October 6, 2012
Former Prosecutor Accepted Fees In Cocaine
A Colorado attorney was suspended for a year and a day as a result of a drug possession conviction.
According to the summary on the web page of the Presiding Disciplinary Judge, the attorney accepted cocaine as payment for legal services in several matters.
According to the Denver Westword blogs, the attorney had been a prosecutor in El Paso who was caught in a cocaine bust:
The slogan featured prominently on attorney Nicholas Athanasiou's website reads, "When Everything Seems Against You, Call Us!" Well, Athanasiou may want to give himself a ring about now. He's among eighty individuals accused of being part of a huge cocaine ring -- one shuttered in what authorities are calling the largest drug take-down in Colorado history thanks to raids on 97 homes.
In an unrelated matter, the Pennsylvania Supreme Court accepted a consented-to public censure of a Philadelphia Assistant District Attorney who was observed by a police officer snorting cocaine in his car.
The attorney was suspended from his DA position without pay and later resigned. (Mike Frisch)
October 5, 2012
Failed Transplant, Failed Lawsuit
A son donated a kidney to his father. After the transplant surgery, the kidney failed and had to be removed. The son sued the doctor for post-transplant medical malpractice that, allegedly, led to the transplant failure.
The Nebraska Supreme Court tody affirmed the dismissal of the malpractice action, holding that the doctor owed no duty of care to the kidney donor for any malpractice in the treatment of the donee. (Mike Frisch)
October 4, 2012
The New York State Commission on Judicial Conduct accepted a 122 page stipulation and the resulting resignation of non-attorney town court justice Robert Link.
Among the violations: "Finding [a] defendant guilty without a plea or trial and imposing sentence without giving the defendant an opportunity to contest charges." (Mike Frisch)
Suspended for Misconduct, Attorney Continues Practice And Is Permanently Disbarred
The web page of the Ohio Supreme Court reports:
The law license of Pepper Pike attorney Dwight E. Davis has been permanently revoked for multiple violations of the Rules of Professional Conduct.
In a 7-0 per curiam decision announced today, the Supreme Court of Ohio adopted findings by its Board of Commissioners on Grievances & Discipline that Davis, whose license has been under continuous suspension since March 2009 for prior misconduct, opened what purported to be a client trust account while he was under suspension, deposited thousands of dollars in that account despite being barred from representing any clients, and used the account to pay personal expenses while his personal bank accounts were subject to judgment liens totaling more than $22,000.
The court agreed with the disciplinary board’s findings that Davis’ actions violated, among others, the Professional Conduct Rules that prohibit an attorney from engaging in fraud, deceit, dishonesty or misrepresentation, conduct prejudicial to the administration of justice, and conduct that adversely reflects on the lawyer’s fitness to practice law. The court also found that Davis’ failure to answer the complaint brought against him based on this conduct, or otherwise to cooperate in the investigation of his violations, violated the state bar governance rule requiring attorneys to cooperate with disciplinary authorities.
In affirming the board’s conclusion that permanent disbarment was the appropriate sanction for Davis’ misconduct, the court wrote: “By establishing the escrow account, Davis engaged in the charged misconduct whether he was practicing law under suspension, deceitfully shielding his own funds from creditors, or both. Davis refused to cooperate in relator’s investigation, and the documentary evidence showing misconduct is unrefuted. ... We agree that the facts and law support Davis’s disbarment.”
The opinion is linked here. (Mike Frisch)
October 3, 2012
No Lien On Me
The New York Appellate Division for the First Judicial Department has held that a trial court improperly granted a charging lien to a law firm as a result of the former client's settlement of a damages claim by other counsel:
The Laskin firm cannot have a charging lien on the settlement proceeds in the Ascot action where it never commenced an action against Ascot and thus was never attorney of record for the Papaioannous in the Ascot action, but instead commenced an action against other parties, months after the Ascot action was filed and settled. Rather, the remedy available to the Laskin firm is a plenary action.
Military Service Mitigates Disciplinary Sanction
A disciplinary case decided today is summarized on the web page of the Ohio Supreme Court:
The law license of [a[ former Cincinnati attorney...has been indefinitely suspended for violations of the Rules of Professional Conduct in his dealings with more than 20 bankruptcy clients.
In a 7-0 per curiam decision announced today, the Supreme Court of Ohio adopted findings by its Board of Commissioners on Grievances & Discipline that [the attorney] accepted fee advances from those clients but deposited the unearned fees in his office operating account rather than in a client trust account, and spent the clients’ funds on personal and office expenses without performing the legal services for which he had been retained.
The court agreed with the board’s findings that [his] actions violated, among others, the state disciplinary rules that prohibit an attorney from neglecting entrusted client legal matters, collecting an illegal or clearly excessive fee, failing to properly supervise a nonlawyer staff member, failing to properly segregate client funds in his possession from his own funds, engaging in dishonesty, deceit, fraud or misrepresentation and engaging in conduct prejudicial to the administration of justice.
In imposing an indefinite suspension rather than permanent disbarment as the sanction for this misconduct, the court noted the mitigating factors that [the attorney] had served in the U.S. Air Force for 20 years, expressed sincere remorse and accepted full responsibility for his actions, cooperated with disciplinary authorities, and was making ongoing attempts to make restitution to his clients by paying another attorney to assist those whose cases remain unresolved. As a condition of any future reinstatement of his license, the court ordered [he] to make aggregate payments of $2,000 per month to his former clients until he has made full restitution for their fee advances, complete 12 hours of continuing legal education in law office and trust account management, and serve one year of monitored probation upon his reinstatement to the practice of law in Ohio.
The opinion is linked here. (Mike Frisch)
For The Sake Of The Children
The Indiana Supreme Court has imposed a stayed suspension of 90 days of an attorney convicted of driving intoxicated with a minor passenger. The attorney admitted that he "endangered his three minor children, who were passengers as well as members of the public, by driving while intoxicated."
The probation will involve monitoring by the Indiana Judges and Lawyers Assistance Program. (Mike Frisch)
"We Trusted Him"
An attorney convicted of grand larceny has been disbarred by the New York Appellate Division for the Fourth Judicial Department.
Thomson Reuters had this story on the criminal case:"The former general counsel for a Teamsters local was sentenced Wednesday to up to eight years in prison for defrauding the union of $184,000 by submitting forged receipts for legal materials he didn't buy and classes he never attended.
Kevin Clor, 40, who served as counsel for New York State Thruway Employees Local 72 from 2001 to 2011, pleaded guilty in June to 34 counts of grand larceny, possessing forged documents and falsifying business records.
Acting Supreme Court Justice Carol Berkman sentenced Clor to between 2-2/3 years and eight years in prison, despite pleas from Clor's defense lawyer, Jeremy Saland, that such a sentence would be disproportionately harsh.
Saland asked the judge to take into consideration that Clor has an autistic son who requires expensive care and argued that his client had used at least a portion of the money to help his family.
"This was not somebody in any way who was living a life of luxury," he said.
Prosecutors accused Clor of giving the union approximately 150 phony receipts between 2006 and 2011.
The fake documents included invoices for more than $100,000 in continuing legal education courses that Clor never took, including $23,000 in receipts from the Nichols School, a private middle and high school near Clor's home in Buffalo, and $48,000 from the state's "Education Certification Department," which does not exist. Clor also submitted receipts for $22,000 for Thomson Reuters legal material that he never bought, some of which bore the names of invented salespeople, prosecutors said.
Thomson Reuters News and Insight is owned by Thomson Reuters.
"That he egregiously violated one of the most sacred vows that an attorney makes, to represent the interest of his client, is obvious, your honor," said Assistant District Attorney Jose Fanjul.
Martin Latko, the president of the union, expressed anger at Clor for his betrayal.
"For 10 years, we relied on his counsel and his advice," he told Berkman. "We trusted him."
In a brief statement to the judge, Clor said he accepted responsibility for his actions and promised to try to make his victims whole.
As part of his sentence, Clor will have to pay more than $160,000 in restitution, in addition to approximately $30,000 he has already paid to the union.
The case is the People of New York v. Kevin Clor, New York State Supreme Court, No. 5866-11."
October 1, 2012
A recent opinion from the ever-busy Florida Judicial Ethics Advisory Committee:
ISSUES: 1. May a judge participate in a charity walkathon wearing a shirt with a “team name” based on the name of a local attorney in private practice?
2. May a judge’s spouse donate and solicit funds on the spouse’s behalf and on behalf of the team named for the local lawyer?
ANSWER: Yes, as long as the judge is not seeking to solicit funds vicariously through the efforts of the judge’s spouse.
14 Pounds And What Do You Get
A report from the October 2012 California Bar Journal:[An attorney] was suspended for three years, stayed, placed on four years of probation with an actual two-year suspension and until he proves his rehabilitation and he was ordered to take the MPRE and comply with rule 9.20 of the California Rules of Court. The order took effect Aug. 18, 2012. He receives credit for a period of interim suspension that began Dec. 19, 2011.
[He] was convicted in federal court in Wisconsin of conspiracy to distribute more than 1,000 kilograms of marijuana.
According to his stipulation with the State Bar, [the attorney] received shipments of marijuana from a large-scale seller of the drug who shipped it from northern California to the midwest for tens of thousands of dollars. The individual stayed at [his] vacation home in Gary, Ind., while drugs were being shipped to Chicago and Milwaukee. At one point, [he] and an associate traveled to California to make arrangements for delivery of marijuana to Chicago.
When [the attorney] was arrested at his vacation home, law enforcement agents seized approximately 14 pounds of marijuana and approximately $2,287 in cash. Another $26,650 was found in a safe in his Chicago condo.
As part of the interim suspension, [he] was ordered to comply with rule 9.20 of the California Rules of Court, but he submitted the required affidavit late.
In mitigation, he had no prior discipline record, cooperated with the bar’s investigation and with law enforcement and had difficulty complying with rule 9.20 because he had limited computer access. He had not been practicing law for a long time when he was arrested.
Bad Economy No Excuse for Thefts
The Pennsylvania Supreme Court has disbarred an attorney for misappropriation and other misconduct.
In response to charges of theft of estate funds, the attorney testified that he "used those funds... in the worst financial crisis in our nation's history." He also stated that "those funds had been used by me in my business operations in difficult times."
Another matter involved the sale of real property by the attorney's client to a Philadelphia municipal judge. The attorney used the contract deposit to pay a number of personal expenses.
The Disciplinary Board recommended disbarment for the misappropriations, "lying to virtually anyone he encounters," no restitution or remorse, and other aggravating factors. (Mike Frisch)
Making A Bad Situation Worse
The New Jersey Supreme Court has rejected the censure recommendation of the Disciplinary Review Board and imposed a three-month suspension in a matter in which the attorney covered up his neglect of the client's matter.
The client retained the attorney's firm to pursue a medical malpractice claim on a contingent fee basis. The matter was not entered into the law firm's computer system. By the time the attorney focused on the case, the statute of limitations had run.
The suspension was a result of the attorney's response to the situation.
He falsely told the client that the matter had settled and fabricated a document to support his story. He eventually told the client the truth when confronted in his office. He then admitted that he had "screwed up" and advised the client that he had a legal malpractice claim against him. (Mike Frisch)
September 30, 2012
State Employee Attorney Reprimanded For Posting Answers For Profit
In a case that likely will trigger waves of fear throughout the public sector, an attorney was recently publicly reprimanded by the Kentucky Supreme Court.
The attorney was a state government employee. He used his personal laptop computer at work to post answers on JustAnswer.com. He posted the answers for a profit.
To make matters worse, the attorney also used his office Westlaw account on 36 occasions to search for the information that he posted. The attorney disputed the number of searches but conceded that he had violated Rule 8.4(c) by his conduct.
The court noted that the conduct did not interfere with the attorney's discharge of his public duties.
The attorney and the Executive Branch Ethics Commission entered into a settlement agreement that fined him $2,000. (Mike Frisch)
"Living In Adultery" In Kentucky
A recent decision of the Kentucky Supreme Court turned on the interpretation of the phrase "living in adultery" in determing the disposition of an estate.
The phrase comes from the Statute of Westminster (1285) as adopted by Kentucky in 1796 and most recently codified in 1942.
The deceased was killed in a work-related accident. The only significant asset of his estate was the workers' compensation claim.
At the time of his death, he had been married for four months. His wife (the claimant here) sought a civil protection order and had filed for divorce. They were living apart.
The proofs at trial established that she had engaged in sexual intercourse the night before her husband died.
The trial court found that the single act established that the wife was "living in adultery" and awarded the estate to the deceased's mother.
Both the Court of Appeals and the Supreme Court disagreed, holding that the wife's single act did not constitute "living in adultery."
There are two dissents. Justice Cunningham stated the issue as whether the estate should go to the deceased "loving, nurturing mother" or the "adulterous and absent wife" and said: "Let's be sensible." The dissenters would hold that the marriage was clearly over.
The majority and dissents also disagree over the significance of the wife's post-widow continuing relationship with the person she had slept with on the night before her husband's death.
The majority found that the widow could no longer engage in adultery after her husband's death. The evidence thus was irrelevant. The dissenters would consider the evidence as proof that the marriage was over. (Mike Frisch)
The Opposite Of Civility
The Illinois Administrator has filed a third amended complaint alleging that an attorney engaged in misconduct in several matters.
Among the allegations are charges involving mistreatment of opposing counsel in litigation. From the complaint:
...beginning in 2008, Respondent called [opposing counsel] Steven’s vulgar names. As a consequence of Respondent’s conduct, after February 2008, Stevens refused to speak with Respondent and communicated with him only by letter or in open court.
On approximately 10 occasions, in 2008 and 2009, Respondent called Stevens a "bitch" or "fucking bitch", and called her "cunt" on at approximately five occasions, "slut" or "whore" on two or three occasions, "asshole" on at approximately 10 occasions, and "pervert" on approximately five occasions.
Specifically, on September 3, 2009, Respondent, Stevens, and other counsel appeared in case number 07 L 3391. While on the record, Respondent stated on the record in case number 07 L 3391 to Stevens "[S]till hanging around the bars and picking up the DePaul students?" In addition to his statement on the record, on two other occasions, Respondent stated to other counsel in Steven’s presence, in a voice that Stevens could hear: "She [Stevens] has been seen picking up boys at DePaul bars and taking them home with her."
Respondent’s referred to Stevens as a "bitch", "fucking bitch", "cunt", "slut" and "whore", and stated that Stevens had been seen picking up boys at DePaul bars for no other purpose than to harass or embarrass Stevens.
On September 11, 2009, Respondent, Stevens and others were appearing in case number 07 L 3391. Prior to the court hearing, Respondent approached Stevens and said to her "Nice dress, slut."
Prior to the hearing on September 11, 2009, Stevens handed a motion to Respondent without speaking, and Respondent stated to her "Go fuck yourself." Respondent then added "you asshole."
When the judge returned to the courtroom, Stevens made a statement on the record regarding the words Respondent had used to her before the hearing.
Respondent responded that Steven also swears, and then referred to her, twice, as a "liar."
On September 17, 2009, Respondent, Stevens and others appeared before the court in case number 07 L 3391. During the hearing, Respondent called Stevens a "liar" and referred to Stevens as "Miss Stevens who molested this child."
On September 24, 2009, Respondent, Stevens and others appeared for a hearing in case number 07 L 3391. The judge stepped out of the courtroom, and Respondent approached Stevens. Stevens, who continued to refuse to talk to Respondent, and started walking away and stood next to the judge’s chambers. Respondent followed Stevens. Stevens again walked away from Respondent, and Respondent stated to her "Bye, bitch."
At the conclusion of the hearing on September 24, 2009, Stevens stated that she wanted to put the Respondent’s comment of "Bye, bitch" on the record. During the discussion on the record that followed, Respondent stated that Stevens "was the same woman who physically and sexually abused [Cristina]."
As the September 24, 2009 hearing was concluding, Respondent turned to Stevens and called her a "pervert."
Respondent called Stevens obscene names, used obscene language, and, while on the record, made the statements that Stevens had physically and sexually abused Cristina, and that Stevens was a "pervert" and "liar" for no other reason than to harass or embarrass Stevens.
Many of Respondent’s statements to Stevens described above were made at a time when Stevens and Respondent were not engaged in an argument or conversation.
In the same matter, the complaint alleges that the attorney called the attorney who replaced him an "coke head" and falsely claimed that counsel snorted cocaine in the courthouse rest room. (Mike Frisch)