October 19, 2012
Mississippi Corruption, Louisiana Disbarment
An attorney involved in misconduct in Mississippi has been permanently disbarred in Louisiana:
Here, the record demonstrates that respondent secured bank loans for two Mississippi state court judges, purportedly for campaign expenses. Thereafter, in an effort to conceal the fact that he was paying off the loans himself, respondent used cash and third-party intermediaries to disguise the true source of the loan payments. In exchange for this financial assistance, respondent subsequently received extremely favorable rulings from the judges in cases he filed in their courts. This conduct amounts to blatant corruption of the judicial system, and will not be tolerated by this court.
Hail To The Chief
The Louisiana Supreme Court has held that, in determining who shall be the Chief Justice, appointed service does not count towards seniority. The issue arose because the two candidates were separated by "only some two months of service."
As a result, victory was denied to Justice Victory.
Hail to Chief Justice Johnson. (Mike Frisch)
The Iowa Supreme Court has imposed a 30-day suspension of an attorney as a result of a series of criminal convictions.
The matters involved driving both a boat and a motor vehicle while impaired (two separate incidents) and possession of cocaine.
The boat incident involved a stop by a water patrol officer who observed the attorney accelerating in a five mile per hour speed-limit zone.
The attorney had previously made bar discipline headlines in a case where he was sanctioned for plagiarism in a brief in a bankruptcy case.
From the earlier case:
We recognize that the term “plagiarism” is something of a scarlet letter that imposes a brand on a wide variety of behaviors. We do not believe our ethical rules were designed to empower the court to play a “gotcha” game with lawyers who merely fail to use adequate citation methods. This case, however, does not involve a mere instance of less than perfect citation, but rather wholesale copying of seventeen pages of material. Such massive, nearly verbatim copying of a published writing without attribution in the main brief, in our view, does amount to a misrepresentation that violates our ethical rules. We note that before this court, [the attorney] has candidly admitted that his activity represented dishonesty and not negligence or incompetence.
The New Jersey Supreme Court has reprimanded an attorney for misconduct in a personal injury matter.
The client consulted the attorney after his hand was crushed while changing a tire on his BMW. The attorney agreed to investigate the matter and brought in an associate to work the case. The firm retained an expert and concluded that there was no basis to proceed. The client was not advised.
Notwithstanding the decision not to proceed, the associate filed a civil case two years later against a jack manufacturer. The complaint named the wrong manufacturer and was eventually dismissed. The attorney largely professed ignorance of the situation.
When a bar complaint was filed by the client, the attorney was tardy in responding.
The Disciplinary Review Board expressed a number of concerns in their report. In particular, the associate was purportedly "on vacation" and did not testify. The DRB thought that the attorney's story of what had occured between him and his associate made little sense, as they were the sole lawyers in the firm's products liability practice.
As to sanction, the DRB would have imposed an admonition but for the attorney's "disrespectful arrogance." (Mike Frisch)
October 18, 2012
Judge's Diagnosis Lands Him In Trouble
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio today suspended the law license of Massillon Municipal Court Judge Edward J. Elum for six months, with the full term of suspension stayed, for violations of the Code of Judicial Conduct and Rules of Professional Conduct in his handling of two cases.
In a 7-0 per curiam decision, the court adopted findings by the Board of Commissioners on Grievances & Discipline that in one case Elum improperly “interceded” in the case of a parole violator by asking probation officers to take the defendant into his courtroom for a “probation review,” and outside the presence of the defendant’s attorney or counsel for the prosecutor, addressed the defendant using vulgar and intemperate language while other members of the public were present. Elum then unilaterally modified the terms of the defendant’s probation.
In the second case, the court agreed with findings by the disciplinary board that Elum, who admitted that he had a history of conflicts and disagreements with the Massillon Police Department and Police Chief Robert Williams, improperly interjected himself into an internal police investigation of misconduct by an officer who sent sexually explicit text messages, photos and a video to a woman after citing her for traffic violations that were prosecuted in Elum’s court.
When the state requested a second continuance of the woman’s trial because of incomplete investigatory information, Elum issued an order stating that the police department was “delaying the prosecution” of the case and ordered the parties to provide the court with copies of the text messages and photos that the arresting officer had sent to the defendant despite the absence of a request by any party for the court to obtain or review that material. Elum later threatened to hold contempt proceedings if the parties failed to submit the requested material, and made statements in open court accusing the police of “total neglect and disregard” and assuring the defendant that his court “did not participate in any cover-up” of police misconduct.
The court adopted the board’s findings that Elum had engaged in conduct prejudicial to the administration of justice, and had violated, among others, the state judicial rules that require judges to be patient, dignified and courteous to litigants, to act in a manner that promotes public confidence in the judiciary, and to apply the law and perform judicial duties fairly and impartially.
In light of Elum’s 35 years of law practice without prior disciplinary infractions, lack of a selfish or dishonest motive, full and free disclosure of his misconduct, cooperation with disciplinary authorities, and evidence of his good reputation in the community, the court adopted the board’s recommended sanction of a six-month suspension with all six months stayed on condition of good conduct during that period.
The "vulgar and intemperate language" at the "probation review" is set forth in the opinion:
Cody, quit screwing up. Quit fucking up.
You have a bad case of D. H. Dickheaditis.
Your're screwing off. You can't keep continuing to screw off or you'll be like the rest of the dickheads at Stark County Jail.
The court's opinion is linked here. (Mike Frisch)
October 17, 2012
The Last Straw
A Louisiana Hearing Committee has recommended that an attorney's conditional bar admission be revoked.
The attorney graduated from law school and passed the bar exam in 2005. He was conditionally admitted on five years probation in 2007. A Baton Rouge attorney was appointed as probation monitor.
In February 2008, the attorney was arrested for domestic abuse. The charges were later withdrawn. The probation monitor was advised of the incident.
In February 2009, the attorney was cited for disturbing the peace. Those charges were also dropped. However, the conditional admission was extended based on the two incidents.
The last straw was a 2012 arrest and subsequent conviction for simple battery.
The Office of Disciplinary Counsel then moved to revoke the conditional admission, based on the criminal conduct and failure to candidly reveal the latest round of arrests and conviction.
The Hearing Committee found "overwhelming" evidence to support revocation. (Mike Frisch)
The Never Ending Story
The Michigan Attorney Discipline Board has ordered that the suspension imposed by a tri-county hearing panel of an attorney involved in the Kwame Kilpatrick ethics nightmare be increased to 18 months.
The attorney, who represented the City of Detroit, was found to have engaged in misrepresentations to the court and conflicts of interest.
In the trial-level proceedings, ADB Tri-County Hearing Panel #6 found that Colbert-Osamuede engaged in a variety of misconduct, including failure to explain a matter to the extent reasonably necessary to permit her client to make informed decisions in violation; representation of clients with directly adverse interests; making false statements of material fact to a tribunal and third persons; unlawfully obstructing another party's access to evidence; and, knowingly making a false statement of material fact in her sworn statement made to the Attorney Grievance Commission.
The panel entered an order of suspension for 90 days. Both the Grievance Administrator and Colbert-Osamuede petitioned for review. Colbert-Osamuede did not request a stay of discipline, and the suspension went into effect on April 26, 2012. On review, the ADB affirmed the findings on misconduct and increase discipline to a suspension of 18 months.
We may be near or at the end of the disciplinary fallout from this litigation. (Mike Frisch)
Three Generations But Only One Attorney
The Louisiana Attorney Disciplinary Board imposed a public reprimand of an attorney who practiced while on suspension for non-payment of bar dues and violation of letterhead rules.
The letterhead violation involved the attorney use of a three-name law firm. The other two names were non-lawyers -- the attorney mother and grandmother. (Mike Frisch)
October 16, 2012
The North Dakota Supreme Court has reprimanded an attorney who represented both the alleged perpetrator and victim of a crime:
Blake D. Hankey was admitted to practice law in the state of North Dakota on May 5, 2005, and is currently licensed to practice law in the courts of North Dakota. Hankey was served a Summons and Petition for Discipline and submitted an answer. The Petition alleged that Hankey undertook dual representation of an alleged perpetrator and alleged victim of the crimes of aggravated assault and terrorizing. Both executed a single retainer agreement. Due to a no-contact order between the clients, the alleged victim signed in Hankey's office and the alleged perpetrator signed at the correctional center. When communicating with the Assistant State's Attorney regarding the alleged perpetrator's case, Hankey did not inform her that he also represented the alleged victim. When she learned of the dual representation, she confronted Hankey about what she perceived was a conflict of interest. Hankey falsely told her that he had cleared any conflict with his law partners. The Petition also alleged that Hankey had the clients execute a waiver of the conflict of interest. The Petition alleged that the conflict of interest was nonconsentable because the clients' interests were inescapably adverse.
The attorney violated Rule 8.4(c) by falsely claiming that he had "cleared" the conflict with his partners. (Mike Frisch)
Traffic Case Misbehavior Results in Law License Revocation
The Oklahoma Supreme Court has accepted the resignation (tantamount to disbarment) of an attorney who admitted:
He admitted to making arrangements to discourage an officer from appearing to testify at a Department of Public Safety Hearing concerning the revocation of driving privileges. The plea was also entered based upon the attorney's having created false and fraudulent billings to a client's account to hide unethical and illegal payments to the police officer. Welch stated he was also aware of a grievance filed against him by Michael Leatherwood, alleging his representation of Leatherwood in a criminal case was adversely affected by Welch being investigated by the same District Attorney's Office that was prosecuting Leatherwood.
The attorney took an Alford plea in the criminal case. (Mike Frisch)
Wal-Mart Parking Encounter Leads To Proposed Suspension
A Louisiana Hearing Committee has proposed a year and a day suspension of an attorney based on conduct that resulted in a no contest plea to battery.
The incident took place in a Wal-Mart parking lot. After a close encounter with the victim's car, the attorney exited his car while screaming profanities. He threw several punchs at the victim and pushed the victim's wife.
The criminal case resulted in six months supervised probation with terms that included anger management treatment. (Mike Frisch)
Electronic Signature Misconduct
The Ohio Supreme Court has imposed a stayed six-month suspension of an attorney who provided his electronic signature card and Ohio attorney-registration number to a Florida-based corporation in exchange for a $1,000 payment.
The Florida law firm negotiates debt on behalf of consumers.
The attorney agreed to the annual payment to serve as local counsel for Ohio clients. He provided the signature and number to facilitate the execution of contracts for legal services. The agreements expressly stated that the attorney would not represent the client before a tribunal.
The law firm used the information on at least three contracts without the attorney's knowledge.
The court likened the matter to failure to supervise cases. (Mike Frisch)
Dental School Expulsion Reversed
The New York Appellate Division for the First Judicial Department reversed a judgment denying a petition to annul a decision by New York University that expelled the petitioner from its dental college.
The petitioner was expelled without possibility of readmission based on findings that she forged a patient treatment record and presnted forms she knew to be false to obtain the practice model values (PMV) required for graduation.
The court noted that the PMV "appears to have been the subject of controversy." The program creates an obligation to generate income for NYU.
The petitioner was, except for the PMV issue, an otherwise exemplary student. She contended that the issue was sprung on her literally moments before her scheduled graduation.
Petitioner's academic performance at NYU dental college was exemplary, and
this incident was at worst a single lapse in judgment in the face of extraordinary pressure. As Ploumis — who has been a member of NYU dental college for over 20 years — explained:
"In a moment of panic and desperation, Katie did something foolish and imprudent that blemished an otherwise spotless record. Her lapse was not premeditated ....
"... The entire student body is aware of, and aghast at, the punishment. Every student and graduate I have spoken to has indicated that, given a similar set of facts and conditions, he or she could envision acting similarly in a moment of panic....
"... Decent people, compassionate institutions, don't throw a student away on the eve of her graduation for one lapse."
Furthermore, because petitioner was able to enter the dentistry program before completing her undergraduate degree, expulsion from NYU leaves her with no degree of any kind after seven years of educational toil and the expenditure of hundreds of thousands of dollars.
There are also extenuating circumstances, grounded in the Code of Ethics, that were not given the weight they were due.
The court held that NYU failed to follow its own policies and felt compelled put the word "hearing" in quotes in describing the process that led to expulsion. The court further found evidence that NYU frustrated the petitioner's ability to complete the requirement and had treated similarly situated students less harshly.
The dismissal order of the Supreme Court is linked here. (Mike Frisch)
"Baby's Mama Drama" and Bar Discipline
In a two page report, a Louisiana Hearing Committee recommended dismissal of conflicts of interest charges against an attorney who represented heirs that were entitled to equal shares of an estate. The committee found that the attorney reasonably saw no conflict under the circumstances.
The complainant filed a complaint because another heir was the recipient of insurance proceeds outside of the estate.
In an enigamatic comment, the committee notes that the insurance issue and "Baby's Mama Drama" led to the filing of the bar complaint. (Mike Frisch)
October 15, 2012
The Limits Of The Rules Governing Lawyer Conduct
The holding in a revised decision issued last week by the Washington Court of Appeals, Division Three:
Rules of professional conduct have been used to prohibit lawyers from enforcing agreements with clients that lawyers were a party to. But those same rules have not been applied to support actions for legal malpractice or for equitable relief or damages based on a lawyer's ethical lapses. Here, the court refused to enforce a business agreement between two limited liability companies (LLCs) after concluding that the lawyer representing the parties represented both sides at the same time and therefore violated Rule of Professional Conduct (RPC) 1.7 (prohibiting lawyers from representing clients if there is a conflict of interest). We conclude that the remedy of rescission cannot be based on a violation of RPC 1.7. We, however, also conclude based on the court's findings that the interests of the lawyer and one of the LLCs were sufficiently aligned to warrant rescission of the agreement based on a violation of RPC 1.8 (prohibiting lawyers from entering into business agreements with their clients). We therefore affirm the superior court's judgment ordering rescission.
Explanations Not Forthcoming, Attorney Suspended
An attorney who failed to cooperate with a disciplinary complaint investigation has been suspended by the New York Appellate Division for the First Judicial Department. The complaint was initiated by a federal judge:
Five months after the Committee first wrote respondent, it received an answer from her with respect to all three complaints. Respondent stated that there had been a "misunderstanding" and a "miscommunication" with a certain attorney who she had arranged to take over the cases; that she apologized and accepted full responsibility; and that she issued full refunds to all three clients (and attached copies of money orders). She also advised that she no longer was in
private practice, rather, she worked for "Special Counsel" for the last year, and therefore, was no longer able to handle the three client matters. Respondent, however, did not explain why no one, including her clients, knew about the cases being transferred to new counsel, and she did not address her failure to return phone calls from, among others, Judge Cote's chambers.
On April 23, 2012, this Court issued a subpoena duces tecum directing respondent to produce the three client files, and to appear on May 9, 2012 to give testimony. On May 2, 2012 respondent left a voicemail message for the DDC investigator stating that she could not comply with this Court's subpoena because her apartment had been burglarized the previous year and the subpoenaed case files had been stolen. In response, by letter dated May 2, the Committee informed respondent that despite her lack of documents, the subpoena still required her appearance and requested that she bring any documentation regarding the claimed burglary. The certified letter receipt sent to her business address was signed for and returned to the DDC.
Notwithstanding this correspondence, respondent did not appear for her deposition or otherwise contact the Committee. That day the Committee wrote respondent regarding her failure to appear and informed her that if she did not contact the DDC by May 18 to reschedule her appearance, an interim suspension may be filed against her. The letter sent first class to Special Counsel was returned marked "Attempted-Not Known Unable to Forward" and the certified letter also sent to her business was refused and returned to the Committee. On May 15, the DDC investigator asked Special Counsel about the returned mail and was told that the business told the Post Office that they would no longer accept mail on respondent's behalf. In addition, respondent gave Special Counsel permission to provide her Brooklyn home address to anyone trying to locate her.
On May 15, 2012, the Committee sent another letter to respondent's home advising, among other things, that if she did not contact the DDC by May 23 to reschedule her deposition an interim suspension may follow and, asking for an alternative mailing address since she never responded to any correspondence the Committee had sent to her Brooklyn address. The return receipt was signed for on May 16 and returned to the Committee. Respondent did not respond to this letter.
The court thus imposed a suspension pending furtrher proceedings. (Mike Frisch)
Thefts From Firm Lead To Suspension
The Delaware Supreme Court has imposed a one-year suspension of an attorney who "began experiencing personal and emotional problems because of deaths in his family." The court did not find a causal link between his depression and the misconduct.
The attorney was employed as an associate at a law firm from 2000 to 2005, when he became a partner. He was dismissed from the firm in October 2011.
After his pay at the firm was cut, the attorney misappropriated consultation and flat fees from the firm on eight occasions. The firm discovered the thefts and confronted him. He confessed, was fired and reported himself to bar authorities only after he was caught.
He reimbursed the firm the $1,780 that he had taken.
The court rejected the reprimand with probation sought by the attorney and the Board on Professional Responsibility. The court found that he had intentionally committed a criminal act and that the sanction of reprimand would be "unduly lenient."
A Reminder To Pay Bar Dues And Complete CLE
An attorney who practiced as a law firm associate for more than three years while suspended for failure to pay annual registration fees and to complete CLE obligations has been fined $250 and had her administrative suspension converted to an indefinite suspension by the Indiana Supreme Court.
The attorney admitted that she had practiced while knowing of the suspension.
The order requires the attorney to demonstrate remorse, rehabilitation, and fitness to practice to obtain reinstatement. (Mike Frisch)
The Georgia Supreme Court has imposed a suspension of eighteen months of an attorney who engaged in overbilling for legal services provided to indigent clients.
The attorney resolved criminal charges by agreeing to repay over $10,000 to the county.
The court also imposed a lifetime ban on the attorney from doing work for indigent clients paid for by public funds from any source. (Mike Frisch)
Former Judge Reprimanded For Moving To Terminate Sentences He Imposed
A former chief judge of the Dalton Municipal Court has been publicly reprimanded by the Georgia Supreme Court.
After concluding his judicial service in 2010, the former judge
...agreed to represent three individuals then serving probationary sentences that [he] himself had imposed as a judge of the Municipal Court, and on behalf of those individuals, [he] filed motions in the Municipal Court to terminate their probationary sentences. [He] undertook to represent these individuals and filed their motions to terminate their probation without the consent of the city of Dalton.
The former judge defaulted on the charges and refused to accept responsibility for his actions. (Mike Frisch)