Friday, April 28, 2017

Not Flagrantly Dishonest Enough To Get Disbarred in D.C.

A District of Columbia Hearing Committee proposes a three-year suspension with fitness - not disbarment - for a truly horrific course of unethical conduct in failing to prosecute a medical malpractice/wrongful death case.

The case was in South Carolina. The D.C. attorney has never been admitted there.

He got into the case after it had been filed and substantial discovery had been completed. His standard boilerplate retainer agreement failed to consider or acknowledge the lien of former counsel.

He thereafter failed to diligently handle the matter leading to dismissal of the case. He failed to advise the clients, who learned two things when they complained to the South Carolina Bar.

First, he was not a South Carolina attorney. Second, the case had been dismissed.

When the D.C. Bar came calling, he lied and tried to place the blame on local counsel (who had conveniently died)

Many of the findings and conclusions in this case depend, in part, on whether one believes Respondent or his clients. Respondent testified that he told his clients certain information. The clients testified that he did not. Respondent’s version of the facts is too frequently contradicted by his own documents (letters and pleadings) or discredited by his own unexplained failure to memorialize significant conversations. See, e.g., FF 60, 64, 66, 74 (Respondent’s letters to Probate Court and MetLife Insurance contradicting his testimony); FF 31 (failing to document purported disclosure to clients of non-licensure in South Carolina). Respondent’s attempt to lay blame for each of the charges on the deceased Mr. Hinton is unconvincing. Mr. Hinton is obviously not able to defend his conduct, but the record speaks for itself. Mr. Hinton’s law office did not have any record of a fee-sharing agreement with Respondent or any documents to suggest a significant role in Respondent’s legal representation of Mr. Reid and his parents. FF 69. Respondent’s letter to the Probate Court unequivocally stated that “The Bynum Firm” continued its representation of the medical malpractice action as late as March of 2014. FF 64. When initially questioned by the Office of Disciplinary Counsel in April 2016, Respondent claimed that he was the lead attorney representing Mr. Reid and his parents. FF 88. As he became aware of the seriousness of the charges and had to defend himself in the disciplinary process, however, Respondent then shifted blame to Mr. Hinton. The Committee has no difficulty concluding that numerous statements and representations by Respondent during his hearing testimony were, in fact, intentionally false.

The committee finds a host of violations that started with the retainer

Respondent’s copies of two retainer agreements (one for Mr. Reid and a second for Mr. Reid’s parents) had internally conflicting provisions about the fees Respondent would charge (hourly and contingent). The retainer agreement also incorrectly stated he would “file” a medical malpractice action as to the scope of representation, when Respondent knew that actions already were filed and had been litigated for more than two years before his involvement. FF 34, 36. The retainer agreements essentially contain boilerplate text that Respondent used verbatim without considering the actual circumstances of his clients’ situations. FF 34. Disciplinary Counsel also faults Respondent for not mentioning the representation on the insurance matter in the retainer agreement for Mr. Reid. FF 73. Although the agreements themselves were in writing and forwarded to the clients “within a reasonable time after commencing the representation,” the problem is that Respondent’s draft of the “scope of representation” (1) relates to legal representation that was already completed by Mr. Smith, (2) fails to refer to the representation of the Estate in Probate Court, and (3) does not mention the insurance matter. Accordingly, the scope of the representation was not communicated to either Mr. Reid or his parents, and Respondent did not fulfill the requirements of S.C. Rule 1.5(b).

And lack of diligence, communication, conflicts, dishonesty

We...have no trouble finding that Respondent violated S.C. Rule 8.4(d) based on the following: (1) Respondent’s admission to Disciplinary Counsel’s investigator that he was the lead attorney, and then his subsequent position at the hearing that he was not the lead attorney; (2) the recorded false content of his letters to the Probate Court; and (3) his too convenient, unverifiable claim that the now deceased Mr. Hinton understood that he was in charge of the case. All these factors point to one conclusion—Respondent intentionally misrepresented key facts throughout. When Defendants’ counsel moved to dismiss for failure to prosecute, Mr. Hinton alerted Respondent and sent him the motion. FF 61. We believe this conduct is consistent with Mr. Hinton viewing Respondent as the lead attorney. When Mr. Reid and his parents wanted to know the status of the medical malpractice actions, they attempted to reach Respondent, not Mr. Hinton. FF 56-58. Both Mr. Reid’s and Frances Reid’s conduct was consistent with an honestly-held belief that Respondent was a licensed South Carolina attorney experienced in medical malpractice actions who was their only attorney.

But, according to the committee, the dishonesty was insufficiently "flagrant" to warrant disbarment.

On these sad facts - and lying in the bar proceedings - fair minds on the Board on Professional Responsibility and Court of Appeals might disagree as to that sanction conclusion.

the case is In re Raleigh Bynum. (Mike Frisch) 

April 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Ties That Don't Bind

The Iowa Supreme Court

In this disciplinary case, attorney Theodore Sporer appeals the findings and recommendations of the Iowa Supreme Court Grievance Commission recommending his law license be suspended for a period of six months. The alleged ethical violations occurred in the aftermath of a divorce decree. In a contempt proceeding arising from the divorce decree, the district court found Sporer falsely testified that he rejected the terms of a settlement letter sent by the opposing lawyer by immediately writing handwritten notes on the letter and sending it back to the opposing lawyer on the same day. The district court also found Sporer falsely and frivolously asserted that the secretary’s signature on the bottom of a settlement letter bound the client to the terms of a settlement agreement.

...we affirm the findings of the grievance commission. We also affirm most of the grievance commission’s conclusions. We suspend Sporer’s license to practice law for six months.

The attorney had one prior reprimand in 31 years of practice.

At issue was a document in divorce litigation that opposing counsel's secretary (Young) had signed in his office

 But the district court concluded that the September 24 settlement letter with Sporer’s handwritten note was “a fraud.” The court cited the tone, substance, and circumstances of the note. The court emphasized that it would be absurd for Linda to give up her retirement benefit of more than $100,000, plus an unknown value of a share of a defined benefit pension, in exchange for $3000. Further, the court noted that it would be extremely unlikely that Linda would surrender the retirement award in settlement of the contempt action against Gary.

Further, the district court reasoned that there was no plausible motivation for Linda to accept “such a ridiculous agreement.” According to the court, there was no prospect of the district court’s award of retirement benefits to be eliminated on appeal. The only argument  presented by Gary was a fault-based argument unlikely to result in any adjustment of the amount of the retirement account award.

The court

We begin by observing that Sporer’s assertion that it was “unfathomable” to him that Young was anything other than a full agent is objectively absurd. Every lawyer knows that clerical staff provide essential support to a legal practice and make significant contributions to the lawyers and clients for whom they perform administrative services. Yet no lawyer, let alone a highly experienced lawyer, reasonably believes that clerical staff performing routine tasks such as retrieval of documents have authority, actual or apparent, to bind clients of the firm. We are not surprised that neither Sporer nor we have found legal authority supporting the proposition that legal secretaries generally have authority to bind clients of the attorneys for whom they work... 

On this subjective issue, we give respectful consideration to the findings of Judge Staskal in the contempt hearing and the commission in this proceeding. The commission and Judge Staskal did not believe Sporer actually believed his extraordinary assertion that secretaries have authority to bind clients to settlement agreements. We too simply find it hard to accept the notion that an experienced lawyer would believe a secretary dispatched on a routine mission of picking up legal documents had the authority to bind a client to the terms of a settlement agreement, particularly one in which a party was required to surrender a substantial legal claim. We thus conclude that the Board proved by a convincing preponderance of the evidence that Sporer knowingly made a false statement of fact or law to the tribunal in violation of rule 32:3.3(a)(1)...

There are a number of features in the record that make Sporer’s assertions with respect to the annotation of the September 24 settlement letter difficult to believe. As Sporer himself concedes, lawyers do not ordinarily respond to settlement letters by scribbling handwritten annotations and returning them to the sending party by multiple means in nonemergency situations. Sporer responds by claiming he was “in a hurry” and angry at Duffy upon receipt of the September 24 settlement letter and was trying to make a point by responding in handwriting with exclamation marks...

Sporer defends his conduct in part by suggesting that it would make no sense for him to testify falsely about an inconsequential document. But the marked-up version of the September 24 settlement letter and its claimed delivery to Duffy were not inconsequential. If Sporer had sent the marked-up September 24 settlement letter to Duffy on September 27—well before Linda cashed the settlement check on October 10—the case for accord and satisfaction or ratification would have been enhanced. The last communication on the settlement would not have been from Duffy but from Sporer. Sporer would thus have a better shot at establishing accord and satisfaction or ratification because he could argue that Duffy and Linda knew that Gary still insisted that the payment of the $27,000 would be made only with a full release of all claims, including the award of retirement assets and benefits in the divorce decree.

In light of all the above, we thus find that the Board has proved by a clear and convincing preponderance of the evidence that the September 24 settlement letter with the Sporer notations was not generated on September 27 and was not provided to Duffy on that date. False statements to a tribunal, of course, may be orally made to the court.

(Mike Frisch)

April 28, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 27, 2017

The Dogs Of Saskatoon: A Case Of Mistaken Identity?

The Law Society of Saskatchewan found no misconduct in a matter where the accused attorney ("Member") allegedly gave false testimony in a "dangerous dog" proceeding.

This is the latest in the ongoing legal saga of Hachi-Ko and Bella, two Akita dogs owned by JK, a lawyer in Saskatoon, Saskatchewan.

The events of what transpired in an attack involving one of the aforementioned dogs has been the subject of:

(a)        A dangerous dog hearing;

(b)        An appeal from that dangerous dog hearing;

(c)        A small claims trial; and

(d)      An appeal from that small claims trial.

The story

On March 18, 2012, the Member and another person were walking the two aforementioned Akita dogs.  While passing near the Mendal Art Gallery in Saskatoon, the dogs walked past two other dogs (shelties) being walked by SJ.  Hachi-Ko is alleged to have attacked one of SJ’s dogs, that later died of its injuries;

 The Member was injured attempting to separate the dogs;

 Hachi-Ko was prosecuted as being a dangerous dog, partially as a result of this attack;

Shortly after the incident, the Member provided a written statement which set out her recollection of what occurred to JK and JK provided the same to bylaw enforcement officials on or about April 4, 2012;

 In the written statement, the Member identified the attacking dog as being Hachi-Ko.

The Member later equivocated on the identity of the attacking dog

Hachi-Ko and Bella are almost identical Akita dogs.  Hachi-Ko is a male dog and Bella is female.  They are extremely difficult to distinguish.  Hachi-Ko is slightly bigger then Bella.  They can be distinguished by different colour of collars that they wear, as well as other minor differences that one might be able to ascertain if one knew the dogs relatively well;

Although the Member had identified Hachi-Ko as being the attacking dog in her written statement as well as in her telephone call with KB on February 5, 2013, at trial the Member equivocated and indicated that she could not positively identify which of the two dogs had been the attacking dog;

Ultimately, Hachi-Ko was declared to be a dangerous dog.  Further, the dog’s owner, JK, was successfully pursued in small claims court in relation to the attack.

As to the false testimony allegation

Throughout the investigation process and at the hearing of this matter, the Member’s position has remained consistent.  She indicates that she initially thought the attacking dog was Hachi-Ko.  She assumes that her certainty in this regard was due to the fact that SJ at the time of the attack exclaimed “get him off of her” or words to that effect.  As SJ identified the dog as being male, the Member assumes that, in the heat of the moment, she believed that the description was accurate.  After considering matters for a significant period of time and realizing that some of her recollections regarding the incident were not accurate (including the precise location where the attack occurred), she started to have doubts as to her certainty as to which dog was the attacker.

Key findings

The panel believes it is entirely plausible that the Member became confused as to the identity of the attacking dog given:

(a)        The passage of time;

(b)        The events of the day in question being chaotic; and

(c)        The Member being confused as to other issues related to the incident and reconsidering her previously stated recollections regarding the identity of the attacking dog.

      The panel further notes that the Member’s testimony at this discipline hearing was consistent with her testimony at the dangerous dog hearing of June 7, 2013. 

The Justice of the Peace was certainly at liberty to make the determinations that he did and prefer the evidence of others or the Member’s prior statements, as opposed to her testimony on June 7, 2013.  However, this does not lead to the panel concluding that the Member was attempting to obfuscate or otherwise mislead the Court in the dangerous dog hearing.

The Member has a rather appropriate last name for a person accused of false testimony - de Whytell. (Mike Frisch) 

April 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

An Aggressive Marketing Strategy Gets An Attorney Suspended In Two Places

A reciprocal one-year suspension has been imposed by the New Jersey supreme Court based on an identical Pennsylvania suspension.

From the report of the Disciplinary Review Board

The Joint Petition set forth the factual basis for respondent’s multiple Pennsylvania RPC violations. Specifically respondent agreed that, by letter dated November 10, 2011, he "reach[ed] out" to Dwayne Stevens, an employee with the First Judicial District of Pennsylvania, Curran-Fromhold Correctional Facility, Bail Unit, in an effort to expand his criminal defense practice. The letter requested an opportunity for respondent to speak to Stevens "about the prospect of a mutually beneficial busines~ relationship." Respondent suggested they meet for lunch and, to that end, gave Stevens his phone number.

On December 26, 2011, respondent sent similar letters to eight clerical assistants assigned to the bail unit in pretrial services at the Criminal Justice Center. In addition to proposing the same "mutually beneficial business relationship," respondent explained that he was "trying to find out who posts bail in Philadelphia so that [he] can follow up on [his] end." Further, he acknowledged that, although the requested information might be public, he was hoping they would expend the minimal effort and assist him.

During the week of January 2, 2012, respondent approached Brittany Baggio, a court employee, at the information counter at the Criminal Justice Center in Philadelphia. He asked her to take a stack of his business cards and keep them at the information counter so she could distribute them to anyone looking for a lawyer. He also offered to pay Baggio if she gave a card to a prospective client who eventually retained his services. He suggested she give her name to the client or put her initials on the back of the card so he would know the source of the referral. He said the arrangement was "just between" them. Baggio refused to accept the stack of cards. Nevertheless, he placed the stack of business cards on the information counter and left. Prior to January i0, 2012, he returned to the information counter and left a stack of his business cards with a different court employee.

Judge John W. Herron, Administrative Judge of the Court of Common Pleas, Trial Division, conduct and, by letter dated respondent explain the improper became aware of respondent’s January 4, 2012, requested solicitation of referrals contained in the letters he sent to court personnel. Further, Judge Herron requested the names of all individuals to who respondent had made offers of compensation in exchange for business.  Respondent was suspended from the court-appointed attorney list for the First Judicial District.

For this conduct, the Joint Petition established that respondent violated Pennsylvania RPC 5.4(a), RPC 7.3(a)I, RPC 8.4(a), RPC 8.4(c) and RPC 8.4(d).

The Joint Petition found, as an aggravating factor, that respondent "had been employed by the First Judicial District as a Juvenile Probation Officer since 2003, [and] was terminated from his employment for failing to return to work." As to the mitigation, the parties agreed that respondent admitted his misconduct and had been practicing law for only three years.

For these violations, the parties agreed that a one-year suspension was the appropriate discipline, followed by a oneyear period of probation (with conditions). According to the OAE’s brief, respondent "properly self-reported his Pennsylvania discipline" to the New Jersey disciplinary authorities.

(Mike Frisch)

April 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 26, 2017

Connecticut Upholds Statute Of Limitations In Bar Discipline Matters

The Connecticut Supreme Court upheld as mandatory the six-year disciplinary statute of limitations for most violations

The issue that we must decide in this case is whether the six year limitation period set forth in Practice Book § 2-32 (a) (2) (E) constitutes a mandatory bar to grievance complaints brought after that six year limitation period has expired or whether the provision, instead, is discretionary. On April 4, 2014, Wesley S. Spears filed a grievance complaint against the defendant, Attorney Joseph Elder, alleging that the defendant had engaged in professional misconduct in 2004. A reviewing committee of the Statewide Grievance Committee conducted a hearing on the grievance complaint and found by clear and convincing evidence that the defendant had violated certain of the Rules of Professional Conduct. The reviewing committee also directed the plaintiff, the Disciplinary Counsel, to bring this presentment action against the defendant. After the plaintiff brought this action in 2015, the defendant filed a motion to dismiss, claiming that the action was barred by § 2-32 (a) (2) (E). The trial court concluded that the time limitation set forth in § 2-32 (a) (2) (E) is not mandatory and denied the motion to dismiss. After a trial to the court, the trial court concluded that the defendant had violated certain of the Rules of Professional Conduct and ordered that the defendant be suspended from the practice of law for a period of one year. The defendant then filed this appeal. We conclude that § 2-32 (a) (2) (E) bars grievance complaints that are not brought within the six year limitation period unless one of the exceptions set forth in § 2-32 (a) (2) (E) (i) or (ii) applies. Because none of these exceptions applies in the present case, we reverse the judgment of the trial court and remand the case to that court with direction to grant the defendant’s motion to dismiss.

The story is a complicated one that led to this finding

The presentment action was tried to the court, which concluded that the defendant had violated rules 4.1 and 8.4 of the Rules of Professional Conduct by misrepresenting himself to a third person in the course of his representation of a client. As a sanction, the trial court ordered that the defendant be suspended from the practice of law for a period of one year.

The court

We conclude that the most reasonable interpretation of this rule is that the judges of the Superior Court intended that the six year period of limitation set forth in Practice Book § 2-32 (a) (2) (E) would bar any untimely complaints unless one of the exceptions set forth in subparagraph (i) or (ii) applies. We can think of no reason why our judges would expressly impose a specific period of limitation and then effectively eviscerate that limitation period by conferring unfettered discretion on the screening panel to ignore it...

Our determination that the time limitation set forth in Practice Book § 2-32 (a) (2) (E) is mandatory finds support in the underlying purpose of disciplinary proceedings, which is ‘‘to preserve public confidence in the system and to protect the public and the court from unfit practitioners.’’ Massameno v. Statewide Grievance Committee, 234 Conn. 539, 554, 663 A.2d 317 (1995). The purpose is not to punish the attorney. E.g., Statewide Grievance Committee v. Shluger, 230 Conn. 668, 675, 646 A.2d 781 (1994). When an attorney has not engaged in any professional misconduct for six years prior to the date that a grievance complaint has been filed, and none of the exceptions set forth in § 2- 32 (a) (2) (E) (i) or (ii) applies, it reasonably may be presumed that the attorney does not pose a continuing danger to the public or the court. Our interpretation is also bolstered by the policies underlying limitation periods generally, ‘‘namely, to prevent the unexpected enforcement of stale claims and the impairment of proof wrought by lost witnesses and/or evidence.’’ Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 309 n.23, 94 A.3d 553 (2014).


In the present case, the sole reason that the trial court gave for denying the defendant’s motion to dismiss was that the six year limitation period set forth in Practice Book § 2-32 (a) (2) (E) is not mandatory. Because we have concluded that the limitation period is mandatory unless one of the exceptions set forth in § 2-32 (a) (2) (E) (i) or (ii) applies, we conclude that the trial court improperly denied the defendant’s motion to dismiss.

The violations not subject to limitations

‘‘Notwithstanding the period of limitation set forth in this subparagraph, an allegation of misconduct that would constitute a violation of Rule 1.15, 8.1 or 8.4 (2) through (6) of the Rules of Professional Conduct may still be considered as long as a written complaint is filed within one year of the discovery of such alleged misconduct.’’ Practice Book § 2-32 (a) (2) (E) (ii) provides: ‘‘Each period of limitation in this subparagraph is tolled during any period in which: (1) the alleged misconduct remains undiscovered due to active concealment; (2) the alleged misconduct would constitute a violation of Rule 1.8 (c) and the conditions precedent of the instrument have not been satisfied;(3)the alleged misconduct is part of a continuing course of misconduct; or (4) the aggrieved party is under the age of majority, insane, or otherwise unable to file a complaint due to mental or physical incapacitation.’’

(Mike Frisch)

April 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)


The District of Columbia Board on Professional Responsibility has recommended an informal admonition as reciprocal discipline for a sanction imposed in California.

There is a problem - the California sanction was disbarment

The Court referred this matter to the Board to recommend whether reciprocal discipline should be imposed on Respondent following his disbarment in California. Disciplinary Counsel argues that reciprocal discipline should be imposed and that Respondent should be disbarred. Respondent argues against the imposition of reciprocal discipline and argues that no discipline is warranted. The Board has reviewed Respondent’s Response to the Court’s Order to Show Cause why reciprocal discipline should not be imposed and Disciplinary Counsel’s Statement Regarding Reciprocal Discipline (“ODC’s Statement”). None of Respondent’s arguments are well-taken, and reciprocal discipline should be imposed.

However, the Board finds on the face of the record that the misconduct established in California warrants substantially different discipline in the District of Columbia. See D.C. Bar R. XI, § 11(e). As discussed below, Respondent was disbarred in California pursuant to a procedural rule that requires disbarment when a respondent is in default, and the facts deemed admitted pursuant to California’s default procedures show that he engaged in some misconduct, but not misconduct that would be sufficient to warrant disbarment in the District of Columbia. Thus, the Board recommends that the Court not impose identical reciprocal discipline, but instead should order Disciplinary Counsel to issue an informal admonition to Respondent.

The misconduct found in California

The Hearing Department found that, based on the facts it deemed admitted, Respondent charged an unconscionable fee of $735,481.25 in the underlying client matter (in violation of California Rule of Professional Conduct 4-200(A)) and willfully violated Business and Professions Code § 6068, subdivision j, by failing to notify the State Bar of a change in his address. See April 21, 2015 Order at 4-5. The Hearing Department found that the State Bar had not proven a violation of Rule 3- 700(D)(2) (failure to return unearned fees) because the record was insufficient to determine what portion of the fees had been earned.

On default

We recognize that the underlying facts here were not decided in California in a contested evidentiary hearing, where the proof offered could have been challenged. Rather, the facts were deemed admitted because Respondent did not participate, was in default, and never moved to have the default set aside. The difference is immaterial to the question of whether reciprocal discipline should be imposed.

The above-quoted statement pays lip service respect to the default but rejects any meaningful sanction

we recommend a sanction based on the fact that Respondent charged an unconscionable fee. As discussed above, [the] Martin [precedent] noted that an informal admonition is the typical sanction for charging an unreasonable fee unaccompanied by other Rule violations. We do not think that the failure to maintain a current address with the California Bar (the other California violation) is sufficient to aggravate the sanction above an informal admonition. We do not lightly find an exception to the rebuttable presumption that an identical reciprocal sanction should be imposed, but are constrained by the current parameters of the consequences for defaulting in a disciplinary proceeding in the District of Columbia. Disbarment imposed in California because of Respondent’s procedural default is substantially different than an informal admonition.

The Martin decision states in pertinent part

Under our case law, Martin‟s unreasonable fee in violation of Rule 1.5 (a), comingling funds in violation of Rules 1.15 (a) and (c), and failure to promptly return client funds in violation of Rule 1.16 (d), standing alone, do not warrant a severe penalty such as a lengthy suspension or disbarment. For example, sanctions for charging an unreasonable fee range “from informal admonition to suspension,” and suspension is usually imposed only in combination with violation of other rules. In re Shaw, 775 A.2d 1123, 1125 n.5 (D.C. 2001) (per curiam). See also In re Roxborough, 675 A.2d 950, 952 (D.C. 1996) (per curiam) (noting attorney received informal admonition for charging an excessive fee).

The unreasonable fee in the cited Shaw case was $800. The Roxborough decision does not specify the amount but notes that full restitution was paid.

When it comes to unconscionable fees, size matters. 

A case involving $800 is a weak precedent for one involving a near three quarter of a million dollars.

So let's see.

The attorney charges an unconscionable fee of nearly 3/4 of a million dollars. He gets disbarred in California under a procedural rule that mandates disbarment for the default. In D.C. , the BPR really does not like defaults so they give him a total free pass. 

This result - a disbarment that magically transforms into a slap on the wrist - is what is really unconscionable.

I'm shocked that no one dissented - a unanimous opinion. I'll be more shocked if the Court of Appeals affirms this result.

The case is In re Timothy Naegele.

The BPR cites a case of mine that is more comparable than they might think. In In re Shieh, the then-BPR asked that a disbarment in California for maintaining frivolous litigation be reduced to a two-year suspension.  

The Board agreed with Bar Counsel that respondent's “disregard for the administration of justice surpasses our disciplinary experience”;  its refusal to recommend disbarment stemmed chiefly from what it considered to be a lack of “unequivocal direction from th[is c]ourt” as to the proper sanction for conduct prejudicial to the administration of justice unaccompanied by other misconduct such as dishonesty or neglect of client affairs.   If our decision that follows does not supply that direction for most, or even many, future disciplinary matters of this kind, it is only because respondent's abuse of the legal system in California may well be in a class by itself.   Not to disbar him would defile that system and bring deserved discredit upon the authority by which he has been allowed to practice law.

Expect that lesson to be taught again. (Mike Frisch)

April 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Mitigation Standards Undermined?

The Wisconsin Supreme Court has sanctioned an attorney for serious misconduct

Attorney Christopher E. Meisel has appealed Referee Hannah Dugan's recommendation that his license to practice law in Wisconsin be suspended for two years for 15 counts of misconduct, which included converting approximately $175,000 from two estates and two guardianship proceedings. Attorney Meisel stipulated to all counts of misconduct but asserts that, rather than a two-year suspension, a five-month suspension of his law license is an adequate sanction.

Upon careful review of this matter, we uphold the referee's findings of fact and conclusions of law. We conclude, however, that rather than a two-year suspension, Attorney Meisel's license to practice law should be suspended for 18 months. We further agree with the referee that Attorney Meisel should be required to pay the full costs of this proceeding, which are $10,831.67 as of February 7, 2017. Although the referee recommended that various conditions be imposed upon Attorney Meisel, we find that the imposition of conditions would be better addressed in a future reinstatement proceeding.

Justice Abrahamson dissented

Attorney Meisel has had more than his share of medical problems and has obviously suffered immensely. I could go along with the referee's recommendation of a two-year suspension. The referee already considered mitigating factors. In In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 562 N.W.2d 137 (1997), this court said that absent a causal connection between an attorney's medical condition and the attorney's professional misconduct, the medical condition may not be considered a factor mitigating either the seriousness of the misconduct or the severity of the discipline to be imposed for it. The per curiam opinion undermines Sosnay. I am unwilling to do that. What is left of Sosnay? Lawyers, the OLR, and referees ought to know what factors are mitigating factors.

(Mike Frisch)


April 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 25, 2017

Shirvell Disbarment Order Filed

The order of a Michigan Tri-County Hearing Panel disbarring former state assistant attorney general Andrew Shirvell has been posted

Based on the evidence presented by the parties at the hearings held in this matter, the hearing panel found that respondent committed the professional misconduct alleged in Counts One and Two of the formal complaint. The panel found that respondent failed to treat all persons involved in the legal process with courtesy and respect and did so because of a protected personal characteristic, in violation of MRPC 6.5; brought a claim in the United States District Court for alleged tortious interference with a business relationship and thereafter continued to assert the issue without a basis for doing that was not frivolous, in violation of MRPC 3.1; filed an appeal of the United States District Court's imposition of Rule 11 Sanctions and thereafter continued to assert the issue without a basis for doing so that was not frivolous, in violation of MRPC 3.1; engaged in conduct that involved dishonesty, fraud, deceit, misrepresentation, or violation of the criminal law, where such conduct reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer, in violation of MRPC 8.4(b); engaged in conduct that exposed the legal profession or the courts to obloquy, contempt, censure, or reproach, in violation of MCR 9.104(2); and engaged in conduct that was contrary to justice, ethics, honesty, or good morals, in violation of MCR 9.104(3). Respondent was also found to have violated MCR 9.104(1) and (4); and MRPC 8.4(a) and (c).

Our prior coverage quoted the misconduct findings

In 2010, Christopher Armstrong was elected president of the student council at the University of Michigan in Ann Arbor. The student council does not make University policy, but it works with, reports to, and advises the University on a range of issues.

Respondent Andrew Shirvell, a 2002 graduate of the University, worked as an Assistant Attorney General for the State of Michigan. In early 2010, respondent learned via an online newspaper report of Armstrong's election and also learned that Armstrong was openly gay. Respondent began posting on his Facebook page about Armstrong, whom he had never met. Among other comments, respondent called Armstrong "dangerous" and a "radical homosexual activist" and a "major-league fanatic who is obsessed with imposing the radical homosexual agenda on the student body." Respondent also set up a Facebook "fan page," entitled "Michigan Alumni and Others Against Chris Armstrong's Radical MSA Agenda," which purported to "expos[e] the real Chris Armstrong." Respondent urged others, via Facebook and email, to join the "pro-family" group in order to "fight[] against Satan's representative." Respondent took to his personal Facebook page to express outrage when Facebook deleted his "fan page" about Armstrong. Respondent wrote: "I will not be SilENCED by the likes of Armstrong. You're going down fruity-pebbles." Respondent's self-proclaimed "outrage" continued from there: "I better not see Chris Armstrong at MY [church] parish in Charlotte -that's all I got to say." Respondent claimed that Armstrong was scared of him and-in commenting on another story involving gay students-"remember[edJ the good old days when 'guys' like this would get their asses kicked at school"

Not content with Facebook posting, respondent then established a blog entitled "Chris Armstrong Watch," which discussed Armstrong's "character and his agenda and other items." The blog purported to be a "watch site," providing "testimony" and "an expose of the REAL Chris Armstrong." The blog was accessible to the public from April 201 0 until September 30, 2010, when respondent removed it from public view. The blog featured a picture of Armstrong's face next to a swastika. The blog called Armstrong "a radical homosexual activist, racist, elitist, & liar" and attributed to Armstrong a "Nazi-like hatred of the First Amendment," explaining, "Much like Nazi Germany's leaders, many of whom were also homosexuals, Armstrong believes that any and all opposition must be suppressed by whatever means necessary." The blog further stated that Armstrong "mocks Christians," and called Armstrong an "anti-Christian bigot." One entry claimed that Armstrong attended an event "whose intent was to encourage underage drinking," and that Armstrong "spent most of this time [after the semester ended] engaging in underage binge-drinking." The blog made repeated references to Armstrong's participation in -and facilitation of -underage drinking. It alleged that Armstrong showed contempt toward law enforcement. Respondent -re-posting online conversations between Armstrong and another student at the University -claimed that these conversations revealed Armstrong's "tendency toward sexual promiscuity," and thus labeled Armstrong "a perverted homosexual exhibitionist." Respondent interpreted another online conversation as demonstrating that Armstrong had previously hosted an "orgy" in his college dormitory, at which "homosexual shenanigans" were rampant. Days after this entry, respondent authored another blog post proclaiming: "Armstrong engages in sexual escapades at 'churches & children's playgrounds.'" Respondent linked Armstrong to "possible involvement" in violent attacks against places of worship in the wake of California's passage of Proposition 8. Respondent alleged that Armstrong used his welcome to freshmen as "a thinly veiled attempt to cause sexually confused, and perhaps some impressionable, 17 -and-18-year-olds to experiment sexually with members of their own gender."

Respondent also reported on an alleged romantic relationship between Armstrong and another student. Respondent claimed that the other student was "not out of the closet," but that Armstrong "basically seduced" the student and quickly became obsessed with him. Explaining that the other student, "[t]hanks in large part to Armstrong's influence ... has indeed morphed into a proponent of the radical homosexual agenda," respondent called Armstrong "a very, very twisted sick individual who is manipulative and cunning in a most devilish way."

Respondent also appeared on television to rant about Armstrong. In September 2010, in an interview on local station WXYZ, respondent said that Armstrong held the presidential position in order "to promote special rights for homosexuals at the cost of ... heterosexual stUdents." Respondent later appeared in front of a national audience with CNN's Anderson Cooper. Standing by his blog and Facebook posts, respondent told Cooper that he had "gotten stuff from third-party sources," and argued that Armstrong was not giving interviews because "he can't defend what's on the blog." When Cooper suggested that respondent was a bigot, respondent retorted, "The real bigot here is Chris Armstrong." Two days later, back before a national audience on Comedy Central's The Daily Show, respondent said that Chris was "acting like a gay Nazi," and that this explained his decision to include a picture of Armstrong next to a swastika on the blog.

The order indicates that he now resides in Florida. (Mike Frisch)

April 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 24, 2017

Weeded Out

An Illinois attorney has filed a motion for consent disbarment on these facts

Movant’s admissions, copies of weed cutting liens and releases and other materials from court files relating to property tax sales, and the testimony of various attorneys who represented the Cook County villages or municipalities involved, would establish the following facts:

A weed cutting lien is a mechanism allowed by statute whereby a municipality may provide for the expense of cutting of weeds where the "owners of real estate refuse to do so or neglect to cut them." 65 ILCS 5/11-20-7. The cost or expense to the municipality is placed "upon the real estate, provided a lien is recorded within 60 days of the cost being incurred." 65 ILCS 5/11-20-7. Under the Illinois property tax code, 35 ILCS 200/22-35, the weed cutting lien is an advancement of municipal funds which allows others to obtain relief from the purchase of property at a tax sale by moving to vacate the tax sale, obtaining the entry of an order that a tax sale was in error, and thereafter, obtain a refund of the monies paid for the property at the tax sale.

Between 2010 and 2015, at the request of a tax sale purchaser, Movant recorded at least 43 weed cutting liens against at least 43 different properties located in 16 different villages or municipalities in southern Cook County. Many of the properties in question had been sold at a tax sale.

Between 2010 - 2015, after the tax sales relating to the properties had taken place, Movant recorded at least 43 releases of weed cutting lien charges against various properties.

At no time did Movant have authority from any of the Cook County municipalities to file the weed cutting liens or releases on their behalf.

Movants conduct in recording the weed cutting liens and releases facilitated the filing of petitions for tax sale in error, the subsequent entry of the order of tax sale in error and the reimbursement of monies paid at the tax sale plus interest accrued and is in violation of the property tax code, 35 ILCS 200 et seq. Movant received fees totaling approximately $20,000 for his role in this fraudulent scheme.

Movant’s conduct was dishonest and he knew it was dishonest because he knew he did not have authority from any of the 16 different south suburban Cook County villages or municipalities to file the weed cutting liens or releases of liens on their behalf.

The attorney concedes that the conduct involved dishonesty.

The motion goes to the Illinois Supreme Court for final action.

While there are many attorneys who have had disciplinary issues related to weed, liens have rarely been involved. (Mike Frisch)

April 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Paralegal License Granted Despite Domestic Violence Conviction

The Tribunal Hearing Division of the Law Society of Upper Canada has granted a paralegal license to an applicant convicted of domestic violence

The applicant was born in India in 1971 and has been living in Canada since 1988.

In 2002, he returned to India where he got married. His wife joined him in Canada in 2003. She had been a dentist in India and was taking steps to qualify to practise in Canada. In 2006 their son was born.

The crimes

On November 3, 2008, the wife reported to the police that she had been assaulted. Ultimately, based on the wife’s statement, the applicant was charged with five counts of assault and one count of assault with a weapon.

The wife gave the following testimony at the criminal trial about the six incidents:

On November 6, 2003, the applicant grabbed her hair and hit her with the other hand.

On January 31, 2004 while in a library, the applicant stomped on her foot when she asked him about a call he had answered.

On January 31, 2004, after the library incident, the applicant attempted to strangle her with a cord (the assault with a weapon charge).

On July 31, 2004, the applicant kicked her several times while they were seated in the car, resulting in a large bruise. He then pulled her out of the car leaving her in torrential rain, returning for her later.

On December 31, 2004, the applicant gave her a black eye that required she go to the hospital.

                On November 3, 2008, (the incident that resulted in charges being laid) the applicant stopped the car they were in and hit her several times before driving off with their son.

The applicant was convicted on all six counts following a trial and on January 14, 2010 was sentenced to one year in jail, with two years of probation to follow.

The applicant maintained his innocence of these offences at trial and continues to maintain his innocence. However, he accepts that he has been convicted and has a criminal record.

Present character

The applicant’s integrity, empathy, and honesty were made clear through his witnesses, his letters of reference, and his own testimony. We accept this evidence and find that these words are an apt description.

Counsel for the Law Society raised the issue of candour. She noted the scant amount of detail in the answers to the questions related to his convictions on the application form and in his further explanatory letter to the investigator from the Law Society.

She also noted that some of his references did not have full details about his criminal offences. He did not talk about his offences while at paralegal college, nor did he inform his placement for his work requirement about the charges (at the time he was hired). He testified that he was not required to disclose that at the time.

Counsel raised a valid point. Lack of a frank, open approach to the investigation can make it appear like there is something to hide. However, the references had knowledge that the applicant had been convicted of criminal offences and were in a position to inquire further if they were uncomfortable providing letters. The two witnesses who appeared at the hearing had read the Agreed Statement of Facts before testifying.

We also took into account the applicant’s shy and reticent nature and understood his desire for privacy.

(Mike Frisch)

April 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

What We Had Here Was a Failure to Communicate And Eight Years To Resolve It

A District of Columbia Hearing Committee has issued a recommendation for discipline.

On June 5, 2013, Disciplinary Counsel filed a Specification of Charges against Respondent, Frederic W. Schwartz, Jr., Esquire. Respondent is charged with violating Rule 1.4(a) of the District of Columbia Rules of Professional Conduct in his representation of Dr. Jun Chen, a Chinese national, who sought employment based permanent residency status in the United States. The Ad Hoc Hearing Committee finds clear and convincing evidence that Respondent violated Rule 1.4(a) and recommends that Respondent receive an informal admonition.

Nothing remarkable about te result except the timeline. 

Note that this matter involved a single count of alleged misconduct.

The Bar Docket No. is 2009-D148. That means that the investigation opened in early to mid 2009. 

So, the case took four years to investigate and nearly four more for the hearing committee  to issue its report.

In other words, business as usual.

Actually, the title is misleading. This matter must still be reviewed by the Board on Professional Responsibility. 

The case is In re Fredric Schwartz and can be found at this link. (Mike Frisch)

April 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Costs Of Discipline

The Indiana Supreme Court has suspended an attorney for his failure to pay the costs of a disciplinary case. reported on recent charges

A Marion attorney is facing a drug possession charge stemming from a summertime traffic stop.

Beau J. White, Marion, is facing charges of possession of cocaine and operating a motor vehicle with a schedule I or II controlled substance in person’s body after he was pulled over by the Indiana State Police officer for a traffic incident in July.

White was driving northbound on Interstate 69 just before 9 p.m. on July 29 near the Marion/Montpelier exit when ISP Officer Jeremy Perez witnessed White’s vehicle drift into the right shoulder, hitting the rumble strips, according to a probable cause affidavit filed by Perez. After White was pulled over, Perez said he said White was sweating heavily, had bloodshot eyes and blood and mucus around his nose and mouth area, though White denied using any narcotic drugs when asked, according to the affidavit.

A search of the vehicle found 0.03 grams of cocaine in a small cellophane wrapper in the vehicle, according to the affidavit. White was then taken to the Grant County Jail and a toxicology test was performed on him.

While at the jail, White was interviewed by Det. Sgt. Josh Zigler of the Grant County Sheriff’s Department. During the interview, White said he was using cocaine bought in Muncie while driving that day on July 29 and was “depressed and downtrodden” about family life and drug use and would sometimes drive to relieve stress, according to a statement filed by Zigler in Grant County Superior Court 3.

Though the incident occurred in July, a warrant for White’s arrest wasn’t issued until Nov. 9, nearly four months later. White was arrested on Nov. 10 and shortly released from jail after paying a $605 bond.

Grant County Prosecutor James Luttrell said the delay in arrest was due to his office waiting on results from the toxicology reports. As of Nov. 17, the results of the toxicology test still haven’t been released.

“It’s not unusual for the toxicology to take this long,” Luttrell said. “We decided we weren’t going to wait longer.”

On Monday Superior Court 3 Judge Warren Haas removed himself as the judge in the case, giving both the plaintiff and defendant seven days to agree on a special judge.

White has worked as a public defender in the past. The Indiana Supreme Court temporarily suspended White’s license for a month in 2012 after the court found him to be guilty of failing to help a client, failing to act promptly, failing to keep the client informed about the status of the case and failing to refund an unearned fee when terminated.

(Mike Frisch)

April 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, April 23, 2017

Failure To Cooperate Interim Suspension

The Indiana Supreme Court has suspended an attorney for failure to respond to a disciplinary investigation.

The attorney's felony conviction for intimidation was affirmed by the Indiana Court of Appeals last year

In May 2014, Smith and his wife, Linda, were separated and sharing custody of their son, C.S. On May 29, 2015, C.S. was at Smith’s house, and when Linda called to check on C.S., Smith assured her that C.S. was fine. Later that night, Smith called Linda, told her he was in the McDonald’s drive-through, and asked if she wanted anything to eat. Linda believed that Smith wanted to bring her food so that he could spend time with her that night.

Linda declined Smith’s offer, and Smith quickly became agitated and angry. He called Linda foul names and told her that she was a bad wife. He then threatened her, stating that he “was going to split [her] chest open with an ax.” Tr. pp. 38, 54. Linda knew that Smith had an ax and feared for her safety.

Linda disconnected the phone call and called 911. She drove to the Mishawaka police station, and while she was there, Smith began to text her. Smith claimed that C.S. was in bed at Linda’s house. He also stated that he was going to dispose of and destroy Linda’s property. Linda told the officers that she believed that Smith was inside her house.

South Bend Police Officers Alex Pishkur and Harvey Mills were dispatched to Linda’s home. When they arrived, Smith was walking from his vehicle into Linda’s house. Smith had parked his vehicle with an attached trailer in the middle of the street blocking the normal flow of traffic. Smith was uncooperative and hostile with the officers.

Linda returned to her home shortly thereafter. She and Smith spoke briefly while Officer Mills stood nearby. At one point, Smith moved closer to Linda and stated, “Now you’ve really done it.” Tr. p. 48. The officer then arrested Smith and placed him in handcuffs.

The officers decided to tow Smith’s vehicle but allowed Linda to look inside for the keys in order to move it from the roadway. Linda observed an ax underneath several items piled on the front passenger seat. Officer Mills also observed the ax...

The State presented sufficient evidence to prove that Smith committed intimidation, and Smith has not established any error in the charging information that would require us to reverse his conviction.

(Mike Frisch)

April 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Rector-Lawyer Disbarred For Child Porn Conviction

The Florida Supreme Court disbarred an attorney convicted on child pornography charges.

Bruce Charles Fehr, P.O. Box 1031, Coleman, disbarred effective immediately, following a Jan. 19 court order. (Admitted to practice: 1995) Fehr pleaded guilty in U.S. District Court for the Southern District of Georgia to one count of child pornography. He was sentenced to three years in federal prison. (Case No. SC16-1173)

George Conger had this story from April 2016 from Anglican Ink

A Diocese of Georgia rector has been sentenced to three years imprisonment and ten years probation for possession of child pornography. On 30 March 2016 an Effingham County Court passed sentence on the Rev. Bruce Fehr, former rector of St Francis of the Islands Episcopal Church on Wilmington Island near Savannah. Acting upon a search warrant, on 23 April 2015 the Southeast Georgia Child Exploitation Task Force raided Behr’s home and seized his computer.  Fehr and his wife, the Rev. Lori Fehr -- the assistant rector at St Francis -- are 2013 graduates of the School of Theology of the University of the South and were ordained to the priesthood in October 2013. Fehr and his wife are former attorneys, he practiced in the field of insurance litigation and she most recently served as an attorney for the Florida Department of Children and Families. Following sentencing the Bishop of Georgia, the Rt. Rev. Scott Benhase released a statement saying: “I am greatly saddened and angered by his crime. All children deserve the right to be free of such exploitation and we all should work to end such horrific practices. The Diocese will now begin our own process addressing the Reverend Fehr’s conduct.” Following the conclusion of the criminal proceedings, the diocese will initiate a Title IV disciplinary investigation and is likely to depose Fehr from the ministry.

(Mike Frisch)

April 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Default On Failure To Appear Charges

An attorney who failed to appear after he had been released on his own recognizance should be disbarred, according to a recent recommendation of the California State Bar Court Review Department

In early 2014, Respondent was arrested on a two-count criminal complaint charging Respondent with a felony violation of Health and Safety Code section 11377, subdivision (a) (possession of a controlled substance) and a misdemeanor violation of Vehicle Code section 12500, subdivision (a) (unlicensed driver) with a special allegation based on two prior violations. The Napa County Superior Court released Respondent from custody upon his own recognizance.

On March 27, 2014, Respondent failed to appear in the Napa County Superior Court for arraignment and a settlement conference. Thereafter, on January 8, 2015, Respondent pleaded nolo contendere to and was convicted of a misdemeanor violation of Penal Code section 1320, subdivision (b) for failing to appear in the Napa County Superior Court on March 27, 2014.

Failing to appear after being released upon one’s own recognizance is a crime that may or may not involve moral turpitude or other misconduct warranting discipline, depending upon the facts and circumstances surrounding the conviction. The court finds that the facts and circumstances surrounding Respondent’s conviction do not involve moral turpitude, but do constitute other misconduct warranting attorney discipline.

The attorney as one instance of prior discipline and, as one might expect, defaulted on the bar's allegation.

The Bar's web page summarizes the prior case

was suspended from the practice of law for 90 days and until he makes full restitution to clients. He was placed on probation for two years. He must pass the MPRE and the State Bar’s Ethics School test. The order took effect Aug. 28, 2016.

Hired to defend a couple from claims by a homeowners association, Olson failed to provide responses to a discovery request and failed to so inform his clients. He failed to inform opposing counsel that his clients were unavailable for a deposition on a certain day. The court imposed a $100 sanction on Olson for failing to file a case management statement. Olson also did not appear at a hearing on the association’s motion to compel deposition, leading to a $1,265 sanctions order.

Olson never informed his clients about the missed deposition or the sanctions. The trial court eventually issued terminating sanctions and entered judgment against Olson’s clients for $60,249.28 plus interest. Olson did not inform his clients.A new attorney requested but failed to obtain the client file from Olson. In aggravation, Olson’s multiple acts of misconduct were coupled with little insight or understanding of his actions. He contended, without substantiation, that opposing counsel forged documents. As an uncharged act in aggravation, Olson testified that he used for personal expenses $150 given him by his clients for jury fees. He caused significant client harm.

In mitigation, he presented good character testimony from two witnesses. His lack of prior discipline merits no consideration, because he was admitted to practice law less than two years before the present misconduct began. The State Bar Court wrote that Olson’s lack of insight “is of great concern. … The fact that he continues to shift the blame to the Superior Court, opposing counsel, and his clients, demonstrates no recognition of his own misconduct [and] gives this court little confidence that he will not commit similar misconduct in the future.”

(Mike Frisch)

April 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, April 22, 2017

Fog Of War

From the web page of the Idaho State Bar

The Professional Conduct Board of the Idaho State Bar has issued a Public Reprimand to Twin Falls lawyer Mark J. Guerry, based on professional misconduct.

The Professional Conduct Board’s Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding in which Mr. Guerry admitted that he violated Idaho Rules of Professional Conduct 8.2(a) [Statements about Judicial and Legal Officials] and 8.4(c) [Conduct Involving Misconduct].

This disciplinary action related to a Facebook posting by Mr. Guerry during his campaign for prosecuting attorney. The Facebook post stated that a volunteer had informed Mr. Guerry that his opponent had gotten out of several DUIs because a district judge had intervened. Since his opponent had never been pulled over for a suspected DUI, and because a district judge never intervened in any alleged DUI on the opponent’s behalf, Mr. Guerry’s post was made with reckless disregard for its truth or falsity and the information in that post was false.

The public reprimand does not limit Mr. Guerry’s eligibility to practice law. reported

Guerry, who once worked for [opposing candidate] Loebs, also used his Facebook page to post personal attacks and thinly veiled threats against Loebs and outright accusations of misconduct against Loebs and District Judge Richard Bevan.

Guerry later admitted he had no proof the accusations were true and said the postings were made in the “fog of war” of the campaign. He said posting the accusations was “probably not a wise thing to do” and “probably not a fair thing to do.”

 Bevan, accused by Guerry of covering up crimes committed by Loebs, answered the allegations by saying he’s never intervened on behalf of anybody.
(Mike Frisch)

April 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 21, 2017

Core Values

The District of Columbia Board on Professional Responsibility has reprimanded an attorney who in the course of defending a client in a bar disciplinary hearing violated his duty of confidentiality to another client.

The Board agrees with the Hearing Committee that a Board reprimand is appropriate because the record reflects that Respondent disclosed obvious client secrets, and still fails to appreciate the wrongfulness of his conduct. Instead, he attempts to minimize his misconduct by arguing that Disciplinary Counsel already knew the information Respondent disclosed, there was no disclosure outside the parties and the Hearing Committee in the Vohra matter, and Respondent obtained a good result for the client at issue. None of these arguments excuse Respondent’s conduct. Thus, the Board issues this reprimand to Respondent to encourage him, and other Bar members, to focus on the importance of safeguarding client secrets, and to exercise due care when making statements that might result in the disclosure of client secret.

Before the board

Respondent disputes the entirety of the Hearing Committee’s Report and Recommendation, arguing that he did nothing wrong and that no sanction should be imposed. Disciplinary Counsel does not except to the Hearing Committee’s findings of fact and conclusions of law, but urges the Board to adopt a more severe sanction than a Board reprimand “in light of Respondent’s continued refusal to understand his confidentiality obligations.” The Board heard oral argument on February 23, 2017.

At the oral argument, an issue of confidentiality (the point of the exercise) arose that drew footnote 4

 Disciplinary Counsel argues that the sanction should be more severe than a reprimand because Respondent made additional disclosures of client secrets in its brief to the Board. However, the Board cannot engage in the fact-finding necessary to determine whether Respondent disclosed additional client secrets. We note that Respondent made client-related disclosures during oral argument before the Board that caused the Board Chair to remind Respondent that the argument was a public proceeding. However, as with the disclosures in his brief, there has been no adjudication that these disclosures were unauthorized disclosures of client secrets, and thus, we cannot find that Respondent made unauthorized disclosures in his brief or at oral argument.

With all due respect, I'd call that cramped view of the board's role as exalting form over substance.

The board is free (if not obligated) to take into account the attitude of an attorney to proven misconduct in fixing an appropriate sanction.

If the Board Chair felt the need to "remind" the attorney about the core ethical obligation of the profession in reviewing a matter involving that very offense, that can and should be taken into account.

If the brief to the board violated confidentiality (and was not filed under seal), same same. 

Disciplinary Counsel need not prove a separate, free-standing violation for the board to do so.

The board has the authority to impose a reprimand. Disciplinary Counsel (and presumably the Respondent) can appeal the reprimand to the Court of Appeals. If good sense prevails, neither will.

The case is In re Timothy Battle and can be found at this link. 

April 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Overbilling And Low Testosterone

A two year suspension has been imposed by the West  Virginia Supreme Court of Appeals in matters that include neglect of duties to infant clients and billing misconduct.

The court found that the billing issues amounted to dishonest conduct, rejecting the contrary conclusion of the Hearing Panel Subcommittee.

Concerns about the attorney's bills led to a complaint from the Executive Director of the West Virginia Public Defender Service.

Upon careful review of the somewhat limited adjudicatory record,  it appears that during the time period of January 21, 2014, through September 18, 2014, Cooke billed more than fifteen hours a day on thirty-seven different days. On five of those days, he billed in excess of twenty hours and on two of those days, he billed greater than twenty-four hours. Cooke maintains that during that period of time he was billing the time of the contract attorneys working for him, as well as his own.  However, per Cooke’s own testimony, this would have occurred for only some portion of the time period at issue inasmuch as his “full-time” contract attorney quit in late-March, leaving only the part-time contract attorney, who likewise quit at some point later that year.

Moreover, during this time period, Cooke contends that he was suffering from diagnosed “low testosterone” which caused him to sleep between ten and sixteen hours a day; medical records introduced into evidence do in fact support such a diagnosis in June, 2014. Cooke maintains that this fatigue continued throughout the time frame in which the guardian ad litem matter was “pending” and continued until November, 2014.

Therefore, giving Cooke the benefit of every doubt, this purported fatigue and reduced working capacity would have existed from approximately February until November, 2014—the exact time period under scrutiny for overbilling. Per Cooke’s own testimony, therefore, during this time there would have been between only eight and fourteen hours of the day in which he could even be awake to perform work.

...for three different dates during this period— March 6, April 17, and August 18—Cooke provided a letter of explanation attempting to account for all the time billed to PDS and ferreting out the time that was billed by others. However, despite purportedly being awake only eight to fourteen hours a day, Cooke still ostensibly billed 15.7, 19.4, and 13.3 hours, respectively, after deducting the time which he attributed to other attorneys. Moreover, Cooke’s itemization of the work he performed on those dates does not fully account for these billed hours.

The court 

This Court considers the protection of the public and the State coffers of paramount importance, particularly as pertains to lawyer disciplinary matters. “[A]ttorney disciplinary proceedings are primarily designed to protect the public, to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the administration of justice[.]” Comm. on Legal Ethics of the W. Va. State Bar v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Moreover, the discipline meted out by this Court should serve the equally important purpose of deterrence:

In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession. Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).

In view of the foregoing, we find that Cooke’s misconduct warrants a two-year suspension from the practice of law. Cooke’s defrauding of the State through overbilling, gross mishandling of a client matter and funds, his dereliction of duty to his infant clients as a guardian ad litem—all of which is compounded by his unrelenting pattern of unresponsiveness and empty reassurances of remediation—plainly justify this degree of discipline. 

The Hearing Panel Subcommittee had recommended a three month suspension; the Office of Disciplinary Counsel sought a suspension of 18 months.

Not enough

Cooke’s extraordinary overbilling was not only intentional and pervasive within the time period at issue, but long-standing. Given the state of the public fisc, the actual injury to the taxpayers of the State of West Virginia is all too real. As the Supreme Court of Ohio stated, overbilling the state for representing indigent clients “exploit[s] an already overburdened system designed to aid the poorest members of our society and lessen[s] public confidence in the legal profession and compromise[s] its integrity.” Holland, 835 N.E.2d at 366. Cooke’s misconduct in that regard, therefore, profoundly affects the public, the legal system, and the profession.

Moreover, while the bulk of the foregoing discussion has been dedicated to Cooke’s overbilling to PDS, by no means does this Court intend to minimize the seriousness of Cooke’s other violations. In particular, Cooke’s failure to timely file a guardian ad litem brief with this Court in an abuse and neglect matter is not only violative of the Rules of Professional Conduct, but in complete disregard of the countless warnings issued by this Court regarding the appellate obligations of guardians ad litem...

This Court has before it all matters of record, including the exhibits and a transcript of the evidentiary hearing conducted by the Board, as well as the briefs and argument of counsel and the pro se respondent. We agree with the twelve enumerated violations found by the HPS; however, based on this Court’s independent review of the record, we find that Cooke additionally violated Rule 8.4(c) of the West Virginia Rules of Professional Conduct by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation relative to the complaint filed by Public Defender Services (hereinafter “PDS”). We commensurately find that the recommended sanctions of both the HPS and ODC are inadequate to fully effectuate the goals of the disciplinary process.

The Hearing Panel Subcommittee report is linked here.

After considering all of the evidence in this case, the HPS would like to note a few concerns. First and foremost, Respondent's lack of responsiveness with both ODC, PDS and the Supreme Court is inexcusable. It is without question had Respondent responded more timely to all three of the complainants in this case, theses issues could have been resolved simply and without incident. The only viable excuse offered by Respondent was one involving a diagnosis of low testosterone. However, this diagnosis was not corroborated in any meaningful way which would have prevented him from practicing law or from meeting deadlines. Failure to meet deadlines or to respond to correspondence from other professional entities, especially after being given a courtesy extension, is intolerable in the practice of law. 

Second, based upon the testimony of Mr. Eddy, the HPS notes while there was no finding of fraud, dishonesty, misrepresentation or deceit, Respondent was clearly not conforming to the billing requirements as mandated in the PDS system. In addition, the hours he was billing well exceed those of any "super" attorney. Billing over two thousand, and two hundred (2,200) hours, every year, for the past 4 to 5 years is not just an extraordinary practice but could be seen as quite impossible. Based on the entirety of the evidence and testimony, HPS opines Respondent may not have the fundamental tools to run his law practice in an efficient and lawful manner. His unfamiliarity with an IOL TA account is just one more example of his lack of knowledge on a basic attorney issue. It is our hope the recommended CLE can shed some light on setting up and running a solo practitioner office to help avoid the appearance of impropriety as seen here in the future.

Respondent, however, did acknowledge his wrongs and appeared to portray genuine remorse for these situations...

Although Respondent contended he should only be subjected to an Admonishment or Reprimand as his sanction, the BPS opines his conduct warrants a more severe sanction; likewise, ODC's recommendation Respondent receive 18 months suspension, we believe is too harsh, especially in light of the fact there was no finding of fraud, dishonesty, deceit or misrepresentation. In addition, a long suspension may very well bankrupt Respondent who appears to be living day to day and is already deeply entangled with selling his vouchers to a finance company. His recent reduction for his PDS vouchers may have already proved troublesome in paying his finance company. While we are supportive of attorneys who represent indigent clients and acknowledge the difficulty in being a solo practitioner, we cannot ignore Respondent's lack of responsiveness and his careless law office practices.

(Mike Frisch)

April 21, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 20, 2017

Charges Include Sex With Client And Unauthorized Use Of Neighbor's Hot Tub

A complaint filed by Ohio Disciplinary Counsel alleges that the attorney represented a client in a domestic violence matter and thereafter "maintained an informal, but friendly relationship with [the client] and his girlfriend, J.B."

The client picked up forgery and receiving stolen property charges that also involved J.B.

On Friday, September 11, 2015, J.B. contacted respondent and requested his assistance in cooperating with law enforcement and the prosecutor's office.

On the same day, and without knowing all of the facts of J.B.' s case, respondent texted Assistant Hocking County Prosecutor, William (Bill) Archer, and inquired into whether he was interested in resolving J.B.'s case prior to indictment. Archer texted back the same day and stated that he would contact respondent "on Monday."

On September 12, 2015, respondent and J.B. met at a restaurant in Columbus to discuss J.B. 's case further. During dinner, respondent gave J.B. legal advice on her impending felony indictment.

It is alleged that

After dinner, respondent and J.B. engaged in sexual intercourse in respondent's SUV in the parking lot of the restaurant. Respondent then dropped J.B. off at her house and gave her approximately $50.

Charges were filed against J.B. the following Monday.

Respondent allegedly texted her on Tuesday and "told her to turn off her GPS on her phone because law enforcement could track her with it."

J.B. fled.

During this period of time, respondent was in regular contact with J.B. He visited her at least two times and gave her between $50 and $100 to pay for groceries and living expenses.

The forgery charges against J.D. were dismissed in mid-October but she was arrested shortly before.

Respondent was appointed as her counsel.

Between October 19, 2015 and February 25, 2016, respondent and J.B. engaged in sexual relations on at least seven more occasions. J.B. also sent respondent several sexually explicit pictures of herself.

Between October 19, 2015 and February 25, 2016, respondent and J.B. used a hot tub belonging to respondent's neighbor at least three times. Respondent did not request permission from his neighbor to use the hot tub, nor did he advise his neighbor that he and J.B. had used the hot tub.

Between October 19, 2015 and February 25, 2016, respondent took J.B. Christmas shopping, to the grocery store, and out to eat several times. He also bought her lingerie, groceries, and at least one phone card. In addition, he gave J.B. between $50 and $100 for rent and other living expenses.

By November 2015, there was a rumor going around town that respondent was engaged in a sexual relationship with J.B.


In December 2015, respondent filed a petition to run as a candidate for Hocking County Prosecutor.

A judge confronted him about the rumors which he denied. He continued to represent J.B. who pled guilty to the charges against her.

J.B. then told a detective her story, which led to an 18-count criminal case against the attorney.

He was ordered to have no contact with J.B. but

On March 9, 2016, respondent and his wife attended their daughter's soccer practice at a local park where a number of other soccer practices were also being held. J.B. and her family were also at the park. J.B. informed a local police officer that respondent was staring at her, which made her feel very uncomfortable.

On March 10, 2016, and after verifying that respondent's GPS monitor had placed him in the same vicinity as J.B., respondent was arrested and charged with Intimidation of a Witness.

That case was later dismissed. Respondent pled guilty to some of the original charges and received two years probation.

J.B. also entered into a plea deal.


  1. Sex with J.B.
  2. dishonesty for using the hot tub without permission!
  3. false statement to a judge in denying the sex rumor
  4. conduct prejudicial to the administration of justice for advising J. B. to turn off her GPS.

The Logan Daily News reported on the bar charges. (Mike Frisch)

April 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

In His Own Words

The Cleveland Metropolitan Bar Association has filed a complaint alleging that an attorney deliberately ignored discovery obligations in a civil matter.

The evidence?

Respondent's client taped him without his knowledge when he said

"In this particular case, what I'd do is, because we are fighting a bank, I would fuck with this person in this case. She ... I know she's from out of town. She sends me a notice of deposition to take, and I know her schedule is tight ...didn't ask me when you were available, sends me a notice of deposition ... I willcompletely ignore her. She sends me interrogatories, requests for production ofdocuments ... I completely ignore her ass for a few months. [Laughter). And Imade her file a motion to compel and then I called her and said 'oh yeah I will getthem to you in two weeks, and then I completely ignored her ass again. So shefiled a motion to compel with the Court ... [Barrios: What's that?) ... a motion to make me answer the discovery. So we did a telephone conference with the Magistrate and I was like, 'Oh your honor, if only I had known' ... I ... you know, I moved my office this summer and I didn't know that she was ... she sent those things to the wrong address, but I' 11 get them out.' And I said, you know, 'this wasn't necessary' - so I wanted to make her seem like an ass. Now you got a Magistrate involved over something where all you had to do was pick up the phone. So I made her, you know ... she wanted to make me look like an ass, but then ... and I had to apologize to you because I kinda had to double-down on you, because then I was like 'ok, now I got to answer these things, and I have to set a deposition date', and I gave them that date, and that's why we couldn't change it."

It is alleged that his own words establish the misconduct and also

During his recorded December 19, 2015 meeting with Mr. Barrios, Respondent characterized defense counsel as an "arrogant bitch", and explained "that's why I did her like I did her." Audio Recording at 58: 15. Respondent's misogynistic words speak for themselves.

During his recorded December 19, 2015 meeting with Mr. Barrios, Respondent coached Mr. Barrios to lie during his deposition in response to potential questions concerning the discovery dispute that gave rise to the Motion to Compel Discovery. Specifically, Respondent urged Mr. Barrios to falsely testify that Respondent told Mr. Barrios that he was supposed to be present for his previously scheduled depositions. Audio Recording at 1 :31 :00.

The client terminated the representation on the day of his scheduled deposition. (Mike Frisch)

April 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)