Friday, June 21, 2013

Almost Heaven

An attorney who resided in Maryland but misled her law school about her place of residence in order to pay in-state tuition has been suspended indefinitely with the right to reapply after 30 days by the Maryland Court of Appeals.

The attorney saved over $11,000 in tuition payments as a result.

The court further found that the attorney had failed to disclose the conduct in her Maryland bar application.

The attorney gave West Virginia College of Law an in-state post office box address while attending the school. In fact, she lived 18 miles from West Virginia in Oakland, Maryland.

The conduct took place in 1994 and only came to light when her ex-husband blew the whistle on her.

The court found the passage of time and her sterling record as an ethical attorney to be highy significant mitigating factors. She was remorseful and had offered to repay the difference to the law school, an offer the Dean declined.

The ex-husband was indefinitely suspended  in 2006 for, among other things, forging her name to a legal document. (Mike Frisch)

June 21, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Suspended For Ex Parte Communications With Judge In Death Penalty Case

A prosecutor who engaged in extensive ex parte contacts with the judge presiding over a death penalty trial has been suspended or two years by the Florida Supreme Court.

The prosecutor's office agreed to a new trial of the criminal case as a result.

The prosecutor and the (now former) judge had more than 900 cell phone conversations and 400 text messages over a five-month period. While the communications were of a personal nature, they took place while the judge was deciding motions and sentence and were not disclosed to defense counsel.

The court rejected as insufficient the one-year suspension proposed by a referee.

The Sun-Sentinel opines that this decision does "not bode well" for the judge, who also is subject to a proposed suspension of one year.

Additional information about the charges against the prosecutor and the judge from the Sun-Sentinel is linked here. (Mike Frisch)

June 21, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Immigration Malpractice Claim Reinstated

A women from Ecuador who entered the United States illegally after an earlier removal has a viable claim for malpractice against the attorneys retained to assist her, according to a recent opinion of the New York Appellate Division for the First Judicial Department.

The court reversed the lower court's dismissal:

We disagree with the motion court's conclusion that due to intervening events, defendant law firm and Bretz's malpractice was not a "but for" cause of plaintiff's removal from the United States. Plaintiff was unambiguously ineligible for relief under prevailing case law when defendants submitted her application to immigration authorities. Once her application was submitted and denied and the removal order reinstated, any efforts by Kahn, whom plaintiff had retained to represent her after terminating defendants' services, were too late to remedy the situation. By that point, the only intervening event sufficient to break the causal chain would have been a change in the relevant immigration law. The passage of four years between plaintiff's consultation with defendants and her removal did not disrupt the chain of causation.

When defendants submitted plaintiff's application, the government had already publicly announced that it would not grant relief to those in her position in light of the BIA's decision in Matter of Torres-Garcia (see e.g. CIS Interoffice Memo dated Mar. 31, 2006, p. 2, attached to the complaint and available at, stating that in light of Torres-Garcia, "in any case where an alien is inadmissible under section 212(a)(9)(C)(i) of the INA and 10 years have not elapsed since the date of the alien's last departure from the United States, USCIS should deny any Form I-212 requesting consent to reapply for admission"). However, instead of advising plaintiff concerning the clear implications of the BIA's ruling in Torres-Garcia — to which the Ninth Circuit owed deference under Chevron USA — defendants assured plaintiff "she would not be deported much less detained" if she applied.

Given plaintiff's allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal. Plaintiff's unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants' malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff's position can apply for admission if more than ten years have passed from the date of the alien's last departure from the United States.(citations omitted)

The client's malpractice claim against her appellate counsel was dismissed.

The client had married a U.S. citizen who also is an attorney. The court here affirmed the lower court's conclusion that the husband-attorney was disqualified under the witness-advocate rule. (Mike Frisch)

June 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Detrimental Reliance

An attorney who relied on his paralegal to handle a client's divorce was suspended for nine months by the Colorado Presiding Disciplinary Judge.

The last six-months was suspended in favor of probation for two years.

The case was dismissed and the paralegal provided a forged divorce decree to the client.

The client then took another spouse, in the mistaken belief that the prior marriage was over. (Mike Frisch)

June 21, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Conviction Reversed, Attorney Reinstated

The New York Appellate Division for the Second Judicial Department has reinstated an attorney in light of the reversal of his tax fraud conviction by the United States Court of Appeals for the Second Circuit.

Crain's New York Business has this report

Five years ago, a Brooklyn accountant named Martin Nissenbaum (pictured) was indicted and charged with trying to defraud the U.S. government by helping clients set up bogus tax shelters. But this was no ordinary accountant and no ordinary criminal case: Mr. Nissenbaum was the national director of the personal income-tax and retirement planning practice at Big Four accounting firm Ernst & Young...

The tax-shelter cases were inherently complex, but they boiled down to an easily understood image of highly paid accountants and lawyers offering the nation's wealthiest people their hush-hush advice on how to cheat Uncle Sam.

"Prosecutors really wanted to get somebody," recalled Nathan Lewin, a prominent defense lawyer in Washington, D.C., "and judges and juries were ready to accept what the government asserted."

Mr. Nissenbaum was the star defendant of these cases—or as much of a star as an accountant can be. His celebrity rested on being frequently quoted in The Wall Street Journal and helping to write such books as Ernst & Young's Personal Financial Planning Guide.

He fought the charges, but the government had email evidence that seemed to lay bare his role in designing the tax-avoidance schemes. In the eyes of jurors, it probably didn't help that his team, known within the firm as Value Ideas Produce Extraordinary Results, called itself the VIPER group. Ernst & Young wasn't charged, although in 2003 it had agreed to pay the Internal Revenue Service a $15 million penalty related to its shelters.

After a 10-week trial in 2009, a jury convicted Mr. Nissenbaum. He was sentenced to 30 months in prison, fined $100,000 and ordered to perform 120 hours a year of community service after his incarceration.

Last week, Mr. Nissenbaum received stunning news. By a 2-to-1 vote, the U.S. Court of Appeals threw out his conviction. The panel wrote that the crux of the government's case against Mr. Nissenbaum—a single email—"is simply not enough" to warrant conviction.

"The question is how do you get your reputation back, and he had a phenomenal one," said Mr. Lewin, who represented the 56-year-old Mr. Nissenbaum before the appellate court.

(Mike Frisch)

June 21, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, June 20, 2013

More Than 91 Days

An attorney who had engaged in dishonest conduct (along with a host of other ethics violations) in five separate matters was disbarred by the Florida Supreme Court.

The misconduct included taking advantage of his own mother in serving as personal representative of his late father's estate, concealing assets in his own divorce and working in concert with his girlfriend to take advantage of an elderly and vulnerable client.

The referee found a plethora of violations but recommended a suspension of only 91 days.

The court viewed the conduct as meriting disbarment. (Mike Frisch)

June 20, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Foreign Conviction Not A Conviction For D.C. Disciplinary Purposes

The District of Columbia Court of Appeals declined to treat a South Korean conviction as conclusive proof of the underlying offense, and held that "a conviction of a crime in a foreign country, unlike a conviction in this country, is not automatically given conclusive effect for purposes of suspension or disbarment" pursuant to statute and bar rules.

As a result, a D. C. attorney convicted in any foreign court will not be subject to immediate interim suspension or to a moral turpitude inquiry based on the conviction.

The attorney here had been convicted in Incheon District Court of theft from another passenger on a flight from the U.S. to South Korea.

The court further held that Bar Counsel can initiate an original proceeding based upon the criminal behavior and that

the factual and legal determinations embodied in a foreign conviction may be given conclusive effect...pursuant to principles of collateral estoppel if the Board [on Professional Responsibility], in its discretion, determines that Bar Counsel has established that it is fair and reasonable to do so.

The court indicated that, if Bar Counsel brings an original proceeding predicated on this conviction, "[t]he Board and its Hearing Committee, insofar as they act as finders of fact and draw conclusions of law, will be exercise broad discretion in determining whether to attach collateral estoppel effect to [the] foreign judgment entered against the respondent ."

Our prior coverage is linked here. (Mike Frisch)

June 20, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 19, 2013

One-Third Of Awarded Fees Covered By Contingent Fee Agreement

The Utah Supreme Court has ruled in favor of an attorney in a fee dispute with a client.

The attorney represented the client pursuant to a 1/3 contingency fee argeement for "all monies paid" in the case.

The representation spanned 13 years and resulted in a judgment in excess of $6 million. The client had retained another law firm to recover the attorneys fees.

The issue was whether the agreement allowed payment of the stated percentage of the award of attorneys fees as well as the judgment.

The court held that the ageement was "unambiguous" and complaint with the Rules of Professional Conduct. Thus, the attorney was entitled to his 1/3 cut of the attorneys fees. (Mike Frisch)

June 19, 2013 in Law & Business | Permalink | Comments (0) | TrackBack (0)

Self-Medicating Judge Reinstated With Censure

The Oklahoma Supreme Court has lifted a disability suspension and imposed a public censure of an attorney who entered a guilty plea to two drug-related misdemeanors and felony possession of methamphetamine.

He was suspended in June 2012 after his arrest.

The court recites that

The Respondent testified that he attended law school at the University of Michigan and went to work for the Crowe & Dunlevy law firm in Tulsa after graduation. Later he moved to Idabel, Oklahoma, and began working for LeForce & McCombs. In 2008, he and Kevin Sain set up their own law office in Idabel. They practiced together until 2010. The Respondent testified that his problems began in February 2010 when his brother-in-law committed suicide on the back patio of the family home, using the shotgun Respondent had bought his son for a birthday present. The Respondent and his wife suffered a tremendous amount of guilt and their marriage suffered. The Respondent testified that he became depressed and disillusioned. He had been prescribed hydrocodone for back pain resulting from a football injury in high school. He took it periodically for pain without any trouble. After the suicide of his brother-in-law, he began taking it more and more frequently and he became addicted to it. He then began using methamphetamine to counteract the effects of the hydrocodone.

Following his arrest, the attorney went into a detox program after an intervention by fellow attorneys. He was asked to leave for using valium and methamphetamine.

The court concluded that he has been drug-free and compliant in recovery for more than four months.

In mitigation:

 The Respondent admits that his actions brought discredit upon the Oklahoma Bar Association and he expressed shame and remorse for his actions. The Respondent was the city judge for Idabel, Oklahoma. Headlines in the local newspapers referred to "City Judge Charged with Drug Allegations" and "City Judge Resigns at Removal Hearing." His "mug shot" appeared on the front page of local newspapers. He agrees with the discipline recommended by the trial panel.

A dissent notes that the attorney remains on felony probation and would defer consideration of reinstatement until he completes the five-year term of probation. (Mike Frisch)

June 19, 2013 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Loan Modification Not Unauthorized Practice

The South Carolina Supreme Court has held that modifying a loan without the participation of an attorney does not constitute the unauthorized practice of law.

The case involved petitioners who had obtained loan modifications and failed to make timely payments under the new terms.

They tried to prevent foreclosure by contending that the lenders had engaged in unauthorized practice by modifying the loans without using an attorney.

The court disagreed. (Mike Frisch)

June 19, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

The Bicycle Thief

A New York town court justice has resigned in the face of allegations that he

publicly and physically confronted a fifteen-year-old boy who was riding his bicycle in [his] neighborhood, yelled profanities, took possession of and damaged the bicycle, and recommended to a local landlord that he evict a neighborhood family because of their relationship with the boy.

A stipulation reflects that the justice called the boy a number of names such as "damn thief," a "troublemaker", and two obscene names.

He then pushed the boy off the bike, put it in his car and heaved it into a front yard causing damage. 

He continued to use obscene language and "sat on the stone wall in his front yard with a baseball bat, repeatedly banged the bat into the ground, told used more obscene language. (Mike Frisch)

June 19, 2013 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Letter To An Inmate

An attorney who was convicted of trafficking with a jail inmate was suspended for at least six months without automatic reinstatement by the Indiana Supreme Court.

The attorney delivered a letter from the client's girlfriend in which she offered to testify falsely about an alibi, along with other letters from the client's relatives and other items.

The court noted that the attorney gave two differing explanations, accepting responsibility in one statement and saying that the letters were mailed by the client's mother:

Since his admission to the allegation at his criminal trial was later in time and against his interests, we surmise that his earlier denial to the Commission was likely the untruthful statement.

He also failed to address the untruthful statement or express remorse. (Mike Frisch) 

June 19, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 18, 2013

At Baristas Cafe

The West Virginia Supreme Court of Appeals has annulled the license of an attorney who pleaded no contest to criminal charges of false swearing and "malicious application to declare a person mentally ill or inebriate."

The problems started in Baristas Cafe in New Martinsville.

The attorney used profanity and yelled "I showed those motherf**kers down at the courthouse this morning." He then pointed to an owner (Mr. Shade) and said "[a]nd you're next on my list." The attorney was told by Mr. Shade that he would not tolerate such behavior and the attorney departed.

A second incident took place later the same day. He called Mr. Shade "pure evil" and was told not to come back to the cafe. The attorney responded with a threat.

A day later, the attorney filed a notarized petition for a mental heath examination of Shade, alleging that he was suicidal, on drugs and has assaulted the attorney twice without provocation.

Shade was picked up by the police while walking with his son and taken to a mental health facility. He testified that he was stripped and had three security guards posted outside his room. 

Slade was drug tested (negative) and the petition was dismissed for lack of probable cause.

The attorney's appeal of the criminal conviction was denied.

The attorney may seek reinstatement but must demonstrate through an independent medical evaluation that he is fit to practice law.

Details here from The Intelligencer:

Rogers, 73, ran unsuccessfully for election multiple times over the decades, including for the Supreme Court last year. A 1966 Harvard law school graduate, Rogers on Monday quoted the verse from Omar Khayy'm about accepting reality that legendary defense lawyer Clarence Darrow famously invoked during the 1924 Loeb-Leopold trial.

"You won't have H. John to kick around anymore," Rogers also said, paraphrasing President Richard Nixon.

 (Mike Frisch)

June 18, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Without Sympathy But Without Recourse

While it was "not without sympathy" for an injured woman who had looked to the legal profession for protection of her rights, the North Carolina Court of Appeals nonetheless dismissed her legal malpractice case on statute of limitations grounds.

The woman had been in a rear end collision that was entirely the fault of the other driver. She retained Virginia counsel, who instituted suit in a Virginia court.

A North Carolina attorney convinced her to retain him and assured her that she could obtain relief in federal court. The Virginia suit was dismissed. Unfortunately, so was the federal case on grounds of improper venue.

The woman then hired the defendant law firm to sue the North Carolina attorney for malpractice. They messed up the malpractice case and summary judgment was granted to the North Carolina attorney.

The woman did not sue the law firm but rather permitted them to continue the representation.

Here, the court found that the woman waited too long to sue the law firm for malpractice.

Wonder what her opinion is of the legal profession. (Mike Frisch)

June 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 17, 2013

That's What Makes A Horse Race

A Louisiana hearing committee has recommended the permanent disbarment of an attorney convicted of a single felony count of mail, wire, identity document and healthcare fraud.

The attorney was the incumbent President of the Louisiana Horseman's Benevolent Association 1993, Inc.

 He entered into a conspiracy to rig the outcome of his re-election by causing the mailing of fraudulent ballots "after traveling to remote locations so the ballots would bear the postmark from the supposed voters' locations." He used the association's administrative account to pay some of the costs.

The attorney also used association funds for personal expenses and billed a portion of these costs to a fund "to be used exclusively to pay medical benefits to jockeys and other industry personnel who were beneficiaries of the trust."

The United States Attorney for the Eastern District of Louisiana has this release on the case. (Mike Frisch)

June 17, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ponytail Pull No Ethics Violation

The Delaware Supreme Court has ordered that a bar discipline matter be closed, concluding that the attorney's conviction for Offensive Touching "bears no relationship to Respondent's fitness to practice law."

The conviction involved a

domestic incident in public during which [the attorney] grabbed his minor daughter by her ponytail, held her head at an angle, and refused to let go. Respondent took that action to prevent his troubled, minor daughter from again attempting to run away from home, in the context of an intensely stressful family situation.

The Office of Disciplinary Counsel ("ODC") objected to the Board on Professional Responsibility's report finding no violation. ODC contended that every criminal conviction violates Rule 8.4(b).

The court here sharply rejected that contention: "This case, by its nature and in these specific circumstances, should not have warranted intervention by the ODC."

The court used the name "Eric Michaels" rather than the attorney's true name.(Mike Frisch)

June 17, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarment Is Not Enough

The Louisiana Attorney Disciplinary Board has concluded that a hearing committee's proposed sanction of disbarment should be  raised to permanent disbarment:

In accepting fees from her clients and failing to provide services, Respondent has intentionally converted funds from numerous sources causing injury to multiple clients. By abandoning her law practice, she has caused serious injury to her clients. She has knowingly failed to perform services for her clients and has engaged in a clear pattern of neglect with respect to client matters. Respondent continued to operate as an attorney although she was placed on interim suspension from the practice of law...

The board also recommended restitution. (Mike Frisch) 

June 17, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Eighteen Months Is Not Enough

The Georgia Supreme Court has rejected a second petition for voluntary discipline in a matter involving three disciplinary cases.

After rejecting a proposed suspension of six months, the court here turned thumbs down to eighteen months.

Although there were a number of mitigating factors, the court found that the attorney's "past disciplinary history remains a significant aggravating factor."

The prior history included a 1982 admonition, a 1985 public reprimand and a two-year suspension in 1992. Four non-suspensory sanctions havve been imposed since the 1992 suspension. (Mike Frisch)

June 17, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

30 Days for 50 Bucks

An attorney who was paid $50 to write a collection letter for the client failed to write the letter.

After the client complained, the attorney promised deputy bar counsel that he would attend to the matter, Thereafter, he still failed to write the letter or return the fee.

Sanction: a 30-day suspension by the Kentucky Supreme Court. (Mike Frisch)

June 17, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Censure Follows Suspension

An attorney who failed to file an affidavit required as a result of her suspension from practice was censured by the New Jersey Supreme Court.

The Disciplinary Review Board indicated that it would have imposed a lesser sanction but for the attorney's default in this proceeding.

DRB member Gallipoli would disbar for the failure to obey a court order.

The suspension was for the attorney's failure to pay an award in a fee arbitration matter. (Mike Frisch)

June 17, 2013 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)