Tuesday, October 31, 2017

Massachusetts Misconduct Draws Rhode Island Reciprocal Sanction

The Rhode Island Supreme Court imposed the reciprocal sanction of a year and  a day suspension based on an attorney''s misconduct in Massachusetts.

There were two client complaints

In the first case, the respondent represented a Massachusetts resident injured at work in the state of Rhode Island. The client received benefits pursuant to Rhode Island’s Workers’ Compensation Act from his employer. He also had potential claims against other parties liable for his injuries, and his wife also had potential claims of her own for loss of consortium. The respondent provided incompetent representation regarding both his client’s and his client’s wife’s potential claims. He failed to make a claim for loss of consortium or even advise the client’s wife she had a potential claim. He brought a civil action regarding the client’s thirdparty claims in Massachusetts, which lacked jurisdiction to decide those claims. The Massachusetts action was dismissed. The respondent belatedly sought to pursue those claims on his client’s behalf in Rhode Island, but those claims were dismissed as time barred pursuant to the applicable statute of limitations.

Additionally, the respondent made material misrepresentations to his client regarding a settlement offer provided by an insurance carrier. He also engaged in a conflict of interest by requiring his client to release him from his own liability to the client as a condition of receiving a settlement, without advising the client he should consult independent counsel prior to signing the release.

In the second matter, the respondent represented the former husband in a child-custody dispute. The ex-wife was represented by her own counsel. During the course of the representation the respondent made unfounded and deliberately false allegations regarding the ex-wife. She and her attorney filed a complaint against the respondent regarding his conduct with the Board of Bar Overseers. The respondent demanded that a withdrawal of the disciplinary complaint be made as a condition of any settlement of the child custody matter. He further threatened to pursue the false allegations against the ex-wife, sue her for defamation, and file a legal malpractice claim against her attorney unless the disciplinary complaint was withdrawn.

The sanction is identical to the original discipline imposed in Massachusetts. (Mike Fr isch)

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

From Craigslist To Proposed Disbarment

A report and recommendation for disbarment of an Ad Hoc Hearing Committee in the District of Columbia

The essence of this case is allegations that Respondent Leicester B. Stovell violated his ethical obligations to his clients and the legal system. According to Disciplinary Counsel, Respondent failed to competently represent a client; failed to diligently and zealously represent a client; intentionally failed to seek the lawful objectives of two of his clients; did not act with reasonable promptness; intentionally prejudiced a client; failed to effectively communicate with one of his clients; and failed to protect his client’s interests when terminating the representation in two instances. Disciplinary Counsel further alleges that Respondent intentionally or recklessly misappropriated funds; commingled funds; failed to deposit funds into an IOLTA account; and failed to keep complete records of client funds.  Disciplinary Counsel also alleges that Respondent breached his professional obligations by engaging in acts of dishonesty and seriously interfering with the administration of justice. We find that the evidence clearly and convincingly demonstrates that Respondent violated multiple Rules of the District of Columbia Rules of Professional Conduct, including Rule 1.15(a) (intentional misappropriation). As a result, the Ad Hoc Hearing Committee (“Hearing Committee”) recommends that Respondent be disbarred, as no extraordinary mitigating circumstances exist to warrant a lesser sanction. See In re Addams, 579 A.2d 190, 199 (D.C. 1990) (en banc) (disbarment is the presumptive sanction when an attorney “knowingly used his client’s money as if it were his own”).

Respondent made the acquaintance of the four clients at issue in this case through the online services “Legal Match” and “Craigslist” or the client’s own internet search for an attorney. Admitted to practice by the District of Columbia Court of Appeals since 2004, by at least 2013-2014, Respondent had a solo law practice that he ran out of his home and from an office in the District of Columbia. His practice appeared to be quite broad in that, as demonstrated by the four clients at issue in this matter, he handled matters from family court disputes to litigation before the U.S. Supreme Court.

The misappropriation findings involved the use of unearned fees.

Here, Mr. Schrader and Ms. Howard each paid Respondent advance legal fees, and they never authorized Respondent to treat their advances of unearned fees and costs as his own before he earned them. FF 35, 56-57, 70-71. Yet, Respondent deposited Mr. Schrader’s money into his account ending in number 7428 and deposited Ms. Howard’s funds into his account ending in number 6855. FF 33, 67. As explained supra, neither account was “an approved depository and in compliance with the District of Columbia’s Interest on Lawyers’ Trust Account (DC IOLTA) program” as required by Rule 1.15(b). FF 4, 33, 57, 71. Respondent then failed to protect his client funds but, instead, took them before his fees were earned. The record clearly shows that Respondent intended to treat the money he received from Mr. Schrader and Ms. Howard as his own from the moment he received it. Respondent knew he did not have a trust account, deposited the entrusted client funds into checking accounts, and immediately began using the clients’ funds for his own purposes – without regard to whether and how much he had earned.

The case is In re Leicester Stovall and can be accessed at this link. (Mike Frisch)

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

The Letter

A decision of the United States Court of Appeals for the District of Columbia Circuit

Over two decades ago, the Department of Justice sent a proposed termination letter to one of its Assistant United States Attorneys (“the Assistant”) working in the Eastern District of New York (EDNY). The letter alleged a series of professional inadequacies. Appellant Bloomgarden, serving a sentence of life imprisonment without parole, sought a copy of that letter under FOIA.

The Assistant served as lead prosecutor in an investigation of a series of crimes committed by Appellant, leading to several convictions in New York and California.  After Appellant’s FOIA suit, most of the approximately 3,600 pages of exhibits supporting the proposed termination letter were turned over to Appellant – but not the letter itself. The Appellant hopes that the content of the letter will somehow help him in contesting his sentence. The government declined to release the letter pursuant to Exemption 6 of FOIA, which can protect personal privacy. The district court, balancing the public interest against the Assistant’s privacy interest, determined that the latter clearly outweighed the former and therefore granted summary judgment for the government. We affirm. We also reject Appellant’s request that the judgment be modified.

 The assistant apparently had performance issues, according to the district court judge who had reviewed the letter in camera

the letter only described “instances of garden-variety incompetence and insubordination” on the part of a single staff-level attorney, and that “there is little public interest in a single, largely unremarkable disciplinary matter regarding a former AUSA [Assistant] who left government service two decades ago.” This did not outweigh the Assistant’s “strong interest in avoiding the professional embarrassment that disclosure would likely cause.”

Balancing the interests

Even assuming arguendo Appellant is correct that Justice Department prosecutors are particularly powerful government lawyers, and that the public interest in how they are restrained is therefore significant, our examination of the letter in camera reveals only alleged unprofessionalism of a sort in which any junior attorney might engage, not allegations of prosecutorial misconduct or other abuse of a federal prosecutor’s powers.

...Because the Department of Justice has carried its burden of demonstrating that disclosure of the proposed termination letter is “clearly unwarranted” given the privacy interest at stake, and because no grounds exist for modification of the judgment below, we affirm in full.

Senior Circuit Judge Silberman authored the opinion, joined by Circuit Judges Wilkens and Pillard. (Mike Frisch)

 

October 31, 2017 | Permalink | Comments (0)

Monday, October 30, 2017

No Care For The Dead

The Tennessee Court of Appeals held that the state health care liability statute did not apply to the alleged mishandling of a dead body

On July 29, 2014, Charles Ray Phillips (“Deceased”) was killed in a motor vehicle accident in Loudon County, Tennessee. Deceased suffered severe, extensive burns in the accident. Authorities at the accident site placed a call to Loudon County ambulance service and a Rural Metro ambulance responded. After arriving at the scene of the accident and seeing the condition of Deceased’s body, the ambulance employees refused to transport Deceased’s remains to a hospital. Allegedly, one of the ambulance employees stated he did not want Deceased to “stink up the ambulance.” Deceased’s body remained by the roadside until an out-of-county ambulance could be summoned to transport Deceased’s body. Local media reported the story including the comment about stinking up the ambulance.

Deceased’s parents, Cindy Phillips and Hobart Phillips (“Plaintiffs”), sued Rural Metro of Tennessee, L.P.; Rural Metro Corporation; and R/M of Tennessee G.P., Inc. (collectively “Rural Metro”), Johnathan Moore (“Moore”), and John Doe I & II alleging intentional infliction of emotional distress. In their Complaint, Plaintiffs allege: “The conduct of the defendants in this cause of action greatly magnified their grief and distress in a manner that is nearly incomprehensible. In addition to the loss of a child, they were reminded regularly in the news that [Deceased] was left by the roadway so as to not ‘stink up the ambulance.’”

Rural Metro and Moore filed motions to dismiss alleging, among other things, that this suit was one for health care liability and that the failure to file a pre-suit notice and a certificate of good faith pursuant to Tenn. Code Ann. §§ 29-26-121 and -122 was fatal to the action. The Trial Court denied the motion finding, in part, that this is not a health care liability action.

Holding

 We agree with the position that a dead body cannot be a patient to whom health care services can be rendered. By their very nature, health care services are designed to prolong, continue, or enhance life, and a dead body is, obviously, not alive. As such, a body simply cannot be a patient after death has occurred. Therefore, actions taken or refused with regard to a dead body cannot constitute rendering or failing to render health care services to a person for purposes of the Tennessee Health Care Liability Act. Given all this, we affirm that portion of the Trial Court’s judgment holding that the allegations set forth in the Complaint filed in this case do not make this suit a health care liability action as defined by the Tennessee Health Care Liability Act.

(Mike Frisch) 

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

Maryland To Hear Four Bar Admission Cases

The oral argument docket in the Maryland Court of Appeals next week offers a spate of admissions cases.

Monday, November 6, 2017:

Misc. No. 2 In the Matter of the Application of Maso Toussaint Hamilton for Admission to the Bar of Maryland

Attorney for Applicant: Norman Smith

Misc. No. 16 In the Matter of the Application of Mark Andrew Overall for Admission to the Bar of Maryland

Arguing for Applicant: Mark Andrew Overall

Misc. No. 17 In the Matter of the Application of Solon Phillips for Admission to the Bar of Maryland

Arguing for Applicant: Solon Phillips

Misc. No. 18 In the Matter of the Application of Leon A. Maryland for Admission to the Bar of Maryland

Arguing for Applicant: Leon A. Maryland

The last case involves an applicant denied admission in Louisiana.

In November 2009, petitioner applied for admission in the instant matter. The Committee opposes petitioner’s application. Among other issues raised in the Committee’s opposition, it asserts that petitioner engaged in the unauthorized practice of law in the State of Maryland when he entered an appearance as an attorney in a domestic matter pending in the Circuit Court for Prince George’s County, Maryland. As a result, the Maryland Attorney Grievance Commission (“Commission”), the attorney disciplinary agency in Maryland, sought an injunction against petitioner for the unauthorized practice of law. In July 2009, a consent order was issued which, among other things, enjoined petitioner from (1) “engaging in any act constituting the practice of law,” (2) preparing any legal document to be filed with the court, and (3) holding himself out as an attorney and representing clients in any legal matter in Maryland.

(Mike Frisch)

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

Ethics Of Paying Fact Witness At Issue In Florida

From sunEthics

Under Rule 4-3.4(b), fact witnesses may be paid “reasonable compensation” for “preparing for, attending, and testifying at proceedings,” including assistance with case and discovery preparation. [Added 10/30/17]

Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party.  Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement.  Antaramian and the third party settled, with each party dropping its claims.  Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery.  TPI sued Antaramian for breach of contract.

The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part:  “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” 

The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death.  The award included fees for litigating the amount of fees to which Hahn was entitled.  TPI appealed.

The Second DCA affirmed.  “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees.  . . .  However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.”  The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.”  The appeals court declined to rewrite the contract to relieve TPI of its obligation.

The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.”  Antaramian paid more than the statutory $5 per day to fact witnesses.  Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.”  The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses.  “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial.  But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony.  Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.”  (Footnote omitted.)

The court certified the following question to the Florida Supreme Court as one of great public importance:  “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?”   Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 479894

Hat tip! (Mike Frisch)

October 30, 2017 in Current Affairs, Ethics, Interviewing, Law & Society | Permalink | Comments (0)

Sunday, October 29, 2017

Five Firm Partners Charged With Misrepresentations to Bar

The North Carolina State Bar has filed an unusual complaint alleging misconduct on the part of five members of a Durham law firm.

The  investigation began in March 2015 with a random audit of the most junior of the charged attorney's trust account records. The audit revealed a number of issues that led the State Bar to direct that the attorney take "appropriate corrective action." 

When the attorney failed to respond and demonstrate corrective action, a grievance file was opened. Responses were then filed by the attorney.

The attorney met with a State deputy counsel and investigator and promised to provide a three-way reconciliation of the trust account. She allegedly failed to follow through.

While the above inquiry was unfolding, a second firm attorney had a trust account overdraft and failed to demonstrate trust record compliance in responding to the State Bar. 

The State Bar issued a subpoena to four partners of the firm (all charged here) in March 2017. The records received in response appeared to be doctored.

All five charged attorney were directed to respond to the State Bar's continuing concerns. 

Two of the attorneys are alleged to have engaged in record-keeping violations. 

All are charged with diverse misrepresentations in their written responses to the State Bar explaining the earlier responses.  (Mike Frisch)

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

Saturday, October 28, 2017

Trifecta Disbarment For Phony Investment Scheme Misappropriation

An attorney who was disbarred on consent in the District of Columbia and Maryland was reciprcally disbarred by the New Jersey Supreme Court.

From the Disciplinary Review Board report

We glean the facts in this case from both the August 26, 2013 opinion of the United States District Court for the District of Columbia (DCO), filed in connection with a United States Securities and Exchange Commission (SEC) lawsuit against respondent and others, and the June 5, 2015 Joint Petition for Disbarment By  Consent filed with Maryland disciplinary authorities.

In spring 2010, respondent was introduced to a man calling himself "Frank Lorenzo," who was the managing director of the Milan Group, Inc. (Milan), which purported to be a financial investment corporation. "Frank Lorenzo" was actually Frank Pavlico (Pavlico), a felon who had been convicted, in federal court, of laundering the profits of a marijuana-trafficking enterprise. In May 2010, respondent began representing both Pavlico and Milan, and agreed to act as their escrow agent for certain investment transactions. From August 2010 through September 2011, between $1.9 and $2.665 million was deposited into respondent’s attorney trust account on behalf of Milan’s "investors."

On or about November 15, 2011, respondent terminated her representation of both Pavlico and Milan. On November 30, 2011, approximately two weeks later, the SEC filed a civil action against Pavlico, Milan, respondent, her law firm, and others, in connection with the investment transactions for which respondent had represented Pavlico/Milan and had served as escrow agent.

Specifically, the SEC had determined that all of the investment transactions were part of a "Prime Bank" scheme that had defrauded at least thirteen investors of $2.665 million.I The SEC concluded that Pavlico and respondent had "lured investors into the scheme by offering extraordinary returns ranging from 180% to 2400% per year at little or no risk." Respondent claimed that she had no knowledge of "Prime Bank" schemes prior to the SEC’s commencement of the civil action. The SEC countered, however, that respondent was an active participant who, leveraging her status as an attorney, made material misrepresentations to investors regarding the fake investment opportunity, to provide "an aura of legitimacy" to the ruse. Specifically, respondent repeatedly offered validation of the transactions to potential "investors," claiming that she had personally "verified" them, despite never having seen Milan complete a single financial transaction in which "investors" received the promised return on their funds, or even recouped their initial investment. Additionally, respondent misrepresented to potential "investors" that she had known Pavlico for years and had seen him make successful investments, that all investors’ funds would remain, inviolate, in escrow in her attorney trust account, and that she and Pavlico were "working in the best interests of the investors.

The DRB summarized the evidence

The SEC’s investigation concluded that the investments that Pavlico and respondent marketed were wholly fictitious, and that the "investor" funds that respondent escrowed were systematically misappropriated for Pavlico’sand respondent’s personal use. In the joint petition forher consent to disbarment, respondent admitted that her law firm received approximately $416,500 from these funds.

Disbarment here

the record clearly establishes that respondent, in order to aid and abet Pavlico/Milan in duping potential "investors" to participate in the bogus "Prime Bank" scheme, engaged in a pattern of blatant misrepresentation, leveraging her status as an attorney with a trust account to lend authenticity to the ruse. She executed escrow agreements with each investor, whereby they retained her firm as their counsel, thus, creating an attorney-client relationship with each one. Once "investor" funds were received into trust, she immediately and systematically misappropriated those funds, without the authorization of her clients, resulting in the theft of $1.9 to $2.665 million. Whether the funds were technically client funds, under Wilson, or escrow funds, under Hollendonner, is of no moment; under either characterization, she knowingly misappropriated them. For this misconduct, she must be disbarred. In light of our recommendation, we need not address the appropriate discipline for respondent’s additional ethics violations.

The Washington Post had the story of her connection with Real Housewives of Potomac (Maryland). 

Baylor, a mother of four from Potomac, isn’t an official cast member of the Bravo show, but she had a recurring role as a pal of the Potomac clique in the show’s first season. But now she might have to trade in the standard “Real Housewife”-issue Herve Leger for something a little orange-er: The securities-fraud count alone carries a 20-year maximum prison term.

Baylor said she had no comment on the indictment, but earlier this year she described her legal woes as “a nightmare.” Of the SEC’s claims that she used investors’ money for luxury items such as Jimmy Choos? “I’m sorry, I’ve always had nice shoes,” she told us.

(Mike Frisch)

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

Round Two

An oral argument worth watching is set for November 3 in the Maryland Court of Appeals

Misc. No. 5 (2016 T.) In the Matter of The Honorable Pamela J. White

Attorney for Appellant: Andrew Jay Graham
Attorneys for Appellee: Bruce L. Marcus and Julia Doyle Bernhardt

Our prior coverage is linked here

In a matter involving allegations of misconduct against a sitting judge, the Maryland Court of Appeals directed that the Commission on Judicial Disabilities file the record of proceedings leading to a reprimand for the court's limited review

The Commission has the power to reprimand a judge, which it had exercised in the matter.

The court

In this case, we must decide – initially – whether there is any mechanism for this Court to review the fundamental fairness of a proceeding conducted by the Commission on Judicial Disabilities (“Commission”) when the Commission disciplines a judge in the sole manner in which the Constitution authorizes it to do without referring the matter to this Court. We hold that there is such a mechanism – the common law writ of mandamus. Our review in this particular case awaits the provision by the Commission of the record of its proceedings.

The judicial complaint involved a judge-lawyer interaction in a civil case that had led to the judge's recusal.

The judge stated

[B]ecause I am incredulous, because I am in disbelief, because I find myself incapable of believing virtually anything that Mr. Jones has just told me, I’m in the unfamiliar territory of finding that I must recuse myself from any further proceedings in this case because I cannot believe anything that the Reverend Rickey Nelson Jones Esquire – I’m reading off the letterhead – tells me. I think that 99% of what Mr. Jones has told me about his conduct on behalf of his client is pure bullshit[.] So I’m forced to recuse myself and I can’t get past the idea that I cannot believe a darn thing that Mr. Jones tells me now. So I am compelled under … Rule 2.11 [of the Maryland Code of Judicial Conduct] to disqualify myself in any further proceedings in this case, because I now believe based on Mr. Jones’ conduct and representations in this case, in his discussion and exploration of who struck John in recent days about his request for accommodation, all without following the precise instructions and procedures in the Scheduling Order and the website and resources available to him, I find that I cannot be impartial. I am personally biased or prejudiced concerning Mr. Jones and his conduct. So, I’m going to recuse myself.

The court

Notwithstanding her decision to recuse herself from the trial of the Joyner case, Judge White stated that she would preside over the October 31, 2014, hearing regarding the show cause order she had issued because, as she stated, it was her “responsibility to address it.”

Then

Mr. Jones filed multiple complaints concerning Judge White with the Commission beginning on October 20, 2014. Following an investigation, and with the authorization of the Commission, Investigative Counsel filed charges dated March 31, 2016 against Judge White. Investigative Counsel alleged that Judge White had violated various provisions of the Maryland Code of Judicial Conduct. All of the charges concerned Judge White’s conduct during the three hearings in the Joyner case during 2014.

A hearing was held by the Commission and a reprimand imposed.

The judge sought review

The immediate question before us is whether there is any mechanism for us to review Commission proceedings when the Commission determines that a reprimand is the appropriate discipline – a form of discipline that the Constitution authorizes the Commission to impose on its own without referring the matter to us. We hold that there is no constitutional or statutory basis for this Court to exercise appellate jurisdiction to review the Commission’s proceedings. We do have original jurisdiction, however, to conduct a limited review, pursuant to a common law writ of mandamus, of Judge White’s claims that the Commission abused its discretion and deprived her of the procedural due process guaranteed by the State Constitution and Maryland Rules. In order to conduct that review, we direct the Commission to file the record of its proceedings with us. To the extent that Judge White asks for review of matters that preceded the filing of charges, she must submit a written waiver of confidentiality to the Commission.

The court held that an accused judge is entitled to due process but

Our review under a writ of mandamus, however, is limited. The Constitution and our rules provide for the Commission to issue a reprimand without approval or review by this Court. The Commission’s decision to issue a public reprimand is properly classified as a non-ministerial discretionary act that is dependent upon the judgment of the Commission members. Once the Commission has provided an accused judge with the requisite due process, it is entrusted to the Commission’s discretion whether to dismiss the charges, reprimand the judge, or recommend other discipline to us. Thus, a writ of mandamus is not available to review a claim that the Commission erred in concluding that a judge committed sanctionable conduct or in its judgment to reprimand the judge as a result of that conclusion...

In order to carry out the review of Commission proceedings for which we have jurisdiction, we direct the Commission to file the record of the proceedings concerning its charges against Judge White, including that part of its record relating to the pre-charging period for which Judge White waives confidentiality. Once the record has been filed with the Court, the parties shall submit additional briefs and an appropriate record extract, according to a schedule set forth by future order of the Court. Such briefing shall be limited to the question of whether the Commission proceedings failed to comply with the Constitution and Maryland Rules and, if so, whether any such failure affected the fundamental fairness of the proceeding.

The charges filed against the judge are linked here.

The oral argument before the Court of Appeals is linked here.

The judge's alma mater Washington & Lee noted that she was named Maryland Judge of the Year in 2014. 

(Mike Frisch)

October 28, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Disbarred For Violation Of Criminal Probation

A tri-county hearing panel order of disbarment from  the Michigan Attorney Disciplinary Board

Respondent pled guilty to a probation violation of her March 2016 conviction of operating a vehicle with the presence of a controlled substance, and operating under the influence of liquor, per se, 3rd offense, in People of the State of Michigan v Susan Gail Graham, 57th Circuit Court Case No. 15-004271-FH-P; and her conviction to the charges of Prisoner Possessing Contraband, contrary to MCl 801.2632 and Habitual Offender (4th offense), contrary to MCl 769.12, in People of the State of Michigan v Susan Gail Graham, 57th Circuit Court Case No. 16-004435-FH-P. In accordance with MCR 9.120(8)(1), respondent's license to practice law in Michigan was automatically suspended effective December 20,2016, the date of respondent's felony conviction. The panel found that respondent committed professional misconduct that violated criminal laws of this state, contrary to MCR 9.104(5).

Petoskey News-Review reported on the crime.

According to court documents, the conviction stems from an incident that took place in Harbor Springs in July 2015. According to a Harbor Springs Police Department affidavit filed in the case, officers pulled Graham's vehicle over on Main Street near Gardner Street after another driver called 9-1-1 reporting a vehicle matching the description of Graham's "driving all over the road" and nearly hitting the caller's vehicle from behind.

Police said when they stopped Graham she had watery, bloodshot eyes with fixed pupils and that she had balance problems when the officers conducted a field sobriety test. Police said Graham admitted having smoked marijuana before driving and that they found a glass smoking pipe and an empty syringe in the car she was driving.

Blood tests found the presence of THC (the active ingredient in marijuana) and amphetamine in Graham's system at the time of her arrest, according to the affidavit.

Graham has prior convictions for driving while intoxicated in 2002 and 2011 and convictions for attempted resisting and obstructing police, possession of marijuana and use of a controlled substance in 2011, all in Emmet County. She is also still on probation for a 2014 conviction of maintaining a drug house in 13th Circuit Court in Traverse City.

And also reported on the probation violation

In March, Graham pleaded guilty to the drugged driving charge as part of a plea agreement with the Emmet County Prosecuting Attorney’s Office and was sentenced to a year in jail and five years probation. However, on Oct. 27, after being out of the jail on work release for the day, she returned to the jail intoxicated, registering a 0.167 percent blood alcohol content on the jail’s breath test equipment.

 On Dec. 20, Graham pleaded guilty to the prisoner in possession of contraband charge stemming from the October incident, which also resulted in her being charged with violating her probation on the drugged driving conviction from March.

In the instance of a probation violation, the judge has the option of reconsidering the original sentence in the case and re-sentencing the defendant up to the statutory maximum of the underlying offense. In this case, what had been a county jail term, became a state prison term. Graham will get credit for 290 days she’s already served on the earlier conviction.

Because the more recent prisoner in possession of contraband happened while Graham was in jail, it was mandatory that the sentence for the more recent conviction be served consecutively to the sentence for the earlier crime.

When her opportunity to speak came during Tuesday’s sentencing hearing, Graham said apologized for her actions and said that no one is more frustrated her situation than she is.

“I have so much remorse and regret,” Graham said. “It’s not for myself. It’s for my (family). They stand behind me … I can live with the consequences of my actions, but it’s the effect on others that I regret the most.”

 Graham said she is hopeful that her newfound faith while in jail will help her become a productive member of society and stay committed to sobriety after she gets out of prison.

“Without that I’m going to wind up right back here, and I’m going to wind up in prison for the rest of my life,” she said.

Before sentencing Graham, Judge Johnson noted that he is very familiar with Graham from her time working as an attorney in the area. He said, “It’s the court’s perspective that it’s very sad and tragic that her life has taken the turn that it has.” He described Graham as “smart” and “very intelligent,” but noted that she has struggled with substance abuse for a long time and has been afforded many opportunities to deal with her addictions and been granted leniency in her previous court cases.

Judge Johnson said his sentence is was intended not only to serve as punishment to Graham, but also as a deterrent to others who might consider taking abusing the privilege of work release while in jail.

(Mike Frisch)

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

Conversion Of Bankruptcy Payments Alleged

The Illinois Administrator has filed a complaint alleging that husband and wife law partners converted funds ordered to be paid their client out of a bankruptcy estate

Beginning in at least 2001, Respondent Coston and Respondent Rademacher practiced law as partners in the Chicago law firm of Coston and Rademacher, P.C., which represented asset-based lenders and equipment financing companies. Respondents renamed the firm Coston and Coston LLC in 2004, and remained law partners in that firm until it dissolved in August 2014. Respondents were married in 1997, and Respondent Rademacher also used her married name, Coston. In October 2014, Respondent Rademacher set up her own law practice, and incorporated her firm as Rademacher, Inc.

In or around July 2009, Respondents and Associates Asset Management ("AAM") agreed that Respondents would represent AAM in various consumer debt collection and bankruptcy proceedings in Illinois. AAM engaged in debt collections relating to consumer receivables, including mortgage debt.

In July 2009, Respondents and AAM agreed that Respondents would accrue 30% of any amounts recovered by Respondents on behalf of AAM in the proceedings. Respondents agreed to send the remaining 70% of the amounts they recovered to AAM on a monthly basis...

On October 13, 2010, Judge Cox entered an order in the Menard matter confirming an August 10, 2010 Chapter 13 plan, as modified by an amendment filed on October 13, 2010. The confirmed plan provided for AAM to recover on its $110,177.26 claim, which would be paid through the bankruptcy estate.

The complaint alleges that the attorneys received 20 checks on behalf of the client, failed to advise the client that the checks had been received and converted the proceeds.

One is charged with false statements to the client

Respondent Rademacher periodically provided status reports to AAM that purported to report upon the collection matters that Respondents were handling. The reports identified the name of the account, the case number, the status of the matter, the next actions that Respondents planned to take, and the costs associated with each matter.

No earlier than August 29, 2012, Respondent Rademacher sent a status report to AAM that purported to report upon the status of the AAM matters. For the Menard matter, Respondent Rademacher reported as the status that "[w]e will receive a small percentage from the BK at some point," and that the next step was to "[m]onitor BK payments."

Respondent Rademacher's statements in the report provided to AAM, that AAM would receive payments relating to the Menard bankruptcy at some point in the future and that the next action would be to monitor those payments, were false because, as of August 29, 2012, Respondents had already received 14 checks from the trustee in the Menard matter totaling $6,492.25.

A third count charges both attorneys with misconduct in securing a mutual release in a matter in which the firm and AAM were sued as co-dfendants by a debtor. (Mike Frisch)

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

Friday, October 27, 2017

The Sleeping Jurors

The Massachusetts Supreme Judicial Court held that a defendant met his burden of showing that the judge's response to reports of sleeping jurors was arbitrary or unreasonable

Villalobos has met his burden. Indeed, this case is much like McGhee, in which we determined that the judge's failure to intervene gave rise to "serious doubt that the defendant received the fair trial to which he [was] constitutionally entitled." McGhee, 470 Mass. at 645, quoting Commonwealth v. Braun, 74 Mass. App. Ct. 904, 906 (2009). As the Appeals Court explained, during Villalobos's trial, the prosecutor reported one day that one juror "had fallen asleep 'several times' during the testimony," and the next day, that a different juror "was sound asleep during the cross-examinations." Villalobos, 89 Mass. App. Ct. 435-436. The judge, who did not have the benefit of McGhee, did not give any indication that he doubted the reliability of the prosecutor's reports, yet he did not question the jurors to determine whether they had in fact fallen asleep and, if so, what portions of the evidence they might have missed. Instead, the judge simply observed each juror for the rest of the day. Id. Similarly, in McGhee, supra at 642-645, one juror reported that another juror had fallen "sound asleep" and was even snoring, but the trial judge declined to take action.

Moreover, like in McGhee, the trial judge appears to have been under the mistaken impression that he could not intervene unless he personally observed a juror sleeping...

The Commonwealth argues that the sleeping jurors missed minimal and relatively inconsequential portions of the testimony. Based on only the record before us, however, we cannot be sure that this is true. The purpose of a voir dire is to investigate the report that one or more jurors were sleeping and to determine what, if anything, the sleeping jurors missed. Because the judge did not conduct a voir dire, we do not have these essential findings.

The conviction was for a lesser charged offense of involuntary manslaughter. (Mike Frisch)

October 27, 2017 in Current Affairs | Permalink | Comments (0)

In Time For Halloween

The Tennessee Court of Appeals dismissed an appeal due to a deficient brief

Ana Tania Gomez and Joaquin Gomez, citizens and residents of Mexico, are the appellants in this matter. Appellants filed a complaint against ten individuals and business entities in the chancery court of Sevier County, asserting numerous claims arising out of their involvement with a business that operated a dinner show in Pigeon Forge, Tennessee. The complaint stated that it was an action for declaratory judgment, to quiet title, for breach of contract, for violations of the Tennessee Business Corporation Act, Tenn. Code Ann. § 48-11-101, et seq., for violations of the Tennessee Nonprofit Corporation Act, Tenn. Code Ann. § 48-51-101, et seq., to pierce the corporate veil, and for fraud and misrepresentation, civil conspiracy, and unjust enrichment.

After a two day bench trial, the trial court entered an order ruling in favor of the defendants on all claims and dismissing the complaint filed by Appellants. Appellants timely filed a notice of appeal.

But

The brief filed on behalf of Appellants does not contain an argument section separately addressing each of these three issues. After reciting the facts, it simply recites the abuse of discretion standard and summarily declares, “Defendants clearly violated T.C.A. Section 61-1-404 et seq., General Standards of partner’s conduct.” The brief contains no other citation to legal authority, and it does not specify which portions of Tennessee Code Annotated section 61-1-404 (or the following sections) should apply to the conduct of the ten defendants...

Because Appellants failed to construct more than a skeletal argument in support of their issues on appeal, we deemed them waived.

(Mike Frisch)

October 27, 2017 | Permalink | Comments (0)

Reprimand For False Discount Letter

A reprimand has been imposed by the New Jersey Supreme Court based on a conviction for filing a false instrument.

The Disciplinary Review Board reported

During his plea allocution before Judge Ross, respondent admitted that, on March 2, 2009, while First Deputy General Counsel for the Port Authority of New York and New Jersey (the Port Authority), he filed a letter containing false information with his supervisor, Darrell Buchbinder, who was General Counsel to the Port Authority. Specifically, the letter falsely represented that Weil, Gotshal & Manges LLP (Weil), a law firm retained by the Port Authority in 2007, would be providing its services to the Port Authority at a fifteen percent discount. Respondent admitted to investigators for the New York District Attorney’s Office that he had fabricated the letter; that Weil had never agreed to discount its legal services to the Port Authority; and that he filed the letter with his supervisor to give the appearance that the Port Authority was receiving a discount that respondent knew it was not receiving.

The board observed that the conviction was conclusive proof in rejecting contrary claims but noted

the Inspector General’s claim that the Port Authority was unable to realize a nearly $7.5 million discount on Weil’s legal fees is contrary to the language in the very documents underlying the Port Authority’s retention of Weil. Those documents evidenced no such discount, unaddressed by the Inspector General a fact conspicuously in his letter to disciplinary authorities. Also left unaddressed was the language contained within the four corners of the retainer agreement between Weil and the Port Authority and within Buchbinder’s representations, contained in his confidential memorandum to the Executive Director, which were made two years before respondent fabricated the discount letter for the Port Authority’s files. The Inspector General’s letter was sent within days of respondent’s guilty plea, and prior to Buchbinder’s resignation from the Port Authority. Respondent suggests that Buchbinder was attempting to make respondent the scapegoat for Buchbinder’s own dishonest actions. Although Buchbinder’s motives may be questionable, prompting some sympathy toward respondent on our part, the fact remains that respondent engaged in dishonest, unethical conduct.

...we may consider "mitigating factors such as respondent’s reputation, his prior trustworthy conduct, and general good conduct." Respondent has submitted numerous character letters that can be described as truly exceptional, and warrant the finding of compelling mitigation. In further mitigation, respondent entered a guilty plea acknowledging his criminal conduct, which occurred over seven years ago. Moreover, respondent has no disciplinary history after over 30 years at the bar.

The DRB discusses the applicable sanction precedents at length. (Mike Frisch) 

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

No Support Order

A contested hearing led to a public reprimand with terms of an "experienced family law" attorney by the Virginia State Bar Disciplinary Board.

The case was tangentially related to a high-profile case involving another Virginia lawyer

On August 23, 2013, Myrna Pride, a minor at the time, was discovered in the home of Mr. Joseph D. Morrissey. Morrissey entered an Alford plea to a misdemeanor charge of contributing to the delinquency of a minor (Ms. Pride) on December 12, 2014.

Approximately two weeks after the incident at Mr. Morrissey’s house, the Respondent undertook to represent Myrna Pride, in a matter related to a “press conference regarding Joseph Morrissey and matters in Henrico County stemming from this relationship.”

Sometime after the Respondent’s representation of Ms. Pride began, Respondent also agreed to represent Ms. Pride and her mother, Deidre Warren, on a financial matter against Ms. Pride’s father, Mr. Coleman Pride. Ms. Warren testified that she retained the Respondent to pursue the matter of “child support arrears.”

Respondent sent letters to Mr. Pride claiming that he had failed to pay child support to Ms. Warren in violation of a 2006 child support order entered in `Chesterfield County Juvenile and Domestic Relations District Court.

No order of child support was entered against Mr. Pride in the Chesterfield County Juvenile and Domestic Relations Court.

Respondent testified that she believed that there was a child support order based on approximately 40 pages of documents Ms. Warren gave her and based on what Ms. Warren told her.

On or about May 7, 2014, Respondent provided Mr. Morrissey’s attorneys with some of the documents she had received from Ms. Warren (the “writing”) including the pages that were subsequently submitted to the court at Mr. Morrissey’s Alford plea hearing.

Respondent testified that she prepared a Show Cause alleging that Mr. Pride had violated a Court Order when he failed to make the payments but that she did not file the pleading after she learned from the clerk of court that no such order existed.

Respondent admitted that she erroneously characterized the writing embodying the parties’ alleged agreement as a “Child Support Order” when she prepared correspondence to Mr. Pride demanding payment.

Respondent testified that, after learning that no child support order existed, she filed, on June 3, 2014, a civil matter against Mr. Pride for breach of contract. This case was later nonsuited.

In December 2014, at Mr. Morrissey’s Alford plea hearing, his attorneys offered a purported child support order into evidence consisting of two unrelated pages drawn from the documents Respondent had previously furnished to Morrissey’s team.

The Board finds that a family law attorney having the legal knowledge, skill and preparation necessary for the representation in this case should have recognized that the writing was not a Child Support Order and would not have made representations to the contrary to an opposing party or an attorney.

The Richmond Times-Dispatch reported on a state bar investigation of the Morrissey - Pride relationship. (Mike Frisch)

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

Thursday, October 26, 2017

Window Shopping

The New York Appellate Division for the First Judicial Department has suspended an attorney who failed to respond to allegations of improper solicitation.

The Committee's investigation commenced after receiving a complaint on August 17, 2015 from a client alleging that respondent represented her in a Civil Court, Bronx County action and he failed to communicate with her and neglected her legal matter. The Committee received a complaint on December 1, 2015 from another client, a resident of Trinidad, alleging that he had retained respondent to represent him in a civil action in Bronx County and he had neglected the matter and failed to communicate with him.

Both complainants also alleged that they retained respondent when he approached them by the clerk's "window" at the Bronx courthouse, after he asked them about the facts of their cases and offered his legal services.

Respondent submitted answers to each complaint in which he denied the allegations, however, he did not expressly address the allegations of in-person solicitation; nor did he deny it. At the conclusion of its investigation, the Committee determined to ask respondent to clearly address whether he engaged in solicitation of the complainants in person.

He failed to respond thereafter

Given respondent's failure to respond to the Committee's numerous letters and voicemail messages seeking he address the allegations of in-person solicitation, his failure to appear for an examination under oath pursuant to judicial subpoena, and his failure to respond to this motion, respondent's suspension from the practice of law on an interim basis during the pendency of an investigation or proceeding and until further order of the Court is warranted.

(Mike Frisch)

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

Disbarment Affirmed

The Massachusetts Supreme Judicial Court affirmed the disbarment order of a single justice

A single justice of this court ordered that the respondent, William P. Corbett, Jr., be disbarred from the practice of law for conduct including intentional conversion of funds belonging to two clients, causing deprivation for both. The respondent concedes that his conduct violated the rules of professional conduct applicable to attorneys; he appeals only the sanction imposed as being too harsh.  We affirm...

In this case, the ethical violations to which the respondent has admitted were serious. Among other things, he admitted to three counts of intentional misappropriation of client funds with temporary deprivation resulting. First, he misused approximately $36,085.93 belonging to one client, which had been withheld from the settlement of a portion of her claims for the purpose of covering anticipated future litigation expenses. The respondent instead spent the money on matters unrelated to the client.

Second, after settling a second portion of the same client's claims, the respondent deposited a $50,000 settlement check into his trust account, withdrew his fee without notifying the client or providing her with an accounting, and then misappropriated nearly all of the remaining balance. After giving false explanations for his delay in sending her the settlement proceeds, the respondent sent the client a check, which was dishonored by the bank because of insufficient funds. It was not until after the client filed a complaint with bar counsel, and six months after bar counsel filed her petition for discipline, that the respondent repaid the client the funds due to her, plus interest.

Third, the respondent intentionally misused, for personal purposes, not less than $5,800 from the proceeds of a second client's settlement to repay the funds he misappropriated from the first client. About two months before his disciplinary hearing, the respondent repaid the second client. At the time of the hearing, he had not complied with the second client's request that his files be returned to him.

The full court found no mitigating factors that merited a lesser sanction. (Mike Frisch)

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

Attorney Reinstated; Software Savvy Not Required

The District of Columbia Court of Appeals has reinstated with conditions an attorney suspended with fitness

The attorney's disciplinary record

 As the Hearing Committee found, the foregoing instances of misconduct “involved a consistent pattern of neglect, including the failure to communicate with clients and to comply with multiple court orders, and two instances of conflict of interest.” As the Hearing Committee also noted, Mr. Mance has a history of discipline by this court, having received informal admonitions in 1996 and 2000, a thirty-day stayed suspension in 2005, and a public censure in 2009. The 1996 and 2000 informal admonitions were for failing to provide a written retainer agreement as required by Rule 1.15 (b). See In re Mance, 980 A.2d 1196, 1208 (D.C. 2009). The 2005 stayed suspension and period of probation were for Mr. Mance’s filing of an untimely notice of appeal in his client’s criminal case, neglect in failing to pursue a claim that some of the offenses of which the client was convicted merged, failing to communicate with the client about the appeal, and delay in withdrawing from the case after learning that the client sought to terminate his engagement. In re Mance, 869 A.2d 339, 340 (D.C. 2005). We accepted, as supported by substantial evidence, the Board on Professional Responsibility (the “Board”) finding attributing Mr. Mance’s violations to his “overwhelming case load at the time of the events at issue.” Id. at 342 (internal quotation marks omitted). 

This court imposed the 2009 public censure in an opinion in which we held that “for purposes of Rule 1.15 (d), money paid by a client as a flat fee for legal services remains the client’s property, and counsel may not treat any portion of the money otherwise until it is earned, unless the client has agreed otherwise.” In re Mance, 980 A.2d at 1199. We determined to apply that interpretation only prospectively, however, and we adopted the Board’s recommendation that Mr. Mance receive a public censure for having commingled funds when he placed into his operating account a portion of a flat fee a client had paid to him, causing a delay in returning the funds when the client terminated his services, “because he did not have the funds readily available.” Id. at 1199-200. Mr. Mance also received a public censure in Maryland as reciprocal discipline, and, in 1979, received a private reprimand in South Carolina for failing to perfect an appeal.

The hearing committee had recommended that the petition be denied

In the end, the Hearing Committee recommended against reinstatement because of Mr. Mance’s failure to show that he has taken “concrete steps necessary to avoid similar misconduct in the future” — more specifically, his failure to show “that he understands and is prepared to implement the case management techniques necessary to control his caseload and avoid future misconduct” and his “fail[ure] to demonstrate that he fully grasps the root causes of his misconduct and has taken concrete steps to address it by, for example, taking the courses or training necessary to establish his proficiency in case management.” Mr. Mance’s failure to demonstrate his proficiency in case management left the Hearing Committee with “a substantial question as to whether he will actually be able to” “install case management software programs and use them in his practice.” The Hearing Committee also found that Mr. Mance “failed to explain with any specificity how he intend[s] to manage his case load, communicate with his clients, or calendar cases so that he can respond to court orders and schedules and meet filing deadlines.”

We are loathe to premise our decision on reinstatement on whether Mr. Mance has demonstrated proficiency in using case management software programs.  In the years before such software programs were available, many an attorney effectively practiced law using an old-fashioned system of keeping up with case deadlines and court dates. We think the record in this case shows that the root problem for Mr. Mance — which we think the record shows he does grasp — was that he fell into the pattern of taking on too many cases, with the result that, in his words, he had “more on [his] plate than [he] could handle.” He told the Hearing Committee that the “Number 1” step he needed to take is “keeping [his] case load under control.” He testified, “I just have to be more careful[,] from the day a client comes in, to discussing the case[,] to determin[ing]whether it’s something that I feel I can handle effectively.” He explained repeatedly that “when new cases come in, I need to find out more about what it’s going to require [from] me to handle it, to find out whether it’s something -- based on what I already have in-house[,] . . . that I can handle effectively,” rather than take on all cases that come in the door to indulge what he agreed was his “problem saying no to people.” He explained that previously, it was not until he “got in the middle of [matters]” that he realized he “couldn’t do them [e]ffectively.” These explanations ring true in light of the Board’s previous finding that Mr. Mance’s neglect of client matters resulted from his “overwhelming case load.” In re Mance, 869 A.2d at 342 (internal quotation marks omitted). Mr. Mance also recognized that, to remedy the things in which he was deficient, he will need to “set[] aside time at some point in the day, whether it’s mid-day, whether it’s at the end of the day[,] to communicate with clients who’ve been trying to reach [him]” and to “return phone calls on a daily basis.” His statements that “there needs to be certain times of day that [he] do[es] certain things” and that he would need to “not get[] [him]self in a situation[] where [he has] more cases tha[n he] can handle appropriately” sum up his plan for assuring that his misconduct will not repeat itself if he is reinstated. Of course, only if he resumes practice will we be able to tell whether Mr. Mance is able to responsibly reduce his previous caseload.

Disciplinary counsel had opposed reinstatement with conditions

In this case, we conclude, much as we did with respect to Mr. Sabo, that Mr. Mance is fit to be reinstated to the practice of law but that the conditions we have determined to impose “will aid [him] as he restarts his legal career.” Sabo, 49 A.3d at 1233. We accept Mr. Mance’s representation that he will take steps to control his caseload, but we think the financial pressures of maintaining a solo practice are great enough that conditions on reinstatement are appropriate to reduce the possibility that he will commit future disciplinary violations of the kind for which he was suspended. No doubt it will also be helpful for Mr. Mance to have the support of case management resources (both software and personnel resources) that group practice or employment by a law firm may bring with it, since the record establishes that he is not adept at using case management software himself and that, in the near-term, he may be unable as a solo practitioner to afford to hire the support staff he would need to utilize such a system effectively.

To be clear, we do not conclude that these things are necessary for Mr. Mance to be fit to practice; indeed, if he takes on a very small caseload (which perhaps he will do since he will have his Social Security income as a supplement to income from law practice), it should be possible for him to adhere to deadlines and be available to clients using an old-fashioned tickler system even without sophisticated case management software. But we are persuaded that these things would aid him as he resumes the practice of law.

Associate Judge Thompson authored the opinion. (Mike Frisch)

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

Wednesday, October 25, 2017

Wireless

The New York Appellate Division for the Second Judicial Department disbarred an attorney convicted of mail fraud

Pursuant to the underlying plea agreement, the respondent acknowledged, inter alia, that the following facts were true:

“(A) Between 1996 and 1999, I, as General Counsel of U.S. Wireless Corporation, and my colleague Oliver Hilsenrath, who was CEO, assumed control of several shell corporations in the British Virgin Islands. We intended and agreed to use these corporations to receive stock options and shares that we planned to misappropriate from our employer without proper authorization or disclosure and without adequate consideration.

“(B)As part of this scheme and plan to defraudU.S.Wireless, I knowingly caused the company to issue by mail 130,520 shares of its stock to one of my shell corporations, IDS Telecom Investment Group, on December 31, 1999. Specifically, Hilsenrath and I signed and sent a letter to U. S.Wireless’s transfer agent, Continental Stock Transfer & Trust Company, in which we falsely stated that IDS Telecom had purchased these shares upon the exercise of options and requested Continental Stock issue, countersign, and register a certificate for 130,520 shares of original issueU.S.Wireless common stock. In reliance on this false representation, Continental Stock mailed by Federal Express a stock certificate for 130,520 shares from its offices in New York, New York to IDS Telecom at my attention at U.S.Wireless in San Ramon, California. During the same course of conduct and as part of a common scheme and plan to defraud U.S. Wireless, in 1999, I caused U.S. Wireless to issue through similar misrepresentations and via the mails, stock certificates to several other shell corporations under my sole or joint control, including Biskara Limited, Craiglands Limited, Eldoret Limited (aka MSD Investment Advisors, Inc.), and Silicon Valley Investment Partners, and to Borazon Limited, a shell corporation that I understand was under Hilsenrath’s control.

“(C) I agree that I am responsible for all losses resulting from my scheme to defraud. I understand that the government calculates the loss value to the company associated with the issuance of these shares as . . . $5,321,634.76.”

In the bar case

During his testimony, the respondent admitted that he made mistakes, and largely attributed his misconduct to his failure to disclose offshore holdings in filings. The respondent further testified that the conviction has been difficult on him and his family, and he has tried to be a “good citizen.” Concerning the respondent’s failure to report his conviction to this Court, although the respondent testified that he was uncertain whether he was aware of such obligation, he admitted that, as an attorney, he should have known. However, he had gone through six years of controversy and litigation, and wanted to move past all of the negativity.

There was mitigation but

Notwithstanding the foregoing evidence in mitigation, the record demonstrates that the respondent admitted that for a period of approximately three years, while serving as General Counsel of U.S.Wireless Corporation, he knowingly engaged in a scheme to defraud his employer and planned to misappropriate stock options and shares through the use of shell corporations. He made false representations to the stock transfer agent, which resulted, inter alia, in the issuance of 130,520 shares of original issue U.S. Wireless common stock. The respondent admitted that he knew he had crossed the line, and that his conduct was wrong. Clearly, the respondent was not a “minor player” in this fraudulent scheme, and his deceptive conduct resulted in a loss value to U.S. Wireless in excess of $5.3 million.

While the respondent requests that no further discipline be imposed, in part, given the passage of time since his conviction, we find that the remoteness of the offense to this proceeding is a direct result of the respondent’s failure to honor his obligation under Judiciary Law § 90(4)(c), and timely report his conviction. Indeed, some 13 years passed before the respondent’s conviction came to this Court’s attention, and there is no indication in this record that the notice was of the respondent’s own initiative. Instead of notifying this Court of his conviction, the respondent certified his “retirement” with the Office of Court Administration, and continued to do so through By failing to report his conviction, the respondent evaded disciplinary consequences for his criminal conviction until this late date, which we find is an aggravating factor in determining the appropriate sanction to impose.

Disbarment. (Mike Frisch)

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

Tuesday, October 24, 2017

DUI Enroute To Hearing And Concrete Misrepresentations Draw Idaho Sanctions

A withheld nine-month suspension was imposed by the Idaho Supreme Court

In March 2017, Mr. Lyksett was cited for misdemeanor driving under the influence (“DUI”) after he was involved in a collision while driving to a client’s Social Security hearing in Spokane, Washington. In June 2017, the Whitman County District Court entered an Order Deferring Prosecution, placing Mr. Lyksett on probation for not less than five years and providing that the DUI charge would be dismissed three years after his successful completion of a two-year treatment program.

The Disciplinary Order provides that Mr. Lyksett’s nine (9) month suspension is withheld subject to the terms and conditions of his disciplinary probation through June 23, 2022. Those terms and conditions include a program of random urinalysis and avoidance of any alcohol or drug-related criminal acts or traffic violations. If Mr. Lyksett tests positive for alcohol or other tested substances, misses a random urinalysis test without prior approval, admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for conduct during his probation, or violates any other term or condition of his probation, the entire withheld suspension shall be imposed.

The Idaho State Bar Professional Conduct Board imposed a public reprimand in an unrelated matter

The Professional Conduct Board’s Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding in which Mr. Godfrey admitted that his conduct violated Idaho Rule of Professional Conduct 7.1 [Communications Concerning a Lawyer’s Services].

This disciplinary case related to Mr. Godfrey’s communications with Boise homeowners about their concrete foundations and his request to test those foundations. Mr. Godfrey visited multiple homeowners at their houses and misinformed them that he represented another homeowner in their neighborhood whose foundation was purportedly defective. Although some of the homeowners granted Mr. Godfrey’s request to test their foundations, no homeowners retained Mr. Godfrey and no litigation resulted from any alleged defects in the homeowners’ foundations.

 (Mike Frisch)

October 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)