Saturday, August 10, 2013
From the web page of the Tennessee Supreme Court
In a unanimous Opinion, the Tennessee Supreme Court has affirmed the nine-month suspension of a Chattanooga attorney’s law license for violation of the Tennessee Rules of Professional Conduct in his representation of two clients.
H. Owen Maddux, a solo practitioner, represented a Hamilton County mother and son in a dispute with a business associate. As part of that proceeding, Mr. Maddux collected funds owed to the business by various customers. Despite sending a letter to customers stating the funds would be deposited with the court while the legal case played out, Mr. Maddux released more than $35,000 of the collected funds to his client the son, without notifying any other parties, including the customers, the mother, the court, or the business associate.
An attorney for the business associate filed a complaint with the Board of Professional Responsibility, citing Mr. Maddux’s actions regarding the funds in question. After an investigation, a petition for discipline was filed, but Mr. Maddux failed to answer.
A board panel then filed a default judgment against Mr. Maddux, which he later sought to set aside. In a hearing, Mr. Maddux stipulated to the facts regarding his work, but disputed the appropriateness of the nine-month suspension the board’s panel imposed.
The board upheld the nine-month suspension, which Mr. Maddux appealed to the Hamilton County Circuit Court, which also affirmed. Mr. Maddux then brought his appeal to the Tennessee Supreme Court.
The Court found that the hearing panel’s imposition of a nine-month suspension was not arbitrary and was supported by the evidence.The Court determined that the punishment was appropriate consideringMr. Maddux’s violation of duties owed to his client, to third persons, and to the legal profession, as well as Mr. Maddux’s experience, failure to answer the petition filed against him, and his disciplinary history, which includes two prior suspensions of his law license.
Read the H. Owen Maddux v. Board of Professional Responsibility Opinion, authored by Justice Cornelia A. Clark.
According to the opinion, the attorney had been suspended twice for disciplinary violations prior to this matter. (Mike Frisch)
An attorney who was working through a placement agency failed to keeo required contemporaneous records of his time for billing purposes. His after-the-fact attempts to reconstruct his time resulted in negligent overbilling, as the bills were "relete with errors" that led to overpayments to the attorney.
As a result, a reprimand was imposed by the Massachusetts Board of Bar Overseers.
There were mitigating factors involving serious health issues in his family and restitution. (Mike Frisch)
Friday, August 9, 2013
The New York Appellate Divsion for the First Judicial Department found sufficient mitigation to warrant a public censure of an attorney for non-venal misuse of his trust account, which came to light in an audit conducted after trust checks bounced.
At the hearing, respondent reiterated the specialized nature of his [education law] practice, noting that obtaining the necessary funding from the government to address the special needs of the children whose parents he represents is both complex and frustrating, requiring his advocacy. Respondent testified that his firm handles approximately 1,200 cases per year, 10-15 percent of which are handled pro bono. Respondent attributed the violations of the disciplinary rules charged to ignorance. With regard to misuse of his Trust Account, respondent testified that he had never taken any courses on the proper use of Trust Accounts and was simply employing the accounting practices he had employed since he opened his firm in 1981. With respect to advancing financial assistance to his clients, respondent testified that he was unaware that such practice was proscribed by the disciplinary rules. On this issue respondent stated that he only advanced sums to clients when a decision awarding them tuition had already been issued and would not be appealed. Moreover, respondent testified that he never charged interest to his clients on these advances and only engaged in this practice when his clients would be unable to send their children to school absent his financial assistance. Respondent expressed a great deal of remorse at having violated the disciplinary rules and testified that after being apprised of the charges against him by the Committee he retained ethics counsel and completely overhauled his firm's practices with regard to his Trust Account. Respondent further testified that he also hired an experienced bookkeeper to manage his Trust Account and keep the kinds of records required by the disciplinary rules. Since being apprised that advancing funds to clients is prohibited, respondent has not engaged in such behavior. Lastly, respondent noted that in his more than 30 years of practicing law, he had never been the subject of any professional discipline nor had his practices ever resulted in an inability to pay his clients all sums awarded to them.
The Referee also heard from three character witnesses. A former Associate Justice of the Appellate Division, Second Department, and a Justice of the Supreme Court, both testified that they had retained respondent to represent them and their respective children. Both Justices stated that respondent is known to be trustworthy, honest and a tremendously fine attorney, possessing great skill, integrity, and character. Carrie Catapano, head of West End Day School, also testified about respondent's character, noting that respondent is routinely regarded as being the best attorney in his field of practice, that parents and colleagues look to him for educational and legal advice, and that she routinely recommends him to parents who need the kind of legal advice in which respondent specializes. The Referee also reviewed six letters from respondent's former clients, all of whom were thankful for the representation they received and would recommend respondent to other parents of special needs children.
Thursday, August 8, 2013
A former Assistant City Attorney for Sioux Falls was publicly censured by the South Dakota Supreme Court.
There were findings of misconduct in two matters.
One involved litigation misconduct that included misrepresentations and destruction of evidence. The court found that his self-described "word-smithing" amounted to misrespresentations.
The other matter involved charges brought against his daughter of a seat belt violation and speeding in a school zone. The attorney's office was recused fom the case.
He nonetheless provided assistance to his daughter's trial counsel and represented her on appeal.
This conduct not only violated conflict of interest rules but his appellate brief "inserted disrespectful and insulting invective directed at the magistrate judge and prosecutor."
There are several concurring opinions. (Mike Frisch)
The Rhode Island Supreme Court has suspended an attorney who was recently convicted of bribing a witness in a criminal case.
The Cranston Patch reported on the conviction:
Cranston's Gerard Donley, a well-known criminal defense lawyer based out of Providence, today was found guilty of obstruction of justice, bribery and conspiracy to bribe a witness after a seven-day trial in Superior Court.
In a release, Attorney General Peter F. Kilmartin said the state proved beyond a reasonable doubt that Donley conspired with to indicted co-defendants to bribe a witness "to prevent him from testifying against [his] client in a criminal manner."
The charges involved a $6,000 payment to the girlfriend of the complaining witness in a matter that the attorney was defending.
The Providence Journal reported on the attorney's defense to the charges.
The agreed suspension will be in effect until the appeal of the conviction is resolved. (Mike Frisch)
The District of Columbia Court of Appeals has imposed identical reciprocal discipline in a matter involving discipline ordered by the South Carolina Supreme Court.
The court rejected the sanctioned attorney's claim that his due process rights were violated in the South Carolina disciplinary proceeding and ordered a suspension of two years with reinstatement conditioned on proof of fitness.
The attorney had alleged that the suspension in South Carolina was "tantamount to a criminal act" and "the corrupt conduct of court officials."
The court found that he had failed to adduce record evidence to support these contentions. (Mike Frisch)
Wednesday, August 7, 2013
A recent interim suspension is reported on the web page of the North Carolina State Bar:
The chair of the DHC entered an interim suspension of the law license of Hickory lawyer David Shawn Clark. The chair found that Clark pled guilty in Catawba County Superior Court to two counts of misdemeanor communicating threats and one count of common law obstruction of justice; engaged in a sexual relationship with a client; asked the client to lie and deny the sexual relationship so Clark could defend against an alienation of affection lawsuit threatened by the client’s husband; when the client refused to lie, threatened her with losing custody of her children; threatened to kill his legal secretary after she refused to lie about her knowledge of the sexual relationship between Clark and his client; made false statements in the defamation lawsuit he filed against his client; revealed his client’s confidential information; and made false statements to the Grievance Committee.
A criminal conviction was reversed by the New York Appellate Division for the First Judicial Department because an associate of the defense attorney was barred from entering the courtroom during the testimony of an undercover police officer.
Here, the court ruled that during the testimony of the undercover, the courtroom would be closed to the general public but that defendant's grandmother and his girlfriend could be present . Defense counsel specifically told the court that associates from his office wanted to attend, and the court confirmed they could be present. During the undercover's testimony, an attorney from defense counsel's office tried to enter the courtroom, but he was barred by the court officer who had been stationed at the door. The officer went into the courtroom to speak with the sergeant inside, and when the officer returned, he told the attorney that the sergeant had confirmed the courtroom was closed and the lawyer could not enter.
The attorney's exclusion was brought to the court's attention the next day and defense counsel sought a mistrial. The court denied the request acknowledging the closure order had been violated, but stated the burden was on the excluded attorney to take some further action, such as calling the captain or the major, once the officer and the sergeant refused to admit him.
The court held:
The trial court improperly imposed a burden on the party seeking entry to take additional action, such as calling the captain or major in charge of the court, or calling the courtroom
at the lunch recess. The attorney who sought entry had no such burden. Moreover, the attorney was not only denied entry by the officer, but a sergeant confirmed his exclusion. Having been denied admission twice, the attorney did not have to go searching for another higher level supervisor, nor was he obligated to call the court. In fact, it would have been entirely reasonable for the attorney to assume that the sergeant, who was in the courtroom, had consulted with the court and was acting on the court's behalf...
Here, the undercover was the critical witness, and excluding defense counsel's colleague from the courtroom during this time was not inconsequential. Furthermore, defense counsel explained that the excluded attorney was his officemate, with whom he had consulted about the case. The court also acknowledged that the excluded attorney had substantial experience in criminal defense cases. Although there would have been a problem even if the attorney had no such experience or connection to the case, the exclusion here was particularly troubling because defense counsel alerted the court that his colleagues might be coming, and the excluded attorney could have been of assistance to defense counsel during this critical phase of the trial...
The remedy chosen by the court, to give the excluded attorney a copy of the transcript of the undercover's testimony, failed to cure the constitutional error. The appellate case law does not discuss this as a possibility because it is the exclusion itself that violates the constitution. Courts are presumed to be open and while the trial court here had the right to partially close the courtroom during the undercover's testimony, it acknowledged it had no basis for excluding another lawyer from defense counsel's office. Contrary to the People's argument, the exclusion of defense counsel's colleague interfered with the very purpose of the requirement of a public trial. The requirement that the courtroom be open whenever possible and that closure orders be narrowly tailored "is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions" (Waller v Georgia, 467 US 39, 46  [internal quotation marks omitted]). Excluding defense counsel's experienced colleague, who was familiar with the case, deprived defendant of his right to have this person present to assess the undercover's testimony, and enabled the People to present the undercover's testimony without the salutary effects of extra scrutiny.
Tuesday, August 6, 2013
The web page of the Virginia State Bar reports:
On July 17, 2013, the Virginia State Bar Disciplinary Board suspended Matthew B. Murray’s license to practice law for five years for violating professional rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct. This was an agreed disposition of misconduct charges.
This disposes of the disciplinary case involving a prominent attorney who had advised his client to take down Facebook photos that might hurt damages in his wrongful death claim.
This post on the Virginia Law Weekly blog links to the trial court order referring the attorney to disciplinary authorities.
Earlier coverage by the ABA Journal is linked here. (MIke Frisch)
An attorney convicted of offenses related to firing a weapon into a private home has been reprimanded by an illinois Hearing Board.
The stipulated facts:
The Administrator and Respondent jointly stipulate that the evidence would establish the following facts: At approximately 1:30 a.m. on March 14, 2004, Respondent and client John Zonzo ("Zonzo"), were arrested in Berwyn, Illinois, after an eyewitness saw two individuals, one of which fired shots into a brick bungalow in the 2400 block of East Avenue in Berwyn, Illinois. The four residents of the home were asleep at the time the shots were fired.
The client signed an affidavit admitting that he had fired the shots. (Mike Frisch)
The Connecticut Supreme Court has held that physician disciplinary proceedings before the Medical Examining Board are properly governed by a preponderance of the evidence standard of proof.
The court affirmed the imposition of discipline.
The doctor had argued that the higher "clear and convincing evidence" standard that is applied in lawyer discipline matters should also apply to physicians.
The court disagreed:
...the plaintiff suggests that the disciplinary procedures to which attorneys are subjected has some bearing on the appropriate disciplinary procedures applied to physicians. We are not persuaded... the plaintiffs arguments fails to recognize that attorney discipline, unlike physician discipline, is overseen by the judicial branch....physician discipline is administered by the [Medical Examining Board], which is unquestionably an administrative agency under the [Uniform Administrative Procedure Act], Thus, because there is no indication that the legislature intended to impose a heightened standard of proof in cases involving physician discipline, we decline to depart from the default standard [of proof]...
Better to be a lawyer in hot water in Connecticut than a doctor. (Mike Frisch)
Posted by Jeff Lipshaw
I know Mike provides a daily source of lawyers behaving badly, but I thought I would interrupt by posting a video of an act of a lawyer that, to this day, gives me goose bumps.
I'm not sure any of us ever encounter an evil like Senator McCarthy, even though sometimes it feels like we do.
I'm also not sure if we ever have to exhibit the kind of courage and resourceful and essential decency under fire that Joseph Welch did, but I think every lawyer should watch this every once in a while just to recharge the moral batteries.
Monday, August 5, 2013
The lawyers of the District of Columbia Board on Professional Responsibility have rich imaginations.
They imagine that an attorney can be convicted of felony traveling for the purpose of engaging in sex with a minor and not engage in conduct involving moral turpitude.
In D.C., if an attorney is convicted of a felony that involves moral turpitude per se, disbarment is automatic. If not, a hearing committee conducts a hearing to explore whether the offense involves moral turpitude on its facts and thus warrants disbarment.
The board majority (all the lawyers except one recusal and one not participating) concluded that a hearing was appropriate for an attorney who went to Russia "for the purpose of engaging in sexual acts with a 15-year-old Russian minor..."
We conclude...that the offense is not a crime of moral turpitude per se, because applying the least culpable offender standard, a person could violate the statute without engaging in conduct that is so reprehensible that it manifestly offends generally accepted moral standards. For example, a person could travel with the requisite illicit intent under the statute yet think better of it after crossing the relevant jurisdictional line and decide not to pursue sex with a minor.
Back on Planet Earth, there are the actual circumstances of this case, reported here by the Mail Online:
A Philadelphia lawyer has been jailed for making a 12-year-old boy from the famed Bolshoi Ballet Academy his sex slave for six years....he will spend the next 15 years behind bars.
And from the Office of the United States Attorney for the Eastern District of Pennsylvania:
In the summer of 1998, Schneider, founder and president of the Apogee Foundation, traveled to Moscow, Russia where he told two ballet instructors at the Moscow State Academy of Choreography that he was willing to provide “assistance” to students attending the academy. The instructors identified a 12-year old student whose family could no longer afford to pay his board. Schneider convinced the boy’s parents to allow him to live with Schneider in an apartment a few blocks from the school. Between August 22, 2000 and November 22, 2001, Schneider engaged in a sexual relationship with the victim, bringing him to Philadelphia for a summer program in 2001, then returning to Moscow with the victim in August 2001 to continue the sexual relationship. Schneider was arrested March 27, 2010 in Larnaca, Cyprus.
Notably, both non-lawyer members of the board dissented and would find the conviction meets the definition of a crime of moral turpitude: "base, vile or depraved, or [where] society manifests a revulsion toward such conduct because it offends generally accepted morals."
Lay Member John Barker:
I disagree that the offense is less serious than other sex crimes against children simply because the operative conduct is travel with unlawful intent. One who commits the offense does not merely travel with a bad idea. Rather he or she specifically intends to commit an act of sexual abuse against a child and travels for the express purpose of carrying out the crime.
I agree completely.
The non-lawyer's analysis in dissent shows both more common sense and clear understanding of the law than the tortured reasoning to avoid disbarment found in the board's order.
It is also noteworthy that the beneficiary of this gift has been suspended for non-payment of bar dues since 1997 and failed to report the conviction as required by rule.
The case is In re Kenneth Schneider, Bar Docket No. 2-11-D465.
A copy can be obtained from the Board on Professional Responsibility. (Mike Frisch)
An Illinois attorney convicted in a murder-for-hire plot has filed a motion consenting to disbarment.
The motion recites:
Movant agreed to enter into a voluntary plea of guilty to Count Three, which charged that on August 2, 2011, Movant used his cellular telephone to communicate a plan to pay money as consideration for a murder-for-hire, in violation of Title 18, United States Code, Section 1958.
As part of that plea, Movant admitted that on August 1, 2011, Movant spoke with an undercover agent and identified the intended victim of the murder-for-hire. Movant agreed to pay $20,000.00 to an undercover agent for the killing of the intended victim, and to provide an initial payment of $1,500.00 and a photograph of the intended victim to the undercover agent on August 2, 2011. On August 2, 2011, Movant used his cellular telephone to call the undercover agent and arrange a meeting wherein Movant gave $1,500.00 and a photograph of the intended murder victim to the undercover officer.
ABA Journal had this August 2011 account of the charges:
A young Illinois lawyer who had seemingly bright career prospects is being held without bond after allegedly making a $7,000 down payment on a $20,000 contract to kill his girlfriend's ex-husband.
Jason Smiekel, 29, was federally charged with plotting murder for hire after allegedly giving the money on Thursday to a Bureau of Alcohol, Tobacco, Firearms and Explosives agent at a suburban Chicago restaurant, reports the Courier-News. No one was hurt, however, because the man to whom Smiekel allegedly paid the $7,000 was a federal undercover agent.
An affidavit filed in the Rockford case is posted on the McHenry County Blog. It says a whistle-blower approached by Smiekel alerted authorities.
The lawyer allegedly said he had represented his girlfriend in a divorce case (in fact, it apparently was her ex-husband who was Smiekel's client). Smiekel also allegedly said he needed to have his girlfriend's ex-husband killed because the man was about to testify against him in an unspecified "proceeding."
The ex-husband, Smiekel allegedly said, had "information about Jason that could get Jason in trouble and lead to a criminal indictment," as the affidavit puts it.
A partner at Mohr Hill & Smiekel, an Algonquin firm that specializes in matrimonial law, Smiekel was an excellent lawyer who "had a very special talent" and was respected by judges and everyone else familiar with his legal work, senior partner Terry Mohr tells the ABA Journal.
Although the affidavit says Smiekel represented his unidentified girlfriend in the divorce, Mohr says that is incorrect and Smiekel formerly represented her ex-husband, the man he allegedly sought to have killed. Smiekel stepped aside from the representation, Mohr says, due to becoming involved with the man's ex-wife.
"Still numb" and in a state of near-disbelief this morning over the news of his partner's arrest, Mohr said it came as "a complete shock" when Smiekel called him on Thursday night, said that he had been arrested and asked for Mohr's help in finding an attorney.
According to the consent, he was sentenced to 102 months in prison. (Mike Frisch)