Friday, March 31, 2017

First Time A Disbarment

An Illinois Hearing Board proposes the disbarment of an attorney who had defaulted on serious charges

According to the admitted allegations, Respondent prepared a testamentary instrument for an elderly client, Elizabeth S. Hewitt, which gave Respondent a prohibited substantial gift. Specifically, Respondent amended Hewitt's revocable trust to make herself the beneficiary of two-thirds of the approximately $1,000,000 residuary of the trust's assets. Respondent did not advise Hewitt that the Rules of Professional Conduct prohibited Respondent from doing so.

In aggravation, this Panel considered the testimony of the Administrator's witnesses, John W. Quinn and Cheryl Bauer, as well as the Administrator's Exhibits 1 through 18. We also considered Respondent's failure to participate in this disciplinary matter, which demonstrated a lack of regard for the legal profession and the disciplinary process. Respondent has no prior discipline, but we gave this factor little weight in mitigation in light of the serious misconduct.

(Mike Frisch)

March 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Conviction For "Horrendous" Beating Draws Public Censure Four Years Later In New Jersey

The New Jersey Supreme Court has censured an attorney convicted of assault arising from an act of domestic violence.

The Disciplinary Review Board report summarized the crime

On November 17, 2011, respondent entered a guilty plea to a downgraded offense of simple assault, a disorderly persons offense. Specifically, respondent admitted assaulting his former girlfriend, B.W., who, at respondent’s sentencing, stated that respondent had bitten her and hit her with a piece of metal, resulting in bruises all over her back and chin.

Respondent, who was represented by counsel, admitted that, by virtue of the guilty plea, he waived his right to trial and understood that the penalties were at the discretion of the court...

Counsel characterized the incident as a "boyfriend/girlfriend situation that got a little bit out of hand." Respondent "lost his cool" when B.W. told him that she wanted to see other people. He was "truly sorry that it happened."

The Honorable Thomas F. X. Foley, J.M.C., requested any photographs that had been taken of the victim, which he believed were necessary for sentencing. Respondent’s attorney was given the opportunity to object to the submission of the photographs, but specifically declined to do so.

Color photocopies of the pictures of the bruises of various angles of B.W.’s back, wrist, arm, and legs were a part of the record before us. Although not of the best quality, the pictures show red marks on B.W.’s upper back on both shoulders, scrapes on the front of each ankle and on the left foot, red marks on both calves and what appears to be the lower left arm, red marks near both knees, a significant bruise on the right shin, and distinct teeth marks on B.W.’s wrist.

In imposing sentence, the judge remarked that he had "looked at the obviously horrendous situation as it relates to the beating, essentially, that . . . the victim took."

The board's view on sanction

approximately four years passed between the time of respondent’s guilty plea and the filing of the motion. Given that respondent has no additional acts of domestic violence incidents on his record and that he has engaged in, and, apparently, successfully completed anger management treatment we determine that a departure from the presumptive three-month suspension is warranted here. Thus, we determine to impose a censure.

Three board members would have imposed a three-month suspension. (Mike Frisch)

March 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, March 30, 2017

Hagar Slacks

The North Dakota Supreme Court suspended a judge for lack of diligence in a domestic case

Richard L. Hagar, judge of the district court for the North Central Judicial District, filed exceptions to the Judicial Conduct Commission's recommended findings that he violated provisions of the Code of Judicial Conduct by failing to diligently and promptly decide judicial matters assigned to him and by failing to work with the presiding judge. He also objects to the Commission's recommended sanction. We conclude there is clear and convincing evidence Judge Hagar violated N.D. Code Jud. Conduct Rules 2.5 and 2.7. We order that Judge Hagar be suspended from his position as district court judge for three months without pay and that he be assessed $10,118.67 for the costs and expenses of the disciplinary proceedings.

He had previously been suspended for one month without pay for similar lapses.

On January 26, 2012, eight days after our issuance of the Hagar decision, Judge Hagar began presiding over a two-day divorce trial in the case of Block v. Block, Civil Case No. 51-10-C-02045. Because the parties had agreed to the divorce and to the division of marital property, the central remaining disputed issue in the case was the primary residential responsibility for the parties' two children. During the ensuing months, the plaintiff's attorney contacted district court personnel on several occasions to check the status of the decision. After three months had passed, the attorney sent correspondence to the court again asking about the status of the decision. Judge Hagar's court reporter responded that the judge anticipated the decision would be completed by May 23, 2012. After another four months passed without receiving a decision, the attorney on September 22, 2012, sent a letter to Judge Hagar inquiring about the status of the case and the need for a determination of the primary residential responsibility for the children and the necessity of placing the property settlement on the record. After receiving no response from Judge Hagar, the attorney on November 8, 2012, sent a letter to the presiding judge of the district informing him about the problems obtaining a decision in the Block case. Judge Hagar thereafter issued a decision, and a divorce judgment was entered on November 16, 2012, almost ten months after the trial.

Sanction

Judge Hagar has been a district court judge for seven years and has been censured for similar conduct in the past. Although this proceeding involves an unreasonable delay in only one case as compared to the 12 delays involved in the prior disciplinary proceeding, it occurred in close proximity to Judge Hagar's censure. The record supports the Commission's finding that "there was detriment to the plaintiff [in Block] from the delay with regard to housing of the children and receipt of property." Judge Hagar's conduct has tarnished the integrity of and respect for the judiciary as evidenced by the refusal of the plaintiff in Block to consider appealing the decision because, according to her attorney, "by that point she was so absolutely, totally disgusted with the system." Judge Hagar offered no excuse for his failure to act diligently on the Block case.

Judge Hagar has shown remorse and a willingness to modify his conduct. However, contrary to Judge Hagar's written plan for meeting docket currency standards adopted in the prior disciplinary proceeding, the record indicates he did not adequately use Odyssey reports or his court staff to remedy the situation. Judge Hagar objects to imposition of a suspension as a sanction because of the "burden" it would impose on his colleagues and the citizens of the state. He offers no alternative recommendation. Judge Hagar cannot escape discipline merely because of its effect on the judicial system and his fellow judges.

This Court's disciplinary orders are not intended to be "'empty noise.'" Disciplinary Board v. Lucas, 2010 ND 187, ¶ 18, 789 N.W.2d 73 (quoting Disciplinary Board v. Larson, 512 N.W.2d 454, 455 (N.D. 1994)). The censure issued in the previous disciplinary proceeding did not deter Judge Hagar from repeating his improper conduct.

(Mike Frisch)

March 30, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

The Profane And The Suspended

An attorney has been suspended for three years and until further court order by the New York Appellate Division for the Fourth Judicial Department

Respondent admits that, from November 2015 through June 2016, he sent to an adversary in litigation certain emails containing vulgar and profane insults directed to the adversary. In addition, he failed to register as an attorney for the 2015- 2016 biennial registration period. Finally, respondent admits that, from February through June 2016, he failed to respond to inquiries from the Grievance Committee regarding the aforementioned matters and, in July 2016, he failed to comply with a subpoena issued by this Court...

We have considered, in determining an appropriate sanction, the nature of the misconduct and that respondent has failed to participate in the instant proceeding, thereby evidencing a disregard for his fate as an attorney (see Matter of Tate, 147 AD3d 35, 37). Accordingly, we conclude that respondent should be suspended from the practice of law for a period of three years and until further order of this Court. In addition, in the event that respondent applies to this Court for reinstatement to the practice of law, he must in the application sufficiently explain the circumstances of his default herein.

(Mike Frisch)

March 30, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Records Of Officer In Eric Garner Case Shielded From Disclosure

The New York Appellate Division for the First Judicial Department reversed  an order giving access to records of the officer who caused the death of Eric Garner.

The issues before us stem from the extensively publicized arrest and death of Eric Garner on July 17, 2014. Intervenor Police Officer Daniel Pantaleo was depicted in a bystander video applying a choke hold to Mr. Garner during the incident. An investigation followed, and on December 2, 2014, a grand jury declined to indict Officer Pantaleo in connection with Mr. Garner's death.

Petitioner submitted a Freedom of Information Law (FOIL) letter request to respondent Records Access Officer, Civilian Complaint Review Board (CCRB), dated December 18, 2014, seeking eight categories of records concerning Officer Pantaleo, dating from 2004 to the date of Mr. Garner's death. Petitioner sought: (1) the number of complaints filed against Officer Pantaleo; (2) the number of allegations contained within each complaint; (3) the outcome of CCRB's investigation of each allegation; (4) any prosecution by CCRB in response to such finding; (5) the outcome of any prosecution by CCRB; (6) any charges and specifications filed by the New York City Police Department's (NYPD) Department Advocate Office; (7) the outcome of any Department Advocate Office proceedings; and (8) any other agency actions in response to the above requests.

On December 24, 2014, CCRB denied the request, citing the statutory exemption from disclosure provided for police personnel records contained in Public Officers Law § 87(2)(a) and Civil Rights Law § 50-a. In addition to the statutory exemptions, CCRB noted that the request for records relating to unsubstantiated matters would constitute "an unreasonable invasion of privacy." Finally, CCRB noted that it was not possible to redact any responsive records "in a way that will disassociate allegations against [Officer Pantaleo] given the nature of" petitioner's request. Petitioner appealed to the CCRB on December 29, 2014, but received no response.

This article 78 proceeding was commenced on February 17, 2015, and sought an order directing the CCRB to produce "a summary of the number of allegations, complaints and outcomes brought against" Officer Pantaleo. Much of petitioner's broader initial request was thus abandoned. During the proceedings, petitioner further narrowed its FOIL request, seeking only information as to "whether the CCRB substantiated complaints against Officer Pantaleo and, if so, whether there were any related administrative proceedings, and those outcomes, if any." Officer Pantaleo applied for and was granted intervenor status as a party respondent. His opposition papers alleged, among other things, that even the requested summary of the CCRB records was exempt from disclosure because it would endanger his life and the lives of his family members. In support, he referenced online, unsubstantiated reports of alleged misconduct on his part that resulted in the arrest of a Michigan man in February 2015 for posting Facebook death threats against him. Officer Pantaleo also stated that the NYPD's Threat Assessment Unit had assigned police officers to watch over him and his family 24 hours a day, 7 days a week, and implemented other security measures as well. He also agreed with the CCRB that the requested documents constituted "personnel records" within the meaning of Civil Rights Law § 50-a(1) and were therefore exempt from disclosure.

Disposition

Here, in light of the widespread notoriety of Mr. Garner's death and Officer Pantaleo's role therein, and the fact that hostility and threats against Officer Pantaleo have been significant enough to cause NYPD's Threat Assessment Unit to order around-the-clock police protection for him and his family, and notwithstanding the uncertainty of further harassment, we find that the gravity of the threats to Officer Pantaleo's safety nonetheless demonstrate that disclosure carries a "substantial and realistic potential" for harm, particularly in the form of "harassment and reprisals," and that nondisclosure of the requested records under Civil Rights Law § 50-a is warranted (see Daily Gazette, 93 NY2d at 157, 159).

The points raised in the various amici briefs can be summarized, in the main, as raising various public policy concerns. However, with all due respect to the seriousness of those concerns, we take no position on whether the statute should be amended to address those concerns. We are bound to apply the law as it exists, and as interpreted by controlling Court of Appeals precedents (Matter of New York Civil Liberties Union v New York City Police Dept., __ AD3d __ [1st Dept 2017]). Such policy and public interest arguments have been found to be inconsistent with the legislative history of Civil Rights Law § 50-a (see Daily Gazette, 93 NY2d at 154-155). Petitioner's remedies, under our tripartite system of government, rest with the Legislature as the policy making branch of government, not the courts, which are tasked with interpretation of the laws.

 ...the order and judgment (one paper), of the Supreme Court, New York County (Alice Schlesinger, J.), entered July 27, 2015, directing respondent to produce to petitioner, pursuant to the Freedom of Information Law (FOIL), a summary of CCRB's records indicating (a) the number of substantiated complaints brought against intervenor before the July 17, 2014 death of Eric Garner and (b) any CCRB recommendations made to the Police Department based on such complaints, should be reversed, on the law, without costs, the judgment vacated, the petition denied, and the proceeding brought pursuant to CPLR article 78 dismissed.

(Mike Frisch)

March 30, 2017 in Current Affairs | Permalink | Comments (0)

Judge May Judge Miss America Prelims

Did not see this one coming from the Florida Judicial Ethics Advisory Committee

Opinion Number: 2017-08
 Date of Issue: March 15, 2017

ISSUES

1. May a judge serve as a “judge” for preliminary Miss America pageant competitions?

ANSWER: Yes.

2. As a corollary inquiry, the inquiring judge seeks a determination whether the Canons prohibit participation at a pageant competition by showcasing a talent, such as singing.

ANSWER: The Canons do not prohibit the inquiring judge from participation at a pageant competition by showcasing a talent, such as singing, subject to the Code’s requirement that the judge act “at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

FACTS

 

The inquiring judge seeks guidance as to whether the Code of Judicial Conduct would permit the inquiring judge to serve as a “judge” at preliminary Miss America pageant competitions. Miss America pageant competitions provide opportunities for young women to promote their voices in culture, politics, and the community. Miss America contestants working towards college or postgraduate degrees can earn scholarship awards to help further their education.

Miss America pageant competitions are sponsored by the Miss America Organization. According to its website, the Miss America Organization is the nation’s leading provider of scholarships for young women, awarding millions annually in cash awards and in-kind tuition waivers. The Miss America Organization is an IRC 501(c)4 non-profit organization. The Miss America Organization is comprised of fifty-two licensed organizations, including all fifty states, Washington, D.C., and Puerto Rico. The inquiring judge would potentially serve as a “judge” in connection with state and local preliminary competitions by one or more of these licensed organizations. The adjudged winner of a pageant competition is awarded a scholarship and moves on to other pageant competitions.

The Miss America Foundation, Inc. is a registered IRC 501(c)(3) organization, which is a separate stand-alone foundation that supports the educational mission of the Miss America Organization of providing scholarship assistance to women, regardless of their background circumstances.

The participation of the inquiring as a “judge” in the pageant competition will not be advertised in advance of the competition, although a biography of the inquiring judge will be included in the competition program. The biography will note that the inquiring judge is a member of the judiciary. It is anticipated the program would include photograph of the judge appearing in a family photograph.

The activities of the inquiring judge would be limited to being an actual judge at the pageant, and no fundraising activities or membership solicitation would be involved in connection with service as a “judge” of pageant competitions. An admission fee will be charged to those who attend the pageant competition, which is used to offset the costs of the venue where the pageant competition is held.

Note

 A member of the Committee dissents from the advice provided herein.

(Mike Frisch)

March 30, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Wednesday, March 29, 2017

The Burdens Of Law Firm Leadership

The Louisiana Attorney Disciplinary Board recommends a one-year suspension of an attorney who engaged in billing falsehoods over a three-year period.

As a member of a law firm, the Respondent generally billed on an hourly basis but on rare occasions had the opportunity to work on some cases on a contingency basis. The firm policy was to set hourly billing targets for attorneys with the firm at 1800 billable hours annually. Meeting or exceeding the annual billing targets established by the firm were factors taken into consideration for annual salary increases, bonuses, and/or promotion within the firm. 

From in or around 2012 through November 7, 2015, the Respondent internally recorded time entries and created receivables that were in part false and/or inflated. The Respondent self-reported his misconduct to the Office of Disciplinary Counsel by correspondence dated November 25, 2015. The Respondent’s law firm also reported Respondent’s conduct to ODC pursuant to the provisions of Rule 8.3(a).

The law firm reported to the Office of Disciplinary Counsel that its internal investigation was able to conclusively demonstrate that the Respondent submitted 428 entries which were classified as “certainly false” and an additional 220 entries that were “ reasonably certain to be false or inflated”. The Respondent’s conduct reflects violations of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation), and Rule 8.4(a) (violating or attempting to violate the Rules of Professional Conduct).

The attorney joined his firm in 1998 and rose to a leadership position.

The hearing committee was somewhat sympathetic

Finding Respondent’s testimony to be credible, it determined that Respondent engaged in misconduct due to his concerns that his accurate billable hour numbers were not commensurate with his leadership position within the firm, rather than any desire for direct financial gain. He submitted false and inflated billing for the purpose of making himself look good to enhance his opportunities for leadership positions and to ultimately become managing partner of the firm. As a member of the Board of Directors, the Respondent saw first-hand and on a monthly basis the extraordinary billable time and business dollars generated by key leaders of the firm. When his practice began to decline, Respondent gave in to his own internal pressures. He began to submit time on a dismissed contingency fee matter, and eventually on six other matters, in an effort to make himself look better “on paper” each month.

The Respondent received a discretionary bonus from the firm’s compensation committee for 2012, 2013, and 2014. While the testimony established that the legitimate hours billed by Respondent met and exceeded his billing targets in each of these years, he nonetheless fabricated billing entries.  The parties stipulated that due to his many contributions at the firm during that time period, the firm hypothesized that it was highly likely that Respondent would have received all or some of those merit bonuses even without the false inflation of his billable hours.  Still, the Committee recognized that testimony from firm members also supported the conclusion that the full amounts of the merit bonuses may not have been paid to the Respondent had his hours been accurately recorded.

He receives credit for time served on an interim suspension.

Pamela Carter concurred with reservations

One year suspension is inadequate in this matter where lawyer dishonesty is clear and unequivocal. There was continual intent on the part of Mr. Wallace for a period of three years. The firm’s investigation and conclusions that Mr. Wallace’s false entries were “reasonably certain” to be of a false nature is very telling. It is my opinion that the Board’s recommendation should also require that Mr. Wallace apply for reinstatement. There is no question that Mr. Wallace’s dishonesty was purposeful, calculated, done knowingly and intentional. Mr. Wallace deliberately inflated the amount of time recorded for the purpose of presenting to clients bills which reflected undisclosed premiums. Not discussed is the information in the record regarding Mr. Wallace’s violation of his supervisory duties, as a member of the firm (partner), and as a billing partner, even though the factual record is replete with evidence that he violated these rules. Mr. Wallace served as the firm's hiring partner, and was the head of recruiting.

Linda Bizzarro dissented

I don't believe a suspension of one year is sufficient to address the admitted, multiple instances of misconduct in this matter. Considering the number of false or inflated billing entries (428 confirmed, 200 "reasonably certain" to be false), the length of time Respondent repeated the intentional misconduct (3 years), and the amount of money involved in the scheme ($91,544 in false billing, $85,000 of bonus money voluntarily renounced), a one year suspension is inadequate. In my opinion the Board should adopt the Hearing Committee's sanction recommendation of one year and one day, which would require the Respondent to apply for reinstatement.

(Mike Frisch)

March 29, 2017 in Bar Discipline & Process, Billable Hours, Law Firms | Permalink | Comments (0)

Faster Not Better When Illegal

A public reprimand has been imposed by the Indiana Supreme Court of an attorney who counseled and assisted his client's immigration fraud.

In 2012, Respondent was hired by a United States citizen living in New Jersey to assist his wife, a citizen and resident of South Korea, in immigrating to the United States to live here permanently. Respondent advised his client that the lawful method to gain permanent residency involved a process known as consular processing to obtain an immigrant visa, but that this process could take upward of ten months. Respondent alternatively proposed a quicker process – for the client’s wife to enter the United States on a non-immigrant visa or visa waiver and then seek a permanent residency status once she was physically present in the country. Respondent’s client chose this method over consular processing.

Federal regulations create a presumption that spouses of United States citizens enter the country with the intent to remain permanently. Respondent knew that to obtain the nonimmigrant visa or visa waiver, his client’s wife would have to state falsely on her application that she intended to leave at the expiration of her non-immigrant visa period, fail to reveal her marital status to a United States citizen, or make other false or misleading statements. Making such a false statement of intent is a federal criminal offense. Respondent also knew his client’s wife likely would need to buy a round-trip ticket as evidence of her intent to return to South Korea.

When the client’s wife arrived in the United States, she was denied entry based on false statements to customs officials and forced to take the next return flight to South Korea. Because of these false statements, it will be significantly more difficult in the future for the client’s wife to enter or become a permanent resident of the United States.

Sanction

The harm caused by Respondent’s misconduct was significant, and as an experienced lawyer Respondent either knew or should have known the risks involved for his client and his wife. On the other hand, Respondent has no prior discipline, he was cooperative with the Commission, and his misconduct was not due to selfish motives but rather a desire to expedite the immigration process for his client’s wife. The balance of considerations persuades us that a public reprimand is an appropriate sanction.

(Mike Frisch)

March 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Driving Mr. Paralegal

A Tribunal Hearing Division of the Law Society of Upper Canada declined to suspend a paralegal charged with a Uber crime

The responding party is a Paralegal who was licensed in 2015. He was employed by his older son, a lawyer, who acted as his counsel on the motion. The Paralegal was primarily engaged in process serving, and on occasion he spoke to adjournments in traffic court. He had not provided legal services for some time prior to the events set out below.

The motion arose out of an allegation that while acting as an Uber driver on September 23, the Paralegal took the hand of his female passenger (the passenger) and initiated sexual contact with her.

The passenger made a complaint to Uber on Friday, September 23. Uber e-mailed the Paralegal the same day that “We were notified of a situation that may have occurred on a recent trip” and his Uber account was put on hold pending investigation. The following Tuesday, Uber contacted the Paralegal and interviewed him by telephone. Two days later, Uber reactivated the Paralegal’s account, but reminded him:

...Uber maintains a zero-tolerance policy regarding all forms of harassment, and under no circumstances should physical contact occur on the trip between the rider and the driver. Future feedback of this nature will force us to revoke your access to the application.

On October 9, the Paralegal was charged with one count of sexual assault. The only evidence before our panel of the specific allegation against him appears in the transcript of the bail hearing on October 11, which we reviewed. As of the release of these reasons, that transcript remains subject to a publication ban ordered by the Ontario Court of Justice pursuant to s. 517(1) of the Criminal Code. The order expires when the Paralegal is discharged or his trial is completed.

I trust that this will serve as a learning experience and won’t be an issue in the future…

Mr. Siziba responded [reproduced in unedited form]:

“Thank you for your investigations into reported incident. I wish to reassert that I take this issue very seriously as a learning point and means to strengthen my future engagements with customers. As I mentioned that, it has always been my motto to adhere to strong code of moral conduct and professionalism in all my business within and outside Uber, I shall endeavor to keep up with the highest service I have maintained throughout my career.

Thank you,for your letter and the strong words therein expressed.

We were informed that the Paralegal resumed driving for Uber, but resolved not to pick up intoxicated passengers. His Uber driving ended a week later. The passenger made a complaint to the police and, upon being notified, the Paralegal surrendered on October 8.

Disposition

In the present case, the conduct has not been proven at this point. While the alleged conduct is undoubtedly serious, it is not of the same magnitude as the proven conduct in Schulz. Moreover, the Paralegal is bound by undertakings and bail conditions that significantly reduce risk to the public or to the administration of justice. Together, these restrictions led us to conclude that the suspension sought by the Law Society would not further reduce the risks, even if we had believed those risks were significant.  

(Mike Frisch)

March 29, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, March 28, 2017

The English Teacher

The Oklahoma Supreme Court has  disbarred an attorney

Caroline Drummond was employed as counsel for Michael Ross Kettles in connection with Tulsa County District Court Case No. CF-2013-4788. Kettles was incarcerated in the David L. Moss Criminal Justice Center. The pair had an existing relationship, which originated in 1997, when Drummond was Kettles' English teacher at Skiatook High School. In early 2015, the two reconnected on social media and their relationship became more personal.

According to Drummond, Kettles began requesting access to a cell phone. After multiple requests from Kettles, Drummond finally relented. After obtaining a phone from her carrier, Drummond scheduled a meeting with Kettles at the Tulsa County jail facility. As an attorney, she was permitted to have direct contact visits with clients. During their conference Drummond, covertly supplied Kettles with the cell phone and charger. The phone was placed in Drummond's legal file and transferred to Kettles by handing him the folder. Drummond also provided Kettles with cigarettes. The illicit items were subsequently discovered by detention officer Jessica Harris on May 15, 2015. During her confiscation of the contraband, Kettles assaulted Officer Harris to prevent her from confiscating the items.

Tulsa County Sheriff employee Corporal Bradley Philpott initiated an investigation to determine the source of the smuggled objects located in Kettles' cell. Corporal Philpott subpoenaed records from AT&T and had a forensic expert examine the contents of the phone. He also requested an interview with Drummond. After delaying for several weeks, Drummond finally met with Corporal Philpott on June 8, 2015. She confessed to providing Kettles with all of the contraband.

On July 30, 2015, a criminal matter was filed against Drummond in State of Oklahoma v. L. Caroline Drummond, Tulsa County District Court Case No. CF-2015-3921. The district attorney charged her with one felony count of bringing contraband into a penal institution in violation of 57 O.S.Supp. 2012 § 21. On February 23, 2016, Drummond pled guilty to the felony. An order deferring sentencing for two years was filed the following day. Review of the matter is scheduled for February 12, 2018.

The attorney continued to practice law in violation of the interim suspension imposed as a result of the conviction and

while the Rule 7 case was pending in this Court, the OBA filed a second proceeding against Drummond. The new case was brought pursuant to Rule 6 and asserted multiple violations of the Oklahoma Rules of Professional Conduct, including, but not limited to: failing to act with reasonable diligence and promptness; failing to properly communicate with her client; commingling client funds with her operating account; misappropriating client funds for her own personal use; failing to maintain a client trust account; acting with dishonesty, deceit and misrepresentation; failing to sufficiently cooperate and respond to the OBA grievances; and engaging in the unauthorized practice of law. The allegations of misconduct in the Rule 6 Complaint occurred prior to Drummond's guilty plea and deferred sentence.

The court

Drummond's handling of client funds in this case was deplorable...

We also conclude the record contains clear and convincing evidence Drummond engaged in the unauthorized practice of law following her March 2016 interim suspension. Testimony from TPD Officer Brad Blackwell established that on May 5, 2016, Drummond appeared at the scene of a drug arrest. She presented an OBA card to Officer Blackwell and his partner and informed the pair that she represented one of the detained suspects. She also inquired about the officers' probable cause for an arrest. When cross examined about the incident, Drummond's answers were evasive and unbelievable.  We find the testimony of Officer Blackwell more trustworthy than Drummond's self-serving denial. Although she admitted displaying her OBA card, she testified that it was not her intent to hold herself out as an attorney. This explanation is entirely implausible. The evidence was clear and convincing that Drummond's actions violated ORPC Rule 5.5(b)...

The record before this Court is more than sufficient to establish violations of Oklahoma Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings. We conclude the appropriate discipline for Respondent Drummond is disbarment.

(Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Undergraduate

The Oklahoma Supreme Court reversed the decision of its Board of Bar Examiners and allowed a California attorney who does not have an undergraduate degree to sit for the Oklahoma bar exam

The story

Mr. Harlin graduated from homeschool high school in Muskogee in July of 2003. After working for approximately a year, he applied for admission to the Juris Doctor program at Oak Brook College of Law and Public Policy in California. Oak Brook is a four-year program recognized by the State Bar of California, but is not accredited by the American Bar Association. In California, students who attend non-accredited ABA institutions are required, after their first year of study, to sit for and pass a bar exam called the First Year Law Students' Exam. The exam is a seven-hour test that consists of four essay questions and 100 multiple choice questions styled after the Multi-State Bar Examination. Mr. Harlin took California's First Year Law Students' Exam in October of 2006 and passed on his first attempt.

In December of 2009, he graduated cum laude from Oak Brook with a Juris Doctor degree. In February of 2010, Mr. Harlin sat for the California bar exam and passed on his first attempt. In June of 2010, he was sworn into the State Bar of California where he remains in good standing. Upon admission to the State Bar of California, Mr. Harlin began doing contract work with two different firms in the San Francisco area while living in Muskogee. His practice included assisting with several jury trials, arbitrations, mediations, appeals, and depositions primarily in the areas of personal injury and employment law. Mr. Harlin is also admitted to practice before the Ninth Circuit Court of Appeals, the U.S. District Courts for the Northern and Central Districts of California, and the U.S. District Courts for the Western and Eastern Districts of Oklahoma.

After practicing for a year in California, Mr. Harlin contacted the Oklahoma Board of Bar Examiners (Board) and inquired about admission to practice law in Oklahoma. Mr. Harlin spoke with the Administrative Director of the Board, who informed him that under the RGAP he could not be admitted to practice in Oklahoma unless he obtained a law degree from an ABA accredited law school.  During this conversation, there was no discussion regarding Mr. Harlin's lack of an undergraduate degree and whether such would be an impediment to seeking admission to the practice of law in Oklahoma. Pursuant to his discussion with the Administrative Director, and his understanding of the RGAP, Mr. Harlin applied to and was accepted to Oklahoma City University School of Law and began attending classes in the fall of 2012.

Oklahoma City University School of Law was aware that Mr. Harlin did not have an undergraduate degree. However, Oklahoma City University School of Law admitted Mr. Harlin pursuant to Standard 502(b) of the ABA Standards for Approval of Law Schools, which allows a law school to admit an applicant who does not have a "bachelor's degree, or successful completion of three-fourths of the work acceptable for a bachelor's degree" in "an extraordinary case."

During his time at Oklahoma City University School of Law, Mr. Harlin sought to perform licensed legal intern work under the supervision of an Oklahoma attorney. Thus, on October 15, 2013, he registered with the Board as a law student to become a Licensed Legal Intern.  On November 19, 2013, the Administrative Director contacted Mr. Harlin by e-mail and advised him that "[o]ne of the requirements to register as a law student and for taking a bar exam is that an applicant has a certificate of graduation with a Bachelor's degree from a college whose credit hours are transferable to an Oklahoma law school." On November 20, 2013, Mr. Harlin replied to the Administrative Director and confirmed he did not have an undergraduate degree and that his degree was from the Oak Brook College of Law and Public Policy. The Administrative Director replied to Mr. Harlin that same day and notified him that she had not yet processed his application but that he could submit a statement to the Board explaining how he met the admission requirements of Rule 4.

 On March 5, 2014, Mr. Harlin submitted a statement to the Administrative Director via e-mail wherein he set forth why he believed he satisfied the requirements of Rule 4 of the RGAP. On April 9, 2014, Mr. Harlin received a letter from the Board, notifying him that the "Board has determined that you do not meet the necessary filing requirements for a Law Student Registration application." The letter also advised Mr. Harlin that if he wished to apply and take the bar exam, he could "submit an Exam Application by Attorney prior to February 1, 2015."

On December 2, 2014, Mr. Harlin submitted an Exam Application by Attorney along with the $1,000.00 application fee. Unlike Mr. Harlin's law student registration application, the Board processed the Exam Application by Attorney and accepted the fee. On March 31, 2015, Mr. Harlin received a letter from Patrick Kernan, general counsel for the Board, notifying him of the Board's denial of his Exam Application by Attorney and his right to appeal such decision under Rule 11 of the RGAP. On April 15, 2015, Mr. Harlin timely requested a hearing under Rule 11 of the RGAP.

The Rule 11 hearing was held before the Board on November 4, 2015. At the hearing, Mr. Harlin argued that the Board had erred in denying his Exam Application by Attorney because under Rule 4, § 1 he was not required to satisfy the law student registration requirements of Rule 4, § 2, specifically the requirement that he obtain an undergraduate degree. On November 19, 2015, Mr. Harlin received a letter from the Board notifying him that the Board had again denied his application. The letter advised him that the Board had found that even as an attorney applying under § 1 of Rule 4, Mr. Harlin had to comply with all of the requirements of law student registration found in § 2, including obtaining an undergraduate degree.

Mr. Harlin timely appealed the decision of the Board to this Court on December 18, 2015. Briefing was completed on April 25, 2016, and the cause was assigned to this office on April 26, 2016. We note that during the pendency of the proceedings before the Board, Mr. Harlin graduated summa cum laude from Oklahoma City University School of Law in May of 2015 where he served on the Oklahoma City University Law Review and was voted by the faculty as the Most Outstanding Graduate of the Class of 2015.

The court

We conclude that Mr. Harlin, as an attorney licensed to practice law in a non-reciprocal jurisdiction, has met the requirements of Rule 4 for admission to the practice of law in Oklahoma by examination and no outstanding requirements remain. The decision of the Board is reversed, and Mr. Harlin shall be allowed to take the Oklahoma bar exam.

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Parking Tickets Guy

A motion for interim suspension was granted by the Tribunal Hearing Division of the Law Society of Upper Canada in a matter involving a paralegal license

Mr. Low received his P1 licence to provide legal services on November 20, 2013. He is the owner of a website called parkingticketguys.com.  Between 2011 and October 19, 2016, he used the website to advise people that he could defend their City of Toronto parking tickets.

The website was connected to Parking Ticket Guys (“PTG”) a federally incorporated company solely owned by Mr. Low, who is its sole director.

 Between inception and October 19, 2016, Mr. Low used three business models with different fee structures but some common features:

•                     The person with the ticket would submit information regarding the ticket on the website.

•                     No one met with most clients in person at the time of retainer.

•                     The client was told to ignore any Notice of Trial as someone would attend to 'fight' the ticket.

•                     The client paid money in advance of any defence of the ticket or other assistance.

•                     If all went well with the intake process, a paralegal would file the ticket and a paralegal would attend at the court on the day of trial.

•                     The client would not attend with the paralegal on the day of trial and, absent a fatal flaw in the ticket, or the failure of the officer to appear, Mr. Low or the attending paralegal would 'offer a plea'.

•                     None of the advances paid was ever held in a trust account.

•                     No accounts were sent to any of the clients once the matter was complete.

The differences in the three business models related to the fees charged. From 2011 until about March 2016, Mr. Low provided a guarantee that he would save at least 50% on each City of Toronto parking ticket submitted to him. The client paid 50% of the value of the ticket as soon as the ticket information was submitted to the website. If Mr. Low lost the case, he promised to pay the fine.

From about March 2016 to about June 2016, Mr. Low charged a flat fee of $10 per ticket and again, if he was unable to win the case, he promised to pay the fine.

From June 2016 until the interim interlocutory suspension on October 19, 2016, Mr. Low charged a flat fee of $10 per ticket for filing the required notice and defending the ticket. If Mr. Low was unable to win the case, the client was required to pay the fine rather than Mr. Low.

In late 2013, the Law Society began receiving complaints regarding Mr. Low. The complaints concern failures to communicate or improper communication, failures to provide any services, and failures to honour the promises made.

Some of the complainants say they have been obliged to pay higher fines for their parking tickets when no one appeared at the trial. Some of the complainants say they were unable to renew their motor vehicle licence plate stickers, due to outstanding parking tickets they thought had been dealt with long before. Some of the complainants have been told by Mr. Low that they were committing a criminal offence by indicating they would complain to the Law Society about him.

Disposition

The panel considered whether making an order was required, or whether an order restricting the manner in which Mr. Low may provide legal services might suffice.

One element of this matter concerns the proper handling of client monies. Mr. Low adamantly maintains that he is not required to maintain a trust account, despite being cautioned and provided with the text of By-Law 9, s. 7 in a letter from the Law Society dated November 30, 2015. Mr. Low did not change his behaviour in response to the caution.

Mr. Low admits that some clients have not been paid or refunded monies which, under his first two business models, he had obligated himself to pay. If he had properly deposited client monies into a trust account, there would at least be some money available to refund to those clients.

This raises questions about Mr. Low's integrity which, again, are not for this panel to decide. In this panel's view, however, public confidence in the ability of the Law Society to regulate its licensees would be shaken if any order other than an interlocutory suspension were made. Further, the panel considers that potential harm to members of the public is not sufficiently mitigated by anything less than an interlocutory suspension. It is significant that the risk of harm to members of the public and to the public interest in the administration of justice is ongoing. We do not have a basis to conclude that the ongoing harm will end absent an interlocutory suspension.

(Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Another Smoking Gun In D.C. Bar Disciplinary Dysfunction

A District of Columbia Ad Hoc Hearing Committee recently issued a report that would be unremarkable save for two facts.

The first fact

An evidentiary hearing was held on May 9 and 10, 2012, and August 10, 2012.

Yes. the hearing was held five years ago. Reports are due within 120 days of the close of the record.

Second and equally lamentable is the fact that Disciplinary Counsel had brought a second matter against the same respondent.

That matter was assigned to a separate hearing committee which filed its report last month concluding

the Committee concludes that Disciplinary Counsel has established a violation of Virginia Rules 1.1 and 1.3(a) in that Respondent did not adequately prepare before filing the Complaint, prejudiced his client’s case by filing on the statutory deadlines, and did not pursue discovery with sufficient diligence once he filed. We also find that he violated Rules 3.3(a) and 8.4(c) in asserting in the Fourth Circuit Court of Appeals that Dr. Davis had an office at Central State when the record in this case showed that the doctor did not. We recommend that he be suspended for a period of forty-five days.

Here the hearing committee found misconduct and recommends a public censure

Respondent, Gregory L. Lattimer, Esquire, is charged with violating Rule 1.4(a) of the District of Columbia Rules of Professional Conduct (the “Rules”), in each of three separate client matters. The Hearing Committee finds clear and convincing evidence that Respondent violated Rule 1.4(a) in the course of his representation of two clients, and recommends that Respondent receive a public censure for his misconduct. The Hearing Committee finds that Disciplinary Counsel did not establish a violation of Rule 1.4(a) in the third client matter.

But understand this.

Because the two matters were not joined, this committee was blissfully unaware of the other serious matter.

In 2006, Respondent was issued an informal admonition for conduct that took place in 2003 involving his failure to properly distribute the proceeds of a settlement, in violation of Rules 1.1(a) (competent representation), 1.1(b) (skill and care), 1.5(e) (failure to advise client in writing of division of fees and responsibilities of co-counsel), and 1.15(a) and (b) (failure to safekeep and properly disburse client funds). Respondent has no other disciplinary infractions.

Both matters are now before the Board on Professional Responsibility, which is obligated to treat the matters in tandem.

The two reports are In re Gregory Lattimer and can be accessed here. (Mike Frisch)

March 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, March 27, 2017

The Full Ginsburg

The New York Commission on Judicial Conduct has censured a Supreme Court Justice who gave three interviews in one day about a mistried murder case.

Crimesider reported on the eventual dismissal of the charges brought against a former Cornell student accused of murdering his father.

Tan was charged in February after sheriff's deputies called to the family's home in an upscale neighborhood in Pittsford, a Rochester suburb, found his father dead from multiple shotgun wounds. The elder Tan owned an imaging technology company in nearby Canandaigua.

Prosecutors said Charles Tan killed his father because he was abusive to his wife. The younger man was enrolled at Cornell University in Ithaca, New York, at the time of the slaying.

The judge's decision to dismiss the charges incensed Gargan and District Attorney Sandra Doorley. Gargan said Piampiano failed to look at the evidence presented during the trial. Doorley said her office is researching whether the decision can be appealed, she said.

During the trial, prosecutors said Charles Tan called a high school friend in early February and had him purchase a shotgun at a Wal-Mart in Cortland, near Ithaca. Authorities said Tan's mother, Qing "Jean" Tan called 911 on Feb. 9 to report that her son had shot her husband.

When deputies arrived, they discovered Jim Tan had been shot as he sat behind a desk in the second-floor office of the family home he also shared with his wife and their younger son. Charles Tan was arraigned on second-degree murder charges the next day.

The order tells the story of the judge's star turn.

...on or about October 8, 2015, at a time when he was a candidate for election to the Supreme Court, respondent gave three separate media interviews during which he made prohibited public comments about People v Charles J Tan, a pending murder case over which he was presiding in Monroe County Court.

...after [a] mistrial was declared, respondent was contacted by personnel from three media outlets: WHEC-TV, Channel 10, the NBC-affiliated television station in Rochester; WHAM-TV, Channel 13, the ABC-affiliated television station in Rochester; and the Democrat & Chronicle, a daily newspaper in Rochester. Respondent agreed to engage in one-on-one interviews about People v Tan in his chambers with reporters from each of the three media outlets.

On or about October 8, 2015, at approximately 4:00 PM, respondent met in his chambers with a reporter from WHEC-TV, Channel 10. The resulting interview was recorded and portions of it were broadcast on October 8, 2015, and subsequently available on the television station's website at https://www.whec.com. 

On or about October 8, 2015, at approximately 4:30 PM, respondent met in his chambers with a reporter from WHAM-TV, Channel 13. The resulting interview was recorded and portions of it were broadcast on October 8, 2015, and subsequently available on the television station's website at https://13wham.com/. 

On or about October 8, 2015, respondent met in his chambers with a reporter from the Democrat & Chronicle. The resulting interview was recorded and portions of it were posted on October 8, 2015, on the newspaper's website at https://www.democratandchronicle.com/. The audio portion of the interview was posted at the website https://soundcloud.com/democrat-and-chronicle/judge-james-piampianointerview-oct-8-2015.

And in court

On or about November 5, 2015, while presiding over a post-trial proceeding in People v Charles J Tan, during which respondent granted the defense motion for a trial order of dismissal, respondent, as set forth below, failed to be patient, dignified and courteous when he denied Monroe County Assistant District Attorney William T. Gargan's attempt to be heard and threatened to have Mr. Gargan arrested if he spoke.

MR. GARGAN: Judge, may I briefly speak?

RESPONDENT: No, you may not. If you speak I'm going to put you in handcuffs and put you in jail.

The Commission

Although respondent's comments indicate that he was aware of the ethical prohibition (at one point he stated, "I'm not at liberty to discuss the prosecutor's remarks or this case in particular") and he was also aware that there would be further proceedings in the case, including a potential re-trial, he granted three one-on-one media interviews in which he proceeded to discuss the case at length. While he often responded to the reporters' questions about the Tan case with general statements about procedures and the legal system, he should have recognized that any statements he made in that context would be understood as pertaining to Tan and therefore were problematic. His statements, however, went well beyond general explanations of the law. He discussed legal issues in the case (including his denial of a request for an accomplice charge), and he provided a description of his interactions with the jury and his sense of the jury's deliberations. Especially troubling is his description of the defendant as a "sympathetic" figure. Even if viewed in the context of the reporter's question about the "possible impact" of the defendant's "supporters," his comment could convey an appearance that respondent viewed the defendant sympathetically, raising doubts about his impartiality and thus undermining public confidence in the impartial administration of justice. This is especially so since the case was still before him and since, a month later, he granted the defense motion for a trial order of dismissal. The fact that respondent made these statements in media interviews at a time when he was a candidate for election to Supreme Court raises a question as to whether his public comments were motivated by political concerns...

It was also improper for respondent, in a post-trial proceeding a month later, to threaten to have the prosecutor placed in handcuffs and put in jail when the attorney asked to speak as respondent was announcing his decision on the defense motion to dismiss. (The record indicates that respondent had previously afforded the prosecutor an opportunity to be heard on the motion.) By asking to speak, the prosecutor was simply doing his job, and even if respondent believed that the attorney was interrupting or speaking out of turn, his response was a substantial overreaction to the attorney's conduct...

In accepting the jointly recommended sanction, we note that respondent has admitted that his conduct was inconsistent with the ethical standards and has pledged to conduct himself in accordance with the Rules for the remainder of his tenure as a judge.

The commission's determination is linked here.

WHAM Rochester had a recent story on the appeal of the dismissal in the Tan case. (Mike Frisch)

March 27, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Botched Bankruptcy Leads To More Violations And Suspension

A year and a day suspension (requiring proof of present fitness for reinstatement) has been imposed by a Colorado Hearing Board.

Braham mishandled his clients’ bankruptcy case and electronically filed several documents that his clients had neither reviewed nor authorized to be filed. After his clients terminated his representation, Braham sent two emails to the bankruptcy trustee and others in which he disclosed confidential information that he had learned during the course of representation.

The clients

In November 2013, the Kellys considered filing for Chapter 13 bankruptcy to seek relief from a large tax debt that they were unable to pay.  That month, they sought general information about filing for bankruptcy from a legal website, and received a response from Respondent. Respondent emailed Ms. Kelly a packet of information along with a list of documents to collect, including pay stubs for the past six months.

They retained the attorney after a face-to-face meeting. The matter was mishandled and eventually dismissed. 

The attorney's effort to shift the blame to the client did not persuade

We reject Respondent’s contentions that Ms. Kelly was responsible for the delays in her case or its ultimate dismissal. The exhibits and testimony all point to Respondent’s lack of diligence as the cause of delay and dismissal. Ms. Kelly made every effort to expedite the filing of her case, including completing a detailed bankruptcy worksheet; providing Respondent the family’s tax returns, monthly bill statements, credit reports, and some of her paystubs by April 24, 2014; and giving him their remaining income-related information by August 27. Whenever Respondent requested additional information from Ms. Kelly, she promptly complied. And in May 2014, Respondent failed to send the Kellys a draft petition to review or to file their case by early May.

Respondent did not then diligently work on the petition and plan between June and August 2014. In fact, he did not have the case ready to file by August 8 and again asked Ms. Kelly to postpone their filing because he needed additional time to finalize information. Ms. Kelly believed Respondent would file the case on August 15. Over the next few days, however, Respondent failed to contact Ms. Kelly, and she was forced to seek an update from him on August 15. Rightfully concerned about the delay in the case and the garnishment of her wages, Ms. Kelly insisted that Respondent file the petition and plan that day. He did, but he filed a nearly blank petition and plan. As a result of these deficient filings, the court issued a missing document notice. Respondent failed to give the Kellys a copy of this notice and neglected to file these documents with the court, even though he knew such inaction would lead to the petition’s dismissal.

Respondent did not send the Kellys a draft plan to review until September 6, 2014, and this document contained substantial errors. Ms. Kelly corrected these errors, believing Respondent would make the edits and file an amended plan with the court. Instead, Respondent filed a second amended plan, which contained almost none of the Kellys’ revisions. He could not satisfactorily explain why this was so. The Kellys’ bankruptcy case was dismissed and he did not refile the case.

And

we determine that when Respondent submitted the bankruptcy filings with the Kellys’ electronic signatures on August 15, September 6, and October 1, 2014, he knowingly engaged in dishonest conduct and made misrepresentations to the court that the Kellys had reviewed and signed these documents under penalty of perjury, when they had not done so.

Messing up the bankruptcy case is bad. Trying to blame the client worse.

But this

On September 20, 2015, almost one year after the Kellys terminated Respondent, he sent an email to Paul Moss, a trial attorney with the office of the bankruptcy trustee who was handling the Kellys’ Chapter 7 bankruptcy, as well as to Parnell, the Kellys, Bershenyi, and the People’s attorneys Marie Nakagawa and [Regulation Counsel] Vos.

He took the offensive and violated confidentiality

I have been am currently handling a frivolous bar complaint from Nance Kelly from a totally biased OARC. My research from mid October 2014 right after receiving Nancy Kelly’s demand letter, would suggest a possible Whistleblower retaliation case here. I have tried to be fair to OARC, but they want to go the long way around...

It came to my attention this evening that Nance Kelly did not drop out of law school in San Fran to tend to her sick children, she is actually an inactive California attorney. Wow. Wasn’t there something about Texas in the petition? Weirdo...

I was given a sweetheart diversion that I turned down because I think Nance Kelly is a liar, well besides lying about being an attorney, and I feel her interests are in conflict to her husband. It also seemed from that meeting with Marie and Karen that they were not being truthful and acting with full disclosure. Why would they help Nnace hide the bar complaint and the filing from me. How could this not be consider exculpatory to my defense?

Two emails to Regulation Counsel Vos were treated as an aggravating factor.

Respondent testified that he sent th[e] “Valentine’s Day” email to Vos because he was infuriated with the People’s investigation. By then, he said, he had learned that Vos’s wife, Matt Samuelson (Chief Deputy Regulation Counsel), and the husband of Lisa Frankel (the People’s intake attorney) all had graduated from St. John’s College, and Respondent was alarmed that “everyone went to St. John’s.” He also found out that Vos’s wife had worked for a creditor’s firm and thus believed he was denied an “impartial” investigation of his case. 

The second email

 “Your next move might be to call me anti-Semitic for mentioning Silverman B, a low-rent dog-dirty creditors law firm. Couldn’t [your wife] have got a job with a real law firm like M & J, at least?”

 “It’s 6am, I’m in great spirits, I am SOBER, and I wanted to say to you that if this is a personal attack, well then you’re wife has a gross pieface and Judge Sabino Romano’s niece, my wife, is HOT. Roof roof! :)”

 “Maybe Karen can investigate it, well by investigate, I mean do nothing and collect a statutory salary. I worked at the law library in your building, so KNOW I’ve got the research on you, amigo.”

 “Paddy cake, paddy cake, rich kid. You won’t like me when we take off the white gloves off...................and I’ve sat on my hands for too long.”

As to sanction

after learning the Kellys had refiled their bankruptcy petition, Respondent reacted to the news by sending emails to Moss and others in which he revealed client confidences, questioned the Kellys’ motives in filing a complaint against him, and again accused them of committing bankruptcy fraud.  The tone and tenor of those emails evinces a complete unwillingness to accept responsibility for his conduct. As example, Respondent made statements like, “Wasn’t there something about Texas in the petition? Wierdo” and “I think Nance Kelly is a liar, well besides lying about being an attorney, and I feel her interests are in conflict to her husband.” These emails, much like his other communications, were riddled with conspiracy theories and attempts to shift the blame from his conduct, including that attorney Frankel was married to a creditor’s attorney yet investigated a complaint against Respondent’s former employer. Last, we are very concerned about the aggressive emails Respondent sent to Vos in February 2016. Respondent’s threats of violence are not warranted under any circumstance and demonstrate a complete lack of remorse. Accordingly, we weigh this aggravating factor heavily.

The attorney did not claim mitigation based on mental health issues

We do find, however, a causal link between Respondent’s personal and emotional problems and the two emails he sent to Moss in which he breached client confidences. In his report, Dr. Stevens opined that Respondent’s pre-existing agitation, coupled with his doubled dose of Lexapro and the stress and humiliation associated with the People’s complaint, caused him to “‘go off the rails’ and to organize an understanding of the investigation as being a profound existential threat. . . .” Accordingly, we apply significant weight to this factor, though only to mitigate Respondent’s Colo. RPC 1.6 violation. As a whole, then, this mitigator warrants average weight.

Thus

Respondent knowingly made misrepresentations to the court and violated the most basic client-centered duties: to be diligent and truthful with his clients about the representation. He also disregarded his duty of confidentiality, a fundamental principle in the lawyer-client relationship. Respondent’s failure to observe these duties justifies a one year-and-one-day suspension, with the requirement that he undergo an IME before petitioning for reinstatement.

(Mike Frisch)

March 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Menacing

A criminal conviction led to an attorney's disbarment in Colorado.

On October 25, 2013, two Colorado Springs police officers came to Respondent’s residence to assist another person in removing her property from the residence. That day, Respondent called 9-1-1 on more than one occasion and threatened to shoot police officers if they did not leave the area. He also told one of the police officers who came to his home that he was going to get a gun, and that it would not be pleasant for the officer if the officer was still there when Respondent returned.

Based on this conduct, Respondent was charged with one count of menacing, a class three misdemeanor under C.R.S. section 18-3-206, in El Paso County District Court. On February 13, 2014, Respondent pleaded guilty to the charge.  As set forth in his plea agreement, the elements of menacing are: that the defendant, in El Paso County, at or about the date and place charged, by threat or physical action, knowingly placed or attempted to place another person in fear of imminent serious bodily injury.

He had failed to notify disciplinary authorities of the conviction as required.

Pluses and minuses

Three aggravating factors are present here. First, Respondent was suspended from the practice of law for two years on June 24, 2013, under case number 13PDJ050.10 The conditional admission of misconduct in that case provided that Respondent pleaded guilty in 2010 to violating a Maryland protection order; that he pleaded guilty in 2011, also in Maryland, to second-degree assault; that he did not notify the People of either of those convictions; and that he pleaded guilty in 2013 to felony menacing, this time in El Paso County. The other two aggravating factors here are that Respondent has substantial experience in the practice of law and that his underlying conduct was illegal.

 The Court is aware of but one mitigator: Respondent faced other penalties and sanctions based on his menacing conviction.

The minuses won. (Mike Frisch)

March 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, March 26, 2017

Ontario Admits Disbarred Florida Attorney

An application for admission to practice was allowed (over a dissent) by a Tribunal Hearing Division of the Law Society of Upper Canada

The issue before us is whether the applicant, Ronald Ori Davidovic, is of good character and should receive a licence to practise as a lawyer in Ontario. He was called to the Florida Bar in 1996 and practised there for eight years. He pleaded guilty in November 2004 to one count of receiving material containing the visual depiction of minors engaging in sexually explicit conduct. He spent over two years in federal prison and was registered as a sex offender in Florida.

 In December 2004, the applicant petitioned the Florida Supreme Court for a disciplinary resignation. Effective February 1, 2005, he was granted permission to resign from the Florida Bar, with leave to reapply after five years.

Mr. Davidovic did not reapply to the Florida Bar. In 2015, he applied for licensing as a Lawyer to the Law Society of Upper Canada, and he intends to move to Toronto, where several of his close relatives live.

His application proceeded to a hearing, where the parties presented an Agreed Statement of Facts, a corresponding Book of Documents, the applicant's Book of Character References, and a Joint Book of Authorities, all on consent.

The only evidence that was not presented jointly was the testimony of the applicant. When asked for the Law Society's position at the outset of the hearing, Law Society counsel, Amanda Worley, said she would hear the applicant's evidence and then would advise the panel of the Law Society's final position. In closing submissions, Ms. Worley did not oppose this application and she gave the Law Society's basis for reaching this conclusion.

We have reviewed the dissenting reasons of Mr. Cooper.

For reasons that follow, we allow the application.

The crimes

  In January 2004, the police executed a search warrant at his home. At the time of the arrest the applicant was married with a three year old child, and his wife was pregnant. In the ensuing period, the applicant confessed to his wife, to the police authorities, and ultimately to the Florida Court, that he had been viewing adult, teen and child pornography for the previous several years. There is no evidence that the applicant participated in any distribution of pornography, and there is no evidence of his involvement in any improper sexual contact with any children.

The majority found he satisfied the criteria for admission

The applicant's conduct in the years preceding 2004 was reprehensible, but it is not an automatic or permanent bar to his admission, given the evidence and positions of the parties, and in light of the applicant’s determination to be an ethical and productive lawyer.

There are many Tribunal decisions in which the facts of the individual case weighed in favour of licensing or reinstatement, despite the earlier commission of serious criminal offences. In the recent decision in Yeager, it was narcotics trafficking and theft under. In Baker, the applicant committed criminal harassment relating to a family dispute. The applicant has thoroughly understood what he has done. He has worked very hard since then to reach this point in terms of rehabilitation.

We therefore find that the applicant is of good character and grant his application for licensing as a Lawyer in Ontario.

Paul Cooper dissented

In assessing this application to determine whether Mr. Davidovic is presently of good character, we must review and consider the totality of the evidence. The record on this application is lacking, and at times inconsistent. Mr. Davidovic is a poor historian and his testimony lacks reliability. The applicant was often inconsistent with the Agreed Statement of Facts..

Mr. Davidovic is not required to warrant perfection but he must show, on the balance of probabilities, he is presently of good character. The applicant has failed to satisfy this burden. Despite his diagnosis of paraphilia in 2008, Mr. Davidovic has failed to provide us with any information on this unresolved issue that underpins the original illegal behaviour and misconduct. I do not believe the evidence shows on a balance of probabilities that he is rehabilitated nor that he fully comprehends victim empathy or remorse. For the above reasons, I would dismiss this application. 

(Mike Frisch)

March 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, March 25, 2017

Waste Not

The Virginia State Bar Disciplinary Board has summarily suspended a convicted attorney

The story is told on the web page of the United States attorney for the Eastern District of Kentucky

Daniel R. Goodwin, an attorney from McLean, Virginia, has been convicted of defrauding a Laurel County construction company, in connection with a purported project to build a “green recycling center” in Manchester, Ky. The company, Elza Construction, LLC, lost $1.32 million upfront and incurred several million dollars more in excavation and site preparation costs, but nothing was ever built at the site.

 Late Thursday, a federal jury in Frankfort delivered a guilty verdict on four counts of wire fraud and one count of conspiracy to commit wire fraud. The verdict came after a week of trial and a day-and-a-half of deliberation.

 The evidence at trial established that from 2008 until at least 2011, a company called “Waste Not Technologies,” which also went by the name “Global Green Holdings,” made false promises to the city of Manchester and several would-be contractors who wanted to work on building a green recycling center that would turn municipal waste into useful products like railroad ties and insulation. David Bennett, the chief executive officer of Global Green Holdings, promised the project would create 1,400 jobs and bring in millions in revenue.

 Part of this scheme was to require contractors like Elza Construction to send money to an escrow account in lieu of a traditional construction performance bond, with the promise that the money would be used to release financing for the project and that the money would be returned on a set schedule, typically within 3 to 4 months. Daniel Goodwin controlled the escrow account that received money from Elza Construction and others. Instead of following the terms of written agreements, he distributed the money among his co-conspirators and kept some of it for himself. The money was never returned to Elza Construction or any of the other contractors.

 Carlton S. Shier, IV, Acting United States Attorney for the Eastern District of Kentucky, and Amy Hess, Special Agent in Charge, Federal Bureau of Investigation, jointly announced the verdict. The case was investigated by the FBI and Assistant U.S. Attorneys Gregory Rosenberg and Andrew Trimble prosecuted the case on behalf of the federal government.

 Goodwin is scheduled to be sentenced on June 14, 2017. He faces a maximum sentence of 20 years on each count of wire fraud, and a maximum of five years on the count of conspiracy to commit wire fraud. However, any sentence would be imposed only after the Court has considered the U.S. Sentencing Guidelines and the applicable statutes.

He has been ordered to show cause as to final discipline. (Mike Frisch)

March 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Silver Linings Playbook

The Indiana Supreme Court has publicly reprimanded a prosecutor for a Rule 8.2 violation

In 2000, Michael Dean Overstreet was convicted of murder and other charges in Johnson County and sentenced to death. Respondent was one of the deputy prosecutors involved with the case at the trial and sentencing phases. In 2013, this Court authorized the filing of a successive petition for post-conviction relief. The matter initially was before Judge Cynthia Emkes, who presided over Overstreet’s trial and sentencing. However, Judge Emkes filed a notice of recusal, and this Court appointed St. Joseph Superior Court Judge Jane Woodward Miller as special judge to hear the case. Overstreet’s successive PCR petition was litigated in St. Joseph County in 2014, and in November 2014 Judge Miller granted the petition. Respondent, now the elected Johnson County Prosecutor, did not participate in the successive PCR litigation.

After Judge Miller granted the petition, Respondent provided a statement to the Indianapolis Star for public dissemination. In that statement, Respondent indicated he was “suspicious” of the transfer of the case to Judge Miller and then offered as purported support for that suspicion additional commentary that was false, misleading, and inflammatory in nature. In considering the statement itself, and the surrounding circumstances in which it was made, we agree with the hearing officer that the statement attacked Judge Miller’s qualifications or integrity and that Respondent made the statement with reckless disregard as to its truth or falsity.

Indystar reported the ethics charges and the interview that caused the concern

"I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn't even afford to drive up for the hearing," [prosecutor Bradley] Cooper told IndyStar via a text message for a story published Nov. 20, 2014.

"The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal."

The complaint cites another comment Cooper made the same day to The Associated Press:

"Once this case got shipped to a distant judge who is not beholden to the voters and citizens of Johnson County, it didn’t surprise me that she didn't want to create the headache for herself by keeping with this case.... I think the idea that this rapist murderer is basically too sick to be executed is ridiculous."

The comments came after St. Joseph Superior Judge Jane Woodward Miller ruled that Overstreet was not competent to be executed. Overstreet was convicted and sentenced to death in the 1997 murder and rape of Franklin College student Kelly Eckart, 18.

The Indiana Supreme Court transferred the case after Johnson Superior Judge Cynthia Emkes, who presided over Overstreet's trial, removed herself for health reasons.

The commission claims Cooper's comments violated a professional conduct rule barring lawyers from making false statements "concerning the qualifications of a judge."

Reason.com notes that he views his role as"proudly over-crowding our prisons" and had the story of a 2011 incident

In 2011, Cooper—who has been serving as Johnson County prosecutor since 1994—was accused of staking out a local detective's home in search of a woman he was pining over. Detective Ryan Bartlett reportedly found Cooper and another man parked in a van outside his home. According to the incident report Bartlett filed, Cooper was in the passenger's seat holding an open beer bottle when Bartlett approached and initially attempted to hide his face. The driver, who turned out to be a suspended police officer facing criminal charges, told Bartlett that he and the prosecutor were searching for a woman who worked at the Sherriff's [ssic] office and whom they had believed was in Bartlett's house.

According to Johnson County Sheriff Doug Cox, Cooper—who is married—was thought to be having or attempting to have an affair with the (also-married) woman, whom he allegedly sent text messages and emails to from his work accounts and visited at home. Cooper reportedly said he was "messed up in the head over" the woman and "was having a really difficult time handling it." The incident was reported to the Indiana Supreme Court Disciplinary Commission but no action was taken.

 (Mike Frisch)

March 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, March 24, 2017

No Right For Firms To Accept Outside Investments

An opinion issued today by the United States Court of Appeals for the Second Circuit

Plaintiffs‐Appellants Jacoby & Meyers, LLP, a limited liability law partnership,  and Jacoby & Meyers USA II, PLLC, a related professional limited liability company  (together, “plaintiffs” or “the J&M Firms”), challenge the constitutionality of a collection  of New York regulations and laws that together prevent for‐profit law firms from  accepting capital investment from non‐lawyers. The J&M Firms allege that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services. By impeding them from reaching this goal, the J&M Firms contend, the state has unconstitutionally infringed their rights as lawyers to associate with clients and to access the courts—rights that are grounded, they argue, in the First Amendment. The District Court (Kaplan, J.) dismissed the complaint, concluding that the J&M Firms failed to state a claim for violation of any constitutional right and that, even if such rights as they claim were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest. We agree that under prevailing law the J&M Firms do not enjoy a First Amendment right to association or petition as representatives of their clients’ interests; and that, even if they do allege some plausible entitlement, the challenged regulations do not impermissibly infringe upon any such rights. We therefore AFFIRM the District Court’s judgment.  

Through a set of prohibitions of long standing in New York and similar to those widely prevalent in the fifty states and the District of Columbia, the State of New York prohibits non‐attorneys from investing in law firms. See generally N.Y. State Bar Ass’n, Report of the Task Force on Nonlawyer Ownership, reprinted at 76 Alb. L. Rev. 865 (2013) (“NYSBA Report”). The prohibition is generally seen as helping to ensure the independence and ethical conduct of lawyers. See id. at 876‐77. Plaintiffs‐Appellants  Jacoby & Meyers, LLP, a limited liability partnership (the “LLP”), and Jacoby & Meyers USA II, PLLC, a related professional limited liability company (the “PLLC”; together,  “plaintiffs” or the “J&M Firms”) bring a putative class action challenging New York’s rules, regulations, and statutes prohibiting such investments. The infusions of additional capital that the regulations now prevent, they declare, would enable the J&M Firms to improve the quality of the legal services that they offer and at the same time to reduce their fees, expanding their ability to serve needy clients. They assert that, were they able to do so, they would act on that ability in the interests of such potential clients. Because the laws currently restrict their ability to accomplish those goals, they maintain, he state regime unlawfully interferes with their rights as lawyers to associate with clients and to access the courts—rights they see as grounded in the First Amendment.

Circuit Judge Susan Carney affirmed the district court disposition. (Mike Frisch)

March 24, 2017 in Billable Hours, Law & Business, Law Firms | Permalink | Comments (0)