Saturday, May 28, 2016

Burglary And Theft Draws Suspension

An 18-month suspension has been imposed by the Louisiana Supreme Court of an attorney 

In April 2014, respondent broke into her ex-husband’s home and stole a man’s diamond ring (valued at approximately $13,000) and a woman’s Rolex watch (valued at approximately $6,000). Respondent then sold the ring and the watch to Diamond Distributors Inc. for approximately $2,700 and used the money to gamble. On May 20, 2014, respondent was arrested for felony theft and burglary of an inhabited dwelling and booked into the East Baton Rouge Parish Prison. On June 22, 2014, respondent self-reported her arrest to the ODC.

The attorney defaulted on the charges but offered mitigating evidence.

The court considered mental health issues in determining an appropriate sanction and found the misconduct less aggravated than that in a prior case 

In determining an appropriate sanction, we find guidance from In re: Sterling, 08-2399 (La. 1/30/09), 2 So. 3d 408. In that case, Mr. Sterling went to the apartment of his former fiancée so that he could retrieve her engagement ring and the keys to a car he had given her. Mr. Sterling knocked on the doors and windows of the apartment, but the woman did not respond. Mr. Sterling then kicked in the door and forced his way inside the apartment. Upon discovering the woman in her bedroom with another man, Mr. Sterling grabbed her by the arms and pushed and shoved her around the apartment. Mr. Sterling was arrested on charges of unauthorized entry of an inhabited dwelling and simple battery. He later pleaded guilty to unauthorized entry of an inhabited dwelling. Mr. Sterling also failed to properly notify his clients of his interim suspension, failed to return a client’s file after he was placed on interim suspension, and transferred a client matter to another attorney without the consent of the client...

In the instant matter, respondent did not engage in the crime of battery, nor did she engage in any other attorney misconduct, as was present in Sterling. Furthermore, there are compelling mitigating factors present in this case, notably the absence of a prior disciplinary record and respondent’s significant personal and emotional problems. As such, we find a downward departure from the two-year suspension imposed in Sterling is appropriate.

Justice Weimer

I dissent and would order this matter be scheduled for oral argument so as to better evaluate whether a lesser sanction would serve the interests of the disciplinary system.

Justice Hughes agreed with Justice Weimer. (Mike Frisch)

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

Getting Into Jail

The Louisiana Supreme Court ordered the interim suspension of an attorney who is the subject of this post on the web page of the Lafource Parish Sheriff's Department

Sheriff Craig Webre announced two people face criminal charges following an investigation of a former attorney attempting to bring contraband into the Lafourche Parish Detention Center.  Edward “Buddy” Schertler (age 40) of Thibodaux was caught attempting to bring phones and tobacco products into the jail, but he also faces additional charges after illegal guns and drugs were found in his possession. Dwan Demere (age 37) of Galliano, who was with Schertler at the time of his arrest, also faces charges after she was found with drugs and paraphernalia in her possession.

At around 9:15 p.m. on Friday, March 4, Edward Schertler arrived at the Lafourche Parish Detention Center in Thibodaux identifying himself as an attorney and asking to meet with a client. Schertler was carrying a briefcase, and officers asked to inspect the inside of the case for contraband. As Schertler opened the case, officers noticed a plastic bag containing four cell phones, charging devices, and tobacco products. The items were seized as contraband, and Schertler was ordered off the premises.

Through investigation, detectives learned Schertler was currently ineligible to practice law in the State of Louisiana, per the Louisiana Attorney Disciplinary Board. Following the investigation, a warrant was obtained for Schertler’s arrest for Taking Contraband to a Penal Institution. On Wednesday, March 9, detectives made contact with Schertler at his residence and placed him under arrest. Detectives then executed a search warrant at the residence and discovered 15 firearms, including a .50 caliber rifle with an obliterated serial number, as well as suspected marijuana, Suboxone, and drug paraphernalia. Detectives also discovered an outboard motor which had been reported stolen two months prior in Galliano. Detectives also discovered a woman at the residence, Dwan Demere, was found to have suspected Alprazolam and drug paraphernalia in her possession, and she was also taken into custody. Both Shertler and Demere were then transported to the Lafourche Parish Detention Center in Thibodaux.

Schertler was booked on the following charges: Taking Contraband to a Penal Institution; Illegal Carrying Of Weapon in the Presence of a Controlled Dangerous Substance; Possession of a Firearm with an Obliterated Number; Possession of, Suboxone, Marijuana, and Drug Paraphernalia; and Illegal Possession Of Stolen Things. He was released early Thursday morning after posting $17,500 bond.

Demere was booked with Possession of Alprazolam and Drug Paraphernalia. She was also released early Thursday morning after posting $6,000 bond.

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

Friday, May 27, 2016

Poison Ivy

The Alaska Supreme Court has disbarred an attorney for giving false testimony in civil and bar discipline proceedings.

Deborah Ivy and her brother, David Kyzer, were involved for several years in now-settled litigation over the dissolution and unwinding of business organizations and joint property holdings of Ivy, Kyzer, their two sisters, and others. During that litigation, relations between Kyzer and Ivy grew so acrimonious that a no-contact order was issued in December 2007. This order prohibited in-person or telephone contact between Ivy and Kyzer without an attorney present and prohibited each party from coming within 500 feet of the other’s residence. Ivy subsequently testified that Kyzer made improper contact with her on three occasions after this order issued. In response Kyzer filed an ethics grievance with the Alaska Bar Association, claiming that Ivy fabricated these incidents, in violation of the Alaska Rules of Professional Conduct.

Two of the alleged incidents bear on the sanctions inquiry. First, on January 7, 2008, Ivy provided a 30-minute statement to a police officer, claiming that Kyzer had stalked her at a women’s clothing store about ten days earlier. Based on Ivy’s statement and because Ivy claimed to be in hiding and did not want to come to the courthouse, the officer offered to request a telephonic hearing for a domestic violence restraining order. The day Ivy made the police report was the same day she was scheduled to give a deposition in the litigation with Kyzer. A few days before, on January 3, the superior court had denied Ivy’s motion to stay the deposition, and on January 4 we denied Ivy’s emergency motion to stay the superior court order denying her request. Ivy did not appear at the January 7 deposition despite having been ordered to do so. In response to a follow-up order to appear for the deposition, Ivy’s attorney reported the alleged stalking incident to the superior court. Ivy ultimately was deposed on March 13. At that deposition, Ivy testified about the alleged stalking incident. She described in great detail her movements among the various racks of clothing and the dressing rooms, Kyzer’s allegedly menacing use of his vehicle, and her response. The second incident occurred in July 2010 when Ivy claimed that Kyzer assaulted her in a courtroom and that his actions constituted criminal sexual assault. To support this claim, Ivy filed a Notice of Sexual Assault with the court accompanied by an affidavit describing the alleged incident.

 In December 2010 Kyzer filed an ethics grievance with the Alaska Bar Association, alleging that Ivy violated several Alaska Rules of Professional Conduct by falsely testifying that Kyzer stalked her and assaulted her in the courtroom. After an investigation by a special bar counsel and a hearing, the Area Hearing Committee found that Ivy knowingly provided false testimony at the deposition, in her affidavit, and during the disciplinary proceedings.

The court found that the misconduct warranted disbarment

Ivy’s misconduct exceeds the typical case: She lied in a complex lawsuit involving multiple parties, she falsely reported that her brother had committed criminal acts against her, and she lied in these proceedings to evade discipline for that misconduct. Thus though repetition exists between the aggravating factors and the elements of the presumptive sanction (e.g., Ivy’s selfish motive)  and between the aggravating factors and the elements of the underlying ethical violations (e.g., Ivy’s dishonest conduct),  we give some weight to these aggravating factors at the balancing stage. But in doing so we account for the double-counting risk, which arises from the similarity of the factual circumstances, by appropriately weighing the factorsAcknowledging the risk of double counting, we conclude that the five aggravating factors — Ivy’s pattern of misconduct, its illegal nature, her dishonest motive, deceptive practices during the disciplinary process, and refusal to acknowledge the wrongfulness of her actions — outweigh the single mitigating factor, Ivy’s lack of disciplinary record. Therefore we do not reduce the presumptive sanction of disbarment

Chief Justice Fabe would hold that disbarment is too severe

 I respectfully disagree with the court’s decision to disbar Deborah Ivy. I agree that Ivy violated Alaska Rules of Professional Conduct 8.4(a), (b), and (c) by lying about the stalking incident in the parking lot and the alleged sexual assault by her brother in the courtroom. And she violated Alaska Bar Rule 15 by continuing to maintain her fabricated version of these events before the Board. But it is my view that disbarment of Ivy for being untruthful in the course of her own highly emotional personal family litigation is unnecessarily severe...the court has ignored the significant mitigating factor of Ivy’s personal and emotional problems, resulting from years of a contentious personal relationship with her brother. And Ivy’s falsehoods did not arise in the context of her representation of a client. Finally, there is no example in all of our prior disciplinary decisions that would support disbarment in Ivy’s case. Though Ivy’s conduct is unworthy of our profession and merits the severe sanction of a five-year suspension, it does not warrant disbarment

 She would instead impose a five-year suspension

While I agree that attorneys can be subject to disbarment for violations committed outside of a representative capacity, we have approved such a severe sanction in only one case, where an attorney was convicted as an accessory after the fact to a first-degree murder.

(Mike Frisch)

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

Wednesday, May 25, 2016

"Crisis Mode" Misconduct Adds Two Years Of Suspension

A two-year suspension has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct in an immigration matter.

In mitigation, the respondent testified at the disciplinary hearing that her use of fees she received on the Guadeloupe matters for another client was an inadvertent mistake, that she intended to make restitution once she is gainfully employed, and that she was in "crisis mode" due to her suspension from the practice of law and foreclosure on her home. The Special Referee noted in his report that the respondent showed genuine remorse and was experiencing great difficulties. The respondent is currently suspended based on findings, inter alia, that she engaged in a pattern and practice of failing to safeguard funds, and converting funds, violated a court order, and committed other escrow improprieties. The three-year suspension, which commenced on December 26, 2013, has not expired. In addition, the respondent was previously issued a Letter of Admonition in 1997, and a Letter of Caution in 1994. We find the respondent's disciplinary history to be an aggravating factor.

Records of the New York State Office of Court Administration show that the respondent is delinquent in the payment of her registration fees for the 2015-2016 biennial period, in addition to the 2011-2012 and 2013-2014 biennial periods.

Notwithstanding the mitigating factors present in this case, we find that a suspension from the practice of law for two years is warranted, in addition to the three-year suspension previously imposed by opinion and order of this Court dated December 26, 2013.

(Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Withheld Judgments Lead To Stayed Suspension

The web page of the Idaho State Bar reports on a recent sanction

On May 20, 2016, the Idaho Supreme Court issued a Disciplinary Order suspending Boise attorney Lisa D. Shultz from the practice of law for a period of six (6) months, with all six (6) months withheld, and placing her on a disciplinary probation.

            The Idaho Supreme Court found that Ms. Shultz violated Idaho Rule of Professional Conduct 8.4(b) [Commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.

            On October 17, 2014, Ms. Shultz was charged in Ada County with one misdemeanor count of using a telephone to disturb the peace, relating to her contact with a former legal intern. On March 16, 2015, Ms. Shultz pleaded guilty to an amended charge of disturbing the peace. The Court imposed a five-day jail sentence, entered a Withheld Judgment, and ordered Ms. Shultz to complete a two-year unsupervised probation with conditions requiring her to follow any Idaho State Bar recommendations. Also on March 16, 2015, Ms. Shultz entered guilty pleas in two unrelated cases to misdemeanor charges of possession of marijuana and possession of drug paraphernalia. In those cases, the Court entered a Withheld Judgment and ordered Ms. Shultz to complete a one-month unsupervised probation. The possession and paraphernalia charges were dismissed on April 30, 2015. 

            The Disciplinary Order provides that Ms. Shultz’s six-month suspension is withheld subject to the terms and conditions of her disciplinary probation, which runs through March 15, 2017. The terms and conditions of probation include: avoidance of any alcohol or drug-related traffic violations; a program of random urinalysis, with provision that if Ms. Shultz tests positive for alcohol or other tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed and served; and if Ms. Shultz admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during her probationary period, regardless whether that admission or determination occurs after the expiration of the probationary period, the entire withheld suspension shall be imposed.

            The withheld suspension does not limit Ms. Shultz’s eligibility to practice law.

(Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment For Stealing From Elderly Clients

An Illinois Hearing Board recommends disbarment of an attorney who defaulted on these charges

Respondent's misconduct was particularly egregious. That misconduct included, but was not limited to, misappropriating a total of over $800,000 in three separate matters, involving elderly persons, one of whom had dementia. In each of those matters, Respondent took funds repeatedly and over time. In addition, as Count IV reflects, Respondent took funds without authority from four other persons. Thus, an extensive pattern of misconduct was present.

The nature and extent of Respondent's misconduct alone would warrant disbarment. The aggravating factors present provide additional support for this recommendation. The mitigating factors do not warrant a lesser sanction in this case.

The mitigation involved a lack of prior discipline and partial restitution. (Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney May Appeal; Attorney Loses Appeal

The ABA Journal has the story of an opinion of the United States Court of Appeals for the Seventh Circuit holding that a sanctioned attorney may appeal a finding of misconduct even if the fine has been paid.

The attorney lost on the merits.

The case involves an assistant state's attorney in Illinois who asserted that no requested documents existed in civil litigation. Problem was that there were plenty such documents.

The court

because a finding of attorney misconduct in a sanctions order can seriously impair an attorney’s professional standing, reputation, and earning possibilities, such an order can’t be brushed off as easily as a gnat. It is not just a slap on the wrist, or an angry remark by a judge in the course of a trial or other hearing. It is a judicial order, in this case issued by a respected and experienced federal judge (really two respected and experienced federal judges, as the money sanction imposed by Judge Bucklo, together with her critical comments supportive of Judge Grady’s, amplified the gravity of Judge Grady’s order)...

 It’s true that although Judge Grady expressed strong criticism of lawyer McClellan, the only sanctions order that he had decided to issue (though it was not quantified until the order issued by his successor, Judge Bucklo) was an order to pay, which when he issued it would have been expected to impose at least part of the expense on McClellan. We can imagine an argument that as in Bolte all we have here is a critical comment by the judge, and that a mere comment can’t be the subject of an appeal. It would indeed be odd to think that any time a judge criticized a lawyer, whether in open court or in a written order, the lawyer could treat the criticism as an appealable ruling. But there is a difference between a critical comment unjoined to a sanctions order and a critical comment that appears in and offers justification for a formal such order. The accusation of misconduct by McClellan is not an add-on to the order issued by Judge Grady but the justification for it. One of the sanctions that this court occasionally imposes, usually after a rule to show cause has been issued, is a formal censure or reprimand of a lawyer. Such a sanction, if imposed on an Illinois lawyer, must be  reported to the Attorney Registration and Disciplinary Commission (or its equivalent in other states), and can result in the suspension of the lawyer’s law license, or worse...

The significance of the order, as far as McClellan is concerned, is not the price tag but the sharp criticisms of her in the order, and those criticisms were apt and accurate. The plaintiffs had been strung along by McClellan and others at the State’s Attorney’s Office for more than a year, having been incorrectly informed that the Office had not retained the plaintiffs’ criminal case files. McClellan had repeatedly denied that the files existed, without knowing whether they did or did not exist and without conducting a reasonable inquiry into the matter. She had even threatened the plaintiffs’ counsel that she would seek sanctions against him if he continued to request the documents in the face of her denial of their existence. She also tried to prevent him from searching for the files himself. And when the files were finally located she delayed turning them over by advancing a meritless claim of privilege. It took multiple court orders and more than a year of effort for the plaintiffs to obtain all the docu-ments to which they were entitled. The district court did not abuse its discretion in sanctioning her.

 (Mike Frisch) 

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Off From Texas

The Oklahoma Supreme Court has imposed reciprocal disbarment based on a Texas sanction imposed for criminal tax violations that did not lead to conviction.

The procedural posture in Texas

In late 2014, the Texas Bar began disciplinary discussions with O'Laughlin. From the record, notice of the third complaint was received by O'Laughlin after disciplinary discussions had begun. On March 23, 2015, O'Laughlin signed the Motion to Resign, requesting that the Supreme Court of Texas accept his resignation from the practice of law: "Applicant is voluntarily resigning and withdrawing from the practice of law and does so in lieu of discipline."

His response when Oklahoma commenced reciprocal discipline proceedings

 O'Laughlin chooses not to acknowledge any misconduct, and he shows no remorse for the wrongs done to his clients. Instead, O'Laughlin argues that his misconduct did not involve the practice of law; and therefore, this Court cannot impose discipline.

The court had a different view

 O'Laughlin's arguments about the Texas Bar and Supreme Court of Texas during his disciplinary proceeding are concerning. O'Laughlin claims that the Texas disciplinary proceeding is still ongoing. He supports his assertion by citing the Withdrawal of Motion filed on May 22, 2015. That date is almost one month after the Supreme Court of Texas entered a final order accepting O'Laughlin's resignation in lieu of discipline, April 28, 2015. According to Texas rules, an attorney has ten days to withdraw a motion for resignation in lieu of discipline after the attorney has been served the Texas Bar's response. TRDP 10.02, Texas Govt. Code T.2, subt. G, app. A-1. The Texas Bar filed its response on March 31st, and O'Laughlin was served on the same date. Almost two months later, O'Laughlin took action, well past the allotted time to withdraw his motion. According to TRDP Rule 10.02, "[i]f a motion to withdraw is not timely filed, the detailed statement of Professional Misconduct shall be deemed to have been conclusively established for all purposes." Id. O'Laughlin failed to withdraw his resignation within the ten allotted days, and he fails to explain or provide any relevant rule that allows him to circumvent TRDP Rule 10.02. We find no merit in O'Laughlin's continuing objection via his Withdrawal of Motion due to TRDP Rule 10.02 and the Supreme Court of Texas taking no action on the Withdrawal of Motion for over a year and a half and counting. O'Laughlin acknowledged the Texas rules he resigned under when he submitted his request to resign. We hold him accountable for his knowledge of those rules and his neglect.

Even if O'Laughlin's attempt to withdraw his request to resign from the Texas Bar were a valid procedural vehicle, O'Laughlin did not provide any evidence that he actually filed it with the Supreme Court of Texas. A file-stamped Withdrawal of Motion is absent from the record. When directed by this Court to submit a file-stamped copy of the Withdrawal of Motion or explain his failure to do so, O'Laughlin failed to provide any evidence or argument.

We view these actions by O'Laughlin as a method to flaunt the legal system and avoid discipline. In his January 25th response, O'Laughlin claims that the Texas Bar's attorney never represented to him that there were findings that would be conclusively established when he resigned in lieu of discipline. Texas' disciplinary rules contradict his claim. He argues now that this proceeding was obtained by fraud. Again, we find no merit to O'Laughlin's argument. For purposes of Rule 7.7 of the RGDP, O'Laughlin's resignation in lieu of discipline is valid, and the Supreme Court of Texas' order accepting his resignation is final.

O'Laughlin does not challenge the evidence or underlying facts in this Court, despite being allowed an opportunity to explain the circumstances or present mitigating evidence. If true as O'Laughlin admitted, the facts of the three grievances filed by O'Laughlin's clients alone are sufficient to warrant discipline. Having failed to challenge the factual allegations, this Court upholds the conclusive establishment of the misconduct underlying O'Laughlin's resignation in lieu of discipline in Texas. Discipline in Oklahoma is warranted.

In an unrelated action, the court denied a first attempt at reinstatement of an attorney had had resigned pending discipline in 2000. (Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Prior Discipline Leads To Short Suspension

An attorney with a record of prior discipline was suspended for 60 days by the Wisconsin Supreme Court for mishandling a tax matter.

Attorney Moldenhauer has a disciplinary history. In 1996, Attorney Moldenhauer consented to a private reprimand for misconduct consisting of failing to act with reasonable diligence, failing to communicate properly with a client, and failing to render a full accounting of estate funds in respose to a client's request. Private Reprimand 96-28. In 2006, Attorney Moldenhauer was publicly reprimanded for misconduct in two matters. In the first matter, he failed to act with reasonable diligence, failed to return a client's file, and failed to cooperate with the OLR's investigation. In the second matter, he failed to provide his client with an itemized billing statement, failed to refund the unearned portion of his advanced fee, and failed to cooperate in the OLR's investigation...In 2008, Attorney Moldenhauer was publicly reprimanded for misconduct consisting of failing to communicate properly with a client, failing to act with reasonable diligence, and failing to obey a court order. Public Reprimand of James G. Moldenhauer, 2008-01. In 2012, Attorney Moldenhauer was publicly reprimanded for misconduct consisting of failing to communicate properly with a client and failing to act with reasonable diligence. 

His lapses led to this

In August 2012, the C.s. filed a malpractice and breach of contract action against Attorney Moldenhauer for his mishandling of their tax matters. The case eventually settled for $50,000.

The attorney stipulated to the misconduct and sanction. (Mike Frisch)

May 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 24, 2016

Patently Unethical

The Illinois Administrator has filed a complaint alleging misconduct in several patent and trademark matters.

Between 2005 and 2014, in connection with at least 31 ASICO patent and trademark applications, Respondent did not respond to Office Actions issued by the USPTO within the time specified, resulting in his subsequent receipt of Notices of Abandonment from the USPTO. Each Notice of Abandonment stated that the patent or trademark application referred to had been abandoned as a result of Respondent's failure file on behalf of the applicant a proper response within the time specified by the Office Action that had been mailed to and received by Respondent.

He also is alleged to have failed to communicate and made misrepresentations regarding the status of patent matters. (Mike Frisch)

May 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocal Interim Suspension Ordered

The District of Columbia Court of Appeals has ordered the interim suspension of an attorney while it considers reciprocal discipline for sanctions imposed in California.

The August 2015 California Bar Journal reported

SIERRA DAVID STERKIN [#234356], 37, of Placerville, was suspended from the practice of law for six months with credit given for a period of interim suspension. He was also placed on three years’ probation and faces a two-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect Feb. 28, 2015.

Sterkin’s suspension follows his successful completion of the Alternative Discipline Program. Sterkin pleaded no contest to obstructing a peace officer in performance of their duties, a felony, and criminal threats, a misdemeanor, in two separate incidents that occurred when he had not been taking his medication.

In the first incident, on Oct. 16, 2011, a police officer saw Sterkin yelling obscenities at people and shattering wine bottles in the middle of the street. Sterkin asked to be transported for mental health treatment, but struck an officer and resisted being placed in handcuffs. Later, Sterkin threatened a neighbor, stating: “I am going to slit your throat with a buck knife and watch your guts fall on the floor.” The neighbor had not had any prior contact with Sterkin and did not provoke the threat.

In mitigation, Sterkin cooperated with the State Bar and his successful completion of the Alternative Discipline Program, and the Lawyer Assistance Program indicates he no longer suffers from the mental health issue that led to his misconduct.

(Mike Frisch)

May 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

City Attorney Reprimanded For Suing City

An Arkansas attorney has been reprimanded and fined for misconduct committed as an elected  city attorney.

The conduct of Benjamin Lipscomb violated Rule 1.7(a) in that as elected and longtime Rogers City Attorney, the City was Lipscomb’s sole client. In November 2014, Lipscomb caused the City of Rogers to be sued in federal court, with him as the sole plaintiff, claiming an illegal or unlawful action by the City had harmed his status as a city official, thus placing his personal interest in direct conflict with the interest of his only client. Lipscomb continued to act as the legal representative of the City until he resigned on January 30, 2015. A concurrent conflict of interest existed between Lipscomb and his only client, the City of Rogers, as his representation of the City was materially limited by the personal interest of Lipscomb that was directly contrary to the interest of the City as set out in his litigation. The City of Rogers never consented to this conflict.

He violated other ethics rules including Rule 1.8(b) by using confidential information and

The conduct of Benjamin Lipscomb violated Rule 8.4(a) in that as the plaintiff in litigation against his employer, City of Rogers, in federal court Case No. 14-cv-5338, after it was filed on November 5, 2014, Lipscomb violated the rules of professional conduct related to conflicts of interest by using or acting through a Rogers city employee, Jan Brown, who worked under his direct supervision, to prepare pleadings in his case against the City of Rogers as well as other documents for Lipscomb’s personal business matters...

The conduct of Benjamin Lipscomb violated Rule 8.4(c) in that in November-December 2014, while a plaintiff in Case No. 14-cv-5338 against the City of Rogers, his sole client as Rogers City Attorney, Lipscomb improperly and possibly illegally used a city employee under his supervision, city property, city time and city resources for his personal legal and non-city employment matters. He directed the city employee, Jan Brown, to prepare an amended complaint for use in his federal lawsuit against the city and to prepare FOIA requests against the city for the benefit of him and his family member, conduct by Lipscomb involving dishonesty, fraud, deceit or misrepresentation to the City of Rogers. After moving his residence outside the Rogers city limits in May 2011, and thereby becoming ineligible to hold the elected office of Rogers City Attorney, Lipscomb continued in said office, drawing his full salary and benefits, until January 30, 2015, accepting approximately $500,000 of city funds to which he was not entitled, conduct by Lipscomb involving dishonesty, fraud, deceit or misrepresentation. Arkansas Rule 8.4(c) provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(Mike Frisch)

May 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, May 23, 2016

Wife Accused Of Baby Murder May Nor Represent Spouse In Attorney Incapacity Proceeding

A non-attorney spouse may not represent her husband in proceedings involving  his capacity as an attorney, according to a recent decision of the Law Society for Upper Canada Tribunal Hearing Division.

This is a capacity application under s. 38 (1) of the Law Society Act, RSO 1990, c. L.8 (“Act”). The Law Society alleges that the Lawyer, Byron May, is not capable of meeting his obligations as a lawyer because of physical or mental illness. It has brought a motion under s. 39(1) of the Act asking that the Tribunal order that the Lawyer be examined by a psychiatrist of the Law Society’s choosing.

The Lawyer’s wife, Catherine May, who is not a lawyer or paralegal, asks to be his representative in this proceeding. She, and not her husband attended the hearing at the time scheduled. We must decide whether she will be allowed to be his representative.

The Law Society says that we should not allow her to be his representative because she has a conflict of interest. There are currently criminal charges against her in which she is accused of attempted murder of her adopted baby daughter. Ms. May is confident the charges will be dismissed for delay under s. 11(b) of the Canadian Charter of Rights and Freedoms, but as of now the case is still ongoing.

 It appears that originally the Lawyer told the police he saw Ms. May trying to drown the baby. There is now a written confession that appears to be signed by the Lawyer and was sent to both the Law Society and the Crown. The confession says that his statement about the drowning was a lie. It says that he and his daughter tried to kill Ms. May and the baby by drugging them with ketamine. In his letter to the Law Society, he asks that the Law Society revoke his licence to practise law. Ms. May acknowledges she was involved in drafting this document although she says it reflects the Lawyer’s statements and wishes.

Ms. May says that she is the only person able to speak for her husband, who is currently very ill from several diseases and cannot speak clearly or leave the house. She says that she understands what he wants. He has repented, she emphasizes, and he has confessed to his crimes. She states that he wants his case to be a lesson to future generations of lawyers. She says that she loves her husband unconditionally, despite his participation in these crimes. She argues that it would be a perversion of justice to remove her as his representative.

There is a conflict of interest

Here, there are many ways in which Ms. May’s interests conflict with those of her husband in this proceeding. We refer to three that in our view are particularly significant.

 First, the question of who, if anyone, was attempting to kill the baby is a significant issue in the criminal case against Ms. May. If the Lawyer was telling the truth in his confession, rather than when he went to the police, Ms. May is more likely to be acquitted. Ms. May’s interest in obtaining an acquittal by having the confession believed may well create a pressure to act in her own interests rather than his best interests in this proceeding about his capacity. The believability of his confession may be connected to his capacity, now and at the time it was made.

Second, the signed confession, the Lawyer’s understanding of what he signed and Ms. May’s role in its preparation and signature will likely be an important piece of evidence in the criminal case and perhaps in this case. Ms. May’s interest in justifying her own conduct in connection with that confession runs the substantial risk of impairing her ability to act only in the Lawyer’s interest.

Third, Ms. May wrote to the Law Society on February 10, 2015 (three days before the confession was sent), making accusations against the Lawyer and asking that his licence be revoked. She noted that she was “devastated by his action towards his own baby and lawful wedded wife.” There is a substantial risk that in representing him before the Tribunal, her own feelings about the events surrounding her and the child may colour the submissions she makes and make it difficult to act solely in his best interests.

 In these circumstances, Ms. May has a significant conflict of interest that would imperil the proper administration of justice and the Law Society’s system of professional regulation. This is the case even if Mr. May has consented, which itself is in question given the real concerns about his capacity on the evidence before us. She cannot be permitted to appear as Mr. May’s representative.

We recognize that given the evidence before us, which includes indications that Ms. May is controlling Mr. May’s access to others, the Lawyer may be unrepresented in this process. We are conscious of our duty to carefully scrutinize the evidence and submissions to ensure that they meet the relevant legal tests.

The hearing is scheduled to resume on May 25. (Mike Frisch)

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

Diversion Violation Draws Indefinite Suspension

An attorney who violated conditions of diversion imposed in light of trust accounting lapses has been indefinitely suspended by the Maryland Court of Appeals.

This attorney discipline action involves a lawyer who, while representing her clients in separate legal matters, failed to comply with remedial conditions as required under consecutive Conditional Diversion Agreements (“CDA”) for prior misconduct concerning her trust account; failed to secure safeguards during an illness to ensure a timely appeal for her client or otherwise protect her client’s interests in conformance with the Rules of Professional Conduct; and mismanaged her attorney trust account by repeatedly accumulating negative balances, depositing unearned fees, and maintaining improper record-keeping practices.

Respondent, Erica S. White, a member of the Bar of Maryland, represented Keith Fleming (“Mr. Fleming”) in a divorce and custody matter (“Fleming matter”) and Karma Sewell-Carpenter (“Ms. Sewell-Carpenter”), in a landlord-tenant dispute (“Sewell matter”). Between March 2012 and November 2013, Respondent was under a CDA with Bar Counsel for prior misconduct involving mismanagement of her attorney trust account. Respondent’s CDA was later amended (“Amended CDA”), then subsequently revoked in  April 2014 due to Respondent’s non-compliance with the terms of the CDA. (collectively, “CDA matter”).

The process

Conditional diversion in attorney disciplinary matters is distinguishable from the imposition of a sanction. See Attorney Grievance Comm’n v. Cappell, 389 Md. 402, 419- 20, 886 A.2d 112, 122 (2005). Maryland Rule 16-712(b)(3) grants Bar Counsel the authority to “enter into and implement Conditional Diversion Agreements” with attorneys in order to remedy misconduct. An attorney may be eligible for conditional diversion when his or her professional misconduct was not the result of the following: any willful or dishonest conduct, the cause or basis of the misconduct can be resolved through remediation or alternative programs or mechanisms, and the disposition is in the best interest of the public and the attorney’s clients both present and prospective. See id. at 421, 886 A.2d at 123.

The court found documentation of health issues inadequate

A CDA generally serves as a remedial tool to assist attorneys’ compliance with the Maryland Rules and Rules of Professional Conduct. Thus, we share in Bar Counsel’s concern that Respondent’s failure to adhere to the terms under the CDA and Amended CDA, while continuing to engage in conduct which precipitated her CDA, demonstrates a lack of appreciation of the problem.

While we accept the mitigating factor of Respondent’s illness during the relevant period, it does not excuse her admitted ignorance of trust account rules; her failure to remediate her misconduct or adhere to the protocols under consecutive CDAs; her lack of cooperation with Ms. Deady and Bar Counsel while under investigation; or her failure to implement safeguards during an illness or otherwise protect her clients’ interests in conformance with the foregoing Rules.  Although, during oral argument, Respondent admitted to experiencing difficulties as her mother’s caretaker until her death, which may have also impacted her practice, we could not ascertain whether this was shared with Bar Counsel or the hearing judge. Accordingly, we order Respondent indefinitely suspended with the right to apply for readmission after six months.

(Mike Frisch)

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

Greenmen

The New Jersey Supreme Court has censured a father and son for failure to cooperate with a random audit of law firm trust accounts.

The Disciplinary Review Board report tells the story

respondents attempt to minimize what is a blatant disregard of their responsibility to cooperate with disciplinary authorities. OAE auditors scheduled three separate audits. Respondents were unprepared with any records for the first audit and failed to appear for the other two audits. They submitted two significantly deficient document productions to the OAE, failed to answer myriad telephone calls and letters from the OAE and its auditors, and ignored two separate demands, sent December 24, 2012 and again on October 24, 2014, that they complete and return a Certification of Accounting Services.

Notwithstanding respondents’ claim that they "immediately" hired an accountant, Sal first indicated, in a December 3, 2014 letter to the OAE, that an accountant had been hired. A year has passed since the December 3, 2014 letter to the OAE, and two-anda-half years have passed since the records were allegedly stolen, and yet, the documents still are not available for inspection.

The facts

Sal, and his son, Jonathan, operate The Sal Greenman, P.C. law firm. In an August 23, 2012 letter, the OAE notified the firm that it had been selected for a random compliance audit, scheduled to occur on September 10, 2012. Sal requested that the OAE reschedule the audit because he had not received the audit notification letter. On September 4, 2012, the OAE sent a letter granting the request and rescheduling the audit for October 22, 2012.

On October 22, 2012, Senior Random Compliance Auditor Mimi Lakind and (now former) OAE Auditor Christopher Spedding appeared for the audit. Sal claimed that, due to a sudden illness of Jonathan, he was unprepared. Thus, on October 25, 2012, the OAE sent a letter to respondents, rescheduling the audit to December 17, 2012. However, neither of them were available when Lakind and Spedding appeared for the audit on that date. Jonathan claimed that he had parked his car in New York to have the law firm records printed at Kinkos, but someone broke into the vehicle and stole the law firm records. Sal claimed that he had laid all recordkeeping responsibility on his son, since Sal was burdened by overseeing the care for his own ill and elderly mother.

The auditors pursued the matter but

Jonathan again explained that his car had been towed in Manhattan when he brought his records to Kinkos to be printed and the records were stolen from the car. Despite four requests by Lakind, Jonathan never provided documentation showing that his car had been towed.

The DRB

Respondents, despite extraordinary opportunities extended by both the OAE and the Supreme Court, utterly have failed to comply with their obligation to comply with the OAE’s requests for the production of their records. Not only have they failed to comply with these lawful demands, but also they have attempted to spin a tale of deceit and misdirection that pales in comparison only to how poorly constructed or Respondents have compounded easily exposed those tales were. their blatant disdain for the disciplinary system by failing to file answers to the disciplinary complaint, defaulting on the matter.

Over the course of almost two-and-a-half years, respondents were unprepared for one audit when the auditors arrived and failed to appear for two others. Despite multiple demands, they made two incomplete document productions, which were so deficient that they created more questions than answers. They failed to respond to no less than six letters sent by the OAE and ignored a multitude of telephone messages. Respondents also made numerous excuses for their lack of cooperation, including an unsubstantiated report of a towed car; stolen records from that car; a misrepresentation regarding the dates of a scheduled vacation; a sudden illness for Jonathan; an illness and required surgery for Sal; and the need for Sal to care for his elderly mother. Sal also claimed, on at least one occasion, that his son was responsible for the recordkeeping in what could reasonably be interpreted as an attempt to shift the recordkeeping and cooperation responsibility entirely to Jonathan. Respondents also ignored two Court orders, directing them to appear for an audit.

For the father

First, the law firm is in Sal’s name and, therefore, he is responsible for its activities. Based on the record, it appears that Sal is the partner and Jonathan the associate and therefore, Sal has the additional responsibility of supervising his son. Second, we found it disturbing that Sal attempted to pass the onus of responsibility to his son by telling the OAE he has nothing to do with recordkeeping, but rather his son handles that aspect. Third, Sal, at best, misled investigators when he claimed an audit would conflict with a planned family vacation. Upon receiving proof of that vacation, the investigator determined that the trip was to begin five days after the scheduled audit date. These factors convinced us that a reprimand is insufficient and we, therefore, determined that Sal should receive a censure.

And the son

Jonathan, on the other hand, has a prior admonition for lack of diligence and a failure to communicate with the client. Therefore, his baseline discipline is a reprimand, which we determined to increase to a censure, based on his failure to file an answer to the disciplinary complaint in this matter.

Thus

One last observation warrants mention. The indifference that these respondents displayed not only toward their obligation to cooperate with the Court’s processes, but also and importantly toward their obligation in respect of identifying and accounting for their clients’ funds, is astounding. They continue to ignore their responsibilities, even in the face of temporary suspension. We find respondents’ complete abdication of this very basic and important responsibility disgraceful and have considered their indifference in our determination to enhance discipline in this matter.

Censure? (Mike Frisch)

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

Probate Misconduct Draws Indefinite Suspension

An indefinite suspension of an attorney wa imposed by the Massachusetts Supreme Judicial Court for an attorney's intentional misuse of the proceeds of a disabled veteran's estate.

And the fees were, to put it mildly, excessive

The probate of the client’s estate was routine and presented no novel or difficult issues. At the time of his death, all of the client’s assets were under the control of a guardian. The guardian filed a final account, which was approved by the court. The guardian transferred the client’s assets to the respondent after the respondent was appointed as the estate’s representative. The life insurance proceeds were paid to the estate immediately upon receipt of proof of the respondent’s appointment as the estate’s representative and a copy of the client’s death certificate. The client’s final expenses, not already paid by his guardian, were minimal. The tax returns for the estate were prepared by an accountant whom the respondent hired and whose fees were paid from the assets of the estate as reflected in the First Account.

Notwithstanding the uncomplicated nature of the estate, the respondent charged the estate $117,214.50. This amount included $72,750 in legal fees for allegedly 286.25 hours of legal work, an amount that the respondent intentionally inflated. In addition to misrepresenting the amount of time he actually spent on the estate, the respondent performed unnecessary work and charged the estate at his legal rate for work that did not require legal services.

The respondent also charged the estate $27,402 for work performed in his capacity as executor even though the respondent performed no work for the estate in his capacity as executor that he did not charge and bill to the estate as a legal fee. He charged the estate $17,062.50 for legal services which were completely unrelated to his work on behalf of the estate, intentionally misrepresenting the estate’s liability for these fees in the process.

The respondent’s conduct in charging the estate for services that he had not performed and for hours that he had not expended, for charging the estate for unnecessary services and for non-legal services at his legal rate of $250 per hour, and for misrepresenting the estate’s liability for fees generated in connection with unrelated work, violated Mass. R. Prof. C. 1.5(a) and 8.4(c). 

He had no prior discipline and had made restitution of less than $30,000. (Mike Frisch)

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

Voluntary Discipline Petition Rejected For Usury Crimes

The Georgia Supreme Court rejected a petition for voluntary discipline of a one-year suspension for an attorney convicted of violat ing New York usury laws. 

In her petition, Temple, who became a member of the Georgia Bar in 1990, admits that she pled guilty in New York to a misdemeanor violation of attempted criminal usury in the second degree. The criminal charge related to her role as lead counsel for payday lending companies, in which she advised those companies and their employees to intentionally violate New York’s criminal usury laws. The plea hearing transcript, which Temple attached to her petition, shows that for over five years she knowingly instructed and encouraged her payday lending clients to intentionally violate certain state lending laws, including New York’s criminal usury statutes, and assisted them in doing so.

Temple asserts that she has not practiced law since December 15, 2015, and we agree that her lack of a prior disciplinary record in Georgia and Tennessee, where she is also licensed to practice law, and her cooperation with the State Bar in this matter are mitigating factors. Temple asks that the Court impose a one-year suspension, retroactive to December 15, 2015. She cites no precedent in support of her request.

The State Bar recommends that the Court accept the petition, but makes no recommendation with regard to whether the suspension is retroactive. The State Bar asserts that a one-year suspension is appropriate...

The court

Having carefully considered the petition, response, and the very serious professional misconduct to which Temple has admitted, we cannot agree that a one-year suspension is the appropriate sanction in this matter.

All justices concurred. (Mike Frisch)

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

Reinstated But Must Pass Bar Exam

The Georgia Supreme Court has approved the fitness for reinstatement of a disbarred attorney

After his disbarment, Washington has worked as a legal recruiter, a mortgage broker and originator, and, since 2007, as manager of acquisitions at Crown Castle International...

In his written filings and in his conference with the Fitness Board, Washington provided a fuller explanation of the conduct leading to his disbarment, which showed that he had not acted with a selfish or greedy motive, but had returned client funds to one not authorized to receive them. With the supplemental filing, Washington included four letters of support. Additionally, the Client Security Fund has indicated that Washington has made full restitution for monies it paid for claims filed against Washington. And while three additional grievances were pending at the time of the disbarment and were mooted thereby, the State Bar has indicated that it does not intend to reactivate those matters.

The Fitness Board, having met with Washington and having considered his original and supplemental filings, concluded that Washington had, by clear and convincing evidence, carried his burden under Cason of demonstrating, over the course of the past 17 years, rehabilitation from his prior conduct. Upon  consideration of the entire record, we likewise conclude that Washington has shown that he is entitled to be certified as fit to practice law in Georgia.

But with this proviso to an attorney admitted in 1986

Further, it appears that Washington has met all the procedural requirements of Part A, Section 10 for approval of his application for certification of fitness. Accordingly, this Court hereby grants Washington’s application for certification of fitness and orders that, upon satisfaction of all the requirements of Part B of the Rules, including taking and passing the Georgia Bar Examination, Washington may be reinstated as an attorney licensed to practice law in the State of Georgia.

(Mike Frisch)

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

Thursday, May 19, 2016

Goodbye Yellow Brick Road

An attorney already serving an indefinite suspension for failure to cooperate has been disbarred by the Indiana Supreme Court.

Attorney Elton Johnson was admitted in 2010.

Count One

"Client 1" pleaded guilty in federal court to transferring obscene materials to a minor. Upon his release from prison in 2011, Client 1 paid $10,000 to the Terani Law Firm ("Terani") to evaluate his legal options regarding the requirement that he register as a sex offender. Terani forwarded the case to Respondent, paying him a few thousand dollars for a legal memorandum. Client 1 was not informed how the fee was split; in fact, the contract between Terani and Respondent forbade such disclosure.

Respondent, in turn, delegated the work to an individual who was either attending law school or a recent graduate. This individual drafted, and Respondent forwarded to Terani and Client 1, a four-and-one-half page legal memorandum recommending a three-part plan that had virtually no chance of providing any relief to Client 1. In fact, if the plan had worked as intended, Client 1 could have been retried and required to serve additional prison time.

Respondent did not inform Client 1 of this possibility, and Client 1 previously had told Respondent he did not want to pursue any legal avenue that potentially could result in additional prison time.

Client 1 hired Respondent to pursue the plan. Client 1 paid Respondent a total of $32,800 in several installments, not all of which were deposited into Respondent’s trust account. Respondent did no additional work on the case. Client 1 eventually fired Respondent and hired replacement counsel, who requested an accounting from Respondent of time spent and disbursements made on Client 1’s behalf. Respondent either could not or would not provide such an accounting.

Respondent billed Client 1 at attorney rates for clerical work, and even did so at a rate higher than the attorney rate specified in his fee agreement with Client 1. Respondent also invoiced Client 1 for services rendered after Client 1 fired Respondent, including for time spent responding to the disciplinary grievance filed against Respondent. Respondent made knowingly false statements to the Commission during its investigation, including that he had worked 425 hours on Client 1’s case and that the individual who drafted the memo was an attorney when he worked on the case. Respondent has not refunded any money to Client 1.

There were several other counts of misconduct.

The court

During his short-lived legal career Respondent has demonstrated a continuing pattern of serious misconduct, much of it predicated upon efforts to unjustly enrich himself at his clients’ expense. In exercising our disciplinary authority, we have an obligation to protect the public and the profession from the tactics of unscrupulous lawyers...Respondent’s neglect, incompetence, dishonesty, conversion of client funds, noncooperation with the Commission, and failure to meaningfully participate in these proceedings all persuade us that disbarment is the appropriate sanction here as well.

 (Mike Frisch)

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

Reinstatement Denied To Convicted Former FBI Linguist

Reinstatement of a convicted attorney has been denied by the New York Appellate Division for the Third Judicial Department.

In December 2009, respondent pleaded guilty to the federal felony of disclosure of classified information, in violation of 18 USC § 798 (a) (3), and admitted to providing classified information gained in his role as an FBI linguist to an individual who hosted a public Internet blog. This Court determined that respondent had committed a "serious crime" (see Judiciary Law § 90 [4] [d]; 72 AD3d 1190 [2010]) and, by decision entered October 21, 2010, suspended respondent from the practice of law for a period of three years.

The court

Upon review of the submissions and in consideration of the circumstances in the record before us, we conclude that respondent has not established by clear and convincing evidence that he has fully complied with the provisions of the order suspending him...

Details on the criminal matter from the Federation of Concerned Scientists. (Mike Frisch)

 

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