Wednesday, September 28, 2016

The Cocaine In The Denali

A two-year suspension was imposed by the South Carolina Supreme Court as a result of a criminal conviction and misconduct in connection with the representation of a client in a personal injury matter.

The attorney's crimes were described by the United States Attorney for the Western District of North Carolina

According to information contained in court documents and today’s sentencing hearing, Anderson represented Lonnie Maddox on federal drug charges in South Carolina in connection with a large-scale cocaine conspiracy. Court records indicate that from February 21 to March 15, 2013, and on five different occasions, Anderson lied to federal agents concerning his knowledge of the whereabouts of two of Maddox’s vehicles. Maddox had purchased the vehicles with the illegal proceeds of his drug dealings. According to court records, Anderson knew where Maddox’s Yukon Denali sport utility vehicle was located, but repeatedly denied this fact when questioned by DEA and HSI agents. Court records also show that Anderson lied to law enforcement about his participation in moving the Denali, which law enforcement ultimately retrieved from Anderson’s law partner’s residence. According to today’s sentencing hearing, when law enforcement agents recovered the Denali, they found one kilo of cocaine hidden in a concealed compartment inside the vehicle.

In addition to the Denali, Anderson also initially lied to federal agents about possessing another one of Maddox’s vehicles, a classic Chevrolet Chevelle, court records indicate. And despite Anderson later admitting to law enforcement that he had in fact possessed the Chevelle, Anderson lied about the location from where he had obtained the vehicle.

 The suspension was imposed nunc pro tunc to the date of an interim suspension. (Mike Frisch)

September 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 27, 2016

The Ungovernable

A Hearing Tribunal of the Law Society of Upper Canada has ordered license revocation of a member deemed to be "ungovernable"

A determination of ungovernability is based on a case by case analysis, the guiding principle of which is protecting the public interest.  It is essential that members of the profession be willing to be governed by the Law Society and adhere to its dictates, otherwise, the public cannot be protected...

The series of suspensions based upon prior findings of professional misconduct is evidence of unwillingness or an inability on the part of the Mr. Cuddy to be governed by the Law Society.  The progressive and increased penalties have not had the desired effect of modifying his behaviour and making him more amenable to compliance and co-operation with the Society’s investigative duties and function.  This is further evidenced by this fourth finding of professional misconduct.

This is confirmed ultimately by the Licensee’s expressed willingness to surrender his licence.  The question is whether or not the Tribunal should grant Mr. Cuddy permission to surrender or impose a penalty of revocation.  That determination turns upon the second branch of the test of ungovernability.  This Tribunal must balance the nature of the misconduct and disciplinary history against mitigating factors.

The factors did not favor resignation

The Tribunal is not without compassion.  However, we are bound to balance the aggravating and mitigating circumstances of the case in respect of penalty.  We must consider the issues of general and specific deterrence, rehabilitation and the interests all lawyers and paralegals share as self-regulating professions in protecting the public. On the issues of specific deterrence and rehabilitation, surrender of licence versus revocation of licence is a moot point.  In both circumstances Mr. Cuddy would no longer practise law.    

On the point of general deterrence, it is important to highlight a licensee’s obligation to co-operate with the Law Society in discharging its duty to protect the public by providing prompt meaningful responses to the Law Society in its inquiries.  The Tribunal concludes that this is a case in which reproof of unresponsive conduct is necessary.  Mr. Cuddy’s repeated conduct of non-compliance has thwarted the Law Society’s critical function of protecting the public interest on several occasions.   As noted in Strong... repeated and habitual non-compliance by licensees with inquiries, correspondence and communications from the Law Society “compromises the credibility of the self-governance regime” that lawyers and paralegals in Ontario enjoy.

Bottom line

Although we have compassion for the Licensee, the behaviour exhibited by the Licensee necessitates revocation.

(Mike Frisch)

September 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Almost Teacher Of The Year

The Louisiana Attorney Disciplinary Board has recommended a fully-stayed one year and a day suspension for conversion of entrusted funds.

In December 2006, Respondent wrote checks drawn on the firm's client trust account totaling $2,900 [sic t to obtain cash to permit him to gamble at a Shreveport casino.

Respondent thereafter self-reported these offenses to ODC and began treatment with Gamblers Anonymous. Full restitution of the funds were made to the firm's account shortly after Respondent reported to the ODC.

Nonetheless, by his acts and omissions, the Respondent has violated Rule 1.15 (conversion of client/third party funds).

As to sanction

The Levith case is similar to the matter at hand in that both respondents converted funds from their client trust accounts to pay for gambling activities. The Board recognizes that Mr. Levith's misconduct was classified as negligent by the Court, and Mr. Miciotto's misconduct was knowing and intentional. Nevertheless, given the mitigating factors present here, including absence of a prior disciplinary record, personal or emotional problems, remorse, and full and free disclosure to disciplinary board or cooperative attitude toward proceedings, the Board finds that the hearing committee's recommended sanction of a one year and one day suspension, fully deferred with conditions, is more appropriate than the harsher sanction imposed in Levith. Further, the Board is impressed with the Respondent's efforts towards rehabilitation and his work from 2007-2014 as a teacher in the Caddo Parish School District. As noted above, the Respondent earned the honor as Teacher ofthe Year at Fair Park High School in 2013 and was a finalist for 2013 Teacher of the Year for the Caddo Parish School District. The affidavit submitted by Schannon Lanclos, his former supervisor at Woodlawn High School and Fair Park High School in the Caddo Parish School District, describes Respondent as an outstanding teacher, coach and employee who was well-respected by students, teachers and school administrators. Given this, the Board will adopt the hearing committee's recommended sanction, with the addition of a two year probationary period.

I accord substantial weight to the voluntary self-report but otherwise view this as a rather lenient response to the misconduct.

Notably, it appears that the self-report occurred in 2007. (Mike Frisch)

September 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 26, 2016

An Affair To Reprimand

The Virginia State Bar Disciplinary Board web page reports

On September 20, 2016, the Virginia State Bar Third District Subcommittee issued a public reprimand to Cameron Heaps Ippolito for violating a Georgia Rule of Professional Conduct that governs special responsibilities of a prosecutor. This was an agreed disposition of misconduct charges.

WTOC.com 11 had a story that may be related

The fallout continues from an illicit affair between an ATF agent and an assistant U.S. Attorney who've both teamed up for more than 200 gun and drug cases.

Not only is the affair facing continuous scrutiny, but it's now the subject of an investigation by Justice Department's Office of Inspector General.

The affair between assistant U.S. Attorney Cameron Ippolito and ATF Special Agent Lou Valoze went on in secret for five years.

Two Brunswick men who Ippolito and Valoze worked together to put behind bars on gun and drug charges have been given new trials. A third person is set to get his sentence reduced, while the fourth has filed a motion for a new trial.

The defendant, Eduardo Cruz-Camacho, claims ATF agents lured and entrapped him into a fake Savannah storefront. The ATF was using a secret informant, who Cruz-Camacho claims harassed and threatened him until he brought an illegal gun to the fake store.

The Department of Justice admits that Ippolito and Valoze conspired to keep the informant in the country, falsifying a Visa application even though he'd stolen from the ATF.

“The Department takes these allegations seriously and is taking active and appropriate steps with regard to the employees involved,” said the ATF.

The ATF declined to comment further only to cite the department's ongoing investigation into the matter.

Neither the ATF nor U.S. Attorney's office in Savannah will say whether Ippolito and Valoze are still employed.

Law360 had this story.  

ABA Journal also reported on the fallout.  

Jacksonville.com noted a sentence reduction ordered in a case involving the agent and the AUSA and new trials granted in two other mtters .  (Mike Frisch)

September 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Yeast Of the Misconduct: Bar Complaint Was "Craven, Cowardly, And Unmanly"

A 30-day suspension has been imposed by the Virginia State Bar based on an agreed disposition.

The complaint was counsel in a motor vehicle personal injury accident; respondent was opposing counsel.

Respondent stipulated in the bar matter that he "was personally insulting, verbally abusive and rude toward [the complainant], his client, and others..."

He had called the client a "scam artist" with a "garbage" case, asked "[w]hy don't we adjourn to Mr. Rogers' neighborhood on this?" and told the plaintiff at deposition that he was "not going to try any more logic on you."

He interrupted counsel at the treating doctor's deposition and accused him of a "slight [sic] of hand" by having the doctor adopt prior deposition testimony.

Most lamentably, he engaged in misconduct by  "unnecessarily and unduly dwelling on a yeast infection for which plaintiff had been treated."

His answer to the bar complaint lent fuel to the fire as he sought to "first put [complainant's] whine in its proper context and then offer my cure for what ails [him]."

The "whacking" he had administered to complainant left him "a man pirouetting across the courtroom floor and then planting a vicious roundhouse punch on his own nose."

In an interview with the bar, he called the matter "horseshit," expressed the view that it is "craven, cowardly, and unmanly" for one lawyer to complain about another, and explained that the "boobs at the bar just do not understand why his tactics are not only acceptable but effective." (Mike Frisch)

September 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Long Time for A Fairly Simple Task

An attorney who had neglected to pursue a divorce for a client was censured by the New Jersey Supreme Court.

According to the report of the Disciplinary Review Board

From late 2006 through 2012, respondent’s office seeking the status of her divorce. Hutt frequently contacted Respondent would then send her new versions of the draft complaint and/or other forms to complete, which respondent told Hutt were necessary due to the passage of time.

At the DEC hearing, respondent conceded that, although she had received from Hutt sufficient information to immediately file a divorce complaint on Hutt’s behalf, she failed to do so through all of 2007.

The back-and-forth continued for several years and led the client to seek a refund.

Then

Hutt then received a copy of respondent’s September 11, 2012 letter to the Camden County Clerk purportedly enclosing the complaint for filing, along with a $275 check for the filing fee. In a contemporaneous telephone conversation, respondent told Hutt that the complaint had been filed. As it turned out, that was not true.

The client discharged the attorney by phone that day.

The DRB

Hutt retained respondent in late 2006 to file a fairly simple divorce. In fact, even Hutt’s then-husband tried to hurry respondent along, to no avail. Inexplicably, respondent failed to file a complaint in late 2006 or early 2007, even though she already had all of the information necessary to file a complaint.

By all accounts, Hutt did what was expected of her, returning to respondent the multiple versions of the same unfiled documents that respondent periodically sent her for updates. Respondent, however, dropped the ball -- not once, but numerous times over the six years from late 2006 until September 2012, when Hutt finally terminated the representation.

(Mike Frisch)

September 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Your Bond Is My Fee

The Illinois Administrator has charged an attorney with dishonesty and engaging in business transactions with two clients in criminal matters.

He is alleged to have changed fee arrangements mid-case to access bond money.

In a stolen car case

The new fee agreement that Respondent asked Rayford to sign on March 1, 2012, ... provided for Respondent to keep the $2,150 in fees he had already received from Rayford and, in addition, allowed Respondent to take the entire $4,500 bond refund in Rayford's case as fees, for a total fee of $6,650.

At no time did Respondent advise Rayford to consult with independent counsel before Respondent asked Rayford to sign the new fee agreement, which allowed Respondent to collect $4,150 in additional legal fees, above the original $2,500 flat fee agreement between Respondent and Rayford. At no time did Respondent explain to Rayford that Respondent's receipt of the additional legal fees was contrary to the agreement to pay Respondent a flat legal fee and that he had no obligation to agree to pay Respondent additional legal fees.

At no time did Respondent explain to Rayford that his interest in obtaining additional legal fees was in conflict with Rayford's interest in maintaining the existing $2,500 flat fee agreement, nor did Respondent obtain Rayford's consent to his receipt of the additional fee after disclosure.

In a robbery case

 Prior to Adams plea and sentencing, Respondent asked Adams, outside the presence of [his mother] Isom, to sign his cash bond refund over to Respondent to be applied to his legal fees. Adams advised Respondent that he and Respondent would need to speak with Isom. Respondent, Adams and Isom then discussed the bond refund. Isom and Adams agreed to have the bond refund signed over to Respondent with the understanding that Respondent would advise Isom when he received the bond refund check and send her the balance of the bond refund after subtracting the fees still owed to him from the $5,000 fee agreement. Respondent accepted an additional $300 in cash from Isom that day to be applied to the $5,000 fee, resulting in a balance of $2,885 owed to Respondent from the bond refund and a remainder of $6,115 to be returned by Respondent to Adams and Isom. After that conversation Adams signed the Petition/CBR to Attorney document authorizing his bond to be refunded to Respondent.

Thereafter, he is alleged to have converted the bond money, created a false document and made a false statement in the disciplinary matter. (Mike Frisch)

September 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 23, 2016

Consent Suspension In Louisiana

The Louisiana Supreme Court accepted a consent suspension of an attorney whose federal suspension was recently affirmed by the United States Court of Appeals for the Fifth Circuit.

Respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent acknowledges that he engaged in conduct that was prejudicial to the administration of justice and implied an ability to improperly influence a judge, in violation of Rules 8.4(d) and 8.4(e) of the Rules of Professional Conduct.

Having reviewed the petition, IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joseph N. Mole, Louisiana Bar Roll number 9538, be suspended from the practice of law for one year, with all but six months deferred

The conduct in the federal matter related to an effort to recuse since-impeached Judge Thomas Porteous.

A single judge of the district court had recommended dismissal but 

The en banc court disagreed. It found that “the clear and convincing evidence introduced at the Senate hearing and before this Court establishes Mr. Mole selected and recommended Mr. Gardner to represent Lifemark because of Mr. Gardner's close friendship with Porteous and with the intent to get Porteous recused,” and that “the clear and convincing evidence establishes the [$100,000] severance fee in the letter agreement was intended to provide an incentive for Mr. Gardner to achieve this result.” The en banc court found that Mole's conduct violated Rules 8.4(d) and (e) of the Louisiana Rules for Professional Conduct and suspended him from practice before the court for one year, with six months deferred. This appeal followed...

The en banc court found that Mole hired Gardner to prompt Porteous's recusal after reviewing testimonial evidence derived from both the Senate hearings and Mole's own disciplinary hearing before Judge Berrigan, as well as documentary evidence such as the retention letter between Mole and Gardner. The en banc court found the “testimony that the terms of the letter agreement were not drafted in an attempt to secure the recusal of Porteous to be incredible.” The en banc court highlighted Mole's testimony before the Senate, where Mole admitted that “getting the judge to recuse himself would be the only way to get a fair outcome”; “getting Judge Porteous to recuse himself was a priority with [him], and one of the things [he] hoped Mr. Gardner's presence in the case ․ would accomplish”; and that he “certainly considered that maybe if [Gardner] got involved ․ Porteous didn't have a legal responsibility to recuse himself because of that but that he might.” The en banc court also noted that it “did consider evidence presented at the [hearing before Judge Berrigan], but also gave weight to the sworn testimony before the Senate ․ given at a time when the witnesses had no personal stake in the outcome.” The en banc court thus concluded that, “[t]aken as a whole, the evidence provided clear and convincing evidence that Mr. Mole's intent was to prompt former Judge Porteous's recusal.”

Based on all of the above, the en banc court's conclusion is plausible. First, Mole's Senate testimony contains numerous admissions regarding his hope that the retention of Gardner might prompt a recusal. Second, the $100,000 severance fee in the retention letter incentivizes the prospect of a recusal. A lthough Mole claims that the severance fee was merely intended to “buy out” Gardner, the evidence shows that Gardner never requested such a provision in the agreement. Mole also acknowledged that if Porteous had recused himself immediately upon Gardner's enrollment, Gardner would have received the full $200,000 payment for enrollment and severance, despite not doing any work. This shows that the severance fee was unrelated to any labor Gardner may have performed on the case or any opportunity cost he may have incurred in time away from his own practice. It is therefore plausible that the purpose of the severance fee was to prompt a recusal.

Finally, even if we find Mole's version credible, “[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir.2015) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). And “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574. Because the en banc court's determination that Mole hired Gardner to obtain Porteous's recusal is plausible in light of the record as a whole, we cannot set aside that finding.

The Fifth Circuit rejected a variety of procedural and substantive objections to discipline. (Mike Frisch)

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

Benefit Of The Doubt

The Illinois Review Board has recommended a 60-day suspension for litigation misconduct that mostly took place in the last century.

The events that led to this disciplinary matter are part of an epic and Byzantine saga of litigation in federal court, which is recounted in detail in the Hearing Board's report and will be summarized as briefly as possible here. Our focus is on the proceedings that resulted in the appeals that the Administrator alleges are frivolous.

Respondent was admitted to practice in Illinois in 1976, and worked for Jenner & Block and another firm before starting his own practice in 1987. In 1988, a Maryland attorney, Jeffrey Hines, began representing Illinois Company Grove Fresh Distributors, Inc. (Grove Fresh), which sold orange juice manufactured by contractors. In 1989, Mr. Hines filed a federal lawsuit in the U.S. District Court for the Northern District of Illinois against some of Grove Fresh's competitors, alleging that they sold adulterated and misbranded orange juice in violation of federal law. Mr. Hines hired Respondent as his local counsel, and eventually ended his representation of Grove Fresh, at which time Respondent took over as its sole counsel.

The first Grove Fresh lawsuit (Grove Fresh v. Everfresh Juice Co., No. 89 C 1113) was assigned to Judge Zagel, who, during the course of the proceedings, came to believe that Respondent had ignored court orders and disclosed confidential information to generate unfavorable publicity for defendants. Thus, in a second Grove Fresh case (Grove Fresh v. John Labatt Ltd., et al., No. 90 C 5009, hereinafter referred to as the Grove Fresh case or litigation), Judge Zagel ordered that the complaint and all subsequent proceedings shall be filed under seal, and, in May 1991, entered a stipulated protective order to protect confidential and proprietary information and to facilitate discovery.

In January 1993, Grove Fresh relieved Respondent of responsibility for the litigation and other counsel took over. In April 1993, the Grove Fresh case was dismissed with prejudice pursuant to a settlement. In June 1993, a group of journalists intervened in the Grove Fresh litigation and filed a motion to vacate the seal Judge Zagel had previously entered. Judge Zagel denied their motion, and they appealed to the Seventh Circuit. In their response brief, the Grove Fresh defendants accused Respondent of bringing false allegations against them in order to obtain a multi-million dollar settlement.

Respondent initiated additional proceedings before Judge Zagel because of defendants' accusation, and, in October 1993, filed a motion with the Seventh Circuit requesting a hearing on the allegations made by the Grove Fresh defendants in the journalists' appeal. The court struck the motion. Subsequently, the Grove Fresh defendants filed two petitions for contempt against Respondent, alleging that he had disclosed confidential and protected information in his Seventh Circuit motion for hearing and in a letter to counsel for the journalists.

The problem

During the course of decades-long federal litigation, Respondent was charged with violating a protective order in the early 1990s. That led to a contempt order in 1995 and monetary sanctions in 1997, which were upheld on appeal, followed by a second contempt order in 2000. Shortly before the court entered the second contempt order, Respondent filed a Rule 60(b) motion to vacate the first contempt order, which the court denied, and then filed an appeal, which the Seventh Circuit found frivolous. In a bankruptcy proceeding that resulted from the monetary sanction imposed in the first contempt proceeding, in 2009, Respondent appealed to the U.S. District Court from the bankruptcy court's decision to give collateral estoppel effect to the first contempt order; and in 2011, he appealed to the Seventh Circuit from the U.S. District Court's decision affirming the bankruptcy court's decision.

Based on Respondent's appeal from the denial of the Rule 60(b) motion and two bankruptcy appeals, the Administrator filed his complaint against Respondent.

Following a hearing, the Hearing Board found that Respondent filed a frivolous pleading and engaged in conduct prejudicial to the administration of justice in relation to the Rule 60(b) appeal, but not with respect to the bankruptcy appeals. It recommended that Respondent be suspended for 60 days and until he completes the ARDC's Professionalism seminar.

On review, Respondent challenged the Hearing Board's finding that he engaged in any misconduct at all, as well as some pre- and post-hearing rulings, and the Administrator challenged the Hearing Board's findings of no misconduct arising out of the bankruptcy appeals, as well as its sanction recommendation.

The Review Board affirmed the Hearing Board's finding of misconduct with respect to the Rule 60(b) appeal and its findings of no misconduct with respect to the bankruptcy appeals. It concurred with the Hearing Board's sanction recommendation and recommended that Respondent be suspended for 60 days and until he takes the ARDC's Professionalism seminar.

Sanction

we acknowledge, but reject, the Administrator's urging that Respondent be suspended until further order of court because of his unwillingness to conform his conduct to his professional obligations. As was the Hearing Board, we are disturbed by Respondent's conduct during his disciplinary proceeding, in which he continued to rehash the Grove Fresh litigation and made baseless accusations against the Administrator. We hope that, once this disciplinary matter is behind him, Respondent can conduct himself in accordance with his professional obligations as he did before the Grove Fresh litigation commenced. Accordingly, we will give him the benefit of the doubt and decline to suspend him until further order.

We believe, however, that he would benefit from taking the ARDC's Professionalism seminar, and therefore recommend that he be suspended for 60 days and until he completes the ARDC's Professionalism seminar.

This 1995 coverage from the Chicago Tribune. (Mike Frisch)

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

"Condemned And Pronounced Wrongful By Honest And Fairminded Men"

The Wisconsin Court of Appeals affirmed the grant of summary judgment against an attorney who sought compensation from John Menard and his business interests as well as with respect to counterclaims that the attorney had breached fiduciary obligations to her client.

Debra Sands appeals orders dismissing her claims against John Menard, Jr., Menard, Inc., and Menard Thoroughbreds, Inc., (“the Menard Defendants”) and against the trustees of the John R. Menard, Jr. 2002 Trust and related trusts (“the Trustees”). Sands claims she cohabitated with Menard from 1998 until 2006, and during that time she performed work for Menard and his companies that increased their value and for which she was not fully compensated. Sands further claims Menard repeatedly represented to her during their relationship that he would give her ownership interests in his companies as compensation for her services, but he has since failed to do so...

Menard is the founder of Menards, a highly successful, privately held chain of home improvement stores, and is president and chief executive officer (CEO) of Menard, Inc. In November 1997, nearly forty years after starting his business, Menard began dating Sands. Sands had graduated from William Mitchell Law College of Law in 1993 and was licensed to practice law in Minnesota.

The personal relationship did affect the attorney's ethical obligations

Here, Rule 1.8(a) sets forth a standard of conduct with which an attorney must comply when entering into a business transaction with his or her client. If, as Sands alleges, she entered into a business transaction with Menard by which she agreed to perform legal services for him in exchange for an interest in his businesses, Sands was required to comply with Rule 1.8(a). It is undisputed that Sands failed to comply with the rule. By doing so, Sands committed a willful act that would be “condemned and pronounced wrongful by honest and fairminded men.” See David Adler & Sons, 200 Wis. at 160. As such, Sands’ hands are unclean, and her violation of Rule 1.8(a) therefore bars her from recovering on her equitable claims.

As to claims against the attorney

We do not find the foreign cases cited by Menard, Inc., persuasive. Instead, we conclude the existence of a fiduciary relationship, rather than excusing a client entirely from its obligation to investigate, is merely one factor to be considered in determining whether the client exercised reasonable diligence to discover a claim against its attorney. Under the circumstances of this case, although a fiduciary relationship existed between Sands and Menard, Inc., other undisputed facts show that Menard, Inc., was a sophisticated corporate actor and that its president and CEO harbored suspicions about Sands’ conduct for approximately one year before the Fund transaction closed. Those facts gave rise to a duty to investigate, regardless of the fiduciary relationship between Sands and Menard, Inc...

Here, although Menard, Inc., may not have had full knowledge of Sands’ alleged misconduct on September 1, 2005, it certainly had enough information at that time to prompt a reasonable person—or, more to the point, a reasonable corporation—to inquire further. As a result, Menard, Inc.’s counterclaim against Sands for breach of fiduciary duty accrued on September 1, 2005. Because the counterclaim accrued before November 3, 2006, it is barred by the two-year statute of limitations...

The Milwaukee Journal Sentinel has a report.   (Mike Frisch)

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

Thursday, September 22, 2016

Military Service Meets Oklahoma Reciprocity For Admission Requirements

The Oklahoma Supreme Court has held that a military attorney may waive into the Bar without examination.

The facts are agreed by the parties. The appellant, Major James M. Green (Major Green) grew up in Muskogee, Oklahoma, and graduated from high school there in 1991. He then served on active duty in the United States Marine Corps for nine years. After an honorable discharge, he obtained an undergraduate degree from Northeastern State University in Tahlequah, Oklahoma, and a law degree from Thomas M. Cool[e]y Law School in Lansing, Michigan. Major Green was admitted to the Florida Bar Association in May of 2007. Florida is not a reciprocal state with Oklahoma.

 In June of 2007, Major Green returned to the Marines as an attorney and on March 21, 2008, he was designated a Judge Advocate after having attended the Naval Justice School in Newport, Rhode Island. Since that time, he has served in a variety of roles. He is currently Regional Victims' Legal Counsel for the National Capitol Region, which includes the eastern United States and Europe.

Major Green has been stationed at the United States Marine Corps Base at Quantico, Virginia since approximately the beginning of 2001. Most of his work occurs at his office provided by the military at Quantico. In January of 2014, he became a member of the Virginia Bar after taking the Virginia bar examination. [Virginia has reciprocity with Oklahoma.] Seeking to retire from the military and return to Muskogee to practice law and be near his family, Major Green filed an application for admission on motion under Rule 2 of the Rules Governing Admission to the Practice of Law in the State of Oklahoma, 5 O.S. Supp. 2015 ch.1, app. 5.

On March 13, 2015, the Board denied his application because he had not engaged in the practice of law in a reciprocal state for five of seven years immediately preceding his application. There were no other aspects of his application which were disputed, ie. good moral character, due respect for the law, and fitness to practice law. Major Green then asked for a hearing under Rule 11, 5 O.S. Supp. 2015 ch.1, app. 5.  On September 4, 2015, Major Green appeared pro se before the Board for a hearing regarding his eligibility for admission under Rule 2 of the Rules Governing Admission, 5 O.S. Supp. 2015 ch.1, app. 5. On October 19, 2015, the Board denied his application. Apparently, a majority of the nine board members voted to deny Major Green's application but no vote was recorded.

The Board agreed that he had engaged in the practice of law for five of the last seven years, but determined that serving and practicing law in the military was not a "reciprocal state" under Rule 2. The Board commended Major Green for his service, but offered no sympathy and advised him to take the Oklahoma Bar Exam. The Board also admitted that our rules make it difficult for any military lawyer to ever qualify for reciprocity, but concluded that was no justification to grant admission.

The court held that the applicant's military service as an attorney met reciprocity requirements

Major Green has with his service, represented the United States of America. Whether it is called a jurisdiction or a country, it is a conglomerate of all the states. Some of the purposes of letting military spouses practice law where their spouse is deployed is to eliminate the need for an additional bar examination, relive a significant portion of stressors for family, expedite job search efforts, and allow them to contribute to their families. Major Green has passed the bar examination in two of those states. Surely, that is more than sufficient. Major Green stated at the hearing that:

... I think it's you [who] are prejudicing the military, those of us that go and fight for our country, and I have huge sacrifices I made being a military member, and to not be able to apply that service as my tour of duty comes to an end, I think that is unfair. I don't think that the drafters of the rules contemplated that. . . I think we would have a different case if it was some sort of some different law that we practiced in the military. . . .It is different from military justice, but it's - it's the same type of statutes, same types of crime, burglary, rape, robberies, larceny. It's the same stuff. It's just under a different code. . . . The rule is about being fair. About being fair to jurisdictions that are fair with Oklahoma. And it would be unfair to not provide reciprocity to service members. . .

We agree with Major Green. He has met the requirements for Rule 2 of the Rules Governing Admission to the Practice of Law in Oklahoma and should be admitted instanter.

"Commended Major Green for his service but offered no sympathy..." is a bit of a gentle slap. (Mike Frisch)

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

A Gamble Worth Taking: A Colorado Suspension For Misappropriation Gets A Reciprocal New Jersey Reprimand

The New Jersey Supreme Court approved the imposition of a reprimand for an instance of negligent misappropriation as reciprocal discipline for a Colorado suspension of a year and a day.

According to the Disciplinary Review Board report, the attorney had opened a $50,000 casino line of credit.

On August 5, 2008, respondent traveled to Grand Bahama Island and gambled at the Capri casino. While playing blackjack, he signed five marker transfer requests totaling $45,000. Under the terms of the credit agreement that he had signed with Capri, if those marker transfer requests were not paid within thirty days, the bank or banks listed in the credit application would be permitted to issue checks drawn on any of the four bank accounts to repay the markers. None of respondent’s five marker transfer requests specified a particular account from which Capri should request payment.

 Respondent failed to pay the $45,000 markers within the allotted thirty-day period following his gambling at the casino. Therefore, on September 15, 2008, the casino submitted five counter checks totaling $45,000, all written against AH Title’s business escrow account. Each check was dated August 5, 2008, the date that respondent had signed the markers at the blackjack table. The checks included the bank escrow account number and a scanned image of respondent’s signature, as though he had signed them on that date. The five checks cleared AH Title’s bank on September 16, 2008. As a result, $45,000 of third party escrow funds were invaded and used to satisfy respondent’s personal gambling debt to Capri.

 He had claimed inadvertence

respondent’s [Colorado] affidavit states that, on March 14, 2008, when he signed the Capri credit application, he was vacationing in the Bahamas. At the time, he maintained three personal checking accounts and four business operating accounts. Respondent owned all of the funds in all of those accounts.

His staff gave him the wrong account numbers, which led to the use of client funds.

Respondent’s staff person gave respondent the account number information over the telephone, information that respondent at all times believed related to a business operating account. Respondent was unaware "then and at all times subsequent," that his staff had inadvertently given him checking account information "for one of the escrow accounts, rather than the business checking account requested:"

I put the business account checking information on the credit application, unaware that it was actually one of four escrow accounts we used in the same businesses.

I was aware that the casino would withdraw funds from one of my accounts, which I requested that they do from either of the personal checking accounts.

The money owed was in fact withdrawn from the business account, which I at all times believed to be one of my business operating accounts.

Not until the withdrawal actually occurred did I realize monies were withdrawn from an escrow account.

Upon this becoming known to me, I immediately deposited the funds withdrawn from the escrow account with my own funds.

Whereas my deposit was immediate, no checks were presented on the account. 

Had I had any intentions to subject escrow accounts to this possibility, I would not have immediately deposited my own funds nor presumably even had the funds to deposit.

At no time in question, prior to the withdrawal above referenced, was I aware that credit application contained escrow account information. At no time did I intend to use escrow account information or escrow funds for my personal use or collateral.

As evidenced by my actions, it was always my intention to utilize my personal funds for any obligation arising out of the credit application.

The Board

Although respondent has no prior discipline in over thirty years at the bar and no one was harmed by his actions, respondent’s misconduct was serious and negligently exposed escrow funds to the invasion that ultimately occurred. For these reasons, we determine that respondent should receive a reprimand for his misconduct.

 At the very least. (Mike Frisch)

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

Rage And Bar Discipline

A two-year suspension was imposed by the Pennsylvania supreme Court as a consequence of the attorney's conviction of assault in the second degree.

The "road rage" incident led to a four-year prison sentence with all but six months suspended.

The attorney had no prior discipline but did have a pre-admission record of criminal behavior that included a conviction for "atrocious assault and battery" and, in another incident, "had a physical fight with another person wherein he bit off a piece of the other person's ear."

He graduated from Rutgers Law after serving time for the ear and became a public defender. He lost the public defender job after failing to pay a $250 fine for contempt of court.

The orders may be found at this link.

The attorney's name is Cesar Alvarez-Moreno. (Mike Frisch)

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

Wednesday, September 21, 2016

Yes And No To Reciprocal Discipline

The North Dakota Supreme Court declined to impose reciprocal discipline, concluding that an attorney's non-practice related behavior did not prejudice the administration of justice.

The attorney is a man of the West

Haderlie was admitted to practice in North Dakota in 2012 and has been licensed since that time. He is also licensed in Colorado, Montana, Utah, and Wyoming. Haderlie was arrested on October 19, 2014, and later plead guilty to misdemeanor violations of Wyoming Statutes § 31-5-233, driving or having control of a vehicle while under the influence of intoxicating liquor or controlled substances and § 6-5-204(a), interference with a peace officer. The record reflects that on July 2, 2015, the Wyoming Supreme Court publicly censured Haderlie after he acknowledged his conduct violated Rule 8.4(b) and Rule 8.4(d) of the Wyoming Rules of Professional Conduct for Attorneys at Law.

Haderlie has no prior discipline in North Dakota, and no prior discipline in Colorado, Montana, or Utah before this matter. As a result of Haderlie's conduct, Haderlie stipulated to reciprocal discipline in Colorado and Utah. The matter was dismissed by the Montana Office of Disciplinary Counsel as a matter of law because the underlying convictions are not the type of conduct that normally give rise to discipline in Montana.

The court majority

Here, Haderlie's conduct was not connected to either the representation of a client nor a judicial proceeding. Rather, his arrest and conviction stemmed from off-the-job alcohol consumption and a confrontation with law enforcement that occurred at his home. Under these circumstances, Haderlie's criminal conduct does not fit the majority-view legal application and definition of "prejudicial to the administration of justice" so that professional discipline properly can be imposed

Chief Justice Vande Walle dissented

While it may be arguable that not all crimes are necessarily prejudicial to the administration of justice, I do not agree that only that conduct connected with judicial proceedings is encompassed by the rule. It seems imperious to conclude that only in the setting of a judicial proceeding can there be acts prejudicial to the administration of justice. Persons other than lawyers and judges are involved in the administration of justice, albeit in a different setting. Lawyers are required to take an oath of office prescribed by N.D.C.C. § 27-11-20 and § 4 of Article XI of the North Dakota Constitution to "faithfully discharge the duties of the office of attorney and counselor at law." Peace officers also are required to take the same oath to "faithfully discharge the duties" of their office. N.D.C.C. § 44-01-05. Haderlie was convicted in Wyoming for interfering with a peace officer who was fulfilling the duties of the office to uphold the Constitution of the United States and the Constitution of the State of Wyoming. The disciplinary authorities in Wyoming determined Haderlie was subject to discipline under statutes and rules similar to those in North Dakota. We should do the same. The sorry spectacle of a licensed lawyer interfering with a peace officer acting in the line of duty is not only damaging to the image and reputation of the legal profession, it is, I submit, conduct prejudicial to the administration of justice.

Nor do I agree, as Haderlie appears to argue, that because heretofore no North Dakota lawyer has been disciplined for similar conduct that fact somehow immunizes him from reciprocal discipline. To my knowledge the issue has not been before this Court prior to this time. I believe it is clearly prejudicial to the administration of justice for a lawyer to interfere with a peace officer acting in the line of duty and I would impose reciprocal discipline. But, if, as the majority concludes, our rules do not currently make this conduct subject to disciplinary action, they should be amended to do so.

(Mike Frisch)

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

Better Never Than Late

On September 12, I reported that the case that promises to take longer to resolve than any matter in D.C. Bar disciplinary history was scheduled for oral argument before the Board on Professional Responsibility on September 22, 2016.

False alarm.

The oral argument must be postponed because the BPR cannot get a quorum together to hear the case.

Part of the problem - the case has kicked around for so long that not one but two of the Hearing Committee chairs in the proceedings are now on the BPR and must be recused.

Per my earlier post, maybe it's better that the case never be decided.

The endless saga of In re Quinne Harris-Lindsay will move forward with argument on September 22.

The case has bounced around for fourteen years. It is a potentially hugely significant case on both the law of misappropriation and the effect of systemic delay. I expect nothing good to come out of this train wreck.

My view when the hearing committee issued its report

Once again the D.C. system shows its system-wide dysfunction - a first-level report (subject to board review and Court final action) of an attorney fourteen years after the investigation  commenced.

Cases regularly take ten years to move from soup to nuts. This one has a shot at twenty.

A rather straightforward case involving a single probate matter where the facts were not in dispute - only the attorney's intent.

My prediction: This case may well lead to the overturning of the en banc holding of In re Addams that disbarment is required in virtually all cases of intentional or reckless misappropriation.  Disciplinary Counsel's delay may well play a role in the demise of that doctrine.

Another day, another delay. (Mike Frisch)

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

Taxi Driver

The New Jersey Supreme Court imposed a three-month suspension of an attorney admitted in 2010 who was convicted of assault.

The Disciplinary Review Board report described the offense

On the night of the assault, Balde, a taxi driver, was hailed by respondent on the West Side Highway in New York City. He agreed to drive respondent to Jersey City for a $63 fare. Upon arriving in Jersey City, at approximately 10:30 p.m., respondent informed Balde that he had only $9 and asked Balde to drive him to his apartment so that he could obtain additional money. Balde refused to do so and locked the doors in the taxi to prevent respondent from exiting. Respondent, who is approximately 6’5" tall and 280 pounds, began to kick at a door and window of the vehicle.

Balde then unlocked the doors and respondent exited the taxi and began walking away, pursued by Balde. Respondent grabbed Balde’s face and then struck him in the face with a closed fist. After the police were called, they interviewed Balde, arrested respondent near the scene of the assault, and charged respondent with robbery. As a result of respondent’s assault, Balde sustained lacerations to his forehead and upper lip, his glasses were broken, he had blood on his shirt, and he reported pain in his nose and mouth. He received medical attention at Jersey City Medical Center.

On sanction

The case law examined above illustrates that disciplinary cases involving violent behavior by attorneys requires fact sensitive considerations. Simply put, there has been no typical or "baseline" measure of discipline for these cases and we decline to declare such an inflexible approach. In 1997, Viqqiano warned the bar that "any act of violence committed by an attorney will not be tolerated" and that "[n]othing less than a suspension" would likely be imposed for violent behavior. But for the mitigation addressed above, the violent behavior under scrutiny in this case -- the assault of a taxi driver who was seeking the fare for his services -- would result in the imposition of a three-month suspension to protect the public and to preserve confidence in the bar. For the reasons expressed above, however, we determine to impose only a censure in this case.

 

The attorney has no prior discipline. (Mike Frisch)

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

Tuesday, September 20, 2016

High Times In Ohio

Ethics guidance from Ohio

The Ohio Supreme Court today adopted an amendment to the Ohio Rules of Professional Conduct clarifying the ethical responsibilities of lawyers under the state’s new medical marijuana law. The amendment addresses counseling or assisting a client regarding conduct expressly permitted under the new law.

Specifically, the amendment modifies the provision in Prof. Cond. R. 1.2(d)(2) by adding a new subsection, which reads:

“A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.”

The need to clarify the services that attorneys can offer clients arose after an Aug. 11 non-binding advisory opinion issued by the independent Board of Professional Conduct. The Board’s advisory opinion acknowledged the state’s new law, but stated that prohibitions in federal law might create ethical problems for lawyers counseling or assisting a client with regard to the new law, depending upon the nature of the services their clients seek.

Chief Justice Maureen O’Connor said the Court placed the rule change on an accelerated calendar for consideration, given the uncertainty surrounding Ohio law and federal law. “Ohio attorneys seeking guidance needed to know the do’s and don’ts as quickly as possible,” she said.

The amendment to the rule takes effect on Sept. 20.

(Mike Frisch)

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

Untimely Explanation Rejected

Default may be in our stars but it is unhelpful in dealing with a bar complaint, as evidenced by a recent Louisiana Hearing Committee report finding trust account violations and failure to respond

Prior to instituting the formal charges, the Respondent offered an explanation for her delay in responding to ODC’s formal complaint. She stated that she had no office staff and her office was not always open to receive certified mails that needed to be signed for. She said  she did attempt to retrieve the ODC mail from the post office after she got notice of the mail from the post office but it had already been returned to the ODC unclaimed. (ODC Exhibit 6). Regarding her delay in responding to the ODC’s request for supplemental information, she explained that it was because she had technical issues with her computer and thought she had responded to the supplemental request when in fact she had not. She said she had used her computer to promptly draft a response to the supplemental request but the computer crashed before she could back up the draft response and other documents. She lost these documents. She had to have the computer repaired. In the midst of this computer problem, she forgot she had not sent out the drafted response (now lost in the computer crash) to the ODC supplemental request. She apologized and denied any intention to not cooperate with the ODC’s investigation. (ODC Exhibit 11).

The foregoing explanation of the Respondent may be persuasive but it is of no avail because the formal charges alleging that she failed to cooperate with the ODC were undisputed and were deemed admitted and proven by a clear and convincing evidence. Therefore, the committee is bound to find that the Respondent violated Rule 8.1c – failure to cooperate with the ODC investigation.

The proposed sanction

All considered, the committee imposes one year suspension on the Respondent with all but one month deferred. In addition, the committee imposes a minimum of 2 credit hours mandatory class on managing Client Trust Account on the Respondent. Finally, the committee assesses all costs of these proceedings against the Respondent.

(Mike Frisch)

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

A Challenge To Disciplinary Systems Everywhere

I continue to be more than impressed by the transparency of the North Carolina State Bar.

The Office of Counsel generates both annual and quarterly reports on its work in disability, disciplinary, unauthorized practice of law and litigation involving the State Bar.

In many places (such as my own home turf) these responsibilities are widely distributed and administered separately.

 North Carolina persuades me of the wisdom of unification of these functions.

From the July 2016 quarterly report

GRIEVANCES

In 2010, 1317 grievance files were opened. In 2011, 1499 grievance files were opened. In 2012, 1239 grievance files were opened. In 2013, 1205 grievance files were opened. In 2014, 1222 grievance files were opened. In 2015, 1331 grievance files were opened. Since January 1, 790 grievance files have been opened.

ATTORNEY CLIENT ASSISTANCE PROGRAM

The ACAP staff responded to 3,078 phone calls from members of the public and contacted 710 lawyers in an effort to resolve concerns expressed by clients. Staff also responded to 422 emails and 494 letters from inmates.

There were 146 requests for fee dispute resolution filed during the quarter. One hundred-thirteen files were assigned to the two State Bar facilitators. The remaining 33 files were sent to district bar committees.

The report also contains highly-readable summaries of each matter that is informative without excessive legalese.

For example in the completed cases category

Jennifer N. Foster – 14 DHC 7

It was alleged that Foster, of Asheville, used expletives before a state court magistrate. The Court of Appeals reversed her contempt conviction. Hearing was delayed awaiting a ruling in Foster’s federal court lawsuit against the magistrate and others, which was dismissed in March. After the hearing on July 8, the DHC announced its decision to impose a two year suspension stayed on numerous conditions.

Why is North Carolina such a leader in this area?

Whatever drives it, it should be bottled and distributed nationally. (Mike Frisch)

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

Monday, September 19, 2016

Experiential Learning Goes A Bridge Too Far

An attorney who had failed to properly supervise a law student admitted to limited practice has been reprimanded and placed on two-years probation by the Arizona Presiding Disciplinary Judge.

The Agreement details a factual basis to support the admissions to the charges and is briefly summarized. In Count One, Mr. Ariano hired Eric Raymon, a third year law student as a legal assistant. Mr. Raymon applied as a Rule 38 limited practice certification and was certified to limited practice on September 4, 2016. Overall, Mr. Ariano, as his supervising attorney, failed to independently verify the Rule 38 application and failed adequately supervise Mr. Raymon. Mr. Ariano failed to identify Mr. Raymon as a Rule 38 student in his firm’s fee agreements and failed to file a Notice of Rule 38 limited practice Notice of Appearance with the court. On August 19, 2014 Mr. Raymon attended a pre-trial conference and held himself out as an attorney. Mr. Ariano did not appear at the conference. The client ultimately terminated the representation and asked for a refund of unearned fees. Mr. Raymon then met with the client, refused to return any unused fees, and made false statements to the client about conducting witness interviews. Mr. Ariano was not informed of the meeting. Mr. Ariano believed that Mr. Raymon and the contract attorney announced to the court before any hearings/conferences that Mr. Raymon was a Rule 38 limited practice student.

In Count Two, Mr. Raymon met with a potential client and conducted an interview without a licensed attorney present. Mr. Ariano represented the client for the entire pendency of her matter but failed to adequately communicate with the client. Mr. Raymon was the designated point of contact for the client, however Mr. Ariano was unaware that Mr. Raymon provided legal advice to the client.

 The presiding judge approved consent discipline. (Mike Frisch)

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