Thursday, August 25, 2016

"Among The Most Shocking, Unethical, And Unprofessional [Misconduct] As Has Ever Been Brought Before This Court"

The Florida Supreme Court has permanently disbarred two attorneys who set up opposing counsel for a DUI

The Respondents in these two cases, Adam Robert Filthaut and Robert D. Adams, were members of a law firm, Adams & Diaco, P.A., in Tampa, Florida. Stephen Christopher Diaco was also a member of this firm and also took part in the events that are the subject of these proceedings. As a result of disciplinary action against Diaco and the withdrawal of his petition seeking review of the referee’s report, which jointly addressed Adams, Filthaut, and Diaco, Diaco has been permanently disbarred. See Fla. Bar v. Diaco, No. SC14-1052 (Fla. Jan 28, 2016).

The misconduct giving rise to the disciplinary actions against these three attorneys is among the most shocking, unethical, and unprofessional as has ever been brought before this Court. A brief summary of the facts, as found by the referee in his report, is as follows, and the full referee’s report is attached to this opinion. In January 2014, Adams & Diaco, P.A. was defending a radio network and one of its disc jockeys, “Bubba the Love Sponge” Clem, in a civil suit.

Opposing counsel included attorney Phillip Campbell, who represented another disc jockey named Todd Schnitt. Schnitt brought the action against Clem. The lawsuit was hotly contested for over five years and received substantial media coverage in the Tampa area. On the evening of January 23, 2013, while the trial was in recess for the night, Campbell and his cocounsel, Johnathan Ellis, walked to a nearby restaurant, Malio’s Steakhouse, for dinner and a drink. Unbeknownst to Campbell, a paralegal who worked for Respondents happened to be at Malio’s with a friend. Campbell did not know the paralegal, Melissa Personius, but she recognized Campbell as she was leaving the bar.

Personius contacted Adams after she left Malio’s to inform him she had seen Campbell at the bar. Adams then notified Diaco and called Personius back. After this call from Adams, Personius returned to Malio’s. Filthaut called his friend Sergeant Raymond Fernandez of the Tampa Police Department, informing him that Campbell was at Malio’s drinking and might drive while intoxicated. Filthaut did not inform Fernandez that Campbell was opposing counsel in the Schnitt versus Clem litigation.

Upon returning to Malio’s, Personius and her friend took a seat next to Campbell at the bar. Personius told Campbell, Ellis, and another attorney present that she was a paralegal but lied about where she was employed. Personius openly and obviously flirted with Campbell, encouraged him to drink, and bought him drinks. All the while, without Campbell’s knowledge, communications continued among Respondents, Personius, and Fernandez. Personius kept Respondents informed about what was transpiring with Campbell inside Malio’s. Fernandez assigned another officer to stake out Malio’s to see if Campbell would drive while intoxicated.

By 9:30 or 9:45 p.m., Personius’ friend and the other attorneys with Campbell had left Malio’s. Personius also had learned during the evening that Campbell had walked to Malio’s and intended to walk home—he lived a few blocks away. Witnesses who observed Personius that evening testified that she appeared to be intoxicated. Campbell observed the same, and he offered to call her a cab. She told him her car was in valet parking. He offered to see if it could be kept overnight. She told him that she needed to get to her car. He took her valet ticket, had the car brought up, and confirmed with the valet that it could be left overnight. She then refused to leave her car and insisted that it needed to be moved to a secure public parking lot where she could have access to it. He tried to convince her to leave the car, but she insisted that it had to be moved. Out of frustration, he agreed to move the car to a lot near his apartment building and call her a cab from there.

Shortly after leaving Malio’s driving Personius’ car, Campbell was pulled over by Fernandez and subsequently arrested for DUI and taken to jail. Additionally, Campbell inadvertently left his trial bag in Personius’ car. Personius and her car were later driven to her home by an associate attorney in Respondents’ firm.

The next day, Stephen Diaco made several statements to the media about the DUI of his opposing counsel Campbell, how the arrest caused the trial to be continued, and how Campbell’s behavior was a mockery of the judicial system and an embarrassment to Diaco as an attorney. Additionally, the Respondents were in possession of Campbell’s trial bag for several hours and made no attempt to inform him or return the bag until after Personius’ identity was discovered and Campbell’s cocounsel, Ellis, demanded return of the bag.

Sanction

Given all of these circumstances, we conclude that the referee’s recommendation of permanent disbarment is warranted and appropriately serves the three-pronged purpose of attorney discipline: (1) it is fair to society; (2) it is fair to the Respondents; and (3) it is severe enough to deter other attorneys from similar misconduct. See Fla. Bar v. Lawless, 640 So. 2d 1098, 1100 (Fla. 1994). We can only hope that our unanimous decision to approve the referee’s recommendation to permanently disbar these attorneys, a sanction not contested by and already imposed upon the third attorney involved, Stephen Diaco, will serve to warn other attorneys of the high standards of professional conduct we demand of all attorneys. And we hope in some small way, it will send a message to the public that this Court will not tolerate such outrageous misconduct on the part of attorneys admitted to practice law in Florida.

(Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Death Be Not Planned

A new one on me.

A deceased attorney has been chided by the New York Appellate Division for the Third Judicial Department for dying without a succession plan for his solo practice.

James R. Hickey Jr. (hereinafter decedent) was admitted to practice by this Court in 1980. He maintained an office for the practice of law in the City of Ithaca, Tompkins County.

Decedent died intestate on July 14, 2016 without any plan in place for the continuity of his solo law practice. The Tompkins County Bar Association (hereinafter TCBA) now accordingly moves pursuant to Rules of the Appellate Division, Third Department (22 NYCRR) § 806.11 for an order appointing one or more attorneys as custodian of the files of decedent's clients for the purpose of protecting the interests of those clients. TCBA also moves pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.15 (g) for the appointment of an attorney to serve as successor signatory to decedent's law office and escrow bank accounts. Both the Committee on Professional Standards and the Lawyers' Fund for Client Protection advise that they do not oppose the motion. The Committee additionally indicates that the requested relief would serve to protect the public.

Under the particular circumstances presented, we grant the motion to the extent that TCBA is hereby appointed the limited custodian of decedent's law office files (see generally Matter of Van Zandt, 53 AD3d 982 [2008]). That part of the application seeking the appointment of a successor signatory for decedent's law office and escrow bank accounts is denied, without prejudice to the appropriate application being made to a Justice of the Supreme Court within the Sixth Judicial District (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.15 [g] [2]).

 Note comment 5 to Model Rule 1.3. (Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tamm Negotiated Discipline Imposed

The ethics saga of DOJ whistleblower Thomas Tamm ended after more than a decade with the adoption of a negotiated public censure by the District of Columbia Court of Appeals.

Based upon respondent’s recognition that during the course of his employment as a lawyer for the United States Department of Justice Office of Intelligence Policy and Review he provided a reporter with information that constituted "confidences" or "secrets," he admittedly violated Rule 1.6 of the District of Columbia Rules of Professional Conduct. The Committee considered the following circumstances in mitigation: (1) respondent cooperated with Disciplinary Counsel; (2) respondent’s sole intent was to further government compliance with the law; (3) respondent made limited disclosure of the information; (4) respondent did not receive any financial compensation from disclosure of the information; and (4) the investigation of this matter had been stressful and expensive. As a result, Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a public censure. The Committee reviewed the amended petition and supporting affidavit and concluded, after the limited hearing on the revised petition, that the revised petition for negotiated discipline should be approved.

We accept the Committee’s recommendation because it properly applied D.C. Bar R. XI § 12.1 (c) to arrive at this conclusion, and we find no error in the Committee’s determination. Based upon the record before the court, the negotiated discipline of a public censure is not unduly lenient considering the existence of mitigating factors and the discipline imposed by this court for a typical Rule 1.6 violation without any aggravating factors

 

The disclosures at issue here took place in 2005. Disciplinary Counsel had the matter under investigation since 2009.

 The negotiated discipline was accepted by a panel consisting of Associate Judges Thompson and Beckwith and Senior Judge Farrell.

I was honored to be a part of the defense team in this matter led by Paul Kemp and Cary Feldman. (Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Crimes Of The Hate

An attorney convicted of "hate crimes" has been suspended for two years by the New York Appellate Division for the Second Judicial Department.

On August 20, 2014, the respondent pleaded guilty to 3 counts of a 33-count indictment before the Honorable Danny K. Chun, in the Supreme Court, Kings County. Specifically, he pleaded guilty to one count of strangulation in the second degree as a hate crime, in violation of Penal Law §§ 121.12 and 485.05(1)(b), a class C felony, and two counts of menacing in the third degree as a hate crime, in violation of Penal Law §§ 120.15 and 485.05(1)(b), a class A misdemeanor. The respondent entered his plea subject to the following conditions: he was required to complete a 12-week anger management program, perform 60 days of community service, and apologize on the record to the two complaining witnesses.

Sanction

In mitigation, the respondent testified at the disciplinary hearing to an earlier incident during which he was assaulted. He claimed that as a result of this earlier incident he suffers from post-traumatic stress disorder, a condition which allegedly contributed to his criminal conduct. The respondent, however, failed to offer any medical documentation or testimony by a medical expert to support his claim. In the absence of any supporting medical evidence, the Special Referee did not credit the respondent's claim. No other mitigating evidence was presented.

At the time of the hearing, the respondent had no prior disciplinary history. We note, however, that a separate disciplinary proceeding was commenced against the respondent by order to show cause dated January 12, 2016, under Appellate Division Docket No. 2016-00437. In that proceeding, by decision and order on motion dated April 25, 2016, this Court immediately suspended the respondent pursuant to 22 NYCRR 691.4(1)(l)(i) and (iii), finding that he constituted an immediate threat to the public based on evidence that he failed to submit answers to three complaints of professional misconduct filed against him, failed to comply with the Grievance Committee's investigation, and misappropriated client funds.

In view of the nature of the criminal conduct in this matter, particularly, the hate crime element of the respondent's conviction, and the absence of any credible mitigating factors, we find that a suspension from the practice of law for two years is warranted.

The court imposed the same sanction on an attorney who facilitated mortgage fraud by his paralegal

Although it is true that the respondent was not charged or prosecuted by the federal authorities in connection with the mortgage fraud, and that no evidence was presented in this case establishing that the respondent had actual knowledge of the fraud, it is undisputed that he allowed non attorneys to exercise control over his law practice. More specifically, he allowed his two paralegals to conduct hundreds of real estate closings, without his supervision, and went so far as to allow them to use his signature stamp and/or sign his name on real estate documents and to issue checks from his operating and escrow accounts. We reject the respondent's contention that his misconduct "had nothing whatsoever to do with the criminal activity." The respondent overlooks the fact that his role as the settlement agent was necessary to finalize the real estate transactions and loans. As an attorney, the respondent gave his imprimatur to the transactions and disbursed the funds. Without his part, the transactions could not have been completed and the fraudulent scheme could not have been carried to fruition. As a consequence, the respondent enabled or facilitated the mortgage fraud scheme.

In view of the respondent's wholesale disregard of his duty to supervise his paralegals and his duty to comply with the disciplinary rules, we conclude that a suspension of two years from the practice of law is warranted.

(Mike Frisch)

August 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 24, 2016

Former County Attorney Disbarred

The Wyoming Supreme Court has disbarred a attorney convicted of a "serious crime"

KOWB 1290 reported on the criminal charges

Charges have been filed against Albany County Attorney Richard Bohling stemming from allegations of using county funds to purchase cameras, computer equipment, and other items for personal use. Charges of six felonies and three misdemeanors were filed yesterday.

Bohling faces felony charges of four counts of Larceny. Other felony charges include Wrongful Taking or Disposing of Property and False Swearing in Non-judicial or Non-administrative Proceeding (False Claims or Vouchers).

Misdemeanor charges include Official Misconduct, Wrongful Appropriation of Public Property, and Misuse of Office.

Bohling has been summoned to appear in Circuit Court this afternoon.

The charges come about seven months after a search warrant was served to Bohling in May.

According to court documents, a “quiet audit” of the spending in the Albany County Attorney’s Office was conducted, and a list was created of 196 items purchased between August 3, 2011 and November 5, 2013. Out of those items, only 15 could be identified by a confidential source as being used in the office. The remaining 181 items on the list totaled $14,690.68, according to court documents.

Authorities say Bohling had possession of these items himself and did not bring them to the office until after he received word in April of a possible investigation. The affidavit filed in Albany County Circuit Court states that the property was “concealed by Bohling by keeping it at some location away from the Albany County Attorney’s Office, which was the rightful owner of that property.”

A representative from the Wyoming Department of Criminal Investigation was not immediately available for comment. Their department helped in conducting the investigation.

Bohling first took office as County Attorney in 2003. He did not run for reelection in the November.

(Mike Frisch)

August 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Falsified GPA On Resume Leads To Bar Admission Denial

The Maryland Court of Appeals has denied admission to an applicant who had passed the February 2013 bar examination

We consider whether to grant the application for admission to the Bar of Maryland of Deirdre Paulette Brown (“Ms. Brown”), who failed to disclose a prior felony theft charge on her application for admission and provided no credible explanation for her omission; intentionally misrepresented her grade point average (“GPA”) on her law school resume in order to enhance her qualifications with a prospective employer; and demonstrated a pattern of financial irresponsibility with credit account debt.

The Character Committee for the Seventh Appellate Circuit (“Committee”) recommended Ms. Brown’s admission to the Bar of Maryland by a vote of three to two. The State Board of Law Examiners (“Board”) voted four to three to adopt the recommendation of the Committee. Upon consideration of the recommendations of the Committee and the Board, and based upon our independent review of the record, we hold that Ms. Brown has not met the burden of establishing that she currently possesses the requisite moral character and fitness for admission to the Bar.

The court found that the debt issues were not an impediment to admission.

The problems lay elsewhere

In 1992, Ms. Brown was charged with making a false statement to a police officer and felony theft. She only disclosed the charge of making a false statement on her Bar application. The charges arose from an alleged robbery that occurred on or about October 10, 1992, while Ms. Brown was a manager in a retail clothing store in Prince George’s County.

The committee found that her testimony about the criminal matter was candid.

She had falsified her GPA

The Committee found Ms. Brown’s “admitted intentional misrepresentation of her [GPA] during the final semester of law school[,]” most egregious. Ms. Brown provided an April 24, 2012 reprimand letter from her law school’s Academic Standards Committee, which reported that she submitted a resume to the school’s Director of Career and Professional Development that falsely reported her GPA to be 3.71, when her GPA was only 2.71. The letter also noted that Ms. Brown failed to correct the misrepresentation when the Assistant Director of the career development office congratulated her on the false GPA. 

In deciding to issue a reprimand, the Academic Standards Committee considered the following: 1) Ms. Brown’s “estimable record of accomplishments;” 2) her “civic engagement and respect by her classmates;” 3) “the isolated nature of the incident;” and 4) the “sincerity of Ms. Brown’s regret regarding her conduct.” During the hearings, Ms. Brown admitted she placed false information on her resume in order to secure an on campus interview with a prospective employer, who required a minimum GPA of 3.0. Ms. Brown also testified that she withdrew her application with the prospective employer after the interview, reasoning that her conduct was “dishonest,” “unethical,” and “stupid.”

Although Ms. Brown acknowledged that her misrepresentation would have been exposed when the employer obtained her law school transcript, she admitted that she would not have reported it had she not been caught by the career development staff. The Committee accepted mitigation evidence relative to the resume incident. The Committee observed that three years had elapsed since the event leading to her academic reprimand, and that during that time, Ms. Brown held a real estate license, has been a notary public, and has worked for at least two title companies. The Committee also observed that within that period, no complaints had been lodged against her, and the accuracy and integrity of her work had not been questioned.

The court

Ms. Brown admitted that she had been financially irresponsible, failed to disclose the felony theft charge on her Bar application, and falsified material information on her resume during law school. Nonetheless, Ms. Brown avers that these incidents were not indicative of her present moral character and fitness for admission to the Bar of Maryland.

With the exception of Ms. Brown’s patterns of financial irresponsibility, which, in our view, she has since rehabilitated based on the record before us, we disagree.

Relative to the failure to disclose information, Ms. Brown alleges that she was not aware of the felony theft charge, and therefore, did not disclose it on her Bar application. However, the record reveals the contrary. Specifically, during Ms. Brown’s testimony at the February 2015 hearing, she stated, in relevant part: “I was very clear with [Mr. Herschfeld] . . . that I never said I committed theft of anything of that nature[,]” and that “[a]t first [the police officer] charged me with making a false statement. Then at some point he did do the theft, I do remember that, but I remember the theft either—I don’t know if it got tied into the stet or if it went away.” (emphasis added). Contrary to these assertions, Ms. Brown thereafter, affirmatively denied having recalled the felony theft charge, by stating, “I don’t remember that particular charge [(i.e., the felony theft charge)][,]” and “I don’t ever remember being charged with [felony] theft.”

...our cases demonstrate that an applicant’s lack of candor, truthfulness, or full disclosure, as reflected by an applicant’s inconsistent or contradictory testimony, or other evidence, also supports the denial of admission to the Bar.

...Ms. Brown’s explanations of her of failure to disclose, as reflected in the record and her representations during oral argument before this Court, are inconsistent, and tend to minimize the extent of her responsibility. We further observe that Ms. Brown failed to disclose a known criminal charge, despite signing an affirmation attesting to the accuracy of the information provided on her Bar application.

The coup de grace

Even more troubling, is Ms. Brown’s falsification of information on her resume during the last semester of law school. Ms. Brown alleges that this conduct displayed a “lapse in judgment” that was not indicative of her character, suggesting that the candid confession of her culpability and requisite remorse, should be viewed favorably towards her admission to the Bar. We disagree. Ms. Brown deliberately altered her GPA on her resume to advance employment prospects which she would not have qualified for, had her true GPA had been disclosed. Ms. Brown was cognizant that her actions were misleading. Ms. Brown also candidly admitted that the motivation behind her actions were calculated and purely designed for her own personal gain.

Ms. Brown further testified that had her law school not confronted her regarding the falsified GPA, she would not have taken the initiative to correct the misinformation. Specifically, Ms. Brown admitted that she did not correct the misrepresentation, even when the Assistant Director of the law school’s career development office congratulated her for achieving an “outstanding GPA,” and did not do so during an on-campus interview with the prospective employer. In furtherance of this act of deception, Ms. Brown testified that she only withdrew her resume from consideration because of her fear of being caught, and the fact that her actual GPA would have ultimately been revealed when compared against her law school transcript...

Although we accord great weight to the Board’s determination, our independent review of the record, which includes argument before this Court, where Ms. Brown appeared and responded to questions, and the proceedings before the Committee and the Board, leads us to conclude that Ms. Brown has failed to unequivocally meet the burden of establishing that she presently possesses the good moral character and fitness required for admission to the Bar of Maryland. In 2012, which was approximately four years ago, Ms. Brown revealed to the Committee and the Board that she deliberately falsified her GPA to enhance her qualifications with a prospective employer, and was less than candid regarding a previous felony theft charge.

Justice Hotten authored the court's opinion. (Mike Frisch)

August 24, 2016 in Bar Discipline & Process, Blogging | Permalink | Comments (0)

The Rights Of The Disbarred

As a follow on to my post about a D.C. Board on Professional Responsibility rule that was used to exclude relevant evidence in the reinstatement hearing of a convicted and disbarred felon, I reprint the section of my article No Stone Left Unturned, Georgetown Journal of Legal Ethics Vol. XVIII, No. 2 (Spring 2005) that discusses the Rule at issue

The Header: The Rights of the Disbarred

The Board is empowered with the authority to "adopt rules, procedures, and policies not inconsistent with [Rule XI] or any other rules of [the] Court." An examination of the rule promulgated by the Board to protect the supposed rights of attorneys who have been either disbarred or suspended with a fitness requirement is instructive in terms of understanding the agenda of the District of Columbia's volunteer lawyer system. Board Rule 9.9, which applies to reinstate­ment petitions, styled "evidence of unadjudicated acts of misconduct" can only be characterized as an elaborate procedure designed out of a wellspring of concern for the rights of the disbarred. The Rule reflects the Board's fixation on its view of due process and its utter lack of concern for the protection of the public from attorneys who have by their adjudicated misconduct demonstrated their unfitness to practice law.

Disciplinary proceedings, as has been previously noted, exist to promote confidence in the competence and integrity of the legal profession. The rules of evidence are not strictly applied, as any evidence relevant to the fitness of the attorney must be considered. There is no statute of limitations for any disciplinary offense, as the focus of all such proceedings is on the present fitness of the accused attorney. Criminal concepts such as venue also are not applied to these matters. One would think that the open consideration of all relevant evidence would apply with particular force to a reinstatement proceeding, involving as it does the present fitness of a disciplined attorney whose past conduct has shown a serious inability to adhere to minimum standards of ethical behavior. The Board's rule, motivated by an apparent desire to protect such lawyers, is the work of an entity "drunk on due process."'

Board Rule 9.9 prohibits Bar Counsel from introducing evidence at a hearing on a petition for reinstatement of any acts of misconduct that occurred prior to the order of disbarment or suspension with fitness unless Bar Counsel (i) proves that the attorney received notice that Bar Counsel reserved the right to present the facts and circumstances of the unadjudicated acts of misconduct and (ii) gives notice of its intent to raise the misconduct at reinstatement in the Answer to the Petition. Then, Bar Counsel is required to make a written proffer of its evidence to support admissibility of the evidence and satisfy the hearing committee chair that the misconduct can be established by a preponderance of the evidence. Because the rule, by its terms, applies to allegations about which Bar Counsel is aware at the time the attorney is disciplined, undiscovered misconduct that occurred before disbarment but later comes to light apparently is inadmissible.

This rule simply makes no sense, unless one is inclined to view the disbarred as a class worthy of special consideration and treatment. When an attorney has engaged in misconduct meriting lengthy suspension or disbarment, there often is a pattern of behavior that is undiscovered for years. Bar Counsel's limited resources do not permit the luxury of continuing to prosecute cases working their way through the system that are unresolved when the attorney is suspended or disbarred.  Any act or omission by a Bar applicant that reflects adversely on the applicant's present character and fitness to practice law is considered in the determination whether or not to grant the license. Any rule that operates to place technical hurdles in front of the disciplinary prosecutor in the process of evaluating the present fitness of a previously disciplined attorney frustrates the fundamental purpose of regulation. The Court has never had occasion to review this rule and presumably would invalidate it if relevant evidence is ever excluded by its operation. Its mere existence signals a misunderstanding on the part of the Board of its role in the disciplinary system.

I have omitted the accompanying footnotes except this one, which I particularly enjoyed writing

The Board's overarching concern for the rights of accused lawyers also finds expression in a practice that I believe is unique to the District of Columbia. The Board will appoint counsel to "indigent" lawyers and pay appointed counsel from bar dues. BOARD RULES Rule 16.5. While other jurisdictions appoint counsel in matters involving allegations of mental incompetence or disability, D.C. stands alone in giving free lawyers to lawyers who are not disabled. I made a series of requests to the Board for information regarding the identities of the appointed attorneys and the amounts paid. I was advised that "[t]hese documents are not public records; they are treated as confidential," and later that "[the Board isj not obliged to devote our limited resources to compiling data in response to your request." Letters from Executive Attorney to author (May 28 and June 29, 2004). The Board was kind enough to send me an application for appointed counsel and a list of attorneys who accept appointments in case I am ever in need.

I am pleased to report that I have not needed counsel (appointed or otherwise) for a bar discipline matter in the eleven years since the article was authored.

Also note that Criminal Justice Act vouchers are public records.

Why are payments to appointed counsel from mandatory dues a big secret? Answer: See above. (Mike Frisch)

August 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 23, 2016

Chicago-Style Pizza Unauthorized Practice Alleged

A New York attorney has been charged with unauthorized practice by the Illinois Administrator.

On July 1, 2005, Respondent leased an apartment from Dennis Martinek ("Martinek") at 111 Groveland Avenue in Riverside, Illinois ("the Groveland apartment"). Shortly thereafter, Respondent informed Martinek that he was a New York attorney.

From February 5, 2008, to August 12, 2011, Martinek was an investor in a business, Politico, LLC d/b/a Vini’s of Lincoln Park, which operated a pizza restaurant, Vini’s Pizza, at 2429 N. Lincoln Avenue in Chicago (hereinafter, collectively "Vini’s").

In August 2010, Martinek informed Respondent about a number of legal problems that Martinek had encountered in connection with Vini’s, including alleged fraud and mismanagement by the then-General Manager of the company, Rosendo Diaz ("Diaz").

Between August 2010 and September 2010, Respondent and Martinek agreed that Respondent would represent Martinek and Vini’s in at least eight different legal matters. Those matters included:

a. a tax claim by the State of Illinois because Diaz had allegedly failed to pay sales tax on pizza sales at Vini’s;
b. a claim against Diaz related to his purported mismanagement of Vini’s;
c. the defense of four creditors’ claims against Vini’s for accounts receivable, including claims by:

i.   DePaul University;
ii.  S&S Heating and Cooling, Inc.;
iii. Ice Town Leasing;
iv. Sysco Chicago, Inc.

d. An eviction matter related to a 5-day notice that had been served on Vini’s on September 10, 2010 to vacate its business premises on Lincoln Avenue in Chicago;
e. An alleged banking error by Vini’s credit card processing company, First Merit Bank, wherein Vini’s had purportedly not been credited with $5,000 in pizza sales proceeds.

Between August 2010 and September 2010, Respondent and Martinek began negotiating as to the fees that Respondent would be paid for the legal work...but they did not enter into a specific agreement as to the amount of those fees at that time.

Between September 2010 and August 2011, Respondent provided legal advice and services to Martinek and Vini’s on the matters... During that period, Respondent corresponded with Vini’s creditors and their counsel, reviewed and analyzed documents related to the respective claims, performed legal research on those claims, drafted letters to creditors for Martinek’s signature, and advised Martinek as to how to proceed in each matter.

In or about July 2011, Respondent and Martinek agreed that Martinek would barter monthly rent payments from Respondent’s rental of the Groveland apartment by applying those amounts as payments toward Respondent’s legal fees for the matters...The monthly rental amounts were $1,000 from July 1, 2011 through July 1, 2012. For legal services that Respondent provided on Martinek’s behalf in 2011 and 2012, Martinek waived a total amount of $12,000 in rental payments.

It is further alleged that Martinek sued to evict him and that he and his spouse filed for bankruptcy.

He also allegedly failed to cooperate in the investigation. (Mike Frisch)

August 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 22, 2016

Drunk On Due Process: Hearing Committee Rules Evidence Inadmissible In Reinstatement Proceeding

I have been waiting a long time for a case to come along that would provide District of Columbia Bar (now Disciplinary) Counsel with an opportunity to test the single most public protection-unfriendly rule of the Board on Professional Responsibility, the infamous Board Rule 9.8

Evidence of unadjudicated acts of misconduct occurring prior to the Court’s order of disbarment or suspension with fitness (“unadjudicated acts”) may be introduced by Disciplinary Counsel at a hearing on reinstatement only if: (i) Disciplinary Counsel demonstrates that the attorney seeking reinstatement received notice, in Disciplinary Counsel’s letter dismissing the complaint alleging the unadjudicated acts, that Disciplinary Counsel reserved the right to present the facts and circumstances of the unadjudicated acts at a reinstatement hearing; and (ii) Disciplinary Counsel gives notice in the Answer to the petition for reinstatement that he intends to raise the unadjudicated acts at reinstatement.

Let me say it plainly: No legitimate public policy purpose underpins any rule that excludes relevant evidence in the reinstatement hearing of a disbarred attorney.

Question: who in their right mind dreams up a procedural rule to exclude evidence in a reinstatement matter on grounds other than its merits?

Answer: the District of Columbia Board on Professional Responsibility.

My prayers are answered in the reinstatement proceeding of an attorney who had consented to disbarment while facing bar charges that his federal false statement conviction involved moral turpitude on its facts

Petitioner filed the instant Petition for Reinstatement on June 14, 2015. See DX 1 (Responses to Reinstatement Questionnaire for Petition for Reinstatement, Reinstatement Questionnaire, and Petition for Restatement). On October 15, 2015, Disciplinary Counsel opposed the Petition for Reinstatement and asked that a Hearing Committee be assigned to hold a hearing on the Petition. See DX 2 (Disciplinary Counsel’s Answer to Petitioner’s Petition for Reinstatement). The Board assigned the matter to the present Hearing Committee.

The Hearing Committee held a prehearing conference on January 22, 2016. Petitioner and Disciplinary Counsel submitted a set of twenty-three stipulated facts on February 3. In addition, Petitioner submitted four exhibits and Disciplinary Counsel submitted twenty-five.

On March 9, 2016, Petitioner objected to Disciplinary Counsel’s proposed Exhibits 9 and 16 through 25. Disciplinary Counsel filed responses to Petitioner’s objections on March 11. Exhibits 16 through 25 related to the 2006 criminal matter. Disciplinary Counsel’s Exhibit 9 was the Specification of Charges submitted for Contact Member review on February 28, 2011. Exhibit 16 was a Department of Labor investigative report, and Exhibits 17 through 25 were Department of Labor interview reports and FBI interview reports, all of which concerned the underlying criminal matter.

The Hearing Committee held a hearing on March 14, 2016. At that hearing, the Hearing Committee excluded Disciplinary Counsel’s Exhibit 9 and Exhibits 16 through 25, except for the cover page that constituted the first page of Exhibit 9. Hearing Tr. 20:7-14, 24:8-11. The Hearing Committee concluded that the exhibits alleged unadjudicated acts of misconduct before the effective date of the disbarment and that Disciplinary Counsel had failed to satisfy the condition for their admissibility – that it had provided notice to Petitioner reserving the right to present evidence of the unadjudicated acts on reinstatement, as required by Board Rule 9.8(a). Hearing Tr. 20:7-14. Disciplinary Counsel objected to that ruling on the record. Hearing Tr. 23:17-18.

Does the reader understand that this hearing committee refused to hear relevant evidence by operation of a ridiculous procedural rule intended to do nothing but tie Disciplinary Counsel's hands in conducting a fair reinstatement inquiry?

Notably, it appears that these reports do not involve "unadjudicated acts of misconduct." Rather, reports on the nature of underlying offense involve the circumstances surrounding the misconduct. I'd say those circumstances are worth knowing before you let a convicted felon get his law license back.

This is exactly what Disciplinary Counsel was exploring in its charges when the attorney threw in the towel and consented to disbarment.

Now

At the hearing, Petitioner testified credibly that the “material facts” to which he agreed in the affidavit in support of consent to disbarment were the facts set out in the criminal information and the plea agreement. Hearing Tr. 98:10-12, 99:18-20, 100:15-21, 102:19-21. He stated that he never admitted to other allegations in the draft Specification of Charges, and he denied the truth of the additional allegations related to the underlying criminal case.

This may or may not be true. The Hearing Committee prevented Disciplinary Counsel from presenting the evidence that well might disprove it. 

And the Ad Hoc Hearing Committee recommends reinstatement!

The case is In re Chris Yum. 

In No Stone Left Unturned, I predicted that if this "drunk on due process" rule ever got before the Court of Appeals it would go down in flames.

I hope I was right.

The "drunk on due process" comment on this "rule" is not original with me but quotes a judge of the Court of Appeals in an oral argument many years ago where the rule came up.

I was there and loved it. (Mike Frisch)

August 22, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Sunday, August 21, 2016

Urine Trouble: Conduct Draws Three-Year Stayed Suspension

A stayed three-year suspension with a number of conditions has been imposed by the Disciplinary Hearing Commission of the North Carolina State Bar.

The triggering incident was unrelated to the practice of law

On 9 August 2013, Holmes took his lawfully prescribed medications of Adderall during the day and Trazadone at night. He had not previously taken Trazadone, which should not be combined with alcohol. Holmes consumed a moderate amount of alcohol in the evening and went to sleep. Holmes has no recollection of the events that followed and are described below. However, based on the reports of others, Holmes stipulates to these facts and accepts full responsibility for his actions.

Early in the morning of 10 August 2013, Holmes was at the City Limits Saloon in Raleigh. When Holmes was informed that he would not be served any additional alcohol due to his level of intoxication, he became disruptive and was asked to leave the bar.

Outside the bar, a Wake County Sheriffs Deputy tried to help Holmes find a cab to take him home. When Holmes became belligerent, the Deputy attempted to place Holmes in custody. Holmes resisted, twice kicking the Deputy in the shin.

Holmes was subsequently taken to the Wake County Detention Center by Raleigh Police. He was combative during transport.

Holmes's disruptive behavior continued when he arrived at the detention center. Due to his behavior and intoxication, the detention center nurse referred Holmes to Wake Medical Center for evaluation.

Several law enforcement officers were present while Holmes was evaluated at Wake Med's emergency department, providing security due to Holmes's combative and disruptive conduct. II. In the ER, Holmes urinated on the floor. Hospital staff then provided Holmes with a plastic receptacle to be used as a urinal.

Due to Holmes's continued combative and disruptive behavior, he was placed in an isolation room and given an injection of Haldol, which he resisted. After he received the injection, Holmes stated that he needed to urinate again. When the nurse handed Holmes the plastic receptacle that he had used as a urinal, Holmes threw it and the container hit an ER nurse, soaking her uniform.

As a result of the conduct described above, Holmes was charged with multiple criminal offenses in Wake County Superior Court.

On 31 August 2015, Holmes pled guilty to the following criminal offenses arising from the events of 10 August 2013: two misdemeanor counts of assault on a government official, one misdemeanor count of attempted assault on emergency department personnel, and one misdemeanor count each of second degree trespass, intoxicated and disruptive, and resisting a public officer.

The attorney had been censured in 2010.

The discipline was imposed by consent. (Mike Frisch)

August 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 19, 2016

Adultery Or Not, Disbarment Proposed

The Louisiana Attorney Disciplinary Board has proposed disbarment of an attorney who, in her own divorce, offered false testimony that she had engaged in an adulterous relationship

Respondent's ever-changing story regarding the reported adulterous relationship with Mr. Pfleeger is troubling. Respondent responded to discovery and testified in court that she committed adultery with Mr. Pfleeger. She then told Mr. Molaison and now ODC that her testimony was false. However, ODC has confirmed the fact that Respondent did engage in a post-filing adulterous relationship with Mr. Pfleeger. Respondent engaged in professional misconduct. Respondent's conduct also violated Rule 8.4(a) (violated or attempted to violate the Rules of Professional Conduct).

The misconduct was reported by opposing counsel in the divorce, as was this

On or about June 19, 2005, in Honolulu, Hawaii, Respondent concealed or took possession of goods or merchandise, the value of which exceeded $300.00, said property belonging to Macy's West, Inc., a store or retail establishment, with intent to defraud, thereby committing the offense of Theft in the Second Degree, in violation of Section 708-831(1)(b) of the Hawaii Revised Statutes. Respondent was charged with said crime by Felony Information dated October 19, 2005. On May 14, 2008, Respondent entered a No Contest plea to Theft in the Second Degree, and moved to defer acceptance of the plea. On September 17, 2008, an Order was signed granting Respondent's Motion for Deferred Acceptance of No Contest Plea. During the five-year period of deferral, Respondent was placed on supervised probation with specific conditions. She has reportedly completed the terms of her probation.

After the respondent admitted the above violations

On December 19, 2012, the Respondent was operating a motor vehicle at approximately 12:15 a.m. on Homestead Avenue in Jefferson Parish Louisiana. While operating her silver BWM automobile, the Respondent swiped the side of a 2005 Toyota Avalon resulting in damage to that vehicle. Upon arrival of law enforcement personnel, the Respondent was found to be in an impaired state while operating a motor vehicle. The operation of a motor vehicle while under the influence of alcohol to the extent of intoxication is a criminal act and a violation of Rule 8.4(b)...

On March 22, 2013 the Respondent was operating a beige Infiniti automobile in an erratic fashion. Law enforcement performed a traffic stop and discovered a clear plastic bag with seven rocks of crack cocaine in her possession. The Respondent was arrested and charged with careless operation of a motor vehicle as well as possession of a Schedule II narcotic. Upon presentation the District Attorney of Tangipahoa Parish charged the Respondent with a violation of R.S. 40:967.C.(2) - Possession of Schedule II Controlled Dangerous Substance, to wit: Cocaine. On November 12, 2013 the Respondent entered a guilty plea to the charge of possession of a Schedule II Controlled Dangerous Substance and was sentenced under Article 893 [to] serve three years with the department of corrections. The jail term was deferred and Respondent was placed on supervised probation through the Probation and Parole Board. Although required to submit to felony monitoring, on August 7, 2014 the Respondent failed to appear for monitoring resulting in the issuance of a bench warrant for her arrest and a hold without bond. As of this date the Respondent remains a fugitive. The Respondent’s conduct reflects a violation of Rule 8.4(b) of the Rules of Professional Conduct.

The board

 when considering the totality of the misconduct in this matter, disbarment is the appropriate sanction. Respondent has engaged in a pattern of criminal conduct, a portion of which strongly suggests the presence of an unresolved substance abuse issue. In addition to this conduct, Respondent intentionally presented fabricated evidence to a tribunal. 

(Mike Frisch)

August 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"I'll Stay For Sentencing"

The Illinois Administrator has charged an attorney with practicing while on a six-month disciplinary suspension.

The complaint alleges

Beginning on June 6, 2014, and continuing through December 6, 2014, Respondent was not authorized to practice law, or to hold himself out as being authorized to practice law, in the state of Illinois.

On June 4, 2014, prior to the effective date of Respondent’s suspension, Respondent represented Geraldine Hudson ("Hudson") in the trial of a criminal matter docketed as People v. Geraldine Hudson, case number 13 MC 1190555, in the Circuit Court of Cook County. A jury found Hudson guilty of criminal trespass to property, and Hudson’s sentencing hearing was set for June 25, 2014.

When June 25 arrived

...Respondent appeared with Hudson before Judge Clarence Burch at the sentencing hearing...The Assistant State’s Attorney was Joel Bruckman. At that time, Respondent identified himself for the record as, "Marlin Kirby, on behalf of the defendant" and presented a motion to withdraw as counsel of record because he does not handle appeals. The following exchange then took place between Respondent, Judge Burch, and Mr. Bruckman:

Mr. Bruckman: Judge, this motion indicates that counsel is withdrawing for purposes of handling the appeal. But what about for sentencing and post-trial motions? We’re not there yet.

Judge Burch: We’re not at the appeal process yet.

Mr. Kirby: I was looking forward, but I’d like to withdraw now, if that’s okay.

Mr. Bruckman: Judge, I’d have an objection to that being that I believe the defendant is entitled to representation for purposes of sentencing. Since we have the 30 days that post-trial motions need to be - -

Judge Burch: You have a right to withdraw at any point. I just don’t want to leave your client unprotected.

Mr. Kirby: Sure. I understand that.

Judge Burch: If you have mutually agreed to terminate services - -

Mr. Kirby: Well, I can participate in the sentencing, but I don’t want to go further after that, if that’ll help. Will that be okay?

Judge Burch: It’s up to your client.

Ms. Hudson: It’s up to the attorney.

Mr. Bruckman: I also just want to make sure that the defendant is admonished and knows what’s going on here with the 30 days. If he withdraws today, I don’t want this to come back with ineffective assistance because she doesn’t know what’s going on.

Judge Burch: I understand what you’re saying, and I’m kind of concerned with that, too. We had a jury trial and today was set for sentencing. But I don’t want to force you to stay on the case if you want to withdraw. So as your counsel says, it’s between the two of you. What do you want to do?

Mr. Kirby: I’ll stay for sentencing, and then after that - -

Respondent proceeded to represent Hudson in the sentencing hearing, which included an examination of Hudson and argument on her behalf.

At no time did Respondent inform the court or opposing counsel that he was currently suspended and unauthorized to practice law.

Respondent’s representation to the court that he was authorized to represent Hudson and his failure to advise the court that he was suspended from the practice of law were dishonest, and Respondent’s representation of Hudson while suspended from the practice of law constituted a fraud on the court.

(Mike Frisch)

August 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 18, 2016

Applicant With Felony Conviction Denied Bar Admission

An application for bar admission was denied by the New York Appellate Division for the Third Judicial Department

Applicant resides and works in Florida. He graduated from college (in 2008) and law school (in 2013) in Florida. Applicant has disclosed a 2004 arrest for drinking in public, a 2008 arrest for driving under the influence and marihuana possession, a 2009 arrest for driving under the influence, and a 2011 arrest for driving under the influence, the latter resulting in applicant's felony conviction in Florida in May 2013. Applicant confirms that, as a result of his felony conviction, he is ineligible to apply for admission in Florida until his civil rights can be restored in that state, i.e., May 2019 (see Rules of the Supreme Court of Florida 2-13.3).

We conclude that applicant does not presently possess the character and general fitness requisite for an attorney and counselor-at-law and we therefore deny the application (see Judiciary Law § 90 [1] [a]).

The case caption does not disclose the identity of the applicant. (Mike Frisch)

 

August 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Return To Practice

The Pennsylvania Supreme Court has reinstated an attorney who was the subject of this Law360 story

Attorney Scott Sigman, the treasurer of the Lawyers' Club of Philadelphia and a former member of the board of directors of the Philadelphia Bar Association, received a 30-month suspension from the Pennsylvania Bar on Thursday for withholding referral fees while working as an associate at Bochetto & Lentz PC.

The Pennsylvania Supreme Court approved a joint petition between Sigman and the state’s Office of Disciplinary Council recommending the suspension.

Sigman, a founding partner at Philadelphia firm Sigman & Zimolong, admitted to holding onto approximately $25,000 in fees over a 24-month period.

According to the joint petition between Sigman and the Office of Disciplinary Council, Sigman, who worked at Bochetto & Lentz between 2005 and 2009, held onto referral and other fees due to the firm in five cases.

Sigman also admitted to providing false testimony during a deposition and providing login information for Bochetto & Lentz's Westlaw account to another attorney with whom he was acquainted. The attorney ultimately accrued more than $3,600 in fees on the account, which were charged to the firm. Her firm ultimately reimbursed Bochetto & Lentz for the charges.

According to the petition, Sigman has separately sued Bochetto & Lentz for referral fees in cases that he started at the firm and that remained there after his departure, and the firm has put these fees aside in an escrow account. Sigman has agreed to allow Bochetto & Lentz to remove $25,468.18 — the sum of fees that he improperly held onto, as determined by the Office of Disciplinary Council — from the account.

Sigman, a former Philadelphia assistant district attorney who won the Philadelphia courts’ Pro Bono Publico Award in 2012, succeeded in securing glowing recommendations from several Philadelphia luminaries.

A letter filed with the Office of Disciplinary Council by former District Attorney Lynne Abraham emphasized his good character in the six years that he worked in the district attorney’s office. JoAnne Epps, the dean of Temple University’s Beasley School of Law, spoke to his role on the executive committee of the law school’s alumni association and asked the court’s disciplinary board to be “merciful” in ruling on his future.

The joint petition emphasized that, had the matter moved forward to a disciplinary hearing, Sigman would have brought forth these letters and others from colleagues to demonstrate his character and civic involvement.

According to his website, Sigman’s practice encompasses complex civil and criminal litigation, catastrophic injuries, election law, defamation, fraud, civil racketeering cases, drug forfeiture, and white-collar criminal defense.

Sigman had been selected as a “Pennsylvania Rising Star Super Lawyer” by Philadelphia Magazine for 2005 through 2012. He has also served as the chair of the Philadelphia Bar Association’s Young Lawyers division.

Neither Sigman nor a representative from Bochetto & Lentz responded to a request for comment Monday.

The Disciplinary Board was unanimous in recommending reinstatement. (Mike Frisch)

August 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 17, 2016

Baseball Heir And Adjunct Professor Denied Reinstatement After Sexual Misconduct

Former law professor and heir to the Washington Senators/Minnesota Twins baseball franchise Clark Calvin Griffith has been denied reinstatement by the Minnesota Supreme Court.

His father sold the franchise and he went into the law

Griffith was admitted to practice law in Minnesota in 1986. In 2013 we suspended Griffith indefinitely with no right to petition for reinstatement for a minimum of 90 days due to his: (1) sexual harassment of a law student that he was supervising at William Mitchell College of Law (WMCL); and (2) attempts to pressure the law student into recanting her complaints against him. In re Griffith, 838 N.W.2d 792, 793 (Minn. 2013).

On January 24, 2012, Griffith, an adjunct professor, and the law student met at a restaurant in Saint Paul as part of an independent study clinic. As Griffith has stipulated, during the meeting, he "engaged in verbal and physical conduct and communications of a sexual nature that were not welcomed by [the student] and heightened her feelings of discomfort with [Griffith]." The meeting ended and Griffith walked the student to her car. As Griffith has further stipulated, he then "unzipped his pants, exposed his penis to [the student], and then took [the student’s] hand and forced her to touch his penis."

The next day the student reported the incident to WMCL. WMCL directed Griffith to have no contact with the student, but he continued to call, text, and send messages. These communications included multiple attempts by Griffith to convince the student to recant the complaints she made to authorities. WMCL was notified of the communications and sent Griffith a second notice to have no contact with the student. Griffith again disregarded the instruction and contacted the student to ask why she had filed a criminal complaint against him. The student told Griffith to stop contacting her. WMCL conducted an investigation into the incident and terminated Griffith’s employment. On June 12, 2012, Griffith entered an Alford plea and was found guilty of indecent exposure.

The court

Griffith makes three specific arguments, none of which has merit. First, Griffith contends that the panel erred in failing to fully consider evidence that his misconduct was the result of an adverse reaction to prescribed medication. Although the panel allowed Griffith to testify on the subject, and he stated that a medical condition "caused the problem," the panel denied his request to submit testimony by, or a report from, a neurologist. The panel did not err because Griffith’s disclosure of medical evidence was untimely...

Second, Griffith argues that the panel did not give proper weight to his witnesses’ testimony...

Finally, Griffith contends that he was not able to fully express himself regarding his understanding and appreciation of the harm the student experienced because she has sued him. He suggests that, because her civil attorneys were present at the panel hearing, he was inhibited from delivering candid testimony. If so, it was a problem of his own making. Griffith chose to petition for reinstatement while the student’s civil lawsuit against him was pending. He knew, or should have known, that the panel hearing was public...

  In summary, we are not left with a definite and firm conviction that the panel erred. Griffith is not entitled to reinstatement at this time because he failed to prove by clear and convincing evidence that he has recognized the wrongfulness of his conduct and has undergone the requisite moral change.

Strike one. (Mike Frisch)

August 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 16, 2016

Sanction Disagreement To Be Aired Before Ohio Supreme Court

A disciplinary case scheduled for oral argument today before the Ohio Supreme Court is summarized by Kathleen Maloney

The Board of Professional Conduct recommends a two-year suspension with 18 months stayed, on certain conditions, for Canfield attorney Benjamin Joltin. The board found the attorney misappropriated client funds, mismanaged his client trust account, and failed to fully cooperate with the disciplinary investigation.

Joltin and the Office of Disciplinary Counsel, which investigated the complaints against the attorney, agree about the professional conduct violations and basic facts related to the misconduct, but disagree about the appropriate sanction.

Attorney Pays Himself Before Doing Work
Joltin has been a solo practitioner since 2012 and handles criminal and family law cases. In September 2012, Lisa Torok hired Joltin to handle her divorce and paid him $18,000 to hold in trust. He deposited the money into his client trust account. Six days later, Joltin paid himself $4,000 from the account without having earned the fee or noted any expenses.

Torok and Joltin agreed to a $3,000 flat fee for the divorce, and Torok requested the return of $15,000 in early 2013. When Torok cashed the check months later, it bounced. Soon after, Joltin paid back more, but not all, of her money, and she fired him as her lawyer in February 2014. By April, Torok had refunded her all but $3,000, which he eventually paid nine days before a December 2015 disciplinary hearing.

In November 2012, Joltin also deposited $88,000 for work he did as executor of his grandparents’ estate into his client trust account, which the board notes improperly mixed his personal funds with his client account.

Personal Injury and Eviction Cases Mismanaged
In a second incident, Joltin represented Roger Johnson in a personal injury lawsuit. One of Johnson’s doctors contacted Joltin in 2009, requesting payment of a medical bill if the case was won or settled. Joltin agreed to pay the doctor, but then put the documents into the wrong file and forgot about them. A settlement was reached, but the doctor wasn’t paid his $3,400 fee until more than two years later, a few days before the December 2015 disciplinary hearing.

In the third grievance considered by the board, Joltin represented a landlord who lives in Florida and needed legal assistance to evict tenants from an Ohio property. The court rejected two filings Joltin made because of technical errors. When the landlord contacted Joltin by phone and email about the case status, Joltin didn’t talk to him, ignored his emails, and failed to keep him informed about the case. This client terminated Joltin’s representation in May 2014 and asked for a refund of the $205 paid. Joltin didn’t reply until he decided to refund the fee in December 2015.

Board Suggests Six-Month Actual Suspension
In its report to the Supreme Court, the board states that Joltin stopped keeping records for his client trust account from 2008 to 2013, the year the disciplinary counsel began an investigation. Joltin failed to maintain required ledgers for each client, overdrew his account, mixed his client and personal funds, and wrote checks for personal expenses at least 85 times in a 14-month period.

Joltin also didn’t respond to multiple inquiries from the disciplinary counsel and didn’t show up for scheduled depositions about these matters, the board notes. Once the disciplinary complaint was filed, though, Joltin cooperated with disciplinary counsel, tightened the scope of his practice, changed his office procedures to comply with attorney conduct rules regarding client trust accounts, found a mentor, and refunded money and apologized in writing to the three clients.

Joltin explained in the hearing that the misconduct took place during a time when he was experiencing personal difficulties, including physical and mental health issues. In December 2015, he began regular counseling and signed a contract with the Ohio Lawyers Assistance Program (OLAP). However, the board determined these weren’t factors that could lessen his disciplinary sanction because there wasn’t enough proof to show the difficulties caused his ethical violations.

Though the disciplinary counsel recommends an indefinite suspension, the board proposes a six-month actual suspension. Eighteen months of the two-year suspension would be stayed on the conditions that Joltin submits to monitored probation, completes coursework about maintaining client trust accounts, finishes his three-year OLAP contract and follows their direction regarding his treatment, and commits no more misconduct.

Investigator Pushes for Stronger Sanction
The disciplinary counsel has filed objections to the board’s recommended sanction. The disciplinary counsel disputes the board’s conclusion that none of the clients were harmed by Joltin’s actions. The divorcing mother needed her money for living and child-related expenses, the doctor waited two years to be paid for services he provided, and the landlord’s tenants extensively damaged the property during the delay in the eviction proceedings, the disciplinary counsel contends.

The disciplinary counsel adds that Joltin’s lack of cooperation with the disciplinary process was egregious and only changed after the complaint against him was formally filed. In the disciplinary counsel’s view, Joltin has shown he is unfit to practice law, and his conduct justifies an indefinite suspension, which prohibits him from applying for reinstatement for two years.

Attorney Satisfied with Board’s Recommendation
Joltin responds, rejecting the claim that he harmed these clients. He notes he successfully negotiated a separation agreement and shared parenting plan for Torok, and he argues no evidence was submitted to support the harm to the clients that has been alleged by the disciplinary counsel.

The attorney cites his good character and reputation throughout his 16 years of practice as demonstrated by 17 letters submitted on his behalf in this case. He stresses that he freely chose to repay his clients, seek counseling, and fix his law-office practices in December 2015 before the disciplinary hearing. Those steps were sincere attempts to correct the wrongs and prevent future misconduct, he asserts, asking the Supreme Court to accept the proposed two-year suspension with 18 months stayed.

Kathleen Maloney

The argument can be viewed by live stream and later in the court's online archives. (Mike Frisch)

August 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment Sought For Attorney's Crimes Against Native Americans

An Illinois attorney has consented to disbarment after a federal felony conviction.

The Sun reported on the crimes

The former general counsel for the Twentynine Palms Band of Mission Indians has been sentenced to 2 years in federal prison for his role in a kickback scheme that bilked the tribe out of hundreds of thousands of dollars from construction contracts and land purchases.

Gary Edward Kovall, 67, of Ely, Minnesota, will begin serving his sentence in June, likely at a prison facility in Duluth, Minnesota, where he can receive ongoing treatment for a medical condition, said Kovall’s attorney, Edward M. Robinson.

Under a plea agreement with federal prosecutors, Kovall pleaded guilty in February 2014 to one felony count of conspiracy to commit bribery. He was facing a maximum sentence of five years in federal prison, but on Feb. 24 in U.S. District Court in Los Angeles, Judge Michael W. Fitzgerald, sentenced Kovall to two years in prison, according to online court records.

Robinson said Kovall will serve about 85 percent of his sentence before he is eligible for release and home detention.

“I think Mr. Kovall accepted responsibility for what happened,” Robinson said. “And the judge recognized the circumstances of the case and who Mr. Kovall was, and he exercised his discretion based on what had occurred and who Mr. Kovall was.”

Kovall, his wife Peggy Anne Shambaugh, and two others: David Alan Heslop and Paul Phillip Bardos, were indicted on May 9, 2012. The four were accused of orchestrating a lucrative scheme in which construction projects were steered to contractor Bardos in exchange for kickbacks.

It all began when Kovall, according to the indictment, persuaded the tribe to create a limited liability company to purchase real estate and to hire his longtime friend, Heslop, as the company’s manager.

Kovall’s and Heslop’s friendship dates back to their involvement with Claremont McKenna College’s Rose Institute of State and Local Government, where Heslop was the founding director and Kovall a senior research associate at the time.

Kovall and Heslop persuaded the tribe to invest in real estate in which they had an ownership interest, and steered construction contracts, including several at the Spotlight 29 Casino in Coachella, to Bardos, who kicked back some of the profits to Kovall, Heslop and Shambaugh.

Heslop pleaded guilty in March 2014 to one felony count of conspiracy to commit bribery and was subsequently sentenced to 21 months in federal prison, but his plea came with a condition that he be allowed to appeal his conviction. He remains free on bail until his appeal is heard.

Heslop’s attorney, David Shapiro, said in an e-mail that Judge Fitzgerald still has to rule on what Heslop must pay in restitution before an appeal can be filed, and that will likely occur by the end of the month.

“Then, we will have about a month or two to get our brief filed,” Shapiro said.

Bardos also struck a plea agreement with prosecutors in February 2014, pleading guilty to one count of tax evasion and agreeing to file amended tax returns and pay any additional taxes, penalties and interest assessed by the Internal Revenue Service.

Shambaugh has until Dec. 2 to complete an 18-month pretrial diversion program, which allows federal defendants to undergo court supervision as an alternative to prosecution. If she successfully completes the program, the charges against her will be dismissed. If she doesn’t, she will face trial.

The motion for consent disbarment goes to the Illinois Supreme Court. (Mike Frisch)

August 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 13, 2016

PTA Theft And DUI Leads To Disbarment

An attorney convicted of stealing from the PTA was disbarred by a panel of the Michigan Attorney Discipline Board after two convictions.

Based upon respondent's convictions in the 30th Circuit Court on July 27,2015 and October 7,2015, it was established that respondent was convicted of embezzlement by an agent or trustee ($200 or more but less than $1,000), in violation of MCl 750.174(3)(a), and a third offense of operating while intoxicated, in violation of MCl 257.625(6)(0). Therefore, the panel found that respondent engaged in conduct that violated the criminal laws of the State of Michigan, in violation of MCR 9.104(5).

The panel concluded that respondent knowingly failed to respond to lawful demands for information from a disciplinary authority, in violation of MRPC 8.1 (a)(2); failed to answer two requests for investigation, in violation of MCR 9.104(7) and MCR 9.113(A) and (8)(2); in addition to violating MRPC 8.4(a); MCR 9.104(1); MCR 9.104(2); and MCR 9.104(3).

The panel ordered that respondent be disbarred from the practice law in Michigan. Costs were assessed in the amount of $1,834.48.

The Lansing State Journal had the story of the charges

An attorney who admitted stealing thousands from an East Lansing elementary school's parent-teacher group withdrew his guilty plea Wednesday after a judge imposed a jail term, which nullified the plea agreement.

At a sentence hearing in Ingham County Circuit Court, Judge Rosemarie Aquilina heard from two members of Pinecrest Elementary School's parent-teacher council, who said they had been betrayed by Robert Clayton Miller, the group's onetime treasurer.

"To steal money from a school that already has so little, it is heartless and selfish," Kimberly Henderson, a member of the Pinecrest group, told Aquilina.

The embezzlement happened between June 2012 and June 2013 while Miller was serving as treasurer. In 2013, police discovered that nearly $7,800 was missing from the parent-teacher council. About $6,500 was recovered and returned to the organization.

Henderson said that Miller ultimately had stolen from children who donated money from their "piggy banks" and their allowances.

"I think you need the impact of some jail," Aquilina told Miller. "I think you have negatively impacted the children...and the community.

"Sir, you need a negative impact."

She then sentenced Miller to serve 14 days in jail, in addition to two years of probation.

Miller, who according to his attorneys has been on leave from his state job, pleaded guilty last month to a misdemeanor embezzlement charge. As part of that plea, there was an agreement between Miller and prosecutors that he not serve any jail time.

After Aquilina imposed the jail term during Wednesday's hearing, Miller's attorney, Mike Nichols, said he was withdrawing his guilty plea.

The case now is expected to go to trial. No date has been set.

In an interview, Nichols said that if Miller was convicted by a jury, Aquilina most likely would not be able to sentence him to more than 14 days in jail. Under case law, he said, Aquilina can't impose a longer jail term just because a defendant chooses to go to trial.

"What could the judge hear at trial that would be any worse than what she heard (today) from" the parent-teacher group members, he said.

Miller, who lives in Holt, also is facing possible felony charges as a repeat drunken driver. He was arrested for drunken driving "several days after his plea," Ingham County Assistant Prosecutor Jonathan Roth said in court. Miller has three previous drunken driving convictions, Roth said.

At his plea hearing last month, Miller said he had turned over his treasurer duties to his wife, Kimberly. He said he knew she used the money for a mortgage payment on their East Lansing home. His wife and children now live in Texas. Miller, as a condition of his bond, cannot leave the state.

In 2013, Kimberly Miller pleaded no contest in 54B District Court to a larceny charge, records show. She was placed on probation and ordered to pay more than $2,800 in fines and costs.

(Mike Frisch)

August 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 12, 2016

Attorney Placed On Involuntary Inactive States For Unconscionable Bankruptcy Fees

An attorney who had charged "unconscionable" fees in a bankruptcy matter has been ordered on involuntary inactive status by the California State Bar Court Review Department

In 2005, a federal bankruptcy court found that Mansfield Collins collected $258,000 in fees to which he was not entitled and charged an additional $226,213.77, also in unwarranted fees. Arising from this judgment, in 2010, Collins stipulated in the State Bar Court to culpability for charging and collecting unconscionable fees and voluntarily agreed to a one-year stayed suspension and a three-year probation with conditions, including a three-month actual suspension and that he pay his former clients $258,000 in restitution plus interest accruing from 2005. Further, he agreed to pay restitution on a schedule: $100,000 by February 2012; another $100,000 by February 2013; and the remaining principal plus interest by January 2014.

 Collins received a modification to delay the first $100,000 payment deadline to February 2013. By that date, he had paid only $2,500, and by August 2013, he had made only five payments totaling $22,500 in restitution. Thus, the Office of Probation of the State Bar (Probation) moved to revoke his probation. Finding that Collins had violated his probation, a hearing judge granted the motion and recommended discipline, including that the stay of execution of the one-year suspension be lifted and that Collins should be actually suspended for six months and until he makes restitution.

 Collins seeks review and argues that the hearing judge abused his discretion and committed numerous errors of law. In particular, he contends the judge should have required Probation to prove that he had the ability to pay restitution. He requests that we reverse the judge’s order and conduct an independent review of his ability to pay restitution. Probation generally supports the judge’s recommendation and does not seek review, but asks us to impose the full one-year actual suspension that was earlier stayed.

We have independently reviewed the record (Cal. Rules of Court, rule 9.12), and conclude that the hearing judge properly granted the motion to revoke. We agree with Probation, however, that Collins should be actually suspended for the longest period available, one year. Collins agreed to timely pay the six-figure restitution that the bankruptcy court found due. Yet he failed to adhere to his agreement—all the while remaining eligible to practice law but for a three-month period in 2011. These facts warrant a full revocation and cause us to exercise our discretion and order Collins placed on involuntary inactive status effective three days after service of this opinion.

Also, in light of facts occurring after the evidentiary hearing, we find that Collins should not be required to make any further payment in restitution because he has since settled the debt owing to his former clients.

(Mike Frisch)

 

August 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 11, 2016

Not Reinstated But Revoked

A false omission in a bar application led the New York Appellate Division for the Third Judicial Department to revoke an attorney's license.

He had been suspended reciprocally based on a Missouri suspension and sought reinstatement

as the result of information revealed in the course of its investigation of respondent's most recent reinstatement application, petitioner filed a single charge of professional misconduct alleging that respondent violated the requirement that he demonstrate candor in the bar admission process as set forth in Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.1 (a). Specifically, in the May 18, 2016 petition of charges, petitioner alleged that respondent failed to disclose a felony criminal conviction in the application for admission which respondent had submitted to this Court in connection with his 2000 admission to the bar (see Judiciary Law § 90 [2]). In his answer, respondent admitted the charge. There being no factual issues, the parties were then invited to submit any factors in mitigation and aggravation...

we find respondent guilty of the charged misconduct and conclude that his admission to practice should be revoked.

In an unrelated matter, the court denied admission to an applicant.

Applicant, who resides in Florida, also passed the Florida and New Jersey bar exams after law school graduation. In October 2015, the Florida Board of Bar Examiners recommended that applicant be denied admission in Florida and that he be disqualified from reapplying for two years. Applicant's application for admission in New Jersey is pending. Applicant has a criminal record, including minor thefts and driving under the influence, and many traffic violations. He also exhibited a lack of candor on his law school applications with respect to his background, and the Florida Board enumerated multiple examples of false or misleading answers on the applications. He admitted that his lack of candor was caused in part by his concern that disclosure would cause denial of his law school applications.

 

(Mike Frisch)

August 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)