Friday, January 31, 2014
A New Jersey attorney who has never been admitted to practice in Delaware has nonetheless been suspended for one year by the Delaware Supreme Court.
The court found that the attorney engaged in unauthorized practice of law by setting up an entity to refer cases to Delaware lawyers. Four personal injury matters were handled in that manner.
The court rejected the proposed sanction of its Board of Professional Responsibility of public reprimand and agreed with the suspension recommendation of the Office of Disciplinary Counsel. (Mike Frisch)
The Indiana Supreme Court has concluded that a suspended attorney engaged in the practice of law in a guardianship matter.
The representation had begun before the attorney was suspended. The problem was that he did not withdraw as counsel for his two clients, but purported to represent them on a "pro se, pro bono" basis after the suspension.
The court declined to find that he was in contempt of the suspension order and imposed a fine. (Mike Frisch)
Thursday, January 30, 2014
The Massachusetts Supreme Judicial Court has imposed a six-month suspension of a New England School of Law 2010 graduate for false statements by omission in connection with his admission to the Bar.
The attorney falsely stated that he had never been charged with a felony offense. He also failed to disclose drunk driving charges that took place while his application for admission was pending.
He was convicted of DUI after he was admitted and failed to report the conviction as required by governing rules.
The attorney then applied for admission in Illinois. He falsely denied that he had defaulted on student loans (he was behind in payments at the time) and whether he had been charged with offenses against the law. He did disclose the DUI.
He passed the Illinois Bar on the third try but has not yet been admitted there. He reported his disclosure lapses to Massachusetts at the urging of Illinois Bar authorities. (Mike Frisch)
The New York Appellate Division for the Second Judicial Department has reinstated an attorney disbarred in 2007 for a felony conviction.
The court described the offense in its disbarment order
The respondent admitted that in or about February 6, 2005, acting in concert with other defendants in furtherance of a bookmaking operation in Queens County and elsewhere, he advanced and profited from said bookmaking operation in that he "participated in the acceptance of five bets for more than $5,000.00." On May 22, 2006, the respondent was sentenced to a conditional discharge, a crime victims assessment fee in the sum of $20, and a mandatory surcharge in the sum of $250.
An attorney who was convicted of failure to file his federal income taxes for 2006 and 2007 was indefinitely suspended by the Maryland Court of Appeals.
The failures involved approximately $70,000 in unpaid taxes.
The attorney may seek reinstatement after six months, as the court rejected autmatic reinstatement in light of concerns about the state of restitution
We...disagree with [the attorney] as to the imposition of a finite, nunc pro tunc suspension for six months rather than an indefinite suspension with the right to apply for reinstatement after a period of six months. Our resolution emanates primarily from the fact that at oral argument, [he] could not specify what, if any, money he has paid to the Internal Revenue Service to satisfy his arrears, which apparently stems from the fact that his original agreement to pay the Internal Revenue Service was in default.
The District of Columbia Court of Appeals has affirmed an abritration award that resolved a dispute over the allocation of attorneys' fees in a class action suit that had been litigated in California.
The arbitration involved several attorneys and law firms, most based in the District of Columbia. After receiving the arbitrator's award, appellants... unsucessfully attempted to reopen the attorneys' fees issue in the California trial court. When that efort failed on procedural grounds, [they] filed a motion in the Superior Court of the District of Columbia to vacate the arbitration award on the ground that the arbitrator exceeded his powers and committed misconduct by denying them due process.
The class action case involved discrimination claims by television writers over the age of 40.
Senior Judge Reid wrote for the unanimous court in affirming the trial court judgment. (Mike Frisch)
Wednesday, January 29, 2014
A recent opinion from the District of Columbia Bar Legal Ethics Committee:
Lawyers who represent clients, whether birth parents or prospective adoptive parents, in private or independent adoption proceedings in the District of Columbia must ensure their conduct conforms to the D.C. Rules of Professional Conduct. Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.
An attorney was suspended for 90 days with reinstatement on conditions by the Wisconsin Supreme Court.
The attorney's issues related to a failed romantic relationship
...after an approximately 14-month relationship, K.M. sent Attorney Netzer an e-mail saying, "It is over." K.M. told Attorney Netzer not to contact her in any way and not to send gifts, flowers, or attempt to talk to her in person.
...Attorney Netzer wrote K.M. an e-mail saying he wanted to speak to her face-to-face one more time. On September 11, 2009, Attorney Netzer sent K.M. a postcard from New York. K.M. rejected Attorney Netzer's further attempts at contact.
...K.M. went to the City of La Crosse police department and filed a complaint in reference to Attorney Netzer possibly stalking her. K.M. said she had advised her employer about her concerns regarding Attorney Netzer, and the employer set up surveillance cameras around her workplace. K.M. told police she had made drastic lifestyle changes because of Attorney Netzer not complying with her demand that he stay away from her. A City of La Crosse police officer telephoned Attorney Netzer, advised him about the complaint, and said if his conduct continued, stalking charges would be filed. Attorney Netzer acknowledged it was wrong to stalk someone and he promised not to stalk K.M.
...Onalaska police responded to a call about a suspicious dark blue Kia Sportage registered to Attorney Netzer parked on a road in proximity to K.M.'s condominium. Police located Attorney Netzer running in the vicinity, and they arrested him.
...a harassment injunction was issued against Attorney Netzer. The circuit court affirmed the injunction following a de novo hearing on November 19, 2009. The injunction was to remain in effect until November 6, 2013. Attorney Netzer was required to have no contact of any kind with K.M.
...Attorney Netzer placed a "Happy/Sunshine" ad in the La Crosse Tribune, saying, "Dear Muffinz, Thanks for a great 2008. Please forgive me for 2009. Happy New Year 2010. Love Forever, Koala." K.M. and Attorney Netzer had exchanged these nicknames during their relationship.
..Attorney Netzer placed an ad in the La Crosse Tribune wishing K.M.'s mother a happy birthday. The ad was signed with the names of K.M.'s cats.
...Attorney Netzer placed another "Happy/Sunshine" advertisement in the La Crosse Tribune telling K.M., "I may no longer be in your heart, but you will always be forever the only one in mine. For you to be happy is all I ever have wanted and that is what I wish for you now. HAPPY VALENTINES DAY. Love, Randy and Kitties. . . ."
...Attorney Netzer placed each of the newspaper ads by calling a telephone number for the Coulee News. He claimed he thought he was placing the ads in the Coulee News newspaper but the ads were published in the La Crosse Tribune by mistake. He said he did not realize the mistake until after the ads had been published in the La Crosse newspaper.
...Attorney Netzer was arrested for violating the November 6, 2009 harassment injunction. The following day he was criminally charged. As a condition of a $3,000 cash bond, he was required to have no contact with K.M., her residence, or her workplace. He was fitted with a Global Positioning System (GPS) to ensure he did not travel to any exclusion zones. He was purportedly told he was excluded from the Valley View Mall.
The attorney pleaded guilty to misdemeanor harrassment charges.
The majority on sanction
This court found in 2006 that Attorney Netzer's two prior misdemeanor convictions, which arose out his violating a harassment injunction filed by a previous girlfriend, reflected adversely upon his trustworthiness or fitness as a lawyer in other respects. The same analysis holds true in this case. This court has long adhered to the concept of progressive discipline in attorney regulatory cases. It does not appear that the 2006 private reprimand had the impact we intended on Attorney Netzer since he repeated the same conduct here. For that reason, we agree with the referee that a 90-day suspension of Attorney Netzer's license to practice law in Wisconsin is appropriate.
Chief Justice Abrahamson, joined by Justice Bradley, dissented and would impose a six-month suspension. (Mike Frisch)
The Maryland Court of Appelas has disbarred an attorney convicted of an offense described by Bar Counsel:
Respondent stands convicted of a ‘serious crime’ as that term is defined in Maryland Rule 16-701 (k). He engaged in an illegal combination and conspiracy ‘to suppress and eliminate competition by submitting noncompetitive and collusive bids’ at tax lien auctions in various Maryland jurisdictions, leading to his conviction in the United States District Court for the District of Maryland of violating Section 1 of the federal Sherman Antitrust Act, 15 U. S. C. § 1. ... Respondent’s actions while participating in the illegal combination and conspiracy constituted professional misconduct proscribed by Rule 8.4 of the Maryland Lawyers’ Rules of Professional Conduct, including sections (b), ( c) and (d) of that rule. ...
The court concluded that the conduct involved the sort of dishonesty for which disbarment is the appropriate sanction. (Mike Frisch)
The Tennessee Board of Professional Responsibility has imposed a censure of an attorney for false statements to a Kentucky judge during the course of a child custody matter.
The attorney had been admitted pro hac vice in Kentucky for the matter.
The attorney had falsely claimed to have spoken to a Kentucky Court of Appeals judge about the controlling law and falsely stated that a hearing in the matter was scheduled in Tennessee. (Mike Frisch)
Tuesday, January 28, 2014
A 90-day suspension of a criminal defense attorney has been recommended by the Illinois Review Board.
The board found that, in several matters, the attorney failed to communicate plea offers and revealed confidential information in open court.
There are also findings that the attorney engaged in disruptive behavior before tribunals:
Judge Calabrese appointed Respondent to represent Monica Boyd who had been charged with theft. Boyd had previously retained a private attorney. When the private attorney moved to withdraw from representing Boyd, he informed the judge that he had not received full discovery from the State. He had requested photo lineups that he had not received and a video that the State tendered to him did not play. The judge told Boyd that he would give her a short continuance to obtain another attorney, and told her to talk to Respondent.
Respondent met with Boyd and later appeared before Judge Calabrese. After some discussion as to when the State could produce the requested video, Respondent said, "If the court wishes for me to go today, show me the video, and then I would go today." Judge Calabrese then replied that he would pass the matter for trial (apparently to allow her to view the video).
Boyd apparently told Respondent that she needed to leave to pick up a child from school that day and then she would return to the courtroom. When the court called the case again, Boyd was not there. Respondent indicated that the State was just now showing her the video and that Boyd had left to pick up her child. The judge replied that the case was set for trial and he issued a warrant for Boyd's arrest. Respondent replied, "Oh shit". When the judge asked her what she said, she said, "Oh shoot" and said it was her fault that Boyd was not present. The judge issued the warrant.
Another incident before the same judge:
Respondent appeared before Judge Calabrese on behalf of Tony Rivera. She requested a reduction of Rivera's bond. After her request was denied by the judge, she began to raise her voice to the judge. When the judge noted he had not lost his hearing, Respondent continued to argue with the judge with a raised voice. Judge Calabrese stated, "Let me just indicate again, you are yelling on the record. This happens all the time when you don't get your way. Because you lose something doesn't mean you have to start yelling at me."
Following her outburst, Respondent was removed from her assignment and placed on office duty. In late July 2011, the Cook County Public Defender's Office terminated Respondent's employment.
As to mitigation:
Respondent, representing herself, testified in a rambling narrative. Respondent was admitted to practice law in Illinois and Indiana in 1981. She testified that she put herself through college and law school while raising six young children. Her first job after receiving her license was with the Indiana Lake County Prosecutor's Office. After about three years, she then took a job with the United States Department of Justice in the civil rights division, criminal section in Washington, D.C. In 1987, she returned to Illinois as an Assistant United States Attorney. In 1995, Respondent briefly went into private practice with Steven Shobat. She joined the Cook County Public Defender's Office in 2004. Respondent did not testify about her current practice, but mentioned that she had some personal difficulties at the time of her misconduct.
Her mother had recently passed away and she was still reeling from her death. Respondent's birthday was May 10, the day before the initial misconduct in this matter. She testified that her birthday reminded her of her mother. She also explained her conduct by saying that she was working in a "hostile environment." The Administrator opted not to cross-examine Respondent.
In mitigation, Respondent also offered the testimony of Steven Shobat. Shobat met Respondent when they were both at the U.S. Attorney's Office. At that time, Respondent was a mentor to Shobat and had a reputation as an ethical and honest attorney. In 1994, they left the U.S. Attorney's Office and went into a private criminal defense practice together. The partnership lasted about eighteen months. While they initially had a falling out, they have since resumed their friendship. Shobat said that Respondent is passionate about her clients.
Monday, January 27, 2014
A former municipal court judge who had "committed egregious legal errors in his conduct of the proceedings" involving two criminal defendants has been reprimanded by the New Jersey Supreme Court.
The defendants were initially given time to retain counsel.
When they were unable to do so, the judge told them that they had waived their right to a public defender (which one defendant now sought). The judge then conducted the trial without either defense counsel or the prosecutor.
The defendants were tried and convicted in less than one hour.
After counsel was appointed on appeal, a new trial was granted. The court concluded that the trial before the reprimanded judge
transformed the role of the court from a neutral and detached magistrate and evoked the specter of the backwater "judge, jury and executioner" figure that has never had any place in American jurisprudence.
The judge explained that "he was not attempting to prosecute the case, but rather was trying to move the court's calendar along."
Judge DiLeo conducted this trial on his own terms. He denied the defendants’ request for counsel, forced them to go to trial pro se after refusing their request for a public defender, prosecuted the case with the help of the arresting police officer, personally cross-examined the defendants, and found the defendants guilty based on testimony that he himself had elicited during his cross-examination. Furthermore, at the conclusion of those proceedings, Judge DiLeo sent these two pro se defendants to jail where they remained for 124 days for non-violent disorderly persons offenses. Not only the defendants but also the judicial system were victims. The judge violated basic principles and procedures of our judicial system that people have a right to expect a municipal court to follow when prosecuting a citizen for a disorderly persons offense.
The court thus concluded that the conduct of the trial "cast a pall over the judiciary as a whole..." (Mike Frisch)
A Tennessee attorney has been censured by the Board of Professional Responsibility for a weapons offense.
Ric Bohy of The Daily Herald has details:
A Columbia lawyer who was indicted for firing a pistol into the air near her boyfriend’s home last summer was sentenced to probation after pleading guilty to weapons charges related to the incident. Martha Jane Durocher, 34, was given two years probation on July 25 after pleading guilty in Maury County Circuit Court to reckless endangerment and unlawful carrying or possession of a weapon. A third charge, simple domestic assault, was dismissed.
Durocher, who lives in Lewisburg but has a law office in Columbia, turned herself in to authorities on July 23, 2012, after an arrest warrant was issued for the firearm incident that happened five days before. As described in court documents, Durocher was angry with her former boyfriend, Courtney Armstrong, and fired shots from a .380 semi-automatic pistol into the air near his home on Warwick Avenue in a heavily populated area of Columbia. She then sent Armstrong a text message telling him she had fired the shots.
Durocher’s probation will be supervised for 90 days, and if she pays court costs by the end of that period, will continue unsupervised for the remainder of the two years.
Maury County District Attorney General Mike Bottoms said Durocher’s conviction was reported to the Tennessee Board of Professional Responsibility, which will determine what effect, if any, it will have on her license to practice law. Bottoms added that the state was also notified about Durocher’s firearm violations to determine if she will be allowed to get a carry permit, which she did not have at the time of the incident.
A recent complaint filed by the Illinois Administrator alleges these circumstances that led to a DUI conviction:
In the afternoon and evening of December 14, 2010, Respondent had consumed at least three shots of vodka and beer at a bowling alley bar in West Chicago, Illinois. While he was drinking at the bar, Respondent received a telephone call from a client. Respondent thereafter drove from the bowling alley to meet the client at a home in Glendale Heights, Illinois. While meeting with the client, Respondent consumed at least two orange juice glass size glasses of tequila. After consuming the alcoholic beverages and meeting with the client for approximately an hour, Respondent again began driving his motor vehicle.
After leaving the meeting with his client at about 9:30 pm, Respondent began driving his vehicle towards his home in Forest Park, Illinois. During the drive, Respondent was speeding and was pulled over by an Illinois State Police officer for driving 80 mph in a 55 mph zone and for his failure to signal when he changed lanes. The officer smelled alcohol on Respondent’s breath and asked Respondent to perform field sobriety tests. Respondent failed the field sobriety tests and registered a .25 blood-alcohol concentration on a portable breathalyzer test.
Things get worse.
After the conviction
On August 22, 2011, after the removal of the [ankle monitor] SCRAM device, Respondent, in violation of his February 11, 2011 sentencing order, consumed a pint of vodka. After August 22, 2011, Respondent continued to consume vodka on a daily basis, and by early 2012, Respondent consumed up to two pints of vodka a day, in violation of his February 17, 2011 sentencing order.
On August 23, 2012, the Administrator of the ARDC received correspondence from the DuPage County State’s Attorney’s Office, with concerns that Respondent smelled like alcohol during two court appearances he made on behalf of clients in criminal cases.
Probation was revoked. (Mike Frisch)
An attorney who agreed with a married couple who were his "friends and clients, but who were not lawyers" to form a law firm under his name was disbarred by the Georgia Supreme Court.
A special master found that the couple contributed funds to the law firm, that one served as CFO and the other in daily business operations. There was no written documentation of the arrangement.
The couple never got profits or repayment of their contributions. The law firm went bust.
In addition to violations of Rule 5.4, the attorney took a loan from the clients to pay back taxes in Florida. He gave as collateral property he did not own.
The special master found that he had acted deceitfully. (Mike Frisch)
Friday, January 24, 2014
In a rather unusual procedural ruling, the Maryland Court of Appeals denied a motion of its Attorney Grievance Commission ("AGC") to dismiss charges against an accused attorney.
The court returned the case to the AGC for a sanction recommendation.
The attorney engaged in criminal conduct by giving a .45 caliber handgun to a former client. The client was not allowed to possess the weapon because of his criminal record.
The handgun was purchased at a firearms store called On Target and immediately transported to the former client's place of employment, where the attorney gave him the gun. The attorney was charged with a criminal offense and was granted probation before judgment. The records were later expunged.
The AGC filed a motion for dismissal after a hearing judge had found no misconduct. (Mike Frisch)
An Indiana attorney had a trust account, an operating account and an account to hold funds to satisfy tax obligations. The attorney employed an office manager ( T.T.) to administer the accounts.
In a period of financial stress, the office manager engaged in "malfeasance" with the intent to shield the attorney from the bad financial news. The stress release only induced a greater stressor -- nine overdraft notices from the Bar.
After an initial failure to respond to the ensuing investigations, the attorney took steps to make things right.
Respondent's counsel immediately began investigating the overdrafts and the inquiries from the Commission. Respondent's counsel requested trust account bank statements from T.T. on several occasions to no avail. T.T. finally provided Respondent's counsel with the trust account bank statements, but only after she modified them in an effort to conceal her misdeeds. T.T. eventually admitted to making improper transfers of client funds, forging Respondent's name to trust account checks, forging Respondent's name on the June 15, 2011 response to the Commission, and comingling law firm funds with client funds in the tax account. Upon discovering T.T.'s misdeeds, Respondent immediately repaid all missing funds to the trust account. Respondent also employed a Certified Public Accountant to comprehensively audit his trust account.
As a result, the Indiana Supreme Court ordered a stayed six-month suspension and 18 months probation. (Mike Frisch)
The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice claim:
Plaintiff, a claims administrator for an insurer, commenced this action alleging legal malpractice against defendants, who were retained to represent the insurer in a personal injury action. Acknowledging that it is not in privity with defendants, plaintiff contends that it may bring the cause of action by virtue of its relationship of near privity with them. However, plaintiff does not allege that it had a contractual obligation to pay for the loss in the personal injury action. Nor does it allege that it sustained actual damages because of this obligation. Similarly, plaintiff's factual allegations do not suffice to state an equitable subrogation cause of action against defendants. (citations omitted)
Thursday, January 23, 2014
The California State Bar Court has recommended the disbarment of an attorney for misconduct in matters involving the representation of her own son.
The opinion has this summary
This case involves serious overreaching of the attorney-client relationship under the guise of parental concern. Respondent...used the legal system to further her desire to control her adult son, who was also her client. In doing so, she lost sight of her ethical obligations and committed serious misconduct, including misappropriating over $57,000 of his settlement funds through conversion, commingling over $100,000 of her personal funds with his, and filing a lawsuit directly adverse to him. After her son filed a complaint with the State Bar’s Office of the Chief Trial Counsel (State Bar), [she] compounded her misconduct by conditioning the release of his funds on his agreement not to cooperate with the State Bar’s investigation. In the end, [she] withheld her son’s settlement funds for more than three years and released them only four days before her disciplinary trial.
The attorney had a record of prior discipline stemming from two shoplifting incidents. (Mike Frisch)