Friday, October 20, 2017

Louisiana Holds Disclosure Obligations Of Prosecutor Coextensive With Brady

The Louisiana Supreme Court found no misconduct in a case involving a prosecutor's disclosure obligations.

This attorney disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Ronald Seastrunk, an assistant district attorney in Vernon Parish. Specifically, ODC alleges respondent violated Rule 3.8(d) of the Louisiana Rules of Professional Conduct in failing to disclose exculpatory evidence. As a result, this Court must now determine an issue of first impression with ramifications beyond this respondent: whether the ethical duty outlined in Rule 3.8(d) is broader than the similar duty outlined by the United States Supreme Court’s landmark case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons that follow, we find the duties set forth above are coextensive. As a result, we find ODC failed to meet its burden of proof in this case and dismiss all charges against respondent.

The underlying case involved a murder 

On June 14, 2010, Christopher Hoffpauir’s body was discovered in a roadside ditch in Vernon Parish. Christopher’s estranged wife, Kristyn Hoffpauir, gave conflicting recorded statements to detectives of the Vernon Parish Sheriff’s Office. In the first statement, on June 15, 2010, Kristyn denied any involvement in her husband’s murder. In the second statement, on June 16, 2010, Kristyn reported that, on the day of the murder, she picked up Sizemore and then called Christopher, asking him to assist her in a roadside emergency. According to Kristyn, she and Sizemore wanted to lure Christopher to their location, because Sizemore wanted to talk to Christopher about his relationship with Kristyn. Kristyn stated that Sizemore got into the trunk of the car because she did not want Christopher to see her with another man. When Christopher arrived, Sizemore exited the trunk through the passenger compartment, got out of the car, and shot and killed Christopher. Sizemore picked up the spent shell casings, and he and Kristyn left the scene. Sizemore stopped the car on a bridge near Lecompte, Louisiana, and threw the gun and spent casings off the bridge. Kristyn denied knowing that Sizemore was going to kill Christopher.

On June 17, 2010, Kristyn participated in a video reenactment of the murder at the crime scene. During the reenactment, Kristyn again related that Sizemore was hiding in the trunk, got out, and shot Christopher.

Sizemore and Kristyn were subsequently indicted for Christopher’s homicide. In advance of trial, Kristyn accepted a plea agreement, wherein she pleaded guilty to manslaughter, conspiracy to commit manslaughter, and obstruction of justice. Sentencing was deferred pending her testimony against Sizemore.

The case was tried three times leading to a conviction. The second trial ended in a mistrial because of disclosure issues. 

Respondent shared responsibility for the prosecution with another assistant district attorney.

After the third trial, the judge and defense counsel filed a bar complaint against both trial attorneys and their boss.

The ODC filed charges against the two trial attorneys. The other case was dismissed when the attorney became a judge.

Both the hearing committee and Attorney Disciplinary Board found the Rule 3.8(d) violation.

The court

The underlying facts regarding respondent’s specific conduct are not in dispute. ODC asserts the violations of Rule 3.8(d) arise out of respondent’s alleged failure to disclose Kristyn’s inconsistent statements during her interviews  throughout the investigation, as well as respondent’s failure to disclose hearsay statements concerning Kristyn’s possession of a gun...

We reject ODC’s efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive. ODC’s expansive interpretation of Rule 3.8(d) effectively removes the materiality standard enumerated by Bagley, supra. When confronted with a similar question, other states have also found the disclosure obligations of professional rules are coextensive with the obligations required by Brady.

The court surveyed the landscape of conflicting court opinions and concludes

A broader interpretation of Rule 3.8(d) also invites the use of an ethical rule as a tactical weapon in criminal litigation. We find the practical effect of this potential threat to be poor policy, and, again, decline to adopt the reasoning proffered by ODC.

Justice Weimer concurs

As a preliminary, factual matter, the disciplinary board did not manifestly err in finding that the respondent lacked knowledge of Kristyn Hoffpauir’s varying accounts of her husband’s homicide. Therefore, the only issue remaining is whether respondent committed misconduct by failing to disclose statements concerning Kristyn’s possession of a gun.

The misconduct must be knowing

Apart from a prosecutor “knowing” information is exculpatory, Rule 3.8(d) provides a second path for disclosure–that is for situations in which a prosecutor “should know” that information is exculpatory. However, pursuant to an amendment to Rule 3.8(d), the touchstone for when a prosecutor is tasked with predicting any given piece of information could be exculpatory is reasonableness.

It is perhaps no coincidence that Rule 3.8(d) uses the term “reasonabl[e],” because the Supreme Court has restricted what has become known as the Brady rule by employing the same term: “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985) (emphasis added).

Here

Instead of requiring a prosecutor to unerringly predict the future of a trial, complete with all strategies that might be employed by the defense, Rule 3.8(d) requires a case-by-case examination of the prosecutor’s conduct, primarily in the context of when it occurred. Here, a narrative to the effect that Kristyn at one time kept a .22 cal. gun was not information that the prosecutor “reasonably should know, either tends to negate the guilt of the accused or mitigates the offense.” Rule 3.8(d). As noted earlier, the respondent knew Kristyn’s husband was killed by a weapon of a different caliber. Should the respondent have, therefore, known that the gun possession narrative could be exculpatory? The mere fact Kristyn may have kept a gun in her closet, years before the murder, does not establish that she ever fired the gun or knew how to fire the larger caliber weapon used to kill her husband. In fact, the detective who learned of the gun possession narrative also learned from Kristyn’s mother that her mother took the gun from Kristyn’s closet and that Kristyn did not even know how to uncock the gun. These facts do not undermine Kristyn’s trial testimony that she was not familiar with guns.

In sum, too many leaping inferences would be required to transform the narrative of Kristyn keeping an unrelated gun in her closet several years before the murder, into evidence that “tends to negate the guilt of the accused or mitigates the offense.” Rule 3.8(d). The prosecution actually used the gun possession narrative in the third trial, which resulted in a conviction, underscoring that the narrative was not exculpatory. Although I do not want to detract from the focus of Rule 3.8(d) being on what the prosecutor reasonably should know at the time, this court does have the unique benefit of evaluating respondent’s conduct in the hindsight context of three trials, and observing that it was only the third trial, in which the gun possession narrative was adduced, that resulted in a conviction. Thus, I find from both the vantage of the circumstances before the third trial and with the benefit of hindsight (which is essentially the inquiry presented by the majority), that there was no reason the respondent “reasonably should know” that the gun narrative was exculpatory for purposes of Rule 3.8(d).

 Justice Hughes

I concur in the result. There were others more culpable in this case than respondent and I do not believe any discipline is appropriate.

The Leesville Daily Leader reported that Kristyn got a 55-year sentence. (Mike Frisch)

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

Thursday, October 19, 2017

Secret Romance Gets AUSA Supended

The Louisiana Supreme Court has suspended an attorney for a year and a day with all but six months stayed

Since 1990, respondent has been employed as an Assistant United States Attorney ("AUSA") for the Western District of Louisiana, Shreveport Division. At all times relevant herein, respondent was primarily assigned to prosecute white collar and public corruption cases.

During the course of her employment as an AUSA, respondent began and maintained what the formal charges describe as an "intimate, romantic relationship" with a Special Agent of the Federal Bureau of Investigation ("FBI"). The FBI agent was typically the lead investigating law enforcement agent on many of the criminal prosecutions advanced by respondent. While his testimony at trial was not consistently required, the FBI agent was often the principal witness in grand jury  presentations and at various hearings where respondent sponsored his testimony on behalf of the prosecution. Respondent and the FBI agent worked to keep their relationship confidential.

The Attorney Disciplinary Board

The board determined that respondent knowingly violated duties owed to her client, the public, and the legal system. Her assurances to Mr. Stroud relative to his client’s indictment and arrest, and her phone call threatening the public arrest of Sheriff Toney, were improper. These communications harmed the relationship between Mr. Stroud and his client. Respondent’s personal interest in keeping quiet her relationship with the FBI agent deprived her client, the United States through her superiors, of information they needed to make informed decisions relative to the representation of the government and disclosure obligations to defendants. Her misconduct led to the government’s decision to relitigate the case against Councilmen Stevens and Gilmore, caused harm in the form of the additional expenditure of resources to retry the case, and adversely impacted the government’s tendered plea bargain offered to Sheriff Toney. The potential for harm also exists, as it is possible that the issue of the relationship may be raised in other cases prosecuted by respondent in which the FBI agent testified. Furthermore, her actions are the type that cause unfavorable opinion by the public towards the legal system and especially, the United States Attorney’s Office in the Western District of Louisiana. The applicable baseline sanction in this matter is suspension.

The court

 The underlying facts of this case are largely undisputed. Essentially, respondent acknowledges that while employed as an AUSA, she commenced and maintained a personal, intimate relationship with an FBI agent. Although there is no indication that the agent’s testimony was influenced or colored in any way by their personal relationship, respondent admits she failed to disclose the relationship during her prosecution of two Monroe city councilmen and the Ouachita Parish Sheriff. After the sheriff’s counsel raised the possibility of the relationship, respondent was questioned by the United States Attorney and was not immediately and fully forthcoming. In addition, the disciplinary board found respondent made assurances to the sheriff’s counsel relative to his client’s indictment and arrest. This conduct, and her phone call threatening the sheriff’s public arrest, were clearly improper. These communications harmed the relationship between the sheriff and his counsel. Based on these facts, the parties agree that respondent violated Rules 1.7, 3.8(d), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

Sanction

We have not previously had the opportunity to address directly the misconduct of a government prosecutor who maintained an intimate or romantic relationship with a law enforcement agent called as a witness. However, we have repeatedly held that public officials – and prosecutors in particular – are held to a higher standard than ordinary attorneys. See In re: Bankston, 01-2780 (La. 3/8/02), 810 So. 2d 1113 (an attorney occupying a position of public trust is held to even a higher standard of conduct than an ordinary attorney); In re: Toups, 00-0634 (La. 11/28/00), 773 So. 2d 709 (because the prosecutor is entrusted with great power and discretion in our system of justice, he is also charged with a high ethical standard). In formulating a sanction for respondent’s misconduct, some general guidance can be drawn from cases dealing with conflicts of interest involving romantic entanglements. For example, the case of In re: Ryland, 08-0273 (La. 6/6/08), 985 So. 2d 71, is instructive. There the respondent entered into an intimate relationship with a client during the course of a domestic representation. The respondent was suspended for ninety days, fully deferred, considering that there was little or no actual harm. Furthermore, the respondent was not a prosecutor and did not commit any other violations of the Rules of Professional Conduct...

 When taken cumulatively, including the multiple violations of the Rules of Professional Conduct and specifically considering respondent’s dishonesty and misrepresentation to which she has stipulated, we find that the fully deferred suspension recommended by the board is not appropriate and that respondent must serve an actual period of suspension. We will impose a one year and one day suspension, deferring all but six months of the suspension in light of the substantial mitigating circumstances present.

The Ouachita Citizen reported on the case. (Mike Frisch)

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

Salem's Lot

An Illinois Hearing Board in the main rejected charges of unauthorized practice against a New York attorney and recommends censure as the sanction for the single violation found.

The Administrator filed a four-count Complaint against Respondent, who holds a New York law license but not an Illinois law license, related to his practice of law in Illinois. The Complaint alleged Respondent engaged in misconduct including practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, establishing an office or other systematic or continuous presence in Illinois, holding himself out to be admitted to practice in Illinois when he was not so admitted, making false or misleading communications about himself, and making false statements to two judges.

The Hearing Board found the Administrator proved that Respondent improperly held himself out to a judge as an attorney admitted to practice in Illinois but failed to prove the remaining charges of misconduct. The Hearing Board recommended that Respondent be censured.

The story

Respondent was admitted to practice law in the State of New York on January 8, 2003. He testified he was "in a way" admitted to practice in New York in 1990 because of a New York rule allowing persons to practice law after completing one year of law school. He has never practiced in New York state court except for personal or family matters. (Tr. 86-88). He moved to Illinois with his family in December 2003 and has had a permanent residence here since that time. (Tr. 90).

Respondent applied for admission to the Illinois bar in 2003 and passed the Illinois bar examination in February 2005. After meeting with Respondent and reviewing his record, an Inquiry Panel of the Committee on Character and Fitness determined it could not recommend Respondent for certification. (Adm. Ex. 2).

A hearing before a panel of the Committee on Character and Fitness (Committee) then took place in 2006, after which a majority of the Committee panel determined that Respondent did not demonstrate the requisite character and fitness to be admitted to the practice of law in Illinois. The Committee's concerns included the circumstances surrounding Respondent's involvement in "considerable litigation" as a party, his poor judgment and failure to follow proper court procedures in representing Illinois clients pro hac vice, problems with his letterhead, his embellishment and exaggeration of certain facts, and his failure to convince the Committee that he appreciated their concerns and accepted responsibility for his conduct.  (Tr. 82-83; Adm. Ex. 2 at 33-36). The dissenting members of the Committee panel noted that Respondent's pro hac vice procedures did not result in a complaint being filed against him, he informed his clients he is not licensed to practice in Illinois, he revised his letterhead at the Committee's direction to include the phrase "Federal Court Litigation," and he was candid before the Committee. (Adm. Ex. 2 at 36-38, 49). Respondent sought review of the Committee's decision. On September 21, 2006, the Court denied Respondent's Petition for Review. (Adm. Ex. 2 at 1).

Key findings

There is no question Respondent provided legal services in Illinois matters without holding an Illinois law license. However, we do not find a violation of Rule 5.5(a) because Respondent was authorized to appear pro hac vice in all of the cases identified in the Complaint...

The single proven charge of Respondent's holding himself out as an Illinois attorney is not particularly egregious misconduct. Respondent was not as careful as he should have been in formulating his letterhead, but he did not act with any dishonest intent.

(Mike Frisch)

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

Oh, Canada

A lack of candor in the bar admissions process has resulted in the revocation of a license by the New York Appellate Division for the Third Judicial Department

On his December 2009 application for admission, in response to inquiries concerning other bar admissions, respondent indicated only that he was "in the process of completing Saskatchewan's version of the 'bar examination' (i.e. 'competency evaluations'), which must be completed prior to applying for admission in Saskatchewan."  However, at that time, respondent had already been suspended from the program in question after it had been revealed that he had impermissibly collaborated and shared answers with a fellow student on a pair of the program's online modules. As a result, a mere three months before his application for admission by this Court, respondent was found by the Law Society of Saskatchewan's Admission and Education Committee to have engaged in a "serious breach of integrity" that warranted the imposition of several monetary and academic sanctions. As a consequence of respondent's nondisclosure of these material facts (see Rules of Professional Conduct [22m, NYCRR] § 1200.0] rule 8.1 [a] [2]), he was admitted to practice in this state without any consideration of the circumstances existing in Saskatchewan during the time that his application was pending here. Moreover, following a lengthy hearing, respondent was ultimately denied admission in Saskatchewan. But, again, due to respondent's nondisclosure in the first instance, this Court and its Committee on Character and Fitness were deprived of the opportunity to consider the full record and the factual findings of Saskatchewan admission authorities in assessing respondent's candidacy for admission in New York. Under these circumstances, we conclude that respondent's admission should be revoked, without prejudice to his submission of a renewed application for admission based upon the record in this proceeding and any additional information deemed necessary by this Court's Committee on Character and Fitness.

 (Mike Frisch)

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

Paralegal Must Cooperate With Practice Audit

A Tribunal Hearing Division of the Upper Canada Law Society suspended a paralegal license.

This case is about the duty of paralegals and lawyers to be responsive and co-operate with their regulator, the Law Society, whatever their views on how it is doing its work. The respondent Paralegal, Benjamin Mbaegbu, has refused to respond in writing to questions about a practice audit because he objects to the manner in which the auditor interacted with him and he would like a “second opinion.” He has also refused to schedule a follow-up audit unless a different practice auditor attends. A licensee cannot set terms on fulfilling his or her professional obligations to the Law Society. When he refused to respond completely and to schedule a second audit, Mr. Mbaegbu committed professional misconduct.

What is more, I reject Mr. Mbaegbu’s evidence about what happened during the practice audit. Mr. Mbaegbu testified before me that the practice auditor raised his voice, taped their interactions, insisted on continuing all day despite the fact that he had initially only said it would be several hours and rifled through his files. I find, on a balance of probabilities, that these events did not occur as Mr. Mbaegbu says they did. The practice auditor made clear in advance, orally and in writing, that the practice audit would take all day. I find that he did not yell, deny breaks or go through his cabinet as Mr. Mbaegbu says.

At the end of the hearing, I ordered that Mr. Mbaegbu be suspended for one month, with the suspension to continue indefinitely until he co-operates with the Law Society, including allowing its choice of practice auditor to conduct the audit. These are my reasons.

The opinion details the conduct and finds misconduct

A licensee cannot choose who will conduct a practice audit, practice review or investigation. I found above that Mr. Williams did not raise his voice or prohibit breaks. But even if he did, this would not permit Mr. Mbaegbu to refuse to co-operate with the regulator or insist that there be a different auditor. There is no right, as Mr. Mbaegbu suggests, to a second opinion and if licensees were entitled to demand a different reviewer, investigator or adjudicator, the regulation of the legal professions would be much more complicated and expensive. Moreover, a second opinion likely would not be different. Practice audits, no matter who conducts them, involve the same analysis of aspects of a paralegal’s practice against a determined set of criteria.

...Tribunal penalties should be consistent. It is well-established that the penalty for failure to respond where the licensee has no discipline history and the licensee has not completed the response by the date of the hearing is generally a one-month suspension, followed by an indefinite suspension. A licensee with no discipline history can usually avoid a suspension by responding before the hearing, but if he or she attends the hearing with his or her obligations unfulfilled, a suspension will be ordered, unless there are exceptional mitigating circumstances such as a health issue. There is no reason to depart from that principle here, which has previously been applied to failure to co-operate with a practice audit: see Law Society of Upper Canada v. Taskiran2016 ONLSTH 94 (CanLII).

A 30-day suspension was imposed. (Mike Frisch)

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

Wednesday, October 18, 2017

Disbarred Attorney Seeks Rehearing

Mike Martindale at Detroit News reports on an effort to set aside a disbarment

A former assistant state attorney general disbarred earlier this year over his public hostility to a gay student leader at the University of Michigan asked the state Attorney Discipline Board to reconsider the matter Wednesday, alleging misconduct by a panel that took away his license.

Andrew L. Shirvell, now living in Florida, appeared via video during a hearing at the Cooley Law School campus in Auburn Hills. Shirvell said allegations of stalking, harassment and frivolous litigation against him were decided by three attorneys who never disclosed their personal involvement with political action groups and who were each “predisposed to identify with” the student, Christopher Armstrong.

In 2010, Shirvell, while employed as an assistant attorney general, filed a blog critical of Armstong, who was then president of the UM student body. Shirvell, following a series of social media reports on Armstrong, also appeared on national TV broadcasts to criticize Armstrong’s sexual orientation.

He also showed up at locations looking for Armstrong, Shirvell said, to exercise his freedom of speech to picket and protest the student. Armstrong and his attorney viewed it as stalking and brought a civil lawsuit against Shirvell.

Shirvell lost his job in 2010 and in 2012 a federal jury awarded Armstrong $4.5 million in damages for civil rights violations, an amount later dropped to $3.5 million. This past March, the state attorney discipline board revoked his license to practice law in Michigan.

“Given that my case is one of the most politically-charged to have ever come before a hearing panel and largely driven by the vindictiveness of controversial Metro Detroit attorney Deborah Gordon, I cannot imagine a more biased panel of attorneys who sat in judgment of me,” Shirvell said in a news release this week. “With Donald Trump now in the White House, conservative Christians like me will no longer tolerate being railroaded by the liberal elite.”

Gordon said Wednesday she was “proud to have filed a grievance” against Shirvell.

“It’s humiliating and embarrassing that he ever was licensed to practice law in Michigan,” Gordon said. “I hope the attorney discipline board sticks with the original panel’s findings and not hear the matter again.”

 Shirvell did not bring up Trump Wednesday but maintained the original three-person panel was stacked against him.

“They kept silent over personal activities, including public stances on homosexual rights and causes,” said Shirvell, who asked that the findings be set aside, a new panel formed and the matter reheard.

“They had a duty to disclose and since they did not, I never had an opportunity to seek disqualification of any of them,” Shirvell said.

Specifically, Shirvell alleged:

—Panel member Margaret Costello failed to disclose when she ran for judge in Wayne County in August 2000, she had been endorsed by Pride PAC, a gay rights political action committee in Michigan.

—Panel member Anthea Papista was a financial supporter of gay rights and Democratic candidates.

—Panel member Lamont Buffington was a past member of student government at the UM Law School.

Shirvell told the board Wednesday that if it agreed that just one of the members had potential bias against him, he should be permitted a rehearing.

Cynthia Bullington, an attorney for the Attorney Grievance Commission, said at the hearing that court actions involving Shirvell had established evidence of misconduct and that Shirvell violated attorney rules of professional conduct on several occasions.

Bullington said Shirvell had described Armstrong as a “gay Nazi” and called him other malicious names.

“He once said if it was the good old days and on the playground, Armstrong would be beaten,” said Bullington, adding: “Fortunately we are not in the ‘good old days.’”

“This is a frivolous motion,” Bullington told the panel. “He doesn’t have the heart, mind or soul to be a lawyer. He can’t apologize for what he has done. He continues on his course of intolerance and vindictiveness.”

The panel said it would take the request under advisement and issue a written ruling. No date was set.

We reported on the disbarment. (Mike Frisch)

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

Carolina No

It is possible to be permanently disbarred by the South Carolina Supreme Court without ever having been admitted in the Palmetto State.

Especially with this baggage

Respondent has been admitted to the practice of law in Missouri, California, Utah, and Kansas. The Missouri Supreme Court indefinitely suspended Respondent from the practice of law in Missouri in 2000 for the unauthorized practice of law. Thereafter, the court reinstated Respondent's license to practice law; however, his Missouri license is currently inactive. In 2014, Respondent resigned from the California State Bar. On July 11, 2013, Respondent was disbarred by the District Court of Morgan County in Utah for misappropriation of client funds. Following Respondent's appeal, the Supreme Court of Utah upheld the disbarment. In May 2017, Respondent was disbarred by the Kansas Supreme Court.

He sought pro hac admission to represent his wife in a defamation action involving her ex-husband. The claims were dismissed.

He then sought pro hac admission to litigate the wife's entitlement to her ex-husband's retirement benefits.

In 2011, Wife sought to modify the Final Order and Decree of Divorce by amending certain language regarding Ex-Husband's retirement funds. In October 2012, Respondent submitted an application for pro hac vice admission to the South Carolina Supreme Court Office of Bar Admissions to represent Wife in the divorce action. Respondent failed to file his application or a motion to appear pro hac vice with the family court prior to making an appearance as required by Rule 404(c), SCACR.  In August of 2013, the family court issued a final order resolving the modification.

In December 2014, approximately a year and a half after the divorce action concluded, Respondent issued a subpoena to Ex-Husband's former employer, under the caption of the divorce action. In addition to issuing a subpoena in a dismissed case, Respondent improperly: (1) issued the subpoena without stipulation of the parties or court order upon written application, as required by Rule 25, SCRFC; (2) issued the subpoena to an out-of-state entity; (3) falsely stated in the subpoena that an action was pending in family court; (4) falsely certified in the subpoena that it was issued in compliance with Rule 45, SCRCP; and (5) failed to set forth in the subpoena the text required by Rule 45(c) and (d), SCRCP. Respondent then served a document entitled "Plaintiff's Request for Answers to Interrogatories, Admissions and Request for Production of Documents" on Ex-Husband and his counsel, again citing the divorce action. In addition to serving a discovery request in a dismissed case, Respondent improperly: (1) issued the discovery request without stipulation of the parties or court order upon written application, as required by Rule 25, SCRFC; (2) had direct contact with Ex-Husband, whom Respondent knew to be represented by counsel; (3) falsely stated in the discovery request that an action was pending in family court; and (4) falsely stated in the discovery request that it was issued in compliance with Rules 33, 34, and 36, SCRCP, and Rules 34 and 36 of the Utah Rules of Civil Procedure. In issuing the subpoena and discovery request, Respondent's conduct violated the South Carolina Family Court Rules, the South Carolina Rules of Civil Procedure, and Rules 3.4(d), 4.1, 4.2, 4.4(a), and 8.4(e), RPC, Rule 407, SCACR.

 He failed to respond to the disciplinary charges.

Given the nature of Respondent's misconduct, his lack of participation in the disciplinary process, and absence of any mitigating factors, we adopt the sanctions recommended by the Hearing Panel and find it appropriate to permanently debar Respondent, prohibiting him from seeking any form of admission to practice law (including pro hac vice admission) in South Carolina and prohibiting him from advertising or soliciting legal services in the state.

Title inspiration from Pet Sounds. (Mike Frisch)

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

Suspension - Worthy

The Minnesota Supreme Court rejected a stipulation of reprimand and suspended an attorney.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that, while on disciplinary probation, respondent Duane A. Kennedy committed professional misconduct warranting public discipline-namely, failing to clarify the basis and rate of a fee; failing to deposit unearned client funds into a trust account; failing to maintain the required trust-account books and records; and improperly sharing fees with a non-lawyer.

The parties agreed on sanction

The parties filed a stipulation for discipline. In it, respondent waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and unconditionally admits the allegations in the petition. The parties recommend that the appropriate discipline is a public reprimand and that we add a condition to respondent's current probation requiring him to provide his trust-account books and records to the Director.

But the court saw it differently

This is the fourth time respondent has been publicly disciplined since June 2013. We publicly reprimanded respondent in June 2013, and we suspended him for a minimum of 30 days in June 2015 and January 2016. Respondent has been on disciplinary probation since June 2013. This is the third time respondent has violated the terms of his disciplinary probation by committing additional acts of professional misconduct.

"We consider the attorney's disciplinary history because, after being disciplined, an attorney is expected to show a 'renewed commitment' to ethical behavior." In re Coleman, 793 N.W.2d 296, 308 (Minn. 2011) (quoting In re Milloy, 571 N.W.2d 39, 45-46 (Minn. 1997)). "The fact that the current misconduct occurred while [respondent] was on probation is also a significant aggravating factor." In re Graham, 609 N.W.2d 894, 897 (Minn. 2000). Given respondent's disciplinary history and repeated violations of the conditions of his disciplinary probation, a public reprimand and modification of the terms of respondent's probation are insufficient to adequately protect the public and the judicial system and to deter future misconduct by respondent and other attorneys. See id. (explaining the purposes of disciplinary sanctions for professional misconduct).

As a result, we reject the parties' recommended discipline. We conclude that the appropriate disposition is a suspension for a minimum of 30 days, followed by supervised probation for 2 years.

 There are several provisions for supervision on reinstatement. (Mike Frisch)

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

"Particularly Cruel" Crime Leads To Disbarment

The New Jersey Supreme Court has disbarred a twice-convicted attorney.

From the Disciplinary Review Board on the attorney's first plea

He admitted that, on or about January 6, 2010, agents from the Federal Bureau of Investigation (FBI) appeared at his house and asked whether he discussed holding a political fund-raiser with "a certain person." Respondent admitted that he lied and told the FBI that he had not, when he had actually done so. Respondent’s conduct had come to light as a result of an investigation into a State Senator.

He got probation but

While on probation, respondent committed additional criminal offenses. On April 8, 2014, he waived prosecution by indictment and consented to proceeding by way of information. On that same date, before the Honorable Paul G. Gardephe, U.S.D.J., United States District Court, Southern District of New York, he entered a guilty plea to one count of conspiracy to commit mail and wire fraud, and one count of conspiracy to commit wire fraud.

The crimes involved a "debt settlement" service

As the judge detailed during respondent’s sentencing, respondent preyed on individuals who already were struggling financially. The companies, which he managed, purportedly deposited their clients’ funds in escrow, under the guise of settling or lowering their debts. Instead, in many instances, the clients’ debts were not satisfied, leaving them in significantly worse financial positions than they were initially. All the while,  respondent and his family enjoyed the benefit of the pilfered funds by a lifestyle of excess and extravagance. In this context, we consider respondent’s conduct to be particularly cruel, visiting dire consequences upon his victims.

Sanction

Here, respondent’s conduct resulted in losses totaling more than two million dollars and affected more than 200 individuals. His conduct was callous and merciless. Thus, respondent’s character is as defective as Bultmeyer’s. Indeed, respondent’s conduct is even more egregious than Bultmeyer’s because he preyed on individuals who were already experiencing financial problems. Rather than improve their financial circumstances, he plunged them deeper into debt. Respondent’s motivation was sheer greed. Clearly, no period of suspension could restore the public’s trust in respondent. Thus, we recommend respondent’s disbarment.

(Mike Frisch)

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

Emails Lead To Reprimand

A public reprimand was imposed by the New Hampshire Supreme Court for a series of emails sent by an attorney to opposing counsel in violation of the state's version of Rule 4.4

As a result of this disciplinary matter, Mr. Hoppock is well-educated on New Hampshire's Rule 4.4, which "differs substantially" from the ABA Model Rule, in that it uses the word "obvious" to "set a higher objective standard" as to what actions may qualify as having the primary purpose to "embarrass, delay, or burden a third person." See Rule 4.4, Ethics Committee Comment. He deeply regrets his communications to Mr. Parent concerning Ms. Herman. He is confident that in the future he can be an effective advocate without resorting to personal attacks.

The attorney represented the parents of a man in jail for domestic violence in litigation against the spouse-victim.

A sample

On June 24, 2015, in an email exchange over pleadings in the fraudulent conveyance action, Mr. Parent sarcastically commented that the counterclaim filed against Joanna by Mr. Hoppock "sure helps the grandparents' rights claim." In response, Mr. Hoppock emailed Mr. Parent, cc'ing Kathy O'Donnell, attorney for Shawn. His email read in part: "Are you serious? You are despicable, disgraceful and disingenuous for these comments. . . ." Mr. Hoppock went on to say that Joanna "has cut off the entire Herman family for behaviors not attributable to them. It's Shawn's fault, no wait; it's Hoppock's fault; she is a coward and has no ability for introspection. She wants to blame every human on the planet for her circumstances. She needs to look closer to home. . . . She, or you, really want this to be 'protracted warfare.' So don't tell me what nelps the grandparent's claim.' Your comments are outrageous."

On July 9, 2015, Mr. Hoppock emailed Mr. Parent and Ms. O'Donnell, stating "[w]hen she [Joanna] stops pretending to be the victim and decides to do something to help solve this mess, maybe we can talk She is the one (or you) who is not moving beyond the past and blaming Shawn for all of the mileage you can manipulate; she and you are indeed disgraceful.... [I]n short; when she is done with the entitled victim attitude and wants to participate in the solution, she may well realize progress; until then we will proceed . . . Her behavior is beyond inexplicable; it is indeed disgraceful and so is yours for what you are doing to these children."

And

Hoppock emailed Mr. Parent, cc'ing Ms. O'Donnell and the Hermans, on April 21, 2016: "I do recall from history that the NAZI's punished relatives for the crimes of family members . . . This is the same manipulative hyperbole we have heard for over a year." Mr. Hoppock states that he made this reference to Nazis as an analogy, i.e. just as Nazis punished people for the crimes of their relatives, Joanna was punishing the Hermans (by contesting the visitation request) for the crime of their son.

(Mike Frisch)

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

Convicted, Suspended

The New Hampshire Supreme Court recently ordered the temporary  suspension of a convicted attorney.

WMUR reported  on the charges

A Seacoast attorney is facing several charges after he was accused of encouraging a client to break the law.

Ragnar Huffman, 57, has been charged with witness tampering for allegations related to a domestic violence case. Huffman practiced law in Maine for years as Ronald Hoffman, and he had a New Hampshire license in that name, but he recently changed it.

 Authorities said Huffman encouraged his client to stay in contact with the alleged victim in a domestic violence case to calm her down and get her to drop the charges. Prosecutors said Huffman also encouraged the woman to recant her story and more.

"He also told the victim if she failed to appear for a (domestic violence order) hearing that he would not challenge child custody," prosecutor Jay Brown said.

Huffman was arrested in 2012 in Maine and accused of calling bomb threats in to two schools. According to court documents, he pleaded guilty and later resigned from the Maine Bar. He then changed his name to Ragnar Huffman.

The New Hampshire Coalition Against Domestic and Sexual Violence released a statement saying that it's "critical that law enforcement and courts take violations of restraining orders very seriously."

Huffman's charges range from witness tampering to criminal liability for the conduct of another. He is facing seven felonies, and bail was set at $5,000 cash only.

(Mike Frisch)

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

Tuesday, October 17, 2017

Trust In Louisiana

The Louisiana Supreme Court recently decided four cases involving entrusted funds that drew four different sanctions.

One resulted in disbarment of an attorney who settled a claim without authority and embezzled the proceeds

The evidence in the record of this deemed admitted matter supports a finding that respondent neglected a client’s settlement and converted client and third-party funds related to that settlement. He also failed to cooperate with the ODC in its investigation.

A second case drew a year and a day suspension with all but 60 days stayed.

We agree with the hearing committee and the disciplinary board that respondent acted negligently except with respect to his knowing and intentional failure to cooperate with the ODC in its investigations. The record also supports a finding that respondent violated duties owed to his clients and the legal profession, causing potential and actual harm. The baseline sanction for this type of misconduct is suspension. The aggravating and mitigating factors found by the board are supported by the record.

There are two dissents. From Judge Crichton

I dissent from the majority’s imposition of discipline in this case because I find it to be unduly lenient. Primarily, the underlying conduct warranting this discipline is unacceptable, including respondent’s failure to communicate with a client, neglect of a legal matter, and mismanagement of his client trust account. To make matters worse, not only did respondent fail to cooperate with two disciplinary investigations, but also he was late—by over two months—in filing an objection to the disciplinary board’s recommendation. With such conduct, I question whether respondent can competently represent clients. Therefore, I would impose a harsher discipline.

A third case drew a two-year suspension

The record in this deemed admitted matter supports a finding that respondent grossly mishandled his client trust account, resulting in the commingling and conversion of client funds. Based on these facts, respondent has violated the Rules of Professional Conduct as charged.

Justice Clark

I respectfully dissent for the following reasons. I find the imposition of a twoyear suspension is overly lenient. In my view, respondent’s actions represent serious misconduct that warrants a three-year suspension, as recommended by the hearing committee. Respondent’s mismanagement of his trust account amounts to gross negligence that approaches intentional misconduct. That Respondent did not directly benefit from the mismanagement is negated by the finding that he nonetheless acted with a dishonest or selfish motive. Moreover, despite the absence of a formal allegation, it is noted that respondent intentionally failed to comply with the investigation by the ODC. Thus, I believe a three-year suspension is appropriate.

Justice Crichton

I dissent from the majority’s imposition of discipline in this case and would suspend Respondent from the practice of law for three years—as recommended by the Hearing Committee and Justice Clark’s dissent. See In Re: Michael Louis Martin, 17-B-1288 (Clark, J., dissenting). Without question, Respondent committed serious misconduct by mismanaging his trust account. However, what I strongly believe exacerbates Respondent’s conduct is his total lack of responsiveness to the disciplinary proceedings. Specifically, Respondent did not respond to the formal charges filed by the Office of Disciplinary Council (“ODC”), forward his trust account statements to the ODC (as he said he would), object to the Hearing Committee’s report and recommendation, or object to the Disciplinary Board’s report and recommendation. In light of the scant evidence that Respondent cares about his bar license, I believe a harsher, three-year suspension is more appropriate.

Finally, the court approved a consent suspension of a year and a day. (Mike Frisch)

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

At The Top Of The Wish List

If I could be granted only one wish for the District of Columbia bar discipline system, the choice would be an easy one.

Some jurisdictions promptly and summarily suspend an attorney for failure to cooperate in responding to a complaint. The order may be vacated when the response is received.

The Indiana Supreme Court shows the way with an order entered on October 12

On August 21, 2017, in Case Nos. 49S00-1708-DI-536 and DI-537, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission’s investigation of grievance Nos. 17-1685 and 17-1166 respectively filed against Respondent. Each order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court’s order to show cause in either case. In both cases, the Commission has filed a “Request for Ruling and to Tax Costs” asserting that Respondent still has not cooperated, to which Respondent has not responded.

Being duly advised, the Court ORDERS in DI-536 and DI-537 that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23(10.1)(c)(3), the suspension in each case shall continue until the Executive Director of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation or until further order of this Court, provided there are no other suspensions then in effect. Respondent is ordered to fulfill the duties of a suspended attorney under Admission and Discipline Rule 23(26).

IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23(10.1)(d), that Respondent reimburse the Disciplinary Commission $513.12 for the costs of prosecuting the proceeding in DI-536. The Court declines to separately order a reimbursement of costs in DI-537.

Such an order either commands the attorney's attention or not. If not, the suspension order protects the public from future legitimate use of the license to practice.

And public protection is the ultimate goal of a self-regulating profession, right? (Mike Frisch)

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

"Deeply Troubling"

The Indiana Supreme Court suspended an attorney

We find that Respondent, Doug Bernacchi, committed attorney misconduct by incompetently representing a client, charging an unreasonable fee, improperly using and splitting his fee with a nonlawyer assistant, and attempting to obstruct the disciplinary process. For this misconduct, we conclude that Respondent should be suspended for at least one year without automatic reinstatement.

The story

Respondent was hired by “Client,” who was the guardian of her grandson, to represent her in a pending child support matter against the grandson’s parents, one of whom was Client’s adult son. A Rule to Show Cause against the parents was pending when Respondent took over the representation.

During this time, Mario Sims was an independent contract paralegal working for Respondent. Sims is not a lawyer. Respondent entered into a written fee agreement with Client calling for an $800 “non-refundable” retainer. Respondent instructed Client to pay this money in full to Sims and indicated he would collect his portion from Sims. Client was directed to raise any questions she had about the case with Sims.

Respondent filed appearances on behalf of both Client and her son, who was an adverse party. At the first hearing on the Rule to Show Cause, which ended up being continued, Respondent told the trial court he was there to represent the son. At the second hearing, Respondent told the court that he was representing Client and that he had erred in stating otherwise at the first hearing. However, Respondent proceeded to argue against the son being made to pay child support, telling the court among other things that the son was bedridden and unable to work. At the conclusion of the second hearing, the court dismissed the Rule to Show Cause, citing among other things the confusion over party representation. Client did not appear at either hearing, and Respondent has given inconsistent explanations for her failure to appear, both to the trial court and to the Commission.

After the second hearing, Respondent informed Client he had told the Court her son was on his deathbed and should not be obligated to pay support. Client instructed Respondent to go back to court and correct this, but Respondent refused. Client then requested a refund from Respondent and filed a grievance against him with the Commission. Respondent eventually refunded the fee about two years after Client first requested it. Both before and after issuing the refund, Respondent and others acting on Respondent’s behalf repeatedly called Client and attempted to persuade Client to withdraw the grievance in exchange for the refund. Respondent also contacted multiple members of the Commission directly in an attempt to have the disciplinary investigation dismissed, notwithstanding Respondent’s awareness that the Commission members were represented by counsel.

Client eventually lost the home she shared with her grandson after she was unable to secure the child support payments from her grandson’s parents.

The attorney had no prior discipline but

On the other side of the ledger in this case are significant aggravating factors. As found by the hearing officer, Respondent has substantial experience in the practice of law, he committed multiple and diverse acts of misconduct, he was dishonest with the trial court, and he improperly attempted to persuade Client to withdraw her grievance in exchange for a refund. (Report at ¶¶ 29-31). But these observations only begin to tell the story. In the underlying case, Respondent not only engaged in a blatant conflict of interest, appearing on behalf of both the party seeking support and the party resisting support, he seems to have been completely unaware of who he was actually representing or why this was a problem. Respondent not only made false statements to the trial court, the substance of those false statements were largely adverse to Client. And Respondent not only improperly used and shared fees with an unsupervised paralegal, he did so in a manner that made his own role in the representation secondary to that of the paralegal. Indeed, Respondent testified at the final hearing he had never even met Client. (Tr. at 125).

Respondent’s conduct during these disciplinary proceedings also is deeply troubling. Respondent not only harassed Client about the grievance she filed against Respondent, he induced others to do the same. The letters Respondent inappropriately sent to the Commission’s membership inaccurately stated that the disciplinary investigation was baseless and grounded in falsehoods propounded by Client and by the Commission’s counsel. Respondent also filed a frivolous Notice of Tort Claim against the Commission’s counsel alleging the investigation was being pursued in bad faith, and Respondent attached to that tort claim notice an affidavit issued by a purported acquaintance of Respondent, an affidavit Respondent later acknowledged was false. Less extreme but nonetheless worrisome, many of Respondent’s responses to questions propounded by the Commission during its investigation were at best nonsensical and at worst obstreperous, and the hearing officer found “Respondent exhibited several instances during the hearing[ ] of an inability to comprehend simple questions or to follow his own train of thought to conclusion. The Respondent contradicted himself and appeared flustered during the direct of his attorney.” (Report at ¶ 36).

The Commission urges us to suspend Respondent for at least two years without automatic reinstatement. Respondent, who devotes only a single sentence of his 17-page sanctions brief to the issue of sanction, urges that a reprimand or short suspension be imposed. The balance of considerations outlined above persuade us that a significant period of active suspension is warranted and that Respondent should be required to undergo the reinstatement process before resuming the practice of law.

The court cited one instance of the "deeply troubling" conduct

By way of illustration, when asked whether Respondent and Sims share or have joint access to a business bank account, Respondent wrote the following:

Never, EVER would I do that or consider it with any non-lawyer. Who would do that, you? Perhaps a Valparaiso Law School lawyer or an Indiana University lawyer? Some persons who were having weird sexual relations or a relationship? I hope that is not being questioned of me. . . . [W]e are both married men[.]
. . . Please, I am just a bit offended to even answer such nonsense. I hope I have made myself clear. NO joint accounts, no keys, no private Personal Identifying Information on most matters, or just a name or address, no access to my account by Mr. Sims, or any other stranger on Earth, or any aliens, for that matter. My garbage does not include P.I.I. and is not blowing in the ally [sic].

(Mike Frisch)

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

Some But Not All Charged Misconduct Found

An Illinois Hearing Board took a more sympathetic view of found misconduct than the Administrator

The Administrator filed a four-count Complaint against Respondent related to his representation of two clients in criminal matters. The Complaint alleged Respondent improperly changed his fee agreements with his clients after having entered into flat fee agreements, deceived the clients regarding their bond refunds and improperly retained the entire bond refunds after representing to the clients he would return part of the bond refunds to them. In addition, Respondent was charged with creating a false supplemental retainer agreement as to one client and making false statements to Counsel for the Administrator regarding the supplemental retainer agreement.

The Hearing Board found the Administrator proved that Respondent falsified the supplemental retainer agreement and made false statements to Counsel for the Administrator but did not prove the remaining charges. The Hearing Board recommended that Respondent be suspended for one year, with the suspension stayed after 30 days by one year of probation.

Sanction

The Administrator requested that we recommend a suspension of eighteen to twenty-four months and until he makes restitution to Datreon Adams in the amount of $6,115.00. Given our findings that the Administrator did not prove all of the charged misconduct, we conclude that such a lengthy suspension is not warranted.

Respondent committed serious misconduct by submitting a falsified document to Counsel for the Administrator and making several false statements in connection with this disciplinary matter. Honesty is an essential attribute for attorneys. In re Hays, 05 SH 3, M.R. 21050 (Sept. 21, 2006) (Hearing Bd. at 13-14). Respondent's misconduct demonstrated a troubling lack of honesty and good judgment.

In aggravation, we consider that Respondent's conduct was not an isolated incident. He repeated his misrepresentations in three separate sworn statements. We do not give significant weight to the evidence of Respondent's financial difficulties because we did not find misconduct related to Respondent's collection of fees. Despite Respondent's falsification of the supplemental retainer agreement, he did legitimately obtain Adams' agreement to the CBR form. The evidence did not establish that Respondent used the falsified supplemental retainer agreement for his own personal gain, but rather for the purpose of avoiding a disciplinary inquiry. Thus, Respondent's financial situation is less of a factor than it would be if we had found Respondent acted dishonestly for his own financial benefit.

In mitigation, two attorneys and a judge testified favorably as to Respondent's truthfulness and integrity. Respondent has practiced for 28 years without discipline.

...we recommend that Respondent be suspended for one (1) year, with the suspension stayed after thirty (30) days by one (1) year of probation, subject to the following conditions which are to be satisfied prior to the termination of probation...

(Mike Frisch)

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

Monday, October 16, 2017

Badge of Dishonor

An attorney was suspended by the Indiana Supreme Court for 60 days on stipulated facts

In two separate incidents in January 2015, Respondent was pulled over for a traffic infraction. During both stops, he displayed a badge to the officer, and during one stop he orally indicated he was a deputy prosecutor in Vanderburgh County. In each instance, Respondent was released from the traffic stop without a citation. At the time of the stops, Respondent was not a deputy prosecutor or law enforcement officer.

As a result of these two incidents, Respondent was charged in two separate cases with impersonation of a public servant as Level 6 felonies. Respondent pled guilty in one case and was convicted following a bench trial in the other case. In each case, his conviction was entered as a Class A misdemeanor. Pursuant to the terms of his guilty plea, Respondent’s first case subsequently was dismissed with no conviction upon Respondent’s successful completion of probation.

The Evansville Courier & Press  reported on the case and noted that he was a deputy prosecutor from 2007 to  2009.  (Mike Frisch)

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

Pregnant Dog Altered Email Leads To Suspension

The Indiana Supreme Court imposed a 180-day suspension based on these stipulated facts

Respondent was employed with the Office of Corporation Counsel (“OCC”) for the City of Indianapolis. In November 2015, Indianapolis Animal Care and Control (“ACC”) inspected a kennel belonging to Paul Upton and later removed dogs from the kennel. The following month, approximately 14 puppies were born from dogs seized by the City, and at least five of those puppies died.

In January 2016, a reporter sought information from ACC regarding the status of the puppies. In response, Respondent sent an email to the reporter stating that Upton did not notify ACC or the City that any of the dogs were pregnant, and the reporter published a story quoting Respondent’s statement.

At a hearing in March 2016, Upton apprised the court of Respondent’s inaccurate statement to the reporter. Respondent falsely advised the court he had been misquoted and that he had actually told the reporter ACC had been unable to determine if any dogs were pregnant.

In April 2016, Upton submitted a public records request to OCC seeking emails between Respondent and the reporter during the dates at issue. Prior to responding to the request, Respondent altered the email in question by deleting the statement that had been quoted in the reporter’s article. The altered email then was provided to Upton.

Later in April 2016, Upton received from the news outlet a certified copy of the unaltered email from Respondent, which revealed that the email provided by OCC to Upton had been altered. Upton then filed a series of motions to remove OCC from the case, which led to Respondent withdrawing his appearance and acknowledging the email alteration.

(Mike Frisch)

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

Former Judge Faces Discipline

A third bar discipline case on the Ohio Supreme Court docket this week

Ohio State Bar Association v. Lance T. Mason, Case no. 2017-0794
Cuyahoga County

The Ohio Board of Professional Conduct recommends that former Cuyahoga County Common Pleas Court Judge Lance T. Mason be disbarred from practicing law in the state following a felony conviction for assaulting his wife in August 2014. Mason argues for an indefinite suspension, which is a lesser punishment that offers the possibility of working again as an attorney.

Judge Becomes Violent in Vehicle
After more than eight years of marriage, Mason and his wife, Aisha Fraser, decided to separate in March 2014. Mason served as a judge on the Cuyahoga County Common Pleas Court at the time. The couple have two children. After the separation, they shared custody of the young children and often spent time together, going on dates and to church.

On Aug. 2, 2014, Judge Mason, Fraser, and their children attended a funeral for the judge’s aunt. During the drive to Fraser’s home after the funeral, Judge Mason and Fraser discussed their relationship. With the children in the backseat, Judge Mason, who was driving, became upset and hit Fraser in the head; banged her head against the car window, armrest, and dashboard; and bit her on her face. Fraser tried to leave the car, and Judge Mason pulled her back. She eventually escaped the vehicle but fell, and Judge Mason stopped the car, located her, kept striking her, and bit her again.

Leaving Fraser on the road, Judge Mason returned to his vehicle and drove to his house with the children. He called his sister, asking her to pick up the children because he planned to shoot himself. Shaker Heights police arrested Judge Mason. Fraser was hospitalized and required surgery to repair a fracture under her eye.

When the judge was indicted, the Ohio Supreme Court disqualified him from his judicial position. On Sept. 16, 2015, the trial court accepted Mason’s guilty plea to attempted felonious assault and domestic violence, and sentenced him to a 24-month prison term and a 6-month jail term to be served concurrently. Mason was released on June 27, 2016.

Mason Violated Ethics Rules for Judges and Attorneys, Board Finds
The Ohio State Bar Association investigated charges against Mason alleging that he violated attorney and judicial ethical rules in the state. After considering the bar association’s complaint, reviewing the evidence, and conducting a hearing, a panel of the professional conduct board concluded that Mason violated the judicial conduct rule that requires judges to promote public confidence in the judiciary’s independence, integrity, and impartiality. The panel also found that Mason’s illegal act reflected poorly on his trustworthiness and his fitness to practice law.

The professional conduct board’s report to the Supreme Court lists the following mitigating factors, which may be considered for a less-severe sanction:

  • no prior disciplinary record
  • cooperative during disciplinary investigation
  • removed from his position as judge
  • incarcerated for his actions
  • penalized with a $150,000 settlementof a civil case Fraser filed against him
  • apologized to Fraser in open court during the civil case
  • submitted 37 character reference letters

The report also identifies several aggravating circumstances, which may be considered to impose a more severe punishment. The board notes the vulnerability of Mason’s former wife and his children and the harm Mason’s actions caused. Also, Mason didn’t adequately explain why he assaulted his wife; he hasn’t indicated that the violent conduct won’t happen again; and, although he has met with a psychologist, psychiatrist, social worker, and pastor, he “has not fully engaged in the redemptive process,” the report states. 

Board Proposes Disbarment
Noting that the Supreme Court holds judges to the highest ethical standards, the board recommends that the Supreme Court disbar Mason, which means he will never be permitted to practice law in Ohio again.

Mason, who has been a county prosecutor, state representative, and state senator, submitted objections to the board’s proposed punishment of disbarment. When one side in a disciplinary case objects to the board’s findings or recommendations, the Ohio Supreme Court agrees to hear oral arguments in the matter. The disciplinary case will be heard Oct. 18 in Marietta during the Court’s Off-Site Court Program in Marietta.

Former Judge Believes Remorse and Other Factors Justify Lesser Punishment 
Mason argues that the panel didn’t adequately inform the board about the testimony given by five of his witnesses. He describes testimony from his father’s first cousin, who is also a pastor; his sister; another relative; a former employee; and a former teacher and principal, who worked with Mason on legislation and was later appointed to oversee Mason’s visitations with his children. The witnesses spoke about his good moral character, the one-time nature of the assault, his statements taking responsibility for his actions, and his commitment to his children both before and after the incident. Because the panel didn’t give this information to the board, the board wasn’t able to make an informed decision about his punishment, Mason contends.

“Nothing could be more misleading to the Board than the Panel’s obvious abdication of its responsibility to report relevant facts provided by these witnesses during their testimony,” his brief to the Court states.

Mason also asserts that the panel didn’t address the substance of the character letters sent on his behalf, which showed how isolated the assault was and reflected his genuine remorse for his actions. He points to his voluntary and continuing participation in counseling as well. In addition, all evidence, including an email from Fraser, supporting the value of permitting Mason to continue as an attorney “was ignored and not reported to the Board,” the brief argues.

Mason notes that, leading up to the assault, his father died, then his mother died, his house flooded twice and became infested with rats, his daughter has health issues related to Down syndrome, and a few days before the assault he had gone to the local hospital’s emergency room with chest pains.

“[T]he record simply does not support the aggravating factors found by the Panel but instead support mitigating factors which should serve to temper the sanction imposed by this Court,” his brief states.

Mason points out that the bar association proposed an indefinite suspension to the board, and he asks the Court to impose that punishment with credit for the time he has been suspended since his conviction in September 2015.

Bar Association States Evidence Supports Board’s Recommendation 
The state bar association responds that the panel was in the best position to consider the evidence, aggravating factors, and mitigating factors, despite Mason’s interpretation of the evidence.

The bar association notes that Mason’s children are still in counseling, which began as a result of the assault, and that his visits with them are supervised. Mason has provided no evidence or testimony that a mental health or substance abuse disorder contributed to the assault or that shows a clear connection between the attack and the stressors in his life at the time, the bar association states. While Mason has attended counseling with a psychologist and psychiatrist, the bar association argues that he submitted no treatment plan to the panel and that he was ordered by the court when released to complete a counseling program – a requirement that contrasts with Mason’s claim that the counseling is voluntary. The board decided that the factors supporting a lesser punishment for Mason were insignificant when compared with the offenses, and that conclusion was reasonable based on the evidence, the bar association maintains.

In the bar association’s view, disbarment is appropriate “for a violent assault committed by a sitting member of the judiciary against his wife and witnessed by his young children ….” Noting that disciplinary punishments are designed to protect the public and the integrity of the judicial branch, the bar association also argues that the Supreme Court holds judges to a higher standard of integrity and ethical conduct because of their positions of public trust.

However, if the Court determines that the evidence supports a less-severe sanction, the bar association recommends an indefinite suspension with no credit to Mason for the time he has been suspended under the Court’s order after his conviction. The bar association’s position is that the balance of the aggravating factors against the mitigating circumstances in this case doesn’t support any credit for time served.

 Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Lance T. Mason: Richard Alkire, 216.573.0801

Representing the Ohio State Bar Association: Kelly Heile, 513.887.3474

(Mike Frisch)

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

Misconduct Or Vendetta?

Another case on the oral argument calendar this week in Ohio

Columbus Bar Association v. Kinsley F. Nyce, Case no. 2017-1078
Franklin County

The Board of Professional Conduct recommends that Columbus attorney Kinsley F. Nyce be disbarred for violating a number of rules governing Ohio lawyers, including failing to notify clients that he didn’t maintain malpractice insurance while representing them.

Nyce has denied all allegations made by the Columbus Bar Association and maintains his only error was using older forms to notify his clients of his lack of insurance. He suggests that no sanction by Ohio Supreme Court is warranted.

Charges Stem from Real Estate Lawsuit
The professional conduct board’s report to the Court notes that Nyce represented two entities, Arthur Goldner & Associates (AG), and NC Plaza in a Franklin County lawsuit filed by Whitt Sturtevant. At the time of the lawsuit, Arthur Goldner was the chief executive officer of his Illinois-based company, and Rick Aronhalt was AG’s on-site manager in Columbus. The board concludes Nyce never notified Goldner that he didn’t carry professional liability insurance.

Whitt Sturtevant prevailed in the lawsuit against the companies, and Goldner hired Stephen Jones to replace Nyce and handle the appeal. Jones discovered that AG’s property liability insurance would have covered three of the claims brought against it, but that Nyce failed to advise AG to contact its insurer. At Jones’ advice, AG filed a belated claim with the insurer, which acknowledged it would have covered the cost of defending against the claims, but denied coverage because the claim was filed too late.

Jones told AG the failure to seek the insurance coverage could constitute legal malpractice by Nyce. Jones sent a letter to Nyce asking for information regarding his malpractice insurance. Nyce ignored repeated requests by Jones to prove he had malpractice coverage.

Jones filed a grievance with the Columbus Bar Association against Nyce for not cooperating. The bar association pressed Nyce for information about his insurance. Nyce admitted at a board panel hearing that he never personally carried malpractice insurance. He said he notified Aronhalt, who he had worked with before Aronhalt represented AG, that he didn’t have insurance. Nyce stated Aronhalt was the agent for AG that he communicated with directly about all AG matters.

The board noted the professional conduct rules require an attorney who doesn’t carry malpractice insurance to disclose that to clients in writing; sign the notice; have the client sign and date the notice acknowledging receipt; and maintain a copy of the signed notice for five years. The board found Nyce violated the rules by not notifying Goldner about the lack of malpractice insurance and Nyce never received Goldner’s written consent to continue to represent AG while uninsured.

Incident Leads to Further Inquiry
Based on the investigation of the AG case, the Columbus Bar Association’s disciplinary investigators asked Nyce for a list of clients for a three-year period and copies of their signed notices informing them he wasn’t insured. The board found Nyce couldn’t supply notices for 30 clients he represented between 2012 and 2015. Nyce produced some forms citing rule Disciplinary Rule 1-104, which was a rule under the former Ohio Code of Professional Responsibility that the state stopped using in 2007. The code has been replaced by the Ohio Rules of Professional Conduct, and Prof. Cond. R. 1.4(c) is the current rule that mirrors DR 1-104.

In 2016, Nyce produced forms for some but not all of his clients, and the board found none of them fully complied with the new rule. It found some cited the old rule, were undated, didn’t have Nyce’s signature, or appeared not to have an authentic client signature. When pressed about the whereabouts of the signed forms, Nyce responded many of the notices were lost in a flood at his office. The board noted that a year earlier, when asked about the forms, Nyce never mentioned a flood.

Based on the questions about the forms, the board found Nyce violated the rules for failing to notify clients about the lack of insurance and for failing to respond for requests for information in a disciplinary matter. He further violated the rules by acting deceitfully and dishonestly toward the bar association and the hearing panel.

Financial Records Examined
The bar association also asked Nyce to produce records from his court-required Interest on Lawyers’ Trust Accounts (IOLTA) account where he must hold client funds. The board found Nyce failed to respond to repeated requests for the full amount of requested information, and found he violated several record-keeping rules.

Some of the allegations against Nyce center on the use of the IOLTA account while caring for his elderly mother who lived in Vermont. Starting in 2013, his mother resided in a Burlington, Vermont, nursing facility and then in a rehabilitation facility until her death in 2015. At the time she entered the first nursing home, she had assets in excess of $700,000, which included large amounts in two Vermont bank accounts on which Nyce and his brother, Roger, were also listed. She also owned a home.

At the time of her death, she owed the two nursing homes $205,000 for their care, and by then she had no assets to pay the debts. The board indicates that Nyce and his brother systematically withdrew all the money from their mother’s accounts and took ownership of her home. Of the withdrawals, more than $584,000 was placed in Nyce’s IOLTA account before he moved the money into other accounts.

When asked to explain the reason for placing the money in the IOLTA, Nyce claimed it was for “clients” of his and his mother who weren’t legal clients. The money was to be held for nine individuals that Nyce wouldn’t name. The board concluded the story of the nine clients was a “complete sham” and charged Nyce with using his IOLTA account to launder the money withdrawn from Vermont accounts and to shield the assets from the Vermont nursing homes seeking to collect payment. The board charged Nyce with rule violations for the misuse of the client accounts.

Board Recommends Disbarment
The board concludes that disbarment is warranted because Nyce:

  • acted with a dishonest and selfish motive
  • committed multiple offenses
  • engaged in a pattern of misconduct
  • refused to acknowledge the wrongful nature of his conduct
  • failed to cooperate in the disciplinary process
  • submitted false evidence, made false statements, and used deceptive practices during the disciplinary process

The board indicates that Nyce presented no mitigating factors and notes that he has no prior disciplinary record.

“From the beginning, [Nyce] displayed open and undisguised hostility toward he disciplinary system, the attorneys representing [the bar association], and the panel. It would be difficult to imagine an accused attorney demonstrating less respect for the disciplinary process or less remorse for his misconduct,” the board report states.

The board concludes that Nyce is no longer fit to “practice in a profession grounded on trust, integrity, and candor.” And the only appropriate sanction is disbarment, it asserts.

Attorney Claims Vendetta
Nyce responds to the charges by stating he has been in compliance with the rules at all times and the clients were fully informed of his lack of malpractice insurance. Nyce claims he is the victim of a “box job,” which he describes as an attempt by the bar association to target him for investigation. He asserts that the bar association’s attempt to collect information from him was done in concert with Jones and a Vermont attorney seeking to file lawsuits against him. He responds that he has no duty to assist the bar association in helping his legal adversaries develop their lawsuits.

Bar Association Supports Disbarment
The bar association supports the board’s recommendation of disbarment and charges that Nyce “distorts the evidence” presented in the board’s panel hearing and misrepresents his conduct. It notes that, in stark contrast to Nyce’s view of the case, the board found he violated many of his ethical duties and harmed clients.The bar also indicates the Supreme Court has recently disbarred other attorneys with no prior disciplinary records for committing rule violations similar to the ones the board found Nyce violated.

 Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the Columbus Bar Association: Steven Nolder, 614.221.9790

Representing himself pro se, Kinsley F. Nyce: 614.562.2254

(Mike Frisch)

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

A Great Grandmother's Complaint

An argument preview from the web page of the Ohio Supreme Court

Disciplinary Counsel v. Quentin M. Derryberry II, Case no. 2017-1088
Auglaize County

The Ohio Board of Professional Conduct recommends that Wapakoneta attorney Quentin M. Derryberry II be suspended for one year with six months stayed for neglecting a child custody case he was hired to handle and for making false statements during the disciplinary process.

Great-Grandmother Seeks Legal Help
On Oct. 29, 2013, Linda Moore paid a $1,000 retainer to hire Derryberry as her attorney to secure legal custody of her great-grandson Deacon. For the prior two years, Deacon had been living with Moore in her Lima home. Deacon’s mother, Megan Ingle, supported giving Moore temporary legal custody of the child.

Moore said she told Derryberry that time was critical because Deacon’s grandmother, Melissa Sharp, had filed documents a week earlier to obtain legal custody of the child. Sharp had filed a motion to intervene in a custody case between Deacon’s parents. Two of Ingle’s other children were living with Sharp in Wapakoneta.

Two days after she first met with Derryberry, Moore provided the information he requested. In this second meeting, they spoke with Deacon’s mother by phone, and Moore understood that Derryberry would file court documents on her behalf in the custody proceeding within a few days.

Attorney Unresponsive to Client’s Calls
After more than a week passed, Moore called Derryberry’s office for an update on the case. In the subsequent days, she left eight voicemail messages. The two times that someone answered the phone, Moore spoke with the attorney’s secretary, who said she would have Derryberry return the call. The attorney responded to none of Moore’s calls.

The court granted Sharp’s request to intervene on Nov. 14, and she filed paperwork asking the court to make her Deacon’s temporary residential parent and legal custodian. On Dec. 2, Moore went with Deacon’s mother to a court conference about Sharp’s request for custody of the two children who lived with her. Afterward, Sharp’s attorney told Moore that he had never spoken with Derryberry or received any documents from him. Moore went to the juvenile court and discovered that her attorney had filed no documents in the case involving Deacon. Moore went to Derryberry’s law office to speak with him, and his secretary said he wasn’t there. Moore fired him immediately.

Great-Grandmother Asks for Refund, Files Complaint
Later that month, the court gave Sharp legal custody of Deacon, and he moved after Christmas from his great-grandmother’s house to his grandmother’s home.

Moore contacted Derryberry for a refund and her file, and a month later Derryberry sent her a $300 partial refund with an invoice that noted research and a call to Sharp’s attorney, and subtracted an amount for time he said he worked on the case. Moore filed a grievance against Derryberry with the Allen County Bar Association, which was later transferred to the Office of Disciplinary Counsel in Columbus. The disciplinary counsel began an investigation.

In May 2015, 14 months after Moore made her ethics complaint, Derryberry sent her a letter apologizing for “any misunderstanding or inconvenience” and included a refund of the remaining $700 she paid.

Board Describes Attorney’s False Statements
In its report to the Supreme Court, the professional conduct board highlighted several false statements Derryberry made during the disciplinary process. In a letter to the disciplinary counsel, Derryberry stated that he told Moore it wasn’t necessary or appropriate to intervene right away in the custody case because Sharp hadn’t intervened yet. Though the board noted that such a delay “might be a plausible strategy,” it found Moore’s testimony “very credible” and Derryberry’s “not credible.”

Derryberry also maintained during the investigation that he had a conversation with Sharp’s attorney about the complex custody situation, but his notes didn’t reflect an exact date. At the hearing, though, Derryberry said he tried to call the attorney, but was unable to leave a message and never actually talked with him. The other attorney testified that they never spoke, and he knew of no problems with his office voicemail system.

The board stated that Derryberry lied “to justify his failure to promptly and diligently represent Moore’s interest.” Derryberry violated attorney conduct rules that require him to act with diligence, to keep his client reasonably informed, and to respond as soon as practical to client requests for information, the board concluded, adding that his false statements were also a violation of the rules.

The board noted that Derryberry has a record of earlier discipline (after a federal perjury conviction in 1988), he committed multiple offenses, and he hasn’t acknowledged his wrongdoing. The board found no mitigating factors. Pointing out that the Court’s recent precedent supports an actual suspension when an attorney makes false statements with other underlying violations, the board recommends a one-year suspension with six months stayed if Derryberry commits no additional misconduct.

Attorney Disputes Lack of Diligence Claim 
Derryberry has objected to some of the board’s report, so the Ohio Supreme Court will hear oral arguments in the case. Derryberry, who is representing himself in the case, primarily takes issue with the board’s conclusion that he didn’t act diligently on Moore’s behalf. He contends that his strategy was to enter an appearance in the custody case after Sharp’s motions were served on Ingle, which he indicates was in early December – the day he was fired – at the conference about two of the other children.

“Irrespective of Moore not having actual knowledge of the referenced strategy, she was not prejudiced by it and upon prompt filing after service on [Ingle], her motion to intervene would have been granted and the conflicting motions for temporary custody would have been set for hearing,” he wrote in his brief to the Court.

He conceded that he provided no written communication to his client, and stated that perhaps he should have taken a more formal approach with her rather than the family approach he used because he knew Moore’s late husband. He asks the Court for either a suspended sanction or a public reprimand.

Disciplinary Counsel Details Standards in These Cases
In its response, the disciplinary counsel explains that the three-person panel of the board that reviewed the case was responsible for assessing witness credibility. Besides the panel’s conclusion that Moore was more credible than the attorney, the disciplinary counsel notes that the panel found the great-grandmother’s actions after her first meeting with the attorney reflected her belief that he would be taking prompt action to file custody papers for her. The record does not weigh heavily in Derryberry’s favor, the disciplinary counsel maintains.

Nor does Derryberry offer any case law to support a lesser sanction of a suspended sentence or public reprimand in a similar situation, the disciplinary counsel argues, adding that the panel indicated if Derryberry had not lied during the disciplinary process an actual suspension may not have been warranted. The disciplinary counsel supports the recommended penalty.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Quentin M. Derryberry II, pro se: 419.738.3217

Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256

(Mike Frisch)

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