Saturday, May 23, 2015

Monkey Business Leads To Proposed Disbarment

An attorney who had misappropriated funds from beneficiaries of the estate of Chico Marx should be disbarred, according to a recent unpublished recommendation of the California State Bar Court Review Department.

[The] misconduct arose out of his representation of Maxine Marx, a beneficiary of the estate of her late father, Chico Marx. Chico was a member of the Marx Brothers comedy team, and his estate held royalty rights to two Marx Brothers’ movies: “A Day at the Races” and “A Night at the Opera.”

Ezor began representing Maxine in 1999. He collected the movie royalties from producer Warner Brothers Entertainment, Inc. (Warner Brothers), deposited them in his [Client Trust Account], and then allocated them to Maxine and Chico’s other beneficiaries. Maxine died in September of 2009 at the age of 91.

The violations came to light after Maxine's death

Brian and Kevin Culhane, Maxine’s sons, were the sole beneficiaries of her will and coexecutors of her estate. Shortly after her death, Brian and Kevin received a notice from the Internal Revenue Service (IRS) that she owed substantial back taxes on funds earned by Chico’s estate. Maxine’s sons were stunned; they were unaware of the royalty rights and believed their mother had died penniless. They located Ezor’s phone number in Maxine’s files, and Brian called him for an explanation of the unexpected taxes. Ezor told Brian about the royalty rights and that he was holding approximately $20,000 on Maxine’s behalf. For the next two years, Brian and Kevin sought information from Ezor about the royalties, his fees, and his retainer agreement with Maxine. Ezor either ignored the inquiries or provided incomplete, irrelevant, and insufficient responses. As a result, Brian ultimately reported Ezor to the State Bar.

The investigation revealed that he had collected nearly $200,000 for the client and deposited  the checks into his trust account.

He deducted fees without a written fee agreement and had no documentation of his disbursements (which the State Bar largely accepted as legitimate).

Key finding

In December 2010 and December 2011, Ezor received additional yearly royalties, which he deposited into his CTA. Ezor and OCTC further stipulated that, after deducting his fee, he was required to maintain $41,399.48, as of February 12, 2012. Ezor admitted, and his bank account statements confirmed, that his CTA balance on February 12, 2012 was only $4,152.26. After the State Bar contacted Ezor in January 2012, he repaid the bulk of the money he owed to Maxine’s estate (in April 2012).

The court affirmed findings of misappropriation and rejected claims of judicial bias

Ezor argues the hearing judge was biased against him and denied him a fair trial. He asserts that he heard the State Bar’s attorney say “bullshit” during a February 2013 telephonic status conference when the hearing judge granted Ezor’s request for a trial continuance due to illness. Ezor alleges that the hearing judge responded, “yeah, I think it’s bullshit too, but I’m not a doctor.” He claims this proves the hearing judge was biased against him when he found Ezor’s testimony lacked credibility. He filed a motion to disqualify the hearing judge, which was denied; Ezor did not seek interlocutory review.

We reject Ezor’s claim of judicial bias and unfair trial as meritless.

Aggravation

Ezor claims that “[n]o harm has come about as a result of the delayed payment” because he repaid the estate funds with interest. His argument is contrary to the evidence. Ezor’s misconduct undoubtedly caused significant financial harm to Maxine, an infirm elderly client who could have used the substantial misappropriated monies. Instead, she relied on Social Security benefits. Ezor also caused harm to Maxine’s sons who worked with counsel for over two years in attempting to recover the money Ezor owed. We assign substantial aggravating weight to this factor.

The attorney also made false representations concerning the matter.

He was admitted in 1972 and has no prior discipline. (Mike Frisch)

May 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

False Tales Of Woe Lead To Consent Disbarment

An Illinois attorney has filed a motion for disbarment by consent on the following admitted facts

In 2011, Respondent represented Staples the Office Superstore East (a subsidiary of Staples, Inc.; hereafter, "Staples"), the defendant in a personal injury action filed in Indiana state court by Max Jackson ("Jackson"). In the course of discovery, Jackson filed a motion for sanctions alleging that Respondent’s client, Staples, had failed to fully respond to a request for production of documents and interrogatories. Respondent filed a response in which he claimed, in part, that his mother had been "killed in a violent car accident in the state of Colorado," that she perished from "the fire and smoke inhalation from the resulting conflagration," and that Respondent "was left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted." Respondent’s statements were false, and he knew they were false, since his mother had neither died nor been involved in a car accident, and Respondent had not been "left scrambling between Indiana, Colorado and Idaho" to resolve his mother’s affairs.

And

In 2011, Respondent represented Reed & Company, P.C. ("Reed"), the defendant in a civil lawsuit filed in Indiana state court by Wabash Center, Inc. ("Wabash"). After Wabash filed a motion for partial summary judgment, the court set the matter for hearing on that motion. On the date of the scheduled hearing, Respondent filed an emergency motion requesting that the hearing be continued, based on his representation that the day before, he had been diagnosed with "double pneumonia" and sent to the emergency room. Respondent’s statements were false, and Respondent knew they were false, as Respondent had not been sent to the emergency room with pneumonia, and in fact, he had billed his client Reed for time spent preparing a summary judgment motion on Reed’s behalf during the time period that he purportedly was incapacitated.

The motion admits a host of ethics violations. (Mike Frisch)

May 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2015

Mississippi Supremes Call For Truce In Judge-Public Defender War

The Mississippi Supreme Court has held that a Hinds County judge did not have the authority to prohibit a public defender from practice before the court on grounds of alleged general lack of competence.

Rather, such a determination is the supreme court's exclusive province through the bar discipline process

absent a finding through the bar complaint process that Kelly is incompetent to practice law, Judge Weill is without authority to deny Kelly the right to practice law before him, based on his belief that she generally is incompetent. 

Nor could the judge bar the attorney based on purported instances of sanctionable conduct

For our purposes today, we have observed in Judge Weill’s allegations several incidences that—had they been properly developed, and assuming all of Kelly’s due process rights had been properly protected—very well may have justified some level of sanction. But for the most part, these alleged incidences occurred with no hearing, no finding of contempt, and no issuance of any sanction. And while individual sanctions may have been within Judge Weill’s discretion in some of the incidences, we are not persuaded that Judge Weill’s allegations of inappropriate conduct justify the extreme sanction of excluding Kelly from representing indigent defendants in all future cases before him.

The public defender sought to recuse the judge in a number of pending matters

As to the matters before us today, we make no judgments on which party is more at fault, nor do we find a sufficient basis for ordering Judge Weill’s recusal in any pending or future case. In future cases in which the Hinds County Public Defender or a particular assistant public defender believes Judge Weill—or any circuit judge—should recuse from a particular case, he or she may file with that judge an appropriate motion to recuse, setting forth the particular facts and circumstances that suggest the circuit judge cannot preside impartially over the case.

And

We urge all the parties before us—Judge Weill as a member of the judiciary; Purvis-Harris as a member of the Bar and as the Hinds County Public Defender; and Kelly, as a member of the Bar—to carefully examine the issues and to consider ways to ameliorate the problems that exist, so the judiciary may achieve the orderly administration of justice, the public may have confidence in the judicial process, and so that when Purvis-Harris appoints Kelly to represent an indigent defendant before Judge Weill, the defendant, the victims, and their families will not be deprived of fairness or justice due to personal issues between the parties that are unrelated to the case.

Justice Kitchings notes ongoing disciplinary complaints that attorney and judge have filed against each other and would require the judge's recusal

Today, a majority of the Mississippi Supreme Court tells a lawyer and a judge who have filed competing complaints against each other to return to the courtroom, together, and “make nice.” Given the level of animus between the judge and the lawyer, which is evident from the filings before us, the majority’s approach to the dysfunctionality that this tempestuous clash has produced may amount to little more than wishful thinking on this Court’s part. The majority may have ordered a noble experiment that will fail with the result that the present problems will return to us at some future date, worse, perhaps, than they are now.

Justice Chandler would assign the 55 cases in which the judge appointed private counsel back to the public defender and

I also take the position that all of the exhibits in this case should be removed from under seal (with the exception of the respective complaints against Kelly and Judge Weill). The citizens of Hinds County who are footing the bill for all of this behavior have no way of knowing the entirety of what has transpired. I see no evidence that unsealing the documents would create a possible danger to the parties or anyone else. While I appreciate the idea of not wanting to release additional fodder for a public spectacle, lack of transparency creates the danger of inaccurate public inference and speculation.

The Jackson Free Press reported on the controversy here and here. Additional coverage from Simple Justice. (Mike Frisch)

May 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Enters "Forbidden Zone" And Gets Indefinite Suspension

An indefinite suspension was imposed by the Maryland Court of Appeals for a sex offense conviction.

On August 1, 2009, [Eckel] was arrested at his law office and charged with attempted second degree rape, attempted second degree sexual offense, second degree assault, fourth degree sexual offense, and false imprisonment. The charges arose from an incident which occurred at approximately 12:21 a.m. on August 1, 2009, when [Eckel] got into a physical altercation with a female on a couch in his law office in Cambridge, Maryland.

The facts established at trial before the Circuit Court for Dorchester County, Maryland, were as follows: On the evening of Saturday, July 31, 2009, [Eckel] went to a Cambridge Bar to have a couple of beers. He left the bar around 10:30 p.m. to purchase cigarettes from a local convenience store, which required him to drive down Race Street. At the traffic light at Cedar Street, Tara Cannon, a woman who [Eckel] claimed to have never met before the night in question, walked toward his car and waved at him. He waved back. She walked away as he drove off. After making his purchase, [Eckel] drove back toward the bar and saw the same woman sitting on a bench at the intersection of Race and Cedar Streets. Again Ms. Cannon waved at him. [Eckel’s] windows were down, and Cannon allegedly asked him if he wanted “to party.” He responded, “why not?” and invited her into his car. Claiming not to have enough cash to take her to a bar, he drove to his nearby law office. They walked inside, sat on a sofa, and [Eckel] put on a concert tape as they began small talk.

The trial court provided the conflicting accounts of events that then transpired and relied principally on the facts of the conviction.

The trial judge (using the royal "we") found that both lawyer and victim had impaired judgment and that

We believe their evening . . . was aided by the consumption of controlled dangerous substances. We believe that Mr. Eckel attempted to have sexual relations and he initiated that by starting at an innocent place of the body, proceeding to the forbidden zone. We further believe that Ms. Cannon protested and in the course of attempting to overcome her and have his way that evening he did assault and falsely imprison her.

The court found that the facts did not rise to the level of disbarment-worthy conduct.

The oral argument before the court is linked here, (Mike Frisch)

May 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Dead Complainant Does Not End Bar Discipline Case

A  disbarment order was entered yesterday by the District of Columbia Court of Appeals. 

Respondent has been a member of the Bar of the District of Columbia Court of Appeals since February 6, 1987. On March 15, 2006, in connection with an unrelated disciplinary matter involving dishonesty to the court, altering evidence, and criminal activity, the Board ordered respondent, who at that time was voluntarily not practicing law, to “give Bar Counsel 90-days’ advance notification of his intention to resume the practice of law . . . and to submit a medical report . . . demonstrating his fitness to resume practice” before doing so.

The attorney violated that order by practicing law. He was suspended for 18 months for the underlying violations.

The client he represented contrary to the above order had complained to Bar Counsel, which was the matter led to the disbarment.

Bar Counsel sought computer records but

As part of its investigation, Bar Counsel subpoenaed respondent’s computer so that a third party company could create a mirror image of the computer. Respondent filed a motion to quash the subpoena and while that motion was pending he gave the computer to Geeks on Call, a computer repair company. Geeks on Call informed respondent that the computer’s hard drive could not be repaired and respondent allowed the computer to be destroyed without notifying the Hearing Committee.

The court affirmed findings of reckless misappropriation and other offenses that merited disbarment.

The court rejected the rather novel suggestion that the disciplinary proceedings terminated with the death of the complainant. 

Respondent argues that the specification of charges should have been dismissed pursuant to Superior Court Rules of Civil Procedure 25 because it was based on a “nonexistent person,” referring to the fact that Shepard died a year and a half before the Committee issued its recommendation...

Rule 25 of the Superior Court’s Rules of Civil Procedure does not apply to bar disciplinary proceedings and, in any event, the complainant is not a party for whom substitution would be required...

The purpose of disciplinary proceedings is not to redress a complainant’s harm but to determine whether a member of the bar has engaged in conduct that violates the rules of professional responsibility and calls into question whether the member should be permitted to practice law. Thus, Shepard’s death does not bear upon the Board’s determination of respondent’s misconduct.

The hearing committee report is linked here. 

Chief Judge Washington, Associate Judge Glickman and Senior Judge Belson were on the per curiam opinion. (Mike Frisch)

May 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Erie Tale Of Unauthorized Practice

The Ohio Supreme Court has suspended an attorney convicted for engaging in unauthorized New York practice.

ABA Journal had this story on the charges

For more than a decade, Dennis McGrath practiced in upstate New York, providing indigent defense services under a taxpayer-funded assigned counsel program in Erie County.

There was just one problem: Although McGrath was admitted in Ohio, according to his attorney, he wasn’t licensed in New York.

On Tuesday, the 57-year-old University of Toledo law graduate pleaded guilty to unauthorized practice of law and grand larceny, reports the Buffalo News. McGrath admitted being paid nearly $165,000 in government funds to represent indigent clients between 2001 and 2013. He could get as much as 15 years when he is sentenced in March.

Erie County District Attorney Frank A. Sedita III said McGrath told those in charge of the assigned-counsel program that he was admitted in New York. “Apparently nobody in the assigned-counsel program checked his credentials,” the DA said. “That’s how he got away with it.”

The issue came to light when a client complained about McGrath’s work to the Erie County Bar Association’s attorney disciplinary committee, the DA said. The committee checked McGrath’s bar status and found he wasn’t admitted in New York.

The interim suspension was imposed for the felony conviction.

Final discipline will follow. (Mike Frisch)

May 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Housekeeping In Florida

The Florida Supreme Court yesterday adopted "housekeeping" amendments to its rules governing the Bar

the proposals included here address “housekeeping” matters, in that the petition primarily recommends editorial changes, updates to the Bar Rules based on prior amendments, and other changes to codify long-standing practice.

One new provision

All other correspondence between The Florida Bar and respondents or their counsel, including bar inquiries that require responses during the investigative stage of a disciplinary proceeding, may be made by e-mail to the respondent’s record bar e-mail address or the record bar e-mail address of respondent’s counsel. E-mail correspondence is encouraged in all instances except in service of a formal complaint or subpoena, or where a court directs otherwise. If a lawyer has been excused by The Florida Bar or court from e-filing and e-service, or service cannot be made by e-mail, service by first class postal mail is sufficient except where these rules or a court direct otherwise.

A new comment on unauthorized practice by Snowbird lawyers

Th[e] prohibition includes establishing an office or other regular presence in Florida for the practice of the law of the state where the lawyer is admitted to practice. For example, a lawyer licensed to practice law in New York could not establish an office or regular presence in Florida to practice New York law. Such activity would constitute the unlicensed practice of law. However, for purposes of this rule, a lawyer licensed in another jurisdiction who is in Florida for vacation or for a limited period of time, may provide services to their clients in the jurisdiction where admitted as this does not constitute a regular presence.

There is new commentary on Rule 4.4 and metadata.

The court adopted a certification in juvenile practice 

A lawyer who is an active member in good standing of The Florida Bar and who meets the standards prescribed below may be issued a certificate identifying the lawyer as “Board Certified in Juvenile Law.” The purpose of the standards is to identify those lawyers who practice juvenile law and have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism, to be properly identified to the public as board certified in juvenile law.

The court eliminated Emeritus Specialist status. (Mike Frisch)

May 22, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2015

Thomas Jefferson In Hawai'i (He'll Always Have Paris)

An attorney who achieved a measure of notoriety by appearing before the Kansas Supreme Court dressed as Thomas Jefferson was disbarred by that court.

We had the story of the Kansas matter here.

From the opinion

In deciding that disbarment is the appropriate sanction under the circumstances, this court is mindful that one panel member recommended indefinite suspension, while the remaining two recommended disbarment. We also recognize there may be some tension in reconciling the panel's conflict of interest findings with its determination of a lack of selfishness as a mitigating factor.

But in this court's view the essentially uncontroverted findings and conclusions regarding Hawver's previous disciplinary history, his refusal to accept publicly financed resources to aid in his client's defense, and his inexplicable incompetence in handling Cheatham's case in the guilt and penalty phases of the trial are more than sufficient to require disbarment. See ABA Standard 4.51 (disbarment generally appropriate when a lawyer's course of conduct demonstrates "the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer's conduct causes injury or potential injury to a client"). We hold that disbarment is the appropriate discipline.

The attorney was recently disbarred as reciprocal discipline in Hawai'i.

Hawver did not submit any arguments as to why a substantially similar discipline should not be imposed upon him in thisjurisdiction, and none clearly appears upon the face of the Kansas record. Therefore, in light of the above and theparticularly grave consequences of incompetent representation in a capital murder case,

IT IS HEREBY ORDERED Respondent Hawver is disbarred from the practice of law in this jurisdiction,

(Mike Frisch)

May 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Run Of The Mill Advice Gets Lawyer Censured

The Colorado Presiding Disciplinary Judge approved a public censure of an attorney for misconduct in two matters.

One is of particular interest

 Uwate was retained to defend an undocumented immigrant against charges for second-degree assault, menacing, and child abuse. The matter proceeded to trial. After all evidence was given to the jury, the jury came back with a question for the judge. The jury’s question made it clear that the jury was about to find the client guilty of at least second-degree assault. In the hallway, Uwate told his client about the jury’s question and reminded him that if he were convicted he would receive at least five years in jail and then be deported. The client was upset. Uwate said to his client, "If you were ever thinking of running, now would be the time to do it." Uwate’s client did not run, and the client was convicted of second-degree assault. Uwate’s comment contravened Colo. RPC 1.2(d) (a lawyer shall not counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent).

(Mike Frisch)

May 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

An Expensive Icemaker

The Colorado Presiding Disciplinary Judge approved a stayed 90-day consent disposition

 Fischer’s misconduct took place during his representation of a client in a contested probate case. Fischer’s client refused to answer opposing counsel’s written discovery requests, contrary to Fischer’s advice. The client was fined $7,500.00, and Fischer paid the sanction himself. By doing so, he violated Colo. RPC 1.8(e) (a lawyer shall not provide financial assistance to a client in connection with a pending or contemplated litigation).

Eventually, the only remaining dispute in the probate case involved an icemaker. The court ordered Fischer’s client to return the icemaker to the decedent’s children, but she returned the wrong icemaker. Although Fischer’s client indicated at a later hearing that she understood which specific icemaker she was required to return, she later claimed confusion about which icemaker was at issue. After the court again clarified which icemaker had to be returned, the client delayed fourteen months before delivering the correct icemaker to the decedent’s children. Nearly $200,000.00 in penalties were assessed against Fischer’s client due to her fourteen-month delay. Fischer urged his client to deliver the correct icemaker during this period, but he also failed at times to adequately communicate with her. He thus violated Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter). He also did not move to withdraw as counsel, even though his client was disobeying a court order.

When Fischer’s client did not pay the assessed penalties, opposing counsel moved for entry of judgment, seeking an award of $231,000.00. Although the motion was served on Fischer, he negligently failed to notify his client of the motion. When Fischer failed to respond to the motion, the court entered judgment against his client. The court e-served Fischer with that order, but he again negligently failed to notify his client. Fischer’s actions deprived his client of the opportunity to challenge the judgment and violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client).

(Mike Frisch)

 

 

May 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspended Attorney Must Pass MPRE

From the New York Appellate Division for the Third Judicial Department

Motion by Edward S. Cooper for an order waiving the requirement that he take and attain a passing score on then Multistate Professional Responsibility Examination as a precondition to his reinstatement to the practice of law (see Matter of Cooper, 124 AD3d 1203 [2015]).

In order to qualify for reinstatement to the practice of law, the rules of this Court require that a suspended or disbarred attorney must take and attain a passing score on the Multistate Professional Responsibility Examination (hereinafter MPRE) subsequent to the entry of the order of suspension or disbarment (see Rules of App Div, 3d Dept [22 NYCRR] § 806.12 [b] [ii]; see also Rules of App Div, 1st Dept [22 NYCRR] § 603.14 [b] [3]; Rules of App Div, 2d Dept [22 NYCRR] § 691.11 [c] [2] [i]; Rules of App Div, 4th Dept [22 NYCRR] § 1022.28 [a] [3]; [b] [3]; see generally Rules of Ct of Appeals [22 NYCRR] § 520.9). The MPRE requirement serves two important purposes: it reemphasizes the importance of ethical conduct to attorneys who have been subjected to serious public discipline, and it also reassures the general public that such attorneys have undergone retraining in the field of professional responsibility.

Upon reading Cooper's notice of motion, counsel's affirmation in support dated March 16, 2015 and Cooper's affidavit in support sworn to March 12, 2015, and upon reading the affidavit in response by Alison M. Coan, Principal Attorney for the Committee on Professional Standards, and having concluded that Cooper has not established good cause for the waiver of theMPRE requirement, it is hereby

ORDERED that the motion is denied.

(Mike Frisch)

 

May 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thrilla In Viera

The ABA Journal has a report on proposed sanctions recommended against a Florida judge by the Judicial Qualifications Commission.

The sanction of a small fine is based on an courthouse hallway confrontation between the judge and a public defender.

The commission found insufficient evidence that the judge punched the public defender in the face but seems to believe that the face was, as they say, punch-worthy

Substantial evidence was offered to the effect that Mr. Weinstock was generally rude, disrespectful, incompetent and a highly unlikeable lawyer.

As to the well-respected judge

Many who observed the June 2, 2014, incident were unable to explain why Judge Murphy became so angry. Judge Murphy’s therapist, Michael Ronsisvalle, testified that Judge Murphy has a strong self-preservation mode that is compulsive, and that, related to his service in the military, Judge Murphy reflects that compulsion onto other people, feeling the undeniable need to protect them, too. In addition to this predisposition to self-preserve and to protect others, Judge Murphy was emotionally affected by the shooting of a defendant in front of the Viera Courthouse just months before the June 2, 2014, incident. Shortly after that, Judge Murphy lost his father. In the three weeks immediately preceding the June 2, 2014 incident, Judge Murphy was away from home for 17 days. The last week of his absence from the Courthouse was spent at a Drug and Veteran’s Court Conference in California. Upon his return to Florida the evening of June 1, 2014, he and his wife hosted guests for a dinner party in their home. Dr. Ronsisvalle described this confluence of events as "a perfect storm" that drained Judge Murphy of emotional energy to cope with Mr. Weinstock on June 2, 2014.

In sum

The altercation between Weinstock and Judge Murphy created a remarkable national embarrassment for not only the judiciary of the State of Florida, but for its citizens as well. Statewide and national newspaper and television media reported the public and violent confrontation between a presiding Judge who actually left the bench after saying he would "beat your ass" in the midst of a judicial proceeding, and the Assistant Public Defender who had defied and disrespected the Judge.

The public defender had "some ownership" of the incident. He has resigned from the public defender's office. (Mike Frisch)

May 21, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

All Or Nothing At All

The District of Columbia Court of Appeals stayed an order of disbarment and imposed a three-year period of probation for misconduct that included reckless or intentional misappropriation.

While the normative sanction for such misconduct is disbarment absent extraordinary circumstances, the court affirmed findings that the violations would not have occurred but for the attorney's dysthymia.

To her credit, respondent admitted that she committed all of the violations, including intentional or reckless misappropriation, she has shown remorse for her misconduct, and she has been substantially rehabilitated as a result of psychotherapy treatment.

The probation is subject to monitoring and

Should respondent violate the terms of her probation or commit any additional violation of the Rules of Professional Conduct, she will be subject to revocation of her probation and face disbarment.

In D.C., what is referred to as Kersey-style mitigation is a pretty much all-or-nothing proposition. Either you establish mitigation and get a fully-stayed sanction or you don't and get the full dose of discipline.

This is in part my legacy as I represented Bar Counsel in the Kersey case. (Mike Frisch)

May 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Moral Turpitude Or Fee Dispute?

A stayed one year suspension with 90 days of actual suspension was recommended by the California State Bar Court Review Department in a matter where the issue was whether the conduct involved a "fee dispute" or something worse.

The primary issue before us is whether Aldon Louis Bolanos’s improper handling of client monies constituted misappropriation involving moral turpitude or a fee dispute. After a three-day trial, the hearing judge dismissed the moral turpitude charge, characterizing the case as "a fee dispute that got out of control." Giving great weight to the hearing judge’s factual findings, we agree.

Bolanos represented Victoria McCarthy and co-plaintiff Katherine Schmitt in their employment discrimination lawsuit against R. J. Reynolds Tobacco Company (Reynolds). The relationship between McCarthy and Bolanos deteriorated following her settlement on appeal with Reynolds. McCarthy filed a legal malpractice lawsuit against Bolanos and, ultimately, a State Bar complaint.

The hearing judge found that Bolanos committed misconduct when he: (1) represented clients with a potential conflict without their informed written consent; (2) failed to notify McCarthy promptly of the receipt of settlement funds; (3) improperly withdrew disputed funds from his client trust account (CTA); and (4) failed to promptly return McCarthy’s file at her request. Finding significant aggravation and significant mitigation, the hearing judge recommended discipline, including a 90-day actual suspension...

Balancing the serious aggravation with the significant mitigation, we agree with the hearing judge that a one-year suspension, stayed, a 90-day actual suspension, and a one-year probation period is appropriate discipline under the standards and the applicable case law.

The majority

Contrary to our colleague’s dissent, we have not "fashioned a defense to the moral turpitude charge" that would permit attorneys to unilaterally take their fees based on a belief in their entitlement to them. Rather, we have deferred to the hearing judge’s credibility determination, as we must under our rules and Supreme Court precedent, that Bolanos acted without moral turpitude when he held disputed fees outside of his CTA during the brief pendency of the dispute, given his ignorance of the governing rule and his honest belief that the fee modification was unenforceable.

As set forth in her detailed decision, the hearing judge found Bolanos’s conduct to be an example of aggravated mishandling of disputed fees based on a totality of the facts.

The dissent would impose "more significant discipline" for intentional misappropriation

the record in the instant matter belies Bolanos’s assertion that at the time he took the settlement funds from his CTA, he held an honest good faith belief that his agreement to reduce his fee was unenforceable. By his own admission, he took the additional fee: (1) before he advised McCarthy he was reneging on their agreement; (2) without telling her he had removed the funds; (3) without telling her he had co-signed her name to the settlement check; and (4) without even telling her he had received the funds. I thus find his after-the-fact assertion that he took the fees in reliance on the advice of an unnamed attorney, who told him that his agreement to reduce his fees was unenforceable, is pretextual at best.

The District of Columbia Court of Appeals reached a similar conclusion (albeit without reference to moral turpitude) in this 1997 decision. (Mike Frisch) 

May 21, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2015

Suspension For Forcible Touching Convictions

An attorney convicted of five counts of forcible touching has been suspended for one year and until further order by the New York Appellate Division for the Second Judicial Department.

In determining an appropriate measure of discipline to impose, we note, as the Special Referee did, that the respondent "apologize[d] for taking up everybody's time and resources." Further, the respondent testified that in the 2½ years since the acts that gave rise to his conviction—which acts all occurred within a short period of time—he has thought "a great deal" about what he did, has taken responsibility for his actions, and is "truly very sorry for the harm [that he] inflicted." Significantly, the Special Referee reported that the respondent is 33 years old; that this was his first and only conviction; that the conviction—which was a misdemeanor—resulted in neither incarceration nor sex offender registration; and that the subject conduct involved neither clients nor coworkers. Moreover, the Special Referee noted the respondent's testimony that he began receiving treatment for his "impulsive issues" before his sentencing, and that he has had no behavioral issues since the underlying issues occurred. The respondent's participation in outpatient sexual behavior rehabilitation was documented and, at the time of the hearing, he was expected to begin "relapse prevention supportive therapy."

Above the Law reported on the case of the so-called Gentleman Groper.

Details here from The Gothamist. (Mike Fr isch)

May 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Wrath Of God And A Lawyer

An attorney who, among other things, harassed his former clients in his effort to collect fees has been suspended for 90 days by the Minnesota Supreme Court.

The court quoted one letter at length

You are merely trying to escape your financial obligation to me. And unless you and your wife never again maintain any type of business or personal account in this country, I will get my money from you. You have mistaken my kindness for weakness. I did not get to where I am today allowing people, like you, to “punk me.” Perhaps you need to be taught a lesson in life. . . . So unless you want me to own all of your future earnings in your shipping business, or at least most of it, you will start by telephoning my brother and telling him that you were wrong about me “messing you up,” and I am demanding this of you. And if I as much as hear from any other source that you have said any negative thing about me, my firm and your very difficult case, I will come after you with “hell and brimstone.” But please do not forget that after you answer to me, you will also answer to God, the Father, who sees all the evil that men do. What I am saying to you is you will additionally suffer divine justice because this is sheer evil and wickedness.

Also

The referee also concluded that Igbanugo violated Minn. R. Prof. Conduct 8.4(d) by improperly disclosing that K.A. smoked marijuana during the hearing on the collection lawsuit...

By its nature, revealing a client confidence is prejudicial to the administration of justice because it undermines trust in the legal profession and the lawyer-client relationship.

The court agreed with the referee that suspension was appropriate

Based on the unique facts of this case, the serious nature of Igbanugo’s misconduct and the harm his conduct caused to his clients, to the public, and to the legal profession, in addition to the aggravating factors found by the referee, we see no reason to deviate from the referee’s recommendation.

(Mike Frisch)

May 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No "Sovereign Citizen" Defense To Unauthorized Practice

The Ohio Supreme Court has enjoined the unauthorized practice of a non-attorney

Relator’s evidence demonstrates that Brown filed multiple documents in three separate cases in the Cuyahoga County Court of Common Pleas and that in some of those documents, she identified herself as attorney-in-fact for the plaintiff.

The three cases involved the interests of one person. The trial courts had found that the conduct amounted to unauthorized practice.

The court agreed

The board found that relator proved by a preponderance of the evidence that Brown had engaged in the unauthorized practice of law. Relator has proved that Brown prepared for others legal documents that were then filed in the Cuyahoga County Court of Common Pleas and also appeared at a pretrial conference on behalf of another. Therefore, we agree that she engaged in the unauthorized practice of law.

The court also found that a civil penalty was appropriate for the third instance

But noting that Brown filed a complaint and petition for emergency injunction in the Marinpietri matter after she had been clearly admonished by two Cuyahoga Court of Common Pleas Court judges for her unauthorized practice of law, and that she claimed she had the right to file the lawsuit as a “sovereign citizen,” the board recommends that we impose a $5,000 civil penalty with respect to Count 3.

The court imposed a $7,000 fine. (Mike Frisch)

May 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2015

Podiatrist - Attorney Gets the Boot

The Indiana Supreme Court has imposed a suspension of at least four years of an attorney who engaged in criminal conduct in connection with his service as elected county clerk

Respondent’s convictions resulted from his use of federal funds to pay himself impermissible bonuses in connection with work he performed in his capacity as the elected Clerk of Lake County, Indiana.

On sanction

The parties cite no facts in aggravation. The Court, however, finds in aggravation that Respondent was an elected official who betrayed the public trust and violated both his oath of office and the oath of attorneys. The parties cite the following facts in mitigation: (1) Respondent’s lack of prior discipline; (2) Respondent’s cooperation with the Commission’s investigation and prompt reporting of criminal charges against him; and (3) Respondent’s repayment with interest of the monies in question prior to the filing of criminal charges against him.

He  must petition for reinstatement after serving the term of suspension.

NWI.com reported that he was sentenced to 18 months.

Senior U.S. District Court Judge James Moody asked himself out loud, why did Philpot, an intelligent, well-trained man familiar with the proper workings of local government commit his crime, and concluded that the evidence pointed to "arrogance, greed and a warped sense of entitlement."

Philpot, 55, a podiatrist and attorney, served 10 years as Lake County coroner and six years as county clerk between 1992 and 2012.

 (Mike Frisch)

May 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Moving Towards Transparency?

I can now begin the process of stepping down from my soap box.

The District of Columbia Board on Professional Responsibility has, for the first time ever, made available on line an annual report of its activities for 2014.

Kudos to the Board for finally heeding the pleas of myself and others and recognizing the need for some level of transparency and accountability.

At first blush, this report looks to be quite informative. It provides a comparative look at the case load going back to 2010.  

One serious shortcoming is that, so far as I can tell, there is no information provided about how long investigations, prosecutions and contested disciplinary matters actually take.

Without that critical piece of information, as we Biblical scholars like to say, the rest is commentary. (Mike Frisch)

May 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judicial Campaign "Misquote" Sanctionable

The Illinois Review Board has rejected a First Amendment challenge and recommended a censure of a judicial candidate for statements made in the campaign.

In 2012, Respondent ran for the office of Circuit  Judge in the 20th Judicial Circuit. His opponent was Associate Judge  Vincent J. Lopinot. At first he planned to run a positive campaign. However, he  learned that Judge Lopinot's campaign was allegedly considering turning to  negative tactics by publishing an article against Respondent about a prior  charge of an "offensive battery". Respondent had read the Seventh Circuit  opinion in Woidtke v. St. Clair County, id. He then, along with  his campaign manager, decided to respond by sending out a flyer that contained  the following language:

Rodney Woidtke spent 12 years in prison for a murder HE DID NOT COMMIT. (Source: People v. Woidtke, No. 5-99-0331, 5th District, 26 April  2000)

Because ?.

Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian  Trentman, "were NEGLIGENT in the representation of Mr. Woidtke in a 1989  criminal proceeding that resulted in his wrongful conviction of  murder of Audrey Cardenas." (Source: Woidtke v. St. Clair County, St. Clair  County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No.  02-4223, May 2003)

Next to the above statement, Respondent placed a  picture of Lopinot with the word "NEGLIGENT" in white with a red background  underneath the picture. Respondent sent the flyer to 75,000 to 100,000 people.  Despite the mailing of the flyer, Respondent lost the election to Judge Lopinot.

The above language was taken from the Seventh  Circuit opinion but was not an accurate quotation. The opinion actually read in  the opening paragraphs of the opinion, "In Count I, Mr. Woidtke alleged that  Attorney Trentman and his supervisor, Attorney Judge Lopinot, had been negligent  in their representation of Mr. Woidtke in a 1989 criminal proceeding that  resulted in his conviction." Respondent does not deny that he misquoted the  Seventh Circuit opinion.

The Board

We conclude that the Hearing Board's finding that  Respondent intentionally made the false statement in the flyer is not against  the manifest weight of the evidence. Respondent admitted that he assisted in  designing and writing the contents of the mailer and that he approved its design  and contents. Respondent admitted at hearing that he reviewed the various court  opinions regarding the Woidtke matter prior to completing the mailer. He did not  act in haste. The Hearing Board rejected Respondent's testimony that he believed  the mailer accurately quoted the Seventh Circuit opinion as "incredible and  false." Respondent had no objective information from which he could have  concluded that Lopinot supervised Trentman in regard to the Woidtke case. The  Hearing Board, who had the benefit of listening to the witnesses, concluded  Respondent deliberately and intentionally changed the language of the quotation  to create a false impression. The evidence supports this finding.

The Board found that recent U.S. Supreme Court precedent supported its First Amendment position

Respondent argues that Rules 8.2(a), 8.2(b) and  8.4(c) are unconstitutional as applied to his conduct. He contends that his  statements constitute political speech and are protected by the First Amendment  even if the statements are knowingly false. We disagree. Respondent has failed  to direct our attention to any cases which have concluded that all statements  made during a judicial, or any other, election, regardless of their truth or  falsity, are protected speech under the First Amendment to the United States  Constitution or any State Constitution.

The United States Supreme Court has never ruled  Rules 8.2(a), 8.2(b) or 8.4(c) unconstitutional. Similarly, the United States Supreme Court has never held that knowingly  false statements by a judicial candidate against an opponent have First  Amendment protection. Even in the most recent case cited by Respondent, United States v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012), the  Supreme Court pointed out that there are situations in which knowingly or  recklessly made false statements are not protected under the First Amendment,  citing Garrison v. Louisiana, 379 U.S. 64 (1964) where an appellate  district attorney was convicted of defamation for making disparaging statements  about the judiciary. See also, Williams-Yulee v. The Florida Bar, 575  U.S. ___ (2015)(Court found that a Florida rule prohibiting judicial candidates  from personally soliciting campaign contributions did  not violate the First Amendment given the State's interest in preserving the  integrity of the judiciary).

(Mike Frisch)

May 19, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)