Monday, January 16, 2017
An attorney's failure to pay a litigation funder who had advanced funds to his client drew a term suspension of two months from a single justice the Massachusetts Supreme Judicial Court.
The respondent's primary argument before me is that the advances from Global and Excel were loans that were both usurious and illegal, and that the underlying premise of Bar Counsel's petition for discipline is therefore a nullity.
The court assumed that this argument had been preserved and rejected it on the merits
The flaw in the respondent's argument is that even if he is correct in his view that the loans were void, it has no bearing on the heft of Bar Counsel's petition. The majority of the committee and the board found that the respondent's written representations to Excel that his client had not received any prior cash advances was knowingly false and misleading, and that he knowingly failed to notify Excel that he had received the settlement funds. Excel advanced funds to the client on two occasions based on the respondent's representations. Had he not made those representations, Excel would not have advanced any funds to his client. Excel relied on the respondent's representations. The legality of the loans had nothing to do with his intent or his ethical obligations at the time. His ethical obligations in these circumstances are independent of the validity of the loans. "The most fundamental duty which a lawyer owes the public is the duty to maintain the standards of personal integrity upon which the community relies...
Similar reasoning applies to the finding that the respondent failed to notify Excel of this receipt of the settlement funds, and his failure to follow his client's written directions. The majority of the committee discredited the respondent's explanations, and found that his conduct violated rules 1.2(a), 1.3, and 1.15 (c).
...the validity of.the loans has no bearing on the fact that the respondent promised to place all settlement monies in escrow and seek court intervention to determine the rights of Excel in the event of a dispute. His failure to honor that promise is a violation of his ethical obligations, even if there were no fiduciary relationship. The findings in this regard also support the further finding in aggravation that the respondent lacked insight into his ethical obligations.
Taking into consideration the question about the existence of a fiduciary relationship, there were misrepresentations made as to the client's non-receipt of prior loans taken against the expected settlement to the detriment of a third party, and there were promises made to the effect, that the respondent would place the settlement proceeds in escrow and seek court intervention to determine the rights of Excel in the event of a dispute. The respondent's misconduct, as well as his lack of insight into his ethical obligations, warrant a term suspension.
An order of reinstatement was entered by Justice Gaziano. (Mike Frisch)
Sunday, January 15, 2017
A public reprimand has been imposed by the Indiana Supreme Court
At all relevant times, Respondent was the elected prosecutor for Floyd County. The charges in this disciplinary action trace their genesis to the prosecution of David Camm, a former police officer charged with murdering his wife and two minor children. Camm twice was convicted, but in each instance his convictions were reversed on appeal. Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004), trans. denied; Camm v. State, 908 N.E.2d 215 (Ind. 2009) (“Camm II”). Camm ultimately was acquitted following a third trial in 2013. Respondent prosecuted the second trial, and he initially continued to represent the State during proceedings in advance of the third trial until his removal from the case due to the conflict of interest described below.
Days after the jury in the second trial returned a guilty verdict, Respondent – with the intent to write and publish a book about the Camm case – entered into an agreement with “Literary Agent.” Thereafter, Respondent continued to represent the State in post-trial proceedings in the trial court and assisted the Attorney General during appellate proceedings in Camm II. In early June 2009, while Camm II was pending before this Court, Respondent entered a publication agreement with “Publisher.” After we issued our decision reversing Camm’s convictions and remanding for a third trial, Respondent wrote to Literary Agent, expressing his belief that “this is now a bigger story” and asking Literary Agent to seek a “pushed back time frame” for publication and “to push for something more out of the contract.” However, Publisher instead elected to terminate the book contract.
Following the conclusion of appellate proceedings in Camm II, in December 2009 Respondent refiled murder charges against Camm, and Camm petitioned for appointment of a special prosecutor. In January 2011, the trial court denied Camm’s request for a special prosecutor. Camm pursued an interlocutory appeal, and in November 2011 the Court of Appeals reversed the trial court and ordered Respondent’s removal from the case. Camm v. State, 957 N.E.2d 205 (Ind. Ct. App. 2011), trans. denied.
Meanwhile, the Commission began investigating a disciplinary grievance filed against Respondent by Camm’s counsel. Respondent retained private counsel to represent him during this investigation and later submitted six payment vouchers to the Floyd County Auditor (with his counsel’s invoices attached) seeking reimbursement of his legal fees.
The prosecutor was paid an advance of $1,700.
we find sufficient support for the hearing officer’s findings and conclusions with respect to each of the charged rule violations. Accordingly, we find Respondent violated Professional Conduct Rules 1.7(a)(2), 1.8(d), and 8.4(d) with respect to Count 1, and we find in favor of Respondent on Count 2.
Indiana Rule 1.8(d) provides
Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
Count 2 involved alleged false statements in seeking reimbursement.
The hearing officer recommended that Respondent receive a public reprimand. The Commission argues he should be suspended. The violation is serious and adversely affected the administration of justice in this case. However, noting Respondent’s misconduct occurred in connection with a single, unusual case and is an aberration from what otherwise has been a long and distinguished career as a public servant, we conclude a suspension is not warranted in this case. Thus, for Respondent’s professional misconduct, the Court imposes a public reprimand.
The Indiana Court of Appeals reversed the denial of Camm's motion to appoint a special prosecutor in November 2011.
The trial court held that the cancellation of the [book] contract weighs against finding an actual conflict of interest, and, likewise, the State argues that the cancellation of the contract precludes this court from finding that an actual conflict of interest exists. Notwithstanding the State’s contention, this is a bell that cannot be unrung. Henderson signed a contract to author and publish a book about the Camm case prior to Camm’s third retrial, and, in doing so, he permanently compromised his ability to advocate on behalf of the people of the State of Indiana in this trial.
Were we to hold otherwise, there would be more chapters to this book. As a result of having signed the literary contract, Henderson has provided Camm with a defense strategy that he would not otherwise have. Camm may now contend that Henderson’s literary contract, albeit cancelled, and his commitment to write a book influenced his decision to prosecute Camm for a third time. Henderson has made himself an issue at trial, and thus cannot continue to serve as prosecutor in this case.
Our decision today does not rest solely on whether or not there was a contract in place. Henderson has established a personal agenda to both write this book and ensure that Camm is prosecuted. Henderson’s own words are evidence of that agenda. In his email to his literary agent following reversal, Henderson stated: “I am committed to writing the book as is [co-author] Damon. A tremendous amount of work has been done to this point. It’s a great story that needs to be told. . . . In addition, as you and Damon have discussed, this is now a bigger story.” Appellant’s Ex. F at G. And, in a statement to the media, Henderson wrote that he was “more convinced now than ever that when this matter is completed, the unedited version of events needs to be told.” Appellant’s Ex. J at K.
As prosecutor, Henderson should not have a personal interest in this case separate from his professional role as prosecutor. In other words, Henderson cannot be both committed to writing a book about the Camm case and serve as prosecutor. Such a personal interest creates an actual conflict of interest with his duties as prosecutor.
Wikipedia has information about the Camm criminal case. Mike Frisch)
Saturday, January 14, 2017
The Louisiana Attorney Disciplinary Board has recommended that an attorney be permanently disbarred.
Beyond the misconduct is the story told of the attorney's inadequate efforts to respond to the bar charges .
She was able to set aside a default by motion but appeared for a hearing with husband and infant child in tow. The first day of the hearing went forward.
At the resumed hearing, counsel appeared but the accused attorney did not. Counsel represented that he had received a series of text messages that morning from the attorney along with photographs of "what appeared to be a human hand that was purportedly injured in some way" and indicating that she was seeking urgent care.
In response to questioning by the committee chair, [retained counsel] Mr. Ciolino asserted that he had requested materials and had set up appointments with Respondent in order to prepare for the hearing, to no avail. Because she had not appeared, and he had been otherwise unable to communicate with the Respondent, Mr. Ciolino felt as though he could do nothing further to help her
Motion to continue denied. Motion to withdraw as counsel granted. Default entered.
On the merits
The Board agrees with the committee’s determination that the baseline sanction in this matter is disbarment. Respondent violated duties to her clients by failing to act with diligence, failing to properly withdraw from representation, failing to properly communicate with clients, making false and misleading statements to her clients, failing to return client files and unearned fees, and converting client funds. The record further supports that she violated duties to the public, the legal system and the profession by engaging in the unauthorized practice of law, making false assertions to Judge Zibilich regarding the details of her [interim] suspension, engaging in criminal conduct through her admittedly fraudulent attempt to obtain prescription medication, and failing to cooperate in the disciplinary proceedings. As found by the committee, the record supports that Respondent engaged in a disturbing pattern of intentional misconduct. Moreover, the testimony of Respondent’s clients, particularly Ms. Cheramie, established that Respondent inflicted actual harm that was significant. The committee found Respondent’s disregard of the Rules of Professional Conduct to be flagrant and her failure to cooperate to be an unwarranted source of delay and waste of resources...
One striking factor in the instant matter that deserves note is Respondent’s lack of truthfulness. Her veracity was called into question on numerous occasions. The committee repeatedly pointed out that Respondent’s testimony was not to be believed and that her statements during the proceedings were disingenuous. Further, the record establishes that Respondent misled Ms. LaGarde as to her employment status with the Chouest Law Firm. She misled Ms. Cheramie, falsely asserting that she had filed pleadings in her parents’ succession matters when she had not. She misled Judge Zibilich when she told him that she had only recently learned of her interim suspension, which had been issued some six months prior. When considering these actions, along with Respondent’s criminal conduct, the multiple instances of conversion of client funds and her unauthorized practice, it is clear that permanent disbarment is warranted.
The board found no mitigating factors. (Mike Frisch)
Friday, January 13, 2017
An appeal was dismissed by the Hearing Division Tribunal of the Law Society of Upper Canada in a matter involving a California disbarment
Mr. Sumner was called to the California Bar in 2006. The following year, the appellant was arrested and charged with battery and vandalism after a complaint by his roommate. In March 2008, the charges were dismissed. As a condition of the dismissal, he made a $300 donation to a women’s shelter at the request of the District Attorney’s office. In October 2009, with the assistance of counsel, the appellant petitioned for a Declaration of Factual Innocence in relation to the dismissed charge. John Kochis, the Deputy Chief District Attorney, handled the matter for the State. The petition was initially opposed by the local police department, but proceeded unopposed after the appellant entered into a mutual release in January 2010 of any claims with the original complainant.
Beginning in 2010, the appellant concluded that he had been treated improperly by his counsel, the police department, and Mr. Kochis. He accused all of them of lying, and asserted that Mr. Kochis had coerced and tortured him in taking the actions described above. Mr. Sumner began sending e-mails and voicemails to various individuals, most prominently Mr. Kochis, but ultimately including representatives of the California Bar and the Law Society of Upper Canada. He has sent many communications threatening violence in graphic and often vulgar terms. In essence, his substantive goal seems to be to arrest Mr. Kochis on the basis that the latter has committed various criminal offences, and to assert that persons who do not assist the appellant in this endeavour will themselves be committing criminal offences. Most of the communications threaten deadly force if necessary. One of the threats is made against Mr. Kochis’ wife. In another communication, the appellant requests the assistance of the Hells Angels.
In February 2012, the appellant was charged in California with 27 counts of threatening and similar offences. There is an outstanding warrant for the appellant’s arrest in that state.
In December 2014, the appellant was disbarred in California.
Mr. Sumner was called to the Ontario Bar on January 27, 2012. The prior month, he had self-reported that he was the subject of disciplinary proceedings in California. The Law Society commenced an investigation, and a conduct application is before the Hearing Division. In the meantime, the Law Society brought the motion for an interlocutory suspension pending the result in the conduct application.
Here, the tribunal denied exclusion of evidence that the attorney contended was the product of "torture" and "extortion" and found that interlocutory suspension was appropriate
In argument before us, Mr. Sumner based his appeal on the “but for” principle. If not for what he called the unlawful actions of Mr. Kochis, he would not have engaged in the conduct that is before us. We have considerable doubt that the “but for” test will ever justify what is alleged to be conduct unbecoming by a licensee, but it certainly has no such impact in this case. Vigilante justice has no place in a legal system founded on the rule of law and our shared obligation to remedy wrongs through proper institutional processes.
Seen in this light, there is little room for debate that the Hearing Division acted reasonably in reaching the conclusion that it did. There is a significant risk that public confidence in the legal profession and the public interest in the administration of justice would be harmed if a licensee were permitted to continue practising while engaging in the threatening and harassing course of conduct toward various institutional and individual members of the public that the appellant displayed here.
A recent decision of the Hearing Division Tribunal of the Upper Canada Law Society strikes an unusual note for a discipline case
This is one of the rare cases that focuses on determination and courage, the support of family, colleagues and physicians and things that have gone well.
In 2012 and as further described below, a hearing panel concluded that Mr. Morgan should be permitted to return to practice, after having been incapacitated by reason of mental illness, on the condition that he only practise as an employee for the first two years after his return to practice (the “employment requirement”): 2013 ONLSHP 44 (CanLII).
In this application, Mr. Morgan and the Law Society jointly ask that we end the employment requirement. At the hearing we determined that the employment requirement has created unintended consequences and we have a high degree of assurance that it is no longer required in the public interest.
The attorney has practiced with restrictions that are now no longer necessary
In addition to the submissions of counsel for the parties, we heard from Mr. Morgan himself. Mr. Morgan described his progress and his hopes for a productive working life for the benefit of society, his family and himself. It is clear that Mr. Morgan and his family have faced significant challenges due to his health. They would undoubtedly have much preferred not to have had to do so. But they have faced those challenges successfully; have endured and may even have grown. Determination, courage and commitment have been demonstrated by Mr. Morgan and his family. They have reason to be proud. It would be naïve to think there will be no further challenges to overcome and it is clear from the material before us that there is no such naivety on anyone’s part. But there is optimism and continued determination to address challenges as they arise.
Mr. Morgan also took care to recognize the support that he has received from his counsel, Nadia Liva, who has acted for him before the Tribunal and helped him since 2009. Significantly, Mr. Morgan also took care to recognize the compassion, respect and assistance that he has enjoyed from Danielle Smith who has been Discipline Counsel with carriage of these matters since 2008. Mr. Morgan observed that he has been happily surprised to discover that the Law Society has not acted as an uncaring adversary but rather in a thoughtful, sympathetic and measured manner, in the public interest.
As observed at the outset, most cases before the Tribunal involve difficult situations and, not uncommonly, tragedy. In this case, a very difficult situation has improved as a result of the good efforts of many people. Mr. Morgan noted in his submissions, and we have come to better realize through the good work of leaders in the profession, that issues of mental health are common and yet are often unseen and poorly addressed, if at all. As a profession, we know that we must do better. But we should also recognize when there has been success. This is one such case.
The opinion is linked here . (Mike Frisch)
Thursday, January 12, 2017
The web page of the Tennessee Board on Professional Responsibility reports a three-year suspension of an attorney who "provided legal services in exchange for narcotics..."
The Tennessee Supreme Courrt imposed the suspension with credit for time served on an interim suspension based on the underlying criminal conviction.
Reinstatement is subject to a number of conditions.
Daily News Journal had a story about the charges and his judicial candidacy. (Mike Frisch)
A retroactive 30-month suspension has been imposed by the South Carolina Supreme Court
In 2013, respondent was arrested and charged with driving under the influence ("DUI"), first offense; failure to give or giving improper signal; and hit and run involving property damage. He pleaded guilty to DUI and improper turn; the remaining charge was dismissed. Respondent paid a fine.
Approximately one year later, respondent was arrested and charged with use of a firearm while under the influence of alcohol or drugs; disorderly conduct; and damaging/tampering with a vehicle. He pleaded guilty to unlawful carrying of a pistol and again paid a fine. Shortly after his arrest for the second incident, this Court placed respondent on interim suspension. See In re McMaster, 407 S.C. 213, 755 S.E.2d 107 (2014).
Post-suspension events played a significant role in the disposition
In April 2016, the Panel conducted an evidentiary hearing where respondent pledged his continued commitment to sobriety, rehabilitation, and the profession. The Panel's report noted aggravating and mitigating factors it considered, and recommended sanctions for respondent. As to aggravating factors, the Panel noted respondent engaged in illegal conduct. As to mitigating factors, the Panel noted: the absence of a prior disciplinary record; respondent's "full and free disclosure and cooperative attitude" in the disciplinary proceedings; and respondent's depression and dependency on alcohol. The Panel then recommended respondent: (1) be suspended from the practice of law for a period of thirty months, retroactive to the commencement of his interim suspension—March 4, 2014; (2) pay the costs of the disciplinary proceedings; (3) complete the Legal Ethics and Practice Program Ethics School prior to reinstatement; (4) enter into another two year contract with Lawyers Helping Lawyers; (5) continue treatment with his psychiatrist for a period of two years; and (6) continue treatment with his medical provider for his depression and anxiety for a period of two years.
The court accepted the panel recommendations. (Mike Frisch)
A domestic violence conviction and an effort to persuade the victim to "soften" her testimony drew a 30-month suspension from the Colorado Hearing Board.
Respondent graduated from the University of Nebraska in 1997 with a degree in marketing and finance. He attended the university on an athletic scholarship for long distance running and track. While there, Respondent was the captain of the cross-country team and was nationally ranked as a long-distance runner. After he graduated, Respondent trained for the 2000 Olympic trials, until he had a career-ending injury.
Ms. Olson and Respondent were married in 1997. He described their roles within their marriage as very traditional—“1950s Americana”—as he worked full-time and she stayed home to raise their children. Respondent testified that he and Ms. Olson both came from difficult backgrounds and that they wanted to “form the roots of a new family tree.” During their eighteen-year marriage, the Olsons had three children—two daughters and one son.
From 1997 to 2002, Respondent worked full-time as an adjuster for State Farm Insurance Company. During this period, he also attended the University of Nebraska College of Law, where he served as the executive editor of the Nebraska Law Review.
In 2006, Respondent and his family moved to Colorado, where he became licensed to practice law. He began his legal career in private practice, eventually working at a large firm. He was so fixated on becoming a partner that he missed two Christmases with his family and gained sixty pounds. He realizes now that his lifestyle then was fundamentally flawed, as he did not appreciate the notion of equity within the family. Around 2013, Respondent left private practice and became general counsel for Colorado School Districts Self Insurance Pool (“CSDSIP”), where he earns about $125,000.00 a year. Respondent describes himself as passionate about school law and public education. At present, Ms. Olson is a kindergarten teacher and earns approximately $30,000.00 a year.
In 2013, the Olsons separated. Respondent moved to an apartment in Denver while Ms. Olson remained in the family home in Broomfield. In June 2014, Respondent moved back into the family home to work on their marriage.
The incident that led to discipline
That day, Ms. Olson had discovered Respondent’s relationship with another woman during their period of separation, and she was very upset. She called Respondent to discuss what she had found, but Respondent did not want to talk. He recalled that during this conversation, Ms. Olson told him that she could not “do it anymore” and, as he described, sounded as though she were in a frenzied emotional state.
They offered differing versions of what ensued, leading to this finding
Respondent admitted that he pushed Ms. Olson with enough force to knock her off the bed and even gave himself credit for winning the first round of the “shoving match” when describing his conduct to [Officer] Lopez. Respondent also conceded that he picked Ms. Olson up off the floor from her fetal position and tried to physically remove her from the room by dragging or carrying her toward the door, despite her resistance and pleas to stop. Ms. Olson credibly testified that she experienced pain, felt force, and was fearful for her safety. Ms. Olson indicated on her witness statement and corresponding diagram—made the same evening as the event—that Respondent struck her on four places of her body. Lopez likewise observed redness on her face, even though he determined that Respondent had not hit her in the face.
The hearing board also accepted the ex-wife's version of attempts to influence her testimony in the discipline case
We have already rejected Respondent’s assertion that Ms. Olson fabricated her allegations of witness tampering. Instead, we find that Respondent intentionally attempted to induce Ms. Olson to ignore the People’s subpoena and to testify falsely by “softening” her description of the events of June 18, 2014. Respondent knew that disciplinary charges were pending against him and that Ms. Olson had spoken with the People about being a witness at his hearing. Given these facts, we find that he intended to induce her not to testify at his hearing because he was worried about the sanction and his ability to continue supporting his children.
As to sanction
Respondent committed the reprehensible acts of inflicting violence upon his wife and then attempting to persuade her not to testify truthfully or to avoid service of a subpoena. His actions threatened the truth-seeking function of our disciplinary system and harmed his family. Thus, he should answer for his misconduct by serving a substantial sanction. Because his witness tampering occurred while he was wrestling with a contentious and toxic divorce, rather than in the course of representing a client, and stands as an aberration when viewed in light of his otherwise good record and reputation within the legal community, we determine that a thirty-month suspension is the fitting sanction.
In an unrelated domestic violence matter, a three-month suspension was imposed on another Colorado attorney
In September 2015, Qin physically assaulted his wife during an argument. While his wife was holding their son, who was almost two years old, Qin lost his temper and grabbed his wife’s pajama top. The garment ripped, leaving a gaping hole. He also tore out some of her hair. Qin’s wife ran upstairs to the bathroom, where she locked the door and called the police. Qin followed her and opened the bathroom door with a knife. At the time, the couple’s other two children, aged four and six, were also at home.
As to the sanction
Here, the five mitigating factors in this case preponderate against the two aggravating considerations. We are swayed by Respondent’s remorse, his cooperation in this disciplinary proceeding, and, to a far lesser extent, the personal and emotional problems that contributed to his lack of self-control and poor judgment. But we also take into account the somewhat violent nature of the assault: in our estimation, to tear out pieces of Crawford’s hair and rip a large hole in the front of her pajamas required a significant amount of force, which suggests that Respondent acted—at best—with a callous disregard for his wife’s welfare. To apply that force while Crawford held their son in her arms implies, too, an indifference to whether his attack might physically or emotionally injure the child. Considering the seriousness of Respondent’s misconduct, and weighing the severity of that offense against the nature of aggravation and mitigation, we find that Respondent should be suspended for a period of three months.
Tuesday, January 10, 2017
A rather unusual order from the Louisiana Supreme Court
Based on our review of the record, we find the disciplinary board was arbitrary and capricious in dismissing the complaint. This court’s opinion in In re: Bilbe, 02-1740 (La. 2/7/03), 841 So. 2d 729, is limited to the unique facts presented and does not stand for the blanket proposition that an attorney’s failure to pay litigation-related expenses can never constitute conduct prejudicial to the administration of justice. Accordingly, pursuant to Supreme Court Rule XIX, § 11(B), this matter is remanded to the Office of Disciplinary Counsel to conduct further investigation and to institute formal charges, if appropriate.
From the court's 2003 Bilbe decision involving failure to pay a court reporter
The committee found no violation of the Rules of Professional Conduct based on these factual findings, opining “that the failure to pay an invoice of a court reporter does not constitute action that is prejudicial to the administration of justice even though Respondent has no justification for not paying the invoice. The Committee believes that to hold otherwise, the Board would become a collection agency for creditors of attorneys.”
...the board noted that it is a matter of first impression in Louisiana whether a lawyer's failure to pay a court reporter's bill constitutes conduct prejudicial to the administration of justice. Nevertheless, in the absence of “specific jurisprudence” to support a finding of misconduct, the board agreed that respondent's failure to pay a court reporter does not constitute a violation of Rule 8.4(d), and recommended that Count IV be dismissed...
Finally, the hearing committee and disciplinary board have recommended the dismissal of the charge involving the unpaid invoice for court reporting services. While we do not condone respondent's failure to pay litigation-related expenses she has incurred, we tend to agree with the board that such conduct does not generally constitute a violation of the Rules of Professional Conduct. Furthermore, the ODC has not filed an objection in this court to the board's recommendation. Therefore, we will dismiss Count IV of the formal charges.
The issue in Bilbe had not been fully considered in light of other misconduct that drew a three-year suspension, (Mike Frisch)
The dismissal of a defamation action brought as a result of statements made in a disciplinary proceeding was affirmed by the North Carolina Court of Appeals.
Lena Watts-Robinson appeals from an order dismissing her defamation action against Brandon Shelton, opposing counsel in an employment discrimination case (the “Billips action”). In her complaint, Watts-Robinson alleged that Shelton defamed her while testifying before the Disciplinary Hearing Commission of the North Carolina State Bar (“DHC”) during a hearing investigating allegations that Watts-Robinson, inter alia, mismanaged entrusted client funds and engaged in professional misconduct while representing the plaintiff-employee in the Billips action. Shelton moved to dismiss Watts-Robinson’s defamation action for failure to state a claim on the basis that his testimony during the disciplinary hearing was absolutely privileged, since it was made in the course of a judicial proceeding and was sufficiently relevant to that proceeding. After a dismissal hearing, the superior court granted Shelton’s motion and dismissed Watts-Robinson’s defamation action.
Two issues are presented in this appeal: whether Shelton’s allegedly defamatory statements made during the disciplinary hearing before the DHC were absolutely privileged from civil action, and whether the trial court erred by refusing to exclude the resulting discipline order disbarring Watts-Robinson from practicing law (“disbarment order”) on the basis that its prejudice outweighed its probative value. We hold Shelton’s challenged statement was absolutely privileged and the superior court properly refused to exclude the disbarment order. Accordingly, we affirm.
The plaintiff was disbarred and based the defamation claim on testimony presented at the hearing
..central to the subject matter of Watts-Robinson’s disciplinary hearing was her alleged mismanagement of entrusted client funds, including the settlement proceeds from the Billips action. Considering the entire exchange in context, Shelton’s response to questioning that he was concerned “Watts-Robinson was potentially trying to run some kind of scam on Mr. Billips” after she requested the settlement check be reissued in a manner that would permit her to deposit the check into her own bank account, because she was concerned Billips would not reimburse her for some expense, was sufficiently relevant such that it was not palpably irrelevant to the subject matter of the disciplinary proceeding.
Accordingly, Shelton’s testimony during the disciplinary hearing was absolutely privileged, and the trial court properly granted his motion to dismiss under Rule 12(b)(6) for failure to state a claim.
Further, it was not error to admit the disbarment order into evidence. (Mike Frisch)
Monday, January 9, 2017
Dan Trevas has the story of a discipline case scheduled for oral argument tomorrow before the Ohio Supreme Court
Cleveland Metropolitan Bar Association v. Kenneth Ronald Donchatz, Case no. 2016-0859
The Board of Professional Conduct has recommended that Kenneth R. Donchatz be suspended from the practice of law for two years, with six months stayed on the condition he doesn’t engage in further misconduct.
The charges stem from a complaint related to four client matters in which the Cleveland Metropolitan Bar Association alleged that Donchatz violated the rules governing Ohio lawyers. In its recommendation to the Court, the board noted that Donchatz served as an assistant Ohio attorney general employed by the Ohio Office of Disciplinary Counsel from 1998 to 2001. It also reported that Donchatz “characterizes himself as an expert in ethics” and has used the moniker “the ethics monster.”
Bar Alleges Improper Handling of Unpaid Judgment
Donchatz is facing several allegations of rule violations regarding his reaction to the Davey Tree Expert Company’s attempt to collect an unpaid debt from him. Davey Tree filed a lawsuit against Donchtaz to collect about $2,180 in unpaid invoices.
Donchatz represented himself in the matter, and Davey Tree obtained a default judgment against him in 2010. In 2012, Donchatz filed a notice that the judgment had been paid with the court without properly notifying Davey Tree. The attorney for Davey Tree alerted Donchatz that his action was incorrect and needed to be corrected with the court, and Donchatz allegedly didn’t make the correction. The court agreed to the company’s request to vacate the satisfaction notice and reinstated the judgment, which Donchatz continued not to pay, arguing he wrote a personal check to the company and “wrapped” it in a garnishment notice.
The board reported Donchatz never confirmed the check was received or cashed before filing his satisfaction notice. Donchatz sought to have the court reconsider the default judgment nearly three years after it happened, and Davey Tree resorted to seeking a garnishment order to compel Donchatz to pay. The trial court not only denied his request for reconsideration but awarded sanctions against him to compensate the company for its legal expenses incurred for collecting the payment. The board concluded that Donchatz violated several rules including the prohibition on knowingly making false statements to a court or failing to correct a false statement, disobeying an obligation issued by a court, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Donchatz Accepts $100,000 Loan from Client
Donchatz became a private practitioner after leaving a law firm that had disbanded, and he accumulated unpaid taxes as a result. One of his clients offered to loan him $100,000, and Donchatz informed the client that he would represent the client for free, without putting the agreement in writing.
The representation began in 2007, but in 2013, Donchatz began to ask the client how the legal fees would be handled. He also accepted and refurbished an antique desk the client gave him. The client reported that Donchatz never informed her of the rules governing transactions between lawyers and their clients, didn’t notify her of a potential conflict of interest from the arrangement, and didn’t suggest she should seek another lawyer’s advice before making the loan.
Donchatz only repaid the client $57,000, returned the antique desk, and admitted to the board that he knew he violated the rules when he accepted the loan.
Attorney Suggests Donchatz Filed False Statement
Donchatz also is accused of filing a motion in a disciplinary case that contained a false statement and misrepresentations of the opposing attorney. Donchatz assumed representation of attorney Carol Hampton, who was facing her own disciplinary charges.
Hampton and her son were involved in a dispute with a property owner represented by attorney J.T. Holt. During the disciplinary proceedings, the two testified that Holt tape-recorded all three conversations among them, and Hampton alleged that the recording of the third conversation would prove her innocence. Donchatz requested from Karen Osmond, the assistant disciplinary counsel handling the matter, copies of the Holt’s tape-recorded conversations. Osmond provided Donchatz two recordings and told him she didn’t have a recording of the third conversation.
Donchatz made a second request from Osmond for the third tape. Osmond contacted Holt who confirmed there was no third recording and informed Donchatz of that. She also provided him with Holt’s phone number, inviting him to speak directly with Holt to verify the information.
Donchatz allegedly made one phone call to Holt, not using the number from Osmond but rather one provided by his client, which was not answered or returned. He then filed a motion in the case claiming that Osmond was withholding the recording and was “fully aware” that it existed. The motion didn’t mention that Osmond had investigated the missing tape, informed him of its nonexistence, or given him the opportunity to investigate for himself.
Osmond viewed the statements in the motion as false and misleading, and when asked by the disciplinary counsel to clarify his statements, Donchatz simply defended his position. The board concluded he violated the rules, including filing a claim without merit and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Dispute Over Fees Leads to Misleading Filing
In the final complaint against Donchatz, he represented a firm in dispute with Leader Technologies. Donchatz and attorneys for Leader engaged in mediation discussions mediated by a Franklin County magistrate. Donchatz circulated a draft “Stipulated Entry and Consent Judgment,” which he testified was requested by the magistrate. Leader’s attorney testified that the magistrate hadn’t requested a consent judgment, but rather asked Donchatz to put his proposed settlement in writing.
Without the consent of the parties or the direction of the magistrate, Donchatz submitted the entry to the court without indicating it was a draft or that there were unresolved issues still pending. Leader’s attorney informed Donchatz the filing wasn’t proper and requested he withdraw it.
The attorney informed Donchatz that if he didn’t withdraw the entry, he would institute disciplinary action against Donchatz for his dishonesty. Donchatz countered by stating he would file a disciplinary action against the company’s attorney for frivolous conduct and defaming him. The court vacated the entry, and the board found Donchatz violated attorney rules.
Donchatz Responds to Claims
Donchatz objects to the board’s recommendations and argues his behavior merits a lesser penalty. He suggests the conduct in his four cases is less harmful than the conduct of other attorneys who were sanctioned with a two-year suspension.
In the Davey Tree matter, Donchatz notes no client was involved and the tree company was hired after a contractor knocked down a portion of a tree on his property. The contractor reported the incident to his insurer, and Donchatz was under the impression the contractor or the insurer had made arrangements to pay Davey Tree. He admitted his handling of the matter was “sloppy” and that he incorrectly filed the notice that the judgment had been paid. Rather than withdrawing his notice, he allowed the company’s notice to vacate to go unopposed.
In the client loan case, he admitted he improperly took the loan, but contends he didn’t violate a representation agreement with the client. He maintains he agreed to represent the client for free, but that she was responsible for all “hard costs” in the matter, and noted he repaid her $57,000.
Donchatz characterized his statement’s about Osmond withholding evidence in the Hampton disciplinary matter as an “inartful statement of opinion,” Donchatz indicated he learned about the third recording through sworn testimony in which the property owner admitted she had no claims against Hampton. He maintains that Holt predictably denied taping the meeting.
Donchatz argues his statements regarding Osmond are opinion and he can’t be sanctioned for stating his opinion, which is protected by the First Amendment.
In the settlement matter, Donchatz asserts his actions to collect more than $120,000 in legal fees from Leader Technologies and its founder were guided at all times by the magistrate conducting the mediation. He noted he consulted with another attorney to draft the settlement and circulated it by email to the other parties. His brief states he received some arguments from the opposing sides, but the opposing attorney didn’t circulate a draft judgment and neither the opposing party nor the magistrate offered any changes or edits. He submitted the draft to the presiding judge a few weeks later who signed it. Donchatz offered that neither the magistrate nor the judge offered any evidence in his disciplinary case that he did anything wrong.
Board Fails to Consider Mitigating Evidence
Donchatz argues the three-member panel of the board hearing his case failed to consider any of the character evidence he offered. He noted that none of the letters “attesting to his high character and generosity in his more than 20 years of law practice” were mentioned in the panel’s report. He notes he has taught at Ohio State University’s law school for 16 years, coached the moot court team at Denison University for two years, coached the Westerville North High School mock trial team for 20 years, and volunteered as a member of the state’s Clients Security Fund for eight years, including one year as chairman.
He noted several honors and awards he received that were associated with community service and legal-related activities, and maintains there is no precedent that allows the panel to disregard the amount of character evidence he provided.
Bar Association Seeks Harsher Sanction
The Cleveland Metropolitan Bar Association objects to both the recommendation of the board and to Donchatz’s claims. The bar association argues Donchatz’s behavior warrant an indefinite suspension.
The association maintains that the board considered and appropriately weighed the relevant mitigating factors presented by Donchatz and that there is no support for his argument that the board panel disregarded his character evidence.
The association also objects to Donchatz’s characterizations of the Hampton and Leader Technologies complaints and maintains that there is ample support in the record to find he violated the rules.
The Ohio State Bar Association recognized his contribution to his local high school moot court program.
In the words of colleagues and students, Donchatz is “a hard-working, dedicated mentor and professional”; an individual of “exceptional character…dedicated to the promotion of the legal system and education"; and an “advocate [with a] true passion for law, and for educating students.”
Ohio oral arguments can be viewed in real time and in their video library. (Mike Frisch)
Kathleen Mahoney tells the story of a bar admission case up for argument in the Ohio Supreme Court on January 11
In re Application of Shamir L. Coll, Case no. 2016-1243
Board of Commissioners on Character and Fitness
The Board of Commissioners on Character and Fitness recommends that the Ohio Supreme Court reject a current application from Shamir L. Coll of Lorain to take the bar examination to enter the practice of law. Pointing to Coll’s answers to certain questions on his application and his testimony during a hearing about the matter, the board concludes that Coll didn’t demonstrate the necessary character and fitness to take the bar exam. The board suggests that he be allowed to reapply for the July 2019 bar examination.
Applicant Mentions KKK on Forms Reporting Traffic Incidents
Coll graduated in 2015 from the University of Toledo College of Law and applied to take the February 2016 bar exam. A question on the application asked whether the candidate has been charged in the past 10 years with any moving vehicle violations that weren’t alcohol- or drug-related, and then requires the applicant to fill out a form for each incident.
In his response, Coll noted that he had received speeding tickets in “many cities, many counties, OH”; listed only one date for the incidents; and, for the description of the incidents, wrote “racism mostly.” Staff in the Supreme Court’s bar admissions office contacted Coll in early February 2016 to alert him that his answers weren’t specific enough for the multiple incidents. Coll resubmitted the traffic violation forms, this time identifying four separate incidents between July 2008 and July 2012. He listed the “final disposition” as “speeding” for three of the incidents and “stop sign” for the fourth. For his description of the incidents, he wrote “KKK … their city is worthless,” “KKK … maybe I was speeding,” “KKK … they wanted to be me,” and “KKK … They hate being them.” Coll also left other lines on the forms blank.
Board Holds Hearing, Recommends Preventing Applicant from Taking Exam
At a hearing in late April 2016 before a three-member panel of the board, Coll stated that by giving his full name, his Social Security number, and his Ohio driver’s license number he thought the board had enough information to look into the citations. He also maintained that the board breached its contractual duty to conduct an investigation of him in return for his application fee. As far as the references to the Ku Klux Klan, Coll testified that he wanted to “flex his legal rights” under the First Amendment to express himself as an individual. He added that his previous driving record was inconsequential to evaluating his overall character.
The board notes in its report to the Court that an applicant has a “duty to cooperate and to provide accurate and complete answers to all requested information” and that Coll “set out to sabotage the application process” with his provocative responses.
“Not only do his constitutional arguments lack rigor, his facile exercise – at the expense of the Bar Admissions Committee and the Board of Commissioners – demonstrates a woefully inadequate appreciation for the seriousness of the legal profession and the bar admissions process, so much so that the [p]anel concludes that his immaturity (or egotism … or both), combined with a dramatic lack of judgment, render him currently unfit to practice law,” the report states. “His testimony does not permit the [p]anel to conclude that his conduct justifies the trust of clients, adversaries, courts and others with respect to the professional duties owed to them.”
Applicant Argues Responses Were Within Free-Speech Rights
Coll has objected to the character and fitness board’s conclusions and recommendation. Because of the free-speech rights guaranteed in the First Amendment to the U.S. Constitution, Coll asserts that the board can’t deny his character, fitness, and moral qualifications to practice law based on his comments about racism on the traffic violation forms. He cites several U.S. Supreme Court decisions involving applicants who were prohibited from taking the bar exam in their states because they declined to answer questions about their connections to communist organizations or to divulge other political affiliations. The U.S. Supreme Court overturned the denials by the states. Coll concludes from these rulings that “states cannot chill applicants First Amendment rights” to express themselves on their bar applications.
He also contends that any omissions on his application may be grounds for disapproval only if the omissions are relevant. The admissions committee must weigh several factors when determining the importance of an applicant’s prior conduct, he states, explaining that his traffic convictions occurred when he was young, from 17 to 21 years old; the offenses were minor misdemeanors; he has been rehabilitated given that he has had no traffic violations in the past four years; and he has made positive social contributions through his work as a legal intern at the Toledo Municipal Court. His supervisor there, a prosecuting attorney, spoke before the board’s panel of his competent work and qualities showing strong character and fitness to practice law, he notes.
In addition, he argues that the proposed delay until 2019 for him to reapply to take the bar exam is harsher than the sanctions approved in similar cases. In an example he gave, an applicant was required to wait three years to reapply because he didn’t disclose that he hadn’t graduated from law school and had been charged with significant traffic violations, including drunk or drugged driving and leaving the scene of an accident. Coll argues these issues are much more serious concerns than those raised in his application, yet he is receiving the same three-year ban before he can reapply. Coll points to another case in which the applicant failed to report three of four alcohol-related offenses, but only had to wait one year before he could reapply.
Coll asks the Court to approve the bar exam application he submitted in 2016 and to let him to take the exam in 2017.
Bar Association Waives Oral Argument
The Toledo Bar Association, which in January 2016 initially approved Coll’s application to take the bar exam, didn’t file a brief in this case and, as a result, will not be permitted to participate in oral argument.
District of Columbia Disciplinary Counsel has informally admonished an attorney for deficiencies in the representation of a criminal client
In 2014, you were defense counsel for a client who faced serious criminal charges in the United States District Court for the District of Columbia. After she was convicted, her successor attorney moved to vacate the conviction based upon your alleged ineffective assistance of counsel. The District Court found that you "abrogated" your professional responsibilities but that there was no prejudice to the client. The U.S. Court of Appeals found prejudice and remanded the case for a determination as to whether your assistance was constitutionally deficient. After remand, the government dismissed the entire case.
You testified in the District Court hearing that you considered hiring an expert on the issue of battered woman syndrome and its connection to a duress defense. However, you testified that your client did not wish to pay for one and you believed that she would not be eligible for CJA funds to cover the cost. You did not request CJA funds to cover this cost and you did not advise your client of this option. It also appears that you did not adequately discuss with your client the pros and cons of going forward without an expert.
We find that you violated Rules 1.l(a) and l.l(b) and l.4(b). Rule l.l(a) states that, "a lawyer shall provide competent representation to a client." Rule 1.1 (b) states that, "a lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters." By failing to explore the availability of CJA funds to cover the cost of an expert, you violated these two Rules. Rule 1.4(b) states that "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." You did not discuss with your client the difficulty of presenting a duress defense without the support of an expert to explain your client's actions and state of mind at the time of the criminal conduct. Therefore, your client made a decision about providing funds for an expert and the use of an expert without sufficient legal guidance from you.
The case is In re Iweanoge and can be found at this link. (Mike Frisch)
An attorney admitted in December 2014 faces interim suspension based on these allegations by the Lorain County Bar Association
As will be more fully explored below, on June 20, 2016 Relator opened an investigation into the facts and circumstances underlying an alcohol—related traffic accident in which Respondent was involved with a. fellow attorney wherein the parties provided false statements to law enforcement officers in an attempt to impair and impede an official investigation.
In addition, Relator initiated a corollary investigation into Respondent’s criminal background which revealed that Respondent has a history of several other alcohol-related convictions which preceded her admission to the Bar and indicate a pattern of substance abuse issues.
On August 3, 2016 Relator filed a formal complaint against Respondent with the Board of Professional Conduct of the Supreme Court of Ohio alleging that Respondent engaged in professional misconduct as a result of her involvement in an alcohol—related traffic accident on June 9, 2016 in Elyria, Ohio wherein she gave a false police report to law enforcement officers in an effort to avoid an OVI arrest.
...it is Respondent’s history of alcohol-related offenses and dishonesty; her recent encounter with law enforcement, and her escalation into the abuse of heroin that is most prejudicial to the administration of justice and reflects adversely on her continued ability and fitness to practice law in the State of Ohio.
Accordingly, due to Respondent’s continued misconduct while disciplinary proceedings are pending against her and Relator’s serious concerns regarding Respondent’s abuse of alcohol and drugs, Relator respectfully submits that Respondent poses the potential for a substantial threat of serious harm to herself, her clients and the public and currently is or may be unfit to practice law.
The gravamen of Relator’s Complaint is that on June 9, 2016 Respondent was involved in an alcohol—related traffic accident in Elyria, Ohio with a fellow attorney, Kenneth Lewis, wherein the parties gave false statements to law enforcement officers in an attempt to avoid a potential accident. Respondent and Lewis advised officers that neither attorney had driven the vehicle at issue, when, in fact, Respondent herself had driven the vehicle and caused the accident while she was intoxicated.
Specifically, Respondent affirmatively represented to an Elyria, Ohio police officer that she never drove the vehicle involved in the accident at issue after it was parked at a local bar. Respondent’s representations proved to be dishonest and deceitful, however, after officers viewed a video-recording from the bar that revealed that Respondent had indeed driven the vehicle away from the establishment while significantly impaired.
As a result of the incident, on November 10, 2016 Respondent was convicted of Obstruction of Official Business and an amended charge of Physical Control in the Elyria Municipal Court.
The attorney is ordered to respond by noon tomorrow. (Mike Frisch)
Friday, January 6, 2017
A suspension for six months plus proof of fitness was ordered by a Colorado Hearing Board
In 2014, Respondent discovered two reviews of his legal services posted on Google+ (“Google Plus”) by two of his former clients. The reviews were negative and disparaged his work as an attorney. Respondent posted responses to each of the reviews on Google Plus.
One review, posted by T.S., mentions fees paid to Respondent and claims that Respondent did not adequately represent him. The one-paragraph review opines that Respondent is the “worst attorney” in Denver, that he did not call the district attorney or present T.S.’s “side” to the prosecution, that Respondent took $3,500.00 and “did nothing,” that Respondent lost his temper and called T.S.’s wife names, and that Respondent should be forced to terminate his law practice.
Respondent responded to that review and addressed specific facts about that representation. He wrote:
[T.S.] actually retained me twice, on the same case, in which he was charged with felony theft. He had been referred, to me, by a colleague, who is a former judge, deputy district attorney, mediator and private practitioner. After terminating my services, the first time, because I was unable to force the prosecutor to do his bidding, he came to realize that no lawyer has a magic wand, and rehired me on the case. As he had, before my first withdrawal, [T.S.] became nothing but abusive, demanding, insulting and offensive, and I decided to terminate my representation, as the result of his conduct. In order to earn my $3,500.00 disposition fee, I telephoned the district attorney, on numerous occasions but, as is common, among many prosecutors, the deputies never actually answered my call, and almost never returned it. It was necessary to travel outside the Denver metropolitan area, multiple times, for hearings and other court proceedings. I litigated the motion that [T.S.] insisted that I file, i.e. to dismiss, for destruction of evidence, and prosecutorial misconduct. He was not even able to substantiate the alleged facts that he presented to me, in my struggle to prevail, upon the motion. As with all ethical lawyers, it is inherently inimical, to me, to engage in conduct so base as calling either my clients, or their spouses, “names.” As for the practice of losing one’s temper, I commend the reader to [T.S.’s] own “review,” which constitutes nothing but defamation.
A second review was ostensibly posted by a person with the first initial “D.,” who claimed to be Respondent’s former client. That review, also just one paragraph in length, called Respondent one of the “worst attorneys” and asserted that he was late and unprepared for hearings, that he walked out of court before a hearing was over, and that he never used evidence given to him. The review does not state the type of matter in which Respondent was representing D., nor does it mention the fees paid to him.
Respondent responded to this review and addressed specific facts about D.’s representation:
I never appeared late, for any court appearance, on behalf of [D.], and was always fully prepared, to conduct the business at hand. Logic and common sense dictate that, if I were to attempt to leave a hearing before the court had concluded it, the judge would, as it were, “have my head.” No such thing occurred. Likewise, it is nonsensical that a lawyer would refuse to use relevant evidence helpful to his client, especially if it is “handed to him.” [D.] cannot corroborate anything that she claims, because it did not happen. For all of the many hours that I spent, in vigorous defense of her, against felony assault, felony eluding of police, and driving under the influence of alcohol, [D.] paid me, with a $4,000.00 insufficient-funds check. She then committed two criminal offenses, by fabricating “affidavits,” which were, purportedly, executed by former (and current) relatives, forging their signatures to them, then “notarizing” the forged signatures, when she was no longer commissioned, as a notary public. [D.’s] dishonest, fraudulent and criminal conduct speak for themselves.
The T.S. representation
In 2013, T.S., an itinerant preacher hired by churches in Colorado and other states to deliver sermons, retained Respondent to help him in a criminal matter. The representation ended by the middle of that year, however. T.S. was dissatisfied and posted his negative review on Avvo.com. He also created his own website, www.lanceisaac.com, to air his grievances. T.S. testified that he put up his website and posted the review to “protect the citizens of Denver” and to “warn the community about [Respondent’s] behavior” because, in his estimation, Respondent is “not fit to be a lawyer.” T.S.’s review also appeared on other websites, like Google Plus, ripoffreport.com, and complaintsboard.com; T.S. said that he imagined—though he conceded he did not know for sure—that someone had replicated his review verbatim and transferred it to those other sites.
In the disciplinary hearing the attorney explained his response to the bad reviews
As regards his former clients, he remarked, “the universe brings these people to me. This isn’t my first rodeo when it comes to sociopaths and psychopaths. I’ve represented several of them in my career.” Concerning the People, he expressed outrage that they had initiated the investigation after going onto the web and finding his posts. He ruminated that it was “not just unseemly” that the People had done so, but in fact “very reminiscent of Stalinist Russia, it’s reminiscent of Nazi Germany. It’s where we go out looking: where can we find a Jew? where can we find a homosexual? where can we find somebody to do something to?” He also complained that “as a result of what has happened on the internet my business has plummeted.” “Once people start putting this kind of stuff out there about you it can end the whole game, and that’s basically what’s happened to me,” he said.
A key aggravating factor was the attorney's refusal to acknowledge the misconduct as well as extensive prior discipline.
Lawyers’ disclosure of client confidences erodes the trust that undergirds the lawyer client relationship. That Respondent even now fails to recognize this basic truth is disquieting, and leads us to impose a sanction that provides some reassurance that, before practicing law again, he appreciates that such misconduct is inimical to a lawyer’s role of loyal advocate and defender. We therefore suspend Respondent for six months, with the requirement that he petition for reinstatement under C.R.C.P. 251.29(c) before resuming the practice of law.
The Colorado Presiding Disciplinary Judge disbarred an attorney for misconduct in several matters
Throughout 2015, Respondent agreed to represent six clients, but he abandoned them all. In three of those cases, Respondent knowingly converted client funds and has failed to refund at least $7,000.00 in unearned fees. Respondent appeared in court with methamphetamine, and officers later discovered more methamphetamine at Respondent’s house. Despite circumstantial evidence that Respondent was experiencing a difficult family situation, this Court cannot extend credit in mitigation because Respondent has failed to participate in this disciplinary matter. Respondent has spurned his obligations as a lawyer and demonstrated general disrespect of the legal system. He should be disbarred...
Stefani Arndt, an Adams County law clerk, found a briefcase that had been left in Judge Wellings’s courtroom overnight on October 30, 2015. Arndt determined the briefcase owner’s identity by looking through it and finding documents that revealed the case belonged to Respondent. A vial of white powder and a syringe were also in the briefcase; a field test by courthouse deputies identified the powder as methamphetamine. Respondent retrieved the briefcase later that day and confirmed that it was his.
Relatedly, on November 25, 2015, Aurora police officer David A. Johnson responded to a domestic violence call at Respondent’s residence. Respondent’s husband and partner of ten years, Tyler Smith, told Officer Johnson that he had found methamphetamine and syringes in the home, and that when confronted about this discovery, Respondent assaulted him. Respondent was not arrested, but officers seized the methamphetamine from the home. Respondent thereby violated C.R.S. section 18-18-403.5, unlawful possession of a controlled substance, a class-four felony.
The attorney was admitted in 2009. (Mike Frisch)
A judge who was reprimanded for improper conduct as a judge is not subject to bar discipline for the same conduct, according to a recent opinion of the North Carolina Supreme Court
The State Bar asserts that a judge is still a lawyer after taking office and therefore, must comply with both the Code of Judicial Conduct and the Rules of Professional Conduct as required by section 84-28.6 Therefore, the State Bar contends that the DHC may discipline a sitting judge because “[j]udicial discipline concerns the fitness of a judge to serve as a judge. Attorney discipline concerns the fitness of a lawyer to be a lawyer. The same conduct may implicate both fitness to be a judge and fitness to be a lawyer.” We agree that a judge’s conduct may affect his or her fitness to be a lawyer. In Badgett III the DHC disbarred the defendant once he was removed from judicial office; however, while a judge remains in office, only this Court or the JSC may impose discipline for his or her conduct as a judge.
In the present case defendant was a member of the General Court of Justice when he engaged in the misconduct set forth above. As a result, he was investigated and disciplined by the JSC pursuant to sections 7A-376 and 7A-377. Having accepted the JSC’s public reprimand, defendant remains a sitting member of the General Court of Justice. Based upon the history and language of Article 30 of Chapter 7A of the General Statutes, we conclude that jurisdiction to discipline sitting judges for their conduct while in office rests solely with the JSC and this Court, and not with the DHC.7 Consequently, we hold that the DHC does not have jurisdiction to discipline defendant as a sitting member of the General Court of Justice for his conduct while a member of the General Court of Justice. Accordingly, we reverse the DHC’s denial of defendant’s motion to dismiss the State Bar’s complaint against him and remand this case to the DHC with instructions to dismiss with prejudice the State Bar’s complaint.
The case involved dealings with the Kill Devil Hills police.
Chief Justice Martin wrote a lengthy concurring opinion. Justice Ervin wrote and concurred in the result.
Hat tip to the ABA Journal. (Mike Frisch)
An incarcerated Michigan attorney has been suspended automatically based on drug and probation violations.
On December 20, 2016, respondent entered a plea of guilty to the charges of Prisoner Possessing Contraband, contrary to MCl 800.281 (4) and Habitual Offender (4th offense), contrary to MCl 769.12, in the matter of People v Susan Gail Graham, 57th Circuit Court Case No. 16-4425 FH. Respondent also pled guilty to violating her probation in People v Susan Gail Graham, 57th Circuit Court Case No. 15-4271-FH. Upon acceptance of the plea by the court, respondent was convicted and, in accordance with MCR 9.120(8)(1), respondent's license to practice law in Michigan was automatically suspended.
The News Review reported on the attorney's earlier problems
A Harbor Springs woman whose license to practice law is suspended and who has a long history of drug abuse pleaded guilty recently to a felony charge of driving with marijuana in her system.
Earlier this month Susan Gail Graham, 45, pleaded guilty in Emmet County's 57th Circuit Court to one count of driving with the presence of a controlled substance in the bloodstream, third offense. The charge is punishable by 1-5 years in prison or probation with 30 days-12 months in jail.
The plea was part of a plea agreement with the Emmet County Prosecuting Attorney's Office. In exchange for her plea, a charge of driving while intoxicated, third offense, a habitual offender, third offense sentencing enhancement and a district court case of driving without a valid license will be dismissed. The habitual offender sentencing enhancement could have increased the maximum penalty for the underlying offense by 1.5 times.
According to court documents, the conviction stems from an incident that took place in Harbor Springs in July 2015. According to a Harbor Springs Police Department affidavit filed in the case, officers pulled Graham's vehicle over on Main Street near Gardner Street after another driver called 9-1-1 reporting a vehicle matching the description of Graham's "driving all over the road" and nearly hitting the caller's vehicle from behind.
Police said when they stopped Graham she had watery, bloodshot eyes with fixed pupils and that she had balance problems when the officers conducted a field sobriety test. Police said Graham admitted having smoked marijuana before driving and that they found a glass smoking pipe and an empty syringe in the car she was driving.
Blood tests found the presence of THC (the active ingredient in marijuana) and amphetamine in Graham's system at the time of her arrest, according to the affidavit.
Graham has prior convictions for driving while intoxicated in 2002 and 2011 and convictions for attempted resisting and obstructing police, possession of marijuana and use of a controlled substance in 2011, all in Emmet County. She is also still on probation for a 2014 conviction of maintaining a drug house in 13th Circuit Court in Traverse City.
The case had been set for a three-day trial that would have started on March 16. Graham will be sentenced on the new conviction at 9 a.m. on Tuesday, April 19. Because of the newest conviction, she could also face a probation violation on the maintaining a drug house convicti
Graham's license to practice law is currently suspended because of her criminal convictions.
Petoskeynews.com had a story about a 2011 encounter with the law
Emmet County prosecutor Jim Linderman previously told the Petoskey News-Review that Graham pleaded guilty to one count of attempted assaulting/resisting/obstructing a police officer, a misdemeanor offense with a maximum penalty of one year and/or a $1,000 fine; one count of controlled substance possession of marijuana, a misdemeanor offense with a maximum penalty of one year and/or a $2,000 fine; one count of operating while intoxicated, a misdemeanor offense with a maximum penalty of 93 days in jail and/or a $100 to $500 fine and/or 360 hours of community service; and two counts of controlled substance use, a misdemeanor offense with a maximum penalty of one year in jail and, or a $1,000 fine.
In 2002, Graham was convicted of operating while intoxicated, first offense, court records show.
There have been any number of cases where an attorney has been busted for bringing drugs into a secure facility. I do not recall any where the recipient was an already jailed lawyer. (Mike Frisch)
A 60-day suspension has been imposed by the Wisconsin Supreme Court for an attorney's misconduct in his own acrimonious divorce.
This matter came to the OLR's attention during Rice's acrimonious divorce proceeding. In 1996, Attorney Rice and Ms. Liesl M. Testwuide (Ms. Testwuide) were married. In 1992, when Ms. Testwuide was still unmarried and childless, Ms. Testwuide's parents created a trust for the benefit of Ms. Testwuide and her children. Ms. Testwuide was co-trustee of the trust along with Kenneth Kazmierczak, a business associate of Ms. Testwuide's father.
In 2010, Ms. Testwuide filed for divorce. In July 2011, while the divorce was pending, Ms. Testwuide filed a grievance with the OLR alleging that Attorney Rice had removed over $600,000 from the trust without proper authorization by forging Ms. Testwuide's signature and the signature of her cotrustee. Attorney Rice self-reported the same misconduct and, in October 2011, Attorney Rice submitted a lengthy written response to the grievance acknowledging that he signed documents without proper authorization but asserting Ms. Testwuide knew and tacitly approved his actions. Ms. Testwuide and Attorney Rice's divorce judgment was entered in October 2011; they continued to litigate custody, placement, and other issues.
On November 21, 2011, Ms. Testwuide filed a civil action against Attorney Rice and his former law firm, alleging fraud, conversion, and legal malpractice. Testwuide v. Rice, 2011CV1184, Sheboygan County. On December 18, 2012, the circuit court granted Rice's motion for summary judgment, ruling that several claims were barred by the statute of limitations. In May 2013, a stipulation and order dismissing the remaining claims against Rice was entered.
In the disciplinary case, the attorney stipulated to the forgery and sought a reprimand.
After itemizing a number of unauthorized trust transactions, the referee stated that she was not persuaded by Attorney Rice's claim that it was "impossible" to locate the cotrustee after the co-trustee relocated to Minneapolis, and found further that the "overwhelming information in this record supports the fact that [Rice's] misconduct in accessing Trust funds, without authorization was well in excess of any dollar amounts necessary to 'pay bills.'." However, the referee acknowledged the "personal nature of the issues leading [Rice] to engage in the misconduct that he admits to" and found credible Attorney Rice's assertion that he sincerely believed that he was acting as a "de facto" trustee.
Throughout these proceedings Attorney Rice has maintained that he engaged in the trust transactions, albeit unauthorized, but with the knowledge and consent of his wife, who was both a co-trustee and a beneficiary of the trust. He claims that she did not want to be involved in the marital finances. He maintains that the trust funds were used to support a marital lifestyle that exceeded their employment income, and paid for, among other things, property taxes, vacations, and the remodeling of a vacation home. He claims that Ms. Testwuide's grievance was both selective and incomplete in terms of the trust transactions it identified. The referee did not make specific findings in this regard, however, merely noting the "conflicting" evidence provided. There is no finding that Attorney Rice misused the trust funds.
The court majority ordered a 60-day suspension with payment of full costs.
Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley
I cannot join this per curiam because the stipulation, the referee's report, and this per curiam do not make clear the nature and extent of Attorney Rice's conduct that is charged as a violation of SCR 20:8.4(c). Without knowing the nature and extent of the conduct I cannot determine whether a violation of the Code occurred and, if there was a violation, the appropriate discipline. Accordingly, I dissent.
Thursday, January 5, 2017
The case reinforces the court's properly unsympathetic view of knowing misappropriation.
It started with overdrafts on a trust account for a purpose unrelated to legitimate client affairs.
On January 24, 2013, Kearny [Federal Savings Bank] notified the [Office of Attorney Ethics] of a $96.63 overdraft in respondent’s trust account following three consecutive $36 electronic charges from UNI Information Inc. (UNI). UNI is a corporate entity located in California that provides adult entertainment in the form of "phone sex talk." Kearny honored the charges, but assessed an insufficient funds fee of $105 for the three overdraft charges, which increased the overdraft to $201.63...
According to respondent, he was charging the UNI calls directly to his trust account because he had personal funds in the account, at that time, and did not have a business account, but was in the process "of reestablishing one as soon as possible." He added that he began authorizing UNI charges to his trust account in April 2012. UNI charged the following rates: $18 for fifteen minutes; $36 for thirty minutes; $54 for forty-five minutes; and $80 for seventy-five minutes. Respondent maintained that he would never know when the UNI charges would "hit" his account. He stopped using the trust account for the UNI charges after he received the OAE’s January 28, 2013 letter.
But the overdraft led the OAE to investigate and learn of instances of misappropriation from clients.
The misconduct and potential mitigation
The complaint clearly and convincingly demonstrates that respondent continuously invaded client funds to support his alcohol, gambling, and phone sex proclivities. After he invaded client funds, he supplemented one client’s funds with either personal funds or engaged in "lapping" to satisfy the amounts he owed his clients. In other words, he used funds from one client to cover the amounts he owed another client. There is no question that respondent knew he was invading other client funds. This was no more evident than when, after he used Taylor’s funds to repay Bishop and McArdle, he purportedly obtained a loan from Taylor, to justify the shortage in his trust account to the OAE.
Although respondent’s alcoholism, his compulsive gambling, and his depression, exacerbated by his mother’s illness and ultimate death evoke a sense of compassion, those circumstances do not and cannot excuse his knowing misappropriation of client funds. The Court consistently has rejected alcoholism as a defense to knowing misappropriation...
Gambling addiction, too, has not saved from disbarment attorneys who knowingly misappropriated clients’ monies to fund their habit...
Mental illness, too, has been insufficient to override the disbarment penalty required in knowing misappropriation cases. The Court rejected a defense of manic-depressive illness and underlying bipolar disorder in a case involving one instance of knowing misappropriation and three instances of forgery...
The attorney defaulted on the charges. and has been subject to an interim suspension since January 2015.
The matter thus reflects two of the most important tools in effective attorney discipline.
First, it shows the value of the mandatory overdraft notice to bar counsel.
Here, the notice served as a trigger to uncovering serious misconduct before a client complained. It can take a long time to catch the Rob Peter to Pay Paul (not Pal) type of escrow account thief.
Second, interim suspensions serve to protect the public while the long slog to suspension/disbarment plays out.
Here, in the face of default, the attorney has already been out of circulation for two years. (Mike Frisch)