Monday, July 25, 2016

Ex-Husband Wanted To Help; Attorney Convicted And Suspended

Reciprocal discipline was imposed in Massachusetts as a result of a Connecticut sanction stemming from the attorney's criminal conviction.

On September 2, 2015, the respondent pleaded guilty (pursuant to North Carolina v. Alford, 400 U.S. 25 (1970)) in the Superior Court for the Judicial District of New London, Connecticut, to accessory to burglary in the third degree, a felony, in violation of C.G.S. §§ 53a- 8 and 53a-103. The respondent was sentenced to incarceration for four years, with execution suspended and probation for three years. As a result of her conviction, the respondent was suspended from the practice of law in Connecticut for one year by the Superior Court for the Judicial District of Waterbury, Connecticut, on October 5, 2015.

On February 2, 2016, bar counsel filed a notice of conviction and petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County based upon the Connecticut order of suspension. On February 3, 2016, the parties submitted to the court a waiver in which they agreed to the entry of an order suspending the respondent for one year, retroactive to October 12, 2015, the effective date of the respondent’s Connecticut suspension. The parties further agreed that the respondent’s reinstatement to the Massachusetts bar be conditioned upon her reinstatement in Connecticut. On March 14, 2016, the Court (Hines, J.) so ordered.

The Norwich Bulletin reported on the incident in which she persuaded her ex-husband beat up her just ex-boyfriend, who got a three-year sentence.

Assistant State's Attorney David Smith, who was the prosecuting attorney, said that on June 11, 2014, the day after Doerr-Hicks broke up with her boyfriend, she and her ex-husband, James Hicks, went drinking and decided to drive to the boyfriend's home at about 1 a.m.
During the night, Doerr-Hicks sent the boyfriend numerous threatening texts, Smith said. "She told (Hicks) to commit the assault," he said.
Doerr-Hicks told police she had broken up with her boyfriend because she suspected him of cheating. A drunken Hicks, kicked in the front door of the ex-boyfriend's house and attacked him as he slept.
"I was still in my bed when he jumped me and started punching me in the head and face," the man told police.
Hicks inflicted bloody injuries to the man's face and head, causing him to be treated at Day Kimball Hospital in Putnam, according to police.
"It's sad she (Doerr-Hicks) won't be serving the citizens of the quiet corner," said Doerr-Hicks' defense attorney Mark A. Dubois. "She understands that her actions have consequences," he said.
Doerr-Hicks said she will continue as a paralegal during her suspension.
Doerr-Hicks is a former Bulletin reporter.
(Mike Frisch)

July 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, July 23, 2016

Informal Admonition For Switching Sides In Divorce Case

The District of Columbia Office of Disciplinary Counsel has informally admonished an attorney who engaged in a conflict of interest by representing the husband in a divorce case after a consultation with the wife.

You met with W for about three hours at your home to discuss the divorce. W states that you advised her to file for divorce in the District of Columbia, rather than in Maryland. You also provided information to W regarding "safe house and women's shelter information." At the conclusion of the meeting, you informed W that you could not represent her because of your social and business relationship with H.

Approximately one year after her consultations with you, W filed her pro se divorce action in the Superior Court of the District of Columbia, Family Division. Shortly thereafter, you entered your appearance in the matter on behalf of H. About two weeks later, W filed a motion with the court that she entitled, "Notice of a Conflict of Interest." In her motion, she informed the court of her prior consultations with you, and she asked the court to disqualify you from representing H. The court granted W's motion and removed you from the matter.

Disciplinary Counsel rejected the suggestion that there had been no attorney-client relationship with the wife.

When W spoke with you on the telephone and subsequently met with you, she did so for the purpose of seeking legal advice regarding her divorce from H. W states that she disclosed confidential information during the course of the conversations with you, before you advised her that you could not represent her. While you claim you do not remember the confidential information, both you and W agree (i) that you consulted with W, and (ii) that you provided W with advice regarding how and where to file for divorce from H. Based on these facts, we find that there was an attorney-client relationship between you and W.

The case is In re Roquelle Jeri, Bar Docket No, 2015 - D234 and can be found at this link.

The conduct likely violated the rule governing duties to a prospective client even if a full attorney-client was not formed. (Mike Frisch)

July 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 22, 2016

Moonlighting By Disabled Police Officer Not Dishonest

The Illinois Review Board finds that no misconduct was proven and recommends that ethics charges be dismissed in a matter involving an attorney already suspended in an unrelated matter.

This matter arises out of the Administrator's one-count complaint charging Respondent with engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).

Respondent, a Cook County Sheriff's Office police officer, suffered an injury while on duty. He filed a workers' compensation claim and eventually collected temporary total disability benefits for a period of over two years. While on disability, Respondent continued to work and receive income from two other jobs, as a private-practice attorney and as a McHenry County commissioner. For most of the time at issue, he did not have approval to work these two other jobs, as required by workplace rules. He was eventually terminated from the sheriff's department for working secondary employment without approval and while receiving disability benefits.

Based on this conduct, the Administrator filed its complaint against Respondent. Following a hearing, the Hearing Board found that Respondent had engaged in dishonest conduct by intentionally failing to obtain approval for his secondary employment while on disability so that he could continue to collect full disability payments while also earning other income. It recommended that Respondent be suspended from law practice for one year.

Both parties appealed. On appeal, the Respondent challenged the Hearing Board's finding that he had engaged in dishonest conduct and asking that the proceedings against him be dismissed. The Administrator agreed with the one-year suspension but asked the Review Board to specify that it should begin at the conclusion of a suspension of three years and until further order that Respondent was currently serving based on a prior disciplinary proceeding.

The Review Board reversed the Hearing Board's finding of misconduct, finding that the Administrator failed to prove that Respondent had engaged in dishonest conduct because he did not show by clear and convincing evidence that Respondent knew his disability benefits would or could be reduced by his secondary employment, or that his benefits, in fact, could have been reduced by his secondary employment. It thus recommended that the case be dismissed.

(Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Silly" Contempt

An attorney's resignation was accepted by the New York Appellate Division for the First Judicial Department.

In September 2015, the Committee brought 20 charges against respondent alleging that he committed professional misconduct by, inter alia, neglecting clients' legal matters, repeatedly threatening criminal prosecution to gain an advantage in a civil case, using a client's resources without permission or authorization, and engaging in conduct that adversely reflects upon his fitness to practice law. In March 2016, the Committee served respondent with a notice of supplemental charges. Those eight additional charges arose out of respondent's purported improprieties in which he allegedly, inter alia, neglected a client matter, made false statements to a tribunal, and asserted frivolous claims in litigation.

During the course of the Committee's investigation, it became aware of two court orders sanctioning respondent. One order was based on his failure to appear in court for oral argument and untimely opposition to a contempt motion in which he stated that the court was "silly" to consider holding him in contempt. Respondent was also sanctioned in another action, after the court determined that respondent made false representations about and engaged in ad hominem attacks against opposing counsel in another client's civil matter. At an examination under oath conducted by the Committee, respondent admitted sending an email to his adversary in which he threatened to dispatch law enforcement agents to act on his behalf and against his adversary's client. Respondent additionally admitted that he defaulted while representing a client in a guardianship proceeding and told a third party that he would expose his extra-martial affair if he did not agree to pay a client's legal fees.

The attorney's affidavit complied with the requirements for resignation. (Mike Frisch)

July 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 21, 2016

Ignoring Court Order Leads To Disbarment

The Utah Supreme Court has affirmed the  disbarment of an attorney who had engaged in a conflict of interest, failed to adhere to the requirements of an injunction in accepting and misusing fees.

Gilbert represented clients when he had a direct personal interest that conflicted with his representation of those clients, he disregarded the Injunction, and he facilitated his client’s violation of the Injunction by accepting funds subject to that order. And Gilbert, to this day, has disregarded the district court’s order requiring that he disgorge the attorney fees he received from his clients. Regardless of the validity of the Injunction and disgorgement order, the Utah Rules of Professional Conduct require that Gilbert not knowingly disregard those orders without making his intentions known to the district court and opposing counsel. While we recognize that disbarment is a severe punishment, it is appropriate here. We affirm the district court’s order and conclude that disbarment is the proper sanction for Gilbert’s misconduct.

The fees involved the attorney's representation of the Utah Down Syndrome Association against the Utah Down Syndrome Foundation. 

At the time he accepted the checks, Gilbert knew, or should have known, that the funds he received were the subject of litigation and that the bank accounts from which the funds were taken were subject to the Injunction. Nevertheless, Gilbert did not deposit the monies into a trust account or otherwise hold the funds pending the resolution of the dispute between his clients and the Foundation. Nor, as the district court found, did Gilbert “notify the court . . . of his intention to accept the . . . checks based on his position that [the Injunction] was invalid, void, had expired, [and] did not apply to the [funds] he received.” Rather, Gilbert simply cashed the checks and kept the funds.

The Foundation eventually learned that Gilbert had received payments from the bank accounts subject to the Injunction. The Foundation filed a motion to disgorge and requested an order requiring Gilbert to return the funds he had received from the Chapters’ bank accounts. After a hearing on the Foundation’s motion, the district court ordered Gilbert to return the attorney fees to the Foundation.

Despite the district court’s order, Gilbert did not return the legal fees he had received. The Foundation eventually filed a second motion for disgorgement of funds. The court granted the Foundation’s second motion and entered judgment against Gilbert for $30,000, interest, and associated attorney fees. To date, Gilbert has not returned the funds to the Foundation.

The court makes clear the obligations of an attorney subject to a court order who believes the order to be flawed

rule 3.4(c) stands, at a minimum, for the proposition that an attorney must either obey a court order or alert the court that he or she intends to not comply with the order. An attorney may not, as Gilbert did here, ignore a court order while secretly hoping to have a trump card to play if non-compliance later becomes an issue...

Although Gilbert may have harbored reservations about the order’s validity, he, in the district court’s words, “had a duty to openly contest the order by filing a request to stay the order in court, notify the court of his receipt of the . . . checks and at least hold the monies in trust until the court ruled on the issue.” The district court interpreted and applied rule 3.4(c) correctly.

He failed to safeguard the fee

The district court concluded that Gilbert violated rule 1.15(e) in two ways. First, Gilbert failed to place any of the $30,000 in attorney fees in a trust account despite knowing that both the Foundation and his clients claimed ownership of the funds. And second, Gilbert violated rule 1.15(e) by failing to return the $30,000 to the Foundation when ordered to do so by the court.

His subjective good faith as to the validity of the court order was irrelevant 

That comment does not, however, provide an attorney carte blanche to ignore court orders. As explained above, the Utah Rules of Professional Conduct contemplate the situation in which Gilbert found himself: subject to an order he believed to be flawed. The rules instruct an attorney in that situation to either comply or openly refuse to comply. An open refusal permits the district court to assess the attorney’s argument and allows opposing counsel to take action to protect her client from the opposing attorney’s noncompliance. An attorney cannot, consistent with the rules of professional conduct, unilaterally and surreptitiously flout a court order. To the contrary, willful disregard of a district court’s order without an open objection constitutes conduct prejudicial to the administration of justice.

The attorney's procedural objections also failed to persuade the court that disbarment was not appropriate in these circumstances.

In a related matter also decided today, the court denied Gilbert's petition for extraordinary relief.

In 2012, the court denied his petition to bring a third-party complaint against the Foundation in his disciplinary case. (Mike Frisch)

July 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 20, 2016

Madoff of the Midwest: Hoosier Hugh Hefner Wannabe Gets Disbarred

The Indiana Supreme Court has disbarred an attorney who went from the 30,000 square foot high life to decidedly smaller accommodations

In March 2011, Respondent was indicted in federal court on twelve felony counts rooted in a complex scheme of securities and wire fraud. Respondent was convicted on all counts following a jury trial in June 2012 and later was sentenced to fifty years in prison. Respondent’s convictions on ten of the twelve counts were affirmed on appeal. U.S. v. Durham, 766 F.3d 672 (7th Cir. 2014), cert. denied. On remand, the district court again imposed a fifty-year sentence. With his criminal proceedings now having come to rest, Respondent stands convicted of eight counts of wire fraud, one count of securities fraud, and one count of conspiracy to commit wire and securities fraud. All told, over a period of several years Respondent and two co-defendants defrauded thousands of investors of over $200 million...

The Court concludes that Respondent violated the Rules of Professional Conduct by defrauding thousands of investors of over $200 million. Respondent already is under an order of interim suspension in this case as well as a separate suspension order for nonpayment of dues. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state, effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.

Details from WTHR.com

Tim Durham will spend the rest of his life in prison. Durham was convicted of cheating his clients out of $200 million in a Ponzi scheme, and on Friday, a judge sentenced him to 50 years behind bars.

U.S. District Judge Jane Magnus-Stinson sentenced Durham, a former chief executive of National Lampoon who was profiled in CNBC's "Rise of the Super-Rich" report in 2008, following his convictions in June on charges of securities fraud, conspiracy and 10 counts of wire fraud.

Durham, who ran the investment business Fair Finance, was sentenced to 50 years. Prosecutors had asked for life, while Durham wanted just three...

Prosecutors wanted life sentences for all three men. They say the three stripped Akron, Ohio-based Fair Finance of its assets and used the money to buy classic cars and other luxury items and to keep another Durham company afloat.

Attorneys for both Cochran and Snow asked the judge for less substantial sentences than Durham claiming they did not have control of operations at Fair Finance.

Bloomberg Business Week called him the Madoff of the Midwest and reported on his 45th birthday party

More than 1,000 people showed up at his 30,000-square-foot mansion in Fortville, an exurb of Indianapolis. Members of the Indianapolis Colts arrived, as did Kato Kaelin. Durham dressed like Hugh Hefner, in a plush robe. When he went to blow out the candles, his cake was frosted with his likeness in the center of a million-dollar bill.

 Later, as reported in the Indianapolis Star, Durham posted photographs of the party to his Myspace page, including one of him getting a lap dance and two of the models kissing, nude. He dubbed it his “Fantasy Pajama and Lingerie Party.”
 
And
Durham had long attracted attention in Indianapolis, and not just for his parties. He was also one of the state’s biggest backers of Republican politicians. “Tim Durham was somebody who came out of nowhere in the late ’90s and kind of declared himself a very rich guy,” says Greg Andrews, managing editor of the Indianapolis Business Journal, who has covered Durham extensively. “He established himself as a player by being a tremendously large donor to candidates.” Those included Governor Mitch Daniels. Durham gave $105,000 to his 2004 campaign, making Durham the governor’s second-biggest individual donor that cycle. Over the years, he made some $800,000 in political donations, according to public records. The perceived gap between Durham’s private behavior and his support for conservative candidates led Matthew Tully, a columnist for the Indianapolis Star, to chastise Durham for his conspicuously libertine lifestyle. The column went viral, likely because of its link to those Myspace photos.

Bloomberg further reports that he made his initial fortune the old fashioned way: he married it.  

More here on the hubris before the fall from the Indianapolis Monthly in April 2011 under the title Outrageous Fortune. 

Few people have been better at acquiring “stuff” than Durham. The 45-year-old founder of Obsidian Enterprises, a leveraged-buyout firm in Indianapolis, he claims to be worth $75 million. At last count, he owned or co-owned more than 70 classic and exotic cars, three private jets, the yacht, numerous Picassos and Renoirs, two restaurants (Touch and, in Indy, Bella Vita), a nightclub (GELO Ultra Lounge in Castleton), two limousines, a magazine (Car Collector), a plastic-surgery center, a cigar store, and—most strangely—the storied comedy brand National Lampoon. That’s to say nothing of the profitable but less glamorous manufacturing companies that fall under the umbrella of Obsidian...

Durham’s taste for the extravagant has widened his circle of friends lately. He pauses the tour at a photograph of him and Ludacris, rapper and star of the 2004 film Crash. “Luda” stopped by one of Durham’s lavish parties before the Indianapolis 500 last year, and the two instantly became pals. Durham sees nothing strange about a relationship between a rapper and a Hoosier investor, and the feeling is mutual. “Tim can kick it in my crew anytime and blend right in,” Ludacris said by phone from his Atlanta estate this fall. “He knows how to have fun, and we share a lot of the same interests as far as cars and expensive tastes.” Ludacris invited Durham to the 2007 MTV Music Video Awards, where they sat with Paris Hilton and Pamela Anderson. Durham’s regular trips to hang out at the Playboy Mansion with Hugh Hefner have led to a few Hollywood friendships as well. “Hef is a smart guy, a real trendsetter,” he says. “He blazes a lot of trails—a lot like I feel I’m blazing here in Indiana.” Durham should know. His current girlfriend, Jami Ferrell, was Miss January 1997 and dated Hefner (and Jack Nicholson) before making it back to her New Castle home.

(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Lawmaker, Lawbreaker

Criminal conduct led to prison and disbarment for a former South Carolina lawmaker.

The Palmetto State reported

The S.C. Supreme Court on Wednesday disbarred former State Rep. Thad Viers, Republican of Horry, for lawbreaking actions committed in 2012 in connection with his ex-girlfriend, as well for a federal money laundering charge.

Viers is now serving time in a federal prison in Hopewell, Va., on money laundering charges that bore no relation to his personal problems. He is due to leave prison in June 2017.

Once Viers, 38, of Myrtle Beach, had punched all the right tickets to ascend the Republican ladder of success.

As a young teen, he was a page to the late Sen. Strom Thurmond, R-S.C., graduated from The Citadel in 1999, did research for the conservative Heritage Foundation think tank, was a member of the Sons of Confederate Veterans and was elected to the S.C. House of Representatives in 2003.

He took the anti-big government positions that resonate with his party’s base – for example, suing the city of Myrtle Beach over its law that required motorcyclists to wear helmets within city limits.

In 2012, as he was readying a bid for Congress, Viers was arrested on charges of harassing and stalking a 28-year-old woman. That came six years after he was charged with threatening to assault a man who was dating his estranged wife. He pleaded no contest in that case.

Before the 2012 harassment and stalking case was disposed of, Viers was also indicted for burglary and larceny – again, a charge connected with the 28-year-old woman Viers had once dated. In 2014, Viers pleaded guilty to harassment 2nd degree and was sentenced to 60 days in jail. The related charges were dismissed.

Later in 2014, a federal grand jury indicted Viers on multiple felony charges including money laundering and making false statements to the IRS.

In August of last year, Viers pleaded guilty to federal money laundering charges in a plea deal that dismissed other charges. He was sentenced to 37 months in prison and to pay a fine of $875,000. Upon release from federal prison, he will be on supervised release for three years.

At some point, Viers will be able to apply for a law license again. But that is at least five years in the future, after he completes his supervised release from prison.


(Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocal Suspension For Frivolous Litigation

The Wisconsin Supreme Court has imposed reciprocal discipline based on an attorney's suspension by the Minnesota Supreme Court.

The attorney had accumulated a record of disciplinary sanctions in both jurisdictions.

In Wisconsin, he had one private and two public reprimands as well as a prior one-year suspension.

In Minnesota

In the Minnesota proceeding giving rise to this reciprocal discipline case, the Minnesota Supreme Court noted that Attorney Selmer had been disciplined in Minnesota on four prior occasions.

Here, the misconduct in Minnesota led to findings

that Attorney Selmer filed ten separate lawsuits in two different counties, the court of appeals, and a Minnesota federal district court, and then repeatedly failed to obey court orders, appear for hearings, or otherwise respond to pleadings and discovery requests. All ten lawsuits were dismissed based either on the frivolity of Attorney Selmer's arguments or because he failed to comply with court rules. The court noted that two of Attorney Selmer's four prior Minnesota disciplinary proceedings were for similar conduct, engaging in a pattern of harassing and frivolous litigation.

The court here rejected his contentions against reciprocal discipline

Attorney Selmer has wholly failed to provide any claim predicated upon the grounds set forth in SCR 22.22(3) indicating that imposition of the identical discipline or license suspension by this court would be unwarranted.

Finally, notwithstanding Attorney Selmer’s unsupported and conclusory denials, the record supports the OLR’s assertion that Attorney Selmer failed to timely notify OLR of his suspension in Minnesota, which constitutes misconduct pursuant to SCR 22.22(1).

The court imposed a 12-month suspension. (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Convicted Attorney Faces Bar Discipline

The North Carolina State Bar has filed ethics charges arising from an attorney's mortgage fraud conviction.

The Chicago Tribune reported on the criminal case

A former national radio host found guilty of mortgage fraud last year left a federal courthouse Tuesday appearing grateful after being sentenced to probation instead of prison time.

Prosecutors have said Warren Ballentine, 44, formerly of Country Club Hills, acted as the real estate lawyer at closings involving more than two dozen fraudulent loans that bilked lenders out of almost $10 million. A jury in October found him guilty of six counts of mail, wire and bank fraud as well as making false statements to financial institutions.

But at Tuesday's sentencing hearing, U.S. District Judge Matthew Kennelly said the evidence presented at trial proved Ballentine's criminal wrongdoing in only three of those deals. Kennelly sentenced Ballentine to three years of probation and 300 hours of community service.

"He was a relatively new attorney, a relatively inexperienced attorney," Kennelly said. "He was basically chasing fees wherever he could find them. … I view Mr. Ballentine as a relatively minimal participant in this."

The judge also ordered Ballentine to pay $140,940 in restitution.

At its peak, Ballentine's three-hour daily radio show featured a wide range of issues affecting the African-American community and was syndicated on Radio One in 37 media markets, including Chicago. He billed himself as "the people's attorney."

Assistant U.S. Attorney Jason Yonan said Ballentine played a significant role in a serious offense.

"The overlooked aspect of this is the damage it causes to communities," Yonan said.

In his own remarks to the judge before the sentencing, Ballentine described his personal narrative of rising up from an impoverished and fatherless childhood on Chicago's South Side and eating "sugar sandwiches."

Despite those challenges, Ballentine said he stayed out of trouble — until being convicted of fraud.

"I'm guilty, but I'm guilty of being ignorant," said Ballentine, his voice wavering with emotion. "I'm guilty of not paying attention. … Your honor, of course it breaks my heart that I'm going through this, but what hurts me the most is about my kids not having their father."

After the sentencing, Ballentine said he was planning to appeal his conviction and told reporters he was grateful to the judge for sparing him time in prison.

"I was portrayed as the one doing all this, but I wasn't," Ballentine said.

The attorney was suspended in September 2015.

The Root had the story of the jury verdict. (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A $250 An Hour Paralegal Gets Suspended Again

The Arizona Presiding Disciplinary Judge approved a consent two-year suspension of an attorney who had been suspended and not sought reinstatement.

While employed as a paralegal, he impersonated an attorney and was paid a $250 hourly fee

In summary, Mr. Lerch was working as a paralegal on an at will verbal status by a law firm and two licensed attorneys were to supervise his bankruptcy work. He was referred a client by Chuck Fennimore. That client was involved in complex litigation in Texas. The law firm and its principal was not aware of this case. Notwithstanding, Mr. Lerch verbally contracted with the client that the law firm would represent client, her father and their company. Client agreed to pay Mr. Lerch $20,000.00 for the review and evaluation of her case. Client paid those funds as directed by Mr. Lerch to his then defunct law firm’s bank account and another $2,500.00 to Fennimore. Only Mr. Lerch could disperse funds from the account. During the pendency, none of the attorneys in the law firm spoke with or received copies of the emails between Mr. Lerch and client.

None of the communications between Mr. Lerch and client indicate that Mr. Lerch acted as a paralegal. The emails Mr. Lerch sent regarding the litigation used the email account from his defunct firm, not the law firm he was otherwise working for. He billed the client $250.00 per hour. None of his assistants were lawyers. While his itemized fee statement listed the law firm’s name he was working for as a paralegal, he intentionally listed his defunct email account on the document rather than the email of the listed law firm.

As to sanction

  But for the hiring of a Texas lawyer to mediate the agreement, the actions of Mr. Lerch would probably have remained hidden, encouraging him to continue to pretend he was a licensed lawyer and defraud other members of the public. Two central tenants of lawyer discipline is the protection of the public and to deter similar conduct by other attorneys. A two (2) year suspension is fully warranted. The PDJ finds the proposed sanction of suspension meets the objectives of attorney discipline and the Agreement is therefore accepted.

 (Mike Frisch)

July 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 19, 2016

Porn Conviction, Bar Charges

An Illinois attorney has been charged with ethical violations based on his criminal conviction

Prior to June 2015, Arlington Heights police began investigating Respondent after receiving tips that had been submitted to the National Center for Missing and Exploited Children that child pornography had been downloaded via multiple Twitter accounts from an Internet service provider address belonging to Respondent.

In June 2015, Arlington Heights police searched Respondent’s home and seized a laptop computer, several external hard drives, jump drives, CDs and DVDs, containing more than 500 images and 50 videos of child pornography, including images of children under the age of 13 engaged in sexual activity.

On July 22, 2015, a Cook County grand jury indicted Respondent on 31 counts of the offense of child pornography in the matter of People of the State of Illinois v. James Crowley, docket number 15 CR -11467. Count one of the indictment charged that Respondent, with knowledge of the nature or content thereof, possessed any film, videotape, photograph or other similar visual reproduction or depiction by computer, to wit: moving depiction by computer, of any child whom Respondent knew or reasonably should have known to be under the age of thirteen, where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct with any person, in violation of Chapter 720 Act 5 Section 11-20.1(a)(6)(i)/(c-5) of the Illinois Compiled Statutes.

Count two of the indictment charged that Respondent, with knowledge of the nature or content thereof, possessed any film, videotape, photography or other similar visual reproduction or depiction by computer, to wit: moving depiction by computer, of any child whom Respondent knew or reasonably should have known to be under the age of thirteen, where such child is actually or by simulation engaged in any act of sexual penetration or sexual conduct involving the sex organ of the child and the mouth of another person, in violation of Chapter 720 Act 5 Section 11-20.1(a)(6)(ii)/(c-5) of the Illinois Compiled Statutes.

On May 19, 2016, Respondent entered into a voluntary plea of guilty to Counts one and two of the indictment. Respondent was sentenced to serve six months in the Cook County Department of Corrections, 48 months of sex offender probation, and fined $1,199. The State’s Attorney nolle prossed counts three through 31 of the indictment upon Respondent’s plea of guilty.

The Chicago Tribune reported on the criminal charges. (Mike Frisch)

July 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Hot Blooded And Reprimanded Rather Than Suspended

An attorney who was suspended for three years in New York got a reprimand as reciprocal discipline in New Jersey.

He had failed to supervise an employee who had threatened his client, leading to the 2003 suspension.

The story

On or about January 7, 1998, respondent sent or caused his office to send a letter to his client, Sulaiman Ahmad concerning a fee dispute. The letter was written on respondent’s office letterhead, identified as "The Law Offices of Jay Chatarpaul." The purported signature on that letter was that of Robendranauth (Rob) Ramphul, who was identified in the letter as a law graduate. Mr. Ramphul had graduated from law school, but was not admitted to the practice of law in the State of New York. In an effort to collect payment for legal services purportedly rendered on Mr. Ahmad’s behalf, the letter implied that confidences and privileged information would be used against Mr. Ahmad as follows:

'We will give you until January 15, 1998. This will be our last contact with you. We are trying to avoid you the pain and suffering of going through all of this. Mr. Ahmad, what you have done is very stupid. We are still your attorney. Your case is not over yet. Your case is still open. Your fingerprints will come to us within a few months. We have your rap sheet. We have your arrest record. We have your social security number. By the time you receive this letter, we will know where you work. We can subpoena your financial information from your credit card company. Where will you turn and hide. If you honestly believe that moving to another state will keep you safe, well you are really stupid.’

At or about the same time, respondent’s sister, Parbatie Ramdat, a nonlawyer employee in respondent’s office, went to Mr. Ahmad’s home address at the request of respondent. Mr.[sic] Ramdat affixed to Mr. Ahmad’s door, an unsigned letter containing similar implied threats. On or about January 19, 1998, respondent sent a letter to Martha Sherman of the First Savings Bank to which respondent annexed documents pertaining to Mr. Ahmad’s criminal court complaint, his interview prepared by the Criminal Justice Agency (CJA), and motion papers pertaining to his criminal matter. Mr. Ahmad’s case was still pending and was scheduled to be dismissed and the record sealed. On January 16, 1998 Mr. Ahmad filed a complaint against respondent with the petitioner Grievance Committee and enclosed the above mentioned January 7, 1998 letter. Respondent provided the petitioner Grievance Committee with a written answer dated January 24, 1998. He also enclosed a copy of the above mentioned January 19, 1998 letter. In respondent’s answer to the petitioner Grievance Committee he stated that it was his employee, Mr. Ramphul, who sent the letter dated January 7, 1998 to Mr. Ahmad because Mr. Ramphul had been outraged by the client’s failure to pay his fee. In an examination under oath before the petitioner Grievance Committee, on March 5, 1998, respondent testified that it was he and not Mr. Ramphul, who had drafted the January 7, 1998 letter and that respondent had directed Mr. Ramphul to sign it

The New Jersey Disciplinary Review Board

Although we were troubled by respondent’s conduct, we were not persuaded that a suspension is required in this case. Compelling mitigating circumstances convinced us that a reprimand adequately addresses the seriousness of respondent’s ethics transgressions and, at the same time, preserves the confidence of the public in the profession. Specifically, as pointed out in respondent’s February 25, 2002 letter to the OAE, respondent was a new and inexperienced attorney at the time, whose "young hotbloodedness’’ motivated his actions. Respondent has expressed regret for "each and every single act with respect to that client" and acknowledged that "he threw away all my humbleness and humanitarian beliefs out the window. I shamed myself, my client, and caused great grief to my self [sic] and those in this great profession." Respondent claimed that, since these incidents, he has learned a lot and has become a mature individual. We also noted his recent humanitarian efforts toward police officers and firefighters following the tragic events of September 1 1, 2001.

The court agreed.

In a second matter, the court ordered that ethics charges against the same attorney be dismissed.

The court held that the dissemination of public record information did violate violate the duty of confidentiality and that there was a lack of precedent that the failure to preserve web page information violated Rule 7.2(b). 

The DRB had proposed a reprimand for 

respondent’s conduct in (1) publishing, on his law firm’s website, an article about a discrimination case that he had instituted on a client’s behalf and in which he made comments about the judge who had presided over the trial, (2) failing to remove the article from the website, as required by the terms of the settlement agreement executed by the parties, and (3) failing to comply with the RPCs governing attorney advertisements. 

There was a dissent in favor of dismissal of the charges

Like the special master who heard this matter, I do not think that re-publishing confidential information that has already been made public should be considered an ethics violation or that one should need a client’s permission to use already-public information in an article. cited by the majority Nor do I think that the legal authority (at p. 61) supports such a holding...

Although RPC 7.2(b) requires attorneys to keep a copy of "an advertisement or written communication" for three years "after its dissemination," no prior case has found a violation of this rule or addressed this issue, and I disagree with the majority that failure to keep this type of record is comparable to violations of RPC 1.15(d) requiring attorneys to maintain financial and banking records. It is not even clear that RPC 7.2(b), adopted in 1984 before the wide use of the internet that exists today, requires attorneys to keep all versions of easily-changed websites that are often frequently updated. Moreover, this issue arose in this case only because a settlement agreement required respondent to remove his article from the internet and his failure to keep a copy of the various iterations of his website under these circumstances seems to be unintentional and, at most, a de minimis violation.

(Mike Frisch)

July 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 18, 2016

Indiana Wants Me, Lord I Can't Go Back There

An attorney who was reciprocally suspended in Indiana in 2000 after a Kentucky suspension was reinstated in Kentucky in 2009 but not in Indiana.

He did use his Indiana license after suspension

 Respondent admits practicing law in Indiana while suspended but asserts, without verification or any supporting evidence, that he believed he had been readmitted to practice in Indiana.

Respondent’s professed belief, even if credited, was not reasonable under the circumstances. Accord Matter of Ayres, 51 N.E.3d 1139 (Ind. 2016). Respondent tendered a request for readmission in 2010 in DI-101, but that request was noncompliant with our disciplinary rules and, accordingly, was rejected by the Clerk for filing and never considered or ruled upon by this Court. Respondent took no further action in DI-101 and took no action whatsoever in DI-509. In short, Respondent had no reasonable basis for believing he had been reinstated in Indiana.

Moreover, the case records before us reflect that Respondent’s suspended status was called to his attention by the judge in a Hendricks County case in August 2013. Even assuming Respondent had believed up until that point that he had been reinstated in Indiana, he was put clearly on notice in August 2013 that he remained in suspended status, and indeed he acknowledged in a notice filed with the court the need to "either resolve the licensure issue or secure substitute counsel." Yet, several of the remaining cases referenced in the Commission’s verified petition involve actions by Respondent unquestionably constituting the practice of law that occurred later in 2013, in 2014, and even as late as September 2015. Accordingly, we find that Respondent has violated this Court’s orders suspending him from the practice of law in Indiana and that he is guilty of indirect contempt of this Court.

 He was fined $1,000 and the reciprocal suspension was converted into a two year suspension with proof of fitness. (Mike Frisch) 

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Landmark Wisconsin Disciplinary Decision Comes Almost Four Years After Oral Argument

The Wisconsin Supreme Court has publicly reprimanded an attorney for misconduct in representing an attorney in a reinstatement hearing.

After our careful review of this matter and the legal issues it presents, a majority of the court has agreed that Attorney Riley committed professional misconduct, that he should be publicly reprimanded, and that he should be required to pay the full costs of this disciplinary proceeding, which were $16,961.70 as of November 6, 2012. This is, therefore, the mandate of the court. A majority of the court, however, does not agree as to a single rationale for reaching that result. Three justices, Chief Justice Roggensack, Justice Ziegler, and Justice Gableman, agree with the reasoning set forth in this lead opinion. Justice Abrahamson and Justice Ann Walsh Bradley concur in the mandate, but do not join this opinion. Each of them sets forth her views in a concurring opinion. Justice Prosser dissents.

The case is notable for a number of reasons and was characterized as a "landmark" decision in Justice Prosser's dissent.

One notable factor - the oral argument was held on October 23, 2012.

This case involves the intersection of the careers of two attorneys, Attorney Riley and Attorney Brian K. Polk. An understanding of Attorney Polk's employment history is necessary to an understanding of the charges of professional misconduct against Attorney Riley.

The intersection was a dangerous one indeed.

Polk had practiced personal injury law for a firm headed by attorney Alan Eisenberg while administratively suspended

Attorney Polk was made part of the personal injury "team" that was led by Attorney Eisenberg. He solicited individuals to become personal injury clients of the firm, he met with and gave legal advice to clients about their claims, he did property damage settlements, and he corresponded with third parties using firm letterhead and identifying himself in the signature block as an "attorney at law." During the time that Attorney Polk worked for the new Eisenberg firm, he spent approximately 50 hours per week or more in the firm's offices. Attorney Polk was given his own office and telephone extension, and his extension was listed on the firm's telephone extension list. Because the firm was reluctant to use Attorney Polk's real name over its intercom system, for a while the firm used the pseudonym "James Pearson" for Attorney Polk when paging him over the firm's intercom system.

 Riley came to know Polk at the Eisenberg firm and represented Polk in an unsuccessful effort at reinstatement from suspension.

Attorney Riley did not have any role in the preparation or filing of Attorney Polk's reinstatement petition. Attorney Polk represented himself during most of the reinstatement proceeding. Prior to the evidentiary hearing scheduled by Judge Flynn, however, Attorney Polk spoke with Attorney Eisenberg about concerns he had with the upcoming hearing. Attorney Eisenberg then spoke with Attorney Riley and directed him to assist Attorney Polk with the reinstatement hearing. The initial understanding among the three lawyers was that Attorney Riley would act as "second chair" for the hearing, meaning that Attorney Polk would still be primarily responsible for presenting evidence, examining witnesses, and making argument.

OLR had opposed reinstatement

due to a number of concerns about Attorney Polk's character and fitness to practice law, including his receipt of a citation for loitering-illegal drug activity, his multiple citations and convictions for operating after revocation of his driver's license and for other traffic offenses, and his failure to pay multiple civil judgments. The OLR's response did not mention any concerns regarding Attorney Polk's employment history or his unauthorized practice of law during his administrative suspension, presumably because it was not aware of Attorney Polk's employment at the new Eisenberg firm.

Worse for Riley

In the course of an investigation in 2008, the OLR learned that Attorney Polk had been employed by the new Eisenberg firm in 2005-06 while Attorney Riley had also worked there. When the OLR asked Attorney Riley about that fact, he indicated that he had not known that. Attorney Riley claims that he then investigated whether Attorney Polk had been employed by the new Eisenberg firm. Although he asserts that this was the first time he learned of Attorney Polk's work at the law firm, he never advised the OLR, Judge Flynn, or this court at that time that Attorney Polk's testimony at the September 6, 2006 hearing had been false or misleading because of the omission of his employment at the new Eisenberg firm.

The attorney continued to deny knowledge at his own disciplinary hearing and persisted in a number of arguments on appeal

We conclude that the omitted information regarding Attorney Polk's employment with the new Eisenberg firm was material to the task this court gave to Judge Flynn and to this court's consideration of Attorney Polk's reinstatement petition.

We do not, however, base this determination on a belief that every subject was material under the catch-all provision in our June 23, 2006 order. We agree with Attorney Riley that the rules of professional conduct do not make an attorney a guarantor of the accuracy of each statement in a client's testimony, nor do we believe that the rules require an attorney to interrupt depositions or court hearings repeatedly if the attorney thinks there might be some trivial discrepancy between what a witness said under oath and what the attorney understood to be the truth. We also do not find this omitted information to be material only because Attorney Polk subsequently admitted years later that he had practiced law at the new Eisenberg firm. In other words, it is not necessary that Attorney Riley knew that Attorney Polk was practicing law (as opposed to simply working) at the new Eisenberg firm, in order for Attorney Riley to have violated former SCR 20:3.3(a)(4).

From the lead opinion

In our view, a public reprimand is an appropriate sanction for Attorney Riley's professional misconduct. We believe that a public sanction is necessary to impress upon Attorney Riley the wrongfulness of his conduct, as well as to deter both him and other attorneys from engaging in similar conduct in the future. Allowing false evidence to be presented to a tribunal when the attorney knows it is false is a serious ethical violation that undermines the truth-seeking function of the entire judicial system and contradicts the ideal of an attorney being an officer of the court as well as an advocate for a particular client.

The lead opinion concludes that the attorney failed to take reasonable remedial measures when confronted with the client's false omission of his law-related employment. He argued that Polk had not made enough money to pay  judgments against him.

No bad deed goes unpunished - Polk was the key witness against the attorney in proving that he had failed to correct Polk's own false testimony!

Justice Abrahamson has been on record in past cases with her concerns about self-regulation of the legal profession in Wisconsin

The lead opinion is overly lengthy, and gratuitously addresses too many issues that have not been fully briefed or carefully studied. The issues are difficult and of the utmost importance to attorneys and disciplinary proceedings. The issues need more consideration.

 This is a landmark case in attorney discipline, as Justice Prosser has pronounced. But its landmark status, from my perspective, is the length of time the instant case has lingered in this court. I think it wins the prize for taking longer to decide than any other OLR proceeding I can remember or find. It is a prime example of significant, unnecessary delays in completing a disciplinary matter. Delay appears to exist at every level of the disciplinary proceedings, but the final delay at this court in releasing the lead opinion is outrageous.

The attorney's conduct that is the subject of this proceeding dates back to 2006. The OLR complaint was filed on December 1, 2010. The referee held hearings in February 2012 and issued her report on April 18, 2012.

On October 23, 2012, this court held oral argument in the instant case. More than 10 months elapsed before staff circulated a draft per curiam opinion. Justice David T. Prosser circulated the first draft of his dissent to the court on July 31, 2015, almost three years after oral argument and almost two years after the per curiam was circulated. The first draft of my concurrence was circulated on September 14, 2015, almost two months after the dissent was circulated. The writings have been subject to discussion and revision, and this opinion is being released almost four years after oral argument, almost six years after the complaint was filed, and almost 10 years after the conduct at issue.

I favor the court's spending the time needed for each matter and giving utmost care to each matter. Opinions and orders in cases, rule matters, and disciplinary proceedings are important to the people directly involved in each case and to the public.

 I strongly support the court's longstanding practice of honoring a justice's hold and giving a justice time to study and write separately, but I disfavor the court's inconsistent treatment of requests to hold. Consistency in the court's practice of allowing, disallowing, and limiting holds is important for collegiality and fairness to the litigants and public...

To foster transparency and fairness, as well as to encourage promptness and uniformity in the court's decisions in discipline cases, I renew my request that the court require the Clerk of the Supreme Court to make available on the court's website information about the dates of the relevant steps in each disciplinary matter, from the filing of the complaint, to its passage through the component parts of the lawyer regulatory proceeding, assignment to a court commissioner, assignment for oral argument or on-brief consideration, and the court's ultimate decision. 

Justice Prosser

This is a landmark case in attorney discipline. It addresses the issue of an attorney's ethical responsibilities when the attorney's client - or a witness called by the attorney - provides false testimony that the attorney knows is false at the time of the testimony or learns is false sometime after the testimony...

...this notable case will be associated with an attorney who was caught in the middle of a mess he did not create, whereas the two attorneys who are responsible for the mess have been able to walk away with inadequate discipline or no discipline.

...the lead opinion is a little light in discussion about the serious tension between privileged information, confidentiality, and loyalty to a client, on the one hand, and an attorney's obligation to the court, on the other.

Finally, the lead opinion is almost 50 pages in length because the court finds it necessary to resolve several close questions about the respondent attorney, but it reads as though the respondent attorney should have resolved all these subtle questions the same way the lead opinion has resolved them...without much difficulty. We ought to ask: Has the court provided sufficient guidance for the Wisconsin Bar to avoid in the future the same pitfalls that the attorney faced in this case?

...To me the lead opinion raises sufficient questions about its impact on the law and its fairness to the respondent that I feel bound to respectfully dissent. It should be noted that the court has not been able to muster a majority of justices for the lead opinion. It should also be noted that the rule of lenity seems to be missing from the Rules of Professional Conduct for Attorneys.

The story of attorney Eisenberg, one of the two mentioned in the dissent, is recounted here by the Milwaukee Wisconsin Journal Sentinel

Wisconsin's Supreme Court finally had enough of Alan D. Eisenberg, the veteran Milwaukee lawyer who maintained a high profile both because of and despite his rude, abrasive and over-the-top style.

The court on Thursday revoked the flamboyant barrister's license to practice law, citing Eisenberg's long history of professional discipline, and his apparent inability "to conform his conduct to the standards expected of all members of the Wisconsin bar."

Eisenberg, 68, who invoked his age to avoid disbarment in a 2004 discipline case, could petition for reinstatement after five years, but that seemed unlikely Thursday.

"It's a death sentence," Eisenberg said of the ruling, "a disaster that reaches in to every aspect of my life."

He said he suffers from serious health problems and has been under extreme emotional, physical and financial distress.

I am in strong agreement with Justice Abrahamson's call for transparency in how long it takes to discipline attorneys. (Mike Frisch)

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Rule Number One

Rule Number One for any attorney who is the subject of a bar complaint: respond and participate in any and all proceedings.

This lesson is apparent in a recent Louisiana disciplinary matter in which a hearing committee recommends permanent disbarment of an attorney for a single instance of neglect, misrepresentation and failure to return an unearned fee exacerbated by total non-participation in the bar proceedings.

The underlying matter involved a filiation claim

Howard Austin died on April 29, 2015, and [client] Auzenne sought representation to establish filiation. On February 19, 2015, Auzenne signed a contractual agreement for legal representation by Respondent and provided Respondent with a money order (No. 103603), dated February 19, 2015, in the amount of $2,000. The fee agreement set forth a $175 hourly rate for attorney fees, as well as the requirement that Auzenne provide a $2,000 deposit. There is no indication that this advance deposit against fees to be earned was placed in Respondent's client trust account. Auzenne advised Respondent that time was of the essence, and Respondent told Auzenne that the petition would be filed within one week of receipt of DNA test results.

Auzenne submitted a sample for the needed DNA test, but the test had to be re-done. A second sample was submitted, and the DNA test results were in by March 10, 2015. Auzenne called and texted Respondent for four days before receiving a reply. When Respondent contacted Auzenne, she assured him that the petition would be filed no later than Monday, March 16, 2015; however, the petition was not filed.

Because time was of the essence, Auzenne hired attorney Arthur Boudreaux to do the work for which Respondent originally was hired. Auzenne called Respondent and advised Respondent that her services no longer were needed. Auzenne asked Respondent to provide him with an accounting and to return his unearned fee. Respondent told Auzenne that she had filed the petition for filiation, but had failed to submit the necessary filing fee.

In many if not most jurisdictions, a cooperating attorney with a remorseful attitude probably would not get suspended for like misconduct. (Mike Frisch)

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Long Ago In Arkansas

The Arkansas Committee on Professional Conduct has reprimanded an attorney who was retained to represent a husband and wife in a criminal matter but failed to appear for court proceedings.

The clients also failed to appear for trial (because the attorney did not advise them of the scheduled court date) and were later arrested and represented by court-appointed counsel.

The attorney received $1,000 to retain a handwriting expert but stiffed the expert and did not return the advance

The $1,000.00 delivered to Coe by the Kirkpatricks for his use in obtaining the handwriting expert was not used to pay Taylor nor refunded to the Kirkpatricks when Coe effectively terminated his representation of them. Model Rule 1.16(d) requires that upon termination of representation, an attorney shall take steps to the extent reasonably practicable to protect the client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advanced payment of fee that has not been earned.

He must also pay the expert.

Notably, the misconduct took place in 2003. (Mike Frisch)

July 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, July 17, 2016

A Matter Of Concern To Kansas

An attorney disciplined in Missouri was sanctioned by the Kansas Supreme Court for the same misconduct.

Among the violations were a series of loans to a client in a personal injury matter secured by the settlement proceeds.

The loans not only violated the business transactions with a client rule

 The interest rate for the loans was 180% for the first month, and 38.8% per annum, a rate the Panel finds excessive, burdensome, and possibly illegal. [Footnote: The hearing panel in the instant case concurs with the Missouri disciplinary hearing panel that in addition to the rule violations, the hearing panel also concludes that the interest rate charged by the respondent is excessive and burdensome. 

The attorney had sued the client after his services were terminated and violated his ethical obligations 

a. Filing the Odo v. [C.M.] lawsuit against [C.M.] and revealing information relating to the representation through attachment of exhibits containing client information;

b. Making a demand for payment of notes to KNP, although the notes had not yet matured;

c. Attending a debtor examination held by Dr. Febbo's counsel (although he did not attend as counsel in the case); and

d. Generally attempting to annoy, harass and intimidate [C.M.] in retaliation for [C.M.]'s termination of the attorney-client relationship and [C.M.]'s initiation of a bar complaint.

The attorney had denied the ethics violations in the Missouri proceeding, claiming that the loans came from an entity [KNP] in which he transferred his interest to his daughter.

The acts of KNP in loaning money to Respondent's client are the acts of Respondent himself since Respondent was the only officer, director and agent of the lender and controlled the checking account used to consummate the loans and personally signed each loan check. Respondent controlled each aspect of the transactions without the independent assistance of any other person. Respondent's daughter Kristen Nicole Odo had no knowledge of the loan transactions between KNP and [C.M.].

The Kansas hearing panel

[Footnote: While the hearing panel is unable to find by clear and convincing evidence that the respondent was motivated by dishonesty and/or selfishness, the hearing panel is troubled by the respondent's motivation. The respondent attempted to obtain the results of a drug test of a client, in an unrelated matter, to use against his client. The hearing panel cannot fathom a good motivation for making such an attempt. Additionally, the respondent attended a hearing in Febbo v. C.M., when he knew he had a conflict and had no legitimate reason for attending. The hearing panel is seriously troubled by the respondent's conduct.]

..It is important for the hearing panel to note that the clients in this case are Kansas residents and the personal injury cases arose as a result of an accident which occurred in Kansas. Had the respondent filed litigation on behalf of L.F. and C.M., he would have filed it in Kansas. Because the misconduct related to Kansas clients and in representation in a Kansas matter, this is not simply a reciprocal discipline case. The respondent harmed Kansas clients. The hearing panel must consider what discipline is appropriate to recommend, independent of the discipline imposed in Missouri.

The Kansas Court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the hearing before the panel, the office of the Disciplinary Administrator recommended that respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. Respondent recommended the hearing panel immediately suspend him and that he be reinstated to the practice of law in Kansas at the time the Missouri Supreme Court reinstates him to the practice of law in Missouri. The hearing panel recommended suspension for an indefinite period of time no less than 1 year. Further, the hearing panel recommended that prior to reinstatement, respondent must establish that he has made restitution to C.M. and L.F.; that he has fully cooperated with the Missouri Bar Client Security Fund Committee; that, in the event the Kansas Client Protection Fund Commission initiates an investigation and prosecution, he establish he fully cooperated with the Kansas Client Protection Fund Commission and repaid the commission or his clients as directed; and that he provided C.M. and L.F. with a sincere apology for the misconduct and harm it caused...

We hold that respondent is to be suspended from the practice of law in the state of Kansas for a period of 1 year effective as of the date of the filing of this opinion. Before reinstatement is allowed, respondent shall comply with Kansas Supreme Court Rule 218 (2015 Kan. Ct. R. Annot. 401) and Rule 219 (2015 Kan. Ct. R. Annot. 403), including a required appearance before a hearing panel for a reinstatement hearing.

Video of the oral argument is linked here. (Mike Frisch)

July 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 15, 2016

"Unmoved" Court Grants Interim Suspensions

The New York Appellate Division for the First Judicial Department has imposed an interim suspension based on the attorney's inadequate cooperation with the investigation

Respondent submitted his own affidavit, sworn May 26, 2016, opposing the Committee's motion. He claims that none of his clients lost escrow funds that he held for them. Additionally, he responds that his lack of cooperation with the Committee in meeting their requests was not willful, but rather, the result of personal issues and professional constraints. Principally, he asserts that in 2012, he was dealing with the death of both his sister and his mother, and that he subsequently had to undergo treatment with a psychiatrist, who in a letter dated May 23, 2016, reported respondent's diagnosis of Attention Deficit Hyperactive Disorder (ADHD). Respondent claimed that he was also unable to provide adequate documentation because his office cotenant denied him access to their shared premises in June 2015 and he was not able to return until he obtained a court order in January 2016.

Pursuant to 22 NYCRR § 603.4(e)(1)(i), this Court may order the immediate suspension of an attorney from the practice of law upon a finding that the attorney is guilty of professional misconduct which immediately threatens the public interest. This finding may be based upon "the attorney's...failure...to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation, hearing, or disciplinary proceeding."

In this case, there is ample evidence that the respondent has failed to cooperate with the Committee's requests. Respondent has not provided any explanation regarding his failure to complete the Excel spreadsheet and respondent has yet to provide any explanation of the shortfalls in his IOLA account after his receipt of the $225,000 deposit. Respondent's lack of cooperation is also evidenced by the fact that he failed to appear at three depositions, and his testimony was ultimately secured only by judicial subpoena. Additionally, respondent failed to answer the Committee's recent inquiry regarding his alleged conversion of $139,000 in escrowed client funds.

Notwithstanding respondent's protests, the evidence in this record weighs heavily in favor of interim suspension. The Committee has made numerous attempts since September 2013 to obtain information from respondent (long before he was locked out of his office), but he has repeatedly failed to comply. Respondent's noncompliance with Committee requests has [*3]threatened the public interest in the effectiveness of the attorney disciplinary system (See Matter of Reid, 137 AD3d 25 [1st Dept 2016] [interim suspension where attorney, who initially provided limited cooperation via bank records and appearing for a deposition, subsequently failed to answer two complaints and provide trust account information for the Committee's Excel spreadsheet]).

Additionally, this Court is unmoved by respondent's attempt at mitigation. His ADHD has not been shown to impair his abilities to comply with the Committee's requests, given the four trials he tried to verdict without assistance in 2014. Additionally, his claimed lack of access to his office is belied by his own admission that he has been granted access to his office by court order since January 2016.

The court also ordered interim suspension in an unrelated matter.

...Respondent failed to respond to his requests that he verify that the $175,000 he was holding in escrow remained intact and that he had commenced suit against the firm. After repeated, unsuccessful attempts to contact respondent and get his money back, the client filed complaints with the Committee and the New York County District Attorney's Office.

On or about December 18, 2015, respondent was indicted in New York County for grand larceny in the second degree in connection with his failure to remit two of his client's settlement funds, and grand larceny in the third degree for allegedly stealing property from another individual.

On December 22, 2015, respondent was arrested in Miami, Florida; he waived extradition proceedings and was transported back to New York where, on January 6, 2016, he was arraigned on the indictment. Respondent entered a plea of not guilty and the court set bail at $500,000 cash or a $250,000 bond. Respondent has not posted bail and remains incarcerated awaiting trial.

In December 2015, the Committee received three additional complaints against respondent containing similar allegations to those discussed above. These complaints have been sent to respondent's criminal attorney on respondent's behalf for answers.

(Mike Frisch)

July 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 14, 2016

Sex With Client And Lying About It Gets A Reprimand In Wisconsin

A public reprimand has been imposed by the Wisconsin Supreme Court for a sexual relationship between an attorney and his client in a divorce matter

Beginning in September 2010, Attorney Atta's professional relationship with [client] BA-B became increasingly personal, and the two had sexual relations. A consensual sexual relationship had not existed between them prior to the time their attorney-client relationship began. Between April 2012 and February 2013, Attorney Atta and BA-B had numerous telephone conversations, with a majority of the calls being lengthy and after midnight. In one telephone conversation, Attorney Atta told BA-B he had strong feelings for her, discussed one day being married to her, and discussed intimate topics. Attorney Atta went to BA-B's house for dinners. Attorney Atta, BA-B, and her young daughter would also go out for lunch or dinner together at local restaurants.

Attorney Atta's personal communications, interactions, and personal relationship with his client while he continued to represent her in her divorce action created a conflict of interest on Attorney Atta's part. In March 2013, near the end of the divorce proceeding, [husband] AAN accused Attorney Atta of having a romantic relationship with BA-B. On March 11, 2013, AAN's attorney emailed Attorney Atta expressing concern that his client was claiming Attorney Atta had some sort of relationship with AB-B. Attorney Atta responded to the email by denying that such a relationship existed and claimed that AAN and his new wife were spreading false rumors.

On March 12, 2013, the circuit court held a final, stipulated hearing in the divorce case. Prior to the hearing, AAN's attorney met with Attorney Atta and the judge in chambers to discuss the concerns raised by AAN. The court asked the parties to state their concerns on the record. AAN's attorney expressed concern that there was a romantic relationship between Attorney Atta and BA-B. Attorney Atta responded by saying that the allegations were "entirely without merit" and he accused AAN and his new wife of "going around the community trying to badmouth me, badmouthing my client, alleging that we are sleeping together, alleging that my client is sleeping with other men, and so forth." At the hearing, the circuit court accepted the terms of the stipulation on all issues, granted the divorce, and ordered Attorney Atta to submit proposed findings of fact, conclusions of law, and a judgment to the court within 30 days.

Things deteriorated from there

Attorney Atta and BA-B continued to speak after the divorce hearing, but by May 2013, their relationship had deteriorated. By the end of May 2013, Attorney Atta had not yet filed the proposed findings of fact, conclusions of law, and judgment with the court. On May 24, 2013, BA-B sent Attorney Atta an email expressing concern that the final divorce papers had not yet been prepared. On May 28, BA-B wrote to the court asking for assistance in having the paperwork completed. On May 31, 2013, AAN's attorney emailed Attorney Atta asking him to advise of the status of the matter. Attorney Atta did not respond for over two weeks.

On June 16, 2013, Attorney Atta responded to AAN's attorney's email, saying he would drop off the proposed documents the next day. On June 18, 2013, Attorney Atta forwarded his proposed findings of fact, conclusions of law, and judgment, apologizing for the delay. Attorney Atta emailed BA-B the proposed documents on July 1, explaining the changes made and advising her on outstanding issues, including past due child support and credit card debt. Without BA-B's consent, Attorney Atta copied his email, including the findings of fact, conclusions of law, and judgment, to his brother, Ihsan Atta. BA-B had met with and been in contact with Attorney Atta's brother. On July 1, 2013, after incorporating subsequent language changes proposed by both attorneys, Attorney Atta sent the final proposed documents to the court. The court signed the documents and submitted them for filing on July 16, 2013.

On August 8, 2013, BA-B filed a telephonic grievance against Attorney Atta, alleging that he intentionally delayed filing the divorce documents after she terminated their relationship. BA-B was also upset that Attorney Atta had copied his brother with the divorce papers, and she asserted that Attorney Atta had taken advantage of her by engaging in a sexual relationship with her while she was in an emotional stage in her life.

Notably (given the lenient sanction) the attorney also falsely denied the allegations of a sexual relationship in response to the bar complaint and until entering a no contest plea to the ethics charges.

A dissent from Justice Ann Walsh Bradley

Attorney Othman M. Atta entered into a stipulation which provides he is not contesting the eight counts of misconduct. The misconduct centers on Attorney Atta's consensual sexual involvement with a client that arose during the course of the representation in divorce and immigration matters. The underpinnings of this prohibition are rooted in concerns about conflicts of interest and breach of fiduciary rules. Such concerns address the essence of the professional relationship.

Truth telling also lies at the heart of the profession——especially truth telling to a tribunal. Attorney Atta's misconduct included making false statements to a tribunal by advising the circuit court that the allegations of a romantic relationship with his client were "entirely without merit" in violation of SCR 20:3.3(a)(1). Additionally his misconduct includes making false statements to the Office of Lawyer Regulation in violation of SCR 22.03(6), and to opposing counsel in violation of SCR 20:4.1(a)(1).

I have written in the past, and I do again today, because the court appears to be too lenient for violations of this nature that undermine the trust relationship and truthfulness required of an attorney. See In re Disciplinary Proceedings Against Ruppelt, 2014 WI 53, ¶32, 354 Wis. 2d 738, 850 N.W.2d 1 (Ann Walsh Bradley, J., dissenting).

Because I conclude that the violations warrant more than a public reprimand, I respectfully dissent.

Justice Abrahamson joined the dissent. (Mike Frisch)

July 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

5 1/2 Year D.C. Bar Counsel "Investigation" Leads to Probation That Need Not Be Disclosed To Clients

The District of Columbia Court of Appeals has ordered a stayed suspension of 30 days with probationary conditions of an attorney who had breached the duty of confidentiality and engaged in related violations.

The attorney's probationary status need not be disclosed to clients

The Board concluded that respondent should not be required to report his probation to current or new clients. See D.C. Bar R. XI, § 3 (a)(7). The Board did, however, indicate that if Disciplinary Counsel determines in accordance with Board Rule 18.3 that respondent has violated any term or condition of his probation, Disciplinary Counsel may file with the court a verified motion to show cause why the matter should not be referred to a Hearing Committee for an evidentiary hearing.

The misconduct related to a motion to withdraw as counsel in civil litigation.

From the hearing committee report

Respondent’s Motion to Withdraw as Counsel and the attached letter made allegations about [the client] Ms. Butler based on information obtained during the representation, and revealed aspects of her settlement strategy, among other disclosures. Confidential Appendix, ¶ 7. In his Motion for Reconsideration, Respondent made additional accusations that implicitly reflected communications between them, and described at least one communication between them. See id., ¶ 14. Respondent also attached to his Motion five e-mails from Ms. Butler to him.

At the disciplinary hearing

Throughout the hearing, Bar Counsel amply evinced its exasperation with Respondent. And at times, the Hearing Committee found it necessary to require Respondent to move forward with his examination, testimony and arguments more pertinently and efficiently and with less digression and repetition. However, the Hearing Committee, unlike Bar Counsel, does not find the pre-hearing motions practice, the three-hour hearing on motions and other matters, or Respondent’s several instances of disorganization and lack of focus to be particularly unusual in litigation (let alone abusive) or to have caused any undue delay in or extension of the hearing itself or the overall disposition of this matter. (There is no suggestion that Respondent was in any way responsible for the extraordinary – and unexplained – five-and-one-half-year hiatus between the initial letter of inquiry and the filing of the Specification of Charges, after which the matter then moved expeditiously to hearing within five-and-one-half months.)

The hearing committee criticized Bar Counsel's use of precedent

Bar Counsel seeks a 60-day suspension and a requirement that Respondent then show his fitness to practice law before being re-admitted to the Bar. Bar Counsel has not adduced any apposite authority supporting this recommendation and such a sanction would be inconsistent with sanctions imposed in similar situations.

Although Bar Counsel relies heavily upon Gonzalez in its analysis of the Rule 1.6(a)(1) allegation, Bar Counsel Brief at 12-14, Bar Counsel ignores Gonzalez in its sanction argument. As discussed supra at 10-12, the facts in Gonzalez and in this matter are remarkably similar – indeed, nearly identical. With respect to the appropriate sanction, the Board determined that Gonzalez “‘had made a mistake he is not likely to make again. . . .’” Gonzalez, 773 A.2d at 1028. The Board – and, indeed, Bar Counsel also – recommended an informal admonition, and the Court of Appeals agreed.

The hearing committee did not find sufficient evidence that the attorney was presently unfit to practice

The Hearing Committee has explained above its reasons for having no serious concerns about Respondent’s fitness to practice law competently and ethically.  Bar Counsel has not come close to meeting the serious doubt standard by clear and convincing evidence. Imposition of a fitness requirement would result in a backdoor suspension of uncertain and potentially unconscionable length that would be grossly inconsistent with the sanctions imposed in proceedings involving similar circumstances.

Yesterday I praised the efficiency of the BPR in promptly moving a disbarment recommendation to the court. Today, this case shows more evidence of Bar Counsel's gross neglect of its duty to protect the public. This case took seven years total to resolve a single matter with all the fault for the delay attributable to Bar Counsel.

There is more than ample evidence that multi-year investigation of matters is the rule in D.C. rather than the exception. 

Maybe they changed the name to Disciplinary Counsel to blame those "other" people for taking 5 1/2 years to "investigate" a matter that required little more than a review of court filings. (Mike Frisch)

July 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)