Tuesday, April 30, 2013

Is An Addiction To Lying A Mitigating Factor?

The New York Appellate for the First Judicial Department has imposed a nine-month suspension for the following misconduct:

On September 1, 2009, respondent's client asked him to commence a civil action. At that time, respondent did not file the action. To persuade his client that everything was proceeding well, respondent created a fraudulent stipulation of settlement with a fictional index number, caption and settlement amount. Respondent also randomly chose an opposing counsel's name from an attorney directory and forged his signature at the bottom of the document. Respondent gave the false document to his client, misrepresenting that he had settled the matter. He did not file the document with the court. On November 21, 2009, before his client discovered the deception, respondent filed a valid complaint in Small Claims court.

The other attorney eventually learned that respondent had forged his name on the fraudulent stipulation. Once his dishonesty was discovered, respondent wrote letters to his client and the attorney. In the letter to his client, respondent claimed that he suffered from an "addiction [to] lying" that he analogized to an addiction to drugs or alcohol. In the letter to the attorney, he apologized for his actions, offering the explanation that he "did not know how to properly file an action on behalf of [his] client, and felt this would buy [him] time to properly file same." He also stated he had come to the conclusion that he had trouble telling the truth, "be it either personal or business." Further, as he later testified, although he has no other disciplinary history, respondent had previously received two letters of caution from the Second Department and had received sanctions for neglecting to file orders in three Family Court matters. The Presiding Justice of the Second Department had also decertified him from Nassau County's 18-b Panel.

As to sanction:

Here, where respondent not only neglected a legal matter and then created a fictitious document with a forged signature of an innocent attorney in order to conceal the neglect from his client, but also failed to mitigate his troubling history of sanctions, warnings and decertification, we find that a nine-month suspension is appropriate and strikes a balance with the case law...

The answer to the question posed in the title, mercifully, is "no." The attorney must pass the ethics portion of the bar exam and address his "pathological" behavior to get reinstated. (Mike Frisch)

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Agreed Sanction Of Probation In Maricopa County Discipline Case

A deputy county attorney for Maricopa County, Arizona has agreed with Independent Bar Counsel John Gleason on a sanction of two-year of probation with conditions.

The misconduct related to the attorney's involvement in a RICO case filed in federal district court on behalf of Sheriff Joe Arpaio and others.

Three other members of his office are the subject of related charges.

The attorney did not become "meaningfully involved" in the RICO case until after it was filed. He recognized that the case was devoid of merit and urged his subordinate to investigate the matter further.

He admitted charges of pursuing meritless litigation and failure to supervise. (Mike Frisch)

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

With All Deliberate Sloth

The sharp-eyed reader may be aware that I have had occasion in the past to criticize the District of Columbia bar disciplinary system for its interminable delay in bringing charges of misconduct to resolution.

As one far wiser than I (former Bar Counsel Len Becker) observed, no participant in the system is free from blame.

But one of the worst cases of inexplicable delay is now wending its way through the system. The lion's share of blame can only be attributed to a hearing committee and the Board on Professional Responsibility's office for its abject failure to motivate the committee to action.

The case is In re Wayne Rohde, Bar Docket No. 2005- D347. 

The attorney was convicted of felony leaving the scene of an accident in Virginia. The incident that took place on August 10, 2005.

On December 5, 2005, the D.C. Court of Appeals entered an order declining to suspend the attorney for the conviction, noting his claim that the incident was the result of an alcoholic blackout. The court referred the matter for investigation and prosecution.

Bar Counsel filed charges of moral turpitude and other misconduct. Three days hearings were held ending on January 15, 2008. Post-hearing briefing was completed on August 28, 2008.

Then....nothing.

The matter has now been pending before a hearing committee for over five years since the hearing was completed. Nothwithstanding a felony conviction, the attorney has not been subject to either sanction or vindication of the charges.

And if the hearing committee ever actually deigns to do its job, the report still has to be reviewed by the Board and the Court.

Disgraceful.

Wonder if anyone responsible for the operation of the D.C. bar disciplinary system cares. (Mike Frisch)

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Can't Sue Assigned Counsel Program

The New York Court of Appeals has held that an attorney who participates in an assigned counsel program ("ACP") for indigent persons "lacks standing to challenge how the ACP Plan deals with the provision of counsel to unemancipated minors in adult criminal court..."

The attorney was never a minor charged with a crime or the parent of a charged minor.

The court noted that the attorney contended that sections of the Plan "caused him to be assigned fewer cases. But personal disagreement and speculative financial loss are insufficient to confer standing." (Mike Frisch)

April 30, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Second Sex Case Gets License Revoked

The Wisconsin Supreme Court has revoked the license of attorney based on two counts of misconduct.

One count involved the fact that he had no escrow account and gave a client's advanced fee to another attorney to hold. The fee was eventually returned.

The other count:

According to the criminal complaint filed against him, Attorney Engl engaged in e-mail communication with a female, who explicitly informed him that she was 15 years old.  Their communications included discussions about meeting in person for the purpose of having sexual intercourse.  On November 19, 2011, Attorney Engl drove to the girl's workplace and picked her up.  Attorney Engl engaged in sexual contact with the girl and had her perform oral sex on him.

There was prior similar misconduct:

The misconduct at issue in that proceeding was Attorney Engl's conviction for one count of using a computer to facilitate a child sex crime.  Specifically, while working at a law firm, Attorney Engl used his computer to enter an Internet chat room and to communicate his interest in having sexual intercourse with an individual he believed to be a 14-year-old girl, but who was actually a police detective posing as a teenage girl.  When Attorney Engl subsequently went to the location where he had arranged to meet the girl, he was arrested by the police.

He was reprimanded in the earlier case. (Mike Frisch)

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

14 Crimes

The Wisconsin Supreme Court has ordered a 30-month suspension with reinstatement on conditions in a case involving 14 criminal convictions from 2008 to 2011 and the attorney's failure to report them.

The convictions were on charges of driving under the influence (two misdemeanors and two felonies), resisting or obstructing an officer (three counts), misdemeanor hit and run (two counts), misdemeanor cocaine possession, bail jumping, disorderly conduct and operating while revoked, felony endangering safety, and retail theft.

The attorney failed to cooperate with the disciplinary investigation.

The court found the reckless endangerment conviction "particularly troublesome" and noted that the attorney "had a habitual disregard for the law and her obligations as an attorney."

The reinstatement conditions require recovery from substance abuse. (Mike Frisch) 

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Excessive Fee Draws Reprimand

The Ohio Supreme Court has imposed a public reprimand of an attorney who required an "up-front flat fee deemed earned in full by [her mortgage services business] at the time of payment."

The agreements also entitled the client to a full refund under some circumstances. However, the attorney did not give five clients a full refund on request, although she later made restitution.

The court found that "the cost of...services was disproportionate to any benefits the clients received."

The attorney has made "significant changes" in her practice and has had no prior brushes with the disciplinary system. (Mike Frisch)

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Inattentive But Not Dishonest

The New York Appellate Division for the Fourth Judicial Department has censured an attorney who "overstated" time spent on assigned counsel matters.

The overstatements took place in 16 cases over an approximately 18 month period.

The referee found the misconduct was "the result of respondent's inattentiveness and failure to make and keep accurate records, rather than fraud or deceit."

The attorney had no prior discipline in 35 years of practice.

The Grievance Committee challenged the "no dishonesty" finding but the court deferred to the credibility findings of the referee. (Mike Frisch)

April 30, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 29, 2013

Psychoanalysis Not Required For Reinstatement

The Arizona Supreme Court disagreed with a hearing panel's unfavorable recommendation and reinstated an attorney who was suspended for six months and a day in 2008 for, among other things, passing off a copy of a will as the original.

The court had a number of rather interesting observations about its reinstatement process, which "does not necessarily require the peeling back of multiple layers of causation and psychoanalysis."

Rather, the petitioner must demonstrate that the "causal weakness" that led to ethical violations must be overcome.

The court also noted that "community service, religious commitment, and meditative reflection are not a panacea" but it seems to have sufficed here. (Mike Frisch)

April 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Limits Of Zealousness

The Kentucky Supreme Court has imposed a suspension of not less than 181 days in a case involving an attorney's decade of advocacy on behalf of a dismissed shoolteacher.

The attorney's advocacy on his own behalf also caught the court's attention, as it was noted that his appeal reflected his

wholesale disapproval of the disciplinary process that brought him to this point. And consistent with the conduct that leads him to this action, [he] has filed with this Court more than the customary number of motions, all purported to instruct the Court and the [Kentucky Bar Association] on the proper procedures.

The court rejected some charges but found that the attorney had engaged in "disruptive" behavior and other misconduct.

The court noted that the duty of zealous advocacy "does not provide permission to inundate the court with the same argument couched under different motions. Justice is not a war of attrition." (Mike Frisch)

April 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Stay Registered

The full Massachusetts Supreme Judicial Court affirmed a single justice's order of a six-month suspension for misconduct described in the court's opinion:

The respondent was admitted to the practice of law in December, 2008, and duly registered with the Board of Bar Overseers (board) in January, 2009. When her employment address changed, she did not file a supplemental statement of changes to the information provided in her initial registration statement, nor did she file a registration statement or pay the associated fee as required in January, 2010. S.J.C. Rule 4:03(1)(a), as amended, 416 Mass. 1319 (1993). Accordingly, on June 14, 2010, the board filed a petition in the county court seeking Gustafson's suspension as an administrative matter. See S.J.C. Rule 4:02(3), as amended, 447 Mass. 1301 (2006); S.J.C. Rule 4:03(2), as appearing in 421 Mass. 1302 (1995). An order suspending her from the practice of law entered on July 26, 2010. Thirty days later, Gustafson became subject to the provisions of S.J.C. Rule 4:01, § 17, as amended, 426 Mass. 1301 (1997), governing suspended attorneys. She did not comply with those requirements.

Notwithstanding her administrative suspension, in November, 2010, Gustafson was hired as in-house counsel at a company having its headquarters in Massachusetts. She submitted a registration statement, an affidavit in support of her request for reinstatement, and a check to the board on or about November 11, 2010. The board returned the check, advising her that she owed additional amounts. It indicated that, when the fees were paid, it would present her request for reinstatement to the court. Gustafson did not respond. Eight months later, in July, 2011, bar counsel received a request for investigation alleging that, despite her ongoing suspension, Gustafson continued to be employed as an attorney.

Gustafson did not respond to the complaint, which was forwarded to her by bar counsel. Nor did she respond to a subpoena that the board caused to be served on her. Contacted by telephone, however, she agreed to appear on October 3, 2011. On that day, she admitted to employment as an attorney and was provided with a complete set of registration materials, none of which she returned. On February 9, 2012, bar counsel filed a petition for discipline. Gustafson failed to file a timely answer to the petition or otherwise cooperate in the investigation, and her default was entered.

Bar Counsel had appealed, seeking a more severe sanction.

The case is Matter of Gustafson, decided April 16, 2013. (Mike Frisch)

April 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Earned Flat, Non-Refundable Fee

The Indiana Supreme Court has agreed with a hearing officer and entered judgment in favor of a solo practicioner alleged to have charged an unreasonable fee in a criminal case.

The client was charged with felony drug dealing.

The attorney charged a non-refundable flat fee of $10,000.

The hearing officer found the fee was reasonable and earned. The attorney had devoted about 20 hours to the case before he was fired by the client. (Mike Frisch)

April 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Both Sides Now

The Georgia Supreme Court imposed disbarment of an attorney who defaulted on charges of ethical misconduct.

The attorney lives in the Virgin Islands and failed to show up twice for scheduled depositions. The State Bar viewed proceeding by teleconference to be "cost prohibitive."

The underlying allegations involved the attorney handling of a divorce for a retired military officer who had lived overseas for a decade. The attorney retained local counsel and filed in North Carolina, which had no jurisdiction.

The local counsel learned that the attorney had a conflict of interest, having peviously represented the client's wife on related matters. The attorney did not withdraw despite the apparent conflict and tried to refile the case in South Carolina.  (Mike Frisch)

April 29, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, April 27, 2013

Reprimand With A Refund

The New Jersey Disciplinary Board has reprimanded and ordered a refund of fees paid to an attorney to handle a divorce.

The client paid the attorney a total of $4,000. Several months later, the attorney advised the client that he had suffered a nervous breakdown and could not represent her. He also said that he was "checking into a hospital, that he was expecting to lose his law license" and could not return her retainer because of his own child support obligations.

The client was unable to further contact the attorney and retained new counsel. (Mike Frisch)

April 27, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 26, 2013

From Black Robe To Zebra Stripes?

A judicial ethics quandry has apparently been resolved by a recent opinion of the Florida Judicial Ethics Advisory Committee.

The issue: Can a judge also serve as a college football referee?

Unfortunately, we will have to hold our breath for the answer, as the committee's web page links to an earlier, unrelated opinion on toy donations. (Mike Frisch)

April 26, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Double Secret Probation

The Vermont Supreme Court has entered an order (dated April 1 but presumably no joke) admonishing an unnamed attorney for neglect and failure to communicate with a client over a three-year period.

The attorney was also placed on probation for nine months.

If your attorney was on disciplinary probation, would you be concerned if it was a secret?

The title reference is well-known to anyone over the age of 50 or so. (Mike Frisch)

April 26, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not This Time

The Pennsylvania Supreme Court has denied reinstatement to a petitioner admitted to practice in 1971.

The petitioner was disbarred by consent in 1984 for misappropriation. The court granted his reinstatement petition in December 1991.

But the second time was no charm. He was suspended for five years in 2006 for "lying to an assistant distict attorney while representing a client at a hearing." Here, his attempt to secure reinstatement from that suspension was rejected.

There were several problems.

He has not accepted responsibility for his prior acts of misconduct.

More troubling was his involvement in a family business with the ironic name of License Restoration Services. The Disciplinary Board found his activities involved the practice of law in violation of the suspension order. This was fatal to the petition.

Fool me once, shame on you. Fool me twice, shame on me. (Mike Frisch)

April 26, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

Judge Removed For 1972 Sexual Misconduct

The New York Court of Appeals has accepted the determination of the State Commission on Judicial Conduct and affirmed the removal from office of a former family court judge.

The acts that led to the sanction took place in 1972 when the judge was 25 years old. He "engaged in sexual misconduct involving a five-year-old girl."

The court:

It is troubling that the petition is based solely on conduct that occurred 40 years ago - 13 years before petitioner was elevated to the bench. Nevertheless, the misconduct alleged is grave by any standard. Further, the significant danger of fading memories is tempered somewhat under the circumstances of this particular case, where petitioner admits that conduct of this nature in fact occurred.

The judge had resigned in April 2012. (Mike Frisch)

April 25, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Firm On The Side

The Maryland Court of Appeals rejected an attorney's plea for a reprimand and disbarred him for intentionally dishonest conduct.

The attorney had set up his own law firm while employed by a title insurance company and engaged in self-dealing:

[He] authorized mulitple payments from his employer to his firm without approval from his superiors, in violation of his obligations as an employee, and assigned assrts from more than one of Old Republic's clients to his own firm for no consideration all to promote his interest in [his firm]. These multiple instances of misconduct, all aimed at the same goal of generating additional fees for his side business, constitute a pattern of misconduct.

Bar Counsel had sought disbarment. (Mike Frisch)

April 25, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

D. C. Bar Budget: License To Steal From Members?

The National Law Journal has just published an opinion piece by Gregory Smith on proposed increases in District of Columbia Bar dues:

If you are a member of the District of Columbia Bar, your dues have gone up again—so the organization can buy a building with your money.

Oh, it hasn't happened yet. The D.C. Bar's current lease doesn't even expire until 2021. But it will. The D.C. Bar is socking away more than  $500,000 a year for a building fund. And your dues were just increased so this fund can grow next year from $1.9 million to $2.4 million.

I am a new member of the D.C. Bar board of directors, and I voted against this increase. I am not one who reflexively rejects all dues increases, regardless of needs. I have occasionally voted for dues increases while leading the Bar Association of the District of Columbia and the Atlanta Bar, when it was necessary. But they should be a last resort. And that is particularly true for a mandatory bar, where most members can't leave the organization, and bar dues are basically a tax.

No such need existed here. The D.C. Bar is, in fact, currently flush with cash. Its latest financial statements, eight months into the year, showed a positive variance from operations in dues-funded programs of $1.4 million. Operating cash at the end of February was $8.7 million—$2.6 million above a year ago. The D.C. Bar board just voted to put this year's projected leftover surplus into a separate contingency reserve, even as it simultaneously voted to raise your dues.

This is not an investment in our profession. It's an investment in real estate. As noted, separate contingency funds exist to cover emergencies. This is a pure building-fund line item, with more than half a million bucks a year being socked away annually, with your money. At a time when members are facing financial insecurity, and the D.C. Bar is running a significant surplus, I did not think this could fairly be justified. Even if the D.C. Bar should consider buying a building in 2021, must it do so in cash?

I could not stop this. I noted how we could still put $70,000 (not $570,000) into this building fund, and raise dues by only $5, not $10.  But I am a new member on the D.C. Bar board, and I was outvoted. The opposing arguments were predictable: "Our budget committee approved this, so we should go along." "$10/year isn't that much." "We started this building fund a few years ago, and are merely continuing it." "We published our proposed budget in the Washington Lawyer magazine, and no one voiced objections." "This is still below the D.C. Court of Appeals' approved dues ceilings, and our dues remain below most other jurisdictions."

I don't agree. The D.C. Bar's dues are low in part because they're spread over 100,000 members, and we are not geographically dispersed. When I joined the D.C. Bar in 2001, I recall my dues being $165/year. Now they'll be $265/year. I doubt many other jurisdictions have raised dues so fast. And this extra $100 per year per member translates into an extra $10 million per year. And more importantly, it's simply wrong to tax our members another half a million, at a time when the D.C. Bar is running a significant surplus (even raising our judges' dues in the midst of sequestration), just to pad a building fund.

I couldn't change this myself, but a new D.C. Bar election is coming. Ballots will be distributed April 30, and candidate forums will be held. Consider asking folks where they stand on dues. (I'm not running, but one candidate, Dan Schumack joined me in voting against this dues increase; all other incumbent candidates running this year for re-election voted to raise dues.) And while you're at it, you may want to ask candidates about the D.C. Bar's other recent decision, to change the election rules without even notifying the membership—with that bylaw change announced only after the vote. That's right—you recently lost your right to run for D.C. Bar president by petition. You weren't even notified that you'd been disenfranchised until after the fact. The argument at the time for why a vote shouldn't at least be delayed until notice was given to the membership?  "The D.C. Bar has never notified its members in advance (even on its website) of bylaw changes that are being considered by the board." Huh?

With the nominating committee now controlling the show, perhaps it's not surprising that both of this year's D.C. Bar presidential candidates voted for this dues increase. Maybe they will reconsider their positions now, but the D.C. Bar's centralization will only continue unless D.C. Bar members speak up—either directly or at least through the votes they cast.  So pass the word along. At the present rate, the D.C. Bar may hit its dues ceilings again in just two to three years.

Mr. Smith is entirely correct in his concerns.

 I attended a bar budget meeting that was open to bar members on April 9 to raise many of the same concerns. Unfortunately, I was one of two members that attended. I also advocated for transparency in the budget details, apparently to no avail.

My previous commentary on the bar leadership selection process (mentioned in Mr. Smith's last two paragraphs) is linked here.

A modest proposal: Gregory Smith for President of the District of Columbia Bar. (Mike Frisch)

April 25, 2013 | Permalink | Comments (0) | TrackBack (0)