Friday, September 30, 2016

Trust But Verify

The North Carolina State Bar has filed a complaint alleging that an attorney had delegated trust account administration to a paralegal who stole entrusted funds.

Notably, it is alleged that he continued to employ her after learning of the thefts in June 2012. He nonetheless continued to allow her unsupervised access to the account.

He did terminate the paralegal after discovering further thefts in August 2013.

A routine bar audit discovered the problem and led to the charges.

It is alleged that the paralegal stole approximately $79,000.

The Jefferson Post had the story of the criminal case against the paralegal.

According to courtroom testimony, Roark used the credit card of attorney Andrew Jackson to make several personal purchases from Jan. 10, 2012 to Oct. 31, 2013. The prosecution stated that instead of making extravagent purchases, such as a house or boat, she instead used the credit card at several area restaurants and businesses.

Roark wrote a letter of apology to Jackson, but did not make a statement before the court.

Her attorney said that Roark’s family was recently in dire financial straits – they have been forced to take out several mortgages on their house – in the process of raising three children, said her attorney.

Since her arrest, she has found work as an appointment scheduler at a local doctor’s office.

As part of the terms of her probation, Roark is prohibited from being in a future position that would require her to handle money.

(Mike Frisch)

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

Judge Being Judged

Disciplinary argument involving a judge who refused to perform same-sex marriages has been scheduled, according to a recent report by the Statesman Journal.

The Oregon Supreme Court has scheduled oral arguments regarding the judicial fitness of Marion County Circuit Judge Vance Day. The hearings are set to begin March 22, 2017, and the court will consider whether to sanction Day for ethics violations.

Earlier this year, Oregon's nine-member judicial fitness commission held a two week trial of Day, who was accused of a litany of ethics violations. Prosecutors said he refused to marry same-sex couples; created improper relationships with defendants; allowed a convicted felon to handle a gun; and took money from attorneys that appeared before him, among other accusations.

Day denied the accusations. His attorneys argued that if he did violate any ethics rules, his conduct was protected by the free speech and religion protections of the First Amendment. Day has said his Christian beliefs prevent him from performing marriages for same-sex couples.

The commission — which is comprised of sitting judges, attorneys and members of the public — ultimately said Day violated his oath of office and engaged in criminal conduct. They unanimously recommended that Day be removed from the bench.

Day has said if he's sanctioned, he will appeal to the U.S. Supreme Court, the only venue for appeal of state supreme court decisions.

A former head of the Oregon Republican Party, Day was appointed to the Marion County bench in 2011 by Gov. John Kitzhaber. He was elected to a full six-year term in 2012.

Day continues to sit on the Marion County bench, but has been relocated from the downtown courthouse to the annex building on Aumsville Highway.

(Mike Frisch)

September 30, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Convicted Attorney Suspended

The Tennessee Supreme Court recently suspended a convicted attorney.

The Leaf Chronicle reported on the conviction

Former Clarksville attorney Carrie Gasaway pleaded guilty to one count of theft over $10,000 on Wednesday and will have to spend 40 days in jail in Alabama, according to Montgomery County Circuit Court records.

She had been indicted by a Montgomery County grand jury on three counts of theft in November but the two other cases — for theft of property between $1,000 and $10,000 — were dismissed as part of a plea deal. Wednesday's proceedings were heard in Robertson County by specially assigned judge Paul G. Summers.

Summers sentenced Gasaway to a three-year split sentence, meaning that she will have to serve 40 days in jail, to begin in Henry, Ala., on Aug. 10, be on house arrest for 90 days after her jail time and remain on unsupervised probation for the rest of the three years, according to court documents.

He also ordered that the sentence run consecutive to the sentence she received after being convicted of extortion last year in Montgomery County. In that case, she was sentenced by Summers to two years in prison, which was suspended to four years of probation, two years supervised and two unsupervised.

And also had the story of another criminal matter from May 2015

After nearly 15 hours of deliberation Monday and Tuesday, jurors in the Carrie Gasaway/Fletcher Long extortion trial returned a verdict of guilty.

The jury notified court officers at 3:10 p.m. Tuesday that they had reached verdict for both attorneys after a seven-day trial at the Montgomery County Courts Center.

Long said after the verdict that he honors the jury’s decision, and he is considering changing his profession because it is “too stressful.”

“God has a plan for me, but it’s not to practice law,” he said. “... I think I have some marketable skills.”

Gasaway and Long, two well-known local attorneys, were convicted of trying to extort $50,000 from a client, Michelle Langlois, who hired them to attend the reading of her father’s will in October 2010. The crime is a Class D felony with a sentencing range of two to 12 years with a maximum fine of $5,000.

Carrie Gasaway is the wife of Montgomery County Circuit Judge John Gasaway.

Long has been involved as a defense counsel in two high-profile Middle Tennessee criminal cases. As recently as April, Long was representing Jason Autry, a co-defendant in the kidnapping and slaying of Holly Bobo, a notorious West Tennessee crime.

Long also represented one of four former Vanderbilt University football players accused of raping an unconscious female student in 2013. Long argued at trial in January that his client Brandon Vandenburg did not participate in the rape and was not responsible, but a jury returned a guilty verdict.

In the local trial, the jury did not affix a fine to the convictions, and Judge Paul Summers, who was brought in from another district to hear the case, said a sentencing date will be set within the next 45 days.

Langlois and other family members were emotional as the verdict was handed down.

“It’s been a long road,” she said. “I’ll try to move forward now. I’ll finally get to grieve for my father. It’s been almost five years since his death.”

Long’s attorney Mark Olson, who was essentially the lead counsel for the defense team, said he was “obviously disappointed” with the verdict.

“We look forward to the appealing the decision,” he said. “The court’s last instructions to the jury were erroneous, and I think that really hurt us.”

He said Summers’ answers to two questions from the jury on Tuesday introduced facts into the case that did not pertain to elements of the crime of extortion.

District Attorney Jason Lawson said prosecutors were pleased with the guilty verdict, and he was “glad it got justice for Mrs. Langlois.”

He added that the jury had many pieces of evidence to consider, and he praised their efforts.

The case

During the trial, Langlois testified she hired Long and Gasaway to attend the reading of her father’s will, agreeing only to pay their firm $800. She said afterward Gasaway pressured her to sign a new contract, telling Langlois because of the complexity of the estate, she needed their help to get her inheritance and her father’s house that her step mother was living in.

Langlois opted for a contract paying Gasaway, Long and Associates a $50,000 flat fee for all work involved, and she gave them a $50,000 personal check to hold until she could cash in some of her father’s stocks. Several months passed before Langlois got money from the stocks, and the attorneys had been contacting her about when they would receive their money, threatening multiple times to have her arrested if she did not pay them.

According to testimony, Langlois said when the money was available, she got a certified check for $50,000, of which she faxed a copy to the law office to show she intended to pay them and set up a meeting with Long to deliver it, but canceled because she was sick.

In the meantime, she changed her mind about the contract with Gasaway and Long, and decided to hire another attorney. Langlois took the certified check back to the bank and deposited portions of it in separate accounts, which prevented the attorneys from cashing her personal check.

Long and Gasaway then sought a warrant for Langlois’ arrest, charging her with theft of services for the legal work the firm had done. In the narrative of the warrant, Long wrote that Langlois had given them a $50,000 “bad check” that they were unable to cash for her legal fees.

The criminal charge against Langlois was later dropped because the dispute was considered a civil matter.

Prosecutors contended that Gasaway and Long wanted the $50,000 for a $550,000 real estate deal, and they claim the attorneys took money from another client’s trust account for the 10 percent cash portion of the purchase contract. They intended to replace the money in the trust with Langlois’ $50,000, but the plan went awry when she decided to hire another attorney.

Tuesday questions

Following nearly seven hours of deliberations that began around 2:30 p.m. Monday, the jury returned at 9 a.m. Tuesday to continue its work.

Around 10:30 a.m., the jurors sent questions to Summers, essentially asking if it is legal for a business to hold a check for a customer and to give them more information about a “bad check.” The judge asked the defense and prosecution to help him craft an answer to the questions.

The first answer was a simple yes, so Summers said he would supply the language in the state statute pertaining to a post-dated check.

The defense vigorously objected to the judge supplying a legal definition for a worthless check, which is issued with insufficient funds in the account to cash it.

Olson argued that jury instructions by law, should not include anything that doesn’t apply to the charge the jury is considering. Effectively, passing a bad check is not an element of extortion, which is an attempt to gain personal property or advantage over another person by coercion.

He said the only part of the case involving a bad check was in the theft of services warrant, and nothing connected it with the extortion charge. Introducing it, he said, would likely confuse the jurors.

Prosecutors did not object and said the defendants brought the term into the case via the warrant.

On rebuttal, Olson said if the judge was to give such new instructions to the jury, he should be afforded time for more argument before the jury to introduce new information about the bad check instruction. He added if the new instructions were delivered, “it would give the jury an improper view of what was done.”

Olson said with new jury instructions, “the potential for confusion is remarkable.”

Summers took about an hour to ponder his response, and more discussion followed when he called the defense and prosecution together to let them know his intentions.

Summers said he would answer the jury questions with the definitions, saying the “bad check” referenced in the warrant “was the vehicle that stole their services” and while it is not a worthless check case, “it is part and parcel of this entire litigation.”

About an hour and a half after the judge answered the jury’s questions, they rendered their verdicts.

Aftermath

After the verdict, Lawson said the case, which included a two-year investigation before Gasaway and Long were indicted last year, was prepared in depth “to make sure it was done right.”

He added that he and the judge were brought in from other districts to avoid conflict of interests that might be present with local prosecutors and judges who know and have worked with the defendants.

“This shows that nobody is above the law,” he said.

Another attorney has since been hired to represent Vandenburg in the case, which is set for sentencing in June.

(Mike Frisch)

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

Erroneous Advice Conflict No Basis To Vacate Conviction

A criminal conviction was affirmed by the District of Columbia Court of Appeals

In this appeal, appellant James Blackmon claims that he is entitled to reversal of his convictions and a new trial because his appointed counsel had a continuing conflict of interest as a result of an error made in the course of considering the government‟s plea offer. We conclude that the trial court recognized the actual conflict of interest that was presented and addressed it in an appropriate manner by appointing other counsel to advise concerning the plea offer, and that the record does not support that there was a realistic possibility of lingering conflict that required a mid-trial hearing or appointment of new counsel for trial. Thus, we affirm the judgment of conviction.

The issue

Before appellant's second trial, the government offered a plea agreement: in exchange for a plea of guilty to all the charges, the government would recommend that appellant receive no more than 25 years of incarceration. One of appellant‟s attorneys, Jason Downs, advised appellant that if he rejected the plea offer and was convicted at a second trial, he could not be sentenced to incarceration for more than the 34 years he had received in his first trial. Appellant rejected the plea. On the first day of trial, realizing his mistake,  Downs disclosed his error to the court and requested “that the Court appoint independent counsel to speak with [appellant].” Downs made clear that he was not withdrawing from the case but felt that he should not be the person to explain appellant‟s options in light of his erroneous advice. Appellant also addressed the court at an ex parte hearing at the bench. He said that he “was basically misled . . . [he] thought that not going back to trial, [he] would . . . just get the original sentence. . . . [He] never thought [he] could get more time.” He added, “[i]f you can get the original . . . plea back[,] I‟ll take it” and asked that the court “sentence [him] today” because he did not “want to come back to this courthouse anymore.”

The trial court appointed counsel to advise the client regarding the plea offer

The trial court recognized the inherent conflict of interest in having Downs advise appellant regarding his options after discovering Downs‟s error and therefore appointed new counsel, Michael Madden, to avoid the conflict. Madden consulted with appellant and repeatedly represented to the court appellant‟s wish to accept the first plea offer, with the sentencing recommendation of 25 years. Once Madden replaced Downs as counsel with respect to the plea and the trial court rejected the argument he presented on appellant‟s behalf, Downs continued to represent appellant as trial counsel.

While the mistake damaged the attorney=client relationship to the extent that counsel sought a mistrial

A breakdown in communication — even a hostile relationship — between counsel and client is not the same, however, as a conflict of interest that leads counsel to act with less than complete zeal and loyalty to his client...

Nor does the record support that the defense strategy was influenced by any conflict perceived by counsel. Originally, appellant and counsel had agreed to argue that the government had the opportunity to plant the DNA evidence. A week prior to trial, however, they jointly decided to instead argue that the DNA evidence was unreliable. After realizing his attorney‟s error in advising him concerning the plea, however, appellant no longer trusted his counsel‟s advice and wanted to proceed under the initial theory that the government could have planted the DNA evidence. Counsel proceeded at trial with the theory that the DNA evidence presented by the government was unreliable, arguing to the jury that mistakes were made in the DNA testing: an expired rape kit was used and the vaginal swab tested — a key piece of evidence — was lost. Counsel also argued that the science of DNA testing has advanced sufficiently so that a new test on the lost vaginal swab could yield different results.

As to the trial court

...appellant argues that the trial court had an affirmative duty to inquire into the effectiveness of counsel because of the possibility of a conflict of interest. Appellant asserts that the trial court failed to conduct an inquiry and, as a result, the potential conflict of interest at issue — “the divergence of [appellant‟s] and defense counsel‟s interests because of the possibility that counsel might face some consequence for his incorrect legal advice” — was never explained to appellant and he was, therefore, not in a position to waive the conflict.

The trial court did not deny the request for new counsel, however, on the assumption that appellant had waived a conflict of interest. The trial court recognized there was a conflict as it related to Downs‟s ability to effectively communicate his error to appellant and to advise appellant about his options in light of that error. The trial court addressed this conflict of interest by appointing independent counsel to advise appellant on that issue.

Thus

In conclusion, defense counsel‟s acknowledged erroneous advice concerning the first plea offer was appropriately addressed by the trial court‟s appointment of special counsel to advise appellant concerning his plea options. Our review of the record persuades us that the error in counsel‟s advice did not affect counsel‟s representation of appellant at trial. On this record, the trial court did not need to hold a hearing to decide whether to grant a mistrial and appoint new counsel based on an asserted conflict of interest.

September 30, 2016 | Permalink | Comments (0)

Ohio Bar Hearings Scheduled For October 2016

The Ohio Supreme Court has posted notices of bar discipline hearings scheduled next month.

The Columbus Dispatch had reported on the charges in one of the matters

In a complaint by the Columbus Bar Association, Lindner, 33, of Hilliard, is charged with dishonesty and failing to demonstrate legal competence after being arrested four times. She failed a drug test while on court-ordered probation and admitted to substance-abuse problems.

During 2014, she twice was charged with domestic violence and assault and pleaded guilty each time to a lesser charge of disorderly conduct.

She also pleaded guilty on another occasion to two counts of attempted child endangering in Franklin County Municipal Court. She received suspended sentences and was placed on probation in each case. In a pending case, Lindner is charged with hit-skip, falsification and other traffic charges.

The Chronicle had a story on the other scheduled matter

Former Lorain Law Director Mark Provenza is facing potential sanctions from the Ohio Supreme Court’s disciplinary arm for allegedly failing to provide legal services for two of his clients and then refusing to cooperate with the investigation into allegations against him.

According to a certified complaint filed by the Lorain County Bar Association with the Board of Commissioners on Grievances and Discipline last week, Provenza neglected his responsibilities to the two clients earlier this year.

In one instance Provenza is accused of taking $800 from Robin Maxwell-Smith to file a divorce for her and then not doing any of the work.

Maxwell-Smith paid Provenza $300 on Dec. 27, 2013, for the divorce paperwork to be filed. That money should have been deposited in Provenza’s trust account, where lawyers are supposed to keep money from clients while cases are pending, but that never happened, the complaint said.

Over the next few months, Maxwell-Smith made several attempts to contact Provenza, but never had any meaningful communication with him, although she did pay him another $500 on Feb. 20. That money also wasn’t put into the trust account.

Provenza told Maxwell-Smith to meet him in court March 31, but that day he ignored text messages from her and only talked to her when she had him paged by court staff at the Lorain County Justice Center.

Provenza then told her “that he had not filed any divorce pleadings on her behalf and had forgotten he told her to appear in court for a hearing,” the complaint said.

He also didn’t return the money Maxwell-Smith paid him after she demanded a refund in April, according to the complaint.

In the second incident, Provenza was appointed in March to represent Susan Hughes in a contributing to truancy case in county Juvenile Court and a court appearance was scheduled for April 9.

But Provenza allegedly didn’t make contact with Hughes and ignored her calls. Hughes made several attempts to discuss the issue with court staff, but she was told to get in touch with Provenza, the complaint said.

On May 5, the complaint said, county sheriff’s deputies showed up at Hughes’ house to arrest her on a warrant for failing to show up for her court date, but she wasn’t home.

Hughes continued her efforts to get in touch with Provenza, including reaching out to his family members and another attorney, but she was unable to speak with him until he contacted her May 13, two days before her next scheduled court appearance.

When the two met, the complaint said, Provenza spent only five minutes talking to Hughes before suggesting that she take a plea deal in the case.

“Hughes felt coerced to plead and take the deal as she knew that she could not get another court-appointed attorney, was in tears about the situation, and felt as if she had no other options,” the complaint said.

In both instances, Provenza didn’t have professional liability insurance, something he was required to have under rules for Ohio lawyers.

The complaint also said that Provenza repeatedly failed to provide a written response to the allegations against him when he was contacted by Bar Association attorneys. Failing to cooperate with the investigation is also an ethics violation.

Provenza, who resigned as Lorain law director in 2009 after being sent to serve out a jail sentence for his fourth arrest on drunken driving allegations, declined to comment on the disciplinary complaint Tuesday.

Chris Cook, the Bar Association attorney handling the case against Provenza, said he’s hopeful that Provenza will cooperate.

“My hope is that attorney Provenza engages in the process, otherwise we will be looking at the suspension of his law license,” Cook said.

(Mike Frisch)

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

Reinstated

The Ohio Supreme Court has reinstated an attorney who had been suspended in November 2015.

From the initial disciplinary order

In 2011, DeMarco, while representing a plaintiff in a civil suit, entered into an agreement with defense counsel authorizing Jack Harper, a computer expert whom DeMarco had retained, to search the defendants’ electronic devices pursuant to a strict discovery protocol. Under the terms of the protocol, potentially relevant documents were to be delivered to the trial judge “for an in-camera inspection to determine what documents, if any, [would] be turned over to [DeMarco].” Harper thereafter searched the computers of one of the defendants and placed the results of his search on a disc. Harper, however, gave the disc to DeMarco, who reviewed it and determined that none of the documents would be useful for his case. DeMarco never submitted the disc to then trial judge for an in camera inspection.

At a March 2012 pretrial conference, defense counsel asked DeMarco about the results of the computer search, and DeMarco indicated that there was nothing of value in the documents. After defense counsel questioned how DeMarco could have already come to that conclusion, DeMarco stated that Harper had reviewed the documents and told him that there was nothing relevant. DeMarco denied having possession of the disc containing the documents that Harper had retrieved. After the conference, DeMarco telephoned Harper and left a voicemail essentially admitting that he had lied to the court about having the disc. DeMarco then returned the disc to Harper.

The parties resolved their lawsuit in June 2012, and defense counsel requested that Harper return the disc. When Harper refused, the defendants filed a motion to compel. In response, Harper notified the court that he had destroyed the disc. In November 2012, the trial judge held a hearing for Harper to show cause why he should not be held in contempt, and Harper testified that he had given a copy of the disc to DeMarco and that after DeMarco had advised him that the case was over, he had destroyed all media related to the matter.

In response to Harper’s testimony, DeMarco repeated multiple times—both in the judge’s chambers and in open court—that he had never received the disc from Harper and that he had not reviewed documents on the disc. In fact, when responding to Harper’s specific testimony that DeMarco had lied to the court at the March 2012 conference, DeMarco stated that he “would like to go outside with [Harper]” and that he “never lied to anybody, especially to a Court.” Harper, however, then played DeMarco’s voicemail for the judge. After that, the show-cause hearing quickly ended without the judge taking any punitive action against Harper. Defense counsel and the judge later jointly notified relator about DeMarco’s multiple false statements to the court.

The court had imposed a one-year suspension with six months stayed. (Mike Frisch)

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

Thursday, September 29, 2016

Lawyer Disbarred For Insider Trading Reinstated

An attorney who had been disbarred as a result of a criminal conviction has been reinstated by the New York Appellate Division for the Second Judicial Department.

The attorney was admitted in 2004 and disbarred in 2008.

CBS Money Watch reported on the conviction

A married couple, both lawyers, pleaded guilty to conspiracy and securities fraud Thursday in what was described as one of the biggest insider-trading cases since the 1980s, a $15 million scam that reached into some of the nation's top financial firms.

Randi Collotta, 30, a former employee of Morgan Stanley in Manhattan, and her husband, Christopher Collotta, 34, who worked in private practice, were among 13 people who were criminally charged in the case. They have each been free on $250,000 bail.

The government said the inside trading network relied on insiders at Morgan Stanley and Co. and UBS Securities LLC to steal valuable secrets from the companies. It also alleged a Banc of America Securities LLC broker accepted cash kickbacks and two former representatives of Bear Stearns & Co. obtained UBS inside information.

The Securities and Exchange Commission has described the case as one of the most pervasive Wall Street insider trading rings since Ivan Boesky and Dennis Levine engaged in notorious insider-trading schemes in the 1980s.

According to prosecutors, Randi Collotta was an associate in Morgan Stanley's global compliance division when she passed inside stock tips to her husband, who gave it to others, resulting in illegal profits of hundreds of thousands of dollars between September 2004 and August 2005.

Others made money from the tips and then paid Christopher Collotta cash that represented a portion of their profits, according to an indictment.

The Collottas and three others had been charged with conspiracy to commit securities fraud and securities fraud, which carry potential penalties of up to 25 years in prison.

When they announced the case in March, prosecutors and SEC officials said the defendants included registered representatives, compliance personnel and hedge fund portfolio managers who illegally used hundreds of tips over five years.

U.S. Attorney Michael Garcia said at a news conferencing announcing the case that Wall Street professionals repeatedly traded on secrets revealed to them by insiders at UBS and Morgan Stanley.

Stock upgrades and downgrades by UBS and impending corporate acquisitions involving Morgan Stanley clients were relayed to others so a few investors could cash in before the news hit the market, authorities said.

The SEC said the ringleaders of the UBS part of the scheme went to great lengths to hide their illegal conduct, with tactics including a clandestine meeting at Manhattan's famed Oyster Bar and eventually the use of disposable cell phones, secret codes and cash kickbacks.

At least three people besides the Collottas had already pleaded guilty to charges in the case and were awaiting sentencing.

The court here reinstated the husband.

NBC News had the story of the sentencing

 A former Morgan Stanley and Co. lawyer and her husband, also an attorney, won leniency Thursday in a major insider trading case that resulted in more than $600,000 in profits for others but only $9,000 for them for their tips.

U.S. District Judge Victor Marrero sentenced Christopher and Randi Collota to six months of home confinement and Randi Collotta, 30, to 60 days in the custody of federal prison authorities on nights and weekends.

The judge cited the severe illnesses of Christopher Collotta, 34, as a reason to sentence the couple to shorter terms than they had agreed to serve when they entered guilty pleas in May to conspiracy and securities fraud. She had faced up to 18 months. He had faced up to 16 months.

It is at least somewhat remarkable that an attorney could be both disbarred and reinstated within twelve years of admission. (Mike Frisch)

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

Censure For Cocaine Possession

A public censure has been imposed by the New York Appellate Division for the Second Judicial Department for a cocaine possession offense

It was alleged that on or about May 23, 2014, the respondent knowingly possessed a narcotic drug, cocaine, having a weight of one-eighth ounce or more. On January 26, 2015, pursuant to a written plea and sentence contract, the respondent entered a plea of guilty to a reduced charge of criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03, a class A misdemeanor. In his plea allocution, the respondent admitted that on May 23, 2014, he knowingly and unlawfully possessed cocaine. Pursuant to the plea and sentence contract, the matter was transferred to a Nassau County treatment court.

As to misconduct

We find that the Special Referee properly sustained charge two, but improperly declined to sustain charge one based upon the evidence adduced, which established that the respondent engaged in illegal conduct that adversely reflects on his honesty, trustworthiness, or fitness as a lawyer, and that adversely reflects on his fitness as a lawyer, in violation of rules 8.4(b) and (h) of the Rules of Professional Conduct (22 NYCRR 1200.0), as alleged in charges one and two, respectively. Accordingly, we grant the Grievance Committee's motion to confirm in part, and disaffirm in part, the Special Referee's report.

And sanction

In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: the respondent's compliance with the conditions imposed in treatment court, which resulted in the dismissal of the criminal charges against him on January 26, 2016, his sincere statements of remorse, numerous affidavits and affirmations in support of his good character, and his unblemished disciplinary record.

(Mike Frisch)

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

Wednesday, September 28, 2016

The Cocaine In The Denali

A two-year suspension was imposed by the South Carolina Supreme Court as a result of a criminal conviction and misconduct in connection with the representation of a client in a personal injury matter.

The attorney's crimes were described by the United States Attorney for the Western District of North Carolina

According to information contained in court documents and today’s sentencing hearing, Anderson represented Lonnie Maddox on federal drug charges in South Carolina in connection with a large-scale cocaine conspiracy. Court records indicate that from February 21 to March 15, 2013, and on five different occasions, Anderson lied to federal agents concerning his knowledge of the whereabouts of two of Maddox’s vehicles. Maddox had purchased the vehicles with the illegal proceeds of his drug dealings. According to court records, Anderson knew where Maddox’s Yukon Denali sport utility vehicle was located, but repeatedly denied this fact when questioned by DEA and HSI agents. Court records also show that Anderson lied to law enforcement about his participation in moving the Denali, which law enforcement ultimately retrieved from Anderson’s law partner’s residence. According to today’s sentencing hearing, when law enforcement agents recovered the Denali, they found one kilo of cocaine hidden in a concealed compartment inside the vehicle.

In addition to the Denali, Anderson also initially lied to federal agents about possessing another one of Maddox’s vehicles, a classic Chevrolet Chevelle, court records indicate. And despite Anderson later admitting to law enforcement that he had in fact possessed the Chevelle, Anderson lied about the location from where he had obtained the vehicle.

 The suspension was imposed nunc pro tunc to the date of an interim suspension. (Mike Frisch)

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

Client Autonomy Trumps Attorney's Desire To Press Insanity Defense

The New Jersey Supreme Court has held that a competent defendant retains the authority to refuse to pursue an insanity defense notwithstanding the wishes of her attorney.

When a criminal defendant is found competent to stand trial under N.J.S.A. 2C:4-4, he or she has the autonomy to make strategic decisions at trial, with the advice of counsel, including whether to assert the insanity defense. Based on the trial court’s finding that defendant was competent to stand trial, and the detailed explanation that it gave defendant of the potential benefits and risks of the insanity defense, the court should have permitted her to decide whether to assert the defense, rather than invoking it on her behalf. We reverse the trial court’s judgment of acquittal by reason of insanity on the stalking charge, and remand for a new competency determination and, if appropriate, a new trial on this charge. We affirm defendant’s conviction on the weapons charges.

From the court's headnotes

 Through persistent efforts over more than a decade, defendant June Gorthy attempted to commence a relationship with C.L., a mental health therapist residing in New Jersey whom she met only briefly in 1998 at a conference in California. After the conference, defendant repeatedly sent C.L. gifts, letters and phone messages, stating that she was in love with C.L. C.L. categorically rejected these overtures. Defendant then abandoned her home in Colorado and drove to New Jersey, where she repeatedly contacted C.L. Defendant was arrested when she was found sitting on the floor in front of C.L.’s office. Defendant was carrying a knife, and, after a consent search of her truck, the police found several guns, ammunition, including hollow point bullets, another knife and an axe. Upon her release from jail, she initially complied with instructions not to contact C.L., but then resumed doing so.

Defendant was arrested again, and charged with stalking and weapons offenses. Defendant was released on bail, and admitted to pre-trial intervention subject to conditions, including that she have no contact with C.L. Defendant complied until the spring of 2006, when she made seventy-four calls to C.L. over a three-week period. On November 15, 2006, defendant was charged under a superseding indictment with stalking and weapons offenses.

Defendant filed a pretrial motion challenging her competency to stand trial. After reviewing defendant’s medical records and mental health evaluation, and questioning defendant, the trial court concluded that she was competent. Prior to trial, defendant’s counsel served notice that defendant may assert an insanity defense, and submitted the report of a psychiatrist who opined that defendant was psychotic and delusional at the time of the alleged offenses. The psychiatrist further opined that, if defendant were to decide not to assert an insanity defense, she would be doing so knowingly, but not intelligently or voluntarily.

Defendant declined to raise the insanity defense, over the objection of her attorney. The trial court held a hearing at which the judge explained to defendant the consequences of declining to assert the defense, and of asserting it and being acquitted by reason of insanity. Defendant continued to refuse to assert an insanity defense. The trial court concluded that defendant’s delusional condition had limited her ability to knowingly, intelligently and voluntarily determine whether to raise the defense, and then asserted the defense on her behalf on the stalking charge. Defendant was found not guilty by reason of insanity on that charge, and convicted on the weapons charges. The court entered an order of civil commitment on the stalking charge, and probation on the weapons convictions.

Defendant appealed her conviction, challenging the trial court’s decision to assert the insanity defense on her behalf, and also raising several trial errors. The Appellate Division reversed the trial court’s judgment on the insanity defense, and remanded for a bifurcated hearing on the insanity defense and the substantive defenses. This Court summarily remanded for reconsideration as to the insanity defense in light of the Court’s disapproval of bifurcated proceedings where an insanity defense is raised. On the remand, another panel of the Appellate Division, in a published opinion, affirmed the trial court’s judgment of acquittal by reason of insanity on the stalking charge. The panel rejected defendant’s contention that because she was found competent to stand trial, the court should have permitted her to decline to raise the insanity defense, holding that a defendant’s determination not to raise a defense is subject to a higher standard than that set by the competency statute.

The Appellate Division decision is linked here.

Clearly, defendant lacked the ability to make a rational choice on the question of defenses to the stalking count. She wanted validation of the “truth” of her imagined relationship with the victim, a motive irrelevant to the legal decision of waiver, unrelated to trial strategy, or even to any legal question. On the subject of the stalking charge, defendant's reasons for waiving the insanity defense were neither intelligent, nor voluntary, arising as they did from a compulsion.

Accordingly, we find that the trial judge did not err. His conclusion was, indeed, based on “sufficient supporting evidence.” See State v. Purnell, 394 N.J.Super. 28, 50 (App.Div.2007). Defendant's decision to waive the insanity defense was not knowing, voluntary, and intelligent. See Handy, supra, 215 N.J. at 362. The judge's decision to interpose the defense over defendant's objection was correct.

Asbury Park Press covered the trial. (Mike Frisch)

September 28, 2016 in Clients | Permalink | Comments (0)

Disqualification Order Reversed

The grant of a motion for disqualification of counsel motion was reversed by the New York Appellate Division for the First Judicial Department.

This is a legal malpractice action to recover as damages the attorneys' fees incurred in prosecuting the appeal in a prior lawsuit alleging damages caused by defendants' discovery violations. While we agree with the motion court that the testimony of plaintiffs' attorneys, who had represented plaintiffs on the prior appeal, was necessary and that defendants did not engage in undue tactical delay in seeking disqualification on that ground, we find that defendants failed to carry their heavy burden of demonstrating that the attorneys' testimony would be prejudicial to plaintiffs (see Broadwhite Assoc. v Truong, 237 AD2d 162, 163 [1st Dept 1997] ). The deposed attorney's failure to recall certain details during his deposition testimony, the alleged overlaps in his firm's billings, and defendants' speculation concerning the attorney's supervision of an associate not admitted to the bar do not constitute evidence that the attorney's testimony would be adverse to the interests of his clients (see id.).

We decline to consider the other ground on which defendants urge disqualification, which they raise for the first time on appeal. If we were to consider it, we would reject it, because there is no justification for the delay of nearly two years in raising the argument.

(Mike Frisch)

September 28, 2016 | Permalink | Comments (0)

Tuesday, September 27, 2016

The Ungovernable

A Hearing Tribunal of the Law Society of Upper Canada has ordered license revocation of a member deemed to be "ungovernable"

A determination of ungovernability is based on a case by case analysis, the guiding principle of which is protecting the public interest.  It is essential that members of the profession be willing to be governed by the Law Society and adhere to its dictates, otherwise, the public cannot be protected...

The series of suspensions based upon prior findings of professional misconduct is evidence of unwillingness or an inability on the part of the Mr. Cuddy to be governed by the Law Society.  The progressive and increased penalties have not had the desired effect of modifying his behaviour and making him more amenable to compliance and co-operation with the Society’s investigative duties and function.  This is further evidenced by this fourth finding of professional misconduct.

This is confirmed ultimately by the Licensee’s expressed willingness to surrender his licence.  The question is whether or not the Tribunal should grant Mr. Cuddy permission to surrender or impose a penalty of revocation.  That determination turns upon the second branch of the test of ungovernability.  This Tribunal must balance the nature of the misconduct and disciplinary history against mitigating factors.

The factors did not favor resignation

The Tribunal is not without compassion.  However, we are bound to balance the aggravating and mitigating circumstances of the case in respect of penalty.  We must consider the issues of general and specific deterrence, rehabilitation and the interests all lawyers and paralegals share as self-regulating professions in protecting the public. On the issues of specific deterrence and rehabilitation, surrender of licence versus revocation of licence is a moot point.  In both circumstances Mr. Cuddy would no longer practise law.    

On the point of general deterrence, it is important to highlight a licensee’s obligation to co-operate with the Law Society in discharging its duty to protect the public by providing prompt meaningful responses to the Law Society in its inquiries.  The Tribunal concludes that this is a case in which reproof of unresponsive conduct is necessary.  Mr. Cuddy’s repeated conduct of non-compliance has thwarted the Law Society’s critical function of protecting the public interest on several occasions.   As noted in Strong... repeated and habitual non-compliance by licensees with inquiries, correspondence and communications from the Law Society “compromises the credibility of the self-governance regime” that lawyers and paralegals in Ontario enjoy.

Bottom line

Although we have compassion for the Licensee, the behaviour exhibited by the Licensee necessitates revocation.

(Mike Frisch)

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

Almost Teacher Of The Year

The Louisiana Attorney Disciplinary Board has recommended a fully-stayed one year and a day suspension for conversion of entrusted funds.

In December 2006, Respondent wrote checks drawn on the firm's client trust account totaling $2,900 [sic t to obtain cash to permit him to gamble at a Shreveport casino.

Respondent thereafter self-reported these offenses to ODC and began treatment with Gamblers Anonymous. Full restitution of the funds were made to the firm's account shortly after Respondent reported to the ODC.

Nonetheless, by his acts and omissions, the Respondent has violated Rule 1.15 (conversion of client/third party funds).

As to sanction

The Levith case is similar to the matter at hand in that both respondents converted funds from their client trust accounts to pay for gambling activities. The Board recognizes that Mr. Levith's misconduct was classified as negligent by the Court, and Mr. Miciotto's misconduct was knowing and intentional. Nevertheless, given the mitigating factors present here, including absence of a prior disciplinary record, personal or emotional problems, remorse, and full and free disclosure to disciplinary board or cooperative attitude toward proceedings, the Board finds that the hearing committee's recommended sanction of a one year and one day suspension, fully deferred with conditions, is more appropriate than the harsher sanction imposed in Levith. Further, the Board is impressed with the Respondent's efforts towards rehabilitation and his work from 2007-2014 as a teacher in the Caddo Parish School District. As noted above, the Respondent earned the honor as Teacher ofthe Year at Fair Park High School in 2013 and was a finalist for 2013 Teacher of the Year for the Caddo Parish School District. The affidavit submitted by Schannon Lanclos, his former supervisor at Woodlawn High School and Fair Park High School in the Caddo Parish School District, describes Respondent as an outstanding teacher, coach and employee who was well-respected by students, teachers and school administrators. Given this, the Board will adopt the hearing committee's recommended sanction, with the addition of a two year probationary period.

I accord substantial weight to the voluntary self-report but otherwise view this as a rather lenient response to the misconduct.

Notably, it appears that the self-report occurred in 2007. (Mike Frisch)

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

Linked Out

A September 6 Judicial Ethics Opinion from Massachusetts:

Linked In: Using Social Networking Site
September 6, 2016

You have asked the CJE whether you may accept Linked in requests from attorneys who appear before you. You have also asked whether you must disconnect from Linked In connections you may have with attorneys who appear before you.

Your question requires us to consider whether our analysis and advice in Letter Opinion No. 2016-01, Facebook: Using Social Networking Site, is applicable to Linked In. We believe that the same overarching principles and concerns stated in Op. 2016-01 apply to all forms of social media that are currently available. Different types of social media networking may, however, pose distinct issues due to their features and the nature and extent of the audience with access to content posted by the judge.

Linked In is primarily a business-oriented social networking site, although some Linked In users post personal updates on and send personal messages through their Linked In accounts. A Linked In user, like a Facebook user, creates a personal profile. The Linked In user may then invite others "to connect" and respond to invitations "to connect" sent by others. Affirmative replies lead to the establishment of a "connection." Users may also "like" a connection's updates and achievements, endorse a connection's skills, and post recommendations. These actions will generally be visible on the profile page of the connection (although a Linked In user may choose not to post endorsements and recommendations). Linked In's default settings permit each user to view each connection's entire list of connections and vice versa. This is considered one of the most useful aspects of Linked In; a Linked In user may ask a connection (a first-order connection) to introduce the user to one of the connection's connections (a second-order connection). While Linked In resembles Facebook by requiring a person's affirmative response to connect with another, many if not most Linked In users seek to grow their number of connections so as to increase their business network. Moreover, Linked In user profiles are generally available to any other Linked In user (even if not a connection) who logs onto the Linked In website and enters the name of any person with a Linked In profile.

In our judgment, and consistent with Op. 2016-01, a judge who uses Linked In may not be connected with any attorney who is reasonably likely to appear before that judge. This conclusion requires a judge to reject requests to connect with and to disconnect from lawyers who are reasonably likely to appear before the judge(1). Because of the prevalence of professional recommendations and endorsements of professional skills that appear on many Linked In profiles, disconnection and disclosure are necessary to protect the independence, integrity, and impartiality of the judiciary. Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows(2) to be a Linked In connection appears before the judge. The existence and nature of the Linked In connection (e.g., whether, while the judge was a practicing attorney, the judge had posted a recommendation or endorsement on the profile page of this lawyer) is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is unwarranted, the judge should both disconnect from the lawyer on Linked In and disclose on the record the existence and nature of the Linked In connection.  See Rule 2.11, Comment [5]. If a judge knows that a lawyer appearing before the judge is a former Linked In connection, the judge should consider the nature of that past connection to determine whether disclosure is warranted. See Rule 2.11, Comment [5B].

As the use of social media continues to grow, we again emphasize judges' obligations under the Code of Judicial Conduct, including the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in their professional and public lives; maintain the dignity of judicial office at all times; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office. Judges must expect to be the subject of public scrutiny that might be burdensome if applied to other citizens. Each judge who uses social media must take steps to minimize the likelihood that the manner in which that  judge uses social media would lead a reasonable person to question the judge's impartiality.

Judges must, of course, be aware that all social media communications may become public. See, e.g., In the Matter of Archer (Alabama Court of the Judiciary, August 8, 2016) (judge conducted what he regarded as "private" Facebook communications with a Facebook friend who made a copy of these communications and shared them with a reporter).  There may also be sound reasons, apart from ethical considerations, for a judge to exercise restraint when using social media, such as the judge's concerns over the personal safety of the judge or the judge's family members. As we stated in Op. 2016-01, judges inclined to use social media should carefully weigh the risks and benefits.  


(1) This requirement also applies to parties or witnesses reasonably likely to appear before the judge.

(2) The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.

(Mike Frisch)

September 27, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Monday, September 26, 2016

An Affair To Reprimand

The Virginia State Bar Disciplinary Board web page reports

On September 20, 2016, the Virginia State Bar Third District Subcommittee issued a public reprimand to Cameron Heaps Ippolito for violating a Georgia Rule of Professional Conduct that governs special responsibilities of a prosecutor. This was an agreed disposition of misconduct charges.

WTOC.com 11 had a story that may be related

The fallout continues from an illicit affair between an ATF agent and an assistant U.S. Attorney who've both teamed up for more than 200 gun and drug cases.

Not only is the affair facing continuous scrutiny, but it's now the subject of an investigation by Justice Department's Office of Inspector General.

The affair between assistant U.S. Attorney Cameron Ippolito and ATF Special Agent Lou Valoze went on in secret for five years.

Two Brunswick men who Ippolito and Valoze worked together to put behind bars on gun and drug charges have been given new trials. A third person is set to get his sentence reduced, while the fourth has filed a motion for a new trial.

The defendant, Eduardo Cruz-Camacho, claims ATF agents lured and entrapped him into a fake Savannah storefront. The ATF was using a secret informant, who Cruz-Camacho claims harassed and threatened him until he brought an illegal gun to the fake store.

The Department of Justice admits that Ippolito and Valoze conspired to keep the informant in the country, falsifying a Visa application even though he'd stolen from the ATF.

“The Department takes these allegations seriously and is taking active and appropriate steps with regard to the employees involved,” said the ATF.

The ATF declined to comment further only to cite the department's ongoing investigation into the matter.

Neither the ATF nor U.S. Attorney's office in Savannah will say whether Ippolito and Valoze are still employed.

Law360 had this story.  

ABA Journal also reported on the fallout.  

Jacksonville.com noted a sentence reduction ordered in a case involving the agent and the AUSA and new trials granted in two other mtters .  (Mike Frisch)

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

Yeast Of the Misconduct: Bar Complaint Was "Craven, Cowardly, And Unmanly"

A 30-day suspension has been imposed by the Virginia State Bar based on an agreed disposition.

The complaint was filed by counsel in a motor vehicle personal injury accident; respondent was opposing counsel.

Respondent stipulated in the bar matter that he "was personally insulting, verbally abusive and rude toward [the complainant], his client, and others..."

He had called the client a "scam artist" with a "garbage" case, asked "[w]hy don't we adjourn to Mr. Rogers' neighborhood on this?" and told the plaintiff at deposition that he was "not going to try any more logic on you."

He interrupted counsel at the treating doctor's deposition and accused him of a "slight [sic] of hand" by having the doctor adopt prior deposition testimony.

Most lamentably, he engaged in misconduct by  "unnecessarily and unduly dwelling on a yeast infection for which plaintiff had been treated."

His answer to the bar complaint lent fuel to the fire as he sought to "first put [complainant's] whine in its proper context and then offer my cure for what ails [him]."

The "whacking" he had administered to complainant left him "a man pirouetting across the courtroom floor and then planting a vicious roundhouse punch on his own nose."

In an interview with the bar, he called the matter "horseshit," expressed the view that it is "craven, cowardly, and unmanly" for one lawyer to complain about another, and explained that the "boobs at the bar just do not understand why his tactics are not only acceptable but effective." (Mike Frisch)

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

A Long Time for A Fairly Simple Task

An attorney who had neglected to pursue a divorce for a client was censured by the New Jersey Supreme Court.

According to the report of the Disciplinary Review Board

From late 2006 through 2012, respondent’s office seeking the status of her divorce. Hutt frequently contacted Respondent would then send her new versions of the draft complaint and/or other forms to complete, which respondent told Hutt were necessary due to the passage of time.

At the DEC hearing, respondent conceded that, although she had received from Hutt sufficient information to immediately file a divorce complaint on Hutt’s behalf, she failed to do so through all of 2007.

The back-and-forth continued for several years and led the client to seek a refund.

Then

Hutt then received a copy of respondent’s September 11, 2012 letter to the Camden County Clerk purportedly enclosing the complaint for filing, along with a $275 check for the filing fee. In a contemporaneous telephone conversation, respondent told Hutt that the complaint had been filed. As it turned out, that was not true.

The client discharged the attorney by phone that day.

The DRB

Hutt retained respondent in late 2006 to file a fairly simple divorce. In fact, even Hutt’s then-husband tried to hurry respondent along, to no avail. Inexplicably, respondent failed to file a complaint in late 2006 or early 2007, even though she already had all of the information necessary to file a complaint.

By all accounts, Hutt did what was expected of her, returning to respondent the multiple versions of the same unfiled documents that respondent periodically sent her for updates. Respondent, however, dropped the ball -- not once, but numerous times over the six years from late 2006 until September 2012, when Hutt finally terminated the representation.

(Mike Frisch)

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

Your Bond Is My Fee

The Illinois Administrator has charged an attorney with dishonesty and engaging in business transactions with two clients in criminal matters.

He is alleged to have changed fee arrangements mid-case to access bond money.

In a stolen car case

The new fee agreement that Respondent asked Rayford to sign on March 1, 2012, ... provided for Respondent to keep the $2,150 in fees he had already received from Rayford and, in addition, allowed Respondent to take the entire $4,500 bond refund in Rayford's case as fees, for a total fee of $6,650.

At no time did Respondent advise Rayford to consult with independent counsel before Respondent asked Rayford to sign the new fee agreement, which allowed Respondent to collect $4,150 in additional legal fees, above the original $2,500 flat fee agreement between Respondent and Rayford. At no time did Respondent explain to Rayford that Respondent's receipt of the additional legal fees was contrary to the agreement to pay Respondent a flat legal fee and that he had no obligation to agree to pay Respondent additional legal fees.

At no time did Respondent explain to Rayford that his interest in obtaining additional legal fees was in conflict with Rayford's interest in maintaining the existing $2,500 flat fee agreement, nor did Respondent obtain Rayford's consent to his receipt of the additional fee after disclosure.

In a robbery case

 Prior to Adams plea and sentencing, Respondent asked Adams, outside the presence of [his mother] Isom, to sign his cash bond refund over to Respondent to be applied to his legal fees. Adams advised Respondent that he and Respondent would need to speak with Isom. Respondent, Adams and Isom then discussed the bond refund. Isom and Adams agreed to have the bond refund signed over to Respondent with the understanding that Respondent would advise Isom when he received the bond refund check and send her the balance of the bond refund after subtracting the fees still owed to him from the $5,000 fee agreement. Respondent accepted an additional $300 in cash from Isom that day to be applied to the $5,000 fee, resulting in a balance of $2,885 owed to Respondent from the bond refund and a remainder of $6,115 to be returned by Respondent to Adams and Isom. After that conversation Adams signed the Petition/CBR to Attorney document authorizing his bond to be refunded to Respondent.

Thereafter, he is alleged to have converted the bond money, created a false document and made a false statement in the disciplinary matter. (Mike Frisch)

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

Friday, September 23, 2016

Consent Suspension In Louisiana

The Louisiana Supreme Court accepted a consent suspension of an attorney whose federal suspension was recently affirmed by the United States Court of Appeals for the Fifth Circuit.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent acknowledges that he engaged in conduct that was prejudicial to the administration of justice and implied an ability to improperly influence a judge, in violation of Rules 8.4(d) and 8.4(e) of the Rules of Professional Conduct.

Having reviewed the petition, IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joseph N. Mole, Louisiana Bar Roll number 9538, be suspended from the practice of law for one year, with all but six months deferred

The conduct in the federal matter related to an effort to recuse since-impeached Judge Thomas Porteous.

A single judge of the district court had recommended dismissal but 

The en banc court disagreed. It found that “the clear and convincing evidence introduced at the Senate hearing and before this Court establishes Mr. Mole selected and recommended Mr. Gardner to represent Lifemark because of Mr. Gardner's close friendship with Porteous and with the intent to get Porteous recused,” and that “the clear and convincing evidence establishes the [$100,000] severance fee in the letter agreement was intended to provide an incentive for Mr. Gardner to achieve this result.” The en banc court found that Mole's conduct violated Rules 8.4(d) and (e) of the Louisiana Rules for Professional Conduct and suspended him from practice before the court for one year, with six months deferred. This appeal followed...

The en banc court found that Mole hired Gardner to prompt Porteous's recusal after reviewing testimonial evidence derived from both the Senate hearings and Mole's own disciplinary hearing before Judge Berrigan, as well as documentary evidence such as the retention letter between Mole and Gardner. The en banc court found the “testimony that the terms of the letter agreement were not drafted in an attempt to secure the recusal of Porteous to be incredible.” The en banc court highlighted Mole's testimony before the Senate, where Mole admitted that “getting the judge to recuse himself would be the only way to get a fair outcome”; “getting Judge Porteous to recuse himself was a priority with [him], and one of the things [he] hoped Mr. Gardner's presence in the case ․ would accomplish”; and that he “certainly considered that maybe if [Gardner] got involved ․ Porteous didn't have a legal responsibility to recuse himself because of that but that he might.” The en banc court also noted that it “did consider evidence presented at the [hearing before Judge Berrigan], but also gave weight to the sworn testimony before the Senate ․ given at a time when the witnesses had no personal stake in the outcome.” The en banc court thus concluded that, “[t]aken as a whole, the evidence provided clear and convincing evidence that Mr. Mole's intent was to prompt former Judge Porteous's recusal.”

Based on all of the above, the en banc court's conclusion is plausible. First, Mole's Senate testimony contains numerous admissions regarding his hope that the retention of Gardner might prompt a recusal. Second, the $100,000 severance fee in the retention letter incentivizes the prospect of a recusal. A lthough Mole claims that the severance fee was merely intended to “buy out” Gardner, the evidence shows that Gardner never requested such a provision in the agreement. Mole also acknowledged that if Porteous had recused himself immediately upon Gardner's enrollment, Gardner would have received the full $200,000 payment for enrollment and severance, despite not doing any work. This shows that the severance fee was unrelated to any labor Gardner may have performed on the case or any opportunity cost he may have incurred in time away from his own practice. It is therefore plausible that the purpose of the severance fee was to prompt a recusal.

Finally, even if we find Mole's version credible, “[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir.2015) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). And “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. Because the en banc court's determination that Mole hired Gardner to obtain Porteous's recusal is plausible in light of the record as a whole, we cannot set aside that finding.

The Fifth Circuit rejected a variety of procedural and substantive objections to discipline. (Mike Frisch)

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

Not To Late To Sue

A legal malpractice suit was not time-barred, according to an opinion of the Alaska Supreme Court. 

A client personally financed the sale of his business corporation. His attorney drafted documents that secured the buyer’s debt with corporate stock and an interest in the buyer’s home. Over seven years later the government imposed tax liens on the corporation’s assets; according to the client, it was only then he learned for the first time that his attorney had not provided for a recorded security interest in the physical assets. The client sued the attorney for legal malpractice and violation of the Alaska Unfair Trade Practice and Consumer Protection Act (UTPA).

The superior court held that the statute of limitations barred the client’s claims and granted summary judgment to the attorney. But we conclude that it was not until the tax liens were filed that the client suffered the actual damage necessary for his cause of action to be complete. We therefore reverse the judgment of the superior court and remand the case for further proceedings.

The statute does not begin to run until all elements of the action exist.

In this case the superior court found that Jones was injured when he and Grunwald signed a sale document that failed to secure Jones’s interest in the business assets. The court reasoned that once Jones had contracted for an inadequate security interest, the attorney’s alleged failure to meet his professional duty of care had injured Jones and the malpractice claim accrued.

But Jones did not suffer any appreciable injury at the time the sale documents were signed in 2004. Like the plaintiffs in Austin, Jones received a contract that was less than he allegedly expected it to be, since it failed to give him a security interest in the corporation’s physical assets. But as long as Grunwald substantially abided by his contractual obligations, Jones had no reason to execute on a security interest and therefore suffered no actual injury from being unable to do so.

Nor did Jones suffer an appreciable injury in October 2005, when the escrow manager first notified him that Grunwald had missed a payment. Jones agreed to extend Grunwald’s payments at that time and to work out an alternative arrangement rather than foreclose on the debt. Because the stock purchase agreement allowed this forbearance without waiving “any obligation of Debtor or right of Secured Party,” Jones again suffered no injury. And Grunwald continued to make at least partial or late payments through February 2012. Jones was satisfied with the parties’ arrangement and did not attempt to use any remedies he would have had as a secured party; he therefore continued to suffer no harm from his lack of a security interest.

.Jones did suffer an appreciable injury in late 2011. The IRS recorded liens on Northern Heating’s physical assets on October 31 and November 14 of that year; at that time Jones lost his ability to acquire anything greater than junior lienholder status. Since the legally protected interest at issue was Jones’s ability to recover the corporation’s physical assets in case of the buyer’s default, this was clearly an appreciable injury. We conclude that Jones’s professional malpractice claim accrued on October 31, 2011.

The three-year statute of limitations for the malpractice claim therefore expired on October 31, 2014. Because Jones filed his complaint in December 2013, within the time allowed, it was clear error to find the action barred by the statute of limitations.

(Mike Frisch)

September 23, 2016 in Clients | Permalink | Comments (0)