Saturday, October 10, 2015
Two attorneys should be disbarred for misconduct, according to a recent report of recommendation of the California State Bar Court Review Department
Respondents Stevan John Henrioulle and Ronald Veridiano Uy appeal the disbarment recommendations of a hearing judge who found they engaged in a widespread scheme to defraud their clients by charging and collecting legal fees without any intent to perform legal services or by filing meritless lawsuits. The hearing judge also found they were culpable of other misconduct in nine client matters, including the failure to perform with competence, communicate with clients, return unearned fees, render an accounting, and aiding and abetting the unauthorized practice of law (UPL) by a former attorney who had resigned with disciplinary charges pending.
This misconduct occurred during a two-and-a-half-year period when Henrioulle and Uy were suing lenders for predatory practices on behalf of homeowners facing foreclosures. Henrioulle and Uy deny committing any fraud, although they admit much of the misconduct, which they characterize as simple negligence due to their high-volume litigation practice.
We have independently reviewed the record (Cal. Rules of Court, rule 9.12) and adopt most, but not all, of the hearing judge’s culpability determinations. As we discuss more fully below, we do not find that Henrioulle and Uy engaged in an intentional scheme to defraud their clients. Nevertheless, when viewed holistically, we find that their misconduct was reckless, amounting to a habitual disregard of their clients’ interests, which constitutes moral turpitude, in violation of Business and Professions Code, section 6106. -2- 1
Ultimately, we conclude that the evidence in mitigation is insufficient to outweigh the aggravation and the widespread misconduct, which resulted in significant harm to numerous clients. Having considered the Rules of Procedure of the State Bar, title IV, Standards for Attorney Sanctions for Professional Misconduct and the relevant decisional law, we recommend disbarment for both Henrioulle and Uy.
The review department rejected the effort of one of the attorneys to lay blame on the other
Uy argues that Henrioulle was solely responsible for handling the litigation in several client matters and thus Uy may not be held vicariously liable since he was unaware of Henrioulle’s misconduct. We reject his argument because it is not supported by the record. Uy admits in his brief on appeal: “While there was an agreed upon division of labor between Mr. Uy and Mr. Henrioulle, Mr. Uy and Mr. Henrioulle understood that as the attorneys of record for each of the clients, they both were individually responsible for the entirety of a client’s file and the management of the office.” Henrioulle also stipulated that “both [Henrioulle and Uy] were jointly and severally responsible for the representation of all of the clients mentioned in this Notice of Disciplinary Charges.”
The attorneys had employed a resigned former attorney and established a loan-modification practice
The habitual disregard of client interests in this case began with Henrioulle and Uy’s money-getting scheme involving a broadly based intake process that brought them far more clients than they could properly handle. They advertised their services to financially distressed individuals for whom English was their second language. In Henrioulle’s own words, the firm grew from a “mom-and-pop practice to an explosion of clients.” The chaos was increased by their lack of supervision of a resigned attorney who was not entitled to practice law, but who, acting in his capacity as the firm’s litigation manager, nevertheless made several untrue and unwarranted representations to prospective clients, all the while holding himself out as entitled to practice.
It was a system designed to fail. The breadth of Henrioulle and Uy’s incompetence, coupled with the non-refundable retainers and monthly fees collected regardless of whether services were provided, greatly exacerbated the harm sustained by highly vulnerable clients, many of whom lost their causes of action and endured foreclosures and evictions.
In weighing the appropriate discipline, we have considered the evidence in mitigation, which includes 36 years of discipline-free practice for Henrioulle, Uy’s emotional difficulties, their cooperation in these proceedings, good character evidence, and community and pro-bono activities. But, ultimately, this evidence is insufficient to outweigh the harm caused by Henrioulle and Uy’s widespread incompetence and disregard of their clients’ interests, combined with their refusal to return unearned fees and their failure to supervise an employee who was not entitled to practice law. A discipline less than disbarment simply is not warranted by the standards or the decisional law.
The review department also recommends that restitution be paid to a number of clients. (Mike Frisch)
A recent opinion of the California State Bar Court Review Department
We are asked to decide the narrow issue of whether the State Bar Court hearing judge correctly dismissed this disciplinary proceeding after the Office of the Chief Trial Counsel of the State Bar (OCTC) presented its case, but before respondent Eric Bryan Seuthe presented his case. For the reasons below, we have decided that the hearing judge’s order was incorrect, and we remand this case to the Hearing Department for further proceedings...
There was sufficient evidence of a failure to account for entrusted funds to proceed
Under the facts, OCTC presented a prima facie case that Seuthe did not furnish an appropriate accounting when requested. The hearing judge therefore erred in dismissing this case prior to the presentation of Seuthe’s defense.
The dismissal order was vacated and the matter remanded. (Mike Frisch)
Friday, October 9, 2015
The Kansas Supreme Court accepted findings of misconduct but resoundingly rejected a proposed public censure of a prosecutor who threatened criminal procedings on behalf of a private client.
The attorney serves as the elected county prosecutor of a rural Kansas county that (according to his statements at oral argument) has only three lawyers.
Suspension was imposed
At the hearing before this court, the Disciplinary Administrator's office and respondent both recommended censure by the Kansas Supreme Court and that the censure should be published in the Kansas Reports. The hearing panel has also recommended published censure, adding suggestions that respondent investigate membership with the Kansas County and District Attorney's Association so he may avail himself of the continuing education and networking opportunities offered by that organization...
The uncontested findings demonstrate respondent committed multiple acts of professional misconduct, specifically: (1) using his office as Rawlins County Attorney to threaten felony criminal charges against a civil litigant as a means to force settlement of a civil suit; (2) failing to provide the court in an ex parte proceeding with all material facts known to respondent that would have enabled the tribunal to make an informed decision about the entry of default judgment; (3) creating a concurrent conflict of interest between his civil client and his prosecutorial responsibilities as Rawlins County Attorney; and (4) initiating a civil action against an individual without a factual basis for doing so. The hearing panel and Disciplinary Administrator's office concede this misconduct points to suspension as the appropriate sanction.
Respondent's misuse of his position as county attorney by attempting to effect a civil litigation settlement by threatening criminal prosecution strikes this court as especially egregious. As noted, a critical discretionary stage in our system of criminal justice is the prosecutor's determination to charge someone with a crime. The public's trust in the appropriate, good-faith exercise of that discretion is seriously challenged by respondent's bullying of his opposing counsel by writing: "Anyway, if you guys want to keep pushing the issue of default judgment, I will just dismiss the [civil] case and file two felony theft charges against [the civil defendant] instead." This, coupled with the other incidents of misconduct and the arguments to this court, compel us to conclude the respondent is presently unable "to fulfill the professional role of attorney." See KRPC 8.4, comment 4 (2014 Kan. Ct. R. Annot. 681). Accordingly, a majority of the court holds that respondent should be suspended from the practice of law for a period of 2 years.
We further hold that respondent should be permitted to file a motion with this court for early reinstatement after the first 6 months of his suspension. Prior to filing this motion, respondent must have the Disciplinary Administrator's office's written approval of an 18-month probation plan with terms and conditions acceptable to that office. Those terms and conditions must encompass appropriate supervision of respondent's practice of law, including suitable supervision if respondent returns to the practice of criminal prosecution. See, e.g., In re Campbell, 290 Kan. 504, 505, 231 P.3d 562 (2010) (respondent required to develop relationship with another criminal prosecutor and meet regularly to review pending cases). The written approval and plan of supervision must be filed as exhibits to respondent's motion for early reinstatement. A minority of the court would impose a lesser sanction.
The oral argument in the case is linked here.
Update: I've had a chance the view the video of the oral argument.
These oral arguments are a great learning tool for law students and ethics professors.
This one gives a citizen a previously-unavailable opportunity to see attorney discipline in action.
The court sharply questioned both parties about the non-suspensory sanction and the abuse of public office. It does not defer to the lenient proposed sanction
This is the second Kansas oral argument I've seen where the respondent attorney addresses the court after the argument of his counsel. (Mike Frisch)
An attorney has been suspended by the Indiana Supreme Court for his failure to cooperate in a bar investigation.
The HeritageBulletin.com reports on the ethics complaint
Indiana State Police are investigating a criminal complaint of theft against Anderson attorney Stephen Schuyler and a disciplinary commission wants his license suspended for not responding to allegations of professional misconduct.
The allegation of theft was made by the heirs of an estate for which Schuyler was the executor.
“I’m still waiting on my money and I shouldn’t have to,” said Ruth Siverling in a telephone conversation. “That money does not belong to Mr. Schuyler – that’s for damn sure.”
Scott, Siverling’s twin brother, died March 7, 2013.
Schuyler had acted as the executor to the Scott estate until February when Magistrate Steve Clase removed him from any cases where he had fiduciary responsibility. Clase’s order removed Schuyler from more than 135 cases.
The Madison County Prosecutor’s Office is also investigating Schuyler for any criminal wrongdoing related to his fiduciary roles.
According to the Indiana State Police, the allegation of theft by Siverling and her family was filed at 8:48 a.m. Monday.
For almost a year, Siverling said, Schuyler refused to return her phone calls about the estate. Siverling said all communication with Schuyler stopped after she wrote several letters to the Madison County courthouse asking for a judicial review of her brother’s estate.
The Indiana Supreme Court has suspended an attorney as a result of a felony conviction.
The Indychannel reported on the charges
The former clerk-treasurer of the east-side town of Warren Park was charged with using the town’s money to pay for his gambling addiction.
Harold Bean, 74, was arrested on charges of theft and official misconduct.
Town officials were notified by Chase Bank of irregularities in their account. According to court documents, Bean wrote himself 50 checks for nearly $21,000.
Bean told investigators that he had a gambling problem and spent the money at casinos in Shelbyville and Anderson.
The attorney had previously been reprimanded for judicial misconduct.
The Indiana Lawyer had a story on his contentious dovorce. (Mike Frisch)
Thursday, October 8, 2015
The Florida Supreme Court has permanently disbarred an attorney who had failed to comply with the requirements of a previously-imposed suspension.
The suspension involved this misconduct
In that case, Respondent made threatening and disparaging statements to a senior judge, who had been appointed to serve as a provisional director by civil trial Judge Dresnick. This misconduct violated Rules Regulating the Florida Bar 4-8.2(a) (a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, or public legal officer) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct).
Respondent also demonstrated unprofessional and antagonistic behavior during numerous hearings in the civil case. Respondent’s behavior was offensive to both Judge Dresnick and successor Judge Valerie Manno Schurr. His conduct also disrupted the proceedings, in violation of rule 4-3.5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal).
Finally, Respondent made approximately ten disparaging or humiliating statements to opposing counsel. Respondent yelled insults at opposing counsel in the hallway of a courthouse in front of other attorneys. Respondent shouted in front of a judicial assistant and other attorneys that opposing counsel was a liar. Such misconduct was in violation of rule 4-8.4(d) (prohibiting an attorney from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against other lawyers on any basis).
The ABA Journal reported on the suspension.
In the present case, the Bar was granted summary judgment on his violation of the suspension order. The court sustained the summary judgment.
We also approve the referee’s recommendation with regard to the Bar’s motion for sanctions. As found by the referee in his report, Norkin’s e-mails to bar counsel referred to bar counsel as “evil” and “despicable”; called the proceedings against him “the most unjust act in judicial history”; stated that bar counsel had no conscience; and stated, “I’m preparing the lawsuit against you. Keep an eye out.” At the hearing on the motion for sanctions, the referee questioned Norkin about the e-mails and his behavior during the public reprimand administered by this Court. In response, Norkin asserted his “right to speak freely and to express his beliefs in the manner of his choosing,” and freely admitted that during the public reprimand, he intentionally smirked and stared down each Justice one by one. We have disciplined attorneys for similar conduct as a violation of rule 4-8.4(d)...
The court found disbarment to be "amply supported. "
The Miami New Times wondered whether he is (now was) Florida's most obnoxious lawyer. (Mike Frisch)
An attorney who had practiced after a two-year suspension was found in contempt by the Indiana Supreme Court.
the Commission alleges Respondent entered his appearance as counsel for the mother in a paternity action on or about the date his active suspension began, and, two months later (after the court had ordered Respondent’s appearance be withdrawn due to his suspension), Respondent filed with the court a minute entry purporting to represent the mother as her “translator” and requesting a final hearing be set. The Court issued an order to show cause on September 1, 2015, and Respondent filed a response on September 10. Respondent largely does not dispute the salient facts but denies those facts constitute the practice of law in violation of his suspension.
This Court has not attempted to provide a comprehensive definition of what constitutes the practice of law. See Matter of Patterson, 907 N.E.2d 970, 971 (Ind. 2009). Nevertheless, it is well-established that the “practice of law includes making it one’s business to act for others in legal formalities, negotiations, or proceedings.” Id. (citing Matter of Mitthower, 693 N.E.2d 555, 558 (Ind. 1998)).
It is not entirely clear from the parties’ submissions whether Respondent’s initial filings in the paternity action as counsel for the mother occurred on the first day of Respondent’s suspension or on the previous day. However, we conclude that the minute entry requesting a final hearing, which Respondent filed on the mother’s behalf purportedly as her “translator,” unquestionably constitutes the practice of law during his suspension. Accordingly, we find that Respondent is guilty of indirect contempt of this Court.
Sanction: a $500 fine and costs. (Mike Frisch)
The Wisconsin Supreme Court has issued opinions in two disciplinary matters that both involve escrow account violations.
One attorney got a 60-day suspension; the other got nine months.
The 60-day case involved an attorney who practices in Tomahawk.
He had previously been suspended for a year in one matter and privately reprimanded in another..
He stipulated to the misconduct and joint recommendation.
The only real issue here is whether the stipulated level of discipline (a 60-day suspension) is an appropriate level of discipline. Precedent in the area of failing to hold funds in trust is clustered on two extremes. The most egregious trust account misconduct, misappropriation, can merit revocation or a lengthy suspension. Other cases, however, warrant a much less severe level of discipline, such as a reprimand or short suspension. Attorney Runyon's conduct lies closer to the lower end of the two extremes.
Although it was improper for Attorney Runyon to deposit personal funds into his trust account, his motive was to make the trust account whole.
Nine months was imposed on an attorney with a prior record of discipline but less aggravated than the other case
During the OLR's investigation, the OLR discovered systemic trust account anomalies. On December 1, 2011, the OLR sent Attorney Mulligan a letter requesting copies of his trust account records for the years 2008 through 2011, inclusive. Attorney Mulligan provided the requested copies but did not provide client ledgers or monthly reconciliation statements because he did not maintain them. Attorney Mulligan's check stubs did not show a running balance, did not show the source for all deposits, and did not consistently show the identity of the client for whom funds were deposited or disbursed.
The OLR reconstructed Attorney Mulligan's trust account and, according to the complaint, between December 17, 2007 and December 31, 2011, Attorney Mulligan and his wife, the only authorized signatories to the trust account, deposited personal funds totaling $45,380.57 into the trust account. During the same period, Attorney Mulligan disbursed $54,869.01 from the trust account for personal obligations, including income taxes, property taxes, and attorney fees. The disbursements from Attorney Mulligan's trust account included some $6,593 in cash withdrawals, which are specifically prohibited by SCR 20:1.15(e)(4)a...
Attorney Mulligan clearly believes that because he sought to ensure that sufficient personal funds were available to avoid overdraft, this excuses his trust account violations. The record evidence, however, demonstrates that by extensive commingling of personal and client monies, Attorney Mulligan misrepresented the balance of client funds in his trust account at any given point in time.
Attorney Mulligan's effort to characterize his misconduct as trivial is...unpersuasive. The record demonstrates that between 2007 and 2011, Attorney Mulligan failed to properly maintain trust account records, deposited personal money into his trust account, disbursed money from his trust account for personal expenses, and regularly deposited client funds into his business account. Attorney Mulligan's actions are not mere "technical deficiencies." The record before us also reveals a persistent pattern of failure to abide by the requirements of our rules of professional conduct.
Justice Abrahamson concurred but expressed concern
I have difficulty reconciling the significantly different levels of discipline imposed in these two trust accounting cases.
The District of Columbia Court of Appeals has disbarred an attorney based on multiple findings of ethical misconduct
This appeal involves three separate disciplinary matters that were consolidated after two Hearing Committees found several rule violations. In the first matter, Mr. Barber was accused of violating Rule of Professional Conduct 3.1 (asserting and pursuing frivolous claims) and Rule 8.4 (d) (seriously interfering with the administration of justice) for his actions in pro se litigation with his residential landlord. The Board found that Mr. Barber filed several “groundless and repetitive pleadings and appeals, which were intended to increase his opponent‟s fees, and had that effect.” When those appeals reached our court, we called his claims “frivolous” and stated that “[w]e do not believe that appellant reasonably could have entertained the faintest hope of prevailing on the merits of this appeal” and that “the trial court characterized the argument he presents on appeal as „crazy.‟” Mr. Barber was subsequently sanctioned by the trial court, but he never paid the roughly $87,000 of legal fees incurred by his landlord.
In the second matter, Mr. Barber was accused of violating fourteen Rules of Professional Conduct—thirteen that were sustained by the Board—during his representation of three clients in litigation against their landlord, Tenacity Group, LLC. Several charges arose from statements Mr. Barber made and actions he took while attempting to collect his legal fees from his clients and from Tenacity directly. These included misrepresentations to an arbitrator that the fee was not in fact contingent; statements breaching the settlement agreement, which resulted in his clients losing their valuable settlement; threats to report counsel for Tenacity to the bar if counsel did not pay him; and “[l]aunch[ing] a [l]itigation [b]arrage [a]gainst Tenacity” that one trial judge called “highly disturbing” and “baseless.” In addition, Mr. Barber was found to have failed to communicate with a client regarding the client‟s appeal and to have used an improper trade name.
The third matter against Mr. Barber consisted of allegations of misconduct during Bar Counsel‟s investigation—primarily false statements. Mr. Barber was also cited for his “palpable disdain” and failure to adhere to Hearing Committee orders during the formal disciplinary proceedings.
The court rejected the attorney's claim that his Fifth Amendment rights were violated when Bar Counsel called him as a witness
Unlike in a criminal trial, however, Mr. Barber did not have a Fifth Amendment right to decline to take the witness stand. He instead was free to invoke his Fifth Amendment right on a question-by-question basis if, in responding to a question, Mr. Barber would be providing evidence that could be used to convict him of a crime.
A host of other procedural and substantive objections were also found insufficient to avoid disbarment. (Mike Frisch)
An attorney whose deficient pleadings drew a two-month suspension by the United States Court of Appeals for the Second Circuit importuned the New York Appellate Division for the Second Judicial Department to forgo a reciprocal suspension.
The federal proceedings
Specifically, the respondent had (1) filed a number of nearly identical "summary judgment" motions in at least nine cases that were not authorized by any rule of appellate procedure; (2) failed to comply with an April 2011 order directing him to either withdraw the summary judgment motions or explain their legal basis; (3) failed in 17 cases to file scheduling notification letters, in violation of the court's rules; (4) failed in 11 cases to comply with deadlines imposed by the court, resulting in the dismissal of 2 cases; and (5) failed to oppose the Government's motion for summary affirmance in at least one case.
The CAG also found that the respondent's explanations for his failure to comply with the April [*2]2011 order were "inconsistent, disingenuous, and lacking in credibility," and that his lack of candor during the CAG's hearing violated New York Rule of Professional Conduct (22 NYCRR 1200.0) 3.3(a)(1), which prohibits a lawyer from knowingly making a "false statement of fact . . . to a tribunal or fail[ing] to correct a false statement of material fact . . . previously made to the tribunal by the lawyer." After considering several mitigating factors and aggravating factors, the CAG recommended a public reprimand and attendance at CLE classes in appellate immigration law.
Upon review, the Second Circuit adopted the CAG's findings and recommendation. The Second Circuit, however, considered the respondent's lack of candor during the CAG's proceedings to be a significant aggravating factor, which warranted a period of suspension. The Second Circuit further noted that the lack of candor was "not especially egregious" in that "it concerned only one of several issues before the [CAG]; it was not part of a pattern; the underlying conduct (the failure to comply with the April 2011 order), by itself, would likely warrant no more than a reprimand; and the lack of candor did not seriously disrupt the [CAG's] proceedings or cause any other serious prejudice." Weighing all of the respondent's misconduct, and the mitigating and aggravating factors, including his lack of candor, the Second Circuit concluded that a two-month suspension was appropriate.
The court here both dismissed and accepted his plea for reciprocal mercy
the respondent filed a verified statement dated March 31, 2015, wherein he asserts that the imposition of reciprocal discipline would be unjust should this Court reciprocally impose a period of suspension. Since he has served his two-month suspension, which ended on or about May 11, 2015, he asserts that any period of suspension imposed by this Court will serve as a second suspension. He claims that this "will work a double harm" and "creates an unjust double jeopardy' situation." A second suspension will be devastating to his practice, says the respondent. The respondent suggests that this Court impose a public censure, with no suspension, or impose a two-month suspension, which should be deemed to have run concurrently with the Second Circuit's suspension. He also suggests that this Court could issue a sanction involving pro bono service or attendance at CLE classes. In order to expedite matters, the respondent expressly waives his right to a hearing.
Based on the findings of the Second Circuit, we find that reciprocal discipline is warranted. While we find no merit to the respondent's "double jeopardy" argument, considering all the relevant circumstances here, we deem a public censure to be an appropriate measure of discipline. Accordingly, the Grievance Committee's application to impose reciprocal discipline is granted, and the respondent is publicly censured.
The court imposed a public censure. (Mike Frisch)
Wednesday, October 7, 2015
A two-year suspension of an entertainment law attorney has been imposed by the New York Appellate Division for the First Judicial Department.
Respondent focuses her practice on corporate transactions, with an emphasis on entertainment matters. Prior to April 23, 2010, respondent maintained a business operating account, a personal account, and an escrow account, all with Chase Bank. In May 2010, the Internal Revenue Service levied against respondent's personal and business accounts in connection with a tax lien, withdrawing approximately $24,000. Thereafter, respondent began depositing the legal fees she received into her escrow account and paying personal and business expenses therefrom. Continuing through September 2012, respondent deposited legal fees and other personal funds exceeding $500,000 into her Chase escrow account. Respondent also named her accountant, a non attorney, as a signatory on her escrow account. Between 2010 and 2012, the accountant signed numerous checks on the escrow account, which were payments of respondent's business and personal expenses. In addition, the accountant signed 14 escrow checks made payable to cash and effectuated other cash withdrawals from the escrow account.
Respondent testified before the Referee that she had received notice of the IRS levies, that she had discussed the matter with her accountant, and that she was aware that there were outstanding federal tax liens against her. In addition, respondent testified that, as of May 2010, in her view, her Chase escrow account was no longer an escrow account because no client funds were deposited into the account. Respondent testified that her escrow account had not held client funds since approximately 2006. According to respondent, although she discussed the IRS levies with her accountant, the two never spoke of her using the escrow account for personal and business purposes to avoid further levies. Respondent did not call her accountant as a witness.
By making her accountant, a non attorney, an authorized signatory on the escrow account, respondent violated Rule 1.15(e), and we therefore confirm the Hearing Panel's recommendation that we sustain charge two. By depositing legal fees and personal funds into her escrow account, using the account to pay business and personal expenses, and permitting her accountant to make cash withdrawals from the account, respondent violated Rule 1.15(b)(1) (a lawyer shall maintain separate accounts received incident to the practice of law) and Rule 1.15(e) (all special account withdrawals shall be made to a named payee and non lawyers are not authorized to be signatories). Accordingly, we confirm the Hearing Panel's recommendation to sustain charges one, three, and four.
Contrary to respondent's argument, the fact that she stopped depositing client funds into her escrow account does not exempt the account from Rule 1.15 requirements. The record supports the finding that respondent's misuse of her escrow account was for the intended purpose of shielding funds from the IRS in violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and Rule 8.4(d) (conduct prejudicial to the administration of justice). [*3]Accordingly, we confirm the Hearing Panel's recommendation sustaining charges five and six.
Respondent testified that she failed to provide some clients with letters of engagement or retainer agreements for matters which she knew at the time of retention would incur fees in excess of $3,000. We agree with the Hearing Panel's conclusion that such conduct violates Rule 8.4(d) and 22 NYCRR 1215.1, and therefore sustain charge eight.
Respondent was also charged with violating Rule 8.4(h) (conduct adversely reflecting on fitness as a lawyer) for filing a false affirmation by certifying in her "2011" biennial attorney registration that she was in compliance with Rule 1.15. In the pre hearing stipulation, however, the DDC alleged that respondent had falsely affirmed she was in compliance with Rule 1.15 when she filed her biennial registration statement on December 17, 2010. Although the DDC did not formally amend charge nine in the stipulation, nor did it request that charge nine be corrected at the hearing, we agree with the Hearing Panel that the incorrect reference to 2011 rather than 2010 in the charge was a typographical error. We also find that based upon the parties' pre-hearing stipulation, respondent was on notice that the actual year in dispute was 2010 and, in view of the violations concerning her escrow account during that year, the 2010 affirmation of compliance was a false statement. Therefore, we confirm the Hearing Panel's recommendation sustaining charge nine.
The attorney sought a public censure. The court rejected the suggestion. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has suspended an attorney who did not cooperate in with the investigation of a complaint.
In April 2012 and February 2013, two complaints were filed against respondent involving settlements her then employer had obtained on behalf of two separate clients. One client alleged that after the law firm received a $27,000 settlement check, respondent called her in and asked her to sign a copy of a $13,000 check, representing her share of the proceeds. When the client refused to sign, respondent refused to give her the $13,000 check and threatened to donate the funds to charity. The other client alleged that respondent's law firm, without his consent, reached a settlement on an unpaid wages claim with his former employer.
Respondent initially cooperated by providing answers to these two complaints and appearing with counsel for a deposition in June 2013. However, more time was needed for further questioning and Staff Counsel advised respondent that a continued deposition would be required. Thereafter, respondent's cooperation became erratic and eventually ceased altogether.
In September 2013, pursuant to instructions given by respondent's attorney, the Committee sent the deposition transcript to respondent at a New Jersey address, which it later learned was a UPS office. The Committee inferred that respondent was no longer represented by counsel and, thereafter, sent letters to respondent at addresses in Queens and New Jersey, to two law offices previously associated with respondent, and her former employer requesting, inter alia, that she make contact to reschedule her continued deposition.
Finally, in January 2014, respondent wrote the Committee but declined to schedule a deposition, stating that "[s]uch a meeting would not be the most efficient use of your highly valuable time." This letter had no information indicating how respondent could be contacted. On February 6, 2014, the Committee wrote respondent at her employer advising her of her obligation to cooperate with the ongoing disciplinary investigation. On February 18, 2014, respondent telephoned the Committee, acknowledged receiving the recent letter, confirmed a Sunnyside, Queens address as her home address, and requested 30 days to retain counsel. Although new counsel for respondent informed the Committee on or about March 4 that he had been retained, he advised the Committee just two weeks later that the attorney/client relationship had been terminated. Thereafter, respondent did not retain new counsel or agree to a new deposition date.
On May 15, 2014, the Committee received a new complaint from a client against respondent, her former law firm, and another attorney. This client alleged that, inter alia, respondent provided her with either intentionally wrong or blatantly incompetent legal advice regarding the enforceablity of a promise made by her former paramour, resulting in her expending thousands of dollars in legal fees to defend against a lawsuit he filed against her. On June 5, 2014, a copy of the complaint was sent to respondent at her Sunnyside, Queens address, but the Committee discovered that respondent had changed her address on May 27, 2014 to an address in Jeonju, South Korea. On June 30, 2014, the Committee forwarded the complaint to the South Korea address. The letter was not returned and respondent did not submit an answer.
On October 24, 2014, the Committee mailed respondent a subpoena duces tecum requiring her to appear on December 11, 2014 to give testimony on the most recent complaint against her. This letter was mailed to respondent in South Korea by international registered mail. The Committee has received no return receipt card from respondent, nor has the letter been returned as undeliverable. Respondent did not appear for the deposition. That day the Committee sent respondent a letter to the South Korea address, by international registered mail, advising her that her failure to appear could constitute grounds for her immediate suspension from the practice of law. That letter has not been returned as undeliverable and no return receipt card has been returned to the Committee.
On November 18, 2014, the Committee learned of a summons and complaint filed in International Legal Consultants Inc. V TD Bank, N.A., et al., (Civ Ct, NY County, Index No. 011928/2014), that appeared to have been signed by respondent on behalf of another law firm. [*3]On November 21, 2014, by mail and email, the Committee wrote to a partner at that law firm requesting, inter alia, that he produce all court papers signed by respondent over the past four years for his firm, and to provide respondent's current business and residential addresses. The partner responded, stating that respondent had no connection to the firm, that she never signed any document or filed any court papers as an attorney at the firm, and he denied having any addresses for her.
On December 19, 2014, the Committee sent letters to respondent by first-class mail and certified mail, at four addresses at which she had registered with OCA or from which she has filed court papers in the previous three years, as well as the email address for the firm whose name appeared on the International Legal Consultants complaint, informing her of a final opportunity to cooperate by appearing for a deposition on January 13, 2015. One first-class letter was returned as undeliverable, and three out of four return receipt cards were signed by someone other than respondent and returned. When respondent did not appear for her deposition on January 13, 2015, the Committee wrote her about the consequences of her failure to appear and to cooperate. That letter was sent to South Korea as well as the aforementioned four U.S. addresses, and the law firm email address. Respondent has not responded to the letter.
The court's interim suspension will blossom into disbarment after six months unless cooperation is forthcoming. (Mike Frisch)
An Ohio attorney who is seeking to set aside default findings of misconduct has been ordered to re-file her objections in the proper form
2015-0243. Akron Bar Assn. v. Bednarksi.
This cause is pending before the court upon the filing of a certification of default.
Review of respondent’s amended objection filed October 5, 2015, reveals that the filing fails to comply with S.Ct.Prac.R. 3.08, which requires that all documents filed through the e-Filing portal be signed. Therefore, it is ordered by the court, sua sponte, that within seven days of the date of this entry, respondent shall file a second amended objection that is signed in accordance with S.Ct.Prac.R. 3.08(B).
The Oklahoma Supreme Court has reinstated an attorney despite his ongoing tax problems
the record...revealed that, as of November 19, 2014, Petitioner owed $133,263 in personal federal taxes, penalties, and interest. That amount included taxes owed for calendar years 2012 and 2013, despite Petitioner's monthly salary of $5,500.00. In essence, Petitioner failed to withhold sufficient funds over the years, resulting in an arrearage.
To be clear, it is incumbent upon all Oklahoma Bar members to satisfy their tax obligations. It is not only the law, but a moral obligation this Court takes seriously. But, this Court must apply this duty "fairly and consistently to achieve justice, to rehabilitate errant members of the bar, and to protect the public." Id. ¶ 5,240 P.3d 668.
The mere fact that Respondent took issue with Petitioner's statements-believed to be made in good faith-in the Offer in Compromise, cannot preclude Petitioner from reinstatement. From this Court's review of the record, it is clear that Petitioner followed the established procedures and is taking steps to resolve his tax liability. The IRS code contains provisions that allow a taxpayer, as here, to enter into negotiations to either settle or establish a payment plan in resolving an outstanding tax debt. Form 656 contemplates a taxpayer's offer of settlement despite the taxpayer's financial profile where full payment of the tax amount might impair one's ability to provide for oneself and one's family. This criteria alone, requires the taxpayer to tender his subjective belief of his ability to pay and produce supporting documentation. The ultimate decision on the Offer in Compromise rests with the IRS, not with this Court.
After considering the matter de novo, this Court concludes that Petitioner's reinstatement is warranted. Aside from Petitioner's tax arrearage, Petitioner has overcome the heightened standard for reinstatement. The record demonstrates, by clear and convincing evidence, that Petitioner has satisfied all the procedural requirements necessary for reinstatement. In addition, more than two years have passed since Petitioner was suspended. And, the underlying misdemeanor offense that led to Petitioner's discipline has been dismissed. Since Petitioner's suspension, Petitioner worked as a paralegal, timely filed his annual tax returns, and made substantial payments-in essence greatly reducing his tax obligations. The record also supports Petitioner's compliance with the IRS procedures and his continued cooperation in resolving the matter.
He had been suspended for two years and a day for a criminal scheme
The Respondent was a partner, along with Josh T. Welch, in the law firm Ogle & Welch, located in Oklahoma City. The Respondent's nephew, Robert Samuel Kerr, IV, joined the firm as a legal intern and then as an associate after being admitted to the Oklahoma Bar Association in 2006. In 2007, Ogle & Welch represented a client charged with the misdemeanor crime of driving under the influence of alcohol. Kerr was to represent the client before the Department of Public Safety (DPS). The firm actively took part in a series of transactions that led to an Edmond police officer receiving money as a bribe so that he would not appear at the DPS hearing. The firm made contact with a former Edmond police officer, Chris Caplinger, to assist in the bribe offer. An account of the facts appears in State ex rel. Oklahoma Bar Ass'n v. Kerr, 2012 OK 108, 291 P.3d 198.
This led to a misdemeanor conviction for obstruction of a public officer. (Mike Frisch)
Tuesday, October 6, 2015
The Massachusetts Supreme Judicial Court has denied admission to an applicant who had passed the July 2008 bar examination.
At first, the Board of Bar Examiners (board) received no objections to his admission and reported him qualified. Before he could take the oath of attorney, however, three attorneys in good standing contacted the board, raising significant concerns about whether Pansé "is of good moral character and sufficient acquirements and qualifications" to warrant admission to the bar.
The three had represented his wife
Pansé's conduct and demeanor during the divorce and related proceedings led the three attorneys, each of whom represented Ms. Pansé, to object to his admission to the bar. We need not recite all of the details of their interactions with him here. According to the board, they described him as "a person of vengeance, control, and intimidation who misused the legal system at the expense of his family and others" and "not[ed] a belief that [he] would use his license to practice to harm others." Based on their testimony at the formal hearing, the board found that Pansé "consistently relied on personal attacks to justify his actions and to defend perceived criticisms against him, additionally filing complaints against members of the bar who challenge his positions." The record is replete with examples of his doing so. Indeed, it became necessary to reschedule the formal hearing when Pansé filed professional complaints against the objecting attorneys and others; the Board of Bar Overseers closed those complaints without further action...
Apart from the divorce and other proceedings, Pansé has been involved in several other civil actions, some of which were not fully disclosed in his application for admission to the bar. As the board found, Pansé repeatedly engaged in ad hominem attacks in those cases. In a lawsuit he brought against his former employer, the Massachusetts Bay Community College, Pansé described the president of the college as a "reject from Montana." He also accused several defendants of lying and filing "malicious and fraudulent" reports, described some defendants as "morally challenged," and stated that the office of the Attorney General was "unethical" and had engaged in "repeated misconduct." He also accused the college's counsel of producing a witness "to lie wildly under oath." The board found that his actions "demonstrate a repetitive pattern of abusive and litigious behavior against litigants, counsel, judges and others who assume a contrary position" and that "Pansé does not appear to be remorseful, or, for that matter, capable of reflecting on the consequences of his behavior."
The court accepted the board's findings and conclusions
It found that Pansé demonstrated a lack of candor by failing to disclose litigation to which he was a party or by failing to describe the circumstances fully; that he demonstrated a willingness to abuse the legal system for purposes of harassment and intimidation of individuals with whom he has a dispute; that his repeated reliance on personal attacks, as well as professional complaints against members of the bar who challenge his positions, further demonstrate a lack of civility and professionalism; and that despite his full awareness of the board's concerns about his fitness to practice law, he failed to express remorse or insight into his actions or to assure the board that he would have the ability to comport himself in a civil and professional manner. The record amply supports this assessment. Even in his brief to this court, Pansé continues to resort to personal attacks and invective, going so far as to accuse the board of aiding and abetting the alleged "felony endangerment and felony abuse" of [his son]. This does nothing to assure us that Pansé possesses the good character necessary to practice law.
The court rejected claims based on delay in the proceedings. (Mike Frisch)
A convicted attorney's resignation was accepted by the New York Appellate Division for the Fourth Judicial Department.
The Democrat and Chronicle reported on the criminal case
A Rochester attorney was sentenced Wednesday for obtaining prescription pills from a doctor for his incarcerated brother.
Salvatore J. Marcera, 54, of Rochester was given three years probation and was ordered to pay nearly $2,000 in restitution to Excellus BlueCross BlueShield after being convicted for obtaining a controlled substance by misrepresentation, according to a statement released by the U.S. Attorney's Office.
On July 28, 2006, Marcera received prescriptions — including the Schedule II drugs OxyContin and Roxycodone — by falsely claiming they were medically necessary for his brother, according to Assistant U.S. Attorney Frank Sherman, who handled the case.
In the statement, Sherman said Marcera then gave the prescriptions to another family member with the understanding that they would be paid for by Excellus BlueCross BlueShield for his brother — who was serving time at Monroe County Jail.
Marcera was previously sentenced in March 2014 to five years of probation, including one year of home confinement, for filing false personal income tax returns from 2004 to 2007. Marcera also was ordered to pay more than $100,000 in restitution to the Internal Revenue Service.
Marcera's law license has been suspended and he is subject to further disciplinary proceedings in May.
The North Carolina Court of Appeals has affirmed the imposition of discipline consisting of a two-year suspension stayed with conditions for an attorney's failure to safeguard funds and a concurrent conflict of interest in a business transaction.
The court rejected his claim that he was not on notice of the conflicts charge
We first note that in characterizing the allegations of the complaint, defendant relies exclusively on the allegations contained in the final conclusory paragraphs of the complaint, setting forth which Rules of Professional Conduct defendant violated, and completely ignores the factual allegations alleged in support of that conclusion. The factual allegations of the complaint state more specifically, in pertinent part, that on 24 January 2006, Merrell transferred the Gordons’ funds, without their knowledge or permission, to a CD account at Bank of America “in the name of ‘Dan L. Merrell, Special Trustee for Development Company of Columbia, LLC’, not in the name of the Gordons or as trustee for the Gordons.” The complaint further alleged that “[f]unds were withdrawn from this CD account without the Gordons’ knowledge, permission, or approval on January 27, 2006, February 14, 2006, and March 1, 2006” and that these withdrawals were for Lam’s benefit, including covering Lam’s costs to acquire the Tyrrell County property which was later resold to DCC.
These allegations not only gave defendant notice of the name of the CD account as found in the DHC’s order, but also of the underlying conduct that is the subject of the complaint: that defendant’s transfer of the Gordons’ funds, without their permission, resulted in the funds being accessed by and for the benefit of someone other than the owner of the funds. Although the complaint does not specifically allege that defendant used DCC’s tax identification number or that he failed to provide the Gordons with an accounting, these facts are incidental to the primary misconduct alleged: defendant’s failure to safeguard and hold in trust the Gordons’ funds. We hold that the allegations in the complaint were sufficient under the notice pleading standard to give defendant “sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it . . . and -- by using the rules provided for obtaining pretrial discovery -- to get any additional information he may need to prepare for trial.”
The court found that sufficient evidence supported the rule violations and that the representation of multiple parties in a commercial real estate closing creates a non-consentable conflict
the DHC’s conclusion that defendant’s dual representation created a conflict of interest is consistent with 2015 Formal Ethics Opinion 14 (“2015 FEO 14”), which held that in most instances, common representation in a commercial real estate closing is a “nonconsentable” conflict. “While not precedential authority for this Court, formal ethics opinions, as defined in the Procedures for Ruling on Questions of Legal Ethics of the North Carolina State Bar, ‘provide ethical guidance for attorneys and to establish a principle of ethical conduct.’ ”
...the DHC’s findings, which we have held are supported by the evidence in the record, show that defendant had obtained information through his representation of Lam and Deepwater that would have been material to DCC in determining whether to go forward with the closing and that defendant failed to disclose to DCC before representing both DCC and Deepwater in the closing. There can be no question that a conflict of interest arises when an attorney obtains information through his representation of one party that is material to the attorney’s representation of a second party, and the attorney cannot or does not disclose that information to the second party. See In re Shay, 756 A.2d 465, 476 (D.C. 2000) (holding attorney’s “duties to her respective clients . . . were irreconcilable and resulted in a conflict of interest” where attorney drafted will for one client and did not disclose material information, obtained from a second client, which was necessary for first client to make informed decision regarding disposition of property); Matter of LaVigne, 146 N.J. 590, 607, 684 A.2d 1362, 1371 (1996) (“Respondent engaged in an impermissible conflict of interest, in violation of RPC 1.7(b) and (c), by his representation of the seller and two separate sets of purchasers when his own pecuniary interest materially limited his ability to counsel his clients. He failed fully to disclose and explain the nature of the conflict to the respective purchasers and lenders and made no effort to obtain their express consent to his multiple representation, in violation of RPC 1.7(b).”). In short, we hold that there is sufficient evidence to support the DHC’s finding of fact that Lam engaged in a conflict of interest and failed to provide full disclosure of his actions to the other members of DCC. These findings, in turn, support the DHC’s conclusion that defendant engaged in a conflict of interest in violation of Rule 1.7(a) because defendant’s representation of DCC at the closing was materially limited by his responsibilities to Deepwater and he had not obtained written informed consent to the dual representation.
The Georgia Supreme Court approved the consented-to disposition of a review panel reprimand for an attorney's ineffective representation of a woman charged with murder.
He had relied on appointed counsel for the client's daughter to secure an expert witness.
Ford admits that, when it became clear that an expert had not been retained, he should have consulted with his client regarding the impact on her case and moved for a continuance so that a forensic pathologist could be retained. Ford states that he therefore was not prepared for trial, which resulted in the jury returning a guilty verdict against his client–although her motion for new trial, presented by new counsel, has been granted.
There was mitigation
Ford acknowledges that he received an Investigative Panel reprimand in September 2014. In mitigation, Ford states that, during the time of his representation of this client, he was in the midst of the dissolution of his prior marriage and the beginning of his relationship with the woman who is now his wife. In addition to the stress and distraction caused by this situation, Ford began to drink to excess, which led to an arrest for DUI. Ford pled guilty to the DUI and has complied with the conditions of his probation, changed his behavior, and met with a counselor, who has determined that Ford does not have an addiction to alcohol. Both Ford’s ex- and current wives submitted affidavits attesting to the positive changes that Ford has made. Finally, Ford notes that he did not take the case in question out of greed or from a failure to appreciate the seriousness of the case, but instead because he believed in his client’s innocence. Ford argues that a Review Panel reprimand is the appropriate punishment in this case and seeks to have this Court impose such as discipline. In response, the State Bar recommends that this Court accept Ford’s suggested discipline.
Monday, October 5, 2015
The Georgia Supreme Court imposed a two-month suspension of an attorney who testified falsely but later saw the error of his ways
Nowell became a member of the Bar in 1979. The facts, as admitted by him and as found by the special master following a hearing, show that in May 2012 and January 2013, Nowell testified falsely in two depositions that were taken in a civil suit filed against a corporate entity and several testamentary trusts; Nowell was general counsel and/or an officer at the relevant times of the corporate entity and was trustee of the trusts. The false testimony was material to the merits of the litigation, and Nowell gave the testimony knowing it was false because he believed that truthful answers would help the plaintiff and would hurt the defendants with whom he was affiliated. Several months after the second deposition, Nowell came to experience great remorse and, in April 2013, submitted to the court an affidavit confessing to and correcting his false testimony. In May 2013, Nowell self-reported his misconduct to the State Bar. In June 2013, he was deposed again and testified truthfully. The trial court in that case ultimately granted summary judgment against the plaintiff, for reasons unrelated to Nowell's false testimony. Nowell's disclosure to the trial court of his misconduct was of his own volition, and but for his coming forward, his misconduct could have remained undiscovered.
This case raises the interesting enforcement consequences of the truly voluntary (i.e. detection not imminent) self-report.
I encountered the same mitigation issue in a case where the attorney had self-reported conduct that would clearly have merited disbarment otherwise
While Weiss took significant steps to mitigate his misconduct by self-reporting his theft; making efforts to ensure that the opportunity to misappropriate money from his firm and other firms will be more difficult in the future; and seeking counseling to help him address the psychological problems that led him to his ethical lapse, the fact remains that Weiss unlawfully diverted a substantial amount of money from his law firm over a significant number of years and a sanction of one year or less would be wholly inconsistent with the discipline imposed on others for comparable conduct...
Given those prior precedents and the facts of this case, the Board stated that it did not come easily to the conclusion that Weiss should not be disbarred. Ultimately, however, the fact that Weiss self-reported his violation led the Board to conclude that the sanction should be reduced from disbarment to three years suspension with one year suspended. Further, the Board, obviously influenced by the psychological evidence presented by Weiss, decided not to require a showing of fitness as a condition of Weiss resuming his law practice. Both of these accommodations by the Board are significant and were warranted under the circumstances.
Notably, the Weiss case was argued in March 2001 but not decided until December 2003. I left the Office of Bar Counsel for Georgetown Law in July 2001.
The Maryland Court of Appeals discounted the mitigation and (over a dissent) imposed disbarment as reciprocal discipline. (Mike Frisch)
A petition for voluntary license surrender was accepted by the Georgia Supreme Court.
Axam admits that he agreed in 2010 to act as a “paymaster” for a client, a role for which he was paid $5,000 for each transaction that he facilitated. On August 5, 2010, another individual — at the direction of Axam’s client — directed a wire transfer of $100,000 to what he believed was Axam’s trust account; in fact, the money was wired to Axam’s operating account. At that time, Axam did not maintain a trust account, and he generally used his operating account to handle the business of his law practice, as well as personal funds. A few days after Axam received the funds, he disbursed them according to the instructions of his client, retaining $5,000 for himself as his transaction fee. Although the individual who had directed the transfer to Axam specifically requested that he be notified of the disbursement of the funds, Axam failed to notify him. That individual later contacted Axam and repeatedly requested documentation of the disbursement, but Axam failed to provide an accounting or otherwise to document the disbursement of the funds until after the individual filed a grievance. Axam has admitted that he did not read the terms of the trading platform contract in connection with which he was serving as “paymaster,” that he did not know the nature of the business dealings between his client and the other individual, and that he asked no questions about the transaction that he facilitated. Although Axamnoted that the disbursement instructions from his client came by an e-mail that referred to his client by a different name than that by which he knew her, he says that he assumed that the other name was just a trade name for his client. By these acts, Axam admits that he violated Rules 1.15 (I) and (II) of the Georgia Rules of Professional Conduct, violations that subject a lawyer to disbarment.
A star-studded group of lawyers is set to appear Friday in federal court in Atlanta to begin the debate over whether Tyler Perry got a sweetheart deal to buy most of Fort McPherson to build a film studio.
Tony Axam confers with Clayton County District Attorney Tracy Graham Lawson during a trial this month. Credit: henryherald.com
Positioned against Perry as the plaintiff’s lawyer is Tony Axam, a noted death penalty attorney who once was called to serve on the defense team of convicted serial killer Wayne Williams – until Williams fired him without explanation at the outset. Axam specializes in complex business litigation, as well as capital and criminal defense.
Leading Perry’s defense is Larry Dingle, a former Atlanta police officer who earned his law degree from Georgia State and rose through the ranks at Atlanta City Hall during the terms of former mayors Maynard Jackson and Andrew Young to the positions of department head and city clerk. Dingle specializes in local government law and land use.