Wednesday, March 15, 2017

Unbundled CLE Falsehoods Get Lawyer Suspended Twice

A reciprocal suspension of one year has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct found in Oregon

The underlying facts, as set forth in the Oregon Supreme Court's opinion and order, briefly summarized, are as follows: The respondent was required to complete 45 hours of continuing legal education (hereinafter CLE) courses, a mandatory requirement, for the 2009 to 2011 reporting period. On April 11, 2012, at approximately 10:51 a.m. PST, the respondent purchased a set of CLE courses ("Specialty Oregon Bundle") from Lawline, Inc. On April 13, 2012, at approximately 11:14 a.m. PST, the respondent submitted to the Oregon Bar an MCLE compliance report, in which he certified that he had completed his MCLE requirements. The compliance report listed all the courses the respondent purchased, and indicated that he completed them on the same date, April 12, 2012. On April 13, 2012, at 3:54 p.m. PST, the MCLE administrator for the Oregon Bar contacted the respondent and inquired how he watched/listened to 48 hours of CLE courses in one day, as indicated in his compliance report, asking him, "How did you do that?" The respondent responded to the inquiry by providing copies of his CLE completion certificates. As these certificates were printed within a 7-hour period, the administrator asked the respondent how he completed 48 hours of CLE courses in fewer than 7 hours. The respondent replied that he actually started viewing/listening on April 11, 2012.

The matter was referred to Chris Mullmann, the Assistant General Counsel of the Oregon Bar, who contacted the respondent and asked for an account of what occurred. The respondent responded that he actually began the courses on April 11, 2012, and finished them on April 12, 2012. Unsatisfied with the respondent's response, Martha Hicks, Assistant Disciplinary Counsel, wrote to the respondent and advised him that the compliance report he submitted raised concerns about his conduct and potentially implicated provisions of Oregon RPC 8.4(a)(3). The respondent was asked to provide additional information to corroborate his account. In an affidavit submitted to Hicks, the respondent stated that he completed the entire bundle of courses "either late on April 12, 2012 or at some point early on April 13, 2012." During a telephonic deposition, the respondent stated, "I did finish on the 12th, and I turned [the compliance report] in on the 13th. So that for sure is true." Subsequently during his deposition, the respondent backtracked and stated that he may have completed some courses on April 13, 2012.

A trial was held on January 22, 2015. The respondent testified that he took the courses on April 11, 2012, and April 12, 2012, although later in his testimony he stated, for the first time, that he may have begun taking the courses as early as April 10, 2012. When questioned why none of his prior statements mentioned that he began taking the courses on April 10, 2012, the respondent provided answers which the trial panel found to be "evasive, incomplete and/or untruthful."

The trial panel found the respondent's overall testimony lacking in credibility:

"His testimony was inconsistent with his prior writings, including an affidavit he prepared and signed under oath in 2012. The testimony he provided at the hearing was inconsistent with the testimony he previously provided at his deposition in this matter on September 3, 2014, which was also provided under oath. The [respondent] presented facts during his testimony that he had never presented before, notwithstanding having had multiple opportunities to have done so during the course of the [Oregon] Bar's investigation. Put simply, the panel finds that the [respondent's] testimony was untruthful. Lastly, the panel finds that the [respondent] made his misrepresentations knowingly and intentionally. The [respondent] was provided multiple opportunities to explain how he could have possibly fit 48 hours of work into a shorter (and potentially significantly shorter) period of time and each time he failed to do so. It is clear he changed the facts over time, [and] added explanations' when prior ones were not accepted, with each subsequent explanation less plausible than the prior."

The trial panel concluded that the respondent violated his duty to the public and to the legal profession when he intentionally and knowingly misrepresented to both Lawline and the Oregon Bar the fact that he had attended and successfully completed the CLE courses he had purchased.

In determining the sanction to be imposed, the trial panel noted the following aggravating factors: the respondent acted with a selfish motive, never acknowledged the wrongful nature of his conduct, was not candid during the proceedings, and repeatedly made misrepresentations to both Lawline and to the Oregon Bar. While noting that this was the respondent's first disciplinary offense, and the matter involved only misrepresentations about satisfying his CLE obligations, the trial panel found that there were no mitigating factors. Due to the respondent's "repeated pattern of dishonesty, raising extreme concern that the [respondent] would engage in similar conduct in the future," the trial panel imposed a one-year suspension from the practice of law.

The attorney did not oppose reciprocal discipline. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/03/a-reciprocal-suspension-of-one-year-has-been-imposed-by-the-new-york-appellate-division-for-the-second-judicial-department-fo.html

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