March 16, 2013
The California State Bar Court has recommended disbarment in a matter where the attorney violated the conditions of a previously-imposed disciplinary probation.
The attorney admitted the violations but sought mitigation of sanction.
The court rejected the attorney's efforts to mitigate the sanction based on his asserted personal and psychological issues, noting that there was no supporting expert testimony.
Rather , the court concluded that "the avoidance of [the attorneys] professional and ethical responsibilities appears to be chronic, if not habitual." (Mike Frisch)
Sanction Imposed On Arbitrator
The Illinois Supreme Court has adopted the recommendation of the Review Board and imposed a two-year suspension of an attorney for misconduct while serving as an arbitrator of workers' compensation claims.
The Review Board described the misconduct:
The Respondent's misconduct was of the most egregious nature. As found in Count II, the Respondent, as the arbitrator in the workers' compensation case of Jo Anderson v. Big Muddy River Correctional Center, sent an e-mail to counsel for both parties, in which she indicated that Department of Corrections personnel were responsible for harassing the claimant, as claimant's counsel asserted, before she had heard any evidence on the matter. By doing so, the Respondent gave the appearance of having prejudged an evidentiary issue, and compromised the appearance of a tribunal being fair and impartial. As we found in Count III, the Respondent engaged in ex parte communications with the attorney for one party in the workers' compensation case of Mitchell v. Illinois State Police, discussed a substantive issue in the case with that attorney, and advised that attorney to take a certain course of action. Also, as proved in Count III, the Respondent intentionally prevented the news media and the public from knowing about and attending the hearing in the Mitchell case. Finally, as we found in Count IV, the Respondent affirmatively induced and knowingly assisted two attorneys to engage in improper ex parte communications while each of them represented a party in workers' compensation matters pending before the Respondent. The ex parte communications included discussions about the merits of pending cases; disparaging comments about opposing counsel; and the Respondent giving advice to the attorney for one party.
The bedrock of our system of justice is the objectivity and neutrality of the official presiding at the proceeding, whether it be a judge or administrative officer. As pointed out above, the Supreme Court has stated that "if the administration of justice means anything, it means a fair and impartial tribunal;" anything that "compromises the fairness and impartiality of the tribunal . . . prejudices the administration of justice;" and "the administration of justice requires a tribunal that is impartial in appearance, as well as in fact." In re Weinstein, 131 Ill. 2d 261, 269, 545 N.E.2d 725 (1989); In re Lane, 127 Ill. 2d 90, 106, 535 N.E.2d 866 (1989). The Respondent's misconduct compromised her fairness and impartiality as an arbitrator, impugned the integrity of the workers' compensation proceedings before her, and served to destroy public confidence in the Workers' Compensation Commission.
Additionally, the Respondent's attempt to conduct a hearing at a time and location so as to prevent the news media from attending is very disturbing and clearly unacceptable. The right of the news media and of the public to have access to workers' compensation proceedings should not be infringed upon in any manner. By attempting to prevent the news media from attending a hearing, the Respondent acted contrary to the interest of justice.
In aggravation, the Respondent's misconduct was not limited to an isolated incident, but rather consisted of a pattern of misconduct involving three different attorneys who practiced before her on a regular basis. The Respondent acknowledged she made mistakes, acted in an inappropriate manner, and said she was sorry. However, after observing the Respondent and listening to testimony, we find that she had no remorse for the adverse effect her misconduct had on the legal profession and proceedings before the Workers' Compensation Commission. We find that the regret she expressed was primarily for herself, that is, for the loss of her career and her resulting financial hardship. Additionally, we do not believe she fully understands the seriousness of her misconduct.
The Administrator had sought a three-year suspension but did not seek review of the board's recommendation. (MIke Frisch)
March 15, 2013
Accidents Happen (And When They Don't, Don't Make One Up)
The Pennsylvania Supreme Court has imposed a five year suspension of an attorney based on conduct that led to a conviction for aiding and abetting mail fraud.
The attorney, along with a client and others, participated in the submission of a fraudulent claim relating to a fictitious accident.
The Disciplinary Board had recommended disbarment. The court imposed the suspension nunc pro tunc to its earlier order of temporary suspension.
Madame Justice Orie Melvin (who has her own legal troubles) did not participate. (Mike Frisch)
March 14, 2013
The Florida Supreme Court accepted the findings and recommendations of the Judicial Qualifications Commission and imposed a public reprimand of a circuit court judge, to be administered in person at a time set by the Clerk of the court.
The judge also must send letters of apology and continue mental health treatment.
There were a number of incidents at issue, including "screaming loudly" at an assistant state attorney who the judge thought had disrespected him.
The judge remarked to opposing counsel during a female assistant state attorney's argument at sidebar as follows: "Do you know what I do when my wife and I disagree? I just let her talk." He indicated that "once she is finished, you can do what you want anyway."
In another matter, he sentenced a defendant without his attorney present.
There was mitigating evidence of family stress and that the judge had sought treatment and counseling for his temper. The court gave considerable weight to these efforts. (Mike Frisch)
New Trade Name Ethics Rule In New Jersey
The New Jersey Supreme Court has issued an opinion that amends RPC 7.5 to allow the use of a law firm trade name "so long as [the name] describes the nature of the legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results."
The court considered the trade name Alpha Center for Divorce Mediation, P.C. and concluded that all of the name was permissible save for the "Alpha." The rest of the name, along with the name of a managing New Jersey attorney, passes muster.
Alpha is impermissibly comparative, like (as the court had suggested) "Best Tax Lawyers" and "Tax Fixers" would be.
The court also directed that a committee be established to implement its new Rule.
The case had been remanded in 2009 and reargued twice after the remand.
Question: What if your last name is Best? What if I change my name to Mike Superlawyer? (Mike Frisch)
An attorney found culpable on several bar charges was suspended for two years by the New York Appellate Division for the Second Judicial Department.
The court noted
At the hearing, the respondent testified in mitigation that he was "used" or "led down the wrong path" by his employer, which he characterizes as an unscrupulous real estate development company that forged his name on checks. The Special Referee found the respondent's testimony in this regard to be credible, specifically finding the respondent to be a "cog" who followed, but did not initiate or control, the practices in the company. The respondent testified to his remorse, his efforts to make his victims whole, and the fact that he did not misappropriate any funds for his personal use and realized no monetary gain from the subject transactions.
However, the respondent, who was employed by United Homes as a "closer" when the misconduct occurred, knew that his conduct was improper and violated basic rules governing escrowed funds. He nevertheless took no action to blow the whistle or step down from his position as in-house counsel with the company. Rather, he knowingly allowed his services to be used by another to perpetrate a fraud. Furthermore, the respondent was not candid with the Grievance Committee when questioned initially about the transactions.
Under the totality of circumstances, and balancing the significant mitigation present in this case against the respondent's misconduct, the respondent is suspended from the practice of law for two years.
Lesser Reciprocal Discipline
An attorney who pled no contest to misdemeanor sexual assault charges was suspended for 30 days in Virginia. The sanction was an agreed disposition.
The New York Appellate Division for the Second Judicial Department imposed a public censure as reciprocal discipline.
The court considered the reasons for the plea and the attorney's clean disciplinary history in reaching its decision:
In a sworn statement dated September 17, 2012, the respondent advised that he waived his right to a hearing in this matter. However, he stated that his "no contest" plea was not an admission of guilt but, rather, a choice not to introduce any evidence at that time. He requests that this Court's disposition be made in consideration of the foregoing, as well as his previously unblemished record in New York.
Two Censures For The Price Of One
The New Jersey Supreme Court has imposed a censure of attorney who has a prior record of discipline.
According to the report of the Disciplinary Review Board, the attorney had been sanctioned for similar misconduct in the same time period. The issue was whether to treat this separate misconduct as, in effect, a freebie.
The attorney defaulted on the bar charges and moved to vacate the default.
The DRB found that default was appropriate because the attorney's reason -- his fear of unfair treatment due to allegations of bias - was no basis to not participate. Further, he did not proffer a meritorious defense.
Here, the client retained the attorney to pursue a consumer fraud action. The attorney failed to perform services diligently, failed to communicate with the client and, when contacted, made misrepresentations to the client. He also failed to cooperate in the bar investigation.
The client was persistent. The DRB reports that she made approximately 25 visits to the attorney's office and found him there only once.
The attorney was admonished in 2010 for unauthorized practice and censured in 2011 by default for misconduct similar to that found here. (Mike Frisch)
March 13, 2013
Trust But Verify
From the web page of the District of Columbia Bar:
The District of Columbia Court of Appeals has adopted new Rule XIV of the Rules Governing the Bar, establishing the D.C. Bar Foundation’s authority to develop a plan for lawyers and law firms to verify to the Bar Foundation their participation in the D.C. Court of Appeals’ Interest on Lawyers’ Trust Accounts (IOLTA) program.
The adoption of the rule came after the court published the proposed new rule for a period of public comment from December 12, 2012, to January 31, 2013. Under new Rule XIV, the Bar Foundation, which administers the D.C. IOLTA program, may periodically request that lawyers and law firms verify their participation in the D.C. IOLTA program. With the change, former Rules XVI and XV will be renumbered as Rules XV and XVI.
If the Bar Foundation decides to undertake verification, it must develop a plan that addresses, among other things, the kind of information to be collected and how it will be used, the security of the information, and the scope of disclosure to other parties of the information collected. The plan and any subsequent changes to it are subject to the review and approval by the District of Columbia Bar Board of Governors and the D.C. Court of Appeals.
In addition, the Bar Foundation must submit an annual report to the D.C. Court of Appeals and the D.C. Bar Board of Governors about the Bar Foundation’s verification activities, including its implementation efforts, the number of requests made and responses received, the number of lawyers and firms participating, and the total funds obtained.
Not CyberStudy But CyberFraud
The Minnesota Supreme Court has disbarred an attorney as a result of federal convictions that included mail and wire fraud.
The scheme involved a corporation that the attorney and his mother formed to market an educational software program to low-income customers primarily in African-American, Hmong and Somali communities. The corporation was called CyberStudy.
The attorney made false representations to software customers and "engaged in a scheme in which CyberStudy filed tax returns to obtain Minnesota Education Tax Credit on behalf of the those customers" while "aware that the CyberStudy product did not meet all the requirements to qualify for the tax credit."
He forged signatures on powers-of-attorney to file tax returns.
The scheme netted CyberStudy approximately $2.35 million in tax credits.
He also made false representations to Kmart, which delivered 2,284 computers to CyberStudy but never was paid.
CBS Minnesota reported that he was sentenced to eleven years in prison:
The charges said Morris and [his mother] Louper-Morris filed at least 1,800 false tax returns for tax years 2000 and 2001, and because of that they were wired tax credits totaling more than $2.1 million.
The [U.S.] attorney’s office also said Morris understated his own income on his 2001 federal income tax return by failing to report more than $400,000 from CyberStudy. With the money, he and his mother made a $300,000 payment on a home and bought a $74,000 Mercedes SUV, $7,500 mink coat and a chinchilla-trimmed hat.
Arrest And Suspension
The Rhode Island Supreme Court has suspended an attorney on an interim basis by consent.
RI.gov reported on related charges and the attorney's arrest:
...on Wednesday, March 6, 2013, members of the Financial Crimes Unit arrested attorney Janet A. Mastronardi, age 52, of Warwick, Rhode Island for Embezzlement and Unlawful Appropriation. The investigation, conducted by the Financial Crimes Unit, was the result of a complaint filed by a David Curtain, Chief Disciplinary Counsel for the Rhode Island Supreme Court. Janet A. Mastronardi was taken into custody at her law office in Warwick.
In February 2012, the Financial Crimes Unit was notified that Janet Mastronardi had allegedly embezzled over $100,000 from an elderly client. Janet Mastronardi had been appointed guardian of the client in September 2005, as a result of the client's deteriorating health and mental condition. In January 2010, Janet Mastronardi closed two of her client's investment accounts and deposited the proceeds of $224,058.57 into two newly opened bank accounts. This money was never listed on her client's probate account. A review of Janet Mastronardi's bank accounts revealed that she stole $144,989.21 of her client's money by writing a series of 25 checks payable to herself over the next eleven months.
Janet A. Mastronardi was arrested at her law office, processed at the Lincoln Woods Barracks and arraigned at Third Division District Court on the above charges. She was released on $10,000 personal recognizance. If convicted, Janet Mastronardi faces up to a maximum of twenty years in prison and a $50,000 fine for the embezzlement charge and up to a maximum of twenty years and a $434,967.63 fine for the unlawful appropriation charge.
The court appointed disciplinary counsel to inventory the attorney's files. (Mike Frisch)
But Thanks For Asking
A Maine attorney who was suspended for two months in October 2012 petitioned the court for reinstatement.
In Maine, an attorney suspended for six months or less is automatically reinstated. Nonetheless, the attorney wanted "a higher degree of comfort if the Court issues an order reinstating him."
Comfort or not, the court dismissed the petition as moot. (Mike Frisch)
Not Without Sympathy
The Utah Supreme Court has disbarred an attorney who violated a 2010 suspension by taking on new cases during the period of suspension.
The attorney admitted that he had appeared in court while suspended "because he was facing the loss of his house and practice."
The court rejected the attorney's various procedural contentions and alleged mitigating factors in affirming the district court's order of disbarment, but concluded
We are not without some sympathy for the plight of [the attorney]. It could be argued that the initial suspension was too stiff a penalty for the conduct that prompted it. But that question is not before us, and whatever the propriety of the sanction, the appropriate response was not to defy it, much less cover-up the defiance with subsequent misrepresentations and misleading justifications.
As is often the case, here the aftermath and cover-up were worse than the intial offense. A suspension order is a serious sanction to be taken seriously. Here it was roundly ignored, and flouted further by a subsequent cover-up. We do not condone such behavior from litigants, and we certainly cannot countenance it from officers of the court. The disbarment stands.
The original discipline involved "submitting multiple recusal motions when only one such motion is allowed by rule and failing to appear at trial. " (Mike Frisch)
March 12, 2013
As Near As Possible
The Utah Supreme Court has considered whether an attorney-client relationship betwen the United Effort Plan Trust ("UEP") and a law firm continued after the trust was reformed cy pres.
The trust was created in 1942 and reformed in 2005. The district court used the doctrine of cy pres to reform the trust to fulfill its purpose to "provide for the wants and needs of FLDS Church members."
The court held that the UEP and the reformed trust are not the same client. As there was no attorney-client relationship between the law firm and the reformed trust, the district court erred in disqualifying the law firm in the litigation and ordering the firm to disgorge privileged information to the reformed trust.
Chief Justice Durrant concurred and dissented in part.
The Chief Justice would hold that the district court did not abuse its discretion in ordering the law firm to turn over privileged information and disqualifying the law firm:
The reformed trust is the same trust [the law firm] previously represented. As a result, the district court did not abuse its discretion when it disqualified [them] and ordered disclosure of privileged communications. But even under the court's legal fiction that the two trust are distinct for the narrow purpose of deciding matters of attorney-client relations, I believe that the special fiduciary remains the best person to assert privileges on behalf of a hypothetically nonexistent trust and that this case is too full of potential nascent conflicts to hold that the district court's order was an abuse of discertion.
Attorney Can't Represent Buyer And Seller
The New Jersey Supreme Court agreed with the recommendation of the Disciplinary Review Board ("DRB") and imposed a reprimand of a Borough solicitor for a conflict of interest.
The DRB found
Respondent's violation of Rule 1.7 is clear. As Borough solicitor, respondent initiated in rem foreclosures on a group of properties and began the process of placing for sale tax lien certificates for the fourteen properties. He then arranged a deal whereby WIS and FDML, entities that he formed as attorney for his brother and...a long-time client and local developer, would purchase the tax lien certificates on the property.
Although the entire transaction took place in the light of day and was approved by Borough resolution, respondent acted on behalf of both buyer and seller to the transaction, an impermissible situation...
The DRB rejected the "no harm, no foul" claim
The unwaivable conflict here cannot be absolved by a good result, even assuming that the result is a good one.
Solicitation Draws Censure
The Rhode Island Supreme Court has imposed a public censure of an attorney who violated rules governing direct contact with a prospective client.
The prospective client's husband had died in West Virginia hotel from exposure to carbon monoxide gas. A West Virginia attorney who had worked with the respondent on prior cases contacted him and asked him to "look into it."
The respondent sent an investigator to the prospective client's home. She was not there (as she was out making funeral arrangements) and the investigator left the respondent's card with her friend. She did not contact the respondent.
The investigator returned a week later and met with the prospective client. She advised that she had already retained counsel.
The prospective client then complained to the Bar. The respondent admitted the facts and expressed remorse.
The court found the conduct "inexcusable" but noted that the respondent had an unblemished disciplinary record in 38 years of practice. (Mike Frisch)
Incompetence Not An Extraordinary Circumstance
The New Jersey Supreme Court has held that an attorney's inattention or incompetence does not amount to an "extraordinary circumstance" that excuses an untimely notice of a tort claim.
The underlying claim involved alegatioms that the defendants Rutgers University and the University of Medicine and Dentistry of New Jersey had disclosed the plaintiff's confidential health information.
The court noted that the plaintiff's remedy is a suit for malpractuce against the attorney.
A dissent "expresses the view that the majority's holding is overly restrictive, undervalues the totality of the circumstances analysis, and misapplies the abuse of discretion standard of review." (Mike Frisch)
March 11, 2013
False Blog Post Draws Proposed Sanction
The Illinois Review Board has recommended a 30 day suspension of an attorney for false or misleading statements concerning her disciplinary record on a blog, in connection with her candidacy for judicial office
Respondent's act in drafting and sending the e-mail for publication was an intentional and deliberate act. Respondent's e-mail was undisputedly intended to blunt the criticism of her conduct in the CCL [Chicago Council of Lawyers] evaluation. Respondent's actions may have been "in haste" but were not inadvertent: she had three days to craft her 700 plus word response to the blog post and the CCL evaluation. At the time she drafted her response, she should have known and could easily have known that she had not been exonerated by the ARDC, contrary to the impression she created in the response. While she may have been "upset" and "sleep deprived" as she has claimed, she clearly had the presence of mind to research the Code of Judicial Conduct and to describe in some detail the very cases that were the subject of the ARDC Inquiry Board proceedings, yet she did not take the obvious and simple step of looking at her own letters from the ARDC which were clear and unambiguous. Like attorney Thomas she "chose not to take the simple step of verifying her status".
The effect of the e-mail was deceitful and, under the Court's analysis in Thomas, Respondent violated Rule 8.4(a)(4). Her beliefs, even if sincere, that she had a full hearing before the Inquiry Board, that she had been exonerated, that the public could learn the outcome of the ARDC's investigation, and that she did not believe her statements were deceptive to readers of the blog, were "entirely unreasonable". See, Thomas, 2012 IL 113035 at 123. Those "beliefs", like those of Thomas, simply ignored unpleasant facts that were clear as day and readily available. Both Respondents chose to recklessly shut their eyes and engage in the sort of wishful thinking that would allow them to accomplish ends which would not be possible if they had verified easily verifiable facts. In so doing they violated Rule 8.4(a)(4).
The attorney also engaged in misconduct in a closing argument in a criminal case she prosecuted.
A dissent favors a reprimand. (Mike Frisch)
Suffolk Law Presents Susskind on "Tomorrow's Lawyers"
Legal futurist Richard Susskind, author of The End of Lawyers? and Tomorrow's Lawyers will headline the launch of Suffolk University Law School's Institute on Law Practice Technology and Innovation on April 18 in Boston, MA.
According to the school's announcement, "Professor Susskind will discuss some of the key concepts from his new book, offering a close look at where the profession is heading and what we'll find there -- a challenging new world for some, and a vibrant future for others."
The program will include a panel discussion on the implications of Susskind's remarks, moderated by Andrew Perlman, Suffolk Law Professor and Chief Reporter for the ABA Commission on Ethics 20/20. The panelists are Jordan Furlong, Partner at Edge International and Senior Consultant with Stem Legal, Krish Gupta JD '96, Senior VP & Deputy General Counsel at EMC Corp., and Regina Pisa, Chairman of Goodwin Procter LLP.
A reception will follow. The cost is $75 ($35 for academics and Suffolk alums). Registration is available online.
Change Of Heart
The Illinois Administrator has filed a complaint alleging misconduct by an attorney who married a Ukranian citizen in Rome.
When his wife became pregnant, his mother-in-law (also a Ukranian citizen) came to visit. She participated in a marriage ceremony with an American citizen.
The attorney then filed an affidavit with the Department of Homeland Security in support of the mother-in-law's change in immigration status.
Then, the attorney's marriage went bad.
The complaint alleges:
On July 7, 2004, Respondent caused a letter to be sent to the United States Department of Homeland Security, Investigations Section, in Chicago, requesting to withdraw his underlying affidavit of support for [mother-in-law] Antonina Beaudion, referenced...above.
On July 14, 2004, Respondent caused a second letter to be sent to a supervisor at the United States Department of Homeland Security, Investigations Section, in Chicago, relating to his request to withdraw his affidavit. Attached to the letter was a second affidavit executed by Respondent under oath, which stated, in pertinent part: "I thought, of course, that they would move in together as husband and wife. This never happened…my mother-in-law never moved in with her husband."
At some point prior to May 22, 2006, the Department of Homeland Security initiated removal proceedings of Antonina in her immigration matter, on the basis that her marriage to Joseph Beaudion was fraudulent in part because Antonina had never left Respondent's residence to reside with Beaudion.
On April 24, 2006, Respondent caused a complaint and jury demand to be filed against Antonina, requesting damages in excess of $1,000,000 for alienation of [wife] Tanya's affections to Respondent. The complaint alleged that, in part because she was angry that Respondent would not buy her a house, Antonina decided to cause the collapse of Respondent's marriage to Tanya, and had persuaded Tanya to have extra-marital affairs. The complaint contained many personal and embarrassing allegations against Antonina and Tanya, and attached personal emails and photographs of Tanya and her professional dancing partners. The matter was given Circuit Court of Cook County docket number 2006-L-4267.
On April 24, 2006, Respondent caused a complaint and jury demand to be filed against two defendants with whom Respondent alleged Tanya had engaged in extramarital affairs. The complaint requested damages in excess of $1,300,000. The complaint contained many personal and embarrassing allegations against Tanya, and attached personal emails and photographs of Tanya and the two defendants who were Tanya's professional dancing partners. The matter was given Circuit Court of Cook County docket number 2006-L-4268.
The bar's investigation began when a letter from the Seventh Circuit "expressed concern about reconciling Respondent's affidavit in support of Antonia's petition to change her immigration status and [his] subsequent statements and testimony..." (Mike Frisch)