Wednesday, November 30, 2016

Taxman

Tax offenses drew a six-month suspension by the New York Appellate Division for the First Judicial Department.

The material facts are undisputed. Respondent, who is 49 years old and focuses his practice on Family Court matters, testified that, inter alia, he has always had a fascination with issues related to money and taxation. In or about 2002, after extensive research into nonconventional theories regarding taxation and the monetary system, he decided not to file tax returns or pay taxes based on, among other things, what he now realizes was the misguided belief that monies he earned in connection with the practice of law were not subject to taxation. Between 2002 and 2011, respondent wrote more than 100 letters to New York State and federal tax officials, and also telephoned them, to advise them that their files pertaining to him purportedly contained incorrect Individual Master Files (IMF) codes which affected his tax liability; and that, in his view, he was not obligated to file returns or pay taxes until the issue was addressed.

Respondent admitted that he had spoken with tax attorneys over the years, none of whom agreed with his position. While respondent filed an administrative claim against the IRS for alleged unlawful collection activities, which he understood to be the precursor to a federal lawsuit, he never actually pursued a lawsuit because New York City did not honor an IRS levy on payments to him.

In 2011, shortly after the birth of his son, respondent was approached by New York State tax agents and told that if he did not resolve his outstanding tax liability civilly, it would become a criminal matter. Respondent stated that the birth of his son caused him to reassess his views regarding his tax obligations, and he advised the tax agents, through counsel, that he would file his returns and pay his taxes but he first wanted an agreement that he would not be criminally prosecuted. Such an agreement was not forthcoming, and, as noted, respondent was prosecuted and ultimately pled guilty to a misdemeanor.

Between February and April 2012, prior to his conviction, respondent filed his New York State tax returns for the tax years 2005 through 2010; and, in November 2013, he entered into an installment payment plan with New York State tax authorities pursuant to which he pays $200 per month toward his outstanding tax liability for the tax years 2004 through 2006, and 2011, which exceeds $60,000. Between 2012 and 2013 he filed his federal tax returns for the tax years 2002 through 2012. His federal tax liability is now in excess of $300,000, including interest and estimated penalties. Respondent is awaiting a payment agreement with the IRS and, in the interim, he has been paying the IRS $500 per month.

Respondent admitted that during the 10-year period at issue he saved approximately $200,000 as a result of not paying taxes. He averred that this money was to provide for the future, not to finance a lavish lifestyle, as evinced by, among other things, the fact that he has lived in the same studio apartment for 18 years, has never owned a car, and has not really traveled.

Respondent stated that he has paid approximately $100,000, half of his savings, to satisfy his tax liability to New York State; and his remaining savings were used for legal expenses in connection with the criminal and disciplinary proceedings, a Family Court proceeding involving his now three-year-old son, and to financially support his son. As a result of his tax conviction, respondent was removed from the Family Court, Queens County 18b Assigned Counsel Plan from which he had derived a significant part of his income and which provided him with work that he loved. Respondent expressed remorse for his conduct and averred that his actions were not motivated by greed or self- interest, and that someone of his education level and professional background would not have engaged in such self- destructive behavior absent some sort of mental stress or emotional affliction. Respondent stated that there was an extensive history of depression on his father's side, and while he saw a therapist and psychiatrist for approximately one year, he stopped doing so because his condition stabilized.

Respondent stated that, in retrospect, he was antisocial and was so obsessed with his views on taxation that he failed to recognize his self-destructive behavior. In addition, he explained that he was in close proximity to the September 11, 2001 terrorist attacks on the World Trade Center and, as a result, his depression returned but he did not seek professional help. Instead, he dealt with his feelings by immersing himself in his law practice and his study of money and taxation.

Respondent recently started seeing a psychiatrist; however, he did not offer any expert testimony or report evincing that he was diagnosed with a mental illness which contributed to his protracted failure to meet his tax obligations.

Sanction

It is obvious that the issue of sanctions for tax related misconduct is very fact dependent. The facts in this case appear most similar to those in Matter of Racht, and thus, under all the circumstances presented herein, including the mitigating factors presented by respondent, we find that the deterrent effect of a six-month suspension as recommended by the Referee is an appropriate penalty.

Accordingly, the Committee's petition is granted to the extent of confirming the Hearing Panel's findings of fact and conclusions of law, but is denied as to the recommendation as to sanction, and respondent is suspended from the practice of law for a period of six months as recommended by the Referee, and until further order of this Court.

Any application for reinstatement should include documentary proof that respondent has entered into agreements with the IRS and New York State tax authorities for payment of any outstanding tax debts.

(Mike Frisch)

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

Disbarred For Insurance Fraud

The Rhode Island Supreme Court has disbarred a convicted attorney

The respondent was a member of the bar of this state. On November 17, 2011 he was charged in a sixty-six count indictment filed in the United States District Court for the District of Rhode Island which alleged that the respondent had engaged in an investment scheme to defraud insurance carriers by securing the identities of terminally ill people by making direct material misrepresentations and omissions of fact to them, and then purchasing variable annuities and corporate bonds with death-benefit features that utilized these ill patients as the measuring life. On November 19, 2012, four days into what was anticipated to be a three-month trial the respondent entered a plea of guilty to one felony count of wire fraud, in violation of 18 U.S.C. § 1343, and one felony count of conspiracy, in violation of 18 U.S.C. § 371. The government dismissed the remaining counts of the indictment.

 On February 28, 2013, subsequent to the entry of his guilty plea but prior to the imposition of sentence, the respondent filed a motion to vacate his plea. On August 1, 2013, after a four-day hearing, the District Court denied the motion. On December 16, 2013, the respondent was sentenced to a term of imprisonment of seventy-two months on the charge of  wire fraud, and sixty months, to be served concurrently, on the charge of conspiracy. He is presently serving that sentence. Restitution has been ordered in the amount of $46,000,000. The respondent filed an appeal of the denial of his motion to vacate his plea with the United States Court of Appeals for the First Circuit. On January 16, 2014, Disciplinary Counsel filed a petition with this court in accordance with the provisions of Article III, Rule 12 of the Supreme Court Rules of Disciplinary Procedure, requesting that the respondent be suspended from the practice of law pending the outcome of his appeal. The respondent notified this Court through counsel that he had no objection to the petition. Accordingly, on February 20, 2014 this Court entered an order suspending the respondent from the practice of law pending the outcome of his appeal and until further order of the Court.

On December 7, 2015, the United States Court of Appeals issued its opinion affirming the District Court’s denial of the respondent’s motion to vacate his plea. The respondent thereafter filed a petition for writ of certiorari with the Supreme Court of the United States seeking review of the decision of the First Circuit. That petition was denied on May 23, 2016.

The respondent now has exhausted all avenues of appeal, and Disciplinary Counsel’s motion to disbar may therefore be granted.

The New York Times reported on the crimes 

Joseph Caramadre contends he was a philanthropist and a clever lawyer, offering $2,000 payments to people who were dying. The United States attorney contends that he was a scam artist, preying on the very ill and getting rich by defrauding insurance companies.

In the face of overwhelming evidence, Mr. Caramadre pleaded guilty last year, and on Monday, a federal judge here sent him to prison for six years.

Mr. Caramadre, an estate planner and a prominent member of the state’s Roman Catholic establishment, said he was merely exploiting a gap in insurance companies’ writing of the rules governing their products, and doing nothing illegal. Instead, he said, he was giving thousands of dollars to struggling families. His largess is well known; the court received dozens of letters praising Mr. Caramadre, including one from the bishop of Providence and one from a former Boston mayor...

During the hearing, Mr. Caramadre apologized to the families of the terminally ill patients for the distress his actions caused, but stopped short of admitting he had actually cheated any of them.

“I cannot tell you I am sorry that these terminally ill people got defrauded,” said Mr. Caramadre, who explained he would be lying if he did so. “I just wanted to share wealth.”

(Mike Frisch)

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

Ethics Of Marijuana Advice In Pennsylvania

From the web page of the Pennsylvania Disciplinary Board

In May we reported on the proposed “marijuana law” amendment to Rule 1.2 of the Rules of Professional Conduct, dealing with whether a lawyer can counsel a client on conduct that is legal under some law and illegal under other law. The issue arose with the adoption of law allowing medical marijuana in Pennsylvania and other states, while the substance remains illegal under Federal law.

On October 26, 2016, in a rulemaking published at 46 Pa.B. 7164 (November 12, 2016), the Supreme Court of Pennsylvania adopted an amendment to Rule 1.2, which addresses the subject. The rule adopted adds a new subsection (e) to Rule 1.2, which states:

A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct.

The rule adopted differs slightly from the proposed rule change published in May. The proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

The revised rule took effect November 25, 2016.

(Mike Frisch)

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

Courtesy Call

The Louisiana Supreme Court denied a writ application with a concurrence

CRICHTON, J., additionally concurs and assigns reasons.

I agree with the decision to deny this writ application. I write separately to note my observation that Relator, Louis Koerner—an attorney and member of the Louisiana Bar acting here on behalf of himself—makes insulting and casually demeaning comments regarding both the trial and appellate courts that presided over these matters. In my view, his statements come close to violating La. S. Ct. R.VII, § 7. (“The language used in any brief or document filed in this court must be courteous, and free from insulting criticism of any person, individually or officially, or of any class or association of persons, or of any court of justice, or other institution. . . .”). All attorneys should conduct themselves with the utmost integrity in their interactions with the courts in accordance with our Professionalism Guidelines. See La. Sup. Ct. R, Part G, § 11 (“We will speak and write civilly and respectfully in all communications with the court.”)

(Mike Frisch)

November 30, 2016 | Permalink | Comments (0)

Tuesday, November 29, 2016

A Ringing Defense Of The Right To Act Stupidly On One's Own Property

A dissent posted today by Justice Benjamin of the West Virginia Supreme Court of Appeals questions whether the state may make it a crime to drive an ATV drunk on your own property.

The most solemn duty of an American court lies in its pledge to protect the rights and liberties of private citizens from encroachment by the State. Here, the Majority not only badly misread applicable statutory law, it also sanctioned the infringement of two of our most basic natural rights: the right to do what one wants to do in the privacy of one’s estate so long as another is not harmed and the right to be left alone. As trustees of the wisdom and vision of our founders, this Court failed mightily.

It is unquestioned that Joshua Beckett’s use of his property was a matter of his own free choice. That it may be said that operating an all-terrain vehicle (“ATV”) exclusively on one’s private property, i.e., the family farm, after having consumed alcohol was a “stupid” use of the property misses the point. So long as Mr. Beckett did not infringe upon the rights of others or put others at risk, it was his choice to act “stupidly.”

As to case law

To support its expansive creativity, the Majority asserts that its research, listed in a footnoted string citation, shows that “nearly two dozen jurisdictions” support its logic. A careful review, however, reveals that none of the cited cases, save one, supports the Majority’s conclusions that the private use of an ATV by an individual on his private property while intoxicated is criminal conduct.

Irony

By no measure does the Majority opinion find legitimacy in constitutional, statutory, or common law. While the rights with which we are endowed are scarcely a topic of measured circumspection in our fast moving society, it falls to our courts to be vigilant that such natural rights are protected. This includes, as here, the importance of protecting the right to the private use and enjoyment of one’s private property.

In 1816, Jefferson wrote to his friend, Samuel Kercheval, a Virginia writer: “The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management.” Letter of Thomas Jefferson to Samuel Kercheval, June 12, 1816, Writings, v. 10, p. 39. This quotation crowns the courtroom of the Supreme Court of Appeals of West Virginia. How ironic.

The majority opinion is linked here. Mike Frisch)

November 29, 2016 in Current Affairs | Permalink | Comments (0)

A Mother's Love; A Court's Tolerance

A mother's advocacy on behalf of her son has resulted in a public reprimand by the Wisconsin Supreme Court.

This court is familiar with the underlying facts giving rise to this case. It stems from Attorney Bach's efforts to advocate on behalf of her adult son, A.B., who is disabled. A.B. has a rare medical condition that renders him a danger to himself and others. Since approximately 2006, when A.B. turned 18, Attorney Bach has engaged in extensive litigation regarding his placement, level and quality of care, payment for that care, and guardianship. 

She was already deeply involved in litigation when admitted to practice in 2011. She initiated a series of cases in state and federal court.

In a June 2013 order, the Wisconsin Court of Appeals warned Attorney Bach that "[b]eing [A.B.'s] mother does not endow her with the right to sidestep, manipulate or disregard the rules by which all litigants must play." Margaret B. v. County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶7 (Wis. Ct. App. Jun. 12, 2013)...

On May 22, 2014, the Seventh Circuit Court of Appeals affirmed Judge Joseph's decision, ruling that Attorney Bach had "abused the judicial process by filing multiple frivolous suits, many of which, like this one, could not succeed unless the court were prepared to ignore the outcome of her earlier suits." The court also noted that Attorney Bach frequently named judges and courts as defendants, despite their absolute immunity. The court ordered Attorney Bach to show cause within 14 days why the court should not impose sanctions for a frivolous appeal.

 On June 12, 2014, the Seventh Circuit Court of Appeals deemed Attorney Bach's appeal frivolous and fined her $2,000.

The Office of Lawyer Regulation brought charges of frivolous litigation that were rejected

The referee expressed frustration with the OLR's amended complaint, noting that "OLR wants me to 'infer' Attorney Bach's knowledge (of frivolousness, unwarranted claims, and intent to harass adverse parties)." However, while the OLR's pre-hearing brief argues that "she knew the claims she was advancing were unwarranted" there is no such factual allegation in the amended complaint. Merely alleging that Attorney Bach filed the various actions is not sufficient. The OLR failed to allege further that she, subjectively, knew that these actions were filed in a frivolous manner, were without merit, that Attorney Bach was trying to advance an unwarranted claim, or that she sought to harass or maliciously injure another. The referee states: "The amended complaint refers to many cases and appeals and it is not my job to guess at what particular conduct OLR claims violates a particular Supreme Court rule."

... the referee did not agree with the OLR's assessment of Attorney Bach's intent. The referee characterized Attorney Bach as a new and very inexperienced lawyer with overzealous goals, who plunged herself, unprepared, into filing federal court actions and subsequent appeals. Her filings were not competent; indeed they are often frustratingly inept, but the referee correctly notes that the OLR did not allege that she violated ethical rules requiring competence. However misguided her filings were, the referee concluded that the evidence did not support a finding that Attorney Bach filed the various actions with the intent of being frivolous or to harass the defendants. Accordingly, the referee concluded that the OLR failed to prove by clear, satisfactory, and convincing evidence that Attorney Bach committed the misconduct alleged in counts one through three.

However, the attorney had knowingly disobeyed an injunction

The referee remained mindful that Attorney Bach's misconduct all relates to her efforts on behalf of her child. Indeed, the referee deemed Attorney Bach's "actions as the biological and loving mother" a mitigating factor in assessing appropriate discipline.

The referee did not condone Attorney Bach's conduct. Nor do we. Attorney Bach's deliberate violation of court orders is serious professional misconduct that requires a public reprimand. Indeed, we take this opportunity to caution Attorney Bach. Although, we affirm the referee's conclusion that the OLR failed to prove she violated SCR 20:3.1(a)(1), (2), and (3) as alleged in counts one, two, and three of the amended complaint, this conclusion reflects a failure in the pleadings, rather than an exoneration of her conduct. We are very familiar with Attorney Bach's filings. We recognize that her fervent advocacy stems from concern for her child. However, we must caution Attorney Bach that this court's tolerance for her persistent refusal to respect and follow rules of court procedure is wearing thin.

The attorney was ordered to pay costs of nearly $15,000. (Mike Frisch)

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

Monday, November 28, 2016

Ethics And F-Bombs

A stayed two-year suspension with conditions was imposed by the North Carolina Disciplinary Hearing Commission on an attorney for foul language in representing Occupy Asheville protesters including herself

After Magistrate Fisher reported to Foster that there was not an outstanding warrant for Foster, Foster exclaimed, "[w]hat the fuck is going on around here?"

Magistrate Fisher warned Foster that her vulgarity was the second time she had used inappropriate language in the magistrate's courtroom area, and that Magistrate Fisher was "going to have to ask [Foster] to leave."

Foster did not immediately exit the magistrate's courtroom area, but repeated the vulgar expletive three or four more times, including "[t]his is fucking ridiculous."

The magistrate held the attorney in contempt and the feeling apparently was mutual

Foster then walked toward the exit door and Magistrate Fisher instructed her to stop, but Foster exited the magistrate's courtroom area, stating as she left, "[w]hat the fuck is going on?" and "[t]his is a bunch of bullshit.

 She was held for about 48 hours on the contempt and on release

In a social media posting about her contempt conviction prior to her de novo appeal in Buncombe County Superior Court, Foster wrote, "[Funny thing is that, pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I didn't even do in this case ... innocent I tell you!"

In another social media posting about her contempt conviction prior to her de novo appeal in Buncombe County Superior Court, Foster also admitted to cursing out of "extreme frustration" and "generally raising hell" in the magistrate's courtroom area before Magistrate Fisher.

The contempt was reversed by the North Carolina Court of Appeals but the court noted

We are, however, very troubled by defendant's use of profanity in the magistrate's office while conducting court-related business despite warnings by the magistrate about the inappropriate language. Such disrespect, particularly by an attorney familiar with proper courtroom practices, is wholly inappropriate. In addition, we are disturbed by defendant's Facebook posts following the incident which evidence her failure to acknowledge the wrongfulness of her conduct - - indeed the posts indicate a very cavalier attitude.

Defendant went so far as to create a Facebook post regarding the incident that stated: "Funny thing is that pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I did not even do in this case. Innocent, I tell you, struck by lightning tn this arbitrary system we call American justice." Given defendant is a lawyer, practicing in our State's courts, we find defendant's attitude. offensive and incomprehensible.

Under the circumstances, the "F bomb" violated two rules

By using profanity before Magistrate Fisher in the magistrate's courtroom area, and by continuing to do so after being warned by Magistrate Fisher about her inappropriate language, Defendant engaged in undignified or discourteous conduct that was degrading to a tribunal in violation of Rule 3.5(a)(4)(B), and also engaged in conduct that was prejudicial to the administration of justice in violation of Rule 8A( d). 

The opinion notes that the attorney is an honors graduate of the University of North Carolina at Chapel Hill Law School. She is admitted in three states with no prior discipline. 

She had been administratively suspended in 2013 and had raised PTSB in the reinstatement.

Also

In correspondence with the State Bar's opposing counsel, Foster accused opposing counsel of prosecuting this action against her for political reasons and because of her cannabis activism, of suborning perjury by presenting the testimony of Magistrate Fisher, and threatened further legal action against both opposing counsel and Magistrate Fisher.

At the hearing, Foster acknowledged that she had no supporting evidence that this action was politically motivated against her, cited her PTSD as the reason for her accusations, and apologized to opposing counsel...

Foster used at least one vulgarity in her e-mail communications with the State Bar's opposing counsel, and at the hearing apologized to opposing counsel for doing so.

We had previously posted the outcome of the matter but without the details. (Mike Frisch)

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

Saturday, November 26, 2016

Private Admonition For Self-Reported Sex With Client

A recent private admonition from Delaware

DISCIPLINARY ACTION PRIVATE ADMONITION.

ODC File No. 112894-B

Effective Date: September 12, 2016

A Delaware lawyer was privately admonished for violation of Rule 1.8(j) of the Delaware Lawyers’ Rules of Professional Conduct (engaging in sexual relations with a client). The lawyer agreed to represent a client in a civil matter. Approximately nine months after the representation began, the lawyer and client resumed an intimate personal relationship from twenty years prior and had consensual sexual relations. The sexual relationship and lawyer-client relationship continued for two months until the lawyer terminated the representation and self-reported to ODC.

The Delaware rule on sex with a client

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Apparently there is no "old flame" exception to the Rule.  (Mike Frisch)

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

A Key Component Of Transparency

When disciplinary counsel determines to file ethics charges against an attorney, the complaint (and response, if any) is a public document in most jurisdictions.

A transparent disciplinary system makes these documents public.

A consumer -friendly system makes charges readily available on line.

Bravo Michigan Attorney Grievance Commission, which does provide such access.

The web page gives one a good sense of the level of activity of the Michigan disciplinary system, By my count, thirty four charging documents have been filed in 2016. 

The most recently-posted complaint alleges that two attorneys from Paw Paw and a former judge engaged in discourteous and disrespectful treatment of opposing counsel in civil litigation.

The two accused attorneys attended a chambers conference in person. Opposing counsel was on the telephone.

The conversation was at least partially recorded and later transcribed.

The Court: Alright, thank you, What a fucking dickhead.

Attorney Stewart: Now you understand why his son is such a fucking dick.

WWMT.com had reported on related (and dismissed) civil litigation in federal court.

A series of  video reports  (also here and here) from WWMT 3 TV also raise the issue whether the "post-d***head" substantive discussion of the case (recited in the charges) were inadvertently overheard ex parte communications.

The 2013 reports note the judge's recusal from the case and later retirement.

I do not read the charges to make the allegation of improper ex parte communication.

High on my D.C. Bar wish list is for the online posting of public charges. 

Jacob Gershman in  The Wall Street Journal reported in 2015 on efforts to open up the New York disciplinary system.

Responding to the importunings for needed reform by Professor Stephen Gillers

In nearly 40 states, according to Mr. Gillers, disciplinary charges against attorneys are automatically made public upon a finding of probable cause. That’s when there’s reasonable grounds to believe that an attorney has committed an ethical violation.

Commission members who objected to more disclosure said it would risk damaging the reputation of an attorney who is accused of wrongdoing but later exonerated. The risk of harm — potentially leading to, in the words of the commission’s report, “career-damaging publicity which, in the era of social media, could never be fully retracted — outweighed whatever extra confidence and trust in the disciplinary system that more openness would bring, the critics said, according to the report.

The report didn’t say how often attorneys who face complaints are exonerated. “We were told that there were very few,” Mr. Gillers told Law Blog on Tuesday.

Declining to respond to the professor’s criticisms, New York court system spokesman David Bookstaver told Law Blog the court system’s leadership appreciates Mr. Gillers’s input. “He brought to light an issue that certainly hasn’t been addressed over the years, and the chief judge thought it was important to address his concerns,” Mr. Bookstaver said.

Law360 (Andrew Strickler) also reported on New York's hostility to transparency and notes that the commission's report to perpetuate secret hearings is entitled Fostering Efficiency And Transparency.  (Mike Frisch)

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

Trial Court May Not Provide Prosecutor's Reasons In Batson Challenge

The trial court's mishandling of a Batson issue led the Louisiana Supreme Court to grant a new trial in a first degree murder death penalty case involving the death of the defendant's child.

Defendant was subsequently brought to trial. At the conclusion of the jury selection process, defendant moved to quash the petit jury venire on the basis of systematic and intentional underrepresentation of African Americans on the venire panel, specifically African-American males. Additionally, considering the state’s exercise of seven peremptory challenges, five of which were used to exclude African-American venire persons, defendant urged that there is “a prima facie case for a Batson violation” and requested the trial court “require the State to state race neutral reasons” for its peremptory challenges.

In response to defendant’s urging, the trial court stated, “for the record its finding in there’s been a prima facie showing” by defendant of a Batson violation. The trial court then went through each of the state’s peremptory challenges, articulating reasons for the state’s strikes. Subsequently, the trial court concluded “there is no prima facie showing at all as to systematic exclusion on the basis of race by the State’s exercise of its peremptory challenges,” that is, no Batson violation occurred.

The result

The record in the instant case hinders our ability to discern a clearly defined three-step Batson analysis. From all that appears, this court is left to conclude that the trial court conflated the three steps. After finding that the defense had established a prima facie case, the trial court later declared there was no prima facie showing. A finding of a prima facie case is not only a threshold for reaching the other Batson steps, but also serves to frame the issue for the parties and the trial court.  Furthermore, contravening the Elie court’s admonishment relative to the second step in the Batson inquiry, rather than asking the prosecution for actual reasons for its peremptory strikes, the trial court speculated as to what race-neutral reasons might exist. In sum, without consistently identifying for itself whether or not a prima facie case had been established at step one, and without ascertaining the prosecution’s actual reasons at step two, the trial court provided insufficient assurance that, when it came to step three, the court had framed the issue such that it could sufficiently evaluate the “weight and credibility to be given to the ... racially-neutral explanations.” See Elie, 05-1569 at 12, 936 So.2d at 800. Moreover, as this court previously explained, the first two steps may be combined when a party “offered race neutral reasons” in response to a Batson challenge. Nelson, 10-1724, 10-1726 at 10, 85 So.3d at 29. Even then, however, a distinct “third step of weighing [the challenger’s] proof and the “race-neutral reasons” is “critical.” 

...Post-trial remedies include reversal of defendant’s conviction, with a remand for a new trial, or remanding for an evidentiary hearing to have the prosecutor offer race-neutral explanations for the state’s strikes. Under the facts of this case, it is doubtful that an evidentiary hearing would serve to rectify the constitutional violations that resulted from the trial court’s failure to order the prosecutor in this case to articulate race-neutral reasons for his strikes, as required after the trial court made a prima facie finding. A meaningful hearing on this issue is all but impossible because the state can simply reiterate the same reasons already crafted by the trial court. The inadequacy of such a remedy in this case is magnified by the fact that the prosecutor in this case is no longer with the district attorney’s office and there is a new district attorney. Therefore, defendant’s conviction and sentence are vacated, and this matter is remanded for a new trial.

(Mike Frisch)

November 26, 2016 | Permalink | Comments (0)

Illinois Supremes Sanctions Attorneys

The Illinois Supreme Court has ordered discipline in a number of cases and has summarized the actions on the ARDC web page.

Among the actions

Mr. Cahnman, who was licensed in 1978, was suspended for ninety days. While serving as an alderman for the City of Springfield, he represented a client in cases in which Springfield police officers arrested or issued citations to the client. He also participated in four closed City Council meetings during which the City Council discussed a police records destruction lawsuit and a civil rights lawsuit that his client had filed against the City through separate counsel. During these meetings, Mr. Cahnman was appearing on his client’s behalf in the very same traffic case that gave rise to the civil rights lawsuit. He did not disclose his representation to the City Council. The suspension is effective on December 9, 2016.

(Mike Frisch)

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

Former IRS Attorney Seeks Unemployment Benefits After Discharge For Tax Filing Issues

A remand has been ordered by the District of Columbia Court of Appeals in a case involving an attorney's entitlement to unemployment benefits

Until her termination, Petitioner worked as an attorney with the Internal Revenue Service (“IRS”). She represented the government before the United States Tax Court, including in cases involving penalties for failure to pay taxes and failure to file tax returns. In 2011 her supervisors became aware that Petitioner had filed her 2006 and 2008 tax returns late, and it appeared that she had not filed her 2009 tax return at all.

The IRS considered removing Petitioner, but it ultimately entered into a Last Chance Agreement with her on November 4, 2011. Petitioner agreed to acknowledge her past wrongdoing and agreed to a ten-day suspension. She also agreed to continue her employment on a “trial basis” until the IRS “receive[d] affirmative proof that her 2013 federal personal tax return period [sic] ha[d] been timely filed.” The Agreement also required Petitioner to timely pay her taxes for each tax year from 2010 to 2013 and to notify her supervisors that she had filed those returns within five days of each filing. Petitioner agreed that a breach of either requirement would justify her removal. 

In 2014 the IRS discovered that Petitioner had not paid all of the taxes she owed for 2013. Moreover, she had not notified her supervisors within five days that she had successfully filed the 2013 return—Petitioner notified her supervisors one day late. The IRS found that each violation breached her Last Chance Agreement, and it terminated Petitioner’s employment. The IRS noted that either violation by itself would have constituted sufficient grounds for termination.

The remand deals with the timeliness of the appeal from the denial of unemployment benefits and whether the attorney's dismissal was for "gross misconduct"

 We have repeatedly held that we cannot affirm a determination of gross misconduct unless the ALJ makes explicit findings that the former employee acted deliberately or willfully...

If the OAH determines on remand that it does have jurisdiction of Petitioner’s appeal, it should more fully address the gross misconduct issue, making explicit findings regarding whether Petitioner acted deliberately or willfully when she failed to pay all of her taxes in 2013 and when she failed to timely notify her employer that she had filed her 2013 return. We note that the ALJ may consider only these two alleged instances of misconduct—and not Petitioner’s allegedly late or missing filings in 2006, 2008, and 2009—because the failures to pay all of her taxes in 2013 and to timely notify her employer of the 2013 filing were the two reasons that the IRS gave for discharging Petitioner.

The opinion is authored by Associate Judge Fisher. (Mike Frisch)

November 26, 2016 | Permalink | Comments (0)

Friday, November 25, 2016

Suspension For Domestic Violence

An act of domestic violence that took place in 2008 and was promptly reported to disciplinary authorities has led to a three-month suspension by the New Jersey Supreme Court.

The story is told in the report and recommendation of the Disciplinary Review Board, noting an earlier sanction

Respondent was admitted to the New Jersey bar in 1990. He maintains a law office in Union Township, New Jersey. In 2007, respondent, a former municipal court judge, was censured as a result of charges brought against him by the Advisory Committee on Judicial Conduct (ACJC) for committing an act of domestic violence and causing a motor vehicle accident while driving in an intoxicated condition. In re Paraqano, 189 N.J. 208 (2007)

The matter at issue involved another act of domestic violence

On September 2, 2008, a Morris County grand jury returned an indictment against respondent, charging him with second degree aggravated assault and third degree aggravated assault, in violation of N.J.S.A. 2C:12-ib(i) and (7). Thereafter, on September 29, 2009, before the Honorable John B. Dangler, J.S.C., respondent entered a guilty plea to the amended offense of simple assault, a disorderly persons offense.

During his plea allocution, respondent admitted that, on December 4, 2007, he had an argument with his then wife, D.P., which resulted in his "recklessly" pushing and having physical contact with her, from which she suffered a bruise on her knee.

Why did it take so long to impose a sanction?

Respondent..argued that the passage of time between the incident and the OAE’s prosecution of the case warranted dismissal or, in the alternative, punishment less than a suspension. Respondent pointed out that, in 2008, he had made the [Office of Attorney Ethics]  aware of the criminal charges pending against him and that, in 2009, he had informed the OAE of the disposition of the case. Finally, in 2010, the OAE had been made aware of the disposition of the appeal...

Respondent argued that the OAE had waited a full six years to initiate disciplinary proceedings against him. During that time, he acquired a mortgage and invested in his legal practice, believing that, with the passage of time, he was free to move on with his life. He asserted that a suspension at this point could cause him to lose his home and would have a devastating impact on his law practice and, therefore, his ability to earn a living.

The DRB's rejected the delay as a reason to forego suspension

Although respondent makes a compelling argument about the passage of time, his reliance on In re Verdiramo, supra, 96 N.J. 183, is somewhat misplaced. Verdiramo, who pled guilty to obstruction of justice by influencing a witness, was before the Court on events that occurred more than eight years earlier. The Court remarked that the public interest in proper and prompt discipline was "necessarily and irretrievably diluted by the passage of time" and that disbarment would have been more vindictive than just. Under the "special circumstances" of the case, (Verdiramo already had been temporarily suspended for approximately seven years, an amount of time that greatly exceeded the maximum period of suspension reserved for the most serious offenses that do not warrant disbarment) the Court did not impose additional discipline. Unlike Verdiramo, respondent has not yet suffered any disciplinary consequences from his guilty plea.

Here, respondent incorrectly and improperly assumed that no disciplinary action would result because of the passage of time following his criminal acts. From his faulty assumption, he maintained that, if he is suspended, he will suffer dire financial consequences (inability to pay his mortgage and loss of the investment in his law practice). We note that many attorneys who are suspended from the practice of law face similar adverse financial consequences. Although the OAE’s filing of this motion was not timely, respondent received no assurances that he would not be held accountable for his conduct. Thus, we do not factor in our determination of discipline respondent’s erroneous assumption that no disciplinary proceedings would be filed...

We have weighed the other mitigating (Court ordered community service, glowing character references, participation in anger management) and aggravating factors (the nature of respondent’s misconduct in this matter, as well as his disciplinary history for similar conduct, and his misrepresentation to us regarding his alleged reliance on the OAE’s delay in seeking discipline in the purchase of his home). We also have considered that, in contrast to Jacoby (II), respondent was not incarcerated for a felony and that a significant amount of time, indeed, has passed since respondent’s misconduct.

Under the totality of the circumstances, we determine that a three-month suspension is warranted.

When it takes eight years to process a criminal conviction, perhaps it would be useful to acknowledge a failure of self-regulation even if it does not significantly impact on the ultimate sanction. (Mike Frisch)

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

Thursday, November 24, 2016

The Passing Of A Truly Great Man

The District of Columbia legal ethics community has lost one of its few giants with the passing of my beloved mentor and friend Len Becker.

I first met Len when he was appointed  as Bar Counsel in late 1991. He came from a distinguished career at Arnold & Porter after clerking for Judge Edward Weinfeld and Associate Justice Potter Stewart. 

When we learned of his appointment, those of us at Bar Counsel were quite concerned about having a boss with the intellectual firepower that Len brought and with good reason. He demanded excellence and would settle for nothing less. When my work did not meet his exacting standards it was always rejected with the same comment

This disposition is not ready for prime time.

He was the most incisive and hard-working lawyer I have ever known.

He was a man of rigorous honesty and integrity.

He left the Bar Counsel job in deep frustration with a system that did not want or seek quality lawyering in the prosecution of wayward attorneys.

No other person had the lasting professional impact on me of Len. He made me a better thinker, better writer and better lawyer. He led by his example of hard work and dedication to excellence.

From my tribute last July 

He made the lawyers who cared to learn better lawyers themselves. He dramatically improved the quality of my own writing, a hard task since I thought I already knew it all. 

Of utmost importance, he was willing and able to take on the Board on Professional Responsibility when the need arose.

And he left (this is my opinion) because of the intractable problems that bar politics injected (and continues to inject) into the D.C. system. 

His seven years represent the high point of the Office of Bar Counsel in terms of the quality of the work done and the professionalism of the office.

My own debt to him will never be repaid. 

One of his first acts as Bar Counsel was to hire Julia Porter as an Assistant Bar Counsel. For that hire alone I would be eternally grateful.

If a person is judged by their personal integrity and positive impact on others, Len lived a righteous life and has more than earned his eternal rest. 

Thank you and God's speed. 

With love, gratitude and respect,

Mike Frisch

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

Investigative Reporting Leads To Bar Charges

A State Bar investigation that was triggered by a July 2012 article in the Phoenix New Times by Paul Rubin led to ethics charges against two attorneys who represent death penalty defendants. 

A hearing panel ordered that charges of billing misconduct against one of the two be dismissed for insufficient evidence.

The panel did not explain its reasoning.

The dismissal does not address the allegations against the other attorney.

The charges against the other attorney involve allegations of billing dishonesty but also allege that he violated client confidentiality in his descriptions of service in documents subject to FOIA disclosure.

The Phoenix New Times

Bills submitted to public agencies are public record, but Carr oddly chose a stream-of-consciousness approach in many invoices, even when referring to his own death-penalty-eligible clients.

A small sampling involving client Naranjo

This is the worst one, but this client in the craziest one that I have.

Looking at new video of our client from the past. He looks like a killer, not a retard.

had to listen to the confession [tape] - not good.

Jury will hate us.

From the Phoenix New Times story

Nate Carr remains the king of Maricopa County's contract criminal-defense attorneys when it comes to collecting money, even though he hasn't been assigned a new capital case since 2009.

As of June 21, according to a county spreadsheet, Carr had been paid $2.4 million since the start of 2006 for representing accused murderers.

That amounts to about $370,000 per year, a sum that compares favorably to the $123,000 that County Attorney Bill Montgomery earns yearly, the $100,000 that deputy county attorney Eric Basta (chief prosecutor in Naranjo) makes, and the $145,000 that Judge Roland Steinle (who presided at Naranjo's trial) is paid.

Jim Logan of the Office of Public Defender Services makes $164,000 a year...

[Client] Naranjo was facing death row in the March 2007 stabbing death in Phoenix of his pregnant 38-year-old girlfriend, Delia Rivera. Evidence of his guilt included the victim's three children as eyewitnesses and a confession. Carr and his defense team had to try to persuade jurors to spare their client's life after they inevitably convicted him of murder...

The Naranjo billings reveal that the pair billed for dozens of "team meetings" with Taylor Fox — 58 in Johnson's case and 38 in Carr's — that [co-counsel] Fox never submitted invoices for and says he never attended.

"If I attended a team meeting, I would have wanted to get paid for it," Fox said. "If I wasn't there, I wasn't there, and I wouldn't say I was. I don't over-bill or under-bill."

It gets worse.

A review of more than 64 invoices submitted separately for payment by Fox and Carr for work they allegedly did complete together (these so-called "team meetings," court hearings and one-on-one discussions) reveals this:

On average, Nate Carr billed almost three times more hours than co-counsel Fox for identical services supposedly rendered.

The big picture background

Maricopa County's lucrative criminal-defense niche began to explode in 2005, within months after Andrew Thomas became county attorney.

Death-penalty filings increased exponentially during Thomas' controversial reign, which ended when he resigned in 2010 to unsuccessfully run for Arizona attorney general.

By 2008, Maricopa County had become the nation's unofficial capital-punishment capital, with about 150 death-penalty cases pending — up by two-thirds from three years earlier. It didn't help that the landmark U.S. Supreme Court ruling in Ring v. Arizona mandated retrials for several convicted murderers (now they would be sentenced by juries, not judges).

Death-penalty cases are among the most expensive, time-consuming, and rigorous in the justice system. One reason is that most murder defendants are unable to afford lawyers, and the courts must appoint counsel to represent them — at great cost to taxpayers.

It is (unfortunately) unusual for a bar investigation to benefit from the type of investigative reporting done here.

The Death Penalty Information Center critiqued the work of Mr. Carr. 

An earlier inaccurate post regarding the dismissed charges has been deleted. (Mike Frisch)

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

Conflict Of Interest In Divorce/Bankruptcy Representation

An attorney who engaged in a conflict of interest consented to a reprimand with conditions by the Arizona Presiding Disciplinary Judge.

In Count One, Mr. Hineman represented both Robert and Janice Beckhorn in an uncontested divorce and a bankruptcy matter. He advised the Beckhorns to first proceed with the bankruptcy before filing for divorce.

On July 20, 2015, Mr. Hineman filed a chapter 7 bankruptcy petition on behalf of both Robert and Janice. His fee agreement in the bankruptcy matter however, was deficient in that it did not contain language required by ER 1.5(d)(3).

On September 2, 2015, Mr. Hineman filed a petition for dissolution of marriage and listed only Robert as a client. The fee agreement in the dissolution proceeding also listed only Robert and not Janice as a client. On October 22, 2015, Mr. Hineman filed an application and affidavit for default in the dissolution proceedings on behalf of Robert only. On November 3, 2015, the Court entered a discharge in the bankruptcy matter. Mr. Hineman’s representation in the bankruptcy matter continued until May 23, 2016 as an objection was filed by the bankruptcy trustee. He filed a default degree of dissolution of marriage on behalf of Robert only on December 11, 2015, which was entered that day.

Overall, Mr. Hineman engaged in a conflict of interest by representing both the husband and wife in a bankruptcy proceeding and subsequently, a divorce proceeding. Although an ethical violation, the clients were satisfied with the results Mr. Hineman achieved.

Count Two involved a failure to adhere to rules regarding fees. (Mike Frisch)

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

Across The Potomac

A Virginia attorney has been suspended for nine months as a result of a felony conviction for leaving the scene of an accident involving injury or death.

He is subject to an additional two years of suspension if he fails to comply with the requirements of the Lawyers Helping Lawyers program.

The attorney was convicted on his guilty plea  on April 19 of this year and was sentenced in June. Thus, the soup-to-nuts bar discipline process took about five months. 

Notably, a Washington, D.C. attorney was convicted of the same offense in Virginia in 2005 and the matter is now pending before the Court of Appeals with a recommendation for no suspension.

The case has now taken over eleven years to resolve.

The felon-at-issue has yet to serve a day of suspension.

Our prior coverage of the delay in the D.C. case is linked here and here.  (Mike Frisch)

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

Wednesday, November 23, 2016

Three Judges And The Comparative Sanction Method Applied to Ticket-Fixing In New Jersey

Ticket fixing merits a suspension of three months, according to a report and recommendation adopted by the New Jersey Supreme Court.

The Disciplinary Review Board

Respondent stipulated to facts relating to his involvement in "ticket-fixing" and, therefore, his violation of RPC 8.4(d). Thus, the only issues for determination are whether respondent, as a former municipal judge, breached RPC 8.4(b) by violating N.J.S.A. 2C:30-2(a) and the proper quantum of discipline for his misconduct.

By way of background, respondent was born in the Philippines, where he obtained an undergraduate degree. Later, he lived in Rome, from approximately 1962 to 1972. In 1967, he was ordained as a priest and, thereafter, obtained a doctorate degree in Theology. He subsequently returned to the Philippines where, from 1974 to 1986, he was a professor and dean of Theology.

In 1986, respondent tendered his resignation from the priesthood and later married. Thereafter, he settled in the United States and taught Theology at the Covenant Station School in Elizabeth, New Jersey. From 1988 to 1992, he attended Rutgers School of Law in Newark, on a part-time basis, while working full-time at the New York Transit Authority.

Respondent was a part-time municipal judge from 2004 until 2007 and, therefore, was a public servant. On October 3, 2007, he took a voluntary leave of absence from that position.

The fix news broke days later

The crux of respondent’s wrongdoing is as follows. In 2005, he received a ticket from the Jersey City Housing Authority for debris and other materials left behind by a contractor who had completed work at his Jersey City Law office. Knowing that he could not adjudicate his own ticket, respondent took it to his superior, Municipal Court Judge Wanda Molina. According to respondent, the perception in the Jersey City Municipal Court was that judges could not dismiss their own tickets, but could give them to another judge.

Molina adjudicated the ticket in chambers; respondent paid a $50 fine and $20 court costs. He considered the adjudication as a "test run," and assumed that other tickets could be handled similarly.

Three other tickets

Respondent also presented three tickets to Municipal Court Judge Pauline Sica: (i) an April 29, 2004 ticket issued to respondent’s son, Karl Sison, for failure to observe a traffic control device, a moving violation; (2) a ticket issued to a vehicle registered in his name for violation of a municipal parking ordinance; and (3) another ticket issued to a vehicle registered to respondent and/or Irene Sison, his wife.

The tickets were not adjudicated on the record. Sica imposed judgment without regard to the actual guilt, innocence, guilty plea, hearing, or presence of the defendants. In their absence, Sica found them guilty.

While there was extensive mitigation

Respondent’s testimony and the stipulated facts established that, as a municipal court judge, he was a public servant. Respondent’s assertion that he was not seeking a benefit when he asked Sica to adjudicate his tickets is belied by the stipulated facts and his conduct: he stipulated that the perception in the Jersey City Municipal Court was that one could not dismiss one’s own ticket, but could give it to another judge; that the first ticket he gave to a municipal court judge was a "test run" and he assumed that other tickets could be handle similarly; and that he, thereafter, presented three additional tickets for adjudication.

Respondent’s testimony regarding the routing of his tickets to Judge Sica was both contradictory and incredible. During the AG’s, the court’s and the OAE’s investigation, respondent stated that he had .given the tickets to Sica. It was not until the DEC hearing that he attempted to blame his law clerk or the court clerk for directing the tickets to Sica for disposition. Only after a break at the DEC hearing, however, did respondent unequivocally admit that he had given the tickets to Sica himself, that he shared office space with her, that he paid her to perform services on his behalf, and that she was listed as "of-counsel" on his letterhead.

Notably, the DRB cited the sanctions imposed on Judges Molina and Sica

Unlike some of the other cases, neither Molina nor Sica embroiled others in their ticket-fixing schemes. Nevertheless, unlike Molina, Sica advanced no mitigating circumstances. In addition, she showed no contrition or remorse for her acts. During the criminal proceedings, she stated that, although there was no legitimate reason to waive the fine, "that’s the culture." Furthermore, her letter to the OAE did not acknowledge any wrongdoing on her part, but implied that she had been pursued unfairly, since no action had been taken against respondent.

Respondent’s case does not include the aggravating factors found in Sica, other than his inconsistent testimony during the DEC hearing. Thus, his misconduct warrants comparison to Molina’s: (i) Molina was the chief judge in the vicinage, while respondent was a relatively new judge at the time of the misconduct; (2) Molina adjudicated nine parking tickets for her significant other, respondent had only four tickets adjudicated for himself and family members; (3) Molina tampered with public records by falsifying information on the tickets, respondent did not do so; (4) both presented compelling mitigating circumstances; (5) both were regretful and contrite for their conduct (6) neither had an ethics history; and (7) Molina was one of the first attorneys prosecuted as a result of the Jersey City investigation, while there has been a significant passage of time since respondent engaged in the improper conduct and was charged with ethics violations.

(Mike Frisch)

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

Divorce And Fight Over Escrow Account Leads To Ethics Lapse

An Illinois Hearing Board summarized its conclusions

Based on the evidence presented and the credibility determinations made, the Hearing Board found Respondent failed to properly handle client funds by not keeping the funds separate from his own funds but that his actions in doing so were not dishonest, and that he did not knowingly and dishonestly violate a court order by using funds in his firm's operating account. In consideration of the evidence in aggravation, which included his failure to appear in-person at his disciplinary hearing, the fact that he allowed the difficulties in his personal life to affect his judgment in practicing law, his failure to recognize the wrongfulness of his actions, and his failure to pay restitution, the Hearing Board recommended Respondent be suspended from the practice of law for six months. The Hearing Board declined to recommend Respondent's suspension be subject to until further order of Court as requested by the Administrator since the evidence was insufficient to show his misconduct was related to his mental health disorder and that such a severe sanction was necessary to protect the public.

The personal difficulties were rooted in a combined marriage and law partnership

Between January 2008 and August 2011, Respondent and Cynthia Koroll were married and practiced law together as partners under the name of Szymanski Koroll Litigation Group (SKLG). SKLG maintained both an operating account and a trust account. During this time, SKLG represented Tressie Loveland and Paul and Susan Hoskinson in personal injury cases and expended costs with respect to these matters. 

In late 2011, Ms. Koroll and Respondent began the process of getting a divorce and ceased practicing law together. However, SKLG's operating and trust accounts remained open for some time, and both Respondent and Ms. Koroll had access to account information and were able to conduct transactions with respect to these accounts. 

Around this time, Ms. Koroll began practicing law under the name Koroll Litigation Group (KLG), and continued to represent Ms. Loveland. Nathan Reyes, a former associate of SKLG, went to work for Ms. Koroll at KLG. 

In early 2012, Ms. Koroll, on her own behalf, filed for bankruptcy. James Stevens was the appointed bankruptcy trustee, and as trustee, interacted with Respondent in determining the attorney fees earned by Ms. Koroll both before and after the filing of her bankruptcy. 

On June 13, 2012, the bankruptcy court ordered the assets of the SKLG client trust and operating accounts be frozen and that the funds could not be distributed without the permission of the trustee or the court. Respondent received notice of the court's order shortly after it was entered and understood it. Mr. Stevens had sought the entry of this order because both Ms. Koroll and Respondent were constantly in disagreement regarding the funds they were entitled to and accusing each other of wrongfully taking funds. According to the evidence presented at hearing, the relationship between Respondent and Ms. Koroll was and still is highly acrimonious. 

As to entrusted funds

On August 6, 2012, Respondent drew $6,473.50 from the SKLG client trust account. He claimed he drew these funds from the Loveland settlement proceeds, which had previously been deposited into the trust account, in order to compensate SKLG for funds Ms. Koroll wrongfully took as reimbursement for costs in the Hoskinson matter. Yet, at the time Respondent drew these funds, only $5,458.53 remained in the trust account for reimbursement of costs with respect to both the Hoskinson and Loveland matters. This was because Ms. Koroll already had withdrawn $7,500.99 of the $12,192.52 allocated by court order for costs reimbursement in the Hoskinson matter, and Respondent had withdrawn $3,326.14 of the $4,093.14 allocated by the court for costs reimbursement in the Loveland matter. Accordingly, Respondent withdrew $1,014.97 from the Loveland settlement that was not allocated by the court for costs reimbursement. Respondent's act of withdrawing these funds was not in the best interest of the client, who, as he knew or easily could have determined, had not yet received her share of the settlement proceeds, and his failure to safeguard and segregate these funds for her benefit was in violation of Rule 1.15(a).

We acknowledge Respondent's argument that he drew these funds from the SKLG client trust account to compensate SKLG for funds he believed Ms. Koroll wrongfully took from the Hoskinson settlement and that these funds were not client funds, but funds belonging to KLG for fees earned in the Loveland matter. Yet, we are still not convinced his actions were justified. In both the Loveland matter and Ms. Koroll's bankruptcy matter, court orders existed stating KLG was entitled to $14,583.33 for fees in the Loveland matter. Respondent did not have authority to unilaterally decide KLG was entitled to less than this court ordered amount and to then withdraw more from the Loveland settlement proceeds than he and SKLG were entitled to in that matter. Moreover, Respondent's first communication with Ms. Koroll regarding his withdrawal came by fax, which she  received after she had withdrawn the funds she was authorized to pursuant to court order. As a result, Respondent's actions resulted in there being insufficient funds in the SKLG client trust account to cover Ms. Loveland's share of the settlement proceeds, which supports our conclusion that Respondent violated Rule 1.15(a).

The hearing board rejected dishonesty and other charges relating to 28 checks.

As to sanction

At the Administrator's request, Dr. Stafford Henry performed a psychiatric evaluation of Respondent on November 13 and 24, 2015. According to Dr. Henry, Respondent suffers from a recurrent major depressive disorder, which is largely attributed to a number of situational stressors in his life, such as the death of his son and five broken marriages. He also suffers from a cognitive disorder, resulting in memory impairment. He has had eight head injuries, the most recent of which was in 2008, and has diabetes. Dr. Henry opined that Respondent is a good candidate for treatment and outlined treatment recommendations. Respondent, however, is neither on medication nor receiving other forms of treatment for these disorders, which he acknowledges preclude him from practicing law. Dr. Henry opined that there is no nexus, connection or association between the misconduct Respondent is alleged to have engaged in and his depressive and cognitive disorders. Both at hearing and during his evaluation by Dr. Henry, Respondent unequivocally denied doing anything wrong and does not believe his mental illness contributed in any way to the alleged misconduct. 

Dr. Henry further opined that given the deficits in Respondent's memory, he would not be consistently able to practice law in accordance with the Rules of Professional Conduct. Respondent agreed with Dr. Henry's conclusion that he should not practice law and stated that he no longer wants to practice law.

...In consideration of the nature of Respondent's misconduct, the foregoing legal precedent, and the significant aggravating evidence, specifically his failure to appear in-person at his disciplinary hearing, his willingness to allow the difficulties in his personal life to affect his law practice, his failure to recognize the wrongfulness of his actions, and his failure to pay restitution, we believe a suspension of six months is warranted. We are confident this sanction is appropriate in light of the purpose of the disciplinary system, namely to protect the public and maintain the integrity of the legal profession. 

Unrelated ethics charges against the former spouse/partner are linked here with the answer linked here.

Our prior coverage of the charges against the former spouse linked here under the title quoting an alleged email

Your Slimey Israeli Punk Client [Will] Wish He Had Never Thought of Hiring a White, Brilliant Gentile."

Citations to record omitted throughout. (Mike Frisch)

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

Stairway To Suspension

We don't often link to stories in the Hollywood Reporter but note that the Pennsylvania Supreme Court imposed reciprocal discipline of three months and a day suspension on an attorney and that we were scooped

The attorney who flouted courtroom protocol during the "Stairway to Heaven" copyright trial has been suspended from practicing law.  

Francis Malofiy's behavior as an attorney has been the subject of repeated judicial scrutiny, and a Thursday ruling means he won't be doing any lawyering until the fall.

An appellate panel upheld a previously recommended suspension of three months and one day, finding Malofiy violated "various rules of conduct" during a copyright infringement lawsuit over Usher's "Bad Girl."

In 2015, a three-judge district court panel found Malofiy tricked unrepresented co-defendant William Guice into signing an affidavit without consulting a lawyer by hiding that their relationship was adversarial in nature.

The prior year, Judge Paul Diamond issued sanctions and ordered Malofiy to pay $28,000 in court costs.

Malofiy had argued that he didn't break the rules and, even if he did, the punishment was too harsh.

The district court was troubled by the attorney's failure to take responsibility for his actions and his other unprofessional and uncivil conduct during the course of the litigation. 

On Thursday, the appellate panel agreed and upheld the suspension.

His reputation as a rule-breaker preceded him when he took on the recent Led Zeppelin case. In a story previewing the trial, Bloomberg painted a vivid portrait of Malofiy as a "bar-brawling lawyer."

During the six-day "Stairway" trial, Malofiy racked up more than a hundred sustained objections and multiple admonishments from Judge R. Gary Klausner.

After the jury ruled in Led Zeppelin's favor, Malifoy said he lost on a technicality and hinted at an appeal. If Michael Skidmore, the man who sued on behalf of late songwriter Randy Wolfe, wants to appeal soon, Malofiy could be out of a job. 

While Malofiy's suspension is in Pennsylvania, being admitted pro hac vice in California is dependent on being an attorney in good standing in another jurisdiction. Skidmore still has a lawyer, though. Glen Kulik served as local co-counsel and could take the reins on the case. 

The Bloomberg article linked above is worth a read. 

ABA Journal had the story of the initial sanction affirmed by the United States Court of Appeals for the Third Circuit.  (Mike Frisch)

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