Thursday, November 30, 2017

Suspension Imposed But Reinstatement Not Conditioned On Passing Bar Exam

The New York Appellate Division for the First Judicial Department declined to adopt one aspect of a referee's recommendation in a bar discipline matter.

In November 2016, the Attorney Grievance Committee (the Committee) brought 20 charges against respondent, stemming from its investigation of notices from the Lawyers' Fund for Client Protection that a check and an electronic debit drawn against respondent's IOLA account were dishonored due to insufficient funds. As part of its investigation, the Committee repeatedly requested that respondent produce his personal and business income tax returns for the 2010 through 2013 tax years and also served him with a judicial subpoena directing him to produce them. He failed to produce the requested documents. As a result, this Court granted the Committee's motion for respondent's interim suspension (149 AD3d 65 [1st Dept 2017]).

Respondent did not file an answer to the charges. He appeared at a hearing held in February 2017 and testified, but did not produce other witnesses or any exhibits. Following the hearing, the Referee sustained all 20 charges, finding, in summary, that respondent had failed to pay $48,284.42 in child support and failed to turn over his tax returns as requested, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(d) and (h); misused his IOLA account in violation of rules 1.15(a), (b)(1), (d)(2), and (e); and shown incompetence and a lack of candor in three client matters in violation of rules 1.1(a), 1.3(a) and (b), 1.8(e), and 8.4(c). His misconduct in regard to client matters resulted in one client being barred from pursuing a claim against the City of New York and the New York City Police Department; another client being barred from pursuing a discrimination claim against his employer; and a third losing her right to appeal from termination of her parental rights, leading to the adoption of her child.

The Referee found that respondent offered no mitigation, showed no remorse and offered no assurance that he intended to make any effort to improve his legal practice.

As a sanction, the Referee recommended that respondent be suspended from the practice of law for four years, and "be required to retake the New York Bar examination as part of any reapplication to practice law in New York," noting that "[r]espondent has demonstrated a frightful lack of knowledge of New York practice and law."

Four years, yes; bar exam, no.

We decline to grant the Committee's request that his reinstatement be conditioned upon his retaking and passing the New York State Bar Examination.

(Mike Frisch)

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

The Action Packed Expense Account

The Nevada Supreme Court imposed a suspension of five years and a day for misconduct described by the court majority

for approximately four years, Cohen sought and obtained reimbursement for expenses that he did not actually incur during the course of representing an insurance client. Specifically, Cohen repeatedly made false entries on expense forms, allowed his insurance client to be billed for and pay those false charges, and accepted the fraudulent reimbursement funds totaling $214,345 from his firm. By falsely representing to his client and his firm that he was owed the reimbursements, he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. We therefore conclude that clear and convincing evidence supports the panel's findings that Cohen violated RPC 4.1 and RPC 8.4...

The hearing panel found four aggravating circumstances (dishonest or selfish motive, a pattern of misconduct, substantial experience in the practice of law, and illegal conduct) and five mitigating circumstances (absence of a prior disciplinary record, personal or emotional problems, full and free disclosure or cooperative attitude toward the proceeding, character or reputation, and interim rehabilitation), all of which are supported by the record. In light of the mitigating circumstances, we conclude that a suspension of five years and one day is appropriate and sufficient to serve the purpose of attorney discipline—to protect the public, the courts, and the legal profession.

Justices Hardesty and Stiglich dissented

We do not agree that suspension is an adequate discipline for Cohen's violations. Over the course of five years, Cohen intentionally and repeatedly stole more than $200,000 by submitting false expense forms to his firm and billing his client for reimbursement of expenses he did not incur. Before this fraudulent scheme was discovered, partners at his law firm learned that he was padding his billable hours on flat-fee cases to make it appear that he had worked more hours than he actually had. Though this was a fireable offense, the partners allowed him to continue working at the firm after he expressed remorse and vowed never to deceive them again. Yet, despite this promise and second chance, Cohen continued to lie to his partners and to his client about his expenses and submit false requests for reimbursements for several more years. At the disciplinary hearing, Cohen minimized the seriousness of his conduct by stating that it did not hinder the administration of justice and neither the client nor the law firm suffered any loss, as the firm reimbursed the client and was itself insured for the amount stolen by Cohen. Cohen himself had not made any attempt to pay back the money he stole. Cohen also appeared to blame his overbilling and theft in part on his law firm's culture and lack of oversight. Given the egregiousness of his misconduct, his violation of fiduciary duties owed to his firm and to his client, and the numerous aggravating factors, including a dishonest or selfish motive and a pattern of misconduct, we believe disbarment is necessary to protect the public and the legal profession. Even considering the mitigating circumstances, we cannot conclude that Cohen's conduct warrants any discipline other than disbarment.

The case is Discipline of Nelson Cohen.  (Mike Frisch)

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

Sex Drugs And Unauthorized Practice

An attorney who was arrested in September 2009 when a law enforcement officer "observed [her] exiting a vehicle with a needle sticking out of her forearm and observed blood tricking down her arm" and thereafter was a fugitive from the charges should be disbarred, according to a recent recommendation of a Louisiana Hearing Committee.

There were also a speeding charge in 2010 and a drug related arrest in 2013. She failed to appear in both matters.

She practiced after her 2010 administrative suspension. 

Finally, during the course of her representation of a husband and wife in their corporate farming business, she had sexual relations with the husband and "introduced him into the drug culture in which [she] was engaged."

This led to the husband's "acrimonious" divorce. 

The attorney defaulted on the disciplinary charges. (Mike Frisch)

 

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

New Bar Admission Rules Adopted In Florida

New rules adopted by Florida Florida Supreme Court for bar admission

In its petition, the Board explains that it is developing an applicant portal to allow all communications between the Board and applicants for admission to The Florida Bar to be done electronically. Thus, under rule 3-14 as amended, in lieu of a notarized paper copy of the bar application, an e-signature is required and the jurat on the application is modified to reflect this. Further, rule 3-14.1 (Filed as an Applicant) and rule 3-14.2 (Filed as a Registrant) are amended to delete the requirement that the bar application be “sworn,” and rule 3-14.1(f) is amended to require, instead of an “affidavit . . . attesting that the applicant has read Chapter 4, Rules of Professional Conduct, and Chapter 5, Rules Regulating Trust Accounts,” an online form “acknowledgement of compliance . . . declaring” the same. The name of this form is changed to “Acknowledgement of Compliance,” and the statement therein is amended to reference an e-signature PIN, rather than notarization. Rule 3-14.3 (Defective Applications) is amended to remove a reference to notarization.

There is a new rule for applicants who do not meet educational requirements.

As to the MBE

Rule 4-23.1 is amended to allow an applicant to transfer a score obtained on the Multistate Bar Examination (MBE) in another state, as long as the transferred scaled score meets the requirements of rule 4-26.2 (Pass/Fail Line)—the scaled score would have to be 136 or higher under the individual method—and as long as it is obtained within the timeframe required under rule 4-18.1—within 25 months of the date of the administration of any part of the examination that is passed. In 1983, we adopted the current rule prohibiting the transfer of scores because at that time, there were inconsistencies in the administration and scoring of the MBE administered in other jurisdictions. However, since then, the National Conference of Bar Examiners has established very specific guidelines and procedures for the administration of the MBE, making the transfer of scores feasible and acceptable.

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

More Than An Accident

A Michigan attorney has been disbarred for a felony conviction

Respondent was convicted in People of the State of Michigan v Jill Ann Tucker, 44th Circuit Court Case No. 16-023886-FH, ofthe following offenses: interference with the reporting of a crime, in violation of MCl 750.483A2B, a felony; unlawful posting of messages through electronic medium without consent, in violation of MCl 750.411 S2A, a felony; lying to a peace officer regarding a serious misdemeanor, in violation of MCl 750.479C2A, a misdemeanor; tampering with evidence, in violation of MCl 750.483A6A, a felony; failure to stop at the scene of a property accident, in violation of MCl 257.618, a misdemeanor; failure to stop at the scene of an accident involving serious personal injuries, in violation of MCl 257.617A, a misdemeanor; use of a computer to commit a crime, in violation of MCl 752.7973E, a felony; and operation of a motor vehicle in violation of a license restriction, in violation of MCl 257.312, a misdemeanor. In accordance with MCR 9.120(B)(1), respondent's license to practice law in Michigan was automatically suspended effective March 15, 2017, the date of respondent's felony convictions

The Detroit Free Press reported on the crime

A Whitmore Lake woman expressed relief Thursday that the men she injured in a hit-and-run crash survived, saying she “never had an opportunity to address the accident” until now.

Jill Ann Tucker had just learned she will spend 28 months to 10 years in prison for interfering with a crime report, tampering with evidence and using a computer to commit a crime.

Tucker, who is an attorney, also received concurrent county jail sentences for unlawful posting of a message, lying to a police officer, driving on a suspended license as well as leaving the scene of a personal property damage crash and failing to stop for a personal injury accident.

Assistant Prosecutor Daniel Rose told the court Tucker’s behavior was especially troubling because she’s a lawyer sworn to upload the law.

“There appears in this case that there were no principal of honesty or decency to others that were compelling her conduct other than nothing more than her own selfish interests,” he said.

 Defense attorney Lawrence Gadd described his client as an intelligent mother of four children who was highly successful until depression and alcohol got the better of her. He said she’s lost her family, job, law license, assets and friends.

“This is a person who has already incurred the highest penalties in life and it’s a result of depression and alcoholism,” Gadd said.

Testimony at Tucker’s March trial revealed she failed to stop for other motorists who had stopped at the intersection of M-36 and Lemen Road in Green Oak Township on June 4.

Tucker’s Dodge Ram pickup struck motorcyclist Brian Drake hard enough that it shot the motorcycle forward nearly the length of a football field. Drake went airborne, landing on his elbow and buttocks in the middle of the intersection next to a Chrysler 300.

 “This crash could have ended very differently for me,” said Drake, who suffered a bruised backside and elbow injuries.

“Looking back, it’s hard for me to believe how Miss Tucker could have known she was responsible for this crash and still fled the scene, not knowing if I or others were seriously injured or possibly dead,” he added. “Her selfish actions, both prior to and especially after the crash, have demonstrated a complete lack of regard for the well-being of the people involved and the law.”

The pickup – which Tucker purchased and insured through her then-employer, DXRacer, avoiding an interlock device on her personal vehicle for a prior drunken driving conviction – also rear-ended the Chrysler 300 hard enough to push the trunk up to the rear window.

The Chrysler driver, Donald Mayville, said he continues to feel apprehension when a motorist is behind him or tailgates.

Testimony also indicated that Tucker lied to a Green Oak Township police officer, whom she was dating and who initially investigated the crash.

Gadd took the officer and Rose to task for their handling of the case. He accused the officer of destroying evidence and participating in “some of the alleged criminal conduct.”

Gadd accused Rose of withholding evidence and providing discovery materials late. He also accused Rose of making “inappropriate accusations during the case,” which likely referenced Rose’s questioning at an earlier hearing about whether Gadd and his client were intimately involved. Gadd denied that accusation in March.

“I believe these public officials should be held to a higher standard, and I know they are going to walk away from here and high five because they won and got the defendant convicted of various offenses,” Gadd said Thursday.

Rose said Gadd’s comments reflected the defense’s position throughout the case: accusing others of wrongdoing and blaming the victim while ignoring Tucker’s criminal behavior, including allegations she broke into her estranged husband's house the day after the jury verdict and stole two rifles and two shotguns.

“The one thing you notice is missing from (Gadd’s) argument is … the people she harmed,” Rose said.

Rose said Tucker’s behavior has shown her ability to manipulate and deceive others. He called her behavior premeditated, from getting a second vehicle to avoid detection when she drank alcohol while on probation for her second drunk driving conviction to procuring a replacement bumper to hide the crash evidence, as well as leaving two injured people in the middle of an intersection.

Tucker also tore out computer cords to disable security cameras so she wouldn’t be caught returning the damaged pickup and she retaliated against the woman who placed her behind the wheel by sending naked photographs of the woman to her co-workers.

“She didn’t even do what a decent human being, even (one) making a mistake would do, and check on the two men she injured,” Rose said. “Instead, she hit the gas to save her own skin. …

“She blamed all of those around her to shift focus from her undeterred lawlessness. I don’t have to tell you she’s going to hurt someone with her criminal behavior. She’s already done that.”

Contact Livingston Daily justice reporter Lisa Roose-Church at 517-552-2846 or lrchurch@gannett.com. Follow her on Twitter @LisaRooseChurch.

(Mike Frisch)

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

A Fine[d] Intemperance In British Columbia

The Law Society of British Columbia fined an intemperate attorney

The Respondent faces a citation that alleges that the Respondent was involved in a verbal altercation with opposing counsel in Provincial Court.  The citation alleges that the Respondent breached his duty to maintain a courteous and respectful attitude towards the court, as described in Rules 2.1-2(a) and 5.1-1 of the Code of Professional Conduct, and failed to conduct himself with courtesy and civility towards other counsel, as described in Rules 2.1-4 and 5.1-5 of the Code of Professional Conduct.

The Law Society and the Respondent submitted an Agreed Statement of Facts, and we had the benefit of video and audio recordings, as well as a transcript of proceedings of the alleged altercation. 

The facts in respect of the events that led to the citation are not in dispute.  The Respondent and opposing counsel attended a Family Case Conference with their clients in person, and a judge of the court attended via video and audio connection.  A few minutes into the proceedings, the Respondent and opposing counsel began arguing and talking over one another, and opposing counsel asked the Respondent, “Could you shut up?”  The Respondent reacted by getting out of his chair and approaching opposing counsel, standing over him, saying, “You shut up yourself.  You shut up.  Don’t tell me to do anything back and forth like this.  I won’t put up with this.  Who the hell do you think you are anyway?”  The presiding judge was eventually able to shout over the exchange between the Respondent and opposing counsel, shouting “Counsel.  Counsel.  What are you doing?  What are you doing?”, ending that exchange.  The heated exchange between the Respondent and opposing counsel took only a few seconds.

Later that same day, the Respondent forwarded a letter to court staff apologizing for his part in the “disgraceful display” in proceedings earlier that day, and asking that the letter be passed through appropriate channels to the presiding judge.

That same day, the Respondent also forwarded a letter to opposing counsel, suggesting that they should not be behaving as they did in court earlier, and should agree that what took place will not happen again, but also saying “if you continue to insult me and my clients, I am going to stand up for them.” 

The Respondent, in the hearing before us, said he has thought about his role as senior counsel, and his responsibility to set a good example for more junior counsel.  The Respondent also said that he has taken active steps to improve his relationship with opposing counsel and their relationship is now better than it has ever been in the past.

The Respondent admitted service of the citation.  He admitted that his conduct alleged in the citation constitutes professional misconduct.

Finding

The conduct alleged and admitted to by the Respondent is a marked departure from what is expected by the Law Society of lawyers.  The conduct alleged and admitted to falls short of what would reasonably be expected by a member of the public, or by a court staff member or judicial officer.  We find the Respondent’s conduct constitutes professional misconduct.

On sanction

 The Respondent has been practising law in British Columbia since 1980.  He has a Professional Conduct Record that includes four conduct reviews, one proven citation, and a referral to the Practice Standards Committee.  In the proceedings involving the citation, the Respondent was found to have committed professional misconduct by making inappropriate comments about another lawyer and members of the judiciary in a series of letters.  In those proceedings, the Respondent was fined $3,000.  Intemperate and inflammatory language, and an unnecessarily combative and aggressive approach to conflict, form a recurring part of the subject matter of the Respondent’s Professional Conduct Record. 

Counsel for the Law Society submits that the Respondent be fined $10,000.  The Respondent submits that the local attention this matter has received and will receive in his community, as well as the cost of his having to travel to deal with this matter, are significant to him, and an additional fine will be of no public benefit.  The Respondent submits that he should receive a reprimand as the disciplinary action for his conduct in this matter...

In consideration of the factors listed above, the Respondent’s misconduct, although significant, was a brief exchange with opposing counsel.  The Respondent recognized the inappropriateness of his misconduct, apologized to the court quickly, and took responsibility for his misconduct.  He has taken active steps to improve his relationship with opposing counsel. 

The Respondent has, in previous discipline proceedings, been fined $3,000 for making inappropriate remarks about other counsel and members of the judiciary in a series of letters.  The disciplinary sanction must be significant and must take into account the Respondent’s Professional Conduct Record, but the sanction must also be proportionate.  No physical contact between the Respondent and opposing counsel occurred, and counsel stopped their exchange when the presiding judge raised his voice over an audio connection.  The court proceedings in which the exchange occurred were a Family Case Conference, which was not open to the public. 

In the circumstances, we believe a fine is the most appropriate disciplinary action we can impose.  We consider $5,000 to be an appropriate amount for the fine, in all the circumstances.  We order that the Respondent pay the fine by December 31, 2017.

(Mike Frisch)

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

The Law Of Absurd Results

The Ohio Supreme Court has held that a murderer father has rights to the medical records relating to the child he killed.

Dan Trevas summarizes the holding

The Cuyahoga County Medical Examiner’s Office must turn over the autopsy records of an infant to her father, who is serving 15 years to life for the murder of the child, the Ohio Supreme Court ruled today.

A divided Supreme Court determined that a provision of Ohio public records law that requires  incarcerated persons, who request public records, to comply with certain requirements before being granted access to those records does not apply to the request of a deceased’s person’s next of kin to the coroner for records of the deceased person.

Justice Sharon L. Kennedy, the author of the Court’s lead opinion, wrote that the plain language of the statute regarding coroner’s records is clear that the next of kin is entitled to the records. She concluded that if the legislature had intended to prevent the father from getting the records, then the General Assembly has the right to take note of today’s decision and amend the law.

Justice Kennedy’s decision granting Michael Clay the records was joined by Justices Terrence O’Donnell and R. Patrick DeWine.

In a concurring opinion, Justice Patrick F. Fischer wrote that while there is some overlap between the two laws, the medical examiner is clearly required to provide the records to Clay. He noted the results seem “out of step with the General Assembly’s apparent policy decision to limit incarcerated persons’ access to public records.” He, too, invited state lawmakers to consider amending the records laws to address the conflict. Justice O’Donnell joined the opinion to the extent that it encourages the General Assembly to address the issue.

In a dissenting opinion, Chief Justice Maureen O’Connor wrote that the lead opinion’s interpretation leads to an absurd result. The intent of the two statutes, when read together, would prevent the father from getting the records because he is imprisoned for the infant’s murder, she concluded. Her dissent was joined by Justices Judith L. French and William M. O’Neill.

The dissent analyses the law of absurd results

The lead opinion makes a conclusory statement, with no analysis, that “the plain language of R.C. 313.10 does not lead to an absurd result in this case.” Lead opinion at ¶ 27. But the lead opinion’s application of the law is contrary to the obvious intention of R.C. 313.10(C)(1), if not its literal terms. Indeed, before the legislature passed the bill that enacted R.C. 313.10(C)(1), House and Senate committees heard testimony about the importance of protecting the privacy of the families of deceased persons who do not wish for the autopsy photos of their loved ones to be made public. By murdering his daughter, Clay established that he has no regard for any of her interests or the interests of her other family members, least of all their privacy. He should not receive the benefit of a law designed to protect vulnerable families by keeping sensitive information, including suicide notes and autopsy photos, out of the public record.

The United States Supreme Court has, in fact, recognized that murderers are in a position to exploit these types of records. In a case involving a Freedom of Information Act (“FOIA”) request for death-scene photographs of Vince Foster Jr., a deputy counsel to President Clinton who committed suicide, the court recognized the surviving family members’ right to privacy with respect to the images...

The lead opinion’s decision will not only subvert the General Assembly’s intent here, it will set a calamitous precedent. An inmate imprisoned for murdering a spouse, parent, or sibling is still a convicted murderer, yet according to the lead opinion, the incarcerated murderer may be entitled to the victim’s autopsy records and photos. Ignoring R.C. 149.43(B)(8)’s prohibition on an inmate’s access to public records related to a criminal investigation or prosecution—merely because the inmate murdered a family member—does nothing to advance the goals of the General Assembly, including protecting the privacy and dignity of the victim and the victim’s family.

The lead opinion here, with its strict adherence to a literal interpretation dogma, implies that we would usurp the legislature’s role if we applied the plain language of a statute rationally and in concert with the General Assembly’s intent. Using the lead opinion’s guidance, a statutorily identified relative is entitled to the autopsy records, period. And no other statute need be consulted on the matter, even if the relative is a murderer guilty of matricide, patricide, fratricide, or filicide. I disagree. This case calls for us to apply two relevant laws to one murderer, which does not require us to add words to a statute or to ignore statutory provisions altogether. This case began with a murderer’s request for his victim’s autopsy records.

(Mike Frisch)

November 30, 2017 | Permalink | Comments (0)

Don't Talk To The Flight Attendants (If You Are Suing The Airline)

Ethics Profs attention here. This is a good teaching tool.

The United States District Court for the Eastern District of Pennsylvania concluded in a motion to disqualify counsel that an attorney admitted pro hac vice violated Rule 4.2 by talking to two flight attendants on a US Airways flight.

Because the underlying case had settled, the only issue before the court was possible sanctions.

The attorney represented a plaintiff suing the airline for injuries sustained as a result of turbulence in a flight from Cancun to Philadelphia

Plaintiff filed an Amended Complaint on October 25, 2016, for injuries sustained during US Airways Flight 815 travelling from Cancun, Mexico, to Philadelphia, Pennsylvania, when the flight encountered unexpected turbulence, asserting that US Airways is liable under the Montreal Convention.

During the case

On July 28, 2017, US Airways filed the pending Motion for Sanctions, alleging that plaintiff’s attorney, Alisa Brodkowitz, engaged in ex parte communications with two US Airways flight attendants in violation of Pennsylvania Rule of Professional Conduct 4.2, which prohibits a lawyer from communicating “about the subject matter of the representation with a person the lawyer knows to be represented by another lawyer in the matter” without prior authorization.

The court analyses Rule 4.2 in the employee context

According to Brodkowitz, because the complaint does not allege that the flight attendants were negligent or that “the acts or omissions of the flight attendants . . . might otherwise be the basis for imposing liability on US Airways,” the flight attendants were not represented parties. Pl.’s Memo in Opp. to Def.’s Mot. to Sanction Pl.’s Counsel at 13. Instead, she argues, the flight attendants were contacted as witnesses, as opposed to negligent actors. Id. In a discovery request dated March 22, 2017, however, plaintiff requested information related to US Airways’ employment and personnel files on the grounds that “[t]he flight and cabin’s [sic] crew’s training is at issue, with regard to transport and reporting of the injury causing event following government and or US Airways’ own policies and procedures.” Mot. for Sanctions, Ex. G...

The Court notes, however, that flight attendants are generally responsible for the safety of passengers in their custody. Statements made by the flight attendants regarding the flight and their acts and omissions during the flight that caused plaintiff’s injuries could certainly subject US Airways to liability. Viewing Brodkowitz’s communications in light of the circumstances of the case, the Court concludes that the flight attendants were represented parties because they are persons “whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.” Pa R.P.C. 4.2, cmt. 7. Thus, Brodkowitz’s communications with the flight attendants violated Rule 4.2.

The court rejected a Rule 4.1 allegation for false statements to the flight attendants as unproven on the submissions .

The court denied sanctions

US Airways failed to provide any evidence of prejudice resulting from Brodkowitz’s communications with the two flight attendants. US Airways has stipulated to liability; evidence presented will thus be limited to damages. See Stipulation Regarding Defs.’ Election Not to Contest Liability. Pursuant to the stipulation, “[n]o evidence of . . . [t]he acts or omissions of the pilots or flight attendants of Flight 815 or any other employee or agent of US Airways, Inc.” shall be introduced or mentioned at trial. Id. at 2. Thus plaintiff is already precluded from using information related to the acts or omissions of the flight attendants—the very basis upon which the Court holds that the flight attendants are represented parties under Rule 4.2—against US Airways. US Airways has therefore failed to demonstrate that sanctions are necessary to avoid prejudice...

Under the circumstances, revocation of Brodkowitz’s pro hac vice admission is not an appropriate sanction. However, the Court concludes that admonishment for violating Rule 4.2 is warranted. This Memorandum constitutes such admonishment.

(Mike Frisch)

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

Consent Stayed Suspension For Immigration Case Incompetence

The District of Columbia Court of Appeals accepted a consent disposition for the following misconduct

In brief, after the client had pleaded guilty and been convicted of burglary in the Circuit Court of Fairfax County, Virginia, the United States Department of Homeland Security instituted proceedings for his removal on the premise that he had been convicted of an “aggravated felony” as defined by the Immigration and Nationality Act, see 8 U.S.C. § 1101 (a)(43)(G). In attempting to forestall his client’s removal, respondent made several missteps that jeopardized his client’s rights. First, respondent petitioned the Virginia Circuit Court to vacate his client’s conviction and guilty plea based on the mistaken claim that the court had failed to advise his client about the potential immigration consequences of the conviction. Thereafter, without consulting his client, respondent dismissed the petition, conceded removability before the Immigration Court, and did not seek to challenge or delay his client’s deportation on any other ground. Ultimately, the client retained new counsel who successfully argued against removal on the ground that the burglary offense for which he had been convicted was not an “aggravated felony” within the meaning of the Immigration and Nationality Act.

The agreement

Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a thirty-day suspension, stayed, and one year of probation during which respondent must (1) contact the District of Columbia Bar’s Practice Management Advisory Service (PMAS) within thirty days of the commencement of the probationary period and schedule and obtain an assessment; (2) implement any PMAS recommendations; (3) provide PMAS with a signed release waiving confidentiality so Disciplinary Counsel can verify respondent  obtained an assessment; (4) join the American Immigration Lawyers’ Association (AILA), or an equivalent organization; (5) enroll in and attend ten CLE hours pertaining to immigration law; (6) submit proof of both his enrollment in AILA, or an equivalent organization, and his completion of ten CLE hours pertaining to immigration law; and (7) not be found to have engaged in any ethical misconduct.

The court 

In accordance with our procedures in uncontested disciplinary cases, we agree this case is appropriate for negotiated discipline.

Bravo as always but note that the single complaint matter still took a full three years to resolve. (Mike Frisch)

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

Wednesday, November 29, 2017

Divorce Does Not Mitigate License Revocation

The Louisiana Supreme Court revoked an attorney's license

The [hearing] committee determined that respondent violated duties owed to his clients, the public, the legal system, and the profession. His conduct was intentional. He settled his clients’ legal matter without their consent and forged their names on the settlement check and release documents. He lied to and misled his clients regarding the amount of the settlement. Finally, although he settled the matter in 2008 and dismissed their lawsuit without permission, respondent did not pay the settlement proceeds to his clients until 2013. This conduct caused actual and serious harm to the Ortegos, who lost their home and business and went bankrupt. The applicable baseline sanction in this matter is disbarment.

In aggravation, the committee found the following factors: a prior disciplinary record,5 a dishonest or selfish motive, a pattern of misconduct, and multiple offenses. In mitigation, the committee recognized that respondent was going through a divorce at the time of the misconduct.

 Considering the facts of this case, in particular the financial harm that befell the Ortegos in the five years they did not have access to their settlement funds, the hearing committee recommended respondent be disbarred.

Respondent filed an objection to the severity of the sanction recommended by the hearing committee. He urged that a three-year sanction is appropriate under the circumstances.

(Mike Frisch) 

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

Lawyer Reprimanded For Limited Scope Debt Relief Representation

The Wisconsin Supreme Court reprimanded a former Green Bay attorney now residing in Las Vegas

The facts giving rise to this proceeding stem from Attorney Luther's involvement with Morgan Drexen, Inc. (MDI), a now defunct debt settlement company.

In June 2009, MDI and Attorney Luther agreed that she would serve as "engagement counsel" for MDI in Wisconsin. Attorney Luther was the attorney providing services to Wisconsin residents in MDI's program.

MM retained her

Before M.M. enrolled in MDI's plan, the company read her disclosures that Attorney Luther had approved. These disclosures did not adequately inform M.M. that it was unlikely the proposed plan could pay her debts. M.M. completed the MDI forms online, including two fee agreements with Attorney Luther. Attorney Luther's agreements with M.M. also charged her $50 per month for various services such as review of a document, a simple will, responding to email, and file maintenance. M.M. was charged for these services even if she did not use them. Attorney Luther had no contact with M.M. prior to M.M. signing the fee agreements. Attorney Luther was aware of MDI's practices, and that her client M.M. was using MDI's system. Attorney Luther did not give M.M. information reasonably necessary for her to understand the material advantages and disadvantages of MDI's plan or discuss with M.M. options and alternatives to it. MDI and Attorney Luther's letters to M.M. were form letters that provided little substantive information.

A creditor sued MM

Attorney Luther's limited scope representation agreement charged M.M. $550 for her assistance with M.M.'s selfrepresentation in the GE Capital case. It also listed various charges M.M. would incur, such as $65 for a "Phone Consult with Counsel." M.M. signed the agreement, and on April 23, 2013, spoke with Attorney Luther on the phone. Attorney Luther told M.M. that she would not appear in court for a May 13, 2013 hearing, or otherwise represent her in the matter. Attorney Luther advised M.M. to request a 90-day extension by which time she would have enough funds in her MDI account to pay Attorney Luther's fee and file for bankruptcy. Attorney Luther charged M.M. $35 for this conversation as a "rush job."

MM retained new counsel and the debt was discharged in bankruptcy.

There was also misconduct in a second MDI matter.

The court described the role of the referee where, as here, the matter comes on stipulation 

In determining an appropriate sanction recommendation referees should consider whether the lawyer has previously been disciplined and whether any aggravating and or mitigating factors are present. See ABA Standards for Imposing Lawyer Sanctions. Typically, the referee will consider factually similar cases. Stipulated discipline is entitled to no special deference.

To be sure, the parties' opinions on disciplinary sanctions are informative but they are just that – opinions, not authorities to which the referee must defer. We, in turn, "remain the ultimate arbiter of the appropriate level of discipline, owing no deference on this subject to either the parties or the referee." See Ruppelt, 377 Wis. 2d 441, ¶34.

Here, the referee has provided case law in the supplemental report that supports the recommended discipline.

Sanction

On balance, we will adopt the referee's findings of fact and conclusions of law that, based on the parties' stipulation, Attorney Luther violated the supreme court rules as alleged in the ten counts of the amended complaint. We further agree with the referee that a public reprimand of Attorney Luther's license to practice law in Wisconsin is sufficient.

A dissent of Justice Abrahamson

A public reprimand is an insufficient sanction for the serious misconduct to which Attorney Luther stipulated.

(Mike Frisch)

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

Farm Fee Suspension

The Ohio Supreme Court has indefinitely suspended a convicted attorney for taking a client's farm as his fee rather than honoring his promise to sell the farm, deduct his fee and remit the balance to the client.

The board found that by retaining the proceeds from the sale of Heuker’s land, Bucio essentially misappropriated his client’s funds. Although the presumptive sanction for such conduct is disbarment, the board concluded that an indefinite suspension was appropriate here, citing two similar misappropriation cases...

We agree with the board that Bucio’s egregious misconduct here was tantamount to misappropriation of client funds. But we also agree that similar to Peterson and Harris, sufficient mitigating factors weigh against the presumptive sanction of disbarment, including Bucio’s lack of prior discipline, the imposition of other penalties for his misconduct, his restitution, and his acknowledgment, albeit belatedly, of the wrongfulness of his actions. Accordingly, we adopt the board’s recommended sanction.

The Dayton Daily News reported the conviction

A suspended Troy lawyer convicted of felony unauthorized use of property involving land obtained from a client in 2010 was sentenced Friday to five years of community control and a $5,000 fine in Shelby County Common Pleas Court.

Christopher Bucio, 38, pleaded guilty Nov. 30 before visiting Judge Timothy Campbell of Greene County. The Ohio Supreme Court earlier this month suspended Bucio’s license for an interim period and referred the case for disciplinary proceedings.

Before sentencing, Bucio said he had learned a lot in the seven years since the incident. “Clearly, I would have done things differently,” he said. “I am really regretful.”

Matthew Donahue, an assistant Ohio attorney general, handled the prosecution. He said although prison was not likely under sentencing guidelines, the court could order community control with added sanctions such as local jail time.

“It is a dark day for our profession and an even darker day for the victim,” Donahue said.

Bucio was accused of taking 22 acres of farm land owned by a Shelby County woman in payment for legal representation of its owner, selling the land and keeping the proceeds.

Troy lawyer Jeremy Tomb spoke for the victim, who attended sentencing. He said Bucio spent little time, “a couple of days,” representing the woman who at the time was in “a vulnerable state.”

Tomb said Bucio sold the land, then “stalled” when the woman tried to contact him and later misrepresented the woman’s situation to the investigating Ohio Supreme Court.

The woman this week received restitution reached in an agreement, Tomb said. The amount is confidential under the agreement terms

A plea form filed in the court stated prosecutors would not file other charges related to the representation of the woman “or the issues directly arising out of it which have been investigated by the special prosecutors.”

The charge was a fourth-degree felony, which carried a maximum penalty of 18 months in prison and a $5,000 fine.

Judge Campbell said he hoped the experience would mean Bucio, if ever in a position of trust for someone again, would treat them appropriately. If Bucio violates the community control he could receive up to 17 months in prison.

Bucio practiced with the firm of Roberts, Kelly and Bucio that had offices in Miami, Shelby and other counties. He no longer is included in the firm known as Roberts and Kelly.

Bucio’s lawyer, David Greer of Dayton made no comment before sentencing relying on a sentencing memorandum filed before the hearing

Another former lawyer with the Bucio firm, Joshua Albright of Shelby County, pleaded last year in Miami County to felony unauthorized use of property for theft of client funds from the law firm.

He was sentenced to community control but ordered to serve 90 days in the county jail.

He also pleaded to felony forgery of documents in a custody case in Shelby County, where he was ordered to serve 90 days in jail consecutive to the Miami County time.

Albright was ordered to pay $60,650 restitution to the firm, whose office manager testified at a hearing that an insurance company had paid another $25,000. Albright resigned from practice last year and the case was referred for disciplinary proceedings.

(Mike Frisch)

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

Ohio Tops In Bar Discipline Transparency

A bar discipline case scheduled for a December hearing in Ohio involves allegations that an attorney mishandled a judicial release matter where he had been retained on behalf of another by a person identified as Jane Doe.

The charges allege that after a hearing they "exchanged a kiss" and that evening had sexual intercourse at his home.

He allegedly sent her over a 100 personal text messages over the next ten days that were of a personal nature.

She refused his offer to "go away" with him and he later sent her a message that he missed her with a sad emoticon.

When she pressed him about the status of the matter he texted

When I know something I will let you know. I wish you had never fucking hired me. It's not worth this shit.

His denies that he violated ethics rules and specifically the allegations regarding the sex and texts by responding that she was not a current client when the conduct took place. 

One interesting allegation is that the attorney is charged with, in essence, plagiarizing the work product of another attorney.

If you follow the above link,  note that the web page of the Ohio Board of Professional Conduct provides the most comprehensive easy access to information about pending cases of any court or bar.

This honor previously was held by North Carolina but Ohio's recent improvements set the new standard for disciplinary systems everywhere.

Also note that none of the information provided by Ohio - charges, pleadings, motions, hearings, witness and exhibit lists etc. etc. - is available online in most jurisdictions including Maryland, Virginia and the District of Columbia.

Most jurisdictions give only lip service to transparency. In D.C., it is nothing short of scandalous that bar charges - which are public documents - are not available online.

Ohio walks the walk. (Mike Frisch)

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

Tuesday, November 28, 2017

Misuse Of Bar Funds Draws Long Suspension

A three-year suspension imposed by a Michigan Tri-County Hearing Panel

The amended stipulation contained respondent's admission that he committed acts of professional misconduct when he, as the Staff Executive Director at the Federal Bar Association - Eastern District of Michigan Chapter (FBA), made multiple withdrawals of FBA funds, without consent or authorization, from the organization's checking account for unearned salary advances, inflated or nonexistent expenses, and unexplained cash withdrawals.

His LinkedIn profile states that he served as Executive Director of the Federal Bar Association from 2002 to 2014. (Mike Frisch)

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

Vast And Troubling

The Wisconsin Supreme Court revoked the license of an attorney who defaulted on a multitude of ethics charges

The scope of Attorney Magaña's misconduct——which, again, is deemed admitted here——is vast and troubling. Given the volume of uncontested allegations in the OLR's 61-page amended complaint, we do not repeat them all here. It is sufficient to provide the following summary.

Attorney Magaña practiced immigration law at a law firm in the Milwaukee area. Time and again, Attorney Magana collected flat fees and cost advances from his clients and did not perform the work he committed to do. He would often ignore his clients' requests for information about their cases. When he did communicate with his clients, he would supply them with false information——including fabricated documents and false case numbers——in order to deceive them into believing that their cases were progressing on schedule, when in fact they were languishing due to Attorney Magaña's inactivity. Attorney Magaña eventually left his employing law firm, but did not tell his clients of his departure or take any steps to protect their interests upon his departure. He was uncooperative with the OLR's investigation into his conduct. In April 2014, he pled guilty to a charge of misdemeanor operating while intoxicated. (second offense), and failed to timely report that conviction to the OLR and the clerk of this court.

He defaulted on 74 alleged violations. (Mike Frisch) 

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

Monday, November 27, 2017

Life Imitates Art

The 2016 annual report of the Michigan Attorney Grievance Commission contains this summary of a failed rerinstatement

Petition for Reinstatement of Robert Slameka, ADB Case No. 16-1-RP

Robert Slameka was denied reinstatement by a hearing panel following admissions by Slameka that he did not have a traditional law office before his suspension but would regularly meet clients in the lobby of a Detroit casino. One panelist commented said that Slameka sounded like the lawyer in a TV show called, "Better Call Saul". Robert Slameka also had his driver’s license suspended because he owed more than $600 in unpaid parking tickets. At the reinstatement hearing, Slameka blamed his “drunken” wife for the 42 outstanding infractions, saying she would become intoxicated and throw the tickets away without telling him. However, his wife was deceased at the time when some of the tickets were issued. Slameka’s mother was also dead but he signed her name posthumously to checks and deposited them into his bank account. On August 17, 2016, the panel issued its report denying reinstatement because his “casual attitude toward the truth demonstrates a lack of good faith to be reinstated.”

The Detroit News reported on the reinstatement effort and has other information.

The attorney who convinced 14-year-old Davontae Sanford to plead guilty to four drug house murders he didn’t commit is trying to get his law license back after it was suspended for breaking into his ex-girlfriend’s house.

And this 

Two Wayne County circuit judges went to bat for Slameka, who has had 17 reprimands and admonishments since 1986. [Bar prosecutor] Bullington’s report cites their testimony during the recent discipline board hearings, in which the judges argue Slameka should continue practicing law because he saves time by quickly pleading cases.

(Mike Frisch) 

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

Bedlam Corners

A town court justice who is also an attorney has been admonished by the New York Commission on Judicial Conduct.

A victim of an alleged crime had been employed by his wife

From August 2014 through September 2014, Ms. M. had been employed by Virginia Curran, respondent's wife, at the Bedlam Comers General Store in Hebron, New York. Respondent was aware that Ms. M. had been so employed

Respondent's wife owns the Bedlam Comers General Store and also serves as respondent's court clerk.

He denied motions to recuse himself and engaged in ex parte contacts relating to the matter over the telephone and at a gas station

A few months after arraigning the defendant on charges of Assault and other offenses and issuing an order of protection, respondent received unsolicited ex parte information from two sources (an individual who approached him out of court and an anonymous voicemail message) claiming that the defendant had violated the order of protection by taking trips with the complaining witness. Respondent was obligated to disclose these out-of-court communications to the prosecutor and defense counsel and to provide the defendant with an opportunity to rebut the information in court. Instead, at a pre-trial conference a few days later, he not only failed to disclose the communications but compounded the impropriety by repeating the information he had received as fact ("I'm aware there's been multiple violations of the order of protection"), notwithstanding that the defendant had not been charged with violating the order. He reiterated the accusations when he accepted a plea agreement, sentenced the defendant and issued a six month order of protection, warning the defendant that he would "get the maximum" if he violated the order "again." These unsubstantiated accusations conveyed the appearance that respondent had received and was influenced by undisclosed, unauthorized information that the defendant, unaware of its source, was unable to refute. Even after defense counsel interjected that if respondent had such information he should not be handling the case, respondent did not disclose the communications.

(Mike Frisch) 

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

No Liability For Death Of The Bird

The Massachusetts Supreme Judicial Court affirmed the grant of summary judgment to defendants in claims arising from the death of Mark Fidrych

Mark Fidrych owned a dump truck that he used to haul soil. On the morning of April 13, 2009, Fidrych was seen at his farm working on the truck. Later that day, he was found dead underneath it, with his clothing caught up in a spinning universal joint (U-joint) that was part of the mechanical system used to tilt the "dump body" of the truck. The medical examiner identified the cause of death as accidental asphyxiation. In her capacity as executrix of Fidrych's estate, his widow, Ann Pantazis, filed a wrongful death action in the Superior Court. She sued, among others, Mack Trucks, Inc. (Mack Trucks), which manufactured the original, stripped-down version of the truck, and Parker-Hannifin Corporation (Parker-Hannifin), which had acquired the assets of Dana Corporation (Dana).  Dana manufactured a piece of equipment known as a "power take-off" (PTO), which was another part of the system used to tilt the dump body of Fidrych's truck. In two separate summary judgment rulings, different Superior Court judges ruled in favor of each of these defendants. We affirm.

Held

we conclude that where, as here, the components manufactured by the defendants included no design defects, and the risks posed by the assembled product arose out of the addition of other components and the decisions made, and actions taken, by downstream actors, the defendants had no duty to warn of those dangers. Resolving the case as we do, we have no occasion to consider the defendants' other arguments, such as their claim that they had no duty to warn of the dangers posed by the exposed auxiliary drive shaft and U-joint in light of the obviousness of such risks, at least to someone with Fidrych's presumed familiarity with the truck that he had owned for over twenty years...

None of this is to say that appellate courts should never recognize exceptions to the component parts doctrine. In fact, this court recognized the possibility of such an exception in Morin v. AutoZone Northeast, Inc., 79 Mass. App. Ct. 39, 51-52 (2011).  Based on the summary judgment record and the arguments raised, the plaintiff has not demonstrated good cause to create an exception here.

(Mike Frisch)

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

False Statement Plea Draws Interim Suspension

The Ohio Supreme Court has suspended an attorney on an interim basis for a federal felony conviction.

The Tampa Bay Times reported on the guilty plea

Former WellCare Health Plans general counsel Thaddeus M.S. Bereday pleaded guilty to one count of making a false statement to the Florida Medicaid program, and faces a maximum penalty of five years in federal prison. A sentencing date has not yet been set, acting U.S. Attorney W. Stephen Muldrow of the Middle District of Florida said Wednesday.

On March 2, 2011, Bereday — along with fellow WellCare executives Todd S. Farha, Paul L. Behrens, William L. Kale, and Peter E. Clay — were indicted on various federal criminal violations relating to a scheme to defraud the Florida Medicaid program between 2003 and 2007. Federal officials say the executives made false and fraudulent statements relating to how they spent money on behavioral health care services.

After a 13-week trial in 2013, a jury returned verdicts against former CEO Farha, former CFO Behrens and former vice presidents Kale and Clay.

Bereday, 52, did not participate in the 2013 trial due to health issues. His case was scheduled to be tried this September. As part of his plea, Bereday admitted that he knowingly caused the submission of a false 2006 expenditure report to the Florida Medicaid program.

(Mike Frisch)

 

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

Saturday, November 25, 2017

There Must Be More To This Story

An admonition is summarized on the web page of the Massachusetts Board of Bar Overseers

The respondent was a new associate in the litigation department at a law firm. After an informal discussion in late December 2015 over lunch with a partner and a supervising attorney, the respondent mistakenly believed that he was authorized to post a job advertisement at local law schools for a law clerk position at the firm. The respondent did not show the advertisement to anyone at the firm before posting the job listing. In early January 2016, the respondent set up and conducted interviews with at least three law school graduates at the firm. The respondent did not notify the firm management in advance that he was scheduling or conducting the interviews, share the resumes and writing samples he had collected, or introduce the job candidates to any other lawyers at the firm.

During the interviews, the respondent requested that the job applicants prepare and submit supplemental writing samples based on actual client matters being handled by the respondent at the firm. The respondent provided to the job applicants documents from the clients’ files without first obtaining client consent to release confidential client documents to individuals who were not employed at the firm. The respondent did not inform his supervising attorneys that he was asking job applicants to submit supplemental writing samples based on actual client cases. On January 19, 2016, the respondent filed one supplemental writing sample, a motion to dismiss with supporting memorandum, with slight modifications, in a client matter pending in the U.S. Bankruptcy Court.

By improperly disclosing client confidential information without prior client consent, the respondent violated Mass. R. Prof. C. 1.6(a).

The respondent was admitted to practice in 2010, and had received no prior discipline. The respondent, through the firm, reimbursed the job applicants for the time they spent on the writing assignments. The respondent has now opened his own law practice, and has found an experienced lawyer to act as a mentor. The respondent received an admonition for his conduct, based on his agreement to attend a continuing education program on ethics, and to contact the Law Office Management Assistance Program (LOMAP) for assistance with his solo law office management practices.

Admonitions in Massachusetts do not identify the attorney. (Mike Frisch)

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