Monday, June 26, 2017

Tennessee Tampering Conviction A Family Affair

A Tennessee attorney convicted of tampering with evidence has been disbarred by consent.

The crime was covered by the Jackson Sun

A jury found Edythe Christie guilty of tampering with evidence Thursday for deleting photos and videos from her son’s cell phone following her daughter-in-law’s death.

Christie will be held in the Madison County Jail without bond until her sentencing on Oct.1. Her family reacted to the verdict with shock and tears.

“She is not guilty,” her father, Lonnie Paschall, said.

Edythe Christie testified in her defense Thursday morning after her son, John Christie, testified as a prosecution witness on Wednesday.

In court, Edythe Christie’s attorney Hal Dorsey said Christie did not deny deleting photos and videos from her son’s phone. She checked the phone out from his personal items in the Madison County Criminal Justice Complex in December 2013 while he was in jail on a probation violation. The defense contended that the phone wasn’t considered evidence.

John Christie’s estranged wife Brittany Christie was found dead in an Old Hickory Inn hotel room on Dec. 6, 2013. Police said she died of an overdose of heroin and clonazepam. Authorities charged John Christie with her murder several months later, in April 2014.

“When I saw the photographs of Brittany on the phone, I just had a gut reaction,” Edythe Christie testified Thursday. “I believed the photographs could be recovered.”

Christie said she deleted the photos of her daughter-in-law to protect her son from seeing them after he was released from jail.

“It was to protect John and his children,” Edythe Christie said in court. “I had no intention of making it unavailable to police.”

Voice recordings of the mother and son discussing the cell phone on Dec. 19 and Dec. 20, 2013, when John Christie was in custody, were played in court on Wednesday.

In the recorded calls, John Christie asked his mother to pick up the phone from his personal items. Edythe Christie told him she would pick the phone up the next morning, on Dec. 20.

“I had no intention of destroying or deleting anything,” she testified. “I thought if I deleted texts and phone calls, then that’s a crime.”

Edythe Christie said she kept the phone with her in her Medina home until she gave it to her son’s attorney in May. A week after she turned it over to the attorney, police searched her home, as well as John Christie’s attorney’s office, to find the Samsung phone.

“I didn’t believe it to be relevant evidence,” she said in court. “I just wanted to shut him up.”

Christie said she never intended to hide the phone from investigators.

“If they would’ve asked me, I would’ve told them where it was and what was deleted,” she said. “I thought, ‘If the police want the phone, then they can come find the phone.’”

Members of Brittany Christie’s family were in court during both John and Edythe Christie’s testimony. To stepsister Kristin Mayo, the verdict is another step toward closure for the family.

“I’m happy with the verdict, happy with the outcome,” Mayo said. “I’m hoping to get the same verdict and get peace and closure in Brittany’s death.”

John Christie is scheduled for trial next month on charges of second-degree murder and tampering with evidence. Mayo said seeing Christie testify in his mother’s trial was difficult for Brittany’s family.

“It’s hard to see him period,” Mayo said. “They’re good people and I know they’re going through a lot.”

John Christie had asked his mother to destroy the SD card in his phone, according to testimony. Jackson police investigators testified she did not destroy the card, but did delete five photos and a video showing John and Brittany Christie together before Brittany Christie’s death. The photos and video were recovered and were shown in court on Wednesday.

Edythe Christie was an attorney of 19 years, most recently practicing in Gibson County.

After the jury read the guilty verdict, Christie’s attorney said he did not believe she would practice anymore.

“I’m sure that will cease starting today,” Dorsey said.

After the verdict was read, Judge Don Allen said Edythe Christie knew the deleted photos were evidence investigators would have needed to show John and Brittany Christie were together before Brittany was found dead.

“The 24 hours leading up to her death is critical to an investigator,” Allen said. “It was a critical piece of evidence she deleted.”

Edythe Christie is scheduled for sentencing on Oct. 1 at 8:30 a.m.

John Christie is scheduled for trial Sept. 29.

(Mike Frisch)

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

Bankruptcy Misconduct Gets Attorney Disbarred

The Maryland Court of Appeals has disbarred an attorney for misconduct in his own bankruptcy

Respondent, Mark Kotlarsky, was admitted to the Bar of Maryland on December 15, 1992. On August 22, 2016, the Attorney Grievance Commission of Maryland (“the
Commission”), through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent as a result of having received a notice
from Citibank that Respondent had over-drafted his operating account ending in -3487. Upon investigation, the Commission discovered that Respondent had failed to disclose assets that were associated with his law firm’s pension plan in his bankruptcy petition, and that Respondent had outstanding federal and state tax liens totaling $35,092.72. In its Petition, the Commission alleged that Respondent violated Maryland Attorneys’ Rules of Professional Conduct...

The court

The Commission requests that this Court disbar Respondent from the practice of law. According to the Commission, Respondent’s repeated failure to respond to Bar Counsel’s inquiries regarding outstanding tax liens, his attorney trust account, and his failure to disclose assets associated with his law firm’s pension plan in his Petition for Chapter 7 Bankruptcy, warrant such a sanction. We agree.

(Mike Frisch)

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

Saturday, June 24, 2017

Vindictive Former Judge Suspended

The Maine Supreme Judicial Court has suspended a former judge for two years.

The charges

Count 1 alleged that then Judge-elect Nadeau’s directive to the Register of Probate of York County not to include seven attorneys on the court appointed  attorney list was motivated by his previous contentious relationship with those  attorneys, in violation of Judicial Canons 2(B) and 3(C)(4);

Count 2 alleged that Judge Nadeau’s removal of an attorney from cases to  which she had previously been appointed was motivated by her association  with an attorney with whom Nadeau had a contentious relationship, in  violation of Canon 2(A) and (B);

Count 3 alleged that—in a case in which he had recused himself— Judge Nadeau ordered an attorney to destroy a lawfully obtained public  document, in violation of Canon 2(A);

Count 4 alleged that Judge Nadeau’s abrupt overhaul of the Probate Court  schedule was motivated by his anger with the York County Commissioners  when his request for a pay increase was rejected, in violation of Canons 1, 2(A)  and (B), and 3(B)(8); and

Count 5 alleged that Judge Nadeau was, through oral and written orders, encouraging litigants before him to contact their county officials to lobby for  increased court funding, which would also increase his salary, in violation of  Canon 2(B).

Sanction

This is now the fourth time that Judge Nadeau has appeared before  us for ethical violations, and the third time for conduct that occurred while  serving in a judicial capacity. See In re Nadeau, 2016 ME 116, 144 A.3d 1161;  In re Nadeau, 2007 ME 21, 914 A.2d 71415; Bd. of Overseers of the Bar v. Nadeau,  Bar-05-03, 2006 Me. LEXIS 167 (Mar. 2, 2006). Here, his actions were often  carried out in an intemperate and vindictive fashion against former colleagues of his law practice and their associates. Attorneys’ reputations were harmed, and litigants before him were pressured to support his efforts to increase court  resources and his compensation. Judge Nadeau has not fully acknowledged the  intemperate nature of his decisions.

...This time, therefore, more severe sanctions are warranted. It  is hereby ordered that Robert M.A. Nadeau forfeit $5,000 and be suspended from the practice of law for two years...

(Mike Frisch)

June 24, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, June 23, 2017

A Misbegotten Prosecution Results In Dismissal And Reprimand

The Maryland Court of Appeals decided a disciplinary case against two attorneys that I have closely followed.

In sharp contrast to my usual position, I entirely side with the accused attorneys and believe that they (and their pro bono clients, who vigorously supported them) should never have been subjected to prosecution.

One thing that I learned in over 17 years as a bar prosecutor is that you have the power to make someones life a multi-year nightmare. Thus you are under an obligation to ensure that you prosecute your cases in a fair-minded and proportionate manner.

Here Bar Counsel did not gracefully accept the views of the hearing judge concerning the motives of the complainant and of the case itself

the Commission excepts to the hearing judge’s “non-material findings” in which the hearing judge allegedly “demonstrated animus toward the [Commission] and its counsel at trial.” The Commission asserts that it excepts to such statements because the hearing judge’s statements concerning Bar Counsel “leave[s] the impression that the disciplinary case itself was unfair to Respondents and that specific actions of counsel were ‘unfounded,’ ‘biased,’ ‘unreasonable,’ ‘frivolous,’ ‘unwarranted,’ and ‘lacking in objectivity.’” The Commission also excepts to the “attacks on Mr. Erskine,” who, as the complainant, “acted in the best traditions of the Bar” and “chose to honor his commitment as an attorney to report misconduct.”

We overrule the Commission’s exception. The “findings” to which the Commission directs this Court’s attention appear in the introductory discussion section to the hearing judge’s conclusions of law and in the hearing judge’s conclusions of law. These statements are a part of the hearing judge’s analysis in connection with the conclusions of law, and are not set forth as findings of fact and, as such, have not been summarized above by this Court. Nor have the alleged findings been relied upon by this Court in sustaining or overruling any of the Commission’s exceptions... 

The procedural history of the underlying cases was dense and complex, and the litigation itself was highly contentious. The hearing judge made detailed findings of fact based on the evidence presented to him over the course of sixteen days. The record in this attorney discipline case is voluminous, and the hearing judge more than adequately parsed through it in making the findings of fact. That the hearing judge may not have made certain findings of fact urged by the Commission does not render the findings of fact that were made clearly erroneous.

In both of the cases, Bar Counsel had sought disbarment. One attorney was reprimanded for his inadequate response to the complaint; all charges against the other attorney were dismissed.

The matters are a case study in how the disciplinary process can be abused. This time-consuming and misbegotten case should never have been brought.

The court explained

The road to Maryland’s political graveyard is paved with multitudes of failed referendum petitions and good intentions of petition circulators and referendum strategists. The controlling statutes in the Maryland Code, Election Law Article for conducting a referendum petition drive present a veritable minefield of technicalities that can quickly scuttle and send awry the best-laid plans of citizen-activists seeking a voter referendum.,,

It is in the context of this complex and contentious underlying litigation involving a local zoning referendum and petition drive that this attorney discipline proceeding originated. Under these circumstances, Respondents perceived that the system was rigged against their clients, and they must have felt like David versus Goliath. But instead of bringing a slingshot to the legal battle, they employed a strategy of ping-pong by bouncing the case to Maryland’s appellate courts in response to negative rulings (whether real or perceived) by the circuit court. And when Mr. Erskine filed his complaints against Respondents in the middle of this contentious litigation, Mr. Dyer failed to respond substantively to Bar Counsel’s lawful request for information concerning his position on the allegations in the complaint against him. Instead, he simply challenged Bar Counsel’s authority to conduct a “confidential” investigation and refused “to participate in secret attorney grievance proceedings” on First Amendment grounds.

On August 26, 2015, on behalf of the Attorney Grievance Commission, Assistant Bar Counsel Lydia Lawless filed in this Court a “Petition for Disciplinary or Remedial Action” against Respondents, charging them with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 1.4(a)(1), 1.4(a)(2), n1.4(b) (Communication), 1.16(a)(1) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.2 (Expediting Litigation), 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a), 3.4(c), 3.4(d) (Fairness to Opposing Party and Counsel), 3.7(a) (Lawyer as Witness), 4.1(a)(1) (Truthfulness in Statements to Others), 4.4(a), 4.4(b) (Respect for Rights of Third Person), 8.1(b) (Disciplinary Matters), 8.2(a) (Judicial and Legal Officials), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).

The hearing judge conducted hearings over sixteen days and issued a comprehensive 115-page opinion exonerating both attorneys, questioning the motives of the complainant in filing a bar complaint in the midst of litigation and noting the dearth of proof to sustain the "throw the book at em and hope something sticks" approach of assistant bar counsel.

The heart of the case was a frivolous litigation allegation

In contentious cases involving complex and time-sensitive matters, such as election laws, lawyers may be more likely to file appeals quickly. However, not every lawyer who files an appeal or a petition for a writ of certiorari that is dismissed is charged with violating the MLRPC. Indeed, a lawyer who files appellate papers that are dismissed simply because the lawyer is wrong about the law or the lawyer has, as the hearing judge found, a good faith basis to believe a certain fact that turns out to be incorrect, is generally not subject to discipline under the MLRPC. This is not a case where a lawyer filed an appeal or petition for a writ of certiorari that was blatantly unsupported by the law or facts of the particular case. Therefore, we conclude that the hearing judge was not clearly erroneous when he declined to adopt Bar Counsel’s suggested finding—that the first and second rounds of appellate findings were unsupported by fact or law...

Here, the hearing judge was correct in concluding that there was not clear and convincing evidence that Respondents violated MLRPC 3.1. With respect to the appellate filings, as discussed in detail above, we overrule the Commission’s exceptions to the hearing judge declining to find that various rounds of appellate filings were not supported by fact or law. And, as explained, that an appellate filing may ultimately be unsuccessful, and indeed even dismissed, does not mean that a lawyer violates MLRPC 3.1 for making such a filing. Additionally, we note that there is no indication in the record that this Court or the Court of Special Appeals ever awarded sanctions against Respondents in connection with any of the appellate filings, even though Normandy had asked the Court of Special Appeals to do so.

A significant holding on the nature of the obligation to respond to a bar complaint

Mr. Erskine’s complaint letters to Bar Counsel, to which Bar Counsel requested that Respondents respond, included very broad accusations of misconduct to which it may have been difficult to respond. In the face of these broad accusations, although Ms. Gray informed Bar Counsel that she adopted Mr. Dyer’s response, Ms. Gray also responded by providing her view of the underlying litigation, explaining to Bar Counsel the contentious nature of the case and that, in her opinion, Mr. Erskine’s complaint was an attempt to intimidate her that had begun during the litigation in the circuit court. Although Ms. Gray may not have responded to each of the allegations of misconduct set forth in Mr. Erskine’s complaint and although Bar Counsel apparently takes issue with the substance of Ms. Gray’s response, we are satisfied that the hearing judge’s determination that Ms. Gray did not violate MLRPC 8.1(b) is correct. Given the broad nature of the complaint and that Ms. Gray’s response addressed the substance of the complaint and provided her opinion as to events concerning the underlying litigation, there is not clear and convincing evidence that Ms. Gray knowingly failed to respond to a lawful demand for information from Bar Counsel. Rather, Ms. Gray promptly responded to the substance of the allegations by providing her view of the underlying litigation and why she believed Mr. Erskine had filed such a complaint against her in the first instance. As such, we determine that the hearing judge properly concluded that Ms. Gray did not violate MLRPC 8.1(b).

Another charge goes down in flames

The Commission excepts to the hearing judge’s conclusion that Respondents did not violate MLRPC 8.4(d). The Commission contends that Respondents violated MLRPC 8.4(d) by “burden[ing] the judicial process” and argues that “[v]irtually every step they took caused the courts, their clients and the other parties to expend needless time, resources and energy.” We overrule the exception.

... the hearing judge was correct in concluding that clear and convincing evidence did not establish that Respondents violated MLRPC 8.4(d). As the hearing judge stated, Respondents “provided adequate, but not necessarily perfect, pro bono legal representation that probably would not have otherwise been available to their clients,” and  they “sought to ensure that the First Amendment rights of their clients and nonparty circulators were protected from what they perceived to be unnecessary, improper and overbroad discovery requests.” Under the circumstances of this case, we fail to discern that Respondents’ conduct in the underlying litigation violated MLRPC 8.4(d).

Believe it or not, Bar Counsel had sought disbarment after the square rejection of every charge by the hearing judge.

The video of the oral argument is linked here.

Notably, the courtroom is filled with clients demonstrating support for their accused attorneys.

Have not ever seen that before.

The court politely evaluated the quality of the case by assessing full costs against the Grievance Commission

Although we reprimand Mr. Dyer, as indicated in the mandate, we do not assess the costs against him; rather, we assess the costs against the Commission. We note that Bar Counsel brought numerous charges against Mr. Dyer, and, upon our independent review, we conclude that Dyer has engaged in misconduct involving only one violation of the MLRPC, MLRPC 8.1(b), for which he is hereby reprimanded. Only a fraction of costs of the attorney discipline proceeding can be attributed to the charged violation of MLRPC 8.1(b). We conclude that, under these circumstances, ordering costs against Mr. Dyer is inequitable. Even having Mr. Dyer and the Commission split the costs would not be equitable given that a large portion of the costs are due to alleged violations of the MLRPC that were not sustained and that the Commission failed to prove are supported by clear and convincing evidence. And, as determined above, none of the charged violations against Ms. Gray were proven with clear and convincing evidence. Accordingly, we shall assess the costs against the Commission.

(Mike Frisch)

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

Thursday, June 22, 2017

Ohio Revokes Admission For Application Misconduct

The Ohio Supreme Court revoked admission based on conduct that the applicant failed to disclose.

Michael Alexander Callam, of Macedonia, Ohio, Attorney Registration No. 0092109, was admitted to the practice of law in Ohio on November 17, 2014, after passing the Ohio bar examination administered in July of that year.

On April 17, 2015, the Office of Bar Admissions received a letter from the Geauga County Prosecuting Attorney relating that beginning in September 2013, Callam had been investigated by the Ohio Department of Insurance, had been untruthful during that investigation in interviews conducted in January and September 2014, and had surrendered his Ohio insurance license for cause in October 2014. The Office of Bar Admissions received another letter about Callam after he was indicted on two counts of complicity relating to charges filed against his father for securing writings by deception and selling insurance without a license. Based on those communications, the Board of Commissioners on Character and Fitness exercised its sua sponte authority to commence an investigation pursuant to Gov.Bar R. I(10)(B)(6) (directing the board to investigate allegations about false statements in applications brought to its attention after an applicant has been admitted to the bar).

Holding

 We have disapproved bar-exam applications in which the applicants failed to disclose materially adverse information regarding past conduct in their registration and bar-exam applications...And in the rare instance in which applicants’ false statements and omissions came to light after they had passed the bar exam and been admitted to the Ohio bar, we revoked their licenses to practice law but permitted them to reapply for admission at a later time. 

A dissent would not permit reapplication. (Mike Frisch)

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

"You're The Investigator, You Figure It Out"

The Maryland Court of Appeals has disbarred an attorney.

The case involved a number of complaints

Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. We agree with the trial judge’s findings that Respondent repeatedly violated this rule. In the Curtis matter Respondent dishonestly and deceitfully took possession of, and retained, the money judgment owed to her client and misrepresented to the defendant in that action (Mr. White) that Respondent had filed a notice of satisfaction in the case. In the Dixon matter, Respondent represented to her client that she had drafted an affidavit when she had not done so. In the Bradley-Topping matter, Respondent told her client that she would file an amended divorce complaint to include grounds of desertion, but she did not do so. She also falsely told Ms. Bradley-Topping that she had prepared a draft settlement. In regards to the Alsobrooks complaint, during her hearing on charges of driving under the influence, Respondent misrepresented to the court that she had no prior convictions. 

The last listed violation involved a 2004 DUI conviction

On March 31, 2013, Maryland State Police found Respondent in her vehicle, crashed into a roadside ditch. Respondent failed a field sobriety test and was charged with
DUI, reckless driving, and driving on a suspended license. On March 20, 2014, Respondent appeared in the Circuit Court for Prince George’s County on those charges, and, when asked by the court whether she had any prior criminal convictions, she lied, replying “no” despite her previous DUI conviction. She pleaded guilty and was sentenced to unsupervised probation before judgment.

The State’s Attorney’s Office for Prince George’s County, upon discovering the falsehood, filed a motion to strike the judgment; the motion was granted. The State’s
Attorney also notified Bar Counsel of this matter, who docketed a complaint against Respondent and sent a letter to her home and office notifying her and seeking information. Respondent requested a ten-day extension of time to respond, which was granted. Respondent failed to respond before the extended deadline.

The court found a failure to cooperate with the disciplinary process

The hearing judge concluded, and we agree, that Respondent violated Rule 8.1(b) as to all seven complaints constituting this case. Respondent failed to provide any substantive response to Bar Counsel’s reasonable requests for information in all seven matters. In addition, Respondent directly refused to provide her banking institution’s name to Bar Counsel’s investigator when she stated “[y]ou’re the investigator, you figure it out.”

And concluded

Respondent violated numerous rules repeatedly and seemingly without remorse. She failed utterly to cooperate with Bar Counsel in the disciplinary process. And, she exhibited a disturbing pattern of dishonesty, individual instances of which could warrant disbarment on their own. See, e.g., Attorney Grievance Comm’n v. Peters-Hamlin, 447 Md. 520, 547-49 (2016) (restating the proposition that disbarment ordinarily is the sanction for an intentional violation of MLRPC 8.4(c) (dishonesty)). Accompanied, however, by so many violations of the MLRPC, the sanction here is abundantly clear—disbarment is the only appropriate outcome.

(Mike Frisch)

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

No Misconduct Found In Unusual New Jersey Case

The New Jersey Supreme Court agreed with a dissent from the censure recommendation of its Disciplinary Review Board and dismissed ethics charges against an attorney for conduct in the wake of a friend's suicide.

The court concluded that the record did not establish clear and convincing evidence of an ethics violation.

The DRB majority had found misconduct  in the attorney's entry into the friend's condominium and various explanations of her behavior.

In light of these contradictions and inconsistencies, the [District Ethics Committee] determined that respondent had made false statements to disciplinary authorities. It noted that respondent attempted to excuse her conduct by alleging that she had "permission" to enter the condominium, given by the gatekeeper at the condominium complex, and by the manager of the business office as well as by Alma Dobbs, who had told her to "take care of things." Respondent also made conflicting statements to explain her entry to Spence’s condominium with reference to her daughter’s key, when it appears that she entered the condominium using the key found in Spence’s unlocked car. The hearing panel found that these representations were intended to impede the investigation of Rabb’s grievance and, thus, constituted a violation of RPC 8.1(a).

...respondent’s actions must be branded as serious misconduct. In aggravation, respondent took contrary positions during the investigation, in her verified answer, and her statement attached to her verified answer. She persisted in her inconsistencies throughout the DEC hearing, which, in our view, demonstrated a lack of remorse on respondent’s part, as well as a refusal to accept responsibility for her conduct.

Additionally, respondent’s status as a public officer -- a municipal court judge for the City of Orange, New Jersey -- serves as further aggravation.

A dissent found no misconduct.

This disciplinary matter grows out of a tragedy and a personal dispute, unrelated in any way to respondent’s practice of law. On September 15, 2013, Bonita Spence hanged herself in her West Orange, New Jersey condominium, located within a gated community. Spence had been a close friend of respondent’s for over twenty five years and, for a substantial period, the two lived together in a romantic relationship. Although the romance had ended about five years before Spence’s death, they remained close and shared
a co-guardianship of respondent’s 14-year-old niece, L.S., whom respondent had adopted...

For the majority opinion to make sense, one must conclude that respondent set out to steal some relatively inexpensive belongings of her close friend and prior lover and that minor inconsistencies in her statements were part of a calculated, intentional scheme to defraud, a conclusion for which I see no clear and convincing evidence...

In short, this is no more than a family or personal dispute that in my opinion has been litigated inappropriately in an ethics forum because one of the disputants happens to be an attorney. I would dismiss this complaint in its entirety.

Another dissent disagreed with the censure proposed by the majority and would suspend for three months. 

I accept without question that Spence’s death by suicide was a traumatic experience for respondent and that her grief may have clouded her judgment. However, I cannot ignore the reality that respondent was a judge of the Superior Court and is a municipal court judge for the City of Orange. Regardless that she has no history of discipline, throughout the disciplinary process she has demonstrated a lack of remorse and a refusal to accept responsibility for her conduct. Of utmost significance is that, despite being told by the police, after the death of Spence, that to gain access to Spence’s residence she would need to first contact the Surrogate’s office to gain permission, and would required to be accompanied by a representative of the sheriff’s office, respondent took it upon herself to enter Spence’s condominium unit.

My esteemed dissenting colleague’s understanding of the record is markedly different from mine. She seems to have concluded that, on the morning after Spence’s death, respondent went to the Surrogate’s Court to discuss administering the estate. However, I can find no evidence of this in the record and, frankly, the record evidence is exactly to the contrary.

(Mike Frisch)

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

Wednesday, June 21, 2017

"Texts Can Be Deleted" Sex Texts To Client Draw Six-Month Oklahoma Suspension

The Oklahoma Supreme Court ordered a six-month suspension of an attorney admitted in 1992

This is Respondent's first disciplinary matter before this Court. Prior to the interim suspension, Respondent was in private practice primarily representing criminal defense clients. At the time of the incident, he had been in practice for 24 years. Respondent solicited prostitution on two different occasions from his criminal defense client, S.R., who was 25 years old, single, unemployed, and had a newborn infant. Respondent has known S.R. since 2011; he represented her when he worked as a public defender. Since then, he has represented S.R. relating to multiple criminal charges.

Respondent and S.R. never engaged in a physical sexual relationship. There is no evidence in the record that there was any physical touching between them. Respondent's crimes occurred through him soliciting his client, via text message, to engage in prostitution. Respondent initiated and continued a sexual dialogue with his client, S.R. via text message for almost seven weeks. The basis for this summary disciplinary proceeding arises from the criminal charges and his subsequent pleas of nolo contendere.

On the night of June 28, 2016 at 10:18 p.m., Respondent sent a text to S.R. advising her that the municipal cases were dismissed and it was likely the charges would not be reported to the Oklahoma State Bureau of Investigation. He next suggested S.R. take him to lunch instead of re-paying $20. A text conversation then followed with Respondent quickly shifting the "lunch" plan to dinner and a movie. Four hours after this initial text, Respondent crossed a line. He asked his client if S.R. wanted him to be a "gentleman" and asked her if she wanted him "to keep my hands off you?" S.R. replied by asking Respondent if it was "ok to be talking about over text."  Respondent assured her that  "[t]exts can be deleted."He then made it clear that he desired a physical relationship.

Respondent continued to escalate the text dialogue. By 1:00 the following afternoon, 14 hours after his initial suggestion for "lunch," he offered to take S.R. on a shopping spree to Victoria's Secret and he made crude suggestions. He admitted that he had "always had a thing for [S.R.]" and he had "liked [her] for years!" Respondent continued making inappropriate sexual advances via text message toward his client and requesting she text him photographs of her body and give him a "preview." S.R. sent some photos of her unclothed body via text. Respondent said he liked what he was seeing, but he "would like to get the real thing!" Within 5 days of his initial text suggesting "lunch," he solicited S.R., offering her $100 for the "real thing."  S.R. let him know that "[r]egardless of you think [sic.], I haven't ever done that before."  Respondent continued sending sexual text messages to S.R. About one month later, he solicited sex from his client, asking how much she would charge for "straight sex" and what else she would be willing to do and the cost. His client never initiated the sexual text dialogue and never solicited Respondent. His actions were solely driven by Respondent's private motivations.

 Respondent continued to text his client over a span of seven weeks making repeated requests for a sexual relationship with S.R. and sought pictures of her undressed body. There was a clear imbalance of power between S.R. and Respondent. She was indigent and struggling to obtain state supported benefits for food and healthcare for herself and her infant. S.R.had a history of drug abuse, and Respondent had just completed defending her on drug related municipal charges. The relationship between S.R. and the father of her infant was strained. In spite of these many known hardships afflicting his client, Respondent continued to send text messages pressing her for a sexual relationship. Even when S.R. would express how overwhelmed she was feeling with her life situation and at a breaking point, Respondent continued the sexual text dialogue asking to see her and to physically consummate this relationship.

The final solicitation for prostitution from Respondent occurred at a time that S.R. was likely at her most vulnerable point. Respondent sent another text message pressing to see her. S.R. responded letting him know that the Department of Human Services (DHS) had removed her baby from her home and that the police were going to be filing for a warrant and pressing charges against her. When she responded that there is no use in discussing the charges with Respondent because she has no money, he asked her if she would "want to do favors for a fee?"

It was shortly after this last solicitation that S.R. was arrested. After she was in the physical custody of the police, a text message was received from Respondent. The police recognized the Respondent's name and noted that the context of the text message seemed inappropriate and out of line for an attorney-client communication. The police conducted a search of S.R.'s cell phone. After searching her phone, the police next obtained a warrant so they could search Respondent's cell phone. The search revealed the voluminous text messages between Respondent and S.R. and the prostitution solicitations made by Respondent.

The attorney pled no contest to misdemeanor charges.

In the bar case

It is deeply disturbing to this Court that Respondent attempts to shift any responsibility to his client, the victim of his calculated and premeditated crimes and professional misconduct. Respondent expressed that he had a long-standing attraction and desire for S.R., that spanned "years." The eighty-three (83) pages of text messages between Respondent and S.R. paint an unmistakable picture. Respondent initiated this sexual dialogue and he alone pursued a sexual relationship, it was not consensual. Moreover, at the moment S.R. is at her most vulnerable, Respondent urges her again for a sexual relationship offering she could do "favors" for a fee. The pursuit of a sexual relationship was independently driven by Respondent.

Dissents

Combs, C.J., with whom Gurich, V.C.J. and Wyrick, J., join, dissenting

I dissent. Respondent's actions warrant a discipline much greater than a six-month suspension with credit for time served on interim suspension, effectively reinstating the Respondent as of the date of the mandate in this proceeding. I would suspend the Respondent for two years with credit for time served on interim suspension with payment of costs within 90 days of the effective date of this opinion.

Kauger, J., concurs in part; dissents in part.

(Mike Frisch)

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

Tuesday, June 20, 2017

The Negative Pregnant Argument Fails

One interesting aspect of the District of Columbia Hearing Committee report (noted here) in In re Larry Klayman is the handling of the expert testimony offered in his defense of the claim that he violated the former client rule

The expert is Professor Ronald Rotunda; the Hearing Committee opined

Respondent maintains that no Rule 1.9 violation occurs when a lawyer sues a former client to “enforce” a contract on behalf of a new client who was on the other side of the negotiating table when the lawyer negotiated the contract. See Resp. Br. 12-13, 20, 21, 23, 24. Respondent and his expert, Professor Rotunda, stake this interpretation on Comment 1 to Rule 1.9, which uses as an example “seek[ing] to rescind on behalf of a new client a contract drafted on behalf of the former client.”

According to Rotunda, this example contains a “negative pregnant”—it does not say “rescind or support”—and the failure to use that language means that a lawyer who drafts a contract for one client can later sue that same client on behalf of the other party, so long as he never sued on behalf of the first client, and the lawsuit seeks to “enforce” rather than rescind the contract. Tr. 513, 528. Rotunda takes this further, arguing that matters are the same for Rule 1.9 only if the lawyer changes sides in a specific lawsuit or otherwise attacks his work product. E.g., Tr. 504-506, 509, 512, 513. We reject this reasoning; such a rule would smother Rule 1.9 in contract cases because every litigant can claim to be the one “enforcing” the contract.

Rotunda does not offer any support for this theory. So far as we can tell it is not discussed or mentioned in any of his academic writing and has never been adopted in any case. The only authority that is superficially close, oddly enough, is in the commentary to Florida’s Rule 4-1.9, which since 2006 has stated that matters are substantially related “if they involve the same transaction or legal dispute, or if the current matter would involve the lawyer attacking work that the lawyer performed for the former client.” Fla. R. 4- 1.9, cmt. (emphasis added). Although the comment mentions “attacking work” for a former client, it cannot plausibly be read to support Respondent’s and Rotunda’s theory because a contract case will always involve the “same transaction” as the contract itself. A lawyer simply cannot negotiate a contract for one side and then later sue his client on behalf of the other side.

The “attacking work” comment addresses situations where the prior representation did not involve the same transaction or legal dispute. For example, Florida courts have found that defending a product-liability suit concerning a particular model of lawn mower was substantially related to a later product-liability suit concerning the same model; whereas defending a hospital in a negligence case was not substantially related to a later negligence suit against the same hospital. Health Care & Ret. Corp. of Am. v. Bradley, 961 So. 2d 1071, 1073-1074 (Fla. App. 2007) (discussing Sears, Roebuck & Co. v. Stansbury, 374 So. 2d 1051 (Fla. App. 1979)). In the Stansbury case, the lawyer sought to represent a plaintiff bringing a product-liability claim on a lawnmower where the lawyer had defended a product-liability case for the same company, based on the same lawnmower. Id. at 1073. Because the plaintiff was new, the matter did not arise from the same transaction or legal dispute, but lawyer would nevertheless have been attacking his prior work for the company. Id. The negligence case, on the other hand, did not involve attacking the lawyer’s work for the hospital because each negligence claim “turns on its own facts.” Id. at 1073-1074. Thus, Florida’s commentary about attacking one’s work is no help to Respondent because the three matters here were the same as matters he handled for Judicial Watch.

In D.C. , the Board on Professional Responsibility considers the sanction de novo.

The Court of Appeals in turn defers to the Board on sanction per Rule XI, section 9(h)

the Court shall accept the findings of fact made by the Board unless they are unsupported by substantial evidence of record, and shall adopt the recommended disposition of the Board unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted.

 (Mike Frisch)

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

Indefinite Suspension In Ohio

From the web page of the Ohio Supreme Court

A Kent attorney who pleaded guilty to 20 fourth-degree felony counts of pandering sexually oriented material involving a minor was suspended indefinitely by the Ohio Supreme Court today.

Andrew O. Martyniuk admitted in 2014 that he knowingly solicited, received, purchased, exchanged, possessed, and controlled child pornography. He was sentenced to five years in prison, which was suspended on the condition that he serve five years of community control, pay a $5,000 fine plus court costs, complete a sex-offender evaluation, and register as a Tier II sex offender for 25 years. In a per curiam opinion, the Court majority noted Martyniuk never actively engaged in the practice of law.

Martyniuk Was Library Staff Member Before Arrest

At his disciplinary hearing, Martyniuk testified that after he was honorably discharged from the U.S. Air Force in 1992, he served as a research associate at the University of Cincinnati during and after completing law school. He said he drafted several powers of attorney for people he knew through church, but never charged for his services, and then moved into his parent’s home in Kent in 2003. He worked as a fiscal officer for the Kent Free Library until he was fired in 2013 when his employer discovered pornography on his office computer.

Since his arrest he has been the primary caretaker of his elderly parents, and expressed to the Board of Professional Conduct a desire to practice law.

“He has presented no evidence regarding a mental-health diagnosis or his ability to engage in the competent, ethical, and professional practice of law, either now or in the future,” the Court’s opinion stated.

Others Suspended for Sexually Motivated Crimes Involving Children
Based on the conviction, the Office of Disciplinary Counsel brought several charges against Martyniuk for violating the rules governing Ohio attorneys. The board recommended an indefinite suspension with no credit for the time served under an interim suspension imposed by the Court following his felony convictions.

The opinion noted that the board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it. The sole aggravating factor the board found was that Martyniuk committed multiple offenses. The board also found that Martyniuk had no prior disciplinary record, self-reported his conviction to the disciplinary counsel, cooperated during disciplinary proceedings, and was penalized for his conduct.

The Court cited three other instances where attorneys convicted of sexually motivated crimes involving children were indefinitely suspended and found the sanction was appropriate for Martyniuk.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Judith L. French, William M. O’Neill, and R. Patrick DeWine joined the majority opinion.

Justice Terrence O’Donnell stated he would permanently disbar Martyniuk. Justice Patrick F. Fischer did not participate in the decision.

2016-1821. Disciplinary Counsel v. Martyniuk, Slip Opinion No. 2017-Ohio-4329.

The above summary was written by Dan Trevas. (Mike Frisch)

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

Monday, June 19, 2017

Peter Paul and Larry: Suspension With Fitness Proposed For Larry Klayman

A District of Columbia Hearing Committee has recommended a suspension with reinstatement on a showing of fitness for Larry Klayman in a ethics matter brought as a result of a complaint filed by Judicial Watch

Respondent Larry E. Klayman is charged with violating the Rules of Professional Conduct by representing three individuals in litigation against his former client Judicial Watch, Inc., a nonprofit organization. The three cases were brought by: a former employee of Judicial Watch (Sandra Cobas); a donor to the organization (Louise Benson); and a former client (Peter Paul). Disciplinary Counsel charges that the three matters were the same or substantially related to matters that Respondent handled as Judicial Watch’s general counsel and that his conduct violated Rule 1.9 (or its Florida equivalent) and in one of the matters seriously interfered with the administration of justice in violation of Rule 8.4(d). Disciplinary Counsel recommends that Respondent be suspended for 90 days, with 60 days stayed, pending his completion of a continuing legal education course on conflicts of interest.

The committee (chaired by Theodore (Jack) Metzler) rejected a host of contentions in its 43-page opinion and considered aggravating factors

Despite having accepted Florida’s reprimand [in an earlier matter], Respondent now denies responsibility for his misconduct there. Resp. Br. 36-37. He denies owing his client any refund in the first place and makes excuses for his repeated failure to abide by his promises to pay. Id. Remarkably, Respondent suggests that he agreed to the reprimand “to simply put the matter behind [him],” and claims that his conduct did not involve “any . . . ethical violation.” Resp. Br. 37 n.4. That simply is not true. Respondent appears to believe that denying responsibility for misconduct that he previously admitted somehow mitigates his present misconduct. We think the opposite.

We also find that Respondent’s conduct in this proceeding was dishonest and lacked candor in further aggravation of his misconduct. The most egregious examples of this are described above: Respondent testified falsely that he acted under the advice of counsel (Mr. Dugan) when he entered his appearance for Benson. He did not. Respondent’s post hearing brief repeatedly mischaracterizes Mr. Dugan’s testimony, particularly with regard to whether Dugan prepared the opposition to the motion to disqualify Respondent in the Benson case, agreed with the arguments it contains, and advised Respondent regarding his representation of Paul. We also find Respondent’s characterizations of the evidence lack the candor required of an attorney in a disciplinary proceeding. In one particularly inexplicable example, Respondent says the letter soliciting Benson’s donation, which he signed as General Counsel, had “nothing to do with his role as General Counsel of Judicial Watch.” Resp. Br. 9 (Respondent’s italics)

Sanction

Respondent’s misconduct was serious and escalating. He does not recognize the seriousness of the misconduct or even agree that it is misconduct at all. His conduct since the three representations includes both the misconduct in Florida and his misrepresentations and lack of candor to this tribunal. In the view of this hearing committee, Respondent’s conduct raises serious concerns about whether he will act ethically after his period of suspension has run, and supports imposing a condition that he  demonstrate his fitness before resuming the practice of law. See In re Cater, 887 A.2d 1, 24 (D.C. 2005)...

We find by clear and convincing evidence that Respondent violated Florida Rule 4-1.9(a) in Count I, and D.C. Rule 1.9 in Counts II and III of the Amended Specification of Charges. We likewise find that Respondent violated Rule 8.4(d) in Count III. In light of Respondent’s misconduct and the aggravating and mitigating circumstances, we recommend that Respondent be suspended from the practice of law for 90 days with readmission upon showing his fitness to practice law.

The opinion may be accessed at this link. (Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

All Rise For The Mourner's Kaddish

The New Jersey Supreme Court has disbarred an attorney who had neglected a host of client matters, failed to respond to the ensuing bar complaints and misappropriated entrusted funds on numerous occasions.

The attorney already is subject to an interim suspension. 

As noted in the report of the Disciplinary Review Board, some of the misappropriations involved unrelated real estate and personal injury matters.

One victim was Congregation Agudath Achim. 

Because respondent had previously misappropriated Romeo’s and the Congregation’s funds by way of unidentified and unauthorized disbursements, he did not have their respective funds available when he issued ATA2 check numbers 1696 and 1760. Thus, in both the Congregation and Romeo matters, respondent engaged in a pattern of lapping, by using monies received in connection with [an] Estate and other client matters to fund the $50,000 check to the Congregation and the $56,000+ check to Romeo. He also repeatedly failed to communicate with the Congregation and with Romeo, both of whom attempted to reach him via letter and phone.

Respondent unequivocally stated to the OAE, in a recorded interview, that he knew that he was required to safeguard the Congregation’s $50,000 and Romeo’s $59,045.66 in trust; that he did not lose track of or forget that he was holding funds for the Congregation and Romeo; and that he reviewed the ATA bank statements. Respondent also stated that, when he disbursed monies against the Congregation and Romeo funds, he knew that he did not have authorization from the clients to use their funds for his own purpose or for that of any of his other clients.

The DRB details several other instances of misuse of client funds and 

Further, respondent’s representation to the OAE that he was unable to produce those statements because they had been damaged during two storms was false. Indeed, when the OAE reviewed respondent’s files, it found the missing statements, "most of which were not damaged."

Knowing misappropriation was found and disbarment was recommended and imposed . (Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Vermont Reinstates Reciprocally Suspended Attorney

The Vermont Supreme Court has reinstated an attorney who had been suspended for two years by the New York Appellate Division for the Second Judicial Department and reciprocally sanctioned in Vermont.

The New York sanction was based on a misdemeanor guilty plea to identity theft.

The charge alleges that the respondent engaged in illegal conduct that adversely reflects on her honesty, trustworthiness, or fitness as a lawyer, in violation of Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(b). On or about November 15, 2011, before the Honorable Stephen L. Braslow, in the County Court, Suffolk County, the respondent entered a plea of guilty to the crime of identity theft in the third degree (Penal Law § 190.78), a class A misdemeanor. On or about January 10, 2012, Judge Braslow sentenced the respondent to a period of three years of probation.

She had opposed reciprocal discipline in Vermont without success.

[the court] note[d] some irony in respondent's argument that she did not really engage in misrepresentation with intent to defraud; she merely misrepresented that fact to a court.

The court also rejected her claim of duress in the criminal matter.

Now

Based on the evidence presented, the panel finds that petitioner has the moral qualifications and competency and learning required for admission to practice in the state of Vermont, that she has been rehabilitated, and that her resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor will her resumption of the practice of law be subversive of the public interest.

(Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Never, Ever

The Ohio Board on Professional Conduct proposes a reprimand of a common pleas court magistrate who advised police of her judicial position when stopped for a suspected DUI

Respondent testified that she had had a few drinks, waited three hours before driving, thought he was fine, had committed to be the designated driver and promised her friend a ride home. She thought she was fine to drive. She will never, ever do that again.

She had advised the police that she was a judge, that her son was a Secret Service officer, that she had not flunked the field sobriety test and "would not be driving drunk."

The magistrate pled guilty to misdemeanor reckless driving. (Mike Frisch)

June 19, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Incredible But Not Dishonest

An unpublished opinion of the California State Bar Court Review Department concludes that an attorney accused of ethics violations cannot claim ineffective assistance of counsel

Fletcher argues that he was denied a fair trial because he received ineffective assistance of counsel. Specifically, he asserts that his counsel’s lack of understanding of State Bar hearing procedures prejudiced him. However, the Supreme Court has held that the right to effective assistance of counsel depends on a demonstrated right to counsel, which does not exist in disciplinary proceedings. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) Thus, an assertion of ineffective assistance of counsel has no merit here. The Supreme Court has made clear that a respondent’s “only due process entitlement is to a fair hearing overall. [Citations.]” (Dahlman v. State Bar (1990) 50 Cal.3d 1088, 1094-1095.) The hearing judge provided Fletcher with a fair hearing, as required.

The attorney accepted fees from third parties to defend a client charged with murder and had failed to comply with the required formalities for such an arrangement

First, Fletcher asserts that he did not violate rule 3-310(F) because he represented Daniel on a pro bono basis. We affirm the hearing judge’s finding that this assertion is not credible. The fact that Fletcher never returned the funds given to him by Gonzales and C. Daniel is inconsistent with his assertion that his services were pro bono. Alternatively, Fletcher admits  that he did not comply with rule 3-310(F), but asserts that it was only a technical violation as Daniel testified that he knew that Gonzales and C. Daniel were paying his fees. However, Daniel’s awareness cannot substitute for the informed written consent required by the rule. Fletcher further states that any violation is not willful since he did not know that he had received funds for Daniel’s fees because his accountant and office staff handled his bank account. But he is not relieved of his nondelegable responsibility to comply with the rules regarding client funds because someone else manages his bank accounts.

One aggravating factor was prior discipline.

In the first case, no. 03-O-02625, Fletcher stipulated to culpability under section 6068, subdivision (b), for failing to maintain the respect due to courts and judicial officers based on nine acts of contempt in a criminal trial, including laughing at the judge and accusing him of racial bias. Fletcher was sentenced to two days in jail and fined $400 for these acts of contempt. In the second case, no. 05-O-04499, Fletcher stipulated to culpability under section 6068, subdivision (b), for arriving late to a trial, refusing to explain his tardiness, and accusing the judge of racial prejudice. The judge ordered sanctions of $1,000 for this behavior. 

Re the attorney's story

The hearing judge assigned “serious” aggravation for “hard to believe” testimony, based on language in Brockway v. State Bar (1991) 53 Cal.3d 51, which analyzed aggravation for lack of candor under former standard 1.2(b)(vi). The judge found that “almost all” of Fletcher’s testimony was inherently implausible. Unlike the candor finding in Brockway, this finding appears to focus on Fletcher’s lack of credibility, not his dishonesty. The hearing judge did not make an express finding that the testimony lacked candor or was dishonest. Absent such a finding, we decline to assign aggravation for lack of candor.

The court proposes a stayed one-year suspension with probation, rejecting the Hearing Department's recommended 45-day suspension. The OCTC supported suspension as well.  (Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 18, 2017

Virginia Revokes License Of Alleged Charity Embezzler

The Virginia State Bar Disciplinary Board has accepted the consent revocation of an attorney charged with embezzlement of charitable donations

The New York Daily News recently  reported

The head of the National Vietnam Veterans Foundation was charged with fraud and embezzling nearly $150,000 from the charity and spending it at clubs, hotels and restaurants in Maryland.

John Thomas Burch, a veteran who worked as an attorney for the Department of Veteran Affairs, is accused of skimming money from the charity between 2012 and 2016, according to a recently filed lawsuit.

He was able to easily access the funds as he had “unilateral control over the distribution of smaller grants,” typically between $100 and $300, for the foundation’s “Emergency Assistance Program.”

According to its tax filing, the Vietnam Veterans Foundation pulled in nearly $30 million in donations between 2010 and 2014 — but less than 2% was actually put toward veterans in need, CNN reported.

The 2014 tax returns indicate a series of expenses paid for by donations including $133,000 for travel, $21,000 for unnamed “awards,” $70,000 for “other expenses” and just more than $8,000 on parking. The majority of the remaining funds were given to professional fundraisers and telemarketers.

Overall, the charity in 2014 accounted for just $122,000 in donations out of more than $8.5 million.

Charity Navigator, a well-known watchdog organization, previously gave the National Vietnam Veterans Association a zero-star rating on a four-star scale.

The charity — which claimed to partake in noble ventures including feeding homeless and unemployed veterans and donating care kits to hospitalized veterans — permanently closed down in September 2016 following a CNN investigation.

Its supposed mission was “to provide help and support for American Veterans and their families through the generosity of the American people.”

The findings of the New York Attorney General are appended to the revocation order and includes the allegation that he used Foundation funds to

support his expensive lifestyle and tastes... ordering excessive and expensive food and drink at meals at the country's top restaurants and lavishing gifts (monetary and otherwise) on women that had either no or only a tangential relationship to a veteran. 

The AG found that he had spent $800 at a Baltimore nightclub and categorized the expense as "work on homelessness" and on veteran's issues.  (Mike Frisch)

June 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 17, 2017

New Jersey Holds SEC Sanction No Basis For Reciprocal Discipline

The New Jersey Supreme Court has declined to impose reciprocal discipline based on a sanction imposed by the Securities and Exchange Commission.

The court held that there was no jurisdiction to impose discipline based on the SEC order, described here in an SEC press release.

In March 2010, the SEC charged Richard Verdiramo, RECOV Energy Corp.’s former Chairman, CEO, President, and CFO, with, among other things, committing fraud and violating the securities registration requirements based on his issuances of RECOV stock for his and his father’s personal benefit. The SEC charged his father, Vincent Verdiramo, an attorney who facilitated the misconduct and who was a recipient of some of the RECOV stock, with aiding and abetting his son’s fraud and with violating the securities registration requirements. 

The Court previously ordered all of the injunctive relief sought by the Commission in its Complaint against both Richard and Vincent Verdiramo for all of their misconduct.  The Court had also previously ordered the defendants to pay full disgorgement for their violations of the securities registration requirements, including holding Richard Verdiramo jointly and severally liable with other defendants.  In November 2011, the SEC issued an order suspending Vincent Verdiramo from appearing or practicing before the SEC as an attorney.

The SEC complaint is linked here. 

The Disciplinary Review Board surveyed the law and concluded that the SEC order was not a basis to impose reciprocal sanctions. 

In our view, the reasoning of the Supreme Courts of Florida and Ohio is sound and, thus, we have concluded that we are without jurisdiction to impose reciprocal discipline on respondent based on the SEC’s order of suspension. First,  no SEC bar or rules of professional conduct exist that apply to lawyers who practice before it. Second, even though the SEC may discipline anyone for unethical or improper professional conduct, respondent was not suspended on this ground. Thus, the SEC order permanently suspending respondent from appearing before it cannot be considered a disciplinary order within the meaning of R. 1:20-4(e)(4). Accordingly, we lack jurisdiction to consider the motion for reciprocal discipline.

Background

This matter was before us on a motion for reciprocal discipline, pursuant to R. 1:20-14, filed by the Office of Attorney Ethics (OAE), following the entry of an order, in a public administrative proceeding instituted by the United States Securities and Exchange Commission (SEC), pursuant to Rule 102(e)(3) of the SEC’s Rules of Practice, temporarily suspending respondent from "appearing or practicing before the [SEC] as an attorney."

The attorney previously had been suspended as a result of a criminal conviction.

On May 31, 1984, the Court imposed on respondent what amounted to a seven-and-a-half-year (time-served) suspension as a result of his September 28, 1976 guilty plea to the charge of influencing a witness.

The conviction involved his representation of Rep. Henry Helstoski as documented in the court's suspension order.

In 1975, the respondent, who was primarily involved in criminal law matters, was acting as an Administrative Aide to Congressman Henry Helstoski. He was also a member of the Congressman's team of defense attorneys who represented Helstoski in a federal criminal matter. On April 17, 1976, the respondent, who had just returned from a trip to Atlanta, received a telephone message to call Helstoski. At Helstoski's request, the respondent drove directly to Helstoski's office. Helstoski introduced respondent to Joel Urdang, who was about to testify before a federal Grand Jury with regard to Helstoski's alleged failure to report certain income to the Internal Revenue Service. The respondent was aware that an individual named John Mazella, an employee of Helstoski, had previously testified before the Grand Jury and had made certain misstatements during his testimony. The respondent knew that Urdang's testimony could contradict that of Mazella. Thus, during this conversation with Urdang, the respondent stated "Look, do me a favor. Just don't hurt the old guy, will you?" The respondent testified at a hearing before the District VI Ethics Committee that he was trying to protect Mazella, who was old, was in questionable health, and had a nice family. Mazella was "a genuinely nice human being who screwed up what checks went into what account." [Reference to transcript omitted.] His conversation with Urdang lasted about one and one half minutes. At the time the respondent spoke to Urdang concerning Mazella he was aware that he was asking Urdang to lie before the Grand Jury. [Reference to transcript omitted.] On June 2, 1976, the respondent was charged in two counts of a twelve count indictment with obstruction of justice in violation of 18 U.S.C. § 371 and influencing a witness in violation of 18 U.S.C. § 1503. The respondent entered a guilty plea on September 28, 1976 to the charge of influencing a witness. On September 21, 1977, the respondent was sentenced to a term of five years imprisonment, with the suspension of all but 60 days of that term, and probation for the remaining four years and ten months. A fine of $2,500 was assessed as a condition of probation. Execution of sentence was stayed until October 11, 1977. The remaining Count of that indictment against the respondent was dismissed.

(Mike Frisch)

June 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 16, 2017

Default Is In Our Stars

The District of Columbia Board on Professional Responsibility adopted a hearing committee's findings and disbarment recommendation in a matter involving misappropriation of client funds.

The board noted the respondent attorney's failure to participate and post-charge delaying tactics.

Disciplinary (then Bar) Counsel received the complaints in 2007 and 2009. In 2013, charges were filed in those two matters. 

When the initial charges were filed

Disciplinary Counsel first charged Respondent with violations arising out of the Fortune and Silver matters. The Hearing Committee started a hearing in April 2014, but, due to an unfortunate accident suffered by Respondent's counsel, the hearing had to be continued. In July 2014, Respondent terminated her counsel and simply stopped meaningfully participating in the hearing process. Instead, she filed a number of requests to postpone or reschedule hearings. These filings were generally last-minute and untimely. Despite requests for some evidentiary support from the Hearing Committee, Respondent consistently chose not to substantiate her statements that she repeatedly needed to reschedule hearings at the last minute. Nonetheless, the Hearing Committee granted the extensions.

Her strategy of avoidance was effective if unorthodox, dragging out an open-and-shut disbarment for over three years.

This case has languished in the disciplinary system far longer than is ideal, particularly where the misconduct that warrants disbarment-misappropriation-was largely a matter of straightforward math under Edwards.

The Hearing Committee granted continuances as Respondent requested them. If a Respondent requests more than one continuance based on a factual representation about a conflicting obligation, a medical necessity, or something similar, it would be appropriate for the Hearing Committee to condition further extensions on an evidentiary showing.- Without such a practice, a lawyer could delay the imposition of discipline far longer than would be necessary to comport with due process. This is particularly true when a respondent has a pattern of using such delay tactics. There is a line between appropriately accommodating a respondent's schedule and allowing abuse. Where that line lies turns on questions of fact, hearing committees should not be shy about demanding evidence when they are asked to repeatedly reschedule hearings or other dates.

Disciplinary Counsel argues that one remedy for the delay in this case, at least at the Board level, is for this Board to find that a respondent waives any argument not made to a hearing committee. ODC Br. at 13-16. There is no clear authority that supports the proposition that a failure to raise an issue before a hearing committee waives a respondent's right to raise that issue before this Board. 

The point is well-taken.

In D.C., the concept of default in bar discipline is anathema. Most places have a policy that if the lawyer bolts, the consequences are swift, predictable and harsh. 

As it should be.

Because the point of the exercise is public protection, right?

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

June 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Lawyer Seeking Child Sex Slave Disbarred

The New  Jersey Supreme Court has disbarred an attorney convicted of offenses and serving a 12-year prison sentence.

The Disciplinary Review Board rejected his attempt to delay the matter

On June 27, 2016, respondent sent a letter to the Office of Board Counsel (OBC) seeking an adjournment until his release from federal prison. He argued that, as a federal prisoner, he has no access to New Jersey case law or to the internet. He contended that due process and simple notions of fairness
required a continuance of the matter. Respondent argued that his incarceration prevents him from practicing law and, therefore, no significant impact on the disciplinary process or on the public as a whole would result from the delay in proceeding with this matter. We denied respondent’s adjournment request on July 7, 2016.

The crime

 in May 2010, he began chatting over the internet with a person whom he believed, at the time, to be a thirty-two year-old mother of a nine-year-old girl living in the Atlanta, Georgia, area. Unbeknownst to him, however, he was communicating with an undercover law enforcement officer. Respondent made contact with the "mother" in an on-line chat room titled, "child sex slaves." In this chat room, respondent identified himself as "m50sperv." He and the mother discussed respondent having sex with both the mother and her nine-year-old daughter.

Over a three-week period, respondent sent photos of himself to the mother, and explained how she could access child pornography on the internet in order to acclimate her daughter to the notion of engaging in sex with him. He also described the sex acts in which he wanted to engage with the mother and daughter. At some point, respondent and the mother spoke on the phone to arrange a specific date for him to meet with her and her daughter.

Eventually, respondent purchased an airline ticket to travel from New Jersey to Atlanta. Respondent never made it to the airport, however, because, prior to his scheduled flight, he was arrested by law enforcement officers in New Jersey for soliciting a different putative mother/daughter pair for sex.

He also was convicted of state crimes.

The DRB

Unfortunately, we are confronted with yet another attorney who has behaved in a manner that reflects poorly on the profession. With each case involving the sexual exploitation of children, our hope is that it will be the last. Sadly, that has yet to be the case and it is unlikely that the instant matter will be the last.

In our view, the conduct in this case should result in disbarment.

The court agreed. (Mike Frisch)

June 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Iowa Holds Sex with Client Does Not "By Itself" Give Rise To A Legal Malpractice Claim

The Iowa Supreme Court affirmed a legal malpractice award that in part involved sex with the client and had resulted in bar discipline.

A plaintiff brought claims against her former attorney for legal malpractice, assault and battery, and punitive damages. At the close of the plaintiff’s case, the district court granted the defendant’s motion for directed verdict on two legal malpractice claims: one regarding the preparation of a will and the other for breach of fiduciary duty. The district court submitted to the jury two claims of alleged legal malpractice: representation of the plaintiff in her divorce and representation of the plaintiff in pursuing a claim for assault against her former spouse. The jury returned verdicts for the defendant on the two submitted legal malpractice claims and returned verdicts for the plaintiff on the assault and battery claim and on the punitive damages claim. The jury awarded the plaintiff combined damages of $498,562.44. The plaintiff appeals the district court’s order granting the motion for directed verdict on the two additional claims of legal malpractice. The plaintiff also appeals various evidentiary rulings made by the district court. The defendant cross-appeals on the issue of damages. For the reasons discussed below, we affirm the district court. While we find that the defendant’s cross-appeal was untimely, we reject on the merits the defendant’s challenge to the amount of the jury award.

While representing the client in a divorce

After the meeting, Blessum called Stender and asked if she wanted to meet and catch up. She agreed, and they met at a local restaurant. During this meeting, Blessum told Stender he was unhappy in his marriage. At the end of the evening, Blessum kissed Stender. After Stender got in her car but before she left the parking lot, Blessum sent her a text message asking if they could meet again. Over the next two weeks, Blessum and Stender continued to meet and talk about intimate topics such as Stender’s childhood trauma and her marital and sexual abuse. Within two or three weeks, they began a sexual relationship.

While this sexual relationship continued, Blessum performed several other legal services for Stender. On June 28, Stender executed the will that Blessum had prepared. On August 9, Blessum sent a demand letter to Phillip. In the letter, Blessum demanded that [husband] Phillip agree to three changes in the divorce decree in exchange for Stender’s refraining from filing a civil suit against him for the physical and sexual assault Phillip committed against her in 2009. Blessum was aware the assaults occurred in 2009, and either knew or should have known the statute of limitations had run by the time he sent the letter to Phillip.3 On August 23, Blessum filed the QDRO formalizing Melissa’s interest in Phillip’s retirement account. In January 2012, while the relationship was still ongoing, Blessum assisted Stender with another legal matter.

But things got out of hand

On June 10, Stender went to Blessum’s house to confront him about rumors he was seeing other women. When she arrived, she went into the kitchen where she noticed a bottle of wine with two glasses set on the counter and a frying pan with food on the stove. She picked up the pan from the stove and confronted Blessum by asking if he was cooking for another woman. While Stender was holding the pan, Blessum was standing in front of her. At some point, the pan spilled onto Stender’s shoulder and hot grease caused burns on her back. Because the grease went through her clothing, Blessum began taking off Stender’s shirt.

Stender became anxious from the confrontation and the grease burn. Blessum went outside to retrieve Stender’s purse from her vehicle that contained her anxiety medication. When Blessum came back inside with Stender’s purse, she told him she was done with the relationship and bent down to get the pills out of her purse. While Stender was bent over, but before she could take the pills, Blessum began hitting her arm, forearm, head, and neck. After Blessum hit her, Stender grabbed some of the pills that had spilled on the floor and swallowed them. Stender tried to run out of the house, but Blessum caught her and dragged her back inside. Blessum threw her into the corner and started calling her a “subservient slave.” He pulled her through the living room onto the couch and threatened to sexually assault her. Blessum told Stender if she thought the “other men have hurt [her], . . . just wait and see what [he] do[es] to [her].” He told her he was going to make her vomit her pills so she would remember the entire assault.

It gets even worse

Later in June, Blessum began sending letters to Stender. In the letters, he acknowledged that he had dated other women at the same time as Stender and that he gave her a sexually transmitted disease. The letters also acknowledged the assault and included an apology for all of his misdeeds. Stender also received anonymous items in the mail during this time. On September 19, Stender filed a petition for relief from domestic abuse against Blessum. The district court granted a temporary restraining order that same date.

The majority

We...choose to adopt the majority approach and hold that a violation of one of our Iowa Rules of Professional Conduct cannot be used to establish a per se claim for legal malpractice. A violation may, however, be used as some evidence of negligence as provided in our prior caselaw.See, e.g., Crookham, 584 N.W.2d at 266. But before a violation of our rules of professional conduct can be used—even as some evidence of negligence—there must be an underlying actionable claim against the attorney arising out of how the attorney mishandled a legal matter. To find differently would mean that a violation of the rules themselves provides plaintiffs with an independent cause of action. This result is one that both our rules and our cases have specifically rejected. 

Here, Blessum’s sexual relationship in violation of our rules of professional conduct does not by itself give rise to a legal malpractice claim. In order to succeed on her claim for legal malpractice, Stender would need to demonstrate a duty that was violated and not just the sexual relationship alone.

The court majority's lengthy opinion deals with a host of interesting issues including the testimony of Blessum's spouse

Jan testified that Stender’s version of events was in contrast to her own experience. The testimony was offered to rebut Stender’s testimony that she encouraged Blessum to get back together with Jan. Jan testified that she felt the sexual relationship between Stender and Blessum adversely affected her marriage. Jan testified that Stender harassed her with nasty text messages and emails. She testified about sexually graphic emails and text messages that Stender sent to her. Jan testified that this contact impacted her job and her health and that she lost thirty pounds. Jan moved four times in 2011 and 2012.

Jan also testified that she believed Stender broke into her home on February 14, 2012. Jan testified she and Blessum were attempting to reconcile again around that time. Because their engagement anniversary was February 13, Blessum came to her home and left flowers and a Valentine’s Day card. The next day when Jan returned home, she found a card from Blessum to Stender torn up on the counter next to her own
card with a sign that read “fuck you” next to it.

Jan testified her housekeeper found Stender in Jan’s house in June 2012. Jan was supposed to go to a concert with Blessum that week, but chose not to attend after Stender was found in her house. While Blessum was at the concert, Stender sent Jan text messages stating that Stender was in the shower with Blessum and that Jan did not know how to sexually please her husband and needed Stender to show her. Jan also testified that Stender would send her daughter Facebook messages. Jan testified that she attempted to obtain a restraining order against Stender because of the emails and text messages, but was unsuccessful.

The court held that Jan's testimony was not unduly prejudicial.

Justice Hecht dissented and would remand on Stender's claims for further relief.

I find merit in Stender’s appeal. I would reverse the directed verdict on both the negligence and fiduciary duty issues and remand for a new trial...

Put simply, sexual relationships between lawyers and their clients are fraught with risk of financial and emotional injuries to clients. Because the risk of such injuries to clients is so grave, the rules of professional conduct for lawyers do not merely recommend avoidance of sexual relationships with clients—the rules categorically prohibit the commencement of such relationships during a lawyer–client professional relationship. Blessum clearly breached his professional duty to avoid a sexual relationship with Stender...

Again viewing the record in the light most favorable to Stender, I credit the substantial evidence tending to establish that even before Stender was severely beaten by Blessum, the relationship between the parties was tumultuous and marked by great emotional turmoil. A reasonable jury could find on this record that Stender was exquisitely vulnerable to emotional injury because she had an unfortunate preexisting history of sexual abuse and posttraumatic stress—a history of which Blessum was aware when he commenced the sexual relationship. I find substantial evidence in the record tending to prove Blessum expressly used his knowledge of that history in asserting power over Stender during the assault and that Stender suffered substantial emotional distress as a consequence of the sexual relationship before and after the severe beating. Accordingly, under the applicable standards of review, I believe the district court erred in concluding Stender failed to engender a jury question on damages arising from
Blessum’s breach of duty...

Because a reasonable juror could find that Blessum used information he acquired within the scope of the lawyer–client relationship to Stender’s disadvantage during the assault and that Blessum  dishonestly reinitiated the lawyer–client relationship as a pretext for beginning a sexual relationship, the theory of liability based on a breach of a fiduciary duty should have been submitted to the jury.

Two justices joined the dissent.

The ABA Journal reported on the trial verdict

A former client won a jury award of nearly $500,000 on Wednesday in a malpractice and domestic assault lawsuit against the Iowa lawyer who represented her in a divorce case.

The award against Anthony Zane Blessum, a West Des Moines practitioner who formerly served for 11 years as the top prosecutor in Madison County, includes $100,000 in punitive damages, reports the Des Moines Register.

Blessum earlier pleaded guilty to misdemeanor assault in a related criminal case concerning the attack on Melissa Stender. He was sentenced to seven days in jail and ordered to pay Stender $7,000, the Associated Press reported at the time. He also had his law license suspended for 18 months.

The Iowa Supreme Court imposed the discipline in a legal ethics case, based on findings that Blessum had a sexual relationship with Stender; withdrew unearned funds from a $1,000 retainer she had paid him from a trust account; and physically attacked her, the Des Moines Register reported when the court made its determination earlier this year.

Justia provides a copy of the court’s March 27, 2015 opinion in the ethics case.

The opinion explains that Blessum began representing Stender (referred to as Jane Doe) in a divorce case in 2008 and, in 2011, agreed to help her draw up a will. At that time, a relationship began which lasted more than a year. However, it ended in 2012 after an argument at Blessum’s house erupted into a physical attack.

“Doe was angry Blessum appeared to be fixing a romantic dinner for someone else and she picked up and threw the cooking pan he had been using,” the opinion says.

During the argument, Blessum struck her in the face; hit her multiple times; tried to prevent her from taking anti-anxiety medication; and physically restrained her from leaving his home, the court wrote. She called 911 when he briefly left her alone in the room, then hid the phone.

“Both were unaware the call had gone through and was being monitored and recorded,” the opinion says. Treated at a hospital emergency room after police arrived, Doe suffered a black eye; bruising on her face, neck, arm and abdomen; and other facial injuries.

Blessum apologized and she initially resumed their relationship. Within a few months, however, the two parted for good and he was eventually criminally charged in the attack.

Attorney Roxanne Conlin represented Stender in the civil suit. Conlin said it had been important to her client to hold Blessum accountable for his conduct, the Register reports. “Certainly half-a-million dollars does that. For that part, she’s happy,” Conlin said.

A lawyer for Blessum said he was disappointed by the verdict but declined to discuss the merits of the case with a reporter for the newspaper.

(Mike Frisch) 

June 16, 2017 in Bar Discipline & Process, Clients | Permalink | Comments (0)