September 21, 2012
For The Absence Of Records
The Iowa Supreme Court imposed a 30-day suspension (rejecting the Grievance Commission panel's proposed reprimand) in a disciplinary case in which the complainant was the attorney's former paralegal assistant.
The court found two instances in which the attorney had mishandled advanced retainers. The attorney also failed to maintain required records.
The court noted that the found misconduct might warrant a non-suspensory sanction. However, because the attorney's records were so deficient "...we have no way of knowing whether the trust account violation outlaine [in the opinion] was an isolated occurence or a more frequent event."
Thus, the lack of records was treated as an aggravating factor.
This is interesting reasoning to those who follow the Inside Baseball of bar regulation. Often, the absence of records helps the accused attorney by making it more difficult to prove intentional misappropriation. Here, the lapse raised the sanction to a suspension. (Mike Frisch)
The Law Of Font Size
The New Jersey Supreme Court has reprimanded two attorneys for violations of rules governing the solicitations of clients through the mail.
The violations involved failure to follow interpretive guidelines regarding disclaimer languge and font size.
The Disciplinary Review Board also considered whether the attorneys' solicitation of potential clients charged with illegal u-turn offenses was false or misleading by suggesting the possibility of jail time for such heinous offenses.
The DRB found that the suggestion did not cross the line of the ethics rules. (Mike Frisch)
September 19, 2012
In Durham County
The North Carolina State Bar has filed a complaint alleging misconduct by an Assistant District Attorney for Durham County.
The prosecutor represented the State in a case in which the defendant was charged with sexual abuse of a child. He was not the child's father. The mother of the child denied that the abuse had taken place.
After the conclusion of the State's case, the judge dismissed two of the three charges. The prosecutor learned that the mother had an impending visitation. She had the mother arrested on the same charges that had just been dismissed against the defendant.
The bar complaint allege that (i) the prosecutor had the mother arrested and charged to prevent the visitation and (ii) knew the charges had no basis in law.
The judge released the mother on unsecured bond and, shortly thereafter, dismissed the charges.
The prosecutor's answer admits most of the alleged facts but denies knowledge at the time that her conduct in causing the arrest and charges was precluded under law.
She admits that she now has such knowledge. (Mike Frisch)
Delay And Confuse Strategy Draws Suspension
The Minnesota Supreme Court has imposed a six-month suspension with a requirement that the sanctioned attorney petition for reinstatement a matter where the "semi-retired" attorney filed frivolous pleadings in three cases in which he contended that he was a victim of fraud.
The court found the conduct "more extreme" than that in a prior disciplinary case
...if for no other reason than the sheer length of his filings and the number of defendants burdened. We understand that the particular circumstances of some lawsuits require complex and lengthy pleadings, and we note that in such circumstances, such pleadings are proper. But, when an attorney uses convoluted, frivolous pleadings - in violation of specific court orders - to delay and confuse his opponents, that attorney violated [ethics rules]...Based on the record before us, we conclude that [the attorney] engaged in a pattern of seemingly endless pleadings that contained frivolous claims and were unnecessarily burdensome in length, violated court orders, wasted courts' resources, delayed litigation, and prejudiced the administration of justice.
The attorney also must pass the ethics portion of the state bar examination to secure reinstatement. (Mike Frisch)
Our Unprecious Bodily Fluids
A decision from the Oklahoma Supreme Court in a case involving an attorney's alcohol-related driving convictions:
Over a period of approximately three years, the respondent...was arrested twice, first in Oklahoma and subsequently in Wyoming, for alcohol-related incidents involving the operation of a motor vehicle and was issued citations for a third situation after wrecking a vehicle and leaving the scene of the accident. In 2009, following the Wyoming arrest, the attorney pled guilty to driving under the influence receiving two years unsupervised probation. In November of 2011, [he] entered a negotiated plea of guilty to two misdemeanor counts in exchange for dropping of two felony charges arising from the Oklahoma arrest. The attorney received a two year deferred sentence to be served under supervision of the District Attorney's office. The complainant, Oklahoma Bar Association (Bar Association), filed a three count Rule 6, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A, formal proceeding alleging violations of Rule 8.4(b), Rules Governing Professional Conduct, 5 O.S. 2011, Ch. 1, App. 3-A and Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A. The parties entered into joint stipulations regarding the charges and an agreement for a recommended discipline of public censure, a year's probation with conditions, and the payment of costs. The trial panel joined in the stipulated recommendation for discipline. The gravamen of each of the three counts brought against the respondent revolves around the abuse and misuse of alcohol, specifically during the operation of a motor vehicle. Upon de novo review, we hold that the clear and convincing evidence supports charges relating to the respondent's driving while under the influence along with attempts, on the occasion of both arrests, to achieve favorable treatment by indicating an ability to influence improperly one or more government officials. We determine the appropriate discipline as public censure, a deferred suspension of two years and one day under conditions intended to assist the attorney in maintaining his sobriety and to protect the public, and the payment of $1,459.55 in costs.
In the first incident, the attorney told police he had influential contacts, threatened a lawsuit and spit on an officer. He was charged with felony placing bodily fluids on a government employee.
In the second incident, he had parked his car in the middle of a road and told police he was "watching moose."
The third incident involved an accident after which the attorney abandoned his car and went home. He greeted police in the nude with a firearm.
Chief Justice Taylor, joined by three justices, dissented:
Due to his history with alcohol, guns, lying and outrageous behavior and in order to protect the public and uphold the standards of the legal profession, I would immediately suspend this Respondent from the practice of law.
Hat tip to General Jack Ripper for the title. (Mike Frisch)
Open To The Public
The web page of the New York State Commision on Judicial Conduct has an announcement of a "rare" public proceeding:
Disciplinary proceedings are pending against Bronx County Surrogate Lee L. Holzman, who waived confidentiality. Information and documents pertaining to the Commission proceeding, and to a Supreme Court case initiated by Judge Holzman to suspend the Commission's proceeding, are available at Holzman Proceedings. The Report of the Referee who presided over the disciplinary hearing, issued by retired State Supreme Court Justice Felice K. Shea, is available at Report. Briefs submitted to the Commission by its Counsel and by Judge Holzman's attorney are available at Holzman Proceedings. The Commission will consider the Report and briefs, hear oral argument by its Counsel and Judge Holzman's attorney, and render a determination later this year. Oral argument is scheduled for 2:15 PM on September 19, 2012, in Manhattan, at 61 Broadway (one block south of Wall Street) in a hearing room on the 5th floor.
September 18, 2012
At Least Two Shades Of Gray
The New Hampshire Supreme Court affirmed in part, reversed in part and remanded a disciplinary case involving alleged conflicts of interest.
The attorney represented a husband and wife with the last name of Gray. The couple attended a graduation party and became intoxicated. A domestic dispute ensued and the police responded.
The husband was arrested and was released subject to a stay-away order from the wife and daughter. The wife did not wish to press charges. The attorney represented both husband and wife at a hearing to lift the stay-away order.
The court found a concurrent conflict but not a successive one, as the Professional Conduct Committee had. The court also rejected a finding of incompetence.
The remand seeks a sanction recommendation based on the one sustained finding of misconduct. (Mike Frisch)
No Lesser Sanction
The New Hampshire Supreme Court has disbarred an attorney for his conduct in the course of representing a husband and wife who were involved in a serious automobile accident in Pennsylvania.
The attorney violated Rule 1.2(a) by communicating a settlement demand without authorization. He engaged in a conflict of interest by changing his 1/3 contingency agreement to "to be negotiated" and threatening to withdraw on the day of a scheduled mediation to secure his demand for a $2 million fee. He falsely testified that the clients agreed to his fee.
The court concluded that disbarment was the proper sanction for the attorney, who "selfishly allow[ed] his own personal interests to take precedence over his duty of loyalty to his clients, but also lie[d] to a tribunal. No lesser sanction will suffice." (Mike Frisch)
September 17, 2012
Traffic Court Judge Indicted, Suspended
A Philadelphia traffic court judge has been suspended from his judicial office in the wake of his recent indictment.
The suspension was imposed by the Court of Judicial Discipline.
Philly.com has this report on the charges and suspension:
The Court of Judicial Discipline "has the authority to impose sanctions, ranging from a reprimand to removal from office" if warranted, according to its website.
Mulgrew's lawyer, Angie Halim, said she had no comment on the suspension but added, "I would like to reiterate that Judge Mulgrew, Mr. Mulgrew, is going to vigorously defend himself on these charges. These are in fact just charges."
On Thursday, federal agents arrested Mulgrew and Lorraine DiSpaldo, an aide to Democratic State Rep. William Keller, on charges of wire and mail fraud, obstruction, and other counts stemming from their roles in two nonprofit civic groups. The 43-count indictment also charged Mulgrew and his wife, Elizabeth, with signing tax returns from 2006 to 2010 that allegedly hid their real income.
The indictment alleges that Mulgrew and DiSpaldo, between 1996 and 2008, got $900,000 in state economic development grants to benefit two nonprofits, Friends of Dickinson Square and Community to Police Communications. Instead of spending all the money to benefit the community, Mulgrew and DiSpaldo diverted thousands to help themselves and their friends, the indictment charges.
Mulgrew's suspension leaves the seven-member Traffic Court with four vacancies. Traffic Court Judge Willie Singletary resigned in February after allegedly showing photos of his genitals to a coworker. Judges Earlene Green and Thomasine Tynes retired in June 2011 and July 2012, respectively, and Mulgrew has been suspended.
Elected Judge May Complete Expert Witness Testimony
The Florida Judicial Ethics Advisory Committee has a recent opinion on the ethics of a judge testifying as an expert when retained prior to his election as a judge:ISSUES
May a judge-elect testify as an expert on attorney’s fees at an evidentiary hearing which had commenced while he/she was a candidate for judge but had been continued to conclude his/her cross-examination after the date he/she was elected to the bench?
Before election as a judge, the inquiring judge-elect was retained as an attorneys’ fees expert, reviewed the case file, provided an affidavit, and testified regarding the reasonableness of the attorneys’ fees at an evidentiary hearing on the subject. The parties were unable to conclude the judge-elect’s testimony, so they interrupted his/her cross-examination and continued the hearing to a later time which, coincidentally, followed the judge-elect’s successful judicial campaign. The judge-elect asks if he/she may appear at the continued hearing and conclude the testimony.
The Committee's reasoning:
The majority of the Committee believes the inquiring judge-elect is permitted to appear at the continuation of the evidentiary hearing and finish testifying regarding the reasonableness of attorneys’ fees in the case. The majority notes that the judge-elect has concluded the direct testimony and part of the cross-examination and is merely finishing up the testimony on attorneys’ fees, the case likely will be concluded before the judge-elect takes the bench, the judge-elect was retained for the purpose of testifying as an expert witness on attorneys’ fees and did the vast majority of the work in advance of the election, there is no jury involved as there was in the scenario outlined in Fla. JEAC 04-37, and forcing the parties to “start over” on the attorneys’ fees issue would cause substantial prejudice in the way of additional expense and delay to the parties and the court. The majority concludes that the judge-elect’s testifying at the continuation of the evidentiary hearing on attorneys’ fees is merely closing out the judge-elect’s practice before taking office – a classic “winding up” situation – one which is necessary for the judge-elect to complete before assuming the bench.
Based upon the foregoing, the Committee distinguishes this case from that described in Fla. JEAC Op. 04-37 and advises the inquiring judge-elect he/she may testify in the continuation of an evidentiary hearing as an expert on attorneys’ fees.
Hearing Board Proposes Reprimand; Review Board Favors Two-Year Suspension
The Illinois Review Board has proposed a suspension of two years of an attorney who concealed assets in a bankruptcy by transferring the assets to his friend and law partner.
The Review Board summarized its findings and conclusions:
This matter arises out of a one count complaint charging Respondent with bankruptcy fraud by attempting to transfer certain assets to his law partner and friend, Barbara Stackler; by intentionally omitting the disclosure of certain assets on his personal bankruptcy schedules filed with the court; and by falsely stating to the court that his schedules included all of his assets and liabilities. Respondent did not deny many of the factual allegations of the complaint, but denied that he intended to defraud the court or his creditors.
Following a hearing, two members of the Hearing Board concluded that Respondent violated Rule 8.4(a)(5), prior to filing his bankruptcy petition, by transferring his assets in violation of the Illinois Uniform Fraudulent Transfer Act. That violation caused American National Bank, one of Respondent's creditors, to initiate judicial proceedings to overturn the transfers, thereby resulting in conduct that was prejudicial to the administration of justice. The Board concluded that the Administrator failed to prove by clear and convincing evidence that Respondent acted with the intent to defraud his creditors, engaged in intentionally dishonest conduct, or made false statements to the court in violation of Rules 3.3 or 8.4 (a)(4). The Board recommended that Respondent be reprimanded. One member of the Hearing Board dissented, finding that Respondent did not engage in any misconduct and recommending that the charges be dismissed.
Upon review, the Administrator requested that the Review Board reverse the Hearing Board findings that Respondent did not engage in intentional misconduct and recommend to the Court that Respondent be suspended for three years. The Respondent asked the Review Board to affirm the Hearing Board Report in its entirety and reprimand Respondent.
The Review Board concluded that the Hearing Board erred in failing to find that Respondent engaged in the misconduct as alleged in the Administrator's Complaint. The Review Board found that the Hearing Board's findings were against the manifest weight of the evidence. The Review Board found that the evidence at hearing clearly and convincingly demonstrated that Respondent made knowingly false statements to the bankruptcy court in violation of Rules 3.3(a)(1), 3.3(a)(2), and engaged in conduct involving dishonesty and prejudicial to the administration of justice in violation of Rules 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct. The Review Board recommended that Respondent be suspended for a period of two years.
September 16, 2012
Bar Case Against Former Durham DA Stayed
The disciplinary case against former Durham County DA Tracey Cline has been stayed pending the outcome of appeals from the order removing her from office.
The Disciplinary Hearing Panel concluded that the collateral estoppel effect of the decision on appeal would affect the proper disposition of the bar proceeding.
The State Bar had opposed the stay, arguing that the judgment of removal was entitled to collateral estoppel effect "unless and until" reversed on appeal: "It is important that defendant be subjected to the disciplinary process in a timely fashion in order to protect the interests of the public." (Mike Frisch)
The Mason-Dixon Business Card Violates Advertising Rule
An attorney who is admitted to practice in Massachusetts moved to Georgia, where he has never been admitted. He opened an office and practiced immigration law.
While in Georgia, he engaged in two instances unauthorized practice. Not only that, but his conduct in the representations involved substantive ethical violations such as conflicts of interest and dishonesty.
The attorney was suspended for six months and a day in Massachusetts.
One interesting aspect of the case involved charges that the attorney's business card violated advertising rules.
One side of the card had his Massachusetts address; the other side had the Georgia address. The Georgia side said he was admitted in Massachusetts; the Massachusetts side said nothng about his admission status.
The Board of Bar Overseers found that the failure to affirmatively disclaim Georgia bar admission on the card was misleading.
The attorney did not note an exception on the point of law. (Mike Frisch)