Monday, March 19, 2018
The South Carolina Court of Appeals affirmed an order denying access to bar complaints against a prosecutor
In this action pursuant to the Freedom of Information Act (FOIA), South Carolina Lawyers Weekly (Appellant) asserts the circuit court erred in refusing to compel Scarlett Wilson, as Solicitor of the Ninth Judicial Circuit, to produce any disciplinary complaints against her. Appellant argues the circuit court erred by: (1) failing to find Wilson is a public officer and her office is a public body subject to FOIA; (2) relying on Rule 12 of the Rules of Lawyer Disciplinary Enforcement to determine the requested documents are not required to be disclosed; (3) finding the documents were exempt from FOIA pursuant to S.C. Code Ann. § 30-4-40(a) (2007 & Supp. 2017); and (4) failing to find Wilson waived her right to confidentiality. We affirm.
On July 10, 2015, Phillip Bantz, a staff writer for South Carolina Lawyers Weekly sent a FOIA request to Solicitor Wilson's official email address requesting "any records relating to any disciplinary complaints against you or action taken with respect to you as a member of the bar."
The Ninth Circuit Solicitor's Office (the Solicitor's Office) responded, on official letterhead, and denied Bantz's request. The office noted, "In the last year a number of grievances have been filed against Ms. Wilson by or at the behest of disgruntled criminal defense lawyers . . . . The South Carolina Office of Disciplinary Counsel thoroughly investigated these matters and recommended dismissal of all of these charges."
In denying the FOIA request, the Solicitor's Office noted that "[w]hile the Solicitor's Office is a 'public body' and subject to FOIA, Ms. Wilson is not personally a 'public body.'"
The court found no waiver
Initially, Appellant asserts Solicitor Wilson waived her right to confidentiality of the requested documents by referring to their existence in her FOIA response. We disagree.
The Bar rules govern
Based on the plain language of Rule 12(b), complaints filed with the Office of Disciplinary Counsel do not become public documents until formal charges are filed and 30 days have passed after the filing of an answer, or in the absence of an answer, 30 days after the time to file an answer has expired. Because Rule 12(b) indicates lawyer disciplinary complaints do not become public until after formal charges are filed, and no formal charges were filed against Solicitor Wilson, any complaints would not be public documents, and Solicitor Wilson would not be required to be disclose them pursuant to FOIA.
A published opinion of the California State Bar Court Review Department recommends disbarment for a criminal conviction
On April 30, 2013, Jordan Tonya Louise Peters was driving under the influence of prescription drugs when, without braking, she rear-ended a car stopped at a traffic light. The other driver was seriously injured and the other driver’s passenger, her 69-year-old husband, died. On her plea of nolo contendere, Peters was convicted of felony vehicular manslaughter while intoxicated without gross negligence.
Disbarment is the presumed sanction for a felony conviction in which the surrounding facts and circumstances involve moral turpitude, unless the most compelling mitigating circumstances clearly predominate. A hearing judge found that the facts and circumstances surrounding Peters’s conviction involved moral turpitude, and, not finding compelling mitigation, recommended disbarment.
Peters appeals. She argues that the facts and circumstances surrounding her crime did not involve moral turpitude and her mitigating circumstances are entitled to more credit. She contends that a two-year actual suspension would be sufficient to preserve the integrity of the profession and protect the public. The Office of Chief Trial Counsel of the State Bar (OCTC) requests that we affirm the disbarment recommendation.
Upon our independent review (Cal. Rules of Court, rule 9.12), we find the facts of the conviction involve moral turpitude, and the mitigating circumstances are not compelling. We can discern no reason from this record to deviate from the applicable disciplinary standard, and thus affirm the disbarment recommendation.
The attorney had a history of prescription drug abuse and had ceased practice in 2012 due to stress.
On April 30, 2013, Peters picked up a Neurontin refill and then went to her office at the construction company at which she was employed at the time, worked on several projects and interacted with colleagues. At trial, she admitted that between 9:18 a.m. and 2:00 p.m., she took six or seven Neurontin pills—more than her full day’s prescribed dose—in roughly five hours. She also had several other prescription drugs in her system, including tramadol, another pain medication prescribed by her primary care doctor. She testified that she did not feel impaired and felt no different that day than any other day.
Unexpectedly, Peters was called around 3:15 p.m. to pick up her son and left work earlier than planned. Three eyewitnesses who observed her driving testified at trial. Making a left turn, on a Roseville, California street, Peters veered right across four lanes, and drove up and over a curb and sidewalk until all four tires were on a grassy area beyond the sidewalk. Peters recalled striking only the curb. Without stopping, she returned to the road and swerved left across three lanes toward the center median. She then swung back over to the right-hand curb, almost came to a stop, but did not. She continued to drive at varying speeds for another half-mile. Her driving was so erratic and worrisome that two drivers behind her turned on their emergency flashers to try to slow traffic and to warn others, and one of them called 911.
Around 3:40 p.m., Peters was traveling at approximately 50 to 60 miles per hour when, without braking, she rear-ended one of several cars stopped at a red light. Bonnie Weaver was the driver of that car and her husband of over 48 years, Robert Weaver, was the front seat passenger. The impact crushed the back half of the Weavers’ car, leaving nothing behind the front seats. The couple suffered grave injuries and were transported to the hospital. Robert died hours later. Bonnie survived, but continues to suffer from her injuries, as discussed in detail below in aggravation. Peters’s erratic driving also set off a chain of events that caused a separate collision involving three other cars, resulting in injuries to two other victims.
She pled no contest to the criminal charge.
On moral turpitude
Peters argues that she should not be found culpable of moral turpitude, primarily because she did not know she was addicted to Neurontin nor did she feel impaired the day of the collision. However, her contention does not correctly reflect the test for moral turpitude. The test is whether the facts and circumstances surrounding her criminal conduct show either “a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties)” or involve “such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession...
Peters had an admitted history of being unable to control her prescription drug use, which prompted one physician to cease treating her. Though she stopped using Norco in 2012, she took Neurontin contrary to direction for nine to 12 months prior to the collision. On the day of the crash, Peters knowingly took six or seven Neurontin pills—more than her full day’s prescribed dose—in about five hours. Despite having previously felt sedated by the drug, she still chose to drive. For nearly a mile, she traversed widely across multiple lanes but did not stop, even after she ran all four tires of her car over the curb and onto the grass. Instead, she continued driving at approximately 50 to 60 miles per hour, and, without braking, rear-ended the Weavers’ stopped car. She destroyed their car, killed Robert, gravely injured Bonnie, and injured others.
While the board gave some mitigating weight to her 19-year discipline-free career, little was given to her depression and drug abuse
We applaud Peters’s rehabilitation efforts, both voluntary and mandatory. Yet, given her years-long history of abuse, her earlier resistance to seeking treatment, and that she only began her treatment just over two years ago, we find, for the purposes of attorney discipline, that Peters has started but not completed rehabilitation.
Despite remorse and favorable character evidence
While she had a 19-year discipline-free career before the collision, her rehabilitation is in its early phase, and we find she has not shown her misconduct is unlikely to recur. For the same reason, her crime is not fully mitigated by her physical and emotional problems. These mitigating factors, together with her moderate evidence of good character, pro bono and community service, and remorse, and her limited credit for cooperation do not constitute compelling mitigation. They fall far short of predominating, given her extremely serious misconduct and the profound harm she caused. Anything less than disbarment would fail to protect the public and undermine its confidence in the legal profession. Thus, before Peters is entitled to resume practicing law, she should be required to demonstrate in a reinstatement proceeding by clear and convincing evidence, her rehabilitation and exemplary conduct over an extended period of time.
An interlocutory license suspension from the Hearing Division Tribunal of the Upper Canada Law Society of a paralegal license.
The evidence discloses that Ms. Zopf has been criminally charged with one count of Identity Theft, two counts of Fraud Under $5,000, two counts of Obtaining Credit by Fraud, one count of Uttering Forged Documents, two counts of Identity Fraud and one count of Possession of a Counterfeit Mark.
These criminal charges relate to two incidents, one in September 2015 and one in June 2017. It is alleged that in September 2015, Ms. Zopf obtained a payday loan of $400 by falsely holding herself out to be someone else and by tendering identity and other documents. It is alleged that in June 2017, Ms. Zopf attempted to open a Bell Canada account for landline, internet and television services using a false identity.
The investigator’s affidavit includes evidence tending to prove the alleged criminal conduct. The criminal charges allege conduct that is outside of Ms. Zopf’s work as a paralegal and is instead personal conduct. However, the alleged criminal conduct raises significant issues of honesty and integrity.
It is not necessary or appropriate that we determine whether Ms. Zopf acted as is alleged in the outstanding criminal proceedings nor are we to determine whether those actions, if proven, would be professional misconduct.
Our responsibility is to determine whether there are “reasonable grounds for believing” that there is a “significant risk of harm” to members of the public, or to the public interest in the administration of justice, if the suspension order is not made and that making the suspension order is likely to reduce the risk.
The affidavit evidence provides reasonable grounds for believing that Ms. Zopf may have acted as is alleged in the outstanding criminal proceedings. This evidence is not challenged for the purposes of this motion nor is there any evidence to the contrary. Of course, this is not to say that Ms. Zopf will be found guilty of those charges, but that is not the question here.
Friday, March 16, 2018
An Ad Hoc District of Columbia Hearing Committee proposed a 60-day suspension with 30 days stayed of an attorney who engaged in ethical violations primarily after he had been discharged as counsel for a group of clients who were victims of a financial fraud.
Following a legal career at several major law firms, Respondent organized Capital Legal Group (US) in approximately November 2013. Respondent referred to himself as the “managing partner” of Capital Legal Group, but had no associates or partners, relying instead on as-needed contract lawyers. Stip. 1; RX 1; Tr. 200-02, 282-83 (Wallace).
In approximately March 2014, Respondent was contacted by Richard Cole, whom he had known in the 1970s while in law school. Tr. 19, 503-07. Cole alleged that he had recently been the victim of fraud perpetrated by an organization calling itself Charter Investments (“Charter”). In brief, Charter purported to offer certificates of deposit at above-market rates. When investors wired funds to Charter’s account at the East West Bank in California, the funds were withdrawn immediately, and were never invested. Cole had invested – and lost – $280,000 through this fraud. DX 21 at 24. Cole had learned of eleven individuals, and one homeowner’s association (“HOA”), similarly victimized, and sought legal representation for the group on a contingency fee basis.
The respondent agreed to represent the clients for a contingent fee.
Disciplinary Counsel contends that Respondent mishandled the transition of the Charter clients’ matter to successor counsel, failed to specify the amount or nature of his claim for fees, if any, on his former clients’ recovery, and intentionally held up the distribution of funds to former clients who had fired him and then made disciplinary complaints against him, in violation of Rules 1.3(b)(2), 1.16(d), and 8.4(d). Respondent contends that he had a valid claim for fees, that any delay in clients receiving their settlement funds was caused by successor counsel’s fee agreement and the operation of California law pertaining to attorney liens, and that he did not violate any of the Rules charged.
The committee found each charged violation.
Notably, they found that the attorney's retaliation against only the former clients who filed bar complaints prejudiced the administration of justice
Disciplinary Counsel contends that Respondent violated Rule 8.4(d) by retaliating against four clients who had reported his conduct to Disciplinary Counsel by selectively maintaining his fee claims against these clients only, by informing the clients he was about to serve an ACAB petition on them, requiring them to hire local counsel, and by asserting that he would not resolve his claims for fees against them until the disciplinary matters concluded. Respondent contends that he was entitled to resolve legitimate disputes with those clients, and that he was constrained in his ability to resolve his fee dispute because the clients had placed him in an adversarial position when they filed disciplinary complaints against him.
As set out at length above, Respondent made no good faith effort to either inform his clients of the fee he believed he was owed, or to resolve his fee claim through negotiation or the ACAB process. He seemed to believe that the clients had the obligation in the first instance to suggest what his fee should be, and that the fact that they did not do so is the principal reason no resolution was reached. That suggestion is absurd. If Respondent believed he was legitimately entitled to be paid for any work he may have done for his twelve Charter clients on the Charter matter, it stands to reason he would have asserted a fee claim against all – not just four – of the clients. His putative justification for this course of action was that the disciplinary complaints filed by the four clients at issue somehow tied his hands. However, reaching a settlement that interferes with a client’s ability to file a disciplinary complaint or requires the client to withdraw an existing complaint violates Rule 8.4(d)...
We find Respondent’s testimony attempting to justify his selective decision to waive his fees to be untruthful, and to be contradicted by contemporaneous evidence, including Respondent’s own contemporaneous statements.
Respondent’s credibility is further undermined by the untruthful testimony he gave about the work he allegedly did for the Charter clients.
In some jurisdictions, such a finding would lead to a much harsher sanction.
An intriguing tidbit
On August 14, 2017, Respondent moved for sanctions and for an order to show cause, contending, first, that sanctions are appropriate for Disciplinary Counsel’s allegedly bad faith efforts to supplement the record with impeachment evidence. Respondent further contends that Disciplinary Counsel should be ordered to show cause why it should not be held in contempt for allegedly violating the Hearing Committee’s witness sequestration order. For the reasons discussed in the Confidential Appendix, infra, we recommend that Respondent’s motions be denied.
The probation proposed to follow the suspension has several conditions.
The case is In Re William E. Wallace and can be accessed here. (Mike Frisch)
License annulment has been ordered by the West Virginia Supreme Court of Appeals
Benjamin F. White is a lawyer who convinced A.S. to hire him as counsel after A.S. was charged with one count of felony child neglect in April 2015. Mr. White never discussed (or documented) his fee arrangement with A.S., but immediately pursued an intimate relationship with her. Mr. White took A.S. on out-of-town trips, during which he provided her with alcohol and drugs - causing her to violate the terms of her probation - and engaged in sexual relations with her. A.S. eventually reported Mr. White’s conduct and he was promptly removed as her counsel in June 2015. Mr. White was charged with violating six separate provisions of the West Virginia Rules of Professional Conduct, but he failed to respond to the formal statement of charges. Following a hearing at which both Mr. White and A.S. testified, the Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) recommended that Mr. White be suspended from the practice of law for five years. Upon consideration of Mr. White’s egregious conduct, including the additional aggravating factor that Mr. White disregarded this Court’s order to file a responsive brief, we order that his license be annulled.
The attorney was admitted in 2005 and met the client through a Facebook friend request.
In October 2014, Mr. White sent A.S. a Facebook friend request and began sending her messages through that social media platform. Throughout early 2015, though Mr. White and A.S. communicated online occasionally about her ongoing divorce proceeding, she testified that she did not consider him to be her attorney. The nature of their relationship changed, however, on April 22, 2015, when A.S. was charged with one felony count of gross child neglect.
He replaced her appointed counsel
After representation began, Mr. White came to A.S.’s residence unannounced on several occasions. Though A.S. acknowledges that they had a friendship beyond the usual attorney-client relationship, she testified that she felt that he was "pushy and bullish" during this time. Because Mr. White never asked for payment for his services, A.S. testified that she felt obligated to be friendly with him and that she didn’t feel like she could turn down his requests, specifically testifying that she felt that "if she quit having anything to do with him, then he wasn’t going to be [her] lawyer anymore."
At her plea hearing on May 28, 2015, A.S.’s home confinement was suspended and she was placed on probation. Immediately afterward, Mr. White insisted that they drive to Charleston to "celebrate." Once in Charleston, Mr. White took A.S. to dinner and purchased alcoholic drinks for her, despite knowing that her consumption of those drinks would violate her probation. On their way home, in the early morning hours of May 29, 2015, Mr. White took her to the ATV resort he owns and they engaged in sexual relations for the first time.
The following week, Mr. White and A.S. traveled together again when she accompanied him to Louisville, Kentucky for an ATV convention. Mr. White told her not to mention to anyone at the convention that he was her lawyer. On the way to Louisville, Mr. White gave A.S. an entire bottle of Xanax. In addition to ingesting a number of those pills, she consumed alcohol that was also provided by Mr. White and the two again engaged in sexual relations.
After the Louisville trip, Mr. White threatened to "put [A.S.] in jail" for one year for leaving her required alternative sentencing program classes early, despite her having permission to do so. On one such occasion, Mr. White came to the location where A.S. attended classes and began questioning other workers as to her whereabouts. One of the workers told Mr. White that A.S. left in a gold Suburban and Mr. White asked a friend on the police department to stop the automobile in an attempt to find her. When Mr. White and A.S. next spoke, A.S. told Mr. White that she was upset that he had involved the police because she could have been arrested. According to A.S.’s testimony, Mr. White responded, "that would have been good for [her]" and "that’s what [she] need[s]." A.S. testified that after this encounter she was paranoid that he would try to "set her up." Notwithstanding this concern, Mr. White and A.S. ultimately reconciled and were on "good terms for a week." During this time, Mr. White and A.S. again traveled to Charleston and engaged in sexual relations. Once more, Mr. White purchased alcohol for A.S. while she was still on probation...
On June 22, 2015, A.S. told A.S.’s community service manager, Ms. Maynard, about Mr. White’s behavior. Ms. Maynard accompanied A.S. to Judge Thompson’s office, where A.S. requested a new lawyer. On June 24, 2015, Mr. White was removed as counsel and Theresa McCune was appointed to represent her. A.S.’s probation was ultimately revoked due to a failed drug screen and she was sentenced to jail as a result. A.S. testified that the situation with Mr. White was very stressful and embarrassing, and had occurred at a very vulnerable time in her life. She cited her "downfall" as the prescription Xanax Mr. White had provided to her.
He failed to participate appropriately in the bar proceedings
Absent extenuating circumstances, we question whether a respondent attorney who disregards the directives of this Court and altogether fails to advocate for himself—to maintain his career—will adequately advocate for his or her clients. Accordingly, we conclude that a respondent attorney’s violation of this Court’s scheduling order will be deemed an aggravating factor and may give rise to heightened discipline.
We find that Mr. White’s egregious violations of the standards of the legal profession, combined with his outright unwillingness to comply with the directives of this Court, are sufficient to merit the most severe sanction available and hereby order that his license be annulled.
A Louisiana Hearing Committee proposes a six-month suspension based on these charges
On March 19, 2015, respondent, Felix DeJean, IV, appeared in the chambers of Judge Kathy Johnson of the Seventh Judicial District Court in Cambodia Parish for a conference in the case of State of La. v. Perry Williams. Also present were the District Attorney, Bradley Burget, Assistant District Attorney Ann Siddall, and the court's clerical assistant, Julie Colclasure.
At the conclusion of the conference, the parties were leaving the judge's chambers when respondent exchanged words with the District Attorney, physically confronted him and "chest bumped" Mr. Burget twice, perpetrating a battery upon the District Attorney. To prevent further assault, Mr. Burget asserts that he grabbed respondent and restrained him until court personnel could remove him from the judge's chambers.
Respondent was later arrested and booked on charges of assault, simple battery, and threatening a public officer.
On July 14, 2016, a trial on the criminal charges of simple battery was held at the Concordia Parish Courthouse in Vidalia before Justice Chet D. Traylor, who was sitting pro tempore by appointment of the Louisiana Supreme Court. At the conclusion of testimony and closing argument of counsel, Justice Traylor found the respondent, Felix DeJean, IV, guilty as charged of simple battery of District Attorney Bradley Burget.
The conviction established the misconduct.
Respondent has been variously diagnosed with bipolar disorder, severe attention deficit hyperactivity disorder, and mood disorder, but at the hearing denied that his condition was connected to anger control problems, but rather only affected his ability to concentrate. (Tr.39- 40, 54-55, 60-63, 84-86) He specifically denied that the 2016 incident has connected with anger control issues. (Tr.p.90) Again, the Committee is concerned that Respondent is denying a root cause of his misconduct, but was not presented with sufficient medical evidence to make a finding of a diagnostic connection in this context.
An undercurrent throughout Respondent’s testimony is that others were responsible for instigating the incidents and a belief that favorable outcomes for his client confirmed the rightness of his actions. He continues to protest his innocence while also confirming that he accepts the outcomes of the disciplinary and criminal proceedings, "as an attorney", because he is forced to do so, but that the "truth" has not come out...
Considering the circumstances of Respondent’s offense and the aggravating/mitigating factors described above, the Committee recommends a six-month suspension, with no deferral, together with payment of all costs of this proceeding.
Thursday, March 15, 2018
The New York Appellate Division for the Third Judicial Department has publicly censured an attorney as reciprocal discipline for a short suspension in British Columbia.
In June 2014, the Hearing Panel on Disciplinary Action in British Columbia determined that respondent committed professional misconduct based upon statements made to a social worker (hereinafter A.M.) while at a courthouse. In January 2014, the Hearing Panel suspended respondent for two weeks and issued a fine based upon his misconduct. Accordingly, the Attorney Grievance Committee for the Third Judicial Department (hereinafter AGC) now moves this Court to impose discipline upon respondent...
Respondent opposes AGC's motion, contending, in part, that the misconduct for which he was disciplined in British Columbia does not constitute misconduct in this state. AGC has replied to respondent's opposition.
Yes it is
Respondent's discipline in British Columbia stems from inappropriate comments made to A.M. in a crowded courthouse. Specifically, respondent approached A.M. and remarked that he "should shoot" her because she "takes away too many kids." Throughout the proceedings in British Columbia, respondent contended that his comments were a "joke gone bad" and that he had no intent to threaten A.M. However, similar to the determination of the Hearing Panel, we find that the context in which respondent's statements were made is particularly relevant in determining that his conduct violates our Rules of Professional Conduct (22 NYCRR 1200.0). Respondent's statements were uttered to a social worker for the Ministry of Children and Family Development, an entity that regularly was an adversary based upon the nature of respondent's work, in a crowded courthouse in front of colleagues and parents, the latter of whom are frequently in a contentious and emotional state. What respondent fails to recognize is that his statements could be construed as a threat – even if not intended as such. Indeed, A.M. testified that she perceived his statements as a threat. Accordingly, while respondent may have intended his words as a joke, we find that his words served no substantial purpose other than to harm or embarrass A.M.
An extensive history of bar discipline has led to the ultimate sanction - disbarment by the New Jersey Supreme Court.
The tale is told by the Disciplinary Review Board
Respondent’s misconduct in these matters replicates and combines multiple facets of his extensive disciplinary history. He has a well-established pattern of being untruthful to courts; lying to disciplinary authorities, including while under oath; failing to obey court orders; and failing to comply with recordkeeping obligations imposed on New Jersey attorneys.
Respondent’s inaugural brush with the disciplinary system, in 1999, evidences his unabashed willingness to lie to courts. There, he was suspended for three months for twice lying to a municipal court judge regarding his failure to appear. That judge recounted that respondent "had a history of either failing to appear on matters before her or of being late in those instances when he did appear." We reasoned that enhanced discipline was necessary because "respondent was brazen enough to lie to the same judge who had recently given him a very stern warning that his misconduct would not be tolerated. Respondent’s misconduct was not a single, isolated event. Rather, his lies were almost seamless in their transition." More than fifteen years later, rather than learning from his mistakes, respondent continues to engage in the same deceitful behavior toward courts.
Respondent is well aware of the recordkeeping requirements imposed on New Jersey attorneys, yet continues to disregard them. In 2001, he was admonished for failing to use a trust account in connection with his practice and failing to maintain required receipts and disbursements journals or client ledger cards. Again, fifteen years later, respondent still refuses to comply with the most basic recordkeeping obligations imposed on New Jersey attorneys.
Given the contemptible set of facts present in these combined matters, we must consider the ultimate question of whether the protection of the public requires respondent’s disbarment. When the totality of respondent’s behavior in all matters, past and present, is examined, we find ample proof that he is unsalvageable, and that no amount of redemption, counseling, or education will overcome his penchant for disregarding ethics rules. As the Court held in another matter, "[n]othing in the record inspires confidence that if respondent were to return to practice [from his current suspension] that his conduct would improve. Given his lengthy disciplinary history and the absence of any hope for improvement, we expect that his assault on the Rules of Professional Conduct would continue." In re Vincenti, 152 N.J. 253, 254 (1998). Similarly, we determine that, based on his extensive record of misconduct and demonstrable refusal to learn from his mistakes, there is no evidence that respondent can return to practice and improve his conduct. Accordingly, we recommend respondent’s disbarment.
Wednesday, March 14, 2018
Busy discipline day for the South Carolina Supreme Court with this reprimand
One matter involved a drafting error in a child support order and his delay in correcting that mistake.
Respondent was retained to represent Client B in a divorce and custody action after Client B, while being represented by another attorney, lost custody of her child at a temporary hearing. Client B's spouse died before the final hearing could be held. Subsequently, the family court awarded temporary custody of Client B's child to the sister of Client B's spouse (Aunt) and the sister's husband (Uncle). Shortly after the temporary hearing in which custody was awarded to Aunt and Uncle, Client B released respondent and retained a new attorney.
At some point during his representation of Client B, respondent expressed to Client B that he was interested in a sexual relationship with her. Respondent asked Client B to show him her breasts. Client B showed respondent her breasts, but felt ashamed and humiliated. Respondent and Client B did not engage in a sexual relationship.
He admitted both counts. (Mike Frisch)
A public reprimand by the South Carolina Supreme Court of an attorney
Respondent represented Client in a criminal matter. Concerned that Client was suffering from a medical emergency and that the medical treatment Client was receiving in jail was inadequate, respondent paid Client's bond. When Client ran out of money to pay for the motel room where she was living, and was at risk of having to live on the street, respondent, with his wife's permission, allowed Client to stay at respondent's house with respondent and his wife for two to three nights. Respondent's wife provided Client with clothing. Respondent provided assistance to Client, including monetary assistance, in obtaining a driver's license, car insurance, and a new cell phone. Respondent also aided Client in signing up for inpatient drug rehabilitation. Respondent briefly employed Client in his law office. Respondent represents that he had negotiated a tentative plea agreement with the solicitor and believed the matter would be concluded based on that agreement at the time he began providing financial assistance to Client.
All of the funds advanced to Client came from respondent's operating account or personal funds, and respondent expected to be repaid from Client's anticipated tax refund. Client gave respondent a power of attorney so that respondent could receive the tax refund and secure repayment of the funds advanced. Respondent maintains the funds provided to Client did not encourage Client to pursue any litigation and did not provide respondent with a financial stake in any litigation.
But all was not beneficent
On several occasions, respondent made sexually inappropriate comments to Client on the telephone while she was in jail, and on one occasion did the same with another client who was in jail. There is no evidence, nor have the clients claimed, respondent had sexual relations or engaged in any other inappropriate or unwarranted touching with either client, including with Client while she was staying in his home. There is also no evidence respondent requested sexual services in exchange for anything.
Respondent asserts he believed at the time the comments were made that they "were merely 'raunchy' banter or jokes between jailed clients with a difficult past and their attorney" and that they were part of private conversations that he never imagined would become public. Respondent now acknowledges the inappropriate nature of the comments. Indeed, our review of the portions of the telephone conversations at issue revealed respondent's comments to be sexually explicit and highly offensive in nature. We find such comments made to a client by a member of the legal profession are entirely inappropriate and they will not be tolerated.
On one occasion, respondent delivered electronic cigarettes to two clients in jail. He deliberately concealed the transfer by positioning his body in order to block the surveillance camera. A second delivery to one of the clients was foiled when an officer monitoring the surveillance camera in the visitation room witnessed respondent physically embracing the client and subsequently confiscated the electronic cigarette from the client. Electronic cigarettes were sold at the jail's commissary, and, under South Carolina law, are not considered contraband or a form of tobacco products, which are banned at the jail...
However, as an attorney, respondent was afforded special privileges by the jail facility and his delivery of the electronic cigarettes to his clients violated the trust the jail had in him as a member of the Bar.
The South Carolina Supreme Court imposed a six-month suspension for misconduct in two matters.
One involved stiffing a court reporter
On approximately seven occasions during February 2005 and October 2007, respondent and his previous law partner retained the services of a court reporter for appearances and depositions. Transcripts of the depositions were ordered by respondent and his law partner and delivered to their law offices, along with an invoice for each transcript. The total amount of the outstanding invoices was approximately $4,040.69. When the invoices remained unpaid, the court reporter filed an action in magistrate's court and obtained a default judgment against respondent and his law partner for the amount of the unpaid invoices plus court costs, for a total of $4,120.69. Respondent failed to pay his portion of the unpaid invoices — $3,279.11. Respondent represents he was initially unaware of the outstanding invoices or of the court reporter's lawsuit and judgment. However, respondent was put on notice of the allegations by ODC on or about March 29, 2012, and he has still failed to pay the outstanding invoices.
The other involved an assignment and authorization
After trial, respondent attempted to negotiate the amount of the neurologist's bill. After closely scrutinizing the neurologist's charges, respondent believed some of the charges had been inflated and some charges were fraudulent. The neurologist eventually filed a lawsuit against respondent and Client B to recover the full amount of his bill. The jury awarded the neurologist $9,054.81.
Respondent failed to disclose to the trial judge in the personal injury action that he had offered material evidence and testimony at trial — in the form of the neurologist's bill and testimony — that he later learned was partially false. In addition, by the time the neurologist's action against respondent and Client B was resolved, respondent had distributed all remaining settlement funds to Client B. Respondent failed to hold the disputed $71,000 in trust pending resolution of the dispute.
The District of Columbia Board on Professional Responsibility has approved the consent disbarment of former Akin Gump partner Jeffrey Wertkin.
The consent goes to the Court of Appeals for final action.
The pressure finally got to Jeffrey Wertkin.
Before joining Akin Gump, Wertkin spent six years as a lawyer in the Justice Department’s False Claims unit, which handles whistle-blower cases alleging fraud in connection with government contracts. Wertkin specialized in health-care fraud.
The suits, known as qui tam complaints, are filed under seal and given to the Justice Department for review. Prosecutors can intervene if they believe a case is worth pursuing. Only judges can unseal the suits and companies often don’t know they’ve been sued until then.
Wertin said in the brief that his spiral began after a federal judge in Alabama threw out a 2016 jury verdict against AseraCare Inc. over a whistle-blower’s allegations that the hospice provider fraudulently billed Medicare for patients who weren’t terminally ill. Wertkin had spent the better part a year preparing and trying the case and the outcome left him “devastated,” his wife, Erin, said, according to the brief.
Wertkin admitted making off with piles of whistle-blower complaints, some of which he grabbed off his boss’s desk after hours and copied. The lawyer said he initially sought to use them to identify companies he could market himself to as a false-claims specialist after joining Akin Gump in 2016.
“I had never done anything like that in my entire life,’’ Wertkin said, according to the brief. “I knew it was wrong. But my judgment was clouded by stress.’’
Prosecutors said Wertkin called companies targeted in the suits and hinted “that problems could be lurking for them.” By doing so, the lawyer “blatantly and unilaterally’’ compromised anonymity protections promised to whistle-blowers, the government said.
By November 2016, Wertkin’s efforts to build a client list stalled and the lawyer panicked. “If I couldn’t succeed with this inside information then how could I ever expect to succeed without it?’’ he said in the filing.
Wertkin said he decided to see whether the pilfered whistle-blower cases could be monetized more directly. He used an old iPhone to leave a message for the general counsel of a Sunnyvale, California-based company named in a sealed suit. Identifying himself only as “Dan,’’ he offered to sell a copy of the complaint, he said.
Wertkin also called companies in Oregon, Alabama and New York to make the same offer. None of the companies are identified in court papers. He offered to provide a copy to the Alabama firm for $50,000, prosecutors said.
The in-house lawyer he contacted at the Silicon Valley firm had alerted the FBI to the call. Agents set up a sting in the hotel lobby. “My life is over,” Wertkin told them when he was arrested.
Still, the government contends Wertkin’s bizarre crime spree went on even after he got out on bail.
Wertkin flew from San Francisco to Washington and headed to his Akin Gump office, where he ditched copies of the purloined complaints and destroyed phone bills reflecting calls to companies, prosecutors said.
He also attempted to frame a former Justice Department colleague to make look as if he’d sent him two of the stolen whistle-blower cases, prosecutors said. Wertkin put the suits in an envelope bearing the government lawyer’s return address, hoping to mislead investigators about the source of the complaints, according to the defense brief. The FBI started an investigation of the False Claims unit in the wake of Wertkin’s arrest.
Even before Wertkin showed up to collect the $310,000 payoff, the cops were on his heels. As an Uber driver drove him to the California hotel, he got a call from a state official at Alabama’s Department of Justice inquiring about “Dan’s attempt to sell a qui tam complaint,” according to Wertkin’s brief.
For his part, Wertkin now acknowledges he betrayed the trust of his colleagues at the Justice Department and Akin Gump. “Looking back,” he said, “I’m shocked at not only how wrong my actions were, but how reckless.”
The case is U.S. v. Wertkin, 17-cr-0557, U.S. District Court, District of Northern California (San Francisco).
Law.com reported on his recent sentencing. (Mike Frisch)
The Delaware Supreme Court has found that an attorney's communications violated Rule 4.4(a) on multiple occasions and ordered him to complete a training course with a qualified Human Resources professional approved by the Office of Disciplinary Counsel within six months.
He also has been ordered to refrain from future inappropriate sexual and religious discussions in the course of practicing law.
The behavior - which he had self-dubbed as "Hurleygate" - included "demeaning remarks to and about a former client in three separate letters to the ODC."
He also communicated inappropriately (to put it mildly) with several female and a male Deputy Attorneys General.
He had been warned about his behavior toward female attorneys by a Special Prosecutor in 2007. He responded by a letter to 67 deputy AG's claiming that his "brand of humor" was not unethical and protected as free expression.
He freely expressed to a junior female deputy that "he used to expose himself to girls in a movie theatre and while holding it in his lap and having his thing surrounded by popcorn."
Another letter stated that a female deputy had "no brain wave activity."
A Jewish junior male deputy was called a "certified asshole," should be a "goat herder in Lebanon" and said if he got "anyone to accept his [crackpot ideas] as Torah then I will abide."
Another female deputy was "extraordinarily attractive" and "stir[red] drums of passion." He also called her "beautiful but arrogant."
Finally, he called another female deputy "Kurvacious" and "Kooky" with sufficient expertise only to teach yoga.
The Board of Professional Responsibility found he had no conscious awareness of the inappropriateness of his "ribald" humor and had acted negligently,
The attorney was admitted in 1970.
Sensitivity training may be insufficient here.
Delaware Online reported that he had served as defense counsel in the high-profile Thomas Capano criminal case.
Defense attorney Joseph A. Hurley vowed he'd take it to his grave.
But he didn't.
On Friday night, he shared for the first time exclusively with The News Journal why he quit Thomas J. Capano's legal team six months before the October 1998 murder trial began.
He said it was his moral conscience — not a Capano confession about murdering Anne Marie Fahey, as many had believed.
Hurley said he had a moment of self-reflection and clarity while attending a funeral Mass at St. Helena's Catholic Church in Penny Hill for public defender James F. McCloskey Jr. on April 6, 1998.
Hurley said he'd never asked Capano if he killed Fahey after their 1996 date in Philadelphia.
"I didn't want to ask him and hear the answer," said Hurley, who is highly regarded and has handled numerous high-profile cases since becoming a criminal defense attorney in 1974.
But on that April morning, sitting in a pew at his childhood church, Hurley said, he had a conversation with God.
"I think I was probably facing the reality [Capano] was, in fact, guilty of premeditated murder," Hurley said.
He left the church, went to see Capano in prison and quit.
No longer considering Capano a friend, Hurley said, he never saw him again.
"Killing a human being? No,” Hurley said. "That's the end of friendship."
Capano was convicted of murdering Fahey in January 1999. He died in 2011 at a prison near Smyrna where he was serving a life sentence.
"I said I'd take it to my grave,” Hurley explained, "and I would of had [Capano] not reached his before."
His career is chronicled in Super Lawyers. (Mike Frisch)
The New Jersey Supreme Court has suspended an attorney for three months.
He was admitted in 1975 and had been admonished and censured
Here the Disciplinary Review Board recommended the short suspension
On October 28, 2015, respondent sent a letter to the OAE, stating that he had retired from the practice of law and wished to resign from the New Jersey bar. Attached to the letter was an affidavit dated October 23, 2015, submitted pursuant to R. 1:20-22 (Resignation Without Prejudice), in which respondent certified that no disciplinary or criminal proceedings were pending against him. The certification was false, inasmuch as "there were pending disciplinary proceedings of which he was aware," doubtless a reference to the [pending] Roberts complaint.
He defaulted, ignoring the process but nonetheless
We find that the conduct falls between and appropriate discipline for respondent’s that imposed in McLauqhlin and Gross. McLaughlin had mitigation, but no prior discipline. Respondent has prior discipline but no mitigation. Respondent’s admonition and censure, however, are facially less serious than Gross’ two censures. Moreover, neither of respondent’s prior matters proceeded as a default. Based on these distinctions, had this matter not been before us as a default, we would have imposed a censure. Respondent, however, allowed this matter to proceed to us as a default. "A respondent’s default or failure to cooperate with the investigative authorities operates as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced." In re Kivler, 193 N.J. 332, 342 (2008). For these reasons, we determined to impose a three-month suspension for respondent’s misconduct.
One board member favored another censure. (Mike Frisch)
Tuesday, March 13, 2018
An order dismissing a disciplinary matter from the Delaware Supreme Court
This 23rd day of February 2018, it appears to the Court that the Board on Professional Responsibility filed its Report in this matter under Rule 9(d)(5) of the Delaware Lawyers’ Rules of Disciplinary Procedure finding no ethical violations and thus recommending no sanction be imposed. Neither the Respondent nor the Office of Disciplinary Counsel has filed objections to the Board's Report. The Court has reviewed the matter carefully and concludes that the Board’s Report and Recommendation should be approved.
NOW, THEREFORE, IT IS ORDERED that the Report of the Board on Professional Responsibility docketed on December 6, 2017 is hereby APPROVED.
The matter is hereby CLOSED.
At Turner’s request, and without objection from the ODC, the Court has made this confidential order public. In all other respects, however, the proceedings and record of the Board shall remain confidential.
I do not view confidentiality in such circumstances to be sound policy. Credible self-regulation requires (in my view) public access to all bar proceedings even if dismissal is the correct outcome. (Mike Frisch)
The New Jersey Supreme Court has suspended an attorney for one year.
From the Disciplinary Review Board report
on October 24, 2013, the Kings County District Attorney’s Office filed a criminal complaint against respondent, which sets forth facts relating to her unauthorized practice of law. On November 15, 2013, the Honorable Gene R. Lopez, Criminal Court, City of New York, filed a complaint with the Committee on Professional Standards, Third Judicial Department, which also briefly outlined respondent’s misconduct. According to Judge Lopez’ letter, on October i0 and 17, 2013, respondent, as the defendant’s attorney, appeared before him in a criminal matter, New York v Alex Breytman, Supreme Court, Kings County. During respondent’s appearance, she informed the judge that she was admitted to practice law in New York and offered him a business card listing her New Jersey office address.
Shortly after her appearance, the "Admissions Attorney" provided the judge with written confirmation that respondent had been suspended since October 24, 2009.
Thereafter, on October 24, 2013, respondent again appeared before Judge Lopez. When the judge informed her that she had been suspended, based on her "failing to register," respondent maintained that she had been unaware of her suspension, and "stated that she had neglected to register as a result of moving to Florida." Judge Lopez learned that, when respondent left the courtroom, she was arrested and subsequently charged with grand larceny in the third degree and other related charges.
In the criminal case
According to the complaint, Svetlana Breytman had retained respondent to represent her son, Alex, in a criminal proceeding at the suggestion of a family friend. On October 17, 2013, Svetlana gave respondent a $5,000 check toward the $i0,000 fee. Svetlana maintained that she would not have retained respondent or tendered a fee had she known respondent was suspended at the time. Therefore, respondent did not have permission or authority to take or possess the $5,000...
On December 22, 2015, before the Honorable Daniel K. Chun, Kings County, Criminal Division, respondent entered a guilty plea to third degree grand larceny, N.Y.P.L. §155.35, in return for five years of probation and restitution. She admitted that, from about October 5 through October 17, 2013, she stole Svetlana Breytman’s property, valued at in excess of $3,000.
The Office of Attorney Ethics had sought disbarment
Under the circumstances present here, respondent’s guilty plea to grand larceny, which falls far short of the knowing misappropriation of client funds, does not warrant disbarment. Rather, based on the above precedent for practicing while suspended, we determine that a one-year suspension is appropriate for respondent’s violations of RPC 5.5(a), RPC 8.4(b), RPC 8.4(c), and RPC 8.4(d).
Monday, March 12, 2018
An attorney who was subject to an interim suspension has now consented to disbarment by the Pennsylvania Supreme Court.
She was admitted in 2010.
Our earlier coverage links to a PennLive story
An East Shore attorney who is the wife of a Dauphin County prosecutor has been charged with embezzling from her former law firm and then burglarizing its offices after she was fired.
Nichole A. Collins, 35, was arrested this week following a probe by the state attorney general's office. The county district attorney's office referred the case to state investigators because Collins is married to Deputy District Attorney Joel Hogentogler.
Collins, who was fired from the firm of Shaffer & Engle, couldn't immediately be reached for comment on the case Wednesday afternoon.
The charges filed with District Judge William Wenner include counts of burglary, forgery, theft, receiving stolen property, access device fraud and criminal mischief.
Special Agent Jessica L. Eger wrote in arrest papers that Jeff Engle, a partner in Shaffer & Engle, contacted Lower Paxton Township police about Collins in September. She had worked for the firm for about three years.
Engle reported to police that Collins had been stealing from the firm's cost account, which was meant to cover filing fees and court reporter expenses. Collins had admitted committing the thefts to Engle and fellow attorney Elisabeth Pasqualini, Eger wrote.
The agent said it was discovered that Collins had embezzled more than $8,000. She was fired in August and told to stay off the law firm's property.
On Dec. 7, Engle called Eger to report that files were missing from the office, including one on he had kept on Collins' alleged criminal acts and a file that contained passwords for his work and personal accounts.
Three weeks later, Pasqualini returned from a holiday break to find a small black and pink camo flashlight sitting on her desk, the agent said. Eger said Hogentogler told her during a later interview that such a flashlight had been in his and his wife's home.
Pasqualini also discovered that a purse containing her personal credit cards was missing from the office, Eger said.
An "unknown sticky substance" was found on the office's computer equipment, the agent wrote. It cost several thousand dollars to repair that damage, she said.
Pasqualini later found that her personal credit card had been used to order more than $300 worth of sex toys. That was just the first of a spree of purchases made with credit and debit cards stolen from the law office, Eger said. She said Collins also forged and cashed the personal checks of her co-workers.
Collins was photographed by surveillance cameras at some of the businesses where the alleged thousands of dollars' worth of financial crimes occurred, Eger wrote.
Collins remains free on $25,000 bail, court records show. A preliminary hearing on the case is scheduled for February.
The charging document indicates that she has paid approximatley $12,000 to her former firm.(Mike Frisch)
The Iowa Supreme Court Attorney Disciplinary Board has reprimanded an attorney for two incidents unrelated to the practice of law.
Both led to a criminal conviction.
The first incident took place on March 30, 2015. The attorney was stopped by police while driving from Des Moines to his home in Council Bluffs after celebrating his 50th birthday with friends.
He admitted drinking wine but denied he was intoxicated. He told the police "several times" that he was an attorney.
He was arrested and blew a .244% BAC. Two loaded handguns and an open bottle of vodka were found in his car.
According to the reprimand, the attorney was extended "many courtesies" not given to ordinary mortals, including multiple phone calls (one to a judge) and an offer to have an independent blood test. Contrary to protocol, he was left alone while that test was administered.
He told a trooper that the county attorney was a personal friend and the trooper's supervisor contacted him. Another police officer friend was allowed to pick up his car to avoided towing charges.
The conviction was for Operating While Intoxicated (First Offense) and the weapons charges were dismissed.
The second incident took place on St. Valentine's Day 2017.
The attorney had a second date with a woman he had met on a dating web site. When she arrived at his home, she found him "passed out" on a sofa.
She nonetheless got into a car with him driving. According to her, he drove erratically and called her derogatory names.
After dinner, he drove with her to attend a show in Omaha. They did get get there.
Rather, he continued to drive recklessly and to yell at her.
He pulled into a Shell Speedy Mart and told her to "get the f--- out of the car."
She ran into the store, told the clerk to call the police and locked herself in the bathroom. He pounded on the bathroom door before giving up and departing the premises.
The police came and took her to his home to retrieve her personal items. He "crudely" demanded that the police depart.
The conviction was for Disorderly Conduct in a Place of Business.
The board noted a "troubling pattern of being confrontational and uncooperative, bragging about [his] status as a lawyer and resorting to name dropping when convenient." (Mike Frisch)
Saturday, March 10, 2018
The Louisiana Attorney Disciplinary Board proposes disbarment for an attorney's fraudulent efforts to secure ownership of three properties
In the charges, ODC alleges that the Respondent violated Rules of Professional Conduct 3.3(a) and (d) and 8.4(c) when he engaged in three transactions between 1999 and 2001 in which he sought to obtain the ownership of St. Tammany properties belonging to absentee owners without a credible factual or legal basis for doing so.
The hearing committee had found misconduct and proposed a deferred six-month suspension.
The legal setting
A brief review of certain tenants of Louisiana property law and a description of the procedures employed by Respondent is helpful in understanding the facts of and issues presented in this matter. The Louisiana Civil Code recognizes several methods for acquiring ownership of immovable property, including possession of property for either 10 or 30 years, depending on the circumstances. La. Civ. Code arts. 3473-3488. Respondent freely admits that he did not own the properties at issue and had no claim to title. Therefore, under La. Civ. Code art. 3486 et seq., he would be required to possess the property for 30 years before acquiring ownership of the property. Respondent, however, believes he has found a way, under an article of the Louisiana Code of Civil Procedure, to acquire property based on possession of only one year.
He filed declaratory judgment actions against the absentee owners
The quitclaim deeds each contained the forged signature of Respondent' s corporate partner, Timothy Dunaway, and were signed by the Respondent himself without Mr. Dunaway's prior knowledge and consent. Mr. Dunaway's putative signature was also accompanied by an attestation clause falsely certifying Mr. Dunaway's signature to be genuine and appropriately witnessed and notarized, none of which was true, as Respondent has admitted. By making false statements of fact to the court in his testimony in the Magee v. Nill and Magee v. Wantz matters concerning the quitclaim deeds, submitting the false quitclaim deed into the record in the Magee v. Nill matter, and filing the petitions for declaratory judgment which referenced the false quitclaim deeds into the records of the Magee v. Nill, Magee v. Wantz, and Magee v. Hymel and Turnbull matters, the Respondent violated Rules 3.3(a)(l) and (a)(3).
There was significant harm to the owners
Here, the Respondent has violated duties owed to the legal system, the public, and the profession. His actions were intentional. The amount of actual injury caused by the Respondent's misconduct was great. Lloyd and Nicole Martin (subsequent owners of one of the lots of the Nill property) suffered extensive financial harm and emotional anguish after a scheduled April 2008 closing on their Abita Springs home fell through. Unable to sell their home due to the title defect concerning their home and facing financial difficulties, they were forced into default of their existing mortgage and were unable to sell their home until 2015. This sale was a short sale, which required them to assume an additional $10,000 in indebtedness which they are currently paying down. The Martins sued their title insurer, who was able to locate the Nill heirs and obtain quitclaim deeds in favor of the Martins. Respondent was ordered to reimburse the title insurer for the cost of obtaining the quitclaim deeds which cleared the cloud on title. (See Exh. ODC 7 A, order denying Respondent's motion for summary judgment and recognizing that the quitclaim deed and two judgments created clouds on the title rendering the Martin's title unmerchantable; and Exh. ODC 7B, Judgment dismissing the Martins' claim because the title insurer cured the defect and ordering Respondent to reimburse the title insurer the expense of obtaining the quitclaim deeds).
Mr. and Mrs. Lampo's (subsequent owners ofthe Wantz property) efforts to refinance their home were delayed for three years because of the title defect associated with their home. Ms. Robinson (subsequent owner of another section of the Nill property) suffered harm when she, along with the Lampos and the Martins, were sued by the Respondent for defamation, an act of retaliation for their prior civil RICO suit brought against the Respondent for damages.
A bad attitude never helps
Later, the Respondent inflicted more indignity upon the complainants when he convened a meeting with these complainants at the Abita Brew Pub in 2015. At this meeting, he sought to persuade them to dismiss their disciplinary complaints brought against him in return for his dismissal of his defamation action. The Respondent behaved arrogantly, dismissive of the misfortunes the complainants had endured because of his misdeeds. He ridiculed the complainants as "losers" at the meeting, making a "L" sign on his forehead with his thumb and forefinger. Ultimately, the Respondent's attempt to obtain a dismissal of the disciplinary complaints was unsuccessful. Respondent's conduct was publicized through news articles in the newspaper and online in ways that reflected negatively on the profession.
Here, Respondent filed false documents into the public records of St. Tammany Parish. He also submitted false documents and testimony to the courts when he filed or referenced the quitclaims at issue in the declaratory judgment proceedings discussed in this matter. Further, Respondent's testimony concerning these quitclaims was misleading. He also brought a harassing defamation action against the complainants in this matter after they filed a civil RICO lawsuit against him. Such misconduct is similar to that found in Harris, Pinkston and Simpson and falls squarely within ABA Standard 6.11. As such, this misconduct warrants a sanction ranging from disbarment to permanent disbarment. Because of the mitigating factors present, particularly the lack of prior discipline, the Board recommends that the Respondent be disbarred.
Friday, March 9, 2018
The New York Appellate Division for the First Judicial Department has imposed disbarment for an attorney's acts of domestic violence and other serious misconduct in his domestic and bar matters.
Supreme Court's 100-page decision and order had granted respondent's wife sole custody of the couple's then two-year-old son and found that respondent, a pro se litigant: had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had, beginning in April 2014, engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges (a judge of the District of Columbia Superior Court, the original matrimonial judge and the matrimonial judge who made these findings [matrimonial judge]), setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, Supreme Court found that respondent had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child. Based on Supreme Court's decision, applying the doctrine of collateral estoppel, this Court found that respondent had violated New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); rule 8.4(d) (conduct prejudicial to the administration of justice); rule 3.1 (frivolous litigation); rule 3.3(a)(1) (knowingly make a false statement of fact or law to a tribunal); rule 3.3(a)(3) (knowingly use or offer false evidence); rule 3.3(f)(2) (undignified or discourteous conduct before a tribunal); and rule 8.4(h) (other conduct adversely reflecting on fitness as a lawyer), and directed that a sanction hearing be held.
The referee considered the evidence
Before the Referee, the Committee read into the record a February 19, 2016 deposition it conducted of respondent in which he admitted that in January 2014 he filed a report with the D.C. police accusing his former wife of perpetrating acts of domestic violence against him, which accusations Justice Cooper found to be entirely unfounded. As mitigation evidence, respondent introduced a limited portion of his deposition testimony in which he made reference to the fact that he was in counseling during his senior year in college and again sporadically while in law school, that he took antidepressants while in college, and in high school, he volunteered with the homeless. He also introduced a letter from his therapist, in which she stated that she had sporadically treated respondent over the course of two years but starting in April 2016 he consistently attended therapy on a biweekly basis. He also introduced four letters from character witnesses, and maintained that any misconduct on his part occurred solely in the context of his custody dispute.
The Referee rejected respondent's mitigation evidence, finding incredible respondent's accusations of domestic violence by his then-former wife, noting their rejection by both the D.C. police and the courts in D.C. and New York; that respondent's deposition testimony as to the sporadic counseling he received in law school and his occasionally taking antidepressants while in college did not constitute mitigation; that his charitable work was insignificant; and that his therapist's letter and the similarly worded letters of four character witnesses provided no basis for mitigation. The Referee opined that while respondent's good conduct during the sanction hearing supported his contention that his disruptive courtroom behavior was confined to the custody litigation, nonetheless, such good behavior is required of lawyers at all times and, thus, did not mitigate his prior misconduct.
The court on sanction
This record in this case is replete with numerous egregious and outrageous acts of misconduct perpetrated by respondent over the course of a four-year period, including his repeated acts of domestic violence toward his wife; his false testimony at the custody trial; his introduction of falsified evidence in the form of altered text messages; his presentation of misleading testimony through his expert witnesses; his flouting the directives of three judges; his setting up of a fake website about the attorney for the child in the custody action and posting derogatory messages about her on it; his baseless filing of a disciplinary complaint against a court-appointed psychiatric expert; his threatening text messages directed to his wife; his cell phone calls to his then three-month-old son baselessly accusing his father-in-law of being a child sexual abuser who could harm him; his engagement in frivolous litigation against his wife, her parents, and her attorneys; his attempted defamation of the attorney for the child; and his filing of a police report falsely accusing his wife of committing acts of domestic violence. Notwithstanding the repeated acts of egregious misconduct respondent has committed over the course of several years, he has neither demonstrated any remorse nor any acceptance of responsibility for his intolerable actions. This long list of aggravating factors, and the lack of mitigating factors weighing in respondent's favor, fully support the Referee's recommendation that respondent be disbarred.
Law360 reported that he is a former Mintz Levin attorney and that he falsely accused a judge of spitting on him.
JD Journal also reported on the divorce case.
Zappin graduated from Columbia Law School in 2010 before he landed a job at New York’s Latham & Watkins, a Manhattan mega firm. Then he moved on to Quinn Emanuel Urquhart & Sullivan, another mega firm. He was known as a legal pit bull for his aggressive nature in getting cases done.
But while a certain amount of ruthlessness will get you far in the legal world, Zappin’s aggression proved to be too much. He was fired by Quinn Emanuel Urquhart & Sullivan, and then he allegedly created an account on the spousal cheating website, Ashley Madison, in his boss’ name to embarrass him.
Adding more to his monster-like behavior, Zappin allegedly beat his pregnant wife, Claire Comfort, a lawyer with Weil, Gotshal & Manges.The court shrink testified that Comfort said Zappin slapped her, hit her glasses, hit her head, and hit her stomach with car keys when he was angry.
Comfort said she was abused until she left him when their son was eight weeks old. Zappin countered that he was not abusive and in fact, she was the crazy one. As proof, he read a text that he sent to her where he said that she “bit my dick.”
Because the two accused each other of being crazy, Ravitz ordered psych evaluations on both parties. He found that the two of them were in a classic abusive relationship dynamic. Zappin was “narcissistic, obsessive-compulsive and histrionic” and Comfort had “an automatic need to obey others who assert authority” and low self-esteem.
Comfort is fighting for custody of their son, who is now two. She and Zappin both attended Columbia.
ABA Journal had the story of sanctions imposed in the divorce litigation and his departure from Mintz Levin. (Mike Frisch)