July 28, 2012
Prosecution, Not Persecution, In Indiana
An attorney who had claimed that his prosecution in bar disciplinary proceedings was "persecution" for being a "follower of Jesus" has been suspended for two years without automatic reinstatement by the Indiana Supreme Court.
The court found the persecution claim to be "disingenuous to the extreme."
The attorney has not actively practiced law since the early 1990s. The client retained him in 1983. He was given power of attorney by the client. The client went to a retirement village in 1984. Her health declined and she was moved to a residential care facility. The attorney took control of her finances.
When the attorney failed to pay for her care, the facility was unable to contact him. They reached the client's niece, who was the client's closest relative. She was able to find him after some effort. He told her the money was gone.
She retained counsel, had the power of attorney revoked and was appointed in his place. The attorney refused to provide an accounting required by law and claimed that the amounts he had taken for himself were legal fees.
When bar proceedings followed the court action, he changed his story. He claimed the amounts taken were intended as compensation for his writing and publishing books, including "American Folk Gospel" and a biography of an Indiana evangelist.
The court did not accept the second story, noting that the attorney had vigorously pursued his claim for legal fees in the courts for several years.
The attorney was found to have charged unreasonable fees, violated the business transactions with a client rule, failed to account and other violations in his dealings with the frail, elderly client. The false story was found to constitute conduct involving dishonesty.
He took approximately 1/3 of the client's estate, approximately $100,000.
The court declined to impose disbarment, which it characterized as a "non-event" because he has not practiced for nearly twenty years. If he were disbarred (a permanent sanction in Indiana) he would have "no incentive to come to grips with the pain and suffering he has wrought."
Two justices would impose disbarment. (Mike Frisch)
July 27, 2012
A Common Problem
The Vermont Supreme Court has issued an order directing publication of a hearing panel's "well reasoned discussion of a problem common in legal practice, particularly for small firm and solo practicioners."
The attorney had failed to follow through in a diligent manner on three bankruptcy matters after being filly paid for his services. (Mike Frisch)
Attorney Failed To Comply With Restitution Order
An attorney who had failed to comply with a restitution order in a disciplinary case will be suspended if he fails to pay before August 27, according to a decision issued today by the Wisconsin Supreme Court.
The court concluded that the violation of its earlier order was intentional:
This was not a situation where an attorney was unable to comply with an order of this court to make specified payments because of the attorney's lack of financial resources. It was a deliberate choice by Attorney Lister to place other personal expenditures above the payments explicitly ordered by this court. Moreover, this was not an isolated or short-term action; Attorney Lister engaged in a consistent pattern of disobeying the mandate of this court. What should have taken just over two years to complete has dragged on for more than four years, and there still remains a sizeable balance that is owed to J.A.'s heirs.
July 26, 2012
Drug Misdemeanors Result In Suspension
The Delaware Supreme Court has imposed a two-year suspension of an attorney convicted of misdemeanor drug offenses.
The police searched the attorney's home and found marijuana, Ecstasy and firearms.
He was initially charged with several felonies but pled to misdemeanors when it was determined that he was a user, not a seller, of illicit drugs. He has been serving an interim suspension since February 2011.
In mitigation, he is a Gulf War veteran and is a "politically involved, public spirited advocate for open government and good government." He also was a candidate for a state representative position. (Mike Frisch)
A censure has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct that involved the attorney's use of a falsely notarized document to secure the return of bail in a criminal matter:
In determining an appropriate measure of discipline to impose, we note the respondent's prior disciplinary history, which consists of two Admonitions and three Letters of Caution for, inter alia, engaging in conduct prejudicial to the administration of justice, law office failure, failure to fully account for funds on deposit in his attorney trust account, and failure to effectively withdraw from a matter by not taking all steps reasonably practicable to avoid foreseeable prejudice to the client. However, the respondent has recently completed, and earned a certificate for, a course entitled "Business Skills for Attorneys" and has presented numerous letters reflecting on his good works in the community.
July 25, 2012
Defendant Must Receive Due Process On Issue Of Forfeiting Right To Counsel
The Minnesota Supreme Court reversed in part and remanded a drug and firearms conviction in a matter in which the trial court determined that the defendant, by his conduct, had forfeited his right to appointed counsel.
The court held that a defendant is entitled to (and here was denied) appropriate due process protections prior to a forfeiture determination.
In a footnote (n. 7), the court also expressed concern about the manner in which the appointed public defender raised the issue. The court found a failure of zealous representation and improper disclosure of confidential information:
Defense counsel, faced with circumstances that prohibit continued services as counsel for the defendant, should seek the court's approval to withdraw from the litigation, without disclosing the underlying reasons...What should not be done is what was done here, in other words, advocating that the client of the Office of the Public Defender should not have counsel provided at public expense.
The court concluded that a client who makes "credible threats to harm an attorney or an attorney's family" may have forfeited the right to counsel. A hearing on remand will be held to determine if the defendant engaged in such misconduct. (Mike Frisch)
A recent opinion from the Florida Judicial Ethics Advisory Committee:
1. May a judge give a keynote speech at the local council of Girl Scouts’ annual business meeting where the meeting’s purposes are to report on the council’s status and recognize adult volunteers?
2. May a judge give a keynote speech at the Girl Scouts’ annual Gold and Silver Award Ceremony where the speech’s purposes are to congratulate girls who have earned the highest awards available and encourage them to be involved in the community?
The inquiring judge states that she is a lifelong member of the Girl Scouts, and has been very active in the local council of the Girl Scouts at both the program level and leadership level. She resigned from the Girl Scouts’ Board of Directors upon her appointment to the bench, but the local council would like to recognize her for her involvement in the Girl Scouts program. There is no charge for any of events at which the inquiring judge has been asked to speak.
But what about Boy Scouts?
The inquiring judge also asks if there is a prohibition against speaking at the Boy Scouts’ Eagle Award ceremony. Although the inquiring judge has not provided any information about the event, and whether there is a cost to attend, her speech would be permissible under Canon 5 as long as the facts relating to the Boy Scouts’ ceremony are consistent with this Opinion.
July 24, 2012
False Financial Aid Statements Draw Disbarment Recommendation
As set forth in the Administrator's Complaint and as found by the Hearing Board, Respondent sought financial aid for his daughter's attendance at Frances Parker, a private school in Chicago for the 1999-2000 school year (Count I), the 2002-2003 school year (Count II) and the 2003-2004 school year (Count III). The school required parents applying for financial aid to submit an application, entitled Parents' Financial Statement (PFS). The statement requested information about the parents' income for the preceding year. Parents were also required to submit a copy of their federal income tax returns for the preceding year with the statement.
Respondent prepared and signed the Parents' Financial Statement for each of the years noted. Respondent falsely declared that the information in the document was true, accurate and complete. Respondent submitted false income amounts to Francis Parker on his PFS in order to be eligible for financial aid and with the intent to mislead the school. In addition, Respondent submitted to Francis Parker false income tax returns for the years 2000, 2001 and 2002, substantially understating the income he declared on his tax returns filed with the Internal Revenue Service for those years.
As to sanction:
Respondent engaged in serious misconduct. Over a period of several years, he provided financial aid applications to his daughter's school and included fraudulent tax returns in order to receive a financial benefit to which he was not entitled. As explained, he also failed to cooperate in the disciplinary investigation in many ways. Although Respondent contends that his behavior during the pre-hearing process and the hearing was proper and that he "fully participated in the process," the record demonstrates otherwise. An attorney's conduct in the disciplinary proceedings is a proper consideration when determining an appropriate sanction.
No Disqualification Of Lawyer Advocate
The New York Appellate Division for the First Judicial Department has affirmed the denial of a motion to disqualify attorney Jason Advocate and his firm in litigation:
Twin Capital, an investment management firm, alleges that defendants improperly tampered with and copied information from a computer allegedly belonging to it. Twin Capital is solely owned by nonparty David Simon, against whom defendant Linda Simon has commenced matrimonial proceedings. The computer at issue was at all relevant times located in the marital home, and defendants-respondents assert that it was freely accessible and used by members of the Simon family; Twin Capital disputes this claim.
Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (id.). Here, in the absence of discovery, it is premature to conclude that Jason Advocate is likely to be called as a witness on a significant factual issue (see Harris v Sculco, 86 AD3d 481 ). Even if Mr. Advocate is likely to be a witness, discovery may reveal that his testimony "relates solely to an uncontested issue," one of the exceptions to the rule (see rule 3.7[a]). In light of this determination, we need not address the motion court's finding that disqualification "would work substantial hardship" on Linda Simon (rule 3.7[a]).
Nor is disqualification required under rule 1.7(a)(2) of the Rules of Professional Conduct (22 NYCRR 1200.0), which provides that, except under certain conditions, a lawyer shall not represent a client where there is a significant risk that the lawyer's judgment on behalf of the client will be adversely affected by the lawyer's own interests (see id.). After consultation with independent ethics counsel, Linda Simon executed a conflict waiver (see rule 1.7[b]). At this early stage, defendants-respondents appear to be presenting a unified defense. Thus, any potential conflict is speculative at present. Twin Capital's argument that a conflict exists based on Mr. Advocate's alleged rejection of its offer to settle with Linda Simon is not properly before us. These allegations are contained in affidavits dated after the motion court rendered its decisions.
A person with the last name of Advocate likely had little choice but to become a lawyer. (Mike Frisch)
Admonition For Failure To Correct False Testimony
A Virginia three-judge court has imposed a public admonition of an Assistant Commonwealth's Attorney for misconduct in the prosecution of a convenience store robbery case.
Two witnesses who were present at the robbery agreed to testify against the defendant, who was not present. Both witnesses denied that they were receiving consideration or benefit for their testimony. This was false, as the prosecutor had agreed to advise sentencing judges of their cooperation and reduced charges against one of them.
The prosecutor "was present while they testified, [and] took no action to correct the testimony of either [witness]."
The defendant was convicted but, when the misconduct came to light, the verdict was set aside.
A pretty light sanction, I'd say. (Mike Frisch)
Justices Rule In Favor Of Judges
The New Jersey Supreme Court has held that an act which "subjects sitting judges to increases in their pension and healtyh care contributions" violates the New Jersey Constitution's "No-Diminuation" clause.
The court majority concluded that the act "serves a legitimate public policy goal, but that goal, as applied to judges, must be achieved through constitutional means."
Two justices dissented, and would hold that the court majority "incorectly imposed on the State the burden of proving the constitutionality" of the act. (Mike Frisch)
Proceedings Will Go Forward In Judicial Misconduct Matter
A report from the New York State Commission on Judicial Conduct:
The Commission authorized formal disciplinary charges against Lee L. Holzman, Surrogate of Bronx County, in January 2011. Judge Holzman filed an Answer, and the matter was referred to retired Supreme Court Justice Felice K. Shea, as Referee to hear and report proposed findings of fact and conclusions of law. The hearing commenced on the morning of September 12, 2011, at which time Judge Holzman signed a written waiver of confidentiality.
Prior to September 12, 2011, Judge Holzman commenced a proceeding pursuant to Article 78 of the CPLR, seeking to stay the Commission proceedings against him. The matter was assigned to Acting Supreme Court Justice Barbara Jaffe in Manhtattan. Justice Jaffe sealed the record of the Article 78 proceeding, pending her decision. She rendered decision dated September 8, 2011, dismissing Judge Holzman's Article 78 petition.
Judge Holzman, by counsel, returned to Supreme Court on the morning of September 12, 2011, to renew his application to stay the Commission proceedings against him. Judge Jaffe issued a stay, pending decision. The Commission proceeding before Referee Felice Shea was therefore halted. Judge Jaffe thereafter issued a decision, denying Judge Holzman's renewed application.
The hearing before Referee Felice Shea was scheduled to resume on October 11.
On October 5, 2011, Judge Holzman, by counsel, again sought a stay of the Commission proceedings, pending his appeal of the Supreme Court decision dismissing his Article 78 petition. Associate Justice Sheila Abdus-Salaam of the Appellate Division, First Department, granted an interim stay, pending determination by a full panel of the Court as to Judge Holzman's request for a stay. Justice Abdus-Salaam set an expedited schedule for submission of briefs and consideration of the application by the court. Briefs were filed and the matter was fully submitted on October 12.
Accordingly, the hearing before Referee Felice Shea, scheduled to resume on October 11, was postponed, pending decision by the Appellate Division on Surrogate Holzman's application.
On December 6, 2011, the Appellate Division issued an Order, denying Judge Holzman's application for a stay of Commission proceedings, pending appeal. The disciplinary hearing against Judge Holzman therefore resumed. The Referee presided on the following dates: December 14, 15, 16 and 19; January 3, 4, 5, 6, 9, 10, 11, 12, 13 and 17. The hearing, which was held at 111 Centre Street, Room 687, in Manhattan, concluded on January 17, 2012.
After the transcripts of the hearing were completed, the parties submitted briefs to the Referee, who issued a written report to the Commission dated July 18, 2012, recommending findings of fact and conclusions of law. The parties will now submit briefs and appear for oral argument at the Commission as to whether the Referee's report should be accepted and what, if any, sanction should be imposed.
On March 1, 2012, the Appellate Division affirmed Judge Jaffe's decision and denied Judge Holzman's petition for a stay of Commission proceedings.
The documents may be found at this link. (Mike Frisch)
The Ohio Supreme Court has accepted a proposed consent decree in a matter brought by the State Bar Association against an entity called Immigration Associates, LLP.
The court ordered that the entity cease engaging in the unauthorized practice of law, cease marketing the business of preparing immigration forms, and prohibits the owners from "represent[ing] themselves or any current or future business owned by the individual owners as knowledgeable in immigration law or practice." (Mike Frisch)
July 23, 2012
The Californis State Bar Court Review Department has recommended the disbarment of an attorney who was declared a vexatious litigant in claims brought against a former client:
In 2004, [his] former client won a fee arbitration award against him. [The attorney] then sued the client on a meritless claim that the client gave false testimony at the arbitration hearing. [He] delayed resolution of the case for more than four years by repeatedly filing frivolous pleadings, including 10 unsuccessful motions to disqualify judges assigned to his case. One superior court judge found that for four years [the attorney] did not file "any substantive opposition that addressed the merits of a pending matter," and ruled that he was a vexatious pro per litigant. Even after this ruling, [the attorney] twice disregarded an order requiring him to obtain pre-authorization from the court for future filings.
Thanks to Rick Underwood for carching my typo in this post. (Mike Frisch)
Privilege Claim Defeats Subpoena
The Connecticut Supreme Court has reversed an order compelling a law firm to comply with a subpoena.
The law firm represents a plaintiff suing former counsel for legal malpractice:
The plaintiffs' malpractice claim concerns only the allegedly negligent representation by the defendants, which is separate from the plaintiffs' subsequent representation by [plaintiffs' counsel] Finn Dixon. Although the issue of damages will likely involve the reasonableness of the settlements entered into on Finn Dixon's advice, the fact finder should be able to assess damages without resorting to privileged communications...We decline to adopt the contrary rule urged by the defendants because it lacks precedential support and runs counter to our narrow construction of exceptions to the attorney-client privilege.
There is a dissent that would hold that the order compelling discovery is not appealable at this juncture. (Mike Frisch)
Mr. Baron, Mr. Weiss, Mr. Holland, and Mr. Donovan were a foursome, with Mr. Baron and Mr. Weiss as partners in one golf cart and Mr. Holland and Mr. Donovan as partners in a second golf cart. The foursome teed off at approximately noon, and arrived at the seventh hole between 1:00 p.m. and 1:30 p.m. Mr. Baron and Mr. Weiss admitted consuming alcohol on the golf course, while Mr. Holland and Mr. Donovan did not consume alcohol. While at the seventh hole and on his third shot, Mr. Baron hit the golf ball to the left. After hitting the golf path, which is to the right of a residential road that divided the seventh hole and Respondent's house, the ball hit Respondent's house making a loud noise. Mr. Baron and Mr. Weiss then drove their golf cart to about where the golf ball hit the path and looked for the ball. After seeing the ball in Respondent's yard, about six to ten feet from Respondent's house, Mr. Baron, alone, left the golf course and went to retrieve it. Mr. Weiss testified that the ball had hit Respondent's gutter and the dent was visible from the golf course.
As Mr. Baron returned to the golf course with the ball, Respondent came out of his house and examined it for damage. Mr. Baron apologized for hitting Respondent's house, and Respondent requested Mr. Baron's driver's license. Mr. Baron did not feel comfortable giving Respondent his license, so instead offered his name and phone number. Respondent then demanded his license and, according to Mr. Weiss, Respondent stated he was a federal agent. Respondent said he was going to call the police, and Mr. Baron said he would be willing to wait and give the police his information. Initially, Respondent and Mr. Baron talked from opposite sides of the residential street dividing the golf course and Respondent's house. Mr. Baron did not feel threatened by Respondent.
As the conversation escalated to an argument, Respondent approached Mr. Baron in the area between the road and the cart path. During this argument, Respondent yelled obscenities, stated he was tired of golf balls hitting his house, and accused Mr. Baron and Mr. Weiss of purposefully aiming at his house. He also stated that someone had broken his window recently.
At some point during this argument, Mr. Weiss became involved. Mr. Weiss told Respondent to calm down and that he assumed the risk of a golf ball hitting his house because he lives next to a golf course. Mr. Weiss and Respondent began arguing face-to-face, and Respondent was cursing at Mr. Weiss. Respondent turned and looked as if he were going back to his house, but then came back around and struck Mr. Weiss in the eye, bending Mr. Weiss's eye glasses. Mr. Weiss fell to the ground, and Respondent jumped on top of him. According to Mr. Weiss, while Respondent had him pinned to the ground, Respondent made "baby noises," scratched him, and tried to bite him. Mr. Weiss testified that he neither punched nor kicked Respondent. Mr. Weiss also did not see any of the other three golfers do so.
While this incident took place, Mr. Donovan gathered up the loose golf clubs because he was concerned that they might be used as weapons, and Mr. Baron unsuccessfully tried to pull Respondent off of Mr. Weiss. Eventually, Respondent was pulled off of Mr. Weiss by Mr. Holland. Mr. Holland got behind Respondent and pulled him onto himself, restraining him until he calmed down. Mr. Holland testified that he neither kicked nor hit Respondent and Respondent's back was not on the ground. Upon being released, Respondent yelled obscenities at the golfers. As he was returning to his house, Respondent stated he was a federal agent and informed the four golfers that they were in trouble. None of the golfers called the police.
With the exception of Mr. Weiss, the golfers continued to play...
The golfers advised a golf course employee of the incident. The employee called the police.
The attorney was charged with and convicted of battery. He is a federal arbitrator.
The hearing board found that the attorney's lack of remorse, as well as his attempt to cover up his conduct, were aggravating factors:
Instead of demonstrating remorse, Respondent, subsequent to the incident...engaged in a deliberate course of conduct to mask his role as the aggressor. From his first contact with a police officer, Respondent attempted to portray himself as the victim, rather than the aggressor.
...Respondent delayed in going to the hospital until approximately 7:00 p.m., despite claiming he was not feeling well and believing he might be bleeding from the brain at 2:51 p.m. when he left the police station. Moreover, Respondent testified that despite thinking he was suffering from severe head trauma, he drove himself to the hospital. Respondent claimed his wife could not drive him because she had to get their children off of the school bus, but then testified that their children typically get off the bus at approximately 4:00/4:30 p.m. We find Respondent's testimony incredible, and believe he only decided to go to the hospital after contemplating that he was on the receiving end of a battery charge and that hospital records might assist him in his defense.
Further, while at the hospital, Respondent informed the hospital staff that he was a victim of an assault perpetrated by three men and coughing up blood. Respondent as an experienced attorney and federal arbitrator knew his representations would be recorded. We find these actions by Respondent to be calculated and self-serving.
Respondent's attempt to cover up his role in the October 2, 2009 incident continued on October 4, 2009, when he took photographs of the tops of his hands, depicting no offensive wounds, and of his elbow, showing a well-developed scab. Due to the nature of the scab, we do not believe Respondent?s elbow injury, as depicted in the October 4, 2009 photograph, was a consequence of the October 2, 2009 incident, and we are troubled by Respondent's attempt to convince us otherwise. Moreover, the photograph of Respondent's hands does not convince us that he was the victim. Additionally, on October 5, 2009, Respondent's cover-up continued when he attempted to convince Chief Paoletti to drop the charges against him. Respondent, after considering the battery charge and his upcoming trial, took deliberate steps to portray himself as the victim. Respondent's actions were deceptive and, consequently, significantly aggravating.