Thursday, December 31, 2015

Not Induced By Affection

The Connecticut Supreme Court affirmed the conclusion that certain communications were not inadmissible due to marital privilege

The defendant, Sheila Davalloo, was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant appeals from the judgment of the Appellate Court affirming that conviction after concluding that her statements to her husband, Paul Christos, did not fall within the protection of § 54-84b. State v. Davalloo, 153 Conn. App. 419, 436, 449, 101 A.3d 355 (2014). Because we conclude that the defendant’s statements were not ‘‘induced by the affection, confidence, loyalty and integrity of the marital relationship,’’ as § 54-84b (a) requires, we hold that the statements were not protected by the marital communications privilege.

The players

This case involves a love triangle that took a deadly turn. The defendant became infatuated with Nelson Sessler, her coworker at Purdue Pharma, Inc., a pharmaceutical company in Stamford. State v. Davalloo, supra, 153 Conn. App. 421. The victim, Anna Lisa Raymundo, also was a fellow Purdue Pharma, Inc., employee and the third member of the love triangle. Id. In late 2000, Sessler met Raymundo at an after work happy hour and, in the summer of 2001, Sessler met the defendant for the first time at another after work happy hour. The defendant told Sessler that she was divorced, although she was still married to Christos. Sessler began separate sexual relationships with both the defendant and Raymundo. Id.

The story gets complicated but ends up with the murder of Ms. Raymundo and, later, the defendant's stabbing of her husband Mr. Christos with a knife.

His testimony against his wife was properly admitted.

The trial court analysis

...the court heard arguments relating to the motions in limine and ruled that ‘‘ ‘these statements . . . were not made in furtherance or induced by affection, confidence, loyalty, and integrity of the relationship; quite the contrary. It is just the opposite. The statements made to the run-up of the murder of [Raymundo], the description of a faux triangle, again, for lack of a better word, it would be bizarre to classify those as in furtherance of the sanctity of the marital relationship. The plan here was to do in a potential third party suitor of [Sessler] . . . and, ultimately, [Christos], have him removed from the scene either by way of divorce and/or physically remove him from the scene. And, in fact, this defendant was convicted of the attempted murder of her husband in those [New York] proceedings. So, those statements leading up to the runup in this triangle and whatnot for various reasons don’t fall within the purview of the marital privilege. To rule that way would be . . . bizarre. Statements after the death of Raymundo to accommodate the relationship with Sessler fall in the same category, as well as the statements leading up to and relative to the attack and attempted murder of [Christos].’ ’’ Id., 430. The trial court further stated that, ‘‘[t]o argue that these [statements] were in furtherance of the marital relationship defies common sense, are in fact bizarre, and could only be applicable to some parallel universe . . . with which I am not acquainted.’’ The court then granted the state’s motion and denied the defendant’s motion.

Murderpedia has this entry. Dateline NBC has a series of videos on the case. (Mike Frisch)

December 31, 2015 in Law & Society | Permalink | Comments (1)

Actual Innocence Not Required Where Actual Failure To Catch Error Kept Client Locked Up

A criminal defendant need not prove actual innocence to sue his attorney for legal malpractice for the entry of an illegal sentence, according to a decision of the Kansas Supreme Court.

George Michael Garcia retained criminal defense attorney, Charles Ball, to represent him in a probation revocation proceeding. The district court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which error ultimately led to Garcia serving more time in prison than his original sentence.

Garcia sued Ball, alleging legal malpractice. When Ball failed to answer the petition, Garcia notified Ball of the amount of claimed damages and obtained a default judgment. The district court subsequently set aside the default judgment but ultimately dismissed the lawsuit because Garcia had not established his innocence under the exoneration rule, as set forth in Canaan v. Bartee, 276 Kan. 116, 123, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003).

The court

Of note, Garcia's claim of legal malpractice is factually distinguishable from that in Mashaney because it relates to an illegal sentence, rather than a wrongful conviction. Nevertheless, both errors resulted in significant deprivations of liberty, and Mashaney's reasoning is equally applicable here. Accordingly, Garcia was not required to prove that he was actually innocent of either the crime for which he was illegally sentenced to a postrelease supervision term or the new crime that triggered his imprisonment for violating the unlawfully imposed postrelease supervision. Instead, Garcia was required to obtain post-sentencing relief from the unlawful sentence. That "exoneration" occurred when the district court acknowledged that it had imposed an illegal sentence by entering a nunc pro tunc order, setting aside the illegal postrelease supervision term. The propriety of using a nunc pro tunc order to correct an illegal sentence that has already been served is not before us. But the propriety of the district court's dismissal of the legal malpractice action based on the exoneration rule is squarely presented here, and we hold that the district court erred in its application of that rule.

(Mike Frisch)

December 31, 2015 | Permalink | Comments (0)

I'll Be Doggone

We greet 2016 with another case from the dogs.

The New York Commission on Judicial Conduct has admonished another one of the non-attorney town court justices for denying a fair hearing in a matter convened to determine whether a pit bull was a dangerous dog.

In handling a Dangerous Dog case during his first year as a judge, respondent made numerous procedural and substantive errors. Most seriously, he summarily ended the hearing before the attorney for the dog's owner had completed his case, which resulted in a decision made on an abbreviated record that deprived the dog's owner of the right to be heard pursuant to law. After the prosecutor had rested her case, respondent announced his decision that the dog was dangerous and that the case was over. Even if he was confused because a motion to dismiss was made before the defense had concluded, the attorney's repeated objections that he was "in the middle of my case" and wanted to call two additional witnesses should have prompted respondent to recognize that his decision was premature. Instead, he refused to be dissuaded, reiterating, "You were done ... We' re done." It also appears that respondent impermissibly excluded another defense witness from testifying because the witness had been in the courtroom during earlier testimony, although the prosecutor had not requested sequestration and no witness list was provided.

It is a fundamental principle of law that every person with a legal interest in a proceeding - civil or criminal - must be accorded the right to be heard under the law.

(Mike Frisch)

 

December 31, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Shell Game Gets Attorney Disbarred

The New York Appellate Division for the Second Judicial Department disbarred an attorney based on a federal criminal conviction.

Beginning at least as early as in or about July 2004, and continuing through and including at least mid-2007, the respondent and his co-conspirators came to a mutual understanding to procure and make fraudulent use of empty publicly traded shell companies (hereinafter the shell companies), and sell restricted and virtually worthless shares of stock in the shell companies to victim-investors outside the United States through telemarketers, who operated in "boiler rooms" overseas, utilizing high pressure and misleading sales techniques. The victims wired their investment funds to bank accounts in Florida and elsewhere. The respondent and his co-conspirators used the funds to perpetrate the scheme and for their own personal enrichment.

The shell companies procured by the respondent were the product of corporate identity thefts perpetrated by other co-conspirators. The respondent and his co-conspirators paid telemarketers to promote and sell restricted shares of common stock of the shell companies. A website containing false information was designed to make the shell companies appear legitimate and attractive as an investment. The respondent sent an email to his co-conspirators with an attachment containing false and misleading website files and instructed them to have those files hosted on the Internet. The respondent participated in establishing the infrastructure utilized in the promotion and sale of restricted shares of common stock to the victim-investors, caused the preparation and transmission of worthless stock certificates to be sent to the victim-investors, and caused transmission of victim-investors' funds to accounts in his name, the names of family members, and the names of entities he controlled.

He was sentenced to ten years.

The United States Attorney's office for the Middle District of Florida noted

United States Attorney A. Lee Bentley, III announces that U.S. District Judge Mary S. Scriven yesterday sentenced Lawrence S. Hartman, a/k/a Larry Hartman, a/k/a Larry Hart, a/k/a Lawrence Scott Hartman-Grosser (48, Costa Rica; a U.S. lawyer formerly of New York and Florida), to 10 years in federal prison for conspiracy to commit mail fraud and wire fraud.  The court also ordered Hartman to forfeit his interest in his residence in Santa Ana, Costa Rica, a parcel of land located in Pasco County, several offshore entities, several foreign and domestic bank accounts, two vehicles (2009 Jaguar XKR; 2010 Genesis LX150ST3), three luxury watches, and more than $129,500 from the sale of a condominium – all of which are traceable to proceeds of the offense.  As part of his sentence, the court also entered a money judgment in the amount of $42.5 million, which represents proceeds of the mail and wire fraud conspiracy.

Hartman was charged in March 2009. In May 2013, he was arrested by Nicaraguan authorities. Hartman was deported from Nicaragua and turned over to U.S. authorities on May 15, 2013.  His apprehension and expulsion was achieved through the joint cooperation of various agencies, including U.S. Immigration and Customs Enforcement's Homeland Security Investigations, the U.S. Secret Service, the U.S. Department of State Bureau of Diplomatic Security, U.S. Embassy Managua, INTERPOL Washington, and the Nicaraguan National Police. He pleaded guilty on November 20, 2013.

(Mike Frisch)

December 31, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 30, 2015

Size Doesn't Matter In Dog Bite Claim

The Tennessee Court of Appeals affirmed dismissal of a civil claim predicated on a dog bite

Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment...

As the trial court observed, all the evidence presented by Plaintiff tends to show that Defendant believed his dog was friendly, gentle, and jovial before the bite occurred. Nor is there any evidence that Defendant was aware of any prior playful or mischievous behavior that could be dangerous. Moreover, it is undisputed that the dog did not get outside the fence, and that Plaintiff is the one who approached the dog.

A legal theory of liability failed to persuade

The trial court also correctly observed that what Plaintiff is asking us to do here is to create a “big dog exception” to the notice requirement established by centuries-old common law and Tenn. Code Ann. § 44-8-413. In his arguments to the trial court and in his appellate brief, Plaintiff states that “it is common knowledge that Great Danes are an extraordinarily large breed” and “submits that its size alone placed the Defendant on notice of any dangerous propensity.” (Emphasis added). Plaintiff asserts that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.” We, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed.

The court rejected the suggestion that the appeal was frivolous.

The Maryland Court of Appeals reached a different result with respect to pit bulls. On a motion to reconsider, the Maryland Court

amended [its opinion] to delete any reference to cross-breds, pit bull mix, or cross-bred pit bull mix.

The Maryland decision is analysed here . 

(Mike Frisch)

December 30, 2015 in Law & Society | Permalink | Comments (0)

Wisconsin Supremes Split On Retaliation Claim; Employee Was Concerned About Use Of Resources At Republican Convention

The Wisconsin Supreme Court has held that an employee who had emailed concerns about the use of a security detail at the 2008 Republican National Convention could not sustain a claim of retaliation.

Justice Ziegler for the majority

On April 15, 2008, Schigur attended a staff meeting for Bureau Directors of the DOJ's Division of Criminal Investigation ("DCI") at which her superior, Mike Myszewski ("Myszewski"), explained that the DCI would provide Wisconsin's then-Attorney General J. B. Van Hollen with 24-hour security at the 2008 Republican National Convention in Minnesota. A few days later, Schigur sent an e-mail to Myszewski and two other individuals employed by the DOJ in which she stated her concern that use of state resources at the event might violate state law and Office of State Employment Relations ("OSER") regulations. One month later, Schigur was removed from her position as DCI Public Integrity Director and returned to her previous position as Special Agent In-Charge...

We conclude that: (1) an opinion alone, as to the lawfulness or appropriateness of government activity is not "information" as that term is defined in Wis. Stat. § 230.80(5); (2) under the specific facts of this case, and assuming without deciding that Schigur's e-mail contained "information" regarding the proposed security detail, the communication of the information to Myszewski, Jed Sperry, and Cindy O'Donnell was not a "disclosure" under Wis. Stat. § 230.81 because the information was already known to the recipients of the e-mails; and (3) Schigur's argument that the DOJ believed that she "disclosed information" rests on a misinterpretation of § 230.80(8)(c) and therefore fails. Accordingly, we affirm the decision of the court of appeals.

Justice Ann Walsh Bradley dissents

I write separately because the majority opinion undermines the legislative purpose of Wisconsin's whistleblower statute. First, the majority creates a heretofore unknown rule that bars the application of the explicit legislative directive of liberal construction. Second, it writes new language into the statute thereby limiting the protections available to whistleblowers. Third, it turns the legislative policy on its head, creating an absurd result...

The Department of Justice ("DOJ") selected Joell Schigur to be its Director of the Bureau of Public Integrity. She was demoted after she sent emails to her supervisor, Michael Myszewski, expressing her concern regarding Attorney General Van Hollen's use of a taxpayer paid security detail at the upcoming Republican National Convention...

Prior to sending the above emails to Myszewski, Schigur received quarterly job performance evaluations that were uniformly positive. Shortly before Schigur sent the emails, Myszewski completed her 21-month probationary performance evaluation. He wrote: "Joell continues to do an outstanding job of leading the Public Integrity Bureau and the Internet Crimes Against Children Program. Joell is a nationally recognized leader in the area of protecting children from Internet predators. Joell has successfully mastered all of the objectives and standards for a bureau director. I recommend that Joell be removed from probation and receive permanent status as a director."

Yet, shortly after Schigur sent the emails to Myszewski, she received her 24-month probationary performance evaluation that was negative and markedly different from her prior uniformly positive evaluations. As a result, Schigur was removed from her Bureau Director position and demoted.

Dire consequences are predicted

Unfortunately, the majority's newly minted rule of statutory interpretation will have far-reaching consequences that go well beyond this whistleblower statute. For example, Wisconsin's Fair Employment law contains a legislative directive that it be liberally construed to advance the purposes of the statute. Wis. Stat. § 111.31(3). Likewise, Wisconsin's Consumer Transactions law contains the same directive. Wis. Stat. § 421.102(1). Will the legal rights of Wisconsin's workers and consumers be similarly limited under the majority's new rule of statutory interpretation?

Justice Abrahamson joined the dissent. Justices Prosser and Rebecca Bradley did not participate.

Another political day at the Wisconsin Supreme Court. Links to stories in the Wisconsin Law Journal here.  (Mike Frisch)

December 30, 2015 | Permalink | Comments (0)

Stealing From Brother Gets Lawyer Disbarred

The Pennsylvania Supreme Court disbarred an attorney who had defaulted on ethics charges relating to the handling of the estate of his uncle.

The Disciplinary Board

Respondent incompetently represented the Helfrich Estate and demonstrated an absolute lack of diligence and professionalism, compelling his brother Paul Kerins, the complainant herein, to file a Petition for Removal. At the hearing on the Removal Petition, Respondent made misrepresentations to the court regarding the status of the estate accounts. After being removed as Executor, Respondent exacerbated his misconduct by failing to cooperate in the transfer of the Estate file to Paul Kerins. After appearing at the October 31, 2013 hearing, Respondent thereafter ignored numerous attempts to communicate with him. necessitated Judge Hughes to hold him in contempt. Respondent's actions

Respondent misappropriated, converted or misapplied a minimum of $36,626.15 belonging to the Helfrich Estate. Respondent paid himself in his capacity as executor and attorney the sum of $48,873.15, notwithstanding the fact that his neglect and lack of diligence caused his removal as Executor.

A formal audit was held, which Respondent chose not to participate in, and the court thereafter reduced Respondent's total fee to $25,000.00. Respondent also misappropriated $8,750.00 of his brother's share of the inheritance and cash in the amount of $4,003 that was found in the decedent's house and not properly deposited.

Respondent has shown the same contempt for the disciplinary system that he showed to the court system by failing to participate at any level in the proceedings. He failed to submit a response to the DB-7 letter of inquiry, failed to answer the Petition for Discipline, failed to appear at the prehearing conference and failed to appear at the disciplinary hearing. The record is clear that proper notification was given to Respondent concerning these proceedings.

(Mike Frisch)

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

Tuesday, December 29, 2015

The Good Life (For Awhile)

A well-compensated attorney's criminal tax convictions drew a three-year suspension from the New York Appellate Division for the First Judicial Department.

The Hearing Panel convened a sanction hearing on February 9, 2015, at which respondent testified on his own behalf. He described how he joined a New York law firm as an associate when he graduated from law school in 1992; he was made a partner with the firm in 2001. While taxes had been withheld while he was an associate, once he became a partner his share of the partnership income was remitted to him in full, and it was his responsibility to make quarterly estimated tax payments. Between 2001 and 2003 he made estimated tax payments, but not in a timely manner nor in the full amount owed. In 2003 he belatedly satisfied his 2001 tax liability, but for the tax years 2002 through 2008 he failed to file tax returns or pay the taxes owed. During this period, he earned approximately $10.8 million in partnership income.

Respondent acknowledged that he understood his tax obligations, and that each year he received a Schedule K-1 memorializing his share of the partnership income, as well as a certification form from the law firm, provided in an effort to ensure partners' compliance with their tax obligations. He also periodically received notices from the IRS and the New York State tax authorities, as well as from the California Franchise Tax Board (CFTB) because a portion of the firm's income was earned in that state. Nevertheless, respondent ignored those obligations in favor of spending all of his earnings on himself and his then live-in partner. In addition to ordinary living expenses, his expenditures included investing $3.2 million in a bookstore he co-owned with his partner; paying approximately $1 million for extensive international travel by his partner for his Ph.D. research; spending between $500,000 and $1 million on the expenses of a cottage he purchased in upstate New York; and paying for vacation trips with his partner to Italy, Spain, London and California multiple times.

In March 2009, the law firm learned from the CFTB of respondent's failure to pay his tax obligations in California, and at the meeting that followed, respondent admitted that he had also failed to pay his federal and New York taxes for years. On March 31, 2009, after the firm concluded that respondent could not continue as a partner there, he resigned his partnership. He then obtained counsel and accountants to calculate and arrange for his voluntary disclosure to the taxing authorities of his tax deficiencies and his proposals to satisfy those liabilities. However, a federal criminal investigation was instituted, resulting in the prosecution and guilty plea underlying this proceeding.

Respondent's psychiatrist testified that she has been treating him for hypersomnia since 2008, and that in addition, after his tax delinquencies were revealed, she also began treating him with antidepressants, which medication he took throughout his incarceration, but has since discontinued. While the psychiatrist identified aspects of respondent's personality that she believed contributed to his misconduct, she did not indicate that his misconduct was caused by any specific psychological impairment.

The suspension was imposed nunc pro tunc to an interim suspension imposed as a result of the "serious crime" conviction.

Abovethelaw reported that he was a Sullivan & Cromwell partner . Their post links to the sentencing memoranda of the defense and the government.

The government's dim view

With all of the advantages conferred by a comfortable upbringing, elite education, and partnership at one of the nation’s most prestigious and profitable law firms, O’Brien could have pursued a rewarding and productive life as an elite-firm lawyer, with compensation in the top few percent of the general population. Instead, O’Brien decided to take the money that would otherwise have gone to satisfy his tax obligations and use that money to fund what he hoped would be another money-making operation — a rare books and manuscripts business operated by and co-owned with his partner, Michael Phelps. It is undisputed that O’Brien made capital contributions of over $3,000,000 to fund that business partnership, Hudson Street Books, a partnership of which O’Brien was a limited partner. In addition, O’Brien used his unreported income to fund international travel for himself and Phelps; Phelps’s education; and various renovations of his and Phelps’s lakefront weekend home in the Adirondacks...

This case is not about niceties or even aggressive interpretations of the tax law. Instead, it is about the defendant’s decision, year after year, to disregard his simple obligations as a taxpayer. We cannot emphasize enough that meaningful criminal sanctions are essential to stop tax crimes like those perpetrated by O’Brien — a sophisticated professional who fully understood his legal obligations and chose to flout them. Put starkly, only the real fear of a prison sentence will deter tax cheats like O’Brien from carrying on their activities

Bloomberg reported that he was sentenced to 28 months. (Mike Frisch)

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

Side Practice Not Unethical But Forgery Is

A three-month suspension was imposed by the New York Appellate Division for the First Judicial Department

Respondent Michael P. Benenati was admitted to the practice of law in the State of New York by the First Judicial Department on August 4, 1997. During the period at issue, respondent was employed with a law firm in Westchester County, and he also had a side law practice for which he maintained an office within the First Department.

In 2004, respondent joined a Westchester County law firm as an associate and, in 2009, became a partner. From the outset, almost all of his work was derived from one partner. In July 2011, that partner left the firm, taking with him most of the cases on which respondent was working at the time.

Respondent's work for the firm was primarily in the area of insurance defense, and he consistently billed between 2,600 and 3,000 hours each year. With the partner's departure, respondent's workflow and billable hours decreased dramatically, so that by 2012, respondent was billing only approximately one to two hours per day.

Given his firm's unresponsiveness to his efforts to increase his productivity, respondent, unbeknownst to his firm, started a solo practice focused on the type of plaintiffs' personal injury work which the firm had stated it was not interested in pursuing. He retained the clients in his individual capacity, used his own name, used his home address, and used his home telephone number and personal email address. Respondent estimates that he spent no more than 1½ hours at his firm working on his side personal injury cases and, except for an occasional scanning of a document to his personal email account from his firm email account, he did not use any firm resources for his personal injury practice. Respondent stated that his side practice did not in any way interfere with the little work he was doing for his firm.

Respondent did not disclose his side private practice to the law firm because he felt that his employment with the firm was tenuous, and he did not want to "ruffle any feathers." Further, he did not believe that, under the circumstances, his maintaining a small side practice was wrong because such activity was not specifically precluded by his partnership agreement; and, to his knowledge, two or three other partners had side practices.

In addition, around May 2012, his administrative assistant told him she had lost her notary stamp and asked if he had seen it. At that time he had not, but subsequently he either found it in his office or outside his office at a work station. Respondent then took the stamp, put it in his office and, sometime in June, used it, without the permission or authority of his administrative assistant, to notarize five HIPAA releases which his clients had signed. Respondent notarized the signatures of his clients, signed the administrative assistant's name to the releases to make it appear as if she had actually notarized them, and forwarded them to medical providers.

The court agreed with the conclusion that the "side practice" was not an ethical violation.

On sanction

..sanction determination in cases involving forgery related misconduct is very fact dependent. While respondent's misconduct was serious, deliberate, and dishonest, there is mitigation in that, inter alia: respondent has no prior disciplinary history; he cooperated with the Committee; his misconduct was motivated by the precariousness of his employment with his former firm, as opposed to greed; and his firm frustrated his efforts to increase his productivity. Further, the Referee, who had the opportunity to observe respondent's demeanor during his testimony, found his remorse credible; and, thus, such finding is entitled to deference. A three-month suspension acknowledges the seriousness of respondent's misconduct, and at the same time takes into account the mitigation.

(Mike Frisch)

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

No Misunderstanding: "Iron Fist And Limp Wrist"

The Tennessee Board of Judicial Conduct has publicly reprimanded a chancellor for language in an order of dismissal that reflected his views of Obergefell v.Hodges.

The order is quoted in part

Although this Court has some vague familiarity with the governmental theories of democracy, republicanism, socialism, fascism, theocracy, and even despotism, implementation of this apparently new "super-federal-judiciary" form of benign and beneficial government, termed "klepocracy" by some and "judi-idiocracy" by others, with its iron fist and limp wrist, represents quite a challenge for a state level trial court.

The chancellor acknowledged that he "may have made an error" and that the order might be "misunderstood."

He had later vacated the dismissal and granted the divorce. (Mike Frisch )

December 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Web Page Issue, Other Misconduct, Leads To Suspension

From the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has unanimously affirmed a Board of Professional Responsibility hearing panel’s imposition of sanctions against Williamson County attorney Connie Reguli and the trial court’s requirement that Ms. Reguli pay restitution to a former client.

In 2011, the Board of Professional Responsibility filed a petition for discipline against Ms. Reguli based on three complaints of misconduct. The petition alleged, among other things, that Ms. Reguli failed to return client communications, refund unearned fees, provide an accounting of fees to a former client and the board, and that Ms. Reguli’s website contained false statements.

A hearing panel found that Ms. Reguli violated multiple Rules of Professional Conduct and imposed an 11-month, 29-day suspension, to be served on probation subject to certain conditions. Ms. Reguli and the board appealed the panel’s judgment to the Williamson County Circuit Court, which modified the panel’s sanction by reducing the length of suspension, altering and eliminating various conditions of probation, and ordering Ms. Reguli to pay restitution to a former client.  Ms. Reguli and the board appealed to the Supreme Court. Ms. Reguli alleged a number of procedural, jurisdictional, and constitutional objections, while the board challenged the trial court’s modification of the panel’s probationary period and requirements.

The Supreme Court reinstated the hearing panel’s original sanction and imposed the trial court’s additional requirement of restitution. In an opinion authored by Chief Justice Sharon G. Lee, the Court addressed Ms. Reguli’s claims, finding each to be without merit. The Court held that the fee agreement between Ms. Reguli and a former client did not adequately explain the nature of the fee and that Ms. Reguli failed to provide an accounting to her client and the Board. The Court also held that attorneys are ethically accountable for prohibited representations on their websites, even if third-party website operators are primarily responsible for the representations. 

Based on Ms. Reguli’s prior disciplinary record, her bad-faith failure to respond to requests for information from the board, her dishonest and selfish motives, her refusal to acknowledge her misconduct, and her substantial experience as a licensed attorney, the Court found that an 11-month, 29-day probated suspension from the practice of law was appropriate. As conditions of her probation, Ms. Reguli must pay restitution to her former client, submit to a probation monitor, and undergo an evaluation by the Tennessee Lawyer’s Assistance Program and submit to any monitoring requirement that TLAP deems necessary.   

Read the opinion in Board of Professional Responsibility v. Connie Reguli, authored by Chief Justice Lee.

The web page issue

Ms. Reguli testified that since 2006, she had a website hosted by a company called FirmSite and in 2007, she approved information for public posting by FirmSite. Ms. Reguli testified that she did not put the certification information on her website and was not aware that the website described her as being certified or being a specialist in family law and divorce until receiving Mr. Johnson‟s complaint in 2011. Ms. Reguli stated that she checked her website periodically before 2011, but never noticed the incorrect information. Ms. Reguli noted at the hearing that the website also falsely stated that she was licensed in the United States District Court for the Middle District of Pennsylvania and that she graduated from Purdue University in “Lafayette, Tennessee.” Ms. Reguli testified that when she received the Johnson complaint, she was very ill with cancer. She contacted the FirmSite company to correct the website in early spring of 2012.

The court

With respect to the complaint about her website, it is undisputed that Ms. Reguli‟s website represented her as having “Certification/Specialties” in “Family Law[,] Divorce.” Ms. Reguli admitted she was not certified as a specialist in any field of law. This is substantial and material evidence to support the Panel‟s finding that she violated RPC 7.4(b). Even though Ms. Reguli may not have provided the false information to her website company, she is responsible for the contents of her website. Attorney advertising includes all potential ways in which attorneys can communicate information about their services to the public, including communication through websites...Whether websites are maintained by the attorney or a third party, the attorney has the ultimate responsibility for monitoring and reviewing the advertisement to ensure compliance with ethical rules

The court rejected a host of procedural and substantive claims

Ms. Reguli contends that Tennessee‟s attorney discipline system is unconstitutional for several reasons. Ms. Reguli first contends that the preponderance-ofthe-evidence standard in attorney disciplinary proceedings is unconstitutional.  She argues that due process demands a standard of proof at least as stringent as the clear and convincing evidence standard. Ms. Reguli also argues that the combined investigative, enforcement, and adjudicative functions of the Board violate due process. Ms. Reguli‟s various remaining arguments allege that the Board is an unconstitutional body because of the financial interests of its members in the outcome of disciplinary proceedings and that the system otherwise lacks adequate due process safeguards.

The court relied on a recent decision to uphold the constitutionality of its disciplinary system. (Mike Frisch)

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

Course Correction

Another censure of an attorney by the New York Appellate Division for the Fourth Judicial Department; another "non-venal" ethics violations.

Respondent admits that, in 2013, he was retained by a client to defend an action for divorce that had been filed by the client’s wife and, after respondent indicated to opposing counsel that his client intended to commence a bankruptcy proceeding seeking relief from certain marital debts, respondent and opposing counsel agreed that respondent would file a joint bankruptcy petition on behalf of both parties to the divorce action. Respondent admits that he thereafter arranged for his paralegal to obtain from the wife certain information for the joint bankruptcy petition, including proof that the wife had completed a required credit counseling course. Respondent admits that the paralegal erroneously told the wife that she was not required to complete the credit counseling course and, on May 27, 2014, respondent filed the bankruptcy petition containing a false certification that the wife had completed the course. Respondent further admits that, although the rules of the Bankruptcy Court required that the parties approve and file certain schedules in support of the bankruptcy petition, the wife did not review the schedules before they were filed and, in June 2014, respondent filed them together with a false certification that they had been reviewed and approved by the wife.

Respondent admits that, during a hearing before the bankruptcy trustee in late June 2014, the wife admitted that, although she had approved the petition, she had not completed the required credit counseling course and had not approved the supporting schedules. In addition, the husband admitted that a schedule listing his assets omitted that he was entitled to an anticipated payment in the amount of $50,000 pursuant to an annuity agreement that had been established in settlement of a prior personal injury claim. The testimony of the parties during the bankruptcy hearing also established that respondent was concurrently representing the husband in the divorce action, after which the trustee adjourned the hearing. Respondent admits that he did not thereafter seek to file corrected documents in the bankruptcy proceeding in light of the hearing testimony of the parties that conflicted with the information and statements contained in the documents that respondent had previously filed with the Bankruptcy Court. 

On July 17, 2014, the bankruptcy trustee, citing the inaccurate filings and conflict of interest that were revealed during the hearing, moved in Bankruptcy Court for an order removing respondent as counsel to both parties and requiring him to disgorge fees in the amount of $1,000.

Respondent admits that he thereafter filed an amended asset schedule including the husband’s anticipated $50,000 annuity payment and moved to sever the husband’s bankruptcy proceeding from that of the wife. Respondent admits that, following a hearing in Bankruptcy Court on August 6, 2014, the Bankruptcy Court directed respondent to file for both parties to the proceeding a consent to change attorney form and, in October 2014, the Bankruptcy Court entered an order approving a stipulation whereby respondent agreed to disgorge fees in the amount of $1,000 and to pay $500 each to replacement counsel for the parties. The Bankruptcy Court additionally directed respondent to withdraw as counsel for the husband in the divorce action.

There was also misconduct in a separate matter. (Mike Frisch)

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

No Venality, No Suspension

The New York Appellate Division for the Fourth Judicial Department has censured an attorney whose failure to supervise a non-attorney employee led to thefts from his escrow account

We note that our conclusion that respondent violated rule 1.15 (b) (1) is based on his secretary’s conversion of funds from the estate checking account. Although there is no allegation in this proceeding that respondent was involved in or benefitted from the secretary’s theft of funds, the disciplinary rules provide that, under certain circumstances, a lawyer with supervisory authority over a nonlawyer employee shall be responsible for misconduct of the employee and, in this case, we conclude that the consequences of the secretary’s misconduct could have been avoided or mitigated had respondent exercised reasonable supervisory authority over her administration of the estate checking account.

We have considered, in determining an appropriate sanction, the matters submitted by respondent in mitigation, including his expression of remorse for the misconduct and his statement that the misconduct was the result of inadvertence and inattention, rather than venal intent. In addition, we have considered respondent’s statement that he has adopted proper bookkeeping and accounting procedures in his office, that he himself was victimized by his secretary’s misconduct, and that he reported the misconduct to law enforcement. We have additionally considered, however, that the Grievance Committee has previously issued to respondent three letters of caution. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be censured.

The attorney's secretary had stolen over $12,000 and was convicted of grand larceny. (Mike Frisch)

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

Muzzled

A non-attorney town court justice has been admonished by the New York Commission on Judicial Conduct for ex parte contacts with two persons charged with trespassing. One defendant also was charged with "hunting deer during muzzle-loader season without a muzzle-loading license."

The stipulation in the case  recites some prior issues 

Respondent, in his 3 5 years of judicial service (including 8 years serving concurrently in two town courts and 13 years serving concurrently in three town courts), was previously twice admonished for conduct in the Burns Town Court where he has served since 1980. In 2009, Respondent was admonished for failing to timely remit fines and fees to the State Comptroller, report traffic convictions, issue receipts, and use available means to punish defendants who had failed to appear to pay traffic fines. In 20 I 0, Respondent was admonished for failing to immediately disqualify himself in a harassment case despite knowing the parties and having personal knowledge of the underlying events. 

The misconduct

While arraigning two defendants charged with ECL violations, respondent listened to a defendant's "version of the story," reviewed a map of the alleged trespass site, identified locations on the map and discussed with the defendants whether they were public or private locations, asked the defendants about the events and listened to their explanations. As a judge for more than three decades, respondent should have recognized that allowing unrepresented defendants to give their "version" of events at an arraignment - for any reason - is strictly prohibited by the ethical rules. With no prosecutor present these were impermissible ex parte communications in violation of Rule 100.3(B)(6). Such communications can influence, or appear to influence, the judge who will be the trier of fact at a bench trial, and thus compromise the judge's impartiality. Moreover, questioning defendants at arraignment about the underlying events, as respondent did here, places the defendant in jeopardy of making incriminating admissions or other statements that might prejudice the defendant's position at trial.

The justice also stipulated that he had delayed the case. (Mike Frisch)

December 29, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, December 28, 2015

Sum Uncertain

The Michigan Attorney Disciplinary Board affirmed the imposition of a 180-day suspension by consent without requiring restitution.

The formal complaint alleged that, in 2007, Dr. Poss transferred nearly $22 million to respondent's private client trust account in order to keep his wife from accessing the funds during a period of marital discord. The pertinent portion of the complaint further alleged that Dr. Poss and his wife reconciled and that, after making a series of transfers, respondent failed to provide an accounting to Dr. Poss for the funds in his possession. As noted above, a stipulation for consent discipline admitting certain allegations, including the allegation that respondent's records were incomplete and could not establish "whether all funds respondent held on Dr. Poss' behalf ... were appropriately returned or applied." The parties consented to a suspension of 180 days and, essentially, until all funds were accounted for. In light of the indeterminate state of respondent's records and the preliminary nature of a forensic accounting investigation report by Rodney L. Crawford, CPA, the stipulation did not provide for restitution.

The board

In this case, the report furnished by the forensic accountant at complainant's behest did not establish with any degree of certainty which, if any, transfers were improper or precisely how much money, if any, was unaccounted for. Here, the panel was not presented with a sum certain nor was there a readily verifiable degree ofloss. Rather, the forensic accountant provided the panel with an estimated range spanning from $900,000 to $3.6 million, in a preliminary report dependent upon certain assumptions. Due to the substantial uncertainty in this case concerning the amount in controversy and complainant's capacity to pursue civil remedies, we agree with the Administrator and respondent that the panel did not err in approving the stipulation over the objections of complainant and imposing discipline by consent which did not include restitution in this instance.

He must cooperate with an audit to secure reinstatement.

The complainant is Dr. Poss.

An earlier report from Crain's Detroit Business 

A trust fund management dispute is winding down with a no contest plea from a former founding partner of Southfield-based Seyburn Kahn PC.

Attorney Barry Bess will plead no contest to several allegations of failure to give a full accounting for client trust accounts and begin a 180-day suspension from practicing law on Jan. 17 if the state Attorney Discipline Board accepts his plea.

Bess, now sole manager of Bess and Associates PC, was removed as trustee of three trusts at Oakland County Probate Court by Judge Daniel O’Brien in December 2012. At the time, he was a partner at Seyburn, Kahn, Ginn, Bess & Serlin PC, but the firm in a statement earlier this year announced it was shortening its name and Bess was “forming his own practice.”

Bess later hired Birmingham Mayor Pro Tem Stuart Sherman as an attorney in the trust dispute, but Troy-based Jacob & Weingarten PC in January obtained a civil court verdict against Sherman related to his representation of Bess. That firm later reached an undisclosed agreement to end its litigation and considers the Sherman matter over, said its attorney, Kenneth Neuman of Birmingham-based Neuman Anderson PC.

Bess also must give an accounting of the trusts in the probate dispute in order to return to practicing law, even after his suspension.

A panel presiding in Bess’ discipline case has yet to formally approve the agreement. Bess’ attorney, Kenneth Mogill of Lake Orion-based Mogill, Posner & Cohen, said Bess was not being negligent but his records weren’t complete enough to meet some stringent requirement that govern probate lawyers.
 
 

(Mike Frisch)

December 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Restored To Practice

An attorney who had been suspended for two years was reinstated to practice by the New York Appellate Division for the Second Judicial Department.

By decision and order on motion of this Court dated January 5, 2015, Mr. Galasso's motion for reinstatement was held in abeyance, and the matter was referred to the Committee on Character and Fitness to investigate and report on his current character and general fitness to practice law, including, but not limited to, the efforts he made towards restitution, his remorse, and the nature of his valuation business, which he operated from his former law office.

Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the report of the Committee on Character and Fitness and the exhibits annexed thereto, it is

ORDERED that the motion is granted on condition that on or before January 22, 2016, Peter John Galasso file with the Clerk of this Court proof of payment of attorney registration fee arrears, as well as payment for the current registration period; and it is further,

ORDERED that upon receipt of proof of payment, as directed above, the Clerk of the Court shall restore the name of Peter John Galasso to the roll of attorneys and counselors-at-law, and Peter John Galasso shall be reinstated as an attorney and counselor-at-law.

A partner of the petitioner was suspended for six months.

The misconduct involved theft committed by petitioner's brother/bookkeeper

In determining an appropriate measure of discipline to impose, the Court notes the respondent's testimony as to the negative impact the conduct of his bookkeeper and brother, Anthony Galasso, has had on his personal and professional life; the changes he has made with respect to his business practices; his cooperation in connection with the criminal prosecution of his bookkeeper and brother, Anthony Galasso; and his pursuit of lawsuits against, among others, Signature Bank, in an effort to reclaim the misappropriated Baron funds, as well as the funds misappropriated from the estate and from Adele Fabrizio. In addition, the Court considered the 37 letters of good character submitted on the respondent's behalf.

(Mike Frisch)

December 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Indefinite Suspension For Mishandling Appeal

The Kansas Supreme Court has indefinitely suspended an attorney who engaged in misconduct in her handling of an appeal to the United States Court of Appeals for the Eighth Circuit.

The explanation provided at the disciplinary hearing

'Q. Essentially the complaint is that you failed to file a brief on time after three extensions, as well as failed to answer an order of show cause. Can you explain what happened? 

A. During this time I was actually a student at Research Medical Center School of Nuclear Medicine Technology. I was attempting to balance that load and at the same time continue my representation of [the defendant]. I had asked the CJA panel for a new appointment and I was told that at this point I needed to continue with representation of [the defendant].

I do not have a good excuse. My excuse is at this time I was disillusioned with the practice of law and at the same time in—during my multiple meetings with [the defendant] in his incarceration I had had more than one threat against me and my family. Such as he made sure that I understood that his previous attorney, who was appointed, had his fingers broken. I am hearing impaired so at first I just laughed these off as, you know, I misunderstood him.

However, in March, I believe, we live in the country so it's not unusual to hear gunshots. At one point sometime during the night our shop was shot with a shotgun and then the next week there was a close range gunshot near our home, but as we ran outside, you know, whoever it was or whatever it was, you know, was long gone. I do not know, I cannot say that these are related to [the defendant] just because we live in the country in Kansas, you know, people practice skeet shooting all the time.

I did have conversations with the U.S. Marshall, when I represented [the defendant] at his trial, about his threats. They told me to, you know, let them know if he had threatened me again. At this point I didn't feel like I had any proof that it was him, but at the same time I was pretty upset and ready to move on with my life and leave the practice of law. So in between trying to balance school, you know, studying and trying to take on this case as an appeal, it was too much and I did not do my duty.'

The suspension is effective as of the date of the attorney's administrative suspension.

The video of oral argument is linked here.  The attorney explains that she "tried her hand" at criminal appellate practice after leaving a patent and trademark practice at a large firm. (Mike Frisch)

December 28, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 26, 2015

Happy New Year D. C. Bar: Pay Up!

The wasteful and pernicious dues increase proposed by the District of Columbia Bar's powers that be has been blessed by the Court of Appeals

On December 22 the District of Columbia Court of Appeals approved a new dues ceiling, or maximum authorized dues rate level, for the D.C. Bar as recommended by the Bar’s Board of Governors.

 The D.C. Bar dues level has consistently been among the lowest in the country for a bar of its size, ranking in the bottom 20 percent of all unified bars, according to a recent American Bar Association report. The Bar’s operations include comprehensive programs to support professional competence, professionalism, and ethical conduct; an attorney discipline system; and a Clients’ Security Fund.

In a petition filed on June 30, 2015, the Board recommended the new dues ceiling to fund the Bar’s projected operating expenses for at least the next five fiscal years. The new ceiling amount of $380 was suggested by the Board’s Dues Ceiling Rate Authorization Committee, which studied the Bar’s current and projected finances to determine the funding needed for the Bar’s continued operations through mid-2020.

 The court approved the Board’s proposal to raise the Bar’s ceiling on annual membership dues from $285 to $380, effective July 1, 2016, until further order of the court.

The new ceiling does not represent the actual dues rate assessed to Bar members but rather a maximum.The dues rate is set annually by the Board after an extensive budget review process.

View the full order here.

Now the best-paid bar employees in America can increase their salaries, travel to every domestic and international bar-related party and buy themselves a fancy building with primo views, all at the expense of a membership that had no say in the process.

One fact got ignored here: plenty of out-of-state attorneys find it convenient to keep an active D.C. Bar license. That "hidden endowment" is why D.C. bar dues are relatively modest. Many of the out-of-staters may resign or go inactive if the dues costs go too high.

When they do, the dues will be jacked up on the rest of us.

And if the building investment fails to meet expectations, it is the membership that will hold the bag. 

Here, a pernicious and selfishly-motivated idea did not get the proper vetting it deserved and required.

It has now been foisted on a passive membership.  

My prior Cassandra-like warnings are  linked here,  here and here. (Mike Frisch)

December 26, 2015 | Permalink | Comments (0)

Friday, December 25, 2015

Reappointment Proposed For California Chief Trial Counsel

David Cameron Carr has a report at his Kafkaesq blog on the vote to reappoint the Chief Trial Counsel for the California State Bar. The unionized staff has strongly opposed another term.

The decision was obvious even before the Board of Trustees started the meeting   Members of the Board greeted Chief Trial Counsel with hugs and kind words.   Union representatives were given an opportunity to repeat their allegations but the futility of their efforts was obvious almost as soon as State Bar Executive Director Elizabeth Rindskopf Parker began to speak.  The final vote in favor of a second term for Jayne Kim was 14-1.

His own personal note

Jayne Kim is  unique as the first Chief Trial Counsel to work her way up from the bottom.   I was her first manager when she came to work for OCTC in 1999. She started as they all did in those days, as an Attorney grade II.  Attorney IIs by tradition have interior offices. When you get promoted to Attorney III, you get a window office; it is one the perks that come with the promotion. When  Ms. Kim started, we had empty window offices because of the shutdown. She began asking for a window office almost immediately and was very persistent. I explained to her that she would get a window office when she had promoted to Attorney III, which I knew would not long because she was very smart and very hard-working. She would not let it go and went around me to ask Fran Bassios,  the Acting Chief Trial Counsel,  for the window office. Eventually, he caved in and gave it to her.   What effect that had on her fellow Attorney IIs, I do not know; I left OCTC soon after.

He obviously is not enamored with the Kim administration as his highly topical header would indicate: The Empire Strikes Back. (Mike Frisch)

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

Brady Doctrine Narrower Than Prosecutor's Ethical Obligations

The Texas Board of Disciplinary Appeals has held that the ethical duties of a criminal prosecutor to disclose are broader than the requirements of Brady v. Maryland.

In this attorney discipline case of first impression, we must determine whether the Texas Disciplinary Rules of Professional Conduct Rule 3.09(d) codifies the constitutional duty to disclose exculpatory evidence imposed under Brady v. Maryland, 373 U.S. 83 (1963). No Texas appellate court has yet determined whether the ethical duty of a prosecutor to disclose to the defense information that “tends to negate the guilt of the accused” pursuant to Rule 3.09(d) is limited to the scope of “materiality” in Brady. Based on the plain language of Rule 3.09(d) and significant differences between the purpose and application of the duty under the disciplinary rule and the constitutional duty under Brady, we hold that Rule 3.09(d) is broader than Brady.

The board upheld an evidentiary panel determination

Schultz, Assistant District Attorney for Denton County, admitted during the underlying criminal proceedings and during the disciplinary hearing that he did not disclose to the defense the limited ability of the state’s key witness to identify her attacker because he did not think it was either exculpatory or material. He relied on his interpretation of what was required under Brady in his own defense that disclosure of this information was not legally required.

Schultz later conceded at the disciplinary hearing that the information should have been disclosed. Further, the District Attorney’s office stipulated during the criminal proceeding that the information should have been disclosed. The trial judge in the criminal case found that Schultz’s failure to disclose the information violated Brady and granted a mistrial to which double jeopardy attached...

We hold that the materiality standard under Brady does not apply to Rule 3.09(d). We further hold that failure to disclose information otherwise required by law to be disclosed, regardless of intent, constitutes unlawfully obstructing another party’s access to evidence in violation of Rule 3.04(a). Finally, there is substantial evidence in this record to support the findings that Schultz failed to make timely disclosure of all evidence known to him that tended to negate the accused’s guilt and, in so doing, unlawfully obstructed another party’s access to evidence. Therefore, we affirm.

Reasoning

The ethical standard’s independent purpose of protecting the public is further apparent in this case where the withheld information came to light during the proceeding. Determining the materiality of undisclosed evidence by applying a Brady test in the context of an aborted prosecution is speculative. Therefore, limiting the ethical duty, as opposed to the constitutional duty, to disclose information would limit prosecutors’ accountability to the public because the failure to disclose would only arise if a conviction had occurred.

The board analyzed precedent from other jurisdictions in reaching its conclusion. It affirmed the imposition of a partially-probated suspension.

DentonRC.com has details here. (Mike Frisch)

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