Wednesday, August 31, 2016

Colorado Attorney Admonished For Minnesota Unauthorized Practice: Represented His In-Laws By Email

The Minnesota Supreme Court has admonished an unnamed Colorado attorney for unauthorized practice of law

We hold that engaging in e-mail communications with people in Minnesota may constitute the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), even if the lawyer is not physically present in Minnesota. The Panel’s finding that appellant engaged in the unauthorized practice of law in Minnesota, in violation of Minn. R. Prof. Conduct 5.5(a), was not clearly erroneous. Appellant represented a Minnesota couple with respect to a Minnesota judgment and attempted to negotiate, via e-mail, the satisfaction of that judgment with a Minnesota lawyer, and was not authorized to practice law in Minnesota temporarily. We further conclude that the appropriate disposition for this misconduct is an admonition.

The representation was a family affair

Appellant is an attorney licensed to practice law in the state of Colorado, where he maintains an office and has been practicing environmental law since 1986. He has also practiced personal injury law for approximately 7 years. Part of his litigation practice includes debt collection. Appellant is admitted to practice law in New York, Florida, and Alaska, but is currently on inactive status in those states. Appellant is also admitted to practice in federal court in the District of Colorado, the District of Alaska, the Southern and Western Districts of New York, and the United States Court of Appeals for the Ninth and Tenth Circuits. Appellant is not licensed to practice law in Minnesota.

Appellant’s mother- and father-in-law live in Minnesota. They contacted appellant in May 2014 to obtain assistance regarding a judgment entered against them in conciliation court in Minnesota for $2,368.13 in favor of their condominium association, Voyager Condominium Homeowners’ Association, Inc. (VCHA). The couple told appellant that VCHA’s attorney, D.R., a Minnesota-based lawyer and the complainant in this case, was harassing them with telephone calls attempting to collect on the judgment. The couple asked appellant for his assistance in negotiating with D.R. regarding payment of the outstanding judgment

 Appellant sent an e-mail to D.R. in late May 2014, informing D.R. that he was representing his in-laws and instructing D.R. to direct all future communications to him instead. Appellant and D.R. exchanged approximately two dozen e-mails between May 2014 and September 2014. In his first responsive e-mail to appellant, D.R. asked whether appellant was licensed to practice law in Minnesota. Appellant replied that he was not licensed in Minnesota and that if he needed to file suit in Minnesota he would hire local counsel. The subsequent e-mails consisted of discussions regarding the in-laws’ assets and ability to pay and whether the VCHA judgment would have priority in a foreclosure sale. Appellant attached financial disclosure forms to one of his e-mails and made a settlement offer.

 In the penultimate e-mail exchange between the two attorneys, D.R. asserted that appellant was engaging in the unauthorized practice of law because he was not licensed in Minnesota. The final e-mail prior to D.R. filing an ethics complaint was a settlement proposal from appellant to D.R. on that same day. The Director received D.R.’s ethics complaint in October 2014. Approximately 2 months after filing the complaint, D.R. sent additional e-mails to appellant to determine whether the settlement offer was still available and whether appellant still represented his in-laws. Appellant did not respond to the subsequent e-mails and had no further involvement in the case.

The court found no exception to the rules governing practice by out-of-state attorneys

 Under Minnesota Rules of Professional Conduct 5.5(c)(2), a lawyer admitted in another jurisdiction may provide legal services in Minnesota on a temporary basis if the lawyer’s services are reasonably related to a pending or potential proceeding before a tribunal and the lawyer reasonably expects to be authorized by law to appear in the proceeding. Comment 10 explains that a lawyer rendering services in Minnesota on a temporary basis is permitted to engage in conduct in anticipation of a proceeding or hearing in which the lawyer reasonably expects to be admitted pro hac vice. Minn. R. Prof. Conduct 5.5(c)(2) cmt. 10...

 Moreover, appellant’s representation of his in-laws did not "arise out of" or "reasonably relate" to his practice in Colorado simply because his in-laws contacted him in Colorado or appellant has done collections work in Colorado. As the Director notes, appellant’s in-laws were not long-standing clients; nor was there any connection between the in-laws’ case and the state or laws of Colorado. And while appellant’s Colorado practice may involve judgment collections work, nothing in the record establishes that this work was based on a body of federal or nationally uniform law. To the contrary,  appellant’s clients were Minnesota residents with a debt that arose in Minnesota that they owed to a Minnesota resident and that was governed by Minnesota law. Accordingly, Rule 5.5(c)(4) does not apply to appellant’s conduct.

Sanction

The nature of the misconduct in this case is non-serious. Appellant wrongly believed that he could negotiate a settlement in Minnesota without being licensed to practice law in the state. The cumulative weight of the misconduct is also minimal. Appellant engaged in a series of e-mail communications with one attorney in a single matter involving appellant’s family members. In addition, the only harm appellant’s clients suffered was a delay in the resolution of their debt because of appellant’s actions. Accordingly, a private admonition is the appropriate discipline for appellant

 Justice Anderson dissented joined by Justices Lillehaug and Chutich

Based on this record, I would conclude that appellant’s assistance with a small judgment-collection negotiation for his parents-in-law, including the emails to D.R., were "reasonably related" to appellant’s practice in Colorado, which satisfies Rule 5.5(c)(4). The "reasonably related" exception in Rule 5.5(c)(4) is a broad, catch-all exception that is intended to exempt circumstances such as those presented here. Moreover, the familial connection between appellant and his in-laws, and the fact that they contacted appellant in Colorado for assistance, should be an additional consideration that supports a finding that the matter was "reasonably related" to his practice in Colorado under Rule 5.5(c)(4)...

...as a policy matter, the implications of the court’s decision are troubling and counterproductive. The ABA Model Rule 5.5(c), as adopted by our state, was intended as a broad catch-all that “represent[s] a bold step towards new latitude in [a] multijurisdictional practice of law,” which accommodates the increasingly mobile and electronic nature of modern, national legal practice. See Rotunda & Dzienkowski, supra, at 1100-01, 1112. Today’s decision represents a step backwards. By the court’s reasoning, when family members or friends—an abundant source of clients—email or call a practitioner admitted in another state, seeking assistance in areas in which the practitioner is experienced and competent, relying on a relationship of trust and confidence, they must be turned away. Those potential clients must then expend unnecessary time and resources to research and hire local counsel—even for minor, temporary services in which the out of-state lawyer could have provided efficient, inexpensive, and competent service. Simply put, the court’s decision is contrary to the principles and policy goals intended by Rule 5.5(c).

In sum, this case involves clients contacting an attorney, their son-in-law, in his home state of Colorado, to request his assistance regarding a small collection matter—an area that reasonably relates to appellant’s expertise and experience in his Colorado litigation practice. Based on the relationship and contacts between the clients, appellant, and appellant’s practice of law in Colorado, there is a sufficient "reasonable relationship" here to satisfy the broad, catch-all exception under Rule 5.5(c)(4). For the above reasons, I conclude that appellant did not engage in professional misconduct because the exception in Rule 5.5(c)(4) applies.

Merits aside, was this worth the effort?

My answer: no.

The fact that (i) the attorney was assisting a family member and (ii) was entirely truthful about his bar status counsels against prosecution and (as the dissenters suggest) illuminates the public-unfriendly potential for abuse of the rules governing unauthorized practice. (Mike Frisch)

August 31, 2016 in Bar Discipline & Process | Permalink | Comments (1)

We Still Have Paris: Stayed Suspension In Ohio For "Hitting On" Client

A six-month stayed suspension has been imposed by the Ohio Supreme Court on attorney Tasso Paris for soliciting sex with a client

The board also found that Paris did not understand or accept the wrongful nature of his conduct based on testimony in which he (1) asked why the client referred a female friend to him after terminating his representation if he was “hitting on” her, (2) stated that the client’s fiancé was present during all but one of their meetings, (3) claimed that he merely referred to the client as a “red haired Irish girl”—and only when explaining that no one was going to believe her claim that she had had only one drink before her St. Patrick’s Day automobile accident, and (4) claimed that his father had attended the client’s sentencing hearing.

The parties had agreed to a stayed suspension but the board had a dimmer view.

Noting the increasing frequency of cases involving repeated and unwelcome solicitation of clients for sexual activity, the board, however, urges us to hold that in the absence of significant mitigating factors, this court will impose an actual suspension on attorneys who have engaged in such conduct—as we do in cases involving attorneys who have engaged in a material misrepresentation to a court or have engaged in a pattern of dishonesty with a client.

In accordance with this suggested presumption and in light of Paris’s repeated and unwelcome solicitation of his client, his failure to appear for her sentencing hearing after she rebuffed his advances, his failure to acknowledge the wrongful nature of his conduct, and the absence of additional mitigating evidence, the board recommends that we suspend Paris from the practice of law for six months with no stay.

While the court noted that it has "consistently disapproved" of such behavior, it rejected the board's proposed sanction

We by no means condone Paris’s conduct in this matter, but on the stipulated facts before us, we find that his actions are most comparable to cases in which we have imposed fully stayed suspensions.

 Justice Kennedy concurring eschews per se rules

The majority opinion tacitly rejects the board’s request that we adopt a new presumption that in the absence of significant mitigating factors, the court will impose an actual suspension for the repeated and unwelcome solicitation of vulnerable clients for sexual activity. The dissenting opinion argues in favor of adopting this presumption. I write separately to squarely address whether it is this court’s role to create a new presumption in favor of an actual suspension in lieu of our deeply rooted process of determining the appropriate sanction in each individual case...

In my view, however, deception and fraud are not the only types of misconduct that strike at the core of a lawyer’s relationship with the court and with the client. Instead, every act of misconduct does so and diminishes the honor and nobility of our great profession.

Justice Resnick concurs in the result.

A dissent from Justice Lanzinger

In my view, this court should do more than merely express disapproval of the attorney’s actions by imposing a stayed suspension. The extent of the mitigation is that he has no previous discipline and has cooperated with the investigation. On the other hand, he stipulated that he acted with a selfish motive and engaged in multiple offenses. In addition, the board found that he did not understand or accept the wrongful nature of his actions and so failed to show that his misconduct was unlikely to recur. Most importantly, the client was harmed when Paris did not appear for her sentencing, which she attributed to her rebuffing his sexual advances.

Our earlier coverage is linked here.  I was of the view that six-months of actual suspension was pretty light on crime. (Mike Frisch)

August 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment For Scheme To Conceal Assets In Divorce

Dan Trevas reports on the web page of the Ohio Supreme Court

The Ohio Supreme Court today permanently disbarred a Trumbull County attorney who participated in a scheme to conceal more than $850,000 of a client’s marital assets from the client’s husband before and during divorce proceedings.

David K. Roland of Hubbard, who was already under suspension from practicing law in Ohio for failure to register as an attorney, was disciplined based on the asset-hiding scheme and other violations of the rules governing the behavior of attorneys. In a unanimous per curiam decision, the Supreme Court noted that aside from responding to complaints brought by the Trumbull County Bar Association, Roland did not participate in the disciplinary proceedings.

“We have consistently recognized that when an attorney’s neglect of legal matters is coupled with a failure to cooperate in the ensuing disciplinary investigation, an indefinite suspension is warranted,” the opinion stated. “However, when such conduct is accompanied by the misappropriation of client funds and fraudulent or dishonest conduct, as it is here, we have held that disbarment is the appropriate sanction.”

Funds Diverted to Swiss and Caribbean Accounts
The bar association brought complaints against Roland to the Board of Professional Conduct based on interactions with four clients, including his representation of Denise Carradine in her divorce from Eric Martin. Roland failed to comply with bar association requests for discovery and with the orders of the chairperson of a board three-member panel assigned to hear the complaints.

The panel considered Roland’s failure to respond to the bar association’s requests for admissions as an admission to the bar association allegations. The association claimed Carradine paid Roland about $854,000 from August 2006 to April 2009 using a regular pattern of withdrawing cash from her business and personal accounts in amounts of less than $10,000. The Court concluded that was evidence of purposely structuring the transactions to avoid detection under banking laws.

The funds were deposited into two of Roland’s client trust accounts, and $814,000 was wire-transferred to an account at Maerki Baumann & Co. in Zurich, in which Carradine had a beneficial interest. Banking records demonstrated that a portion of those funds was transferred to another account located in the Turks & Caicos Islands during her divorce proceedings.

By 2013, all of Carradine’s funds had been removed from Roland’s trust accounts in a Pennsylvania bank, and he had $709 in an Ohio bank account of which $643 of it came from a 2015 deposit unrelated to Carradine’s case. The Court noted that Roland has failed to account for $40,155 of the funds Carradine deposited in his trust accounts.

Based on the panel’s findings, the professional conduct board determined Roland committed several violations including the prohibition of a lawyer from counseling a client to engage, or assisting a client, in conduct that the lawyer knows is illegal or fraudulent. The board also found Roland failed to hold a client’s property in an interest-bearing account separate from the lawyer’s own property, and failed to hold funds in which two or more persons claim an interest until the dispute is resolved. He also engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, the board concluded.

Roland Failed to Perform Legal Services
In separate matters, the board found two clients each paid $750 retainers to Roland to file lawsuits. The clients filed grievances with the bar association regarding Roland, and a bar investigator found that nothing had been initiated in the courts where Roland could have filed the lawsuits. Roland failed to respond to the investigator’s letters and when the investigator called Roland, he stated he was with clients and abruptly hung up.

Those retainers had been removed from Roland’s trust account, and the board found that Roland violated the rules for failing to act with reasonable diligence on a client matter and prohibiting a lawyer from withdrawing advance legal fees from the client trust account until the fees are earned or expenses incurred. He also knowingly failed to respond to demands for information from a disciplinary authority, the board found.

Board Recommends Disbarment
The board considers aggravating and mitigating factors before recommending an appropriate sanction. It found the only mitigating factors that would lean toward a less severe punishment were that Roland had no prior disciplinary record, and had no dishonest or selfish motive with respect to a fourth violation against him for not informing a client that he did not have the required amount of professional liability insurance.

“As aggravating factors, the board found that Roland acted with a dishonest or selfish motive, engaged in a pattern of misconduct over a period of years, committed multiple offenses, failed to cooperate in the disciplinary process, failed to acknowledge the wrongful nature of his misconduct, caused harm to vulnerable persons — particularly Martin — and made no effort to make restitution,” the Court wrote.

The board cited several cases where the Court permanently disbarred attorneys who engaged in misconduct comparable to that of Roland’s, and the Court concluded disbarment was the appropriate sanction for him. He was also assessed for the cost of the proceedings.

2016-0257. Trumbull Cty. Bar Assn. v. Roland, Slip Opinion No. 2016-Ohio-5579.

August 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney's Duties When Settlement Funds are Stolen By Hacker

A $63,000 settlement that was diverted through a hack into the receiving attorney's account has resulted in an order of the United States District Court for the Eastern District of Virginia enforcing a settlement agreement.

The court states important principles when one attorney learns of a computer attack that might compromise entrusted funds.

The attorney transmitting the payment is Oshinowo. The intended payee is Bile. Bile's attorney (Udom) and Bile were aware of the attempt to invade Udom's account; Oshinowo was not.

...the third party that compromised the account sent an email from ubomlawgroup@yahoo.com to Oshinowo at LeClairRyan, instructing that the payment required by the Settlement Agreement be wired to a Barclay's account, purporting to be Bile's, in London. Oshinowo initiated LeClairRyan' s internal procedures for a wire transfer in the amount of $63,000.00 to be dispatched to the Barclay's account, and LeClairRyan initiated that transfer. Meanwhile, Defendant RREMC, LLC processed a check for $2,000.00-less-witholding and mailed it to Bile's residential  address. Bile received the $2, 000. 00-less-withholding check without incident.

The parties went back to court over the disputed amount

At the evidentiary hearing, Defendants presented the testimony of David Melczer ("Melczer"), accepted by the Court as an expert in information technology, and James Lemmert, who carried out the wire transfer in question, in support of the Defendants' position that Oshinowo acted reasonably in transmitting the $63,000.00. (Def.'s Post-Hrg. Mem. 7; Pl.'s Post-Hrg. Mern. 10-11). Bile presented his own testimony and that of Oshinowo in support of the Bile's position that: ( 1) the Settlement Agreement was not enforceable as written; and (2) Oshinowo acted unreasonably in transmitting the $63,000.00.

The court

the undisputed record shows that Ubom told Bile about the fraudulent email. The Court finds that both Ubom and Bile had actual knowledge that, on July 27, 2015, a malicious third party was targeting this settlement for a fraudulent transfer to an offshore account that did not belong to Bile. The Court further finds that both Ubom and Bile knew the email account of the Ubom Law Group was implicated in that fraudulent activity...

the Court concludes that Defendants substantially performed their obligations under the Settlement Agreement on July 29, 2015, and are entitled to specific performance of Bile's obligations under the Settlement Agreement.

 The court looked to contract principles

The parties have cited no decision articulating that an attorney has an obligation to notify opposing counsel when the attorney has actual knowledge that a third party has gained access to information that should be confidential, such as the terms of a settlement agreement, or the attorney has knowledge that the funds to be paid pursuant to a settlement agreement have been the target of an attempted fraud. Nor has the Court located such authority. However, the principle is an eminently sensible one. Indeed, Bile's briefing clearly considers that to be the case because Bile states, repeatedly, that attorneys have "an obligation to contact [opposing] counsel when and if they receive(] suspicious emails instructing [them] to wire settlement funds to a foreign country where such [a] request has never been made during the course of performance of the parties." (~., Pl.'s Post-Hrg. Resp. 3, 23). Ubom repeated this argument orally during the evidentiary hearing. Applying this standard, Ubom failed to act with the ordinary care that he, correctly, says should govern this case.

Two days before the fraud was perpetrated on LeClairRyan, both Ubom and Bile were aware that an unidentified third party had targeted the settlement funds for diversion to a Barclay's bank account that had nothing to do with Bile. Additionally, Bile and Ubom knew that ubomlawgroup@yahoo.com was being used in an effort to perpetrate the fraud. Ubom failed to pass this information along to Defendants, defense counsel, or the Court. This failure substantially contributed to the loss of $63,000.00 within the meaning of U.C.C. § 3-406. The Court finds it self evident that if Oshinowo or Mago was aware: (1) that the settlement funds were the target of a malicious third party; (2) that the terms of the confidential Settlement Agreement had been accessed by a malicious third party; or ( 3) that a malicious third party was angling to redirect the settlement funds to a Barclay's account when Bile had no such account, then Oshinowo would not have initiated the wire transfer on July 29, 2015.

...Bile must bear the loss associated with the malicious third party behavior.

As to the technology issue

This is not to say that Oshinowo might not have exercised greater care when he received the email directing the settlement funds to an overseas bank account. However, Article 3 does not require best practices: it requires ordinary care, and there is no proof that LeClairRyan did not exercise ordinary care.

At the heart of this case is the simple fact that Bile's agent, Ubom, could have prevented the loss of $63, 000. 00 by notifying opposing counsel on July 27, 2015 when he had actual knowledge of an attempted fraud, the known purpose of which was to lay hands on the settlement funds. As technology evolves and fraudulent schemes evolve with it, the Court has no compunction in firmly stating a rule that: where an attorney has actual knowledge that a malicious third party is targeting one of his cases with fraudulent intent, the attorney must either alert opposing counsel or must bear the losses to which his failure substantially contributed.

The court enforced the agreement. (Mike Frisch)

August 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Less Likely To Trust Lawyers"

A criminal defense attorney has been suspended for three years by the Disciplinary Hearing Commission of the North Carolina State Bar.

In one matter, he had misused his notary license

Crowe is a licensed notary in the State of North Carolina. In order to become a North Carolina notary, he was required to swear or affirm under penalty of perjury that he understood the duties and responsibilities of a notary public, as described in the General Statutes. See N.C. Oen. Stat. § 10B-12. Accordingly, Crowe could not have in good faith believed that the course of conduct...was permissible under law.

Crowe filed the Power of Attorney bearing the false notarization with the Yadkin County Register of Deeds.

Just after 5:00 pm on 17 Febuary 2015, Crowe went to YCDF with Fackrell's wife. When they arrived, Crowe spoke with a Detention Officer via intercom, stating that he and his "assistant" were there to visit Fackrell.

This representation was false, as Mrs. Fackrell was not-and has never been either an employee or an independent contractor of Crowe or his law practice.

Crowe was attempting to mislead the Detention Officer regarding Mrs. Fackrell's role so that she could participate in an after-hours meeting with Fackrell in the attorney visitation area. Visitation with inmates in this area and after-hours was limited by YCDF policy to lawyers and their staff.

Under questioning by detention authorities, the identity of the "assistant" was revealed.

In another matter, the attorney deposed two witnesses without legal authority

At the time Crowe conducted the depositions...both S.C. and A.F. were minors, and S.C. was the victim of a sexual offense. These factors made them particularly vulnerable.

Crowe took advantage of the fact that S.C., A.F., and their families lacked knowledge about criminal procedure. Their ignorance of the law made them vulnerable to being misled regarding the depositions.

Due to the experience she had with Crowe, S.C. 's mother is less likely to trust lawyers in the future.

Sanction

Suspension of Defendant's law license is warranted due to Defendant's pattern of dishonesty and failure to recognize-even in hindsight-the impropriety of his conduct. Furthermore, the Panel finds that any sanction less than suspension would fail to acknowledge the seriousness of the offenses committed by Defendant, would not adequately protect the public, and would send the wrong message to attorneys and the public regarding the conduct expected of members of the Bar in this State.

The attorney may apply for a stay after 18 months. (Mike Frisch)

August 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 30, 2016

I Could Write A Book

The Indiana Lawyer has the story of a disciplinary case

Floyd County Prosecutor Keith Henderson should be reprimanded by the Indiana Supreme Court for a book deal on a high-profile murder case against former Indiana State Trooper David Camm, recommends a hearing officer in Henderson’s discipline case. The hearing officer blasted the conduct of lawyers on both sides of the ethics matter.

Meanwhile, Camm was awarded $450,000 in a settlement with Floyd County parties — chiefly investigators — announced Aug. 16, days after the Indiana Supreme Court received the report recommending Henderson’s discipline.

Camm spent years behind bars after he was twice convicted of murdering his wife, Kim, and children Brad, 7, and Jill, 5, in 2000 in Georgetown. Camm was found guilty in the first two trials, but both convictions were overturned, and in 2013, he was acquitted after a third trial.

In 2014, Camm sued Henderson and more than two dozen others in a 74-page, 10-count civil-rights complaint alleging he was framed. As a state employee, Henderson is not among the parties who settled. He remains among the “primary bad actors” from whom Camm is seeking $30 million in damages in federal court, said his attorney in that case, Garry Adams of Louisville. “We will continue to march forward” against Henderson and other defendants, “until we either reach resolution or trial,” Adams said.

The suit claims, among other things, malicious prosecution, fabricated evidence, the employment of fake experts, and investigators’ failure to pursue evidence that pointed to another suspect —a felon on probation with a long history of violent crimes.

“We think it’s pretty clear Charles Boney was the murderer and acted alone,” Adams said. The complaint points to such overlooked physical evidence as Boney’s blood-stained, prison-issued sweatshirt and his DNA and fingerprints that were left at the crime scene. Boney was convicted in the murders in 2005 and is serving a 225-year prison sentence.

Adams said Henderson’s continued prosecution of Camm despite such evidence added years to Camm’s incarceration.

‘Gamesmanship’ in discipline case

While Camm was appealing his second conviction, Henderson agreed with a book publisher to co-author a book on the Camm case. Ten days after Henderson received a $1,700 check from the publisher, the Indiana Supreme Court reversed Camm’s second conviction, according to the record in Henderson’s discipline case.

Henderson ultimately returned the check and the book deal was later abandoned. At the time Camm’s second conviction was overturned, though, he wrote his agent and co-author that the Camm case was “a great story that needs to be told. However, the book cannot come out prior to the completion of a potential third trial. It would jeopardize the case, potentially getting me removed from the case due to certain disclosure and opinions we are writing into the book. This cannot happen,” the record says. The Court of Appeals eventually removed Henderson from the third Camm trial because of the book deal.

The hearing officer in Henderson’s discipline case, Bose McKinney & Evans LLP partner David Pippen, highlighted the struggles the Indiana Supreme Court Disciplinary Commission had in getting evidence into the record and the highly combative posture between commission lawyers and Henderson’s counsel, Barnes & Thornburg LLP partner Don Lundberg.

In his findings of facts and report recommending the Supreme Court reprimand Henderson, Pippen wrote he “was disappointed to encounter the inability to conduct attorney conferences without a court reporter because the two sides do not trust each other, the inability of counsel on both sides to leave personality conflicts out of the case, and the desire to ‘win’ overshadowing the betterment of the profession.

“The prosecution of this case, the conduct of the hearing, and the writing of this recommendation were complicated by the tactics of counsel rather than facts of the case. The facts of the book deal were not questioned though it took four years to get the facts into a complaint,” Pippen wrote.

Pippen declined to comment beyond his findings submitted to justices earlier this month. He noted in his report, though, the extent to which Henderson’s discipline case was atypical. “Particularly disturbing … was the subpoena issued to a former Chief Justice of the Indiana Supreme Court whose questioning amounted to a history lesson on how Henderson became a prosecutor. Henderson’s actions were at issue, not his general reputation. The subpoena to the Chief Justice came across as unnecessary gamesmanship.”

Former Chief Justice Randall Shepard was questioned in the case, but he said he could not comment on the pending matter.

The prosecutor’s defense

Pippen concluded the commission presented “clear and convincing evidence that Henderson violated the Rules of Professional Conduct when he retained a literary agent and co-authored a book proposal and manuscript of the Camm case prior to his withdrawal from the case.” Henderson’s defense that he canceled the contract “misses the point of the rules. Once he took action to secure his personal interest in the Camm case, his loyalty and independent judgment were subject to question.”

But Pippen wrote the commission hadn’t proven Henderson violated ethics rules when earlier attorney fees in his disciplinary case exceeding $27,000 were paid by Floyd County.

“Mr. Henderson respectfully disagrees with Hearing Officer Pippen’s recommendation regarding whether he had a conflict of interest related to the Camm case,” Lundberg said in a statement. “Mr. Henderson is considering whether to petition for Supreme Court review of that recommendation, and looks forward to receiving definitive guidance from the Court on that issue.”

“More importantly, Mr. Pippen found no misconduct regarding a series of claims related to Floyd County’s payment of a small portion of the attorney fees Mr. Henderson, a long-time public servant, incurred to defend himself during the Commission’s investigation. Mr. Pippen found that Mr. Henderson sought the opinion of county officials about payment of the fees and was transparent about the purpose of the fees when he submitted vouchers for their payment. The Hearing Officer was correct when he stated that he was unconvinced by the Commission’s allegations that Mr. Henderson engaged in any professional misconduct related to the county’s payment of those fees.”

The ethics case against Henderson, a Republican, prompted Floyd County Democratic Party chairman Adam Dickey to call for his resignation as prosecutor and removal of his name from the November general election ballot. Henderson is the Republican candidate for Floyd Circuit Court judge, running against Democratic incumbent J. Terrence Cody. Henderson ran unopposed for the party nomination in the May primary despite the disciplinary complaint that had been pending against him for more than a year.

Floyd County Republican Party chairman Chris Lane told the News and Tribune of Jeffersonville that Dickey’s criticism and calls to withdraw were politically motivated.

Dave Stafford wrote the story. (Mike Frisch)

August 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Spit

A criminal conviction was affirmed by the Indiana Supreme Court

 As Michael Day’s marriage dissolved, the family home became increasingly tense, until one night Day came home, screamed in his wife’s face, and spat in her eye. Four 911 calls later, Day was arrested. He was subsequently convicted of disorderly conduct based on "fighting." Here, he asks us to interpret the disorderly conduct statute’s "fighting" subsection to require both a public disturbance and a physical altercation, claiming the State failed to prove either element.

Guided by well-established principles of statutory interpretation, we conclude that the "fighting" subsection does not contain a public disturbance element but does require a physical  altercation. Still, Day’s intentional spitting provided sufficient evidence of a physical altercation. We thus affirm his disorderly conduct conviction.

The court interpreted the statute and considered application of the rule of lenity

But even under our narrow interpretation of "fighting," Day’s intentional, point-blank spitting on M.D. constitutes sufficient evidence to support his conviction. After Day berated M.D. for ten minutes, he leaned over the bed where she was lying and deliberately spat in her face. Some of the spit entered her eye, forcing her to wipe it away. A reasonable factfinder certainly could have found Day’s conduct constituted a physical altercation.

 The court thus "affirm[ed]  Day’s conviction for B-misdemeanor disorderly conduct. (Mike Frisch)

 

August 30, 2016 | Permalink | Comments (0)

Judicial Ads Issues Before Ohio Supreme Court

A case scheduled for oral argument this week before the Ohio Supreme Court

Disciplinary Counsel v. Ronnie M. Tamburrino, Case no. 2016-0858
Ashtabula County

In a disciplinary case stemming from the 2014 election for judges on the Eleventh District Court of Appeals, the Board of Professional Conduct has concluded that Ron M. Tamburrino, a candidate in the race, approved and ran two television ads containing false statements, violating two judicial conduct rules.

Though the panel that reviewed the case proposed a stayed six-month suspension, the board noted Tamburrino has repeatedly refused to admit the content was false and continues to assert that the ads were appropriate. Given his perspective and its concern about “the chilling effect” false ads could have on the functioning of the judicial branch, the board recommends a one-year suspension with six months stayed.

Teenage Drinking Ad
Tamburrino, who is seeking election to the Eleventh District again this year, ran against Judge Timothy P. Cannon in the 2014 race. On Oct. 28 or 29, an ad approved by Tamburrino began to air on local television. The ad showed a judge in a courtroom serving what seems to be alcohol to children. Along with words appearing on the screen, the narration stated:

“Everyone knows that a judge would never serve alcohol to kids in a courtroom. But appellate judge Tim Cannon did something almost as bad. In the case State versus Andrews, Cannon ruled that cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party, because he felt teenage drinking wasn’t a serious crime. Cannon doesn't think teenage drinking is serious. What else does he think isn’t serious? We can’t afford Tim Cannon’s bad judgment. Elect Ron Tamburrino to the Eleventh District Court of Appeals.”

Judge Cannon wrote a concurring opinion in the Andrews case, which involved the suppression of evidence obtained during a warrantless search by police of a Geauga County home, where teenagers were allegedly drinking at a party. The homeowner was charged with contributing to the delinquency of a minor.

The board explains in its report that the court’s majority opinion and Judge Cannon’s concurring opinion concluded the police should’ve first obtained a warrant before searching the home. In neither opinion was there language indicating that teenage drinking isn’t a serious crime or that police couldn’t enter a house or arrest a parent hosting a teenage drinking party, the board notes.

Judge Cannon instead acknowledged concerns about underage drinking and stressed that he didn’t want to impede law enforcement’s efforts to address underage drinking. He added that the alleged activity was a misdemeanor, which he determined is a factor for police to consider when deciding whether exigent circumstances exist to justify an intrusion and search without a warrant. 

The board concluded that Tamburrino’s ad contained several “patently false” statements and that Tamburrino knew they were false or acted with reckless disregard for whether they were false.

Travel Expense Disclosure Ad
The second ad, first broadcast in mid-October 2014, stated that “Cannon won’t disclose his taxpayer-funded travel expenses.” The board found that Tamburrino never asked Judge Cannon to disclose his travel expenses, nor did anyone else during the campaign. In addition, the board noted that the Ohio Supreme Court, not the Eleventh District, paid Judge Cannon’s expenses, which then had no effect on the appeals court’s budget. The implication that Judge Cannon didn’t produce his expense reports in violation of the state’s public records law was false, the board concluded.

“Tamburrino’s use of false statements in both of the ads to unfairly denigrate Judge Cannon is inconsistent with the independence, integrity, and impartiality of the judiciary,” the board wrote.

Candidate’s Objections
Tamburrino objects to the board’s conclusions and recommended sanction, arguing that all charges should be dismissed. He maintains that the ads’ statements identified by the board as false are instead true.

In the ad involving the Andrews decision, the majority opinion and Judge Cannon’s concurring opinion both ruled the police shouldn’t have entered the house without a warrant, Tamburrino states. The ad said that Judge Cannon concluded “cops couldn’t enter a house to arrest a parent who was hosting a teenage drinking party,” not that Judge Cannon said police could never enter a house to arrest any parent hosting an underage drinking party, Tamburrino asserts. Judge Cannon also wrote that he didn’t want the decision to deter police from taking action if an officer observed a “serious misdemeanor offense.” Judge Cannon then considers teenage drinking not to be a “serious misdemeanor offense,” and the ad fairly summarizes the judge’s view, Tamburrino alleges.

Tamburrino contends he has as much right as the dissenting justice in the case to criticize Judge Cannon’s ruling. Tamburrino also asserts that his ad was an expression of free speech protected by the U.S. Constitution. Citing a 1996 federal court opinion and a 2002 U.S. Supreme Court decision, Tamburrino argues that judicial candidates have the same free speech rights as other candidates for elected office.

As far as the “won’t disclose” ad, Tamburrino argues he meant that the Eleventh District wouldn’t post its budget, including expenses such as Judge Cannon’s travel costs, on the court’s website. While Judge Cannon didn’t refuse any direct request to disclose the information, Tamburrino was of the opinion that the judge wouldn’t publish such information in the future. This opinion is protected under the U.S. Constitution’s First Amendment, Tamburrino concludes.

He adds that the Sixth U.S. Circuit Court of Appeals ruled earlier this year in Susan B. Anthony List v. Driehaus that Ohio laws barring false statements in campaign materials during political campaigns were unconstitutional. The board found Tamburrino violated a judicial conduct rule that mirrors the statutes struck down in Anthony, he notes. In his view, Ohio’s disciplinary process for the legal profession regarding campaign speech is also unconstitutional.

Disciplinary Counsel’s Positions
The Office of Disciplinary Counsel, which filed the complaint against Tamburrino with the board, counters that the In re Campaign Complaint Against O’Toole 2014 decision from the Ohio Supreme Court presented a sound analysis upholding the constitutionality of the current judicial conduct rule prohibiting false campaign speech by judicial candidates. The Anthony ruling didn’t affect the O’Toole decision, the disciplinary counsel asserts.

In discussing the ads, the disciplinary counsel’s brief states that the teenage drinking piece “twist[s] Judge Cannon’s discussion of the Fourth Amendment into a referendum on Judge Cannon’s personal views regarding teenage drinking.” In the context of the ad specifically citing the Andrews ruling, and the larger context of the judicial campaign, the statements made “could only be interpreted as fact,” not as opinion, the disciplinary counsel wrote.

The disciplinary counsel adds that the “won’t disclose” ad also “can only be interpreted to mean that Judge Cannon refused to disclose his taxpayer funded travel expenses after having been asked to do so,” which was untrue.

Noting shared concerns with the board, the disciplinary counsel, however, suggests a stayed six-month suspension and maintains that any stayed discipline would be adequate to protect the public and deter this type of conduct in the future.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Ronnie M. Tamburrino: Donald Brey, 614.221.2838

Representing the Office of Disciplinary Counsel: Joseph Caligiuri, 614.461.0256

Oral argument will be heard tomorrow. (Mike Frisch)

August 30, 2016 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, August 29, 2016

Privilege When Combining Business And Legal Advice

A decision today from the Connecticut Supreme Court

Clients call upon attorneys to provide advice on a range of matters, some that may be purely legal, some that may be purely nonlegal, and others where the line between legal and nonlegal advice is more nuanced. This case provides an opportunity to address the circumstances under which communications relating to both nonlegal and legal advice may be covered by the attorney-client privilege.

The plaintiff, Michael C. Harrington, appeals from the trial court’s judgment dismissing his appeal from the decision of the Freedom of Information Commission, which concluded that e-mails that the plaintiff sought from the defendant Connecticut Resources Recovery Authority fall within the exemption from disclosure under the Freedom of Information Act (act) for communications subject to the attorney-client privilege. See General Statutes § 1-210 (b) (10). We conclude that the commission failed to apply the proper standard for assessing the communications at issue, which include communications that the commission characterized as containing a mix of business and legal advice. Therefore, the case must be remanded to the commission for further proceedings.

 The court

Although the plaintiff raises numerous arguments, our threshold, and ultimately dispositive, consideration is the proper approach for assessing the applicability of the attorney-client privilege when business or other nonlegal professional advice is provided. This is a legal rather than factual question. We therefore must consider whether the commission acted unreasonably, arbitrarily, illegally, or in abuse of its discretion in concluding that all of the communications that the defendant withheld are covered by the attorney-client privilege...

Just as this court has never specifically distinguished business advice offered by an attorney from legal advice, it has not addressed the application of the privilege to communications containing or seeking both legal and business advice, as was found to exist in the present case. The primary flaw in the commission’s approach to this question lies in its exclusive reliance on the ‘‘inextricably linked’’ standard...

When the legal aspects of the communication are incidental or subject to separation, the proponent of the privilege may be entitled to redact those portions of the communication.

Thus

 In the present case, the commission’s decision cited to cases from other jurisdictions that apply this standard, but it did not determine whether the primary purpose of the communications was seeking or providing legal advice. Nor did it consider whether incidentally privileged matters could be redacted to allow disclosure of nonprivileged matters. Indeed, Hunt stated that redaction would have been possible as to some documents, but she lacked sufficient time to do so. Our review of a sample of the communications reveals that proper application of these considerations undoubtedly would yield a different result as to a substantial number of the communications examined

The court remanded for further proceedings consistent with the opinion. (Mike Frisch) 

August 29, 2016 in Privilege | Permalink | Comments (0)

Partially Probated Suspension For "Women's Study"

A recent discipline case from the web page of the Texas State Bar

On May 20, 2016, Howard S. Jenkins Jr. [#10619550], 56, of Austin, accepted an 18-month partially probated suspension effective June 15, 2016, with the first three months actively suspended and the remainder probated. An evidentiary panel of the District 9 Grievance Committee found that Jenkins was court-appointed to represent a female client in a DWI criminal case. During the representation, he asked his client a series of inappropriate questions of a sexual nature, some of which were asked under the pretext that Jenkins was conducting a “women’s study.” In another matter, Jenkins was court-appointed to represent a female client in a criminal case. During that representation, Jenkins asked his client inappropriate questions of a sexual nature and made inappropriate sexual statements to her.

Jenkins violated Rule 1.06(b)(2) in each case. He was ordered to pay $500 in attorneys’ fees and direct expenses, to complete three additional hours of CLE in the area of client relations, and further agreed not to accept female client court appointments during the term of his probation.

In his dissent in Jones v. Barnes (a case I am sure many PR teachers use to teach the ethics of client autonomy), Justice Brennan notes the tension between appointed counsel and an indigent client

The Court subtly but unmistakably adopts a different conception of the defense lawyer's role -- he need do nothing beyond what the State, not his client, considers most important. In many ways, having a lawyer becomes one of the many indignities visited upon someone who has the ill fortune to run afoul of the criminal justice system.

I cannot accept the notion that lawyers are one of the punishments a person receives merely for being accused of a crime. 

The Justice likely did not have this particular form of indignity in mind.  (Mike Frisch)

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

Doctor's Note

I mentioned in a previous post that the redesign of the web page of the Colorado Presiding Disciplinary Judge has made it far more difficult to access recent bar discipline decisions.

But such difficulties cannot deter the dedicated blogger.

From The Colorado Lawyer

The [Presiding Disciplinary Judge]  approved the parties’ conditional admission of misconduct and suspended Kallman S. Elinoff, attorney registration number 18677, for 30 days. Elinoff’s suspension took effect on February 20, 2016.

In 2015, Elinoff represented a client in a criminal matter in Jefferson County District Court. Nine days before his client’s trial, Elinoff filed a motion to continue in which he indicated that he was undergoing a medical procedure that week. Two days before the trial, Elinoff appeared at a hearing and asked to approach the bench, where he exaggerated the nature of his medical procedure in an effort to persuade the court to grant a continuance. That same afternoon, Elinoff brought medical documentation to the court, admitted his misrepresentation, and took responsibility for his actions.

Elinoff’s conduct violated Colo. RPC 3.3(a) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal) and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

This was not the attorney's first brush with bar discipline; he was suspended for three years in 2000.

That case also tangentially involved the attorney 's physical condition

On or about March 17, 1998 Elinoff appeared before Judge Kathleen Bowers in Denver County Court with his client, Douglas Rathbun in connection with a domestic violence charge. The day before the appearance, Elinoff had injured his arm in a snowboarding incident and was taking medication. Judge Bowers was made aware of the incident, the medication usage and inquired into Elinoff’s ability to proceed with the scheduled hearing. Based upon her observations and Elinoff’s assurances, Judge Bowers found there was no need to continue the hearing and that Elinoff was able to properly represent his client’s interests. Notwithstanding his medication usage, Elinoff was in full control of his mental faculties on the day of the Rathbun hearing.

The officers had allowed the client a cigarette before transporting him to the pokey when

 Although Elinoff had no prior contact with either Ollila or Mullen, he disclosed to them that his father had been a police officer and he had once applied to join the force. During their conversation, Rathbun continued to plead to be released. Elinoff told the detectives that they needed to talk about his client on a level they all could understand. Elinoff then reached into his shirt pocket and removed several bills of U. S. currency. The visible bill was a $100 bill. Elinoff extended the bills toward Detective Mullen and stated that if the detectives would forget the matter for that day, Rathbun would turn himself in the next day. Elinoff intended by this conduct to influence the decision made by Ollila and Mullen to jail Rathbun...

Elinoff, in testimony before the PDJ and Hearing Board, characterized his conduct as a joking effort to show his client that he was going to jail and that nothing would prevent the detectives from transporting him immediately. Elinoff also admitted, however, that if one of the detectives had accepted the funds offered, he would have reported the “bribe” to the police department with the anticipation that the detective would have been arrested

He was reinstated to practice in 2003 after returning from Israel

Due to the terror crisis in Israel and the demands on the regional police units, Elinoff was asked to join the regional police force as a volunteer police officer. He was selected because of his prior combat experience and exemplary military record. He received training in the classroom and in the field and was deputized to perform the same duties and was held to the same responsibilities as a regular police officer. He was legally authorized to make probable cause determinations, effectuate arrest procedures, investigate crimes and testify at trials. He was held accountable as a professional in all regards. He accompanied regular police officers on calls, set-up and manned security checkpoints and roadblocks, and patrolled the area for both criminal and terrorist threats. His opportunity to stand in a police officer’s shoes afforded him a tremendous insight on how difficult an officer’s job can be and how the public perceives their roles. Elinoff now understands the two officers he offended during the bribery incident and the disrespectful behavior that led to his suspension.

Elinoff was also a volunteer assisting the sex assault unit of the prosecution office in Haifa, Israel. Although his role was very limited in nature, his primary objective was to stay active in the profession and by doing so, learned about the Israeli legal system from investigation through trial, lectured to the sex assault investigators of the Department of Social Services, and provided to the unit sorely needed literature available only in the United States...

Elinoff had made a fundamental change in his character and his perception of the role of attorneys in our society. His objective undertakings, both the activities engaged in and the results obtained, reveal genuine efforts to restructure those professional shortcomings which culminated in the prior discipline. His efforts have been exemplary. Elinoff has established by clear and convincing evidence that he is, in fact, rehabilitated. Elinoff has testified and the evidence has shown that he has not merely taken responsibility and shown remorse for his conduct, but that he has used the suspension in a positive way to learn to be a different individual and a better professional.

(Mike Frisch)

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

Practice Pointer: When It Comes To Depositions, Finish What You Start

An attorney who, among other things, allowed her paralegal to complete a deposition, was suspended for 180 days by the Kentucky Supreme Court.

the [Inquiry] Commission [of the Kentucky Bar Association] conducted an investigation and discovered that [attorney] Edmondson had noticed the deposition of Lee Jacobs for May 22, 2014. On that date, the court reporter placed Mr. Jacobs under oath and Edmondson questioned him regarding demographic and other background information. Edmondson then permitted a paralegal to complete the deposition. Based on its investigation, the Commission issued a Complaint advising Edmondson of the allegations and requesting that she provide additional information. The Boone County Sheriff served the Complaint on Edmondson. She did not respond.

There were also client complaints.

The court

Edmondson's conduct herein - misrepresenting the status of cases to her clients, failing to respond to her clients, permitting a paralegal to practice law, and retaining a fee when no work had been performed - merits discipline consistent with that imposed in [a prior disciplinary matter]. Therefore, we adopt the Board's recommendation that Edmondson be suspended for 180 days, that she reimburse Ray in the amount of $500.00, that she attend and complete EPEP, and that she pay the costs associated with this action.

EPEP is the bar's Ethics and Professional Enhancement Program. (Mike Frisch)

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

Sunday, August 28, 2016

After The Fall

An attorney who has been charged by the Illinois Administrator with assisting his disbarred spouse's subsequent unauthorized practice has filed an answer denying any misconduct.

From the complaint (which also charges an "affiliated" attorney with facilitating unauthorized practice)

On June 27, 2013, a default hearing was held in relation to Commission number 2012PR00162, after which the Hearing Board issued a report and recommendation recommending that Ms. Niew be disbarred.

On November 20, 2013, the Court entered an order disbarring Ms. Niew as a result of her mishandling of her client's $2.34 million.

Shortly after November 20, 2013, Respondent Niew learned that Ms. Niew had been disbarred...

Between November 20, 2013 and about early June 2014, Ms. Niew maintained an office in the Jorie Boulevard suite, and she was physically present in the office four to five times per week. During that same period of time Respondent Niew observed Ms. Niew talking on the office telephone, writing letters on the office computer, and conducting meetings. Although Respondent Niew knew that his wife had been disbarred, he encouraged her to deposit money into the firm's client funds account that he knew or should have known was client money for legal services...

Between November 2013 through May 2014, Respondent Allegra, an affiliated attorney at the Law Offices of Stanley Niew, participated in meetings between Ms. Niew and at least six legal clients, including Harry Haralampopolous, Maciej Wilhelm, Peter Vhalos, Julia and Michael Maloney, and John Hryn. Respondent Allegra accepted instructions from Ms. Niew regarding legal work to be completed by Respondent Allegra on behalf of at least one client, Arno Reichel.

The answer responds

[Respondent] Stan denies the allegation that he was a partner with his wife Kathleen at NiewLegal Partners, at any point in time. Stan lacks sufficient information to definitively admit or deny the details of Allegra's affiliation with Niew Legal Partners, subject to the qualification that he believes at one point Allegra was a contract attorney for and subsequently employed by Niew Legal Partners.

 Whether he learned of the disbarment shortly after it had occurred

Admitted, subject to the qualification that Stan lacks sufficient information to admit or deny when he learned that his wife, Kathleen, had been disbarred.

Thereafter

Stan admits that at various points in time, on or near the dates alleged, his wife, Kathleen, was physically present at the Jorie Blvd. Offices, but not to engaged in the practice of law, and that, at some point, his wife, Kathleen, ceased to be present at the Jorie Blvd. Office.

The Chicago Tribune had reported on the criminal case against Kathleen Niew

Oak Park couple Jamal and Leda Khoury thought they were investing their life savings wisely when they transferred $2.3 million into their real estate attorney’s escrow account three years ago to buy commercial real estate properties in the area.

But within hours of the cash landing in the supposedly secure account, their attorney, Kathleen Niew, was stealing it to invest in an ill-fated scheme, federal prosecutors say. Over the next several weeks, Niew wired millions of dollars to mining company investors in far flung places like Singapore and Australia, expecting to make a hefty commission for herself in the deal.

The mining companies failed. Niew never made a penny. And by the time the Khourys realized something was wrong, their nest egg was gone.

On Wednesday, the couple watched silently as Niew, once a seemingly successful author, radio host and seminar speaker, pleaded guilty to 10 fraud counts in a surprise move in Chicago’s federal court. She had been scheduled to go to trial next month. She pleaded guilty “blind,” meaning she had no deal with prosecutors on the length of her sentence...

The guilty plea marked a swift fall from grace for Niew, a self-styled real estate and probate law guru known for her Saturday morning call-in radio show on WIND-AM 560.

The show was canceled in March 2013, shortly after the Tribune detailed Niew's mounting legal troubles, including a lawsuit filed by the Khourys over the missing funds, business associates who accused her of swindling them and state regulators pushing to revoke her law license.

Niew was arrested by federal agents last August at her Oak Brook law office. Three months later, she was disbarred by the Illinois Supreme Court.

Records show Niew, who began practicing law in 1981, had a history of disciplinary proceedings that dated back to 1989. In 2001, justices suspended her license for nine months based on allegations she forged clients' signatures, record show. In 1989 the state disciplined her for falsely stating that she was single when she married again.

In addition to prison time, prosecutors are seeking $2.34 million in forfeiture as well as her 5,500-square-foot Burr Ridge home and a 2009 Lexus LS sedan, records show.

Niew also faces separate federal charges in South Carolina alleging she defrauded investors by promising their money “could not be lost and that the rate of return was guaranteed and far in excess of normal investment returns,” court records show.

Her six-year sentence was reported by the LaGrange Patch.

Niew was a fast rising financial advisor and attorney, founding Niew Legal Partners, LLC, in Oak Brook, along with her husband, Stanley. Among the many accomplishments Niew touts in her online about.me bio, she is a former Republican Businesswoman of the Year, author of two books, a radio probate law guru, and a star on the seminar circuit with her “Money Talks For Women” series.

No answer has been posted for Mr. Allegra. (Mike Frisch)

August 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: Termination Means Stop Filing Pleadings

The Idaho Supreme Court has imposed disbarment of an attorney after a hearing in which the attorney had admitted some of the charges and contested other allegations.

From the summary on the web page of the Idaho State Bar

Count One related to Mr. Robinson’s representation of an 18-year-old charged with felony lewd conduct with a child under 16 years of age. Mr. Robinson admitted that he violated I.R.P.C. 1.2(a) [Scope of Representation] and I.R.P.C. 1.4 [Communication], and the Hearing Committee concluded that the ISB proved by clearing and convincing evidence that Mr. Robinson violated I.R.P.C. 1.1 [Competence], I.R.P.C. 1.6(a) [Confidentiality], I.R.P.C. 1.16(a)(3) [Representation Following Discharge], I.R.P.C. 1.16(d) [Failing to Return Papers and Property to Client Following Termination], I.R.P.C. 3.1 [Meritorious Claims and Contentions], I.R.P.C. 3.3 [Candor Toward the Tribunal], I.R.P.C. 4.4 [Respect for Rights of Third Persons] and I.R.P.C. 8.4 [Conduct Prejudicial to the Administration of Justice].

Those rules violations were based primarily on pleadings Mr. Robinson filed in his client’s criminal case. In that case, Mr. Robinson filed pleadings, after his representation was terminated by his client, containing untrue statements that were prejudicial to his client and the client’s family. Substitute counsel filed motions to strike those pleadings and requested the court seal those pleadings to prevent public disclosure of private, untrue facts which could unduly prejudice the case and the rights of a victim in another criminal case. The court agreed and struck those pleadings from the record and sealed them from public disclosure. The court’s order provided that it appeared at the time the pleadings were filed, Mr. Robinson had already been discharged by his client, the pleadings were filed without client authority and based upon facts which were untrue, or, unverified, irrelevant and beyond the scope of any relevant issue before the court. The Hearing Committee concluded that the timing of those pleadings indicated that Mr. Robinson’s primary purpose was to harass his client and the client’s family for terminating his representation and that he provided no justification or reasonable explanation for filing those documents.

In a civil matter

The Hearing Committee concluded that Respondent continued to act on behalf of his clients after they had terminated his representation and repeatedly requested that he cease communications with opposing counsel on their behalf, and that he disclosed confidential information to opposing counsel that was detrimental to the clients’ case. The Hearing Committee concluded that Mr. Robinson communicated threats to one client that he had information that could affect the client’s real estate license and continued to seek money from his former clients after they settled the case with the City. The Hearing Committee concluded that Mr. Robinson actively campaigned against his clients’ interests in communicating with opposing counsel, which had the potential to severely damage their case.

Boise Weekly reported a story from the McCall Star-News that he was serving as Adams County prosecutor when bar charges were filed. (Mike Frisch)

August 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Multitude Of Crimes

Permanent disbarment has been imposed on a convicted attorney by the Kentucky Supreme Court.

In considering the appropriate penalty for this ethical violation, the Board [of Governors of the Kentucky Bar Association] considered the multitude of felonies for which Coffman was convicted, the fraudulent nature of those crimes, the Board's prior history of recommending permanent disbarment for members convicted of crimes involving knowing dishonesty and misappropriation of client funds, and relevant provisions of the American Bar Association Standards for Imposing Lawyer's Sanctions.

The crimes are described in this report from the Lexington Herald Leader.

A former Lexington lawyer was sentenced Wednesday in federal court to 25 years in prison and was ordered to pay restitution for his role in an oil- and gas-drilling scheme that defrauded at least 594 investors out of more than $36.5 million.

Bryan S. Coffman, 48, was ordered to report to the federal medical correctional center on Leestown Road in Lexington on May 16. Coffman, at times breaking into tears, told U.S. District Judge Karen Caldwell before he was sentenced that he had said goodbye to his 13-year-old daughter earlier Wednesday morning. Coffman's wife, Megan, who was acquitted of money laundering charges in the case, and his two sons, who are college students, were in the federal courtroom in Lexington to hear the sentence.

Coffman asked the judge that he be held in a medical center-type prison because he has diabetes and arthritis.

Coffman also asked for a short sentence.

He maintained his innocence throughout his speech before the judge, but he acknowledged he was tried by a jury of his peers, who found him to be "wanting."

"I have to take responsibility for what occurred, regardless of my role in it," he said. He said he'd lost his law practice, his law license, his reputation and some of his assets, and now he faced losing his liberty.

He said that he was sorry for the victims and that he never intended to deceive them.

Assistant U.S. Attorney Ken Taylor told the judge about victim impact statements he reviewed. There were 95 of them.

"They tell the story of just extreme agony over what happened to them," he said. "Finally, some closure can be given to these people."

Taylor said he was offended by Coffman's claim of innocence and said Coffman's court statement marked the first time he'd uttered a syllable of contrition.

Taylor said later that some of the victims lost their retirement money, the ability to pay for their children's college educations, or their homes, or had suffered serious health problems.

Defense attorney Steve Romines said he would file an appeal in Coffman's case on Thursday. Romines said a new trial will be sought.

"I expected her to give us a big sentence, but we'll keep fighting," Romines said.

Caldwell said that the schemes were "predatory in nature" and that "subterfuge and deceit are readily apparent."

The amount involved in the case was one of the largest the court had seen, the judge said.

In May 2011, Coffman and Gary Moss Milby, a Campbellsville businessman, were convicted by a jury of multiple counts of mail fraud and wire fraud. Coffman also was convicted of two securities fraud counts and was found guilty of 10 counts of money laundering and one count of money-laundering conspiracy. Milby also was convicted of one securities fraud count. He was acquitted of two counts of money laundering.

From 2004 to 2008, Milby and Victor Tsatskin of Canada solicited money from investors across the United States and from Canada. They gave them bogus predictions and guarantees about potential profits of the oil and gas well drilling programs, according to the U.S. Attorney's Office for the Eastern District of Kentucky.

Coffman provided legal and business advice with knowledge of the scheme and helped hide the scheme from investigators, according to the U.S. attorney's office.

Coffman and Milby used the money to pay for boats and vehicles, real estate, jewelry, personal trips, parties, family travel and trust funds, according to the U.S. attorney's office.

Recently, Coffman was ordered to forfeit $3.1 million in cash, a yacht and a condo in South Carolina.

Milby is to be sentenced Thursday. Tsatskin is serving a prison sentence in Canada.

(Mike Frisch)

August 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 27, 2016

From Defense Attorney To Defendant

A one-year suspension was imposed by the South Carolina Supreme Court for an attorney's federal criminal conviction.

Respondent represented a client who was indicted by the U.S. Attorney's Office for trafficking. However, respondent was relieved as counsel for the client after the U.S. Attorney's Office informed the federal court that respondent was being investigated for money laundering in connection with payments made by the client and other criminal clients to respondent.

As part of the investigation, federal agents requested respondent provide records of payments made to him by criminal clients. Respondent provided the requested records; however, the records indicated he had received cash payments for legal fees from multiple clients in amounts greater than $10,000. When questioned by federal agents, respondent denied knowing that he was required by the Internal Revenue Service to file a Form 8300 when the aggregate amount received from a client exceeded $10,000 for one transaction, such as legal representation. He stated he thought the form was only required for single payments over $10,000. However, respondent did know about the reporting requirement and therefore, his assertion was untruthful.

Respondent was charged with violating 18 U.S.C. § 1001 by knowingly and willfully making "a materially false, fictitious, and fraudulent statement and representation in a matter within the jurisdiction of the Executive Branch of the Government of the United States; to wit: he told a Special Agent from the Department of the Treasury that he was not aware of the reporting requirements of Form 8300." Respondent pled guilty and was sentenced to three years' probation, with electronic monitoring for six months. On December 9, 2015, respondent's motion for early termination of parole was granted, and he has now fully satisfied all conditions of his criminal conviction.

In a second matter

Respondent represented a client at various times for criminal charges. Two fee agreements between respondent and the client contained the following provision: "Client acknowledges and agrees that if balance of above agreement is not paid in full as agreed upon, the Law Office of [respondent] will collect by garnishment and/or a lien on any and all client's future tax refunds and/or wages." Respondent admits he does not have the legal authority to garnish wages or tax returns in South Carolina. Another fee agreement between the two referenced payment for representation by a third party, but only referenced the identity of the payor and amount paid, without reference to the scope of representation provided in exchange for the payment.

The attorney gets credit for time served on an interim suspension.

The Palmetto State reported on the sentencing

Chaplin, 47, earlier had pleaded guilty to making a false statement to an IRS agent, telling the agent he didn’t know about reporting requirements for the IRS Form 8300.

That form requires anyone depositing more than $10,000 or more in related cash fees to file a report with the IRS.

“According to court records, Chaplin’s false statements to federal agents occurred when he was questioned in relation to a drug and firearm investigation,” according to a federal press release on the matter issued Wednesday.

During an investigation, “it was determined that Chaplin was directing his criminal defendant clien6ts to pay his fees in a structured manner to avoid reporting those payments to the IRS,” the federal press release said.

(Mike Frisch)

August 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

South V. North (It's All Carolina)

An attorney admitted in South Carolina was sanctioned for unauthorized practice in North Carolina.

In 2011, respondent entered into an agreement for discipline by consent in South Carolina for her conduct underlying the North Carolina State Bar's letter of caution. As a result of the agreement, this Court issued the confidential admonition referenced in footnote 1.

In April 2014, respondent conducted a closing for the purchase of residential property in North Carolina. The purchaser, whom respondent represented, subsequently filed a complaint against respondent with the North Carolina State Bar and the South Carolina Commission on Lawyer Conduct.

In February 2015, the Authorized Practice Committee of the North Carolina State Bar again issued a letter of caution, finding probable cause that respondent had engaged in the unauthorized practice of law. The committee found respondent provided the complainant with legal advice and services and held herself out in numerous emails and communications with the complainant as having a law office in North Carolina. The committee also found respondent negotiated with the seller's attorney on the complainant's behalf, holding herself out as an attorney licensed in North Carolina in the process. The committee demanded respondent stop engaging in the unauthorized practice of law and requested respondent respond to the letter of caution within fifteen days; however, respondent did not respond as requested.

Approximately six weeks after closing, the complainant began inquiring by email and telephone about the title insurance policy that was supposed to have been purchased. Although the complainant initially received responses, respondent's law firm did not obtain the policy, did not adequately follow up on the issue, and later stopped responding to the complainant's inquiries.

Respondent states she thought her paralegal was handling the issue of the outstanding policy, as well as keeping the complainant informed, but respondent failed to supervise the paralegal and later learned that was not the case. Respondent learned about the paralegal's failure to handle the policy issue approximately four months after the closing, at which time respondent told the complainant she would take care of the issue herself. However, respondent became busy and the complainant's concerns "fell through the cracks."

After the complaint was filed in this matter, respondent contacted the title insurance company to learn what steps needed to be taken to secure the policy. However, after taking some action, which she did not document, respondent did not follow up and erroneously assumed the policy had been issued. Respondent did not investigate further until after ODC made multiple inquiries about the status of the policy. Respondent secured the policy in September 2015, well over a year after the closing. Respondent states she mailed the complainant the original policy with no cover letter and did not follow up to ensure he received it. When advised by ODC that the complainant did not receive the policy, respondent arranged for another copy to be mailed to him, which he received.

The complainant filed suit against respondent in North Carolina. Respondent appeared in the matter and has paid the $575 judgment the court awarded to the complainant.

The court imposed a nine-month suspension with conditions. (Mike Frisch)

August 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 26, 2016

Asset Management

A rather lenient suspension order from the Kentucky Supreme Court in light of the misconduct.

Mabab Trade, LLC, entrusted Movant with $775,000.00 to be used in connection with a proposed investment transaction between Mabab, Jason Castenir, and four other investors. Movant initially and appropriately placed the funds into his office escrow account.

About seven weeks later, Mabab requested the return of the funds in their entirety. An attempt to wire the escrow funds back to Mabab was unsuccessful due to a lack of funds in Movant's escrow account. At the time of the refund request, the escrow account contained a balance of approximately $373,131.13. Following this unsuccessful transfer attempt, Movant wired Mabab $300,000.00 about two weeks later, and an additional $47,000.00 about two weeks after that.

The remaining $427,500.00 was eventually returned to Mabab; not from Movant's escrow account, however, but rather from Maverick Asset Management, who had originally received the funds from the escrow account via a transfer initiated by Jason Castenir, one of the original investors. Movant had given Castenir, who is not an attorney, access to the escrow account with instructions to obtain prior approval from Movant before making any transfers from the account. Castenir did not, however, get Movant's approval before initiating the transfer of funds to Maverick Asset Management.

In connection with his failure to immediately return the funds to Mabab upon request, Movant falsely told the Manager of Mabab that the funds were secure even though a portion of the funds had already been transferred to Maverick Asset Management; falsely told him that the escrow account could not be accessed temporarily due to an audit when, in fact, there was no audit; and falsely told him that the funds were "tied up" due to a pending lawsuit in Texas when, in fact, there actually was no such lawsuit.

Mabab filed a lawsuit against Movant and others in connection with the mishandling of its funds, and the case was eventually settled, with Movant's portion of the settlement being $95,000.00, which he has paid. In summary, Mabab has been made whole, and Movant has fully complied with his obligations under the settlement.

Sanction

Movant, Joseph Daniel Thompson, is suspended from the practice of law in the Commonwealth of Kentucky for 181 days, with 120 of those days suspended under the condition that he commit no further ethical violations during the suspension period.

There are places (D.C. is one) where these facts would get far more severe discipline. 

As the Everly Brothers might sing, "A man in Kentucky sure is lucky..."

If I can be permitted a moment of personal privilege, here is a link to a performance of Bowling Green by the Everlys as I remember them at the Celler Door in Georgetown (the location, not the Law School) in about 1973.

My buddies and I went to see the warm up act - a comic named George Carlin - who we met outside the club and chatted with for awhile. A great memory. I asked George to sign a copy of his album and asked that he write something clever.

He wrote: "I can't think of anything clever, How's f*** you?"  

The Everly Brothers opened with this song.

Miss you George. Miss you Phil Everly. Rock on Don.

Thanks for the memories. (Mike Frisch)

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

Moot Point

A petition for reciprocal discipline has been denied by the Kentucky Supreme Court.

The attorney had been subject to a stayed 90-day suspension and probation in Indiana. By the time the reciprocal matter reached to Kentucky Supremes, the probation term had been completed.

On May 23, 2016, this Court issued a status order. The KBA responded, stating that McCall's probationary status in Indiana ended in October 2015 and that it had received no information that McCall had not been compliant with the terms and conditions of his probation.

Based on the preceding, it is hereby ordered that the KBA's petition for reciprocal discipline is denied as moot.

(Mike Frisch)

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

Rank Injustice?

The Kentucky Supreme Court has affirmed the order of its Court of Appeals granting an evidentiary hearing on claims of ineffective assistance of counsel.

The case

Rank was a practicing psychiatrist who developed a romantic relationship with a former patient named Misty Luke, who would become the victim of his assault. The couple lived together at Rank's residence located in the same building as his professional office. After a heated argument with Rank, and apparently believing that he had left the building, Luke texted a message to Rank telling him that she was ending their relationship and leaving. Rank, still on the premises, reacted immediately by returning with a sword and attacking Luke. He stabbed her four times. Other residents in the building heard the commotion and intervened. They overpowered Rank, took the sword, and removed Luke from the scene.

Rank was arrested; his bail was set at $50,000.00 cash. Through the advice of an attorney-friend, Patrick Hickey, Rank hired Gettys for his criminal defense. Rank claims that Gettys and Hickey advised him not to post bond. Gettys obtained Rank's power-of-attorney so that he would have control , over Rank's assets, ostensibly to protect them from a possible civil suit by Luke.

The issues

Rank's RCr 11.42 motion alleged several specific deficiencies in Gettys' representation. Rank claims that Gettys failed to explore the possibility of an [extreme emotional disturbance]  defense and that he failed to explain to him the legal concept of EED. He also claims that the effectiveness of Gettys' representation was compromised by the conflicts of interest inherent in Gettys' fee arrangement. Rank also claimed that Gettys failed to file a formal discovery motion, failed to follow criminal practice and procedure, failed to assist him in posting bond, and failed to adequately counsel him in making a knowing and intelligent decision to plead guilty. He also claimed that Gettys failed to present effective mitigating evidence at the sentencing hearing...

Rank's motion raised a material question as to the reasonableness of Gettys' investigation of the potential for an EED defense or, framed differently, whether it was reasonable for Gettys not to pursue an EED defense.. See Hodge v. Commonwealth, 68 S.W.3d 338 (Ky. 2001) (an evidentiary hearing is required to determine whether counsel's decision was "trial strategy or an abdication of advocacy"). Gettys' knowledge and understanding of the relevant facts relating to a potential EED defense are not evident on the face of the record. An evidentiary hearing on Rank's RCr 11.42 motion was required to ascertain those facts.

But no hearing on conflicts claims

Rank alleges that his acquaintance and personal attorney, Patrick Hickey, not only recommended that he hire Gettys, but also acted as Gettys' co-counsel. As described by Rank, Hickey's role as co-counsel' is demonstrated by Hickey visiting him in jail, advising him (in conjunction with Gettys) not to post bond and to liquidate his assets, counseling him about whether or not to plead guilty, providing materials to the expert witness, and sitting at counsel table during sentencing. Hickey had previously represented Luke in an eviction case and Rank contends that that representation created a conflict of interest for Hickey.

The court rejected a hearing on this and other claims of deficient performance of counsel.

AZCentral.com reported on the criminal case.

A psychiatrist was sentenced Tuesday to 15 years in prison for using a sword to stab a patient he had sex with and plied with narcotics.

Dr. Douglas Rank was sentenced after pleading guilty in October to first-degree assault. Rank, 52, will not be eligible for parole until he serves 85 percent of his sentence.

The charge was punishable by 10 years to 20 years in prison. Commonwealth's Attorney Rob Sanders had recommended 15 years.

 The victim, Misty Luke of Covington, Ky., attended the sentencing hearing but declined to speak with a reporter.

"She has some residual physical effects from the attack, but now most of the lasting effects are mental anguish - difficulty from being attacked by someone she cared about," Sanders said after the hearing.

Rank's lawyer, Robert Gettys, argued for the minimum sentence.

Gettys also called his client's rabbi and former dance partner to testify on Rank's behalf.

"Not one person mentioned he did a terrible thing," Judge Gregory Bartlett said. "Why is that? Why is (it) all the people come and talk about what a great ballroom dancer he is and how passionate he is? They didn't mention he did a terrible thing.

"He could have killed somebody."

Rank did not speak during the 90-minute hearing.

Rank attacked Luke on Feb. 21 in an apartment above his one-room medical office after she broke off their relationship, Sanders said.

He used a Civil War-era sword with a two-foot-long blade taken from a military memorabilia shop and museum located in the same building as Rank's apartment and medical office. Rank's license to practice medicine in Kentucky is currently suspended.

(Mike Frisch)

August 26, 2016 | Permalink | Comments (0)