Saturday, September 1, 2012
From the September 2012 edition of the California Bar Journal:
[An attorney] has been convicted three times of petty theft and related crimes. In addition, he testified during trial that since the last of the three convictions, he was convicted four more times for petty theft. The crimes involve moral turpitude.
The three convictions were the result of shoplifting from Target, CVS and Costco stores. As part of a plea agreement, [he] was to participate in the Orange County Superior Court’s Recovery Court Program. However, he violated the program rules by discontinuing his medication for more than five months; as a result he was unable to control his conduct and again began to shoplift.
In recommending [his] disbarment, State Bar Court Judge Donald Miles said his “sustained history of stealing represents conduct and ethics antithetical to the values required and expected of an attorney.” Although [he] says he is on the road to recovery, Miles wrote, “To protect the profession, he must be required to show that he has lived an exemplary life for a sustained period of time without the constraints of the oversight by his probation officer and the criminal courts.”
The Utah Supreme Court has imposed a public reprimand of an attorney who had failed to provide a client with an accounting and return the file after discharge. The client was not harmed by the accounting lapse but was by the attorney's failure to return the file when the client discharged him in favor of new counsel.
The court found that reprimand was appropriate because of the harm caused the client.
The court questioned a Rule 8.4(a) charge, which makes it an ethical violation to violate another rule.
The court expressed concern that such a charge amounted to "piling on" of ethics charges. The matter of Rule 8.4(a) was referred to the court's rules committee for study but here the court declined to impose any sanction for the violation. (Mike Frisch)
Friday, August 31, 2012
The North Dakota Supreme Court disbarred a former judge convicted of a sex offense.
The Jamestown Sun reports:
North Dakota’s Supreme Court ordered Randall Hoffman disbarred on Wednesday.
Hoffman has been suspended from practicing law for almost nine years. He was working as the police chief in Elgin, in southwestern North Dakota, when he was accused of assaulting a teenage girl repeatedly over five years.
Hoffman pleaded guilty. Last October he was sentenced to serve 20 years in prison.
Chief Justice Gerald VandeWalle said Hoffman didn’t challenge a disciplinary panel’s recommendation that he be disbarred.
Hoffman served as a district judge in Jamestown for almost five years. He resigned in April 1999 after a disciplinary complaint accused him of showing disrespect for North Dakota’s courts.
The New York Times reported on the charges.
The attorney has been suspended since 2003. (Mike Frisch)
My friend and former Iowa disciplinary counsel Norman Bastemeyer used to refer to his jurisdiction as the "Advertising Gulag" for its restrictive rules on that area.
Well, the times they are achangin.
Iowa has just adopted advertising rules in line with the ABA Model Rules. The Supreme Court's web page reports:
Today, the Iowa Supreme Court approved amendments to the Iowa Court Rules governing lawyer advertising. The amendments bring the Iowa rules closely in line with the American Bar Association Model Rules of Professional Conduct governing lawyer advertising and communications to the public. The Iowa revision is designed to update, clarify, and strengthen advertising rules in the digital age while providing the public with useful information about Iowa lawyers.
The supreme court has the sole responsibility to admit persons to practice as lawyers in the courts of Iowa, to prescribe rules to supervise lawyer conduct, and to discipline lawyers.
"With more lawyers and citizens using the internet and social media it is important to update the advertising rules to clarify how lawyers can use these new technologies," Chief Justice Mark Cady said. "The ABA model code ensures a continuation of the high ethical standards Iowa lawyers follow, brings Iowa's rules in line with the rules in neighboring states, and will ensure that Iowans in need of legal representation receive reliable information about Iowa lawyers."
Illinois, Minnesota, Nebraska, and Wisconsin also follow the current ABA model rules
governing lawyer advertising.
Thursday, August 30, 2012
The Florida Supreme Court has publicly reprimanded a Broward County Judge in connection with his handling of a motion to disqualify himself.
The motion alleged a conflict between moving counsel and the judge's spouse. The spouse had been a losing candidate for judicial office. A lawsuit was filed agaionst the spouse alleging that "she had improperly campaigned under her maiden name."
The attorney seeking disqualification had supported another candidate and participated in the lawsuit over the maiden name.
At the hearing on the motion to disqualify, the reprimanded judge called his spouse as a witness and threatened the moving attorney with a bar complaint. (Mike Frisch)
The Maryland Court of Special Appeals has held that an attorney may appeal an interlocatory order denying his motion to withdraw as counsel. The court held that the denial of the motion was an abuse of discretion and remanded the case to the Circuit Court with instructions to grant the attorney's motion.
The case involved unpaid legal fees and a motion filed five weeks before a scheduled trial.
The court here held that there was no injustice to the client; rather, denying the motion was an injustice to the attorney:
...the circuit court's order, effectively compelling [the attorney] to continue representing [the client], without reasonable likelihood of compensation, imposed an unreasonable financial burden on him.
The New York State Commission on Judicial Conduct seeks comment on the nettlesome ethical issues that surround the use of judicial license plates.
The letter notes a number of policy considerations. Might placards rather than plates be appropriate for judicial parking purposes? Are there security risks created when the judge is away from the courthouse? Might a judge be accorded favorable treatment on moving violations?
When these issues get resolved, I hope that there is consideration of the ethical issues concerning judicial vanity license plates.
We would not want judges driving around with ALL RISE or HANG THEM plates. (Mike Frisch)
Wednesday, August 29, 2012
The New York Commission on Judicial Conduct has accepted an agreed statement of facts and ordered a public censure of a town court justice on charges that she had "failed to expeditiously transfer from her court tickets issued to herself and her sons for violations of a dog-control ordinance, sent improper messages to the animal control officer and the judges of the transferee court, and failed to maintain proper records of the tickets."
There are concurring opinions and a dissent.
The dissent by member Richard Emery invokes George Orwell and calls the actions a corrupt effort to transfer blame from the justice to her children:
This sort of bald-face, corrupt behavior should not be clothed in bland, obfuscatory language...Perhaps it is even worse because she was using her official position not only to benefit herself, but to do so by incriminating others - her children....I believe that the matter should proceed to a hearing at which respondent will get the due process she does not seem to understand, even for her own children."
The tickets at issue involved charges of Dogs Running At Large. The justice had told the transferee judges that "Hanna" was owned by her son Mark and that "Sophie" was her son Matthew's dog. (Mike Frisch)
The web page of the Virginia State Bar reports the recent suspension of an attorney as a result of a criminal conviction.
The Washington Post had this story about the criminal case on October 24, 2007:
The former director of the Office of Inspector and Auditor for the Nuclear Regulatory Commission was convicted yesterday on federal charges she laundered money for a massive gambling and loan sharking operation in Northern Virginia.
Sharon R. Connelly, 67, faces up to 20 years in prison and a court order to turn over as much as $7.8 million for her role in a betting ring, authorities said yesterday.
Connelly was convicted on conspiracy to commit money laundering charges in federal court in Alexandria for her role in a gambling operation authorities say used extortion and robbery to collect its debts.
Investigated by the Internal Revenue Service, FBI and Fairfax County police, the racketeering case was dubbed “Operation Underdog” and has resulted in 13 other convictions, including ringleader Raj Bansal, 63, who pleaded guilty last month. Prosecutors have identified Bansal as Connelly’s boyfriend.
Profits from the gambling business were rolled into loans with interest rates as high as 300 percent, court records show. In addition to blackjack and casino games, Bansal’s operation ran “no-show job” schemes at businesses across Northern Virginia, authorities said.
According to charging documents, Bansal used Connelly to collect gambling debts by using corporate entities in her name, including a company called Executive Loans, to execute mortgage loans on properties that were owned by people who owed Bansal money.
Connelly, who is an attorney, also tried to foreclose on one property owned by an unidentified person suspected of cooperating in the probe into the Bansal organization, the indictment said.
She is scheduled to be sentenced in January before U.S. District Judge Claude M. Hilton.
Another defendant, Donovan A. Moncrieffe, 39, was convicted yesterday in the same case on racketeering and money laundering conspiracy charges. He faces up to 20 years in prison and an order to forfeit $112,349.
Connelly worked at the NRC from 1984 to 1999. In addition to directing the NRC’s investigations and audits office, she also served as “special assistant for internal controls,” said NRC spokeswoman Holly Harrington.
Considering a question of first impression, a Virginia three-judge court imposed an agreed disposition of public reprimand without terms in a case that involved "the burgeoning use of the internet for advertising and marketing and to create 'virtual' law offices."
At issue were communications, representation agreements, letterhead and business cards that suggested that the attorney's firm was a law firm of multiple attorneys. The State Bar contended that the attorney worked with independent contractors who were not part of his firm.
The State Bar and the attorney agreed that the issue will be resolved by making the other attorneys firm employees.
The State Bar also had contended that the website and other communications were misleading in several respects, particularly with respect to areas of specialization. The attorney agreed to amend the firm web site to meet the concerns.
The court found a Rule 7.4 (communication of Fields of practice and certification) violation. (Mike Frisch)
The South Carolina Supreme Court accepted a proposed consent discipline and disbarred an attorney.
The attorney admitted a number of ethical violations, including unauthorized practice while suspended.
The attorney worked for a law firm that employed a law student named Richard Thomas Roe. Mr. Roe was later admitted to the South Carolina Bar.
While suspended, the attorney created a fictitous law firm called "Roe Law LLC." He engaged in practice while suspended using the alias Tom Roe. In a workers compensation case, he entered an appearence as Tom Roe using an email account that included "tomroelaw@" in the address.
He falsely identified himself twice as Tom Roe to the South Carolina Bar in requesting a change in his listed bar address and appeared at a workers compensation hearing as Tom Roe, using the real Mr. Roe's bar number. (Mike Frisch)
The Ohio Supreme Court has ordered a one year suspension, stayed on conditions, in a matter where the attorney violated the rules governing entrusted funds.
The court considered evidence of that the attorney's conduct was affected by attention deficit hyperactivity disorder:
Here...[the attorney] has been diagnosed with ADHD and has reported that the treatment prescribed by [his physician] Dr. Girvin has impoved his organizational skills and ability to focus. While Dr. Girvin believes that [the attorney's] report in sincere and that he is compliant with his treatment regimen, he also testified that "[s]ometimes the symtoms of the illness get in the way of regularity and adherence to taking the medicine, getting refills, all that stuff." Because the very symptoms of the condition may impede his ability to comply with treatment, and because the record contains some evidence that [the attorney] drifted away from the treatment of his depression in the past, we believe that a one-year fully stayed suspension will better protect the public from future misconduct.
Tuesday, August 28, 2012
The Colorado Presiding Disciplinary Judge has imposed a suspension of 18 months of an attorney who had defaulted on disciplinary charges.
In one count, the judge found that the attorney had entered into an agreement to pay a mediator but had not honored the resulting $1,093 bill.
The attorney's conduct in not paying the invoice amounted to conduct prejudicial to the administration of justice.
That's a useful precedent for an attorney's creditors. (Mike Frisch)
The Ohio Supreme Court has disbarred an attorney who had a high volume practice of personal injury, immigration and criminal matters. As recenty as 2009, he had handled over a thousand matters a year.
The court found that the attorney had taken advantage of vulnerable clients and concluded that disbarment was the appropriate sanction:
The scope and magnitude of [the attorney's] misconduct, encompassing fraud, gross neglect, duplicity, incompetence, and the fleecing of clients, are truly egregious. We have little trouble concluding that nothing less than [his] disbarmentwill protect the public and maintain the integrity of the profession.
In one matter, the attorney filed a motion to reopen consisting of three sentences. The panel's analysis:
To call [his] motion to reopen "bare bones" is too give it too much credit.
Monday, August 27, 2012
A judge who had approved his own application to carry a concealed weapon and carried his pistol to court chambers has been censured by the New York State Commission on Judicial Conduct.
The judge decided to carry a weapon after he had been theatened by individuals on two occasions and followed home from court by persons unknown.
The problem came to light on January 21, 2010 when the judge attempted to repair his revolver in his chambers. He did not know that it was loaded but nonetheless pointed it at a concrete wall for safety reasons. The gun accidentally discharged and, fortunately, no one was hurt. The .38 caliber bullet was recovered from a chambers wall.
The judge will retire on December 31, 2012. (Mike Frisch)
The Maryland Court of Appeals has disbarred an attorney who deposited an advanced fee of $1,000 in his attorney trust account and withdrew fees slightly in excess of the amount due, resulting in an overdraft of $5.24.
The attorney did not help his cause by failing to respond to Bar counsel's resulting inquiries and failing to participate in the bar proceedings. (Mike Frisch)
In the District of Columbia, a disciplinary hearing committee consists of two lawyers and one layperson.
Sometimes the layperson disagrees with the lawyer members of a committee. In such circumstance,s it is often quite revealing to explore the disagreement.
Such a case is In re Stephen T. Yelverton, posted recently at this link. You must search by name to access the report.
The case involves the conduct of an experienced attorney with no prior discipline. He represented the alleged victim of a simple assault. The defendant was tried in a non-jury trial and acquitted by the judge.
The alleged misconduct involved the entirely unsuccessful efforts of the attorney to challenge the verdict in the trial court and on appeal. Both courts ruled that the attorney lacked standing to file his barrage of motions and pleadings.
Bar Counsel charged that the attorney with incomptent representation and pursuing frivolous claims. The hearing committee majority found that it was a "very difficult case" but found no misconduct.
The layperson was less professsionally understanding:
...my dissent as expressed in this document is largely based on my concern that a member of the public requiring legal assistance, having no understanding of the legal issues and complexities attendant to their particulat case and no knowleged of Respondent's previous actions in this case would retain Respondent and receive legal advice, counsel and representation equivalent to that provided by Respondent in this case....
...I believe that Respondent's misconduct is serious because he pursued a strategy that objectively had no chance of success. This was not an isolated incident of misconduct, or an instance in which a lawyer erred in maling a single filing, but later thought better of it. Rather, Respondent continued his meritless pursuit of a mistrial as far as he could pursue it. In the process, he burdened the Superior Court and the Court of Appeals with motions that had absolutely no merit. He similarly burdened the Hearing Committee with meritless and untimely filings, made even after the Hearing Committee Chair ordered that he make no further filings.
The dissenting layperson would impose a suspension with fitness for the attorney's "uninformed, overly zealous and possibly 'obsessional' " behavior.
Nice that someone in the disciplinary system sees things from the point of view of a prospective client. Too bad that view cannot command a majority. (Mike Frisch)
The Ohio Supreme Court has permanently disbarred an attorney convicted of criminal offenses described in the New York Times:
A lawyer who helped plot a $100 million securities fraud scheme that sold fundamentally worthless stocks to a series of investors, including Yale University, was convicted of grand larceny...
The lawyer, James W. Margulies, cheated investors while living a lavish life that included traveling on private jets and buying a $350,000 diamond ring for his wife, Manhattan prosecutors said.
Mr. Margulies, 47, will face up to 25 years in prison when he is sentenced next month in State Supreme Court in Manhattan.
“The defendant’s pump-and-dump scheme artificially inflated stock prices before he sold off the shares, leaving honest investors holding worthless stock,” Cyrus R. Vance Jr., the Manhattan district attorney, said in a statement after a jury convicted Mr. Margulies on 30 criminal counts. Mr. Vance noted that the victims included a teachers’ pension fund in Ohio and a Methodist church.
Manhattan prosecutors said the case was significant because securities fraud cases of that size are rare in state court.
Mr. Margulies plotted the fraud with John D. Mazzuto, a 1970 Yale graduate and university benefactor, who pleaded guilty in January. As part of his plea, Mr. Mazzuto agreed to cooperate with the district attorney’s office, which said it would recommend a sentence of one to three years in prison in exchange.
Mr. Mazzuto testified against Mr. Margulies at his trial, but the plea agreement could be in jeopardy because he was charged with drunken driving in January in Florida, which violated the terms of the agreement with prosecutors. Mr. Mazzuto’s sentencing is pending.
Mr. Mazzuto had close ties to the Yale baseball program, which named a practice field for him and his wife.
Prosecutors said that Mr. Margulies and Mr. Mazzuto issued 43 million shares of stock in a company in which they had executive roles, even though they were authorized to issue just 15 million shares. Most of the shares they issued were to close friends and relatives, who sold them off and invested some of the money back into the company, Industrial Enterprises of America. Those investments made the company seem as if it were in better financial health than it actually was, prosecutors said, and allowed them to artificially inflate the value of the stock.
Mr. Mazzuto donated some of the stock to Yale, which sold its shares for about $1.5 million before the value plummeted, prosecutors said.