Friday, December 15, 2017
The Illinois Administrator has filed a complaint alleging that an attorney engaged in instances of gender-based harassment of opposing counsel after court proceedings
Beginning in 2014, and at all further times alleged in this count, Respondent represented Judith Wyman ("Wyman") and Kitty Knapp ("Knapp") in separate employment discrimination cases related to their employment termination from the Olympic Star Restaurant ("Olympic Star"), operated by Evgeros, Inc. ("Evgeros"). Respondent filed the following cases on behalf of each client in the United States District Court for the Northern District of Illinois: Judith Wyman v. Evgeros, Inc. d/b/a Olympic Star Restaurant ("Wyman matter"), case number 1:15-CV-02758, which was assigned to the Hon. Matthew F. Kennelly ("Judge Kennelly"); and Kitty Knapp v. Evgeros Inc., d/b/a Olympic Star Restaurant ("Knapp matter"), case number 1:15-CV-00754, which was assigned to the Hon. Gary Feinerman ("Judge Feinerman"). Attorney Courtney Lindbert ("Lindbert"), from the law firm of Andreou and Casson, Ltd. ("Andreou and Casson"), represented Evgeros in both matters...
Following [a] hearing, Respondent and [opposing counsel] Lindbert exited Judge Kennelly’s courtroom, and had a conversation in a hallway outside the courtroom regarding the Wyman case and pleadings which Lindbert intended to file. During that conversation, outside the courtroom, Lindbert informed Respondent of her intention to file pleadings related to sanctions under Federal Rule of Civil Procedure 11. When Lindbert asked Respondent if Respondent heard her, Respondent stated "I did, Cunt-ney." Lindbert responded "Excuse me," to which Respondent again stated "I did, Cunt-ney."
On December 3, 2016, while both the Wyman and Knapp cases were pending, Respondent sent an email from his law firm email address to Lindbert at her law firm email address at approximately 10:46 p.m. regarding the parties’ ongoing litigation. In his email, Respondent began his correspondence by addressing Lindbert as "Cuntney Lindbitch."
On December 5, 2016, attorney Luke Casson ("Casson"), a partner with Andreou and Casson, informed the Hon. Ruben Castillo, Chief Judge of the U.S. District Court of the Northern District of Illinois, of Respondent’s conduct towards Lindbert, and requested that the Court taken action against Respondent.
On December 13, 2016, the Executive Committee of the U.S. District Court for the Northern District of Illinois issued a rule to show cause by way of a citation, ordering Respondent to show cause why he should not be disciplined for his conduct towards Lindbert, as reported by both Lindbert and Casson.
On December 13, 2016, the Executive Committee of the U.S. District Court for the Northern District of Illinois issued a rule to show cause by way of a citation, ordering Respondent to show cause why he should not be disciplined for his conduct towards Lindbert, as reported by both Lindbert and Casson.
On January 18, 2017, following Respondent’s citation response and the Executive Committee’s review of the allegations and other information, the Executive Committee entered an order finding that Respondent engaged in the misconduct described in paragraphs 4 and 5. In imposing discipline on Respondent for his misconduct, the Executive Committee struck Respondent from the Trial Bar of the Northern District of Illinois and suspended him from the General Bar of the Northern District of Illinois for 12 months. The Order also required that, as part of any reinstatement petition, Respondent must demonstrate having sought professional assistance with both his compliance with the Rules of Professional Conduct as well as his anger management.
After another hearing with another counsel
Beginning in 2014, and at all further times alleged in this count, Respondent represented Sherri Klocek ("Klocek") in a domestic relations matter involving the dissolution of her marriage with her ex-husband, David Klocek ("David"). The case was docketed in the Circuit Court of Will County as David Klocek v. Sherri Klocek ("Klocek matter"), case number 14-D-02108, and assigned to the Hon. Victoria K. Kennison ("Judge Kennison"). Attorney Antoinette Granholm, from the law firm of O’Dekirk, Allred and Associates, LLC, represented David...
Following [a] hearing, Respondent and [opposing counsel] Granholm exited Judge Kennison’s courtroom, and had a conversation in the hallway regarding the Klocek matter and ongoing discovery sought by Granholm. During that same conversation, in response to Granholm’s requests for discovery, Respondent asked Granholm why she had to "always be such a bitch."
Shortly after that conversation, Granholm reentered Judge Kennison’s courtroom. As Granholm was again leaving the courtroom, Karen Humphries ("Humphries"), Respondent’s paralegal, called Granholm a "bitch" as Granholm walked past Humphries on her way out of the courtroom.
Following being referred to as a "bitch" by both Respondent and Humphries, Granholm returned to Judge Kennison’s courtroom to request that she and Respondent reappear to address the behavior and language of Respondent and Humphries. Judge Kennison granted Granholm’s request, and Granholm informed Judge Kennison that both Respondent and Humphries referred to Granholm as a "bitch" in speaking to Granholm just minutes before.
Judge Kennison admonished Respondent about his language, and instructed Respondent to direct Humphries’ to avoid engaging in the same behavior and language. Respondent acknowledged that he called Granholm a "bitch", and also acknowledged Humphries’ language towards Granholm, but responded to Judge Kennison that his and Humphries’ actions were the result of provocation by Granholm.
JD Journal reported on the federal court action. (Mike Frisch)
An attorney who had failed to respond to bar complaints surrendered his license in a proceeding before the Law Society of Upper Canada.
The background facts are straightforward. During the summer and fall of 2016, the Law Society received four separate complaints regarding possible professional misconduct by Mr. Richey, including that, among other things, he may have mishandled or misappropriated monies from his clients. Three of the complaints were from clients. The fourth was a judicial complaint.
Since July 2016, the Law Society has asked Mr. Richey multiple times, both through phone calls and in writing, about the complaints. Mr. Richey has not provided a complete response, or any response, as required.
There were complications
An initial hearing in this matter was set for May 16, 2017. On that date, Mr. Richey was not in attendance. The previous day he had driven to Niagara Falls and contemplated suicide, and on the morning of the hearing he had attended at a hospital for medical care. Mr. Richey did advise Mr. Emblem that he would admit that the facts as set out in the Agreed Statement of Facts (“ASF”) which he had already signed amounted to professional misconduct, and that a finding of professional misconduct could be made. We agreed, and found professional misconduct based on the ASF. We also agreed that, particularly as Mr. Richey wanted to be present at the hearing to give evidence in support of his request for permission to surrender his licence, the penalty phase of the hearing should be adjourned.
The hearing resumed on October 5, 2017. In the interim, the Law Society retained, and obtained reports from, two medical experts (Dr. Wright and Dr. Chatterjee) on the question of Mr. Richey’s ability to proceed with the hearing. Among other things, the experts advised that: i) Mr. Richey met criteria for a mental health disorder that caused him marked and overwhelming distress, in particular around the issue of the hearing, and that he had been psychologically unable to face the investigations; ii) that in addition to his adjustment disorder, Mr. Richey appeared to be experiencing some cognitive difficulties; and iii) that there was no evidence that Mr. Richey’s suicidality was feigned to avoid the Law Society proceedings or that he was malingering with respect to his cognitive impairment or fabricating symptoms of his mental disorder, including the associated symptom of suicidality.
When the hearing resumed on October 5, Mr. Richey was not in attendance. Mr. Emblem advised that on the morning of the hearing, Mr. Richey had again driven to Niagara Falls and was contemplating suicide, but that he was receiving assistance. The hearing was adjourned once more. Ultimately, it was agreed that the hearing would proceed by way of written submissions and a joint position of the parties as to both penalty and costs.
The attorney had a prior record of non-cooperation.
we want to thank both counsel for their assistance, their co-operation, their compassion and their empathy throughout the course of a uniquely difficult matter.
The Maryland Court of Appeals has reprimanded an attorney
A reprimand is the appropriate sanction when an attorney appointed as the personal representative of an estate impulsively sold for $500 a tractor worth $10,000 stored by one of the beneficiaries of the estate on property owned by the estate without first ascertaining the ownership or approximate value of the tractor and, even though promptly informed of the tractor’s ownership and value, failed to rectify his error because of the attorney’s antipathy to the tractor’s owner. MLRPC 1.1, 1.3, 8.4(a) & (d).
No one who has practiced law for any appreciable time can claim to have never made a mistake in that practice. A mistake in the practice of law is not necessarily professional misconduct. However, once aware of a mistake that harms another and given the opportunity to mitigate it, a lawyer who decides to do nothing may be guilty of misconduct.
Respondent Benjamin Woolery was appointed as personal representative for an estate that had a single asset – real property that had served as the decedent’s home. There were five heirs – adult children of the decedent – with different ideas as to how to dispose of that property. In handling this difficult estate, Mr. Woolery made a mistake. In preparing the property for sale, he came upon a tractor that had been stored there by one of the adult children. Without determining the tractor’s ownership or value, he impulsively sold it to an individual who happened to be present for what turned out to be a small fraction of the tractor’s actual value.
Shortly thereafter, Mr. Woolery became aware of his mistake. Mr. Woolery was promptly informed of the ownership and value of the tractor. Given the opportunity to remedy the situation, Mr. Woolery chose not to do so, apparently out of personal animus toward its owner. We hold that the choice that Mr. Woolery made was misconduct that merits a reprimand.
This was apparently Mr. Woolery’s first offense in the nearly 30 years he has now practiced law. While hostility toward Thomas Chambers may have motivated some of Mr. Woolery’s conduct, the hearing judge found that Mr. Woolery did not otherwise act with a selfish or pecuniary motive. Moreover, as the hearing judge found, aside from his improper handling of the tractor and backhoe, Mr. Woolery reasonably performed his duties for the estate, despite its difficulties. Given all of this, in light of the hearing judge’s findings as to Mr. Woolery’s reputation and character, we have no reason to believe that his misconduct in this case is indicative of a pattern of past misconduct or predictive of future violations. Accordingly, we reprimand Mr. Woolery.
The Wisconsin Supreme Court has ordered a one-year suspension of an attorney who misrepresented the terms of a plea agreement to his client and then told an elaborate series of lies to the client and a tribunal
The referee's May 8, 2017 report and recommendation found that the OLR met its burden of proof with respect to all nine counts of misconduct set forth above. In discussing the appropriate level of discipline, the referee noted a number of aggravating factors. The referee said Attorney Petersen did not engage in a single lie to his client but instead told multiple lies and fabricated documents to conceal those lies. The referee also noted the nature of the misconduct and Attorney Petersen's attempt to shift the blame to R.F., his client's father. In addition, the referee pointed out that K.F. was incarcerated and had placed his trust in Attorney Petersen, who repeatedly told him that the felony charges would be amended. The referee also pointed out that Attorney Petersen was criminally charged and convicted of the misdemeanor offense of contempt of court.
With respect to mitigating factors, the referee pointed out that Attorney Petersen has no prior disciplinary record. The referee noted that at the sentencing hearing in the
misdemeanor case, Attorney Petersen's counsel indicated that Attorney Petersen had a difficult childhood as the child of alcoholic parents, with a resulting psychological or psychiatric factor at play. While Attorney Petersen sought psychological treatment after the police became involved in the matter, the referee noted there is no proof in the disciplinary case that a medical condition was causal of the misconduct.
The referee said that a final mitigating factor to be considered is the imposition of other sanctions or penalties. Attorney Petersen was sentenced to one year of probation
conditioned on 30 days in jail with Huber privileges, with 25 of those days stayed. Attorney Petersen was also ordered to refund the $5,000 fee to R.F., and Attorney Petersen was required to provide a copy of the criminal complaint to every client he dealt with in the next year, along with a letter stating:
I am a crook. I am a cheat. I am a thief. I am a liar. I was convicted of a crime on November 9th, 2015. My conviction resulted from my intentional choice to sell my own clients down the river and then trying to cover it up. You may not hire me or have me legally represent you in any fashion until you read the Criminal Complaint and Judgment of Conviction in my Outagamie County Wisconsin Case no. 15-CM878. This disclosure is required as one of the conditions of my probation.
The court adopted the proposed sanction.
Justice Ann Walsh Bradley dissented
Attorney Petersen's misconduct was egregious. He repeatedly lied to his client about the terms of the State's plea offer. He told his client that certain charges would be amended when Attorney Petersen knew this was untrue. He then falsified an email purportedly written by an Assistant District Attorney in furtherance of the lies and falsely reported that the judge agreed with the amended charges.
It gets worse. Attorney Petersen apparently forged a judge's signature on a fabricated court order, lied to the court and to the police, all the while continuing the lies to his client.
Given the nature and extent of Attorney Petersen's misconduct, I conclude that the one-year suspension imposed by the per curiam opinion is too light.
Justice Abrahamson joined the dissent. (Mike Frisch)
Thursday, December 14, 2017
The Louisiana Supreme Court has admitted an applicant notwithstanding a criminal record and concerns about the disclosure of those incidents in the law school admission process.
Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. The commissioner noted that petitioner’s criminal offenses were committed from 2005 to 2008, when he was a teenager. No similar occurrences appear in his history since that time. Further, regarding petitioner’s failure to disclose his criminal history on his law school application in response to a question seeking disclosure of offenses resolved through deferred adjudication, the commissioner found that petitioner’s explanation for the omission was credible, resulting from his lack of understanding of the law governing dismissal of his charges.
The Committee filed an objection to the commissioner’s recommendation, and oral argument was conducted before this court pursuant to Supreme Court Rule XVII, § 9(D)(11).
Considering the commissioner’s recommendation and the entire record of this proceeding, we conclude petitioner is eligible to be admitted to the practice of law in Louisiana.
No conditions are attached.
Good result. (Mike Frisch)
The Nevada Supreme Court imposed slightly lesser discipline than proposed
The disciplinary proceeding grew out of three separate grievances. In the first grievance, J.K., a struggling alcoholic, became acquainted with and married a woman who was the daughter of a real estate agent in Kirk-Hughes' real estate firm. J.K.'s wife exerted control over J.K.'s assets and hired Kirk-Hughes to assist her. During the marriage, J.K. gave Kirk-Hughes $400,400 to be held in trust for future real estate purchases. Kirk-Hughes then aided J.K.'s wife in deceiving J.K. to sign a power of attorney giving the wife control over his money, the money held in trust by Kirk-Hughes, and a half-million dollar tax refund J.K. had no knowledge of. Kirk-Hughes also used J.K.'s money for her own benefit, including to improve a real estate project she was part owner of, without written permission. During the investigation of J.K.'s grievance, KirkHughes provided inaccurate accountings of J.K.'s money multiple times.
In the second grievance, Kirk-Hughes persuaded her client C.W. to leave approximately $121,000 in trust with her while he looked for a home to purchase. Kirk-Hughes made numerous unauthorized transfers of that money and, when C.W. demanded his money back, Kirk-Hughes stated he owed more than $20,000 in attorney fees, despite not having sent C.W. any bills. Kirk-Hughes denied any mismanagement of C.W.'s funds.
In the final grievance, DCP Services, LLC, alleged that KirkHughes failed to timely release funds to pay four medical liens DCP held against Kirk-Hughes' clients. In responding to the State Bar's investigation, Kirk-Hughes misstated how long the funds to resolve the liens had been in her trust account. Also, the State Bar discovered that Kirk-Hughes had an additional trust account that she had not reported as required.
Sanction was less than proposed
In this case, the most serious instance of misconduct was KirkHughes' trust account mismanagement and using client and third-party funds for her own benefit. By knowingly misappropriating and misusing the funds entrusted to her, Kirk-Hughes violated duties owed to those who trusted her with their money, which resulted in serious injury, especially for J.K. Cf. id., Standard 4.12. Kirk-Hughes also has a lengthy disciplinary history comprising seven prior disciplinary sanctions, including a ninety-day suspension, and she refuses to acknowledge any misconduct in regard to her actions. When considering this, along with the six other aggravating factors and one mitigating factor, we agree that a suspension is warranted. See id. We do not agree, however, with the panel's recommended period of suspension as it is not consistent with prior discipline imposed in cases involving similar misconduct. See id., Standard 1.3 (promoting "consistency in the imposition of disciplinary sanctions for the same or similar offenses"). Rather, we conclude that a four-year suspension is sufficient to protect the public and the legal profession.
The case is Discipline of Geraldine Kirk-Hughes. (Mike Frisch)
The Pennsylvania Supreme Court imposed a year and a day suspension for an attorney's misconduct in two matters.
Count One could be a good PR exam question (thinking along these lines as my students are being tested today)
The client in one matter was in a automobile accident and was hospitalized in a coma.
Respondent's agent came to the hospital and induced the client's wife to retain him and to give the him power of attorney over the client's assets.
The agent advanced the client's wife a thousand dollars.
Over the course of the representation, the client received nearly $16,000 in payment from the attorney.
The case settled for $333,333.34 (a figure that obviously was intended to be easily divisible by 3) but the attorney took a 40% contingent fee. The client revoked the POA shortly after the settlement.
The client tried to get the attorney to explain the fee and filed a bar complaint when an answer was not forthcoming on the reason for the percentage of the fee.
A second matter involved the attorney's mishandling of a slip-and-fall of a pregnant woman, whose contentions were deemed credible as opposed to those of the attorney.
The case is Office of Disciplinary Counsel v. Blake Berenbaum and can be found at this link. (Mike Frisch)
The Ohio Supreme Court web page links to this story in the Sandusky Register reported by Brandon Addeo
Sandusky attorney K. Ronald Bailey turned himself over to deputies Monday to begin serving a 30-day jail sentence.
Bailey, of the Bailey Legal Group on Market Street, recently had an appellate judge rule against him after he was sentenced for contempt of court. The charge was the result of his actions during a November 2016 trial for Richard Mick, a Sandusky pastor accused of sexually abusing children.
“You may step back,” Binette said to Bailey, according to previous Register reporting.
“I know I may but I won’t,” Bailey responded.
Bailey soon after said he was “not participating” in the trial, and Binette later held a hearing during which he held Bailey in contempt of court for his actions.
Bailey’s appeal argued that the word “may” was permissive, and not a direct command.
The appeal also protested several aspects of trial proceedings, including the court’s rejection of a motion which the defense said would have allowed them to appoint an expert witness after the expert they previously appointed died.
Bailey will have to stay in jail through Jan. 9, and also have to pay a $250 fine plus court costs.
His son, Ken, also an attorney at the Bailey Legal Group, lamented the situation.
“It saddens my heart to see two brothers in the Lord sow discord between one another,” Ken Bailey said, referring to his father and Binette.
Binette said conduct like Bailey’s from an attorney sets a bad precedent. If an attorney does not participate, “trials wouldn’t happen,” he said. “If a court makes a decision and the attorney doesn’t like it, what they’re supposed to do is proceed on.”
Update on the story here.
It appears Sandusky attorney K. Ronald Bailey will have to complete his jail sentence.
On Wednesday, the state’s Supreme Court denied Bailey’s motion to have his 30-day jail sentence stayed, according to a Supreme Court ruling. Bailey’s attorney, Ken, who is his son, filed the motion on Monday alongside a notice of appeal to the Supreme Court.
Chief Justice Maureen O’Connor and justices Terrence O’Donnell, Judith L. French and R. Patrick DeWine agreed to deny the motion. Justices Patrick F. Fischer and Sharon L. Kennedy dissented, and Justice William M. O’Neill did not participate.
Bailey has been locked up in the Erie County jail since Monday, according to jail records. His sentence is slated to go through Jan. 9, and he must also pay a $250 fine.
The District of Columbia Court of Appeals accepted negotiated discipline in a case that took a little over a year from soup to nuts.
The result puts into place supervision that provides a measure of assurance that the attorney will either practice ethically or face suspension.
Absent the procedure, a case like this one can take five years or more to resolve.
The violations stem from respondent Kevin J. McNeely’s professional misconduct arising from acts or omissions during the course of his representation of two joint clients in obtaining patent protection. In brief, the clients retained respondent to file utility, international, and design patent applications. After respondent filed the utility and international patent applications and the clients paid respondent the associated fees and costs, respondent deposited the funds in an operating account that held other funds but did not pay the filing fee for either patent. After the clients were unable to make contact with respondent, they retained new counsel and subsequently made contact with respondent, who admitted his failures and worked with successor counsel to restore the utility patent application.
Respondent acknowledged he (1) failed to provide competent representation and serve his client with skill and care; (2) failed to zealously represent his clients; (3) failed to communicate with his clients; and (4) commingled client funds, thereby violating Rules 1.1 (a) & (b), 1.3 (a), 1.4 (a) and 1.15 (a) of the District of Columbia Rules of Professional Conduct. In mitigation, the Committee considered the fact that respondent knowingly and voluntarily acknowledged the facts and misconduct, demonstrated remorse, established entitlement to a Kersey mitigation defense, and does not have a prior history of discipline. As a result, Disciplinary Counsel and respondent negotiated the imposition of discipline in the form of a thirty-day suspension, stayed, and three years of probation during which respondent must (1) not commit any other violation of the D.C. Rules of Professional Conduct or the disciplinary rules of any other jurisdiction (excluding any reciprocal discipline imposed for these violations); (2) remain in individual therapy with his treating psychologist; (3) attend Alcoholics Anonymous (AA) at least two times a week and submit proof of attendance to his psychologist; (4) continue his use of psychotropic medication as prescribed by his psychiatrist and meet with his psychiatrist every three months; (5) execute and maintain the appropriate waivers or consent forms to permit the psychologist and psychiatrist to contact the D.C. Bar Lawyer Assistance Program (LAP) if he ceases treatment or fails to attend AA; and (6) authorize LAP to report to Disciplinary Counsel if he stops treatment with his psychologist or psychiatrist, fails to attend AA, or revokes his consent to prevent LAP from reporting to Disciplinary Counsel. Additionally, respondent shall advise, in writing, his employer about the conditions of his probation and copy Disciplinary Counsel on the correspondence. If respondent’s probation is revoked and he is suspended from the practice of law, he must file with this court an affidavit pursuant to D.C. Bar R. XI, § 14 (g) in order for his suspension to be deemed effective for purposes for reinstatement.
The court division consisted of Associate Judges Glickman and McLeese and Senior Judge Steadman. (Mike Frisch)
In the District of Columbia, intentional or reckless misappropriation leads to disbarment as night follows day.
The Court of Appeals imposed that sanction
In this case, an Ad Hoc Hearing Committee found by clear and convincing evidence that respondent Phoebe Leslie Deak engaged in misappropriation of funds while representing a client in Virginia. Specifically, the committee found that Ms. Deak obtained funds from her client to secure the services of an expert witness but instead deposited the funds into her overdrawn operating account, with the result that the check given to the expert as payment for services was rejected due to insufficient funds. Further, the Committee found that Ms. Deak paid for personal expenses with these entrusted funds. The Committee determined that Ms. Deak had violated Rules 1.15 (a)(1) and 1.15 (b)(5) of the Virginia Rules of Professional Conduct—applicable pursuant to the choice of law provision in Rule 8.5 (b) of the District of Columbia Rules of Professional Conduct—and that her conduct at a minimum amounted to reckless behavior. In the absence of any mitigating evidence, the Hearing Committee recommended that Ms. Deak be disbarred.
The court imposed the same sanction in an unrelated matter for the following misconduct
In the first matter, the Board accepted the Committee’s findings that Ms. Mardis (1) conspired with others in a fraudulent scheme to unlawfully obtain the title to a property that was subject to a tax sale and thereafter took possession of the owner’s personal property; (2) when contacted by the owner, provided a false name, demanded payment as a condition for returning the property, and transferred some of the property to an auction house for sale; and (3) made misrepresentations to her law firm in an attempt to hide her actions and falsely testified under oath after she was sued by the owner of the property. In the second matter, the Board accepted the undisputed findings of the Committee that Ms. Mardis failed to inform a client of her fee or the scope of her representation and then commingled the advance fee without her client’s consent. In determining the appropriate sanction, the Board accepted the Committee’s rejection of Ms. Mardis’s proffer of mitigating evidence pursuant to In re Kersey, 520 A.2d 321 (D.C. 1987).
In re Kersey involves mitigation of sanction for recovering alcoholics who prove that the condition caused the violations. (Mike Frisch)
A Hearing Panel of the Law Society of British Columbia enforced a rule for the first time.
The Respondent is a Vancouver-based immigration lawyer with nearly 30 years of practice experience. On October 12, 2012, he acted on the instruction of his client AA to refund the balance of his $15,000 cash retainer to an intermediary by issuing him a $10,318.60 bank draft (the “Bank Draft”).
On January 5, 2017, after investigating the Bank Draft refund at some length, the Law Society cited the Respondent for contravening the cash refund requirement of Law Society Rule 3-51.1(3.2) then in force [now Rule 3-59(5)] (the “Citation
A lawyer who accepts an aggregate amount in cash of $7,500 or more under subrule (3.1), must make any refund greater than $1,000 out of such money in cash.
The client sought to emigrate from Iran to Canada.
The attorney's associate travelled to Iran in connection with the matter. The client discharged the attorney.
The Respondent was aware of the cash refund requirement under Rule 3-51.1(3.2) when he issued the Bank Draft. But he did not seek guidance from the Law Society regarding the application of Rule 3-51.1(3.2) prior to refunding AA’s retainer.
The matter came to light
In filing his firm’s 2012 trust report with the Law Society, the Respondent answered “yes” to the question that asked, “Did the practice pay any refunds related to cash receipts, in excess of $1,000?” He answered “no” to the question that asked, “Were all such refunds done by way of a cash payment (not by trust cheque) as required by Rule 3-51.1(3.1)?” The Respondent explained his “no” answer thus:
The excess trust funds of $10,318.60 were were [sic] returned to the client using a money order. Which we were instructed to forward to a relative in the U.S. We could not have done this by sending cash.
The Respondent’s 2012 trust report answers caused a Law Society auditor to express concerns of misconduct to the Law Society’s Professional Conduct department in October 2013. Following a lengthy investigation of those concerns, the Law Society issued the Citation.
On the facts established by the Agreed Statement of Facts, the Panel found that the Respondent’s knowing contravention of the cash refund requirement of then Rule 3-51.1(3.2) was a marked departure from the standard of compliance expected of lawyers. He made no effort to ascertain from the Law Society how to properly observe the cash refund rule under the circumstances. Apart from his own stated concerns of safety and convenience, nothing prevented him from providing cash to the Designate in fulfillment of AA’s instructions and in compliance with the Law Society Rules.
This Panel found that the Respondent displayed culpability grounded in a fundamental degree of fault by deliberately disregarding Rule 3-51.1(3.2) for the sake of perceived safety and convenience. His behaviour therefore constituted professional misconduct as conditionally admitted.
In the first action enforcing the provision
The Panel...ordered the Respondent to pay a $4,000 fine to the Law Society by October 31, 2017. The Respondent’s hearing took about a half-day to be heard. The Panel therefore awarded $1,262.05 in costs to the Law Society. This amount is composed of $1,000 for a complete hearing, pursuant to Schedule 4 Tariff Item 25, and $262.05 in total Rule 5-11(5) disbursements, including the court reporter fees for half-day attendance.
Wednesday, December 13, 2017
An Illinois Hearing Board proposes disbarment of a defaulting attorney
The charged misconduct includes accepting fees in ten client matters and then doing little or no work in those matters, ignoring clients' telephone messages and emails, failing to refund unearned fees, making misrepresentations to clients about the status of their matters, and failing to cooperate in the disciplinary investigations of all ten client matters.
In aggravation, we considered the Administrator's Exhibits 1-18 and the testimony of ARDC investigator James Easoz regarding Respondent's avoidance of service of a subpoena and attempts to avoid service of the Complaint. Additional aggravating factors include Respondent's pattern of misconduct, the harm her misconduct caused to her clients, and her failure to participate in this disciplinary proceeding. Respondent did not appear for a sworn statement or deposition, file an answer, respond to discovery requests, participate in prehearing conferences, or respond to the motion to deem the allegations of the Complaint admitted.
You know you are dealing with a lenient bar discipline regime when an attorney can incompetently handle a client's two matters, fail to return the file and entirely blow off the disciplinary process and not get suspended.
In other words New Jersey.
The Disciplinary Review Board reports
On balance, we determine that respondent’s misconduct in this matter demands a censure. For reasons unknown, respondent repeatedly failed to represent Gottlob with diligence. When Gottlob terminated the representation, respondent refused to comply with the requests that the case files be sent to his former client. Such misconduct, given respondent’s unblemished six years at the bar, would generally warrant a reprimand. Respondent, however, succeeded in exacerbating what otherwise might appear to be aberrational misconduct by completely ignoring the DEC’s repeated efforts to investigate these matters, thus, signaling an unfounded disdain for the attorney disciplinary system. He continued in his disdain by his failure to file an answer to the ethics complaint warranting enhancement of the otherwise appropriate discipline to a censure.
The Supreme Court agreed.
Same result here in another unrelated default per the DRB
Here, respondent’s case is not as egregious as the cases that resulted in suspensions. Only one matter was involved and respondent has no ethics history. Had he not defaulted, a reprimand would have been justified, as in the Elsas or Yetman matters. Respondent, however, consistently failed to cooperate, not only with his client and a beneficiary, but also with ethics authorities. He refused to reply to the grievance, despite the numerous opportunities he was given to do so, and permitted this matter to proceed as a default, warranting enhanced discipline.
And blessing here.
Make it a trifecta.
Sign off here. (Mike Frisch)
Tuesday, December 12, 2017
An Ad Hoc District of Columbia Hearing Committee correctly decried the sorry state of default procedures in bar discipline matters and, in my view, articulated a truth about a defective process that does nothing but delay proceedings and fails to protect the public from unethical (and absent) attorneys.
The three members of the committee - Chair Matthew Herrington, Public Member Octave Ellis, and Attorney Member Esther Yong McGraw - should all be promoted to the Board on Professional Responsibility.
Soon, as I can't recall when a committee saw things so clearly.
The casual reader may not understand the courage of these observations
Default proceedings, as their name suggests, occur only where, after substantial notice and outreach procedures have been carried through, a disciplinary action goes forward as to a Bar member who has failed to appear. By our Rule, once default has occurred, the facts alleged by Disciplinary Counsel are admitted. This Rule should afford substantial efficiencies; however, that has not proved the case.
An informal practice has emerged, in the absence of definitive guidance and for the generally laudable reason of erring on the side of more rather than less process, of conducting essentially a full (one-sided) hearing and preparing a Report and Recommendation of the same character as is prepared in contested proceedings. Given the volume of important work before the Board, the Board’s limited staff resources, the Board’s reliance on the volunteer efforts of members of the Bar and the public, and the value of maintaining an orderly and efficient docket, we respectfully suggest that this practice should be revisited.
We do not question here that where the proposed penalty is disbarment a hearing should be held. However, where, as in the case at hand, a hearing allows the Hearing Committee to confirm the findings of fact proposed by Disciplinary Counsel, we see little value in the transformation of Disciplinary Counsel’s submission into a written opinion. Just the same where, as in the case at hand, the conclusions of law proposed by Disciplinary Counsel present no novel issues and reflect nothing more than the application of settled law, we likewise see little value in the transformation of Disciplinary Counsel’s submission into a written opinion. So, given our druthers, we would have resolved this matter several months ago with a one-paragraph Report and Recommendation. The foregoing notwithstanding, we are aware that our suggestions are just that and we have observed that there is great (perhaps appropriate) reluctance to procedural innovation coming from the ground up. Accordingly, we submit herewith a traditional Report and Recommendation. We respectfully seek the guidance of those who review this Report and Recommendation as to whether the above observations are well taken and believe the disciplinary system as a whole would benefit from clarification on this point and a more streamlined process.
The Board on Professional Responsibility has had a longstanding hostility to defaults grounded in a preposterously pro-respondent view of due process. This report would have likely been either suppressed or declawed under the last two BPR Executive Attorneys, who were in power over literally the last 40 years.
I applaud the present Executive Attorney for whatever resulted in this speaking of truth to power.
The defaulting attorney was disbarred for misappropriation in In re Edward Matisik. It was docketed for investigation in 2011.
This matter arises out of Respondent Edward N. Matisik’s representation of the American Society for Cell Biology (ASCB), in connection with its annual registration in a number of states where it planned to seek charitable contributions...
Based on the facts as doubly proven – both by admission through default and as found after evidence was taken at the hearing – this Hearing Committee concludes that Respondent acted intentionally in misappropriating funds in violation of our Rules. Had Respondent chosen to participate in these proceedings, perhaps he could have made an argument that his conduct was merely negligent and not intentional. We see no factual basis to support such an argument, and it is not our role to speculate about what facts or arguments might have been made or proved up in an adversarial proceeding.
The BPR should adopt this report in toto and append it to a short approving recommendation. Why do I think that it will not happen? (Mike Frisch)
Monday, December 11, 2017
The Louisiana Attorney Disciplinary Board recommends disbarment of an already-suspended attorney whose misconduct involved a series of criminal convictions for, among other things. alcohol-related driving offenses.
She defaulted on a number of charges of criminal conduct such as
On or around September 27, 2014, the Respondent was arrested in Jefferson Parish for the crime of ENTRY/REMAINING AFTER FORBIDDEN, LA R.S. 14:63.3. Respondent remained at the Extended Stay America Hotel, 3300 S. 1-10 Service Road, Metairie, Louisiana, after being asked to leave by the staff. Respondent was asked to leave because she continued to smoke in a non-smoking room, and was requested several times to refrain from doing so. The charges were subsequently amended to JP20-102 LOUD NOISE. On September 17, 2015, the Respondent plead guilty to the amended charge...
On or around November 1, 2014, the Respondent was arrested by the Slidell Police Department on an outstanding warrant. On that day, the Slidell Police Department was contacted by a bail bondsman. Respondent was placed under arrest for two outstanding warrants (Warrants 49980 and 50053). While incarcerated pursuant to this arrest, Respondent became combative with correctional officers and suffered injuries. Respondent stated that she needed medical treatment and requested to go to the hospital. After arriving at the hospital, the Respondent made several attempts to leave her bed, ignoring the correctional officer's commands to stay in the bed. When correctional officer Sciambia attempted to handcuff Respondent's arm to the bed, she grabbed his arm and attempted to bite him on his left forearm. Thereafter, Respondent was booked for simple assault. On December 8, 2015, the Respondent pled guilty to SIMPLE ASSAULT.
The board did not propose permanent disbarment.
the Board declines to recommend permanent disbarment in this matter. Although there is no evidence of such in the record, Respondent’s misconduct in this matter appears to derive from significant personal issues (possible alcohol and drug abuse, and mental and/or emotional problems). Because of these potential causative issues, the Board is hesitant to permanently close the door on Respondent’s opportunity to regain her law license.
The Georgia Supreme Court imposed a two-year suspension on these findings
The evidence presented in this case is significant and conflicting, but the following appears to be undisputed. A member of the Georgia Bar since 1983, Meyers was at all relevant times an equity partner at a large law firm. He had billing responsibilities for many clients, including the large corporate client at issue in this case. For a number of years, Meyers’s law firm performed legal services for the corporate client and its subsidiaries. The contact person for the corporate account was in-house counsel for one of the corporation’s wholly owned subsidiaries.
At some point, in-house counsel told Meyers that his employer permitted its in-house attorneys to perform outside legal work as long as it was not on company time and did not raise any conflicts of interest with company matters, and in-house counsel indicated a desire for Meyers’s law firm to do some of the work for his own outside clients. As a result, beginning in 2011, attorneys at the firm did legal work for the benefit of in-house counsel’s personal clients and for his private practice. When difficulties arose in collecting the fees for those services from the in-house counsel’s personal clients, the amounts due were rolled into the bills sent to the law firm’s corporate client, with the descriptions of the work that had been performed edited to eliminate information that would make clear that the work was not performed directly for the corporate client. The corporate client discovered the practice and fired in-house counsel in August 2012. The client then initiated an inquiry with the law firm, which reimbursed the corporate client for the amounts it had actually paid, wrote off the other invoices, and confronted Meyers.
From the start, Meyers admitted that he submitted the altered bills but asserted, as he still does, that he did so at the behest of in-house counsel, who Meyers contended advised him that the procedure was acceptable because much of the work performed ultimately would be beneficial to the corporate client and because in-house counsel would reimburse the corporate client for any work that was not beneficial to it. When confronted, Meyers immediately offered to reimburse the firm or the client, and he did ultimately re-pay the law firm. Meyers, who resigned within a few weeks of being confronted, now acknowledges that the alterations to the bills could have helped conceal from the corporate client the fact that the legal work was performed on behalf of the inhouse counsel and his clients, but nevertheless steadfastly denies any knowing participation in a scheme to defraud the client. Instead, Meyers claims that he was duped and misled by in-house counsel, whom he reasonably trusted.
Ultimately, the Review Panel concluded that, although the violations in the case were extremely serious, the special master’s proposed punishment of disbarment was too harsh under the circumstances...
In particular, we agree with the Review Panel’s implicit conclusion that a lawyer’s decision to put up a defense in a disciplinary proceedings — whether by disputing evidence against him or refusing to concede whatever inferences the State Bar argues may be drawn therefrom — is not always an aggravating factor that counsels imposition of harsher discipline. Further, this Court agrees that a two-year suspension from the practice of law is a sufficient sanction for Meyers’s conduct in this case.
Reinstatement is automatic. (Mike Frisch)
Sunday, December 10, 2017
He had failed to comply with the conditions of a 2013 agreement in lieu of discipline ("ALD").
The explanations were worse than the offenses as reflected in these excerpts.
Respondent explained that he failed to comply with the ALD because he was embarrassed; he, thus, took the "Ostrich Approach," and hid his head in the sand...
At the DEC hearing, respondent thanked the panel for the opportunity to be present and "you know, just win friends and influence people. One day I’ll be on top of that panel." He later reiterated that if the ethics matter "goes nowhere, in about ten years, I will be on a panel similar to this." Respondent asserted that, regardless of the panel’s ultimate decision, he had already changed his business practice. He was a "different attorney" from the one he was before. He was thought of "more of a business-minded attorney," and his clients were "much happier." He has changed his business practices, "which teaches me to think more like a business professional and have a successful family life . . . I’ve rehabbed myself...
Respondent blamed his mentor for his troubles. He found the mentor on Craig’s List "as many attorneys do who look to establish their own office."
As to the changes to his law practice, respondent remarked that new attorneys do not have funds for hiring staff. Thus, he starting reading books, one of which changed his life, Four Hour Work Week, which deals with outsourcing work. According to respondent, none of his paralegals are even in the State of New Jersey. "They’re spread out through the United States and I’m even exploring paralegals in India who can do legal work for me for pennies on the dollar." Respondent named several websites that could be used to post ads to hire paralegals for project based jobs to avoid paying someone a salary or benefits to sit in the office. He stated that the concept "works great" for him.
Respondent maintained that he tried to hire the best and smartest paralegals "who are ten times smarter than me who never got a chance to go to law school for whatever reason," and employs a paralegal who is licensed in another state but does not have a New Jersey license. According to respondent, she is 100 times smarter than him. He reviews her work and focuses "on going to conferences, building relationships and playing golf, because that brings in the business and I can have my paralegals do the work while I supervise them." His paralegals, however, do not dispense legal advice. This is like senior partner thinking because "they’re out playing golf and building relationship[s], which ultimately brings in the business."
The DRB on sanction
respondent showed no remorse or contrition for his conduct, but instead proffered flimsy excuses for his shortcomings and was sorry only that this matter did not "fall through the cracks," thus, making a mockery of the ethics process. Moreover, respondent’s justification for his failure to comply with the ALD lacked sincerity. In addition to these aggravating factors, the more disturbing aspects of this case are that (I) respondent did not appear to understand the impact of his misconduct or that he in fact engaged in misconduct; (2) he did not. understand the significance of the disciplinary process, as evidenced by the fact that he suggested that, as part of his discipline, he mentor others; (3) he did not seem to understand the function of a mentor, as it does not entail merely sharing office space with another attorney found on Craig’s List; and (4) he outsources his work to paralegals outside of New Jersey and tries to minimize his contact with clients to maximize rainmaking and spending time with his family.
Based on precedent, because this is respondent’s first disciplinary matter, involving only one client matter, and because respondent had been admitted for only three-to-four years at the time of his misconduct and, therefore, was inexperienced, we determine to impose a reprimand.
The reprimand carries a number of conditions. (Mike Frisch )
Friday, December 8, 2017
A three-year suspension has been imposed by the Louisiana Supreme Court on an already-suspended attorney
In January 2015, respondent was arrested for shoplifting hair dye, which was valued at $7.29, from a Rouses Supermarket in Mandeville, Louisiana. Respondent was ultimately charged with misdemeanor theft of goods. In October 2015, respondent pleaded guilty to this charge as well as the 2011 shoplifting charge previously discussed.
When the ODC received notice of respondent’s 2015 arrest, it sent her three separate letters requesting she provide a written explanation of her conduct. Two of the letters were sent via certified mail, and one letter was sent via regular mail. Only one of the letters was returned, unclaimed. Respondent never filed a written response to the ODC’s letters.
Respondent was admitted to the practice of law in Louisiana in 2006. In 2010, we suspended respondent from the practice of law for one year and one day, fully deferred, subject to a two-year period of unsupervised probation with conditions. In re: LaMartina, 10-0093 (La. 7/2/10), 38 So. 3d 266 (“LaMartina I”). During the probationary period, however, respondent engaged in additional misconduct. She was arrested for shoplifting on October 5, 2011 (stemming from the theft of $166.87 in merchandise from a Target store in Covington, Louisiana) and she was twice arrested on civil attachments issued in two civil cases in which she was the defendant. For these violations of the Rules of Professional Conduct, we revoked respondent’s probation and immediately made executory the previously deferred one year and one day suspension imposed in LaMartina I.
Sanction here for the hair dye
Like the board, we found little guidance from this court’s prior jurisprudence addressing similar misconduct. However, the Ohio cases cited by the board are persuasive in suggesting that a suspension is the appropriate sanction. Accordingly, we will adopt the board’s recommendation and suspend respondent from the practice of law for three years.
Justice Crichton would disbar.
The Court has dismissed a matter involving allegations of unauthorized practice while suspended by the same attorney.
Chief Justice Johnson dissented
The underlying issue in this attorney discipline case is whether a suspended attorney engaged in the unauthorized practice of law by representing two LLCs of which she is a member. The majority of this court simply dismisses the charges, finding the ODC has not proved that respondent engaged in the unauthorized practice of law “in light of the ambiguity of La. R.S. 37:212(C).” La. R.S. 37:212, defining the practice of law, provides that “nothing in this Section shall prohibit any partnership, corporation, or other legal entity from asserting or defending any claim, not exceeding five thousand dollars, on its own behalf in the courts of limited jurisdiction or on its own behalf through a duly authorized partner, shareholder, officer, employee, or duly authorized agent or representative. No partnership, corporation, or other entity may assert any claim on behalf of another entity or any claim assigned to it.” La. R.S. 37:212(C) (emphasis added). The issue is whether this exception permitted the respondent to appear on behalf of the LLCs such that she did not engage in the unauthorized practice of law. In my view, rather than summarily dismissing the charges, this court should set this matter for oral argument and issue an opinion directly addressing whether Section (C) permits a nonlawyer to represent an LLC. In addition to making a determination of whether respondent engaged in the unauthorized practice of law, an opinion by this court would also provide specific guidance for future conduct.
Justice Weimer also dissented (Mike Frisch)
There have been a number of cases involving appointed counsel's failure to file briefs before the District of Columbia Court of Appeals.
As a result, a body of sanctions case law is emerging.
Yesterday the court decided such a matter
In this case, the Board on Professional Responsibility has adopted the Ad Hoc Hearing Committee’s uncontested findings that respondent Jejomar Untalan ignored multiple orders of this court to file a brief in each of seven separate criminal or juvenile matters in which he had been appointed as counsel pursuant to the Criminal Justice Act (CJA). The Board has also accepted the Ad Hoc Hearing Committee’s consideration of certain mitigating evidence: Mr. Untalan’s stress related to marital difficulties; his lack of prior disciplinary issues; and his steps to voluntarily close his practice, transfer his remaining cases, and assist in the transfer of client records.
In light of this record, the Board recommends that this court determine that Mr. Untalan violated District of Columbia Rules of Professional Conduct 1.1 (a), 1.1 (b), 1.3 (a), 1.3 (b)(1), 1.3 (c), 3.4 (c), and 8.4 (d). The Board further recommends that Mr. Untalan be suspended for a period of six months, all but sixty days stayed in favor of a one-year period of probation subject to the following conditions: Mr. Untalan shall (1) notify Disciplinary Counsel and the Board at least ninety days prior to resuming the practice of law; 2) consult with the D.C. Bar’s Lawyer Assistance Program at least once during the probationary period and waive confidentiality to allow Disciplinary Counsel to confirm compliance; (3) undergo an assessment by the D.C. Bar’s Director for the Practice Management Advisory Service, or his designee, implement any recommendations, and sign a limited waiver permitting the program to confirm compliance with this condition and cooperation with the assessment process; (4) not commit any additional Rule violations during the period of probation; and (5) report to a practice monitor and waive confidentiality to permit Disciplinary Counsel to confirm his compliance with the monitoring condition if he resumes the practice of law during the period of probation.
The court adopted the recommended sanction.
When the court that imposes discipline refers a matter to Disciplinary Counsel, bad things happen to the attorney. (Mike Frisch)
An attorney with a prior stayed six-month suspension has been sanctioned by the Ohio Supreme Court
In 2002, we found that he had failed to fully disclose to his clients his financial interest in investment recommendations that he made while acting as both their lawyer and their financial planner and we sanctioned him with a conditionally stayed six-month suspension.
In 2016, relator, Stark County Bar Association, charged him with making false statements relating to his clients’ financial information while representing them in the Medicaid application process. Buttacavoli stipulated to some of the charges against him. After a hearing, the Board of Professional Conduct issued a report finding that he had engaged in some of the charged misconduct and recommending that we impose a two-year suspension with 18 months conditionally stayed and require him to make restitution to two of his former clients before seeking reinstatement. Neither party has objected to the board’s report and recommendation.
a significant portion of Buttacavoli’s practice is providing financial-planning advice to elderly clients, with the purpose of ensuring their eligibility to receive long-term-care benefits under Medicaid. The board found that he had engaged in professional misconduct with regard to two such client matters.
First, in 2013 and 2014, Buttacavoli assisted Marquerite A. Marchant in transferring assets to family members, including gifting her life-estate interest in real property to her children, gifting the ownership of life-insurance policies to her daughter, and transferring stock ownership to her daughter effective upon Marchant’s death. In May 2014, Buttacavoli applied for Medicaid assistance on Marchant’s behalf, and the following month, the Stark County Department of Job and Family Services interviewed him as her representative. During that interview, he falsely stated that Marchant had not transferred, sold, or given away any resources within the previous five years. He also signed a statement attesting that the representations he made during the interview were truthful. During his disciplinary proceedings, Buttacavoli admitted that his representations to the agency were false, that he was required by law to disclose all prior transfers, and that he had made the misrepresentations for the purpose of inducing the agency to find that his client qualified for Medicaid benefits.
After an investigation
In September 2015, Buttacavoli pled guilty to a first-degree misdemeanor charge of falsification under R.C. 2921.13(A)(4), which prohibits a person from knowingly making a false statement with the purpose of securing a benefit administered by a governmental agency. The Stark County Court of Common Pleas ordered him to serve a 180-day suspended sentence and pay a $500 fine and court costs.
He had engaged in similar misconduct in a second client matter.
The attorney also engaged in misconduct by charging a "non-refundable" fee without required disclosures.
The court accepted the proposed sanction. (Mike Frisch)