Thursday, August 31, 2017

Bingo!

The Mississippi Supreme Court has ordered a sanctioned attorney to comply with his client notification obligations.

He had resigned from the Bar with prejudice in June 2017.

The Clarion-Ledger reported on his criminal travails

A Bay St. Louis attorney has been sentenced to five years in prison for embezzling more than $370,000 from a bingo charity in the Cleveland.

Morgan Shands was sentenced Monday in Bolivar County Circuit Court on a guilty plea to conspiracy and embezzlement, Assistant District Attorney Leslie Flint said.

Shands is a former executive director of the state Democratic Party, has been a staffer for elected officials at state and national levels and served as campaign manager for Gulfport Mayor Billy Hewes’ unsuccessful bid in 2011 for lieutenant governor.

Circuit Judge Charles Webster sentenced Shands to five years in prison on the conspiracy charge and 10 years on the embezzlement charge. Webster ordered the prison terms to run concurrently and suspended five years, leaving five to serve.

Shands was taken into custody after his sentencing at the Bolivar County Courthouse in Clarksdale.

A Bolivar County grand jury indicted Shands and his sister, Rachel Shands Buser, in March 2014. The indictment alleged they had embezzled more than $613,000 from the American Legion Post 1776 bingo fund in Cleveland while Morgan Shands oversaw the charitable operation’s finances.

Before the indictment, Shands signed an agreement with the Mississippi Secretary of State’s Office to repay $370,117 over a period of 10 years. Officials said he quit making payments after his indictment.

His trial had been re-set several times since December 2014. The case against his sister is pending.

Shands had worked for Attorney General Jim Hood, former Attorney General Mike Moore, State Auditor Stacy Pickering and U.S. Sen. Roger Wicker.

He also had worked on campaigns for Wicker , U.S. Sen. Thad Cochran and state Insurance Commissioner Mike Chaney.

Shands was admitted to the Mississippi Bar Association in 1993 and had a law office on John Baptiste Street in Bay St. Louis. His status as an attorney is listed as “inactive” on the MBA’s list of lawyers.

Lawyers convicted of a felony are typically disbarred.

(Mike Frisch)

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

Wrongful Death Case Filed For Late Spouse Not Null And Void As Unauthorized Practice

A decision summarized on the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has rejected a defendant hospital’s argument that a wrongful death lawsuit filed by a surviving spouse was null and void because the spouse was not represented by a lawyer when the lawsuit was filed.   

In September 2004, Ruth Hartley was admitted to Trinity Hospital in Erin, Houston County, Tennessee, for elective colon surgery.  She developed complications from the surgery and died.  After her death, Mrs. Hartley’s husband, Denver Hartley, filed a wrongful death lawsuit against several defendants, including Trinity Hospital, claiming that their negligent treatment caused Mrs. Hartley’s death.  Mr. Hartley was not represented by a lawyer when he filed the lawsuit.

The defendants filed motions to dismiss Mr. Hartley’s lawsuit.  They argued that, although a person can represent himself in his own lawsuit, no one can file a lawsuit on behalf of another person unless they have a law license.  The defendants claimed that, in filing the wrongful death lawsuit, Mr. Hartley was representing either Mrs. Hartley or their adult children, so he was practicing law without a license. For that reason, they argued, Mr. Hartley’s lawsuit must be dismissed.

Mr. Hartley soon hired an attorney, and he amended his lawsuit to show that he was represented by a lawyer.  By that time, though, the statute of limitations for the wrongful death claim had run.  The defendants argued that the first complaint was null and void because Mr. Hartley was not represented by a lawyer, and the legal time limit had passed by the time Mr. Hartley hired a lawyer and filed an amended complaint, so his lawsuit had to be dismissed.

The trial court held that the fact that Mr. Hartley was not represented by a lawyer when he filed the lawsuit did not make it null and void, so it refused to dismiss the lawsuit.  While the lawsuit was pending, Mr. Hartley died, and his daughter, Linda Beard, was substituted in his place as the plaintiff. The case went to trial, and the jury awarded damages to Ms. Beard. 

The hospital appealed, and the Court of Appeals reversed.  It held that the claim belonged to the decedent, Mrs. Hartley, and that Mr. Hartley could not file a lawsuit on behalf of his deceased wife without a lawyer.  The Court of Appeals held that the first wrongful death complaint was null and void, and Mr. Hartley hired a lawyer after the statute of limitations had run, so it dismissed the case.  The Tennessee Supreme Court granted Ms. Beard permission to appeal.

The Supreme Court reversed the Court of Appeals.  It held that the wrongful death claim did not actually belong to the decedent; under Tennessee law, upon Mrs. Hartley’s death, the claim passed to her surviving spouse, Mr. Hartley.  Because Mr. Hartley had the right to represent himself in his own lawsuit, the Court held, the original complaint, filed without a lawyer, was at least partially proper.  The Supreme Court agreed with the trial court that the lawsuit was timely, so it reversed the Court of Appeals’ dismissal of the lawsuit.     

To read the unanimous opinion in Linda Beard v. James William Branson and Trinity Hospital, L.L.C., authored by Justice Holly Kirby, go to the opinions section of TNCourts.gov.

(Mike Frisch)

August 31, 2017 in Clients, Current Affairs | Permalink | Comments (0)

Indiana Wants Me (Not To Practice Law)

The Indiana Supreme Court has concluded that a suspended attorney practiced law

...the Commission alleges that in February 2017 Respondent filed in Lake Superior Court a “CCS Entry Form” and “Notice of Change of Address” on Client’s behalf, purportedly as Client’s “attorney-in-fact.” The Commission further alleges that Respondent appeared at a hearing on the same date on Client’s behalf, discussed the perceived strength of Client’s case with opposing counsel, and was instructed by the trial judge that she could not continue to represent Client due to her suspension, including filing any motions for continuance. Finally, the Commission alleges that notwithstanding this instruction, in March 2017 Respondent faxed to the court on behalf of Client (using a cover sheet bearing the name “Campanella Law L.L.C.”) a “Motion to Continue Hearing,” a proposed order, and a “CCS Entry Form,” and that same day called the court directly to request a continuance.

This Court issued an order to show cause on June 13, 2017, directing Respondent to show cause in writing, within 15 days of service, why she should not be held in contempt for disobedience to this Court’s order suspending her from practice. It has been over 15  days since Respondent was served, and Respondent has not responded. We therefore find that Respondent has practiced law in violation of her suspension as asserted by the Commission.

The sanctions this Court may impose for contempt include ordering a fine, disgorgement of ill-gotten gains, imprisonment, and extension of an attorney’s suspension or removal from practice.

(Mike Frisch)

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

Photos Finish

A two-year suspension has been imposed on an attorney convicted of official misconduct by the New York Appellate Division for the Second Judicial Department.

The respondent’s conviction of the crime of official misconduct related to his efforts, while serving as Hempstead Town Clerk, to gain incriminating evidence against a female employee who had accused him of sexual harassment. Specifically, upon learning that a male employee possessed compromising photographs of the female employee, the respondent tried to obtain the photographs by threatening to have the male employee transferred from his position in the respondent’s office if he did not provide the photographs. Shortly after making this threat, and without having received the photographs, the respondent retracted his ‘request’ for the photographs and apologized to the male employee.

He was removed from office and the conviction was affirmed on appeal.

Sanction

In determining the appropriate sanction to impose, the respondent asks the Court to impose a six-month suspension nunc pro tunc to the date of the Court’s immediate suspension order (August 12, 2016), taking into consideration, inter alia, the following mitigating factors: his conduct was not malicious, the threats were not physical, and allegedly were not of a financial nature; his cooperation at his criminal trial; the public humiliation he has endured as well as the loss of his entire life’s savings defending the case and sustaining his family; the 300 hours of community service he has completed; his remorse; the 121 character letters he submitted to the sentencing court, which demonstrate that the misconduct was an isolated act; and his unblemished record in 20 years of practice. Notwithstanding the mitigation advanced, the respondent has been convicted of a serious crime committed in his capacity as a public official. While serving as Hempstead Town Clerk, the respondent threatened to have an employee transferred from his position in the respondent’s office if he did not provide the respondent with incriminating photographs, conduct clearly abusive of his position. The respondent’s actions were committed knowingly and with venal purpose in an effort to defend himself against the claim of a female employee who had accused him of sexual harassment.

Under the totality of the circumstances, we conclude that a suspension of two years is warranted, with credit for the time elapsed under the immediate suspension imposed by this Court’s order.

(Mike Frisch)

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

A Rare Answer

Last week we reported on a complaint filed by the Illinois Administrator alleging that an attorney had falsely enrolled an opposing counsel in a Match.com account and various other subscription services such as the Obesity Action Coalition and Pig International.

The respondent attorney has filed an unusual answer which (it appears to me) admits every single fact averment and ethical violation alleged in the complaint.

I would imagine that the full acknowledgment of culpability will serve the respondent attorney well in the sanctions phase of the proceedings. (Mike Frisch)

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

Wednesday, August 30, 2017

Trailblazer Reprimanded

A reprimand has been imposed by the Tribunal Hearing Division of the Upper Canada Law Society on these agreed facts. 

  Ms. An is an experienced criminal defence lawyer. In 2013, she represented an accused at a trial that proceeded over 17 days in October to December 2013. The accused was convicted of 16 counts of fraud.

Before the accused was sentenced, the accused retained new counsel and brought an application for a mistrial on the basis of ineffective representation by Ms. An. Ms. An was not a party to that application. However, her affidavit was in evidence and she was cross-examined.

A mistrial was declared on the basis that the accused “was denied his right to be the final arbiter of whether he would testify, and to know that it was his decision to make.” The trial judge concluded that Ms. An made this decision rather than the accused. As the trial judge put it in his reasons “At the very least, I have no doubt that even if [the accused] left that decision to his trial counsel, he did so without understanding that whether to testify was ultimately his decision to make, regardless of counsel’s advice.”

The Law Society did not assert that Ms. An was bound by the findings made by the trial judge. The trial judge’s reasons were adduced before us as part of the narrative of events. That said, Ms. An accepted that her client did not understand that it was ultimately his decision whether or not to testify.

In the Agreed Statement of Facts, the parties agreed that:

(a)  Ms. An did not discuss the decision to be made and whose decision it was.

(b)  The accused did not understand that the decision was his and he believed, without saying so to Ms. An, that he had no choice but to accept her decision.

(c)  Ms. An thought that her client understood that it was his decision to testify (or not) and simply accepted her advice.

(d)  Ms. An recognizes in retrospect that she made erroneous assumptions to accept what she believed to be an implied consent, and did not take adequate steps to ensure that her client understood the decision to be his and that he had a choice, notwithstanding her legal advice.

Significantly, Ms. An believed that her client understood that it was his decision whether or not to testify. She was wrong. This error arose because Ms. An did not take adequate steps to ensure that her client understood his right.

There are two other aspects to the professional misconduct that have been admitted. Ms. An admits that her client did not understand that the decision whether to have a preliminary inquiry or a jury trial was his decision. Ms. An accepts that she was the decision-maker believing or assuming that her client was simply content to accept her recommendation. Again, Ms. An admits that she did not adequately ensure that her client understood his options and that the decisions were his alone to make. Ms. An further admits that she did not adequately prepare for trial in failing to sufficiently review disclosure and witness statements with her client and in failing to recognize that evidence from her client was required when a motion to exclude his statement was denied.

There was significant mitigation involving family stressors and more

  Ms. An testified that she grew up wanting to help people. Perhaps because she helped her family with legal and other issues, because she learned English more easily, a sense of justice was always important to her. She chose to become a criminal lawyer to help the most disadvantaged people. She wanted to be an advocate for vulnerable people who are subject to the criminal justice system.

Becoming a lawyer was not easy. Ms. An did not have the advantage of family resources to support her. She worked her way through law school. She articled for a criminal law firm and was called to the bar in 1998. She went immediately into sole criminal law practice. Her early work came in significant part from the Korean community. As she developed a reputation, she attracted significant work. She has handled first-degree murders, attempted murders, drug offences including ‘Guns and Gangs’ cases, human smuggling, kidnapping, domestic assault, fraud, weapons charges and gang rape.

As one of a few senior Asian Canadian women and as the first Asian Canadian woman in criminal law practice, Ms. An has been a trailblazer. She has been recognized as such by the Law Society. Her success has required dedication and hard work. She has had to endure and overcome prejudice and racial slurs. Ms. An’s experience as a Korean woman in a changing Canadian society parallels challenges faced by lawyers from minority communities of prior generations. Ms. An’s challenges no doubt reflected a combination of race, gender, and culture. One of the witnesses was a young East Asian Canadian lawyer who spoke of his own challenges and the support and mentoring that he received from Ms. An and its importance to him. Ms. An continues to act as a mentor and educator for a number of Asian Canadian law students.

Ms. An was one of the founding members of the Federation of Asian Canadian Lawyers (FACL) in 2007. She has continued to work closely with FACL as an advisor and speaker. She has been an invited speaker at a number of law schools, both on criminal law and on the challenges and opportunities facing lawyers like her. Ms. An’s character letters include a letter from The Honourable Justice Maryka Omatsu, the first woman of East Asian heritage to be appointed to a Canadian court. Her letter confirms Ms. An’s contributions to FACL and that Ms. An represents her clients with determination, zeal and success. Another letter confirming Ms. An’s work with and contributions to FACL was provided by one of the early FACL board members. He described Ms. An’s tireless work to get the organization running and raising its profile.

Ms. An has provided pro bono services in a number of Korean community matters, some of which she described in her evidence. Ms. An particularly noted her ongoing work seeking to liberate Reverend Lim, a Korean Canadian, who has been incarcerated in North Korea and is serving a life sentence.[5]

Ms. An has also contributed significantly within the Korean Canadian community and the Korean diaspora. Since 2009, she has been the president of the Toronto chapter of the Toronto Korean Women’s International Network (KOWIN), having founded the chapter in 2009. Ms. An is vice-president of the National Unification Advisory Council (NUAC) which is chaired by the President of South Korea. She has been vice-president of the Korean Canadian Women’s Association (KCWA), the chair of the Fundraising Committee of the Peaceful Unification Council of North and South Korea and the Canadian representative of the Overseas Koreans Foundation. Senator Yonah Martin,[6] Deputy Leader of the Opposition in the Senate, has written advising that she has “witnessed [Ms. An’s] passion, outstanding leadership and many contributions to the Korean community (of not only the Greater Toronto Area but the national community), to the Republic of Korea, and to the wider Canadian society.” Senator Martin further confirms the significance of Ms. An’s work with FACL, KCWA and other organizations mentioned above.

Ms. An testified with obvious pride that she is a Master of Tae Kwon Do and a fifth dan Black Belt working on her sixth dan.

A life-long friend of Ms. An testified on her behalf, as did her husband. Character letters were filed by these two, as well as by others who have known Ms. An in legal practice. Keeping in mind the caution that friends and family will naturally support a lawyer in disciplinary proceedings, the evidence demonstrates a committed, dedicated, honourable and responsible lawyer and person.

These reasons do not recite all that was said about Ms. An in character letters and in testimony. It is clear that Ms. An is able, accomplished, a leader and a builder and that she has contributed significantly to the country, the legal community and to the Korean community here in Canada and internationally.

She has already "paid a price" for the lapse.

Ms. An described the emotional toll that what she experienced as a public shaming has had on her. Ms. An’s cultural background may have made this more significant for her than it might be for other lawyers. But there is no doubt that any good lawyer would be mortified by the reasons of the trial judge, and a prominently placed negative article in the Toronto Star. For Ms. An, the emotional impact of all of this was clearly compounded by the familial stresses and tragedies she was suffering. As a result, Ms. An has reduced her practice and has sought counselling. Her financial circumstances have become more difficult. As well, she was required to reimburse Legal Aid Ontario nearly $30,000 in respect of the mistrial. 

The Law Society had sought a two-month suspension. (Mike Frisch)

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

Try To Remember

The South Carolina Supreme Court has disbarred an attorney who engaged in further misconduct while facing a public reprimand

In October 2012, while the panel's recommendation for the first set of charges was pending before this Court, Disciplinary Counsel received a new complaint alleging Mr. Jordan committed more serious misconduct between 2009 and 2012. The crux of the new complaint was—in seven different cases—Mr. Jordan entered into a feesharing arrangement with another attorney, did not disclose the arrangement to the client, collected a fee for the case, and deposited the entire fee in his law firm's accounts instead of paying co counsel's share of the fee. After considering the second set of charges, the panel recommended to this Court that Mr. Jordan be disbarred. 

The court rejected his inadvertence claim and other mitigation

we are highly sensitive to Mr. Jordan's personal problems, including his prescription drug addiction, his family issues, and his assertion that his struggle with lymphoma caused him to make careless mistakes. As to the prescription drug issues, Mr. Jordan explained he was addicted to benzodiazepines from 1997 through 2004. Although he overcame his addiction in 2004, he argues such an addiction can have long-term cognitive effects, including memory loss. As to his health issues, Mr. Jordan filed affidavits prior to oral argument from two doctors explaining he may have been suffering from symptoms of lymphoma as early as March or April 2011. In one of the affidavits, a doctor stated, "Lymphoma can affect a patient's ability to complete normal activities of daily living and it was clearly impacting his ability to function." Mr. Jordan cites Standard 9.3 of the American Bar Association's Annotated Standards for Imposing Lawyer Sanctions to support his argument that this Court must consider his mitigating factors. Standard 9.32 does include mental disability and chemical dependency as factors that may be considered in mitigation. However, the timing of Mr. Jordan's misconduct in the second set of charges undermines his arguments.

...the timing of Mr. Jordan's misconduct cannot be reconciled with his assertion that the misconduct was accidental. As we noted in our analysis of Rule 8.4(d), RPC, Mr. Jordan is a highly intelligent person. It makes no sense that a person of Mr. Jordan's intelligence and experience could "accidentally" fail to pay his co-counsel, then—while under investigation by Disciplinary Counsel for doing so—continue to accidentally do the same thing. As the panel noted in its report on the second set of charges, "Even if we were to give [Mr. Jordan] the benefit of the doubt and attribute his repeated misrepresentations to [the referring attorney] to inadvertence or poor recollection, it defies logic that he would be so careless given the serious nature of the disciplinary proceedings pending against him at the time." Standing alone, the failure to pay co-counsel in the first set of charges would not support a finding of dishonesty, fraud, deceit, or misrepresentation. The second set of charges, however, in which Mr. Jordan committed the misconduct at the same point in time he was claiming the previous conduct was accidental and he had taken steps in the management of his firm to prevent it, leave no room for any finding other than intentional misconduct.

The court affirmed findings of presenting false evidence in the bar matter. (Mike Frisch)

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

Taxman's Holiday

The Minnesota Supreme Court has disbarred a former tax judge convicted of tax crimes.

WCCO CBS Minnesota reported on the crimes

A former U.S. tax court judge is sentenced to more than two years in prison for a tax fraud conspiracy with her husband.

Diane Kroupa, 61, is sentenced to 34 months in prison Thursday for tax fraud. Her husband, 63-year-old Robert Fackler, also pleaded guilty in the case and is sentenced to 24 months is prison.

According to the U.S. Attorney’s office, Kroupa was appointed to the judgeship in 2003 for a term of 15 years. Her husband, Fackler, was a self-employed lobbyist and political consultant while Kroupa was on the bench. The couple owned a home in Plymouth and a second home in Easton, Maryland, while the two worked in Washington, D.C.

Prosecutors say Kroupa and Fackler attempted to keep the IRS from accurately determining their joint income taxes by listing numerous personal expenses as businesses expenses related to Fackler’s consulting firm. Some of those expenses included rent and utilities for their Maryland home, utilities and renovation of their Minnesota home, Pilates classes, spa and massage fees, jewelry, clothing, wine club fees, and several international vacations.

In their plea agreement, Kroupa and Fackler also admitted to deducting several business expenses more than once, and failing to report some forms of income, including a $44,000 land sale in South Dakota. The plea agreement also said the couple purposely concealed documents from their tax preparer and the IRS during an audit.

The couple was also ordered to pay more than $450,000 in restitution.

Minnesota Lawyer reported on the sentences.

As part of the conspiracy, they worked together each year to compile numerous personal expenses for inclusion as supposed “business expenses” for Grassroots Consulting in their joint tax return. Those expenses included: rent and utilities for the Maryland home; utilities, upkeep and renovation expenses of the Minnesota home; Pilates classes; spa and massage fees; jewelry and personal clothing; wine club fees; Chinese language tutoring; music lessons; personal computers; and expenses for vacations to Alaska, Australia, the Bahamas, China, England, Greece, Hawaii, Mexico and Thailand...

Kroupa, 61, was sentenced to 34 months and Robert Fackler, 63 was sentenced to 24 months. They must pay $457,104 in joint restitution.

Bloomberg BNA raised the question whether the conviction might impact on tax court rulings in which the judge participated. 

The discipline was imposed by stipulation.

In an related matter, the District of Columbia Board on Professional Responsibility has approved the consent disbarment of an attorney convicted of federal offenses described by the United States Attorney for the Northern District of Florida

James R.J. Scheltema, 56, of Pensacola, has pled guilty to filing false tax returns and tax evasion. The guilty plea was announced by Christopher P. Canova, United States Attorney for the Northern District of Florida.

Between 2010 and 2013, Scheltema, a certified public accountant and attorney, received restricted stock as compensation for his legal and accounting services. He initially reported no compensation on his 2011 and 2012 individual income tax returns, despite receiving substantial compensation from stock issuance and the sale of stock. Scheltema also failed to file timely 2013 individual and corporate income tax returns for two companies he owned and operated. Scheltema tried to evade notice of stock sales by instructing checks be made payable to his wife and to one of the companies he owned, rather than to himself. After being notified of the IRS investigation, Scheltema filed amended 2011 and 2012 returns and a delinquent 2013 return, which were still false.

The sentencing hearing is scheduled for April 10, 2017, 3:00 p.m.

For each charge of filing false tax returns, Scheltema faces a maximum of three years in prison. For the tax evasion charge, he faces a maximum of five years in prison.

(Mike Frisch)

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

A Crowded And Complex Relationship

In an 117-page opinion (with dissent) the Maryland Court of Appeals reversed a custody award to the child's paternal grandparents.

Not your average family situation per the majority

Natasha Burak (“Petitioner”) and Mark Burak (“Father”) were married in October 2006, and had a child (“the Child”) two years later. From early 2009 until December 2012, Petitioner, Father, and another woman – “M” – engaged in a polyamorous relationship and illicit drug use. The parties scheduled their activities on a calendar kept by Petitioner and, prior to engaging in any illicit activity, the parties would take the Child to his paternal grandparents’ house. In 2011, Petitioner and Father purchased a marital home in Silver Spring, Maryland with funds provided by Father’s parents – Gary and Martha Burak (“the Grandparents”) – and sometime in 2012, M moved into the basement of the marital home.

Beginning in September 2012 and continuing until February 2013, the triad attended couples counseling because Petitioner no longer wanted to engage in sexual relations with M and she wanted M to leave the marital home. In December 2012, the sexual relationship between Petitioner and M ended, but the two continued to have a non-sexual relationship that included cooking together and sleeping in the same bed. On May 31, 2013, in response to two violent incidents that occurred earlier in May 2013, Petitioner filed for and received a Temporary Restraining Order (“TRO”) against Father. Father subsequently moved out of the marital home and Petitioner filed a complaint for absolute divorce on July 11, 2013.

The court sets out at length the history of the failed marriage and the grandparents' primary role with the child

On May 24, 2013, Father, Petitioner and M went to King’s Dominion. Near the end of the day, an argument ensued between Petitioner and Father that involved screaming, and devolved into violent actions taken by both parties.

That altercation and a subsequent one resulted in a TRO against the father.

Father conceded that the two got into an “ugly and vicious[]” argument that morning [of the second incident] , but testified that “[i]t was no different from 10,000 other fights we’d had before[]” and he stated that he never threatened to kill Petitioner.

The court noted

At the time the polyamorous relationship began, Petitioner informed M that she had dissociative identity disorder (“DID”) and that, in addition to her main identity, she also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.

And footnoted

At the custody hearing, an email was produced that was sent from Petitioner to M with Father cc’ed on February 4, 2013. The email detailed the dates and times for introductory courses on bondage discipline submission and masochism (“BDSM”). Father testified that he, Petitioner, and M attended one of the introductory classes together and that he and M attended a separate class with just the two of them. M stated that Petitioner and Father were not really involved in BDSM activities together.

And the child had issues as well

Beginning in May 2014, at the end of the Child’s kindergarten year, the Child began exhibiting negative and disruptive behavior in class. The bad behavior continued through the summer and into the start of the Child’s first grade year, when the Child began to leave class without permission and exhibit bouts of anger. On September 4, 2014, the Child kicked the assistant school principal and threatened to blow up the school. The school contacted Petitioner and provided a referral to the Montgomery County Crisis Center (“Crisis Center”). The Child was subsequently allowed to return to school after the referral was completed.

The court here held that the grandparents could intervene in the custody case but overturned the finding of the mother's parental unfitness

We conclude that because the hearing judge’s factual findings in this case did not support his conclusions that Petitioner was unfit and that exceptional circumstances existed, the hearing judge, thereby, also abused his discretion in granting custody of the Child to the Grandparents because the presumption favoring Petitioner retaining custody of the Child was not rebutted by the facts in this case.

Because we hold that the circuit court abused its discretion in granting custody of the Child to the Grandparents, we also conclude that the circuit court erred in ordering Petitioner to pay child support to the Grandparents.

Judge Getty dissents  and would hold the unfitness issue unpreserved. 

Finally, even if the Majority is correct to consider the merits of the trial court’s rulings instead of simply vacating the decision and remanding for the trial court to apply its new standards, I disagree with its conclusions that the trial court abused its discretion in finding that Ms. Burak was unfit and that exceptional circumstances merited granting custody to the Grandparents. The Majority correctly recognizes that in a child custody case a trial court’s factual findings are scrutinized under the clearly erroneous standard, and its ultimate conclusions reached by applying the law to those factual findings are reviewed under an abuse of discretion standard. Majority Slip Op. at 45-46 (citing In re Yve S., 373 Md. 551, 585-86 (2003)). However, the Majority misapplies these standards, and has failed to afford proper deference to the decisions of the trial court.

He quotes the Court of Special Appeals

On the actual record that was developed, the court acted well within its discretion when it found the parents unfit. The record supports the court’s finding that Wife still takes or is ready to take drugs and that she has struggled with parenting and properly caring for Child. The court heard and considered testimony regarding Wife’s inability and uneasiness in caring for Child, and that her difficulties often resulted in her and Husband placing Child in the Grandparents’ care. And the record revealed real questions about Wife’s compliance with the parties’ agreed drug testing regiment. She failed to comply with the Child’s Best Interest Attorney’s (“BIA”) request for a random drug test on July 14, 2014. And although she eventually sent the results of a test the BIA requested about a month before the custody merits hearing, she refused to sign the release that would allow her results to be sent directly to the BIA. This meant that Wife received and could review her results before the BIA got them, which undermined the credibility of any negative results. Wife obviously disputes these findings and the factual premises underlying them, but the record contained ample evidence that could support the court’s finding that she and Husband (who doesn’t contest the finding) were unfit parents.

Judge McDonald joined the dissent.

The oral argument is linked here. (Mike Frisch)

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

Road To Perdition

The Louisiana Attorney Disciplinary Board proposes permanent disbarment of an attorney who offered a series of excuses for failing to respond to multiple complaints but eventually was deemed in default

Here, Respondent violated duties owed to clients, the public, the legal system, and the profession. His conduct was knowing if not intentional. These charges are comprised of seven separate matters: two initiated by the ODC relative to overdraft notices, four initiated by clients and/or other attorneys regarding four client matters and one initiated by a health care provider who provided services to seven of Respondent’s clients. Respondent converted funds belonging to multiple clients, negotiated a settlement check with the forged endorsement of his client, failed to forward funds owed to a medical provider and converted funds belonging to co-counsel. He repeatedly misused his client trust account, which was overdrawn on multiple occasions. He neglected client matters and failed to communicate with his clients. He neglected his professional  through his failure to keep his registration address current and properly report a trust account, as required. Furthermore, he refused to cooperate with the ODC. His actions caused actual harm to clients, third parties and co-counsel by depriving them of their funds. His dishonest conduct is the type that causes damage to the legal system, the public, and, in particular, the profession. His failure to participate in the disciplinary proceedings caused damage in the form of needless expenditure of the limited resources of the disciplinary agency. 

In assessing sanction, the board considered the Guidelines for sanction adopted by the state Supreme Court

The conduct at issue is described in Guideline 1: “Repeated or multiple instances of intentional conversion of client funds with substantial harm.” Respondent’s conversion of client funds in multiple matters fits within the description of this guideline.

The guidelines on the sanction of permanent disbarment

The following guidelines illustrate the types of conduct which might warrant permanent disbarment. These guidelines are not intended to bind the Supreme Court of Louisiana in its decisionmaking. It is hoped that these guidelines provide useful information to the public and to lawyers concerning the types of conduct the Court might consider to be worthy of permanent disbarment.

GUIDELINE 1. Repeated or multiple instances of intentional conversion of client funds with substantial harm.
GUIDELINE 2. Intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury.
GUIDELINE 3. An intentional homicide conviction.
GUIDELINE 4. Sexual misconduct which results in a felony criminal conviction, such as rape or child molestation.
GUIDELINE 5. Conviction of a felony involving physical coercion or substantial damage to person or property, including but not limited to armed robbery, arson, or kidnapping.
GUIDELINE 6. Insurance fraud, including but not limited to staged accidents or widespread runner-based solicitation.
GUIDELINE 7. Malfeasance in office which results in a felony conviction, and which involves fraud.
GUIDELINE 8. Following notice, engaging in the unauthorized practice of law subsequent to
resigning from the Bar Association, or during the period of time in which the lawyer is suspended from the practice of law or disbarred.
GUIDELINE 9. Instances of serious attorney misconduct or conviction of a serious crime, when the misconduct or conviction is preceded by suspension or disbarment for prior instances of serious attorney misconduct or conviction of a serious crime. Serious crime is defined in Rule XIX, Section 19. Serious attorney misconduct is defined for purposes of these guidelines as any misconduct which results in a suspension of more than one year.

 (Mike Frisch)

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

Tuesday, August 29, 2017

Disparaging Judges Draws Connecticut Suspension

The Connecticut Supreme Court affirmed a trial court's order of a four year suspension of an attorney

In challenging the trial court’s judgment, the defendant raises a multitude of claims, including the following: (1) that the trial court violated his constitutional right to due process; (2) that the allegations in the presentment were barred under the doctrines of res judicata and collateral estoppel; (3) that the plaintiff failed to prove professional misconduct by clear and convincing evidence; and (4) that the trial court abused its discretion in imposing a four year suspension without considering certain factors set forth in the American Bar Association’s Standards for Imposing Lawyer Sanctions (standards). We disagree and, accordingly, affirm the judgment of the trial court.

The misconduct involved accusations against two judges

In the presentment complaint, the plaintiff accused the defendant of violating rules 3.1, 8.2 (a), and 8.4 (4) of the Rules of Professional Conduct by making ‘‘baseless accusations’’ against Judges Roche and Danaher. The plaintiff cited the defendant’s history of professional discipline, including his presentment in two cases in 1987, which resulted in a three month suspension from the practice of law in 1992, a reprimand in 2006, and his presentment in two cases in 2011, which resulted in a two year suspension from the practice of law.

The court rejected all claims

We next address the defendant’s claim that, because his alleged misconduct occurred before two different judges who chose not to take action against him pursuant to rule 2.15 of the Code of Judicial Conduct; see footnote 6 of this opinion; he was absolved of any unethical conduct. As a result, the defendant contends that the doctrines of res judicata1 and collateral estoppel precluded the trial court from considering his alleged misconduct in the present case...We agree with the plaintiff and conclude that the doctrines of res judicata and collateral estoppel do not bar the allegations of professional misconduct in the present case.

 And concluded

After reviewing the record in the present case, we conclude that ample evidence exists supporting the trial court’s findings and conclusions. The record contains countless motions, memoranda, and arguments made by the defendant disparaging Judges Roche and Danaher for no apparent reason beyond the fact that those judges ruled in opposition to him. Not only did the defendant call into question the impartiality of Judges Roche and Danaher, but he also called into question their competency as judges and questioned the integrity of the Judicial Branch. See, e.g., Notopoulos v. Statewide Grievance Committee, supra, 277 Conn. 236–37. We conclude that the trial court’s factual findings and conclusions are supported by clear and convincing evidence and, therefore, we decline to disturb them on appeal.

(Mike Frisch)

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

Monday, August 28, 2017

Neither Doctor Or Lawyer

The Louisiana Attorney Disciplinary Board recommends permanent disbarment of a lawyer who also is a physician convicted of federal offense

The committee found that Global Pain Management (“GPM”), the pain clinic at which Respondent was employed, was a “pain pill mill,” which led to Respondent’s conviction in federal court for knowingly and willfully conspiring with others to dispense controlled substances.  It was also noted that Respondent’s misconduct resulted in the Louisiana State Medical Board (“Medical Board”) suspending his medical license for three years and permanently prohibiting him from practicing pain medicine.  The committee emphasized the Medical Board’s finding that Respondent failed “to satisfy prevailing and usually accepted standards of medical care, prescribing controlled substances without legitimate medical justification and egregious disregard of the letter and spirit of the Pain Rules.”

Sanction

Even if it is determined that Guideline 5 does not specifically apply, the permanent disbarment guidelines are illustrative and are not intended to bind the Court in its decisionmaking. Given the conduct under consideration, permanent disbarment is warranted. The Court has, on a prior occasion, permanently disbarred an attorney who was arrested for possession with the intent to distribute Schedule IV narcotics. See In re Richard, 2014-1684 (La. 10/3/14); 148 So.3d 923. After a traffic stop and subsequent search revealed the presence of approximately 200 alprazolam (Xanax) tablets in Mr. Richard’s vehicle, he was arrested and booked on a felony charge. Later, he was allowed to plead guilty to a misdemeanor (possession of drug paraphernalia), however the Court found the record supported a finding that Mr. Richard had conspired and arranged to sell controlled dangerous substances to an undercover narcotics officer. It found permanent disbarment was appropriate even though the conduct did not definitively fit any of the specific permanent disbarment guidelines.  The Court found Mr. Richard’s criminal conduct involving an intent to distribute controlled substances demonstrated a clear lack of moral fitness, which continued to place the public at risk and tarnished the image of the legal profession. It is notable that Respondent has argued that he was convicted of a conspiracy to dispense controlled substances and that no direct and actual harm has been proved. Mr. Richard, too, was found to have engaged in a conspiracy to sell controlled substances to an undercover officer. Though no direct and individual harm was proved, the Court found it appropriate to permanently disbar Mr. Richard.

(Mike Frisch)

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

Not So Special

In what I believe is a first-of-its kind case (see corrections below), a District of Columbia Hearing Committee recommends the revocation of a limited license

These claims arise from Respondent’s conduct while allegedly engaging in the unauthorized practice of law by holding himself out as a licensed attorney when, in fact, he is licensed as a “Special Legal Consultant” pursuant to Rule 46 of the D.C. Court of Appeals Rules. See D.C. App. R. 46(c)(4)(D)(5)-(7) (2008). Disciplinary Counsel contends that Respondent committed all of the charged violations and, as a sanction for his misconduct, Respondent’s Special Legal Consultant license should be revoked and he should be required to pay restitution to those clients who paid him after falsely being led to believe he was a licensed attorney. Respondent, on the other hand, contends that Disciplinary Counsel has not proven any of the charges by clear and convincing evidence, and that no sanction should be applied.

...the Ad Hoc Hearing Committee (“Hearing Committee”) finds clear and convincing evidence that Respondent violated Rules 1.4(b), 1.16(d) 5.5(a), 8.4(b) (theft in violation of D.C Code § 22-3211), and 8.4(c). The Hearing Committee, however, finds that the evidence is insufficient to find that Respondent violated Rules 8.1(b) and 8.4(d). Additionally, as a factor in aggravation of sanction, the Hearing Committee finds that Respondent knowingly gave false testimony during the evidentiary hearing

 The Hearing Committee recommends revocation of Respondent’s designation as a Special Legal Consultant, without any right to reapply for the license for a five year period. Upon any reapplication after the five-year period has expired, Respondent must pay restitution and prove his fitness to practice as a Special Legal Consultant.

The case is In re Ahmed M. Elhillari and can be found at this link.

Thanks for the Michigan information linked to the comment. Here's one I found on this blog from Illinois. (Mike Frisch)

August 28, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Legal Malpractice Claim Survives Where Firm Role In Dispute

The Massachusetts Supreme Judicial Court vacated and affirmed in part  the disposition of a legal malpractice case where the parties disagreed as to when the attorney - client relationship started and ended.

The case was assigned to attorney Quigley, who left the Todd firm. There was disagreement as to the firm's role post Quigley's departure but

There is no dispute that Cesso never communicated to Todd or the Probate and Family Court any objection to Todd's filing a notice of withdrawal in the divorce action. Cesso never objected to Todd's lack of response to any of the seven e-mails copied to Todd after July 28, 2008, and ceased communicating with Todd substantively about the case after August 21, 2008. Todd was not present in court for the first two days of trial, Septemeber 8 and 9, 2008. Cesso did not object to Todds absence.

Cesso sued Quigley and later added Todd as a defendant. 

The question at issue here is whether Todd's attorney client relationship with Cesso continued after July 28, 2008. The motion judge found that, as a matter of law, Todd ceased being Cesso's attorney in the divorce action on the date Todd signed the notice of withdrawal. We disagree. On this record, "reasonable persons could differ as to the existence of an attorney-client relationship," so "this issue must be resolved by the trier of fact."

 ...Todd expressly told Cesso that, after Todd's withdrawal as counsel of record, Todd and Quigley would "continue to work together and consult on [Cesso's] case." This was consistent with the established division of labor, with Todd settingstrategy and Quigley executing that strategy. Cesso took actions, such as copying Todd on e-mails, corroborating that Cesso thought Todd was still working on the case. Resolving all evidentiary inferences in favor of Cesso, Todd took no steps to disabuse Cesso of the notion that he (Todd) was still working on the case, albeit in a behind-the-scenes role. Instead, Todd sent a billing cover letter that a reasonable person could read to indicate that he would continue to work and bill on the case. The record, though thin, is enough to permit -- but not require-- the finder of fact to draw the inference that Cesso reasonably believed that Todd was continuing to consult in the background.

 The dismissal of a misrepresentation count was affirmed. (Mike Frisch)

August 28, 2017 in Clients | Permalink | Comments (0)

False Statement To Bar

The Georgia Supreme Court accepted license surrender for a false statement in a bar matter

Although the underlying proceedings are complicated, the only relevant facts at this point are that Galette admits that she provided false information to the Office of General Counsel during its investigation of a grievance that alleged Galette assisted a third party in filing a false petition for a temporary protective order against the grievant and in falsely acknowledging service of that petition – actions that ultimately led to the arrest and jailing of the grievant. Galette admitted that her actions violated Rule 8.1 (a) and requested that she be allowed to voluntarily surrender her license. The Bar had no objection to her second petition, and the special master recommends that the Court accept it, noting that disbarment is appropriate where, as here, the lawyer engages in intentional conduct involving dishonesty or submits false statements during the disciplinary process. 

The court notes that the acceptance is tantamount to disbarment. (Mike Frisch)

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

Art Of The Deal Gets Attorney In Trouble

The Georgia Supreme Court has rejected a petition for voluntary discipline in a matter that involves client property

The complaint, as amended, charges Coulter with violations of various Rules of the Georgia Rules of Professional Conduct arising out of his representation and professional relationship with one of his long-time clients. This client was and is an artist representative, and he represented a renowned artist, now deceased, whose work possesses considerable value...

In 2010, Coulter assumed more responsibility over the client’s affairs, becoming involved in the receipt, depositing, transfer, and disbursement of the client’s funds collected in the course of the client’s businesses. It appears that the client knew of some of the accounts Coulter had opened on behalf of the client but did not know of others, and in some of the accounts Coulter was the sole authorized signer. Coulter concedes these accounts were not approved lawyer-trust accounts and that they held only funds related to the client and his businesses, yet Coulter transferred funds from or through the client’s accounts to his operating account as payment of attorney fees. It also  appears that in just the final ten months of Coulter’s representation of this client, he administered more than $1 million through the client’s accounts. In those final months, Coulter paid himself $400,000 in fees from the client’s bank accounts. Apparently, these are the only months of financial records made available to the Special Master who was appointed to conduct proceedings in this case. Coulter did not provide any billing invoices to the client after 2008, but two of the complainants are lawyers who were formerly associates in Coulter’s law firm, and they printed a set of invoices from the firm’s billing system in 2011 and provided them to the client. The invoices contained substantial discrepancies that Coulter could not explain. Coulter concedes he did not keep and maintain complete and accurate records of this client’s funds and did not promptly notify the client of Coulter’s receipt of funds in which the client possessed an interest.

In 2008, Coulter obtained from the client over 100 pieces of art created by the above-mentioned artist with an estimated value at the time the complaint was filed of over $850,000. They were taken as security for the substantial sums Coulter claims were owned to him for professional services. Coulter claims the client signed a written security agreement permitting him to hold the art as security for amounts owed, but the client disputes this, and Coulter was unable to locate the signed agreement. Coulter admits that, before taking possession of the art pieces, he did not advise the client about the material risks this arrangement could pose to Coulter’s ongoing representation of him and his businesses, and did not advise the client to seek the advice of independent counsel. Coulter kept the art in a box in an unsecure location in his personal office at his law firm. Although someone in Coulter’s office apparently returned the art to the client when the client terminated his relationship with Coulter, it does not appear that the client has been made whole since significant funds were taken from his accounts without adequate documentation of fees and expenses or Coulter’s entitlement to them.

The attorney was admitted in 1971, has two prior disciplinary sanctions and was willing to accept a two-year suspension but

Given the serious nature of the admitted rule violations in this case, and the record facts, we reject the recommendation of the Special Master to impose a voluntary two-year suspension.

(Mike Frisch)

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

Sunday, August 27, 2017

"Forgot My Password" Email Access Leads To Bar Charges

The Illinois Administrator recently filed a complaint alleging that an attorney engaged in misconduct as the CFO of an Illinois corporation that extracts and refines precious metals. 

The allegations involve the email account of an employee who had left.

When [employee] Wokoun began his employment with PMRS, he received from PMRS an email account with the address dwokoun@pmrs-refining.com ("work email").

From at least the time Wokoun began his employment with PMRS to the date this complaint was filed, Wokoun also maintained an email account with Yahoo with the address d_wokoun@yahoo.com("personal email"). During that time, Yahoo provided methods by which its users can regain access to their accounts in the event that their sign-on information was lost or forgotten.

On or about February 15, 2013, Wokoun added his mobile number, ending in "4695", as a password recovery method for his personal email at Yahoo.

On or about March 16, 2013, Wokoun added his work email as an alternative password-recovery method for his personal email at Yahoo.

On March 1, 2014, Wokoun resigned from this employment with PMRS.

After Wokoun resigned from PMRS, Respondent deactivated Wokoun’s work email and all communications sent to dwokoun@pmrs-refining.com were automatically forwarded to another PMRS account with the address info@pmrs-refining.com ("the catch-all account"). All emails that were sent to inactive or misspelled PMRS accounts were automatically forwarded to this catch-all account, which Respondent monitored.

On March 4, 2014, three days after his resignation, Wokoun filed a three-count complaint against PMRS and its president, Sheldon Goldner ("Goldner"), in the Circuit Court of Cook County, in which Wokoun alleged battery, intentional infliction of emotional distress, and breach of contract. The clerk of the court docketed the matter as Wokoun v. PMRS and Sheldon Goldner, 2014-L-2339.

Following his resignation from PMRS, Wokoun did not remove his work email as a recovery method for his Yahoo email account until sometime after July 4, 2014. As a result, Respondent periodically received in PMRS’s catch-all account notifications of password changes to Wokoun’s personal email. Respondent did not notify Wokoun that his deactivated work email was still linked to his personal email, or that Respondent was receiving these notifications.

 On July 4, 2014, Yahoo’s password-recovery process required a user to go to Yahoo’s sign-on page and click "Forgot My Password", upon which the user will be prompted to enter his Yahoo email account. Then, a user who had both a mobile number and an alternate email address on file could regain access to his Yahoo account in one of two ways: first, he could have received a SMS text message from Yahoo to his mobile number in which Yahoo would ask the user to enter an alphanumeric code provided by Yahoo and, upon entering the correct code, the user would be prompted to create and confirm a new password. This recovery method was Yahoo’s default option.

Alternatively, the user could have chosen to receive an email from Yahoo sent to the alternate email address in which Yahoo provided an account-specific uniform resource locater ("URL") link that, upon clicking it within a 24-hour expiration period, would take the user to a Yahoo password-creation screen where the user can create and confirm a new password.

On July 4, 2014, during the pendency of Wokoun’s lawsuit against PMRS, Respondent took the steps detailed...above, and received in PMRS’s catch-all account a URL link provided by Yahoo. Respondent used the link to reset Wokoun’s password and intentionally gained access to Wokoun’s personal email account.

Upon gaining access to Wokoun’s personal email, Respondent performed with its inbox a search for "Jim Jackson". Jim Jackson ("Jackson") was the president of Chicago Direct Refiners, Inc., one of PMRS’s competitors. Respondent proceeded to open and read at least 15 email exchanges between Wokoun and Jackson that occurred between March 18, 2014 and June 1, 2014. In those emails, Wokoun and Jackson discussed the possibility of Wokoun becoming an employee or having a business relationship with Chicago Direct Refiners. Respondent subsequently provided copies of the emails he obtained from Wokoun’s personal email account to PMRS’s counsel.

On or about August 6, 2015, approximately 13 months after he first accessed Wokoun’s personal email inbox, Respondent, without disclosing his identity, mailed a package addressed to Wokoun’s attorney Daniel Hogan ("Hogan") at Hogan’s business address. The package contained copies of the emails Respondent printed out from Wokoun’s personal email account...

On February 4, 2016, Wokoun filed with the court a motion for sanctions in case number 2014-L-2339. Wokoun’s sanction motion alleged that Respondent had wrongfully accessed Wokoun’s personal email account, which contained over 80 email communications between Wokoun and Hogan that were subject to attorney-client privilege. In his motion, Wokoun requested that the court enter a default judgment against the defendants and impose against them compensatory and punitive damages.

Sanctions were imposed in the litigation as a result that included a default on the merits.

 Here, the Administrator alleges that the respondent committed the state crime of computer tampering and engaged in conduct involving dishonesty in falsely representing to Yahoo that he needed a new password.

He also is alleged to have testified falsely in his deposition in the underlying litigation concerning the above conduct.

On January 23, 2015, Respondent gave his deposition in case number 2014-L-2339. During that deposition, Wokoun’s attorney Daniel Hogan asked Respondent the following question: "What investigation, if any, did you undertake to determine whether or not Dan Wokoun was involved with Chicago Direct Refiners of Illinois, Inc.?" In answering Hogan’s question, Respondent did not disclose that he had accessed Wokoun’s email on July 4, 2014.

On February 22, 2016, PMRS and Goldner filed with the court a response to Wokoun’s February 4, 2016 motion for sanctions. The defendants included in their response an affidavit executed by Respondent, in which Respondent stated that "on July 4, 2014, I clicked on a link contained in the most recent Yahoo email sent to the PMRS account" and that "after clicking the link and surprisingly being confronted with the Yahoo inbox, I was shocked to see that there were e-mails between Plaintiff and a known competitor."

Respondent’s representation that he was "confronted" with Wokoun’s personal email inbox was false because at the time Respondent executed the February 22, 2016 affidavit, Respondent knew that he had taken multiple steps, including changing the password, in order to gain access to Wokoun’s personal email inbox, and that Yahoo never provided Respondent or PMRS with a link that led directly to Wokoun’s personal email inbox.

Respondent knew his representations...were false at the time he made them.

(Mike Frisch)

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

Saturday, August 26, 2017

Sanction For Bankruptcy Misconduct In Idaho

The Idaho Supreme Court imposed a suspension of two years with all but nine months stayed for stipulated misconduct in two bankruptcy matters described on the State Bar web page

The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to Mr. Pitner’s representation of two clients in separate bankruptcy matters. In the first matter, Mr. Pitner represented a client in her personal injury case and bankruptcy case. He obtained a settlement in the personal injury case and, before the Bankruptcy Court approved that settlement or his contingent fee in the personal injury case, he withdrew the settlement funds from his client trust account and used those funds to pay personal expenses. Mr. Pitner did not timely disburse the settlement funds to his client or third parties, respond to requests by the Bankruptcy Trustee for information relating to those disbursements, or comply with the Bankruptcy Court’s orders requiring him to submit documentation confirming the disbursements. Mr. Pitner ultimately issued all required disbursements after depositing funds into his trust account from unspecified sources.

...In the second matter, Mr. Pitner represented a client seeking to reopen her bankruptcy case to obtain a discharge. The client sent Mr. Pitner a check for the filing fee in May 2016. Mr. Pitner negotiated that check immediately, but did not deposit the funds into his trust account or file the client’s motion to reopen her bankruptcy case until July 2016. Thereafter, Mr. Pitner failed to comply with the Bankruptcy Court’s orders requiring him to submit records regarding his client’s payment and his purported refund to the client of that payment.

He must complete two years probation on reinstatement. (Mike Frisch)

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

Friday, August 25, 2017

Putting Feelings Aside

A defendant's recorded threats toward his defense counsel and the prosecutor led the prosecutor to improperly allocute at sentencing, according to a decision of the Montana Supreme Court.

At Lehrkamp’s August 2015 sentencing hearing, the State introduced excerpts of recorded telephone conversations Lehrkamp had with his family while he was in jail. The conversations had occurred in the two days leading up to trial and on the day of trial. In the recordings, Lehrkamp discussed his thoughts about attacking his then-counsel, Mariah Eastman, and the prosecutor, Jeff Sealey, when they all were in the courtroom together. He stated:

That’s what I figure, punch the fuck’n bitch right in the throat. Won’t let me fire her in two different courts. Won’t let me fuck’n get rid of her through her boss or nobody else. Just look at her, smile, and punch her right in the throat, watch her drop. There you go, guilty. Then go after the prosecutor. After a year in here Pa I really don’t give a fuck what happens.

He’s a fuck’n cheap piece of shit, he’s a vindictive little cock sucker. Yah, I’m gonna fuck’n jump his ass in the goddam court room. Yah, I’m gonna fuck’n beat his ass until he doesn’t fuck’n breath, right there . . . I don’t care if they hear me. They better have a fuck’n cop in between us the whole goddam time because I’m gonna break his fuck’n neck. I spent a fuck’n year in this dump. Best thing they can do is shoot my ass.

I said, “Well I hope he’s listening to the conversations because he better be fuck’n on edge tomorrow and there better be a cop between me and him.” And she’s like, “Well why then?” And I said, “Because I’m gonna fuck’n break his neck.” I said, “Win or lose I don’t give a shit. I’m goddam gonna fuck’n smash the piss out of that little fuck’n weasel.” And she’s like, “Oh, I can’t believe you said that.” And I said, “Well you know when you’re being fuck’n accused of shit I didn’t do, I gonna fuck’n, I’m gonna drain his life out of him in the court room and look at the judge and you and say guilty, there, now I’m guilty.”

The prosecutor engaged in misconduct by invoking his personal views at sentencing

The prosecutor’s remarks in the present case amounted to a personal plea that the court adopt the State’s sentencing recommendation in order to provide “solace” to the prosecutor and his family. The prosecutor requested a lengthy sentence based not on the severity of the crime for which Lehrkamp was convicted—possession of dangerous drugs—but on the prosecutor’s personal feelings about Lehrkamp’s threatening comments in the recorded telephone conversations. By advocating for a sentence based on his personal feelings regarding Lehrkamp, the prosecutor exceeded his scope of “vindicat[ing] the public’s interest in punishing crime.” Ugalde, ¶ 114. In invoking the protection of his own interests—his own safety and that of his family—the prosecutor stepped into the role of crime victim and witness, thereby undermining “the objective detachment that should separate a lawyer from the cause being argued.” Ugalde, ¶ 114. If the prosecutor planned to provide personal testimony on the basis of Lehrkamp’s threats against him, a different attorney should have argued the case at sentencing. Instead, the prosecutor wrongly combined “the roles of advocate and witness.” Stock, ¶ 14 (internal quotations omitted); see M. R. Prof. Cond. 3.7(a). His remarks violated “established norms of professional conduct” and were therefore improper.

The court found the error non-prejudicial and harmless. (Mike Frisch)

August 25, 2017 | Permalink | Comments (0)

Conviction Reversed Where Prosecutor's Brother-In-Law Served As Jury Foreman

The Kentucky Supreme Court has reversed a criminal conviction for first-degree sexual abuse.

The allegations involved the defendant's repeated touching of the buttocks of an 11-year -old child during a game of air hockey. 

The problem that led to reversal was not found in the evidence.

Rather, the jury foreman was the brother-in-law of an Assistant Commonwealth Attorney who assisted in portions of the case including jury selection. The ACA later recused himself because he had previously represented the defendant. 

The relationship was apparently not disclosed. The judge hurriedly had asked a two-part question about potential jurors relationship to counsel and whether the relationship would affect the jurors ability to serve and got no response.

 The Court of Appeals described the situation

[Foreman] Danhauer was subpoenaed to testify by the defense when the motion was heard on July 13, 2015. Danhauer stated he was en route to the bench in response to the judge's question about having a relationship with [ACA] Williamson, but did an about face, returned to his seat and sat down when [the judge]  rephrased the question to direct potential jurors to come forward if their relationship caused them to be biased. Because Danhauer did not believe his familial relationship with Williamson would influence his decision or his ability to fairly hear the case, he sat down “to expedite the day.”

The court here noted that the ACA "should have been more forthcoming" about the relationship.

It must be a small place. One of the venire that responded to the question and was struck was the defendant's brother-in-law!

Also struck were the prosecutor's cousin and the victim's aunt.

A new trial was promptly sought when, after verdict, defense counsel learned of the situation.

The court noted that there was no evidence of anything less than a cordial relationship between the ACA and the jury foreman.

Rather, "there was no estrangement or fissure in the relationship that would have minimized or diminished the closeness of such kinship."

The Court of Appeals opinion is linked here. 

The Evansville Courier Express reported on the conviction. (Mike Frisch)

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