Monday, October 31, 2016

Bail Call Gets Judge Reprimanded

The Tennessee Board of Judicial Conduct has imposed a public letter of reprimand of a General Sessions Court Judge.

The judge learned that "an acquaintance had been arrested and placed in the Bartlett, Tennessee jail." The judge made multiple calls to learn if bond had been set. He informed the jailer that he was a judge and was setting bail to release the acquaintance on personal recognizance.

The jailer declined to accept the judge's authority and bond was set at $10,000. The Bartlett judge kept the bond as set despite the efforts of the reprimanded judge.

The story from the Memphis Daily News.

The reprimand describes “an acquaintance” of Anderson who was arrested and jailed Dec. 19 in Bartlett. The report does not identify the person or what they were charged with.

Anderson made several telephone calls to learn if bond had been set or would be set, but had obtained no information. The next morning Anderson went to the Bartlett jail and learned that bail would be set the next day – a Monday. Anderson asked for the telephone number of a Bartlett judge, but jailers said they didn’t have the number. That’s when Anderson “informed the jailer in charge that as a General Sessions Judge with Shelby County jurisdiction, you were setting bail for the acquaintance and the acquaintance was to be released on his own recognizance,” the reprimand reads.

The jailer refused to release the person and Anderson left. Later that day, a Bartlett judge set the bond at $10,000.

Anderson then called the judge “and asked if the Bartlett judge had knowledge that you have previously directed a release on recognizance,” the reprimand reads. “The Bartlett judge declined to reduce the bond he had set.”

Anderson’s conduct, the board concluded, violated the judicial canon that “a judge shall uphold and promote the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.” Anderson also violated the canons that “a judge shall perform the duties of judicial office impartially, competently and diligently,” and “a judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”

The reprimand also notes that once he was notified of the complaint, Anderson “promptly and with candor responded” and cooperated in the investigation.

(Mike Frisch)

October 31, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Selling Your Pennsylvania Practice

A report from the web page of the Pennsylvania Disciplinary Board

On September 23, 2016, the Supreme Court of Pennsylvania adopted amendments to Rule 1.17 of the Pennsylvania Rules of Professional Conduct, which governs sale of a law practice.  The changes were published at 46 Pa.B. 6291 (October 8, 2016), and take effect October 23, 2016.

The amendments make the following changes:

  • Sale of an area of practice, as opposed to the entire practice, is now permitted. 
  • The selling lawyer must still cease practice in the area of the sale, but the rule is amended to provide that the selling lawyer may assist the purchaser in the orderly transition of active client matters for a reasonable period after the closing without a fee.
  • The selling lawyer must give written notice to each of the seller’s clients. Previously the rule was not specific about who was to give notice, but the amendment clarifies this is the responsibility of the seller.
  • If written notice cannot be given to a client, transfer of representation of that client to the purchaser will now require the approval of the court with jurisdiction over the matter.

Changes to the comments describe situations in which the prohibition on continuing practice by the seller does not apply. Unanticipated changes in circumstances can remove the prohibition. For instance, if a lawyer sells a practice in order to become a judge, and then is defeated in a retention election, the seller would be allowed to resume the practice of law. A lawyer who takes employment on the staff of a public agency or a legal services entity that provides legal services to the poor, or as in-house counsel to a business, may also continue practicing in the area in the course of that employment.

The comments are also amended to state that the written notice to clients provided by the seller must make clear that the client has 60 days to decide whether to consent to the transfer or make other arrangements. If notice is given, and the client does not respond within the 60 day period, the parties may presume client consent to the sale.

(Mike Frisch)

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

Attorney Reprimanded For Handling Fee In Criminal Case

The Ohio Supreme Court publicly reprimanded an attorney for fee misconduct in a criminal defense matter

The fact that Smith never entered into a written fee contract with Gonzalez created uncertainty regarding the nature of the fees, which Smith described variously in his testimony as a flat fee, a retainer, or a retainer until a flat fee could be set. It is clear, however, that no portion of the $70,000 fee was ever deposited into Smith’s client trust account and that Smith failed to advise Gonzalez in writing that if the entire fee was not earned, he might be entitled to a refund of some or all of the fee. In addition, Smith failed to maintain records, bank accounts, and bank statements and failed to retain monthly reconciliations for Gonzales that would have demonstrated the manner in which he handled client funds.

On April 21, 2008, Gonzalez was released on bond. In December 2008, he pleaded guilty to the charged offenses—with the exception of a charge for violating a protection order, which was dismissed. In March 2009, he was sentenced to two years in prison on the kidnapping charge and a three-year consecutive sentence for the firearm specification. Gonzalez was eligible for judicial release in just three and a half years, and despite the state’s opposition, he was released from prison in November 2012. The board found that there was little question that Smith provided Gonzalez with very effective assistance of counsel.

The board also found that regardless of how Smith characterized his fee, his handling of the funds violated several Rules of Professional Conduct, and it therefore accepted Smith’s stipulation that he violated Prof.Cond.R. 1.5(d)(3) (prohibiting a lawyer from charging a fee denominated as “earned upon receipt,” “nonrefundable,” or in any similar terms without simultaneously advising the client in writing that the client may be entitled to a refund of all or part of the fee if the lawyer does not complete the representation), 1.15(c) (requiring a lawyer to deposit advance legal fees and expenses into a client trust account, to be withdrawn by the lawyer only as fees are earned or expenses incurred), and 1.15(a)(1) through (5) (requiring a lawyer to hold funds belonging to a client or third party in a client trust account separate from his own property and to maintain certain records regarding the funds held in that account and certain bank records, as well as to perform and retain a monthly reconciliation of the account). 

There was mitigation

The parties stipulated and the board found as relevant mitigating factors the absence of a prior disciplinary record in Smith’s more than 50-year legal career, the absence of a dishonest or selfish motive, his full and free disclosure to the board and cooperative attitude during the course of the disciplinary proceedings, and evidence of his good reputation apart from the charged misconduct. See Gov.Bar R. V(13)(C)(1), (2), (4), and (5). The only aggravating factor present is that Smith engaged in multiple offenses. See Gov.Bar R. V(B)(4).

(Mike Frisch)

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

At Least It Wasn't To Go

The web page of the Massachusetts Board of Bar Examiners has summaries of reprimands imposed in 2016.

Such as

In May of 2015, the respondent represented an incarcerated criminal client who was scheduled for a hearing in a Superior Court matter. The client was held in the courthouse lockup, and the respondent visited him after the hearing. Unbeknownst to court officers and without their permission, in violation of 103 CMR 483.13, the respondent brought the client food and beverages in his cell. Court officers later discovered the client in his cell eating and drinking, and contacted the respondent.

The respondent admitted bringing the items to the client, and apologized for neglecting to obtain the court officers’ permission.

The respondent’s conduct in delivering items to a prisoner without the knowledge or permission of court officers was conduct in violation of Mass. R. Prof. C. 8.4(d) and (h). The respondent was admitted to the bar in 2008 and has had no prior discipline. The respondent received an admonition for his conduct.

(Mike Frisch)

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

Saturday, October 29, 2016

The Dinosaur In The Dark

An attorney's inability to adjust to the technology of modern law practice led to big trouble when he delegated law office operations to his spouse.

He was allowed to surrender his license in a proceeding before the Law Society of Upper Canada.

...because of his habits and lack of training, the Lawyer was a “dinosaur.” He was unable to review and respond to electronic communications. As his office was at home [his spouse] RD could intercept and deal with any communications on his behalf, in person or by regular or registered mail.

The Lawyer is not dishonest. He was shocked and dismayed by what RD had done. He attempted to make restitution to the extent possible. The matrimonial home was sold and the Lawyer has been left virtually destitute.

Lastly, although the Lawyer presented no direct evidence, the doctor’s letter introduced as an exhibit indicates clearly that the Lawyer is an ill man. He cannot practise law again. His life situation and health have been sadly reduced.

We conclude that given the particular circumstances of this case, and in light of the mitigating factors referred to above, allowing the Lawyer to surrender his licence to practise law is the most appropriate penalty, will protect the public and will act as a sufficient deterrent to the profession.

The details

...the Lawyer is now 68 years old.  He articled with Day, Wilson, Campbell starting in 1974 and remained with that firm after he was called to the Bar in 1976. He was a corporate/commercial litigator and became a partner, but was not a “rainmaker”. The firm merged with Holden, Murdock and Finlay in 1990 and was known as Holden, Day, Wilson. The firm folded in or about January 1996. 

The Lawyer was “computer-illiterate”. While with the law firm, he had always worked with clerical and administrative assistants who supported his practice. He dictated his correspondence and other documents, which were then transcribed. Most reporting forms to the Law Society were filled out on his behalf, and he merely had to review and sign the forms and other paperwork. He was insulated by the firm from all accounting responsibilities.

He used a telephone but not a cell phone or “smart phone”. He did not access his own email account, but relied on assistants. RD, his spouse, commented that he did not even know how to turn a computer on. He said he was being trained to use computers at Holden, Day just before the firm closed down.

The Lawyer was unemployed when the firm disbanded. Shortly afterwards, according to the interview with RD, he experienced serious medical issues and twice collapsed with a heart problem.

The spouse

RD admitted she used trust funds from clients’ accounts to pay off moneys owing to other clients’ trust accounts. She said she gradually started taking funds from clients’ trust accounts:

It started out little, and then I had to try and make up.  And then we’re short again …

… and it just – I wasn’t able to stop. I just kept doing it.

Even though, I knew it was wrong – because I know, [the Lawyer] had said many times … he says you never do that. … he would never do that.

.. I always thought it would be a temporary thing. I always thought things would get better and we’d – you know - have more work, or come into money, or something, and I’d pay it all back.

 RD stated that she never let her husband know that she was misusing trust funds. If the Lawyer happened to pick up the phone and received a complaint about an outstanding bill he would “hit the roof” and ask why the bill had not been paid. She would usually explain that she had forgotten to pay, and would promise to do it “next week”.  RD stated that she kept all the money problems to herself, and up to the time of her interview on the morning of June 5, 2013, the Lawyer had no knowledge of any shortages in the trust accounts. He was aware only that the books and records were not up to date. She said “[h]e knows nothing… Absolutely nothing. He hasn’t a clue.”

RD admitted that she had kept and then shredded all the communications from the Law Society respecting the various investigations, and that she did not tell the Lawyer about any of those communications. She hid the later investigations from him for as long as possible. She had deleted voicemail messages from the Society.

The amount misappropriated was significant

The Lawyer said he was “blown away” when he learned, on June 5, 2013, of the approximately $390,000 shortage in the trust account. He was also shocked to learn that RD had been intercepting and destroying Law Society correspondence and evading service of Law Society documents such as the Notice of Application. The Lawyer stated that although his relationship with RD had been “not great”, nothing would have led him to suspect what was going on. He had been kept “in the dark.” RD had been in complete control of all the personal and business finances.

(Mike Frisch)

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

Friday, October 28, 2016

Sex with Client Constituent Created Conflict of Interest

The Kansas Supreme Court has indefinitely suspended an attorney for misconduct in representing an entity client  ( a railway company "KCT") while having an intimate relationship with an employee of KCT.

The only remaining issue before us is the appropriate discipline for respondent's violations. At the hearing before the panel, the respondent requested that she be placed on probation; the office of the Disciplinary Administrator did not object. The hearing panel recommended suspension for an indefinite period of time.

We agree with the hearing panel that probation is not an appropriate disposition. As the panel concluded, the respondent's misconduct is serious, involving significant conflicts of interest as well as dishonest behavior. Further, the panel found respondent failed to take full responsibility for her actions, and the record supports that finding. We, therefore, conclude it would not be in the best interests of the citizens of the state of Kansas for the respondent to be placed on probation. We agree with the panel's recommendation that the respondent's license to practice law in the state of Kansas be suspended for an indefinite period of time.

Abovethelaw reported on the Missouri bar case that led to the Kansas sanction.

The Kansas court

From 2002 until January 2012, Respondent and Mader were in a personal, close relationship. At times the relationship was romantic and sexual. At all times from 2002 to January 2012, the relationship between Mader and Respondent was a very close, deep, meaningful, sustained, loving, caring, intimate and special friendship with frequent social and personal interactions with each other.

The sexual relations between Respondent and Mader did not exist prior to the 1999 beginning of the attorney-client relationship between Respondent and her client, KCT.

Respondent admits that she did not at any time inform the KCT board of directors of her ongoing personal relationship with Mader. She admits she did not inform the board of directors at any time prior to or during: her preparation of Mader's employment contract with KCT; Mader's initial employment providing engineering services for KCT; Mader becoming and serving as general manager and vice-president of KCT; or Mader's appointment to as [sic] serving as president and chairman of the board of directors of KCT.

Brad Peek, current general manager and former president of KCT testified that Respondent did not but should have disclosed her personal, close, sexual relationship with Mader to KCT and its board of directors: when Mader was hired in 2007; when he became and served as general manager; and when he was appointed to and served as president and chairman of the board of KCT.

The client found out about the situation through an independent investigation

In early 2012, a member of the KCT board of directors had an independent investigation conducted into the activities of the officers, Somervell, Mader and Respondent.

After the initial investigation and upon learning of the personal relationship between Respondent and Mader, the ownership interest and billing of the legal fees for the Tallgrass Railcar, the conflict of interest of Respondent, as a result of that, the loss of trust and reliability because the board had not been informed of the relationship and the billing of legal fees for Tallgrass Railcar, which were not related to KCT, the board took action to:

a. Remove Mader from the board of directors, and;

b. Terminate Mader as president of KCT, and;

c. Terminate Respondent as secretary of the corporation, and;

d. Terminate Respondent as general counsel, and;

e. End the relationship with [Respondent's firm] Lathrop, as attorneys for KCT.

The court here concluded that the relationship resulted in a concurrent conflict of interest and a violation of the sex with client rule

The respondent's client-lawyer relationship commenced in 1999. In 2002, the respondent developed a close, personal, and sexual relationship with Mr. Mader. Because Mr. Mader was a constituent of the respondent's client who supervised, directed, or regularly consulted with the respondent and because the respondent's sexual relationship began after the client-lawyer relationship commenced, the hearing panel concludes that the respondent violated KRPC 1.8(k).

And Rule 1.13

Under subsection (b), the respondent failed to address or report substantial injury to KCT caused by Mr. Somervell and Mr. Mader—the diversion and appropriation of the railcar purchase which had been negotiated for KCT, the attempt to lease the railcar owned by Tallgrass Railcars to KCT, and the appropriation of KCT assets for the renovation and improvement of the railcar owned by Tallgrass Railcars. Under subsection (d), the respondent failed to explain to the board of directors that KCT's interests were adverse to its constituents, Mr. Somervell and Mr. Mader. As such, the hearing panel concludes that the respondent violated KRPC 1.13(b) and KRPC 1.13(d).

Video of oral argument is linked here. (Mike Frisch)

October 28, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Untimely Answer Permitted

The Iowa Supreme Court reversed and remanded a bar discipline matter, concluding that the attorney should have been allowed to file an untimely answer to the bar charges

In this case, the respondent’s counsel apparently believed that he had an informal agreement of some kind that the Board would not seek to enforce rule 36.7. Respondent was providing information to the Board, though not at a pace that we would ordinarily expect in disciplinary proceedings. Although the record does not provide direct evidence of an agreement between the respondent and the Board, it is noteworthy that the Board did not seek to enforce rule 36.7 when it sought to establish a new schedule, thereby giving some support for respondent’s position. Further, the Board has a practice of generally allowing a reasonable period of time to file an answer beyond the twenty days. The practice of the Board generally, and the course of conduct between the respondent and the Board specifically, did not suggest that the respondent was at risk of forfeiting his right to litigate the merits of the action by failing to file an answer.

Further, as we have stated above, the issues presented under rule 36.7 included questions of first impression. Like the commission, we question whether the respondent made the case for a lengthy or indefinite extension of time to answer the Board’s complaint. Nonetheless, we think the legal uncertainties surrounding rule 36.7, the Board’s general and specific acquiescence in the failure of respondents to file timely answers, Doe’s active, if dilatory, participation in the proceedings, and the preference for deciding disciplinary cases on the merits provides sufficient good cause that the commission should have allowed a brief period of time to allow the respondent to file an answer.

 We emphasize that we do not regard compliance with rule 36.7 as merely a good idea or an aspirational goal. Lawyers subject to disciplinary proceedings must cooperate in a prompt disposition and comply with mandatory rules. To the extent good cause in this proceeding was based on ambiguity in rule 36.7 and whether the Board must file a motion to enforce it, that ambiguity is now resolved. Respondents in disciplinary proceedings are admonished that the failure to timely respond to the Board’s complaint results in admission of the allegations that may be unraveled only if the respondent shows good cause for the delay. Although we prefer deciding disciplinary proceedings on the merits, extensions of time to respond to the Board’s complaint are not automatically granted and should ordinarily be of a relatively short duration. See In re Kern, 345 A.2d at 326. Respondents should regard disciplinary proceedings as a priority, not an unpleasant task that may be avoided through inordinate delay.

 (Mike Frisch)

 

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

Thursday, October 27, 2016

Suing Yourself In Utah: Not An "Overwhelming Absurdity"

Interesting decision from the Utah Supreme Court involves an heir who negligently caused a death who was obligated to institute litigation against herself in a personal capacity

we hold that the court of appeals did not err when it concluded that the wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent‘s death or injury. The plain language of both statutes permits such a lawsuit. Further, the literal terms of the statutes do not lead to an absurd result that would require us to modify the statutory text. And absent a statutory gap, we will not venture beyond the plain language of the statutes to rewrite them based upon public policy.

The sad story

Barbara Bagley is the common law wife of the decedent, Bradley Vom Baur. On December 27, 2011, Ms. Bagley and Mr. Vom Baur were travelling in a 2000 Range Rover. Ms. Bagley lost control of the Range Rover and flipped the vehicle. Mr. Vom Baur was thrown from the vehicle and sustained several severe injuries. Paramedics transported Mr. Vom Baur to a local hospital for treatment. Ten days later, on January 6, 2012, Mr. Vom Baur died from the injuries he sustained in the accident.

Ms. Bagley maintained a motor vehicle insurance policy with State Farm Insurance Company. To compel State Farm to indemnify her, Ms. Bagley, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur (Plaintiffs), brought this suit against herself as an individual (Defendant)...Plaintiff Bagley, as Mr. Vom Baur‘s heir, brought her first cause of action pursuant to Utah Code section 78B-3-106, Utah‘s wrongful death statute, alleging that Defendant negligently caused Mr. Vom Baur‘s death, thereby depriving his sole heir of Mr. Vom Baur‘s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection. Plaintiff Bagley, as the personal representative of Bradley Vom Baur‘s estate, brought her second cause of action pursuant to Utah Code section 78B-3-107, Utah‘s survival action statute, alleging that Defendant negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur‘s estate to damages such as funeral expenses and medical bills. 

The conflicts issue is dealt with in a footnote

The [Utah Defense Lawyers] Association submitted novel arguments about the impact this case could have on our adversarial system and our Rules of Professional Conduct. The Association argues, inter alia, that this lawsuit distorts the attorney-client relationship by creating a concurrent conflict of interest because "defense counsel‘s representation of the client as the defendant is directly adverse to defense counsel‘s representation of that same person who is also the plaintiff." This concurrent conflict, the Association further argues, strains an attorney‘s ability to communicate with his or her client, because "a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer." (quoting UTAH R. PROF‘L CONDUCT 4.2(a)). Conversely, communications in the other direction, from client to attorney, are also hampered, according to the Association, because the client knows that anything she reveals will be used against her. Relatedly, the Association raises concerns about jury confusion and the ability of an attorney to cross-examine his own client.

These arguments are not without merit but they must ultimately fail. This suit does not create a concurrent conflict. Plaintiffs and Defendant act in different legal roles. Any concern that Ms. Bagley will withhold information from defense counsel that is adverse to the estate‘s recovery is tempered by Ms. Bagley‘s requirement to cooperate with her insurer under their insurance agreement and the district court‘s inherent powers to manage discovery and ensure that defense counsel obtains relevant, probative evidence necessary to defend against Plaintiffs‘ causes of action. Similarly, concerns about jury confusion and cross-examination at trial are alleviated by the district court‘s ability to oversee the prosecution of this lawsuit in a manner that will mitigate these issues. Though this lawsuit raises novel issues regarding the attorney-client relationship and the prosecution of a lawsuit, these issues are manageable and do not create an overwhelming absurdity that requires us to rely on our absurdity doctrine to reform the wrongful death and survival action statutes.

The trial court had granted defendant's motion to dismiss.

The court here agreed with the Court of Appeals that the case can go forward. (Mike Frisch)

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

Gamma Gamma Slammer

The Palmetto State reports

An Anderson attorney was sentenced to 6 months in federal prison and a $50,000 fine for defrauding the Gamma Phi Beta sorority at the University of Alabama of $234,000.

Jennifer Elizabeth Meehan, 40, was arrested in July, 2015, and charged with wire fraud, bank fraud and money laundering, according to the federal indictment that was unsealed at the time.

A graduate of the University of Alabama, Meehan was a member of the Gamma Phi Beta sorority while at the university. She also served as president of the House Corporation Board of the Epsilon Lambda chapter of the sorority.

Meehan volunteered to help furnish Gamma Phi Beta’s new house from 2013 to 2015, a $14 million project. She was responsible for coordinating and purchasing the furniture.

Prosecutors said that Meehan submitted invoices for furniture and equipment that was not delivered. She set up fraudulent bank accounts that gave her personal access to the money meant to be spent on house furnishings.

She told investigators that she did not plan to use the money for herself but rather to set up a scholarship fund, a claim prosecutors said they found hard to believe.

Her sentence includes 6 months in prison a $50,000 fine and 18 months of home confinement. She also must now forfeit her law license.

(Mike Frisch)

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

Brother, Brother, Mother V. Father

In a lengthy opinion, the Oregon Supreme Court imposed reciprocal discipline of disbarment based on that sanction ordered in an original proceeding before the Washington State Supreme Court.

The misconduct arose from the attorney's participation in the divorce of his parents

After the accused had filed multiple frivolous, duplicative, bad-faith actions, claims, and motions in multiple jurisdictions, he repeatedly and deliberately violated court orders. And he used the legal process to target, embarrass, and harass not only his father but third parties as well, including individuals associated with his father and members of tribunals who did not rule in the accused’s favor. There is no evidence that his acts were driven by anyone other than himself. The sheer magnitude of the accused’s repeated misconduct in the Washington and federal cases, coupled with the accused’s abject disdain for the rule of law, as exhibited by his actions, are sufficient to warrant a sanction here greater than that imposed in White. After considering the ABA Standards and our case law, we conclude that, to protect the public and the administration of justice in this jurisdiction, the accused should be disbarred in Oregon as a reciprocal sanction for his misconduct in Washington.

The story

The accused was admitted to the Oregon Bar in 1998 and to the Washington State Bar in 2002. He had, it appears, specifically sought admission to the Washington State Bar for the purpose of aiding his mother in matters related to her divorce in Washington from the accused’s father.

In April 2002, the accused’s parents had finalized their divorce, with the resulting divorce decree requiring, among other things, that the family home and a vacant lot be sold, with the proceeds to be distributed equally between the accused’s mother and his father, a Seattle-based cardiologist and internal medicine specialist. The accused and his older brother—Cyrus Sanai, a California attorney— maintained, however, that their father had concealed significant assets from both their mother and the court. Consequently, the two siblings began representing their mother in proceedings designed to contest the court-ordered property sale and distribution of proceeds.

What followed were years of acrimonious litigation in which the accused and his brother filed a virtual tsunami of motions, subpoenas, petitions, appeals, and new actions in Washington’s state and federal courts. Many, if not most, of those undertakings were filed solely to delay the court-ordered sale of the family property noted above or to harass the opposing parties and their lawyers. Because of the large number of those filings, the many different forums in which they were initiated, and the fact that they often overlapped chronologically, we set out those activities and their respective outcomes by loosely grouping them—as did the Washington Supreme Court—according to the various contexts in which they arose.

When the courts ruled unfavorably in the cases, the next target was the judiciary

Following the Washington Supreme Court’s adverse rulings in the matters...the accused and his mother filed suit in federal court against the various judicial officers who had ruled against them at both the appellate and trial court levels. In December 2003, the federal district court dismissed the pair’s action for lack of subject matter jurisdiction, characterizing it as an “attempt to obtain review of unfavorable decisions of the Washington state courts by wrapping their state law-based challenges in the fabric of federal constitutional claims.” The Ninth Circuit Court of Appeals affirmed that judgment in an unpublished 2005 opinion.

The accused also filed an action against the chief justice of the Washington Supreme Court, alleging that the accused’s civil rights had been violated in connection with the disciplinary proceedings in Washington. In 2008, the Ninth Circuit remanded that suit for dismissal.

The road to disbarment in Washington is recounted in great detail.

An issue in the Oregon proceeding

The accused contends that the Oregon trial panel violated his right to counsel when it did not permit his brother to represent him. According to the accused, the attorney he had retained to represent him in this matter unexpectedly withdrew several weeks before the accused’s February 2, 2015, trial panel hearing. Several days before the hearing was to begin, the accused filed a motion and completed application for the pro hac vice admission of his brother, Cyrus Sanai, to represent him in Oregon.

In opposing that motion, the Bar noted, among other things, that (1) the accused knew that the Bar intended to call Cyrus Sanai as a witness if he appeared in Oregon, a fact that would necessitate his withdrawal as counsel and raise the likelihood of a lengthy set-over request if Cyrus was allowed to represent the accused, and (2) the California State Bar had filed its own set of nine disciplinary charges against Cyrus Sanai in January 2014. Those charges remained pending up to and through the accused’s 2015 Oregon trial panel proceedings.  Of those charges, five alleged a failure to report the imposition of judicial sanctions to the California Bar; three alleged conduct involving moral turpitude—interfering with the sale of property out of a corrupt motive, bringing or maintaining frivolous judicial complaints, and altering the service list on a filed pleading; and one alleged that Cyrus Sanai had encouraged the continuance of an action from a corrupt motive, passion, or interest. 

The court

According to Oregon’s Bar Rules of Procedure, those chairing disciplinary trial panels are broadly authorized to facilitate an efficient and orderly hearing. See BR 2.4(h) (describing duties of a trial panel chairperson). Under the circumstances noted above, by denying the accused’s motion for the pro hac vice admission of Cyrus Sanai, the trial panel chair did nothing more than fulfill that obligation.

And rejected a host of other contentions

In sum, we conclude that the accused was not deprived of due process in the proceedings leading to his disbarment in Washington. And, for the reasons stated above, we agree with the Bar and hold that the accused received full and fair hearings, both in his Washington disciplinary proceedings and in the hearing conducted in this jurisdiction. We also hold that the evidence amply establishes that the accused engaged in misconduct in Washington that was serious and protracted, warranting reciprocal discipline here.

The web page of the California State Bar reports that the brother is in good standing but notes that disciplinary charges were filed in January 2014.  (Mike Frisch)

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

Threats To Bar Prosecutors Leads To Bar Charges

The Illinois Administrator has filed a complaint alleging misconduct in two client matters.

The attorney's answer is linked here.

Count Two alleges harassment of a former client

On March 13, 2015, Rutkowski contacted Respondent to ask him to explain the basis for Respondent’s claimed $400 fee, which Rutkowski considered to be inconsistent with the contingent fee he believed he had agreed to pay. Over the next several days, Respondent sent Rutkowski a series of e-mail and text messages that: stated that Respondent had unilaterally raised the claimed fee, first to $500 and then to $600; threatened to sue Rutkowski to collect the claimed fee; insulted Rutkowsky’s manhood and choice of automobiles; and referred to Rutkowski as a "small penis asshole." [sic]

Respondent’s e-mail and text messages to Rutkowski never explained the basis for Respondent’s claimed fee, or the method of its calculation, other than to say that fee agreements were not required "in these matters and not between men. My mistake, there is only one man involved between us. I challenge you to a duel, you pick the time, place and manner."

Respondent’s messages to Rutkowski, which he sent while he considered himself to be proceeding pro se in a fee dispute with Rutkowski, had no substantial purpose other than to embarrass or burden Rutkowski.

Count Three alleges misconduct toward the bar prosecutors as evidenced by a series of communications to the line prosecutor and the Administrator

My dearest Scott Renfroe, this is attorney Don Franz, 6216090. I understand that we have pre-trial coming in August. Here are my terms for your surrender: "Nuts" You will apologize to me for wasting my time, end this or you will not make an example of me, I will make an example of you and your filthy ARDC organization, which is a criminal conspiracy to drive lawyers out of me [sic], out of business to try to fund the thousands of lawyers that can’t find jobs, you filthy, failure of a lawyer, who cannot get a job, that’s why you work for that God damn disgusting organization. This will not end (garbled), you cost me money, you cost me time, you cost me sleep, oh no. And Scottie boy, I’m gonna, this will not end pretty for you, for me, anyone, drop this now, you filthy coward, you are a coward, you only work for the ARDC because you’re a coward. Hey save this, play it for the rest of your ARDC cowards, up and down the line, I don’t care. I despise you. I despise you. Have a nice night...

By the way, this is a fact, not a threat. When I get cancer, you will be the first to know about it...

I shall never forget the kindness you and your filthy government comrades have shown me in these matters. "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Some lawyer that was not a member of the Illinois National Socialist Attorney Registration Discipline and Committee that hung with John Adams. Tell me Scott, is that or is it not, a "civil quote? How about this one "to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee." Another private sector wacko free to continue in is [sic] trade without having to answer to you or your ilk.

No respect intended or implied, ever

Donald F. Franz, Attorney at Law (formally proud of that title until dealing with you)...

Hello Viper Mike, this in Donald Franz. I hope you had a Happy New Year, I will see you soon, you won’t see it, you’ll get it. Good bye, Donald Franz (phone number redacted), thinking of you always Viper Mike, good bye.

To the Administrator:

 Jerry Larkin, my name is Don Franz, I’m the attorney you are trying to murder because of an installment note, so the day you suspend me, I’m going to stop taking my pills, I’m going to get my affairs in order, I am going to kill you. Have a nice day.

Back to prosecutor Renfroe

Scotty boy, your friend Don Franz. You might be familiar with my name, Scott Renfroe, I never signed a formal paycheck, and by the way, we have gone up in scale, so this is what I’m going to do. The day you suspend me, when I take my pills and get my affairs in order and I’m going to take care of you. I want to meet you for a nice discussion and how things are going. By the way, this is "Don Franz Unbound", there are two things at my life, because I (sic) no hair and anything, which restrict me from dealing with you, Mr. Larkin and the rest you fascist communist speech controlling assholes. By the way Scott, I play for keeps...

My dearest dearest Scott, with the world’s wimpiest handshake, so I’m kinda given to turn in to properly filed fee petition for $206,000, that’s okay, but Don Franz has a summon note for less than 10. Don Franz the criminal, I’m going to have so much fun with you and your fucking filthy, your filthy, filthy friends, you don’t know what’s coming. And by the way, a major control in my life is about to be released and it’s called "Don Franz Unbound." I have no fear of you, or you, or Mr. Larkin or the rest you scumbags. You have run roughshod to long, too far and your day is coming.

Another dose to Jerry Larkin

Mr. Larkin, Don Franz again, I watched your website and the fact you have no malpractice insurance but you don’t have to, the State provides everything, and it kinda, you never signed the front of a paycheck before, however, since your organization has decided to try to murder me, murder by means, suspending my license so I cannot trade my time for pills in your life. The day you suspend me, I’m going to attack you and Scott, whoever I can get my hands, and you guys started this, I’m going to finish it. I have never set over, a promissory note in, I’m trying to get paid, trying to get paid for my services, which are always reasonable. You filthy bastards started this fight, I’m going to finish it. And by the way, I had a certain change in my family situation; I have nothing, nothing, but my dog, to bind me to this planet. Other than your destruction. You are filthy, filthy bastards, you wouldn’t know a Court if it hit you in the ass. You despicable prick, your whole life at the ARDC, you fuckin’ Nazi fascist, you bastard, you started this fight, I’m going to finish it. Your noting but bullies, you attack solo practitioners, you think it’s cute, I’m going to destroy you, I hate you, I hate you so much, your fuckin’, your Hitler to me, your Hitler. Oh and by the way, servility, speech control. A lawyer I respect greatly, greatly admitted that to me. If it’s speech control today, what’s next Jerry, and your lifelong dream, by the way in the worst corrupt state, you fucker, you’re a fuckin’ dead man!

Jerry, Franz, final offer. You dismiss all charges against me, you apologize publically for suspending me, and you exempt all sole practitioners from CLE’s, and tend to your own fuckin’ job, that’s my final offer take it or leave it, and it’s not getting better...

Jerry, Don Franz again. I apologize. I typed in total pussy and your name came up. Golly. Any who, so you're telling me if you murder me, throw me in jail, filing charges, I don't care. My family is going to destroy you. Punching you like a fucking dog. You and Scott, the rest of you. You never, you started this fight for installment notes. You started this fight. No one fucks with a Franz, you started this fight, we are going to finish it and I'm not alone. By the way, I'm the biggest pussy in my family, when you fuck the rest of us, you are in for a real big war, I love the fact that all I do is, I typed in wimp, your name came up. You and Scott should date.

Dealing with this kind of behavior (and the inevitable frivolous lawsuits)  is, sad to say, part of the life of a bar prosecutor.

We all have stories of the colorful threats and hatred coming from the objects of our attention if not affection. (Mike Frisch) 

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

D.C. Court: Disciplinary Counsel's Delay Was Massive, Inexcusable And Irrelevant

The District of Columbia Court of Appeals (Senior Judge Reid as author) has disbarred an attorney and rejected several contrary contentions

Mr. Saint-Louis challenges the Report and Recommendation of the Board on the grounds that: (1) Bar Counsel (now Disciplinary Counsel) failed to present clear and convincing evidence of ethical misconduct; (2) disbarment is inappropriate because Mr. Saint-Louis did not intentionally misappropriate client funds or engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and (3) Disciplinary Counsel’s multi-year delay in prosecuting the case against him was inexcusable and prejudicial. For the reasons set forth below, we agree with the Board’s recommended sanction.

The court summarized the evidence - involving events that took place in 2004 - and found that the evidence established intentional misappropriation.

As to delay

With regard to Disciplinary Counsel’s multi-year delay in proceeding with the charges against Mr. Saint-Louis, the Ad Hoc Hearing Committee declared, "It is unclear why [Disciplinary] Counsel waited so very long to determine its position with respect to this case." The Committee also characterized the delay as "massive and inexcusable." Nevertheless, the Committee determined that Mr. Saint-Louis was not prejudiced by the delay because (1) it found "no witness who would have testified but did not"; (2) "[t]here were no credibility determinations that the Committee has made that turn on a poor memory due to the passage of time"; and (3) Mr. Saint-Louis "was able to continue the practice of law while Bar Counsel’s investigation remained pending." Based on its factual findings and its review of our case law, the Committee concluded that Mr. Saint-Louis violated all of the rules set forth in the specification of charges and that dismissal of the charges due to delay alone was unwarranted...

Here, Disciplinary Counsel readily admits that the multi-year delay in prosecuting this case is inexcusable. Indeed the delay is quite troubling because Disciplinary Counsel, the Committee, and the Board have not, and apparently cannot, explain the reason for the protracted delay in this case. Nevertheless, our case law explicitly states that delay alone does not lead to the dismissal of misconduct charges. In re Williams, supra, 513 A.2d at 796. What is required for dismissal of the misconduct charges is delay plus actual prejudice that results in a due process violation. Id. at 797. We discern no due process violation on this record. Mr. Saint-Louis received proper notice of the charges against him, and had an opportunity to respond to those charges throughout the disciplinary proceeding, including his evidentiary hearing. His assertion that the "delay rendered every Ovlas witness unavailable" and deprived him "of any opportunity to examine them or otherwise address the question of their own credibility," is not supported by the record.

The court rejected the delay as a basis to impose lesser discipline.

Then Bar Counsel opened the investigation in mid-2005 and filed charges a decade later. Do not blame the Assistant who argued the case - it would still be "under investigation" if he had not been hired to clean out the stable. (Mike Frisch)

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

With All Deliberate Speed

A District of Columbia Hearing Committee has found that an attorney intentionally misappropriated entrusted funds and recommended disbarment in In re Peter Njang. 

The extent of the attorney's participation

Respondent never filed an answer, did not appear at the pre-hearing conference or the hearing (either in person or through counsel), and submitted no exhibits. The Hearing Committee received a letter from Respondent dated September 30, 2015, in which he stated that he “admit[ted] to the allegations,” claimed they were the result of “sloppiness,” asked for lenity, and informed the Hearing Committee that he would not attend the hearing to defend against the charges or make a case for negligent misappropriation. Respondent’s letter does not constitute an answer to the Specification of Charges. It was filed well out of time, Respondent’s answer having been due on August 7, 2015 – a fact noted by the Hearing Committee Chair at the pre-hearing conference. See September 10, 2015 Prehearing Tr. 10-11; DX B at 1 (Respondent personally served with Specification of Charges on July 18, 2015); Board Rules 7.5 (Respondent’s answer due within 20 days of service). Board Rule 7.7 provides that a Respondent who fails to answer may not present “non-testimonial evidence.”

The committee nonetheless was obligated to conduct a full hearing and issue a report that concluded

With respect to Respondent’s state of mind (i.e., whether the misappropriation was intentional, reckless, or negligent), Respondent admitted in his response to Disciplinary Counsel that the first overdraft was a result of his “tampering” with the trust account and that he had no excuse for his conduct, and he sought mercy. See FF 5. While his letter does not explain precisely what he means by tampering, read in the context of his failure to offer any justification for the overdraft, it is clear that Respondent was acknowledging that he intentionally took money out of the trust account, knowing that such a withdrawal was not permitted. That is intentional misappropriation. Moreover, viewed in the light most favorable to Respondent, he was entitled to only $2,500 in fees. However, after depositing Mr. Sigmou’s settlement checks worth $7,500, he wrote four checks to himself totaling $4,600, more than half of the gross settlement amount. See FF 15, 19, 21. Thus, the Hearing Committee concludes that Respondent engaged in intentional misappropriation, in violation of Rule 1.15(a), by clear and convincing evidence.

The two bar investigations were opened in 2010 and 2011. Charges were filed in 2015 and the committee took about a year to issue a report (actually a rather commendable effort by D.C. standards). 

So far, it has taken about six years to get a first-level report in a case of admitted/defaulted theft of client funds.

Suspension and disbarment? Who knows when.

Ho hum. (Mike Frisch)

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

Wednesday, October 26, 2016

Misrepresentation, Frivolous Defamation Suit Leads To Suspension

The Indiana Supreme Court has imposed a 90-day suspension of an attorney who had sued for defamation without legal justification.

The attorney had obtained a judgment on behalf of his client, a Bank, and made a false statement in the appeal

AB petitioned for rehearing, again pointing out (as he had done in the trial court and at earlier stages of the appeal) that he had timely filed the MTCE on April 29. The Court of Appeals granted AB’s petition and, after further briefing by the parties, issued a decision reversing the trial court and holding Bank’s action against AB was time-barred.

Then

AB then retained an attorney (“CD”) to evaluate a potential claim against Respondent based on his misleading assertions in the collection action and appeal. In subsequent communications between Respondent and CD, Respondent demanded a retraction of the allegation that he had misled the trial and appellate courts regarding the filing date of the MTCE. When CD would not issue a retraction, Respondent filed a federal lawsuit against AB and CD, alleging defamation among other things. As subsequently amended, the complaint sought over $500,000. AB and CD filed motions to dismiss, which the district court granted. Respondent concedes he had no basis in fact or law for his defamation claim.

In a written response to the Commission during its investigation of these events, Respondent selectively quoted the language of Trial Rule 59(C) in a manner that inaccurately suggested AB’s MTCE would have been untimely regardless of whether it had been filed on April 29 or May 2.

 The sanction does not  carry automatic reinstatement. (Mike Frisch)

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

Bar Proposes Censure; Court Imposes Disbarment

The Oklahoma Supreme Court rejected both a proposed censure (from the Bar) and a one-year suspension (from the Trial Panel) and disbarred an attorney for his handling of a wrongful death settlement

Rule 1.15 ORPC also requires a lawyer to promptly deliver to the client any funds the client is entitled, promptly render a full accounting upon request and to hold separately any funds that are in dispute. Friesen's response brief alleges he only became aware the Nevarezes were challenging his legal fee when they filed their lawsuit to recover the missing settlement proceeds on February 12, 2014. We find this incredulous. We agree with the OBA's assertion that it should have been clear to Friesen from Alma's multiple inquiries that there was a dispute concerning their respective interests in the $97,438.00 long before the lawsuit was filed. Alma made multiple inquiries requesting information about her children's accounts. At the very least Friesen should have known the $97,438.00 was in dispute on July 9, 2013. His time records for that day state, "[p]hone call from Ms. Nevarez; her husband is very upset; it has been four years and they still do not know where the money is and it is gathering interest." The evidence clearly shows the Nevarezes were not concerned about the $350,000.00. They knew where that money was held because they opened the accounts with Friesen. In addition, there should have been no doubt what amount was in dispute when Dowell sent Friesen a facsimile/letter on January 31, 2014. It provided, "you were to disburse $462,438.00 to Mr. and Mrs. Nevarez. According to Ms. Nevarez, you distributed only approximately $360,000 of the required $462,438.00 to them." This letter effectively terminated Friesen's representation of the Nevarezes, requested a full accounting of the settlement proceeds and requested a return of funds to which he was not entitled. Friesen's response to this letter never mentioned the $97,438.00 was a flat attorney fee nor did he offer to provide an accounting or return any unearned fees; he merely stated there are no missing funds. It was not until June 2014, almost four months after the initial demand letter, that Friesen settled the lawsuit and returned the $97,438.00. We find the OBA has proven by clear and convincing evidence that Friesen violated Rule 1.15 ORPC.

The were issues of incompetence and excessive fees

 Friesen accepted a non-refundable flat fee of $97,438.00 to draft five wills, four trusts, three annuities and to protect the Nevarezes' $350,000.00 if the need should arise. He testified he normally charges as much as $15,000.00 per will and trust but he had not itemized all the services for the Nevarezes. Some of the services for the children would not be performed for as many as fifteen years in the future. However, there was to be no delay in performing some of the other work including the college accounts. The record reflects the work Friesen performed over the three and one-half year representation consisted of spending approximately one hour a month reviewing and mailing the Nevarezes' three bank statements...

Here, the Nevarezes paid to have, among other things, three college accounts created for their children. It was important to the Nevarezes to have those established as quickly as possible so they could start earning interest. The record reflects through Friesen's lack of diligence and meaningful communications these accounts were never created. Based on the evidence presented and our holding in Wright, we find the OBA has proven by clear and convincing evidence Friesen violated Rule 1.5 ORPC.

Notably as to sanction

The OBA recommends this Court follow the discipline in Whitely and publicly censure Friesen. The Trial Panel recommends Friesen be suspended from the practice of law for one year. The second attorney-client agreement was especially disturbing to the Trial Panel. It found that at the time this agreement was executed Friesen was in severe economic distress. He owed back taxes for many years prior to the agreement which culminated into a federal conviction in 2014. State ex rel. Okla. Bar Ass'n v. Friesen, 2015 OK 34, 350 P.3d 1269. Friesen testified he initially had the wrongful death settlement proceeds placed in Lana Cohlmia's trust account because he was worried the Oklahoma Tax Commission might garnish his trust account. The Trial Panel was also astounded that Friesen would fashion an agreement that included provisions for the Nevarezes to pay up-front for services that would only be performed some fifteen years in the future. Their conclusion was the agreement was motivated by Friesen's own interests rather than the best interests of the Nevarezes.

The record reflects the second attorney-client agreement was not understood; a fact that should have been clear to Friesen during the two and one-half years Alma Nevarez attempted to find out what happened to the $97,438.00. The Nevarezes never received what they bargained for, diligent representation to establish the college accounts. They not only lost years of earnings on these college accounts but also suffered emotional stress and damage to their relationship. These issues were not hidden from Friesen. Instead of taking the initiative to inform the Nevarezes that they were mistaken about the $97,438.00 and risk having to return any unearned fees, he kept towing them along indefinitely. When Dowell requested Friesen to return any unearned fees Friesen testified he refused because he did not like the insinuation he stole from his clients. Friesen's response did not explain the fee arrangement in the second attorney client agreement. Alma testified she never received a copy of the agreement; therefore she was unable to give Dowell a copy. It was not until Friesen was sued that he returned the $97,438.00 some four months later. Friesen claims in his brief that there was too little time to return the fees prior to the lawsuit being filed, which occurred approximately one week after Friesen responded to Dowell. However, if Friesen had responded appropriately to Dowell's letter and explained the fee agreement and offered to return any unearned fees the lawsuit would most likely not have been filed. Again, it is another example of Friesen blaming someone else for circumstances that were well within his control to prevent. We are also disturbed by the second attorney-client agreement as well as the suspicious nature of Exhibits B and C and the excuses supporting their sudden appearance. Based upon these concerns, the many rule violations and past discipline we cannot agree with the OBA that a public censure would provide sufficient discipline necessary to deter such behavior in the future.

(Mike Frisch)

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

Judge Admonished For Threats Of Contempt, Mistrial

The New York Commission on Judicial Conduct has admonished a judge who

without basis in law, threatened to:

( 1) hold an assistant district attorney in contempt of court if the defendant was arrested for threatening a witness in the case, (2) declare a mistrial with prejudice if the defendant was arrested, and (3) impose financial sanctions upon the District Attorney's Office if a mistrial was declared because of the arrest. Respondent also yelled and acted in a discourteous manner toward the assistant district attorney.

The misconduct took place during the trial of a man accused of raping his daughter.

After testifying, the defendant's ex-girlfriend alleged

Ms. Joseph completed her testimony before court was recessed for lunch. Toward the end of the luncheon recess, and before trial resumed, there was an off-the- record conference during which ADA Nugent informed respondent that the defendant, who was free on bail, had allegedly approached Ms. Joseph as she was leaving the courthouse during the lunch break and said to her, "You're dead." ADA Nugent also informed respondent that Ms. Joseph had been taken to the g4th Precinct stationhouse to make a complaint against the defendant.

The judge threatened the ADA over the possibility of a mid-trial arrest of the defendant

Let's make something crystal clear, People. Today is Friday. We are going to finish the People's case now with this last witness. The defense case is supposed to start on Monday. If you were to have .. . Mr. Bartholomew arrested any time between now and Monday ... Mr. Bartholomew ... would not be in a position to prepare his defense.

If there is a mistrial, if this case has to be delayed because you have unnecessarily and unjustifiably prevented the defendant from seeing his attorney and preparing his defense and this matter has to be adjourned, I will consider, one, financial sanctions against your office. And number two, I will certainly consider a mistrial with prejudice.

As a result

Although the police intended and were prepared to arrest the defendant promptly for threatening Ms. Joseph's life, they delayed doing so because of respondent's statements. Respondent sentenced the defendant to 15 years in prison and 20 years of post-release supervision. After sentence was imposed, the police arrested and charged the defendant with menacing, a B misdemeanor, having a maximum possible sentence of 90 days in jail. However, the Kings County District Attorney's Office chose not to prosecute the defendant on the menacing charge and it was dismissed for failure to prosecute. Notably, the prosecution had never requested an Order of Protection on behalf of Joleane Joseph in the three years this case had been pending trial, nor did they do so at the time they represented she had been allegedly threatened by the defendant Mr. Bartholomew.

The commission

regardless of whether [the judge]  intended to follow through on the threats he made, the threats were inappropriate since he had no lawful basis to act on them. Such statements to a prosecutor - especially by a judge who "yelled" and spoke in "a raised voice" - are highly intimidating and could only be perceived as a serious warning of very significant consequences, including a mistrial with prejudice in a case involving a serious crime. As respondent has acknowledged, his discourteous conduct was inconsistent with the required standards of judicial behavior.

The agreed statement of facts is linked here. (Mike Frisch)

October 26, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Whereabouts Unknown

An attorney who failed to respond to a bar inquiry triggered by a bounced escrow check has been suspended by the New York Appellate Division for the First Judicial Department.

He has been hard to find

In October of 2015, a Committee investigator located a Bronx business address for respondent, called a telephone number associated with the address, and left a message with a receptionist asking that respondent contact him. Subsequently, on October 2, 2015, respondent's father informed the Committee that respondent was in Russia and that he would ask respondent to contact the Committee. On October 6, 2015, the Committee received a voice mail message from respondent in which he stated that he knew the Committee was trying to reach him. However respondent did not leave any contact information. The Committee, using Caller ID, attempted to contact respondent at the number he called from, but were informed that no message could be left because voice mail service had not been set up.

In June of 2016, the Committee obtained a judicial subpoena returnable July 27, 2016, for respondent's appearance and for production of his bank and bookkeeping records for his IOLA and business accounts. The Committee initially attempted to serve respondent at the Bronx business address. After service at the Bronx business address failed, the Committee successfully personally served respondent with the judicial subpoena at his home address. Subsequently, respondent failed to appear for his deposition on July 27, 2016, and to produce his IOLA and business account records, nor did he contact the Committee to request an adjournment. On July 29, 2016, the Committee mailed a letter to respondent's home address requesting that respondent promptly contact the Committee to reschedule his deposition, and warning him that if he did not do so by August 5, 2016, the Committee would seek his interim suspension based on his failure to cooperate with its investigation.

Respondent failed to respond to the Committee's letter, and other than his October 2015 voice mail message, in which he did not leave his contact information, respondent has failed to respond to any Committee communication, answer the sua sponte complaint, or produce the subpoenaed records.

Thus

Respondent's failure to reply to the Committee's inquiries and to comply with a judicial subpoena constitute professional misconduct immediately threatening the public interest which warrants suspension pursuant to 22 NYCRR 603.4(e)(1)(i) (see Matter of Jones, 139 AD3d 107 [1st Dept 2016]). Furthermore, respondent's failure to file attorney registration statements, pay registration fees, and update his business address with OCA, as required by Judiciary Law § 468-a(2) and 22 NYCRR 118.1(f), are additional, independent grounds for his suspension (see Matter of Modestil, 142 AD3d 9 [1st Dept 2016]).

Accordingly, the motion should be granted and respondent suspended from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(i), effective immediately, and until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court.

(Mike Frisch)

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

Tuesday, October 25, 2016

Sex Crime Disbarment

An attorney's criminal conviction has led to automatic disbarment by the New York Appellate Division for the First Judicial Department.

On February 26, 2016, respondent was convicted, after trial, in Supreme Court, New York County, of sexual abuse in the first degree in violation of Penal Law § 130.65(1), a class D felony, and criminal obstruction of breathing or blood circulation in violation of Penal Law § 121.11(a), a class A misdemeanor.

On June 10, 2016, respondent was sentenced to a four-year term of incarceration, three years of supervised release, fines and surcharges, and was required to register as a sex offender.

The New York Post covered the criminal case

A judge tossed a wealthy Manhattan lawyer in prison for 4 years Friday for sexually attacking a woman on the fold-out Murphy bed in his office as his portly victim blasted him for insulting her weight.

“It was implied it never could have happened as my 200-plus pound frame was too fat to be pushed down, held down, and pulled around like a rag doll,” the weepy victim read from a statement as her assailant Dan Nelson, 39, sat a few feet away in Manhattan Supreme Court.

“I found myself pinned to a bare mattress, fighting my hardest and thinking, ‘I’m a big girl. I’m strong. I can get this man off me.’

Defense lawyer Tim Parlatore argued at trial that the victim’s story didn’t add up because the Italian-made $5,732 Murphy bed outfitted in the conference room of his Midtown office couldn’t sustain such a heavy load.

The office where the suspected rape took place.Photo: Steven Hirsch

The victim met her attacker nearly two years ago at a bar and agreed to go home with him.

The two sloshed strangers went back to his firm Nelson & McCulloch where they stripped off their clothes and made out.

But when she changed her mind about the one-night stand, he pinned her to the Murphy bed, choked her and digitally penetrated her before she broke free and fled naked into the street.

The jury acquitted Nelson of the top count of attempted rape but found him guilty of sexual abuse and obstruction of breathing.

The 36-year-old woman also scoffed at Nelson’s claim he didn’t try to rape her because he has erectile dysfunction and didn’t take his medication.

“It was implied there was a simple reason you hadn’t because as I eventually read from the front page of the newspaper you had forgotten to take your Viagra pill,” she said. “But you and I both know what you did to me that night.”

ADA Maxine Rosenthal blasted Nelson for a history of “degrading and abusing” women and asked the judge to give him the maximum of 7 years.

Parlatore countered that Nelson is truly a gentleman – aside from one night of alcohol-induced boorishness.

‘And that even Nelson’s ex-wife and an ex-girlfriend had written character letters attesting to his harmless nature.

Justice Patricia Nunez was not persuaded.

“The fear that would cause a woman to run out into the street stark naked with none of her possessions, with nothing on her, yelling for help, is striking,” she said.

Nelson, wearing a dapper blue suit with a pocket square was cuffed and hauled away.

(Mike Frisch)

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

Are Consent Dispositions Gaining Favor In D.C.?

A District of Columbia Ad Hoc Hearing Committee has approved  a consent 18-month suspension with six months stayed and probation for conduct that involved serious dishonesty over an extended period of time.

The committee thoughtfully considered the merits of consent disposition in a case that presented a confluence of competing factors

In sum, having carefully reviewed the agreed-upon facts in this matter, having heard from and, indeed, tested Respondent in the hearing, and fully taking into consideration the pertinent sanctions case law cited in the Petition (at 7-8), we conclude, notwithstanding the fourteen-month period of dishonesty, that the negotiated sanction is justified. See, e.g., In re Guberman, 978 A.2d 200 (D.C. 2009) (18-month suspension as substantially different discipline in a reciprocal discipline matter where the respondent misrepresented to his employer that he would file an appeal on behalf of a client and falsified filing stamps on draft court papers to make it appear that he had filed the appeal); In re Pennington, 921 A.2d 135, 139-140 (D.C. 2007) (two-year suspension with fitness as substantially different discipline in a reciprocal discipline case, where the respondent “‘conceal[ed] the true account of how she mishandled [her client’s] claims, falsif[ied] a supposed settlement of those claims with the insurer, intentionally misrepresent[ed] matters in negotiations with third-party health care providers . . . , and conceal[ed] . . . facts that might have supported lodging a professional negligence claim . . . .’”) (quoting Attorney Grievance Comm’n v. Pennington, 876 A.2d 642, 660 (Md. 2005)). We also find that the negotiated sanction is not unduly lenient.

We note that, while the Hearing Committee unanimously agrees that the sanction is justified, and not unduly lenient, the Hearing Committee members differ regarding the extent to which they believe the negotiated discipline is lenient. One Hearing Committee member believes that, while not unduly lenient, the facts in this case reasonably could have justified a harsher sanction. This member believes that Respondent’s actions, in deliberately and systematically making at least five false statements to his client over a period of 14 months regarding key actions in connection with their case that he, the Court, and others had purportedly taken but which, in fact, had not occurred, constitute very serious misconduct. Furthermore, in the Amended Petition for Negotiated Discipline, while Dr. Howard acknowledged that “Respondent’s then-untreated conditions caused neglect of his obligations to New Plaza . . . ,” Dr. Howard at the same time “. . . offered a less definitive opinion on the causal nexus between the diagnoses and Respondent’s false statements in response to New Plaza’s inquiries or his presentation of a ‘faked court complaint’ to his client.” Dr. Howard was unable to establish a nexus between the diagnosis and repeated false statements over an extended period of time. Indeed, the parties stipulated that, pursuant to the second Kersey factor, Respondent would be able to show by a preponderance of the evidence that his bipolar disorder and ADHD “substantially affected the stipulated misconduct, with the exception of the Rule 8.4(c) violation.” Petition at 9 & n.1 (emphasis added). The absence of a stipulation that Respondent’s disability affected his misconduct related to dishonesty indicates to this member that the Respondent’s condition did not prevent him from understanding that he was engaging in repeated misrepresentations; nor, by inference, did it prevent him from consideration of some form of corrective action during this extended period, all of which underscores the seriousness of the misconduct.

Conversely, the other members of the Hearing Committee believe that the negotiated discipline risks being unduly harsh. Those members note Respondent’s remorse and dedication to his personal rehabilitation, his full and voluntary reimbursement of his former client, including both restitution of legal fees and compensation for the amount the client hoped to recover in the White Star matter, and the devastating impact a suspension has on an attorney’s financial circumstances, professional stature, and future professional and financial prospects. Unlike other situations in which long suspensions are justified, those members of the Hearing Committee believe that the Respondent is well on his way already to being rehabilitated and accordingly that the public’s safety no longer seems to be a concern.

The case is In re Richard Bianco and can be accessed at this link. 

The disciplinary investigation began in the spring of 2014.

If the court approves this consent (as I fervently hope it does), it sends a strong signal to the disciplinary system that cases where fair-minded people may differ are susceptible to meaningful negotiation.

Here, a case with Kersey issues and protracted dishonesty can get resolved in a responsible split-the-baby manner that offers a measure of public protection and gets done in two years rather than the usual decade. 

Bravo! (Mike Frisch)

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

Lawyer Had Sex With Client And Paid Her Fees To His Firm

A Hearing Division of the Law Society of Upper Canada has ordered a 2 1/2 month suspension for

• acting in a conflict of interest while representing a client in a family law matter by engaging in a personal and sexual relationship with the client;

• acting without integrity when he failed to inform his firm that he was involved in a sexual relationship with his client and that his client was unable to satisfy her accounts and that he paid two accounts on her behalf from his own personal funds;

• behaving dishonourably when he sent a series of uncivil text messages and e-mails to his client, some of which implied he may use solicitor client privileged and/or confidential information against her should she fail to reimburse him funds he loaned her over the course of their personal and professional relationship.

TheStar.com wondered whether the sanction was unduly light

In the Macri case, the client was found to be particularly vulnerable. She was a stay-at-home mother to two small children in an unhappy marriage who was financially dependent on her husband, a man who was charged for allegedly vandalizing her personal property, according to the agreed statement of fact. Her court proceeding was described as “complicated and heated.”

For a period of about four months after Macri was retained to represent Client A, they engaged in a “secret consensual sexual relationship.” After that ended, Macri continued an intimate personal relationship with the woman, “which included their shared hope that their romantic relationship would resume once the litigation concluded.”

As the woman’s case dragged on in court, Macri gave her $60,000 over a period of about three months in 2013 to cover her legal fees with the firm and personal expenses — $10,000 of which was characterized as a gift. The client agreed to repay the remaining $50,000 when the sale of her home was completed, according to the agreed statement of fact.

When the sale was completed and she refused to reimburse him, Macri sent her threatening texts and an email “wherein he implied he would divulge confidential and privileged information about Client A to her husband.”

In one text message, he said: “You don’t want to screw me over like this. Your case isn’t over. You still need me.”

She replied: “Don’t blackmail me,” to which Macri said: “Seriously? You want me as an enemy??? Pay what you promised you would. Pay it this week.” She told him he was threatening her, which he denied.

The client then reported the relationship and communications to Macri’s firm. He admitted to having had an inappropriate relationship with the client and loaning her money, and was then fired and reported to the Law Society.

Macri never did recoup the funds he loaned to the client, which his lawyer told the tribunal was money he was saving as a down payment on a home for himself and his two children. He now works on his own, and only this year his practice became financially viable.

(Mike Frisch)

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