May 11, 2012
Better Late Than Never
The Nebraska Supreme Court has imposed the reciprocal discipline of disbarment based on the same sanction imposed in the District of Columbia in 1983.
The attorney had failed to advise the Nebraska Bar of the D.C. discipline.
There is no indication as to how the matter came to light 29 years later. (Mike Frisch)
The Vermont Supreme Court has disbarred an attorney as reciprocal discipline based on an order of disbarment from the New Hampshire Supreme Court.
The attorney had been convicted of a criminal offense involving his attempt to persuade a witness in a criminal proceeding to withhold evidence.
The attorney had attempted to resign from the Vermont Bar but failed to comply with governing procedural requirements. The court concluded that disbarment was the appropriate sanction given the gravity of the offense.
Hope he's not admitted in D.C. See below. (Mike Frisch)
Disbarred In Maryland, Fit To Practice In D.C.?
An attorney who was disbarred in Maryland in 2010 also is admitted to practice in the District of Columbia.
In the reciprocal disclinary proceeding, the D.C. Board on Professional Responsibility ("BPR") has recently recommended a sanction that will automatically reinstate him on probation after a one-year suspension.
The Maryland Court of Appeals found that the attorney had abandoned two clients, misrepresented (that is to say lied about) the status of the matter to one of the clients and failed to cooperate with Bar Counsel. He also showed no remorse for the misconduct.
In D.C., he had previously been informally admonished and, just recently, suspended for 45 days for misconduct in unrelated matters.
Why did the BPR conclude not only that disbarment was inappropriate but that the attorney was presently fit to represent District of Columbia clients?
...a fitness requirement is frequently part of the discipline imposed in multiple cases of neglect coupled with other violations, and this case is close, given that Respondent lost track of [one] case entirely and cannot explain what happened to some 50 checks that were sent to his offices by GEICO...we do not think the misconduct raises a question of basic character that would require a fitness showing...Rather, his misconduct relates principally to his organizational skills and ability to keep track of the various cases in his office. The record demonstrates sloppy recordkeeping and a failure to communicate that resulted in his abandonment of client matters.
Does this analysis explain the misrepresentation to the client and failure to cooperate?
If the question of fitness is a "close" one (a dubious proposition in my mind), why not err on the side of protecting the public?
When the D.C. Court of Appeals imposed an interim suspension based on the Maryland disbarment in January 2011, the attorney was ordered to file an affidavit certifying that he had ceased to practice in the jurisdiction. He never did so. The BPR does not consider (or even mention) his defiance of the court's order.
This recommendation reflects an error of law as well as of judgment. The board invokes the Cater precedent, which places the burden on Bar Counsel to establish unfitness to practice in an original matter. In reciprocal matters, the burden is reversed and the attorney must establish that the Maryland Court's unfitness conclusion is outside the range of possible sanctions.
The case is In re David Fox and can be found at this link by inserting his name. (Mike Frisch)
Traffic In East Greenbush
The New York State Commission on Judicial Conduct has ordered that a town court justice for East Greenbush be removed from office for misconduct in two traffic matters.
One of the matters involved improper intervention on behalf of the spouse of a fellow justice. The other involved a speeding ticket issued to the justice herself. She accepted special treatment with respect to the ticket.
The justice had previously served as the town attorney for East Greenbush and, in that capacity, was responsible for prosecuting traffic tickets. (Mike Frisch)
May 10, 2012
Where The Buffalo Don't Roam
The South Dakota Supreme Court has affirmed judgment on behalf of actor Kevin Costner in a lawsuit brought against him by a sculptor he had commissioned to design 17 buffalo and Lakota warrior sculptures, originally intended for display on a luxury resort he planned to build near Deadwood.
The resort was not built and the scuptures are displayed elsewhere.
The Washington Post has this report.
Costner is perhaps best known for having the same birth date as me, although he is a bit younger. (Mike Frisch)
Hate Crimes Lead To Disbarment
The New York Appellate Division for the Third Judicial Department has accepted the resignation of an attorney and ordered his disbarment as a result of his conviction on two felony counts of aggravated harassment in the second degree.
The New Jersey Herald reported on the conviction and sentencing:
A former lawyer for New York's Department of Civil Service has been sentenced to prison for making more than 200 threatening and racist phone calls to neighbors and others in Albany.
Albany County District Attorney David Soares says 59-year-old James Hennessey used an online service in an effort to disguise the origin of the calls made over three months in 2010. The targets included African Americans, people with black spouses or other relatives and people renting to blacks.
Hennessey had pleaded guilty to two counts of aggravated harassment as a hate crime and was sentenced Wednesday to one to three years in state prison. He resigned from his state job earlier this year.
Assistant Corporation Counsel Suspended
The New Jersey Supreme Court imposed a suspension of one year and untiul further court order of an attorney who pleaded guilty to attempted criminal coercion, official action, a third-degree crime.
The attorney was an Assistant Corporation Counsel. He threatened to file a lawsuit against the Corporation Counsel Director unless he was promoted and paid $750,000. He claimed that the Director had improperly awarded a city contract to his former employer and had engaged in workplace discrimination.
The evidence was a memo and email as well as a recorded conversation in which the attorney demanded payment and promotion for his silence. (Mike Frisch)
Stung But Not Disbarred
An attorney convicted of money laundering has been suspended for three years by the New Jersey Supreme Court.
The conviction was the result of an FBI sting operation. The attorney thought he was assisting a client going through a bitter divorce.
The court rejected the disbarment recommendation of the majority of its Disciplinary Review Board, which noted:
In essense, repondent asks us to retry his criminal matter and to find that he was just an innocent player in the sting operation....respondent's conviction is conclusive evidence of his guilt. Despite his claim of ignorance and/or naitete, a jury found that he knbowingly and voluntarily joined in a conspiracy to launder money. He did not appeal that finding, but only his sentence.
Unfortunately, the court order does not explain its reasoning in rejecting the disbarment recommendation. (Mike Frisch)
"Serious Failings" Draw 60 Day Suspension
An attorney convicted of misdemeanor grand theft in California has been suspended for 60 days by the Wisconsin Supreme Court:
We adopt the findings of fact and conclusions of law set forth in the referee's report and recommendation. Attorney...s' misconduct with respect to his California criminal conviction, his failure to notify the OLR and the clerk of this court of that conviction, and his failure to cooperate with the OLR's investigation are serious failings warranting a suspension of his license to practice law in Wisconsin. A 60-day suspension of his law license is appropriate discipline for his professional misconduct.
Chief Judge Abrahamson dissented, and called the sanction "inadequate." (Mike Frisch)
May 9, 2012
The Oklahoma Supreme Court has reinstated and imposed a public censure of an attorney who had agreed to a suspension based on his incapacity in March 2010.
The attorney was the subject of a number of bar complaints. At the time:
It is undisputed that during the same period that complaints were being received, [he] was involved in significant personal and professional situations which resulted in his entering an extended period of debilitating depression and anxiety severe enough to bring on panic attacks. Factors contributing to the attorney's mental state included: a difficult divorce involving child custody issues, resulting in the attorney receiving an unsatisfactory visitation schedule; the suicide of a close friend for which, to some extent, [he] thought himself responsible; an extended illness of an office mate increasing the attorney's work load; and an unplanned office split in which the partnering attorney took all the office furniture, the client files, the computer, had the office telephone number transferred, and drained all cash from bank accounts leaving [him] with business-related bills and no resources to pay them.
The attorney sought reinstatement in August 2011. The court treated the petition as a motion to lift the interim suspension and ordered the Bar Association to eastablish either the misconduct or the attorney's incapacity by clear and convincing evidence.
After proceedings, the court found that the attorney had engaged in misconduct but no longer is incapacitated from practice.
The court found that the attorney "was under an incredible amount of stress" in that
[The attorney] has two sons. During the time of the misconduct, he was going through a difficult divorce resulting in time with the children being limited. He felt guilty for failing his sons. Originally, [he] had three attorneys in his firm. One of the lawyers experienced an extended illness during which she was absent from the office, resulting in work loads being increased on the two remaining attorneys. Becoming frustrated with the situation, the second attorney left the practice, leaving [him] responsible for his own clients and those of the remaining lawyer. To add insult to injury, the attorney for whom [he] had been covering came in and took all the office furniture, files, computer, and other equipment, and drained the firm's operating accounts, leaving [him] with bills but no assets. During this period, [he] had already begun to withdraw and was spending most of his time locked in his apartment. One friend tried to call him every day over several weeks, but [he] could not bring himself to pick up the phone. His guilt and withdrawal became worse when he was informed that the friend had committed suicide. [He] began to have panic attacks whenever he attempted to go into his office or to answer phone calls.
The court expressed some concerns about the manner in which the Bar Association handled the matter:
Before addressing the appropriate discipline to be imposed for [the] misconduct, we find it necessary to comment on the manner in which the Bar Association handled this cause. The Bar Association made promises to [the attorney] it had no authority to make. [He] had every right under the disciplinary rules to expect that as long as the matter remained simply a Rule 10 proceeding and this Court did not order otherwise, all proceedings would remain confidential. However, the Bar Association apparently guaranteed confidentiality throught the disciplinary process without any authority...
Because of the promises, the court suspended confidentiality with respect to its opinion but ordered that the records and transcripts of the proceedings remain non-public. (Mike Frisch)
May 8, 2012
Attorney Accused Of Plagiarizing From ABA
The Illinois Administrator has filled a complaint alleging the following:
At all times alleged in this complaint, Respondent maintained a website for her law firm at the web address www.kyzlaw.com on which she posted articles about topics related to her practice area, as well as topics related to current issues in the news. Respondent was solely responsible for the content posted on that website.
In December 2008 the Illinois State Bar Association ("ISBA") published an articled authored by Helen W. Gunnarsson ("Gunnarsson"), entitled "Real estate and divorce: No more transfer-tax exemption?" On or about March 5, 2009, Respondent published a verbatim copy of Gunnarsson’s article on her website.
Respondent did not identify Gunnarsson as the author of the article and she did not credit the December 2008 ISBA article as the source of the information posted on Respondent’s website. Respondent posted a picture of herself beneath the article followed by the words "About Jane Kim," to create the false impression that Respondent had written the article.
On or about June 16, 2009, in response to a comment posted regarding the article described ...above, Respondent wrote "I control all content and it is solely my own content posted on this site."
Respondent’s statement that it was solely her own content posted on the website was false, and Respondent knew it was false, because she did not author the article described...above.
The ISBA published an article in its September 2011 Illinois Bar Journal authored by Gunnarsson and entitled "The Five Biggest Business Mistakes Lawyers Make." On August 26, 2011, the American Bar Association ("ABA") published an article authored by Debra Cassens Weiss ("Weiss") entitled "Why It’s a Mistake to Be the Cheapest Lawyer in Town." Weiss’ article commented on sections of the ISBA’s article published in its September 2011 Journal.
On or about August 27, 2011, Respondent published an article on her website entitled "Why It Is a Mistake to Hire the Cheapest Lawyer In Town." The article appearing on the kyzlaw.com website contained verbatim excerpts from the article published in the ISBA’s September 2011 Illinois Bar Journal and authored by Gunnarsson, and from the August 2011 article published by the ABA and authored by Weiss.
Respondent did not credit the September 2011 ISBA article or the August 26, 2011 ABA article as the sources of the information posted on Respondent’s website, nor did she credit Gunnarsson or Weiss as the authors of the direct quotes she used in her article. Respondent posted a picture of herself beneath the article followed by the words "about Jane Kim," to create the false impression that Respondent had written the article.
State Senator Suspended
The web page of the Pennsylvania Disciplinary Board reports the interim suspension of a state senator as a result of a recent criminal conviction.
Details from Pennlive.com:
Republican state Sen. Jane Orie has been convicted on 14 counts of theft of services, conflict of interest, and forgery but acquitted of 10 other counts including perjury and document tampering that stemmed from her testimony before a judge declared a mistrial last year.
Prosecutors said the Pittsburgh-area lawmaker used her state-funded legislative staff since 2001 to perform campaign work for herself and a sister, state Supreme Court Justice Joan Orie Melvin. Melvin wasn't charged.
Orie's conviction Monday means she'll almost certainly be removed from office and lose her state pension. She was elected to the Senate in a 2001 special election to fill an empty seat, and has been re-elected in 2002, 2006 and 2010.
New York Declines To Extend Wieder Exception
The New York Court of Appeals has declined to extend the Wieder exception to the doctrine of at-will employment and affirmed the grant of summary judgment to a defendant hedge fund company and its president, who had fired its chief compliance officer.
The plaintiff had claimed he was fired for reporting misconduct.
The Wieder exception involved an attorney who had been fired from his law firm for reporting unethical conduct.
Chief Judge Lippman dissented:
In the wake of the devastation caused by fraudulent financial schemes - such as the Madoff ponzi operation, infamous for many reasons including the length of time during which it continued undetected - the courts can ill afford to turn a blind eye to the potential for abuses that may be committed by unscupulous financial services companies in violation of the public trust and law. In the absence of conscientious efforts by those insiders entrusted to report such abuses of investors, such behavior can run rampant until a third part outside the company discovers it and takes action. The message that will be taken from the majority's decision is self-evident: if compliance officers (and other similarly situated) wish to keep their jobs, they should keep their heads down and ignore good-faith suspicions or evidence they may have that their employers have engaged in illegal and unethical behavior, even where such violations could cause or have caused staggering losses to their employer's clients. The majority's conclusion that an investment advisor like Peconic has every right to fire its compliance officer, simply for doing his job, flies into the face of what we have learned from the Madoff debacle, runs counter to the letter and spirit of the Court's precedent, and facilitates the perpetration of frauds on the public.
May 7, 2012
Judge Removed For Pursuing Unwanted Romance With Attorney
In a matter involving confidential complaints, the Delaware Supreme Court has ordered the removal of a family court judge, one day after his pension entitlement vests.
The complaints alleged that the judge had "attempted to establish an inappropriately close social relationship with a young female attorney (Complainant #1)" who regularly appeared before him. Complainant #2 was the chief judge of the family court.
After "[e]nergetic efforts to resolve the complaints failed," the matter was heard by a Board of Examining Officers appointed by the Court. The board found that the judge had engaged in ex parte communications with Complainant #1 and "after developing and expressing romantic feelings for [her], continued to preside over cases in which she participated."
Mere social contacts with Members of the Bar, including those who appear before judges, alone do not constitute a violation of the Delaware Judges' Code of Judicial Conduct. But, where those contacts rise to the level of personal and emotional attachments, no matter how unrealistic, one-sided, and unreciprocated, judges must take steps to preserve public confidence in their integrity and impartiality. Here, Respondent, despite clearly rebuffed overtures, continued to pursue a relationship and presided over cases in which Complainant #1 appeared.
The board did not find that the judge's decisions were impacted by his interest in Complainant #1.
The judge may not take vacation days prior to his removal. He must pay up to $10,000 of Complainant #1's therapy bills and 75% of her reasonable counsel fees.
His judicial term expires on November 1, 2012. (Mike Frisch)
The New Jersey Supreme Court has reversed and remanded a determination not to disqualify an attorney retained in connection with delays in a construction dispute. The Appellate Division had affirmed the trial court's denial of the motion to disqualify.
The unanimous court held that the law firm's representation would violate Rule 1.9(a). The court found that the firm had provided advice and an opinion letter to a party and billed for approximately 20 hours of work. The firm thereafter entered an appearance on behalf of an opposing party.
The court found that the two representations were substantially related as it involved the "same discrete phase of the overall construction project, the same parties and the same dispute." In order to undertake the adverse matter, the law firm was required to have the former client's written permission. (Mike Frisch)
Not An Accident
After rejecting two petitions for voluntary discipline, the Georgia Supreme Court disbarred an attorney for misconduct in her own personal injury case.
The attorney was injured in a 2003 accident. She filed a pro se claim. At the trial, she offered into evidence two false documents. While admitting in the petitions for voluntary discipline that the documents were fabricated, she denied creating the documents.
The attorney had refused to testify in the bar proceedings. The special master found that she had either created or caused to be created the false documents and lied about it. (Mike Frisch)
Gone To Carolina
The Illinois Review Board has recommended a suspension of two years and until further court order in a case in which the attorney had abandoned his practice and moved to North Carolina:
None of the cases [the attorney] cites in favor of a lesser suspension involve attorneys who abandoned their practices and left the state without notice to their clients, agreed to settlements without client authorization, misrepresented the amount of a settlement to a client, and prevented their clients from obtaining their settlement funds by failing to finalize the settlements. Consequently, these cases do not support a recommendation of a lesser sanction in this case.
[The attorney] argues that his discipline should not run until further order of the court. We disagree. The vast majority of cases in which respondents have disregarded their obligation to participate in disciplinary proceedings result in disbarment or suspension until further order. See In re Pierce, 07 CH 32 (Review Board, July 30, 2009) at 5, approved and confirmed, No. M.R. 23393 (Nov. 17, 2009) ("The Administrator notes in his brief that, with only a single exception, all 145 disciplinary cases involving a default decided between 1998 and 2008 have resulted in either disbarment or a suspension until further order of the court"). Respondents who fail to appear for their hearing are generally required to establish their fitness before resuming practice because their absence not only demonstrates contempt for the disciplinary process and Rules of Professional Conduct but also "deprives the Hearing Board of the opportunity to assess the attorney's credibility and fitness to continue the practice of law." Pierce, 07 CH 32 Review Board Report and Recommendation at 4-5.
The need to assess fitness is particularly important in this case in light of [his] statement that "debilitating anxiety" prevented him from doing legal work. Because [he] chose not to appear, there was no evidence regarding his current mental state or whether he has obtained appropriate treatment for his anxiety. Thus, there is no evidence to support the conclusion that [he] is fit to practice law and manage client matters without repeating his misconduct. [He] needed to demonstrate that he is not a danger to future clients. He has not, and they need to be protected.
[The attorney] contends that the absence of evidence that he has experienced problems while practicing in North Carolina demonstrates that a suspension until further order is not warranted. We disagree. If [he] wanted this Board to consider as mitigation his practice in North Carolina, he was obligated to present evidence to support his assertion that he has corrected the problems that led to this proceeding. Having failed to do so, Beal has waived this argument. See In re Zurek, 99 CH 45 (Review Board, March 28, 2002) at 7, petition for leave to file exceptions denied, No. M.R. 18164 (Sept. 19, 2002) (unsupported contentions are waived). Because the record is silent with respect to [his] North Carolina practice, we have no basis to conclude that his conduct there has been appropriate. Nothing in the record would allow us to conclude that [he] is currently fit to practice law or will be when his recommended term of suspension ends.
Last, we have considered that [he] has no prior discipline but give this factor little weight in comparison with the serious misconduct and factors in aggravation.