Friday, October 30, 2015
I assume that most of us try to give our law students a sense of what professional discipline really involves from the point of view of an accused attorney.
Teaching that aspect of professional responsibility has been greatly enhanced (in my view) by videos of state supreme court oral arguments.
If you want a first-rate 26 minute exposure to the reality of bar discipline, watch (and show) this case decided today by the Kansas Supreme Court.
The attorney was a public defender who lost her job and career in a series of criminal matters caused by her alcoholism. She has now been sober for 4 1/2 years and works in a grocery store.
Disciplinary Counsel and her attorney argued for a stayed suspension and immediate probation.
The attorney takes the lecturn for the last ten minutes. If you want to teach about the dangers of addiction to a practicing attorney, there is no better source. It will move the viewer to tears.
The court adopted the proposed sanction.
The misconduct involved a series of arrests, conviction and failures to report to the Bar
the respondent failed to comply with Kan. Sup. Ct. R. 203(c)(1) on four occasions. First, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (possession of cocaine) in 2010 in Kansas City, Missouri, within 14 days. Next, the respondent failed to inform the disciplinary administrator of the disposition of the possession of cocaine charge within 14 days. Third, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (driving under the influence of alcohol) in 2011 in Johnson County, Kansas. Finally, the respondent failed to inform the disciplinary administrator of the disposition of the felony driving under the influence of alcohol charge within 14 days. The respondent did not make any disclosures required by the rule until July 13, 2014. Accordingly, the hearing panel concludes that the respondent violated KRPC 203(c)(1).
The arguments also introduce the role of state bar lawyer assistance programs (link to the Kansas program here) in aiding distressed and addicted attorneys. Also note that Kansas, like many bars, offers help to law students.
Having stood in the shoes of disciplinary counsel, I applaud the fine arguments of Deputy Disciplinary Administrator Michael R. Serra and Amy E. Elliott of Overland Park, Kansas.
Also note how respectful the court is of counsel. The justices sit patiently while counsel fully argues and ask questions only when counsel is done. (Mike Frisch)
The Iowa Supreme Court has imposed an indefinite suspension of not less than 60 days of an attorney whose bipolar condition contributed to her misconduct.
She had been in solo practice.
While coping with the stress of [her husband's] immigration issue and the bipolar disorder, [the attorney] drank alcohol heavily and frequently in October 2013. Her life very quickly spun out of control, and by December her daily routine consisted only of buying alcohol, drinking alcohol, and sleeping. She did not open her mail, and she stopped responding to all communication from clients, opposing attorneys, court staff and judges, and the Board.
In January 2014, [she] sought medical assistance for detoxification. She received inpatient alcohol treatment in Waterloo and outpatient treatment in Decorah. In August 2014, [she] moved to West Des Moines so that she could be closer to a more robust support system and live in a bigger market for legal employment. She attends weekly support group meetings and has become an active church congregant there. She has also received helpful assistance from the Iowa Lawyers Assistance Program (ILAP). She has not consumed alcohol in over a year and has not practiced law since fall 2013. She currently holds a part-time job in retail customer service, but she hopes to resume practicing criminal law in the near future as an assistant county attorney, a private criminal defense attorney, or a public defender.
There were four counts of misconduct
The [disciplinary] commission found [her] lack of disciplinary history, alcoholism, and bipolar disorder to be significant mitigating factors. It also commended her for taking full responsibility and expressing remorse.
The court noted that a dozen clients had been affected by the ethics lapses. She must comply with treatment conditions to secure reinstatement. (Mike Frisch)
A lawyer already suspended for misconduct and other reasons got a nine-month suspension from the Wisconsin Supreme Court.
In 2005, Attorney Smoler asked the S.s if they would loan her $50,000 so that she could pursue a medical malpractice lawsuit on behalf of another client, C.J., that would be brought against one of the same doctors involved in the S.s' case. The S.s agreed to loan the $50,000 to Attorney Smoler. To memorialize the loan, Attorney Smoler drafted a document entitled "Loan/Promissory Note" which set forth the terms of the loan. The loan called for five and one-half percent interest annually or statutory interest as awarded by the court. The loan was for two years. Attorney Smoler did not put any language in the note providing the S.s with an opportunity to speak with alternate counsel about the loan. The loan was signed by the parties on August 31, 2005. Attorney Smoler was paid $50,000 on September 13, 2005. She deposited the money into her business checking account.
Two years passed without Attorney Smoler making a payment to the S.s on the loan. The S.s agreed to extend the terms of the note one more year at Attorney Smoler's request. By October 2009, no payments had been made on the loan. The S.s hired an attorney who demanded payment. Attorney Smoler failed to pay the loan in response to a demand letter from the S.s' counsel.
She responded to the bar matter by asserting an inability to repay the loan. There were misconduct findings in another medical malpractice case.
The referee was puzzled
In discussing the appropriate sanction, the referee noted that Attorney Smoler apparently practiced at a very competent and accomplished level for many years. The referee said, "No facts of record explain her sad story. It is as though she imploded all at once, without warning, and without reason." The referee went on to comment, "For an attorney with an otherwise unblemished record, Smoler's slide into the dark side seems incredibly unfortunate. . . . . Smoler's failure in general to supply information to OLR in the course of the investigation into both client matters does not help the situation and only further indicates her inability to function at a very basic level."
The court ordered restitution. (Mike Frisch)
Thursday, October 29, 2015
A North Carolina attorney has been charged with ethics violations in three counts, the last of which is worthy of note.
The attorney is alleged to have filed a civil complaint on behalf of a client, responded to a motion to dismiss and handled an appeal to the state Court of Appeals.
He is alleged to have made a number of statements in the pleadings, accusing the court of "overwhelming incompetence and ignorance... I felt just as I imagine I would have over a century ago arguing to said court that slavery was bad labor relations policy... [the court showed] a stubborn arrogance and ignorance...[a judge] literally threw a temper tantrum...As I felt like I was attempting to teach physics to a class of unruly third graders."
In another brief: "the lack of intellectual functioning and overt partiality of this panel...being readily apparent but, acting like mentally challenged cheerleaders, knowing they wanted to motivate their team to victory, but not sure how to accomplish the goal... [the judge] was assuming the role of 'house negro' for purposes of this matter...Sounding more like 'Beaver Cleaver' than any person has a right to..."
And another brief: "the instant panel will glad [sic] play thee [sic] blind mice and [Judge] will serve the historical role played by Monica Lewinsky for President Clinton for the current governor of North Carolina... if these judges are intent upon making the [court] a literal 'whippin boy' for special interests, they are welcome to kiss my red white and blue American male ass."
An Illinois Hearing Board proposes a reprimand
Respondent, an Assistant State's Attorney, was charged with making false statements and failing to disclose exculpatory information to the defense. In an interview with Respondent, about two weeks before trial, the State's key witness stated that, in a prior description of the incident, he exaggerated the defendant's participation because of threats from gang members. Respondent did not inform defense counsel of that statement, although defense counsel learned of that statement, from another source, the day the trial began and was aware of other inconsistent statements by the witness. At trial, when the witness referred to gang threats, Respondent stated she was hearing about such threats for the first time. After trial, the defendant was acquitted.
Respondent testified she had forgotten about the statement the witness made during the interview. The attorney representing the witness testified that when he reminded her of the statement Respondent appeared genuinely surprised. The defendant's attorney, who was present at the time, concurred. Both attorneys believed Respondent's misstatement was inadvertent.
The Hearing Board concluded the Administrator did not prove Respondent knowingly made false statements to the court or intentionally engaged in any dishonest conduct. The Hearing Board found Respondent improperly failed to disclose exculpatory information to the defense by not informing defense counsel of the statement made during the interview.
The Hearing Board determined a violation occurred that warranted some discipline. Given all the circumstances, including Respondent's state of mind, the lack of prejudice and the significant mitigating factors, the Hearing Board concluded Respondent should be reprimanded.
No suspension because
there are significant mitigating factors. Based on the evidence presented and our observations of her at the hearing, Respondent impressed us as an ethical attorney, decent and hard-working, committed to serving the public who has a good understanding of the responsibilities her role entails. Testimony leading to that impression came not only from Respondent's supervisors, but also from attorneys who had regularly opposed her in litigation over time. We considered that testimony very significant in mitigation. See Kakac, 07 SH 86 (Review Bd. at 20). We do not regard this incident as representative of Respondent's usual conduct. We also believe this experience has indeed been a difficult one for Respondent and that she is highly unlikely to engage in misconduct in the future.
From the web page of Pennsylvania's Disciplinary Board
By a 2-1 decision, the Commonwealth Court ruled that the Unemployment Compensation Board of Review erred in applying the Pennsylvania Rules of Disciplinary Enforcement to prevent a suspended lawyer from representing a client in an administrative hearing before an unemployment compensation referee.
In the case of Powell v. Unemployment Compensation Board of Review, the claimant appeared at the first hearing with a suspended attorney, who was allowed to represent the complainant consistent with 43 P.S. §774, which states, “Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representative.” Neither the employer nor the referee objected to the suspended attorney’s participation. The hearing was continued due to an issue with subpoenas.
Before the hearing resumed, the employer retained counsel who notified the Board that he objected to the suspended attorney’s involvement, citing Rule 217(j)(4) of the Rules of Disciplinary Enforcement, which prohibits a formerly admitted attorney from “appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.” When the hearing was rescheduled, the suspended attorney and the claimant were notified the former attorney would not be allowed to appear on behalf of the claimant, who was given thirty days to obtain a new attorney. At the resumed hearing, the claimant appeared with a new representative, who was also a suspended attorney. The new representative was allowed to attend as an advisor but not to represent the claimant. The claimant presented his own case and received an adverse decision. He appealed to the UCBR, which upheld the decision, concluding that Rule 217(j)(4) prohibits a suspended attorney from representing a client before a UC referee.
The Commonwealth Court reversed and remanded the case to the UCBR, in a decision written by Judge P.Kevin Brobson. The opinion noted that the Supreme Court of Pennsylvania ruled in the case of Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162 (Pa. 2007), that representation in unemployment compensation proceedings is not the practice of law. The Commonwealth Court then ruled that only the Disciplinary Board and the courts have the power to enforce the Rules of Disciplinary Enforcement, and that the UCBR could not apply the Rules of Disciplinary Enforcement to override 43 P.S. §774 as to the particular class of nonlawyer representatives who are formerly admitted attorneys.
The Ohio Supreme Court has publicly reprimanded an attorney
disciplinary counsel, charged Broyles with professional misconduct. Broyles had represented The Bank of New York Mellon (“NY Mellon”) at a default hearing in a foreclosure case and obtained a judgment against Felix and Barbara Aponte. Approximately nine months later, Broyles was retained by the Apontes to defend them in the foreclosure action filed by NY Mellon. Broyles subsequently filed a motion for relief from judgment and other pleadings in the case, arguing that the default judgment he had previously obtained against the Apontes should be vacated. NY Mellon did not give informed consent to allow Broyles to represent the Apontes.
The conduct violated Rule 1.9. (Mike Frisch)
Wednesday, October 28, 2015
An opinion from the Minnesota Supreme Court
Appellant Stowman Law Firm, P.A. (Stowman), which represented a client pursuant to a contingent-fee agreement, voluntarily withdrew from the representation of the client when efforts to settle the case failed. The client retained substitute counsel who then successfully settled the case. Stowman brought an action to recover in quantum meruit the value of the services provided prior to the withdrawal. Following a bench trial, the district court found that Stowman failed to establish good cause for withdrawal and, therefore, was not entitled to recover in quantum meruit. The court of appeals affirmed. We conclude that an attorney may withdraw from a contingent-fee agreement with or without cause, provided that the withdrawal satisfies the rules of professional responsibility. But the attorney must establish that the withdrawal is for good cause in order to recover in quantum meruit the reasonable value of the services rendered prior to withdrawal. Because Stowman failed to establish good cause, we affirm.
We conclude that an attorney who withdraws for good cause from representation under a contingent-fee agreement may recover in quantum meruit the reasonable value of services rendered prior to withdrawal, provided that the attorney’s recovery in the event of withdrawal for good cause is not otherwise addressed in the contract and the attorney satisfies the ethical obligations governing withdrawal from representation.
The New York Appellate Division for the First Judicial Department has held that sanctions against one of two attorneys who represented an incapacitated person were proper.
The court remanded in order to grant the firm fees.
Although it is a primary focal point of the dissent, which believes that neither Citak should be sanctioned for his "missteps" and that the court below is to blame for everything that transpired, the issue of whether the court erred in entering the coguardianship order, without either confirming the consent of Dr. Dworecki or conducting a capacity hearing, is not before us. Indeed, the attorney who replaced Citak & Citak as counsel for Dr. Dworecki represented to the court at the sanctions hearing that she discussed the temporary coguardianship at length with Dr. Dworecki and "was very confident . . . that she had no desire to appeal." Nor, under the particular circumstances of this case, where Donald initiated, participated in and consented on behalf of Dr. Dworecki to the procedure adopted by the court, then denied his role and falsely accused the court of wrongdoing and fraud, would any such error, in and of itself, excuse the sanctionable conduct at issue, including Donald's material false statements in support of his applications.
in July 2012 petitioner, as Vice President of Nazi Victims Service Programs of Self Help Community Services, Inc. (Self Help), sought to have a guardian appointed for the person and property of Dr. Dworecki, age 94. Self Help had been providing community based services to Dr. Dworecki since 2002 and was concerned that her short term memory, judgment, and ability to perform the activities of daily living had been declining and that she was refusing to obtain necessary additional home care services. This included Dr. Dworecki's inability to cook, clean her apartment and person, and manage her medications by herself.
Dr. Dworecki's friend and financial advisor, Edward Muster, procured Citak & Citak to represent her in opposing the petition. Mr. Muster is the primary beneficiary under Dr. Dworecki's Last Will & Testament, executed on August 11, 2010. Although Mr. Muster claims that he was not present when the will was executed, he states in an affidavit that "[p]rior to the preparation of the Will, [Dr. Dworecki] told me what she wanted included in the Will. As on other occasions, I followed [her] instructions." Thus, it appears that he was responsible for its preparation..
The Citaks also acknowledge that on August 7, 2012, after being retained to defend this proceeding, they prepared, and filed in the Surrogate's Court, a new will for Dr. Dworecki which did not materially change the terms of the 2010 will.
The attorneys were accused of filing a frivolous appeal.
The record amply supports Supreme Court's finding that filings and remarks made by counsel during oral argument contained a number of inaccurate and outright false material statements in support of the two orders to show cause, accusing the court of misconduct and dereliction in its duties that were devoid of merit, and undertaken "primarily . . . to harass or maliciously injure another," thereby warranting the award of costs and sanctions for engaging in frivolous conduct (22 NYCRR 130-1.[1c]). What is disturbing is the fact that the court order appointing a temporary guardian for the AIP, and the focus of counsel's attack, was consented to by Dr. Dworecki and counsel before the court. It should be noted that following the April 30, 2013 court order imposing costs and/or sanctions, the Citak firm voluntarily withdrew as counsel to Dr. Dworecki.
At the sanctions hearing, it was conceded by counsels' attorney that statements accusing the court of fraud were unjustifiable, acknowledging "the inappropriate style and the disrespectful tone" of the submissions. Nevertheless, it is equally clear that the statements are attributable to Donald Citak, and there is a lack of record support for the imposition of an equivalent sanction against Burton Citak, who neither argued before the court nor submitted an affirmation in connection with the respective applications. Finally, further proceedings are required to determine the appropriate costs to be awarded (22 NYCRR 130-1.2), to reduce the award of costs and sanctions to a judgment and to set the reasonable amount of legal fees payable to Citak & Citak for their representation of Dr. Dworecki prior to the filing of the frivolous orders to show cause.
An impassioned dissent
The first error, which is not the focus of this appeal but which informs all else that happened here, was the unlawful imposition of an article 81 guardianship on a 94-year-old Jewish survivor of Nazi Germany against her will, without her consent and without a hearing.
The second error was made when the court imposed punitive sanctions and costs upon the elderly woman's lawyers for protesting the court's action in their motion papers. And, while these lawyers used strong words to convey their opposition to the unlawful order, they were only that — words — and did not cause any disruption to the court other than to point out the necessity of a statutory-mandated hearing to protect their client's due process rights. For this, they were hammered with severe costs and sanctions by an irate court...
In its haste to impose its own sense of what would improve the life of the Alleged Incapacitated Person (AIP), Supreme Court ignored the AIP's repeatedly expressed, deep desire for self-determination and independence. The court simply failed to appreciate or take into account the fears and concerns of this then-94-year-old German-Jewish Holocaust survivor, Dr. Eva Dworecki, whose family had been forced to flee Germany, surrendering all of their assets to the Nazi government, and who as a result remains suspicious of forced intrusions and financial claims asserted by authorities. She explicitly did not want strangers, appointed by government authorities, taking control of her assets and her personal decisions. Now, at the end of her days, she is being met with a dazzling array of providers eager to "assist" her, for which they can claim payment from her carefully conserved estate.
The majority's assertion that it "fully appreciate[s] [Dr. Dworecki's] fears and concerns" is a hollow protest. Supreme Court failed to consider the unique perspective Dr. Dworecki brought, as a result of her family's experience, to the type of "assistance" at issue here. While some elderly people might welcome such attention, assistance, and intrusion, Dr. Dworecki did not; her past experiences made her ambivalent and fearful about giving up control of her assets and decision-making. Not only did Supreme Court ignore the doubts, fears, ambivalence and concerns she expressed openly to the court, but, now, the majority is perpetuating that lack of sensitivity.
The dissent recounts the life story of Dr. Dworecki's father - a wealthy winner of the German equivalent of the Medal of Honor who had prospered until the Nazis gained power. The family was able to flee in 1939.
A person who has not been determined to be incapacitated has every right to know the expenditures being made from her funds by someone else. The paternalistic approach suggested by the guardian and approved by the court may have been intended as kindness, but it nevertheless amounted to a fraud upon Dr. Dworecki. Indeed, this Court has disciplined an attorney for a well-meaning misrepresentation to his client, notwithstanding the advice of the client's psychiatrist that it would be in the client's interest that the attorney do so (see Matter of Rochlin, 93 AD2d 683 [1st Dept 1983]); the court's approval of the guardian's expressed intent to avoid disclosing expenditures because Dr. Dworecki might become upset, a lay conclusion unsupported by psychiatric or other expert opinion, is no more justified when sanctioned by the court.
Kathleen Maloney does her usual excellent work in summarizing a bar discipline case on the web page of the Ohio Supreme Court
An attorney from Independence will serve a one-year suspension with six months stayed for failing to keep his cousin informed about matters related to a trust he managed for her. The Ohio Supreme Court imposed the sanction today in a 5-2 decision.
Robert J. Belinger created a living trust in 1992 for his aunt and uncle. During the times relevant to this case, Belinger served as the trustee and managed the trust’s assets. The surviving beneficiary of the trust is Sister Barbara Cervenka, Belinger’s cousin and a Dominican nun who lives in Michigan.
In 2004, Belinger loaned $100,000 from the trust to his sons’ business. He informed Cervenka that he had made a loan, but didn’t indicate in a letter he sent her that the loan was unsecured and that he had personally guaranteed it and had a financial interest in the company. Belinger also made a loan from the trust to a friend, and that loan had a $350,000 balance in 2004. Both loans went into default.
Belinger declared bankruptcy personally in October 2010, but did not tell Cervenka, failed to notify her in writing that the trust was a creditor in his bankruptcy, and neglected to return her calls in a reasonable time.
Cervenka hired a new attorney in Michigan to handle the trust and fired Belinger as trustee. They did not discover the defaulted loans until April 2011 and learned even later that year that Belinger had filed for bankruptcy.
Cervenka sued Belinger in Cuyahoga County for breaching his duties as trustee, and the cousins ultimately agreed to a settlement.
Belinger and the Cleveland Metropolitan Bar Association, which filed the charges against the attorney, agreed during the disciplinary process that he did not keep Cervenka informed about matters important to the trust or details related to the loans. He also failed to tell her about litigation affecting the trust.
The panel of the disciplinary board that considered the case identified several mitigating factors, found no aggravating circumstances, and suggested a public reprimand. However, the board rejected the panel’s conclusion that Belinger lacked a selfish or dishonest motive. Taking assets from Cervenka’s trust to loan money to family and friends was an aggravating circumstance, the board found. It instead recommended an increased punishment of a one-year suspension with six months stayed if Belinger commits no further misconduct and pays the costs of the disciplinary proceedings.
In a per curiam opinion, the Court’s majority adopted the board’s findings and recommended sanction.
Joining the majority were Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O’Neill.
Chief Justice Maureen O’Connor and Justice Judith L. French dissented and would have suspended Belinger for one year with no time stayed.
Law360 has a report on an opinion of the Texas Court of Appeals, Third District holding that a complainant in an attorney discipline matter has no legal right to see Disciplinary Counsel's recommendation for dismissal of the complaint.
Even if we were to conclude that Doe’s claims fall within this exception to sovereign immunity, however, Doe has failed to allege a legally cognizable interest in obtaining a copy of [Disciplinary Counsel] Acevedo’s recommendation. Doe argues that he “properly alleged his specific and legally cognizable interest affected by the State Bar Defendants’ actions.” However, Doe has asserted no statutory or other basis for his contention that he is entitled to a copy of Acevedo’s recommendation. He cites section 81.072 of the Government Code, which requires the Texas Supreme Court to establish standards and procedures that provide for a full explanation to each complainant on dismissal of a complaint. See Tex. Gov’t Code § 81.072(b)(2). Yet he points us to no statute or rule requiring or even authorizing the Chief DisciplinaryCounsel to provide the complainant with a copy of the recommendation to the summary disposition panel. It is undisputed that Rule 2.16 does not require disclosure, and we are unpersuaded by Doe’s argument that he is somehow entitled to disclosure merely because the confidentiality rule does not expressly prohibit disclosure to complainants.
Doe claims that Acevedo’s denial of his request for a copy of her recommendation has prevented him from being able to review Acevedo’s finding and evaluate how his complaint failed to meet the standard of just cause, “render[ing] futile any effort to correct [his] grievance in a new filing.” But he has cited to no authority, and we know of none, for the proposition that Doe has a statutory or common law cause of action encompassing the legal right to demand documentation from the State Bar Defendants in order to assist him in preparing a potential future complaint against an attorney. Even if we were to construe the confidentiality provision of Rule 2.16 as inapplicable to Doe, he has not alleged, nor can he allege, any legal basis supporting his right t0 access or view Acevedo’s recommendation to the summary disposition panel.
If Texas bar rules deny a complainant the right to see how the bar handled the complaint, those rules require immediate change.
So long as lawyers enjoy the privilege of self-regulation, don't bet on change.
Time for a public uprising demanding meaningful improvement of bar discipline. (Mike Frisch)
Tuesday, October 27, 2015
A recent notice from the California State Bar
Orange County attorney James Mazi Parsa is facing disbarment for abandoning numerous clients in October 2009 after he was criminally convicted for unlawful sexual intercourse with a 17-year-old employee.
State Bar Court Hearing Judge Pat McElroy found that Parsa, 50, [bar #153389], abandoned 43 clients and failed to return their unearned fees of more than $120,000. Parsa accepted new clients and their fees even when he knew his license was about to be suspended in connection with the criminal conviction. He failed to notify his clients that he intended to withdraw and would not be pursuing their loan modification applications.
Parsa has been ineligible to practice law since October 2009, when the State Bar Court put him on interim suspension pending a hearing to determine the appropriate discipline for the 2001 misdemeanor conviction. In 2014, he received a two-year suspension of his law license.
His pending disbarment stems from the abrupt closure of his Costa Mesa law practice at the time of his interim suspension. The practice had about 4,500 clients and 100 employees, primarily handling loan modification cases. In addition to the 43 clients named in the court decision, another 1,130 people have filed State Bar complaints against Parsa.
Parsa’s disbarment is not final until approved by the California Supreme Court. Once that happens, the State Bar’s Client Security Fund can begin processing claims for reimbursement.
Consumers who have been defrauded by a California attorney may file a complaint with the Office of Chief Trial Counsel or call 800-843-9053. The State Bar also maintains the Client Security Fund to reimburse eligible victims.
The Los Angelos Times reported on the criminal offense. (Mike Frisch)
From Kathleen Maloney on the web page of the Ohio Supreme Court
The Ohio Supreme Court today suspended a former Butler County assistant prosecutor for one year because he ordered criminal charges that were not considered by the grand jury to be added to an indictment.
While the disciplinary board recommended that six months of the suspension be stayed, the Court in a 5-2 decision rejected the stay and imposed a full one-year suspension against Jason R. Phillabaum of Cincinnati.
Attorney Added Charges to Indictment
In December 2010, another assistant prosecutor submitted charges to a Butler County grand jury against a defendant accused of aggravated robbery and felonious assault. Assistant Prosecutor Phillabaum reviewed the indictment a week later and told a legal assistant to add gun specifications to it. The original prosecutor refused to sign the altered indictment, but Phillabaum signed it.
Based on his conduct, Phillabaum was indicted in May 2012 for forgery, dereliction of duty, tampering with records, interference with civil rights, and using a sham legal process. He pled guilty to dereliction of duty. The court sentenced him to 90 days of suspended jail time if he completed one year of community control and did 75 hours of community service. Phillabaum has complied with this sentence.
Court Increases Punishment
The attorney disciplinary board determined that Phillabaum also violated four professional conduct rules, including one prohibiting lawyers from lying to a tribunal and another that bars conduct that harms the administration of justice.
In a per curiam opinion, the Court adopted the board’s factual findings and determination of misconduct. However, the Court instead concluded that a suspension for a full year was appropriate.
Joining the majority were Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O’Neill.
Justices Paul E. Pfeifer and Judith L. French dissented and would have imposed the board-recommended suspension of one year with six months stayed.
The misconduct as described in the opinion
On December 13, 2010, assistant prosecutor Josh Muennich presented the case against Tyree Johnson to a Butler County grand jury in Phillabaum’s absence. He instructed the grand jury to vote on charges of aggravated robbery and felonious assault, but did not present any evidence on any gun specifications related to the crime and did not instruct the jury to vote on any such specifications. Phillabaum reviewed the indictment on December 20, 2010, and instructed a legal assistant in the prosecutor’s office to add gun specifications to the indictment. The legal assistant told him that the gun specifications had not been included because Muennich had not presented them to the grand jury, and for that reason she felt uncomfortable adding them to the indictment. But when Phillabuam insisted, she complied. Muennich refused to sign the indictment containing the gun specifications, since he had not presented that evidence to the grand jury, but Phillabaum signed it, knowing that it contained a false statement and would be filed with the clerk of courts. After Phillabaum’s conduct came to light, the Butler County Prosecutor presented the case to the grand jury a second time and obtained a superseding indictment that included the firearm specification.
The West Virginia Supreme Court of Appeals has held that an employee of The Marshall University failed to establish an invasion of privacy claim on these facts
Approximately twelve years ago, petitioner underwent a mastectomy and reconstructive surgery on her left breast that included the insertion of an implant. Several years later, petitioner grew concerned about the appearance of the reconstruction and the possibility that the implant had ruptured or shifted. In October of 2010, petitioner consulted with Adel A. Faltaous, M.D., a plastic surgeon employed by respondent, to inquire about whether she should undergo corrective surgery. As part of petitioner’s examination, photographs were taken of her naked breasts, from “just below the breasts to about the neck.” Petitioner’s face was not photographed, but her name was written on the picture. The purpose of the photographs was, in part, to obtain authorization from petitioner’s insurance carrier for the proposed surgery. Petitioner understood that the proposed surgery would have to be preauthorized by her insurance company.
A few days later, one of Dr. Faltaous’s employees sent a letter to petitioner’s employer seeking preauthorization for petitioner’s surgery because the employee mistakenly believed that such requests were to be sent there. The letter included the aforementioned photographs of petitioner and was opened by an assistant in the human resources department at petitioner’s work. After reading the letter and viewing the photographs, the assistant showed the photographs and letter to her supervisor, who then asked her own supervisor what she should do with the photographs. The upper-level supervisor did not look at the photographs. Instead, he directed the assistant to return the photographs to petitioner. The photographs were sealed in an envelope, marked “confidential,” and hand-delivered to petitioner. When petitioner opened the envelope, the photographs fell face-down on her desk. There is no evidence that anyone saw the photographs after they fell on the desk.
The court found that the situation might be embarrassing but was not actionable.
Justice Benjamin disageed
In the instant case, I believe that Ms. Mays can prove the elements of a claim for invasion of privacy under our law. Ms. Mays had a right to prevent photographs of her naked breasts from being published to her coworkers. Further, the defendant’s publication of photographs of Ms. Mays’ naked breasts among her coworkers, although unintentional, was unreasonable.
And Justice Davis
Linda Mays, a breast cancer survivor who had undergone a mastectomy and reconstruction, consulted Dr. Faltaous regarding further reconstructive surgery. During this medical consultation, photographs were taken of Ms. Mays’ exposed torso to be used for the limited purpose of medical confidential photographs to Ms. Mays’ employer, where they were viewed by two of Ms. Mays’ coworkers. Because Ms. Mays regularly sees those coworkers, she is frequently reminded of the disclosure of her private and confidential medical photographs. It is not this Court’s role to decide whether these actions constitute emotional distress or rise to the level of tortious conduct. Instead, a jury should have been allowed to consider these facts and determine whether Ms. Mays is entitled to recover for her embarrassment and resulting injuries. Because the majority upheld the circuit court’s summary dismissal of Ms. Mays’ claims rather than letting a jury determine the factual issues presented, I resolutely dissent.
Monday, October 26, 2015
The Ohio Supreme Court will hear oral argument in a bar discipline case on October 28
Cleveland Metropolitan Bar Association v. Mark R. Pryatel, Case no. 2015-1005
The Board of Professional Conduct has concluded that Cleveland attorney Mark R. Pryatel practiced law while he was indefinitely suspended by representing a client three times in court in June and July 2013. The board recommends to the Ohio Supreme Court that Pryatel be forever barred from practicing law again in the state for his misconduct.
The Court indefinitely suspended Pryatel in April 2013 for misappropriating a client’s settlement money and neglecting another case.
Lawyer Attends Court Three Times with Client
On June 5 of that year, Pryatel met Richard Brazell, whom he had represented before in other matters, at the Rocky River Municipal Court, where Brazell was being arraigned for driving with a suspended driver’s license and other traffic offenses. According to the board’s report to the Court, an audio recording reflects that Pryatel appeared with Brazell before the magistrate, and the lawyer entered a not guilty plea for Brazell, waived his right to a trial by jury, and also mentioned he had represented Brazell two days earlier in Cleveland Municipal Court. Pryatel also told the magistrate that he “would probably enter an appearance” on Brazell’s behalf, but that the accused was representing himself at that time.
Pryatel had appeared with Brazell in the Cleveland Municipal Court on June 3 because Brazell had been accused of a probation violation. Pryatel was paid a $300 retainer in May for this case when he met with some of Brazell’s family.
Back in Rocky River, a pretrial hearing was held on July 9 to address Brazell’s driving under suspension charge. Pryatel appeared with Brazell before Judge Brian Hagan. The lawyer helped Brazell to enter a no contest plea to an amended charge.
In its report, the board concluded that Pryatel never told Brazell, Brazell’s family, or the judge that he had been suspended from acting as an attorney and wasn’t permitted to represent the defendant. However, Judge Hagan thought Pryatel’s name sounded familiar and had his bailiff check whether the attorney’s license was active. After discovering Pryatel was suspended, the judge contacted the Office of Disciplinary Counsel, the arm of the Court that investigates attorney disciplinary complaints.
He Wasn’t Practicing Law, Attorney Claims
Attorneys for Pryatel maintain that the magistrate at the June 5 Rocky River arraignment testified that she understood Brazell was representing himself. They also note that Brazell, not Pryatel, signed various court forms, including waivers of a jury trial and a speedy trial that would have required the signature of a lawyer when a client is represented by one.
As for the July 9 hearing, Pryatel’s attorneys point to a court rule in Rocky River that requires the audio recording of certain hearings. The judge neglected to unmute the recording software, and Pryatel’s attorneys claim the lack of this evidence violates Pryatel’s due process rights. In addition, security video of court proceedings that is regularly recorded over wasn’t preserved to substantiate the claims that Pryatel was acting as Brazell’s lawyer, they assert.
They argue that Pryatel wasn’t practicing law because didn’t engage in “any advocacy, argument, persuasion, interpretation, analysis, or reference to legal citations” – an interpretation they attribute to a 2006 Ohio Supreme Court decision.
They also contend that the disciplinary hearing involved “sandbagging” because lawyers for the Cleveland Metropolitan Bar Association asked Pryatel about his actions in the Cleveland court during a depositionabout the Rocky River hearings, even though the Cleveland matter hadn’t yet been alleged in a disciplinary complaint. They further claim they weren’t properly notified about a video of the June Cleveland Municipal Court proceedings.
While the board identified no mitigating factors, Pryatel’s attorneys cite six and ask the Court to reject the board’s findings and recommended sanction.
Lawyer Represented Client in Court, Bar Association Maintains
Attorneys for the Cleveland Metropolitan Bar Association assert that the video of the June 3 Cleveland Municipal Court hearing shows that Pryatel represented Brazell in open court. In the audio recording of the June 5 arraignment in Rocky River, it is also clear that Pryatel is speaking on behalf of the defendant before the magistrate, they maintain.
“[Pryatel’s] characterization of Mr. Brazell as ‘pro se for now’ in [the audio recording] does not excuse or cure his efforts to practice law during the arraignment,” they write in the brief to the Court.
As for the July 9 hearing, Judge Hagan testified that Pryatel engaged in the discussion about Brazell’s plea and answered the judge’s questions on behalf of the defendant. The judge acknowledged that he forgot to unmute the audio recording system, so he prepared a nunc pro tunc entry to reflect the plea discussion for the court’s records. The bar association’s attorneys dispute Pryatel’s implication that a suspended lawyer can’t be held accountable for violating professional conduct rules unless there is a recording of the event.
While Pryatel claims he was acting as a “layperson” at the hearings, they argue the practice of law isn’t defined as narrowly as the lawyer claims. Instead, the practice of law includes, among other activities, representation before a court, they assert, quoting the same Ohio Supreme Court ruling that Pryatel cited.
“The Supreme Court of Ohio has never allowed suspended lawyers, or non-lawyers, to appear before judicial officers in probation violation hearings, arraignments, and/or plea colloquies on behalf of clients,” they contend.
They also contest the allegations of “sandbagging.” The relevant rules don’t prohibit the bar association from asking an attorney accused of practicing law while suspended about other conduct that also may have been the improper practice of law, they maintain. They add that Pryatel was notified a month before the Dec. 5, 2014, disciplinary hearing that the complaint had been amended to include his actions in the Cleveland Municipal Court, and he was provided the video of the July 9 hearing two months before the second disciplinary hearing in February 2015.
Pryatel has given conflicting testimony about these events, his claims of mitigating factors aren’t supportable, and he has violated multiple professional conduct rules, they maintain, concluding that he should be disbarred.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Representing the Cleveland Metropolitan Bar Association: Joseph P. Dunson, 440.503.3234
Representing Mark R. Pryatel: Keith L. Pryatel, 330.867.9998.
The arguments can be seen on The Ohio Channel. (Mike Frisch)
The North Carolina State Bar has filed a complaint alleging the an attorney had sexual intercourse with a client in a domestic matter.
The representation began in 2009, the sexual relationship in 2013, and the attorney withdrew in 2014.
When the client sought his help in securing new counsel, the attorney is alleged to have arranged for his law partner to enter an appearance.
He is alleged to have continued both his representation of and sex with the client. (Mike Frisch)
An attorney who employed a disbarred lawyer was suspended by the New York Appellate Division for the Second Judicial Department
Notwithstanding the respondent's claim that [former attorney] Heller merely performed work as a "legal assistant," the Special Referee found that Heller continued to practice law while in the respondent's employ and that, by permitting Heller to do so, the respondent assisted a nonlawyer in the unauthorized practice of law. Although the respondent's counsel urges this Court to give no weight to the findings of the Special Referee with respect to credibility, since he did not preside over the hearings, we note that, after this matter was reassigned to that Special Referee, the respondent chose not to present further evidence and argument when given the opportunity to do so. Nevertheless, upon review, we conclude that the evidence supported the Special Referee's findings. The respondent testified at the hearing that he hired Heller because Heller knew everything about the respondent's law practice, given his prior legal experience with real estate matters, and as a bankruptcy lawyer. Indeed, the respondent relied upon Heller's legal knowledge and expertise to allow Heller great autonomy in the performance of his work on clients' legal matters, and to delegate to him responsibility to act as the principal contact with clients with little or no supervision. Further, evidence of the respondent's complicity in Heller's deceptive conduct is found in his endorsement of Heller's use of a false identity, "Craig Miller," when communicating with the firm's clients and others. We find that the respondent authorized Heller to use an assumed name, in part, to conceal and deceive others concerning Heller's status as a disbarred attorney, and that Heller misled the respondent's clients to believe that he was an attorney named "Craig Miller." The record also reflects that the respondent authorized Heller to improperly solicit clients on behalf of the respondent's firm...
The court imposed a two-year suspension. (Mike Frisch)
Saturday, October 24, 2015
An opinion authored by Judge Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit
“Hell hath no fury like a lawyer scorned.” Tom Gordon, Hell Hath No Fury Like a Lawyer Scorned, WALL ST. J., (Jan. 28, 2015), https://www.wsj.com/articles/tom-gordon-hell-hath-no-furylike-a-lawyer-scorned-1422489433. The problem with scorning a lawyer is that lawyers tend to sue. So it is here. A law firm based in the District of Columbia, Bode & Grenier, LLP, provided legal services to three Michigan-based companies owned and managed by Carroll Knight (“appellants”). More than ten years into the relationship, appellants stopped paying the bill. The predictable result? Litigation. The law firm prevailed in the district court, winning a judgment for $70,000 in overdue legal fees—plus $269,585.19 in legal fees for having to litigate over $70,000 in legal fees. We affirm the district court.
The law firm represented the client from 1994 to 2008
advising on taxation, gasoline contracts, petroleum futures and various regulatory enforcement and litigation matters. Throughout most of the relationship, no written agreement governed the terms of legal representation or manner of payment. Appellants paid the law firm monthly based on oral agreements...
On November 25, 2005, catastrophe struck. Approximately 100,000 gallons of petroleum spilled out of holding tanks owned by appellants in Toledo, Ohio. Appellants stopped the leak, but were powerless to stop the flood of regulatory actions that followed in its wake. A month after the spill, Knight called Bode & Grenier’s managing partner, William Bode, to request the firm’s services. The firm soon tackled regulatory enforcement proceedings in Ohio, a lawsuit in federal court in Ohio, and counseled the company on other regulatory issues. As before, the firm billed appellants monthly.
The suit came when the fees went unpaid.
The court applied D.C. law
Here, the factors weigh in favor of applying D.C. law, not Michigan law. The first two factors—the place of contracting and place of negotiation—are inconclusive. Mr. Knight negotiated from Michigan, and Bode & Grenier from D.C. Likewise, the fifth factor—domicil—weighs evenly on both ends. In a dispute over a service contract, no factor matters more than the place of performance.
Nearly all of the legal services at issue were performed in D.C. by attorneys licensed to practice in D.C. See Appellee Br. 28–30. While the representation required occasional travel outside D.C. (mainly to Ohio), we find no evidence suggesting the firm’s attorneys routinely practiced in Michigan. The firm managed the representation from its sole office, located in D.C. The fourth factor—the location of the subject matter of the contract— supports applying D.C. law for the same reasons. This contract called for legal services managed and performed in D.C.
As a result, the law firm was able to recover fees for representing itself in this litigation. (Mike Frisch)
Friday, October 23, 2015
The Louisiana Supreme Court has imposed a year and a day suspension of an attorney for a series of alcohol-related incidents.
He enrolled in treatment through the Bar program after the ODC opened an investigation of three DUIs but the cure did not take.
the Palmetto staff determined that respondent suffered from alcohol abuse and avoidant, dependent, and narcissistic personality features, and recommended that he participate in an intensive outpatient substance abuse treatment program (“IOP”). By letter to respondent dated June 29, 2011, LAP provided respondent with the names of two approved IOP facilities in the New Orleans metro area; however, respondent declined to enroll in either IOP. Instead, respondent relocated to Texas, where he likewise declined to enroll in an IOP.
He returned to Louisiana but
At approximately 6:00 p.m. on August 2, 2012, police officers working a security detail at the Louis Armstrong New Orleans International Airport were summoned to the American Airlines concourse with complaints that an intoxicated passenger was causing a disturbance at the departure gate. According to the police report, when the officers arrived at the gate, an airline employee pointed out respondent. The employee indicated that respondent had been denied boarding on his flight leaving at 6:30 p.m. because of his highly intoxicated state, which caused him to be unable to walk or stand without assistance. As the police officers spoke to respondent, they noticed a very strong odor of an alcoholic beverage emitting from his breath. In addition, his speech was slurred and his eyelids appeared heavy. The officers informed respondent that he would be permitted to make travel arrangements for the following morning, but that he would have to leave the gate area in the meantime. Respondent refused to comply with the officers’ instructions, and instead became argumentative and frequently used profane language in a loud voice. After about ten minutes, he stood up and walked twenty feet toward the concourse exit, but then sat down again, refused to move, and resumed his use of profanities toward the officers. The officers then arrested respondent for disturbing the peace – public intoxication. Once respondent was placed into a holding cell at the airport, he urinated through the steel meshing of the cell onto the opposite wall. He also told officers that he is an attorney and his mother is a retired judge, and that he and his family would file a lawsuit against the officers for his arrest.
Charges of disturbing the peace were later dismissed but he falsely denied he was intocicated in the disciplinary proceedings.
He has failed in further efforts to control his drinking. After another "successful" treatment he picked up another DUI in June 2014.
The court noted his treatment lapses in imposing sanction. (Mike Frisch)
The Kansas Supreme Court has ordered a one-year suspension of an attorney for misconduct in the sale of a trucking business he had founded with a childhood friend.
The disciplinary case was based on a civil judgment finding a breach of fiduciary duty to the buyers.
The court on sanction
At the hearing before this court, respondent's counsel argued that his client was guilty of sloppy recordkeeping after the trucking company sale and that the filing of the amended journal entry after disciplinary proceedings were under way was the work of lawyers representing his client in the civil litigation, rather than based on any desire or action of his client. Given the record compiled in the lawsuit, the record of the panel hearing, and the respondent's decision not to file exceptions to the panel's findings and conclusions, counsel's efforts to minimize respondent's culpability for dishonesty were unpersuasive.
When respondent spoke for himself at the hearing before this court, he asserted that he had not thought of himself as a fiduciary in the trucking company transaction, that he had been a passive investor who thought of himself as a mere seller, and that he had left the details of receivables and their correct distribution to his fellow seller. These arguments do not fill us with confidence that, even today, respondent has a firm grasp on the nature and wrongfulness of his ethical lapses, and we are particularly troubled because of his substantial training and experience not only as a tax lawyer but also as a certified public accountant.
I have now seen a number of Kansas cases where the respondent attorney directly addresses the court. The video of the oral argument is linked here.
Are there other places where an attorney represented by counsel argues their own case? (Mike Frisch)