misconduct did not involve dishonesty. Therefore, it would not affect his reputation for truth and veracity. Second, the testimony of the three rabbis was persuasive and entitled to significant weight. The rabbis’ testimony went beyond general character witness testimony. Each of the rabbis is a learned and well-respected member of the Jewish community. Each expressed his belief Respondent has acknowledged his misconduct and is genuinely sorry for it. Each stated Respondent is committed to changing his behavior and ensuring he will not repeat his mistakes. Impressively, Rabbi Fuerst testified he and his community are so committed to Respondent and his family they are providing Respondent with ongoing financial support. The testimony of these individuals goes beyond the usual character testimony, and speaks to the actual character of Respondent. These are thoughtful individuals who would not testify on Respondent’s behalf unless they honestly believed in Respondent, and we give this testimony substantial weight.
The Administrator had sought a suspension of three years and until further court order. (Mike Frisch)
January 1, 2012
Test Tampering, Misappropriation, Results In Disbarment
A recent order of discipline is summarized in the December 2011 California Bar Journal:
A southern California lawyer who was dismissed from the Lawyer Assistance Program for twice tampering with urine tests was disbarred for misappropriating more than $120,000 from her clients. [The attorney] also was ordered to make restitution in what was her fourth discipline, beginning with a 2006 misdemeanor battery conviction. The disbarment took effect Oct. 20, 2011.
While acknowledging that [the attorney] “has had a traumatic life” with severe, ongoing problems including bankruptcy and a bipolar diagnosis, State Bar Court Judge Richard Honn recommended her disbarment because of the egregious nature of her misconduct.
Both matters that led to [her] disbarment involved divorces.
The full summary is linked here. (Mike Frisch)