Monday, February 29, 2016

Stinking, Non-Existent Badges For Sale

The North Carolina State Bar has filed a complaint alleging that an in-house counsel for a corporate entity "created a counterfeit letter...purporting to be from the Augusta National Golf Club ("ANGC") to the Director of Marketing for [his] employer."

He allegedly used the club's logo and forged the signature of ANGC's Senior Director of Business Affairs. The letter falsely claimed that his company was a tournament sponsor and would receive eight four-day admission badges to the 2015 Masters.

He then listed the badges for sale on Craigslist and sold four of the non-existent badges for $12,000. He received (and later returned) a $6,000 payment.

When confronted by counsel for his employer, he admitted the scheme and indicated he needed money to pay off gambling debts.

He was terminated from employment and a separate $6,000 sale was later uncovered.

The State Bar alleges that the attorney committed the crimes of forgery and obtaining property by false pretenses. (Mike Frisch)

February 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Deal?

There was a very interesting February 24 oral argument before the Ohio Supreme Court that is now posted online.

The issue that clearly troubled the court involved the changed position on sanction of the Cleveland Municipal Bar Association. The attorney and the Bar had stipulated to the violations - failure to appear and (as a Justice called it) repeatedly "hitting on" the client - and to a stayed six-month suspension.

The Bar Association later changed its position and now asks the court to impose  an active suspension of six months.

The court was concerned about the state of the record and the overall fairness of holding the attorney to the stipulation when the Bar is challenging the sanction it had agreed to as appropriate.

Members of the court pressed for the reason. The response in essence was that the attorney had showed insufficient remorse. Counsel for both sides go outside the record concerning the circumstances of the stipulation and the reason that the Bar now wants an active suspension.

I'd call the court skeptical of the Bar's reasons for upping the ante in a stipulated proceeding.

The attorney is represented by his brother, who discusses evidence that their 90 year old lawyer-father appeared as counsel when the respondent stipulated that he had failed to do so. He contended that the agreement on the facts was the product of a negotiated agreement for a stayed suspension but not accurate in fact..

The Board of Professional Conduct report is here. Our prior coverage is linked here

I have not seen a lot of remands in the Ohio disciplinary cases. That may happen here.  (Mike Frisch)

February 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, February 28, 2016

Judicial Ethics Opinions From South Carolina

An opinion of the South Carolina Advisory Committee on Standards of Judicial Conduct.

A Family Court judge is not required to disqualify himself or herself from a proceeding involving their secretary’s attorney. However, the judge should disclose any relevant information regarding any possible disqualification on the record...

Here, none of the judge's relatives will appear as an attorney in a proceeding. See Advisory Opinion 10-2012. The secretary’s attorney is not "the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" as prohibited by Canon 3E. Id. Therefore, the judge is not disqualified from presiding over matters where his or her secretary’s attorney appears. However, under the commentary of Canon 3E, “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.” Id. In addition, the judge’s secretary should not be involved in any matter in which the attorney representing her appears.

This opinion permits a magistrate judge to serve as executor of the estate of a close friend

A magistrate court judge has an elderly family friend who has appointed the judge as Executor of her will and as her agent under a Health Care Power of Attorney . The judge has known the friend for forty years. The friend is a widow with no children, and the judge has been like a child to her. The friend is considered to be a grandmother to the judge’s own child and is included in all family functions. The judge inquires as to whether serving as Executor of the friend’s will and as the friend’s agent under a Health Care Power of Attorney would violate the Code of Judicial Conduct.

And this opinion blesses service on a foundation board so long as no fund raising is involved.

A retired Circuit Court judge, who still holds court, has been asked to serve on the Board of Directors a charitable foundation that was created in honor of a former client of the judge’s. The foundation is committed to youth development programs to promote Christian values, education, and life-skills development. The foundation’s goal is to build a boys and girls’ center to help at-risk children in the community...

A retired Circuit Court judge may serve on the Board of Directors for a charitable foundation, provided that the judge does not engage in fund-raising and that the judge’s title is not used in any materials published by the foundation.

(Mike Frisch)

February 28, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Saturday, February 27, 2016

Flat Fees In Ohio - More Ethics Opinions On The Way

The Ohio Board of Professional Conduct released an opinion on fees that is summarized on the Supreme Court's web page

The Ohio Supreme Court’s Board of Professional Conduct released an advisory opinion regarding the propriety of flat fee agreements related to a lawyer’s representation of a client and the manner in which such “paid-in-advance” fees must be accounted for by Ohio lawyers.

With the release of Advisory Opinion 2016-1, the board withdraws Advisory Opinion 96-4, which addressed the same topic under the former Code of Professional Responsibility.

Advisory Opinion 2016-1 addresses flat fee agreements paid in advance under the Rules of Professional Conduct. The board determined that under Prof.Cond.R. 1.15(c), a lawyer is required to deposit flat fees and expenses paid in advance for representation into a client trust account (IOLTA), unless the fee is designated as “earned upon receipt” or similarly, and may withdraw the funds only as the fee is earned or the expense is incurred. Regardless if the fee is designated “earned upon receipt,” “nonrefundable,” or similarly, the client must be advised in writing that the client may be entitled to a refund of any fee paid in advance, if the lawyer fails to complete the representation for any reason.

The opinion does not address a true retainer, which is a payment to a lawyer to secure availability of that lawyer’s services over a period of time and without regard to a specific matter.

In addition to addressing the propriety of flat fee agreements, Advisory Opinion 2016-1 provides guidance regarding other aspects of flat fee agreements. A flat fee must not be excessive, and a lawyer shall not provide financial assistance to a client – aside from advances in court costs and litigation expenses. Additionally, the flat fee agreement must not interfere with an attorney’s duties to provide competent and diligent representation to each client.

Advisory Opinion 2016-1 is the first in a series of opinions that will be reissued by the board during the next several months. The board is evaluating previously issued opinions that address often-asked questions from lawyers and judges and offer advice under the former Code of Professional Responsibility or former Code of Judicial Conduct. These opinions will be updated and reissued to provide guidance under the existing Rules of Professional Conduct and Code of Judicial Conduct.

(Mike Frisch)

February 27, 2016 in Current Affairs | Permalink | Comments (0)

Friday, February 26, 2016

Court Struggles With Sanction For Alcohol-Fueled Domestic Violence

An indefinite suspension of no less than three months has been imposed by the Iowa Supreme Court of an attorney with a longstanding alcohol problem.

Deremiah began drinking alcohol at an early age and had a number of alcohol-related incidents prior to becoming a lawyer. Specifically, he had “two or three” citations for possession of alcohol and one incident of operating a motor vehicle while under the influence (OWI) while attending college but prior to attending law school. He had no involvement with the criminal justice system for alcohol-related offenses until the recent events described in this opinion.

Deremiah graduated from law school in 2008 and is licensed to practice law in Iowa. He practiced in a number of professional settings for relatively short periods of time. One firm terminated Deremiah for what he described as alcohol-related absences.

Deremiah is currently employed as “of counsel” with a Des Moines metropolitan area law office. He practices primarily in the areas of criminal and family law. Under his arrangement with the law office, he retains fifty percent of his billings collected from clients.

Deremiah and Doe knew each other in high school but began dating only after meeting at a bar several years ago. During the course of their relationship, they maintained separate residences, but they usually slept together in the evening. Doe gave Deremiah a set of keys to her home, where she lived with her ten-year-old daughter.

The relationship, however, was marked by jealousy and allegations of infidelity. In April 2014, Des Moines police responded to a domestic incident at Doe’s home. The facts of this incident were not thoroughly developed at the hearing, but police were apparently called to Doe’s home after a jealous and intoxicated Deremiah burned some of Doe’s DVDs and refused to leave the residence. Police who arrived at the scene called a cab to transport Deremiah home. At this point, Doe retrieved the keys to her residence from Deremiah.

The April 2014 event was a precursor for the events that gave rise to this disciplinary proceeding. Deremiah and Doe had been drinking at various Des Moines bars on the night of July 25, 2014. An argument ensued at one of the locations, resulting in Deremiah and Doe going their separate ways. After the altercation, Deremiah went to Doe’s home and broke in the front door, causing damage to the door. Doe, however, was not at home. Deremiah then left the Doe residence.

 Deremiah later returned to the residence. This time Doe was at home. Deremiah asserts he suffered from an alcohol-related blackout and does not remember what happened next. Similarly, Doe’s memory of the event is cloudy. Nonetheless, the record establishes that Deremiah assaulted Doe in her bedroom. He punched Doe in the face multiple times, causing facial swelling and bruising to her eyes. Her left eye soon became swollen shut. According to a police officer who responded to the reported domestic assault, “I thought it was a broken eye socket because it was so swollen.” Deremiah also pulled Doe’s hair, leaving a clump of hair in the bedroom where the assault occurred. After the assault, Deremiah called his father who picked him up and drove him to his home, where Deremiah was also living at the time. home. Deremiah then left the Doe residence.

The attorney entered guilty pleas to two criminal charges and has responded well to treatment for alcoholism.

The court

 A lawyer engaged in the practice of family law who engages in acts of domestic abuse may be less effective in screening and addressing similar incidents of abuse experienced by clients. A family lawyer must protect clients from acts of family violence, not commit them...

We think the various opinions of the members of the commission reflect the range of possible sanctions in this case. We cannot, however, accept a public reprimand as an adequate sanction. Here, the escalating tumultuous relationship between Deremiah and Doe led to an assault resulting in substantial injuries. Notwithstanding the mitigating factors, we think a mere reprimand is not adequate under the circumstances.

We give respectful consideration to the majority’s recommendation of a thirty-day suspension, but we note that the majority also suggests a two-year period of probation. The majority thus proposed a sanction that offers protection well beyond the period of suspension. We have not imposed probation beyond the period of suspension in our prior cases on the ground that we lack the administrative machinery to provide effective supervision...

From time to time we step back and consider whether our approach to sanctions in our cases is generally sufficient to advance the purposes of our ethics rules. For example, we increased the sanctions for failure to file income tax returns in order to protect the reputation of the bar...

After reviewing our cases and considering the issues raised in this matter, we take another step in strengthening our disciplinary approach to injurious domestic assaults by imposing a sanction in excess of the one-month suspension imposed in Schmidt. We impose the increased sanction in part because of the destruction of property and trespass of the home, which occurred prior to the assault, but also to reemphasize what was said in Schmidt, namely, that domestic abuse by lawyers is out-of-bounds conduct that will not be tolerated by this court. Id. at 44. In escalating the sanctions for domestic abuse, we seek to preserve the reputation of the bar, ensure that family law lawyers are fit to offer holistic legal advice, and deter other lawyers from committing similar violations.

Thus indefinite suspension for at least three months. (Mike Frisch)

February 26, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Another Day In The Wisconsin Supreme Court

The Wisconsin Supreme Court approved a default on bar charges but substantially reduced the proposed sanction for the violations.

After conducting our independent review of the matter, we agree with the referee that, based on Attorney Roitburd's failure to answer the complaint filed by the OLR, the OLR is entitled to a default judgment. However, we disagree with the referee that Attorney Roitburd's professional misconduct warrants a two-year suspension of his Wisconsin law license. We conclude, instead, that a 60-day suspension is warranted. We agree with the referee that Attorney Roitburd should be ordered to pay the full costs of the proceeding. We decline to order restitution for the reasons explained below.

On sanction

Under the unique circumstances of this case, we conclude that a 60-day suspension is sufficient to accomplish these goals. This is the first time in the more than three decades since Attorney Roitburd's admission to the Wisconsin bar that he has been the subject of professional discipline in this state. Until now, Attorney Roitburd has not created a reason to believe that the public, the courts, or the legal system must be protected from the risk of his misconduct. We note, too, that the three counts of misconduct at issue here do not evince an extensive pattern of indifference to our ethical rules. Finally, we note that our knowledge of Attorney Roitburd's misconduct is limited to the facts alleged in the OLR's complaint and established by Attorney Roitburd's default. As a result, there is much we do not know about his work as personal representative of his mother's estate, and about the estate itself.

It being Wisconsin, there is always controversy, here over both the result and a  separate opinion of Judge Prosser to be released at a later date.

SHIRLEY S. ABRAHAMSON, J. (concurring in part and dissenting in part). The OLR charged Attorney Roitburd with three violations of the Rules of Professional Conduct for Attorneys. I agree with the per curiam that the three violations were established by virtue of Attorney Roitburd's default in these proceedings. I also agree that Attorney Roitburd should pay the full costs of this disciplinary proceeding. I agree, finally, that Attorney Roitburd's compliance with all conditions imposed in the per curiam, including satisfaction of the judgment entered by the circuit court against him in Estate of Shirley Roitburd, Milwaukee County Case No. 06-PR-1840, should be required for reinstatement.

I disagree, however, with two aspects of the per curiam:

(I) I disagree with the four justices joining the OLR per curiam blocking release of Justice David T. Prosser's separate writing and insisting that his writing be released at a later time. No basis exists for this action. Indeed, the four justices have violated the Supreme Court's Internal Operating Procedures (IOP).

I disagree with the length of suspension imposed by the per curiam opinion. The per curiam grants Attorney Roitburd a 22-month reduction in the sanction requested in the OLR complaint to which he defaulted. There is no justification for this significant downward departure.

 Judge Bradley joined the concurring/dissenting opinion. (Mike Frisch)

February 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Stayed Suspension For Prosecutor Who Falsely Facebook Friended Alibi Witness

A fully-stayed suspension of one year has been imposed on a prosecutor for Facebook misconduct by the Ohio Supreme Court.

relator, disciplinary counsel, charged Brockler with engaging in professional misconduct while he served as the assistant Cuyahoga County prosecutor assigned to a murder case. Specifically, relator charged that while investigating the shooting death of Kenneth “Blue” Adams, Brockler created a fictitious Facebook account and used it to contact the alibi witnesses of Damon Dunn, who had been indicted for the murder.

The court rejected the claim that the conduct was not unethical

Brockler argued that his conduct did not violate Prof.Cond.R. 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice) as charged in the complaint because it encouraged witnesses to come forward and tell the truth. But the board found that his subterfuge prejudiced the administration of justice because it had the potential to induce false testimony, injected significant new issues into the case shortly before trial, and materially delayed the resolution of the case by requiring further investigation and the appointment of a special prosecutor

 The court majority noted that the misconduct was "an isolated incident in an otherwise notable legal career" in imposing a stayed sanction.

Chief Justice O'Connor disagreed

The substantial evidence of wrongdoing and the aggravating factors in this case prove that Brockler committed significant violations of the Ohio Rules of Professional Conduct. Yet faced with Brockler’s glaring disdain for the ethical responsibilities this court imposes on all attorneys in this state, a majority of this court imposes only a one-year suspension, fully stayed...

the stakes in this case involved imprisonment for up to a life term. Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong.

Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice. Indeed, none of the cases upon which the majority opinion relies to support a fully stayed sentence involves a lawyer lying in a criminal case to the detriment of a criminal defendant and, ultimately, to the detriment of the public’s faith in our courts and in justice.

Chief Justice O'Connor would impose indefinite suspension.

Huffington Post reported that the prosecutor was fired as a result.

[He] confessed to posing as a woman on the social network in an attempt to coax the accused killer's alibi witnesses to change their testimony, the Cleveland Plain-Dealer reports.

"Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth," Brockler told the newspaper. "I think the public is better off for what I did."

 (Mike Frisch)

February 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Estate Of Conflict

The Ohio Supreme Court has ordered a stayed six-month suspension for an attorney's ethical violations in the course of a probate matter]

In July 2012, Deborah Lewallen retained Robertson to represent her as the executor of her father’s estate. Three of Lewallen’s siblings and seven of the decedent’s grandchildren—who were also beneficiaries of the estate—thereafter attempted to remove Lewallen as executor and filed objections to the estate inventory, arguing that Lewallen and her husband had improperly removed items from the estate. Upon Lewallen’s request, Robertson also agreed to defend her and her husband against her family members’ objections and attempt to remove her as executor.

Robertson, however, failed to explain to Lewallen that his representation of her and her husband in their personal capacities created a conflict of interest. Specifically, the board found that “[t]o the extent the claims of the Lewallen’s [sic] other family members implicate[d] potential wrongdoing that would diminish the estate, Respondent [could] not simultaneously discharge his duty of undivided loyalty to the estate while undertaking a similar duty to the alleged wrongdoer.” Accordingly, the parties stipulated and the board found that Robertson’s dual representation of Lewallen in her individual capacity and in her role as fiduciary of the estate violated Prof.Cond.R. 1.7(b) (prohibiting a lawyer from accepting or continuing representation of a client if a conflict of interest would be created, unless the affected client gives informed consent in writing).

The family members eventually withdrew their request to remove Lewallen, and due to the extensive litigation, Robertson filed applications with the probate court for partial payment of attorney fees. A local rule, however, required that attorney fees for the administration of   fiduciary’s final account and with prior court approval. Accordingly, the judge held Robertson’s applications in abeyance until the estate was ready to be closed.

Notwithstanding the local rule and the court’s order, Robertson asked Lewallen for payment of his fees, with the understanding that the estate would eventually reimburse her when it was terminated.

The court cited mitigating factors but

And as the board noted, no matter how well-intentioned
Robertson was, he should have recognized that he had created a conflict not only
by accepting representation of Lewallen in her individual capacity—after having
already agreed to represent her as fiduciary of the estate—but also by spending a
significant amount of time defending against the allegations asserted by the estate’s other beneficiaries.

(Mike Frisch)

 

February 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Twenty One Attorneys in Pink Bow Ties

An attorney who has been charged by the Illinois Administrator with unauthorized communication with a represented person has admitted that he spoke to his client's co-defendant but denies that Rule 4.2 applies to such communications.

I admit that I met with [represented defendant] McDonald. I first told him that [his attorney] McMahon didn't want me to talk to McDonald and I had McDonald sign a document that he knew McMahon did not want us to talk but that he wanted to talk with me. I told McDonald that I was representing Murry, pro bono, that is for free, and I explained my strategy of how I was going to defend Murry. McDonald told me that McMahon wanted McDonald to plead guilty and then testify against Murry.

I did not seek the consent of McMahon since I did not need it. [See attached February 4, 2015 letter to ARDC employee Coleman for a detailed account, with accompanying case law, of my right to speak to McDonald without having to have the permission of McMahon.

From his response letter to the ARDC investigation (appended to the answer)

For an attorney to be in violation of Rule 4.2, two major conditions must be present. First, the naughty attorney must be in an adversarial position to the other attorney, i.e., prosecutor vs. criminal defendant; petitioner vs. respondent; civil plaintiff vs. civil defendant. And the federal courts have held that it is best to maintain a narrow reading and cautious approach to any local rule of professional conduct prohibiting attorneys from contacting represented parties. United States vs. Ward, 895 F.Supp. 1000 (ND 111, 1995) Illinois' professional conduct Rule 4.2 prohibits contact with a party represented by another attorney regarding the subject of the representation. K.L. vs. Edgar, 945 F.Supp. 167 (ND 111, 1996) The prohibition against any communications by a lawyer for one party with the opposing party prevents unprincipled attorneys from circumventing opposing counsel to obtain careless statements from adverse parties. Guillen vs. City of Chicago, 956 F.Supp. 1416 (N.D. 111., 1997) Thus, the only attorneys who are prohibited from talking to another lawyer's client are if they are adversaries in the same manner, lawsuit or case, i.e., opposing parties in the same matter. Co-defendants in a criminal case are not opposing parties...

I am neither the prosecutor in the case against Mr. McDonald, nor his opponent. I am not involved in his case at all. Neither I nor my client, Mr. Murry, is involved in his case, People of the State of Illinois vs. McDonald, and we wish him the best of luck. Thus, Rule 4.2 does not apply to me and it makes no difference if Mr. McDonald is represented by one misguided public defender or by twenty-one attorneys in pink bow ties. I am not enjoined from talking to him to find out how he will testify.

I have actually litigated this issue in In re W.E. Thompson, where the D.C. Court of Appeals held that the earlier version of the rule applies to co-defendants in criminal cases.

Thompson was counsel for Walker in a criminal case. Brent, a codefendant, was represented by Kim Taylor. The first communication occurred after Thompson began to suspect that Brent, purportedly a friend of Walker's, planned to negotiate a plea of guilty in return for his testimony against Walker. Thompson told Brent how he had forcefully cross-examined a codefendant in a prior case who had pled and testified against Thompson's client. Brent construed the remarks as a warning of a similar fate to befall him if he did likewise. In the second communication, Thompson asked Brent whether Brent's lawyer was going to permit Brent to testify on behalf of Walker. He did so in spite of Kim Taylor's refusal to answer the same question when Thompson asked her. The third communication occurred after Brent pled guilty; Thompson approached Brent and attempted to question him...

We find no merit to Thompson's contention that the evidence is insufficient to sustain the finding that he violated D.R. 7-104(A)(1) by engaging in unauthorized communications with Brent. The evidence is undisputed that Brent was represented by counsel and that Brent and his attorney viewed Brent's interest as being in conflict with that of Walker, Thompson's client. Brent and his attorney sought to conceal from Thompson and Walker the fact that Brent intended to testify as a government witness against Walker. Brent's attorney had refused to discuss the matter with Thompson. The evidence makes abundantly clear that Thompson then began trying to elicit directly from Brent the answer to the question to which Brent's lawyer would not respond was Brent going to be a government witness against Walker. This conduct violates D.R. 7-104(A)(1).

The late W.E. Thompson (known to the D.C. trial bar as "Wild Bill") was an interesting person with a lot of talent as a trial attorney but some difficulty in following those pesky rules of professional conduct. (Mike Frisch)

February 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 25, 2016

Reinstatement No

An attorney who was suspended for a year and until further court order in 2014 by the New York Appellate Division for the Third Judicial Department was denied reinstatement in an order entered today by that court.

Upon our review of, among other things, respondent's application, his submissions, the testimony before the subcommittee and the subcommittee's report and recommendation, we conclude that respondent has not shown by clear and convincing evidence that he possesses   fitness to resume the practice of law (see Rules of App Div, 3d Dept [22 NYCRR] § 806.12 [b]; Matter of Oswald, 135 AD3d 1154, ___, 22 NYS3d 918, 919 [2015]). Specifically, we are not persuaded that respondent has adequately addressed the factors that he acknowledges contributed to his underlying misconduct and suspension from the practice of law. Accordingly, we deny his application for reinstatement.

From the suspension order

...respondent created a fraudulent document purporting to be from a government entity and provided it to his client in an effort to make it appear that he had obtained the approval of the client's visa application. He also provided false reports to the client attributing the delay in approval of the application to government bureaucracy, when, in fact, he had failed to file the necessary paperwork in a timely fashion.

In mitigation, respondent expresses regret for his misconduct and cites personal problems. However, as this Court has previously stated, "attorneys must attend to their clients' interests punctually and with vigor despite distracting and stressful intrusions from personal and   their clients of their option to obtain other counsel"

 (Mike Frisch)

February 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Pay Up

When a client receives and does not object to an invoice for described services at a stated hourly rate, the attorney suing to collect on the bill is entitled to summary judgment if the services were performed.

The New York Appellate Division for the Second Judicial Department holds

The plaintiff [lawyer] established its prima facie entitlement to judgment as a matter of law against the defendant on the cause of action alleging breach of contract by submitting evidence of the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of the contract, and resulting damages.

The plaintiff also established its prima facie entitlement to judgment as a matter of law on the cause of action to recover on an account stated for legal fees by submitting copies of its invoices for professional services setting forth the billable hours expended and identifying the services rendered, and demonstrating that the defendant received and retained the invoices without objecting to them within a reasonable time, and made partial payment on the invoices. (citations omitted)

Thus

the defendant's unsupported and conclusory allegations were insufficient to raise a triable issue of fact in light of, inter alia, the evidence that he made partial payments on the account.

(Mike Frisch)

February 25, 2016 in Billable Hours, Clients | Permalink | Comments (0)

"Your Favorite Judge"

The Ohio Supreme Court has permanently disbarred a judge convicted of mail fraud.

The report of the Board of Commissioners on Grievances and Discipline had this snippet of the evidence of a conversation with a litigant

Frank Russo: Hello.

Respondent: Frank, your favorite Judge.

Frank Russo: Hey, Stevie, how are you?

Respondent: I'm doing well, how are you?

Frank Russo: I'm doing really, really, really good ...

Respondent: ... Hey Renee called and said you wanted me to call you?

Frank Russo: Yeah, I just wanted to let you know. Did Robin give you those case numbers?

Respondent: Yes.

Frank Russo: OK. In other words, I talked to you about this once before, it's about denying the motions for summary judgment.

Respondent: Yep. I still have the note that you gave me.

Frank Russo: OK. Good. Deny the motions for summary judgment. Good.

Respondent: Got it.

 Frank Russo: Ok, good. No that was all, I just wanted to touch base with
you on that, and that's it ...

 He was convicted of, among other things, accepting gifts from Russo.

The Board

the Board voted to modify the sanction recommended by the hearing panel and recommends that Respondent, Steven James Terry, be permanently disbarred from the practice of law in Ohio.

The court agreed.

Cleveland.com had the story of the criminal trial. (Mike Frisch)

 

February 25, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (2)

Wednesday, February 24, 2016

The Names Were Changed To Protect The Guilty

An attorney convicted of a federal offense was disbarred by the New York Appellate Division for the Second Judicial Department.

The court described the offense

On May 22, 2012, after a jury trial, the respondent was found guilty in the United States District Court, Middle District of Florida, Tampa Division, of conspiracy to commit wire fraud, a felony, in violation of 18 USC § 371. During his trial testimony, the respondent admitted facts which established that he engaged in a scheme to misappropriate the CUSIP number (i.e., the nine-character number that identifies a security) and trading symbol of publicly traded companies that had become dormant as a result of a failure to pay taxes or to make required annual filings. The respondent and his codefendant created new private companies with the same names as the existing public dormant companies. They then changed the names of the new private companies and submitted false applications to CUSIP Global Services in which they made it appear as though the newly named companies were continuations of the original, dormant public companies, rather than the renamed new private companies, by referencing the existing CUSIP numbers of the dormant public companies. In this way, the respondent was able to create new private shell companies that had all the appearances of being active publicly traded companies, without having to go through the expense and process of actually making the new private companies publicly traded. The respondent admitted that he used this process to create approximately 55 such new companies. He further admitted that some of the clients to whom he sold these companies went on to use the new companies to perpetrate frauds on investors overseas who had no way of knowing that they were buying shares of stock in sham companies. The respondent was sentenced on August 9, 2012, to a term of imprisonment of 18 months, to be followed by a term of supervised release of 3 years and participation in a home detention program as a condition of his supervised release.

The court determined that disbarment was an automatic consequence of the conviction. (Mike Frisch)

February 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Pox On Lawyer and Clients

The Wyoming Supreme Court imposed a nine-month suspension of an attorney who had sued a former client.

The court agreed with its Board of Professional Responsibility that the attorney had violated Rules 3.3(a), 3.4(c)and (d), 4.4(a) and 8.4(a), (c) and (d).

The attorney was found not to have violated Rules 1.8(a), 3.1(a), 3.2, 3.7 and 4.1.

The appended Board report notes that it was

troubled by this case. The Board believed neither Respondent, nor [the former clients] were credible in much of their testimony during the disciplinary or sanctions phases of the case. Bothe Respondent and [the former clients] lacked candor which raised the Board's suspicion about the motivation of both parties throughout the proceedings.

The former clients tale of woe fell on relatively deaf ears

the board did not believe much of [the former clients'] testimony in which they painted themselves as victims emotionally devastated by the antics of Respondent. [They] were not vulnerable victims as they allege.

(Mike Frisch)

February 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Getting Started, Moving On

A note of progress in attorney discipline is the procedure that permits the entry of an order of interim suspension prior to final court action.

An example is this order from the Delaware Supreme Court, in which the Board on Professional Responsibility had filed a report on February 12 finding misconduct and proposing a six-months and a day suspension.

The attorney agreed with the recommendation and wanted to get started serving the time.

The court granted the immediate suspension with leave granted to the Office of Disciplinary Counsel to file objections to the Board report. (Mike Frisch)

February 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Office Party Encounter Leads To Consent Disbarment

The Pennsylvania Supreme Court has accepted the consent disbarment of a convicted attorney.

The Norristown Times Herald reported the story

On Nov. 24, 2014, Kerns pleaded no contest in Montgomery County Court to one misdemeanor count of indecent assault, and Senior Judge John Braxton sentenced him to two years’ probation in connection with the alleged contact he had with a onetime co-worker after a work celebration in Whitpain for the law firm at which he was once a partner.

 By pleading no contest, Kerns did not admit to the assault, but acknowledged that prosecutors with the state Office of Attorney General had enough evidence to convict him.

 Under state law, a no contest plea is treated as a conviction.

 Other charges, including aggravated assault, additional counts of indecent assault and one count of simple assault were withdrawn at that time against Kerns in connection with the Oct. 25, 2013, incident.

 After a separate hearing in May 2015, Braxton deemed Kerns to be a sexually violent predator. Under that classification Kerns must register his address with the state police, quarterly, for the rest of his life and attend counseling sessions.

 The prosecution of Kerns began in November 2013, when he was arrested and charged by the Montgomery County District Attorney’s Office with allegedly drugging and raping a woman, a onetime employee of his then Blue Bell law firm, after a work party. However, in March 2014, defense lawyer Brian J. McMonagle enlisted two experts to review the victim’s blood reports and found they had been read incorrectly by prosecutors. The reports indicated there had been no trace of drugs in the victim’s blood, whereas prosecutors initially alleged the report indicated the victim had been drugged.

 The district attorney’s office subsequently withdrew the charges against Kerns in April 2014 and forwarded the investigation to the Pennsylvania Office of Attorney General, which then handled charges against Kerns. 

In May 2014, the lead charges of rape and sexual assault were dismissed against Kerns by a district judge at a preliminary hearing, leaving the lesser indecent assault charge to which Kerns later pleaded no contest. 

Kerns served as the chairman of the Republican Party in Montgomery County from 2008 until he resigned in November 2013.

He was admitted in 1972 and has been suspended since February 2015. (Mike Frisch) 

February 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 23, 2016

Still Looking For The Vomit

The Ohio Supreme Court has disapproved an application of a law graduate to sit for the bar examination.

A panel of the board conducted hearings on June 6 and September 26, 2014—the first hearing focused on Scannell’s conduct following his August 2013 automobile accident and the second focused on a fight he had with his girlfriend on a North Carolina beach in July 2012. The panel expressed some concerns regarding Scannell’s candor and honesty with regard to the fight on the beach. But based on its findings that he knowingly made false statements to a magistrate and prosecutor about his automobile accident, gave false sworn testimony at the panel hearing as to what had transpired in court, and took efforts to have the traffic ticket for the accident issued in his father’s name, the panel recommended that Scannell’s pending application be disapproved and that he not be permitted to reapply to take the Ohio bar exam. The board adopted the panel’s findings of fact and recommendation.

The court in turn agreed.

The accident at issue took place in Cuyahoga Falls in August 2013. The applicant sought to falsely place the blame on his father. The father falsely testified that he was the driver

He explained that when the police arrived at the scene of the accident, he was “over in the bushes throwing up” due to nausea he suffered as a result of chemotherapy treatment...

Scannell did not inform the magistrate that his father’s story was a complete fabrication in that his father was not driving the truck, was not a passenger in the truck, and was not even in Cuyahoga Falls the night of the accident. Instead, he supported his father’s story by pointing to a map he had brought with him to indicate in which bushes his father had been throwing up.

The court

While acknowledging that Scannell presented a sad tale of a bright, hard-working young man with impressive letters of recommendation, the panel noted that during his June 2014 hearing, he was “combative, and at other times, rambling and unable to focus or respond to a straightforward question with a direct answer.” The panel also reported that “[h]e was uncommonly nervous throughout the hearing.”

For now

we disapprove Scannell’s pending application to sit for the bar exam, but we will permit him to reapply in two years, provided that he (1) submits to a mental-health evaluation by a licensed psychiatrist or psychologist selected by the board, (2) submits a new application to register as a candidate for admission to the practice of law that includes a report of the findings of his mentalhealth evaluation, and (3) completes a new character and fitness examination, including an investigation by the National Conference of Bar Examiners.

In an unrelated matter, the court denied permission to sit of a bar applicant who had not graduated from law school.

Greenberg initially applied to take the July 2013 bar examination but failed to meet certain requirements, including submitting a final law-school certificate, in time to take that test. He subsequently sat for the February 2014 bar exam but did not pass. After the exam results were released, it was determined that during the application process, his law school had erroneously certified that he had received a law degree when, in fact, he had not.

He had taken the exam in February 2014. (Mike Frisch)

February 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

We May Not Always Have Paris: The Client Was A "Beautiful Irish Girl"

The web page of the Ohio Supreme Court has  the story of a disciplinary case up for oral argument this week.

Cleveland Metropolitan Bar Association v. Tasso Paris, Case no. 2015-2009
Cuyahoga County

The Board of Professional Conduct recommends that Cleveland attorney Tasso Paris be suspended from practicing law for six months. The board concluded that Paris repeatedly tried to entice a client to have a sexual relationship with him and also failed to show up at the client’s sentencing hearing.

Lawyer Skips Client’s Hearing
Jennifer Cook hired Paris to represent her after she was arrested on March 17, 2013, for driving under the influence, with a suspended license, and without “full time and attention” to her driving. Paris was paid $1,000 to represent Cook.

Cook pled guilty to reduced charges in August 2013, and the court ordered her to appear a few weeks later at a sentencing hearing. Cook showed up, but Paris didn’t. Nor did he tell Cook that he wouldn’t be attending the hearing or ask another attorney to appear for him, according to stipulations he made in the disciplinary case. However, Paris later testified that he asked his father, also an attorney, to attend the hearing. When the judge asked Cook whether she had an attorney, she responded that he wasn’t there and that she was having problems with him propositioning her.

The court then set aside Cook’s plea, the case was reassigned to another judge, and a public defender was appointed to represent Cook through the rest of her case. She later filed a grievance against Paris with the Cleveland Metropolitan Bar Association.

Client Invited to Dinner, Hot Tub
Paris admitted that he referred to Cook as a “beautiful Irish girl” when telling her no one would believe her story about the St. Patrick’s Day accident. He also conceded that he asked her several times during his representation to go out with him and invited her more than once to go to his house and join him in his hot tub.

Bar Association, Attorney Agree to Six-Month Stayed Suspension
Paris agreed that he violated the professional conduct rule prohibiting sexual activity with a client and another rule requiring diligence in handling a client’s case. The bar association and Paris agreed on a six-month suspension, all stayed, on the condition that the lawyer commit no more misconduct and repay Cook $1,000.

However, the board’s report to the Supreme Court stated the panel reviewing the matter wasn’t convinced, based on his testimony at the hearing, that Paris understood why his conduct was wrong. The report noted that Paris used his position of dominance as her lawyer in a criminal case to solicit her. In addition, Cook testified that she thought Paris wouldn’t do a good job representing her if she didn’t at least act like she was considering going out with him. Given the lack of weighty mitigating factors and the serious nature of this type of conduct, which violates the trust essential between an attorney and client, the board recommended a six-month actual suspension.

Lawyer Objects to Board’s Conclusions, Requests Lesser Punishment
Paris asks the Supreme Court to impose the six-month stayed suspension agreed to by the parties before the board’s hearing. To support this view, he disputes specific conclusions made in the board’s report. While the report states no record showed whether the misconduct indicated a pattern or was an isolated incident, Paris counters that he has been a lawyer for 28 years without any disciplinary action. He claims Cook even referred a friend to him for legal representation. He also contends he has accepted responsibility, which is evident given that he “signed the stipulation and acknowledged that his conduct may have been mistakenly taken by [Cook].” In addition, he submitted a separate personal affidavit to present his thoughts to the Court.

Bar Association Sees Lack of Accountability
The bar association responds that several parts of the objections contain information and claims that aren’t part of the case record. Noting that Paris has already stipulated to soliciting Cook for sex, the bar association further stresses that the comment in Paris’ objections that his “conduct may have been mistakenly taken” by his client reflects the opposite of taking responsibility. Nor does he ever apologize for neglecting to appear at Cook’s sentencing, the bar association asserts.

The bar association also maintains that Paris’ affidavit is an “improper attempt to supplement the record,” and one that again attacks Cook. Paris hasn’t shown remorse for his conduct or apologized to her, it argues. The bar association asks the Court to “at a minimum” impose the board-recommended six-month actual suspension.

Kathleen Maloney

Seems to me that a six-month suspension with automatic reinstatement is mighty light on crime here. (Mike Frisch)

February 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Formula For Disbarment

An attorney whose lack of competence, dishonesty and failure to participate in the bar disciplinary process was proven deserved and got disbarred by the Maryland Court of Appeals.

In the present case, an attorney’s knowing and intentional conduct to conceal from his client and the courts the attorney’s incompetence and lack of diligence warrants the ultimate sanction of disbarment. The attorney’s misconduct included:

(1) his knowing failure to respond to Bar Counsel’s request for client information during the disciplinary investigation; and (2) the attorney’s wrongful actions and inactions during the discovery process of the underlying civil proceedings which resulted in the dismissal of the client’s medical malpractice claim with prejudice.

Sanction

The egregious nature of Respondent’s actions to conceal his incompetence and lack of diligence from his client in an attempt to lead her and the courts to believe that he was acting in the best interest of the client cannot be tolerated. This is especially so, as here, where the client is harmed by the attorney’s misconduct. Disbarment for intentionally misleading a tribunal or client may not be the appropriate sanction in every situation...

In the case at bar, “Respondent never responded to Bar Counsel during the pendency
of the investigation and prosecution of this [case].” He filed frivolous actions in the
underlying medical malpractice claim and failed to participate at any level in the
disciplinary proceedings filed against him. The hearing judge found, in addition to
Respondent’s knowing and intentional misrepresentations to the courts to cover up his own lack of diligence and competence, [numerous] aggravating factors...

(Mike Frisch)

February 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, February 22, 2016

More Litigation Against California Bar

More grist for the mill of the California bar disciplinary system controversy from Law 360

The State Bar of California has been hit with a $15 million wrongful termination suit in California state court echoing allegations by the bar’s fired executive director that ethical violations at the bar were rampant.

Sonja Oehler, whose LinkedIn profile identifies her as a former administrative specialist at the bar, said she wasn’t fired because of a lack of ability or dedication or because the bar needed to reduce staffing. Instead, Oehler alleges in her complaint, she "was fired due to the fact that she knew of the deceit, deception, incompetence and falsification of issues by the defendants."

In one instance, Oehler said, a director had to go to San Francisco for a three-hour hearing and insisted that the bar foot the bill for four days in the city at the Palace Hotel, which the bar agreed to pay.

Oehler said she also denied a board member’s claim for reimbursement that totaled nearly $30,000, but that it was later paid out of state bar funds. “There were several individuals who were terminated from the bar. None were terminated because of any problem with their work or dedication of service,” Oehler alleged. “They were terminated since they were thought to be friends of the prior leader of the bar.”

Oehler is likely referring to former executive director Joseph Dunn, who sued the bar in November 2014 alleging he was fired for exposing the bar’s “massive cover-up” of ethics breaches. He alleged that the bar’s chief trial counsel, Jayne Kim, purged the public backlog to inflate her productivity and failed to actively prosecute unlicensed lawyers preying on immigrants after the legislature passed a bill against the practice.

The state bar said in December that a California state judge agreed to appoint an arbitrator to resolve Dunn’s suit. Kim is named as a defendant in Oehler’s suit, which says she let the backlog of discipline cases grow out of control and then moved 181 cases into a deferred state, reported the backlog without those cases, and then moved them back to active status. "It was a total scam," Oehler said.

Oehler also accused Kim of simply dismissing ethics complaints against herself rather than sending them to an impartial outsider and said the bar failed to open hundreds of complaints about the unauthorized practice of law arising from fraud against Mexican nationals seeking U.S. citizenship.

In the wake of the change in leadership, Oehler alleged that Robert Hawley, who was named acting executive director until the appointment of Elizabeth Rindskopf Parker in July, retaliated against lawyers who helped the bar’s wrongfully terminated employees. “Defendant Robert Hawley … ordered that any complaint that were filed in the past 30 years be re-opened despite the fact all of the complaints had been closed for decades,” Oehler said. Her suit demands $10 million due to financial losses as a result of her wrongful firing as well as $5 million for the intentional infliction of emotional distress. “For the fraud, deceit, and misrepresentation by the state bar and the other defendants, plaintiff Sonja Oehler is entitled to punitive damages not to exceed ten times the damages she’s entitled to for wrongful termination and emotional distress,” Oehler added.

Moez Kaba, an attorney for the bar, told Law360 Friday that the bar "denies the allegations and believes the suit is without legal merit and will address the claims in an appropriate forum."

A representative for Oehler didn't immediately respond Friday to a request for comment.

Oehler is represented by Thomas V. Girardi of Girardi Keese. The bar is represented by Moez Kaba of Hueston Hennigan LLP. The case is Oehler v. The State Bar of California et al., case number BC610699, in the Superior Court of the State of California, County of Los Angeles. — Editing by Ben Guilfoy.

(Mike Frisch)

February 22, 2016 in Bar Discipline & Process | Permalink | Comments (3)