Wednesday, September 30, 2015

Gift Cards And Basketball Tix

Disbarment but not permament disbarment should be imposed on an attorney, according to a recent report and recommndation of a Louisiana Hearing Committee.

The problems began with her employer

In January of 2013, ODC received a complaint filed by your former employer, Steven Mr. Chouest. The matter was assigned investigative file number 0030221 and is summarized as follows: Mr. Chouest states your legal work was not up to par and he terminated your employment with his firm. When Mr. Chouest decided it was time to let you go, you informed him of a serious personal problem related to your husband you had been battling for years. Mr. Chouest believed these problems were the likely cause of the poor performance at work. Mr. Chouest noted that your husband had been to his office previously and would threaten other office members while coming to the office to retrieve your jewelry to pawn. Mr. Chouest delayed discharging you, but after learning you intentionally misled him concerning other matters, the decision was made to let you go.

Then

Since this time, you have intentionally interfered with Mr. Chouest's attorney/client relationship by attempting to have the clients discharge Mr. Chouest by offering them gift cards and basketball tickets to persuade the clients to allow you to handle their case. Also, your husband has left several angry voice mail messages for the clients attempting to have them retain your services.

The hearing committee found misconduct in a host of matters but concluded that permanent disbarment was too harsh

permanent disbarment should be reserved only for the most extreme, outrageous and deplorable cases. Respondent’s misconduct, in our view, does not rise to that level. Instead, this committee finds that the baseline sanction of disbarment is appropriate and warranted.

One of the lawyer members felt that permanent disbarment was the appropriate sanction. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Timing Is Everything

An attorney who continued to practice in the wake of a disciplinary suspension was suspended for two years and a day by the Oklahoma Supreme Court.

The court rejected his alleged subjective belief about the effective date of the initial suspension

Knight testified he was ignorant of the proper ethical standards. Ignorance may be intentional or willful. For example, it has been a truism in different areas of the law that ignorance of facts provides no defense where ignorance is intentional and deliberate in circumstances that would, or should, require an ascertainment of the facts. While Knight's testimony shows that his conduct appears to be an intentional ignorance of his ethical obligations, the evidence fails to show a bad or evil motive for his failure to timely withdraw from the proceedings. We decline to accept part of the Rule 6.4 admission as it relates to a violation of ORPC 8.4 and Knight's failure to withdraw in a timely manner when representing criminal defendants...

A lawyer has a duty to know both the Oklahoma Rules Governing Disciplinary Proceedings and the Oklahoma Rules of Professional Conduct. Knight stated that in 2014 he was not sure of the effective date of his suspension order. Knight did not contact the Bar in an attempt to discover the effective date of the Court's order.

We have explained for the purpose of Rule 3.3, a lawyer's professed subjective belief when representing a fact to a tribunal will be rejected when we determine the lawyer could not have reasonably believed what he or she claimed. Knight represented to the trial court that he was a licensed lawyer. He believed this was correct because he had the subjective belief that he was licensed until "the very, very end of August or - - or the first week of September." We do not believe that Knight, or any licensed lawyer of this Court, could reasonably believe Knight's method for calculating an effective date for a suspension order and seek to apply it indeterminately across a week to two-week period of time. Knight's defense of subjective ignorance does not excuse him from a Rule 3.3 prohibition of knowingly making a false statement of fact or law to a tribunal. We find no issue to prevent Knight's admission to Rule 3.3 violations.

ORPC 3.4(c) states that a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. Knight's subjective belief concerning his Bar status is unreasonable after he received notification of his suspension.

We have reviewed the entire record before us. There is no public interest present in the proceeding that would act to limit the scope of Knight's Rule 6.4 admission beyond that discussed herein concerning Rule 8.4. We agree with the trial panel and deem the allegations of the Complaint admitted with the single exception of an admission that Rule 8.4 was violated by Knight's untimely motion to withdraw and his misrepresentation of his Bar status.

Three justicees dissented and would disbar. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Google Ad Keyword Misconduct Leads To Reprimand

The South Carolina Supreme Court has publicly reprimanded an attorney for violation of its rules on advertising

The facts

Respondent and Joseph DuBois, Esquire, are partners in Naert & DuBois, LLC, a law firm handling a variety of legal matters, including timeshare litigation. In 2013, respondent created a website for the firm when the law firm opened in 2013. The website address did not contain the name of the law firm or any part of the names of the partners.

In March 2013, respondent created a Google AdWords account as part of the law firm's Internet marketing campaign. Google AdWords is an Internet marketing technique in which the advertiser places bids for "keywords." When an Internet user of particular search engines associated with Google enters an Internet search that includes words in common with the advertiser's selected keywords, the search results may or may not include the advertiser's ad amongst the list of other nonadvertising or unpaid website search results. The advertiser pays Google if the Internet user clicks on the advertiser's ad from amongst the search results.

At the time Naert & DuBois, LLC, used Google AdWords, if an advertiser's ad appeared in the search results, it appeared under the heading "Ad related to [keyword or keywords]." At that time, ads for Google AdWords could appear amongst the search results with no visible designation or delineation of an area on the webpage specifically designated for advertisement.

Naert & DuBois, LLC, has filed a number of lawsuits on behalf of clients against a timeshare company (the Company). The Company and other individuals related to the Company are represented in various capacities by Attorney A, Attorney B, and Attorney C. Naert & DuBois, LLC, bid on the names of Attorney A, Attorney B, and Attorney C as well as the name of the Company in its list of keywords for the firm's Google AdWords campaign. The firm's advertisement appeared in some Internet search results in which Internet users entered one or more of the Attorneys' names in a Google search.

The firm's advertisement read as follows:

Timeshare Attorney in SC - Ripped off? Lied to? Scammed? Hilton Head Island, SC Free Consult

Sometimes the Attorneys' names appeared as the first result in the list of search results and, other times, the Attorneys' names appeared later in the list of search results. Naert & DuBois, LLC, paid for its advertisement each time an Internet searcher clicked on the firm's advertisement.

Naert & Dubois, LLC, terminated bidding on the use of the Attorneys' names prior to notice of the disciplinary investigation.

Respondent admits he is the attorney responsible for the Google AdWords campaign on behalf of Naert & DuBois, LLC. He further admits the firm's advertisement did not contain his name, Mr. DuBois' name, or the name of any other lawyer responsible for the advertisement's content. Respondent agrees use of opposing counsels' names as keywords in an Internet marketing campaign in a derogatory manner violates provisions of the Lawyer's Oath.

In addition to the reprimand

Within one (1) year of the date of this opinion, respondent shall attend and complete the Legal Ethics and Practice Program Ethics School and Advertising School and, no later than ten (10) days after the completion of the programs, submit proof of completion to the Commission.

(Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Default Ordered For Multiple Acts Of Misconduct

A suspension of two years and six months was ordered by the Wisconsin Supreme Court of an attorney who had opposed a default for his initial failure to respond to multiple allegations of ethical misconduct.

Attorney Ramthun did not file a timely brief but later sent a letter and responsive brief by email, opposing default judgment and maintaining that he had a meritorious defense to some of the OLR's allegations. He also disclosed certain contributing factors, including the fact that he had moved his law office three times in the past five years, had staffing issues, got divorced, and had significant medical issues including a hip replacement, cancer, and chronic fatigue syndrome.

The referee's decision

...the referee issued a thorough "DECISION on Motion for Default Judgment [and] Report and Recommendations." The referee reiterated the legal standards applicable to default judgments in OLR matters and noted that Attorney Ramthun, over a seven-month period, had not filed any answer, had failed to comply with the referee's scheduling orders, and had failed to appear at telephonic scheduling conferences. The referee deemed a default judgment against Attorney Ramthun appropriate. We agree. Attorney Ramthun failed to present any real defense despite being given multiple opportunities to do so, and we declare him to be in default.  

The referee then summarized the allegations against Attorney Ramthun, determined that the OLR has met its burden, and found by clear, satisfactory, and convincing evidence that Attorney Ramthun committed 46 of the 52 alleged acts of lawyer misconduct.

The misconduct in this case is extensive. The amended complaint alleges, and the referee determined, that Attorney Ramthun committed at least 46 separate instances of professional misconduct in some 13 client matters between 2007 and 2014.

While the Office of Legal Regulation had sought a three-year suspension, neither party appealed the referee's recommendation. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Leaving New York

The New York Appellate Division for the First Judicial Department had accepted the resignation of an admitted attorney without knowledge that he also was licensed as a foreign legal consultant.

The court revoked his foreign consultant license.

The Committee now states, upon information and belief, that following his resignation, respondent relocated to Mexico, where he is admitted to the practice of law and maintains an office for such practice. The Committee further states, upon information and belief, that respondent maintains an office for business as a legal consultant within the First Judicial Department.

The Committee now moves for an order, pursuant to 22 NYCRR 521.1, 521.5, 521.8 and 603.4(d), and New York Judiciary law § 90(2), revoking respondent's license to practice as a legal consultant. The Committee maintains that revocation of respondent's legal consultant license is warranted in light of our September 30, 2008 order accepting his resignation from the New York State Bar based on his admissions that he could not defend himself on the merits against allegations that he committed professional misconduct, and that as a result he does not currently possess the good moral character and general fitness required under 22 NYCRR 521.1(a)(3).

Specifically, the Committee notes that in his affidavit of resignation from the bar, respondent admitted that he wrote a check for $22,000 on his firm's escrow account which was returned for insufficient funds; that he failed to maintain adequate escrow bookkeeping records; that he commingled client funds with his own funds; that he withdrew $35,200 from his firm's escrow account without permission from the client on whose behalf the firm was holding these funds; that he did not provide necessary information and documents required by the Committee; that he failed to appear for a scheduled deposition; and, when he did finally appear, he provided altered bank records and statements in order to conceal certain transfers out of his escrow account.

In an affidavit of compliance sworn to June 24, 2015, respondent acknowledges receipt at his address in Mexico of the instant motion to revoke his legal consultant license, and avers that he no longer maintains an office in New York or in the United States. Respondent states that he does not oppose the motion and has no objection to the removal of his name from the roll of legal consultants.

I do not know whether Mexico has a procedure to consider reciprocal discipline. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

False CJA Bills Draw Consent Suspension

A recent disciplinary sanction from Illinois

Mr. Neely, who was licensed in 1982, was suspended for two years and until he makes certain restitution and complete the ARDC Professionalism Seminar. While serving as a Federal Public Defender, he submitted verified forms containing false claims for reimbursement, including submissions that requested payment for more than 24 hours on a given days. He also double-billed the federal program for certain work. The suspension is effective on October 13, 2015.

Details are provided in the consent discipline petition

Respondent is 63 years old, was admitted to practice law in Illinois in 1982, and is not currently engaged in the practice of law. Between May 2006 and October 2013, Respondent served as a Federal Public Defender panel member appointed to represent defendants in federal criminal cases as part of the Criminal Justice Act (hereinafter "CJA"). In connection with those cases, Respondent submitted verified forms containing false claims for reimbursement, including submissions that requested payment for more than 24 hours on a given days and double-billed for his work...

In mitigation, Respondent has not previously been disciplined and has expressed regret for his conduct. At the time of his misconduct, Respondent was distracted by demands and concern arising in connection with the illness and deaths of several family members. He later participated in an investigation of his invoices, and accepted a resolution whereby he agreed to accept a substantial reduction of his requested fees..

 During the time period of 2006 and 2010, on at least nineteen occasions, Respondent billed for more than 18 hours per day, with billings for more than 24 hours on 11 of those days. Respondent's billing records contained other inaccuracies, including billing for hours when not present in court and overbilling for in-court work. In his invoice for work on one case, a case in which Respondent argued for a resolution using "fast track" policies, Respondent submitted duplicate billings for 83.5 hours of purported research and briefing time when he had already performed that work and billed for it in a prior case. When asked by the presiding judge, the Honorable Blanche Manning, to justify the invoice in the second case, Respondent submitted a letter referencing the prior case, rather than the case about which Judge Manning was inquiring, and again claimed that the time was accurate.

The Illinois Supreme Court accepted the petition. (Mike Frisch)

September 30, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 29, 2015

Binders Full Of Job Applications Not Produced; Attorney Suspended For Non-Support

An attorney who had failed to comply with court-ordered child support obligations was suspended for a year and a day by a Colorado hearing board subject to reinstatement on three years of probation if he gets current in those obligations.

He had sought modification

In 2008, the law firm Respondent was working for “imploded” when a founding partner left, taking a number of clients with him. Several people were fired, including Respondent. He recalled assuming initially that he would get a new job, and he continued to pay $2,000.00 a month toward child support, first dipping into savings, then taking cash advances from his credit card. By 2011, he testified, he was “wiped out” financially, having been unable to find any legal work...

At the sanctions hearing, Respondent challenged the magistrate’s findings as “false,” insisting that he had submitted to the magistrate “a bunch of three-ring binders” full of job applications that he had once completed. He did not, however, seek to introduce any such binders or applications into evidence before the hearing board. In response to the People’s intimation that for several years he has been voluntarily underemployed, he contended that before early 2013—when the People began their disciplinary investigation—he was applying for upwards of ten jobs a week, yet there were never any “bites.” He testified that to earn money he has worked as a janitor, a house painter, and a tax preparer. Until his license was administratively suspended, he also spent up to twenty hours per month doing pro bono legal work for recovering alcoholics. He estimated that he has been making approximately $2,000.00 per month in cash painting houses, although he acknowledged that he has not provided the People with any proof of income.

His ex-wife is a medical doctor

Dr. Quigley, who works for Kaiser Permanente as a physician, conceded that because she can support her three children, Respondent’s failure to pay child support has not harmed them financially. But she testified to the psychological harm that Respondent’s conduct has caused their children, as well as the frustration that his failure to obey court orders has occasioned. Their children have all sought therapy, she recounted, in order to address what they perceive is Respondent’s choice not to contribute to their financial wellbeing, which they view as a manifestation of his lack of interest in their lives.

He is over &11,000 in arrears. (Mike Frisch)

September 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Proposed Over A Dissent

The Louisiana Attorney Disciplinary Board recommends that reinstatement be granted to an attorney disbarred in 2007 for diverting fees from two law firms into his own pockets.

While employed at two law firms in New Orleans, Mr. Bernstein directly billed clients for work he actually performed, but thereafter deposited the funds received into his own personal checking account. Although neither firm conducted a “comprehensive audit,” Mr. Bernstein’s misappropriations apparently totaled approximately $32,000.

From the hearing board on his mental health issues

Dr. Douglas William Greve has treated Mr. Bernstein since 2007. Pg. 35. He has been treating him for depression and has prescribed him medication. Pg. 35. Dr. Greve's treatment and prognosis of Mr. Bernstein is summarized in [Petitioner’s] Exhibit P-07. Dr. Greve testified that Mr. Bernstein's mental health currently is excellent. He testified that Mr. Bernstein was "a real mess" in 2007, but after about three years he began to settle down, function better, and feel better. Pg. 36. It is Dr. Greve's opinion that Mr. Bernstein has grown into a new person and that in his professional opinion any mental health issues prior to 2007 that may have caused his past misconduct have been adequately dealt with. It is also his opinion that Mr. Bernstein's depression and anxiety are in remission. He testified that there is no mental health issue that would impair Mr. Bernstein's ability to be a competent lawyer. Pg. 38. Dr. Greve further testified that even though he did not know of Mr. Bernstein's history of shoplifting and theft at an early age, it is stressors that destabilize Mr. Bernstein, and as long as he has an external structure to support him, he is okay. Pg. 46. Dr. Greve has prescribed Mr. Bernstein medication and recommends that he stay on that medication indefinitely. Pg. 47. Dr. Greve testified that although he cannot guarantee that Mr. Bernstein will not go back to his old ways if stressed, he did say that Mr. Bernstein "has made tremendous growth in his life, caring for his children, his practice, taking care of things. And he's shown a lot of inner strength that he did not have before." Pg. 51- 52. Dr. Greve also testified that he does not believe the restrictions on Mr. Bernstein's check writing authority or in issuing bills (imposed by the CPA board) are necessary any longer because he has the inner controls to deal with it. Pg. 55. It is his opinion that Mr. Bernstein can handle the day-to-day stressors, as he is a stable person and would even be alright as a solo practitioner.

A hearing board member had dissented

Evidence presented at the hearing showed that in 2009, subsequent to his disbarment, the Respondent's CPA license was revoked for a period of seven years, with conditions, by the State Board of Certified Public Accountants of Louisiana. The revocation, while deferred, states that, "Respondent David Bernstein will not have any responsibility for billing or collections and will not have any check signing authority within his current employer's firm and future employers.

The Office of Disciplinary Counsel objected to readmission. The Board here found that the petitioner had satisfied the criteria for reinstatement.

A board member dissented

What concerns me in this petition is the seriousness and longevity of actions that led to Mr. Bernstein's disbarment. The court cited his "fundamental lack of honesty which falls far below the standards expected of attorneys admitted to the bar of this state." 10 The word fundamental means it is basic and natural to, in this case, the character of an individual. It further concerns me that the "deceit and dishonesty evidenced by the record" occurred over an extensive period of time. Nothing presented in this petition indicated that the Petitioner had amended his ways and changed his character. The only inference drawn from the information provided was that given a controlled environment, he did not revert to past conduct involving "fraud, dishonesty, deceit and misrepresentation." If these sanctions and circumstances are changed, there is no "checks and balance" system in place to ensure compliance.

(Mike Frisch)

September 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tennessee Supremes Will Hear Argument On Website Claims

An oral argument scheduled before the Tennessee Supreme Court on October 1

BPR v. Connie Reguli – This is a case between a Brentwood attorney and the Board of Professional Responsibility, which is the organization that investigates complaints against attorneys and initiates disciplinary proceedings. Ms. Reguli was disciplined for two separate incidents, one in which she did not return unused funds from a retainer fee paid for a divorce case and another in which her website published claims about her certification that were untrue. The Court will consider the appropriate disciplinary action for Ms. Reguli.

The Nashville Post had a story about the attorney's efforts to obtain internal e-mails of the BPR in an earlier case.

Reguli, who in 2008 ran for the state House of Representatives and last year applied to be the BPR’s chief disciplinary counsel, had been granted access to the documents by Chancellor Ellen Lyle. But the BPR appealed that ruling after producing some of the records and heavily redacting others.

Writing for the appellate court, Judge Richard Dinkins — who was joined by Judge Frank Clement — said the documents are out of reach of a public records request because they were prepared after the disciplinary proceeding against Reguli had been launched. The intent and structure of state rules governing attorney discipline, the appeals court judges wrote, place such communications beyond disclosure requirements.

Dinkins also wrote that Lyle had mistakenly ruled that the documents Reguli sought were “work product” because they involved communication between different agencies. The different entities working on attorney discipline cases should be viewed as part of a whole, they made clear.

“The fact that the offices are separate has no significance in this regard,” Dinkins wrote

(Mike Frisch)

September 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

From Fiction To Reinstatement

The Ohio Supreme Court reinstated an attorney suspended in 2009 for misconduct described in the suspension order

The Board of Commissioners on Grievances and Discipline recommends that we suspend respondent for two years with one year stayed upon conditions for creating a fictional law firm and for misconduct involving legal fees.We agree that respondent committed these acts of misconduct, and we also find that respondent acted improperly in failing to pay a disputed expert-witness deposition fee and failing to pay child support while contesting that amount through the legal process. In view of these serious ethical violations, we do not accept the board’s recommended two-year suspension with one year stayed and instead indefinitely suspend respondent from the practice of law.

The fictitious firm

Under this count, relator claims that respondent improperly held himself out as a member of entities named “McCord, Pryor & Associates,” “McCord, Pryor & Associates Co., L.P.A.,” and “McCord & Associates.” Respondent’s actions related to these purported entities raise three questions: (1) Was respondent ever a law partner with David E. Pryor? (2) Did respondent act inappropriately in forming an entity named “McCord, Pryor & Associates Co., L.P.A.”? and (3) Did respondent have any associates that would justify using the term “and associates” in firm names?

Pryor was admitted to the practice of law in 1982. In 2002, Pryor and his wife were killed in a plane crash. At the time of Pryor’s death, he and respondent co-owned a building in Columbus where the two men maintained their law practices.

Although respondent claims that he and Pryor held themselves out as a firm under the name “McCord, Pryor & Associates” for numerous years, they did not operate under any recognizable legal structure. They had separate clients, separate IOLTA accounts, separate fee income, and separate law-related business expenses during Pryor’s life. Moreover, they did not have an agreement to share profits and losses; respondent readily admits that they shared attorney fees only on cases they worked on together, never on their separate cases. Given these facts, it was improper for respondent to hold himself out as “McCord, Pryor & Associates.”

The attorney must pay costs or face suspension again

if costs are not paid in full on or before 90 days from the date of this order, the matter may be referred to the Attorney General for collection and respondent may be found in contempt and suspended until all costs and accrued interest are paid in full.

(Mike Frisch)

September 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Imprisoned Family Court Lawyer Suspended

The Pennsylvania Supreme Court imposed a suspension of 26 months of an attorney convicied of tax offenses.

WNEP 16 reported on the conviction

A former family court lawyer in Lackawanna County was sentenced Wednesday morning in federal court in Wilkes-Barre.

Danielle Ross was sentenced to 12 months in prison and must pay restitution of about $63,000.

In December 2013, she pleaded guilty to attempted tax evasion.

The former family court lawyer from Lackawanna County who pleaded guilty to federal tax charges will now spend a year behind bars.

She was greeted at federal court in Wilkes-Barre by protesters.

Danielle Ross of Jermyn was a guardian ad litem - an attorney for family court - in Lackawanna County until last year. That's when federal prosecutors filed tax charges against her.

She's now going to prison and owes tens of thousands of dollars in unpaid taxes.

Ross was hounded by protesters as she entered federal court.

According to court papers, Ross paid taxes on her base income as a Lackawanna County family court lawyer but did not pay taxes on the $202,000 she earned from extra billing hours.

As a family court lawyer, Ross was appointed to represent the best interest of children in custody cases.

At one point there was an investigation into possible corruption within Lackawanna County family court.

"What about the invasion of the lives that she's impacted and destroyed during her conduct that she was in control of small children?" asked Joann Bender Hunting of Scranton.

Ross only faced the federal tax charges.  In court she told a judge she's ashamed and regrets what she's done.

Her lawyer says she's studying to get her doctorate which will be on hold while she's in prison.

"It is more than we were looking for, very disappointed. We thought the circumstances were appropriate for a much lesser sentence. I disagree but obviously respect Judge Caputo's decision," said David Solfanelli, attorney for Danielle Ross.

Ross is suspended from practicing law, but in court she and her attorney made it clear she wants to work as a lawyer again someday.

Despite the protesters, some people in court agree she should go back to work.

"I was hoping for home confinement today. Maybe they'll do a motion for reconsideration because I think she's really done a lot for conflict and divorce cases that have to do with child custody issues," said Lee Morgan of Scranton.

The 26 months begins to run from March 2014.

This article from the Wilkes-Barre/Scrantion Independent Gazette examines the abuse of the juvenile justice system in Lackawanna County.  (Mike Frisch)

September 29, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 28, 2015

Reforms Proposed For New York Bar Disciplinary System

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline.

Two proposals strike me as particularly important and, in my view, should be adopted throughout these United States

Creation of a more easily accessible, searchable, consumer-friendly, statewide website geared toward the legal consumer. Critical information, such as where to file a grievance, should be available in languages in addition to English. Consideration should also be given to establishing a telephone “hot line” to accommodate individuals who do not have access to the internet.

Revision of court rules and procedures to allow “plea bargaining,” or discipline upon consent, to encourage prompt resolution of disciplinary charges, where appropriate.

A notable present flaw

The Subcommittee reviewed a survey conducted by the ABA Center for Professional Responsibility of all 50 states and the District of Columbia concerning the stage of a disciplinary proceeding at which the process becomes open to the public. Although the nuances may differ, the vast majority of jurisdictions open proceedings upon the filing of a formal charge following a finding of probable cause. New York is one of only 9 jurisdictions which do not permit public dissemination of information concerning disciplinary proceedings until, at the earliest, a recommendation that discipline be imposed, and usually upon a final adjudication.

While the Report does not advocate for a single enforcement mechanism to replace the present Departmental disciplinary apparatus, it does argue for uniformity of approach in proposing

Approval by the Administrative Board of the Courts, and by each Department of the Appellate Division, of statewide uniform rules and procedures governing the processing of disciplinary matters at both the investigatory and adjudicatory levels, from intake through final disposition, which strike the necessary balance between facilitating prompt resolution of complaints and affording the attorney an opportunity to fairly defend the allegations. These new rules and procedures should include uniform discovery rules and information-sharing for attorneys who are the subject of a disciplinary complaint. This recommendation is of the highest priority and a firm deadline for adoption should be established.

Also noteworthy is the singling out of one particular type of misconduct

It is the position of this Commission that the Administrative Board should take immediate action to ensure that judicial determinations of prosecutorial misconduct are promptly referred to the appropriate disciplinary committee. Of equal importance, given the perception or misperception, that claims of prosecutorial misconduct are routinely “swept under the rug,” the coordinator of attorney discipline, proposed earlier in this report, should compile, and release as part of an annual report, a statistical summary including, inter alia, the number of complaints of prosecutorial misconduct received and reviewed, the number resulting in public discipline and the number resulting in private discipline.

One final point re prosecutorial misconduct: It is abundantly clear from the public hearings and comments received by the Commission that there is a perception of rampant prosecutorial misconduct which is ignored by the disciplinary committees. As stated earlier, the Commission finds no support for that contention. However, given that prosecutors are public officials, and given that the public has every right to scrutinize the conduct of those it entrusts with public office, this Commission believes that in all cases in which a prosecutor is sanctioned for misconduct, even if the sanction is a private one, appropriately redacted details should be publicly released. The public must be able to make an informed judgment about whether the result of a complaint of prosecutorial misconduct is fair, whether the disciplinary committee did its job and whether the system is working.

Much to consider here but any effort to improve disciplinary process and make it more transparent is highly praiseworthy.

Will the District of Columbia ever get the message (eloquently stated by the Commission) that meaningful plea bargaining is the only way to escape its present logjam where virtually every case takes five to ten years to resolve?

I fear not. (Mike Frisch)

September 28, 2015 in Bar Discipline & Process, Current Affairs, Hot Topics, Professional Responsibility | Permalink | Comments (0)

Saturday, September 26, 2015

Death Penalty Defense Attorney Admonished

WRAL.com has the story of a misconduct finding in a disciplinary case brought against a career public interest attorney for lack of diligence in a case she won!

Rare that.

The story

A disciplinary panel of the North Carolina State Bar on Friday admonished a lawyer who participated in the first case to be heard under the Racial Justice Act.

 Cassandra Stubbs was part of a team of lawyers who represented Marcus Robinson, whose death sentence was commuted in 2012 after a judge determined race played a factor in how jurors were selected for Robinson's 1994 murder trial.
 
The State Bar responded to an anonymous complaint filed against Stubbs by charging her in March with providing inaccurate information to the judge in Robinson's hearing in violation of the rules of professional conduct for attorneys.
 
The Racial Justice Act, which state lawmakers repealed in 2013, allowed death row inmates to challenge their sentences by using statistical evidence to show racial bias during their trials. In Robinson's case, Stubbs and other attorneys gathered affidavits from blacks who were excluded from the jury, but the State Bar alleged that information contained in two affidavits didn't jibe with other evidence in the case and that Stubbs didn't try to correct them before submitting them as evidence.
 
The disciplinary panel recently determined that Stubbs had violated the rules of conduct, and the three members on Friday weighed the punishment she should receive.
 
In tearful testimony, Stubbs said "I respectfully disagree" with the State Bar's allegations and panel's ruling, noting that she was on maternity leave at the time the affidavits were drafted and simply reviewed them.
 
She said the charges against her have been "totally devastating," saying that she has built her legal career on hard work and integrity.
 

The charges go to "things that are at the heart of what I consider to be who I am as a person and who I am as a lawyer," she said. "This process has been really difficult for me because it's so antithetical to the kind of lawyer that I want to be and try hard to be."

 Superior Court Judge Greg Weeks said the questionable affidavits played no role in his decision to overturn Robinson's death sentence.
 
Weeks praised Stubbs' work in a letter to the disciplinary panel, as did dozens of other defense lawyers, some of whom attended Friday's hearing.
 

"Cassie is one of the most diligent attorneys I know," attorney Brian Stull said.

 "I consider her to be one of the best of the best. Her ethics are impeccable. She's an absolute beacon of integrity," attorney Jay Ferguson said.
 
"The first thing I thought of when I read those letters is how many letters would I get, and I can tell you I wouldn't get 59," said Donald Prentiss, chairman of the disciplinary panel.
 
After more than an hour of deliberation, the panel decided to hand out the lowest possible level of discipline by formally admonishing Stubbs for her actions.
 
Stubbs' lawyers had pushed for a simple warning to her and now must decide whether to appeal the discipline.
 
Gretchen Engle, another attorney for Robinson, faces similar allegations, but the State Bar hasn't heard her case yet.
 
The news report also links to a video of the sanction phase of the disciplinary hearing.
 
The testimony of the accused attorney takes approximately the first hour. After watching her testify, my view that this prosecution (based on an anonymous complaint) never should have been brought is strongly reinforced. 
 
The attorney was accused of "lack of diligence" because two inaccurate affidavits were filed in a case. The judge concluded that the affidavits were immaterial. There was never even a hint of suggestion that the attorney engaged in knowing misconduct.
 
If an attorney violated ethics rules every time an affidavit was deemed to be inaccurate, we would be a country full of admonished lawyers. 
 
WRAL also reported that charges against a second attorney were not sustained. And, in the video linked to that story, it  is noted that prosecutors in the underlying case also submitted inaccurate affidavits (the exact charges brought against the defense attorneys) but have not been prosecuted by the State Bar.
 
How interesting.

 

Our prior coverage is linked here and  here. (Mike Frisch)

September 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 25, 2015

Do Not Stand At My Grave and Weep

The Illinois Supreme Court has accepted the consent disbarment of an attorney who justified his lapse in responding to discovery by falsely claiming that his mother had died.

The motion by Keith Joseph Hays to strike his name from the roll of attorneys licensed to practice law in Illinois pursuant to Supreme Court Rule 762(a) is allowed, effective immediately.

From the complaint

On October 27, 2011, Respondent filed a response to  Jackson's motion for sanctions and for default judgment...in which Respondent admitted that he "could have done a better job  responding to the discovery in this case," but requested that Jackson's motion  be denied. In that response, Respondent made the following statements:

" 11. As Plaintiff's counsel was told several  times, on September 9, 2011, the undersigned's single mother was killed in a  violent car accident in the state of Colorado.

12. The violence of the car accident was not what  killed her, instead it was the fire and smoke inhalation from the resulting  conflagration.

13. She died intestate with a lease, bills, car and  pets and no family in the state where she resided.

14. The undersigned was left scrambling between  Indiana, Colorado and Idaho for weeks trying to get his mother buried, her  estate resolved and her pets adopted."

Respondent's statements described...above were false, and Respondent knew they were false, because:

  1. Respondent's mother had not been killed in a car accident, nor had she been involved in a car accident at that time;

  2. Respondent's mother was alive; and

  3. Respondent was not "left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted."

I guess its marginally better than blaming your mother for misappropriation. (Mike Frisch)

September 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Conviction Reversed Due to Prosecutor- Juror Ties

The Kentucky Supreme Court has reversed the wanton murder conviction of two defendants because the trial court allowed two jurors with ties to the prosecuting attorney to sit.

Appellants maintain that the trial court abused its discretion in this case by refusing to excuse potential jurors 27 and 75. Both of these jurors acknowledged during voir dire a significant relationship with Lee Tobbe, an attorney of long standing in Wayne County, it appears, and the assistant prosecutor for this case. Both jurors had been represented by attorney Tobbe in the past, and both had a more immediate connection with him. Juror 27, who owned and managed residential rental properties in Monticello, stated that attorney Tobbe was then representing his, Juror 27's, son. We discuss Juror 27 below, but begin with Juror 75 for obvious reasons.

The obvious reason was that the juror could not state that he could be impartial 

The prosecutor...asked whether Juror 75's relationship with attorney Tobbe would make it difficult for the juror to vote to acquit the defendants even if he felt the Commonwealth had failed to prove its case, and Juror 75 responded, "I really can't answer that. I'm trying to be honest with you." These exchanges occurred before the entire venire. At that point the prosecutor declared himself at a loss as to what else to ask Juror 75, said that he was sure defense counsel would have some questions for the juror and then moved on to other topics. Inexplicably, Appellants declined to question Juror 75 further regarding attorney Tobbe, so there the matter stood until the very end of voir dire.

Defense counsel did seek a peremptory challenge at the end of voir dire.

The other juror

 Unlike prospective Juror 75, prospective Juror 27 indicated that neither attorney Tobbe's prior representation of him, nor Tobbe's then current representation of Juror 27's son would have any bearing on the juror's ability to weigh the evidence. The cases cited above, however, make clear that the prosecutor's on-going representation of potential Juror 27's son gives that juror a close and presumptively disqualifying relationship with the prosecutor, a relationship so apt to produce bias that even confident assurances to the contrary by the juror cannot erase significant doubts about his impartiality.

Juror 27 also had ties to the case. (Mike Frisch)

September 25, 2015 in Hot Topics, The Practice | Permalink | Comments (0)

Thursday, September 24, 2015

Back To The Lawyer Referral Drawing Board

The Florida Supreme Court has rejected proposed amendments to its rules governing for-profit lawyer referral services

We have carefully reviewed the final report of the Special Committee and conclude that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses. We recognize that the anecdotes presented in the final report do not represent every non-lawyer-owned, for-profit referral service; however, the potential harm is too great for us to approve the amendments proposed by The Florida Bar. These amendments would not cure the multiple concerns highlighted by the Special Committee, but would allow the troubling incidents discussed in the final report to continue. The dangers that nonlawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar.

Accordingly, we reject the current petition and instruct The Florida Bar to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required. While the action we take today may be viewed by some as severe, we conclude it is absolutely necessary to protect the public from referral services that improperly utilize lawyers to direct clients to undesired, unnecessary, or even harmful treatment or services. Our action today will also prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.

Justice Canady

I concur with the majority’s rejection of the proposal submitted by the Board of Governors. But I dissent from the majority’s direction that the Bar propose amendments “that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” Majority op. at 6. Instead, I would direct that the Bar propose amendments incorporating the proposals recommended by the Special Committee on Lawyer Referral Services.

The Florida Bar is directed to file a new per ition by May 2016. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Never Mind

The Indiana Supreme Court withdrew a recently-ordered suspension for an attorney's failure to respond to an order to show cause in a disciplinary matter.

Turns out he did respond

On July 17, 2015, this Court ordered Respondent to show cause why he should not be immediately suspended from the practice of law for failure to cooperate with the Commission’s investigation of grievances. On September 18, 2015, this Court issued an order suspending Respondent from the practice of law for noncooperation with the Commission, effective immediately. That order noted that “Respondent has not submitted a response to the Court’s order to show cause.”

It has now come to the Court’s attention that Respondent in fact did tender to the Clerk a response to the show cause order, but that response was not filed by the Clerk, noted on the chronological case summary, or transmitted from the Clerk to the Court. See Clerk’s “Affidavit,” attached to this order.

Being duly advised, the Court hereby RESCINDS and WITHDRAWS the order of suspension issued in this cause on September 18, 2015. The Clerk is directed to make an appropriate nunc pro tunc entry on the Roll of Attorneys removing reference to Respondent’s being suspended on September 18, 2015.

(Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Unwitting Madoff Facilitator Disbarred

The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of federal felony offenses

On June 23, 2014, in a criminal action entitled United States v Konigsberg, commenced in the United States District Court for the Southern District of New York under Docket No. 10 Cr. 228, the respondent entered a plea of guilty, before United States District Court Judge Laura Taylor Swain, to one count of conspiracy to falsify books and records of a broker-dealer and of an investment advisor, to obstruct or impede the lawful governmental functions of the Internal Revenue Service in the ascertainment, assessment, computation, and selection of income taxes in violation of 18 USC § 371; one count of falsifying books and records of a broker-dealer in violation of 15 USC §§ 78q(a) and 78ff, 17 CFR 240.17a-3, and 18 USC § 2; and one count of falsifying the books and records of an investment advisor in violation of 15 USC §§ 80b-4 and 80b-17, 17 CFR 275.204-2, and 18 USC § 2. As part of the plea agreement, the respondent agreed to forfeit the sum of $4,400,000 to the United States.

AP reported on the criminal case

A jubilant accounting firm executive who worked for some of Bernard Madoff's most important clients emerged from a courtroom hugging family and friends on Thursday after a judge spared him prison time and agreed not to require post-sentence supervision.

The leniency shown 79-year-old Paul Konigsberg means he can visit two of his grandchildren in Moscow as soon as he gets a new passport.

Konigsberg pleaded guilty last year to conspiracy and falsifying books and records, admitting that he unwittingly had a role in Madoff's multi-decade fraud by agreeing to let the Ponzi scheme's employees change trading records on some of his client's financial statements.

U.S. District Court Judge Laura Taylor Swain said what Konigsberg did was "seriously wrong" but agreed with prosecutors and Konigsberg that he did not know Madoff was defrauding thousands of investors of nearly $20 billion.

She said Konigsberg, through his cooperation, earned leniency from federal sentencing guidelines that called for at least eight years in prison. She also rejected a request by a court-appointed monitor recovering money for Madoff investors who had asked that Konigsberg be required to cooperate further with his office as part of his sentence.

Assistant U.S. Attorney David Abramowicz said Konigsberg's help included providing information that explained how Madoff and his workers dealt with his most favored investors.

Konigsberg never was employed by Madoff, though he did give him tax advice. Plagued by his association with Madoff, he sold his Manhattan accounting and consulting firm four years ago.

Konigsberg, who fought back tears as he addressed the judge before the sentence was announced, called Madoff "truly a monster."

"It is an extremely sad day in my life," he said in remarks that left his lawyer, Reed Brodsky, in tears.

But the announcement of the sentence left him giddy as he hugged many of the more than 60 family and friends who applauded after the court proceeding ended.

His supporters included Stephen Konigsberg, who came to the sentencing from Moscow, which his father hopes to visit soon to see two of his grandchildren, ages 6 and 9.

"It's a wonderful result and a just result," the son said outside court.

Paul Konigsberg declined to comment, except to chuckle at the impression his lawyer had left when he told the judge that his client is so charitable that he once told everyone on his plane to take off their clothes to give to people in Cuba before flying out of that country.

"We left with the shirts on our backs," he said with a smile.

The 77-year-old Madoff is serving a 150-year prison sentence after revealing the fraud in December 2008.

(Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Court Suspends Attorney Who Blamed Mother For Misconduct

The Illinois Supreme Court adopted the three-year suspension recommendation of its Review Board in a matter described in the Board's report

Respondent was licensed in 2003 when he was 50 years old. He has been a sole practitioner with a general practice in Carpentersville, Illinois. He is also a Certified Public Accountant.

In a five count Complaint, the Administrator charged Respondent with misconduct arising out his representation of clients who planned to open and operate a nightclub in Florida called Dixie Roadhouse (Counts I-IV) and of an individual in the purchase Shell gas station (Count V). In both client matters, the Administrator charged Respondent with misappropriating funds given to him to hold in escrow and with making false statements to others about his handling of the funds in an effort to cover up his misdeeds.

During the course of the Administrator's investigation, Respondent tendered to the Administrator falsified bank records purporting to show that he was properly holding the funds. When the fabrication was discovered, Respondent blamed his mother for the fabrication of the records. Respondent claimed his mother misappropriated the funds in question by transferring funds from his IOLTA account to his business account and then covered up the misuse of the funds in an elaborate scheme aided by a woman the mother met at an unspecified Kinko's copy shop.

The Hearing Board did not believe Respondent or his mother. In fact, the Hearing Board began its report by stating that they found "the testimony of Respondent and his mother, Selma Frazin, lacking in credibility and, in large part, untruthful," noting that "Respondent and Ms. Frazin have changed their stories so many times it is impossible to determine when, if ever, they are telling the truth." While Respondent claims that the Hearing Board erred in disbelieving him, we disagree. The Hearing Board was not required to accept Respondent's testimony. This Board gives deference to the Hearing Board's determinations of credibility. Moreover, the Hearing Board's findings are well supported by the record as set forth generally below and in greater detail in the Hearing Board's Report. (citations omitted)

Our earlier coverage is linked here. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Alleged Credit Report Access Leads To Bar Charges

The Illinois Administrator has filed a complaint alleging that an attorney used information obtained through discovery to illegally access a opposing party's credit history.

... through the course of pretrial discovery, Respondent obtained Jacek’s personal identifying information, including his social security number, as well as information concerning Jacek’s financial history.

On or about December 5, 2014, Respondent visited the website www.creditreport.com, an online consumer credit reporting site which allows consumers to access their own credit reports.

Pursuant to 15 U.S.C. § 1681q, any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined, imprisoned for not more than two years, or both.

On or about December 5, 2014, Respondent entered Jacek’s identifying information, including Jacek’s name, address, date of birth, and social security number, into the www.creditreport.com website for the purpose of obtaining Jacek’s credit report.

On or about December 5, 2014, Respondent obtained Jacek’s credit report from the www.creditreport.com website.

At no time did Respondent request or receive Jacek’s permission or authorization to obtain Jacek’s credit report.

On December 8, 2014, Respondent filed on behalf of Bozena four reply briefs in Cook County Circuit Case No. 2013 D 7670. The reply briefs related to petitions for Jacek to pay additional child support and contribute to various expenses. As an exhibit to each reply brief, Respondent attached a portion of Jacek’s credit report that Respondent obtained from www.creditreport.com.

 On December 11, 2014, after discovering that Respondent had obtained Jacek’s credit report without permission or authority, Jacek’s attorney, Lucas Figiel, filed an emergency motion for an order prohibiting Respondent from using Jacek’s credit report.

On December 11, 2014, after a hearing on Figiel’s emergency motion, Judge John Thomas Carr entered an order prohibiting Respondent from using Jacek’s credit report.

The underlying case involves marriage dissolution. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)