Sunday, February 26, 2017

Denial Hawai'in Style

The Hawai'i Supreme Court has denied reinstatement to a petitioner who had been reciprocally disbarred based on his voluntary license revocation in Georgia.

we find and conclude, after careful and thorough review, that Petitioner Duru failed to follow court rules governing his disbarment, particularly in his failure to inform his Maui employer or the Office of Disciplinary Counsel (ODC) of his foreign disbarment, and failed to fulfill substantive conditions of this court’s November 10, 2005 reciprocal disbarment, particularly his failure to successfully seek reinstatement in Georgia.

We further find and conclude that Respondent Duru has failed to prove by clear and convincing evidence, as required by Rule 2.17(b)(4) of the Rules of the Supreme Court of the State of Hawai'i, that he is rehabilitated from the ethical conduct underlying that disbarment, particularly his engaging in discussion of legal matters with a licensed attorney and the attorney’s client, his failure to report in his petition criminal and civil litigation in which he was involved during his disbarment, and his failure to timely act with initiative regarding his outstanding student loan obligations. 

The George Supreme Court's 2000 order notes

Duru admits that he pled guilty to three counts of False Tax Returns, in violation of 26 U.S.C. § 7206 (1), and two counts of Structuring Currency Transactions, in violation of 31 U.S.C. § 5324 (a) (3) and (c) (2), in the United States District Court for the Northern District of Georgia, which accepted Duru's plea on March 23, 2000. By entering the guilty plea to felony violations, Duru admits that he has violated Standard 66 (conviction of any felony or misdemeanor involving moral turpitude shall be grounds for disbarment) of Bar Rule 4-102 (d) and requests that the Court accept his voluntary surrender of license. We have reviewed the record and agree to accept Duru's petition for the voluntary surrender of his license, which is tantamount to disbarment.

Pacific Business News reported his 2005 reciprocal disbarment in Hawai'i. (Mike Frisch)

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

Interim Suspension For Attorney Who "Respectfully Refuse[d] To Answer Any Questions"

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department of an attorney admitted in 1961.

In September 2016, a member of the law firm where respondent had been employed since April 2015, filed a complaint with the Attorney Grievance Committee in which he alleged that, inter alia, respondent had admitted to misappropriating "probably $250,000" from an estate for which he served as executor. Respondent's employment was immediately terminated. During a subsequent telephone conversation, respondent purportedly stated that he took the funds because of his deceased wife, who had been ill, and a large tax bill he received for failing to pay Unincorporated Business Tax.

The law firm conducted an investigation of the files maintained by respondent while he was employed with the firm which revealed "substantial financial irregularities in matters where [respondent] acted as a fiduciary and had sole control over trust and estate bank accounts." The law firm then retained the services of a forensic auditing firm to audit the matters in which respondent served as a fiduciary. The audit revealed that respondent had misappropriated over $1.3 million from nine estate and trust accounts.

The audit also disclosed an additional $2,053,500 in "questionable" transactions for which there was insufficient documentation to determine if these monies were also misappropriated by respondent.

By letter dated November 7, 2016, the Committee requested respondent submit a written answer to the law firm's complaint, a copy of which was enclosed along with the audit report and documents and records related thereto.

On November 17, 2016, respondent's counsel wrote the Committee advising that respondent was asserting his Fifth Amendment privilege and declined to respond to the allegations in the complaint because he had been informed that he was the subject of a criminal investigation by the New York County District Attorney's Office.

Thereafter, the Committee served respondent with a judicial subpoena requiring him to appear for an examination under oath. By letter dated November 29, 2016, signed by both respondent and his counsel, respondent advised the Committee that were he to appear for his deposition as directed he would invoke his Fifth Amendment privilege and respectfully refuse to answer any questions regarding the allegations at issue.

The Committee has now moved for an order, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9(a)(5), immediately suspending respondent from the practice of law until further order of this Court. Respondent consents to his interim suspension.

(Mike Frisch)

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

Reprimand For "Sloppy And Careless" Bankruptcy Representation

The Massachusetts Board of Bar Overseers publicly reprimanded an attorney for incompetent handling of a bankruptcy matter that involved property jointly owned by divorced spouses.

The summary from the Board's web page

On November 26, 2012, the respondent, on behalf of a debtor, filed a voluntary petition for relief under Chapter 13 of the bankruptcy code, together with schedules and a disclosure of attorney compensation. At the time he filed the petition, the respondent had experience representing debtors in simple bankruptcy matters but he had never previously filed a case where the debtor co-owned real property with a former spouse and he had never previously filed a motion to approve the sale of real estate. The respondent did not seek assistance from more experienced counsel.

Schedule A of the petition reflected that the debtor owned real estate subject to two mortgages. The debtor’s ex-wife also had an ownership interest in the property. Under the terms of a divorce agreement, the ex-wife was both a co-owner of the property and a creditor of the debtor. The respondent failed to identify the ex-wife as co-owner in Schedule H or list the ex-wife as a creditor in Schedules D, E or F, as required in the circumstances.

On May 14, 2015, the respondent filed a motion with the bankruptcy court to approve the sale of the property. The property was listed with a real estate brokerage firm that, at the time, employed the ex-wife as a salesperson in one of its offices. The firm waived any interest in any commission that would otherwise be due as a result of a sale. The motion did not comply with local procedural rules, as it failed to include an affidavit of “disinterestedness.” As a result, the motion was denied without prejudice.

The respondent refiled the motion on May 27, 2015, with an affidavit. The motion again failed to comply with local rules because the affidavit did not include certain required form language and did not attest that the signatory was a duly authorized agent of the firm. As a result, the motion was again denied without prejudice.

On June 29, 2015, the respondent filed an emergency motion to approve the sale of the property with a supporting affidavit, this time purporting to be signed under the pains and penalties of perjury by the owner of the firm. Before filing the June 29, 2015 motion and affidavit, the respondent had prepared the affidavit and provided it to his client to obtain the signature of the affiant. Later, the signed affidavit was delivered to the respondent’s office and slipped under his door. The respondent did not inquire of his client whether he had left the document under his door and did not confirm with the affiant that he had in fact signed the document. It is unknown who delivered or signed the affidavit, but the alleged affiant did not.

On May 7, 2015, after the bankruptcy petition had been filed, the debtor, with the assistance of the respondent, entered into a post-divorce “Agreement for Judgment” with his ex-wife in connection with an alleged child support arrearage. The respondent did not seek approval of the bankruptcy court before advising his client to enter into the agreement for judgment and did not otherwise contemporaneously disclose the agreement to the bankruptcy court, as required by 11 U.S.C., § 329(a).

As a result of the respondent’s lack of diligence, additional hearings were required, including a hearing as to the forged signature and proceedings for relief in connection with the probate court judgment dated May 7, 2015, at a cost to the estate. The respondent filed a motion to withdraw his appearance as counsel for the debtor on July 7, 2015, which was allowed on or about August 11, 2015. The debtor retained successor counsel.

On August 21, 2015, the court found that the errors by the respondent constituted legal work that was “sloppy and careless.” The respondent was ordered to, and did, disgorge the legal fees that were paid to him in the bankruptcy case. The respondent also disclosed all material information to the trustee and agreed to make the estate whole for any additional costs caused by the respondent.

(Mike Frisch)

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

Former Prosecutor Gets Second Disbarment

Reciprocal disbarment has been ordered by a justice of the Massachusetts Supreme Judicial Court based on the imposition of that sanction in Pennsylvania.

As in Massachusetts, the duly-notified respondent did not appear at the disciplinary proceedings in Pennsylvania, and therefore the facts of his alleged misconduct were deemed admitted. The respondent had been an assistant district attorney in the Commonwealth of Pennsylvania. He was fired for documented instances of serious misconduct in his professional duties in three separate matters. Among other things, the respondent:

1) met intentionally, and alone, with witnesses whose mental competence was in question, against explicit court order not to do so, and discussed their testimony at length prior to their appearance in court, in a case involving sexual abuse against victims with mental impairments, ultimately resulting in the Commonwealth of Pennsylvania being unable to pursue some of the criminal charges; 2) met with a witness who was represented by counsel, without counsel's knowledge or consent, and discussed her intended testimony with her, resulting in the respondent being disqualified from representing the Commonwealth of Pennsylvania in the matter; and 3) in another case, deliberately mischaracterized and misrepresented the evidence, including repeatedly making references to evidence which he knew did not exist, and attempted to intimidate both the defendant and his counsel, by repeated instances of "yelling, menacing, and pointing in their faces" while court was in session.

Sanction per Justice Lenk

In deciding the appropriate sanction to impose, the Pennsylvania disciplinary committee noted that it had found no instances of a similar case in Pennsylvania. Given the severe nature of the misconduct, however, -- "repeated dishonest conduct, misrepresentation to the court and lack of respect for the court in his capacity as a prosecutor -- the committee concluded that the respondent's misconduct "was particularly harmful to the public's confidence in the legal system," and that nothing short of disbarment would protect the public and the legal profession. The committee also noted the additional aggravating factor of the respondent's continual refusal to participate in the disciplinary proceedings against him, notwithstanding having received notice in hand.

I agree completely with this reasoning and this result.

The Titusville Herald reported on the Pennsylvania action. (Mike Frisch)

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

Friday, February 24, 2017

Utah Supreme Court Clarifies Law Of Entrusted Funds

The Utah Supreme Court has issued its second significant decision on the law of entrusted funds in the past few days.

We hold that, for a presumption of disbarment, the [Office of Professional Conduct] must prove knowledge at the time of the transfer or withdrawal in cases where an attorney’s bank account dips below the amount that is supposed to be held for the attorney’s clients. Accordingly, we hold that the OPC failed to meet its burden of proof regarding the operating and trust account shortfalls. We also hold, however, that Mr. Bates knowingly failed to safeguard client funds. Suspension is the presumptive sanction, and we affirm the district court’s order for a five-month suspension in light of the mitigating factors.

The attorney had opened his own practice within six months of his admission.

The firm flourished and expanded for a few years but hit a bump

Just six months after beginning to practice law, Abraham Bates started his own law firm, Wasatch Advocates. Mr. Bates solely owned and operated Wasatch Advocates. Although the firm started with only six employees, its clientele rapidly expanded, and, within a single year, it employed thirty-seven people to meet the growing workload. In order to deal with the increasing expenses, Mr. Bates established lines of credit to maintain enough money in the firm’s operating account. He regularly made draws against these lines of credit.

Although he managed the operating and trust accounts on his own with the assistance of his receptionist in the beginning, the accounting became more complicated as the firm’s income and expenses quickly grew. Mr. Bates retained a certified public accountant to perform monthly reconciliations, auditing, and tax work. Later, as the practice expanded, Mr. Bates hired an accounting firm to do more frequent reconciliations and to train Mr. Bates and his staff in accounting procedures. Despite this, he noticed that there were still accounting issues, such as his receptionist mistakenly depositing client money into the operating account and earned fees into the trust account. At the accounting firm’s suggestion, a chief operating officer was also hired to help with the firm’s accounting practices. However, even after taking these corrective measures, the operation of the firm’s accounts remained chaotic.

In January 2012, Wasatch Advocates imploded due to changing economic circumstances and the abrupt departure of a significant proportion of Mr. Bates’ staff. Around the time of the firm’s dissolution, John Liti, a former client, filed a bar complaint against Wasatch Advocates resulting in an OPC investigation. During the investigation, the OPC focused heavily on Mr. Bates’ accounting practices and identified possible violations in other client matters. The only matter at issue on this appeal is the F.A. Apartments matter. The OPC alleges that Mr. Bates’ actions amount to intentional misappropriation of F.A. Apartments’ funds and merit disbarment in two different instances: his management of F.A. Apartments’ funds held in the trust account and his management of a retainer paid by F.A. Apartments that was held in the operating account.

The duty

 Attorneys occupy a position of trust because their clients rely on their honesty, skill, and good judgment. When an attorney intentionally misappropriates a client’s funds, it undermines the public’s trust in the entire legal profession and discredits the legal system in general...

In order to protect the “foundation[s] of . . . trust and honesty that are indispensable to the functioning of the attorney client relationship,” disbarment is usually appropriate in cases of intentional misappropriation of client funds...

However, not all misappropriation cases are intentional. To receive a presumption of disbarment, an attorney must “knowingly” misappropriate a client’s funds “with the intent to benefit the lawyer or another or to deceive the court.” UTAH SUP. CT. R. PROF’L PRACTICE 14-605(a)(1). On the other hand, if an attorney negligently misappropriates a client’s funds, the presumptive sanction is a public reprimand. Id. 14-605(c)...

For a presumption of disbarment, the OPC must establish that the attorney knowingly engaged in misconduct at the time the misconduct occurred.

Here, the evidence established knowing commingling but not intentional misappropriation

The evidence at trial demonstrated that, despite hiring qualified accountants and a chief operating officer to help him, Mr. Bates was grappling with significant organizational difficulties associated with a quickly growing business and his own lack of experience. In short, as the district court stated, “Bates was in way over his head . . . on a scale which a more experienced lawyer would have avoided.”

The evidence in this case corroborates Mr. Bates’ testimony at trial, supporting the inference that he unwittingly used his client’s funds for the firm’s payroll. Because he was not aware he was using client funds when the transfer was made, his actions were not knowing. Rather, they were negligent, with a presumptive sanction of a public reprimand...

We hold that the OPC failed to meet its burden of proof that Mr. Bates knowingly misappropriated his client’s funds. We do, however, hold that he knowingly commingled client funds and that he created the risk of injury to his client by later using F.A. Apartments’ money. Suspension is the presumptive sanction for Mr. Bates’ actions in commingling client funds without the intent to benefit himself or another.

Our post on the earlier decision is linked here. (Mike Frisch)

February 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, February 23, 2017

Disbarment For Theft Conviction

The Maryland Court of Appeals issued an opinion explaining its earlier-imposed order of disbarment of an attorney convicted of felony theft from a client.

In early 2011, Dr. Tsai hired Respondent to assist him in his claim for disability benefits from his insurer, Penn Mutual (the "Penn Mutual Case"). Sweitzer, slip op. at 2. Respondent agreed to the representation for a flat fee of $4,000, which Dr. Tsai paid. Id. Dr. Tsai’s claim was premised on the medical opinion of Dr. Gerwin, who eventually reversed his medical opinion and concluded that Dr. Tsai was not totally disabled. Id. As a result, Respondent urged Dr. Tsai to settle the Penn Mutual case and pursue a possible claim against Dr. Gerwin. Id.

Meanwhile, Nu Image, a film company, filed a copyright claim against Dr. Tsai, alleging that he illegally downloaded movies from the internet (the "Nu Image Case"). Id. Respondent also represented Dr. Tsai in that matter for a flat fee of $1,000, which Dr. Tsai paid. Id. at 2-3. When Respondent informed Dr. Tsai that Nu Image indicated its willingness to settle the case for $2,000, Dr. Tsai sent Respondent $2,000 to settle the case. Id. at 3. Respondent did not settle the case, nor did he return the $2,000 to Dr. Tsai. Id. at 7. Dr. Tsai employed another attorney to settle the Nu Image Case but was unable to recover his $2,000 from Respondent. Id.

In early 2012, Respondent informed Dr. Tsai that Penn Mutual would settle its case for $40,000-$50,000. Id. at 3. Eventually, Dr. Tsai agreed to settle for $54,000, and the settlement agreement was executed on May 21, 2012. Id. Per the terms of the settlement agreement, Penn Mutual sent Respondent the settlement funds. Id. The disbursement sheet Respondent sent to Dr. Tsai indicated that Dr. Tsai was to receive $54,881.93. Id. Over the following months, Dr. Tsai made "repeated attempts to get his settlement proceeds" from the Penn Mutual Case. Id. During that time, Respondent exhibited a "collection of excuses and [a] litany of impediments that allegedly prevented him from delivering Dr. Tsai’s funds." Id. Respondent never paid Dr. Tsai the $54,881.93 in settlement proceeds from the Penn Mutual Case. Id. at 4-7.

Sanction

In the present case, Respondent exhibited intentionally dishonest behavior in committing theft against his client. Indeed, Respondent was convicted of felony theft of his client’s funds, an act that was perpetuated by Respondent’s falsehoods and misrepresentations made to his client. Despite having the opportunity to do so, Respondent did not present to the hearing judge any facts or circumstances that arguably would mitigate his conduct, let alone did he offer to the hearing judge or, for that matter, this Court, compelling circumstances that would lead us to impose a lesser sanction. Respondent’s misconduct is deserving of the ultimate sanction.

The court entered its order after the attorney failed to appear for oral argument. (Mike Frisch)

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

Decision Of "Limited Precedential Value" Has Some Resonance

The District of Columbia Court of Appeals reciprocally disbarred an attorney convicted of tax offenses and disbarred in New York.

Mr. Lifshitz pleaded guilty to one count of filing a false personal tax return in violation of N.Y. Tax Law § 1804 (b) and accordingly notified the New York Clerk of the Court of his resignation on November 20, 2008. Mr. Lifshitz was disbarred on October 1, 2009, effective nunc pro tunc to November 20, 2008, the date of his conviction.

He has now been reinstated in New York but had not reported his disbarment to D.C. as required by court rule.

New York was aware that he had failed to report but credited his explanation in granting him reinstatement.

The court here found no grave injustice in disbarment

Mr. Lifshitz argues that reciprocal discipline in his case would be a “grave injustice” because if he were disbarred, then he would have to wait until 2021—thirteen years after his initial disbarment in New York—to apply for reinstatement in the District of Columbia. We have previously held that when, as here, an attorney has never practiced, has no clients, and no intent to practice in the future in the District of Columbia, assertions of “grave injustice” regarding the reciprocal discipline doctrine are “largely meritless.” In re Fuchs, 905 A.2d 160, 164 (D.C. 2006) (“This argument is largely meritless as respondent argues grave injustice and then stipulates that he has never practiced in the District of Columbia, has no relationship with any counsel in the District of Columbia, has no clients or office in the District of Columbia and has no plans to practice law in the District of Columbia.”). Accordingly, the grave injustice exception does not apply in Mr. Lifshitz’s case, and thus, we impose reciprocal discipline.

The court imposed the sanction effective in 2009 notwithstanding the attorney's failure to report the New York sanction

Similar to the respondent in In re Glasco, Mr. Lifshitz never practiced in the District of Columbia and thus his failure to report was not a calculated feat designed to illegally practice in the District. Indeed, as he indicates, in October 2009 he was administratively suspended from the practice of law due to his nonpayment of dues. Moreover, the New York Departmental Disciplinary Committee, which was aware of this disciplinary matter in the District of Columbia, concluded that Mr. Lifshitz “has demonstrated that he possesses the requisite character and general fitness to practice law.” That Committee stressed Mr. Lifshitz’s moral transformation and newfound goals to set up a pro bono practice.

He is thus immediately eligible to seek reinstatement in the District of Columbia.

In re Glasco  (decided in 1999) was my case.

There the court granted nunc pro tunc treatment to a California disbarment that , like here, came to light in D.C. only when the attorney sought reinstatement in the court that had imposed the sanction.

The court quoted the Board on Professional Responsibility

While Bar Counsel is correct that sound policy reasons support encouraging attorneys to notify this jurisdiction of foreign sanctions, according retroactive effect to Respondent's disbarment should not have a detrimental effect on this policy goal.   Respondent was solely responsible for bringing his conviction and disbarment to Bar Counsel's attention;  although the notice was filed late, Respondent stated that he believed the notice had been provided earlier by the California State Bar, and he did not exploit the lack of notice by using his District of Columbia license to practice.  

For these and the other unique circumstances presented by this case, it will have, as the Board noted, limited precedential value.

Limited but apparently the precedent still has some vitality.

I well remember the Glasco oral argument and, in particular, the close questioning from now-Senior Judge Inez Reid.

Judge Reid always came to oral argument superbly well-prepared and knowing exactly what questions needed answers.

A great judge. (Mike Frisch)

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

Wednesday, February 22, 2017

Utah Supreme Court: "Not All Misappropriation Is Created Equal"

The Utah Supreme Court affirmed a suspension for dishonesty in a case where an attorney had bartered legal services with two clients for home improvements and deprived his firm of its fees.

Attorney Joseph Barrett exchanged legal services for construction work on his home and yard, thereby depriving his law firm, Snow, Christensen & Martineau P.C. (SCM), of the legal fees accrued from those cases. The district court suspended Mr. Barrett from the practice of law after it concluded that Mr. Barrett’s conduct violated rule 8.4(c) of the Utah Rules of Professional Conduct. The Office of Professional Conduct (OPC) appealed, urging us to hold that the intentional or knowing misappropriation of firm funds, like the intentional or knowing misappropriation of client funds, creates a presumption of disbarment. Mr. Barrett cross-appealed, arguing that the district court’s factual findings were clearly erroneous and a result of bias and that suspension was too harsh a sanction. We affirm the district court in part, reverse in part, and uphold the sanction of suspension.

The story

The misconduct allegations in this case stem from three independent situations: two involving legal services Mr. Barrett provided to clients in exchange for construction work on his home and yard, and one involving Mr. Barrett’s reimbursement request for a phone call with a potential client.

With respect to the first situation, Mr. Barrett began providing legal services to Richard Williams in June 2007 when Mr. Williams retained SCM and Mr. Barrett to represent his son in a criminal matter. Over the next three years, Mr. Barrett worked on that case, a collection matter for Mr. Williams’s company, and new criminal matters for Mr. Williams’s son. In June 2010, Mr. Barrett requested that the firm write off over $7,000 from Mr. Williams’s account. Around that time, Mr. Williams’s brother-in-law began building a wrought-iron railing for Mr. Barrett’s home, but he was unable to finish it. In July 2010, Mr. Williams wrote a check to Mr. Barrett for $3,500, which Mr. Barrett deposited into his personal account. According to Mr. Barrett, Mr. Williams proposed that his brother-in-law work on the railing as a “kind gesture” and Mr. Williams insisted on paying Mr. Barrett $3,500 so he could hire someone else to finish the job. Mr. Barrett claims that he wrote off Mr. Williams’s bills as a professional courtesy so Mr. Williams would continue to refer clients to Mr. Barrett and because he believed it was the compassionate thing to do. But by 2012, of the $8,612.07 that SCM billed to Mr. Williams’s account, Mr. Barrett had written off $7,912.07. And Mr. Williams had paid SCM only $700 while paying Mr. Barrett personally $3,500...

The second situation involves legal services Mr. Barrett provided to David Petersen. Mr. Barrett began legal work for Mr. Petersen in November 2010, when Mr. Petersen hired Mr. Barrett’s firm to represent him in a custody case. Several months later, Mr. Petersen started building a shed at Mr. Barrett’s home. Shortly afterward, Mr. Barrett requested that the firm write off about half of Mr. Petersen’s bill. Over the next couple of months, Mr. Barrett requested that SCM write off the rest of Mr. Petersen’s bill, and the firm refunded his $2,500 retainer. Mr. Barrett paid Mr. Petersen approximately $5,000 for the shed, which had cost Mr. Petersen $15,170.63 to build. In all, Mr. Barrett wrote off $8,913.54 from Mr. Petersen’s account at SCM. Mr. Barrett stated that he wrote off Mr. Petersen’s bills and refunded his retainer because he believed Mr. Petersen would be unable to pay and needed the money to visit his son. Mr. Petersen, however, testified that he had an agreement with Mr. Barrett to build the shed in exchange for legal services.

The third and final situation arose in January 2012 when Mr. Barrett requested reimbursement for a business development lunch in California that he did not attend. Mr. Barrett’s wife attended the lunch, and Mr. Barrett stated that he discussed business matters with a potential client over a phone call that took place during the lunch.

The firm confronted him over billing issues and reported him to the Bar.

The district court found misconduct and ordered suspension.

The district court concluded that Mr. Barrett’s actions constituted “conduct involving dishonesty, fraud, deceit, or misrepresentation,” but, given that Mr. Barrett did not misappropriate client funds, concluded that “disbarment . . . [was] not mandated in this case.” After considering the duty that Mr. Barrett violated and Mr. Barrett’s mental state, and weighing the aggravating and mitigating circumstances, the court imposed a 150-day suspension, which both parties appeal.

The court here rejected the attorney's vigorous attack on the district court's findings.

As to sanction

We have frequently stated that intentional or knowing misappropriation of client funds creates a presumption of disbarment under this section, noting that “it strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself.” In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997); see also In re Discipline of Corey, 2012 UT 21, ¶ 21 & n.9, 274 P.3d 972. In its brief to this court, the OPC asked us to extend this presumption to all acts of intentional or knowing misappropriation of firm funds. At oral argument, the OPC pressed the stronger position that we have already recognized that misappropriation of firm funds is a presumptively disbarrable offense, citing our opinion in In re Discipline of Ince, 957 P.2d 1233 (Utah 1998).

In Ince, we imposed disbarment after finding that the attorney misappropriated money from both his firm and his clients, thereby engaging in criminal conduct and actions that “seriously adversely reflect on [the lawyer’s] fitness to practice law.” Id. at 1237. We noted that whether “the majority of the money [the attorney] stole came from his law firm rather than from a client neither changes the essential nature of his conduct nor makes it any less serious,” and we therefore adopted the position that intentional misappropriation of firm funds merits disbarment. Id. But that language was merely dicta, which we now reject, noting that Ince’s holding relied on facts that are not applicable to Mr. Barrett’s case.

...we clarify today that not all misappropriation is created equal. Misappropriation of firm funds does not “undermine the foundations of the profession and the public confidence” in the same way that misusing client funds does. Id. A presumption of disbarment for intentional or knowing misappropriation of client funds is necessary to protect the “foundations of the profession and the public confidence that is essential to the functioning of our legal system,” and we have placed it among the top of our sanctionable offenses as a way of putting attorneys on notice that such actions are “always indefensible.” Id. But the same policy concerns do not arise where no client money is at issue, and we want to leave no doubt in stating that intentional or knowing misappropriation of client funds is intolerable. Thus, we will not extend Ince to mean that where an attorney has misappropriated firm funds but not client funds, the presumption of disbarment must apply. In this case, Mr. Barrett did not misappropriate client funds. We therefore decline to extend Ince’s ruling to hold that disbarment is the appropriate sanction whenever an attorney misappropriates firm funds, and we find that Mr. Barrett’s knowing and intentional misappropriation of firm funds does not fall within rule 14-605(a)(3).

Thus no "death penalty"

Although Mr. Barrett’s misappropriation of firm funds is not deserving of the “professional death-sentence” of disbarment, Corey, 2012 UT 21, ¶ 40, we hold that suspension is appropriate. Intentional or knowing misappropriation of firm funds is a serious offense, and we conclude that Mr. Barrett’s intentional and knowing mental state, combined with the actual injury caused to his firm from losing the client funds that were due to it, along with the lack of compelling mitigating factors, merits a serious sanction. We therefore agree with the district court that the aggravating and mitigating factors do not justify deviating from suspension, and we uphold the court’s order of a 150-day suspension.

However, we part ways with the district court in two respects. First, we do not find that Mr. Barrett’s repayment of misappropriated funds constituted the mitigating circumstance that there has been a “timely good faith effort to make restitution.”...Mr. Barrett repaid SCM only after the firm accused him of misconduct, not as a result of self reporting. Therefore, we will not consider his restitution as a mitigating factor.

Second, the court found that there was no misconduct in billing the California lunch.

...there is no evidence that SCM’s policies prohibited Mr. Barrett from requesting reimbursement for a meal that he did not attend when he had spoken to the potential client on the phone. And in the absence of evidence that Mr. Barrett intentionally deceived the firm as to his presence at the lunch, we do not believe his conduct rises to the level that a sanction is necessary.

(Mike Frisch)

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

Attorney Disbarred For Sex Abuse Of Boy Scouts

Automatic disbarment as a consequence of a felony conviction was imposed by the New York Appellate Division for the Second Judicial Department.

Pursuant to Judiciary Law § 90(4)(a), the respondent was automatically disbarred and ceased to be an attorney upon his conviction of a felony.

The Poughkeepsie Journal reported on the trial and verdict

Former Dutchess County Legislator Michael Kelsey will wait two months to learn his fate after being found guilty on all charges in his sexual abuse case.

A St. Lawrence County jury had deliberated for close to 10 hours over the course of two days before finding him guilty of the five charges related to his sexual abuse of two Boy Scouts...

Justice was served today,” the mother of one of Kelsey’s victims said after hearing the verdict. She thanked each and every juror as they left the courtroom.

Kelsey, a 38-year-old former assistant scoutmaster, was convicted of first-degree sexual abuse and first-degree attempted sexual abuse, both felonies, along with forcible touching, and two counts of endangering the welfare of a child, all misdemeanors. The crimes occurred during a Boy Scout camping trip Aug. 13-20, 2014.

“I feel proud of these boys,” one of the mothers told the Journal after the verdict was read. “It was a very difficult thing that they had to do. I am happy with the outcome to show the boys what they did was the right thing. These boys showed truthfulness, honesty and, above all, courage.”

St. Lawrence County District Attorney Mary Rain applauded the two teens’ decision to come forward with the allegations.

“It was very difficult for these two young men to come up against such a force in the community, who had such great respect. But they did come forward,” Rain said. “They had adults that believed in them. They had the (St. Lawrence County District Attorney’s Office) and police that also believed in them. I want other young victims to know if you come forward, we will assist you with counseling or prosecution or both.”

Rain said she will be pursuing the maximum sentence in the case.

“The defendant has persistently abused these boys physically as he did on the hiking trip but he continued to do so during motion practice and during the trial itself," Rain said. "He was put in a position of great responsibility for the lives of young men and he took advantage of that. And for that we want to send a message to other people that want to use this platform… as a way to abuse (children).”

The press had sought comments from defense attorney Richard Portale, but he was unavailable after the verdict.

Kelsey’s victims were two 15-year-old boys in 2014. The young men, now 16 and 17, testified they were on a camping trip with Kelsey and that he touched one of them and attempted to touch the other while they were sleeping.

Kelsey, an attorney, gave his own opening statement. He also testified Tuesday saying he believed one of the boys had made “advances” at him.

Rain, in her closing argument Wednesday, tore into Kelsey’s explanations and claims. Like defense attorney Portale, she asked jurors to look at the credibility of the witnesses on both sides of the case.

Rain dismissed Kelsey’s claims as “bizarre, ridiculous and nonsense.” She added Kelsey “cloaked himself” in his religion, his reputation as a public servant. She said he also used various excuses for his actions.

The boys and their parents were in the courtroom Thursday. The boys’ mothers teared up after the verdict was announced. After the verdict, one of the fathers of the two boys read a written statement on behalf of the family.

"We are so proud of our boys for bringing this forward and preventing this from happening to other boys," the father said. “We’re also extremely thankful to District Attorney Mary Rain for the masterful job she did prosecuting this case.”

The father also thanked the entire District Attorney’s Office, state police investigators and the families’ state police child advocacy officer.

To the Journal, the father said: “Troop 95 suffered greatly from this as well. We are still grateful for the organization and hoping that it can recover and continue to provide boys in the Hudson Valley with a wonderful experience.”

Evidence in the trial included a recording of a phone call where the former legislator can be heard saying “I reached for him in an area I shouldn't have,” referring to the teenager’s genitals, and, “He batted my hands away.”

One the teenagers later testified to fending off the advances, including batting Kelsey's hands away, zipping up his sleeping bag, and trying to wake up a fellow Scout sleeping nearby; the Scout misunderstood him and went back to sleep. The teen said Kelsey apologized the next day, saying he does "stupid things sometimes.”

The teenager also testified that Kelsey had tried to touch his genitals on an earlier date. He said, while playing a game in a hot tub in which Kelsey tried to touch his nipples, he covered up his chest, only to have Kelsey touch his groin instead. That was the first time Kelsey's behavior had "raised any alarms" with him, the teen said.

The other victim testified that, while the Scouts slept in Kelsey’s Volkswagen Jetta on the first night of the trip, the former legislator rubbed his genitals “for 10-20 minutes.”

On Tuesday, Kelsey testified he did not touch either Scout and said he believed one of the teens made "advances" at him. He detailed an incident in which he woke up to find one of the teens asleep on his chest. Kelsey said he apologized to the teen the next day because he didn’t feel about him “in that way.”

When the teen took the stand last week, he said his relationship with Kelsey was not “romantic.”

Kelsey admitted to texting both boys multiple times on separate occasions, but denied grabbing one of the victims' genitals in a hot tub.

Both victims admitted to reaching out to Kelsey several times after the August incident. They also admitted to withholding some information from investigators initially, including a game involving removing articles of clothing during the drive to the campsite.

When asked by Rain about why he did not immediately tell an adult, one victim said, “I just wanted everything to go back to normal.” He said he also didn’t think anyone would believe him because Kelsey is “such a great guy and so many people look up to him.

“Everybody liked (Kelsey),” one mother said after the trial. “It took a lot of courage for these boys to stand up and they did. They prevented this from happening to other boys.”

Another Scout who was on the August trip said Kelsey slept alongside the Scouts each night of the trip, which Rain said was a violation of Scout youth protection rules.

Kelsey and another assistant scoutmaster, Thomas Reilly, argued this point. Reilly said that the rules are not as clear for the elite Boy Scout group known as Venture Crew, and Kelsey said that his “interpretation” of the guidelines meant the rule only applied to tents.

Once a respected Dutchess County legislator and rising star in the local Republican Party, Kelsey lost his bid for reelection in September’s Republican primary election to Sandra Washburn. Kelsey was permanently suspended from the Boy Scouts of America in October.

Kelsey was sent without bail to a holding cell in St. Lawrence County Jail. He had been released on bail since his arrest in December 2014 by state police in Wappinger.

Rain asked for remand, saying that Kelsey should be kept under close supervision since he mentioned in his testimony that he attempted suicide after the allegations surfaced.

The Poughkeepsie Journal also reported on the sentencing with a link to the victim impact statements. 

Kelsey, a former Dutchess County legislator convicted of sexual abuse in a case involving two Boy Scouts, was sentenced to seven years in prison and 10 years post-release supervision Friday.

“Every Boy Scout … trusted Mike with our lives,” said one of the young men, according to an official court transcript of the sentencing obtained by the Poughkeepsie Journal. “Not only us, but our parents trusted him to take us on these amazing trips, have fun, make memories and bring us home safely.”

(Mike Frisch)

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

Client Security Payment Should Fall On Offending Attorney

The Wisconsin Supreme Court accepted an attorney's voluntary license revocation for misconduct in multiple matters

We revoke Attorney Gegner's Wisconsin law license effective the date of this order. The scope of his misconduct is vast and troubling. It is not necessary to set forth the particular factual allegations of every instance of misconduct in every client matter involved in this case. Doing so would be overly cumbersome, given that the amended complaint alone alleges almost four dozen misconduct counts, described in some 231 separately numbered paragraphs. A synopsis of the information contained in the attachments to Attorney Gegner's petition for revocation will provide a sufficient description of the nature and scope of his professional misconduct.

As stated above, the OLR's amended complaint in this disciplinary proceeding, attached as Appendix A to the revocation petition, sets forth 47 counts of misconduct involving 11 different clients and an allegation of practicing law after suspension.

The court quoted from the referee's findings

The facts established by OLR portray a repeated pattern of serious misconduct from 2011 into 2015. The facts establish a law practice that was spiraling out of control. Mr. Gegner would fail to communicate with his clients and would fail to perform the legal work and services that were necessary. He would at times misrepresent the status of his work to both the clients and court. He misused and converted client funds and failed to provide any accounting. The record establishes numerous aggravating factors in this case and based on the Petition for Revocation by Consent, no mitigating factors have been shown.

"[T]o make matters worse," the referee noted, "there are at least 13 counts relating to Mr. Gegner's obstinate failure to cooperate with OLR's investigations...

Thus

We agree with the referee that Attorney Gegner's petition for consensual revocation should be granted. Attorney Gegner has engaged in a widespread pattern of serious professional misconduct that has harmed his clients. He is either unwilling or unable to conform his conduct to the standards that are required to practice law in this state. Anything less than a revocation of his law license would unduly depreciate the seriousness of his misconduct, fail to protect the public and the court system from further misconduct, and inadequately deter similar misbehavior by other attorneys. Revocation is clearly deserved.

The court ordered restitution to several clients and noted

We make one further observation (and ruling) on the issue of restitution. In the OLR's December 29, 2016 supplemental restitution statement, the OLR stated that it would not seek restitution for a $1,000 payment to Attorney Gegner's former client, Michelle A., which the Fund [for Client Protection] approved on December 14, 2016. The OLR explained that, notwithstanding this payment by the Fund, the OLR's investigation did not identify a reasonably ascertainable amount of restitution to seek in the Michelle A. matter, and therefore it had not sought restitution in this matter, and would not do so now. Mindful that the Fund is financed by State Bar of Wisconsin members' annual fees, we fail to see why the $1,000 payment by the Fund to Michelle A. should be financed by members of the bar who have not engaged in misconduct, as opposed to Attorney Gegner, who has conceded his misconduct in the Michelle A. matter. We acknowledge that the Fund's $1,000 payment to Michelle A. was not addressed in the consensual revocation petition or in the referee's report, but we cannot envision any scenario in which Attorney Gegner could avoid reimbursing the Fund for this payment. We therefore order Attorney Gegner to reimburse the Fund in this amount. To the extent that Attorney Gegner disagrees with this court's ruling on this point, he is free to move the court to reconsider its ruling. 

(Mike Frisch)

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

Dangers Of Crack Cocaine

A three-year suspension with credit for time served was imposed by the Pennsylvania Supreme Court for an attorney convicted of possession and use of crack cocaine and possession of a firearm.

The attorney had become addicted to crack cocaine over a  4 1/2 month period and purchased the substance from a former client who was subject to an ongoing  federal investigation. The supplier was not a current client and there was no exchange of drugs for legal services. 

The firearm was a family heirloom that he had received from a deceased relative which was in his possession at the time of his arrest.

He was placed on probation in the criminal case and has tested drug-free.

He was fully cooperative in the disciplinary case, expressed remorse and has been gainfully employed in a family business.

The case is In re Guy Amatangelo and can be accessed by following the link above. (Mike Frisch)

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

Tuesday, February 21, 2017

Failure To Adequately Respond To Ex-Wife's Complaint Leads To Interim Suspension

An interim suspension has been ordered by the New York Appellate Division for the First Judicial Department based on a complaint filed by the attorney's ex-wife.

In November 2015, the Departmental Disciplinary Committee, now known as the Attorney Grievance Committee (Committee), received a complaint from respondent's former wife, in which she alleged that respondent had failed to comply with a final judgment of divorce issued by a Florida court which directed him to, inter alia, pay her monthly alimony and child support totaling $3,750.

Between December 2015 and January 2016, the Committee sent respondent a series of letters and emails requesting that he submit a written answer to the complaint and include copies of his most recent state and federal income tax returns. In February 2016, respondent, who claimed not to have received the initial letters the Committee sent to his registered address, submitted his answer in which he asserted that the Florida judgment was not valid and enforceable against him because he had never resided in Florida, nor had he been properly served with process, and thus, the court lacked personal jurisdiction over him, and that his ex-wife's complaint involved legal issues, not disciplinary issues, more appropriately addressed by a New York court.

On March 3, 2016, respondent appeared before the Committee for an examination under oath at which he testified, as relevant herein, that he uses his OCA registered address only to receive mail and does not have an actual office; in 2011 he lost his job as an intellectual property attorney due, in part, to downsizing as well as professional difficulties which he attributed to marital discord; he has not been able to find employment since then despite continuous efforts on his part to do so; and he has not had a regular residence since November 2015 because he can no longer afford to pay rent and depends on friends to provide him with temporary, rent free housing.

Respondent stated that before moving to Florida, the wife filed for child support in New York (Westchester County) which the court awarded in December 2011 ($117 per month). Also in December 2011, respondent, with the assistance of pro bono counsel, commenced a divorce action in Westchester County seeking custody of his three children. However, the record is unclear as to whether respondent pursued this action. Respondent also testified that he had paid some child support but had not done so since 2015 due to lapses in his income and financial problems, namely, he had amassed significant debt and owed back taxes.

By an April 4, 2016 email, respondent provided a supplemental submission in which he asserted that, inter alia, he was not bound by the Florida judgment and had not waived personal jurisdiction, his Florida attorney had a conflict of interest, and he challenged whether there was proper service of process. Respondent's submission included a June 2014 motion for rehearing of his prior, unsuccessful motion to dismiss the divorce action based on the alleged absence of personal jurisdiction, which his counsel filed prior to issuance of the final judgment of divorce directing him to pay child support and alimony.

After several emails sent back and forth, on June 22, 2016, the Committee emailed a judicial subpoena to respondent which directed him to appear for a second deposition on August 2, 2016 and to produce copies of all tax returns in his possession. Although the Committee requested acknowledgment of its email and subpoena, respondent did not do so. After three unsuccessful attempts by the Committee's process server to serve the subpoena on June 29, July 7 and 8, the Committee served respondent on July 22, 2016, at the residential address he provided at his March 3, 2016 deposition, pursuant to CPLR 308(4).

By an August 1, 2016 email, the Committee requested respondent to bring his copies of the previously marked exhibits to his deposition scheduled for the next day. Respondent did not appear on August 2, 2016 as directed, nor did he contact the Committee to request an adjournment. By an August 2, 2016 email, the Committee requested respondent to explain his failure to appear or it would be forced to move for his interim suspension. Respondent did not reply to this email.

By letter dated August 5, 2016, the Committee again requested respondent to explain his failure to appear on August 2, 2016 and to immediately contact the Committee to reschedule his deposition, and informed him that his failure to do so could result in his interim suspension based on failure to cooperate with a disciplinary investigation. This letter was sent to the residential address respondent provided at his March 2016 deposition and to his registered mailing address. The Committee advises that the certified mailing sent to respondent's residential address was returned but that its other letters were delivered to both addresses. The Committee also emailed the letter to respondent. No response was forthcoming.

By a September 2, 2016 email, the Committee again requested respondent to contact it to reschedule his deposition and advised him that failure to do so could result in his interim suspension. Respondent did not reply to the email. By a September 16, 2016 email, the Committee again warned respondent that if he did not immediately contact the Committee, it would have no choice but to seek his interim suspension. Again, respondent did not reply to the Committee's email.

In addition to its letters and emails, the Committee advises that since August 2016 it has left approximately two dozen voice mail messages for respondent at the still connected telephone number he supplied in his initial answer to his ex-wife's complaint, none of which have been returned. To date, respondent has not complied with the judicial subpoena directing him to appear for a second deposition, nor has he contacted the Committee.

New York imposes interim suspensions where the attorney willfully fails to cooperate in the bar investigation. (Mike Frisch)

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

"Regular Customer" Reprimanded

A reprimand was imposed by a panel of the Michigan Attorney Discipline Board

The respondent and the Grievance Administrator filed a stipulation for a consent order of discipline, in accordance with MCR 9.115(F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contained respondent's admission that he was convicted in a matter titled People of the State of Michigan v Steven Dunnings, 54-A District Court Case No. 16-01137 -SM, of engaging the service of a prostitute, a misdemeanor. Based on respondent's conviction and his admission in the Stipulation for Consent Order of Reprimand, it was established that respondent engaged in conduct that violated the criminal laws of the State of Michigan, in violation of MCR 9.104(5).

The Lansing State Journal reported on the crime

Steven Dunnings, the younger brother of former Ingham County prosecutor Stuart Dunnings III, pleaded guilty Thursday afternoon to engaging in the services of a prostitute, prosecutors said.

Steven Dunnings was charged in March with two misdemeanor counts as part of the same investigation that led to Stuart Dunnings being charged with 15 prostitution-related charges, including a 20-year felony...

During a March news conference announcing the charges, Attorney General Bill Schuette said Stuart Dunnings paid for sex hundreds of times over several years. Court records that led to charges against the Dunnings brothers indicate Steven Dunnings paid two women for sex, one of which "considered him a regular customer."

Stuart Dunnings, who served nearly 20 years as Ingham County prosecutor, resigned from office in July. During his plea hearing earlier this month, he admitted to offering a woman who wasn't a prostitute payment for sex, which was the factual basis of the felony charge.

(Mike Frisch)

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

Convicted Attorney Gets Credit For Time Served

Dan Trevas summarizes a bar discipline case decided today by the Ohio Supreme Court

The Ohio Supreme Court today indefinitely suspended a Strongsville attorney convicted of felonies for his role in a bribery scheme involving prominent Cleveland attorney Anthony Calabrese III, who was disbarred and is serving a nine-year federal prison sentence for bribery.

The Court voted 4-3 to indefinitely suspend Marc G. Doumbas with the majority agreeing to credit him with time served under an interim suspension issued by the Court in January 2014. The per curiam opinion stated the suspension was issued based on Doumbas’s conviction for two felony bribery accounts, which he unsuccessfully appealed in state court and has informed the Court he intends to contest in federal court.

Conviction Based on Bribery Complicity
Ohio Disciplinary Counsel charged Doumbas with two violations of the rules governing Ohio attorneys that prohibit lawyers from committing illegal acts and engaging in conduct that is prejudicial to the administration of justice.

Doumbas and G. Timothy Marshall represented Thomas Castro in a criminal proceeding in which Castro was charged with rape. Calabrese was Castro’s business attorney. Castro agreed to plead guilty to two counts of sexual battery, and before his sentencing, Doumbas and Marshall discussed the need to assemble information to request a sentence that would include no prison time for Castro.

Marshall and Calabrese offered substantial payments to Castro’s two sexual-assault victims as “civil settlements” in an attempt to show the court Castro had made restitution for his criminal conduct. In exchange, the men asked the victims to make requests that the sentencing judge not impose jail time on Castro.

“Although there was no evidence that Doumbas had directly promised, offered, or given anything of value to the witnesses, the state alleged that he had been aware that Marshall and Calabrese had made or intended to make the settlement proposals and he had shared Castro, Marshall, and Calabrese’s criminal intents, and therefore, the state alleged, he was complicit in bribery,” the opinion stated.

Doumbas was convicted of two third-degree felony counts, sentenced to two concurrent one-year prison terms, and ordered to pay a $10,000 fine and court costs. He completed his prison sentence, but as of his June 2016 Board of Professional Conduct hearing, he had not paid any of the $12,500 total in fines and costs.

The Eighth District Court of Appeals affirmed his conviction in 2015 and refused his requests to reopen his appeal.

Attorney’s Post-Conviction Behavior Impacts Sanction
In developing a recommended sanction the board considers aggravating circumstances and mitigating factors. The board noted Doumbas’ desire to demonstrate to the judge that Castro compensated his victims for the harm they suffered. However, the board concluded that any reasonable lawyer would have recognized the risk that making such a settlement offer could be interpreted as an attempt to influence the victims’ statements at the perpetrator’s sentencing hearing.

While Doumbas might not have directly engaged the victims, the board found as Castro’s trial attorney, Doumbas must be held accountable for the negotiations he left to the discretion of Marshall and Calabrese and the harm they produced, the opinion stated. The board also noted that Doumbas denied any criminal wrongdoing at his trial and in the disciplinary hearings, and that he has offered no justification for the failure to pay his criminal fine or court costs other than stating his intent to further fight his conviction in federal court.

The board also recognized that Doumbas had no prior discipline, served his prison time, and demonstrated a cooperative attitude toward the disciplinary proceedings. He also produced six letters of good character, including two from judges, and one of his clients testified that Doumbas satisfactorily handled 25 cases for him and his family over the years, and that he would employ him again should Doumbas be reinstated. The board also found Doumbas to be “contrite and remorseful” and unlikely to engage in similar conduct in the future.

The Court agreed with the board’s recommendation to indefinitely suspend Doumbas and grant him credit for time served. If Doumbas files for reinstatement, the Court required that he must submit proof he has fully paid his criminal fine and court costs as well as the costs for his disciplinary proceedings.

Justices Judith L. French, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy dissented, indicating they would not grant Doumbas time served under suspension.

2016-1149. Disciplinary Counsel v. Doumbas, Slip Opinion No. 2017-Ohio-550.

(Mike Frisch)

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

Monday, February 20, 2017

Predator Prosecutor Disbarred Twice

The web page of the Colorado Presiding Disciplinary Judge has a summary of a consent disbarment

Morel served as the elected prosecutor of St. Charles Parish, Louisiana, from 1979 to 2012. He then became an Assistant District Attorney in the Office of the District Attorney for St. Charles Parish, a position in which he served until January 11, 2013. During his tenure in that office, Morel solicited sex from individuals who were defendants or who had family members who were defendants in the St. Charles Parish criminal justice system. While soliciting sex from these individuals, Morel used the Office of the District Attorney to provide benefits to the individuals, including by falsifying community service reports. He also harassed a particular individual who was facing criminal charges in his jurisdiction; he attempted to prevent and dissuade her from attending or testifying before a federal grand jury proceeding by telling her to destroy evidence and to lie; and he asked her to conceal information that might have led to her being a witness before a grand jury.

The attorney pleaded guilty to a federal obstruction of justice and permanently resigned from the Bar of the Louisiana Supreme Court.

The Times Picayune reported that he was sentenced to a three-year prison term.

It was an unusually stiff penalty, as maximum punishment is rare in federal court for first-time offenders. Engelhardt, whom President George W. Bush appointed to the bench, also fined Morel $20,000, well short of the maximum of $250,000, and ordered him to serve a year of probation after his release from prison.

Morel was St. Charles' top prosecutor for 33 years. He admitted his guilt in April after a three-year federal inquiry into whether he solicited sexual favors from women in exchange for help on cases pending in Louisiana's 29th Judicial District Court. Authorities labeled Morel a "sexual predator" and said his pattern of misconduct in office spanned 20 years and included at least 20 women.

Although not charged with trading sex for official help, Morel admitted as part of his plea bargain agreement that he solicited sex from defendants and others with pending court cases. He formally pleaded guilty to harassing a woman who was a witness before the grand jury that was investigating him. In May, the Louisiana Supreme Court stripped Morel of his law license, barring him from practice for life.

(Mike Frisch)

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

No Need For Further Suspension

The Wisconsin Supreme Court did not suspend an attorney who had been placed on a medical incapacity suspension in October 2008 while facing 43 counts of professional misconduct.

He was reinstated from the incapacity suspension in July 2016.

This is an unusual disciplinary proceeding. It commenced in 2007 but was held in abeyance because Attorney Muwonge was deemed to have a medical incapacity. That medical incapacity has been removed so the disciplinary proceeding can proceed.

...In the following years, Attorney Muwonge successfully sought and obtained treatment for his mental health and substance abuse issues.

The disciplinary proceedings recommenced when he was reinstated

The misconduct alleged in the 2007 disciplinary proceeding is serious. The amended complaint alleged 43 counts of professional misconduct involving 15 clients, primarily in immigration cases. It reflects a pattern of failure to pursue client matters, failure to respond to client inquiries, failure to communicate with clients, failure to keep clients informed, failure to refund retainers or costs that were not expended, and failure to return client files. For example, Attorney Muwonge was retained to help A&W Iron Metal, Inc. (A&W) obtain permanent resident status for certain employees. Attorney Muwonge failed to meet with the clients to address their questions, failed to return filed documents, and "[n]one of the workers received permanent status." Individual clients were also harmed when Attorney Muwonge failed to appear at hearings or to complete work he had undertaken for them.

The suspension was taken into account in reaching a fair result.

To suspend or revoke Attorney Muwonge's law license again, for misconduct that occurred prior to the lengthy suspension for medical incapacity, would not serve the interests of justice and is not necessary to protect the public. Under the specific facts of this case, we are satisfied that the imposition of additional conditions and restitution, as stipulated by the parties and recommended by the referee, is sufficient discipline for the misconduct described in the 2007 disciplinary proceeding.

The court ordered restitution to several clients. (Mike Frisch)

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

Sex, Texts And Disbarment

The North Carolina Superior Court accepted the consent disbarment of an attorney admitted in 1998

In and after 2011, Greene sent electronic messages to clients containing sexual and sexually-suggestive subject matter during the existence of the attorney-client relationship and had sexual relations as defined in Rule of Professional Conduct 1.19( d) with clients during the existence of the attorney-client relationship. Several of these clients with whom he had sexual relations are currently his clients, and all of these clients were immigration clients and were especially vulnerable.

The Charlotte Observer reported

A Charlotte attorney has been disbarred after admitting he slept with an undisclosed number of his immigration clients who were “especially vulnerable.”

Christopher Greene surrendered his law license after being confronted with the results of disciplinary investigation by the N.C. State Bar.

In documents filed this month in Wake County Superior Court, Greene admitted that over the past five years he has had sex with current and former clients, “and that all of these clients were immigration clients and were especially vulnerable.”

Greene also admitted sending “sexual and sexually suggestive” messages to his clients despite his professional relationship with them, court filings indicate. The complaint does not include further details.

Greene was disbarred on Jan. 12. He joined the state bar in 1998. As part of his punishment, he cannot ask to have his law license restored for at least five years. Greene operated a law firm, Greene & Associates, on Executive Center Drive in Charlotte.

(Mike Frisch) 

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

Document Review Overbilling Draws Proposed Suspension

A two-year suspension with the second year stayed on conditions has been proposed by the Ohio Board on Professional Responsibility for billing misconduct.

The attorney worked as an independent contractor for a Cleveland law firm. She worked offsite doing document review by accessing a secure web site to perform the work.

Over the period of 2012 to 2015, she overbilled a total of $87, 260. 

When confronted by the firm, the attorney initially attributed the problem to her being a "bad record keeper."

She then acknowledged the misconduct and has made full restitution.

At the time, the attorney was on inactive status and the work was not performed as an attorney. 

The attorney entered into a contract with the Ohio Lawyers Assistance Program and must comply with conditions on reinstatement. (Mike Frisch)

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

Reinstated Despite"Sloppy" Petition

The Louisiana Supreme Court reinstated an attorney suspended for a year and a day by consent in 2013

In 2013, we considered a joint petition for consent discipline filed by petitioner and the Office of Disciplinary Counsel (“ODC”). The misconduct at issue in that matter involved allegations that respondent drafted an affidavit at the request of his criminal defense client in which the victim in the underlying criminal proceeding agreed to drop the criminal charges in exchange for the payment of money. For this misconduct, the parties proposed that petitioner be suspended from the practice of law for one year and one day. On April 26, 2013, we accepted the joint petition for consent discipline. In re: Ferrara, 13-0722 (La. 4/26/13), 116 So. 3d 654 (“Ferrara I”).

In 2015, the ODC commenced an investigation into allegations that petitioner promised or guaranteed a particular result or outcome of a representation. This misconduct occurred in the same time frame as the misconduct forming the basis of Ferrara I. Prior to the filing of new formal charges, petitioner and the ODC submitted a joint petition for consent discipline proposing that petitioner be adjudged guilty of additional violations which warrant discipline and which may be considered in the event he applied for reinstatement from his suspension in Ferrara I. On June 30, 2015, we accepted the petition for consent discipline. In re: Ferrara, 15-1196 (La. 6/30/15), 167 So. 3d 618.

The Office of Disciplinary Counsel initially took no position on reinstatement. 

The court reduced the proposed monitoring from five to two years.

Justice Clark would deny the petition.

Justice Crichton dissented

In his petition for reinstatement, which the disciplinary hearing committee characterized as “sloppily prepared” and “concerning” that the petition “had such inaccuracies,” petitioner omitted a significant number of assets and income as well as a number of liabilities, including tax liens in excess of $380,000. Notwithstanding an amendment of his application, petitioner has disregarded the clearly delineated and non-negotiable reinstatement requirements set forth in La. Sup. Ct. Rule XIX, which calls into question whether he possesses the requisite character and fitness to practice law...

Given petitioner’s transgressions and his “sloppily prepared” application for reinstatement, I seriously question whether he has proven that he has the requisites to return to this noble profession. Accordingly, I would deny even a conditional reinstatement.

(Mike Frisch) 

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

Friday, February 17, 2017

Losing Strategy Does Not Establish Ethics Violation

An Ad Hoc District of Columbia Hearing Committee proposes a 45-day suspension with automatic reinstatement for an attorney's alleged mishandling of a wrongful death case in Virginia federal court.

The underlying case involved the murder of the client's son by another patient in a state hospital where he was being held. The perpetrator had a known propensity for violence and animosity for the victim.

There is no disagreement about the requirement that a member of the hospital staff sit in a chair -- the “yellow chair” -- which had a view of the hall on which their rooms were located and to watch the hallway. The “yellow chair” assignment appears to be an additional safeguard beyond the normal hospital rules which required the staff to check on patients every fifteen minutes during the evening to assure that they were in their beds and breathing normally.

Closed circuit video of the hallway showed that between 9:39 and 9:56 on the evening of February 27, 2010, Mr. Phillips visited Mr. Davis’ room twice. 

The Forensic Mental Health Technician (“FMHT”), who was assigned the task of sitting in the yellow chair from 9:30 to 10:30 pm on February 27, was not in the chair during that period. She was in the dayroom watching television with the charge nurse. They were aware that Mr. Phillips was not in his room as he came to the day room to request lotion. 

The client went through a number of lawyers before finding Mr. Lattimer, who filed the complaint against the hospital and others just before the statute of limitation expired.

In the suit, summary judgment was granted to an individual defendant. Leave to add defendants was denied. 

During that [summary judgment] hearing, the Court noted that “I think you should have sued the lady who was supposed to sit in the yellow chair. That is the person whose error or whose inattentiveness led to the death in this case. And if you had sued her, you would have had a slam dunk. And I think the state probably has insurance to cover that. At least they did when I was in the Attorney General’s office.” However, in its Rule 26(a) disclosures, the Commonwealth had answered “N/A” to the question whether there was any insurance agreement available for inspection and copying. 

In the losing appeal to the United States Court of Appeals for the Fourth Circuit

In her opinion for the Court, Judge Thacker noted Respondent’s statements concerning Dr. Davis and his misstatement as to when the Complaint was filed. On May 2, 2014, Judge Thacker referred the matter to Disciplinary Counsel, saying “I forward it for your consideration inasmuch as I question Mr. Lattimer’s handling of the case as well as his candor to the court.” Respondent never sent Ms. Wilkins a copy of the Court of Appeals decision. 

On choice of law

Since this disciplinary matter arose in connection with a case litigated in the Eastern District of Virginia, where Respondent was admitted pro hac vice, Rule 8.5 of the District Rules requires that his professional conduct comport with the Virginia Rules. Cf. In re Gonzalez, 773 A.2d 1026, 1029 (D.C. 2001). While the differences between the Virginia and the District of Columbia Rules appear to be minor, the Committee will rely on the Virginia Rules and precedent in reaching its recommendations, except where we were unable to find relevant precedent. In those situations, the Committee will look to the decisions of the District of Columbia Court of Appeals.

The committee notes and discusses at length Disciplinary Counsel's view (supported by an expert) that the attorney had demonstrated a lack of competence in pursuing a losing litigation strategy

In [expert witness] Mr. Fogel’s view, [prior counsel] Mr. Marcari’s analysis of the potential causes of action was correct. Respondent should have sued the hospital in state court under the Virginia Tort Claims Act action against the Commonwealth, with damages capped at $100,000. He thought that was a straightforward case. In addition, Respondent should have sued the state employees for gross negligence in either state or federal court and brought an action in federal court under 42 U.S.C. § 1983 for willful indifference to Mr. Davis’s safety.

...the Committee is not in a position to resolve the legal issue concerning the scope of the exception to the Virginia Tort Claims Act on which Respondent relied. In order to prove a violation of Virginia Rules 1.1 and 1.3(a), it was Disciplinary Counsel’s burden to establish by clear and convincing evidence that Respondent’s decision not to proceed based on his reading of Baumgardner and Patten was inconsistent with the reasonable exercise of professional judgment. Disciplinary Counsel failed to do so.

The committee found a lack of diligence but not a violation of the duty to communicate

Rule 1.4 does not require “an attorney … [to] communicate with a client as often as the client would like, as long as the attorney’s conduct was reasonable under the circumstances” and as long as “‘he [keeps] the client adequately informed of the progress’” of the case. In re Schoeneman, 777 A.2d 259, 262 (D.C. 2001) (quoting In re Walker, 647 P.2d 468, 470 (Or. 1982) (en banc)). While he Committee finds Respondent’s practice of not providing clients with filings unless they ask to be problematic, it concludes that, under the terms of his retainer agreement and Virginia Rule 1.4, Disciplinary Counsel has not shown by clear and convincing evidence that Respondent failed to keep Ms. Wilkins reasonably informed as to the status of her case.

And rejected dishonesty charges based on the alleged misstatement in oral argument before the Fourth Circuit

The Committee finds that Disciplinary Counsel has not shown the required mens rea by clear and convincing evidence. As was the case with the materiality requirement under Rule 3.3(a), Respondent had nothing to gain by saying that he filed the Complaint one month earlier than he did. In reaching this conclusion, we are aware, as Disciplinary Counsel notes, that Judge Thacker found the point significant. The Committee is sensitive to concerns raised by a court about an attorney’s ethical conduct and has treated her comments seriously. But, Disciplinary Counsel has not introduced any evidence or otherwise explained why the misstatement was material or significant, and the Committee cannot think of one. Accordingly, we conclude that Respondent’s misstatement was just that; no rule violation has been established.

But another statement was false

Disciplinary Counsel’s claim that Respondent violated Virginia Rules 3.3(a) and 8.4(c) in arguing that Dr. Davis had an office and practiced medicine at Central State when the Complaint was filed is well taken. Respondent knew, or should have known, that based on Dr. Davis’ deposition, he no longer maintained an office at Central State after May 2010. 

On sanction

Disciplinary Counsel faults Respondent for what Disciplinary Counsel calls his “full-throat denial of any misconduct whatsoever, in the face of the district court’s statement that he lost a ‘slam dunk’ case because he sued the wrong party and despite his obvious failure to produce expert disclosures on time.” What Disciplinary Counsel has ignored, however, is that Respondent is a defendant in a malpractice case brought by Ms. Wilkins. Any acknowledgement by him that he erred will unquestionably become a major piece of evidence in that case. In light of these facts, the Committee finds Disciplinary Counsel’s argument on this factor unreasonable. The Committee cannot give Respondent credit for recognizing that he may have made a mistake, but it will not count his unwillingness to admit error as a negative factor either.

Should an unwillingness to concede error in a bar discipline case be discounted due to potential collateral civil consequences?

Interesting question.

Further

Respondent should have been more diligent, but the Committee finds he earnestly sought to reach the results Ms. Wilkins wanted.

On the other hand, the Committee finds that Respondent’s conduct in connection with the hearing is an aggravating factor. Disciplinary Counsel subpoenaed his records in Ms. Wilkins’ case, yet Respondent did not produce the full file, as the additional emails which he introduced during the hearing and in his Surreply establish. In addition, he ignored Board rules in filing the Surreply and in filing his “Response to Disciplinary Counsel’s Opposition to Respondent’s Surreply Brief” without seeking leave to file. His failure to follow the Board rules is a concern and reflects adversely on Respondent.

Without a fitness requirement

the Committee does not believe Disciplinary Counsel has shown that Respondent’s misconduct in this case raises serious questions as to his fitness to practice law. Respondent’s misconduct occurred in a single case; it was a difficult case and he was dealing with a difficult client. While his decisions have proven to have been ill-advised, Disciplinary Counsel has not shown that they were unreasoned or beyond the discretion accorded lawyers in making strategy decisions. He should have done more homework before launching on his perilous flight, but that does not mean that his theory of the case establishes that he lacks the capacity to practice law. Indeed, the record here indicates that there was substantial preliminary evidence to support his theory. His problem is that he did not conduct a sufficient fact inquiry before filing the Complaint and waited too long to file it.

Disciplinary Counsel had sought a 90-day suspension with fitness.

The case is In re Gregory Lattimer and can be accessed at this link. Citations to the record in the quoted excerpts have been omitted . (Mike Frisch)

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