Monday, May 21, 2018

Typos And Due Process

We recently reported on a matter in which the District of Columbia Board on Professional Responsibility made a federal case out of a typo.

The Maryland Court of Appeals found a hearing judge's typo of no moment

Respondent failed to adequately represent Ms. Yu in both of her personal injury cases. He failed to do the bare minimum in locating and properly serving the defendants in the cases. Respondent failed to inform Ms. Yu that he was having difficulty in locating the defendants, that her cases had been dismissed due to his failure to properly serve the defendants, and that the statute of limitations had run on both of her cases. Respondent’s decision to “duck and cover,” or in other words, ignore, Bar Counsel’s repeated requests for information adversely “impact[s] the image of the legal profession.” See id. We, therefore, sustain Petitioner’s exception and hold that Respondent violated MARPC 19- 308.4(d) by clear and convincing evidence.

Petitioner excepted to the hearing judge’s conclusion that Respondent violated 19- 308.4(b) because Petitioner did not charge Respondent with this violation. It is apparent that the hearing judge’s conclusion that Respondent violated Rule 19-308.4(b) was merely a typographical error. We surmise from the language she used that she intended to conclude that Respondent violated Rule 19-308.4(c), having found that Respondent “intentionally made false statements in his April 7, 2016 letter to Assistant Bar Counsel.”

It is a violation of Rule 19-308.4(c) to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” Respondent attempted to excuse his failure to communicate with Ms. Yu by misrepresenting to Bar Counsel that Ms. Yu was out of the country for extended periods of time and that she could not receive mail during that time. Ms. Yu, whom the hearing judge found to be credible, testified that she was gone no more than four weeks in any given year and that there was always someone at her home to receive her mail. Respondent also intentionally misrepresented that he and Ms. Yu agreed to only communicate in person due to Ms. Yu’s alleged poor command of the English language.

The hearing judge found, however, that Ms. Yu had an adequate command of the English language and that Respondent and Ms. Yu’s conduct did not demonstrate such an agreement to communicate only in person. For example, Ms. Yu called and mailed Respondent letters requesting updates on her cases and Respondent did not respond to her requests either in writing, by phone, or in person. Furthermore, Respondent’s only excuse for his failure to communicate was a claim that he did not have a return address for Ms. Yu, despite the fact that he “he routinely ask[ed] for an update on [Ms. Yu’s] address.” All of Respondent’s intentional misrepresentations clearly demonstrate a violation of Rule 19- 308.4(c). That finding was established by clear and convincing evidence. Therefore, given the charges and the findings of fact it is obvious that the hearing judge intended to conclude that Respondent violated Rule 19-308.4(c).

The court imposed disbarment.

Too bad that common sense does not travel south. ( Mike Frisch)

May 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

He Called Himself Esquire

The Indiana Supreme Court ordered a $500 fine for  contempt of a suspension order

On January 7, 2010, the Court suspended Respondent from the practice of law for failing to cooperate with the disciplinary process. Respondent’s noncooperation suspension was converted to an indefinite suspension on August 27, 2010. Respondent has remained under suspension at all times thereafter.

The Commission filed a “Verified Petition for Rule to Show Cause” on March 16, 2018, asserting that Respondent practiced law in this state and held himself out as an attorney while suspended from the practice of law. Specifically, the Commission alleges that in December 2017 Respondent sent a settlement demand letter to an insurance company on behalf of an individual (“Claimant”). In that letter, which is attached to the Commission’s verified petition, Respondent identifies himself using the term “esquire,” indicates he is acting in a representative capacity, and advances a detailed legal argument on Claimant’s behalf.

The Court issued an order to show cause on March 20, 2018, directing Respondent to show cause in writing, within 15 days of service, why he should not be held in contempt for disobedience to this Court’s order suspending him from practice. It has been over 15 days since Respondent was served, and Respondent has not responded. We therefore find that Respondent has practiced law in violation of his suspension as asserted by the Commission...

All Justices concur, except David, J., who dissents and would impose more significant sanctions for Respondent’s contempt.

(Mike Frisch)

May 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Inexperienced And Remorseful

The Louisiana Supreme Court has imposed a year and a day suspension with all but four months deferred. 

In this matter, the formal charges essentially allege that respondent neglected two legal matters, failed to communicate with two clients, and failed to cooperate with the ODC in two investigations. Respondent subsequently stipulated to the truthfulness of these facts. She also stipulated to the alleged violations of the Rules of Professional Conduct as set forth in the formal charges. Therefore, the only issue remaining for our consideration is the appropriate sanction for respondent’s admitted misconduct...

The record supports a finding that respondent negligently and knowingly violated duties owed to her clients and the legal profession, causing actual harm. The baseline sanction for this type of misconduct is suspension. Aggravating factors include a pattern of misconduct and multiple offenses. Mitigating factors include the absence of a prior disciplinary record, inexperience in the practice of law, character or reputation, and remorse. We also note that respondent has expressed a genuine desire for assistance from the LSBA and other attorneys to learn how to properly manage her practice of law and has already made positive changes to her office procedures.

In light of the above, we find the disciplinary board’s recommended sanction will protect the public yet will not be overly punitive for this inexperienced and remorseful respondent. Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for one year and one day, with all but four months deferred, followed by two years of supervised probation with the conditions set forth in the board’s report

Justice Crichton dissented

Although I agree with the per curiam’s finding that respondent has violated the Rules of Professional Conduct as charged, I disagree with the sanction imposed as I find it unduly lenient. In my view, respondent’s behavior towards clients and her willful disregard for the disciplinary process is troublesome at best. While I commend her statements of remorse, they belie her reluctance to make any restitution in the modest amount of $1,100 during a three-year period. Respondent has also yet to return any of the files requested by her clients, despite a subpoena and repeated requests by ODC. Furthermore, the incident in which respondent told a client who telephoned her that she had the “wrong number” is revealing of the extent taken to evade her responsibility to stand accountable to her clients. As a result, I find a full one year and one day suspension, with no time deferred, is warranted in this matter.

Justice Genovese joined the dissent. (Mike Frisch)

May 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Upper Canada Law Society Must Accommodate Freeze Response

A failure to cooperate with a Law Society of Upper Canada investigation charge has been dismissed in light of circumstances.

The Tribunal Hearing Division essentially faulted the Law Society for failure to accommodate a disability that impaired the attorney 's ability to provide a written answer to the bar complaint 

The Notice of Application describes a routine allegation that a lawyer failed to co-operate with the Law Society as required by the Rules of Professional Conduct (the “Rules”). The facts are not in dispute: The Lawyer did not provide what the Law Society demanded of him. However, by way of substantive defence the Lawyer asserts that he was not capable of responding as demanded by the Law Society by reason of a previously documented disability that caused him to “freeze” when confronted with the investigation. The Lawyer, while acknowledging his obligation to co-operate with the Law Society, maintains, as supported by the medical evidence adduced, that his failure to co-operate was not volitional, and that he required accommodation which was not afforded to him to allow him to fulfill his statutory obligations.

Had the Law Society acted on the medical reports in its possession, this matter may have evolved differently. In this unique factual circumstance, I have accepted the defence and dismiss the application.

The attorney

Mr. Burtt was called to the Bar in 1990 and had practised for decades without attracting the attention of the Law Society until 2014, in relation to events that had occurred in 2013 and 2014.

A prior conduct application generated two medical reports

The Arrowood Report said:

Concerning Mr. Burtt’s inability to complete the required actions in relation to the case (e.g., submitting documentation to the Law Society of Upper Canada) while still being able to function in other domains (e.g., run an otherwise successful practice), his fear of losing his standing in the community, along with the impact censure would have on his overly idealized sense of self as a lawyer, likely made it such that even thinking about these actions caused him considerable distress. Overall I believe that Mr. Burtt was experiencing family-related stress prior to the initial mistake (missing a filing deadline) and that this error produced additional stress and symptoms of depression and that this was considerable [sic] exacerbated, likely to the level of diagnosable clinical depression, by the complaint and involvement of the Law Society.

The Rootenberg Report concluded that:

Mr. Burtt’s depressive symptoms … influenced his ability to functioning [sic] optimally, such as dealing effectively with filing materials within appropriate timelines, as well as affecting his ability to respond to the Law Society within the specified time frames. … the complaint and subsequent Law Society involvement appears to have significantly worsened his mood symptoms and led to him feeling ashamed, humiliated, embarrassed and overwhelmed. This has left him feeling “frozen” by his own admission, explaining his delay in formally responding to the Law Society. [emphasis added]

These reports were offered as mitigation in the earlier matter.

Here

It is important to note here that this new investigation, which resulted in the matter before me, commenced within a year after the earlier discipline matter was concluded and relatively early in the prescribed treatment regime. These events must therefore be considered in the context of what we now know of Mr. Burtt’s medical condition at that time and as it evolved thereafter in the face of the subsequent family challenges he encountered in addition to those presented by this investigation.

The Law Society had an obligation to accommodate his condition

The Law Society correctly observes that the only accommodation expressly requested of the investigators by Mr. Burtt were requests for time extensions. Numerous such extensions were sought and granted and each was accompanied by Mr. Burtt’s promise that the required written reply and documents would be provided by the new deadline. It is also correct that Mr. Burtt never told investigators that due to his disability he could only provide oral representations, nor did he request that they attend his office to electronically copy the client file or suggest any other form of accommodation....

[Investigator] Mr. Thibodeau was readily able to communicate by telephone with Mr. Burtt, who appears to have made himself available as requested. The notes indicate they had a number of lengthy telephone discussions. It is important to recognize that this is not a case of a licensee simply ignoring the entreaties of the regulator. I note that in fact Mr. Burtt initiated three calls to [prior investigator] Mr. Koster.

Law Society counsel argues that it was up to Mr. Burtt to inform the investigators that he “could not” provide written responses or that he “could not” send the requested client documents.

I reject that submission. In the highly unusual circumstances of this licensee, who was known to be suffering from a disability that resulted in “freezing” (which was the very cause of the failure to provide a response) but engaged in protracted dialogue with the investigators, the burden was on the investigators to at least canvass what alternative approach might have fulfilled their objectives. I am not being critical of the investigation after-the-fact by belatedly identifying accommodations that could have been successful. Rather, this is a criticism that, during the investigation, there was no engagement in the express thought process of inquiry concerning the need for or scope of accommodation required.

I accept the Law Society submission that “the investigators are not mind readers and they should not be expected to assume what was in Mr. Burtt’s mind” given that he never explicitly told them that he could only respond orally.

However, Mr. Burtt’s pattern of engagement without follow-through and failure to explain to the investigators what he “could not” do are consistent with his medical diagnosis of “freezing”.

In a vacuum, without knowledge of the medical background set out above, it was open to the investigators to conclude the licensee was being uncooperative and likely guilty of professional misconduct.

However, as trained investigators who should be alert to an existing disability, they had an obligation to affirmatively engage in a thought process that, at a minimum, canvassed alternatives before reaching any conclusion. I express no opinion on whether or not the current suggestions made on Mr. Burtt’s behalf – that of accepting oral representations and/or attending Mr. Burtt’s office to secure documents – would have been sufficient for investigative purposes. What I do conclude, however, is that the Law Society in this situation had a duty to canvass those, as well as other potential accommodations, before deciding that protection of the public interest demanded a traditional written response and, subsequently, required this prosecution.

 It is now known that the accommodations provided – time extensions, an abbreviated written response and omitting the need to produce the client file – were insufficient.

 I am satisfied that the exploration of alternative accommodations such as oral representations would not have caused “undue hardship in the form of harm to the public interest,” as considered in Czernik above. In fact, alternative accommodations, if successful, might have resulted in significant public interest benefits, such as earlier disclosure of information and documentation to respond to the underlying client complaint, and significant costs savings associated with the various phases of this prosecution.

A final observation

A final matter deserves attention here. It was disclosed to me at the commencement of the hearing that Mr. Burtt was represented by Duty Counsel because he could not afford to retain counsel. Exhibit 9 to this proceeding was the Law Society letter to Mr. Burtt informing him of the discipline proceeding. That letter expressly identifies the availability of “Volunteer Duty Counsel—Summary Advise,” although “there is no guarantee that duty counsel will be available.”

Mr. Burtt was fortunate that such assistance was available. A group of volunteer lawyers has recognized that colleagues may be in desperate need of counsel in discipline matters such as this, but for a variety of reasons do not or cannot reach out for help. Participating lawyers render invaluable assistance to licensees through various initiatives at different stages of the discipline process. The outcome of the matter before me was directly attributable to the diligent, exhaustive and comprehensive efforts of Duty Counsel who remained committed to the matter from the outset, through re-attendances and written submissions. This engagement by a volunteer lawyer epitomizes the best characteristics of lawyers: that of caring, commitment and duty. These efforts were vitally important to both the licensee, who was greatly assisted, and also to the profession, one of whose members found himself in need but had been proceeding without help. As well the public interest was better protected by ensuring the conduct of an informed, balanced discipline hearing. Adjudicators in an adversarial forum are entitled to the best available assistance and thoughtful analysis reflecting the interests of all concerned, before determining evolving issues of important jurisprudence in potentially precedent-setting matters.

(Mike Frisch)

May 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Colorable Claim

Misappropriation has resulted in an attorney's license revocation by the Iowa Supreme Court

Suarez-Quilty represented Darlena McElroy in a guardianship case involving McElroy’s elderly father, Percy McElroy (Percy). After McElroy was enjoined from acting on Percy’s behalf, Suarez-Quilty and McElroy met with Percy on January 29, 2013, without the knowledge or consent of his attorney, Jessica Chandler, or his guardian ad litem, Sarah Dewein. While she was meeting with Percy, Suarez-Quilty left Chandler a voicemail proclaiming, “I am sitting with your client . . . and we have some things we would like to discuss with you.” Chandler returned the call immediately to ask why Suarez-Quilty was meeting with Percy, to which Suarez-Quilty responded, “I represent him now.”

In a second phone call that day, Suarez-Quilty informed Chandler that McElroy was going to remove Percy from his location. Dewein and a social worker immediately responded to Percy’s location to find Suarez-Quilty there with Percy. When Dewein confronted Suarez-Quilty with a copy of the injunction enjoining McElroy from acting as Percy’s guardian, Suarez-Quilty continued to insist that McElroy would act as Percy’s guardian. Despite these facts, at a hearing in this case conducted on February 8, Suarez-Quilty told the judge, “I did not visit with Mr. McElroy [on January 29] with regard to anything as it relates to this specific matter.”

She engaged in unauthorized practice after a disability suspension for a operating under the influence conviction and later picked up a third offense.

The misappropriations involved fees.

The court

While the commission found Suarez-Quilty violated numerous ethical rules with regard to her representation of multiple clients, the crux of this appeal focuses on the commission’s finding that Suarez-Quilty misappropriated client funds in violation of rule 32:8.4(c) in the Rawson and Keny matters. It was ultimately this finding that led the commission to recommend revocation of her license to practice law in Iowa, and this is the finding we will address first since it is the most severe...

In the Rawson matter, the commission relied on Suarez-Quilty’s stipulation to violating Iowa Code sections 715A.6(1)(a)(3) and 715A.6(2)(b) in support of its finding that she violated rule 32:8.4(c). Under Iowa Code section 715A.6(1)(a)(3), “[a] person commits a public offense by using a credit card for the purpose of obtaining property or services with knowledge of any of the following: . . . [f]or any other reason the use of the credit card is unauthorized.” Iowa Code § 715A.6(1)(a)(3) (2015). The unauthorized use of a credit card when the value “sought to be secured by means of the credit card is greater than one thousand but not more than ten thousand dollars” is a class “D” felony. Id. § 715A.6(2)(b).

The evidence presented in the stipulation is sufficient to show, by a convincing preponderance of the evidence, Suarez-Quilty committed unauthorized use of a credit card to obtain property or services valued at $5000. Suarez-Quilty admitted to knowingly using a Square Magstripe Reader that was plugged into her iOs or Android device to swipe Eckert’s credit card. The record shows Suarez-Quilty made this charge of $5000 to Eckert’s Chase Freedom Visa credit card on July 10, 2015. Five days prior to committing this unauthorized use, Rawson emailed Suarez-Quilty to let her know that he was disputing the legal fees she claimed he still owed. Rawson requested that Suarez-Quilty “cease all further communication with [him] in regards to collections of [his] account,” and informed her that he would “opt for arbitration of the billing for [his] account if [she] continue[d] to harass [him] either by email, text, or phone call.” Thus, it was clear that Suarez-Quilty did not have authorization to charge Eckert’s credit card for $5000 for the work Suarez-Quilty performed in the Rawson matter since she was aware the fees were being disputed.

Suarez-Quilty also clearly acknowledged her unauthorized use of the credit card in her stipulation...

In the Keny matter, the commission noted in its finding that Suarez-Quilty had “no reasonable explanation for not returning the $630 given to her to cover the cost of the appeal,” nor did she have a colorable future claim to the $630. The commission also relied on Suarez-Quilty’s stipulation that she “exhausted Mr. Keny’s retainer and kept the $630 to which she had no claim” in its finding. This conversion amounts to a violation of Iowa Code sections 714.1(2) (governing misappropriation of property held in trust for personal use), and 714.2(3) (theft of property greater than $500 but less than $1000 is theft in the third degree). The Board has presented sufficient evidence to demonstrate Suarez-Quilty converted Keny’s funds for her personal use. Suarez-Quilty admitted to knowingly keeping these funds without any future colorable claim to them, and the record supports this stipulation. Thus, we also find Suarez-Quilty knowingly misappropriated and converted client funds in the Keny matter in violation of rule 32:8.4(c).

Sanction

While it may be debatable whether Suarez-Quilty had a colorable future claim to the funds in the Rawson matter, it is clear that she did not have a colorable future claim to the funds she converted in the Keny  matter. This leads us to the conclusion that she misappropriated client funds. In the stipulated facts, Suarez-Quilty admits that she did not have a colorable future claim to the funds and converted them for her personal use in the Keny matter. She also failed to present any evidence to the  contrary. “This finding is critical to the outcome of this proceeding and makes it unnecessary for us to discuss the other rule violations in detail.” Guthrie, 901 N.W.2d at 500. Because of this finding, “we need not consider mitigating and aggravating factors that may be present here.” Id. We agree with the Board that revocation is the appropriate sanction in this case.

The briefs can be accessed here. (Mike Frisch)

May 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, May 19, 2018

Bar Discipline In The DMV

The bar discipline matter In re Seth Robbins was argued before the District of Columbia Court of Appeals last Thursday.

Although I regrettably was unable to attend, I understand that an issue was raised of practical consequence to the operation of bar discipline in the District, Maryland and Virginia.

The key issue in the case is whether the complainant and lawyer had an attorney-client relationship with respect to a business transaction (the client guaranteed the debt of another client) that turned into financial disaster. 

After a full evidentiary hearing had been held and adverse findings rendered by a D.C. hearing committee, Virginia inexplicably acted.

As described by the Board on Professional Responsibility

We reject Respondent’s argument that we should defer to contrary findings of a three-judge panel in Virginia that considered the hearing transcript, exhibits, and Hearing Committee Report. We recognize that the doctrine of offensive collateral estoppel applies in disciplinary proceedings, and “‘renders conclusive . . . [the] determination of an issue of fact or law when (1) the issue is actually litigated and (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; (4) under circumstances where the determination was essential to the judgment, and not merely dictum.’” In re Wilde, 68 A.3d 749, 759 (D.C. 2013) (alterations in original) (quoting Modiri v. 1342 Restaurant Group, Inc., 904 A.2d 391, 394 (D.C. 2006)). Pursuant to this doctrine, a respondent may be precluded from relitigating an issue that has already been decided against the respondent in a foreign jurisdiction. Id. at 761 & n.16 (“This court has further provided for the regular application of offensive collateral estoppel in a significant category of bar discipline cases by adopting D.C. Bar R. XI, § 11(c), which calls for the imposition of reciprocal discipline on members of the D.C. Bar upon whom discipline has been imposed by another disciplining court . . . .”). “Under principles of collateral estoppel, in reciprocal discipline cases we generally accept the ruling of the original jurisdiction, even though the underlying sanction may have been based on a different rule of procedure or standard of proof.” In re Benjamin, 698 A.2d 434, 440 (D.C. 1997) (citing In re Richardson, 602 A.2d 179, 181 (D.C. 1992) (per curiam) (collecting cases)).

Respondent here seeks to invoke defensive collateral estoppel, which allows a defendant to prevent a plaintiff from relitigating an issue the plaintiff already litigated and lost. See Walker v. FedEx Office Print Servs., Inc., 123 A.3d 160, 164- 65 (D.C. 2015) (discussing defensive collateral estoppel generally). However, Respondent cites no cases in which Disciplinary Counsel has been precluded from prosecuting a respondent who has been exonerated in a foreign jurisdiction. R. Br. 37. On the other hand, Disciplinary Counsel cites examples of cases in which a respondent was prosecuted here after a foreign exoneration. Disciplinary Counsel’s Br. 21 (citing Wilde, 68 A.3d at 759 (Disciplinary Counsel not precluded from litigating issue decided in respondent’s favor in Maryland disciplinary proceedings), In re Peterkin, Bar Docket No. 387-07 at 38 (BPR Nov. 7, 2011) (preclusive effect not given to Maryland disciplinary proceedings when Disciplinary Counsel was not a party) (appended Hearing Committee Report), and In re Berryman, 764 A.2d 760, 766-67 (D.C. 2000) (probate court finding not binding on Disciplinary Counsel when Disciplinary Counsel not a party)). We recognize that in all of these cases the record in the foreign jurisdiction was different from the record developed here and that, in this case, the evidentiary records overlap because the Virginia panel considered the evidentiary record presented to the Hearing Committee, and the Hearing Committee Report itself, before reaching a contrary conclusion as to the existence of the attorney-client relationship.

The two proceedings, however, were not identical. The Virginia panel did not hear live witnesses and did not read Disciplinary Counsel’s brief to the Hearing Committee. It did hear argument from Virginia’s Bar Counsel and Respondent, which this Hearing Committee did not hear. See R. Br. 3. Given these differences, and the fact that the D.C. discipline system had already conducted a live evidentiary hearing, and a Hearing Committee had prepared a report based on that live evidentiary hearing before the case was considered in Virginia, we see no reason to defer to the findings of the Virginia panel.

The Virginia order is linked here.

It is hardly a valentine per Judge Hupp

Quite frankly, we do not like the decision we make today...we have a lot of criticisms of Mr. Robbins' conduct and certain aspects of the conduct cause us substantial  concern. However, after wrestling at length with that high burden of proof and carefully weighing the evidence in its light, we find that the evidence falls short, but barely so. 

The board here, of course, gets it right. But one is left to wonder why the Virginia Bar Counsel decided to go forward with an original proceeding only without the witnesses. 

The board recommends a 60-day suspension for, in the main, an undisclosed conflict of interest.

The bigger picture involves the fact that there is a significant bar membership overlap between Virginia, Maryland and the District of Columbia.

But there are also significant differences in how those three jurisdictions investigate, prosecute and sanction misconduct. For instance, Maryland's harsher views on serious dishonesty has spawned a veritable cottage industry of reciprocal discipline downward departures in the District of Columbia and increases in Maryland.

One of my more interesting bar sanction cases as a prosecutor involved a truly voluntary self-report of serious dishonesty. Maryland increased the sanction to disbarment as reciprocal discipline. 

When someone complains about a multi-admitted attorney, complaints are typically filed wherever the accused attorney is admitted.

It is imperative that the various Bar Counsel offices work cooperatively to avoid exactly what occurred here.

The good news for Respondent - presumably he will not face reciprocal discipline if and when he is suspended in D.C. (Mike Frisch)

May 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 18, 2018

Settled Law

The Rhode Island Supreme Court has publicly censured an attorney who pursued a settled and released claim on behalf of his clients.

He was retained to secure the return of a security deposit. The claim was settled and a full release of all potential defendants was signed by the clients.

Nonetheless

The Ruggieris did not feel they had been fully compensated, as they had incurred a legal fee to obtain the return of their deposit. They discussed with respondent what further actions may be available to them to secure complete recovery of their funds. It was at this point that respondent began a course of conduct that directly led to these disciplinary proceedings.

Matrone had not filed an answer in the civil action. Well aware that the $15,000 deposit had been returned, and even though respondent had prepared the settlement release which applied to the sellers and their agents (Matrone was at all times acting as the sellers’ agent), respondent sought and obtained a default judgment against Matrone on November 12, 2015. On December 18, 2015, he filed a motion for an oral proof of claim, with a hearing date of January 22, 2016. However, in his pleading he misidentified Matrone, and the notice was forwarded to the wrong address. Matrone did not receive the motion or notice of the hearing date.

On January 22, 2016, respondent and Paul Ruggieri appeared before a hearing justice on the scheduled motion. Matrone was not present. At the beginning of the hearing the justice specifically inquired of the respondent: “Are the defendants in default?” The respondent did not advise the court that his clients had previously received the return of their deposit. Rather, he responded: “Yes, your honor. There’s only one we are seeking relief against here.”

The court heard the testimony of respondent’s client. The respondent elicited testimony that Matrone did not refund the $15,000 deposit. However, he did not ask his client if the deposit had been returned by anyone else. He further asked his client: “[A]re you asking this Court for the entry of default judgment against her for that amount, $15,000, plus interests and costs?” The client answered: “Correct.”

Unaware that the $15,000 deposit had been returned, the hearing justice entered a judgment against Matrone for return of the $15,000, plus statutory interest, costs, and an attorneys’ fees award. Matrone became aware of the judgment when she was served with an execution. On her behalf, the William Raveis agency obtained legal counsel, and on March 31, 2016, respondent consented to an order vacating the judgment against Matrone. On October 7, 2016, the civil action against Matrone was voluntarily dismissed
with prejudice, and with no judgment, interest or costs. 

Matrone filed the bar complaint.

Sanction

The board found many mitigating factors that impacted the severity of the recommended sanction. The respondent has been a member of the bar for 27 years. He has appeared before virtually all of the tribunals in this state, and this is his first disciplinary infraction. He has performed a significant amount of pro bono and reduced fee work for clients with the need, but without the means, for legal services. He has a reputation for honesty and courtesy in his dealings with the courts and with his peers. Additionally, he was fully cooperative in the disciplinary proceedings, recognized his misconduct, and accepted the consequences for his actions. After considering the agreed statement of facts and the significant mitigating factors, the board recommended that a public censure is appropriate in these proceedings.

After review of the board’s findings and recommendation, we concur with the board. We are deeply troubled by the respondent’s lack of candor in this matter. We have previously suspended attorneys from the practice of law for making misrepresentations to a court. See In re Vigue-Thurston, 143 A.3d 1080 (R.I. 2016) (sixty-day suspension); In re Gelfuso, 108 A.3d 208 (R.I. 2015) (thirty-day suspension). However, we believe the respondent has presented sufficient mitigating factors to warrant a departure from the severity of sanctions imposed in similar cases. In addition, we believe that the respondent is truly remorseful for his conduct, and that he is not likely to engage in similar acts in the future.

(Mike Frisch)

May 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Better Not Call

A Michigan Tri-County Hearing Panel disbarred an attorney who had a colorful history of creative misconduct

The Detroit News reported

A Metro Detroit lawyer with a history of misconduct was disbarred Tuesday after a law student suspected that he had forged another attorney’s signature on documents filed at the Michigan appeals court.

Robert Slameka’s law license was taken away by a panel at the Attorney Discipline Board. He didn’t appear at the hearing.

In 2011, Slameka accepted $7,500 to handle an appeal for Damitrice Vann, who was convicted of carjacking and other crimes in Oakland County, according to the Attorney Grievance Commission.

He was accused of subsequently filing court documents under the name of another attorney, Matthew Evans. The filings occurred just before Slameka began serving a 90-day suspension for misconduct in another matter.

“I did not work on your case nor did I file any pleadings on your behalf. … I don’t know why or how this occurred,” Evans said in a letter to Vann.

Slameka, 74, denied wrongdoing during a brief interview with the Associated Press.

“I’m long gone, dude. I’m out of the game,” he said. “I’m living life, and I’m really enjoying it.”

Abbey Lent, a student at University of Michigan law school, was the first to become suspicious.

For other reasons, she was reviewing Vann’s conviction as a possible new case for the school’s Innocence Clinic. Lent looked at the file and noticed that Slameka had told the appeals court that Evans was taking over as the attorney.

“Evans’ signature looked weird,” Lent said. “He confirmed he had never worked on this case. He signed a sticky note, scanned it and faxed it to us. His signature looked nothing like the signature on the substitution form.”

Slameka’s law license was suspended for six months in 2015 after misdemeanor convictions for larceny and breaking and entering. He was well-known at the Wayne County courthouse and had many court-appointed clients.

Slameka had been criticized for his handling of several cases, including the wrongful-murder convictions of 14-year-old Davontae Sanford, who spent eight years in prison.

Sanford told The Detroit News in 2016 that Slameka advised him to plead guilty to four murders he didn’t commit and to seek a bench trial.

Detroit News also covered the Sanford case and noted

The attorney who convinced 14-year-old Davontae Sanford to plead guilty to four drug house murders he didn’t commit is trying to get his law license back after it was suspended for breaking into his ex-girlfriend’s house.

Robert Slameka also lost his driver’s license years ago because he owed more than $600 in unpaid parking tickets. At a recent Michigan Attorney Discipline Board hearing to determine whether to restore his law license, Slameka blamed his “drunken” wife for the 42 outstanding infractions, saying she would become intoxicated and throw the tickets away without telling him.

There was a hole in his story, though: His wife was dead when the tickets were issued.

His mother was dead, too, but that didn’t stop Slameka from posthumously forging her name on her stock dividend checks and depositing them into his bank account...

Slameka’s habit of doing business in a casino hotel lobby was also criticized in the [bar counsel] report.

“One is hard pressed to understand (Slameka’s) reluctance to maintain an appropriate office system given his financial resources and the need to serve his clients appropriately,” Bullington wrote. “(Slameka) had over $760,000 in his bank account, two homes ... and stock holdings. The question remains of why he (didn’t get an office)?”

Bullington cited an exchange between Slameka and discipline board panelist Paul Fischer during the April 1 hearing:

Fischer: “Where’s your new office?”

Slameka: “The hotel lobby of the downtown casino.”

Fischer: “You know, it sounds like ‘Better Call Saul.’ ”

Bullington pointed out how Slameka was caught lying when questioned about more than $600 he owed from outstanding parking tickets.

During the April 1 hearing, Slameka said of his wife: “In her drunken state (she) would just park someplace, the car would get ticketed, and she’d either throw them on the ground or put them in the drawer, which I found later, and I did not know until the Secretary of State wrote me and said you can’t get a driver’s license.

“I said why? And they said you have this amount of tickets. Well, what am I going to do? She’s not here, so I went down to the horrible place on Lafayette and Sixth and paid them.”

Bullington noted that Slameka’s wife, Susan, died in May 2008 — before some of the tickets were written.

Dead mom signing

Slameka had his law license suspended 11 months after his May 2014 breaking and entering and larceny convictions, for which he was sentenced to probation. He claimed he broke into his ex-girlfriend’s apartment to retrieve a wallet he’d left there. He told police he didn’t find the wallet, but that he took several items of clothing he’d bought his ex.

In her report, Bullington cited another reason she felt Slameka shouldn’t get his law license restored: “Signing one’s dead mother’s name to checks and then lying about it is not exemplary conduct.”

Slameka’s mother died in 2005, Bullington wrote. “(She) had purchased stocks and placed his name on the stocks to eliminate probate proceeds. (Slameka) claimed he notified the issuing companies of his mother’s death.”

But bank records show that after his mother died, Slameka continued forging her signature onto the dividend checks and depositing them into his account, Bullington said.

When first questioned about the checks, Slameka said he hadn’t posthumously signed his mother’s name. “After being shown checks with both names signed, (Slameka) acknowledged that he had signed his deceased mother’s name to the checks on multiple occasions.”

In her conclusion, Bullington wrote that Slameka hasn’t met the standards to continue practicing law.

(Mike Frisch)

May 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 17, 2018

Lawyers, Guns and Whiskey

A reprimand and probation has been imposed by agreement approved by the Arizona Presiding Disciplinary Judge.

For purposes of the agreement, the parties stipulate Mr. Barnett knowingly became intoxicated and discharged a firearm inside his residence. His knowing conduct violated his duty to the public. There was actual and potential harm to the public. His conduct caused a bullet to strike a neighbor’s window and caused approximately $2,000 in damage. While no one was injured, his conduct created the possibility of serious injury or death. The presumptive sanction is suspension.

Mr. Barnett drank approximately three liters of whiskey. The neighbor heard a loud sound coming from the area of her master bedroom. Upon searching that room, the neighbor found a bullet had penetrated the pane of her bedroom window. When Mr. Barnett eventually surrendered to the police, it was found that he had fired several shots from a handgun within his home.

Mr. Barnett was charged with a Class 6 Dangerous Felony. He entered a plea agreement with the State by which he pled no contest to Unlawful Discharge of a Firearm a Class 6 Non-Dangerous Undesignated Felony. The Court accepted the plea. He was sentenced to two years of probation. The parties agree there are no aggravating factors. The parties stipulate there are multiple mitigating factors and stipulate that these mitigating factors warrant a reprimand.

The mitigating factor of remorse is best exemplified by actions that objectively demonstrate the claimed remorse. Mr. Barnett has established his extreme remorse by his checking himself into an alcohol treatment center and upon completion of that treatment, residing at a sober living facility. It is reported he was a role model and now regularly attends AA meetings. He is compliant with his terms of probation with the Superior Court.

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Threats To Client Draw Suspension

The Arizona Supreme Court has affirmed the imposition of a 90-day suspension of an attorney

The State Bar’s Amended Complaint claimed Respondent violated ER 1.6 (Confidentiality of Information, alleging, “Respondent revealed confidential information learned during the representation without the informed consent of the client”), ER 1.9(c)(1)(Duties to Former Clients, alleging, “Respondent used information relating to the representation to the disadvantage of a former client”), and ER 4.4 (Respect for the Rights of Others, alleging, “Respondent used means that have no substantial purpose other than to embarrass, delay, or burden any other person.”).

The record establishes that Respondent agreed to represent a client on a limited-scope basis at a hearing involving temporary custody orders. In addition to the child custody dispute, the client, had several pending legal difficulties including a domestic assault charge, a criminal probation order and a deportation order. Respondent worked with her client and the client’s husband to prepare for the temporary custody order and appeared at the hearing. After the hearing, Respondent made repeated efforts to collect her fees and ultimately obtained a default judgment against the client and her husband (now judgment debtors), which they unsuccessfully attempted to set aside. Respondent promulgated discovery in support of her collection efforts and ultimately determined that the judgment debtors were residing in the Flagstaff area. Respondent advises that after she sent notice of a pending inspection in an attempt to execute on the judgment, the judgment debtors left the state. Respondent had previously warned her client about the need to keep various authorities apprised of a current address in order to avoid violating court orders.

On September 16, 2016, Respondent sent the judgment debtors an e-mail threatening to initiate criminal proceedings under A.R.S. § 13-2205, which provides “A person commits defrauding judgment creditors if such person secretes, assigns, conveys or otherwise disposes of his property with the intent to defraud a judgment creditor or to prevent that property from being subjected to payment of a judgment,” and is a class 6 felony. The e-mail specifically stated, “due to your conduct in completely ignoring your debt to … this law firm …, you are hereby notified that if I do not receive a payment … by September 30, 2016, I will be filing felony criminal charges against you under the attached statute and reporting [client’s] numerous violation[s] of the conditions of her probation to the probation department. ICE and Vegas law enforcement will be notified.”

The Panel found that the e-mail was “more than a threat, it was a promise to use the information she had gained from her representation to damage her client … if she did not receive payments.” Decision at 5. The Panel concluded that Respondent had violated ER 1.6 and ER 4.4. The Panel also found that Respondent testified that she sends such letters “all the time” Id. at 12.

The was no Rule 1.6 violation

The Court agrees with Respondent that a threat to disclose confidential information is not an actual disclosure and therefore is not a violation of ER 1.6.

But as to Rule 4.4

Whether a threat to refer a judgment debtor for criminal prosecution is a threat or “merely some free educational, legal advice” may depend “upon both the intent of the sender and the perception of the recipient.” Arizona Ethics Op. 91-07 (in the context of collecting child support on behalf of a government agency). However, here Respondent not only threatened to file criminal charges for the alleged efforts to secrete assets, she threatened to contact her client’s probation officer and advised that there would be consequences for her client’s immigration proceedings...

Although the subjective purpose of collecting a judgment for fees is not forbidden, threats to jeopardize a judgment debtor’s unrelated immigration and criminal proceedings based on information obtained during the scope of representation are impermissible.

Sanction

although making an impermissible threat on behalf of a client may warrant a reprimand, making a threat to one’s own client can implicate other ethical rules including ER 1.9(c) (not found here) which prohibits a lawyer who has formerly represented a client in a matter from using information relating to the representation to the disadvantage of the former client and ER 8.4(d) (not charged here) which prohibits engaging on conduct that is prejudicial to the administration of justice...

The Court therefore concludes that a short-term suspension is appropriate based on the charges and findings in this case and affirms the Panel’s decision.

The attorney must serve a probation of two years on reinstatement. (Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Texts To Client Show Too Much

A disbarment has been imposed by an Arizona Hearing Panel.

In Count I, Mr. Lieberman on multiple occasions failed to comply with Superior Court Orders. In Count II, after representing his client in a litigated hearing, Mr. Lieberman failed to file a final order in her case, despite being ordered by the Court to do so and was held in contempt. He later filed a proposed order without discussing the matter with his client. In Count III, Mr. Lieberman was hired to provide representation in a family law case and was paid $5,000. He appeared once and then abandoned his client. In Count IV, he was paid $17,000 to assist a client in appealing child custody orders. During the representation, Mr. Lieberman sent his client a text message in which he asked her: “Would you rather have sex and not pay at all?” He made similar statements to his client over the phone and sent at least one text message containing a picture of his genitalia. Mr. Lieberman also failed to respond to the State Bar’s screening letters, phone calls, and emails.

The last charge

Mr. Lieberman represented Laura Cruz in her family law case (SP20060213). Cruz originally hired Mr. Lieberman in 2015 and paid $17,000 to assist her in appealing child custody orders issued by the court in June of 2015. On June 17, 2016, the Court of Appeals granted Cruz’s appeal. [Ex. 23.]

During the representation, Mr. Lieberman sent Cruz a text message in which he asked her: “Would you rather have sex and not pay at all?” Cruz declined.

Mr. Lieberman made similar statements to Cruz over the phone and sent at least one text message containing a picture of his genitalia. Mr. Lieberman also offered Cruz $500 to see her naked. Because of Mr. Lieberman’s behavior, and her financial inability to hire another attorney, Cruz turned over all communication in her case to her mother. [Ex. 23.]

Mr. Lieberman communicated to Cruz’s mother that he had communicated with the court’s judicial assistant about obtaining a hearing in Cruz’s case to address child support. Cruz, however, contacted the judicial assistant independently and learned that Mr. Lieberman had not engaged in any such communication with the court. [Id.]

Mr. Lieberman failed to inform Cruz of his suspension that began August 25, 2017. Mr. Lieberman has refunded none of Cruz’s attorneys’ fees. [Id.]

He defaulted on the bar charges.

The earlier suspension described in the last paragraph is reported here. 

Attorney Scott Lieberman of Tucson was suspended for three years for engaging in a sexual relationship with his client in one case, lying to the State Bar regarding his sexual history with clients in a second case, and failing to adequately represent a client in a third case.

Lieberman was hired in the first case to represent a client in a divorce matter in the spring of 2007. He engaged in a sexual relationship with the client after being retained for representation.

Lieberman was later investigated by the State Bar for inappropriate sexual comments to clients and third parties. During that investigation, Lieberman falsely denied ever having “a sexual relationship with a client.”

In the third matter, he was retained in 2012 to represent a client in a family law case. A parenting time order was entered by the Pima County Superior Court against his client and she requested he challenge it. His client requested a copy of the motion for reconsideration she presumed he filed, but he failed to provide it as he never filed it with the court. The Bar sent him a screening letter regarding this matter, but he failed to respond.

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Consent Disbarment After "Horrific Collision"

The Arizona Presiding Disciplinary Judge accepted the consent disbarment of an attorney who is facing charges relating to the death of a motorcyclist.

AZFamily reported on the alleged crime

The Scottsdale Police Department said Wednesday that it has arrested a woman on suspicion of hitting and killing a motorcyclist in August.

Investigators said Tracy Shelden Morehouse had a blood alcohol concentration of 0.355 percent when she hit Greg Dolphin, who was stopped at the red light on southbound Scottsdale Road at Princess Drive. They also said Morehouse, 46, hit speeds of 100 mph shortly before what police described as a “horrific collision” on Aug. 13.

[RELATED: Police ID motorcycle rider killed in Scottsdale crash over the weekend]

“Through investigation, it was learned Morehouse reached speeds of over 100 miles per hour, and that she was traveling in excess of 84 miles per hour at the point of impact with Dolphin,” Kevin Watts of the Scottsdale Police Department wrote in a news alert about the arrest.

Police said before she hit Dolphin with her 2014 red Tesla, Morehouse was seen driving south in the northbound lanes of Scottsdale Road. Investigators said she hit a Toyota 4 Runner at Chauncey Lane. That's less than half a mile from Princess Drive.

“Morehouse failed to stop and remain on scene of that non-injury collision, and instead fled south on Scottsdale Road at a high rate of speed,” Watts explained.

She kept going, according to police, until she hit Dolphin. The 45-year-old was pronounced dead at the scene.

[ORIGINAL STORY: Motorcycle rider killed in crash in Scottsdale]

Watts said Morehouse was arrested Tuesday night and booked on suspicion of second-degree murder.

Her BAC of 0.355 percent is more than four times Arizona's legal definition of intoxicated, which is 0.08 percent. That number puts Morehouse squarely in the super extreme DUI category defined by Arizona law (ARS 28-1382)

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sex And Neglect Draw Disbarment

The New York Appellate Division for the Third Judicial Department has disbarred a de-robed former judge

Respondent was admitted to practice by this Court in 1986 and maintained an office in the City of Albany, Albany County. He previously served as Town of Colonie Justice from 2002 until 2005, when he resigned while under investigation by the Commission on Judicial Conduct (see Matter of DiStefano, 2005 WL 5727950 [NY Commn Jud Conduct, Nov. 16, 2005]).

Following a May 2013 complaint, the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) commenced an investigation concerning allegations of professional misconduct related to respondent's neglect of a client's matrimonial matter and his engagement in a sexual relationship with that domestic relations client (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.3, 1.4, 1.8 [j]). By order entered October 12, 2017, this Court suspended respondent from the practice of law due to his failure to cooperate with that investigation and his failure to fully comply with a subpoena duces tecum issued by this Court directing him to, among other things, produce records relevant to AGC's investigation and to give testimony under oath (154 AD3d 1055 [2017]). Said suspension remains in effect

Six months passed without response and thus disbarment.

Polite question: How does one both neglect and have sex with the client? Misplaced priorities? (Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

One Year For Unsportsmanlike Conduct

The Wisconsin Supreme Court suspended  an attorney with no prior discipline for one year

On June 24, 2016, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Bauer alleging 28 counts of misconduct. The complaint alleged that between December 2013 and October 2014, Attorney Bauer misused seven clients' trust funds and mismanaged his trust account. On numerous occasions he transferred client funds from one account to another without permission of the clients, failed to make  No. 2016AP1259-D notations of the transfers, transferred trust account funds to fill gaps created in other client accounts to avoid detection, transferred trust funds to his office account and to the account of his subsidiary business, Sports Advisors, Inc., and borrowed money to reestablish correct account balances. It is undisputed that all of the clients received all monies due them. It is also undisputed that none of the clients consented to the use of their money to fund disbursements that benefitted others. 

Sanction

Attorney Bauer made numerous improper transfers of multiple clients' funds between his firm's trust account, the firm's business account, and accounts belonging to Attorney Bauer's side business, Sports Advisors, Inc. These labyrinthine transfers support the referee's comments that Attorney Bauer saw his trust account "as something akin to a slush fund" and that the transfers "seemed to constantly be in the process of 'robbing Peter to pay Paul' and, in some cases, to pay Michael Bauer." The transfers continued for nearly one year. Attorney Bauer was an experienced attorney who should have known that the transfers were improper. We agree with the referee that Attorney Bauer's repeated acts of dishonesty, fraud, deceit and misrepresentation in converting $376,000 in client funds, along with his failure to comply with multiple supreme court rules regarding trust account management, warrant a one-year suspension. As is our usual custom, we also find it appropriate to assess the full costs of the proceeding against Attorney Bauer.

There are places where this kind of misconduct draws a much more severe sanction. (Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Payment Snafu

Dan Trevas previews two bar discipline cases up for oral argument before the Ohio Supreme Court

A former Mahoning County auditor is facing indefinite suspension from the practice of law for conduct related to the “Oakhill” influence-peddling scandal, which led to the criminal conviction of prominent public officials. In Mahoning Count Bar Association v. Sciortino, the parties stipulated that former auditor Michael V. Sciortino committed four violations of the rules barring lawyers from committing illegal acts and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Sciortino has been serving an interim suspension since his April 2016 plea agreement. Sciortino objects to one of the conditions he would have to meet to be reinstated to the practice of law.

In Disciplinary Counsel v. Owens, the Ohio Board of Professional Conduct recommends a six-month suspension for a Delaware County attorney. His client had been jailed for not paying nearly $60,000 in spousal support, and the attorney used funds belonging to other clients to obtain this client’s release from jail. The attorney denies any wrongdoing, stating that the funds were expected imminently from the man’s new wife, that he explained the circumstances to the agency that handled the support payments, and that other issues were “payment snafus.” He asks either that the case be dismissed or that he receive the lesser sanction of a public reprimand.

(Mike Frisch)

May 17, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 16, 2018

Back On Par

The Oklahoma Supreme Court has reinstated an attorney suspended for misconduct in these circumstances

William Martin McLaughlin graduated from Oklahoma City University School of Law in May of 1988. Following successful completion of the bar examination, he was admitted to the Oklahoma Bar Association (hereinafter "OBA") on October 5, 1988. For the first seven years in practice, McLaughlin resided in Stillwater and worked as an assistant district attorney for Logan and Payne Counties. McLaughlin left the district attorney's office in 1995, to begin a private practice.

In September 1997, McLaughlin was involved in an automobile accident which severely injured his left arm. Prior to the accident, McLaughlin had been a "scratch" golfer, but the extensive injury ended his ability to play competitive golf. Consumed with physical pain and depression, McLaughlin began self-medicating with alcohol. As his use of alcohol escalated, McLaughlin accumulated multiple criminal charges. During the hearing before the Professional Responsibility Tribunal (hereinafter "PRT"), McLaughlin testified that he had been charged in sixteen separate criminal cases, all of which were connected to his abuse of alcohol. The vast majority of these criminal charges were for driving under the influence or public intoxication.

The court suspended him on incapacity grounds in 2007. 

After suspension he sought help and the court credited his efforts

 Our primary focus in cases involving incapacity stemming from drug or alcohol abuse is the extent of rehabilitation from the incapacity, the conduct subsequent to the suspension and treatment received for the condition, and the time which has elapsed since the suspension. Id. It is essential that the record demonstrate the applicant has, for a significant amount of time, maintained sobriety and refrained from abusing drugs or alcohol; passed random drug and alcohol tests; immersed himself/herself in a 12-step program; sought necessary counseling; and participated in Lawyers Helping Lawyers. Id. ¶ 15, 163 P.3d at 534. Only after an applicant has diligently pursued and maintained his or her sobriety, and has met the other requirements associated with reinstatement, may a petition seeking reinstatement be granted. Id.

 Following his Rule 10 suspension, McLaughlin began efforts to achieve sobriety. While he abstained from alcohol for roughly two years, McLaughlin did not initially attend Alcoholics Anonymous, nor did he implement any other 12-step program. As a result of this omission, McLaughlin continuously relapsed. It wasn't until July 18, 2011, that McLaughlin was finally able to stop drinking alcohol. Following his last drink, McLaughlin began working the 12-steps of AA, and has been able to maintain his sobriety for more than six years.

McLaughlin accumulated multiple criminal charges between 2004 and 2011. Each of the criminal matters formed sufficient basis for disciplinary action by this Court; however, our prior order dismissing the Rule 7 case precludes imposition of discipline. Nevertheless, we have considered these criminal acts for purposes of determining whether reinstatement is justified. There can be no doubt that McLaughlin's actions were reprehensible and reflected negatively on the legal profession. Each time McLaughlin sat behind the wheel of his car while under the influence, he put lives of innocent Oklahoma citizens in jeopardy. Additionally, McLaughlin, while intoxicated, sought sexual favors from a prospective client. The totality of these criminal acts would have certainly warranted disbarment. All of these transgressions, however, were directly attributable to McLaughlin's alcoholism.

Based on the evidence presented at the PRT hearing, the record conclusively establishes dramatic positive changes in McLaughlin's life that were brought about through sobriety. Collectively the record before us demonstrates McLaughlin's present moral character to practice law. While testifying before the PRT, McLaughlin acknowledged the disrepute his behavior brought on the legal profession, and he expressed remorse for his unprofessional conduct. McLaughlin's rehabilitation has been extensive, allowing him to maintain sobriety over a period of more than six years. He has been active in both AA and OBA's Lawyers Helping Lawyers program. Numerous witnesses testified that over the past six years McLaughlin has mentally and physically rehabilitated himself.

For example, McLaughlin's Alcoholics Anonymous sponsor testified that he would hire McLaughlin as his lawyer if he was ever in trouble and McLaughlin had his license back. McLaughlin's senior case manager at the Pershing Center testified, "[McLaughlin] is a man of character," and she would absolutely recommend McLaughlin for reinstatement. Furthermore, McLaughlin's ex-wife testified the she believes he will not relapse again because he treats his sobriety "like oxygen and food, [and] that [it] is the most important thing, because [McLaughlin] has told [her] many times if he doesn't maintain his sobriety, then he will lose everything."

The evidence also demonstrates McLaughlin refrained from engaging in the unauthorized practice of law during his suspension. In 2011, McLaughlin began working as a legal assistant for attorney Clyde Anderson. Aware of his suspension, Anderson conditioned the employment arrangement on an agreement which imposed specific restrictions, including: (1) McLaughlin was prohibited from directly or indirectly dealing with clients; (2) McLaughlin was not allowed to participate in any legal proceeding (including appearing in court, depositions or mediation, etc.) or from transacting any client matter with a third party; (3) McLaughlin could not give clients legal advice in any manner; and (4) McLaughlin was prohibited from handling client funds. Additionally, McLaughlin's work space was situated so as to minimize his contact with incoming clients.

(Mike Frisch)

May 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Worship Of Mindless Proceduralism

If everything that is wrong with the District of Columbia Board on Professional Responsibility could be distilled to its essence in 10 pages, it would bear a striking resemblance to a report filed the other day in the case of In re Leslie Thompson. 

Setting the stage

On December 21, 2017, the Court granted the Board’s petition to temporarily suspend Respondent, pursuant to D.C. Bar R. XI, § 3(c), for his failure to respond to a Board order in a different disciplinary investigation (Disciplinary Docket No. 2017-D186). Rule XI, § 3(c) provides that the Court may suspend a respondent who has failed to respond to an order of the Board in a matter where Disciplinary Counsel’s investigation involves allegations of “serious misconduct,” which includes “fraud, dishonesty, misappropriation, commingling, overdraft of trust accounts, criminal conduct other than criminal contempt, or instances of neglect that establish a pattern of misconduct.” At the time of this Report, Respondent has not sought reinstatement to the Bar.

At issue in this case in which the attorney failed to appear to contest charges of failure to cooperate in a bar investigation is a typo in the bar charges.

Disciplinary Counsel charged the non-cooperation violated Rule 8.1(a) rather than (b) but clearly by its charging language alleged the (b) (failure to respond to bar complaint) violation.

Heaven forbid to those who exhalt form over substance

The Committee determined that Disciplinary Counsel could not proceed on its allegations that Respondent had “knowingly fail[ed] to respond reasonably to a lawful demand for information,” because it did not clearly charge a violation of Rule 8.1(b) and did not follow the mandated procedures to amend the Specification of Charges.

The "governing" board rule

Board Rule 7.21 provides that:

No amendment or any petition or of any answer may be made except on leave granted by the appropriate Hearing Committee Chair. Whenever, in the course of a formal hearing, evidence shall be presented upon which another charge or charges against respondent might be made, it shall not be necessary to prepare or serve an additional petition with respect thereto, but upon motion by respondent or by Disciplinary Counsel, the Hearing Committee Chair may continue the hearing. After providing respondent reasonable notice and an opportunity to answer, the Hearing Committee may proceed to the consideration of such additional charge or charges as if they had been made and served at the time of service of the original petition.

The procedures dreamed up by the board invariably are nothing but obstacles to the efficient prosecution of charges.

And, as per usual, more process than is accorded to a criminal defendant. 

A former board chair agrees

"You get more due process in the disciplinary system than a first-degree murder defendant," said Mark Foster, a former chairman of the Board on Professional Responsibility, which is appointed by the D.C. Court of Appeals. "The system is created by lawyers for lawyers."

A 1993 decision of the Connecticut Supreme Court gets it right

In attorney disciplinary proceedings, two interests are of paramount importance. On the one hand, we must not tie the hands of grievance committees and trial courts with procedural requirements so strict that it becomes virtually impossible to discipline an attorney for any but the most obvious, egregious and public misconduct. On the other hand, we must ensure that attorneys subject to disciplinary action are afforded the full measure of procedural due process required under the constitution so that we do not unjustly deprive them of their reputation and livelihood. 

The Thompson case shows how the D.C. board deals with a typographical error where the allegations are crystal clear and the lawyer - who is charged with failure to cooperate as required by the rule  - does not deign to contest the charges.

If you wonder why cases in many jurisdictions can take as little as a year to proceed from charges to final court action (see Kansas, for example) and it takes ten years or more with some regularity in the District of Columbia, the mindset that produces a unanimous report like this is a more than likely suspect. 

And many jurisdictions actually care whether or not a lawyer responds to a bar complaint. Many if not most (e.g. New York, Nebraska. Maryland) have default rules with teeth - if you don't respond, you admit the charges (typos and all). 

In New York, a non-responding lawyer is immediately suspended and disbarred if no response is forthcoming within six months.

By contrast, in the District of Columbia, the board as an institution has long worshipped at the alter of mindless proceduralism to the detriment of any concept of the need for public protection. 

And the fact that there are hearing committee reports that are years overdue? 

No problem at all. 

The players change, the mindset never does.

The report can be found here. (Mike Frisch)

May 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 15, 2018

No Complaints Please

The Illinois Review Board proposes a 90-day suspension of an attorney on these charges

The Administrator brought a one-count complaint against Respondent, charging her with improperly entering into an agreement with a client that limited or purported to limit the client's right to file or pursue a complaint before the ARDC, and with filing a response to her client's motion to dismiss counsel in which she revealed information relating to her representation of the client without the client's informed consent, in violation of 2010 Illinois Rules of Professional 8.4(h) and 1.6(a), respectively.

The Hearing Board found that Respondent had engaged in the charged misconduct and recommended that, for her misconduct, Respondent be suspended for 30 days, with the suspension stayed in its entirety by a 60-day period of probation, the only condition of which was for Respondent to complete the ARDC Professionalism seminar.

Facts

Respondent was licensed to practice law in Illinois in 1993. She also is licensed to practice in Missouri. She is a solo practitioner. At the time of her disciplinary hearing, she had one active case. She also works as a substitute teacher. She has no prior misconduct.

In May 2015, Respondent began representing John Quincy Adams IV in some criminal and traffic matters. She and Adams entered into a retainer agreement, which she prepared and presented to him and which provided, in part:

Client agrees to make all matters of said representation confidential between client(s), his/her agents, assigns and principals and to refrain from reporting any phase of said representation to any external agency, including but not limited to the Missouri Bar, ARDC etc.

(Hearing Bd. Report at 4 (citing Admin. Ex. 1).)

Respondent represented Adams until March 2016. On March 2, Adams filed with the court a handwritten motion stating that he would like to fire Respondent and hire different counsel. That same night, Respondent and Adams had a phone conversation. Respondent testified that he told her he had made up his mind to fire her, that he was going to get her in trouble, and that he had filed a complaint against her. He did not tell her that he had already filed a motion to dismiss her as his counsel.

Following their phone conversation, Respondent drafted a letter to Adams in which she referred to his "horrible criminal past" and a "violent criminal past;" stated that he has been "arrested and/or convicted in Missouri at least fourteen times;" stated that he "wanted to bribe the court in some manner;" and called him a "paranoid ingrate and miserable con man who tries to blame everyone else but yourself for YOUR misdeeds TO WHICH YOU CONFESSED." (Hearing Bd. Report at 11 (emphasis in original).)

A hearing on Adam's motion was set for March 10, and notice of the hearing was sent to Respondent on March 3. On March 9, Respondent filed an answer to Adam's motion with the Circuit Court of Monroe County, and attached the above-quoted letter to her answer. It thus became a matter of public record.

Respondent testified at her hearing that she was "in a blur" and "upset" when she wrote the letter because of Adams' rant during their conversation. She further testified that she included the letter with her filed answer out of "just frustration," because she was "enraged" and in a "rage of emotion," and "reacted on ? [her] own personal hurt." She acknowledged that the letter contained confidential information that she should not have disclosed without her client's consent; that the filing of the letter was "wrong;" and that she "was not justified" in filing it. (Hearing Bd. Report at 17.)

Sanction

Respondent's misconduct falls toward the middle of the spectrum of misconduct involved in the foregoing cases. Her unauthorized disclosure of confidential information to the court and, effectively, to the public was more egregious than O'Connor's, in that Respondent's disclosure was intentional rather than careless, and involved a criminal matter, which could have had serious repercussions for her client. The nature of her misconduct - disclosing information relating to her client's criminal case - is on par with Peshek's and Garza's misconduct - although those respondents disclosed information relating to multiple criminal clients. And, while Gilsdorf's misconduct involved only one criminal client, like Respondent's, the scope and impact of Gilsdorf's unauthorized disclosure of information about his client's case were vastly greater than Respondent's. Gilsdorf essentially released into the world via the internet a video of his client committing a crime, thereby impacting his client's criminal proceeding and causing actual harm to his client.

On balance, we find this matter most analogous to Garza, although, in that matter, the Hearing Board found, in aggravation, that Garza did not acknowledge, showed no remorse for, and did not accept responsibility for her misconduct, but rather rationalized her misconduct and blamed others for it. The Administrator asks us to make a similar finding of aggravation here. We cannot do so, however, because the Administrator has not given us a basis for overturning the Hearing Board's factual findings regarding Respondent's credibility and demeanor.

But, while we accept and affirm the Hearing Board's finding that Respondent had accepted responsibility and expressed remorse for her actions as of the time of her hearing, we believe that finding is tempered by Respondent's arguments in her appellee's brief, in which she disparaged her client and at least partly blamed him for her disciplinary troubles. Consequently, we cannot find that Respondent has accepted full responsibility or expressed unconditional remorse for her misconduct, which diminishes the weight of those factors in mitigation.

In addition, we find that Respondent's derogatory, vitriolic, and potentially inculpatory statements about her client contained in the letter that she filed with the court could have impacted her client's criminal matter and caused him significant harm. That risk of harm should not be minimized.

We conclude that a suspension of 90 days is commensurate with Respondent's misconduct, is consistent with discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline and deter others from committing similar misconduct. We also believe that Respondent would benefit from a review of her ethical obligations to her clients, and therefore recommend that she take the ARDC Professionalism seminar.

(Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Rehab Plan: Play More Golf

The New Jersey Supreme Court reprimanded an attorney who violated the conditions of an agreement in lieu of discipline.

The Disciplinary Review Board made findings concerning the matter

In May 2013, respondent entered into an agreement in lieu of discipline (ALD). Because he failed to comply with its requirements, the DEC filed an ethics complaint against him.

On June 17, 2015, prior to the ethics hearing, the DEC issued a case management order, which provided that, if respondent sought to challenge the admissibility of the ALD and/or the admissions contained therein, he was required to file a brief on or before July 10, 2015, failing which he would be deemed to have waived any objection to its admission into evidence and any admissions contained therein. Respondent neither filed a brief nor objected to the admission of the ALD at the DEC hearing, but stated that he was there to put on a case and "to win friends and influence people."

The complaint involved alleged mishandling of a matrimonial case

At the DEC hearing, respondent thanked the panel for the opportunity to be present and "you know, just win friends and influence people. One day I’ll be on top of that panel." He later reiterated that if the ethics matter "goes nowhere, in about ten years, I will be on a panel similar to this."

Respondent asserted that, regardless of the panel’s ultimate decision, he had already changed his business practice. He was a "different attorney" from the one he was before. He was thought of "more of a business-minded attorney," and his clients were "much happier." He has changed his business practices, "which teaches me to think more like a business professional and have a successful family life . . . I’ve rehabbed myself."

Respondent regretted not following through with the conditions, presumably of the ALD. He claimed that he had written a letter of apology to the judge, but never submitted it because he wanted to deliver it in person...

As to the changes to his law practice, respondent remarked that new attorneys do not have funds for hiring staff. Thus, he starting reading books, one of which changed his life, Four Hour Work Week, which deals with outsourcing work. According to respondent, none of his paralegals are even in the State of New Jersey. "They’re spread out through the United States and I’m even exploring paralegals in India who can do legal work for me for pennies on the dollar." Respondent named several websites that could be used to post ads to hire paralegals for project based jobs to avoid paying someone a salary or benefits to sit in the office. He stated that the concept "works great" for him.

Respondent maintained that he tried to hire the best and smartest paralegals "who are ten times smarter than me who never got a chance to go to law school for whatever reason," and employs a paralegal who is licensed in another state but does not have a New Jersey license. According to respondent, she is 100 times smarter than him. He reviews her work and focuses "on going to conferences, building relationships and playing golf, because that brings in the business and I can have my paralegals do the work while I supervise them." His paralegals, however, do not dispense legal advice. This is like senior partner thinking because "they’re out playing golf and building relationship[s], which ultimately brings in the business."

The DRB found the charged violations and reprimanded the attorney

we have some reservations regarding respondent’s cognizance of his duties and obligations as an attorney. Thus, we further determine to impose the following conditions on respondent’s practice: (i) that respondent practice under the supervision of an OAE-approved proctor, until the OAE deems it is no longer necessary; (2) that he complete a Continuing Legal Education (CLE) course in law office management; and (3) that he complete two additional ethics courses, in addition to those required for CLE credit. Respondent is to provide proof to the OAE of completion of the courses within one year from the date of the Court’s Order.

(Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Swift Action And Its Opposite

The Ohio Supreme Court has imposed an interim suspension of an attorney with a Washington, D.C.  address for a Virginia felony conviction.

On certified entry of felony conviction. Christopher Paul Mitchell, Attorney Registration No. 0077327, last known address in Washington, District of Columbia, suspended from the practice of law for an interim period.

On May 1, 2018, the attorney was convicted of a felony leaving the scene of an accident causing personal injury or death in the City of Fredricksburg Circuit Court . He received a suspended sentence of three years and 60 days.

Notably, a District of Columbia attorney was convicted of the exact same offense (Virginia Code section 46.2 - 894) in 2005 and has yet to serve a single day of suspension for a felony hit and run conviction.

We reported on the lawyer-absolving report and recommendation of the Board on Professional Responsibility in August 2015

The report of the District of Columbia Board of Professional Responsibility in the case of Wayne Rohde, Board Docket No. D347-05, has been filed.

You may remember the case - it involves an attorney who drove from the District of Columbia to Virginia after a night of heavy drinking. He struck and seriously injured another motorist, fled the scene but left his car bumper with license plate affixed behind.

He pled guilty and was sentenced in 2005 to felony criminal charges in Virginia.

The D.C. disciplinary system began its processes that same year.

It took seven years for the hearing committee to file a report on the ethics charges. On the plus side, the Board acted faster but to no better result.

Oral argument before the Court of Appeals took place in the Rohde case in October 2016. No decision has yet been forthcoming. 

An attorney convicted of felony hit-and-run in Virginia was suspended in Ohio within two weeks of his conviction.

In the District of Columbia, no sanction has been imposed in the thirteen years since the precise same felony conviction.  (Mike Frisch)

May 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)