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)

Eligible To Seek Reinstatement

A 2 1/2 year suspension - making the attorney eligible to seek reinstatement - has been imposed by the New York Appellate Division for the First Judicial Department for tax crimes.

On April 14, 2014, respondent was convicted, upon his plea of guilty, in the United States District Court for the Northern District of New York of obstructing and impeding the Internal Revenue Service, in violation of 26 USC § 7212(a), a felony. On May 1, 2014, respondent was convicted, upon his plea of guilty, in the United States District Court for the Southern District of New York of two counts of failure to file individual income tax returns for the years 2006 and 2007, in violation of 26 USC § 7203, a misdemeanor.

He was released after serving 11 months.

Both the IRS and New York State are claiming significant taxes are still owed. Negotiations for a settlement and payment plan between the IRS and respondent and New York State and respondent remain ongoing.

On October 26, 2016, counsel for respondent filed an affidavit of compliance with this Court's April 14, 2015 interim suspension order.

Respondent admits that he was convicted of offenses which are defined as "serious crimes" under New York law and that his conduct violated rule 8.4(b) of the New York Rules of Professional Conduct (22 NYCRR 1200.0), which provides that a lawyer shall not engage in illegal conduct that adversely reflects on the lawyer's honesty, trustworthiness or fitness as a lawyer.

The parties agree that, in accordance with the case law and taking into account the factors in mitigation, a suspension of 2½ years, retroactive to his interim suspension dated April 14, 2015, is appropriate. The mitigating factors considered by the parties include respondent's candor about his misconduct, his acceptance of responsibility and expressions of sincere remorse and contrition; his filing of all outstanding federal and state tax returns for 2005 through 2010 covering all the years he had failed to file returns, and his payment of estimated payments totaling $118,000 for tax years 2006 through 2009; his position as a staff lawyer with the Legal Aid Society in the Bronx from 1984-1989, and as a solo practitioner handling mostly criminal defense matters representing many indigent clients, many of whom were Native Americans, from 1989-2015; his devotion to pro bono work in international human rights matters as a "significant" part of his practice, and his plan to continue this work upon his reinstatement; his devotion to caring for his longtime life-partner who has long-term serious mental and physical health problems; his own chronic health condition; his previously unblemished record as an attorney; his austere lifestyle, where respondent is without assets or an income; his actions did not harm his clients; his compliance with this Court's interim suspension order; and finally the consequences of his misconduct, insofar as he served 11 months out of his 18-month sentence in prison, three months in a halfway house and two months of home confinement.

Sanction

The parties have agreed further, subject to this Court's consent, that in light of his age, the absence of any new allegations, and respondent's desire to return to "productive activity so that he may repay his back tax liability and teach abroad, as he plans to do," he should be allowed to apply for reinstatement immediately.

In light of the foregoing, we find that the proposed discipline of a 2½ year suspension, effective April 14, 2015, the date of his interim suspension, is an appropriate sanction for respondent's serious crimes.

As the period of suspension has already run, respondent may apply for reinstatement (22 NYCRR 1240.16[c][2]). Therefore, it is unnecessary for this Court to give respondent "permission to apply for reinstatement immediately," as the parties request.

(Mike Frisch)

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

Unanswered Questions

The Georgia Supreme Court rejected a petition for voluntary discipline

The underlying grievance was filed by an attorney who represented Grady Hospital in lien collections, after he discovered that Braziel’s office submitted a fabricated lien letter from him to an insurance company. Although the State Bar supports the petition, we nevertheless reject it.

Braziel, who was admitted to the Bar in 2007, provides the following explanation for the fabricated letter. Braziel was in the process of trying to settle a client’s personal injury claim with the liability insurer and her client’s uninsured motorist carrier. Her client had been treated at Grady Hospital, incurring charges of $24,384.77, and Braziel believed that a lien had been filed but could not document it. Braziel recalled that she had received a Grady Hospital lien letter from Grady’s lawyer in another client’s matter, and she wanted to contact that lawyer to ask his assistance in determining if a lien had been filed or would be filed with respect to her current client’s hospital bill. While Braziel was traveling out-of-state to obtain treatment for a personal medical condition, she called her assistant to ask her to pull the Grady Hospital lien letter from the prior client’s file, to duplicate it, and to place it in the new client’s file, so that she could contact Grady’s lawyer for assistance. The call was made while Braziel was in the car in rural Mississippi and through poor reception of the call, poor instructions, and poor training of the assistant, the assistant misunderstood her instructions. The assistant created a duplicate of the Grady Hospital lien letter with the information for the new client and the expected amount of the lien, with the result being a letter that appeared to be from Grady’s lawyer to Braziel about a lien held by Grady in connection with Braziel’s representation of her current client. When Braziel saw the letter that had been created, she admonished her assistant and gave her additional instructions in her duties as a legal assistant.

Rather than destroying the letter, however, Braziel faxed it to Ms. Morris, an administrative service provider, and asked her to confirm the existence of the lien. Braziel explained the nature of the document to Morris and sent her the letter for internal, informational purposes only, as it contained the information Morris would need to track down the lien information. Braziel had engaged Morris, who has a law degree (but is not a member of the Georgia Bar), approximately six months earlier to assist with her law practice because she was overloaded due to ongoing health issues. Unbeknownst to Braziel, Morris sent the letter to the new client’s UM carrier. When Braziel learned about the existence of the letter from Grady’s lawyer, she severed her ties with Morris. The UM carrier did not pay any sums as a result of the letter. Braziel accepts responsibility for her actions and expresses deep remorse. She has also offered numerous mitigating factors. Braziel’s petition for voluntary discipline seeks a review panel reprimand.

In response, the State Bar does not specifically contest Braziel’s version of the facts, but it states that other witnesses might recall some of the facts differently. We note that the grievance filed by the Grady lawyer presents materially different facts.

The was concerned about both an admitted and unaddressed rule violation

Because of the uncertainty regarding the underlying facts, the inappropriateness of finding a Rule 7.5 violation in these circumstances, and the possibility that a Rule 8.4 violation may have occurred, we reject the petition for voluntary discipline. 

(Mike Frisch)

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

Tuesday, February 20, 2018

Conduct (Not) Prejudicial

The Utah Supreme Court affirmed the dismissal of bar charges against a former ALJ

This is an appeal in an attorney discipline proceeding involving Richard LaJeunesse. LaJeunesse has been licensed to practice law in Utah since 1996. From 2001 through 2012, he was the Presiding Administrative Law Judge (ALJ) and Director of the Adjudication Division of the Utah Labor Commission. In that capacity he adjudicated workers’ compensation disputes between occupationally injured employees and their employers or insurance carriers. He also oversaw the work of other ALJs.

This case arises out of a policy adopted by LaJeunesse in his work as Presiding ALJ and Director of the Adjudication Division. The policy concerned ALJs’ treatment of medical panel reports submitted under Utah Code section 34A-2-601(2). That provision requires an appointed medical panel to make “a report in writing to the administrative law judge in a form prescribed by the Division of Adjudication.” UTAH CODE § 34A-2-601(2)(b)(i). It also directs the ALJ to “promptly distribute full copies” of that report to all parties and their attorneys. Id. § 34A-2-601(2)(d)(i). LaJeunesse interpreted this statute to leave room for an ALJ to reject reports submitted by medical panels and to request changes to the form and verbiage in a report—without submitting the rejected report to the parties or their attorneys. Applying this policy, another ALJ working under LaJeunesse’s supervision (Debbie Hann) rejected reports she deemed noncompliant and requested medical panels to submit replacement reports. In those instances she did not provide a copy of the rejected report to the parties or to their counsel. LaJeunesse knew of three of these instances. And he personally participated in rejecting a medical panel report and requesting a new report in one instance.

 

A party in one of these cases discovered that a medical panel report had been rejected without being distributed to the parties. An audit and investigation ensued. The Utah Labor Commission ultimately concluded that the policy adopted by LaJeunesse ran afoul of explicit and implicit mandates of the Workers’ Compensation Act, including the requirement that ALJs “promptly distribute full copies” of medical panel reports to parties and their attorneys. Id. It also faulted LaJeunesse for embracing a policy that allowed ALJs to destroy medical panel reports without informing the parties of the existence of such reports or of the nature and extent of proposed changes to them. Thus, the Commission repudiated the policy adopted by LaJeunesse, instructing ALJs that they could no longer withhold medical panel reports. And the Commission ultimately terminated LaJeunesse for his role in adopting and implementing a contrary policy.

The attorney was charged with conduct prejudicial to the administration of justice

Judge Stone concluded that LaJeunesse had not engaged in conduct prejudicial to the administration of justice. He held that LaJeunesse had a sound legal basis for the policy he had adopted or, alternatively, that a lawyer exercising quasi-judicial power (as an ALJ) cannot be found in violation of rule 8.4(d) merely for adopting a reasonable interpretation of a statutory scheme that is ultimately shown to be incorrect.

We affirm on this latter ground. We conclude that a lawyer cannot be charged with conduct prejudicial to the administration of justice for adopting a good faith but mistaken interpretation of a law that governs the lawyer’s performance of quasi-judicial authority.

Thus

We can understand the OPC’s motivation in pursuing this case. The policy adopted by LaJeunesse seems to have interfered with the transparent operation of the system of adjudicating workers’ compensation disputes. It may have deprived parties and their counsel of the opportunity to object to proposed changes to medical panel reports. And the policy in question may ultimately be incompatible with the terms and conditions of the Workers’ Compensation Act—or at least with best practices thereunder. That is not enough to sustain a charge of conduct prejudicial to the administration of justice under our rules of professional conduct, however. We affirm the dismissal of the charge against LaJeunesse because we conclude that the policy in question was adopted in a good faith attempt to interpret the law.

(Mike Frisch)

February 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, February 19, 2018

Thinking Does Not Disqualify Judge (Think About That)

The Florida Judicial Ethics Advisory Committee opines:

Opinion Number: 2018-03
Date of Issue: February 4, 2018

ISSUES

1. Whether a judge must recuse based on information that an attorney who regularly appears before the judge is “thinking” of running against the judge.

ANSWER: No, unless a personal bias or prejudice against the attorney or the attorney’s client has developed.

2. Whether the judge may ask the attorney directly whether the attorney intends to run against the judge.

ANSWER: No.

FACTS

The inquiring judge has received “credible” information that an attorney who appears before the judge on a regular basis is “thinking” about running against the judge in the upcoming election cycle.

The judge also notes that there is a pending dispute between the attorney’s family and the judge’s parents, the origin of which occurred “a couple of years ago.” The judge states that there is no issue between the judge and the attorney over the matter; nor has there ever been a related recusal or motion to disqualify.

The judge reports that the community in which the judge sits is very small, and that the attorney appears in front of the judge frequently representing the same client. The judge reports having no feeling of personal bias against the client, but is concerned about the appearance of impropriety. The judge is also concerned about the impact recusal would have on the dockets of the other judges in the jurisdiction in which the judge sits.

Analysis

We agree with the Arizona Judicial Ethics Advisory Committee. We do not believe that either rumors or direct statements from an attorney to others that the attorney is “thinking” about running against the judge, or notice directly from the attorney to the judge that the attorney is “thinking” about running or intends to run, would reasonably draw into question the judge’s impartiality. The inquiring judge here has stated expressly that the judge has not developed a bias against the attorney’s client but is merely concerned about the appearance of impropriety. We conclude that until the attorney formally announces opposition to the judge, there is not a reasonable basis to question the judge’s impartiality that needs to be addressed by the judge.

(Mike Frisch)

February 19, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

A Relentless Recovery

The Cleveland Plain Dealer reports on a reinstatement recommendation

An Ohio attorney disciplinary panel says a Cleveland-area lawyer who participated in bribing sexual assault victims to try to keep his client out of prison should get his law license back.

The Ohio Supreme Court indefinitely suspended Marc Doumbas' law license in 2017 based on his conduct in representing a client along with Cuyahoga County corruption figure Anthony Calabrese III. A jury found Doumbas, 49, guilty of two counts of bribery and he was sentenced in 2013 to a year in prison.

Doumbas' license was placed on an interim suspension between 2014 and when the Supreme Court ruled last year. After asking the court in September to reinstate his law license, the Ohio Board of Professional Conduct wrote Monday that it is backing him.

The board wrote that Doumbas, who lives in Avon Lake, has held several jobs since his law license was suspended, including working in a machine shop, as a longshoreman, for the repossession company Relentless Recovery and selling used cars. He also worked at Sainato's pizza restaurant in the Flats.

At a hearing in front of the board in January, Doumbas said he took full responsibility for the actions that sent him to prison and said he has identified procedures and practices to prevent making another mistake, according to the board's recommendation.

The board wrote that Doumbas "possesses all of the mental, educational, and moral qualifications that were required of an applicant for admission to the practice of law" when he was admitted to practice in Ohio in 2001.

The Ohio Supreme Court will next decide whether to accept the board's recommendation.

Doumbas did not immediately return a phone call.

Calabrese hired Doumbas and G. Timothy Marshall to represent Thomas Castro in a criminal case in which Castro was charged with sexually assaulting two women.

Marshall, Calabrese's uncle, offered one of the victims $54,000 plus an additional $6,000 for her attorney for her "pain and suffering" while Castro's case was pending. The woman construed the offer as a bribe and rejected it.

After Castro pleaded guilty to two counts of sexual battery, Marshall tried to again offer the same woman $50,000 to "say something nice to the judge" during the sentencing hearing.

That message never reached the woman.

Calabrese offered the second victim $50,000 through her attorney as a potential civil settlement in exchange for writing a letter asking for treatment for Castro rather than prison time. Calabrese later increased the offer amount to $60,000, then $90,000, but the woman rejected the offers. 

Castro was sentenced to four years in prison. Doumbas claimed he did not make any of the offers to the women, but prosecutors said he knew of Marshall and Calabrese's actions and was therefore complicit.

The Ohio Supreme Court in 2015 permanently disbarred Calabrese after his conviction on racketeering charges in the fallout of the county corruption probe that ensnared dozens of officials and contractors for paying and taking bribes. Calabrese is serving a nine-year federal prison sentence.

Marshall died in 2016.

Doumbas is also asking a Common Pleas judge to expunge and seal his case.

Hat tip to Ohio Supreme Court web page. (Mike Frisch)

February 19, 2018 in Bar Discipline & Process | Permalink | Comments (2)

Sunday, February 18, 2018

Thumbs Down: "You Need The Money, I Need The Money..."

A case that began with an anonymous email to the State Bar has resulted in the following consent sanction approved by the Arizona Presiding Disciplinary Judge

[Respondent] is reprimanded for his conduct in violation of the Arizona Rules of Professional Conduct, as outlined in the consent documents, effective the date of this order.

IT IS FURTHER ORDERED Mr. Thrasher shall be placed on probation for one (1) year. The only term of probation is that, in addition to his annual MCLE requirements, Mr. Thrasher shall complete six (6) hours of Continuing Legal Education (“CLE”) on the subject of lawyer advertising. Mr. Thrasher shall provide the State Bar Compliance Monitor with evidence of completion of the program(s) by providing a copy of handwritten notes. Mr. Thrasher shall contact the Compliance Monitor at 602-340-7258 to make arrangements to submit this evidence. Mr. Thrasher shall be responsible for the cost of the CLE. Probation may terminate early if Respondent completes the ordered CLE before the end of one year.

A thumb drive was attached to the email that contained audio and video showing the attorney giving $16,000 in cash to a man in a wheelchair.

In response to the State Bar inquiry, Respondent confirmed that it was his voice on the thumb drive and that the man in the wheelchair was the founder of a non profit that assists the victims of spinal injuries. 

The $16,000 was a referral fee.

The audio/video also memorialized a discussion of another referral fee in a matter that had settled for $1.5 million. Respondent discussed the tax consequences of him paying $45,000 to the man in the wheelchair.

Respondent on tape; "You need the money, I need the money...two of these a year would be golden." (Mike Frisch)

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

D.C. Bar Discipline Hearing Schedule

I am pleased to note that the web page of the District of Columbia Board on Professional Responsibility has been updated to give public notice of upcoming scheduled bar disciplinary hearings.

In re Edward Gonzalez, DN. 2016-D141
February 8 & 9, 2018, 9:30 a.m.
Courtroom II

 In re Billy Ponds, DNos. 2011-D377, et al.
February 20 & 21, 2018, 9:30 a.m.
Courtroom II

In re Glenn H. Stephens, III, DNos. 2015-D330, et al.
March 12-16, 2018, 10:00 a.m.
Courtroom II

In re Karen P. Cleaver-Bascombe, DN. 2017-D115
March 19, 20, 23, 2018, 9:30 a.m.

In re Stephen M. Reid, DN. 2014-D429
March 20-23, 2018, 9:30 a.m.

In re Warner H. Anthony, DN. 2017-D156
March 27, 2018, 10:00 a.m.
Courtroom II

In re Latif Doman, DNos. 2010-D050 & 2012-D390
April 5 & 6, 2018, 9:30 a.m.
Courtroom II

In re Jean Robinson, DN. 2015-D192
April 12-13 & 19-20, 2018, 9:30 a.m.
Courtroom II

In re Larry Klayman, DN. 2011-D028
May 30 - June 15, 2018, 10:00 a.m. 
Courtroom II
 
A major transparency improvement would be links to the charges and answers.
 
Wishful thinking. (Mike Frisch)

February 18, 2018 in Bar Discipline & Process | Permalink | Comments (4)

Perils Of Inaction When Your Opponent Drops The Ball

An attorney who represented Sheriff Joe Arpaio and Maricopa County in defending a lawsuit alleging mistreatment while incarcerated has accepted an admonishment by the Arizona Presiding Disciplinary Judge.

Ms. Flaggman conditionally admits she violated Rule 42, ERs 3.3 (candor before tribunal) and 8.4(d) conduct prejudicial to the administration of justice. The agreed upon sanctions include an admonition and one (1) year of probation to include 5.75 hours of continuing legal education (CLE), and costs totaling 1,200.00 within thirty (30) days from this order.

The parties agree to an admonition and one (1) year of probation (CLE). Ms. Flaggman shall also pay the State Bar’s costs and expenses totaling $1,2000.00. The objective of discipline is met by the admonition

Respondent had moved for summary judgment based on the plaintiff's alleged failure to timely respond to discovery. On the day that the motion was filed, plaintiff contacted her by email and confirmed that the responses had been timely filed, a fact that she acknowledged.

The plaintiff filed no response and the respondent did not withdraw the motion.

As you might suspect, motion granted.

Plaintiff initially took no action.

The respondent consulted with her colleagues and reached a conclusion that the burden was on plaintiff to set aside the judgment as the "ball was in his court."

Plaintiff moved for reconsideration. The respondent did not oppose but the case was rotated to a new judge who entered judgment for the defendants.

Just before the six-month period ran, the plaintiff moved for reconsideration. The respondent did not oppose and the case was reinstated. 

The judge in the underlying case referred plaintiff's counsel - but not respondent - to the State Bar for investigation. (Mike Frisch)

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

Saturday, February 17, 2018

Tennessee Disbars Two: Metal Pipe Injury Defense Rejected In One Case; Other Followed In Footsteps Of Davy Crockett

The web page of the Tennessee Supreme Court

The Tennessee Supreme Court disbarred two Nashville attorneys, Sean K. Hornbeck and Robin K. Barry, revoking their law licenses. The Court rejected both attorneys’ requests to make the disbarment retroactive in order to enable them to apply for reinstatement of their law licenses sooner.

In the first case, Mr. Hornbeck persuaded a client to advance him over $5 million as part of a proposed financial venture that he promised would produce substantial payouts. Mr. Hornbeck deposited the client’s money into his trust account.  When the payouts did not materialize, the client demanded his money back. Mr. Hornbeck returned only $1 million of the over $5 million entrusted to him. The rest of the client’s money was never recovered.

In December 2008, a complaint was filed with the Tennessee Board of Professional Responsibility, which is responsible for investigating complaints against lawyers and disciplining them for ethical violations. The Tennessee Supreme Court immediately suspended Mr. Hornbeck’s law license while the Board investigated the complaint. 

A hearing panel of lawyers heard the evidence against Mr. Hornbeck. Mr. Hornbeck claimed that his mental state was affected by family crises and an injury from being hit in the head with a metal pipe. The hearing panel rejected this explanation and held that Mr. Hornbeck should be disbarred. 

Mr. Hornbeck appealed to the chancery court. The chancery court affirmed the hearing panel’s judgment of disbarment, and Mr. Hornbeck appealed to the Tennessee Supreme Court.

In the second case, Ms. Barry deposited money from clients into her trust account. This money was intended to be held in trust for the clients. Instead, Ms. Barry comingled the funds with her own monies and generally used the funds in the trust account as operating funds for her law practice.

The money in Ms. Barry’s trust account included disputed insurance proceeds held for a client. While she negotiated a settlement on the insurance proceeds, Ms. Barry moved to Texas. She did not tell her Tennessee client that she had moved.

When the dispute over the insurance proceeds ended, Ms. Barry paid most of the insurance proceeds to the other party in the dispute, and then emptied out her trust account. Shortly after, Ms. Barry’s Tennessee client asked Ms. Barry to send her the remaining insurance proceeds that were owed to her.

Over the course of the next two years, Ms. Barry proceeded to stonewall her Tennessee client’s inquiries about the remaining insurance proceeds. First she made up reasons why the money could not yet be paid, then she promised to pay what was owed, and then she stopped responding at all. Ms. Barry never told her Tennessee client that she had moved to Texas. Even after the client tracked down Ms. Barry in Texas, she continued to stonewall the client.

The client finally filed a complaint with the Board of Professional Responsibility. The Tennessee Supreme Court suspended Ms. Barry’s law license while the Board investigated the complaint.  

A hearing panel of lawyers heard the evidence against Ms.  Barry and decided that Ms. Barry’s law license should be suspended for a period of time. The Board appealed to the chancery court, which reversed the hearing panel and entered a judgment of disbarment.

Ms. Barry appealed to the Tennessee Supreme Court. She argued that she should not be disbarred. Alternatively, like Mr. Hornbeck, Ms. Barry asked the Court to make her disbarment retroactive to the date when her law license was first suspended so that she could apply for reinstatement of her law license sooner.

As to Ms. Barry, the Tennessee Supreme Court found that disbarment was the appropriate remedy under the ethics rules, and it affirmed the chancery court on that issue.

The Court rejected both attorneys’ requests to make their disbarments retroactive to the date of their temporary suspension. The Court explained that when serious complaints are received and are being investigated by the Board, the Court will typically suspend an attorney’s law license during the investigation.  If the attorney is disbarred, the disbarment becomes effective when the Court enters its order of disbarment, after all appeals are over. Disbarment is almost never retroactive.

The Court acknowledged that, under the ethics rules, five years after disbarment, a disbarred lawyer is allowed to apply for reinstatement of his or her law license. Regardless of a lawyer’s hope of reinstatement, the Court explained, “disbarment does not contemplate that the disbarred attorney will return to the practice of law. The purpose of disbarring an attorney is to remove from the profession a person who has proven to be unfit or unworthy of being entrusted with the duties and responsibilities accorded to those who have gained the privilege of a law license.”

In both cases, the Court affirmed the chancery courts’ judgments of disbarment and refused to make the disbarments retroactive. Therefore, both disbarments became effective when the Court entered its order of disbarment.                                   

To read the unanimous opinions in Sean K. Hornbeck v. Board of Professional Responsibility of the Supreme Court of Tennessee and Board of Professional Responsibility of the Supreme Court of Tennessee v. Robin K. Barry, authored by Justice Holly Kirby, go to the Opinions section of TNCourts.gov.

In the Barry matter

The hearing panel found five aggravating circumstances and no mitigating circumstances. It suspended the attorney’s Tennessee law license for eighteen months, two months of which were to be served on active suspension. After the Board appealed, the chancery court held that the hearing panel’s decision was arbitrary and capricious and that disbarment was the only appropriate sanction.

The oral argument in the Barry case is linked here.

The Hornbeck oral argument is linked here.

(Mike Frisch)

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

Friday, February 16, 2018

Conn Man

The Kentucky Supreme Court has permanently disbarred Eric Conn

The factual basis leading to Conn's disbarment is found in KBA files 22222 and 16-DIS-24363.

KBA file 16-DIS-24363 stems from Conn's guilty plea following his March 16, 2017, plea to two felony counts in criminal ·proceedings before the United States District Court, Eastern District of Kentucky. The Inquiry Commission filed a two-count charge against Conn on September 22, 2017, alleging violations of.SCR 3.130(8.4)(b)2 and SCR 3.130(8.4)(c).3 Conn failed to answer the charge and the matter was submitted to the Board of Governors for processing as a default under SCR 3.120. Through counsel, Conn acknowledged his actions constituted.unethical conduct in violation of the above Rules of Professional Conduct and by letter tendered his resignation to the KBA.

KBA file 22222 is the result of a guilty plea to a misdemeanor charge in the Circuit Court of Franklin County, Kentucky. Conn pleaded guilty to violating KRS 121.150( 12) by making a gift of money to another person to contribute to a candidate on his behalf. The felony charge was reduced to a Class A misdemeanor, Conn entereq a guilty plea, and was sentenced to 12 months in jail, conditionally discharged for two years.

Sanction

We agree with the KBA. Conn's action's, as reflected in his pleading guilty to multiple charges, exhibit condµct which make him unfit to practice law in the Commonwealth. Aside from Conn's recent behavior, fleeing the country, he has pleaded guilty to enough criminal financial activity to support permanent disbarment: one count of Criminal Attempt to Make a Gift to Another Person to Contribute to a Candidate on His Behalf, Theft of Government Money, and Paying Illegal Gratuities.

NPR reported on his capture.

Eric Conn, the Kentucky lawyer who defrauded the Social Security system of more than half a billion dollars before fleeing the U.S. in June, has been arrested in Honduras, according to that country's Public Ministry. Wanted by the FBI, he also sent taunting messages while on the lam.

Conn had been under house arrest when he cut off his ankle monitor a month before his sentencing hearing and left it in a backpack along I-75 in Lexington, Ky. He was later traced to New Mexico, where a truck he had been using was found near the border. The FBI says the vehicle had been provided by a co-conspirator.

Conn eventually made it to Honduras, where agents of the Technical Agency for Criminal Investigation arrested him in the northern city La Ceiba, along the Caribbean coast. At the time, he was leaving a restaurant in a shopping center. Honduran officials say Conn is being sent back to the U.S. on Tuesday.

Known as "the E-Man" in splashy ads and billboards, Conn once headed the largest Social Security law firm in Kentucky, promising to help clients get money from the government. But he was actually at the center of a corrupt group that included doctors, two federal administrative law judges and others who conspired to rig Social Security's disability benefit system, authorities said.

"The negative impact of Conn's presence in our community will be felt for generations," FBI Special Agent in Charge Amy S. Hess said this summer. "His flight from prosecution has diminished any legitimacy and integrity he once held as an attorney and officer of the court."

Members of the ring were indicted in April 2016 on federal charges that included conspiracy to commit mail fraud and wire fraud, mail fraud, wire fraud and making false statements. Conn entered a guilty plea in March 2017, agreeing to testify against others. But two months later, he disappeared.

After Conn fled, federal agents spotted him in surveillance video at a gas station and at a Walmart in New Mexico, where one image showed him pushing a bicycle.

From Louisville, Ky., member station WFPL, Eleanor Klibanoff reports that federal charges were recently lodged against Curtis Lee Wyatt, who allegedly "bought Conn a car, tested security protocols at the U.S.-Mexico border so Conn would know what to expect and helped him escape from house arrest."

(Mike Frisch)

February 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Speculative Conflict Does Not Justify Disqualification

The Iowa Supreme Court has reversed an order disqualifying retained counsel in a criminal matter.

Carlos Ramon Mulatillo privately retained attorney Steven Gardner to defend him on felony drug charges. Gardner had represented Mulatillo for fifteen months. Less than two weeks before the jury trial was to commence, the State filed additional minutes of testimony listing the name of a confidential informant who would testify against Mulatillo concerning five controlled drug buys he made from Mulatillo. This was the first time Mulatillo and Gardner were informed of the name of the confidential informant and the potential conflict of interest involving this individual. Gardner had previously represented the confidential informant for approximately one month in October 2014 on felony drug charges. Those drug charges led to the confidential informant agreeing to cooperate and assist the State. This cooperation agreement ultimately led to the confidential informant making controlled buys from Mulatillo.

The State moved to disqualify the defense attorney and at the hearing

The only evidence the State provided was hearsay statements from attorney Mitchell claiming Gardner had conversations with the drug task force or former prosecutor about the possibility of Davidson working as a confidential informant. While the district court properly considered these hearsay statements since Gardner never objected to this evidence, these statements did not rise to the level of substantial evidence that would support disqualifying Gardner.

Although the attorney for Davidson claimed Gardner had conversations with the former drug prosecutor about Davidson becoming a confidential informant, there is no further evidence to support this claim. The State did not have the former prosecutor, or any individual from the drug task force, testify about their interactions with Gardner while he was representing Davidson. The hearsay statements from attorney Mitchell alone did not amount to substantial evidence that would outweigh the important interest to Mulatillo in exercising his constitutional right to counsel of his choice. Rather, these statements speak to the speculative nature of the serious potential for an actual conflict of interest.

Most significantly, as in McKinley, the record is bereft of any evidence “tending to establish any confidence or secret learned during the [defense counsel’s] prior representations of [Davidson] on unrelated matters” that could be used against Davidson during cross-examination or to materially benefit Mulatillo, or conversely that could impede Gardner’s cross-examination of Davidson...

In this case, the evidence provided by the State did not rise to the level of substantial evidence that is necessary to prove that Gardner’s continued representation of Mulatillo creates a serious potential for an actual conflict of interest. The district court order disqualifying Gardner, based primarily on speculative evidence of a potential conflict, constitutes an untenable ground for the district court to exercise its discretion.

(Mike Frisch)

February 16, 2018 | Permalink | Comments (0)

Conflicts In New Hampshire

The New Hampshire Supreme Court Professional Conduct Committee has reprimanded an attorney who had failed to recognize and deal with developing conflicts of interest between three individual and one entity clients.

One of the former clients sued for legal malpractice. The disciplinary matter had been stayed as a result but here was resolved by stipulation while the civil case remains pending. 

Fosters.com reported on the underlying representation.

The attorney was retained by Young & Novis Professional Association (Y&N) and its two owners Drs. Moore and Littrell to pursue a claim that their contract with the Wentworth-Douglass Hospital ("WDH")  to provide pathology services had been terminated because they had insisted that a security breach that led to possible HIPPA violation be reported to authorities.

WDH advised Y&N to vacate its office at WDH by February 28, 2010.

On February 28, Moore, Littrell and Moore's husband went to the Y& N office at WDN. The purpose was to retrieve business and personal items and Y&N patient files. 

They  logged onto the WDH computer system.  The two doctors  had password access authority but Moore's spouse did not.  Mr. Moore and Littrell used a "Drive Scrubber" to delete documents. 

Another problem arose when Littrell's computer had on it "materials downloaded...including pornography and suggestive correspondence with a woman who was not his wife." He had a greater inducement to quietly settle as a result.

The matter underscores that the duty to monitor for conflicts continues throughout a representation. (Mike Frisch)

February 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"No Magic Formula" For Disciplinary Sanction

The West Virginia Supreme Court of Appeals rejected a Hearing Panel Subcommittee's proposed suspension of one year and ordered a three-year suspension of an attorney.

The attorney was admitted in 1982 and had no prior bar discipline.

The charges involved two matters

Client #1 and Mr. Sirk have been friends for more than fifty years; he previously retained Mr. Sirk to represent him in a variety of legal matters. When Client #1 became the executor of his mother’s estate, he retained Mr. Sirk to represent him. Following the sale of Client #1’s mother’s home, Mr. Sirk opened a trust account at M&T Bank in Keyser, West Virginia, and deposited $30,068 from the sale of the home in August 2013. Client #1 and Mr. Sirk had a verbal agreement at the time the account was opened that Mr. Sirk could borrow from this account as long as he repaid the money. However, they never discussed the specific terms of this agreement, Mr. Sirk did not advise Client #1 to seek legal counsel, nor did Client #1 provide written consent for Mr. Sirk to withdraw funds.

Client #1 visited the bank in January 2014 and inquired about the balance of this trust account. He was shocked to learn that Mr. Sirk had withdrawn approximately $16,800. After leaving the bank, Client #1 went to Mr. Sirk’s law office to confront him. Mr. Sirk stated that he would repay the money, but it would take some time because he was experiencing financial problems and would need to take a second mortgage out on his home. Mr Sirk explained that he was dealing with personal problems, including children battling drug addictions. In July 2014, Mr. Sirk returned $16,000 to Client #1 and approximately a month later, he paid the remaining $800.

At the hearing held before the HPS, Mr. Sirk expressed remorse and apologized to Client #1. Mr. Sirk explained that he was suffering severe financial problems when he was supporting his grown son who is a heroin addict and was trying to secure drug rehabilitation. During this time, he learned that his other son was also a drug addict. Mr. Sirk testified that he was also caring for his elderly parents who were both very ill and dealing with his own personal health problems. Mr. Sirk stated that he turned to gambling and contemplated divorce.

The second matter involved neglect of a bankruptcy client.

On sanction

[The Office of Disciplinary Counsel] initially urged this Court to accept the HPS’s recommendations, including the one-year suspension. Ultimately, however, ODC maintained that Mr. Sirk engaged in additional misconduct after the HPS completed its report and argued that his law license should be suspended for three years in addition to other sanctions. ODC asserted that Mr. Sirk violated duties to his clients, to the public, to the legal system, and to fellow members of the legal profession.

Further, in ODC’s motion to consider an additional aggravating factor and to enhance the sanctions against Mr. Sirk, the evidence shows that Mr. Sirk ignored a directive of this Court when he failed to file a responsive brief. Not only does this behavior evince a disturbing pattern of misconduct, but it also shows a failure to obey an obligation imposed by a tribunal...

The HPS found the remorse shown by Mr. Sirk constituted a mitigating factor as well as the absence of a prior disciplinary record, and his personal/emotional problems. Conversely, several aggravating factors were also present including Mr. Sirk’s dishonest or selfish motive, pattern of misconduct, multiple offenses, and his substantial experience in the practice of law. Courts have applied the aggravating factor of dishonest or selfish motives in cases where the lawyer intends to benefit financially from prohibited transactions. “For example, an attorney who solicits loans from a client because he is unable to find funding elsewhere acts selfishly because the attorney seeks to benefit directly from the client.” In re Disciplinary Proceeding Against Trejo, 185 P.3d 1160, 1174 (Wash. 2008).

There is no “magic formula” for this Court to determine how to weigh the host of mitigating and aggravating circumstances to arrive at an appropriate sanction; each case presents different circumstances that must be weighed against the nature and gravity of the lawyer’s misconduct. Considering all the relevant factors in this case, we conclude that the one-year suspension recommendation submitted by the HPS is too lenient a punishment for serious behavior that has become a pattern of continued wrongdoing.

...we impose a three-year suspension on Mr. Sirk’s law license. Further, we adopt the remaining recommendations made to this Court by the HPS. We believe these sanctions will accomplish the goals of our disciplinary system by punishing Mr. Sirk, restoring public confidence in the ethical standards of our profession and serving as a deterrent to other members of the State Bar.

(Mike Frisch)

February 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 15, 2018

Maryland Court Chides Bar Counsel

The Maryland Court of Appeals imposed a 30-day suspension in a case in which the bar complaint had been filed  by opposing counsel in ongoing litigation.

Court of Appeals suspended from practice of law in Maryland for thirty days lawyer who was a member of, and counsel for, limited liability company, and engaged in actions not authorized by the company. Lawyer filed complaint for partition of property against one of company’s members and assigned client’s property rights to trust, identifying himself as trustee, failed to provide complaint and assignment of contract rights to members who owned majority of company, failed to communicate changes to fee agreement and to have contingent fee agreement signed by members who owned majority of company, and failed to move to dismiss case and promptly surrender papers upon termination of his representation.

The case - another of those "throw every rule violation in the book and see what sticks" approach that I have seen recently from Maryland Bar Counsel - led to an 93-page opinion and some educational language directed to the prosecutor

In closing, we take the opportunity to provide guidance concerning the circumstance of a lawyer filing with Bar Counsel a complaint against another lawyer regarding his or her conduct in ongoing litigation in which the complaining lawyer is opposing counsel. Under such circumstances, we believe that it would be advisable for Bar Counsel to await the conclusion of the underlying litigation before determining whether an attorney discipline proceeding is warranted. Following this procedure would avoid any perception that Bar Counsel and the attorney disciplinary process are being used to further the complaining attorney’s interest in ongoing litigation.

Regardless of whether Bar Counsel awaits the disposition of litigation in which a lawyer allegedly engaged in misconduct, Bar Counsel should conduct an investigation that is independent of the existing litigation. In other words, Bar Counsel should independently determine whether any alleged misconduct occurred, rather than relying exclusively on affidavits, and/or other sources of factual allegations, that are derived from the underlying litigation. In litigation, affidavits, although accurate, may be drafted by lawyers for the signature of the affiants, and the memories of people who are involved in litigation may fade or change over time. With certainty, the best practice would be for Bar Counsel, in determining whether to file a petition for disciplinary or remedial action, to conduct an independent investigation and interview individuals who allegedly have evidence of a lawyer’s misconduct, even if the individuals have been involved in prior litigation and given testimony or signed affidavits.

And as to the lack of a meaningful independent investigation

At oral argument, Assistant Bar Counsel was asked to respond to Donnelly’s allegation that Bar Counsel failed to interview Solomons One’s other members during the investigation of Kneeland’s and Cumberland’s complaints. Assistant Bar Counsel responded that she “had no reason to interview” Solomons One’s members before the discovery phase of this attorney discipline proceeding because Solomons One’s members had filed affidavits in the Bankruptcy Case and the Adversary Case. Assistant Bar Counsel also stated that she had obtained e-mails to and from Donnelly, as well as “representations from” Solomons One’s members’ counsel. Assistant Bar Counsel stated that “it would’ve been a waste of time and effort by the Attorney Grievance Commission to repeat what was already done prior to” the filing of Kneeland’s and Cumberland’s complaints. We disagree. 

Oral argument linked here. 

Bar Counsel sought disbarment.

The court found a new hearing was not called for but noted the accused attorney 's view of the prosecution

Donnelly contends that Bar Counsel failed to conduct an independent investigation of Kneeland’s and Cumberland’s complaints against him. Donnelly points out that, before the filing of the Petition for Disciplinary or Remedial Action, none of Bar Counsel’s investigators interviewed him, his staff, or any other member of Solomons One. Donnelly asserts that Bar Counsel simply relied on information that had been provided by Kneeland and Cumberland, who lacked personal knowledge of the substance of the allegations against him. Donnelly maintains that Bar Counsel essentially “became the litigation arm for” the Greenbergs during the pending lawsuits that involved Solomons One’s members.

As indicated above, the court took that contention seriously.

And

Donnelly’s allegations concerning Bar Counsel’s discovery violations are troubling, but do not persuade us that a new hearing is warranted. Donnelly challenges his inability to obtain papers that Guenther forwarded to Cumberland’s law firm—i.e., documents that pertained to Guenther’s representation of Erickson-File and McNelis. For the most part, Donnelly does not identify the documents that he sought from Cumberland’s law firm, or why the documents would have been helpful to his case. A document is not discoverable if it is subject to the attorney-client privilege or the work product doctrine. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 407, 414, 718 A.2d 1129, 1134, 1138 (1998). Because Donnelly does not explain the nature of the documents that he sought, it is impossible to determine whether the attorney-client privilege and the work product doctrine would apply to these documents.

 The court rejected the hearing judge's finding of dishonesty

Under these circumstances, the evidence does not support the hearing judge’s finding that Donnelly engaged in dishonesty when he executed the Assignment of Contract Rights.

Here is the portion of Bar Counsel's Petition that charges the attorney with dishonesty in response to the complaint

On or about August 7, 2013 and October 25, 2013, Respondent was sent letters notifying him that Bar Counsel had received complaints against him as a result of the conduct described above. In his responses to Bar Counsel’s requests for responses to the complaints, Respondent knowingly made misleading and inconsistent statements.

Not even a hint of which statements were allegedly misleading and inconsistent.

The court also rejected Bar Counsel's arguments on mitigating and aggravating factors.

The court sustained some of the rule violations but rejected proposed Rule 1.8(i), 1.15, 3.3(a)(1), 8.1 and 8.4(c) violations and, as to an alleged violation of Rule 1.13(a)

Based on the plain language of MLRPC 1.13(a), it is not clear that MLRPC 1.13(a) is an MLRPC that may be violated itself, and there is not clear and convincing evidence to support the conclusion that the subsection applies to the conduct alleged by Bar Counsel in this case.

And, significantly, as to Rule 3.1

The hearing judge’s conclusion that Donnelly violated MLRPC 3.1 by filing the complaint in the Partition Case without authorization is not supported by clear and convincing evidence. Although Donnelly violated MLRPC 1.2(a) in doing so, it does not necessarily follow that Donnelly also violated MLRPC 3.1. There is no evidence that, in the complaint, Donnelly was unable to make good faith argument as to the merits of the Partition Case. 

This is not the first time that Maryland Bar Counsel has taken sides in ongoing litigation and alleged a Rule 3.1 violation that went down in flames.

Perhaps they will be reined in going forward. (Mike Frisch)

February 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

UpRight In Name Only

           From the Department of Justice Office of Public Affairs. 

After a four-day trial, a national consumer bankruptcy law firm and its local partner attorneys were sanctioned and enjoined by the U.S. Bankruptcy Court for the Western District of Virginia for causing “unconscionable” harm to their clients. The court found that the law firm and its attorneys, among other things, systematically engaged in the unauthorized practice of law, provided inadequate representation to consumer debtor clients, and promoted and participated in a scheme to convert auto lenders’ collateral and then misrepresented the nature of that scheme, Director Cliff White of the Executive Office for U.S. Trustees announced today.

On Feb. 12, the U.S. Bankruptcy Court for the Western District of Virginia entered orders in two actions brought by the U.S. Trustee. The court sanctioned Law Solutions Chicago, doing business as “UpRight Law” (UpRight), and its principals $250,000; imposed additional sanctions of $50,000 against UpRight’s managing partner Kevin Chern, and $5,000 each against UpRight’s affiliated partner attorneys Darren Delafield and John C. Morgan Jr.; and ordered UpRight to disgorge all fees collected from the consumer debtors in both bankruptcy cases. The court also revoked UpRight’s bankruptcy filing privileges in the Western District of Virginia for not less than five years, and those of its local partners for 12 and 18 months, respectively. The bankruptcy court also sanctioned Sperro LLC (Sperro), an Indiana towing company that did not respond to the U.S. Trustee Program’s complaints, and ordered the turnover of all funds it received in connection with bankruptcy cases in the district.

“Lawyers who inadequately represent consumer debtors harm not only their clients, but also creditors and the integrity of the bankruptcy system,” said Director White. “The damage caused increases exponentially when they operate nationally, like UpRight. This case is demonstrative of the vigorous enforcement actions that the U.S. Trustee Program can and will take to protect all stakeholders in the bankruptcy process.”

According to trial testimony and evidence presented in court, UpRight operates a website offering legal services to consumers in financial distress. Prospective clients contact UpRight via the Internet and are routed to UpRight’s sales agents. These non-attorney “client consultants” were trained to “close” prospective clients by using high-pressure sales tactics and improperly provided legal advice to encourage them to file for bankruptcy relief. In many instances, UpRight arranged payment plans for its prospective clients to pay bankruptcy-related attorney’s fees and costs over time, and refused to refund fees it collected from its clients for whom UpRight did not file a bankruptcy case. The bankruptcy court found that UpRight had “serious oversight issues” in failing to adequately supervise its salespeople to prevent their unauthorized practice of law, and that UpRight demonstrated a “focus on cash flow over professional responsibility.”

Additionally, UpRight worked in concert with Sperro to implement a program through which UpRight’s clients could have their bankruptcy legal fees paid through a “New Car Custody Program.” The bankruptcy court described the New Car Custody Program as “a scam from the start.” UpRight’s salespeople and attorneys counseled bankruptcy clients to “surrender” vehicles fully encumbered by auto lenders’ liens to Sperro without the lienholders’ consent, and enter into an agreement obligating the clients to pay Sperro the costs of towing the vehicle, transporting it across state lines – often over a long distance – and storing it. UpRight assured its debtor clients that they would not have to pay any fees to Sperro, and in some instances advised its clients to hide their vehicles from lenders looking to repossess them until Sperro could pick up the vehicles.

After Sperro took a vehicle, it asserted a statutory “warehouseman’s lien,” claiming the right to keep the vehicle until the sham towing, transportation, and storage fees were paid. Then it offered the vehicle for sale at auction, despite the auto lender’s continuing security interest. Out of the sale proceeds, Sperro paid the debtor client’s bankruptcy fees directly to UpRight. Sperro kept the rest of the sale proceeds. In some cases, UpRight prepared bankruptcy court filings omitting the debtor clients’ transactions with Sperro.

The “New Car Custody Program” harmed auto lenders by converting collateral in which they had valid security interests. And the bankruptcy court found that UpRight “preyed upon some of the most vulnerable in our society” – its debtor clients – “while they were under great stress” by providing “unconscionable” advice to participate in the Sperro scheme, exposing them to undue risk by causing them to possibly violate the terms of their contracts with their auto lenders as well as state laws.

The cases discussed above are captioned Robbins v. Delafield et al., Adv. No. 16-07024 (Bankr. W.D. Va. Feb. 12, 2018), and Robbins v. Morgan et al., Adv. No. 16-05014 (Bankr. W.D. Va. Feb. 12, 2018).

Director White commended the trial team of Assistant U.S. Trustee Margaret Garber and Trial Attorneys Joel Charboneau, Nick Foster and Joan Swyers for their handling of these matters.

The U.S. Trustee Program is the component of the Justice Department that protects the integrity of the bankruptcy system by overseeing case administration and litigating to enforce the bankruptcy laws. The Program has 21 regions and 92 field office locations. Learn more information on the Program at: https://www.justice.gov/ust.

 

The North Carolina State Bar recently filed a complaint alleging misconduct by an Upright-associated attorney. (Mike Frisch)

February 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Recusal Necessary

The Louisiana Supreme Court reversed a decision of a District Attorney to voluntarily  recuse

In 2016, attorney Craig Colwart, a public defender in the 16th JDC, was hired as an assistant district attorney in the same district. His hiring precipitated recusal by the District Attorney and his entire office from 86 prosecutions in which Colwart was perceived to have a conflict. Among those recusals was from participating in a hearing to determine parole eligibility for Danny Battaglia. Codefendants Battaglia and Robert Thibodeaux had pleaded guilty to a murder they committed together as juveniles in 1981. Battaglia filed a motion to correct an illegal sentence seeking parole eligibility pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana, 577 U.S. —, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).

Colwart represented Thibodeaux in an earlier post-conviction proceeding and never represented Battaglia. Nonetheless, the District Attorney voluntarily moved to recuse himself and his office from further proceedings in Battaglia’s Miller hearing because Colwart “may have received information from [Thibodeaux] concerning [Battaglia’s] involvement in the murder of the victim in this case.” After the district court granted the motion to recuse, the Attorney General filed a motion to vacate that ruling. In response to this motion, the District Attorney reiterated, “a conflict exists in this case since [Colwart] probably learned the details of [Battaglia’s] participation in the murder from his discussion of the case with [Thibodeaux].”

The Attorney General appealed and the court held

After briefing and oral argument, it is apparent that the Attorney General and the District Attorney now agree on most of the issues. For example, the parties agree that, while Colwart should be recused from participating in Battaglia’s Miller hearing, any conflict Colwart may have is not imputed to the District Attorney or his other assistants. Nonetheless, the District Attorney maintains that the district court did not err in refusing to vacate the granting of the motion to recuse because participation in the Miller hearing by one of his other assistants would create an appearance of partiality that could erode public confidence in the fairness of the proceedings. We disagree.

... To resolve the present case, we find it unnecessary to examine further any interplay between these two articles or to consider the extent of the District Attorney’s discretion to recuse himself voluntarily. There is no support for the district court’s determination that public confidence in the proceedings is risked under the circumstances here in which a  former public defender, who had no involvement with Battaglia and whose conflict is speculative, is employed by the District Attorney but otherwise uninvolved in Battaglia’s Miller hearing. Therefore, we vacate the district court’s ruling granting the District Attorney’s motion to recuse and remand for further proceedings.

(Mike Frisch)

February 15, 2018 | Permalink | Comments (0)

The Dozen

The Ohio Board of Professional Conduct has links to a dozen recently-filed bar discipline matters

Staff Report | February 14, 2018

The Ohio Board of Professional Conduct today announced it has filed 12 disciplinary case reports with the Supreme Court of Ohio. Ten reports recommend discipline for attorneys charged with professional misconduct. One report recommends the reinstatement of a suspended lawyer to the practice of law, and one report recommends imposition of an impairment suspension.

The parties in each case will have an opportunity to file objections to the Board’s report and recommendation with the Supreme Court. If objections are filed, the case will be scheduled for oral argument. No oral argument is scheduled in reinstatement proceedings, and objections are not permitted in a case submitted upon consideration of a consent to discipline agreement.

The Board recently released its Annual Report. (Mike Frisch)

February 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)