Thursday, October 27, 2016
The Palmetto State reports
An Anderson attorney was sentenced to 6 months in federal prison and a $50,000 fine for defrauding the Gamma Phi Beta sorority at the University of Alabama of $234,000.
Jennifer Elizabeth Meehan, 40, was arrested in July, 2015, and charged with wire fraud, bank fraud and money laundering, according to the federal indictment that was unsealed at the time.
A graduate of the University of Alabama, Meehan was a member of the Gamma Phi Beta sorority while at the university. She also served as president of the House Corporation Board of the Epsilon Lambda chapter of the sorority.
Meehan volunteered to help furnish Gamma Phi Beta’s new house from 2013 to 2015, a $14 million project. She was responsible for coordinating and purchasing the furniture.
Prosecutors said that Meehan submitted invoices for furniture and equipment that was not delivered. She set up fraudulent bank accounts that gave her personal access to the money meant to be spent on house furnishings.
She told investigators that she did not plan to use the money for herself but rather to set up a scholarship fund, a claim prosecutors said they found hard to believe.
Her sentence includes 6 months in prison a $50,000 fine and 18 months of home confinement. She also must now forfeit her law license.
The misconduct arose from the attorney's participation in the divorce of his parents
After the accused had filed multiple frivolous, duplicative, bad-faith actions, claims, and motions in multiple jurisdictions, he repeatedly and deliberately violated court orders. And he used the legal process to target, embarrass, and harass not only his father but third parties as well, including individuals associated with his father and members of tribunals who did not rule in the accused’s favor. There is no evidence that his acts were driven by anyone other than himself. The sheer magnitude of the accused’s repeated misconduct in the Washington and federal cases, coupled with the accused’s abject disdain for the rule of law, as exhibited by his actions, are sufficient to warrant a sanction here greater than that imposed in White. After considering the ABA Standards and our case law, we conclude that, to protect the public and the administration of justice in this jurisdiction, the accused should be disbarred in Oregon as a reciprocal sanction for his misconduct in Washington.
The accused was admitted to the Oregon Bar in 1998 and to the Washington State Bar in 2002. He had, it appears, specifically sought admission to the Washington State Bar for the purpose of aiding his mother in matters related to her divorce in Washington from the accused’s father.
In April 2002, the accused’s parents had finalized their divorce, with the resulting divorce decree requiring, among other things, that the family home and a vacant lot be sold, with the proceeds to be distributed equally between the accused’s mother and his father, a Seattle-based cardiologist and internal medicine specialist. The accused and his older brother—Cyrus Sanai, a California attorney— maintained, however, that their father had concealed significant assets from both their mother and the court. Consequently, the two siblings began representing their mother in proceedings designed to contest the court-ordered property sale and distribution of proceeds.
What followed were years of acrimonious litigation in which the accused and his brother filed a virtual tsunami of motions, subpoenas, petitions, appeals, and new actions in Washington’s state and federal courts. Many, if not most, of those undertakings were filed solely to delay the court-ordered sale of the family property noted above or to harass the opposing parties and their lawyers. Because of the large number of those filings, the many different forums in which they were initiated, and the fact that they often overlapped chronologically, we set out those activities and their respective outcomes by loosely grouping them—as did the Washington Supreme Court—according to the various contexts in which they arose.
When the courts ruled unfavorably in the cases, the next target was the judiciary
Following the Washington Supreme Court’s adverse rulings in the matters...the accused and his mother filed suit in federal court against the various judicial officers who had ruled against them at both the appellate and trial court levels. In December 2003, the federal district court dismissed the pair’s action for lack of subject matter jurisdiction, characterizing it as an “attempt to obtain review of unfavorable decisions of the Washington state courts by wrapping their state law-based challenges in the fabric of federal constitutional claims.” The Ninth Circuit Court of Appeals affirmed that judgment in an unpublished 2005 opinion.
The accused also filed an action against the chief justice of the Washington Supreme Court, alleging that the accused’s civil rights had been violated in connection with the disciplinary proceedings in Washington. In 2008, the Ninth Circuit remanded that suit for dismissal.
The road to disbarment in Washington is recounted in great detail.
An issue in the Oregon proceeding
The accused contends that the Oregon trial panel violated his right to counsel when it did not permit his brother to represent him. According to the accused, the attorney he had retained to represent him in this matter unexpectedly withdrew several weeks before the accused’s February 2, 2015, trial panel hearing. Several days before the hearing was to begin, the accused filed a motion and completed application for the pro hac vice admission of his brother, Cyrus Sanai, to represent him in Oregon.
In opposing that motion, the Bar noted, among other things, that (1) the accused knew that the Bar intended to call Cyrus Sanai as a witness if he appeared in Oregon, a fact that would necessitate his withdrawal as counsel and raise the likelihood of a lengthy set-over request if Cyrus was allowed to represent the accused, and (2) the California State Bar had filed its own set of nine disciplinary charges against Cyrus Sanai in January 2014. Those charges remained pending up to and through the accused’s 2015 Oregon trial panel proceedings. Of those charges, five alleged a failure to report the imposition of judicial sanctions to the California Bar; three alleged conduct involving moral turpitude—interfering with the sale of property out of a corrupt motive, bringing or maintaining frivolous judicial complaints, and altering the service list on a filed pleading; and one alleged that Cyrus Sanai had encouraged the continuance of an action from a corrupt motive, passion, or interest.
According to Oregon’s Bar Rules of Procedure, those chairing disciplinary trial panels are broadly authorized to facilitate an efficient and orderly hearing. See BR 2.4(h) (describing duties of a trial panel chairperson). Under the circumstances noted above, by denying the accused’s motion for the pro hac vice admission of Cyrus Sanai, the trial panel chair did nothing more than fulfill that obligation.
And rejected a host of other contentions
In sum, we conclude that the accused was not deprived of due process in the proceedings leading to his disbarment in Washington. And, for the reasons stated above, we agree with the Bar and hold that the accused received full and fair hearings, both in his Washington disciplinary proceedings and in the hearing conducted in this jurisdiction. We also hold that the evidence amply establishes that the accused engaged in misconduct in Washington that was serious and protracted, warranting reciprocal discipline here.
The web page of the California State Bar reports that the brother is in good standing but notes that disciplinary charges were filed in January 2014. (Mike Frisch)
The Illinois Administrator has filed a complaint alleging misconduct in two client matters.
The attorney's answer is linked here.
Count Two alleges harassment of a former client
On March 13, 2015, Rutkowski contacted Respondent to ask him to explain the basis for Respondent’s claimed $400 fee, which Rutkowski considered to be inconsistent with the contingent fee he believed he had agreed to pay. Over the next several days, Respondent sent Rutkowski a series of e-mail and text messages that: stated that Respondent had unilaterally raised the claimed fee, first to $500 and then to $600; threatened to sue Rutkowski to collect the claimed fee; insulted Rutkowsky’s manhood and choice of automobiles; and referred to Rutkowski as a "small penis asshole." [sic]
Respondent’s e-mail and text messages to Rutkowski never explained the basis for Respondent’s claimed fee, or the method of its calculation, other than to say that fee agreements were not required "in these matters and not between men. My mistake, there is only one man involved between us. I challenge you to a duel, you pick the time, place and manner."
Respondent’s messages to Rutkowski, which he sent while he considered himself to be proceeding pro se in a fee dispute with Rutkowski, had no substantial purpose other than to embarrass or burden Rutkowski.
Count Three alleges misconduct toward the bar prosecutors as evidenced by a series of communications to the line prosecutor and the Administrator
My dearest Scott Renfroe, this is attorney Don Franz, 6216090. I understand that we have pre-trial coming in August. Here are my terms for your surrender: "Nuts" You will apologize to me for wasting my time, end this or you will not make an example of me, I will make an example of you and your filthy ARDC organization, which is a criminal conspiracy to drive lawyers out of me [sic], out of business to try to fund the thousands of lawyers that can’t find jobs, you filthy, failure of a lawyer, who cannot get a job, that’s why you work for that God damn disgusting organization. This will not end (garbled), you cost me money, you cost me time, you cost me sleep, oh no. And Scottie boy, I’m gonna, this will not end pretty for you, for me, anyone, drop this now, you filthy coward, you are a coward, you only work for the ARDC because you’re a coward. Hey save this, play it for the rest of your ARDC cowards, up and down the line, I don’t care. I despise you. I despise you. Have a nice night...
By the way, this is a fact, not a threat. When I get cancer, you will be the first to know about it...
I shall never forget the kindness you and your filthy government comrades have shown me in these matters. "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." Some lawyer that was not a member of the Illinois National Socialist Attorney Registration Discipline and Committee that hung with John Adams. Tell me Scott, is that or is it not, a "civil quote? How about this one "to the last I grapple with thee; from hell’s heart I stab at thee; for hate’s sake I spit my last breath at thee." Another private sector wacko free to continue in is [sic] trade without having to answer to you or your ilk.
No respect intended or implied, ever
Donald F. Franz, Attorney at Law (formally proud of that title until dealing with you)...
Hello Viper Mike, this in Donald Franz. I hope you had a Happy New Year, I will see you soon, you won’t see it, you’ll get it. Good bye, Donald Franz (phone number redacted), thinking of you always Viper Mike, good bye.
To the Administrator:
Jerry Larkin, my name is Don Franz, I’m the attorney you are trying to murder because of an installment note, so the day you suspend me, I’m going to stop taking my pills, I’m going to get my affairs in order, I am going to kill you. Have a nice day.
Back to prosecutor Renfroe
Scotty boy, your friend Don Franz. You might be familiar with my name, Scott Renfroe, I never signed a formal paycheck, and by the way, we have gone up in scale, so this is what I’m going to do. The day you suspend me, when I take my pills and get my affairs in order and I’m going to take care of you. I want to meet you for a nice discussion and how things are going. By the way, this is "Don Franz Unbound", there are two things at my life, because I (sic) no hair and anything, which restrict me from dealing with you, Mr. Larkin and the rest you fascist communist speech controlling assholes. By the way Scott, I play for keeps...
My dearest dearest Scott, with the world’s wimpiest handshake, so I’m kinda given to turn in to properly filed fee petition for $206,000, that’s okay, but Don Franz has a summon note for less than 10. Don Franz the criminal, I’m going to have so much fun with you and your fucking filthy, your filthy, filthy friends, you don’t know what’s coming. And by the way, a major control in my life is about to be released and it’s called "Don Franz Unbound." I have no fear of you, or you, or Mr. Larkin or the rest you scumbags. You have run roughshod to long, too far and your day is coming.
Another dose to Jerry Larkin
Mr. Larkin, Don Franz again, I watched your website and the fact you have no malpractice insurance but you don’t have to, the State provides everything, and it kinda, you never signed the front of a paycheck before, however, since your organization has decided to try to murder me, murder by means, suspending my license so I cannot trade my time for pills in your life. The day you suspend me, I’m going to attack you and Scott, whoever I can get my hands, and you guys started this, I’m going to finish it. I have never set over, a promissory note in, I’m trying to get paid, trying to get paid for my services, which are always reasonable. You filthy bastards started this fight, I’m going to finish it. And by the way, I had a certain change in my family situation; I have nothing, nothing, but my dog, to bind me to this planet. Other than your destruction. You are filthy, filthy bastards, you wouldn’t know a Court if it hit you in the ass. You despicable prick, your whole life at the ARDC, you fuckin’ Nazi fascist, you bastard, you started this fight, I’m going to finish it. Your noting but bullies, you attack solo practitioners, you think it’s cute, I’m going to destroy you, I hate you, I hate you so much, your fuckin’, your Hitler to me, your Hitler. Oh and by the way, servility, speech control. A lawyer I respect greatly, greatly admitted that to me. If it’s speech control today, what’s next Jerry, and your lifelong dream, by the way in the worst corrupt state, you fucker, you’re a fuckin’ dead man!
Jerry, Franz, final offer. You dismiss all charges against me, you apologize publically for suspending me, and you exempt all sole practitioners from CLE’s, and tend to your own fuckin’ job, that’s my final offer take it or leave it, and it’s not getting better...
Jerry, Don Franz again. I apologize. I typed in total pussy and your name came up. Golly. Any who, so you're telling me if you murder me, throw me in jail, filing charges, I don't care. My family is going to destroy you. Punching you like a fucking dog. You and Scott, the rest of you. You never, you started this fight for installment notes. You started this fight. No one fucks with a Franz, you started this fight, we are going to finish it and I'm not alone. By the way, I'm the biggest pussy in my family, when you fuck the rest of us, you are in for a real big war, I love the fact that all I do is, I typed in wimp, your name came up. You and Scott should date.
This kind of behavior is, sad to say, part of the life of a bar prosecutor.
We all have stories of the colorful threats and hatred coming from the objects of our attention if not affection. (Mike Frisch)
The District of Columbia Court of Appeals (Senior Judge Reid as author) has disbarred an attorney and rejected several contrary contentions
Mr. Saint-Louis challenges the Report and Recommendation of the Board on the grounds that: (1) Bar Counsel (now Disciplinary Counsel) failed to present clear and convincing evidence of ethical misconduct; (2) disbarment is inappropriate because Mr. Saint-Louis did not intentionally misappropriate client funds or engage in conduct involving dishonesty, fraud, deceit or misrepresentation; and (3) Disciplinary Counsel’s multi-year delay in prosecuting the case against him was inexcusable and prejudicial. For the reasons set forth below, we agree with the Board’s recommended sanction.
The court summarized the evidence - involving events that took place in 2004 - and found that the evidence established intentional misappropriation.
As to delay
With regard to Disciplinary Counsel’s multi-year delay in proceeding with the charges against Mr. Saint-Louis, the Ad Hoc Hearing Committee declared, "It is unclear why [Disciplinary] Counsel waited so very long to determine its position with respect to this case." The Committee also characterized the delay as "massive and inexcusable." Nevertheless, the Committee determined that Mr. Saint-Louis was not prejudiced by the delay because (1) it found "no witness who would have testified but did not"; (2) "[t]here were no credibility determinations that the Committee has made that turn on a poor memory due to the passage of time"; and (3) Mr. Saint-Louis "was able to continue the practice of law while Bar Counsel’s investigation remained pending." Based on its factual findings and its review of our case law, the Committee concluded that Mr. Saint-Louis violated all of the rules set forth in the specification of charges and that dismissal of the charges due to delay alone was unwarranted...
Here, Disciplinary Counsel readily admits that the multi-year delay in prosecuting this case is inexcusable. Indeed the delay is quite troubling because Disciplinary Counsel, the Committee, and the Board have not, and apparently cannot, explain the reason for the protracted delay in this case. Nevertheless, our case law explicitly states that delay alone does not lead to the dismissal of misconduct charges. In re Williams, supra, 513 A.2d at 796. What is required for dismissal of the misconduct charges is delay plus actual prejudice that results in a due process violation. Id. at 797. We discern no due process violation on this record. Mr. Saint-Louis received proper notice of the charges against him, and had an opportunity to respond to those charges throughout the disciplinary proceeding, including his evidentiary hearing. His assertion that the "delay rendered every Ovlas witness unavailable" and deprived him "of any opportunity to examine them or otherwise address the question of their own credibility," is not supported by the record.
The court rejected the delay as a basis to impose lesser discipline.
Then Bar Counsel opened the investigation in mid-2005 and filed charges a decade later. Do not blame the Assistant who argued the case - it would still be "under investigation" if he had not been hired to clean out the stable. (Mike Frisch)
A District of Columbia Hearing Committee has found that an attorney intentionally misappropriated entrusted funds and recommended disbarment in In re Peter Njang.
The extent of the attorney's participation
Respondent never filed an answer, did not appear at the pre-hearing conference or the hearing (either in person or through counsel), and submitted no exhibits. The Hearing Committee received a letter from Respondent dated September 30, 2015, in which he stated that he “admit[ted] to the allegations,” claimed they were the result of “sloppiness,” asked for lenity, and informed the Hearing Committee that he would not attend the hearing to defend against the charges or make a case for negligent misappropriation. Respondent’s letter does not constitute an answer to the Specification of Charges. It was filed well out of time, Respondent’s answer having been due on August 7, 2015 – a fact noted by the Hearing Committee Chair at the pre-hearing conference. See September 10, 2015 Prehearing Tr. 10-11; DX B at 1 (Respondent personally served with Specification of Charges on July 18, 2015); Board Rules 7.5 (Respondent’s answer due within 20 days of service). Board Rule 7.7 provides that a Respondent who fails to answer may not present “non-testimonial evidence.”
The committee nonetheless was obligated to conduct a full hearing and issue a report that concluded
With respect to Respondent’s state of mind (i.e., whether the misappropriation was intentional, reckless, or negligent), Respondent admitted in his response to Disciplinary Counsel that the first overdraft was a result of his “tampering” with the trust account and that he had no excuse for his conduct, and he sought mercy. See FF 5. While his letter does not explain precisely what he means by tampering, read in the context of his failure to offer any justification for the overdraft, it is clear that Respondent was acknowledging that he intentionally took money out of the trust account, knowing that such a withdrawal was not permitted. That is intentional misappropriation. Moreover, viewed in the light most favorable to Respondent, he was entitled to only $2,500 in fees. However, after depositing Mr. Sigmou’s settlement checks worth $7,500, he wrote four checks to himself totaling $4,600, more than half of the gross settlement amount. See FF 15, 19, 21. Thus, the Hearing Committee concludes that Respondent engaged in intentional misappropriation, in violation of Rule 1.15(a), by clear and convincing evidence.
The two bar investigations were opened in 2010 and 2011. Charges were filed in 2015 and the committee took about a year to issue a report (actually a rather commendable effort by D.C. standards).
So far, it has taken about six years to get a first-level report in a case of admitted/defaulted theft of client funds.
Suspension and disbarment? Who knows when.
Ho hum. (Mike Frisch)
Wednesday, October 26, 2016
The Indiana Supreme Court has imposed a 90-day suspension of an attorney who had sued for defamation without legal justification.
The attorney had obtained a judgment on behalf of his client, a Bank, and made a false statement in the appeal
AB petitioned for rehearing, again pointing out (as he had done in the trial court and at earlier stages of the appeal) that he had timely filed the MTCE on April 29. The Court of Appeals granted AB’s petition and, after further briefing by the parties, issued a decision reversing the trial court and holding Bank’s action against AB was time-barred.
AB then retained an attorney (“CD”) to evaluate a potential claim against Respondent based on his misleading assertions in the collection action and appeal. In subsequent communications between Respondent and CD, Respondent demanded a retraction of the allegation that he had misled the trial and appellate courts regarding the filing date of the MTCE. When CD would not issue a retraction, Respondent filed a federal lawsuit against AB and CD, alleging defamation among other things. As subsequently amended, the complaint sought over $500,000. AB and CD filed motions to dismiss, which the district court granted. Respondent concedes he had no basis in fact or law for his defamation claim.
In a written response to the Commission during its investigation of these events, Respondent selectively quoted the language of Trial Rule 59(C) in a manner that inaccurately suggested AB’s MTCE would have been untimely regardless of whether it had been filed on April 29 or May 2.
The sanction does not carry automatic reinstatement. (Mike Frisch)
The Oklahoma Supreme Court rejected both a proposed censure (from the Bar) and a one-year suspension (from the Trial Panel) and disbarred an attorney for his handling of a wrongful death settlement
Rule 1.15 ORPC also requires a lawyer to promptly deliver to the client any funds the client is entitled, promptly render a full accounting upon request and to hold separately any funds that are in dispute. Friesen's response brief alleges he only became aware the Nevarezes were challenging his legal fee when they filed their lawsuit to recover the missing settlement proceeds on February 12, 2014. We find this incredulous. We agree with the OBA's assertion that it should have been clear to Friesen from Alma's multiple inquiries that there was a dispute concerning their respective interests in the $97,438.00 long before the lawsuit was filed. Alma made multiple inquiries requesting information about her children's accounts. At the very least Friesen should have known the $97,438.00 was in dispute on July 9, 2013. His time records for that day state, "[p]hone call from Ms. Nevarez; her husband is very upset; it has been four years and they still do not know where the money is and it is gathering interest." The evidence clearly shows the Nevarezes were not concerned about the $350,000.00. They knew where that money was held because they opened the accounts with Friesen. In addition, there should have been no doubt what amount was in dispute when Dowell sent Friesen a facsimile/letter on January 31, 2014. It provided, "you were to disburse $462,438.00 to Mr. and Mrs. Nevarez. According to Ms. Nevarez, you distributed only approximately $360,000 of the required $462,438.00 to them." This letter effectively terminated Friesen's representation of the Nevarezes, requested a full accounting of the settlement proceeds and requested a return of funds to which he was not entitled. Friesen's response to this letter never mentioned the $97,438.00 was a flat attorney fee nor did he offer to provide an accounting or return any unearned fees; he merely stated there are no missing funds. It was not until June 2014, almost four months after the initial demand letter, that Friesen settled the lawsuit and returned the $97,438.00. We find the OBA has proven by clear and convincing evidence that Friesen violated Rule 1.15 ORPC.
The were issues of incompetence and excessive fees
Friesen accepted a non-refundable flat fee of $97,438.00 to draft five wills, four trusts, three annuities and to protect the Nevarezes' $350,000.00 if the need should arise. He testified he normally charges as much as $15,000.00 per will and trust but he had not itemized all the services for the Nevarezes. Some of the services for the children would not be performed for as many as fifteen years in the future. However, there was to be no delay in performing some of the other work including the college accounts. The record reflects the work Friesen performed over the three and one-half year representation consisted of spending approximately one hour a month reviewing and mailing the Nevarezes' three bank statements...
Here, the Nevarezes paid to have, among other things, three college accounts created for their children. It was important to the Nevarezes to have those established as quickly as possible so they could start earning interest. The record reflects through Friesen's lack of diligence and meaningful communications these accounts were never created. Based on the evidence presented and our holding in Wright, we find the OBA has proven by clear and convincing evidence Friesen violated Rule 1.5 ORPC.
Notably as to sanction
The OBA recommends this Court follow the discipline in Whitely and publicly censure Friesen. The Trial Panel recommends Friesen be suspended from the practice of law for one year. The second attorney-client agreement was especially disturbing to the Trial Panel. It found that at the time this agreement was executed Friesen was in severe economic distress. He owed back taxes for many years prior to the agreement which culminated into a federal conviction in 2014. State ex rel. Okla. Bar Ass'n v. Friesen, 2015 OK 34, 350 P.3d 1269. Friesen testified he initially had the wrongful death settlement proceeds placed in Lana Cohlmia's trust account because he was worried the Oklahoma Tax Commission might garnish his trust account. The Trial Panel was also astounded that Friesen would fashion an agreement that included provisions for the Nevarezes to pay up-front for services that would only be performed some fifteen years in the future. Their conclusion was the agreement was motivated by Friesen's own interests rather than the best interests of the Nevarezes.
The record reflects the second attorney-client agreement was not understood; a fact that should have been clear to Friesen during the two and one-half years Alma Nevarez attempted to find out what happened to the $97,438.00. The Nevarezes never received what they bargained for, diligent representation to establish the college accounts. They not only lost years of earnings on these college accounts but also suffered emotional stress and damage to their relationship. These issues were not hidden from Friesen. Instead of taking the initiative to inform the Nevarezes that they were mistaken about the $97,438.00 and risk having to return any unearned fees, he kept towing them along indefinitely. When Dowell requested Friesen to return any unearned fees Friesen testified he refused because he did not like the insinuation he stole from his clients. Friesen's response did not explain the fee arrangement in the second attorney client agreement. Alma testified she never received a copy of the agreement; therefore she was unable to give Dowell a copy. It was not until Friesen was sued that he returned the $97,438.00 some four months later. Friesen claims in his brief that there was too little time to return the fees prior to the lawsuit being filed, which occurred approximately one week after Friesen responded to Dowell. However, if Friesen had responded appropriately to Dowell's letter and explained the fee agreement and offered to return any unearned fees the lawsuit would most likely not have been filed. Again, it is another example of Friesen blaming someone else for circumstances that were well within his control to prevent. We are also disturbed by the second attorney-client agreement as well as the suspicious nature of Exhibits B and C and the excuses supporting their sudden appearance. Based upon these concerns, the many rule violations and past discipline we cannot agree with the OBA that a public censure would provide sufficient discipline necessary to deter such behavior in the future.
An attorney who failed to respond to a bar inquiry triggered by a bounced escrow check has been suspended by the New York Appellate Division for the First Judicial Department.
He has been hard to find
In October of 2015, a Committee investigator located a Bronx business address for respondent, called a telephone number associated with the address, and left a message with a receptionist asking that respondent contact him. Subsequently, on October 2, 2015, respondent's father informed the Committee that respondent was in Russia and that he would ask respondent to contact the Committee. On October 6, 2015, the Committee received a voice mail message from respondent in which he stated that he knew the Committee was trying to reach him. However respondent did not leave any contact information. The Committee, using Caller ID, attempted to contact respondent at the number he called from, but were informed that no message could be left because voice mail service had not been set up.
In June of 2016, the Committee obtained a judicial subpoena returnable July 27, 2016, for respondent's appearance and for production of his bank and bookkeeping records for his IOLA and business accounts. The Committee initially attempted to serve respondent at the Bronx business address. After service at the Bronx business address failed, the Committee successfully personally served respondent with the judicial subpoena at his home address. Subsequently, respondent failed to appear for his deposition on July 27, 2016, and to produce his IOLA and business account records, nor did he contact the Committee to request an adjournment. On July 29, 2016, the Committee mailed a letter to respondent's home address requesting that respondent promptly contact the Committee to reschedule his deposition, and warning him that if he did not do so by August 5, 2016, the Committee would seek his interim suspension based on his failure to cooperate with its investigation.
Respondent failed to respond to the Committee's letter, and other than his October 2015 voice mail message, in which he did not leave his contact information, respondent has failed to respond to any Committee communication, answer the sua sponte complaint, or produce the subpoenaed records.
Respondent's failure to reply to the Committee's inquiries and to comply with a judicial subpoena constitute professional misconduct immediately threatening the public interest which warrants suspension pursuant to 22 NYCRR 603.4(e)(1)(i) (see Matter of Jones, 139 AD3d 107 [1st Dept 2016]). Furthermore, respondent's failure to file attorney registration statements, pay registration fees, and update his business address with OCA, as required by Judiciary Law § 468-a(2) and 22 NYCRR 118.1(f), are additional, independent grounds for his suspension (see Matter of Modestil, 142 AD3d 9 [1st Dept 2016]).
Accordingly, the motion should be granted and respondent suspended from the practice of law pursuant to 22 NYCRR 603.4(e)(1)(i), effective immediately, and until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court.
Tuesday, October 25, 2016
An attorney's criminal conviction has led to automatic disbarment by the New York Appellate Division for the First Judicial Department.
On February 26, 2016, respondent was convicted, after trial, in Supreme Court, New York County, of sexual abuse in the first degree in violation of Penal Law § 130.65(1), a class D felony, and criminal obstruction of breathing or blood circulation in violation of Penal Law § 121.11(a), a class A misdemeanor.
On June 10, 2016, respondent was sentenced to a four-year term of incarceration, three years of supervised release, fines and surcharges, and was required to register as a sex offender.
The New York Post covered the criminal case
A judge tossed a wealthy Manhattan lawyer in prison for 4 years Friday for sexually attacking a woman on the fold-out Murphy bed in his office as his portly victim blasted him for insulting her weight.
“It was implied it never could have happened as my 200-plus pound frame was too fat to be pushed down, held down, and pulled around like a rag doll,” the weepy victim read from a statement as her assailant Dan Nelson, 39, sat a few feet away in Manhattan Supreme Court.
“I found myself pinned to a bare mattress, fighting my hardest and thinking, ‘I’m a big girl. I’m strong. I can get this man off me.’
Defense lawyer Tim Parlatore argued at trial that the victim’s story didn’t add up because the Italian-made $5,732 Murphy bed outfitted in the conference room of his Midtown office couldn’t sustain such a heavy load.
The victim met her attacker nearly two years ago at a bar and agreed to go home with him.
The two sloshed strangers went back to his firm Nelson & McCulloch where they stripped off their clothes and made out.
But when she changed her mind about the one-night stand, he pinned her to the Murphy bed, choked her and digitally penetrated her before she broke free and fled naked into the street.
The jury acquitted Nelson of the top count of attempted rape but found him guilty of sexual abuse and obstruction of breathing.
The 36-year-old woman also scoffed at Nelson’s claim he didn’t try to rape her because he has erectile dysfunction and didn’t take his medication.
“It was implied there was a simple reason you hadn’t because as I eventually read from the front page of the newspaper you had forgotten to take your Viagra pill,” she said. “But you and I both know what you did to me that night.”
ADA Maxine Rosenthal blasted Nelson for a history of “degrading and abusing” women and asked the judge to give him the maximum of 7 years.
Parlatore countered that Nelson is truly a gentleman – aside from one night of alcohol-induced boorishness.
‘And that even Nelson’s ex-wife and an ex-girlfriend had written character letters attesting to his harmless nature.
Justice Patricia Nunez was not persuaded.
“The fear that would cause a woman to run out into the street stark naked with none of her possessions, with nothing on her, yelling for help, is striking,” she said.
Nelson, wearing a dapper blue suit with a pocket square was cuffed and hauled away.
A District of Columbia Ad Hoc Hearing Committee has approved a consent 18-month suspension with six months stayed and probation for conduct that involved serious dishonesty over an extended period of time.
The committee thoughtfully considered the merits of consent disposition in a case that presented a confluence of competing factors
In sum, having carefully reviewed the agreed-upon facts in this matter, having heard from and, indeed, tested Respondent in the hearing, and fully taking into consideration the pertinent sanctions case law cited in the Petition (at 7-8), we conclude, notwithstanding the fourteen-month period of dishonesty, that the negotiated sanction is justified. See, e.g., In re Guberman, 978 A.2d 200 (D.C. 2009) (18-month suspension as substantially different discipline in a reciprocal discipline matter where the respondent misrepresented to his employer that he would file an appeal on behalf of a client and falsified filing stamps on draft court papers to make it appear that he had filed the appeal); In re Pennington, 921 A.2d 135, 139-140 (D.C. 2007) (two-year suspension with fitness as substantially different discipline in a reciprocal discipline case, where the respondent “‘conceal[ed] the true account of how she mishandled [her client’s] claims, falsif[ied] a supposed settlement of those claims with the insurer, intentionally misrepresent[ed] matters in negotiations with third-party health care providers . . . , and conceal[ed] . . . facts that might have supported lodging a professional negligence claim . . . .’”) (quoting Attorney Grievance Comm’n v. Pennington, 876 A.2d 642, 660 (Md. 2005)). We also find that the negotiated sanction is not unduly lenient.
We note that, while the Hearing Committee unanimously agrees that the sanction is justified, and not unduly lenient, the Hearing Committee members differ regarding the extent to which they believe the negotiated discipline is lenient. One Hearing Committee member believes that, while not unduly lenient, the facts in this case reasonably could have justified a harsher sanction. This member believes that Respondent’s actions, in deliberately and systematically making at least five false statements to his client over a period of 14 months regarding key actions in connection with their case that he, the Court, and others had purportedly taken but which, in fact, had not occurred, constitute very serious misconduct. Furthermore, in the Amended Petition for Negotiated Discipline, while Dr. Howard acknowledged that “Respondent’s then-untreated conditions caused neglect of his obligations to New Plaza . . . ,” Dr. Howard at the same time “. . . offered a less definitive opinion on the causal nexus between the diagnoses and Respondent’s false statements in response to New Plaza’s inquiries or his presentation of a ‘faked court complaint’ to his client.” Dr. Howard was unable to establish a nexus between the diagnosis and repeated false statements over an extended period of time. Indeed, the parties stipulated that, pursuant to the second Kersey factor, Respondent would be able to show by a preponderance of the evidence that his bipolar disorder and ADHD “substantially affected the stipulated misconduct, with the exception of the Rule 8.4(c) violation.” Petition at 9 & n.1 (emphasis added). The absence of a stipulation that Respondent’s disability affected his misconduct related to dishonesty indicates to this member that the Respondent’s condition did not prevent him from understanding that he was engaging in repeated misrepresentations; nor, by inference, did it prevent him from consideration of some form of corrective action during this extended period, all of which underscores the seriousness of the misconduct.
Conversely, the other members of the Hearing Committee believe that the negotiated discipline risks being unduly harsh. Those members note Respondent’s remorse and dedication to his personal rehabilitation, his full and voluntary reimbursement of his former client, including both restitution of legal fees and compensation for the amount the client hoped to recover in the White Star matter, and the devastating impact a suspension has on an attorney’s financial circumstances, professional stature, and future professional and financial prospects. Unlike other situations in which long suspensions are justified, those members of the Hearing Committee believe that the Respondent is well on his way already to being rehabilitated and accordingly that the public’s safety no longer seems to be a concern.
The case is In re Richard Bianco and can be accessed at this link.
The disciplinary investigation began in the spring of 2014.
If the court approves this consent (as I fervently hope it does), it send a strong signal to the disciplinary system that cases where fair-minded people can differ are susceptible to meaningful negotiation.
Here, a case with Kersey issues and protracted dishonesty can get resolved in a responsible split-the-baby manner that offers a measure of public protection and get done in two years rather than the usual decade.
Bravo! (Mike Frisch)
A Hearing Division of the Law Society of Upper Canada has ordered a 2 1/2 month suspension for
• acting in a conflict of interest while representing a client in a family law matter by engaging in a personal and sexual relationship with the client;
• acting without integrity when he failed to inform his firm that he was involved in a sexual relationship with his client and that his client was unable to satisfy her accounts and that he paid two accounts on her behalf from his own personal funds;
• behaving dishonourably when he sent a series of uncivil text messages and e-mails to his client, some of which implied he may use solicitor client privileged and/or confidential information against her should she fail to reimburse him funds he loaned her over the course of their personal and professional relationship.
TheStar.com wondered whether the sanction was unduly light
In the Macri case, the client was found to be particularly vulnerable. She was a stay-at-home mother to two small children in an unhappy marriage who was financially dependent on her husband, a man who was charged for allegedly vandalizing her personal property, according to the agreed statement of fact. Her court proceeding was described as “complicated and heated.”
For a period of about four months after Macri was retained to represent Client A, they engaged in a “secret consensual sexual relationship.” After that ended, Macri continued an intimate personal relationship with the woman, “which included their shared hope that their romantic relationship would resume once the litigation concluded.”
As the woman’s case dragged on in court, Macri gave her $60,000 over a period of about three months in 2013 to cover her legal fees with the firm and personal expenses — $10,000 of which was characterized as a gift. The client agreed to repay the remaining $50,000 when the sale of her home was completed, according to the agreed statement of fact.
When the sale was completed and she refused to reimburse him, Macri sent her threatening texts and an email “wherein he implied he would divulge confidential and privileged information about Client A to her husband.”
In one text message, he said: “You don’t want to screw me over like this. Your case isn’t over. You still need me.”
She replied: “Don’t blackmail me,” to which Macri said: “Seriously? You want me as an enemy??? Pay what you promised you would. Pay it this week.” She told him he was threatening her, which he denied.
The client then reported the relationship and communications to Macri’s firm. He admitted to having had an inappropriate relationship with the client and loaning her money, and was then fired and reported to the Law Society.
Macri never did recoup the funds he loaned to the client, which his lawyer told the tribunal was money he was saving as a down payment on a home for himself and his two children. He now works on his own, and only this year his practice became financially viable.
The Indiana Supreme Court has dismissed ethics charges brought against a prosecutor.
At relevant times, Respondent served as a deputy prosecuting attorney in White County. In 2011, Respondent represented the State during the trial of Ryan Bean on child molestation charges. Bean was convicted and appealed. The Court of Appeals reversed and remanded for a new trial, holding Bean’s confession to police was obtained in violation of his Fifth Amendment rights and should not have been admitted into evidence. Bean v. State, 973 N.E.2d 35 (Ind. Ct. App. 2012), trans. denied.
Respondent again represented the State during Bean’s retrial in 2013. Respondent’s actions during that retrial, which we examine below, provide the basis of the allegations in this disciplinary proceeding. Bean was convicted following retrial, appealed, and again had his conviction reversed, this time upon the Court of Appeals’ conclusion that improper vouching and prosecutorial misconduct cumulatively amounted to fundamental error. Bean v. State, 15 N.E.3d 12 (Ind. Ct. App. 2014) ("Bean II"), trans. denied. Bean eventually pled guilty to lesser charges.
The Commission charged Respondent with violating Indiana Professional Conduct Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice during Bean’s retrial. Following a hearing, the hearing officer filed his report to this Court on April 28, 2016, concluding that the Commission had not met its burden of proving that Respondent violated Rule 8.4(d) as charged.
The Commission alleges that Respondent committed misconduct in three respects – first, by improperly eliciting testimony from the county sheriff ("Sheriff Shafer") about Bean’s confession, in violation of an order in limine; second, by eliciting improper vouching; and third, by making statements during closing argument that were inaccurate and that placed undue emphasis on the improper vouching testimony. However, we agree with the hearing officer’s conclusion that the evidence adduced in these proceedings fails to prove the Commission’s allegations.
Notably, the court rejected the bar's collateral estoppel argument
We agree with the hearing officer’s conclusion that Bean II is not dispositive of this disciplinary matter. “It is the exclusive province of this Court to regulate professional legal activity.” Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998). While appellate claims of prosecutorial misconduct and disciplinary allegations of Rule 8.4(d) violations may share some similarities, the analyses are not exactly the same, nor are the parties and interests at stake in the proceedings the same. A criminal appeal examines the propriety of a defendant’s conviction, not whether an attorney’s conduct merits professional discipline. Respondent was not a party to the criminal appeal and did not have an opportunity prior to the instant proceedings to defend his own professional conduct. Moreover, disciplinary proceedings afford the opportunity for evidentiary development beyond the cold record available to the Court of Appeals in a criminal appeal. We have previously recognized that a written trial transcript “presents only a small part of the whole picture,” see Whiting v. State, 969 N.E.2d 24, 31 (Ind. 2012), and in a disciplinary proceeding the parties may be able to offer additional evidence that paints a more complete picture.
As to the argument issue
...the evidence in these disciplinary proceedings includes the audio recording of Respondent’s closing argument, which differs from the written transcript. The Court of Appeals held in Bean II that Respondent’s statement in closing argument that Sheriff Shafer "substantiated" the allegations against Bean was inaccurate. However, the audio recording demonstrates that Respondent did not actually make the statement attributed to him in the written transcript; rather, Respondent stated that Sheriff Shafer arrested Bean. We agree with the hearing officer that this is a material difference. As reflected in the audio recording, Respondent’s closing argument accurately described Sheriff Shafer’s testimony.
Still, the Commission faults Respondent for referring in the same passage of closing argument to Noonkester’s "substantiation" testimony and to the belief of the victim’s mother and the mother’s boyfriend that the victim was telling the truth. For the reasons described above, Respondent had no basis at this juncture to believe that a brief reference to "substantiation" was improper. And while we are more troubled by Respondent’s subsequent statement about the belief of the victim’s mother and her boyfriend, under the circumstances of this case we cannot conclude that this isolated comment, standing alone, rises to the level of conduct prejudicial to the administration of justice under Rule 8.4(d).
Monday, October 24, 2016
The Michigan Attorney Discipline Board affirmed a panel reprimand of an attorney who had falsely advised his client that he had an investigator working on the defense.
After this initial period of work, respondent failed to meet or otherwise communicate with his client for approximately six months. When respondent finally met with his client in January of 2014, he relayed a plea offer to Mr. Sylvester, but advised him not to accept it. In the course of their conversation, Mr. Sylvester asked about the investigator. Respondent falsely told him that the private investigator had done some work on the case, and that he would give him more information the following week. At the time respondent made this statement, the investigator had not done any work on the case, because in respondent's words, he had not "activated" him yet. About one week after the January jail visit, Mr. Sylvester retained other counsel and requested that respondent withdraw from the case.
Respondent admitted that he lied to his client. However, he argued that the misrepresentation was "reactive" and "spontaneous," as opposed to intentional and malicious. Respondent testified that he did not go to the January meeting with the intention of deceiving his client, and further, his client did not make any decisions regarding his case based on this misrepresentation. Respondent also stated that Mr. Sylvester had a strong case with or without the investigator, and during the six-month lapse in communication, he had done everything that he could to move the case along.
Reprimand is appropriate
After a careful review of record, and a close review of the panel's report, we are of the opinion that the panel's decision on discipline need not be disturbed. The panel's thorough consideration ofthe various relevant factors in this unusual case, including any actual harm to the profession's reputation occasioned by the particular misrepresentation of this practitioner, the potential harm to the client that it could have caused, mitigating factors (such as respondent's exceptional candor and remorse), and applicable precedent, have led to the imposition ofa sanction within the range ofappropriate outcomes for the misconduct in these circumstance.
The Wisconsin Supreme Court imposed reciprocal discipline based on an Arizona suspension of six months and a day.
Attorney Manion communicated with an inmate client in a criminal matter almost exclusively through another inmate who was serving a sentence for criminal fraud. Attorney Manion's client suffered financial harm at the hands of the inmate who Attorney Manion used as the intermediary. Attorney Manion also transferred funds, at the direction of multiple inmates, in a manner that allowed the inmates to circumvent prison policy thereby violating multiple Arizona trust account rules including ER 1.4, ER 1.15(a), ER 8.4(d), Rule 43(b)(1)(A), Rule 43(b)(a)(C) and Rule 43(b)(5).
In addition, Attorney Manion assisted an inmate client in collecting a share of an inheritance. Attorney Manion distributed the money at the client's direction in a manner that allowed the client to circumvent prison policy. The client also suffered financial harm due to the fraudulent actions of the same inmate Attorney Manion used as the intermediary in Count One. By these actions Attorney Manion violated ER 1.4, ER 1.6, ER 1.7, and ER 8.4(d).
The court imposed a six-month suspension. (Mike Frisch)
A reprimand has been imposed on an attorney by the New Hampshire Supreme Court Professional Conduct Committee.
The attorney practiced primarily in California but handled New Hampshire matters on behalf of family and friends.
The misconduct related to his drafting of a will and trust documents for a longtime family friend, a grandfather-like figure who he called grandpa Lloyd.
Grandpa Lloyd had four daughters from a previous marriage. The documents devised $5,000 to each daughter with the remainder going to the attorney.
Mr. Dahlen died on June 24, 2013. Mr. Dahlen, long-since divorced at the time, had four daughters from his previous marriage. His Trust provided that $5,000 be transferred to each of his daughters upon the death of their biological mother, if she survived Mr. Dahlen. All personal effects were left to Mr. Godin's parents (Dorian and Patricia Godin), as was any "remaining cash." Mr. Dahlen left his home to Mr. Godin pursuant to the terms of the Trust. By the date of his death, however, Mr. Dahlen had already separately deeded his house to Mr. Godin, pursuant to a deed prepared by Mr. Godin and executed by Mr. Dahlen on June 12, 2013.
When grandpa Lloyd passed, the daughters were pissed. They claimed undue influence and initiated litigation that led to a bar inquiry.
The key finding in the litigation
[There was] uncontroverted testimony that Lloyd Dahlen was close to the Godin family and had a good relationship with Randy Godin and his family, and in fact had more frequent contact with them than with his biological children. At the evidentiary hearing in September, the petitioners did not provide any evidence that there was fraud or undue influence perpetrated on Lloyd Dahlen in the drafting and execution of the deed or his testamentary documents. The court finds that the intent in his will and trust was to primarily benefit the Godin family over his biological family. The deed transferring real estate was not the product of fraud, lack of capacity or undue influence.
The Professional Conduct Committee stipulated that the attorney did not violate Rule 1.8(c) by drafting the will and trust documents because of the close, familial-type relationship with grandpa Lloyd.
Mr. Godin and his parents were extremely close to Mr. Dahlen and enjoyed a familial relationship with him for nearly forty years. Mr. Godin referred to him throughout his life as "grandpa Lloyd" and considered him a "patriarch figure." Mr. Dahlen spent time at the Godin family home nearly every day, spending holidays there and attending Mr. Godin's graduations and most birthday parties. The Court's Order of January 2015 recognizes this close relationship which was "uncontroverted" by Mr. Dahlen's daughters. The ADO does not believe there is clear and convincing evidence of a Rule 1.8(c) violation.
The attorney did violate his duty of competence by failing to properly attend to the formalities of the execution of the documents.
At the time of the events giving rise to this disciplinary matter, Mr. Godin was living in California and practicing law almost exclusively there. He returned to New Hampshire in May of 2012 because his brother had committed suicide. Mr. Dahlen's Will and Trust were executed in the immediate aftermath of that tragic event and all the attendant arrangements (Mr. Godin's brother died without a will), which left Mr. Godin in a scattered frame of mind. Mr. Godin admits that he did not research New Hampshire law to confirm the requirements for a "selfproving" will, nor did he realize at the time of executed the documents that by notarizing his own signature he was violating RSA 455:2-a.
The matter was resolved by stipulation. (Mike Frisch)
Thursday, October 20, 2016
The Wisconsin Supreme Court has imposed a one-year suspension as reciprocal discipline for a sanction imposed by the New York Appellate Division for the First Judicial Department against attorney Ishmael Gonzalez
On August 11, 2015, the New York Appellate Division Supreme Court First Judicial Department suspended Gonzalez's law license for one year, effective September 10, 2015, based upon 12 counts of misconduct involving five clients, violation of escrow rules, and failure to file income tax returns for specific years. Gonzalez's misconduct included: belligerent and verbal abuse towards his client's wife; threatening his client's wife that he would have his client arrested and deported; communicating information to the immigration authorities that he wanted his client arrested and deported; falsely telling the immigration authorities that his client would not appear for his deferred inspection appointment; and intentionally damaging his client during the course of the professional relationship. He also entered into several written retainer agreements that contained a nonrefundable clause, delayed filing a bankruptcy petition for 21 months, and failed to file federal and state personal income tax returns for 2002 through 2007.
A sanction such as this can only be described as a damp, drizzly November in an attorney's soul. (Mike Frisch)
Wednesday, October 19, 2016
I am reading a recent District of Columbia Hearing Committee report involving an attorney's violation of the duty of confidentiality.
The governing D.C. Rule reads in pertinent part
(a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:
(1) reveal a confidence or secret of the lawyer’s client;
(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;
(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.
Contrast this provision with the ABA Rule
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
Note the distinction - under the ABA Model Rule, the duty of confidentiality is taken seriously enough to strictly prohibit any breach. In D.C. , the breach must be a knowing one.
The reason for the departure from the ABA version?
It provides less protection to clients and adds an element that Disciplinary Counsel must prove to establish a violation.
It also may assist attorneys who seek to avoid civil liability for so-called "negligent" or 'inadvertent" confidentiality lapses.
Once again, D.C. leaves no stone unturned in making its ethics rules as pro-lawyer and anti-client as is humanly possible. (Mike Frisch)
The Illinois Administrator has filed a complaint alleging misconduct in an attorney's office leasing and subtenant interactions
From January 2015 to January 21, 2016, Respondent leased office space for his law practice, the Law Offices of Scott T. Kamin, at 55 East Jackson Boulevard in Chicago. As part of his lease, Respondent agreed to make rent payments for the office space, Suite 1050, in the range of $5,523 to $5,800 on a monthly basis to the landlord, 55 East Jackson, LLC ("the landlord"). The rent payment also included a payment for electricity and real estate taxes, which, on average, was $250 per month.
From January 1, 2015 through January 21, 2016, Respondent subleased the offices in Suite 1050 to at least three attorneys, including Carla Buterman ("Buterman"), Jason Epstein ("Epstein") and Erik Rakoczy ("Rakoczy") (collectively "the subtenants"), pursuant to written agreements with each subtenant.
From May 1, 2015 through January 2016, Respondent received individual monthly rent payments from the subtenants, which they paid to Respondent by cash and check.
During that same period, Respondent made only two monthly rent payments for the months of August and September 2015, to the landlord.
The non-payment resulted in a suit for possession in which the attorney is alleged to have accepted service on behalf of his subtenants without authority.
On January 21, 2016, the court entered an order allowing the landlord to recover possession of Suite 1050 from Respondent, Brigham, Epstein, Rakoczy and Buterman. Judge Steffen also entered on that date a judgment against Respondent and his law firm for $43,468.48, which included $434 in filing fees, approximately $40,000 in past-due rent and $3,000 for Glass’ attorney’s fees.
The allegations is that he engaged in
conduct involving dishonesty, fraud, deceit or misrepresentation, by conduct including, stating to deputy Lampkin that he was authorized to accept service on behalf of Brigham, Buterman, Epstein and Rakoczy when he knew he was not so authorized, not informing the court that he had no authority to accept service or appear in court on behalf of Brigham, Buterman, Epstein or Rakoczy and concealing the eviction lawsuit from the other defendants, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
The North Carolina Court of Appeals affirmed an order of discipline against an attorney admitted in 2001
David C. Sutton (“Defendant”) appeals from an order of discipline entered by the Disciplinary Hearing Commission (the “DHC”) of the North Carolina State Bar suspending his law license for a period of five years after determining that he had committed numerous violations of the North Carolina Rules of Professional Conduct. In addition to asserting challenges to various constitutional and procedural aspects of his disciplinary proceeding, Defendant argues on appeal that a number of the DHC’s findings of fact were not supported by evidence in the record and that several of its legal conclusions were incorrect. After careful review, we affirm.
The case involved seven matters, including
Defendant represented Barbara Pollard in a wrongful death lawsuit against her daughter-in-law in connection with the 2005 death of Pollard’s son, Stacey Pollard. During Pollard’s May 2011 deposition, which was taken by attorney Kathryn Fagan, Defendant repeatedly interjected his own questions and commentary, made sarcastic remarks, coached Pollard on how to respond to particular questions, and answered questions for Pollard. After the deposition had concluded, Defendant stated — in the presence of his client, the court reporter, and a law student in attendance — “Fagan, you know what your problem is? Your problem is that you need a boyfriend or a husband or something. . . . I understand your client goes both ways so . . . maybe you could have a little lickety-lick with her.
In 2013, Defendant represented Norman Shackley on a charge of impersonating a law enforcement officer. In connection with the case, Defendant obtained by subpoena phone records from one of the State’s witnesses, Jimmy Hughes. At 10:00 p.m. one evening, Defendant called a phone number listed in these records and told the person who answered the phone, Jean Sugg (whom Defendant did not know), that Hughes had “hit on” Shackley’s wife, who had “big boobs” and ran a prostitute website.
Defendant defended a client charged with child abuse in 2013. Upon learning that the district attorney had refused to drop the charges against his client, Defendant left a voicemail for Detective Nikki Dolenti, the investigating officer in the case, in which he made the following statement in a harsh and threatening tone: “You obviously don’t know what the hell you’re doing. So I’m just gonna whoop your ass real bad next week unless you get your ass down there and get this case dismissed. And do your job and have some sense.”
The extensive additional findings of fact in the Order of Discipline relating to the dispositional stage described numerous other instances of abusive, belligerent, threatening, and profane communications and conduct by Defendant — both inside and outside of the courtroom — that occurred between 2008 and 2014. The Order of Discipline also noted
numerous examples of a recurrent pattern in Defendant’s practice of law. When Defendant believes someone with whom he interacts professionally is wrong about the facts, the law, procedure, or a matter of judgment, he demands instant redress. If the person with whom he disagrees does not immediately capitulate, Defendant threatens to harm that individual in some way.
The Order of Discipline further noted numerous incidents demonstrating Defendant’s penchant for “us[ing] graphic sexual commentary to embarrass and/or demean others in professional contexts.” It also cited numerous instances showing that “in retaliation for perceived wrongs, [Defendant] is willing to breach his duty of loyalty to clients and former clients by disclosing confidential information and/or attempting to prejudice their interests.”
Tuesday, October 18, 2016
Respondent, who is originally from India, came to the United States in 1987. Although he had already completed a law degree in India, he earned a second law degree from Tulane University. He was admitted to the practice of law in Louisiana in 1988 and to the practice of law in Colorado in 1992.
Respondent legally remained in the United States under a work visa until December 1995, when his visa expired. He did not obtain a new work visa and, thus, was in the country illegally. Nevertheless, he continued to practice law in Colorado, representing clients in immigration matters. In 1999, respondent married a United States citizen.
It was not until June 2009, after immigration authorities discovered he was in the United States illegally, that respondent obtained official authorization to work. At that time, he also applied for permanent residency, but he did not receive permanent residency status until May 2012.
In the meantime, on July 21, 2009, the Supreme Court of Colorado suspended respondent from the practice of law for one year and one day for practicing law while unlawfully present in the United States. The Supreme Court of Colorado also banned him from applying for reinstatement until he obtained permanent lawful immigration status and employment authorization. This court imposed reciprocal discipline on December 18, 2009. In re: Kanwal, 09-2192 (La. 12/18/09), 24 So. 3d 189.
In 2011, while he was still suspended from the practice of law in Colorado, respondent assisted a previous client with an immigration matter; he failed to inform the client that he was suspended from the practice of law. Another attorney working for the client discovered respondent was under suspension and reported him to the Colorado attorney disciplinary authorities.
As it was in Colorado, so shall it be in Louisiana.
Our coverage of the initial suspension is linked here. (Mike Frisch)