Friday, August 31, 2018
A case summary of the New Jersey Appellate Division
The court holds that if an attorney charges clients in LAD and other fee-shifting cases a fee based in whole or in part on an hourly rate, the attorney is ethically obligated to: disclose that the hourly rate-based fee could approach or exceed the client's recovery; provide examples of hourly rate-based fees in similar types of cases; and inform the client that other competent counsel represent clients in similar cases solely on a contingent fee basis.
Similarly, counsel who require clients to advance costs are ethically obligated to provide information about litigation costs such as deposition and expert fees, and provide examples of what costs have totaled in similar types of cases. An attorney is also ethically obligated to inform the client that other competent counsel who represent clients in similar cases advance litigation costs.
Details from the decision
Defendant, Brian M. Cige, an attorney, appeals from two Law Division orders. The orders declared unenforceable and void his retainer agreement (the "Agreement") with plaintiff, Lisa Balducci, a client he represented in a claim seeking damages under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. The orders also dismissed his counterclaim for fees and costs. The trial court permitted defendant to recover for his services based on the doctrine of quantum meruit.
The trial court found defendant violated his professional responsibility to explain the Agreement's material terms to plaintiff so that she could make an informed decision about retaining him. The trial court's factual and credibility findings have ample support on the plenary hearing record. Defendant did not explain the effect his "greater three fee agreement" would have on any recovery, inform plaintiff of alternatives to such an agreement, or give plaintiff any indication of the tens of thousands of dollars in expenses she would have to pay as the case progressed. Hence we affirm.
The court quoted the lengthy agreement in full
The parties disputed the circumstances under which plaintiff signed the Agreement. According to plaintiff, defendant did not explain the terms of the Agreement. Rather, he told her, "[t]his is a standard agreement for a case like [this]." Plaintiff, who had worked for attorneys and who now operated her own business, "quickly glanced at it and . . . had a concern." She said to defendant, "Brian, this says that I am going to be responsible at the end if we lose the case." He said she would not. He told her the language concerning his hourly rate was standard for a LAD case like this. He said: "We are friends. I was at your wedding. I would never do this to you. Ignore that. Don't worry about it. It is standard information." Plaintiff signed it, because she trusted him, he was a friend, and she believed him.
The attorney recalled the circumstances quite differently while the client's child corroborated her testimony.
After the client discharged him, he asserted a lien that impaired a consent resolution of the underlying matter.
There is no dearth of competent, civic-minded attorneys willing to litigate LAD and other statutory fee-shifting cases under fee agreements that do not include an hourly component. The number of such cases litigated in our trial courts and reported in the case law evidence this, as does — at least as to numbers — advertising on television and radio, in telephone books and newspapers, and on billboards and other media. Indeed, the firm currently representing plaintiff in the LAD action has a fee agreement without an hourly component.
Ethically then, must an attorney whose fee for undertaking a LAD case that includes an hourly rate component explain both the consequences on a recovery and the availability of other competent counsel likely willing to undertake the same representation based on a fee without an hourly component? We conclude the answer is yes.
...We do not find the Agreement in this case unenforceable because of the problematic nature of the three fee provisions. We do find the Agreement unenforceable because, as the trial court found, defendant did not adequately inform plaintiff about the ramifications.
In summary, we conclude that if an attorney's fee in a LAD or statutory fee-shifting case is based in whole or in part on an hourly rate, then the attorney is ethically obligated to inform the client of the ramifications. The attorney must inform the client that if the case becomes complex and protracted, the hourly rate-based fee the client is responsible to pay can approach or even exceed his or her recovery. Further, the attorney must inform the client other competent counsel represent clients in similar cases solely on a contingent fee basis, without an hourly component, and might also advance costs. The attorney should provide examples of how much hourly fees have totaled in similar cases, or if the attorney has no such experience with similar cases — in which case consideration should be given to referring the case to a certified civil trial attorney — how much hourly fees have totaled in the same types of cases found in case law.
Similarly, if the client is required to advance costs, the attorney must provide the client with approximate costs resulting from things such as depositions and expert fees, and must give examples of such costs in similar cases. The attorney must disclose other competent counsel who represent clients in similar cases advance litigation costs...
The fee agreement in this case is ambiguous and to some extent illusory. Defendant failed to discharge his ethical obligation to explain the terms of the agreement, their implications, and alternatives to the agreement, so the client could make an informed decision regarding his representation. The trial court did not err by so finding.
The indiana Supreme Court has sanctioned a former prosecutor
We find that Respondent, Trista Hudson, committed attorney misconduct by failing to disclose exculpatory evidence and by prosecuting a charge she knew was not supported by probable cause. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.
At relevant times, Respondent served as a deputy prosecuting attorney in Porter County. In 2013, “Defendant” was charged with five counts of child molesting, the first four of which were tried together and are at issue here. Counts I and II alleged criminal deviate conduct involving Defendant’s stepchildren K.C. and E.C., respectively. Counts III and IV alleged fondling with respect to K.C. and E.C. The four counts were based upon statements made by the children to various police officials, and there was no physical or medical evidence of child molesting.
Five days before trial, Respondent interviewed E.C. in preparation for trial with a detective present. During this interview E.C. recanted the facts underlying Count II, stating he had lied at the request of his and K.C.’s biological father. Respondent believed E.C.’s recantation was truthful.
However, Respondent did not disclose E.C.’s recantation to defense counsel, nor did she withdraw Count II at any point prior to or during trial. During her direct examination of E.C. at trial, Respondent avoided asking any questions about the allegations underlying Count II. E.C.’s recantation, and the fact his father had coached him to lie, was revealed at trial during defense counsel’s questioning of E.C. and other witnesses. Respondent did not immediately disclose to the court that she had known about E.C.’s recantation for nearly one week. After the prosecution concluded its case-in-chief, the trial court addressed Respondent’s failure to disclose the recantation and determined that the appropriate remedy was to enter judgment of acquittal for Defendant as to all four counts.
Quite thankfully, we have not previously had occasion to consider the question of an appropriate sanction for a Rule 3.8(a) or Rule 3.8(d) violation. There can be little doubt that prosecuting a charge known to lack probable cause, and failing to disclose known information or evidence tending to negate a defendant’s guilt, are among the most serious ethical violations a prosecutor could commit. “The State is never more awesomely powerful, nor is the individual more vulnerable, than in a criminal prosecution[.]” State v. Taylor, 49 N.E.3d 1019, 1023 (Ind. 2016). These rules of professional conduct are central to the prosecutorial function and essential to ensuring the integrity and fairness of our criminal justice system.
The respondent asked for a public reprimand; the Disciplinary Commission proposed a four-year suspension.
The court split the baby
After careful consideration of this matter, we conclude that Respondent should be suspended for a period of at least eighteen months and required to go through the reinstatement process before resuming practice.
The Pennsylvania Supreme Court imposed a one-year suspension retroactive to the attorney's interim suspension and probation for four years as a result of a criminal conviction.
After a break up with his former girlfriend, the attorney broke into her garage and installed a GPS tracking device and a USB audio recording device in her automobile with the intent to discover who she was dating.
He admitted the conduct in a criminal case and was convicted of criminal trespass and interception of communications.
He notified the Bar of the conviction and was suspended in January 2018.
PennLive reported on the criminal case.
Casale, who is married, admitted he broke into the woman's South Williamsport garage and installed a GPS tracking device and audio recorder in her car. She found the device in March 2016.
The charges stated the two had an on-and-off four-year relationship that she broke off in September 2015.
An arrest affidavit stated he had confessed to South Williamsport police telling them he placed the devices in November or December 2015 so he could find out who she was seeing.
The woman, in a statement read by Deputy Attorney General William Abraham, she said she trusted Casale and she has suffered emotionally.
It was the victim who recommended a large fine go to a women's center, said Butts who characterized the crime as a type of domestic violence.
During the proceeding, Casale turned to woman and apologized, saying: "I am so sorry for violating your privacy. I know sorry doesn't do it."
He also apologized to his wife.
Disbarment has been ordered by the New York Appellate Division for the Second Judicial Department of an attorney who had been reinstated after an earlier three-year suspension.
His prior discipline history
The respondent was previously suspended in 1993 for three years by the Appellate Division, First Department, based on a pervasive pattern of commingling of escrow funds and conversion of client funds (see Matter of Pelsinger, 190 AD2d 158). In suspending the respondent, the First Department noted that he failed to cooperate with the investigation from its inception and failed to “offer a credible explanation for his conduct” (id. at 161). He was reinstated by the First Department on February 2, 1999.
Following his reinstatement in 1999, the respondent was the subject of multiple grievance complaints filed between 2006 and 2013, which resulted in the issuance of three Letters of Caution and four Admonitions.
The respondent’s extensive disciplinary history,including a three-year suspension for similar misconduct, is a significant aggravating factor. Moreover, while the respondent indicated that he accepted responsibility, his expressions of remorse were perfunctory and less than genuine. When asked at the hearing for an explanation for the numerous checks he drew against his escrow account, made payable to himself, the respondent repeatedly could provide no explanation. The respondent engaged in conduct that was intentional and deceptive. Having willfully allowed a default judgment to be entered in the DiChiara action, the respondent moved to vacate the default judgment by submitting knowingly false statements to the District Court. In another instance, the respondent engaged in a conscious effort to ensure that a closing took place by a certain date. Knowing that he lacked sufficient funds to cover certain checks, the respondent instructed the payees not to cash the checks until sufficient funds were obtained. He once again engaged in a persistent pattern of escrow account violations. Rather than the result of inattention, as the respondent claims, the aforementioned conduct was knowing and purposeful. Notwithstanding the mitigating evidence presented, we conclude that under the totality of the circumstances, a disbarment is warranted. We further conclude that the respondent has not demonstrated that he should be diverted to a monitoring program at this stage of the proceeding.
In an unrelated matter, the court found extraordinary mitigation and imposed a public censure
In seeking leniency, the respondent asks that the Court take into consideration the following mitigating factors: he accepts full responsibility for his actions and is genuinely remorseful; during the period 2015 to 2016, he suffered from significant health issues, including a life-threatening infection that required surgery; his situation was exacerbated by other personal problems (an emergency office relocation and the need to care for his elderly mother, who suffered injuries as a result of a fall); he has undertaken remedial steps to prevent the recurrence of neglect by hiring additional staff, reducing his caseload, and investing in office equipment to better maintain communications with his clients; he possesses a stellar reputation in the Bar for his skills as a trial lawyer; he has for many years contributed significantly to the Bar by giving CLE lectures on a regular basis and sharing information in other types of forums, making him an asset to the legal community; and he has a reputation as a skilled and zealous advocate, to whom others refer difficult cases.
The respondent’s disciplinary history is an aggravating factor. We note, however, that the vast majority of the instances of the respondent’s past neglect consisted of a failure to keep his clients apprised of the status of their cases. Under the totality of the circumstances, including the extraordinary mitigation in this case, we find that a public censure is warranted.
Thursday, August 30, 2018
The District of Columbia Court of Appeals imposed a sixty-day suspension of an attorney, rejecting his contention that he had no attorney-client relationship with a putative client and thus had not engaged in a multiple client conflict of interest.
Notably a Virginia three-judge panel had reviewed the cold record of the D.C. proceeding and declared ("barely so") that no misconduct had occurred.
The attorney then sought to use collateral estoppel to terminate the D.C. proceeding but failed to persuade
Missing here is privity between Disciplinary Counsel and its Virginia counterpart. Privies are sometimes described as “those who control an action although not parties to it; those whose interests are represented by a party to an action; and successors in interest.” Carr v. Rose, 701 A.2d 1065, 1075 (D.C. 1997) (quoting Smith v. Jenkins, 562 A.2d 610, 615 (D.C. 1989)). Mr. Robbins argues that Disciplinary Counsel was effectively in privity with Virginia’s Bar Counsel because the two are members of the National Organization of Bar Counsel and share a common goal of disciplining attorneys who violate rules central to the conduct of the profession. But as highlighted by Disciplinary Counsel, there is no evidence that Disciplinary Counsel participated in the Virginia proceedings or coordinated with Virginia’s Bar Counsel to present consistent arguments. This is especially significant where no live witnesses testified in the Virginia proceedings; the Virginia court merely considered the cold record of the proceedings before the Hearing Committee in D.C.
...In reaching its final decision, the Virginia court concluded simply that local Bar Counsel had not proven by clear and convincing evidence that an attorney-client relationship existed, but offered no analysis to support its conclusion. Rather, the court stated only that it found “that the evidence falls short, but barely so.”
For these reasons—Disciplinary Counsel’s lack of participation in the Virginia proceeding, the Virginia Court’s reliance on an inferior record, and the Hearing Committee’s full hearing on the violations before Virginia’s decision—the Virginia decision is not entitled to preclusive effect.
A finding of an attorney-client relationship in the case was a necessary predicate to the conflict of interest violation. (Mike Frisch)
A case that started with a felony conviction has resulted in probation with no period of suspension in a decision of the District of Columbia Court of Appeals.
Thus a big firm lawyer avoids any meaningful sanction for nearly killing an innocent victim.
Respondent, Wayne R. Rohde, was convicted over a decade ago in Virginia of "leaving the scene of an accident," a felony. The Board on Professional Responsibility ("the Board") has determined that Mr. Rohde committed both a "serious crime," under D.C. Bar R. XI section 10 (b) and violated Rule 8.4 (b) of the Rules of Professional Conduct by committing "a criminal act that reflects adversely on [his] . . . fitness as a lawyer." As a sanction, the Board recommends a two-year suspension from the practice of law, with a fitness requirement, stayed in favor of three years of probation with conditions. Mr. Rohde has not contested either the Board’s assessment of his misconduct or its recommended sanction. Disciplinary Counsel, however, argues that the Board’s recommended sanction is inadequate. Specifically, Disciplinary Counsel argues that because Mr. Rohde’s crime involved moral turpitude, either per se or on the facts, Mr. Rohde must be disbarred per D.C. Code § 11-2503 (a) (2012 Repl.). Alternatively, Disciplinary Counsel argues that this court should disregard Mr. Rohde’s Kersey mitigation evidence (which it argues should not be considered in a disciplinary case based on a felony conviction) and exercise its discretion to disbar Mr. Rohde.
Editors note: It took over a decade because of gross systemic failure - the hearing committee took seven years to issue a report.
This court employs three distinct analyses to evaluate a bar discipline case based on a criminal conviction. We begin with an element-focused inquiry to assess if the crime is one of moral turpitude per se. If it is not, we then refocus the inquiry to assess the facts and circumstances that fairly bear on the question of moral turpitude in the actual commission of the crime, such as motive or mental condition. If the crime is not one of moral turpitude, either per se or on the facts, we then conduct a comprehensive analysis of the totality of the circumstances, including any aggravating and mitigating factors, and exercise our discretion to impose a just sanction.
Applying this rubric to Mr. Rohde’s case, we conclude, based on an examination of the crime’s elements, that his conviction under Virginia law for leaving the scene of an accident without complying with reporting requirements or rendering aid to the person whose car he hit does not meet the stringent test for moral turpitude per se. We further conclude that Mr. Rohde’s offense was not one of moral turpitude on the facts, relying on the undisputed evidence that Mr. Rohde was in an alcoholic blackout during its commission and the credited expert testimony that he was unable to exercise appropriate judgment while in that condition. Lastly, we exercise our discretion as to the appropriate sanction. Considering the totality of the circumstances, we acknowledge the gravity of Mr. Rohde’s conduct as well as his previous pattern of drinking and driving, but we also look to his powerful Kersey mitigation evidence (which we hold is properly considered in cases involving a felony conviction but not reflecting moral turpitude). Specifically, Mr. Rohde demonstrated that at the time he committed this crime he was suffering from alcoholism, that he subsequently sought treatment, and that he has now been in recovery for many years. In light of Mr. Rohde’s rehabilitation and the distinct function of the disciplinary system not to punish but "to maintain the integrity of the [legal] profession . . . to protect the public and the courts, [and] to deter other attorneys from engaging in similar misconduct," In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc), we see no utility in disbarring or actively suspending Mr.Rodhe and thus adopt the Board’s recommended sanction.
There might be some utility in cautioning the Bar about the commission of such crimes and instructing that the consequences will be more than a total free pass.
My case summary
Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.
After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.
His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.
He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court's usual (indeed, nearly invariable) practice for felony convictions.
The hearing was competed on January 15, 2008.
The report was filed last Friday - seven years and a day after.
And it stinks.
According to the committee, the offense is not one of moral turpitude and was caused by his alcoholism. The committee bought his story that he was essentially morally blameless due to an "alcoholic blackout."
Notably, he denied an ongoing alcohol problem when it served his purposes in the criminal case. In the disciplinary case, the cause was demon rum. That little inconsistency was no problem for the hearing committee.
Nor were his four prior alcohol-related traffic accidents an issue.
My read on the Board on Professional Responsibility report
So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.
No real disciplinary consequences because he'a an alcoholic?
As noted, and in sharp contrast to the attorney in the Kersey case (which I prosecuted), this attorney was practicing effectively at a major firm at the time of the near-fatal collision. The evidence in Kersey showed that his alcohol addiction had pervasively impaired every aspect of his professional and personal life.
Further, Kersey did not involve a felony or any other crime.
The court apparently - and dangerously - holds that Kersey mitigation is now available to convicted felons. Maybe so. But it cannot dilute or negate any element of the offense. See Rule XI, section 10. That pretty much destroys the "blackout" story.
A prior decision (linked above) correctly held
While Hopmayer maintains that his alcoholism negates the element of moral turpitude, the Board takes the position that Hopmayer's [theft] conviction is conclusive evidence of his mental intent, that he should not be granted a hearing to dispute or explain the factual circumstances underlying the offense, and that this court should disbar him. The issue in this case is one of first impression in the District of Columbia. We agree substantially with the Board, adopt its recommendation, and order Mr. Hopmayer disbarred.
And the floodgates are now open. Mitigation that would be laughed out of a criminal court (try telling a court you are not guilty of fleeing an accident scene because you were in an alcoholic blackout and see how far you get) can now save your D.C. law license without a hiccup.
This is one of the most shameful days in the history of the D. C. Bar.
It has been over 20 years since the court considered a bar discipline case en banc. The last one - In re Elliott Abrams - was my case.
This case deserves the full court's attention. (Mike Frisch)
Wednesday, August 29, 2018
The Minnesota Supreme Court imposed a shorter suspension as reciprocal discipline based on a Colorado sanction
Respondent was suspended in Colorado after she submitted false billing entries for the December 2016 billing cycle. Respondent initially lied to attorneys at her firm when they confronted her about the falsified billing entries but confessed later that day. Respondent submitted the false billing entries in order to meet her law firm's yearly billable-hours expectation for associates. No client paid an inflated billing entry. Respondent's misconduct violated Colo. R. Prof. Conduct4.l(a) and 8.4(c). The Presiding Disciplinary Judge found the existence of one aggravating factor and several mitigating factors. When respondent, who is a resident of Colorado, was reinstated to practice law in Colorado in May 2018, she was not placed on probation.
The parties contend that reciprocal discipline is not appropriate in this case because the imposition of the same discipline would be substantially different than the discipline warranted in Minnesota.
The court has independently reviewed the file and approves the jointly recommended disposition. Although we typically impose identical discipline in a reciprocal disciplinary proceeding, identical discipline is not required if it is "substantially different from [the] discipline warranted in Minnesota." Rule 12(d), RLPR. We have imposed less-severe discipline in similar cases involving false billing entries when the misconduct occurred during a short period of time and no client paid an inflated time entry.
...We conclude that a 9-month suspension is substantially different from the discipline warranted in Minnesota and agree that a 6- month suspension is appropriate.
The Illinois Administrator has filed a complaint alleging misconduct by an attorney in his capacity as President of the Puerto Rican Bar Association ("PRBA")
On May 3, 2014, Eulalia De La Rosa ("De La Rosa"), who was then the President of the PRBA, and Claudia Badillo ("Badillo"), who was then the Treasurer of the PRBA, opened the PRBA Chase account. At some time thereafter, De La Rosa obtained a debit card ending in 9839 for the PRBA Chase account (the "9839 debit card").
At some time between January 29, 2016 and November 1, 2016, Respondent was sworn in as President of the PRBA.
Pursuant to Article VIII, Section C of the PRBA bylaws...as President of the PRBA, Respondent was also a director of the PRBA. Accordingly, during the time that Respondent was President of the PRBA, Respondent owed the fiduciary duties listed in Article V, Section E of the PRBA bylaws, referenced in paragraph four, above, to the PRBA. Respondent was also bound by Addendum A...as well as all other duties of the President and directors set forth in the PRBA bylaws.
At some time between November 1, 2016 and November 28, 2016, De La Rosa gave Respondent the 9839 debit card because Respondent had taken over the role of President.
Between November 28, 2016 and December 5, 2016, Respondent was in sole possession and control of the 9839 debit card.
On December 6, 2016, Respondent was added as a signatory on the PRBA Chase account. That same day, De La Rosa and Badillo were removed as signatories because their terms as President and Treasurer, respectively, were over. At some time on or around December 6, 2016, Respondent received a debit card ending in 4853 for the PRBA Chase account (the "4853 debit card").
Between December 6, 2016 and July 24, 2017, Respondent was in sole possession and control of the 4853 debit card, and he was the sole signatory on the PRBA Chase account.
Between November 28, 2016 and July 24, 2017, Respondent used the 9839 debit card and the 4853 debit card to make 77 ATM withdrawals, totaling $10,574.90, for his own personal or business use. Of those 77 ATM withdrawals, Respondent made five withdrawals at the Mandalay Bay hotel in Las Vegas, Nevada, in the total amount of $894.95.
Between November 28, 2016 and July 24, 2017, Respondent used the 4853 debit card to make purchases for his own personal or business use, totaling $721.50. Respondent made two of those purchases at the Mandalay Bay hotel in Las Vegas, Nevada, in the total amount of $525.90.
Between November 28, 2016 and July 24, 2017, Respondent made 15 electronic transfers from the PRBA Chase account to his personal bank account at Chase, in the total amount of $5,061.15. Those 15 electronic transfers were for Respondent’s own personal or business use.
He made some payments back into he account but
On July 25, 2017, the board members of the PRBA held an emergency board meeting, at which Respondent was in attendance, to discuss Respondent’s use of funds in the PRBA Chase account. During that meeting, Respondent resigned from his position as President of the PRBA, effective immediately.
As of July 25, 2017, Respondent still owed the PRBA $4,930.41.
The full Maine Supreme Judicial Court has vacated a six-month suspension imposed by a single justice and remanded for a more severe sanction determination.
The order was sought by the Board of Bar Overseers.
The attorney had been reinstated after a money laundering conspiracy conviction
In June 2014, as a result of his guilty plea to, and resulting conviction of, federal charges of conspiracy to launder money and aiding and abetting, 18 U.S.C.S. §§ 1956(a)(1), (h) 1957(2) (LEXIS through Pub. L. No. 115-231), Prolman was suspended indefinitely from the practice of law in Maine. Following his guilty plea, Prolman received a sentence of twenty-four months’ imprisonment and twenty-four months’ supervised release. In November 2015, the Board filed a motion seeking further disciplinary action against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. After a hearing on those motions in February 2016, a single justice of the Supreme Judicial Court (Alexander, J.) issued a decision concluding that Prolman had violated M.R. Prof. Conduct 8.4(a)-(d) but nonetheless ordering the termination of Prolman’s suspension as of July 1, 2016, thereby reinstating him to the practice of law. Pursuant to that order, Prolman’s reinstatement and continued active practice was conditioned upon his compliance with the terms and conditions of his federal supervised release.
And was then the subject of a complaint from a vulnerable client
When he arranged for his client to live in his apartment, Prolman was aware of his client’s social history, history of abuse, submissiveness to men, and vulnerability to abusive physical and sexual relationships. Despite this knowledge, on more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman’s sexual acts as “gross.” Although she did not consent, she also did not communicate her objection to Prolman’s sexual acts, simply submitting to what Prolman demanded as she had done in past relationships with men who had taken advantage of her vulnerability...
...During the time his client was residing at the apartment, Prolman consumed and provided his client with wine. Prolman’s conditions of supervised release prohibited his use or possession of alcoholic beverages, and a violation of those conditions also would be a violation of the March 17, 2016, disciplinary order requiring compliance with the terms of his supervised release.
The court here
We all agree that the sanctions imposed were simply insufficient and represent an abuse of discretion. Three of us would conclude that the ABA Sanction Standards have been engrafted onto the Maine Rules of Professional Conduct, and that the court erred as a matter of law and therefore abused his discretion in failing to apply those Standards. Three of us would look to those Standards for guidance but would not determine that they have been wholly engrafted into the Maine Rules.
Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to apply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney.
Three justices concurred
We would... hold that Maine Bar Rule 21(c) incorporates the ABA Sanction Standards, and we would vacate the judgment and remand this matter to the court to impose a sanction using the methodology and framework set out in those ABA Sanction Standards.
Disbarment of an attorney has been ordered by the Maryland Court of Appeals
This attorney disciplinary matter concerns a Maryland-barred attorney who acted as a facilitator in a complex money laundering scheme that induced investors to advance funds in exchange for a false promise of a full return of the advanced fees and a future construction loan under the guise of an escrow agreement. Specifically, Respondent Jeneba Jalloh Ghatt ("Respondent" or "Ms. Ghatt") agreed that her law firm would serve as escrow agent, which in effect converted her attorney trust account into a repository for the advanced fee scam. Although Respondent may not have initially been a knowing participant involved in the complex fraudulent scheme, she ultimately became complicit in the scam when she failed to verify and safeguard the advanced funds and then misrepresented her disbursements of those funds. For these reasons, we disbar Ms. Ghatt.
In this case, we have concluded that Ms. Ghatt engaged in intentional dishonest conduct and that she misused trust money. Ms. Ghatt specifically represented to [complainant] Mr. Yates, by way of the Confirmation of Deposit, that she had personally verified and confirmed the existence of a sub-account holding $500,000 in the Ghatt Law Group attorney trust account. However, Ms. Ghatt’s testimony revealed that she merely relied on the same Confirmation of Deposit that Strategic Capital had sent her rather than verifying the sub-account by investigating with Citibank and her attorney trust account. In addition, Ms. Ghatt sent a screenshot of her Citibank attorney trust account to both Mr. Seiler, acting as Mr. Yates’s attorney, and Bar Counsel, suggesting that she was holding the $500,000 owed to Mr. Yates despite full knowledge that her brother had linked his own account to Citibank and that he had sent her the screenshots. These are the two most troubling instances of dishonest conduct, which constituted violations of MLRPC 3.3, 8.1, and 8.4.
The link to oral argument may be found here. (Mike Frisch)
The Law Society of Upper Canada Hearing Division Tribunal has denied a motion to dismiss or delay proceedings pending a related civil action
The Law Society alleges that lawyer Maria Marusic misappropriated or assisted in misappropriating over $1 million when she co-signed cheques transferring a client’s funds from trust to her firm’s general account. It also alleges that in representing a second client, she failed to prevent the unauthorized practice of law by her former partner, Claudio Martini, while he was suspended, and associated with or used his services. Finally, it alleges that she acted without integrity in the manner in which she handled that client’s settlement.
Ms. Marusic argues that the Law Society’s application should be dismissed without a hearing. She says that the Law Society has created an abuse of process by requiring her to respond to allegations about her association with Mr. Martini while at the same time pursuing this discipline proceeding. Alternatively, she asks that the hearing be delayed until a civil action connected with the misappropriation allegations is decided.
The motion is dismissed. The allegations to which the Law Society is currently seeking a response form part of a new investigation into Ms. Marusic’s associations with Mr. Martini on matters not at issue in this application. Moreover, even if the new investigation did involve the same allegations, the Law Society is entitled to continue to investigate, including exercising its powers to require licensees to respond. We also find that it would be inappropriate for us to exercise our discretion to delay the hearing of the serious allegations against Ms. Marusic. The civil case involves different issues and is at a relatively early stage. The need for this matter to proceed expeditiously has been emphasized in earlier Tribunal proceedings and that approach should continue to be followed.
Tuesday, August 28, 2018
The most recent opinion from the Florida Judicial Ethics Advisory Committee
May a judicial candidate use or re-publish a news media report on the opponent's admittedly inappropriate relationship with a legal client, which occurred during the representation?
ANSWER: Generally, it would not be a per se violation of the Code of Judicial Conduct to use or re-publish negative or critical news reports or articles on the opponent, so long as the mandates of Canon 7 are followed.
The inquirer is a judicial candidate. The news media has published reports that an opponent had, several years ago, been involved in an inappropriate and unprofessional relationship with one of the opponent's then-current legal clients. The opponent has reportedly confirmed that the inappropriate relationship existed. The inquirer wishes to use or re-publish these reports during the campaign and asks if this is permissible.
The Judicial Ethics Advisory Committee has previously dealt with the issue presented herein: may a candidate use or reproduce negative or critical reports on opponents in their advertisements or campaign communications. We have consistently opined that we will not vet candidates' advertisements. Among other reasons, we have ascribed to that position because we have no way of discerning or verifying whether the facts alleged are accurate. Our opinions, therefore, have generally set out the guidelines which Canon 7 mandates must be followed, in order for the candidates' communications and ads to not violate the Code. In Fla. JEAC Op. 98-27 we opined:
"It would not be a violation per se of the Code for a judicial candidate to reproduce negative articles about the candidate's opponents, but the candidate must follow the mandates of Canon 7. This Committee's Opinions in 94-16 and 94-35 are instructive. In Opinion 94-16, the Committee stated: 'The code does not directly address what is ethically acceptable when a candidate wishes to criticize a political opponent. Our Committee finds that in general it would be proper to criticize a political opponent when the criticism is truthful, pertinent and material to judicial office ...’”
"a candidate may criticize an opponent if it is fair and truthful; is pertinent and material to the judicial office; is based on factual, not personal, grounds; is not about a pending case; and does not bring the candidate's impartiality or that of the judiciary into question...Canon 7A(3)(d)(iii) [now Canon 7A(3)(e)(ii)]…”
Therefore, the inquirer is cautioned to follow the mandates of Canon 7 in re-publishing and using the media reports.
The Maryland Court of Appeals has disbarred an attorney
The Court of Appeals disbarred an attorney who failed to submit timely, completed, and accurate inventory of estate assets and administrative account of the estate, failed to submit a petition for personal representative’s commissions and attorney’s fees before disbursing fees to himself and the personal representative, and, after the issuance of Orphans’ Court orders to do so, failed to return estate funds. Additionally, the attorney filed a lawsuit against the previous personal representative of the estate, which the circuit court and the Court of Special Appeals ruled was without substantial justification. Lastly, the attorney failed to properly manage his trust accounts. There was clear and convincing evidence of commingling, use of the accounts for personal matters, and failure to keep complete records.
A recent order of immediate suspension is reported on the web page of the Maine Board of Bar Overseers
By filing dated August 10, 2018, the Board of Overseers of the Bar (the Board) petitioned this Court for an immediate Order of Interim Suspension of Jonathan C. Hull from the practice of law in the State of Maine. Incorporated with the Board’s Petition was an Affidavit of Bar Counsel with related exhibits.
Attorney Hull filed a response, through counsel, on August 15, 2018. Attorney Hull did not submit any rebuttal evidence but has argued that the Board’s position is not supported. The court held a conference of all counsel on August 21, 2018. Following the conference, the Board filed an additional affidavit, containing essentially the same information set forth in the original filing.
Upon consideration of the materials submitted, including Attorney Hull’s objections, the Court concludes that the submitted evidence supports a finding that Attorney Hull has committed multiple violations of the Maine Rules of Professional Conduct. Notwithstanding Attorney Hull’s objection, the Court is satisfied that the quality of the evidence is a sufficient basis upon which to issue this order. Specifically, the Court finds that the Board’s evidence demonstrates Attorney Hull’s violations of at least M. R. Prof. Conduct 1.7(a)(2), 4.l(a); and 8.4(a)(b)(c)(d).
Under the facts presented by the Board, this Court concludes that Attorney Hull’s misconduct serves as an imminent threat to clients, the public and to the administration of justice.
Effective 5 p.m. on August 24, 2018, this Court ORDERS that Attorney Jonathan C. Hull shall now be suspended from the practice of law in Maine, until further Order of this Court.
The Court further ORDERS that Attorney Hull shall vacate his law office(s) (including any home office), cease practicing law, and cease operations of any and all of his websites, Facebook/ social media account(s) and any other form of advertising of his legal services during the period of his suspension.
Additionally, Attorney Hull shall immediately surrender possession and control of all client files, the keys to his law offices, his law office operating and client trust bank accounts, and all computer and mobile devices/equipment utilized by him for the practice of law. In that regard, Attorney Hull shall provide all necessary login and password information to the Court–Appointed Receivers and surrender any such items or information listed above as soon as requested by the Board or the Court’s Receivers. He shall also cooperate with the Co–Receivers in all aspects so as to protect the interests of his clients.
Attorney Hull is prohibited from removing any funds, files, data, check books, financial records/bank information, client property, computer hardware/ software or any client related or law office related items, including in the period from the time of this order until the suspension is effective as well as thereafter. With advance request of the Receivers, Attorney Hull may return to the law office, accompanied by a Receiver (or agent thereof) to retrieve his personal belongings.
Finally, Attorney Hull is prohibited from service as a fiduciary and he is ORDERED to relinquish any position as a fiduciary and take steps to receive any discharge from such fiduciary service.
Under separate order the Court shall appoint Co–Receivers to wind down the law office and protect the interests of Attorney Hull’s clients.
Bangor Daily News had details
The Damariscotta Police Department has arrested a local attorney on charges related to taking thousands of dollars, which he later repaid, from a nonprofit that facilitates student exchanges between Bath and a city in Japan.
Jonathan C. Hull, 72, who lives in Newcastle and practices in Damariscotta, faces one count each of class B forgery, class B theft by unauthorized taking, class D misuse of entrusted property and class E falsify private records, according to court documents. He was arrested Wednesday, Aug. 8.
Monday, August 27, 2018
The Florida Third District Court of Appeal affirmed the denial of an injunction against stalking sought by an attorney against another attorney
Ms. Raulerson is an associate attorney employed by a law firm (Barnard Law Offices, L.P., “BLO”), which regularly represents insured homeowners and other parties with insurance claims, including bad faith claims. The senior and “name” partner at BLO is Andrew C. Barnard (“Mr. Barnard”). Mr. Barnard was designated as Ms. Raulerson’s attorney for purposes of the stalking case, and he also represents her in this appeal. The petition includes allegations regarding conduct witnessed by Mr. Barnard and statements heard by him, in each case relating to lawsuits and conduct in a courtroom or courthouse.
The respondent, Mr. Font, is identified in the petition as the managing partner of a law fir , “Font & Nelson, LLC,” in Fort Lauderdale. Mr. Font’s law, “Font & Nelson, LLC,” in Fort Lauderdale. Mr. Font’s law firm regularly represents insurers, and Mr. Font has expressed a particular interest in identifying fraudulent insurance claims for prosecution under the applicable criminal statutes. The petition alleges that Mr. Font, among other wrongful acts: “threatened, harassed, stalked, cyberstalked, or abused” Ms. Raulerson; “threatened to harm [Ms. Raulerson] and individuals closely associated with [Ms. Raulerson];” “repeatedly harassed and threatened [Ms. Raulerson] and her co workers and her employer by forcing her to appear at court hearings having nothing to do with her, and then threatening her with criminal actions, going so far as to publish a false affidavit against her which he suborned from a prior client;” and repeatedly published the affidavit “in all cases involving [BLO] as well as other cases where [BLO] has no involvement whatsoever.”As the trial court cogently noted at the outset, the petition more nearly resembles, in its overall impression, a grievance complaint to The Florida Bar, or a motion for sanctions in the ten enumerated insurance lawsuits (and one petition to this Court) involving the parties, rather than other petitions for injunction under Chapter 784 (“I don’t think that this is the forum for me to decide, frankly, a lot of what you would like me to decide based on your pleadings”).
The core allegations in the petition describe interactions between Ms. Raulerson in her capacity as an attorney for the BLO firm and Mr. Font in his capacity as an attorney, all occurring in connection with the ten, enumerated, insurance-related lawsuits. Mr. Font’s verbal threats to Ms. Raulerson “that he will cause her to lose her bar license and livelihood and reputation,” and his repeatedly filing the affidavit of a former BLO client (as purported evidence of insurance fraud by that client and BLO) could involve unprofessional behavior or even conduct subject to discipline by The Florida Bar, but falls short of harassment under the statutory definition.
The unsuitability of the stalking statutes for complaints about the repeated electronic service of subpoenae, even frivolous subpoenae, by one lawyer on another is apparent and was properly recognized by the trial court. Such conduct, as alleged in the present case and if proven, may be many things, but it is not “cyberstalking” under section 784.048(1)(d).
Hat tip sunEthics. (Mike Frisch)
The Ohio Supreme Court held a suspended attorney in contempt for failure to file a required affidavit.
Cleveland.com reported on his felony conviction.
A North Royalton man pleaded guilty Monday to sexually abusing two students while he was a teacher at a private high school in Willoughby Hills.
Anthony J. Polizzi Jr., 41, pleaded guilty to six counts of sexual battery and two counts of gross sexual imposition in a series of incidents that happened while he was teaching history at Cornerstone Christian Academy, Lake County Prosecutor Charles Coulson said.
The two former students were 18 and 17 years old when the sexual abuse occurred from 2008 to 2010, according to court records.
Polizzi initially faced 46 counts of sexual battery, 34 counts of gross sexual imposition and one count of attempted sexual battery, but prosecutors dropped the additional charges as part of a plea deal.
Judge John P. O'Donnell will sentence him May 4 in Lake County Common Pleas Court.
The Georgia Supreme Court affirmed a Board to Determine Fitness of Bar Applicants decision denying bar admission on character and fitness grounds
The record shows that Montesanti graduated from Florida Coastal School of Law in 2015 at the age of 67. He commenced his fitness application for the Florida Bar while enrolled in school, and after a two and one-half year investigation process requiring several amendments to the application, and after specifications were issued as to why his application should be denied, Monetsanti withdrew his application to the Florida Bar before the date of a scheduled hearing and before a final determination on his application. Montesanti then applied to the Georgia Bar for a certificate of fitness. After several amendments were made to his Georgia application in response to inquiries by the Board, an informal hearing was held. The Board issued a tentative denial, and issued specifications giving the applicant notice of the basis for the tentative decision.
A formal hearing was conducted
As noted in the hearing officer’s findings, Montesanti demonstrated a pattern of failing to disclose relevant information to the Board and providing inconsistent statements to both the Board and the Florida Bar. For example, Montesanti provided different explanations to the Board for his non-payment of a judgment against him in a small claims court case—at one stage saying he forgot to pay and at another point acknowledging he intentionally did not pay the judgment because he disagreed with it, though he now understands he was wrong in refusing to pay. The record showed he provided two different reasons in letters to the Florida Bar for withdrawing his application for fitness in that state—in one letter stating that he had to withdraw for financial reasons and in another letter stating he had to withdraw due to an “undetermined illness.” The record shows that at the informal conference with the Board, Montesanti stated he did not recall writing the second letter, didn’t know what he meant by “undetermined illness,” and assured the Board he was healthy and his health was not the reason he withdrew his application. At the formal hearing, and in his appeal, Montesanti claims his memory and attention was impaired during the application process by the effects of lack of sleep because he suffers from sleep apnea. These inconsistencies and evolving explanations for conduct relevant to the Board’s determination of fitness demonstrate a lack of candor and honesty.
A former law professor in a clinic offered adverse testimony
One of Montesanti’s grounds for challenging the Board’s denial of his application is his claim that the Board improperly failed to verify or corroborate the derogatory statements about his character that were offered by a former law school professor who supervised his work as an intern at a public benefits law clinic while he was a student. Because Montesanti identified this professor as his supervisor at the legal clinic, the Board forwarded a questionnaire to the professor and she responded in writing with negative comments on Montesanti’s character...
According to the professor’s testimony, Montesanti acknowledged to her that he had purposely omitted and withheld information sought by the Florida Bar in its fitness inquiry, and that he felt it was justifiable for him to do so, because he did not believe the Bar was entitled to have all the information it sought. He also asserts the professor’s comments about him should have been excluded as privileged. We find no basis for excluding this character witness’ testimony as the evidence shows she had personal knowledge of information relevant to the Board’s inquiry into Montesanti’s character and fitness to be admitted to the Georgia Bar.
He contended that the failure to accommodate his sleep apnea violated the ADA, which the court rejected
Fitness determinations require the Board to examine an applicant’s “innermost feelings and personal views on those aspects of morality, attention to duty, forthrightness and self-restraint which are usually associated with the accepted definition of good moral character.” (Citation and punctuation omitted.) In re Lubonovic, 248 Ga. 243, 245 (282 SE2d 298) (1981). When asked at the hearing if he understood that a condition that would cause a person to lie or provide false answers would disqualify that person from being certified as fit to sit for the Bar examination, Montesanti responded affirmatively, but stated that he was now being treated for this condition. Montesanti essentially asks for a waiver of certification, or an accommodation from being subjected to an examination of his character and fitness, based on an alleged inability to be truthful, accurate, and forthcoming in his bar application disclosures and his professional dealings. All applicants, however, are held to the same standard for good character and fitness.
Sunday, August 26, 2018
A conviction for receipt and possession of child pornography has led to a consent disbarment accepted by the Pennsylvania Supreme Court.
Philly Voice reported in June 2018
A Philadelphia lawyer was sentenced to 84 months in federal prison on Monday for possession of child pornography.
Devon Edward Sanders, 48, of Glenside, will be incarcerated for downloading and possessing more than 94,000 images and videos of child pornography, according to U.S. Attorney William M. McSwain.
Chief U.S. District Judge Lawrence F. Stengel called the defendant’s collection “massive” and described the images and videos of children being sexually assaulted “dehumanizing, horrendous, and disgusting,” the U.S. Attorney's Office said in a news release. The court rejected Sanders' request for probation, ruling a significant prison sentence was warranted based on the “disturbing” crimes committed over a 10-year period.
A hearing for 25 victims seeking mandatory restitution will be held within the next 90 days, the court ruled.
“We agree wholeheartedly with Chief Judge Stengel’s assessment,” McSwain said a statement. “By possessing these horrific images, this defendant victimized innocent children for more than a decade. A significant prison term was not only warranted but necessary.”
The court also imposed on Sanders a 10-year term of supervised release and ordered him to undergo sex offender evaluation and treatment after his release from prison.
Saturday, August 25, 2018
The California State Bar Court Review Department recommends suspension of six months and probation for a prosecutor's discovery violation.
Sandra Lee Nassar, a deputy district attorney in the Orange County District Attorney’s Office, appeals a hearing judge’s decision finding her culpable of three counts of misconduct for her failure to produce evidence in a felony criminal trial. While the Office of Chief Trial Counsel of the State Bar (OCTC) recommended that Nassar be actually suspended for six months, the judge recommended that Nassar be suspended for two years, that execution of that suspension be stayed, and that she be placed on probation for three years subject to an actual suspension of one year and until she provides proof to the State Bar Court of her rehabilitation, fitness to practice, and present learning and ability in the general law. Nassar asserts that discipline is not warranted as she acted appropriately. OCTC does not appeal and supports the judge’s decision and discipline recommendation.
Upon independent review of the record (Cal. Rules of Court, rule 9.12), we reject Nassar’s arguments, and affirm the hearing judge’s culpability findings, but not her discipline recommendation. In light of the comparable case law, we recommend an actual suspension of six months to protect the public, the courts, and the legal profession.
The criminal case involved two defendants charged with abuse and torture of a five-year-old. Nassar had a "mail cover" of the two defendant in place that (unbeknownst to them) reviewed all their non-privileged correspondence.
One of the defendants pleaded guilty and was released.
Between July 2011 and August 2012, Iacullo’s attorney, Joe Dane, repeatedly requested discovery documents from Nassar. Iacullo’s case was scheduled for jury trial five times during April 2012 to June 2013. Each time, the defense filed a motion to continue the trial shortly before the scheduled date. The superior court granted each motion on the first day of trial, except the first one, which was granted the week before trial was to start.
Wonder if Joe Dane has ever represented a Jane Doe?
After Nassar was reassigned, the case was transferred to ADA Duke
When Nassar told Duke about the mail cover in the Iacullo case, Duke asked if any of the more than 1,000 pages of collected material had been produced. Nassar had not produced any of it, and replied, “Why would I?” Duke then spoke to her supervisor, Ted Burnett, who confirmed that the mail cover materials should have been provided to Dane in response to his earlier requests. On June 6, 2013, Duke produced all collected materials to Dane and canceled the mail cover.
A motion to dismiss ensued
The superior court found no due process violation and denied the motion to dismiss. However, the court determined that Nassar committed a “willful Brady violation,” and recused her from the case. The court found that Nassar did not produce “obviously exculpatory material,” and her justification was not reasonable, adding that “It wasn’t even close to a reasonable excuse.” The judge noted that Dane could use the letter from Pincus to Iacullo to impeach Pincus’s testimony at trial and that the defense could call Nassar as a witness. Neither side appealed the court’s ruling.
Iacullo pleaded guilty and got 12 years.
The court here
Nassar was obligated under the Penal Code to disclose items contained within the mail cover 30 days before the first scheduled trial date of June 20, 2012. By withholding that evidence, she violated rule 5-220.
We find that Nassar lost sight of her prosecutorial duties when she failed to disclose the mail cover materials. She shifted her focus away from her duty to shield against injustice and concentrated on the adversarial nature of the job. She repeatedly failed to make the disclosures, despite Dane’s repeated requests, before each of the scheduled trial dates, in violation of the Penal Code. Nassar admitted that she withheld discoverable evidence to obtain a strategic advantage at trial. Further, she did not avail herself of the remedy permitted under Penal Code section 1054.7. Instead of requesting the judge to look at the materials in camera to determine if good cause existed to defer producing the materials, Nassar improperly made that determination herself. Her misconduct was serious and her actions fell substantially below the standards required of a prosecutor.
... we recommend that Sandra Lee Nassar be suspended from the practice of law for two years, that execution of that suspension be stayed, and that she be placed on probation for two years with the following conditions:
Nassar must be suspended from the practice of law for the first six months of her probation...
OC Weekly reported on the hearing judge's decision. (Mike Frisch)
Friday, August 24, 2018
The Colorado Presiding Disciplinary Judge has imposed reciprocal discipline based on sanctions imposed in California
On September 1, 2015, the State Bar Court of California suspended Malpass from the practice of law in California for two years, all but ninety days stayed, upon successful completion of a three-year period of probation. Malpass was hired by a couple to file a bankruptcy petition, and he was required to—but but did not—seek approval from the bankruptcy court before collecting $42,000.00 in attorney’s fees from his clients. He failed to file a bankruptcy petition for his clients, who terminated his representation. The bankruptcy court ordered Malpass to disgorge the $42,000.00 in fees that he had collected. But he did not repay any portion of the $42,000.00 before he was suspended from the practice of law in California. During his probationary term in California, Malpass must pay his clients restitution.
On April 29, 2016, the State Bar Court of California suspended Malpass from the practice of law in California for one year, all stayed, upon successful completion of a one-year period of probation. This suspension was premised on Malpass’s conviction of a criminal misdemeanor for attempting to grab a telephone from an acquaintance and striking her in the face. He did not report this conviction to the California state bar.
Malpass did not report either suspension to the Colorado Office of Attorney Regulation Counsel. Nor did he report his criminal misdemeanor conviction.
The misdemeanor is described in the California recommendation
On May 14, 2008, at approximately 12:00 p.m., Ms. X, an acquaintance of respondent who occasionally visited respondent’s office to provide clerical assistance, answered a call from respondent’s client.
Respondent, who was nearby speaking to an employee, Ms. Y, approached Ms. X and asked to speak to respondent’s client. Ms. X refused to give the phone to respondent.
Respondent grabbed for the telephone, striking Ms. X in the face. Respondent then walked back to his office to speak to the client.
Ms. Y observed the incident and called the police.
The police subsequently arrived, questioned respondent, Ms. X, and Ms. Y. Respondent was arrested for violation of Penal Code section 242, a batt
The sanction is a three-year suspension with all but 90 days stayed and probation. (Mike Frisch)