Saturday, December 3, 2016

Attorney Reprimanded For Incompetent Representation Of Miss Universe Contestant

A reprimand has been imposed by New Jersey Supreme Court for conduct described in a letter opinion of the Disciplinary Review Board

Specifically, on June 3, 2012, Sheena Monnin was eliminated as a contestant after the first round of competition in the Miss Universe pageant. Thereafter, but before the final round of competition had commenced, another contestant told Monnin that she had seen a document listing the top five contestants. Indeed, the top five contestants were those whose names had appeared on that list. Monnin immediately resigned her position as Miss Pennsylvania USA and proceeded to claim, through Facebook posts and an appearance on The Today Show, that the Miss Universe pageant was "rigged."

On June 25, 2012, the Miss Universe Organization (MUO) filed an arbitration demand, seeking $10 million in compensatory damages from Monnin for breach of contract, among other claims. The contract was an agreement between Monnin and MUO. Monnin’s copy of the document was not signed by either party. On June 27, 2012, Monnin retained respondent to represent her for the purpose of asserting a claim against MUO on her behalf, in addition to defending its claim against her. Because Monnin’s copy of the contract was unsigned, respondent advised her that she was not bound by any agreement to arbitrate, that MUO could not compel her to appear at an arbitration, and, therefore, that she was not obligated either to reply to any communications from the arbitrator or to attend any arbitration hearing.

Between late June and November 5, 2012, respondent repeatedly notified MUO and the arbitrator that he represented Monnin, that she was not subject to the contract, and that she would not participate in any arbitration. In late August, 2012, he instructed the arbitrator to cease direct contact with Monnin, as she was represented by counsel.

Thereafter, respondent failed to comply with discovery requests in the arbitration matter; failed to submit Monnin’s share of the arbitration fee, despite receiving a bill; and failed to inform Monnin of a scheduled November 5, 2012 arbitration hearing. Monnin believed that MUO had withdrawn its arbitration demand. Respondent informed the arbitrator that Monnin would not appear at the hearing.

Neither respondent nor Monnin appeared for the November 5, 2012 arbitration hearing. On December 13, 2012, respondent received a copy of the final arbitration award, granting MUO $5 million in damages. On December 17, MUO filed, in the United States District Court for the Southern District of New York, a petition to confirm and convert the arbitration award into a judgment. At that point, Monnin retained new counsel, who filed a cross-motion to vacate the award due to respondent’s ineffective assistance of counsel, which was based on respondent’s own supporting declaration.

On July 2, 2013, the federal district court denied the motion to vacate and confirmed the $5 million arbitration award...

On October 31, 2013, Monnin, through counsel, filed a malpractice action against respondent and the firm, in the Superior Court of New Jersey. On July ii, 2014, the parties entered into a settlement agreement and mutual release. Although its terms were confidential, the OAE and respondent stipulated that the agreement "subsequently was used to fully satisfy" the $5 million judgment entered against Monnin in the federal court action. On August 25, 2014, Monnin’s malpractice complaint against respondent and the firm was dismissed with prejudice. Monnin was satisfied with the result.

The federal court decision is linked here.

Mitigation

The stipulation identifies several mitigating factors: respondent’s unblemished disciplinary record in more than twenty years of practice; his cooperation with the OAE’s investigation; his father’s "life changing medical diagnosis" (which required respondent to devote a tremendous amount of time and attention to winding down his father’s business, assisting with the preparation of his father’s Social Security Disability application, and staving off his father’s creditors in order to avoid bankruptcy); respondent’s devotion to a substantial number of pro bono clients; his extensive participation in community organizations; and his receipt of multiple awards in recognition of his service to others. Further, the stipulation notes that respondent’s father’s illness took an emotional toll on respondent and that the negative publicity generated by the Monnin case adversely affected his ability to generate business.

Finally, the authors of twenty-six character letters, written by both colleagues and clients, attested to respondent’s selfless generosity of both spirit and time to clients and community, as well as his skill as a lawyer.

Law360 had a story on the malpractice case brought against the attorney.

The Guardian reported on the underlying lawsuit involving a plaintiff who has recently been in the news for unrelated reasons. (Mike Frisch)

December 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 2, 2016

Attorney Who Concocted Kidnap Story Disbarred

 A remarkable disbarment from Colorado involved a criminal conviction of an attorney who twice falsely claimed to have been abducted.

The Denver Channel reported on the conviction.

The incidents took place while [attorney] Keil was handling civil matters for the victim family in a high profile Douglas County murder-for-hire case. Chris Wells is serving life in prison in that case for hiring several people to kill his estranged wife, Amara Wells, and his brother-in-law, Bob Rafferty. Keil indicated that Wells was behind her kidnapping.

Westworld (Michael Roberts)  reported on the murder for hire case as did Jim Fisher True Crime.

From the summary on the web page of the Presiding Disciplinary Judge

Keil volunteered to provide legal representation to family friends reeling from a tragic and terrifying double homicide for hire. Soon, however, her communication waned, and she only intermittently responded to her clients’ questions. When she did respond, she assured her clients—falsely—that she was actively advancing their interests in court. Her clients eventually terminated the representation, around the same time that the statute of limitations expired on their claim. During this representation, Keil violated [numerous provisions of the Rules of Professional Conduct].

Later, in an apparent effort to excuse her earlier inaction, Keil twice staged her own abduction and made up spurious stories of threats and menacing. She was convicted of one felony count of attempting to influence a public servant and one misdemeanor count of false reporting to authorities. Through this misconduct, Keil violated Colo. RPC 8.4(b) (it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

The attorney had a close connection to the victims' families

In the early morning of February 23, 2011, a man named Josiah Sher broke into the Raffertys’ home and brutally murdered Amara Wells and Robert Rafferty. Sher spared the life of Amara Wells’s young daughter, but only after she had witnessed scenes of gruesome violence leading to the deaths of her mother and uncle. Ms. Rafferty, who had been away in Minneapolis on a business trip, was awakened by a call from a friend who told her about news reports of the double homicide.

Immediate family members, including [the widowed] Ms. Rafferty, Amara Wells’s sister Melissa Brown, and her husband Jack (“Ed”) Brown, were taken to the Douglas County Sheriff’s Department shortly after the murders. From there, they were put into protective custody but later released to a family friend’s home, where other longtime family friends—including Respondent—soon gathered. Respondent and her husband, John, had known the Raffertys since 1996; John Keil and Robert Rafferty had been in the same line of business, the couples had children of similar ages, and the families had spent a lot of time vacationing together.

Ms. Rafferty introduced Respondent to the Browns, and Respondent offered to act as the family’s spokesperson by fielding media requests for statements. Respondent also volunteered to liaise with the coroner’s office as Ms. Brown’s advocate to secure the release of Amara Wells’s body. And Respondent mentioned that she could assist the family in handling estate issues. The Browns immediately agreed that Respondent should open an estate for Amara Wells, petition for Mr. Brown’s appointment as personal representative, and represent Mr. Brown by filing estate taxes and handling incoming creditor claims. Respondent also said she would represent Ms. Rafferty, who was personal representative of Mr. Rafferty’s estate. Because of pressing issues with the coroner and ongoing media attention, Ms. Rafferty and the Browns verbally agreed to Respondent’s representation. Mr. Brown assumed that Respondent undertook this representation as a free service to a friend in need, and no formal agreement concerning payment was ever drafted or signed.

The services were performed poorly and the representation was terminated.

But what happened next was singular

On March 24, 2014, John Keil called 9-1-1 to alert the authorities that Respondent, his wife, had been attacked. She was due to pick him up at the airport that day but had never arrived, nor had she appeared for work. Mr. Keil called Respondent’s employees and asked them to check in on her. According to Detective Mike Lynch, of the Westminster police department, her colleagues went to her house, forced their way in, and found her lying inside the trunk of her vehicle, which was parked inside her garage.

In the immediate wake of her discovery, Respondent was uncooperative with authorities, Detective Lynch said. At first she declined to speak with the police, she refused to provide details about the incident, and she rejected offers of medical treatment. Her husband prevailed upon her to cooperate with the investigators, and she eventually agreed to provide a statement at the police station, though she continued to refuse medical treatment or testing. At the station, Respondent reported that she had been awakened, dragged out of bed, tied up, knocked out and possibly drugged, and then stuffed inside the trunk of her car. She claimed to have been in the trunk for fifteen hours.

Soon after Respondent was discovered, [the client] Ms. Rafferty received a telephone call from Mr. Keil, who told Ms. Rafferty that Respondent had been attacked and questioned whether the assault was somehow related to Respondent’s efforts to recover money from Wilson. Ms. Rafferty informed Mr. Keil that Respondent had been terminated from the representation several months prior. Even so, she said, learning of the attack made her and the Browns feel “hysterical” and “very fearful for our lives.” As she explained, they had been “living on pins and needles for years, so . . . to find out that there’d been harm done to someone that was close to us and had been representing us, yes . . . I was very frightened.” Ms. Brown echoed the same sentiment: “for the years before that we’d lived in a state of panic, . . . always questioning whether or not we’re safe, and for this to have happened to her, that it could be tied back to us, like all our worst nightmares came true.” At the family’s behest, the DOC launched an internal investigation into Chris Wells’s communications to determine whether there was a link between the attack and the case.

Detective Lynch testified that several “red flags . . . jumped out” in his investigation of the alleged attack: many details Respondent provided were inconsistent and some evidence did not match up with her story. For example, when Respondent was found in the trunk, her hands were not tied, nor were there ligature marks on her wrists. Perhaps even more noteworthy, Detective Lynch said, he found a green button on the inside of the trunk that was designed to remain illuminated for thirty minutes after the trunk was closed. Pressing the button would have released the latch and opened the trunk, yet Respondent never did so, casting doubt on whether she had actually involuntarily been placed in the trunk. Ultimately, the DOC internal probe failed to turn up any communication with Chris Wells about the attack, and the authorities concluded they could neither prove nor disprove Respondent’s allegations. They closed out the case a few weeks later.

The attorney then claimed she had been kidnapped in a separate incident

Detective Lynch characterized Respondent’s story as “bizarre,” “incredible to believe,” and riddled with “numerous inconsistencies.” Nevertheless, he said, he tried to keep an open mind in order to investigate her claims more thoroughly. He and his colleagues, however, ultimately concluded that Respondent had “lied” about both the March and the May incidents.

Criminal charges were pressed against the attorney

On January 7, 2016, following a week-long trial, a jury found her guilty of attempting to influence a public servant and of one count of false reporting to authorities based on the May 2014 incident.

The harm to the client was palpable and severe

By far the greatest harm that Respondent caused in this tragedy, however, is the serious emotional trauma to which she subjected Ms. Rafferty and the Browns. Rafferty explained that after losing her husband and sister-in-law in a murder for hire, she has “never truly [felt] safe.” Respondent, once Ms. Rafferty’s good friend, senselessly revictimized the family by abandoning them in a legal matter that Ms. Rafferty believed was essential to preserving their safety. And Respondent callously preyed upon their worst fears by fabricating stories of threats and abduction, apparently to justify her own inaction in their legal case. Finally, Respondent’s two sham disappearances needlessly squandered hundreds of hours of police, paramedic, and other emergency personnel time—resources that could have been directed elsewhere. She wasted thousands of dollars in taxpayers’ money, which paid for overtime hours spent working her bogus cases. This abuse of law enforcement services damaged the reputation of the legal profession and its members.

In sum

Our disbarment decision is based on the analytical framework set out above. But we wish to add that it is also anchored by our moral outrage: that an advocate would effectively desert her frightened clients, leading to the extinguishment of their claim; that a lawyer would time and again deceive those clients about the course of their matter, despite their offers to find other counsel; that a friend and former attorney would exploit her clients’ fears by casting her neglect as a noble effort to protect them; that an officer of the court would attempt to explain away her inaction by twice faking her own kidnapping, thereby diverting emergency personnel and wasting law enforcement resources. We cannot conceive of any sanction other than disbarment that adequately answers this conduct. Accordingly, we conclude that Respondent should be disbarred.

ABA Journal had this earlier report. (Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Domestic Violence

A sanction imposed for domestic violence is summarized on the web page of the Colorado Presiding Disciplinary Judge

 A hearing board suspended Philip M. Falco III (attorney registration number 27930) from the practice of law for nine months, with the requirement that he petition for reinstatement, ifat all, under C.R.C.P. 251.29(c). In such a proceeding, Falco will bear the burden of proving by clear and convincing evidence that he has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law. Falco’s suspension took effect August 11, 2016.

In 2015, Falco pleaded guilty to attempted third-degree assault. In the underlying incident, the hearing board found, Falco struck his then-wife with a closed fist several times while pinning her on a bed. He then pulled her off the bed. Falco’s wife, who was then twenty weeks pregnant, suffered a concussion. The couple’s three children were present in the home at the time of the assault. The hearing board found that Falco then made false statements about the incident to the sheriff’s deputy who responded to a 9-1-1 call placed by Falco’s wife.

Falco’s violent conduct violated Colo. RPC 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.

An attached full opinion tells the story

 According to Ms. Falco, on December 1, 2013, she and Respondent argued in their garage while getting out Christmas decorations. Respondent made belittling comments, including saying she was “just a piece of trash,” and accused her of having an affair with someone she met in her emergency medical technician school. She grew frightened that he would hit her. She went into the house, got her phone, and entered “9-1-1,” planning not to place the call unless Respondent struck her. While she was in the kitchen, near where her children were watching a movie, Respondent grabbed the phone from her hand and hit her on her face. She managed to get her phone, then pushed past him and ran to the bedroom. She tried to call 9-1-1 and screamed out her address, but the call did not go through. Although she had tried to lock the door, Respondent kicked the door in, pushed her onto the bed, and punched her in the face multiple times with a closed fist while he straddled her stomach. She was able to push and kick him off her, but he grabbed her foot and pulled her off the bed. When she was able to stand up, she reached for her phone to call the police, but Respondent prevented her from doing so, while threatening to destroy her life and take her children.

 Ms. Falco testified—and Respondent admits—that the couple’s children then walked into the bedroom. According to Ms. Falco, she rushed her two youngest children into the car—all three of them shoeless—and drove away from the house. After driving around the block in tears for about half an hour, she decided to call 9-1-1 from a pay phone. The Adams County police met her, and she signed a consent form allowing them to search her home. She had bruises on her face, her head hurt, she saw double, and she felt sick and dizzy. She did not seek medical treatment at the time, however, because she wanted to ensure that her five-year-old son at home was safe. The next day, Ms. Falco visited St. Anthony’s North Hospital, where she was diagnosed with a concussion, as confirmed by hospital records.

Sanction

Respondent committed a violent assault on his pregnant wife while his children were present in the family home. That conduct represented a “raw assault on the basic individual right to physical security that lies at the core of civilized society.” Moreover, the assault ran counter to Respondent’s role as a lawyer, since “[t]he essence of the conduct of a lawyer is to facilitate the resolution of conflicts without recourse to violence, for law is the alternative to violence.” In this disciplinary case, Respondent has not been fully candid, nor has he given the Hearing Board any confidence that his misconduct will not recur. The appropriate sanction for Respondent’s conduct is a nine-month served suspension with the requirement that Respondent formally petition for reinstatement.

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Running On Empty

Reinstatement has been granted to a Colorado attorney who was suspended for advising clients with conflicting interests in a marijuana business.

The principle issue was whether a single phone call violated his suspension

In our view, Respondent’s short-lived conversation with Schelwat, which was thrust upon him while he was distracted, should not meaningfully detract from the bigger picture: throughout the period of his suspension, Respondent made consistent efforts to abide by his suspension order and the disciplinary rules by winding down his practice, notifying his remaining client, and steering well clear of the practice of law. Further, his representations during this brief call occasioned no real harm, and protection of the public is not jeopardized, in our estimation, by Respondent’s reinstatement. Accordingly, we do not find that this technical violation of Respondent’s suspension order should prevent him from being reinstated.

The story

Respondent testified that he began the process of winding down his law practice as early as June 2013 in anticipation of his suspension, such that by December 2015 he maintained only one active case—that of Patterson—and had arranged with Kristi Smith, one of his former associates, to hand off that pending matter. He pivoted away from law, screened his calls heavily, and launched a new bespoke expediting business with his brother-in-law to deliver quickly "unique shipments for cargo of value," making more money doing so in one year than he had in any other while practicing law. During one such delivery run, while refueling at a Nevada truck stop, Respondent fielded a telephone call of three or four minutes. It is this telephone call alone that forms the basis for the People’s objection to Respondent’s reinstatement.

The call concerned a dispute brewing at Wee Katie’s, a restaurant controlled by Galleit, Inc. Wee Katie’s operated in a Denver LoHi building owned by Veronica Carmosino through Roni’s Enterprises, Inc. In 2012, Carmosino hired Respondent to draft, among other documents, a lease for Wee Katie’s. He did so, then terminated the representation. From time to time, however, Carmosino called Respondent to give him updates. The last such call came in mid-February 2016, when Carmosino recounted that the doors to the restaurant had been chained shut by the Department of Revenue because Wee Katie’s had failed to pay sales taxes. Respondent explained to Carmosino that he had been suspended from the practice of law, that he could not help her, and that Smith was available to represent her if she needed legal assistance. Carmosino declined Respondent’s offer to put her in touch with Smith because, at that point, Carmosino "didn’t think [she] needed an attorney" and "wanted to do this on [her] own." Carmosino testified that soon thereafter, the Department of Revenue removed its locks, which she immediately replaced with her own locks; she was concerned, she said, that her tenants might vacate the building quickly and remove certain fixtures that belonged to her.

Attorney Schelwat had contacted Smith, who gave her petitioner's phone number

Early that same afternoon, Respondent was traveling eastbound in Nevada on one of his delivery runs, exiting the freeway to fuel up. A call came in from a unknown number on his personal phone; the phone identified the caller as "Krist S." Respondent testified that he believed it was Kristi Smith. He would not have answered it, he said, but for the fact that he did not recognize the number, and he wondered if Smith had called him to discuss some important matter. But it was not Smith on the line; it was Schelwat.

 Schelwat and Respondent have very different memories of the call. According to Schelwat, Respondent answered the phone, sounding "disheveled"; she introduced herself, told him that Carmosino had put chains on the doors to Wee Katie’s, and insisted that the chains be removed. Respondent asked, "Is there anything else?," and Schelwat reiterated her demand that Carmosino remove the chains from the door, after which they could work out any other issues based on provisions of the lease.11 Because Schelwat heard a lot of background noise on the phone, she asked if he needed a copy of the lease. He responded that he had a copy but that his client "wasn’t going to do anything" about the chains. In that case, Schelwat stated, Galleit would have to file suit to gain access. He answered, "that will just delay everything, but that’s fine with my client." Schelwat then inquired whether he was representing Carmosino and whether he would accept service for her, and he said "yes." At some point during the exchange, Schelwat had searched the internet for Respondent’s name; one of the first results was Respondent’s order of suspension, which she glanced at.  Surprised by what she saw, she inquired again as to whether he was representing Carmosino, and he replied in the affirmative. Schelwat then mentioned the suspension order, and Respondent backtracked, saying, "Well, I guess I’ll have to refer this out."

 Respondent, on the other hand, says that Schelwat adopted a rushed, aggressive attitude from the outset. According to Respondent, she introduced herself as an attorney for Galleit, but the connection was bad, he was distracted, and he did not have the context to understand who she was or why she was calling. She mentioned chains on doors and a violation of a lease. After some back and forth, he heard her ask, "Aren’t you familiar with what’s going on at Wee Katie’s?" The tone of her question, he thought, implied that he was "stupid." He started to reply that Roni’s Enterprises was a former client and that he had drafted the lease for Wee Katie’s, but Schelwat interrupted him and demanded that Carmosino get rid of the chains. Respondent was irritated that she cut him off in a "rude" way, and he resolved to hang up. He said, "Is there anything else?" She repeated the demand and asked whether the chains would be removed, and he answered, "I don’t know anything about this." Schelwat then asked, "Are you representing Carmosino?," and Respondent replied, "Look, you called me. I don’t know what you’re talking about." Schelwat retorted, "I have it right here that you are a suspended attorney." He acknowledged that was true, and he volunteered to pass on her contact information to Smith.

We are called upon to decide which of these two very dissimilar versions of this exchange more accurately reflects what actually occurred. We have carefully weighed each witness’s testimony, motive, state of mind, demeanor, and manner while on the stand, coupled with what little corroborative evidence we have available. We do not doubt that Respondent was distracted and unprepared for the conversation, the telephone connection was imperfect, and Schelwat’s tone was confrontational. But we are compelled, after examining the evidence, to adopt Schelwat’s account as credible. Schelwat initiated the call while she was in her office and focused on the conversation, and thus better positioned to remember what happened. Schelwat was less emotionally involved in a personal sense, and thus better able to objectively recall the exchange. Schelwat had no motive to present the facts in a manner other than in the way she remembered them, and thus was less likely to mold her story to suit a particular narrative. And Schelwat’s testimony is substantiated by the email that she sent to Carmosino almost immediately after her exchange with Respondent, and thus given more credence in our assessment.

 The majority

Respondent identified Carmosino as his client and made representations on her behalf during a brief and unanticipated telephone call, thereby engaging in the practice of law and violating his order of suspension. But those fleeting, unplanned representations, while foolish, did not cause any harm, and thus we conclude that Respondent should be reinstated to the practice of law.

A hearing board member concurred and dissented

Given the incontrovertible conclusion that Respondent failed to meet his burden of proof by clear and convincing evidence that he did not violate his suspension order, and considering his past disciplinary history, I must respectfully dissent from the majority opinion lifting Respondent’s suspension order and reinstating him to the practice of law

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Car Trouble

A recent case summary from the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Devra K. Carmichael (attorney registration number 21321), effective August 1, 2016. Under the terms of the stipulation, Carmichael must attend ethics school.

On September 26, 2011, Carmichael agreed to assist a client to regain possession of his vehicle from a body shop. The body shop had not repaired the vehicle yet refused to release it without further payment. In early May 2012, Carmichael suggested that her client ask an acquaintance to take pictures of the vehicle at the body shop without seeking the body shop’s permission. If caught, the acquaintance should say he was lost, Carmichael suggested. Carmichael did not file the complaint in replevin on behalf of her client until May 10, 2013. She failed to include the summons with the complaint and received a notice of dismissal for failure to prosecute on May 13, 2013. Carmichael then filed the summons and the case moved forward.

Carmichael later learned that the defendants had somehow obtained title to her client’s vehicle, so she moved to prevent the defendants from removing the vehicle from Colorado. Her motion was successful, and she next filed a motion for default judgment in September 2012. On January 13, 2014, the court entered default judgment against the defendants. Carmichael was ordered to file a writ of assistance forthwith. Carmichael’s client called the court on January 28, 2014, and learned that the writ had not been filed. A month later, Carmichael told her client that she had filed the writ and gave him a copy. In April 2014, she contacted the court to see if the writ had been received, and she discovered that it had not. She mailed a second order to the court, which the court signed nunc pro tunc to January 13, 2014. Her client gained possession of his vehicle in June 2014.

Carmichael’s conduct violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client) and Colo. RPC 8.4(a) (a lawyer shall not knowingly induce another to violate the Rules of Professional Conduct).

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unequal Misrepresentations

The Kansas Supreme Court has ordered a stayed 90-day suspension with probationary conditions for an attorney's misrepresentation and improper advice in representing clients who were being evicted from their mobile home.

The respondent engaged in conduct that involved dishonesty when he provided false information to the court in the motion to set aside default judgment in the forcible detainer case that C.K. had timely tendered full payment of the back rent and in the conversion petition that D.L. did not have access to her property. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).

The respondent engaged in conduct that adversely reflects on his fitness to practice law when he advised D.L. to enter South Meridian mobile home park on May 18, 2011, without authorization. As a result, a public disturbance resulted, necessitating the presence of law enforcement for a period of 4 hours. The hearing panel concludes that the respondent violated KRPC 8.4(g).

Sanction

The court appreciates respondent's counsel's point that not all misrepresentations to courts are created equal. Some turn out to be more consequential than others. That said, the exact degree of harm cannot be gauged with 100 percent accuracy when a misrepresentation is made. And each is, in itself, a serious matter that undercuts the overall reliability of our justice system. For this reason, the court believes that a 90-day period of suspension is an appropriate sanction in this case; however, imposition of the suspension will be stayed, pending respondent's successful completion of an additional 6 months of probation under all of the remaining applicable terms set out by the hearing panel.

A minority of the court would impose a lesser sanction

Video of oral argument linked here (Mike Frisch) 

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Two Plus Two Equals Indefinite Suspension

The full Massachusetts Supreme Judicial Court affirmed the sanction imposed by a single justice for crimes and other misdeeds

Had the respondent's criminal misconduct been the only basis for discipline (although, as set forth below, it was not), we would be satisfied that a two-year suspension would be comparable to other cases involving similar criminal convictions...

Although the respondent's criminal convictions concerned kickbacks and unearned fees in some of the same transactions described in count one of the petition, the misconduct that is the subject of the remaining counts was different and warrants additional discipline. The hearing committee's findings, adopted by the board, establish that the respondent violated multiple rules of professional conduct, directly or through an associate attorney, by purchasing homes from financially distressed homeowners, leasing the homes back to the homeowners under oppressive terms, and intentionally misrepresenting the terms of the transactions on HUD-1 forms. The board additionally found that the respondent prepared or caused to be prepared fraudulent documents four separate times, and caused an associate attorney to make false certifications three times. On account of this misconduct, the board recommended a two-year suspension in addition to the two-year suspension for the criminal misconduct.

 Thus

Not only did the respondent use his professional training and experience to take advantage of vulnerable homeowners in precarious financial positions, but he also violated Federal law, concealed the nature of the transactions from his lenders and his firm's clients out of a self-interested motive, and engaged in repeated conflicts of interest.definite suspension is the appropriate sanction...The order of the single justice indefinitely suspending the respondent from the practice of law is affirmed. The respondent may apply for reinstatement nineteen months before he would otherwise be entitled to do so.

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Mortgage Scam Caused Great Public Harm

A California Hearing Department has ordered an attorney be placed on involuntary inactive enrollment 

 This matter involves a nationwide loan modification scheme that garnered respondent and his nonattorney partner approximately $9.7 million in a little over two years and which, ultimately, resulted in the Consumer Protection Financial Bureau (CFPB) obtaining a temporary restraining order (TRO) freezing respondent’s assets and having a receiver appointed to operate the practice. Despite the TRO, it appears that respondent has relocated and continues to solicit clients at an unknown physical location.

After reviewing and considering this matter, the court finds that respondent’s conduct poses a substantial threat of harm to his clients or the public and respondent is ordered involuntarily enrolled as an inactive member of the State Bar pursuant to section 6007...

Evidence of great harm

 The evidence amply supports the conclusion that respondent’s misconduct has caused substantial harm to his clients and the public. Respondent’s scheme preyed on distressed homeowners, promising relief from unaffordable mortgages and foreclosures. He acted for his personal benefit, reaping thousands of dollars, with little concern for his clients’ welfare or the adverse consequences of his actions. Homeowners lost their homes and their hopes because of respondent’s selfish, predatory tactics.

Respondent’s conduct also harmed the public by wasting scarce court resources, filing inappropriate cases and inadequately handling others.

Finally, respondent’s misconduct has also harmed the legal profession. Respondent’s unwillingness or inability to follow the laws of this state has tarnished the reputation of other attorneys and the legal community as a whole.

Accordingly, the court finds that the State Bar has established, by clear and convincing evidence, that respondent has caused substantial harm to his clients and the public.

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 1, 2016

A Gamble With Trust Funds

The December 2016 California Bar Journal has its usual array of bar discipline summaries

WILLIAM ANDRAI ACOSTA [#207377], 44, of Glendora, was suspended from the practice of law for 60 days and ordered to take the MPRE. He was also placed on two years’ probation and faces a two-year suspension if he fails to comply with the terms of his disciplinary probation. The order took effect July 23, 2016.

A State Bar Court judge found Acosta culpable of failing to maintain client funds in his trust account and misappropriating client funds which resulted from his gambling hobby. Acosta, who frequently goes to Las Vegas and stays at The Mirage, set up a marker account at the hotel and casino. A marker represents a player’s legal obligation to pay for chips. Although Acosta’s casino account was initially linked to his personal bank accounts, at some point it was deactivated because the bank accounts were no longer valid. Acosta then gave the casino three new bank accounts to link, one of which was his client trust account.

When he gambled at The Mirage in November and December 2013 Acosta obtained $10,000 worth of chips, but did not pay the markers before leaving. Unable to reach him, the casino tried multiple times to have the money deducted from his client trust account but there were insufficient funds. The casino successfully collected the money after Acosta deposited a client’s settlement check into the account. As a result, the amount in his client trust account fell to $1,028.82, which was significantly less than the $5,267 that he was supposed to hold in trust for his client and her medical provider.

Unaware the casino deducted the money, Acosta wrote a $3,000 check to the client from his trust account, which was not paid due to insufficient funds. When he learned what had occurred, he wrote the client a new check, which was paid.

Acosta had no prior record of discipline, presented 20 witnesses who testified to his good character and cooperated with the State Bar.

(Mike Frisch)

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Discipline Scam Alert

The Texas State Bar is warning its members about an email scam

We are writing to inform you that an email scam that uses false notifications of disciplinary actions is targeting members of the State Bar of Texas.

Several members have reported receiving an email claiming a grievance had been filed against them and that they had 10 days to respond. The email invites them to “click here” for more information.

The email is not from the State Bar of Texas or the Office of Chief Disciplinary Counsel. (Neither of these entities sends out disciplinary notices via email.)

Attorneys in other states have reported receiving similar email notices purporting to be from their state bars. In those cases, the lawyer was instructed to click on a link to view the complaint, which loaded a malicious software called ransomware that blocks computer access until a sum of money is paid.

If you receive this type of email, delete it immediately.

I have little doubt that we will soon seen bar discipline cases where the defense to a charge of failure to respond to a complaint will be "But I thought it was a scam!" (Mike Frisch)

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

DUI Leads To Automatic Disbarment

Felony drunk driving leads to automatic disbarment while felony wire fraud does not, according to a decision of the New York Appellate Division for the Third Judicial Department

As relevant herein, "[a]n attorney convicted of a felony in [a foreign jurisdiction that is] essentially similar to a New York felony is automatically disbarred" (Matter of Park, 95 AD3d 1648, 1648 [2012]; see Judiciary Law § 90 [4] [a], [e]). While we do not find that respondent's federal felony convictions of wire fraud and conspiracy to commit wire fraud meet this standard under the circumstances herein (see Matter of Mueller, 129 AD3d 1293, 1294 [2015]), we are persuaded that respondent's 2011 felony DWI conviction in Connecticut is essentially similar to the New York felony of DWI in violation of Vehicle and Traffic Law § 1192 (2) and (3) and § 1193 (1) (c). Similar to those New York statutes, the elements of Connecticut General Statutes § 14- 227a include the requirements of operating a motor vehicle while under the influence of alcohol with a blood alcohol content of .08% or more by weight of alcohol. Moreover, Connecticut and New York law both elevate such a conviction to a felony where there has been a previous DWI conviction within the past 10 years.

(Mike Frisch)

 

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Maine Second Chance

A stayed two-year suspension with numerous conditions has been imposed by the Maine Supreme Judicial Court based on a proposed consent in a matter in which a judge had expressed competence concerns

 In late 2014, Judge Maria Woodman filed a grievance complaint concerning her and other jurists' observations of Attorney Carey's repeated incompetence in court matters. Both in the complaint and later during the testimonial evidence presented at the proceeding before the Board's Grievance Commission under M. Bar R. 13(e), four jurists recounted their experiences, observations, and concerns about Attorney Carey's lack of core competence.

Throughout the complaint investigation and the subsequent disciplinary proceeding, Attorney Carey has been adamant that the jurists' accounts were inaccurate and that they had colluded in a conspiracy against him. Although he may continue to disagree with the jurists' testimony, Attorney Carey wishes to move forward in his legal career. He has determined to set aside his disagreements and accept that multiple jurists have found his skills to be inadequate. Attorney Carey agrees that the testimony of the four jurists at the preliminary hearing before the Grievance Commission comprises sufficient evidence for this Court to find that he has demonstrated a lack of core competence in the handling of his clients' respective litigation matters. Based upon that admission, the Court finds that Attorney Carey has at times failed to follow applicable rules, procedures and directives issued by the trial courts referenced above.

The court noted prior discipline for similar problems.

 The Court urges Attorney Carey to use the two-year period of suspended suspension with monitoring to seek guidance and accept direction from his monitoring colleagues on issues of office management, client and court communication, and litigation strategy, and to discuss with MAP and his monitors how to appropriately engage with the Maine bench and bar so that he may effectively represent his clients

There are a number of conditions. (Mike Frisch)

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 30, 2016

Taxman

Tax offenses drew a six-month suspension by the New York Appellate Division for the First Judicial Department.

The material facts are undisputed. Respondent, who is 49 years old and focuses his practice on Family Court matters, testified that, inter alia, he has always had a fascination with issues related to money and taxation. In or about 2002, after extensive research into nonconventional theories regarding taxation and the monetary system, he decided not to file tax returns or pay taxes based on, among other things, what he now realizes was the misguided belief that monies he earned in connection with the practice of law were not subject to taxation. Between 2002 and 2011, respondent wrote more than 100 letters to New York State and federal tax officials, and also telephoned them, to advise them that their files pertaining to him purportedly contained incorrect Individual Master Files (IMF) codes which affected his tax liability; and that, in his view, he was not obligated to file returns or pay taxes until the issue was addressed.

Respondent admitted that he had spoken with tax attorneys over the years, none of whom agreed with his position. While respondent filed an administrative claim against the IRS for alleged unlawful collection activities, which he understood to be the precursor to a federal lawsuit, he never actually pursued a lawsuit because New York City did not honor an IRS levy on payments to him.

In 2011, shortly after the birth of his son, respondent was approached by New York State tax agents and told that if he did not resolve his outstanding tax liability civilly, it would become a criminal matter. Respondent stated that the birth of his son caused him to reassess his views regarding his tax obligations, and he advised the tax agents, through counsel, that he would file his returns and pay his taxes but he first wanted an agreement that he would not be criminally prosecuted. Such an agreement was not forthcoming, and, as noted, respondent was prosecuted and ultimately pled guilty to a misdemeanor.

Between February and April 2012, prior to his conviction, respondent filed his New York State tax returns for the tax years 2005 through 2010; and, in November 2013, he entered into an installment payment plan with New York State tax authorities pursuant to which he pays $200 per month toward his outstanding tax liability for the tax years 2004 through 2006, and 2011, which exceeds $60,000. Between 2012 and 2013 he filed his federal tax returns for the tax years 2002 through 2012. His federal tax liability is now in excess of $300,000, including interest and estimated penalties. Respondent is awaiting a payment agreement with the IRS and, in the interim, he has been paying the IRS $500 per month.

Respondent admitted that during the 10-year period at issue he saved approximately $200,000 as a result of not paying taxes. He averred that this money was to provide for the future, not to finance a lavish lifestyle, as evinced by, among other things, the fact that he has lived in the same studio apartment for 18 years, has never owned a car, and has not really traveled.

Respondent stated that he has paid approximately $100,000, half of his savings, to satisfy his tax liability to New York State; and his remaining savings were used for legal expenses in connection with the criminal and disciplinary proceedings, a Family Court proceeding involving his now three-year-old son, and to financially support his son. As a result of his tax conviction, respondent was removed from the Family Court, Queens County 18b Assigned Counsel Plan from which he had derived a significant part of his income and which provided him with work that he loved. Respondent expressed remorse for his conduct and averred that his actions were not motivated by greed or self- interest, and that someone of his education level and professional background would not have engaged in such self- destructive behavior absent some sort of mental stress or emotional affliction. Respondent stated that there was an extensive history of depression on his father's side, and while he saw a therapist and psychiatrist for approximately one year, he stopped doing so because his condition stabilized.

Respondent stated that, in retrospect, he was antisocial and was so obsessed with his views on taxation that he failed to recognize his self-destructive behavior. In addition, he explained that he was in close proximity to the September 11, 2001 terrorist attacks on the World Trade Center and, as a result, his depression returned but he did not seek professional help. Instead, he dealt with his feelings by immersing himself in his law practice and his study of money and taxation.

Respondent recently started seeing a psychiatrist; however, he did not offer any expert testimony or report evincing that he was diagnosed with a mental illness which contributed to his protracted failure to meet his tax obligations.

Sanction

It is obvious that the issue of sanctions for tax related misconduct is very fact dependent. The facts in this case appear most similar to those in Matter of Racht, and thus, under all the circumstances presented herein, including the mitigating factors presented by respondent, we find that the deterrent effect of a six-month suspension as recommended by the Referee is an appropriate penalty.

Accordingly, the Committee's petition is granted to the extent of confirming the Hearing Panel's findings of fact and conclusions of law, but is denied as to the recommendation as to sanction, and respondent is suspended from the practice of law for a period of six months as recommended by the Referee, and until further order of this Court.

Any application for reinstatement should include documentary proof that respondent has entered into agreements with the IRS and New York State tax authorities for payment of any outstanding tax debts.

(Mike Frisch)

November 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred For Insurance Fraud

The Rhode Island Supreme Court has disbarred a convicted attorney

The respondent was a member of the bar of this state. On November 17, 2011 he was charged in a sixty-six count indictment filed in the United States District Court for the District of Rhode Island which alleged that the respondent had engaged in an investment scheme to defraud insurance carriers by securing the identities of terminally ill people by making direct material misrepresentations and omissions of fact to them, and then purchasing variable annuities and corporate bonds with death-benefit features that utilized these ill patients as the measuring life. On November 19, 2012, four days into what was anticipated to be a three-month trial the respondent entered a plea of guilty to one felony count of wire fraud, in violation of 18 U.S.C. § 1343, and one felony count of conspiracy, in violation of 18 U.S.C. § 371. The government dismissed the remaining counts of the indictment.

 On February 28, 2013, subsequent to the entry of his guilty plea but prior to the imposition of sentence, the respondent filed a motion to vacate his plea. On August 1, 2013, after a four-day hearing, the District Court denied the motion. On December 16, 2013, the respondent was sentenced to a term of imprisonment of seventy-two months on the charge of  wire fraud, and sixty months, to be served concurrently, on the charge of conspiracy. He is presently serving that sentence. Restitution has been ordered in the amount of $46,000,000. The respondent filed an appeal of the denial of his motion to vacate his plea with the United States Court of Appeals for the First Circuit. On January 16, 2014, Disciplinary Counsel filed a petition with this court in accordance with the provisions of Article III, Rule 12 of the Supreme Court Rules of Disciplinary Procedure, requesting that the respondent be suspended from the practice of law pending the outcome of his appeal. The respondent notified this Court through counsel that he had no objection to the petition. Accordingly, on February 20, 2014 this Court entered an order suspending the respondent from the practice of law pending the outcome of his appeal and until further order of the Court.

On December 7, 2015, the United States Court of Appeals issued its opinion affirming the District Court’s denial of the respondent’s motion to vacate his plea. The respondent thereafter filed a petition for writ of certiorari with the Supreme Court of the United States seeking review of the decision of the First Circuit. That petition was denied on May 23, 2016.

The respondent now has exhausted all avenues of appeal, and Disciplinary Counsel’s motion to disbar may therefore be granted.

The New York Times reported on the crimes 

Joseph Caramadre contends he was a philanthropist and a clever lawyer, offering $2,000 payments to people who were dying. The United States attorney contends that he was a scam artist, preying on the very ill and getting rich by defrauding insurance companies.

In the face of overwhelming evidence, Mr. Caramadre pleaded guilty last year, and on Monday, a federal judge here sent him to prison for six years.

Mr. Caramadre, an estate planner and a prominent member of the state’s Roman Catholic establishment, said he was merely exploiting a gap in insurance companies’ writing of the rules governing their products, and doing nothing illegal. Instead, he said, he was giving thousands of dollars to struggling families. His largess is well known; the court received dozens of letters praising Mr. Caramadre, including one from the bishop of Providence and one from a former Boston mayor...

During the hearing, Mr. Caramadre apologized to the families of the terminally ill patients for the distress his actions caused, but stopped short of admitting he had actually cheated any of them.

“I cannot tell you I am sorry that these terminally ill people got defrauded,” said Mr. Caramadre, who explained he would be lying if he did so. “I just wanted to share wealth.”

(Mike Frisch)

November 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ethics Of Marijuana Advice In Pennsylvania

From the web page of the Pennsylvania Disciplinary Board

In May we reported on the proposed “marijuana law” amendment to Rule 1.2 of the Rules of Professional Conduct, dealing with whether a lawyer can counsel a client on conduct that is legal under some law and illegal under other law. The issue arose with the adoption of law allowing medical marijuana in Pennsylvania and other states, while the substance remains illegal under Federal law.

On October 26, 2016, in a rulemaking published at 46 Pa.B. 7164 (November 12, 2016), the Supreme Court of Pennsylvania adopted an amendment to Rule 1.2, which addresses the subject. The rule adopted adds a new subsection (e) to Rule 1.2, which states:

A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct.

The rule adopted differs slightly from the proposed rule change published in May. The proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

The revised rule took effect November 25, 2016.

(Mike Frisch)

November 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 29, 2016

A Mother's Love; A Court's Tolerance

A mother's advocacy on behalf of her son has resulted in a public reprimand by the Wisconsin Supreme Court.

This court is familiar with the underlying facts giving rise to this case. It stems from Attorney Bach's efforts to advocate on behalf of her adult son, A.B., who is disabled. A.B. has a rare medical condition that renders him a danger to himself and others. Since approximately 2006, when A.B. turned 18, Attorney Bach has engaged in extensive litigation regarding his placement, level and quality of care, payment for that care, and guardianship. 

She was already deeply involved in litigation when admitted to practice in 2011. She initiated a series of cases in state and federal court.

In a June 2013 order, the Wisconsin Court of Appeals warned Attorney Bach that "[b]eing [A.B.'s] mother does not endow her with the right to sidestep, manipulate or disregard the rules by which all litigants must play." Margaret B. v. County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶7 (Wis. Ct. App. Jun. 12, 2013)...

On May 22, 2014, the Seventh Circuit Court of Appeals affirmed Judge Joseph's decision, ruling that Attorney Bach had "abused the judicial process by filing multiple frivolous suits, many of which, like this one, could not succeed unless the court were prepared to ignore the outcome of her earlier suits." The court also noted that Attorney Bach frequently named judges and courts as defendants, despite their absolute immunity. The court ordered Attorney Bach to show cause within 14 days why the court should not impose sanctions for a frivolous appeal.

 On June 12, 2014, the Seventh Circuit Court of Appeals deemed Attorney Bach's appeal frivolous and fined her $2,000.

The Office of Lawyer Regulation brought charges of frivolous litigation that were rejected

The referee expressed frustration with the OLR's amended complaint, noting that "OLR wants me to 'infer' Attorney Bach's knowledge (of frivolousness, unwarranted claims, and intent to harass adverse parties)." However, while the OLR's pre-hearing brief argues that "she knew the claims she was advancing were unwarranted" there is no such factual allegation in the amended complaint. Merely alleging that Attorney Bach filed the various actions is not sufficient. The OLR failed to allege further that she, subjectively, knew that these actions were filed in a frivolous manner, were without merit, that Attorney Bach was trying to advance an unwarranted claim, or that she sought to harass or maliciously injure another. The referee states: "The amended complaint refers to many cases and appeals and it is not my job to guess at what particular conduct OLR claims violates a particular Supreme Court rule."

... the referee did not agree with the OLR's assessment of Attorney Bach's intent. The referee characterized Attorney Bach as a new and very inexperienced lawyer with overzealous goals, who plunged herself, unprepared, into filing federal court actions and subsequent appeals. Her filings were not competent; indeed they are often frustratingly inept, but the referee correctly notes that the OLR did not allege that she violated ethical rules requiring competence. However misguided her filings were, the referee concluded that the evidence did not support a finding that Attorney Bach filed the various actions with the intent of being frivolous or to harass the defendants. Accordingly, the referee concluded that the OLR failed to prove by clear, satisfactory, and convincing evidence that Attorney Bach committed the misconduct alleged in counts one through three.

However, the attorney had knowingly disobeyed an injunction

The referee remained mindful that Attorney Bach's misconduct all relates to her efforts on behalf of her child. Indeed, the referee deemed Attorney Bach's "actions as the biological and loving mother" a mitigating factor in assessing appropriate discipline.

The referee did not condone Attorney Bach's conduct. Nor do we. Attorney Bach's deliberate violation of court orders is serious professional misconduct that requires a public reprimand. Indeed, we take this opportunity to caution Attorney Bach. Although, we affirm the referee's conclusion that the OLR failed to prove she violated SCR 20:3.1(a)(1), (2), and (3) as alleged in counts one, two, and three of the amended complaint, this conclusion reflects a failure in the pleadings, rather than an exoneration of her conduct. We are very familiar with Attorney Bach's filings. We recognize that her fervent advocacy stems from concern for her child. However, we must caution Attorney Bach that this court's tolerance for her persistent refusal to respect and follow rules of court procedure is wearing thin.

The attorney was ordered to pay costs of nearly $15,000. (Mike Frisch)

November 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 28, 2016

Ethics And F-Bombs

A stayed two-year suspension with conditions was imposed by the North Carolina Disciplinary Hearing Commission on an attorney for foul language in representing Occupy Asheville protesters including herself

After Magistrate Fisher reported to Foster that there was not an outstanding warrant for Foster, Foster exclaimed, "[w]hat the fuck is going on around here?"

Magistrate Fisher warned Foster that her vulgarity was the second time she had used inappropriate language in the magistrate's courtroom area, and that Magistrate Fisher was "going to have to ask [Foster] to leave."

Foster did not immediately exit the magistrate's courtroom area, but repeated the vulgar expletive three or four more times, including "[t]his is fucking ridiculous."

The magistrate held the attorney in contempt and the feeling apparently was mutual

Foster then walked toward the exit door and Magistrate Fisher instructed her to stop, but Foster exited the magistrate's courtroom area, stating as she left, "[w]hat the fuck is going on?" and "[t]his is a bunch of bullshit.

 She was held for about 48 hours on the contempt and on release

In a social media posting about her contempt conviction prior to her de novo appeal in Buncombe County Superior Court, Foster wrote, "[Funny thing is that, pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I didn't even do in this case ... innocent I tell you!"

In another social media posting about her contempt conviction prior to her de novo appeal in Buncombe County Superior Court, Foster also admitted to cursing out of "extreme frustration" and "generally raising hell" in the magistrate's courtroom area before Magistrate Fisher.

The contempt was reversed by the North Carolina Court of Appeals but the court noted

We are, however, very troubled by defendant's use of profanity in the magistrate's office while conducting court-related business despite warnings by the magistrate about the inappropriate language. Such disrespect, particularly by an attorney familiar with proper courtroom practices, is wholly inappropriate. In addition, we are disturbed by defendant's Facebook posts following the incident which evidence her failure to acknowledge the wrongfulness of her conduct - - indeed the posts indicate a very cavalier attitude.

Defendant went so far as to create a Facebook post regarding the incident that stated: "Funny thing is that pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I did not even do in this case. Innocent, I tell you, struck by lightning tn this arbitrary system we call American justice." Given defendant is a lawyer, practicing in our State's courts, we find defendant's attitude. offensive and incomprehensible.

Under the circumstances, the "F bomb" violated two rules

By using profanity before Magistrate Fisher in the magistrate's courtroom area, and by continuing to do so after being warned by Magistrate Fisher about her inappropriate language, Defendant engaged in undignified or discourteous conduct that was degrading to a tribunal in violation of Rule 3.5(a)(4)(B), and also engaged in conduct that was prejudicial to the administration of justice in violation of Rule 8A( d). 

The opinion notes that the attorney is an honors graduate of the University of North Carolina at Chapel Hill Law School. She is admitted in three states with no prior discipline. 

She had been administratively suspended in 2013 and had raised PTSB in the reinstatement.

Also

In correspondence with the State Bar's opposing counsel, Foster accused opposing counsel of prosecuting this action against her for political reasons and because of her cannabis activism, of suborning perjury by presenting the testimony of Magistrate Fisher, and threatened further legal action against both opposing counsel and Magistrate Fisher.

At the hearing, Foster acknowledged that she had no supporting evidence that this action was politically motivated against her, cited her PTSD as the reason for her accusations, and apologized to opposing counsel...

Foster used at least one vulgarity in her e-mail communications with the State Bar's opposing counsel, and at the hearing apologized to opposing counsel for doing so.

We had previously posted the outcome of the matter but without the details. (Mike Frisch)

November 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, November 26, 2016

Private Admonition For Self-Reported Sex With Client

A recent private admonition from Delaware

DISCIPLINARY ACTION PRIVATE ADMONITION.

ODC File No. 112894-B

Effective Date: September 12, 2016

A Delaware lawyer was privately admonished for violation of Rule 1.8(j) of the Delaware Lawyers’ Rules of Professional Conduct (engaging in sexual relations with a client). The lawyer agreed to represent a client in a civil matter. Approximately nine months after the representation began, the lawyer and client resumed an intimate personal relationship from twenty years prior and had consensual sexual relations. The sexual relationship and lawyer-client relationship continued for two months until the lawyer terminated the representation and self-reported to ODC.

The Delaware rule on sex with a client

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Apparently there is no "old flame" exception to the Rule.  (Mike Frisch)

November 26, 2016 in Bar Discipline & Process | Permalink | Comments (1)

A Key Component Of Transparency

When disciplinary counsel determines to file ethics charges against an attorney, the complaint (and response, if any) is a public document in most jurisdictions.

A transparent disciplinary system makes these documents public.

A consumer -friendly system makes charges readily available on line.

Bravo Michigan Attorney Grievance Commission, which does provide such access.

The web page gives one a good sense of the level of activity of the Michigan disciplinary system, By my count, thirty four charging documents have been filed in 2016. 

The most recently-posted complaint alleges that two attorneys from Paw Paw and a former judge engaged in discourteous and disrespectful treatment of opposing counsel in civil litigation.

The two accused attorneys attended a chambers conference in person. Opposing counsel was on the telephone.

The conversation was at least partially recorded and later transcribed.

The Court: Alright, thank you, What a fucking dickhead.

Attorney Stewart: Now you understand why his son is such a fucking dick.

WWMT.com had reported on related (and dismissed) civil litigation in federal court.

A series of  video reports  (also here and here) from WWMT 3 TV also raise the issue whether the "post-d***head" substantive discussion of the case (recited in the charges) were inadvertently overheard ex parte communications.

The 2013 reports note the judge's recusal from the case and later retirement.

I do not read the charges to make the allegation of improper ex parte communication.

High on my D.C. Bar wish list is for the online posting of public charges. 

Jacob Gershman in  The Wall Street Journal reported in 2015 on efforts to open up the New York disciplinary system.

Responding to the importunings for needed reform by Professor Stephen Gillers

In nearly 40 states, according to Mr. Gillers, disciplinary charges against attorneys are automatically made public upon a finding of probable cause. That’s when there’s reasonable grounds to believe that an attorney has committed an ethical violation.

Commission members who objected to more disclosure said it would risk damaging the reputation of an attorney who is accused of wrongdoing but later exonerated. The risk of harm — potentially leading to, in the words of the commission’s report, “career-damaging publicity which, in the era of social media, could never be fully retracted — outweighed whatever extra confidence and trust in the disciplinary system that more openness would bring, the critics said, according to the report.

The report didn’t say how often attorneys who face complaints are exonerated. “We were told that there were very few,” Mr. Gillers told Law Blog on Tuesday.

Declining to respond to the professor’s criticisms, New York court system spokesman David Bookstaver told Law Blog the court system’s leadership appreciates Mr. Gillers’s input. “He brought to light an issue that certainly hasn’t been addressed over the years, and the chief judge thought it was important to address his concerns,” Mr. Bookstaver said.

Law360 (Andrew Strickler) also reported on New York's hostility to transparency and notes that the commission's report to perpetuate secret hearings is entitled Fostering Efficiency And Transparency.  (Mike Frisch)

November 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Illinois Supremes Sanctions Attorneys

The Illinois Supreme Court has ordered discipline in a number of cases and has summarized the actions on the ARDC web page.

Among the actions

Mr. Cahnman, who was licensed in 1978, was suspended for ninety days. While serving as an alderman for the City of Springfield, he represented a client in cases in which Springfield police officers arrested or issued citations to the client. He also participated in four closed City Council meetings during which the City Council discussed a police records destruction lawsuit and a civil rights lawsuit that his client had filed against the City through separate counsel. During these meetings, Mr. Cahnman was appearing on his client’s behalf in the very same traffic case that gave rise to the civil rights lawsuit. He did not disclose his representation to the City Council. The suspension is effective on December 9, 2016.

(Mike Frisch)

November 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)