Wednesday, February 28, 2018

Reinstatement Failure To Disclose Draws Disbarment

An attorney who had been suspended for a year and been reinstated has now suffered disbarment at the hands of the New York Appellate Division for the Second Judicial Department

The verified petition contains nine charges, alleging, inter alia, that the respondent engaged in conduct prejudicial to the administration of justice by failing to cooperate with the Grievance Committee’s investigation of a complaint filed by Michael Diederich, Jr., Esq., and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation by testifying falsely at an examination under oath conducted by the Grievance Committee and, in connection with her motion for reinstatement under Appellate Division Docket No. 2001-08741, by failing to disclose in her reinstatement affidavit dated April 14, 2004, a debt stemming from a $10,000 loan given to her by a client. The notice of petition directed the respondent to serve and file her answer to the verified petition within 20 days after service upon her of the verified petition. To date, the respondent has neither served or filed an answer to the verified petition, as directed, nor requested additional time in which to do so.

In light of no response

 the Grievance Committee’s motion is granted, the charges in the verified petition are deemed established, and, effective immediately, the respondent is disbarred and her name is stricken from the roll of attorneys and counselors-at-law.

 

February 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Failed Collaboration in Hoosierland

The Indiana Supreme Court has suspended an attorney

We find that Respondent, Robert John Wray, engaged in attorney misconduct arising from his solicitation of clients through a nonlawyer intermediary. For this misconduct, we conclude that Respondent should be suspended from the practice of law in this state for at least nine months without automatic reinstatement.

The case

The Commission filed a five-count "Verified Complaint for Disciplinary Action" on November 13, 2015, and later amended that complaint to add a sixth count. As set forth in more detail below, the amended complaint charged Respondent with a wide range of rule violations arising out of his professional relationship with Douglas Stephan, a nonlawyer. Following a hearing, the hearing officer filed a 64- page report finding Respondent committed violations as charged.

Respondent has represented several owners of allegedly defective modular or manufactured homes in actions against the homes’ installers, builders, or manufacturers. One of those owners was Stephan, who purchased a home from Joseph Callaghan, d/b/a Fahl Manufactured Homes ("Callaghan"). Respondent and Stephan developed a relationship under which Stephan (through his company Stephan Consulting, Inc., which Respondent helped Stephan incorporate) would solicit other owners to become plaintiffs in Stephan’s action and in other actions against Callaghan and other installers, builders, and manufacturers. Typically, Stephan would "cold call" the owners, offer to perform home inspections for them, and then ask those owners to sign an "Investor Agreement" and an "Attorney Agreement," both of which were drafted and/or approved by Respondent and included Respondent’s name throughout. The owners, and subsequently Respondent, would sign the Attorney Agreements, frequently without any direct communication with one another or discussion about the merits of the claim.

The Investor Agreements included statements falsely representing that the owners already had entered into fee agreements with Respondent. The Investor Agreements also included several statements that inaccurately described how litigation costs would be advanced and how the risks of litigation would be assumed. For example, the Investor Agreements stated Stephan would advance the costs of litigation in exchange for 50% of the client’s net recovery, but aside from the first few cases Stephan did not actually advance these costs.1 The Attorney Agreements provided that Respondent would receive a contingent fee of between 33% and 50%, and some Attorney Agreements also required a nonrefundable $1,000 retainer for costs.

Respondent entered into contracts with about 118 owners through his relationship with Stephan. One of these clients was David Lomperski, who – in exchange for a reduced contingent fee in his case – agreed to work with Stephan to identify other potential clients. Respondent helped draft an employment and noncompete agreement between Stephan and Lomperski.

The relationship between Respondent and Stephan eventually soured due to a dispute involving the advancement of costs, and Respondent proposed to Lomperski that they work together in the same capacity that Respondent had been working with Stephan. When they met to discuss this, Lomperski secretly recorded the conversation. Respondent also briefly entered into a similar relationship with David Blumenherst, who solicited at least two new clients using the same "Investor Agreement" template Respondent had provided Stephan.

 In addition to the misleading representations in the Investor Agreements regarding the advancement of litigation costs, after cases settled Respondent drafted a "Disbursement Authorization and Acknowledgement" form for his clients that in some instances inaccurately reflected the actual distributions and advancement of costs. After the accounting dispute arose between Respondent and Stephan, Respondent represented to clients that he had paid Stephan his share and instructed them not to pay Stephan, when in fact Respondent merely had "allocated" Stephan’s share against the amount Respondent believed Stephan owed him.

The Investor Agreements provided that Stephan "shall take the lead in communications with the attorney" and others and purported to grant Stephan the authority to advance the client’s claims and to "arrange for settlement." Notwithstanding this language, Respondent did have a general practice of writing his clients to notify them of significant events in their cases. However, Respondent admitted there often were delays of several months between the time that Stephan had clients execute Attorney Agreements and the time that Respondent eventually received those Agreements, and Respondent admitted further that he never raised the issue of these delays with Stephan. These delays could have led to claims being time-barred, although there is no evidence this occurred in any of the cases.

Several clients testified about what they felt was a lack of adequate communication or explanation from Respondent. Several clients also testified that they agreed to settle a claim against one defendant (Callaghan) based, at least in part, on Respondent’s representation that they could recover additional amounts against another defendant (Chilton). However, Chilton would have been among the parties covered by the release in the Callaghan settlement.2 The hearing officer found that Respondent misrepresented the viability of a potential claim against Chilton in order to motivate clients to settle claims against Callaghan.

During the Commission’s investigation into the events described above, Respondent represented to the Commission that "Stephan Consulting did not ‘solicit’ clients for my law office. Stephan Consulting provided financing and consulting to various homeowners under separate and distinct agreements with homeowners." The hearing officer found this statement was false with respect to both solicitation and financing.

Finally, from 2008 through 2015, Respondent failed to keep adequate trust account records and separate ledgers for each client. Respondent also kept more than a nominal amount of personal funds in his trust account.

Sanction

...the actual and potential harm resulting from this type of arrangement is readily apparent. In this case, Respondent’s delegation of client intake responsibilities to Stephan led to impermissible solicitation of clients, misrepresentations to clients about financing and costs, and delays of several months before Respondent became involved with (or even aware of) the clients’ cases. Clients, whose primary point of contact was Stephan, encountered difficulty communicating with Respondent and remaining sufficiently apprised about their cases. Although many clients did obtain some recovery, those recoveries were greatly reduced due to a second contingent fee owed to Stephan, a middleman who was not actually providing the financing services clients were paying him to provide. And when a financial dispute arose between Respondent and Stephan, clients were caught in the middle.

Throughout all of this, Respondent lied. Respondent provided Stephan with Investor Agreements for clients to execute that Respondent knew were false in several material respects. Respondent falsely told several clients at the conclusion of their cases that Respondent already had paid Stephan. And when the Commission began investigating Respondent’s practices, Respondent falsely told the Commission that Stephan provided financing for clients, when Respondent knew Stephan was not doing so. Respondent’s pattern of dishonesty elevates his problematic arrangement with Stephan into a much more serious offense... 

Nor is this Respondent’s first encounter with the disciplinary process. Respondent and two other attorneys were publicly reprimanded by this Court in 2009 for deceptive advertising and improper use of a trade name

(Mike Frisch)

February 28, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Attorney's Mistake Does Not Justify Relief

The New Jersey Appellate Division has held that an attorney's error did not justify equitable reinstatement of a dismissed complaint.

Twenty-seven-year-old David Eric Yearby, an alleged mentally ill man, died strapped to a "restraint chair" in the Middlesex County Adult Correctional Facility, approximately twenty-four hours after he was arrested for assault and resisting arrest by the local police department. The legal representative of his estate filed a multi-count civil suit against a number of public entities and their employees, including three nurses employed by the Middlesex County Adult Correctional Facility

After joinder of issue, the nurses moved to dismiss with prejudice the counts in plaintiffs' complaint alleging professional and/or medical malpractice based on plaintiffs' failure to file a timely Affidavit of Merit (AOM) as required by the Affidavit of Merit statute, N.J.S.A. 2A:53A-26 to -29. The trial court granted the nurses' unopposed motion.

Nearly two months later, plaintiffs, represented by substitute counsel, moved to restore the counts dismissed by the court based on the doctrine of substantial compliance and due to "extraordinary circumstances." Plaintiffs' substitute counsel argued that former counsel's failure to take any action to comply with the requirements of the Affidavit of Merit statute, including failing to oppose defendants' motion to dismiss, constituted "extraordinary circumstances" warranting a dispensation from the draconian sanction of dismissal with prejudice

The trial court had reinstated the claim but

We are keenly aware of the seriousness of the allegations raised in this civil action. The circumstances that plaintiffs allege caused this young man's death are unimaginably horrific. Those who are found civilly liable should be held accountable. However, as established by the Legislature and recognized by the Supreme Court, "an affidavit of merit strikes at the heart of the cause of action[.]" Paragon Contrs., Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2009). Thus, neglecting to provide an affidavit of merit after the expiration of the 120-day time period in N.J.S.A. 2A:53A-27 "generally requires dismissal with prejudice[.]" Ibid. Here, there is no evidential basis to support the trial court's decision to apply equitable principles to relax this statutory time restriction.

 (Mike Frisch)

February 28, 2018 | Permalink | Comments (0)

Tuesday, February 27, 2018

56 Days Of Hearings In "One Of Those Classic Cases"

The Tribunal Appeal Division of the Upper Canada Law Society has dismissed the appeal of an attorney who sought costs after he had successfully defended against bar charges

 These proceedings arise out of a conduct application. Following 56 days of hearing, and shortly after a lengthy cross-examination of the complainant had been concluded, the Law Society determined that there was no reasonable prospect that finding of misconduct would be made and sought to withdraw the application. The hearing panel agreed with the Law Society’s assessment, but rather than permitting the withdrawal of the application, it granted the request of the Lawyer for a dismissal of the application. Following the dismissal of the conduct application, the Lawyer brought a motion before the hearing panel that heard the conduct application requesting his costs of the application (“the First Costs Motion”). However, before the motion was heard, one of the hearing panel members was appointed to the bench, and the motion proceeded before the two remaining panel members. Unfortunately, those members could not agree on how to dispose of the motion. A new panel was constituted to rehear the costs motion. The Lawyer then amended his motion to include a claim for costs of the First Costs Motion. The Lawyer also brought a motion for disclosure of the [Proceedings Authorization Panel] Memorandum.

The new hearing panel dismissed all of the motions. It found that the proceeding was warranted at the outset, based on the evidence available at the time that the proceedings were authorized. It found that the available evidence did not demonstrate that the complainant’s evidence was flawed in a fundamental way. To the contrary, it found that this was one of those classic cases where the public interest demanded a hearing so that the serious allegations the complainant made against the Lawyer could be publicly aired and determined. Finally, the hearing panel found that the proceedings had not become unwarranted at some point after the hearing commenced and before the Law Society sought to withdraw the application, or that the Law Society wasted costs by undue delay, negligence or other default. The hearing panel dismissed the motion for disclosure of the PAC Memorandum on the basis that it was privileged and not relevant. Finally, the hearing panel awarded the Law Society its costs of the Disclosure Motion and the Second Costs Motion.

The complaint involved a concert series

The events underlying the conduct application centered on a project to stage a concert series in China in and around the August 2008 Beijing Olympic and Paralympic Games (the “Beijing Project”). The Beijing Project was the brainchild of the complainant, Sylvia Sweeney (“Sweeney”).

The Lawyer is a sole practitioner and businessman who worked on the Beijing Project in various capacities during 2007 and 2008, although his exact role and responsibilities were hotly contested during the conduct hearing.

The tribunal found the charges were warranted even if eventually unproven

 We conclude that the process of undermining Sweeney’s credibility at the hearing was gradual and did not turn on any particular issue or document. At the conclusion of Sweeney’s cross-examination, Law Society counsel obviously concluded that her credibility had been fatally eroded and that there was no longer any reasonable prospect of a finding of professional misconduct. We are not satisfied, based on the evidence before us, that this should have been apparent to the Law Society at any earlier point in the hearing.

Imposing costs has its costs

In concluding, we would be remiss if we did not share our concern about the time‑consuming and extensive nature of these costs proceedings. In Chan, the appeal panel expressed caution about turning a motion for costs against the Law Society into a wide-ranging forensic exploration of potential prosecutorial misconduct:

Applications against the Society pursuant to Rule 14.03 are not free-standing, but tied to the conduct proceeding in relation to the licensee. While a licensee is entitled to pursue a costs application, and provide the hearing panel with support for that application, there are necessarily limits upon the scope of evidence that will be heard in support. Simply put, a costs application is not, by its nature, designed to overshadow the conduct proceeding itself, or permit a wide-ranging exploration of potential prosecutorial misconduct. Such an application is designed to be a fairly summary way in which a hearing panel can decide the issue of costs.

We agree. In motions such as this one, where there are no allegations that the proceeding was initiated maliciously, in bad faith, or for a collateral purpose, a hearing panel which is asked to consider whether a proceeding was “unwarranted” under Branch 1 should focus on whether the totality of the evidence reasonably available to the Law Society, at the time when the proceedings were authorized, was so clearly deficient that any proceeding based on that evidence would be unwarranted.

For the above reasons, the appeal is dismissed. Should the Law Society seek its costs of this appeal, the Law Society shall provide its written costs submissions to the panel (costs submissions not to exceed five pages) within 14 days of the release of this order. The Lawyer shall have 28 days from the release of this order within which to respond (responding submissions not to exceed five pages).

(Mike Frisch)

February 27, 2018 in Bar Discipline & Process | Permalink | Comments (1)

A Man In Kentucky

A Kentucky sanction was imposed reciprocally on an attorney by the New York Appellate Division for the First Judicial Department

The instant matter arises from respondent's representation of a client whose employment as a Kentucky public school teacher was terminated based on findings of misconduct made by an administrative tribunal. In 2005, the teacher, represented by respondent, commenced an action under 42 USC § 1983 in the United States District Court for the Eastern District of Kentucky against the school principal, an attorney for the school board, the superintendent of the school system, and the presiding officer at the final administrative hearing on the charges against the teacher. The district court dismissed the complaint as time-barred and, upon its own motion, imposed sanctions on respondent personally pursuant to 28 USC § 1927, based on findings that, in spite of prior warnings by the court, he had repeatedly filed papers advancing specious legal claims, using inappropriate language, and/or engaging in personal attacks. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed both the dismissal of the complaint and the imposition of sanctions on respondent (Dixon v Clem, 492 F3d 665 [6th Cir 2006]).

Based on his conduct in Dixon, as found by the federal courts, the Kentucky Bar Association brought disciplinary charges against respondent. The Kentucky disciplinary proceedings culminated in April 2013 with a decision by the Supreme Court of Kentucky that affirmed three findings of misconduct against respondent and imposed on him a suspension from the practice of law of 181 days (Kentucky Bar Assn. v Blum, 404 SW3d 841 [Ky 2013], cert denied sub nom Blum v Kentucky Bar Assn., __ US __, 134 S Ct 1952 [2014]). The Kentucky Supreme Court affirmed the following findings of misconduct: (1) that respondent had improperly threatened to advance disciplinary charges against opposing counsel in the federal litigation in order to gain advantage in a civil matter, in violation of Kentucky Supreme Court Rule 3.130-3.4(f); (2) that respondent had engaged in conduct intended to disrupt a tribunal, in violation of Kentucky Supreme Court Rule 3.130-3.5(c); and (3) that respondent, without basis, had repeatedly impugned the personal integrity of the administrative hearing officer his client was suing in the federal litigation, in violation of Kentucky Supreme Court Rule 3.130-8.2(a), which prohibits an attorney to make false statements concerning the integrity of an adjudicatory office.

The court rejected his contentions

With regard to respondent's defense that there was a lack of notice or opportunity for him to be heard in the Kentucky proceedings, he argues that the charges filed against him did not allege with specificity the disciplinary rule violated by each of his offending statements and actions. Respondent raised this argument before the Kentucky Supreme Court, which rejected it. Moreover, the record shows that respondent appeared pro se at the disciplinary proceeding before a trial commissioner of the Kentucky Bar Association, at which he actively defended himself, and then pursued appeals to the Association's Board of Governors and, ultimately, to the Kentucky Supreme Court. Accordingly, we are satisfied that respondent received notice and an opportunity to be heard in the Kentucky disciplinary proceedings, consistent with the requirements of due process.

With regard to respondent's defense of infirmity of proof, he argues that the Kentucky court provided insufficient evidence to support its finding that discipline should be imposed. However, the record relied on by the Kentucky Supreme Court, which includes respondent's filings in Dixon, and that court's detailed discussion of the evidence against respondent in its decision imposing discipline, demonstrate that the findings of misconduct against respondent in Kentucky were based on sufficient evidence.

Sanction

the imposition of the same sanction imposed by the Kentucky Supreme Court is in order here, and respondent should be suspended from the practice of law in New York, prospectively, for six months. In addition, respondent, in violation of former 22 NYCRR 603.3(d), waited nearly three years before finally, in December 2015, notifying the Committee of the discipline imposed by the Kentucky Supreme Court in April 2013, and he provided such notice only after an adversary in litigation in Supreme Court, New York County, brought the Kentucky discipline to the attention of the court, which thereupon directed respondent to notify the Committee. We note that a suspension retroactive to the date of respondent's suspension in Kentucky would be inappropriate in light of respondent's failure to give this state's disciplinary authorities prompt notice of the Kentucky discipline (see Matter of Gilbert, 268 AD2d 67, 70 [1st Dept 2000]).

The Sixth Circuit decision is linked here. (Mike Frisch)

February 27, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, February 26, 2018

Contempt Affirmed

An order of the United States District Court for the District of Columbia (Judge Amy Berman Jackson) affirms a contempt finding against an attorney.

Plaintiff District Title, a real estate settlement company, was handling the sale of a property formerly owned by defendant Anita K. Warren when it erroneously transferred $293,514.44 to Warren instead of the mortgage lender, Wells Fargo Bank, N.A. Am. Compl. [Dkt. # 5] ¶ 15. Warren promptly transferred the funds to her son Timothy Day, and the two refused to give the money back. See District Title v. Warren, No. 14-1808, 2015 WL 7180200, at *1 (D.D.C. Nov. 13, 2015). District Title sued, and attorney LeFande represented the defendants in that action.

After the plaintiffs prevailed

On March 22, 2016, plaintiff filed a motion to conduct post-judgment discovery related to its efforts to collect on the judgment, which included a request for court permission to serve subpoenas on three individuals, including LeFande. See Mem. of P. & A. in Supp. of Pl.’s Mot. for Oral Examination of J. Debtor Timothy Day & Third Parties, & for Leave to Serve Subpoenas [Dkt. # 88-1]. Plaintiff asserted that LeFande “may have information concerning assets held or transferred by Timothy Day.” Id. at 5.

The matter was referred to a magistrate judge and a motion for contempt was filed

In support of its motion, plaintiff pointed to testimony in a related proceeding in a Maryland state court that suggested that LeFande was complicit in the concealment of defendant Day’s assets. Pl.’s Mem. of P. & A. in Supp. of Pl.’s Mot. [Dkt. # 107- 1] (“Pl.’s Mem.”) at 3. Plaintiff proffered that Day transferred over $80,000 in profits received from a November 2014 sale of property in St. Mary’s County, Maryland to an account in New Zealand. Id. At a trial related to the St. Mary’s County transaction, a witness testified that it was Day’s attorney, Matthew LeFande, who instructed the settlement company to transfer the funds to the New Zealand account. Id.

LeFande opposed the motion and sought a protective order. Opp. to Pl.’s Mot. & Request for Protective Order [Dkt. # 108] (“LeFande’s Opp.”). In his opposition, LeFande asserted his Fifth Amendment right against self-incrimination, and he also asserted that any testimony would be covered by the attorney-client privilege. Id. 

The magistrate judge directed that he appear for deposition and assert any privilege on a question-by-question basis.

He failed to appear and was ordered to be deposed before the magistrate judge, was held in contempt and appealed to the district court

On the date of the deposition, LeFande appeared in Magistrate Judge’s courtroom with his counsel, but he refused to comply with the Magistrate Judge’s order to take the stand and to be sworn. Minute Entry and Order (Sept. 21, 2017); Criminal Contempt Order at 2. The Magistrate Judge “repeated the order at least twice, and each time, Mr. LeFande refused to comply.” Id. His “response in each instance was to assert that he would not comply . . . and to invoke the Fifth Amendment.” Id. The Magistrate Judge took a brief recess to allow LeFande to further confer with counsel. Id. at 3. But after the recess, LeFande again refused to comply with the Magistrate Judge’s orders to take the stand and be sworn. Id.

Consequently, the Magistrate Judge held LeFande in criminal contempt for “obstructing the administration of justice” pursuant to her authority under 28 U.S.C. § 636(e)(2) and she fined him $5,000.00, payable no later than October 5, 2017. Criminal Contempt Order at 3–4. On October 03, 2017, LeFande filed objections to the Magistrate Judge’s bench ruling and Contempt Order, and he renewed his request for a protective order. Obj. to Contempt Order. Because LeFande violated multiple orders that he appear at the deposition and respond to questions, interposing any privilege objections on a question-by-question basis, LeFande’s objections will be overruled, and the Court will uphold the judgment of criminal contempt...

LeFande challenges the Magistrate Judge’s Criminal Contempt Order in a scattershot fashion, recycling many of the same arguments already presented to and rejected by this Court, including his invocation of the Fifth Amendment and attorney-client privileges. Obj. to Contempt Order at 16–23, 28–30. As this Court has explicitly stated in its prior Memorandum Opinion and subsequent Minute Order, LeFande may not avoid appearing at the deposition entirely with a blanket assertion of attorney-client privilege. Dist. Title v. Warren, 265 F. Supp. 3d 17, 23 (D.D.C. 2017); Minute Order (Sept. 18, 2017). LeFande was required to take the stand and to assert both the Fifth Amendment privilege and the attorney-client privilege on a question-by-question basis. Id.

The court found 

The Court finds that all of the elements required to uphold the criminal contempt order are satisfied here. In accordance with Rule 42 of the Federal Rules of Criminal Procedure, the Magistrate Judge witnessed first-hand LeFande’s misbehavior in her courtroom, she recited those facts in her contempt order, signed the order, and filed it with the clerk. Under 28 U.S.C. § 636(e)(2) the Magistrate Judge appropriately exercised her criminal contempt authority because LeFande’s actions “constituted misbehavior” that “obstruct[ed] the administration justice.” 28 U.S.C. § 636(e)(2). He not only disobeyed the Magistrate Judge’s multiple orders in the courtroom in her presence, but he also failed to comply with the opinions and orders of this Court which required him to appear and to respond to the questions on an individual basis. Lefande’s violation of these orders impeded the administration of justice by making it impossible for the plaintiff to conduct post-judgment discovery. Finally, the Court finds that the evidence recited in the Magistrate Judge’s Criminal Contempt Order is sufficient to establish beyond a reasonable doubt that LeFande had the necessary intent, and that his actions were “both calculated and willful.” Criminal Contempt Order at 3. Indeed, LeFande informed the Magistrate Judge through his counsel that he would rather “take the risk of going to jail” than comply with her orders. 

(Mike Frisch)

February 26, 2018 | Permalink | Comments (1)

Telling Bar Officials To "Go F**k" Themselves Draws Same Sanction As Sex With Client

Bad language gets a New Jersey attorney the same sanction - reprimand -  imposed for sex with a vulnerable client.

The offending language came in two emails to bar officials investigating the attorney's complaint against his former employer.

On November 7, 2012, in the course of communicating with the Office of Attorney Ethics (OAE) about grievances that he had filed against, his former employer, Stanley Marcus, and others, respondent sent two e-mails to the OAE. The first email was sent to the OAE investigator, Scott Fitz-Patrick; the second e-mail was sent to OAE Director Charles Centinaro

Per the report of the Disciplinary Review Board

The Centinaro e-mail contained vulgar, highly offensive language, directed at a significant official in the Court’s attorney discipline system. To respondent’s credit, he ultimately admitted, in a written stipulation, that his actions in that regard were discourteous and inconsiderate, in violation of RPC 3.2. Nevertheless, in a brief to us, respondent again suggested that the complaint against him should be dismissed, as having been filed in bad faith in order to either silence his allegations of corruption in the attorney discipline system or to retaliate against him for having alleged such corruption.

Although respondent admitted that the e-mail sent to Director Centinaro violated RPC 3.2, he took issue with the allegation that the Fitz-Patrick e-mail, too, violated the Rule. Respondent claimed that he and Fitz-Patrick enjoyed a rapport that permitted the use of foul and offensive language.

Even if true, that argument misses the mark. By instructing Fitz-Patrick in the first e-mail to tell Director Centinaro to go "F**K" himself, he intended for that vulgar and offensive comment to reach the Director. Incredibly, respondent testified that the reason he sent the second e-mail directly to Centinaro minutes later was out of concern that Fitz-Patrick might not relay his remarks to the Director for him. Respondent, thus, wanted to make sure that Director Centinaro received his message. Because both e-mails contained the very same offensive message, which respondent wanted to reach Director Centinaro, the first e-mail to Fitz-Patrick was equally as offensive as the second One to which respondent stipulated. We, thus, find a violation of RPC 3.2 as to both communications.

Sanction

 We, however, reject another factor in aggravation that the DEC considered -- that respondent did not care whether he received an admonition or a reprimand. Respondent admittedly was unconcerned about the quantum of discipline, because he no longer practices law. In our view, he should not be faulted simply because he confessed that he is not concerned about the sanction, especially when it is within a very limited range.

Respondent’s lack of prior discipline in twenty-four years at the bar represents the only mitigating factor here.

Although we are deeply troubled by respondent’s behavior, on balance, we find that the aggravating and mitigating factors are in near equipoise. We, therefore, determine to impose a reprimand for respondent’s misconduct.

 I must state that in my many years as a bar prosecutor (admittedly in a pre-email era), I was called all sorts of things that I did not consider prosecution-worthy. (Mike Frisch)

February 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey Reprimands Former PD For Sex With Vulnerable Assigned Client

The New Jersey Supreme Court has reprimanded a former public defender for sex with his client.

The Disciplinary Review Board report describes the misconduct

In October 2015, in the normal course of his employment at the Office of the Public Defender (OPD), respondent was appointed to defend L.S. against allegations that she had abused her minor son. The Division of Child Protection and Permanency (DCPP) alleged that L.S., an alcoholic, had gotten drunk and passed out while caring for him. Due to L.S.’s struggles with alcoholism, her son was placed in the custody of his maternal grandmother. The DCPP sought to curtail L.S.’s parenting time and implement supervised visitation.

On October 30, 2015, after representing L.S. at an Order to Show Cause in family court, represent offered to drive her home; the weather was inclement due to Hurricane Patricia. L.S. declined respondent’s offer, but, shortly thereafter, she and respondent began texting each other, including messages that were sexual in nature. On the day before Thanksgiving, respondent and L.S. consummated a sexual relationship,

Respondent admits that, after their first sexual encounter, he began to question L.S.’s mental state, due to her texting and calling him "at all hours of the night and morning hours after Thanksgiving." Despite commencing the sexual relationship with L.S., and having concerns regarding her mental health, respondent failed to withdraw as her assigned counsel, and continued representing her in connection with the family court proceedings. He also continued the sexual relationship with her.

In January 2016, L.S. disclosed her sexual relationship with respondent to a friend, who reported the inappropriate relationship to the OPD. The OPD investigated the matter, and, during an interview, L.S. "alleged that respondent had brought a bottle of vodka to her home upon their first meeting, after which they got drunk and had sex." L.S. also stated that "she was afraid of respondent, did not want to lose custody of her son, and wanted another attorney to represent her." As a result of its investigation, the OPD terminated respondent’s employment, effective February 3, 2016, assigned a new attorney to represent L.S., and reported respondent’s misconduct to the OAE.

Respondent admitted to the OAE his inappropriate sexual relationship with L.S., but denied providing her with alcohol or coercing her in any manner. Respondent maintained that "L.S. could have terminated their personal relationship at any time without affecting his representation as he always fought for her best interest." The stipulation further states, however, that, due to her status as an assigned client and her alcoholism, L.S. "lacked the capacity to freely consent to a sexual relationship with respondent."

Respondent stipulated that he violated (i) RPC 1.7(a)(2) by representing L.S. because there was a significant risk that the representation would be materially limited by the personal interest of the lawyer; and (2) RPC 8.4(d) by engaging in conduct prejudicial to the administration of justice.

A very lenient sanction for this misconduct. (Mike Frisch) 

February 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Conditions

Oral argument before the Ohio Supreme Court

Columbus Bar Association v. Bradley D. Keating, Case no. 2017-1740
Franklin County

The Ohio Board of Professional Conduct recommends that Columbus attorney Bradley Keating receive a six-month suspension, fully stayed on certain conditions, for failing to keep and maintain appropriate financial records.

Attorney Takes Over Law Firm in 2012
From 2003 to 2009, Keating was an associate attorney at Magelaner & Associates. He was made partner in 2009, and his name was added to the firm’s name. In January 2012, Keating became owner of the firm and renamed it The Keating Firm after Thomas L. Magelaner sold his interest. Since that time Keating has had authority over the firm’s financial matters, including its client trust accounts, which are referred to as an Interest on Lawyers’ Trust Account (IOLTA).

The firm employed Rebecca Gee Meyer as an associate attorney from 2006 to 2012. Meyer worked in the Cincinnati office, and Keating’s office was in Columbus. Beginning in 2010, Meyer was suspended from practicing law for varied periods, including an indefinite suspension imposed in February 2015.

Chiropractor Doesn’t Receive Payments from Law Firm
In separate cases, three clients hired the firm through the Cincinnati office in 2011 to represent them after suffering injuries in motor vehicle accidents. Two of the clients and the third client’s child received treatment from a local chiropractor. The firm agreed to pay the chiropractor from any settlement funds. When he wasn’t paid, the chiropractor filed a grievance against Keating. By May 2017, Keating still hadn’t paid the chiropractor, in part because of inaccurate records that indicated checks had been written to the health care professional.

Law Firm Changes Accounting Services
In 2008, Keating and Magelaner noticed accounting discrepancies in work done by the Louisiana company that handled the firm’s bookkeeping. The lawyers hired a new accounting service that year, and the prior accounting firm refused to provide records to help reconcile the prior IOLTA. The lawyers opened a new IOLTA, identified as account 2500, and eventually transferred funds from the old account. In July 2011, the law firm opened another new IOLTA. Because there were unidentified funds in account 2500, Magelaner and Keating left it open. It is unclear who owns the approximately $75,000 in account 2500.

Board Recommends Six-Month Stayed Suspension with Conditions
The professional conduct board concluded that Keating violated various attorney conduct rules, including requirements to perform monthly financial reconciliations and to maintain records of client’s accounts for seven years. There was also a period between December 2015 and July 2017 when Keating didn’t inform clients that he no longer had professional liability insurance, the board noted.

The board report to the Supreme Court points to the multiple offenses as an aggravating factor. The report also states that Keating has now paid the chiropractor in full, has no prior discipline, hasn’t shown a dishonest motive, and has been cooperative during the disciplinary process. The board report also finds as mitigating that the problems with the first accounting firm and the law firm’s transfer of funds from old to new IOLTAs were steps taken in good faith and appeared to be intended to protect clients and third parties.

With Meyer no longer employed by the firm, the board concluded that the public will be protected if Keating’s suspension is completely stayed on certain conditions, including two years of monitored probation, the hiring of someone with accounting expertise during the probation to ensure proper IOLTA management, and completion of three hours of continuing legal education related to client fund management.

Bar Association Argues for Additional Condition
While the Columbus Bar Association doesn’t take issue with the recommended six-month stayed suspension or the conditions, it asks the Supreme Court to impose another condition on Keating’s suspension.

The bar association explains that Keating can’t account for the $74,517.14 that remains in account 2500 as of October 2017. The purpose of financial records required by the attorney conduct rules is to ensure that the lawyer can identify “who owns every penny in the lawyer’s trust account,” the bar association’s objection states. Keating hired a forensic accountant in 2017 to try to sort out this issue, but her report concluded that these funds are “most likely” profits for the firm and “unlikely” to be client funds. Noting that the records don’t exist for clients whose funds may be in the account, the bar association recommends that Keating be required to turn over the money to the state’s division of unclaimed funds to follow certain statutory procedures.

Attorney Believes Extras Condition Is Unwarranted
Keating responds that no client or third party is making a claim to any of these funds, the last payment from account 2500 was at least six years ago, and the forensic accountant concluded the money is owned by the law firm. He argues that other disciplinary cases have allowed lawyers to collect legal fees once any client disputes or IOLTA discrepancies are resolved. He maintains that the funds in account 2500 aren’t “unclaimed funds” based on the definition in R.C. 169.01, nor is he a “holder” of unclaimed funds. Keating asks the Court to decline to impose the additional condition recommended by the bar association.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)

February 26, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, February 25, 2018

License Annulled After Gun Theft Conviction

The Charleston Gazette Mail reported 0n a sanction imposed in the wake of a guilty plea

The West Virginia Supreme Court has annulled a Boone County attorney’s law license after he pleaded guilty to federal gun charges last year.

Joshua W. Sheets voluntarily consented to be disbarred, meaning he no longer can practice law in West Virginia, according to the order issued on Feb. 14 and filed last week.

The state Lawyer Disciplinary Counsel was pursuing its own sanctions against Sheets last fall when he agreed to be disbarred while his case proceeded through the court system.

 On Dec. 20, Sheets, 32, of Danville, and Jason Allen Davis, 34, of Van, pleaded guilty to federal gun charges in U.S. District Court for the Southern District of West Virginia.

Sheets pleaded guilty to one count of aiding and abetting the receipt, possession and sale of stolen firearms. Davis pleaded guilty to one count of aiding and abetting the theft of firearms from a federal firearms licensee.

Sheets was one of four defendants indicted in August 2017 and charged with stealing guns from a Boone County firearms dealer, according to a news release from the U.S. Attorney’s Office for the Southern District of West Virginia.

 Davis admitted to serving as a lookout for Sheets in November 2016 while Sheets broke into a firearms store and stole multiple firearms. Sheets admitted to arranging a sale of guns that were stolen from the same dealer in an earlier burglary, according to the release.

Sheets and Davis each face up to 10 years in federal prison when U.S. District Judge John Copenhaver Jr. hands down their sentences on March 21.

Hat tip coolcrosby. (Mike Frisch)

February 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Commingling In D.C.

A District of Columbia Hearing Committee has recommended a reprimand for an attorney's Rule 1.15 violations in connection with a so-called "advanced fee" for representation in a criminal appeal.

The payments were deposited into a business account rather than escrow 

At no time before or during the representation did Respondent advise Mr. Garrett, or his agents, that he would place the advanced fees into his business account, rather than into a trust account. Stip. ¶ 5.

Mr. Garrett did not consent to the advanced legal fees being placed into a non-escrow account. Stip. ¶ 6.

Subsequent to the receipt of the complaint made by Mr. Garrett, Respondent attended a D.C. Bar sponsored CLE on the application of In re Mance, 980 A.2d 1196 (D.C. 2009) to retainer agreements in the District of Columbia. Stip. ¶ 8.

A clear case of commingling

Commingling occurs when an attorney fails to hold entrusted funds in an account separate from his own funds. In re Moore, 704 A.2d 1187, 1192 (D.C. 1997) (per curiam) (appended Board Report). Thus, “commingling is established ‘when a client’s money is intermingled with that of his attorney and its separate identity is lost so that it may be used for the attorney’s personal expenses or subjected to the claims of its creditors.’” In re Malalah, Board Docket No. 12-BD038 (BPR Dec. 31, 2013), appended HC Rpt. at 12 (Sept. 27, 2013) (quoting In re Hessler, 549 A.2d 700, 707 (D.C. 1988) (appended Board Report)), recommendation adopted, 102 A.3d 293 (D.C. 2014) (per curiam); see also Moore, 704 A.2d at 1192 (“Commingling occurs when an attorney fails to hold entrusted funds in a special account, separate from his own funds.”). To establish commingling, the entrusted and non-entrusted funds must be in the same account at the same time.

As to sanction

the Hearing Committee finds that Respondent’s misconduct was inadvertent and ultimately harmless in this circumstance, but nonetheless sanctionable given the protections to clients afforded by Rules 1.15(a) and 1.15(e) and how those Rules have been interpreted. There is no evidence here, however, of a pattern of wrongdoing, dishonesty, or any attempt by the Respondent to dissemble or avoid responsibility once he received the complaint; and, conversely, there is evidence of proactive steps by Respondent to address the issue once raised by Disciplinary Counsel and to modify his actions going forward to comply with the letter of Rules 1.15(a) and 1.15(e).''

While Disciplinary Counsel did not introduce the fact into evidence at the hearing, we note that Respondent received an informal admonition in 2012 for violating North Carolina Rules of Professional Conduct 1.1, 1.4(a)(2), 1.4(a)(3), and 1.4(b). While Respondent notes in his brief that this previous admonition resulted from his status as the supervisor of a staff attorney in his office who violated the Rules, and the misconduct is distinct from the behavior at issue before the Hearing Committee, we do not ignore the prior North Carolina informal admonition entirely. It is a mildly aggravating factor in our view.

The committee took judicial notice of the prior admonition. 

Here, the Hearing Committee finds it a close question whether the adequate and appropriate sanction should be a Board reprimand or public censure. Respondent’s inadvertence and other professionalism, remorse, efforts to educate himself and others as to the importance of maintaining finances according to the Rules, and general cooperation with Disciplinary Counsel provide clear support to impose a sanction short of a suspension. Although Respondent’s prior informal admonition, albeit six years ago, in another state on another unrelated issue that may have only indirectly related to him, cannot be completely ignored, given all
the circumstances, the Hearing Committee concludes that a Board reprimand is the appropriate sanction here.

The case is In re Brian McDaniel, Board Docket No. 17-BD-076, Disciplinary Docket No. 2012-D371.

Note from the case numbers that this quite straightforward matter was under investigation for nearly five years before charges were filed. (Mike Frisch)

February 25, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, February 23, 2018

No Stay For Revoked Doctor

The Delaware Superior Court denied a stipulated application for a stay of an order revoking a medical license of a doctor who 

Appellant is a physician whose license was revoked by the Board of Medical Practice and Licensure for, in the words of the Hearing Officer, “enabling a criminal drug gang in Pennsylvania by providing them with a regular source of controlled substance prescriptions to be sold on the street.” The physician now seeks a stay of the revocation of his license pending the results of this appeal. It is manifest on the face of his application that he has not alleged any substantial issue to be raised on the appeal. Therefore, even though the State has stipulated to a stay, the court will deny it.

The evidence

The State based its case against Dr. Hannan on his treatment of eight patients. The court need not detail the evidence relating to each patient at this point. Suffice it to say, the Board found that the “record of how these patients were treated is deplorable.”

Dr. Hannan repeatedly prescribed opioid medications for patients without documenting any justification for doing so. He increased dosages even though there was no report of new symptoms or increase pain, and in at least one case ordered an increase in dosage even though he recorded that the patient reported she was doing well.

Urine drug screens frequently were negative for the opioids he was prescribing, suggesting that the patient might be diverting the medication rather than taking it.

On some occasions Dr. Hannan prescribed Oxymorphone (a drug with twice the potency of Oxycodone) without any justification being apparent from his records...

The board

Dr. Hannan’s practices show a clear priority on money-making at the expense of appropriate patient care. There is a real concern for public safety.

The court noted that the doctor is now prescribing drugs in Florida

there are policy considerations which weigh heavily against granting the stay in this case. This court is reluctant to be a party to what is essentially a contrivance (albeit a lawful one) to prevent the Florida authorities from promptly learning of the Delaware Board’s disciplinary action. Florida, like all states, relies in part upon information supplied by the National Practitioner Data Bank, and a stay would delay transmission of the Delaware Board’s revocation to the Data Center which in turn would delay the Florida authorities from learning of that revocation. This court will not enter a stay for the sole purpose of preventing the Florida Department of Health from learning information which may (or may not be) relevant to the health and safety of the people of that state.

(Mike Frisch)

February 23, 2018 in Comparative Professions | Permalink | Comments (0)

DRIP

An attorney admitted in 1992 has been charged with misconduct in her own divorce by the North Carolina State Bar.

The marriage took place in October 2006. At the time, her spouse had an account with Duke Energy Dividend Reinvestment Plan {"DRIP") that he converted from his sole property into a joint asset.

The divorce was filed in Septemeber 2013. On December 18, 2013, an order was entered restraining the parties from disposing of marital assets. 

An allegation of the complaint is that, in January 2014, the defendant logged on to the DRIP website, changed the information and arranged to take a tad less than $30,000 out of said account.

Then, because the check had both names on it, she allegedly signed the spouse's name without authority.

There also are charges of false statements in litigation. (Mike Frisch)

February 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Google Immune

Google is not liable for content posted by a user per a decision issued today by the United States Court of Appeals fo.r the District of Columbia Circuit

Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third party content. We affirm.

Precedent involves Larry Klayman

In Klayman, we held that “a website does not create or develop content when it merely provides a neutral means by which third parties can post information of their own independent choosing online.” Id. at 1358. We noted that, although the Facebook website’s “Statement of Rights and Responsibilities” might create an independent cause of action for breach of contract, the statement did not change the fact that the plaintiff was seeking to hold Facebook liable as a “publisher” of the objectionable material. Id. at 1359. Accordingly, we affirmed the district court’s dismissal of the plaintiff’s claims pursuant to section 230 of the CDA. Id.; see also Zeran, 129 F.3d at 331 (rejecting argument that defendant was “distributor” rather than “publisher” under CDA because it acquired “knowledge of the defamatory statements’ existence”).

This case is controlled by the three-part test in Klayman. First, as many other courts have found, Google qualifies as an “interactive computer service” provider because it “provides or enables computer access by multiple users to a computer  server.” 47 U.S.C. § 230(f)(2); see, e.g., Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d 242 F. App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google qualifies as an ‘interactive computer service’ and not an ‘information content provider.’”). Indeed, Bennett concedes that fact. Appellant’s Br. 6 (“Google provides interactive computer services, including websites and social media platforms.”). Second, Bennett alleges that only Pierson—and not Google—created the offensive content on the blog. Compl. ¶¶ 11-12.

Third, Bennett seeks to hold Google liable as a publisher of the content. Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” Klayman, 753 F.3d at 1359. In other words, there is a sharp dividing line between input and output in the CDA context. Id. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.” Id.

In sum, the CDA “allows [computer service providers] to establish standards of decency without risking liability for doing so.” Green v. Am. Online, Inc., 318 F.3d 465, 472 (3d Cir. 2003). Although “other types of publishing activities might shade into creating or developing content,” the decision to print or retract is fundamentally a publishing decision for which the CDA provides explicit immunity. 

Circuit Judge Henderson authored the opinion. (Mike Frisch)

February 23, 2018 in Current Affairs | Permalink | Comments (0)

Iowa Allows Inquiry Notwithstanding Privilege

The Iowa Supreme Court has allowed discovery into otherwise privileged information in a matter involving a former employee who complained about racial discrimination only after departing from the employment. 

The decision was a 4-3 split.

The attorney had investigated the allegations as counsel to the employer.

Fenceroy stopped working for Gelita in March 2013. He filed a complaint with the Iowa Civil Rights Commission (ICRC) a short time later. The complaint charged Gelita with race discrimination. Upon receipt of Fenceroy’s ICRC charge, Gelita retained attorney Ruth Horvatich and tasked her with developing a strategy to defend the company during administrative proceedings.

Pursuant to this representation, Horvatich interviewed several Gelita employees to ascertain the merits of Fenceroy’s complaint. [Company Vice President] Tolsma was present for and participated in each interview. A union representative, John Hoswald, was also present during the employee interviews. At the end of each interview, Horvatich drafted a witness statement that summarized the employee’s account and instructed the employee to sign the document.

Horvatich’s investigation revealed some Gelita employees had made racially disparaging comments in the workplace. Gelita subsequently terminated one employee, Bob Kersbergen, and disciplined others, including Kent Cosgrove, Tom Haire, and Lewis Bergenske. Horvatich did not participate in any of the disciplinary decisions.

The court

This review presents a significant issue regarding the boundaries of attorney–client privilege and work-product protection. We must decide whether plaintiff’s counsel may depose defense counsel and obtain counsel’s prelawsuit work product. After leaving his job, plaintiff filed an administrative complaint charging his former employer with race discrimination. In response to the charge, the employer hired an attorney to defend the company and investigate the merits of the charge. The employer filed an administrative position statement wherein it relied upon the attorney’s investigation to support its Faragher–Ellerth affirmative defense. In the subsequent civil action, the employer retained the same attorney and again raised the affirmative defense. The employer claimed attorney–client privilege and work-product protection over the investigation and moved for a protective order to prevent plaintiff from deposing defense counsel and obtaining her investigation notes. Yet, in its motion for summary judgment, the employer again relied upon the investigation to support its defense. The district court denied the protective order, and we granted the employer’s interlocutory appeal.

We conclude the district court did not abuse its discretion by denying the defendants’ protective order. When an employer raises a Faragher–Ellerth affirmative defense and relies upon an internal investigation to support that defense, the employer waives attorney–client privilege and nonopinion work-product protection over testimony and documents relating to the investigation. On remand, the employer is permitted to amend its answer and brief to limit the affirmative defense to only the period of plaintiff’s employment. If the employer declines to so amend, it may not claim attorney–client privilege or work-product protection over the 2013 investigation, and plaintiff may depose defense counsel as well as obtain counsel’s investigation notes. 

Justice Waterman dissented

I respectfully dissent and would hold the district court abused it discretion by compelling the deposition of Gelita’s trial counsel Ruth Horvatich and production of her notes prepared in anticipation of litigation.

First, Gelita never waived its attorney–client privilege or work product protection by pleading or arguing the Faragher–Ellerth defense in district court. That defense was based solely on Mr. Fenceroy’s failure to use Gelita’s reporting procedures during his employment, before he retired and filed his discrimination complaint. The majority, contrary to precedent, finds that Gelita impliedly waived the confidentiality of its lawyer’s private notes and client communications by including this sentence in its lengthy brief supporting its motion for summary judgment: “Even though Plaintiff was no longer with Gelita at the time of his Complaint, in response to his charge, the Company investigated his allegations, discharged one employee, and disciplined three others.” I disagree that sentence constitutes an implied waiver. Gelita never relied on confidential attorney–client communications in asserting its defenses. Gelita was not using the attorney–client privilege as both a sword and shield and never blocked proper discovery into a matter it placed at issue.

Second, even if it was a waiver, Gelita clearly has retracted it. The majority questions that a retraction has occurred but allows Gelita the opportunity to retract the waiver on remand. I think this is unnecessary based on a fair reading of the record and Gelita’s appellate briefs.

Third, the majority also misses the opportunity to adopt the showing required under Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), and confirm that compelling depositions of opposing trial counsel during litigation should be a rare last resort, even when information might be obtained that is not subject to a privilege. This aspect of the court’s ruling could lead to a flurry of depositions of opposing counsel and a corresponding decline in civility in the Iowa bar. Frequently, both plaintiff’s counsel and defendant’s counsel have various nonprivileged interactions with others in the course of working on a case. The majority leaves the door open to each side deposing the other on these interactions. I would not do this. Fenceroy is not entitled to depose Gelita’s trial attorney Horvatich under Shelton...

Going forward, I also fear today’s decision will have a chilling effect on the routine practice of retaining outside counsel to investigate discrimination claims. If the employer’s lawyer can be deposed by plaintiff merely because the employer pleads a Faragher–Ellerth defense, will two different law firms have to be retained—one to investigate and the other to try the case? Will employers limit what they tell their lawyer who may be compelled to testify by the litigation adversary? Or will some employers be reluctant to retain a lawyer who might be compelled to provide adverse testimony? Will such employers lose the benefit of sound legal advice that would otherwise help them improve compliance with employment laws?

Two justices joined the dissent.

As noted, enjoy the improved transparency of the Iowa Supreme Court. (Mike Frisch)

February 23, 2018 | Permalink | Comments (0)

"An Oxymoronic, But All Too Familiar, Combination Of Self-Serving Justifications And Sincere Explanations..."

The Iowa Supreme Court sanctioned an attorney for a pattern of lies and forgery

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against an attorney, alleging numerous violations of the Iowa Rules of Professional Conduct in the attorney’s representation of a client in a dissolution proceeding. For fourteen months, the attorney misrepresented the status of the dissolution proceeding to his client and his client’s brothers. Moreover, the attorney prepared a fraudulent dissolution decree, to which he attached a signature page bearing a judge’s signature from a different case. A division of the Iowa Supreme Court Grievance Commission found the attorney’s conduct violated our ethical rules.

Based on the attorney’s violation of our rules, the commission recommended we suspend his license to practice law for eighteen months. On our de novo review, we find the attorney violated the provisions of our rules. However, we disagree with the length of the recommended suspension. We suspend the attorney’s license to practice law indefinitely with no possibility of reinstatement for one year from the date of filing this opinion.

How the lies unravelled

members of Miller’s family went to the office of the Clay County Clerk of Court to search for the records relating to Miller’s dissolution of marriage. The staff of the clerk’s office could not locate Miller’s dissolution decree in the court records. The staff contacted Barry’s law office and, in Barry’s absence, spoke with other members of the law office to inquire about the dissolution case. The staff subsequently sought assistance from the electronic data management system support office in Des Moines concerning the fraudulent decree Barry had presented to the Miller family.

The court sustained numerous ethics violations

Although we do not condone Barry’s lack of diligence and other violations of our ethical rules, we agree with the commission that the forging of a court order is the most egregious of his violations.

And found the most comparable case was misconduct by a former NCAA wrestling champion

Here, like the attorney in McGinness, Barry exhibited “remarkable persistence in pursuing his dishonest course[.]” See id. at 466. However, Barry continued his falsehood for fourteen months, a time period much longer than the length of the attorney’s falsehood in McGinness. Although we do not know if the attorney in McGinness would have also perpetuated his falsehood for just as long as Barry did, the fact of the matter is that opposing counsel in McGinness swiftly confronted the attorney about the fabrication of the discovery requests and certificates of service, thereby cutting short the length of the attorney’s deception. Moreover, more egregious than the attorney’s misconduct in McGinness, Barry forged a judge’s signature by attaching a signature page bearing the judge’s signature from a different case to a fraudulent dissolution decree. As already mentioned, forgery of a judge’s signature is a grave misrepresentation. Finally, unlike the misconduct of the attorney in McGinness, Barry’s misconduct caused harm to his vulnerable client.

As to remorse

Barry’s remorse and cooperation came on the coattails of the clerk of court’s discovery of his fraudulent dissolution decree. As the commission and the Board reasoned, “[T]here is nothing to suggest that Barry was prepared to abandon his course of deception prior to the Clerk of Court and Iowa District Court Chief Judge’s contact with Barry’s law firm.” In McGinness, we stated the attorney’s remorse and cooperation came after the district court entered an order imposing sanctions and the Board contacted him concerning a complaint about his misconduct. 844 N.W.2d at 467. We reasoned “[t]he chronology tends to deflate consideration of remorse and cooperation as mitigating factors.” Id.

Here, we agree with the commission that nothing in the record suggests Barry was prepared to abandon the path he was traversing but for the impetus provided by the unraveling of his deception. Notwithstanding the chronology of Barry’s self-reporting, because Barry expressed some level of remorse and cooperated with the Board, we find a deflated degree of mitigation.

Additionally, Barry self-reported his misconduct, although he delivered the letter to the Board after the clerk of court had contacted his law office inquiring about the dissolution file and it became apparent the end of his charade was just around the corner. Admittedly, his self reporting is simultaneously self-serving and apologetic. Barry apologized and stated he understands there should and will be consequences. Nevertheless, his letter portrays himself as a victim, rather than the perpetrator, and paints the Millers as relentless clients who pressured him for updates on the case and made threats against him for his slow handling on the matter.

As a whole, the letter contains an oxymoronic, but all too familiar, combination of self-serving justifications and sincere explanations for his actions. Despite the ambivalent nature of his letter, we give some deflated credit to him for detailing his misconduct in the letter.

His voluntary self-suspension was treated as mitigation but

We find Barry’s misconduct is more egregious than those in McGinness and Thompson because of the continuous nature of his misconduct over a long period of time. Rather
than owning up to his lack of diligence, Barry covered it up by forging a divorce decree. His actions not only caused the client but also the staff of the clerk’s office to expend time and resources to investigate Barry’s deception. Furthermore, Barry took advantage of a client who was in a vulnerable position. However, we find his misconduct is less egregious than that in Rickabaugh I. Accordingly, we suspend Barry’s license to practice law in Iowa for an indefinite period with no possibility of reinstatement for one year from the date of filing of this opinion. As an additional requirement for reinstatement, Barry must provide an evaluation from a licensed health care professional verifying his fitness to practice law.

The court's web page now provides easy access to the briefs in matters before it. Bravo (Mike Frisch)

February 23, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Room At The Inns

The South Carolina Advisory Committee on Judicial Ethics opines on Inns of Court membership of a family court judge

The American Inns of Court have been in existence in South Carolina for some time. The American Inns of Court is an association of lawyers, judges, and other legal professionals from all levels and backgrounds. Through regular meetings, members are able to build and strengthen professional relationships; discuss fundamental concerns about professionalism and pressing legal issues of the day; share experiences and advice; provide mentoring opportunities; and advance the highest levels of integrity, ethics, and civility. A steering committee has been formed and created for a new chapter. A family court judge in the area is on the steering committee and wishes to participate in the chapter. However, because each inn determines its own membership by extending invitations, rather than being open to all members of the bar, the judge has inquired into the propriety of becoming a member. Specifically, the judge is concerned as to whether participation as a member would cause some non-member lawyers to feel that inn members have different access to the judge, i.e., create the appearance of partiality.

Room at the Inns for judges

The inns of court is a group whose activities are dedicated to the law, the legal system and the administration of justice. As such, a judge's participation in the group's activities, per se, is not unethical.

With regard to whether the judge’s participation could give other attorneys a perception that other Inns of Court members would have more, presumably preferred, access to judge members, this Committee finds that such perception would be unfounded and certainly would not serve as a bar to membership in an inn of court. As noted in the facts presented, historically judges have been members in the American Inns of Court and there are already several South Carolina chapters which include judges as members. There does not appear to be an allegation of preferential treatment of inn members or disqualification of judges in the areas where these other South Carolina chapters exist. In addition, other states have clearly allowed judges to be members of inns of court, as long as the judge abides by the other judicial canons regarding fundraising and/or recruitment of members. See, e.g., Serving as Member and Officer of Inn of Court; Involvement in Fundraising and Recruitment, (Mass. Sup. Jud. Ct. Comm. Jud Eth. 2005) 2005 WL 6734491, at *2. See also, Alabama Judicial Ethics Opinion 95-579, 1995 WL 17956160, at *1 (allowing judge to use surplus campaign funds to pay special membership dues to the Alabama State Bar and to pay membership dues to the local chapter of the American Inn of Court); Florida Judicial Ethics Opinion 2010-32, 2010 WL 7809088, at *1 (allowing a judicial member of an inn of court to participate in a program or skit performed by the chapter where the “best skit” award includes a monetary contribution to a charity of the group's choice).

(Mike Frisch)

February 23, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 22, 2018

"Lie, Lie, Lie" And Kick The Table

The Florida Supreme Court rejected a proposed second three year suspension and imposed disbarment instead

Ratiner was admitted to practice law in 1990. In each of the three disciplinary cases brought against Ratiner, two prior and the instant case, the misconduct arose in the course of his representation of plaintiffs against E.I. DuPont De Nemours & Co., Inc. (DuPont). The first disciplinary case resulted in a sixty-day suspension and a public reprimand, to be followed by a two-year period of probation, Fla. Bar v. Ratiner, 46 So. 3d 35 (Fla. 2010), while the second case resulted in a three-year suspension. Fla. Bar v. Ratiner, 177 So. 3d 1274, 2015 WL 5156338, at *1 (Fla. 2015). Because the referee in this case found that the prior cases constituted aggravating factors, and because we conclude that they demonstrate the progression of Ratiner’s disparaging misconduct towards other members of the legal profession, we discuss the earlier disciplinary cases below in the context of our determination that disbarment is warranted in this case.

In this matter

One of the allegations of misconduct raised by the Bar was that Ratiner, during a post-trial hearing in the Sidran matter, was overheard saying "lie, lie, lie" in quick succession while opposing counsel conducted the direct examination of Ratiner’s law partner. At the hearing before the referee, the judge presiding in the Sidran case, Judge Amy Steele Donner, testified that she had heard Ratiner utter the words "lie, lie, lie," while at the time Ratiner denied that he had said those words. Ratiner testified before the referee that he had been talking to his associate in a low voice but that he had no recollection of saying "lie, lie, lie." In his report, the referee found Judge Donner’s testimony at the final hearing that Ratiner had in fact spoken the words "lie, lie, lie" "very credible."

And

 In its complaint, the Bar also alleged that Ratiner, in the post-hearing proceedings in the Sidran case, repeatedly kicked the leg of counsel’s table where he was seated. The lead opposing counsel in the Sidran litigation, Andrew Brenner, testified before the referee that Ratiner was kicking counsel’s table "in a manner that was disruptive of the proceedings." The referee had Mr. Brenner demonstrate how Ratiner had been kicking the table, and found it to be "very loud." Judge Donner testified at the final hearing that she was aware that Ratiner had kicked the table, and she called a sidebar after he did it a second time. As a result of the kicking incident, she ended the post-trial hearing. Based upon the testimony of Judge Donner and Mr. Brenner, the referee concluded "that such behavior in fact would be disruptive to any judicial proceedings," and found that Ratiner intended to disrupt the proceedings...

Also

Judge Donner testified that limits on closing arguments were agreed to by the lawyers, and when Ratiner exceeded his time, she gave him a few additional minutes but he stated that he would take whatever time he needed. Judge Donner also testified that she saw Ratiner " ‘wrinkling and throwing’ documents and that after 4-5 times of this behavior she reprimanded Respondent." On cross-examination, Judge Donner stated that she saw Ratiner throwing documents on counsel’s table, that he denied it, and that she told him that he was calling her a liar because she did see him do it. Judge Donner described Ratiner’s behavior at trial as "awful, that he was not respectful to the court or obeyed orders, and that she was ‘appalled.’ " Moreover, Judge Donner testified that Ratiner’s behavior "had been totally disruptive, that he was a ‘bully’ and that she called the Bar about Respondent’s behavior."

Sanction

 Disbarment is an extreme form of discipline and is reserved for the most egregious misconduct. See Fla. Bar v. Summers, 728 So. 2d 739, 742 (Fla. 1999); see also Fla. Bar v. Kassier, 711 So. 2d 515, 517 (Fla. 1998) (holding that disbarment is an extreme sanction that should be imposed only in those rare cases where rehabilitation is highly improbable). Ratiner’s intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.

Daily Business Review reported on the earlier cases.

Ratiner, who became a lawyer in 1990, first got in hot water with the Florida Bar after he launched into a tirade against opposing counsel for DuPont during a 2007 deposition. Ratiner Trial Law represented orchid growers who alleged DuPont’s fungicide Benlate killed their plants.

The chemical company’s attorney tried to place an exhibit sticker on Ratiner’s laptop, and Ratiner tried to run around the table toward him before lambasting him to the point where the court reporter said, “I can’t work like this!”, according to the referee. The Florida Supreme Court suspended Ratiner for 60 days and put him on probation.

In 2009, Ratiner was in a document review session with DuPont when he loudly called opposing counsel a “dominatrix,” with “no substantial purpose other than to embarrass” her, according to the referee. He later tried to forcibly take papers from another female attorney, even after she told him, “Don’t grab [me] ever again.” The incidents led to a three-year suspension.

The first court decision is linked here. (Mike Frisch) 

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

Wednesday, February 21, 2018

Horrific Childhood Did Not Mitigate Sanction

Revocation of license was ordered by the Tribunal Hearing Division of the Law Society of Upper Canada for misappropriation

The Licensee: (a) misappropriated over $300,000 in trust funds (Particular 4); (b) mishandled about $14,000 in trust funds (Particular 5); (c) did not maintain her books and records as required (Particular 6); and (d) misled the Law Society in annual reports filed with it (Particular 7). The other particulars originally contained in the Notice of Application were withdrawn at the hearing.

With respect to the misappropriation of trust funds, the total of the improper transfers made by the Licensee over a two-year period from July 2011 to July 2013 was about $308,200. These transfers were misappropriations as they were improper withdrawals from the trust account. These transfers from trust were “borrowed” to keep the Licensee’s practice afloat. She intended to cover the shortages later. She knew it was wrong to transfer money out of trust, even if it was for earned fees, without first rendering accounts. 

Some of the transfers did represent earned fees that the Licensee intended to bill but she did not get around to preparing the invoices for clients. She did ultimately prepare client accounts totaling $20,024.84 and these accounts were posted to PC Law.

She may have been willfully blind initially to the fact that her unauthorized withdrawals from her trust account were creating a shortage. However, by November 2011 at the latest, she knew that her unauthorized transfers were creating a shortage in the trust account. Despite this knowledge, she continued the improper transferring of trust funds and even continued taking the trust funds after she had deposited $200,000 into trust, in November 2011, in an effort to correct the shortage.

The Licensee made a payment of $200,000 into the trust account in November 2012. She made a further payment of $105,000 in June 2013, for a total of $305,000. She made a further payment of $1,341.18 to the trust account on October 31, 2013 as a result of a miscommunication with her accountant. The total paid to the trust account was $306,341.18.

As to sanction

The mitigating evidence in this case, other than the medical evidence, does not qualify as exceptional. In this case, the Licensee ultimately made restitution by two installments during the course of the investigation, co-operated by signing the ASF, recognized what she had done was wrong, expressed remorse, and provided extensive character evidence from people in the legal community and the Barrie community at large. She is held in high regard by the authors of the letters. In the face of a presumptive penalty, however, this type of evidence is considered common.

The misappropriation in this case brings with it a presumptive penalty. For evidence to mitigate against the penalty here, it must qualify as exceptional.

Ms. Adams had a very difficult childhood, marred by sexual abuse, being raped when she was in grade two, racism and being in and out of nine foster care placements. Her treating therapist, who has over 40 years’ experience as a therapist, described her childhood experiences as the “most horrific situation I have seen for a young person to go through.”

Ms. Adams had been diagnosed with severe anemia, which resulted in her having to undergo an emergency hysterectomy and required a blood transfusion. She was also diagnosed as suffering from major depression exacerbated by the death of a number of family members between 2007 and 2013. In 2007, her foster mother died. In 2008, her foster father died. In 2011, her foster brother, with whom she was close, was killed in a car accident. In January 2012, her niece died. In July 2012, her biological mother died. In February 2013, her nephew drowned at sea. A week later her biological father died. She also lost her two beloved pets – her cat in the fall of 2011 and her dog, in 2012.

The medical evidence from three medical professionals is compelling and consistent. Those professionals were qualified as experts; each provided written reports and testified.

Psychologist, Dr. Giorgio Ilacqua, and treating therapist, Dr. Howard Irving, testified for Ms. Adams. Forensic psychiatrist, Dr. Lisa Ramshaw testified for the Law Society. All three experts agree that the lawyer suffered, at the relevant time from major depression. All three experts agree that the physical illness, her anemia, and the mental illness (the major depression) contributed to creating a connection to and the climate in which the misconduct occurred. All three experts generally agree that with changed circumstances, medical intervention, and ongoing therapy, it is unlikely that Ms. Adams will repeat the misconduct in the future. Her risk of re-offending is low. When he testified, however, Dr. Irving said that he was winding down his intensive ongoing treatment. This raises some concern that ongoing treatment is not in the picture for the future, particularly since ongoing intensive treatment was a key component in Dr. Ramshaw’s plan to lessen the risk of re-offending.

Dr. Ramshaw diagnosed the Lawyer as likely suffering a Major Depressive Episode (as part of a Major Depressive disorder) between 2011 and 2013, this was exacerbated by numerous losses and the moderate to severe iron deficiency anemia.

[Dr. Ramshaw explained that the ongoing bereavement caused by the loss of seven family members before and during the misappropriations, was the most likely stressor precipitating the Major Depressive Episode. The Lawyer was rendered more vulnerable to depression as a result of her traumatic childhood, marked as it was by instability, sexual assault and rape, rejection and racism. In addition, the Lawyer’s need to succeed, developed from her years of rejection and abuse in foster care, prevented her from being able to effectively problem-solve when she got into financial difficulty.

In response to questions concerning the risk of mental health relapse, Dr. Ramshaw said that while her childhood is always going to be with her, Ms. Adams “has a lot of strengths and resilience and now support to decrease that risk.”

Dr. Ramshaw highly recommended that Ms. Adams continue in therapy and that given the degree of her vulnerabilities, Ms. Adams will always need to have some form of therapeutic support to ensure she is functioning and at a low risk to having depression again. While she does not need to have therapy for the rest of her life on a monthly or weekly basis, she would need access to therapy when there are any “perceived difficulties or decline or times of stress.” Dr. Ramshaw said that the mental illness “prevented her from being able to effectively problem-solve when she got into financial difficulty”. But her clouded judgment did not affect her ability to have control over her actions. Once the extent of the trust misappropriations were apparent she was quickly able to replace those funds from her own resources and from borrowed funds. She was unable to explain why she did not do this in the beginning when she began experiencing financial difficulty in her practice.

Notwithstanding the above

Notwithstanding the medical evidence, and considering it from the point of view of a well-informed member of the public who understands that expert evidence, the panel is of the opinion that the public’s confidence in the legal profession would be significantly undermined if Ms. Adams were permitted to continue to practise. In addition, and importantly, the confidence of the legal profession in its own collective reputation would be seriously undermined if, after misappropriating over $300,000 in multiple transactions over a two-year period, and misleading the regulator about her trust account for three years, Ms. Adams were permitted to keep her licence to practise.

Dissent

I should briefly allude to the underlying exceptional circumstances Ms. Adams experienced. They include an unimaginably horrific childhood: being shunted in and out of nine foster care homes; experiencing sexual abuse; and being raped when she was in grade two. Between 2011 and 2013, roughly coinciding with the two-year period when the impugned conduct occurred, Ms. Adams suffered a Major Depressive Episode (part of a pre-existing Major Depressive Disorder), severe and debilitating iron deficiency anemia, and an emergency hysterectomy requiring a blood transfusion. All of this was exacerbated by the deaths of seven close family members. Those losses include the deaths of both foster parents, both biological parents, an extremely close foster brother who died in a car accident, a nephew who drowned at sea, a niece and two of her beloved pets. One of the medical experts who gave evidence described the circumstances Ms. Adams suffered through as being a “perfect storm.”

The unchallenged and unanimous opinion of the three medical experts who examined Ms. Adams, provided written reports and testified at the hearing, found a direct causal relationship between the impugned conduct, Ms. Adams’ medical problems and these unimaginable underlying circumstances.

The expert evidence...confirms the direct causal relationship between Ms. Adams’ impugned conduct and all those underlying exceptional circumstances.

When Ms. Adams realized that the unauthorized transfers from trust had created a trust account shortage, she deposited $200,000 into her trust account in November 2012 from money she raised by mortgaging properties, deposited another $105,000, borrowed from friends, and then deposited a final $14,043.87 into her trust account in October 2013. As a result of these deposits, Ms. Adams had made full restitution by June 25, 2013.

The majority notes that the presumptive penalty for mortgage fraud and misappropriation is revocation. The reasons refer to jurisprudence that shows that a licensee’s psychiatric, psychological, and physical condition, together with individual circumstances involving extreme duress or desperation, have been held to warrant a departure from the presumptive penalty in cases where the impugned conduct not only is out of character and unlikely to recur, but explains why the misconduct occurred.

The dissent would allow her to resume practice with conditions. (Mike Frisch)

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

The Fourth Of July

Discipline recently imposed in Colorado

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Ian Trevor Hicks (attorney registration number 39332), effective February 8, 2018.

Hicks was hired in a defective flooring case. He and his client signed a contingency fee agreement on June 16, 2016. Ten days later, Hicks and the client kissed. They first had sex on July 4, 2016. Their intimate relationship continued until April 2017.

Hicks sent a demand letter in the flooring case in August 2016, and the case settled later that month for $15,000.00. The client was satisfied with Hicks’s representation.

During Hicks’s relationship with this client, he disclosed to her confidential client information regarding a number of his other clients. He occasionally forwarded to her emails from clients or opposing counsel, and he also sent her draft settlement demands and other draft documents. There is no evidence that the client disseminated or acted on any of this information.

Through this conduct, Hicks violated Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent) and Colo. RPC 1.8(j) (a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship began).

(Mike Frisch0

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