July 20, 2012
The George Costanza Of Criminal Charges
This one is not a legal profession case, but is hard for an old Seinfeld fan to resist.
The New Mexico Supreme Court has reversed a decision of the Court of Appeals that rejected a defendant's claimed violation of his right to a speedy trial. The court here remanded the case for an evidentiary hearing.
The defendant is a licensed architectural draftsman. He was charged with offenses arising from allegations that he "had misrepresented himself as an architect." (Mike Frisch)
The Feeble "Queen" Excuse Does Not Fly
A reprimand is the sanction imposed by the New Jersey Supreme Court on an attorney who misled a judge in connection with his representation of a client charged with a misdemeanor offense.
The attorney practices in Princeton. The client was employed nearby at the school.The attorney communicated with a representative of the client. They were in regular contact.
The attorney wrote the judge expressing concern about the client's cooperation without copying either the client or the representative. He then raised the issue with the court at an unrelated proceeding outside their presence, and later claimed he was only seeking a postponement. Instead, the judge granted his withdrawal from the case.
The Disciplinary Review Board did not buy his explanation:
Respondent attempted to explain his silence on that day as deference to the Judge, taking the position that he could not "argue" with Judge Goldman, the "queen" in the court setting. We find respondent's excuse feeble, at best. Correcting a judge's misunderstanding is essential to the proper functioning of any court. Calmly advising Judge Goldman that he was seeking only an adjournment would not have been argumentative; it would have been enlightening. Could it be that respondent did not want to run the risk that, if he pressed the judge for an adjournment, she might deny the request, forcing him to change his travel plans? We do not know that. What we do know is that his actions were consistent with those of an attorney content to be relieved as counsel that day.
The attorney had ignored a post-withdrawal e-mail from the client representative.
The DRB noted that the range of sanctions for lack of candor to a tribunal varies from admonition to lengthy suspension. (Mike Frisch)
Former DA Denies Misconduct, Seeks Stay Of Bar Charges
An answer to bar charges filed on behalf of former Durham County (North Carolina) District Attorney Tracey Cline denies any misconduct and states that the actions taken that led to the allegations of misconduct were done in fulfilling her "solemn oath" of office.
A separate pleading seeks a stay of the bar charges pending appeal of the order removing her from office. (Mike Frisch)
Over 20,000 Served
The Ohio Supreme Court has appointed a panel of five judges to review findings filed by a panel of the Board of Commissioners on Grievances and Discipline concerning the campaign materials of a former magistrate who is running for a judicial office.
The panel found that the candidate violated governing rules by using materials and having a Facebook page in which she is depicted wearing a judicial robe without disclosing that she is not currently a judge.
The panel found no violation in materials that stated that she had "Heard Over 20,000 Cases" and was "Never Reversed On Appeal." (Mike Frisch)
Greed, Not Faith, Motivated Ethical Violations
The Illinois Review Board has recommended disbarment in a matter involving charges arising from the following facts:
The charges arise from Respondent's involvement with W2X, Inc. (W2X); RYM Technology Holdings (RYM); and In Jesus Christ's Name Investments, Inc. (IJCN). These three businesses targeted individuals who were facing foreclosure and advertised programs that would allow them to live in their homes for varying periods of time without paying their mortgage so they could get out of debt. The businesses used a sale-lease-buyback model in which they engaged straw buyers or "third party investors" (hereinafter "third-party investors") with good credit to obtain loans to purchase the distressed properties. In several instances, the third-party investors' loan applications contained false information about their income and assets. The third-party investors contributed no money toward the purchase of the properties and received compensation for their participation. The programs would then purportedly use the loan proceeds, closing cost credits, and the equity in the properties to pay the mortgage for a certain period of time. The homeowners/sellers typically had a grace period during which they did not have to make any housing payments. After the grace period ended, they were required to make rent payments for several years, which were sometimes described as "mortgage payments," and then had the option of regaining ownership of the property.
The homeowners/sellers in this matter testified that they did not understand that they were selling their homes. They believed that their property would be placed in trust for several years, their equity would be used to make mortgage payments during that time, and their mortgages would be paid in full by the end of their participation in the programs. Unfortunately, not only were the homeowners/sellers unaware that their homes were being sold, but W2X, RYM, and IJCN took the proceeds of the real estate transactions and failed to make the mortgage, property tax, and insurance payments for the properties in question. All of the properties in this matter were foreclosed upon or sold at tax sales, and several of the homeowners/sellers lost their homes. Respondent represented the homeowner/seller in each of the transactions at issue.
The Review Board affirmed findings of misconduct including overreaching, breach of fiduciary duties, and dishonesty and rejected the attorney's claim that her conduct was motivated by her religious faith:
Respondent took advantage of and caused significant financial harm to her clients at a time when they were financially vulnerable....Respondent's clients sought her out in an effort to prevent foreclosure and instead unknowingly surrendered title to their homes, with several losing their homes as a result of their participation in these fraudulent schemes. Many of Respondent's clients had to seek additional representation and file suit against Respondent and the other parties involved in an effort to save their homes or recoup some of their losses. As the Hearing Board notes, Respondent's misconduct also harmed the lenders in these transactions, who made hundreds of thousands of dollars in loans that were not repaid.
We also consider that Respondent violated her clients' trust for her own financial gain. Despite her protestations to the contrary, the evidence is clear that Respondent's actions were motivated by greed, not by a desire to help others. Respondent's self-serving motives are additional factors in aggravation.
July 19, 2012
The District of Columbia Court of Appeals reduced a one-year suspension in New York to a six-month suspension with automatic reinstatement as reciprocal discipline in a case involving "nonvenal misappropriation of funds and related offenses."
The court imposed the lesser sanction based on its conclusion that six months was the "usual" sanction for such misconduct and that "typically" no fitness requirement is imposed.
Bar Counsel had sought a one-year suspension with fitness. (Mike Frisch)
More Than A Few Mistakes
The Oregon Supreme Court has imposed a six-month suspension of an attorney for misconduct in two client matters.
The attorney was retained by a client arrested on a 24 year old warrant from Florida. He charged a retainer of $1,200. The client signed an extradition waiver but was never extradicted.
The court found the fee excessive. Further, the court found that the attorney had not responded to the bar complaint in a timely matter and that the attorney's eventual cooperatioon did not undo that violation.
in the second matter, the attorney's lapses were found to "not reflect a few mistakes. Rather, it reflects a pattern of ignorance of the most basic applicable rules and a failure to heed instructions of both the trial court and the Court of Appeals." (Mike Frisch)
Litany Of Failures Results In Reprimand
The Ohio Supreme Court has imposed a public reprimand of an attorney "for charging a nonrefundable fee without advising the client that she might be entitled to a refund of all or part of the fee if he did not complete the representation, failing to memorialize a contingent-fee agreement in a writing signed by the client, failing to hold a client's funds in an interest-bearing client trust account, and failing to promptly deliver the unearned fees and the client's file upon termination of the representation." (Mike Frisch)
Fee Splitting Draws Proposed Suspension
An Illinois Hearing Board has recommended a one year suspension of an attorney for misconduct found in his dealings with a company ("CCDN") that offered services to people who were experiencing credit card debt issues.
The hearing board described its sanction analysis:
Some of the dangers inherent in improper fee sharing and improper referral payments can be specifically seen in the facts in this case. The evidence showed [non-lawyer] Lindsey was a persuasive sales person who aggressively marketed and promoted the CCDN program to financially distressed individuals. In doing so, he was undoubtedly motivated by his desire to earn the sizable fee he collected for each referral, rather than by any concern for the welfare of these clients. In an effort to make these sales and earn his fees, Lindsey apparently provided potential clients with false and misleading information regarding what they could expect from the CCDN program. Respondent conceded he eventually terminated this relationship after learning from clients they had been misled by Lindsey.
We also note Respondent's misconduct was not an isolated transaction or a momentary lapse in judgment, but was a program in place for well over a year and constituted an improper arrangement formalized by contract, and involved extensive activity. Respondent admitted Lindsey was a significant source of business during the course of their relationship and referred at least 243 clients to CCDN. The arrangement clearly involved substantial sums of money and resulted in financial gain to both Respondent and Lindsey. Respondent admitted if Lindsey had adhered to the terms of their agreement and paid CCDN $2,800 per client, CCDN would have received over $680,000 for these referrals. Although Lindsey apparently kept a significant portion of CCDN fees, as well as his own, CCDN still received over $210,000 from the arrangement. Thus, there is no doubt Respondent's involvement with Lindsey was motivated by financial gain.
In mitigation, we note Respondent did take some action when he learned of Lindsey's improper conduct. Respondent testified he not only terminated the relationship, he also reported Lindsey to the Texas Attorney General's Office, which then shut Lindsey's business down. Respondent also wrote his clients, informed them of these problems, and encouraged them to contact the
Texas Attorney General.
We also consider in mitigation that Respondent has been practicing law for 23 years and has not been previously disciplined. He also testified regarding his extensive involvement in various community organizations, activities, and charitable causes, and has also been involved in
some pro bono legal and other volunteer work.
The hearing board rejected charges that the attorney's course of conduct involved dishonesty and fraud. (Mike Frisch)
Former Congressional Aide Suspended
The web page of the Pennsylvania Supreme Court reports the interim suspwension of an attorney convicted of federal criminal charges.
The Broward Palm Beach New Times Blog describes the attorney as a former aide to Rep. Alcee Hastings:
In a brief statement from Hastings' office, the congressman says, "Today, I learned that Mikel Jones was found guilty of certain charges against him in the United States District Court Eastern District of Pennsylvania. He is no longer employed by my Congressional office."
According to the FBI, Jones was acquitted of several counts of mail and wire fraud involving thefts from the City of Philadelphia, and his wife was not charged in those allegations.
The FBI says Jones obtained a multimillion-dollar line of credit from a New York lender in February 2006 with the agreement that he'd use the money only for "legitimate expenses" related to operating his law firm.
Jones and his wife then began stealing the money under the name of another company they controlled, Strata-Tech, by making fake invoices with that name, as well as the name of Comcast-Spectator -- the company that owns the Philadelphia Flyers and used to own the Philadelphia 76ers -- which never provided any goods or services to the Joneses' law firm, the FBI says.
According to the feds, they'd use the money to pay off credit-card debt and buy 76ers tickets from Comcast-Spectator and also laundered around $160,000 of that fraudulently obtained money into the Florida bank accounts of Dona Nichols Jones and her daughter.
Between 2008 and 2009, feds say the Joneses obtained more than $350,000 through the fake-invoice scheme.
July 18, 2012
$20 Per Hour Overcharge And Escrow Lapse Draws Suspension, Not Disbarment
The North Dakota Supreme Court rejected a proposed sanction of disbarment as "inconsistent with and disproportionate to discipline imposed in similar cases" based on charges described in the court's opinion:
The Petition alleged that in approximately September 2010, Doyle and Sandra Burkhardt retained Mahler to advise them regarding a water drainage issue and paid him a $2,500 retainer. Mahler agreed to charge $100 per hour for his services. The retainer was deposited into Mahler's operating account rather than a trust account. Mahler spent the retainer on other obligations prior to earning the fees. In addition, following a Water Board Meeting during or around November 2010, Mahler failed to communicate with the Burkhardts. During the course of these proceedings, Mahler provided an invoice in which he charged $120 per hour for his services, rather than the agreed upon $100 per hour.
The court ordered a three-year suspension as well as restitution to the clients. (Mike Frisch)
Order Against Judicial Candidate Reversed
The cease and desist order had found that the candidate had violated judicial canons of ethics by referring to himself as "judge" when he was a retired judge.
The panel found the order unconstitutional as applied. (Mike Frisch)
July 17, 2012
The Free Will Of Rocky Aoki
The New York Appellate Division for the First Judicial Department affirmed the admission to probate of the will of Rocky Aoki:
In 1959, decedent Rocky Aoki, founder of the Benihana restaurant chain, came to the United States from Japan with the Japanese wrestling team. He enrolled in the School of Restaurant Management at New York City Technical College in Manhattan. He made a living by washing dishes, driving an ice cream truck, and working as a tour guide. In 1963, Rocky took his savings of $10,000, borrowed $20,000 more, and opened the first Benihana restaurant on West 56th Street in Manhattan, which proved to be successful, and the rest is history...
As to undue influence, the court found that "abundant" evidence — including legal agreements, Rocky's letters, deposition testimony and videos, together with statements by persons who would not gain under the will — supplied the requisite "contrary inference" to objectants' evidence that [wife] Keiko allegedly orchestrated a transfer of the assets in Rocky's estate to herself. The
Surrogate noted Rocky's expressed "overwhelming desire to preserve the Aoki legacy throughcontrol of the Benihana empire," and his belief that, in light of his children's behavior, Keiko was best suited to ensure that his testamentary wishes were respected. The Surrogate also noted that the heavy tax consequences of a division of Rocky's assets among the children upon his death would have virtually ensured liquidation of the Aoki holdings in Benihana to meet the tax burden. The Surrogate found that the "friend" affidavits submitted by objectants to demonstrate undue influence, when "[r]ead collectively," were "filled with hearsay, speculation and surmise." The court noted that many of the individuals who supplied affidavits lived in areas affording only limited opportunity for observing Rocky following his marriage to Keiko. Further, the court found that even assuming the truth of the affidavits, undue influence would not be established since there was no evidence that Keiko forced Rocky to execute the 2007 will against his wishes. Also found unavailing was objectants' argument that the liaison between Rocky and Keiko was more akin to a confidential relationship than a marital one such that an inference of undue influence might be drawn, noting objectants' burden to establish disparate power and control by Keiko over Rocky and the ultimate futility in overcoming the "contrary inference" where the evidence is equally consistent with the exercise of free will.
A Bad Month Gets Worse
An attorney who has not been cooperative with ongoing bar investigations has been suspended in an interim basis by the New York Appellate Division for the First Judicial Department.
As to the first complaint:
In June 2010, one of respondent's clients, who had retained respondent with
respect to a matrimonial matter, filed a complaint with the Committee alleging
that respondent neglected his case and failed to account for $4,782 in escrow
funds. The Committee forwarded a copy of the complaint to respondent on July 15, 2010, requesting he submit an answer. When respondent failed to respond, the Committee telephoned respondent and left a message. Two days later, on August 13, 2010, respondent contacted the Committee and requested an adjournment until August 18. However, respondent did not submit an answer by that date. On September 8, 2010, respondent secured a further adjournment until September 14, but, once again, no answer was received. By letter dated October 14, 2010 and mailed by regular and certified mail, the Committee advised respondent that he had 10 days to submit a response to the complaint and that a failure on his part was grounds for suspension. Once again, no answer was provided. Thereafter, from November 2010 through mid-February 2011, Committee Staff had five separate conversations with respondent during which he offered various explanations for his failure to submit an answer, including that he had been in a car accident, he had had a "bad month," and that a long holiday weekend and family illness had
prevented his compliance.
Following numerous adjournments granted by the Committee, respondent finally submitted an answer to the complaint on February 18, 2011. Respondent stated, among other things, that any monies that were being held in escrow "were used to pay [the client's] ex-wife  due under the divorce judgment, and counsel fees which [the client] agreed to pay to his exwife's lawyers." Respondent's answer was sent to the client, who submitted a reply wherein he stated:
Before following up on Mr. Mainieros' response to my complaint I contacted him. I agreed to drop my complaint if he reimbursed me for my court ordered escrow. Additionally Mr. Mainiero agreed to reimburse my additional expenses which were $750 to hire another lawyer to finish the legal work Mr. Mainiero never completed and $400 for a judgment which was placed on my credit report....
After bouncing one check Mr. Mainiero did pay back my escrow and my attorney fee but I never received the $400. Mr. Mainiero has failed to return any of my calls or messages. For this reason I would like to proceed with my complaint.
Two more complaints were filed against the attorney by matrimonial clients.
The court concluded:
Here, respondent's conduct is willful insofar as the Committee has given him
numerous opportunities and accommodations to cooperate with its investigation of his clients' various complaints, but he has not taken advantage of those chances. Although he initially cooperated with the first complaint, albeit after months of adjournments, he eventually failed to respond to Committee inquiries and failed to provide relevant bank records subpoenaed by the Committee. In addition, respondent has defaulted on this motion seeking his immediate suspension.
Judges and Software Funding
A recent opinion of the Florida Judicial Ethics Advisory Committee:
Whether a judge may, with the chief judge’s approval, appear and speak in support of a specific software funding request to the county commission, which provides funding for judicial technology and software in the county where the judge sits.
Whether a judge may speak individually to county commissioners in a private setting regarding the judge’s support of a specific software funding request being considered by the county commission, which provides funding for judicial technology and software in the county where the judge sits.
ANSWER: Yes, if such conduct is not prohibited by any provision of law.
As to the second issue:
It is unclear from this inquiry whether the judge intends to support or endorse a particular software provider or software product or intends simply to speak in support of the judiciary’s need for a specific type of software that may be purchased from multiple vendors. A majority of the Committee would advise the judge not to support or endorse a particular software provider or software product in order to avoid violating Canon 2B’s prohibition against lending the prestige of the judicial office to advance the private interests of another. Nevertheless, the Committee believes a judge is permitted to address, with the entity responsible for funding judicial software needs, the pros and cons of disparate software providers and software products, based upon the judge’s experience and expertise regarding those needs. To provide the funding entity with information to assist it with its budgetary responsibilities, the judge is permitted to discuss and express an opinion on why one provider or one product is more conducive to the judiciary’s needs than another. Of course, this is dependent upon the judge’s motivation. That is, if the judge is solely motivated by a desire to act in the best interests of the judiciary, then such discussions are permissible. But, if the judge is in any way motivated by a desire to lend the prestige of the judge’s office to advance the private interests of a particular vendor, then such discussions are prohibited.
Divorced Spouse Not Domestic Partner
A hearing panel of the Ohio Board of Commissioners on Grievances and Discipline has concluded that an Akron Municipal Court judge violated campaign ethics rules by accepting a $25,000 loan from her former husband.
The panel rejected the judge's argument that the loan was proper because the former husband was her "domestic partner."
The panel noted that the loan had been repaid and recommended that a cease and desist order be entered. (Mike Frisch)
Judge Not Thy Spouse's Office
From the South Carolina Advisory Committee on Standards of Judicial Conduct:
OPINION NO. 10 - 2012
RE: Propriety of a full-time magistrate trying criminal cases where the
magistrate’s spouse is the head victim’s advocate for the Solicitor’s office.
A full-time magistrate’s spouse is the head victim’s advocate for the
Solicitor’s office in the same county where the magistrate serves. The
magistrate currently only handles civil cases, but may be given additional
responsibilities. The magistrate inquires into the propriety of handling
criminal cases under these circumstances.
A full-time judge may not try criminal cases in which the Solicitor appears
where the judge’s spouse is the head victim’s advocate for the Solicitor’s
office in the same county.
This Committee has previously addressed similar situations. Most recently,
in 4-2011, this Committee considered whether a full time magistrate could handle
criminal cases where the magistrate’s spouse was the lead investigator for the
solicitor’s office. The Committee determined that the judge could not preside
over such cases because the judge’s spouse could appear before the judge as a
witness for the Solicitor, which would violate Canon E.(1)(d)(iv) (Where a
judge’s spouse or other person within the third degree of a relationship is
likely to be a material witness, a judge should disqualify himself or herself).
In addition, Canons 1 and 2 of the Code of Judicial Conduct would be violated
because that situation would create the appearance of impropriety and would
cause the public to question the impartiality of the judiciary.
Here, the judge’s spouse, as head victim’s advocate, is likely to appear in
criminal proceedings involving the Solicitor’s office. Although the victim’s
advocate may not appear as witness, the advocate would appear on behalf of the
victim. For the magistrate to preside over a case in which the Solicitor is
involved would create the appearance of impropriety and would cause the public
to question the impartiality of the judiciary, in violation of Canons 1 and 2.
Thus, the magistrate should not preside in criminal cases in which the
Solicitor’s office is involved where the magistrate’s spouse is the head
victim’s advocate in the same county.
July 16, 2012
More summer reading before law school begins
Posted by Alan Childress
We've written before on good books to read before starting law school. Or good activities, including travel or Doing Nothing (but biking W.I. is illegal in North Dakota). To update that: our senior admissions dean at Tulane, Susan Krinsky, gave me permission to link her own collected list of good reads before law school. Here it is (and thank you, Susan): Download Suggested Reading List 2012_Final.
Biking While Intoxicated A Crime In North Dakota
The North Dakota Supreme Court held last week that the prohibition against operating a vehicle while intoxicated applies when the vehicle is a bicycle. (Mike Frisch)
Crossing The Line
An attorney who "repeatedly crossed the line of permissible advocacy by advancing baseless claims, seeking unwarranted legal remedies, and misrepresenting both the facts and the law before two tribunals" has been publicly censured by the Pennsylvania Supreme Court.
The representation at issue involved the attorney's employer and the Department of Environmental Protection. The client had purchased a landfill in a bankruptcy and "thereafter sought to avoid the expenses of obtaining necessary permit(s) and posting the required bond."
The attorney had continued his course of conduct after a "scathing appraisal of [his] behavior" by a federal judge.
The Disciplinary Board noted that the attorney had no prior discipline and that "his current practice is dedicated to the representation of disabled and developmentally delayed children in their quest for needed services from the public schools." (mike Frisch)