Monday, January 22, 2018

"The Bicycle Incident" Reaches The Ohio Supreme Court

An argument worth watching this Thursday before the Ohio Supreme Court

Columbus Bar Association v. John. J. Okuley, Case no. 2017-1417
Franklin County [Disciplinary cases]

The Board of Professional Conduct is recommending that Columbus [attorney] John J. Okuley be suspended for two years, with one year stayed, based on the lawyer’s criminal conviction that stemmed from a physical confrontation with a bicyclist and physician, who witnessed the bike accident.

The board concluded that Okuley violated several rules governing the conduct of Ohio attorneys for his behavior during what the board labeled “the bicycle incident,” and Okuley’s subsequent behavior when the Columbus Bar Association investigated the matter.

Accident with Bicyclist Leads to Criminal Conviction

In April 2015, Okuley was driving on a Columbus residential road near a lengthy bike trail. Parts of the trail were connected through portions of residential streets. Bicyclist Eric Hansen was behind Okuley’s vehicle on a narrow street where part of the road was blocked by a delivery truck on one side and a garbage truck on the other. Hansen rode his bike between the delivery truck and Okuley’s car, passing it on the passenger side.

According to various versions of the incident given by Okuley, Hansen either smacked the side of Okuley’s car while passing, hit it with the bike pedal, or hit the car with the bike. Okuley claimed that Hansen intentionally struck his car. Hansen countered that he never made contact with the vehicle as he passed and that Okuley turned his car wheels to the right and moved in Hansen’s direction as he was passing.

Okuley then began following Hansen from one street to another. Hansen indicated that, at times, Okuley’s car was just inches from his rear wheel and that he was racing his engine. Okuley then passed Hansen and suddenly slammed on his brakes. Hansen testified that it was impossible for him to avoid colliding with the vehicle, and the bike hit the rear of the lawyer’s car. The collision knocked Hansen to the ground, bent the handlebars of his bike, and damaged his front brakes.

The incident was observed by John Bahling, a medical doctor, who was driving and stopped for traffic. He testified that it appeared that Okuley was trying to run Hansen off the road, and that he appeared very angry, revved his engine, leaned forward on the steering wheel, and yelled and gestured at Hansen when he passed. He said Okuley slammed the brakes, and it prompted Hansen to smash into the rear of the car. Bahling said Okuley got out of the car, got close to Hansen’s face, and began yelling and accusing Hansen of hitting his car on purpose.

Bahling parked with the intent on checking on Hansen. He began video recording Okuley with his cell phone with the hope it would defuse the situation, but when Okuley noticed Bahling was recording, he turned away from Hansen, struck Bahling, and attempted to grab his phone. Okuley got in his car, drove a short distance, and stopped, and Bahling recorded it. Okuley returned on foot, where Hansen was speaking to a 911 dispatcher when Okuley demanded Bahling give him his phone “for evidence.” He tried to grab the phone as Bahling tried to record the encounter.

A second witness, Daniel Walker, arrived and watched the encounter escalate. Walker tried to separate Okuley and Bahling and, during the scuffle, the phone fell on the street. Okuley walked over the phone and stomped on it. He grabbed the phone and walked up to a porch of a nearby home and yelled to Bahling that he didn’t have any evidence. The second recording, which included the attempt to grab the phone, was destroyed.

Two police officers interviewed the four men. Okuley’s report of the incident to the officers was significantly different than the others involved. He claimed Hansen purposely ran into the back of the car and that Bahling’s phone was damaged when it fell to the ground. In subsequent proceedings, Okuley characterized Bahling as the aggressor and said he was attacked from behind by the doctor without any provocation.

Charges Filed Against Okuley
A week later, the city of Columbus charged Okuley with criminal damaging, a second degree misdemeanor. After scheduling errors and requests for continuances, a trial date was set. Okuley appeared for the trial, but when it didn’t go forward at the scheduled time, he left the courthouse. The prosecuting attorney assumed Okuley left to wait for his attorney to arrive, and the prosecutor stated that witnesses were present and the city was prepared to try the case that day. The judge issued a warrant for Okuley’s arrest the next day, and Okuley was arrested on Oct. 9. Okuley then filed a motion to have the charges dismissed on the grounds that the city failed to timely try the case.

A second trial date was set, and Okuley asked for a continuance, which was granted. He then pleaded no contest and was found guilty of criminal damaging. He was sentenced to 90 days in jail, which was suspended, order to make restitution of $950 to Bahling for damaging his phone, fined $100, and placed in community control.

Two months later, Bahling filed a civil lawsuit against Okuley, and Okuley filed a counterclaim against Bahling. The two settled the case, with Okuley’s insurance company paying Bahling $5,000.

Bar Association Investigates 
The Columbus Bar Association mailed Okuley a letter in March 2106 asking him to provide information regarding his February conviction, and Okuley didn’t respond. He testified later that he didn’t recall seeing the letter and may have thrown it out. He received a second letter by certified mail later that month, and sent a delayed response, indicating he was in a severe car accident and couldn’t work full-time. He eventually agreed to a deposition in August, where again he accused Hansen of intentionally hitting his car and Bahling of attacking him. 

The hearing panel found his allegations against the others were untruthful. The panel concluded that Okuley violated several conduct rules, including engaging in conduct that reflects adversely on a his fitness to practice law; obstructing a party’s access to evidence; disobeying obligations of a court; knowingly making false statements in a legal proceeding; and offering evidence he knows to be false.

Board Considers Sanction 
The board noted that Okuley entered a three-year contact with the Ohio Lawyer’s Assistance Program (OLAP) in July 2017 where he agreed to continue treatment for depression, stress, and adjusting to his injuries from his auto accident. The board didn’t give his treatment any weight as a mitigating factor because it found no evidence that any disorder Okuley suffered contributed to the bicycle incident or his subsequent behavior. Although the three-member panel recommended a one year suspension, with six months stayed, the board concluded that Okuley’s actions merited a greater sanction. The board recommended the Court suspend Okuley for two years, and that one year be stayed if he maintains compliant with his OLAP contract and doesn’t commit anymore misconduct.

Okuley Challenges Sanction 
Okuley argues for the lower penalty recommended by the panel, and notes that his violations don’t involve any attorney-client relationships.

Okuley also argues the board doesn’t believe he took accountability for his actions because his version of the events differs than those from Hansen and Bahling. He counters that his testimony was “likely influenced by the criminal and civil proceedings.” He notes his comments were made in defense of the charges against him and that, once he heard Walker testify to stomping on the phone, he didn’t object to Walker’s version of the events. He argues that the board should have given more weight to him adopting Walker’s version as an acknowledgment of his wrongdoing. The combination of the lack of harm to a client and his adoption of Walker’s testimony warrant the lower sanction, he maintains.

Bar Association Agrees with Board
The bar association argues that Okuley faced no criminal charges when lied to bar investigators about the incident and that he refuted Bahling’s charges when he filed a counterclaim in the civil lawsuit. Those matters weren’t active cases when the he continued to lie during the disciplinary hearings, and he shouldn’t get credit for his behavior, the board argues.

The association also maintains that Okuley’s statement that he didn’t “have reason to disbelieve” Walker was not “remotely close to accepting responsibility for smashing Dr. Bahling’s telephone and for lying about it for years.” It argues the board gave the proper weight to all the factors in the case, and supports the two-year suspension with one year stayed.

 Dan Trevas

Our prior coverage is linked here. (MIke Frisch)

January 22, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sanction Disagreement Before Ohio Supreme Court

An excellent case summary of a case scheduled for oral argument before the Ohio Supreme Court this Wednesday

The Board of Professional Conduct is recommending that the Ohio Supreme Court suspend Cuyahoga County John W. Gold for two years, with one year stayed, based on his handling of a client’s bankruptcy case.

Bankruptcy Trustee Seeks Funds from Gold’s Client
In July 2010, George Daher filed for bankruptcy. The trustee in Daher’s bankruptcy filed a report three months later showing there was no property available in the bankruptcy estate to distribute to creditors. In November 2010, the court closed the case.

In March 2012, Daher learned he was entitled to about $51,000 in unclaimed funds that were the result of an insurance claim that preceded his bankruptcy. Daher had forwarded the insurer’s money to his mortgage company, but the mortgage company never accepted it. When Daher tried to claim the money in 2012 he was told the mortgage company needed to relinquish its interest in the funds before he could have it.

Daher hired Gold to represent him, and Gold filed a lawsuit in Cuyahoga County Common Pleas Court seeking a declaratory judgment that would entitle Daher to claim the $51,000. Daher entered a contingency fee agreement with Gold.

In 2013, Gold notified Daher’s bankruptcy trustee of the unclaimed funds, and the trustee sought to reopen Daher’s bankruptcy case. Gold then agreed to represent Daher in the bankruptcy proceedings. Gold attempted to limit the ability of the bankruptcy trustee from acquiring any of the unclaimed funds, and he argued for summary judgment in the common pleas court case without addressing the interest of the bankruptcy trustee, who at that time was not a party to the lawsuit. Two months later, the trustee asked to intervene in the common pleas court case.

The trial court granted Daher the right to seek the unclaimed funds and allowed the trustee to join the case. The trustee returned to bankruptcy court and alleged the $51,000 belonged to the bankruptcy estate, not to Daher. Gold disputed the right of the trustee to pursue the funds, and in September 2013, Gold and the trustee reached an agreement where Gold would hold the $51,000 in his Interest on Lawyers’ Trust Accounts (IOLTA) until the bankruptcy court decided if all or some of the unclaimed funds belonged to the estate. Gold agreed that once the bankruptcy court ruled on the matter, he would transfer the funds from the IOLTA to the trustee.

Lawyer Withdraws Funds from Account
Within a month of the agreement, Gold withdrew $5,000 from the account without court approval. He then dispersed another $8,800 from the account without court approval.

In spite of the agreement, Gold argued that Daher’s bankruptcy case should be closed and that the trustee was not entitled to any funds. He also argued that he be entitled to hourly fees for representing Daher despite his contract with Daher that he entitled him to a percentage of the unclaimed funds.

As the two sides argued their cases, Gold withdrew about $9,500 from the account in December 2013. In March 2014, Gold gave Daher $2,000 from the account without court approval, and withdrew another $6,500. A month later, the bankruptcy court ruled all the funds belong to the estate and that Gold needed to transfer the money to the trustee.

Gold appealed the decision and continued to withdraw funds. By November 2014, he had withdrawn $48,872 from the account. The trustee and Daher reached a settlement that allowed Daher to retain $18,300 of the settlement funds in exchange for ceasing to file further appeals in the matter.

Gold refused to sign the settlement agreement, stating it did not properly address his attorney fees. In February 2015, the bankruptcy court ordered Gold to provide the trustee about $32,700 within five days, and allowed Daher to retain $18,300.

Client Receives Payment, Trustee Doesn’t
The day of the court ruling, Gold deposited $8,000 in his IOLTA account and wrote a check to Daher for $6,000. He also gave Daher $6,000 and kept the remaining $6,300 as his fee. Gold didn’t transmit the $32,700 to the trustee. Gold claimed he had a lien on the unclaimed funds and stated he was entitled to them for the work he did on the case. He stated he worked more than 240 hours, and should be paid $49,000 based on his customary $200 hourly rate.

The bankruptcy judge ruled that Gold raised the issue too late and should have addressed it before the case was closed. Gold declined to turn over the money, and it became clear to the judge that Gold didn’t have adequate records of his IOLTA funds that he could provide the court.

The bankruptcy court continued throughout 2015 to conduct hearings in the Daher bankruptcy, and held Gold in contempt of court. Gold also filed his own case for personal bankruptcy before the court. Gold failed to appear at the some of the hearings in the matters and, by March 2016, the bankruptcy court sanctioned Gold by fining him for the amount he was to transfer to the bankruptcy trustee, plus $1,600 in fines for noncompliance with court orders, and required him to pay the trustee’s attorney fees.

As Gold appealed the decision, he began settlement negotiations with the trustee and paid $16,000. He continued to make payments and, by the time of his disciplinary hearing concluded, he had paid the full $32,700 he owed.

Based on Gold’s action in the Daher matter, the Office of the Disciplinary Counsel brought the charges of rule violations to the professional conduct board.

Board Recommends Suspension
The board wrote the complaint essentially alleged that Gold:

Acted to obstruct the bankruptcy trustee from locating the whereabouts of settlement proceeds

Violated bankruptcy court orders

Failed to comply with agreements made with the bankruptcy trustee

Misappropriated funds from his client-trust account

Failed to appear at hearings

Engaged in intentional acts to avoid bankruptcy court orders

The board found Gold’s behavior similar to attorney: sanctioned by the Court in Disciplinary Counsel v. Marshall (2014). In a personal injury case, the attorney was ordered to place an $85,000 settlement check into her client trust fund and was told to hold it until a dispute about the case was settled. The attorney immediately disbursed all the money before the court could resolve the matter. The attorney was suspended for two years, with one year stayed.

The board noted that Gold presented more mitigating factors in his case than the attorney in Marshall, including his timely payment of restitution and his suffering from disorders. The board recommended Gold’s second year of suspension be stayed with the conditions that he comply with his Ohio Lawyer’s Assistance Program (OLAP) contract, make full restitution to the trustee (which he did), and commit no further misconduct. If he is reinstated to practice law, then he must spend a year under a monitoring attorney focused on the proper use of an IOLTA.

Attorney Objects to Sanction
Gold is not contesting the conclusions reached by the board, but argues there are differences between the behavior of Marshall and himself that warrants a lesser sanction. Gold proposes that his two-year suspension be fully stayed. He argues that Marshall was found to have caused harm to the judge with false statements regarding the judge’s integrity, and was jailed for contempt of court. He argues the board found fewer aggravating circumstances in his case, and more mitigating factors that should entitle him to a fully stayed suspension.

While he disagreed with the judge in his bankruptcy case, Gold asserts he made no false claims about the judge, and Marshall presented no claims of a qualified disorder that impacted her behavior as he did. Gold suggests his case is closer to Disciplinary Counsel v. Edwards (2012), where the attorney was given a two-year, fully stayed suspension for misappropriating $69,000 in client trust account funds for his personal use. Gold argues his conduct didn’t harm his client because he paid the funds the bankruptcy court agreed could be paid.

Disciplinary Counsel Supports Suspension
The disciplinary counsel agrees that Gold’s case is similar to Marshall in many respects, but the key difference is that Marshall wasn’t charged with misappropriating client funds, while Gold was. The disciplinary counsel states that the money belonged to Daher, even if he wasn’t entitled to keep it because it had to be transferred to his bankruptcy estate.

The disciplinary counsel asserts the Supreme Court has long held that the presumed sanction for a lawyer misappropriating funds is disbarment, and that since 1995 lawyers have been “on notice that a course of dishonest conduct will result in an actual suspension from the practice of law.”

The disciplinary counsel also notes the circumstances in Edwards are different than Gold’s, including that the attorney made full restitution to clients before the disciplinary proceedings began while Gold still owed the bankruptcy trustee $12,000 at the time of his panel hearing. The disciplinary counsel also notes that Gold admitted he wasn’t fully compliant with his OLAP contract and that his treating professionals were not fully aware of his conduct. Concluding that the Supreme Court has imposed actual suspensions for attorneys whose cases are similar to Edwards, the disciplinary counsel supports the board’s recommendation.

 Dan Trevas

(Mike Frisch)

January 22, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Deception Equals Disbarment In Maryland

The  Maryland Court of Appeals has an intolerant view of dishonest conduct by an attorney and imposed disbarment in a matter involving misconduct in post-conviction matters.

 Under our jurisprudence, there appears to be little to no saving grace for an attorney who has knowingly acted to deceive clients, Bar Counsel, or the Court and where there are no compelling extenuating circumstances to mitigate the attorney’s conduct...

In this case, Respondent’s actions were plagued with both negligent misappropriation and intentional dishonesty. Respondent made several “tithe” payments to his church, made unearned payments to himself, and withdrew money for copy repairs—all drawn from his client trust account. The hearing judge found that his misconduct did “not rise to the level of criminality or direct misappropriation” but instead appeared to have been “borne of sloppiness and delegating responsibility to others. . . .” Judge Bryant found suspect the amount of work, the nature of the work, and timing of the work that Respondent performed, but ultimately, determined that Respondent “did not merely take the clients’ money and run.” In other words, the hearing judge did not find that Respondent’s misappropriation was intentional. We infer from the hearing judge’s findings that Respondent’s hubris combined with his sloppy case management, excessive delegation of responsibilities to others, his poor record keeping, and his improper handling of monetary matters prevented him from recognizing his misappropriation of client funds.

We, however, cannot overlook Respondent’s intentional misrepresentations to his clients and Bar Counsel. Respondent’s misappropriations may not have risen to the level of criminality or “direct misappropriation,” but the misrepresentations he made to hisbehalf of his clients, are actions of intentional dishonest conduct. We are troubled here, as we were in Lane, that Respondent’s conduct was intentional concealment of his nonperformance and evidenced an intention to keep unearned funds. See Lane, 367 Md. at 647, 790 A.2d at 629. Additionally, a lack of mitigation in the present case does little to alleviate our concern that Respondent may repeat his behavior with future clients. See id. Respondent and his legal assistant drafted fabricated billing statements and accounts of time spent on client matters, both of which Respondent submitted to Bar Counsel. Respondent on several occasions told his clients and Bar Counsel that the clients’ funds remained in escrow, when they had not. Respondent told Ms. Simmons and her Public Defender that he had drafted her post-conviction petition months before he ever put pen to paper. His actions mirrored the intentional dishonest conduct in Mitchell and Wallace. See Mitchell, 445 Md. at 250, 126 A.3d at 77 (explaining that the attorney failed to amend a complaint on behalf of his client and, subsequently, deceived Bar Counsel about the status of that complaint); see Wallace, 368 Md. at 283-84, 793 A.2d at 539 (explaining that, among other misconduct, the attorney mispresented to his client that he was working on her case). 

Respondent’s intentional misrepresentations, negligent misappropriation as well as his numerous other rule violations are further exacerbated by several aggravating factors. Without any mitigating factors or compelling extenuating circumstances to consider, there is only one appropriate sanction. See Thomas, 445 Md. at 402, 127 A.3d at 576. To achieve our goal of protecting the public, and to follow our principle established in Vanderlinde, the appropriate sanction in this case is disbarment. 

Oral argument linked here. (Mike Frisch)

January 22, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Privilege Resolved On Question- By-Question Basis

The Rhode Island Supreme Court remanded a matter  involving attorney-client privilege

Viner was a North Kingstown High School chemistry teacher. It is undisputed that, during the summer following the 2014-2015 school year, one of Viner’s female students complained to her mother, who informed the school administration, about alleged inappropriate behavior by Viner. In an affidavit submitted to the Superior Court, Attorney Mary Ann Carroll, as legal counsel to the school committee, explained, that upon learning of the allegations, her law firm launched an investigation. She further explained that Attorney Aubrey Lombardo assisted in the investigation by interviewing five high school students and preparing a report based on those interviews, which was submitted to the superintendent of the North Kingstown School Department and the principal of North Kingstown High School.

After a pre-suspension hearing

In response, Viner requested a full evidentiary hearing before the school committee, which took place on December 7, 2015. At the conclusion of the full evidentiary hearing, the school committee again voted to suspend Viner without pay for the remainder of the school year and then terminate his employment at the close of the year. In turn, Viner appealed the school committee’s decision to the commissioner of elementary and secondary education within the Rhode Island Department of Elementary and Secondary Education (RIDE). At Viner’s request, the RIDE hearing officer issued three subpoenas pursuant to G.L. 1956 § 16-39-8: witness subpoenas addressed to Attorneys Carroll and Lombardo and a subpoena duces tecum to the North Kingstown School Department.

On appeal

Based on the foregoing, therefore, we remand this case to the Superior Court to follow the procedure described above. At the discretion of the hearing justice, the two attorneys may either be deposed or testify at a hearing. The hearing justice may then make an attorney-client privilege determination on a question-by-question basis, bearing in mind that the burden of persuasion rests upon the party seeking to assert the privilege. See State v. von Bulow, 475 A.2d 995, 1005 (R.I. 1984). We expect that the council on elementary and secondary education will refrain from proceeding further on this matter until the issue is resolved by the hearing justice.  Following the hearing justice’s privilege determination, any party in interest may request the RIDE hearing officer to reopen the evidence to receive any testimony from the attorneys that has been deemed to be nonprivileged by the hearing justice. In the event that the administrative proceedings result in a final judgment under the APA, an aggrieved party may claim the hearing justice’s decision on the attorney-client privilege as error in a petition for a writ of certiorari under G.L. 1956 § 42-35-16.

A dissent would find the issue non-ripe.

I must respectfully dissent from the majority’s opinion because I believe that the issue before the Court is not ripe due to the fact that an appeal to the Council on Elementary and Secondary Education remains pending; and, if James Viner prevails in that appeal, it would render the instant case entirely moot. Indeed, the majority itself concedes that “the school committee’s petition to quash may not have been ripe for review” and that review of such interlocutory rulings of administrative agencies should be “sparingly exercise[d] * * *.” (Internal quotation marks omitted.) It is my definite belief that, in the instant case, this Court should follow “our usual policy of not opining with respect to issues about which we need not opine * * *.” Grady v. Narragansett Electric Co., 962 A.2d 34, 42 n.4 (R.I. 2009)

The decision of the Commissioner of Education is linked here. 

It may well be that, as the Principal told the School Committee, she and her “new administrative staff” had “erred on the side of caution” and “asked the attorneys to come in and make sure we were doing something that was totally hands off so it could be a very fair investigation.” See ¶ 30, supra. Yet, the evidentiary record indicates that this “totally hands off” approach was taken to an inappropriate extreme. Indeed, it appears from the record that everybody in charge – the private attorneys that were hired, the Principal and the Superintendent– just assumed that the various sometimes contradictory allegations made by the five students whose interviews were contained in the Viner Report were accurate, and failed to draw their own conclusions based upon competent evidence. Indeed, as noted, the author of the Report did not herself come to any of her own conclusions as to the credibility of those students who were interviewed, and did not even speak with many of the students who testified before the undersigned, or even to Mr. Viner.

Thus, as noted, the School Committee based its decision to suspend and dismiss a teacher who served without incident for twenty-two years without prior warning or gradual discipline based largely, if not entirely, upon the bare, contradictory allegations of five students, without the benefit of any meaningful evaluation as to their credibility or follow-up by the adults charged with doing so. By contrast, the undersigned did not find the students making the material allegations against Mr. Viner, i.e., R.J. and H.D., any more or less credible than the far greater number of students who testified that Mr. Viner was an “excellent teacher” who never used “vulgar language,” “sexual comments” or “sexual innuendo” in front of them. See ¶¶ 48-49 and notes 20-21, supra.

In addition, contrary to the School Committee’s inference that Mr. Viner’s decision not to testify at its December 7, 2015 evidentiary hearing should be held against him, see School Committee’s Supp. Mem. at 3-4, the decision, rather than evidencing any consciousness of guilt, was more likely a tactical response to the School Committee’s failure to more specifically identify the charges and evidence against him. And little time need be spent addressing the allegation in the Statement of Cause that Mr. Viner “encourage[d] students to cheat on exams,” see Petitioner’s Ex. 1 at 3, as: (a) Mr. Viner’s testimony flatly denying the allegation, see ¶ 52(b), supra, was not rebutted; and (b) the Principal made clear that there was “no link” between the alleged cheating on exams and the alleged sexual harassment. See June 10 Tr. at 119

The order suspending and terminating the teacher is attached at the beginning of the link. (Mike Frisch)

January 22, 2018 in Privilege | Permalink | Comments (0)

The Wife He Never Met

Misconduct as a notary public has resulted in a public reprimand by the Massachusetts Board of Bar Overseers.

The respondent is employed as an attorney with a state agency. He has no history of prior discipline.

The respondent is also a notary public of the Commonwealth of Massachusetts. From time to time, in the ordinary course of his employment, the respondent notarizes documents on behalf of the agency: in addition, he periodically notarizes personal documents for fellow employees of the agency.

The problem

In April 2014, at work, a fellow employee asked the respondent to notarize a Home Affordable Modification Agreement for himself and his wife. The document that the employee asked the respondent to notarize already contained a signature purporting to be that of the wife. The respondent had never met the wife, and she was not present. In response to
the employee’s request, the respondent notarized the wife’s signature on the agreement, falsely acknowledging that she had personally appeared before him, provided her driver’s license for identification and acknowledged that her signature was made voluntarily for the stated purpose. The respondent believed in good faith that the employee’s wife was too busy at work to come before him and that she had assented to the agreement. In fact, the employee’s wife never signed and had no knowledge of the agreement.

In October 2015, at work, the same fellow employee asked the respondent to notarize a Lump Sum Benefit Election form for himself, and an accompanying Spouse’s Waiver of Survivor Annuity form for his wife. On the Lump Sum Benefit Election form, the fellow employee requested a lump sum payment directly to himself of his pension benefits in or about the amount of $64,121.57. The document provided that no further benefits would be due to the employee or to his spouse.

The spouse’s waiver that the fellow employee asked the respondent to notarize already contained a signature purporting to be that of his wife. The respondent had still never met the wife, and she was not present. In response to the employee’s request, the respondent notarized the wife’s signature on the waiver, falsely acknowledging that she had personally appeared before him, provided her driver’s license for identification and acknowledged that her signature was made voluntarily for the stated purpose. The
respondent believed in good faith that the employee’s wife was too busy at work to come before him and that she had assented to the waiver. In fact, the employee’s wife never signed and had no knowledge of the Spouse’s Waiver.

In early 2017, during her divorce proceedings, the wife learned that her name had been forged in April 2014, on the Home Affordable Modification Agreement, and in October 2015, on the Spouse’s Waiver of Survivor Annuity form, and that the respondent had purportedly witnessed and notarized her signatures.

The respondent was not paid for his services and enjoyed no economic benefit.

The parties stipulated to the sanction. (Mike Frisch)

January 22, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 21, 2018

The Peter-Paul Principle: Random Audit Leads To Disbarment

A matter that began with a 2012 random audit has led to a disbarment by the New Jersey Supreme Court.

The Disciplinary Review Board report

The random audit revealed respondent’s knowing misappropriation of both client and escrow funds between June 2012 and August 2013. Respondent routinely withdrew funds from his attorney trust account for personal or business use, invading client and escrow funds and creating shortages in the trust account. Moreover, the audit revealed that respondent had engaged in "lapping," that is, taking one client’s funds to pay trust obligations owed to another client -in a nutshell, "robbing Peter to pay Paul," but always making certain that "Peter’s funds" were replenished when it was time to repay "Peter." See In re Brown, 102 N.J. 512, 515 (1986). Respondent admittedly made multiple deposits of cash and of fee checks into his attorney trust account to cover trust shortages, negative client balances and obligations as they became due.

During the ethics hearing and before us, respondent admitted that he had "lapped" clients’ and third parties’ funds. He claimed, however, that, despite his status as a CPA, he "wasn’t aware it was happening" because he was not diligent in his recordkeeping and had problems with his QuickBooks program. Moreover, during the ethics hearing, respondent repeatedly admitted that he did not have the prior authorization of both parties, in respect of escrow funds, to use those funds to pay the obligations of other clients or third parties, but asserted that he always sought verbal authorization from his client to do so.

He nonetheless denied knowing misappropriation but

Following a de novo review, we are satisfied that the record clearly and convincingly establishes that respondent was guilty of unethical conduct. Specifically, we determine that respondent knowingly misappropriated client and escrow funds, representing deposits in real estate and business transactions, through repeated "lapping" of his attorney trust account funds. Indeed, respondent admitted doing so, claiming only that his conduct was "inadvertent," versus knowing. His affirmative defenses to the allegations of knowing misappropriation are of no moment, and constitute nothing more than obfuscation of the truth - that he had blatantly used his attorney trust account as he saw fit, with no regard to the interests of his client, third parties, fellow attorneys, or the bright-line ethics rules governing attorney trust accounts.

The DRB quoted the seminal Wilson and Hollendonner precedents

Accordingly, because respondent knowingly misappropriated client trust funds and third-party escrow funds, disbarment is the only appropriate sanction, pursuant to the principles of Wilson and Hollendonner. We so recommend. Therefore, we need not address discipline for his additional ethics violation of practicing law while ineligible.

(Mike Frisch)

January 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Growing Pains

An attorney has been charged with criminal misconduct in a complaint recently filed by the Illinois Administrator

 In or around October or November 2015, David Heyn, Jr. ("Heyn") owned property located at 13212 Red Arrow Highway, Sawyer, Chikaming Township, Berrien County, Michigan ("Sawyer property"). During that same time, Heyn rented the Sawyer property to Billy Crum ("Crum"). The Sawyer property included a residential, single-story house, as well as an unattached, garage-like structure. While renting the Sawyer property, Crum used the unattached structure to illegally cultivate and manufacture marijuana plants, in what is commonly referred to as an indoor marijuana grow operation.

In or around October or November 2015, Respondent learned of Crum’s indoor marijuana grow operation, and contacted Crum to inquire about purchasing the operation at the Sawyer property.

Sometime between November and December 2015, Respondent, along with Thomas Fitzgerald, and a third individual known only as Eugene, agreed to purchase the marijuana grow operation from Crum for $100,000, which they paid through two separate cash payments of $25,000, and $75,000. The sale included Crum’s entire marijuana grow operation, including equipment, marijuana plants, and related inventory.

Between approximately December 2015 through June 9, 2016, Respondent operated the marijuana grow operation at the Sawyer property. Respondent also maintained contact with Crum, who visited the Sawyer property on several occasions to assist Respondent with the operation.

On June 9, 2016, in furtherance of its criminal investigation, the Berrien County Sheriff’s Office Narcotics Unit executed a search warrant for illegal narcotics and other related items at the unattached, garage-like structure on the Sawyer property. During the execution of the search warrant, officers located and seized 241 potted marijuana plants, 3.6 pounds of dried marijuana, grow lights, fans, work tables, power tools, a scale, a pH meter, and other miscellaneous marijuana growing equipment, as well as marijuana growing instructions, and a calendar related to Respondent’s indoor marijuana grow operation.

Following the execution of the search warrant, officers with the Berrien County Sheriff’s Office Narcotics Unit contacted Heyn in furtherance of their investigation into the marijuana grow operation. Heyn confirmed that he owned the Sawyer property, and rented the property out to tenants. Heyn also provided officers with the copy of a check he received as rent payment for the Sawyer property. The check copy Heyn provided to officers was payable to Heyn in the amount of $1,200, and showed "March-April" in the memo line, "T. Fitzgerald" in the name section, and the signature of "Timothy Fitzgerald" on the signature line.

The criminal case

...the Berrien County Prosecuting Attorney’s Office charged Respondent with criminal offenses in a three-count information in the Second Circuit Court of Berrien County, Michigan, in relation to the marijuana grow operation and items seized at the Sawyer property. The matter was captioned The People of the State of Michigan v. Timothy J. Fitzgerald, docket number 2017-000374-FH, and assigned to the Hon. Charles T. LaSata ("Judge LaSata"). Count One of the information charged Respondent with the felony offense of manufacturing over 200 plants of marijuana on or about June 9, 2016, in violation of Section 333.7401(2)(d)(i) of the Michigan Compiled Laws. Count Two charged Respondent with the felony offense of possession with intent to deliver marijuana on or about June 9, 2016, in violation of Section 333.7401(2)(d)(iii) of the Michigan Compiled Laws. Count Three charged Respondent with the misdemeanor offense of maintaining a drug house on or about June 9, 2016, in violation of Sections 333.7405(1)(d) and 333.7406 of the Michigan Compiled Laws. Respondent pleaded not guilty to all counts.

On September 15, 2017, following a two-day jury trial, the jury found Respondent guilty on all counts of the information. On October 16, 2017, Judge LaSata sentenced Respondent to 365 days in the Berrien County jail on Count One, and 180 days in the Berrien County jail on Counts Two and Three, along with court fines, fees and costs of $2,008.00, with all sentences to run concurrently.

The Chicago Sun-Times reported on a matter that was ongoing at the time of the attorney's arrest.

A 72-year-old attorney who represented Bottled Blonde was arrested on drug charges last week in Michigan, delaying the maligned River North establishment’s latest disciplinary hearing with city officials.

Timothy Fitzgerald was booked Friday into the Berrien County Jail in southwest Michigan, where he faces two felony counts of delivering or manufacturing marijuana, and one felony count of maintaining a drug house, a jail official said.

Fitzgerald — who has represented Bottled Blonde over the last four months as it faces scrutiny from the city over whether it has violated terms of its liquor license by operating primarily as a bar instead of a restaurant — was still being held at the jail as of Tuesday afternoon.

Tuesday morning, the restaurant had been scheduled for its final hearing with the Local Liquor Control Commission before a city officer makes a recommendation on whether it gets to keep its liquor license.

Instead, in the wake of Fitzgerald’s arrest, Bottled Blonde’s owners asked for a delay as they search for new representation.

(Mike Frisch)

January 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 19, 2018

Born And Raised (But Never Admitted) In Rhode Island

Brothers who practiced law in Rhode Island for eighteen years despite being admitted only in Massachusetts have been suspended for one year by a single justice (Associate Justice Budd) of the Massachusetts Supreme Judicial Court.

The respondents are both admitted to the Massachusetts bar, but neither has ever been licensed to practice in Rhode Island. In 1995, Carl formed Lovett & Lovett in Providence with his then-wife, Karen, who was licensed to practice law in Rhode Island. Once Samuel was admitted to the Massachusetts bar in 1996, he joined the firm as a partner. Each respondent owned 49% and Karen owned 2%. Karen worked limited and inconsistent hours at the firm and did not have supervisory power over either respondent. In 2002, the firm hired a Rhode Island attorney, John Sylvia. While an employee, Sylvia had no cases of his own and had no supervisory authority over the respondents' work on Rhode Island cases.

The facts indicate that both respondents held managerial roles and made all the major decisions regarding the firm's cases. Although they never signed pleadings for or filed appearances in Rhode Island courts, the respondents completed a substantial amount of legal work on Rhode Island-based cases. Among other responsibilities, the respondents drafted pleadings, communicated with clients and opposing counsel, determined case strategy, and negotiated and reached settlements.

The respondents were also responsible for the firm's website and advertising. Although the website indicated that they were licensed to practice in Massachusetts, not Rhode Island, the  site featured images of the Providence skyline and the respondent's biographies stated that each brother was ''born and raised in Rhode Island." Further, the firm was physically located in Providence and all of its phone numbers had Rhode Island area codes.

Bar Counsel had taken a forgiving approach, while the Board of Bar Overseers proposed a two-year actual suspension

In order to practice law in a particular state, a lawyer must be licensed in that state ( or be supervised by an attorney so licensed). The rules of each state are different. Lawyers are expected to be familiar with the specific statutes, rules and regulations of the state or states in which they are licensed to practice. That is the purpose of the licensing requirement. Here, the respondents intentionally and completely circumvented the rules by creating a system designed to evade the rules of licensure. Their surreptitious actions included having other attorneys sign documents and appear in court for cases which they themselves worked on, and  failing to clearly advertise that they were not licensed in Rhode Island. They continued this pattern of conduct in an attempt to skirt the rules for at least eighteen years. The recommendation by Bar Counsel to stay a two-year suspension is little more than an opportunity for the respondents to avoid the repercussions of their misconduct, and provides no deterrence for others tempted to engage in similar behavior. On the other hand, none of the few cases cited by the Board show more than a one-year suspension for similar misconduct.

The facts were "mainly derived" from findings of the Rhode Island Supreme Court Committee on Unauthorized Practice, which conducted a four-day hearing. (Mike Frisch)

January 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Mediating While Intoxicated

The Indiana Supreme Court has suspended an attorney for not less than one year without automatic reinstatement.

Respondent was employed with the Juvenile Division of the Marion Superior Court. On October 18, 2016, Respondent was scheduled to conduct a CHINS case mediation at 1:30 p.m. Respondent failed to appear on time and the other attorneys involved in the mediation were unable to reach her. When Respondent finally arrived at the mediation at 2:00 p.m., she was in an intoxicated state. Respondent attempted to participate in that mediation and a subsequent mediation later that day but was unable to assist due to her intoxicated state. The presiding judge of the juvenile court had an officer administer a portable breath test to Respondent, which showed a BAC of 0.23. Respondent resigned her employment with the juvenile court as a result of this incident.

On December 29, 2016, shortly after 12:30 p.m., Respondent was arrested in Johnson County for operating a vehicle while intoxicated (“OWI”). Respondent currently is awaiting trial on charges that include, among other things, both a felony OWI count and a habitual offender count that are predicated in part on prior OWI convictions.

Respondent has prior discipline for similar misconduct. See Matter of Compton, 988 N.E.2d 262 (Ind. 2013).

(MIke Frisch)

January 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Media Statements Draw Reprimand

The Nebraska Supreme Court has publicly reprimanded an attorney who had been admitted pro hac vice in a homicide case for violating a court order regarding publicity.

On July 19, 2013, respondent was admitted to the practice of law in the State of Nebraska pro hac vice by order of the county court for Douglas County, Nebraska. Her admission was for appearing in the case of “State v. Anthony Garcia” (Garcia case), docketed in Douglas County Court as case No. CR13-17383 and in the district court for Douglas County as case No. CR13-2322. Anthony Garcia had been charged with committing four homicides. Respondent is also admitted to the practice of law in the State of Illinois. With respect to the Garcia case, at all relevant times, she was engaged in the practice of law in Omaha, Nebraska.

She conditionally admitted the allegations

The amended formal charges state that during the Garcia case, on June 26, 2015, the trial court issued a protective order under seal regarding an unrelated 2007 homicide known as the Blanchard homicide. The protective order stated, “‘[N]o information or knowledge obtained [by the State or Garcia] from the review [of the Blanchard homicide evidence] may be used, disclosed, or referenced during preparation for trial, during trial, or for any other matter in this [Garcia] prosecution.’”

Shortly before trial of the Garcia case was scheduled to commence on April 4, 2016, a suspect was arrested in the Blanchard homicide. After the arrest of the suspect in the Blanchard homicide and prior to the Garcia trial, respondent made numerous statements to news media related to the suspect in the Blanchard homicide indicating that it was the belief of Garcia’s defense team that such suspect was involved in two of the homicides for which Garcia stood charged. Omaha television news station WOWT quoted respondent as saying, “‘By cross-comparing the DNA evidence that they discovered at the . . . Blanchard scene, DNA [of the suspect in the Blanchard homicide] was at both scenes. I don’t see how they’re going to explain the cross-over in the DNA and the existence of both people at both crime scenes.’” Omaha television news station KMTV quoted respondent as saying, “‘This evidence conclusively exonerates . . . Garcia and shows that it cannot be a coincidence the two manners of killing being signature like and the crossover between the two scenes of the same two suspects.’” Respondent also made statements to the Omaha World-Herald newspaper that the defense team hoped that “‘we’ll get a call from the County Attorney’s office that they’re dismissing those charges.’”

Following respondent’s statements to the media, on March 30, 2016, the State moved for sanctions against her. On March 31, respondent and her out-of-state co counsel jointly renewed their motion for admission pro hac vice due to the withdrawal of prior local Nebraska counsel. Following an April 4 hearing, the trial court issued an order nunc pro tunc finding that respondent violated the protective order regarding the Blanchard homicide with her public dissemination of the DNA results in the Blanchard homicide. The trial court further found that respondent’s statements to news media violated Neb. Ct. R. of Prof. Cond. § 3-503.6. The trial court disqualified respondent from continued admission to practice and participate in the Garcia case pro hac vice.

Sanction here

Respondent is publicly reprimanded. If respondent applies to appear pro hac vice in a case pending in the state courts of the State of Nebraska, she must disclose this discipline in any such application.

The case is State ex rel. Disciplinary Counsel  v. Motta and should be available through this link.

The Chicago Tribune reported on federal court discipline involving the attorney last May

In a strong rebuke made public Friday, Motta was suspended from practicing in the Northern District of Illinois for 90 days after she was accused of using profanity in front of the jury, scoffing at judicial rulings and otherwise disrupting the high-profile trial of a woman accused of weapons violations.

In one particularly egregious instance, Motta rolled her eyes and said, "F------ bull----" after U.S. District Judge Amy St. Eve overruled an objection, according to a three-page order issued by the federal court's Executive Committee, which ruled that Motta's behavior "prejudiced the administration of justice."

"Not only are witnesses thrown off balance when the opposing lawyer visibly reacts to testimony (such as by rolling her eyes), a lawyer's outright defiance of a trial judge's decision endangers the judge's control of the courtroom," wrote the committee, a disciplinary arm of the court with a revolving panel of judges and the clerk of the court.

In addition to taking the rare step of suspending Motta from practicing for three months, the committee also barred her from participating as lead attorney in any trials for a full year. She must also take ethics and professionalism classes.

An historical reference

Motta's firm was founded by her father-in-law, Robert Motta, a onetime Cook County assistant public defender who gained attention in the 1980s as co-counsel for infamous Chicago serial killer John Wayne Gacy.

(Mike Frisch)

January 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Pennsylvania Disbars Drug-Using Drug Court Judge

The Pennsylvania Supreme Court Western District has disbarred an attorney for misconduct as a judge in a full opinion rather than its usual practice of adopting the report of the Disciplinary Board

In this matter, we consider the request of Petitioner, the Office of Disciplinary Counsel (“ODC”), to disbar Respondent, Paul Michael Pozonsky, from the practice of law in this Commonwealth. Pozonsky was a commissioned judge of the Court of Common Pleas of Washington County who presided over criminal trials, juvenile delinquency hearings, and also directed the rehabilitative disposition of drug offenders in that county’s Drug Court, which he founded. Using his position as a jurist, he directed police officers and court personnel to bring cocaine, which was evidence in the cases over which he was presiding, to an evidence locker in his courtroom; whereupon, for over a year, he stole quantities of this illegal drug from that locker and used it for his own recreational purposes, all while continuing to preside over criminal prosecutions and imposing sentences on defendants for committing crimes which he himself was contemporaneously engaging in. After Pozonsky’s illicit activities were discovered, he resigned his judicial commission and was convicted for his crimes. After considering all the relevant facts and circumstances surrounding Pozonsky’s egregious misconduct while a commissioned judge, and taking into account the mitigating evidence he offered, the Disciplinary Board of the Supreme Court of Pennsylvania (“Disciplinary Board” or “Board”) issued a unanimous report detailing its factual findings and its recommendation that he be disbarred. Because the evidence of record amply supports the Board’s findings and corresponding recommendation of disbarment, we order Pozonsky’s disbarment to both protect the public and to preserve the integrity of the legal profession.

The specifics

Beginning sometime in late October or early November 2010, and continuing through January 2012, Pozonsky exploited his position as a judge to steal powdered cocaine — an illegal controlled substance — that was the principal evidence in criminal or delinquency hearings held in his courtroom. Specifically, he ordered state troopers  who had seized cocaine which was to be used in the criminal prosecutions or juvenile adjudications over which he was scheduled to preside, as well as a court employee — his law clerk — to bring that evidence to his courtroom, where he stored it in an evidence locker in his chambers. He then surreptitiously and regularly removed quantities of this illicit substance from that locker when courtroom staff was not present, smuggled it out of the courthouse, and used it at his home. Pozonsky attempted to conceal his thefts by substituting baking powder and other substances for the cocaine he had stolen and used.

In early 2012, Pozonsky issued an order directing the destruction of evidence from closed criminal cases he had presided over. That, and the manner in which other evidence stored in the evidence locker was being handled, generated suspicion and concern from the Washington County District Attorney, Eugene Vittone, and the then President Judge of that county, Debbie O’Dell Seneca. These matters were referred to the Office of the Attorney General which began a formal criminal investigation of Pozonsky. The investigation resulted, inter alia, in the search of Pozonsky’s chambers by the Pennsylvania State Police who retrieved all remaining evidence stored there on May 9, 2012. Pozonsky resigned from the bench in June 2012, and resumed active status as an attorney; whereupon, he moved with his family to Alaska. While in Alaska, Pozonsky secured a job as a workers’ compensation hearing judge, which he held from October 8, 2012, until he resigned on December 7, 2012. 

He pleaded guilty to criminal charges.

On March 20, 2015, Pozonsky pleaded guilty to one count of theft by unlawful taking, obstructing administration of law, and misapplication of entrusted property and property of a government institution, all graded as second-degree misdemeanors. Four months later, on July 13, 2015, he was sentenced to 1 to 23½ months incarceration, followed by two years probation. Pozonsky ultimately served the minimum term of incarceration — one month — and successfully completed his term of probation.

Justice Baer concurred

Without hesitation, the majority imposes the most severe sanction of disbarment, concluding that “[t]here are few transgressions which more seriously undermine the public’s confidence and trust in the integrity of their judicial system, and which are as offensive to the high standards and principles which other members of the bench and bar strive so faithfully to uphold in the performance of their duties, than those committed by [Respondent, Former Judge Paul Michael Pozonsky].” Slip Op. at 28. While I in no way condone the actions of Respondent, who founded and supervised Washington County’s Drug Court and subsequently stole cocaine from the courtroom’s evidence locker for his personal use, I find this disciplinary case much more challenging to resolve.

My difficulty lies in Respondent’s decision not to present mitigation evidence in the form of a mental health expert to establish the causal connection between what I perceive to be his drug addiction and his misconduct. See Office of DisciplinaryCounsel v. Braun, 553 A.2d 894, 895-96 (Pa. 1989) (requiring evidence of a causal connection between the psychiatric disorder and the attorney’s misconduct to establish mental health mitigation evidence in a disciplinary case). As a result of this omission, neither the lower tribunals nor the majority opinion considered Respondent’s cocaine addiction as a mitigating factor. Interpretation of the governing precedent of this Court compels me to join the majority’s conclusion that to prove legally cognizable mental health mitigation evidence in a disciplinary case, a respondent must present a mental health expert to establish the causal link between the attorney’s mental disability and his misconduct. Considering, as I believe I must, this evidentiary vacuum, I am constrained to agree with the majority that the delicate weighing of Respondent’s transgressions against the other substantial evidence of mitigation, tips the scales towards imposition of the sanction of disbarment.

...In summary, I conclude that, through his own misconduct, Respondent has lost everything he once had. Had persuasive Braun evidence been presented linking his cocaine addiction to his misdeeds, perhaps the lower tribunals or even the majority would have opted for the maximum suspension of five years, rather than disbarment. Personally, I believe that Respondent’s ultimate triumph over his addiction and his contributions to the Drug Court and to the various community organizations he served are worthy of something. However, that value does not tip the scale away from imposition of disbarment, absent appropriate Braun evidence.

Justice Donahue joined the concurrence. (Mike Frisch)

January 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 18, 2018

A Bridge Too Near

The District of Columbia Board on Professional Responsibility recommends that Bridgegate defendant William Baroni be disbarred for conviction of a crime of moral turpitude per se.

Among other offenses, Respondent was convicted of wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 2, 1343 and 1349. The Court has determined that these are crimes of moral turpitude per se. In re Bryant, 46 A.3d 402, 402 (D.C. 2012) (per curiam) (wire fraud); In re Schainker, 871 A.2d 1206, 1206 (D.C. 2005) (per curiam) (conspiracy to commit wire fraud). “When an attorney is convicted of multiple offenses, disbarment is imposed if any one of them involves moral turpitude per se,” and thus, we need not analyze the other offenses of conviction. See In re Hoover Hankerson, 953 A.2d 1025, 1026 (D.C. 2008) (per curiam).

Respondent’s appeal of his conviction does not delay the Board’s recommendation in this matter; however, the Court should defer final action until the appeal is decided. See In re Hirschfeld, 622 A.2d 688, 690 (D.C. 1993) (withholding action on Board report and recommendation until appeal of conviction is concluded).

He has been serving an interim suspension since October 17, 2017. (Mike Frisch)

January 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Double Disbarment For Billing Deceit

The Oklahoma Supreme Court has imposed reciprocal disbarment based on an identical Colorado sanction

The Supreme Court of Colorado determined that Respondent violated Colorado Rules of Professional Conduct (Colo. RPC) 8.4(c) and 1.15A (as well as the former Colo. RPC 1.15(b)), by committing knowing conversion / misappropriation.2 The court determined Respondent knowingly misappropriated roughly $57,338. The amount in question was billed to Respondent's firm Kleinsmith & Associates, PC (in which he was a solo practitioner) by First American Title Company, LLC and First American Title of Montana, Inc. (collectively, First American) for title services in connection with Respondent's representation of a client, U.S. Bank. Respondent obtained the $57,338 from his client U.S. Bank by billing for "title commitment" but proceeded to use the funds U.S. Bank gave him for his firm's unrelated operating expenses rather than paying First American the amount it was owed. First American subsequently filed a lawsuit and obtained a judgment for $55,782 against Respondent's firm, which it has been largely unable to collect.

No comfort here

The record before this Court is clear that Respondent engaged in deceitful billing practices that resulted in his client paying $57,338 for First American's services. That amount was then knowingly misappropriated by Respondent and instead used for other purposes, causing substantial harm to First American. The conduct for which Respondent was disbarred in Colorado warrants disbarment in Oklahoma, given Respondent's failure to contest the Complainant's recommendation, the lack of mitigating circumstances, and Respondent's prior disciplinary history. It is hereby ordered that Respondent Philip M. Kleinsmith be disbarred and his name stricken from the roll of attorneys. As Complainant did not file an application to recover the costs of this disciplinary proceeding, no costs are assessed.

(Mike Frisch)

January 18, 2018 in Associates | Permalink | Comments (0)

Another Marijuana-Related Disbarment

The Florida Supreme Court has disbarred an attorney less than five years after his admission

 On June 15, 2016, The Florida Bar filed a complaint against Respondent Christensen. The complaint was referred to a referee, and the referee submitted a report and recommendation on March 30, 2017. In his report, the referee found that in 2013, less than three months after being admitted to The Florida Bar, Respondent founded IJC Law Group, P.A., and began offering legal services and advice to clients. At the time, Respondent had no training in the area of medical  marijuana. Six months later, Respondent formed Health Law Services (HLS), and five months after that, incorporated Cannabinoid Therapy Institute (CTI). Respondent listed IJC Law Group, P.A., as CTI’s registered agent and nonlawyer Christopher Ralph—a self-professed expert in the medical marijuana industry—represented himself as CTI’s director. Ralph was also the "Legal Administrator and Consultant" for HLS.

Essentially, the referee found that Respondent charged clients $799 for a doctor’s visit through CTI, and if the doctor found a medical necessity for the client to use marijuana, Respondent, via HLS, provided the client with an "Official Legal Certification" and patient identification card stating that the client had received a marijuana prescription. The "Official Legal Certification" purported to advise law enforcement of the client’s right to cannabis as a medical necessity. Respondent advised his clients, and his clients believed, that based on Florida law, the clients had a right to possess, use, and grow cannabis due to medical necessity and that they were protected by the affirmative defense of medical necessity. Respondent did not tell his clients that this affirmative defense would not apply, if at all, until after the clients were arrested, charged, and prosecuted.

The referee found that several of Respondent’s clients were arrested and prosecuted after following this advice. Respondent attempted to represent two of these clients in the criminal proceedings, but was subsequently disqualified on motion by the State for conflict of interest. Respondent refused to refund the attorney’s fees he charged, but was eventually ordered to do so when the trial court granted the clients’ motion for disgorgement of attorney’s fees. Respondent failed to comply with the order and filed an untimely notice of appeal, which was ultimately dismissed. He also failed to respond to the trial court’s order to show cause and failed to appear at the show cause hearing. The court granted the motion for order to show cause and issued a warrant for his arrest.


We conclude Respondent’s misconduct falls into this [disbarment] category. Respondent erroneously advised his clients and provided them with legally meaningless "Official Legal Certifications" purportedly authorizing them to grow and use marijuana, based on determinations made by a physician not licensed to practice medicine in the State of Florida. Several clients who relied upon Respondent’s erroneous advice were arrested and criminally prosecuted, and their lives were devastated. Further, during the criminal proceedings pertaining to the clients and during the proceedings in this disciplinary matter, Respondent continued to insist on the correctness of his clearly erroneous legal positions, until he was ordered to show cause to this Court why he should not be disbarred. We will not tolerate such misconduct by members of The Florida Bar.

(Mike Frisch)

January 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Lawyer Not A Mediator

A censure has been imposed by the New York Appellate Division for the Third Judicial Department

The charges

According to petitioner, respondent improperly prepared and urged the execution of a child custody agreement purporting to settle a dispute between parents and grandparents regarding the care of the parents' minor children. All of the parties to the agreement were not only respondent's friends to a greater or lesser extent, but they were also persons that respondent was contemporaneously representing as clients in separate legal matters unrelated to the custody dispute. After the grandparents commenced a proceeding in Albany County Family Court, respondent prepared the custody agreement unsolicited, without any input from the respective parties, and without giving them the opportunity to review the matter in advance of a meeting that he had arranged at his law office for the purpose of presenting the agreement. Although respondent inserted a provision into the agreement stating that he was not representing any of the parties with respect to the proposed custody arrangement, the petition of charges asserts that he, nevertheless, explained, discussed and provided legal advice at the meeting regarding the custody agreement. After the parties were persuaded to execute the agreement notwithstanding the father's initial objection, the dispute between the parties intensified and the grandparents, represented by separate counsel, did not settle the pending Family Court matter as provided in the agreement.

 Complaints against respondent were thereafter filed by the parents, who asserted that respondent pressured them into executing a one-sided agreement that adversely affected their custody rights, without an adequate explanation of the risks of signing such an agreement, or providing a reasonable opportunity to seek independent counsel. Respondent served an answer denying the allegations and a Referee was appointed to hear and report. A full hearing was conducted in June 2017, at which respondent was represented by counsel. The Referee thereafter issued a report sustaining the petition of charges. Respondent's claims that he acted only as a disinterested mediator and that the parties to the agreement waived or consented to any conflict of interest were rejected (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 [b]).


Turning to the issue of the appropriate disciplinary sanction, we have considered respondent's submissions in mitigation from colleagues and clients attesting to his good character. We further note the lack of proof that respondent's misconduct stemmed from any venal intent. We have also heard from petitioner and observe that respondent's misconduct is aggravated by, among other things, his significant disciplinary history, which includes a two-year stayed suspension upon findings of conversion and escrow account mismanagement (Matter of Mann, 284 AD2d 719 [2001]), which was later terminated upon respondent's application (Matter of Mann, 9 AD3d 676 [2004]), and private discipline in the form of two admonitions and a letter of caution (see Rules of App Div, 3d Dept [22 NYCRR] former § 806.4 [c] [1] [i], [ii]). Accordingly, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, we find that, under the circumstances, respondent should be censured

(Mike Frisch)

January 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Former DC Councilman Consents To Disbarment

The District of Columbia Court of Appeals has accepted the consent disbarment of a former city councilman Harold E. Brazil.

The basis for the consent is not disclosed per D.C. rules. 

He had been informally admonished in 2014 and had a 2009 criminal conviction for this incident

Former D.C. Council member Harold Brazil was convicted yesterday of assaulting the manager of a Georgetown tattoo shop in a nighttime brawl last fall.

Brazil stood quietly as D.C. Superior Court Judge Jennifer M. Anderson announced her verdict. He had just one statement before sentencing: "I request no lockup."

The 60-year-old lawyer, a council member from 1991 through 2005, could have been jailed for as long as six months on the misdemeanor charge. The judge gave him a 90-day term but suspended the time on the condition that he completes six months of unsupervised probation.

Brazil was accused of attacking the manager of the Jinx Proof Tattoo Parlor during an Oct. 9 fight at the shop, in the 3200 block of M Street NW. Prosecutors accused him of acting in a drunken rage. Brazil said that he was the victim and that the manager and two shop employees beat him.

He said he plans to appeal.

The judge, who heard testimony in a trial last month, ruled that Brazil started the fight, giving more credibility to the accounts of the tattoo parlor employees than to Brazil and the two women who were with him that night.

"This is a situation that got out of control," she declared.

Although Anderson questioned much of the testimony, some facts were not in dispute: Brazil, his secretary and a female friend had drinks that evening at Smith and Wollensky. Then they headed to the tattoo parlor. The friend went to the back of the store to get a tattoo. When Brazil's secretary tried to check on her, the shop's manager objected and pointed to a sign that said only patrons getting tattoos were permitted in that area. Brazil then got into the middle of a dispute.

The manager, Francis Bradley Payton V, told police that Brazil hit him, an allegation that led to Brazil's arrest that night. During his testimony, Payton said Brazil swung at him and missed.

Brazil testified that he was simply coming to his secretary's aid when he was attacked by Payton and two shop employees, thrown to the floor, punched, kicked and put in a chokehold. Brazil, complaining of pains in his head, neck and right knee, was taken to a hospital. He testified that he "almost got killed."

Conflicting accounts also emerged about Brazil's state. During the altercation, Brazil urinated on himself, which prosecutors said was a sign of his drunkenness.

In his testimony, Brazil denied being drunk and said he had had two glasses of wine. His attorney, G. Allen Dale, said it was the beating, not the wine, that caused Brazil to lose control of his bladder.

Brazil, who is black, also said the shop's manager, who is white, called him a racial epithet. The manager denied making such remarks, and no witnesses alerted police of such a statement.

In rendering her decision, Anderson recounted how she was struck by the testimony of Petra Ann Nikolow, Brazil's friend and defense witness who was getting her name tattooed on her shoulder that night. During the trial, Nikolow described Brazil as a gentle and kind "teddy bear" and testified that he was beaten by the shop employees. But when police arrived, Nikolow told the officers in a statement that Brazil "overreacted."

After the hearing, Brazil said he was disappointed with the outcome.

"I'm incredulous that she found them more credible than me," Brazil said, adding that he wished the case had been heard by a jury instead of a judge. Judges typically hear such misdemeanor trials.

Brazil also called the entire case a "waste of taxpayers' money."

(MIke Frisch)

January 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 17, 2018

New Mexico Estops New York

A legal malpractice claim was properly dismissed, according to a recent decision of the New York Appellate Division for the First Judicial Department

Plaintiff's claims in this legal malpractice action are barred by the doctrine of collateral estoppel (see Buechel v Bain , 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]; CPLR 3211[a][5]). There is an identity of issues necessarily decided in plaintiff's related malpractice action against defendant's cocounsel in New Mexico and decisive of this action, and plaintiff does not dispute that it vigorously contested cocounsel's successful motions for summary judgment dismissing the New Mexico action.

We note also that the complaint fails to state a cause of action (CPLR 3211[a][7]). The allegations not only are sheer speculation but also are precluded by plaintiff's settlement of the underlying action for reasons other than defendant's alleged malpractice (see Rodriguez v Fredericks , 213 AD2d 176, 178 [1st Dept 1995], lv denied 85 NY2d 812 [1995]).

(Mike Frisch)

January 17, 2018 | Permalink | Comments (0)

No Mental Health Evaluation Required

A 60-day suspension followed by two years probation has been ordered by the Minnesota Supreme Court

MacDonald began representing S.G. in 2013, as her fourth attorney of record, in a family-law matter. Among her first actions, MacDonald filed a motion challenging the constitutionality of Minnesota’s family-law statutes in response to one of the court’s orders. MacDonald’s motion relied exclusively on S.G.’s rendition of the facts—specifically, that the order was the result of an ex parte communication between the district judge and opposing counsel. It turns out, however, that the district court entered the order by mutual agreement of the parties’ attorneys. Indeed, S.G.’s attorney at the time even drafted the order. The court denied MacDonald’s motion and explained that it was predicated upon an inaccurate factual assumption.

As the matter advanced toward trial, MacDonald directed an associate to subpoena S.G.’s three prior attorneys to produce their bills and appear at trial because she believed that their testimony was necessary to lay the foundation for a request for attorney fees. MacDonald never contacted the attorneys, however, to ask whether the bills could be provided without a subpoena, nor did she contact opposing counsel to determine if a stipulation could be reached. Opposing counsel later testified that she would not have stipulated to the amount of the bills.

S.G.’s former attorneys moved to quash the subpoenas. The court granted their motions, concluding that MacDonald failed to take reasonable steps to avoid placing an undue burden on the attorneys. See Minn. R. Civ. P. 45.03(a) ("A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena."). MacDonald was personally sanctioned in the amount of $6,202.50 for her conduct. See Minn. R. Civ.  P. 45.03(d) (providing for "reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents").

MacDonald appealed the order, but the court of appeals affirmed, reasoning that MacDonald could have established the amount of attorney fees using alternative means, such as having her client testify to the amount of fees she personally paid to her attorneys. The referee concluded that MacDonald’s use of the subpoenas violated Minn. R. Prof. Conduct 3.1,1 3.4(c),2 4.4(a),3 and 8.4(d).4

During the hearing on the motions to quash, MacDonald interrupted the judge several times. When the judge told her that she was being disruptive, prompting him to call a deputy forward, she replied, "[t]he rules are that an attorney can’t talk in court?" MacDonald also interrupted the judge dozens of times during other hearings in the case. The referee concluded that MacDonald’s disruptive conduct during these hearings violated Minn. R. Prof. Conduct 3.5(h).

 On the day that S.G.’s trial was set to begin, MacDonald filed a civil-rights lawsuit in federal court on S.G.’s behalf against the district judge personally, not in his official capacity. MacDonald then moved for the judge’s recusal from the case based on the pending federal lawsuit against him. The judge denied the motion, at which point MacDonald stated, "[a]nd you are telling me that you can be impartial in this trial, which you haven’t done since day one." The referee found that this statement violated Minn. R. Prof. Conduct 8.2(a)6 and 8.4(d), because it was made with reckless disregard for the truth.

Because she had expected the judge to recuse, MacDonald admitted that she was "not ready to proceed" with the trial. She called only one witness, referred to the proceeding as a "pretend trial," and interrupted the court at least half a dozen times. The referee concluded that her lack of preparation violated Minn. R. Prof. Conduct 1.1,7 and that her repeated interruptions violated Minn. R. Prof. Conduct 3.5(h).

Before the official start of the second day of trial, but after the judge had briefly taken the bench, MacDonald approached the court reporter and accused her of inaccurately recording the prior day’s testimony. MacDonald announced that, if the court reporter was unwilling to accurately record the events at trial, she would do so herself. MacDonald then began taking pictures of the courtroom. Court deputies approached MacDonald and reminded her that she knew not to take pictures in the courtroom. See Minn. Gen. R. Prac. 4.01 ("[N]o pictures . . . shall be taken in any courtroom . . . during a trial . . . ." (emphasis added)); Order Regarding Cameras and Other Recording Equipment in Court Facilities (Dakota Cty. Dist. Ct. July 1, 2005) (providing, in a standing district-court order adopted "pursuant to Rule 4 of the General Rules of Practice," that "[n]o pictures . . . shall be taken in any courtroom . . . ." (emphasis added)).

Later that morning, during a recess, the deputies again approached MacDonald and advised her that she would receive a contempt citation for taking photographs in the courtroom. MacDonald initially cooperated with the deputies by accompanying them to a holding area to complete the necessary paperwork, but thereafter refused to give the deputies her full legal name, date of birth, and address. When asked for her name, for example, she replied, "[y]ou know my name." The deputies tried for approximately 15 minutes to obtain basic biographical information for the citation, but MacDonald refused to cooperate. Eventually, the deputies placed her in custody.

The deputies asked MacDonald to remove her jewelry, glasses, and shoes, and to submit to a pat-down search. The deputies then placed MacDonald in a holding cell. When the time came for her to return to the courtroom, MacDonald refused to stand up or walk to the courtroom on her own. The deputies therefore placed her in a wheelchair and handcuffed her hands to a belt that they had secured around her waist to bring her to the courtroom. Video footage of the incident shows that the deputies attempted to return MacDonald’s shoes, but she refused to put them on.

While MacDonald was in custody, S.G. retrieved MacDonald’s files, including her trial materials, and left the courthouse. Once MacDonald returned to the courtroom, the judge reminded her that she had an obligation to her client and repeatedly inquired about how she wished to proceed, including offering her numerous chances to contact her client and retrieve her files. Each time, MacDonald refused to respond or otherwise seek an accommodation. Her involvement in the remainder of the trial was minimal. In fact, MacDonald agrees that she did not competently represent her client, but she testified at the disciplinary hearing that her inadequate representation was due solely to her illegal arrest. She maintains that there was "nothing [she] could say or do" to correct the situation and that she "didn’t do anything wrong."

The referee found that MacDonald’s actions, both before and after her arrest, were an effort to produce a mistrial or support an appeal in S.G.’s case, or to gather evidence for the federal lawsuit against the judge. The referee concluded that MacDonald’s conduct violated Minn. R. Prof. Conduct 1.1, 3.4(c), 3.5(h), and 8.4(d). The referee also concluded that MacDonald’s separate failure to perfect an appeal in S.G.’s case, by neglecting to serve the notice of appeal on the guardian ad litem in a timely fashion, violated Minn. R. Prof. Conduct 1.1.

MacDonald subsequently amended the complaint in the federal lawsuit to include the facts surrounding the photo-and-arrest incident. The complaint alleged that the judge had retaliated against S.G. and MacDonald, compromised the Minnesota Court Information System (MNCIS), "usurped" case files with the assistance of opposing counsel, signed documents that he knew were false, and acted without jurisdiction or legal authorization. The federal district court dismissed all of the claims in the complaint, describing them as "futile" and noting that "nothing in the record supports the[m]." When asked at the disciplinary hearing about the basis for her allegations, MacDonald responded, "[t]he record speaks for itself." The referee concluded that MacDonald violated Minn. R. Prof. Conduct 3.1, 8.2(a), and 8.4(d) by making recklessly false allegations against the judge that no reasonable attorney would have made based on the evidence available.

In addition to filing a federal lawsuit against the district judge in S.G.’s case, MacDonald wrote a letter to the Board on Judicial Standards complaining about the judge’s behavior and asserting that he had acted unethically during S.G.’s trial. In total, she wrote four letters to the Board, each impugning the judge’s integrity and repeating the allegations from the federal lawsuit. She sent copies of these letters to numerous elected officials and made similar remarks in letters to other attorneys. The referee concluded that MacDonald’s statements were false, made with reckless disregard for the truth, and violated Minn. R. Prof. Conduct 8.2(a) and 8.4(d).

The court majority rejected a number of defenses including an asserted First Amendment right to criticize judges but declined to impose a mental health evaluation.

Although we have decided to place additional conditions on MacDonald during her probation, we do not accept one condition proposed by the referee. The referee recommended, and the Director agrees, that we order MacDonald to undergo a mental-health evaluation and follow all of its recommendations as a condition of her probation. Not only is there limited precedent for imposing such a condition when the attorney has not placed her mental health at issue in the disciplinary proceeding, but the referee here has made no factual findings that support it.

Justice McKeig dissented on this point and would impose a six-month suspension.

Today, the court hesitates to impose sufficient discipline, and it does so at the expense of protecting the public. Although MacDonald portrays herself as a victim, the true victim in all of this is the public. I respectfully disagree with the court’s decision to suspend MacDonald for a mere 60 days and its reluctance to require a mental-health evaluation. Our duty to the public demands more of us, and more of respondent. I conclude that a 6-month suspension, including a petition for reinstatement, and a 2-year probation term, including a mental-health evaluation, is warranted. On these grounds, I respectfully dissent.

Ballotpedia reports that the attorney ran for a seat on the Minnesota Supreme Court. (Mike Frisch)

January 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Misconduct Alleged Against Attorney - Arbitrator

The Illinois Administrator has filed a complaint alleging misconduct by an arbitrator of a law firm dispute.


On May 21, 2007, the principals in the Touhy & Touhy law firm ("Touhy principals") filed a complaint in the Circuit Court of Cook County against former Touhy firm attorneys Ryan Stephan ("Stephan") and James Zouras ("Zouras"). That matter was docketed as Touhy & Touhy, et al. v. Stephan, et al., case number 07 CH 13552 ("Stephan/Zouras matter"). On December 30, 2010, the Touhy principals filed a related complaint against Erik Langeland (an attorney practicing in New York who had referred cases to the Touhy firm ("Langeland")). The case was docketed as Touhy & Touhy, Ltd. v. Langeland, case number 10 L 14823 ("Langeland matter"). Both lawsuits related, in part, to the Touhy principals' allegations that Stephan and Zouras breached their fiduciary duties to the firm by concealing from the Touhy firm cases that had been referred to the firm by Langeland so that they could handle them outside of the firm (including cases referred to as the Yang and Ferko matters) and taking the fees in those cases for their own benefit. Stephan and Zouras had also filed a counterclaim against the Touhy principals for the payment of referral fees on a series of cases they had handled while employed at the Touhy firm.

In March of 2013, the Stephan/Zouras and Langeland matters were consolidated by the court.

On November 24, 2014, Stephan and Zouras and the Touhy principals signed a written arbitration agreement to submit the Stephan/Zouras matter for arbitration before Respondent. That arbitration agreement provided, in part, that "[t]he parties and the Arbitrator are satisfied as to the ability of the Arbitrator to act as a neutral and unbiased participant in the Proceeding," that Stephan and Zouras and the Touhy principals would evenly split the cost of arbitration, and that Respondent would be paid at the rate of $325 per hour.

The charges allege that the attorney had pre-judged the matter and engaged in dishonest ex parte communications that prejudiced the administration of justice. (Mike Frisch)

January 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Disabled And Suspended

The Indiana Supreme Court imposed sanctions on an already-suspended attorney

 In six different criminal or family law cases, Respondent generally failed to adequately communicate with his clients, missed several court hearings and conferences, and failed to appropriately advance his clients’ cases or otherwise represent their interests. In two of these cases, Respondent’s shortcomings prompted the initiation of show cause proceedings against him. In a third case, Respondent was found in contempt and jailed for five days as a sanction.

Respondent has admitted that he had severe medical issues during some or all of these representations that impaired his ability to represent his clients. Respondent currently is under an indefinite disability suspension imposed in separate proceedings.


The Court, having considered the submissions of the parties, now approves the agreed discipline. For Respondent’s professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than 90 days, without automatic reinstatement, effective immediately. At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement in this matter, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18). Reinstatement is discretionary and requires clear and convincing evidence of the attorney’s remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(18)(b). The parties further agree that, in order to be fully reinstated to the practice of law in this state, Respondent will be required to complete the reinstatement process both in this matter as well as in the disability matter.

(Mike Frisch) 

January 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)