Wednesday, November 25, 2015
The order of a hearing panel of the North Carolina Disciplinary Hearing Commission dismissing ethics charges against an attorney for alleged misconduct in a wrongful conviction case is now available.
During the relevant period referred to herein, Defendant was employed as the Director of Post-Conviction Litigation for the Center for Death Penalty Litigation (CDPL) and was actively engaged in the practice of law in Durham, Durham County, North Carolina.
The findings involved the work of several attorneys in connection with two affidavits.
As part of their strategy, these lawyers planned to call Bryan Stevenson, a lawyer and law professor, to testify about the harm caused to African-American jurors who are excluded from jury service. Because Mr. Stevenson's study of jury selection did not include results from North Carolina, the defense interviewed African Americans excluded from jury service in Mr. Robinson's case and, in some circumstances, asked excluded jurors to sign affidavits.
The criminal court found
In an order dated December 13, 2012, Judge Gregory A. Weeks found that "any immaterial inconsistencies between these affidavits and other record evidence, if they are inconsistencies, and the submission into evidence and representations of counsel regarding those affidavits, were not the product of intentional misconduct, willfulness, or bad faith on the part of any member of the defense team."
Notwithstanding that conclusion, the State Bar brought disciplinary charges against this attorney and a colleague.
The commision here concluded that there was a lack of proof on allegations of a lack of diligence and conduct prejudicial to the administration of justice.
In my view, that result is impossible to reconcile with this dismissal. (Mike Frisch)
An attorney convicted on federal mail fraud charges that involved deception of clients has been disbarred by the South Carolina Supreme Court.
Respondent was charged with devising a scheme whereby he obtained money and property from his clients by false and fraudulent pretenses. The scheme with regard to some of respondent's clients was as follows: respondent would contact clients, former clients, or family members of former clients who had readily accessible money and inform them that the clients were in imminent danger of being arrested and/or of losing their money; he would instruct the clients or clients' family members to transfer large sums of money to him to be deposited in his trust account for safekeeping or to ensure that the investigation would be closed; he encouraged the clients or clients' family members to locate as much money as possible, including liquidating retirement accounts and asking family members for money; respondent would accept the funds from his clients or his clients' family members and convert those funds to pay for expenses and obligations relating to his law firm, to himself personally, and to other clients. There were never any civil actions or criminal investigations regarding the claims respondent made to his clients.
There are a number of specific instances of client-related misconduct set forth in the court's decision. Included also were findings that he frequently sought loans from clients.
Respondent self-reported that, from 1994 until 2002, he borrowed significant sums of monies from several clients. He admits that some of the loans were not transmitted in writing to the clients and/or the clients did not consent in writing to essential terms of the loan and respondent's role in the transaction.
The disbarment is effective as of the date of his interim suspension.
The North Carolina Disciplinary Hearing Commission approved a consent two-year suspension with a possible stay of the second year in a matter where the attorney admitted having sex with a client in a child custody matter.
The attorney tried to break off the relationship, causing emotional harm to the client.
Remarkably, they sought therapy to deal with their relationship but the therapist declined to counsel an attorney and his client.
Client A reported that she experienced significant emotional distress related to her personal relationship with Brock and his vacillation regarding whether their relationship was to be platonic or romantic.
In late January 2014, Brock and Client A went to a counselor together. The counselor declined to see them further because she was not comfortable with the fact that Brock was Client A's lawyer.
During the first several months of 2014, Client A expressed to Brock that because interacting with him was emotionally painful-she wanted to hire another lawyer to represent her. Client A asked Brock to refund the attorney's fees she had paid him so that she could afford to pay another lawyer's retainer, but he declined to do so.
Brock discouraged Client A from seeking alternate representation, at one point telling her that another lawyer wouldn't be able to familiarize himlherself with the case in time to meet upcoming deadlines, and at another point telling Client A that he didn't believe she had any further need for representation in her custody matter.
At the time he discouraged Client A from seeking alternate representation, Brock knew or should have known that if Client A hired another lawyer to take over the case, she was likely to divulge to that lawyer that she had been in a sexual relationship with Brock.
When the client hired new counsel and filed a bar complaint, the attorney did not withdraw or refund the fee. Rather, he falsely attacked the client.
(a) Brock stated that his personal relationship with Client A was "short-lived," lasting only until December 2013;
(b) Brock stated that he and Client A mutually agreed in December 2013 to terminate the romantic relationship. He stated that Client A later wavered on that decision, but Brock did not. Brock told the Grievance Committee that shortly thereafter, Client A began engaging in "bizarre, obsessive, and stalking-like behavior." He stated that the contact he had with Client A "after the relationship was terminated was primarily through her bizarre stalking-like behavior ... and not any continuation of their personal relationship. "
The attorney apparently has interests unrelated to the practice of law. (Mike Frisch)
Tuesday, November 24, 2015
The Oklahoma Supreme Court accepted the resignation of an attorney facing sex cr imes charges.
KFOR.com reported on the conditions of his release pending trial
An Oklahoma City attorney accused of federal sex crimes will not have his bond conditions changed.
Michael Billings is accused of traveling to Peru to have sex with underage girls.
Billings has been under house arrest, but was requesting for children other than his own to be allowed in his home.
A judge let him out of jail on bond last year, but because he’s an alleged sex offender, he’s not allowed to be around children.
However, he was asking for permission to have his children’s young friends visit him.
He also wanted a curfew instead of house arrest -- Billings wants more freedom before he heads to trial. Court documents show that he’s asking the judge to change home detention to a curfew, every day from 10 p.m. to 6 a.m.
He proposed that his “minor family members should be allowed to have their minor friends visit them at the family home, restaurants, movie theaters, and other venues.”
On Wednesday, Billings' attempt to get his house detention changed failed.
A federal judge said she would not take him off house arrest.
Billings also withdrew his request to have children in his home.
During Wednesday's hearing, prosecutors told the court that Billings had also been to Bangkok, Thailand. They read from recorded conversations in which Billings allegedly told someone about his trip to Bangkok where underage girls were lined up on bleachers.
He allegedly said, "You can get them tall, short, anything."
Billings will remain under house arrest until his trial.
He is allowed to work, so we caught up with him at his law office. He declined to talk with us about the motion filed in court.
You may remember, FBI agents and Peruvian officials took Billings and Ada bondsman Robert Pierce into custody after Pierce was reportedly seen taking two underage girls into a hotel room in South America.
Investigators say they found condoms, candy, and extra small women’s underwear in the hotel room.
Billings previously got permission from a judge to check in on his other business, the Fantasy Island strip club.
We checked, and we couldn’t find any financial records associating Billings with the strip club.
At this point, the bondsman, Robert Pierce, has not been charged.
Billings can’t have any contact with Pierce since the two are accused of conspiracy.
Billings’ trial has been moved to December.
The Oklahoma City FBI described the charges in the indictment
According to the three-count indictment, for over a decade beginning on February 2, 2003, and continuing through September 2013, Billings and others conspired to commit sex trafficking of children by recruiting and obtaining children in Peru to engage in commercial sex acts and further conspired to travel from Oklahoma City to Iquitos, Peru, to engage in illicit sexual conduct with children under 18 years of age. Specifically, the indictment includes three counts: Count 1 alleges conspiracy to commit sex trafficking of children, Count 2 alleges conspiracy to travel with intent to engage in illicit sexual conduct, and Count 3 alleges conspiracy to engage in illicit sexual conduct in foreign places. Reference is made to the indictment and court record for further information.
Respondent denies the allegation as set forth in Paragraph 5 of the Administrator's Complaint. Answering further, Respondent would state that he researched the issue and determined that the claim of Mr. Robison survived his death and remained viable. In fact, the matter could be taken to trial, as the discovery deposition of Mr. Robison had been taken before his death, and would be admissible at trial pursuant to the provisions of Supreme Court Rule 212(a)(5) and the Dead- Man's Act, 735 ILCS 5/8-201(b). As a result, the estate of Mr. Robison could and eventually was substituted in as an appropriate party plaintiff in Case No. 2008 L 601, pursuant to Section 2-1008(b) of the Illinois Code of Civil Procedure, 735 ILCS 5/2-1008(b). In this regard, Mr. Robison did not have a surviving spouse, so Respondent met with Matthew Robison, decedent's son. Matthew eventually agreed to serve as the petitioner in a probate proceeding to be filed by the Crowder & Scoggins law firm in St. Louis County, Missouri, where his father resided at the time of his death. On July 9, 2013, Attorney Kathie Blackman Dudley of Crowder & Scoggins filed a Petition for Letters of Administration on behalf of Matthew Robison in St. Louis County. The Clerk of the Court docketed the matter as In re the Estate of Randy L. Robison, Deceased, No. 13SL-PR01909. On August 27, 2013, the Probate Court issued Letters of Administration to Matthew. As requested, independent administration of the estate was granted by the Court, so Matthew could proceed with his duties as the personal representative of the estate, including the prosecution of Case No. 2008 L 601, without adjudication, order or direction of the Probate Court. On December 30, 2013, Respondent filed a Motion to Substitute Plaintiff in Case No. 2008 L 601, requesting that Matthew Robison be substituted as the party plaintiff in that case, as the lawful representative of his father's estate. On January 21, 2014, the Circuit Court entered an order granting Matthew's motion and substituted him into the on behalf of a party in Case No. 2008 L 601," as alleged in Paragraph 5 of the Administrator's Complaint.
The key to the answer
Respondent researched the issue and discussed the matter with his partners at Crowder & Scoggins, prior to July 1, 2013. Respondent concluded that the death of his client, Mr. Robison, was "information relating to the representation of a client" which he had a duty to preserve under the "new" version of Rule 1.6(a). While his interpretation of the "new" Rule was eventually rejected by the Appellate Court, Respondent believed in good faith on July 1, 2013, that he was precluded from disclosing the death of Mr. Robison to defense counsel and the Circuit Court.
The underlying litigation involved "matters related to injuries caused by a malfunction of Robison's prosthetic leg."
Should be interesting. (Mike Frisch)
The Maryland Court of Appeals has issued an opinion explaing the reasons for a per curiam order of disbarment.
The attorney had blown a statute of limiations in the client's case and lied to both the client and Bar Counsel.
Respondent engaged in a pattern of misconduct by failing repeatedly to act in Mr. Kolodner’s best interest over the course of years and making numerous misrepresentations to Mr. Kolodner and Bar Counsel, implicating factor (c). Factor (d) is implicated by Respondent’s numerous violations of the Rules. See Barton, 442 Md. at 146. In addition, Respondent submitted false evidence to Bar Counsel in the form of an amended complaint that lacked the court’s cross out of the time/date stamp, implicating factor (f). Factor (f) is further implicated by Respondent’s false statement to Bar Counsel in August 2013 that an amended complaint had been filed, when in fact the amended complaint had been rejected. Respondent’s failure to participate in the disciplinary proceedings reflects his indifference to making restitution, thereby implicating factor (j). See Thomas, 440 Md. at 557 (concluding that the respondent’s failure to participate in the disciplinary proceedings demonstrated an indifference to making restitution). There are no mitigating factors on this record for us to consider because Respondent declined to participate in the disciplinary proceedings in any way. See id.
Respondent’s professional misconduct, exacerbated by a number of aggravating factors and absent any facts in mitigation, is deserving of the ultimate sanction. We consequently issued a Per Curiam Order disbarring Respondent on September 29, 2015.
The City Paper had the earlier story, describing the attorney as the scion of a prominent Baltimore family. (Mike Frisch)
Monday, November 23, 2015
The Maryland Court of Appeals has declined to find misconduct by a candidate for judicial office.
The matter involved a campaign flyer that stated that the opposing candidate “[o]pposes registration of convicted sexual predators.”
On or about March 27, 2012, in response to Judge Densford’s campaign material, Mr. Stanalonis’ campaign mailed a flyer to voters that purported to contrast the experience and outlooks of the two candidates. The left side of the flyer displayed a photograph of Mr. Stanalonis in a jacket and tie, below which appeared a number of statements about him, such as “16 Years as a St. Mary’s County Prosecutor” and “Protecting Our Community, Not the Criminals.” The right side of the flyer a displayed a photograph of Judge Densford in a Hawaiian shirt, below which appeared a number of statements displayed of statements about him, such as “Donated $1,000 to O’Malley on July 14, 2010” and “Opposes your right to elect judges.” A panel at the bottom of the flyer displayed a photograph of Mr. Stanalonis with his family and reiterated his experience as a prosecutor. Judge Densford later responded with his own flyer comparing the qualifications of the two candidates. At issue before us is one of the statements in the Stanalonis campaign flyer that appears under Judge Densford’s photograph: “Opposes registration of convicted sexual predators.”
This case arose out of a hotly-contested primary election campaign for a position on the Circuit Court for St. Mary’s County. An experienced prosecutor in the County sought to unseat a newly-appointed judge who, during the course of his career, had represented defendants in criminal cases in the County. As in many election campaigns, each candidate touted, with some exaggeration, his own experience and credentials. And each candidate disparaged, in various ways and without absolute accuracy, those of his opponent. The question before us is whether there is clear and convincing evidence that a statement in the challenger’s campaign flyer was made with knowledge that it was false or with reckless disregard of its truth or falsity and therefore violated the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”).
The Attorney Grievance Commission (“Commission”) charged Respondent Joseph M. Stanalonis with violating MLRPC 8.2(a) (false statement as to qualification or integrity of a judge, public legal officer, or candidate for such office), MLRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and MLRPC 8.4(d) (misconduct prejudicial to the administration of justice) by virtue of three statements about his opponent in a campaign flyer circulated on his behalf. Pursuant to Maryland Rule 16-752(a), this Court designated Judge Melanie M. Shaw Geter of the Circuit Court for Prince George’s County to conduct a hearing and Lawyers’ Rules of Professional Conduct(“MLRPC”). concerning the alleged violations and to provide findings of fact and recommended conclusions of law.
Following a hearing at which Mr. Stanalonis was present and represented by counsel, the hearing judge issued findings of fact and recommended conclusions of law. The hearing judge concluded that two of the statements did not violate the MLRPC, but that the third statement violated all of the cited rules, although Mr. Stanalonis had a “demonstrable basis” for making that statement. Mr. Stanalonis excepted to the conclusion that he had violated the MLRPC. We sustain that exception, and, as a result, shall dismiss the charges
Judge Watt concurred and dissented.
Judge Harrell dissented
My views regarding the appropriate disposition of this case are informed by the aphorism “Judicial Elections Are Different.” Contested circuit court judgeship elections are different than other types of contested elections for public office because special rules and processes distinguish them as a category apart. They should be treated and seen as different also because of the unique nature of the office being sought. In addition to complying with State election laws generally, judges’ political activities are regulated by Rule 4.1 through 4.6 of the Maryland Code of Judicial Conduct (Md. Rule 16-813). Attorneys who seek judicial office are regulated by Rule 8.2 of the Maryland Lawyers Rules of Professional Conduct (MLRPC) (Md. Rule 16-814). These regulations aim to protect the integrity of judicial office and the legal profession. The Maryland Judicial Campaign Conduct Committee (MJCCC) was formed to focus attention on and foster integrity and civility in this specific genre of the Maryland judicial election process...
The Majority opinion sets-up principally its ultimate toleration of Stanalonis’ mis-representation of the view attributed to Judge Densford, as a sitting judge, as protected speech and/or merely imprecise language chosen during the “heat” of nothing more than a generic political campaign. Maj. slip op. at 9-11. The Majority’s setting of this scenic backdrop does not convince me to buy-in to its analysis that followed. Wishful thinking and recklessness should not be protected. Contested judicial elections are not merely generic political campaigns...
Stanalonis, eschewing further inquiry or verification, tailored to his ends, at best, an impermissible and unsupported leap of logic to infer from attorney Densford’s advocacy of his clients’ best interest to a generic and false view of opposition to the statutory scheme held by Densford as a judge. He cared little apparently for whether his starting-point statement was true, accurate, or taken out-of-context, standing pat on the claim that apparently none of his State’s Attorney colleagues spoke up against his unsubstantiated extrapolation from a false starting-point. Stanalonis’ conduct was a gross departure from what a reasonably prudent lawyer challenging a sitting judge should have done and a gross deviation from the kind of conduct we should expect from any candidate for judicial office. Toleration of such shenanigans in general electoral campaigns is one thing, but is not acceptable here. The Majority opinion’s forgiving attitude toward Stanalonis’ misconduct will reap the whirlwind in future contested circuit court elections.
Judge Harrell would impose a reprimand. (Mike Frisch)
An attorney who has not been responsive to a client complaint has been suspended by the New York Appellate Division for the First Judicial Department
The Committee's suspension motion is based almost entirely on the complaint filed by respondent's client (Client #1) in November 2014. Client #1, who apparently spoke no English, filed her complaint through an interpreter, alleging that respondent had failed to remit settlement funds to which she was entitled.
By affidavit sworn to August 5, 2015, Client #1 supplemented her complaint alleging, among other things, that in January 2013, she retained respondent to represent her in a dispute with her business partner. The dispute resulted in a dissolution action and the parties ultimately settled the matter for $120,000; respondent was to receive $14,000 and Client #1 was to receive the remaining $106,000. Client #1 asserted that between December 2013 and January 2014, respondent issued her two checks, one for $35,000 and one for $36,000, stating that the checks represented partial disbursement of Client #1's share of the settlement. According to Client #1, respondent told her he had to pay her in installments due to "tax issues." In addition, Client #1 averred that respondent told her not to cash the third check, in the sum of $35,000, because of a "tax issue," and that he would pay the remaining balance in smaller increments; however, he never did so. Client #1 waited several months to cash the third check, and when she finally did so in October 2014, it was dishonored due to insufficient funds. Client #1 alleges that, to date, respondent has not remitted the remaining $35,000 of her settlement funds.
By letter dated February 4, 2015, the Committee requested that respondent answer Client #1's complaint. On February 25, 2015, the Committee received an unsigned fax from respondent in which he requested additional time to answer "[d]ue to the severe weather condition in February and mismanagement of the mail in [his] office building."
On or about March 12, 2015, the Committee received another fax from respondent in which he requested an additional two weeks to answer the complaint because he had been preoccupied with caring for his wife following her surgery. By letter dated March 23, 2015, the Committee requested that respondent answer Client #1's complaint within 10 days, and alerted him to the fact that his failure to cooperate with the Committee's investigation could result in his suspension. Respondent did not respond to that letter.
On June 25, 2015, the Committee served respondent with a judicial subpoena duces tecum requiring him to produce, among other things, specified business and escrow account records, and to appear for a deposition on July 9, 2015. Respondent agreed to accept service of the subpoena by email, and sent the Committee an email acknowledging receipt of the subpoena.
The second ground alleged by the Committee for respondent's interim suspension is that he commingled and intentionally misappropriated or converted Client #1's settlement funds for his own use without permission. Respondent's alleged misappropriation presents a more difficult question, because the $120,000 check at issue is a bank cashier's check made payable only to respondent as "escrowee." The amount notwithstanding, there is no indication on the face of the check, or on the accompanying deposit slip, that it pertains to Client #1's settlement. Further, the record does not contain documentation sufficiently tying the check to Client #1's settlement. Notably, respondent's client file pertaining to Client #1's case is among the materials under subpoena that respondent has failed to produce.
However, there is no need for this Court to resolve this issue because there is ample evidence to suspend respondent based solely on his failure to cooperate with the Committee's investigation.
Saturday, November 21, 2015
The District of Columbia Court of Appeals has put out for comment proposed consumer-friendly amendments to the rules governing its Clients' Security Trust Fund.
The key proposed amendment is intended to address the problem of delay in reimbursing victims. The prior rule required a "jurisdictional trigger" such as the suspension, disbarment, death, or incapacity of the thieving lawyer. The trigger requirement will be deleted.
The second amendment (no guns and lawyers jokes please) extends juridiction to the offenses of attorneys who are already disbarred. A letter to the court from the Fund notes that the problem of unsophisticated clients being taken advantage of by the recently-disbarred justifies this jurisdictional extension.
Nice to see someone working at the D.C. Bar (the Fund members are appointed volunteers) thinking about public protection for a change. (Mike Frisch)
Notably as described in the Disciplinary Board report
The Hearing Committee concluded that such misconduct should forever bar Petitioner's reinstatement. Office of Disciplinary Counsel maintains the same position, insisting that Petitioner's fraudulent activities over a time span of three decades are so egregious as to prevent Petitioner's ability to practice law in the Commonwealth forever. We note that in only one case has the Supreme Court held that the magnitude of the breach of trust was so egregious that reinstatement was forever barred. See, In the Matter of Romaine Phillips, 801 A.2d 1208 (Pa. 2001 ). Phillips was involved in a conspiracy with a Common Pleas judge to commit bribery and to fix cases, and thus knowingly engaged in acts to subvert the truth-determining process.
There is no doubt that Petitioner's misconduct was serious and that his disbarment was the appropriate sanction. Nevertheless, we find that his misconduct was not so egregious that it should prohibit Petitioner's reinstatement. Petitioner's misconduct is similar to that of other attorneys who have been disbarred and who have sought and been granted reinstatement.
The record recited in the board report does make eventual reinstatement an unlikely prospect.
The petitioner's conviction involved 29 phony cases that had generated over a quarter of a million dollars in settlements.
He had engaged in a 30-year practice of using runners to drum up mostly faked accident cases, tax violations, transfers of property and made false statements in the reinstatement process.
At the time of the reinstatement hearing, Petitioner had been disbarred for a period of ten years and five months. The record is devoid of any compelling evidence to demonstrate that during his disbarment Petitioner has been rehabilitated. To the contrary, the record supports the conclusion that Petitioner is not fit to resume practicing law because he persisted in engaging in actions of a similar nature to that of the underlying misconduct. While some of Petitioner's actions described herein pre-date disbarment, they are relevant to illustrate the on-going pattern of dishonesty and lack of remorse that existed prior to the imposition of the disciplinary sanction and continued unabated during the period of disbarment...
The sum and substance of these acts demonstrates that Petitioner has not used his ten-year period of disbarment as a time to reflect on his past wrongdoing and make amends. In short, Petitioner has not changed. After all of these years and proceedings, he is still not amenable to acknowledging that he engaged in egregious misconduct that warranted disbarment, and in no fashion did he demonstrate genuine remorse for his actions. He continues to make excuses in an attempt to wriggle out of his culpability. It is clear that Petitioner has not accepted that his actions were wrong, unprofessional and unbecoming of a member of the bar.
A matter that started out as a minor infraction - an informal admonition - led to an attorney's suspension for a year and a day by the Pennsylvania Supreme Court.
The Disciplinary Board noted that the attorney had practiced since 1984 without a disciplinary blemish until he was administratively suspended in 2013. However, the "relatively minor" original infraction was "significantly aggravated" by his failure to appear for the administration of the Informal Admonition.
Thereafter, his "utter failure" to participate in the disciplinary process sufficiently troubled the board to justify the suspension. (Mike Frisch)
The Arizona Presiding Disciplinary Judge ordered a suspension of 30 days followed by probation for misrepresentations to a prospective employer
Mr. Camunez’s transgressions arose when he misrepresented to a potential employer the substance of his prior disciplinary offenses. Mr. Camunez was admonished by the Attorney Discipline Probable Cause Committee on August 29, 2014, for “alter[ing] an e-mail he obtained from the Office of the Chief Counsel, National Guard Bureau, to help facilitate his efforts to secure a promotion while serving in the Arizona National Guard as a civilian government attorney.”
While interviewing for a general counsel position in February 2015, Mr. Camunez misrepresented that he was disciplined in 2014 for failing to report a supervisor’s breach of attorney/client privilege, not for altering an e-mail.
The judge noted
The truth matters. The object of lawyer discipline is to protect the public, the legal profession, the administration of justice, and to deter other attorneys from engaging in unprofessional conduct. In re Peasley, 208 Ariz. 27, 38, 90 P.3d 764, 775 (2004). When the truth is not accepted, but instead covered over, then the insights of attorney discipline may never take root and grow. Whatever the cause, Mr. Camunez is encouraged to identify it, uproot it, and determine to be truthful. While attorney discipline is not intended to punish the offending attorney, the sanctions imposed may have that incidental effect. Id. As the proposed sanction of suspension and probation meets the objectives of discipline, it is accepted.
Friday, November 20, 2015
An attorney who omitted material information about prior discipline in seeking pro hac vice admission has agreed to an appropriate sanction from the Kansas Supreme Court.
He is barred from future pro hac Kansas admission.
[He] is hereby disciplined by indefinite prohibition from appearing pro hac vice before any Kansas court, administrative tribunal, or agency, in accordance with Supreme Court Rule 203(a)(5) (2014 Kan. Ct. R. Annot. 306).
The prior Texas discipline
The respondent has been previously disciplined on three occasions. In 1998, the Texas Supreme Court publicly reprimanded the respondent. In 2004, the Texas Supreme Court again publicly reprimanded the respondent. In 2006, the Texas Supreme Court suspended the respondent from the practice of law for neglecting a legal matter entrusted to him, for failing to carry out the obligations owed to clients, for failing to keep clients reasonably informed about the status of a matter, for failing to promptly comply with reasonable requests for information, for failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, failing to take steps to the extent reasonably practicable to protect a client's interest, and failing to respond to a lawful demand for information from the disciplinary authority. Following a short suspension, the Texas Supreme Court placed the respondent on probation. The Texas Supreme Court referred to this discipline as partially probated suspension.
The pro hac statement
In the verified application for admission pro hac vice, the respondent stated that he had 'been the subject of prior public discipline, but not suspension or disbarment, in any jurisdiction.' Despite his statement in the application, the respondent had been the subject of a prior public discipline which included a suspension.
He is well thought of in Texas.
The respondent is an active and productive member of the bar of Houston, Texas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the hearing panel.
Both the attorney and the Disciplinary Administrator had sought the discipline imposed here.
The oral argument video is linked here. Note the question of one of the justices (paraphrased) as to why bother to proceed against a Texas attorney before the Kansas Supreme Court. (Mike Frisch)
The Louisiana Supreme Court denied reinstatement to a former attorney disbarred in 2007.
Justice Knoll concurred and dissented
I concur with the majority in denying respondent readmission to the bar. I join Justice Clark in his reasons for concurring and dissenting in part permanently denying respondent readmission to the bar.
Respondent has a long “fifteen year history of deceit and dishonesty” as noted by the majority upon respondent’s initial disbarment. Significantly, respondent did not feel guilty and self-report his criminal conduct. Instead, he was caught by the law firms who trusted him when, indeed, he was cheating his clients and the firms who employed him.
Respondent lacks the strength of character to represent his clients and his employers with trustworthiness. He has a flawed propensity for stealing and for dishonesty. While he may have performed well in his capacity as a C.P.A., his authorities, up until recently, were significantly curtailed and “structured” to guard against his dishonesties. The public and the legal profession cannot countenance respondent’s lack of fundamental moral character. In my view, as I stated in my dissent to the initial sanction of disbarment, respondent should have been permanently disbarred. Accordingly, I would permanently deny respondent readmission to this honorable bar and profession.
Justice Clark opines
In October of 2007, this Court disbarred the respondent due to his having misappropriated large sums of money from the law firms which employed him. Between 1987 and 1996, respondent misappropriated approximately $15,000 from the firm of Lowe, Stein, Hoffman, Allweiss & Hauver, which his clients had paid to him directly for legal services rendered. Respondent cashed these checks and did not turn over the money to the firm.
After leaving Lowe Stein, respondent did not take money belonging to his new firm, Sessions, Fishman & Nathan, for several years after he first began working in 1996. However, in 2001, respondent began sending clients billing statements on his personal letterhead stationery. The billing statements were not handled through the Sessions Fishman accounting department, and the firm had no knowledge that respondent had done any work for these clients because he did not enter his hours in the firm=s timekeeping system. Respondent would then receive the check from the client, cash it, and keep the money for himself. The total of the misappropriated funds in this instance was $15,000 to $20,000.
The majority will permit reapplication in two years. (Mike Frisch)
With All Due Respect, Your Honor: You Are A "Certified Moron, Ethical Gnome, Knucklehead, Schmuck, Dimwit And Big Time Dumb Ass"
An Arkansas attorney has been cautioned by the Committee on Professional Conduct for assertions in a motion to recuse the judge while representing a defendant in an unlawful detainer action.
The initial problem came when the newly-assigned judge sought to contact her
After appointment, Judge Shirron contacted Mr. Streetman by telephone on October 1, 2012, and requested a copies of all of the plaintiff’s pleadings that had been filed in the matter. Judge Shirron attempted to contact Ms. Zimmerman by telephone, but got a message that she was “not accepting calls at the time”. Therefore on October 1, 2012, Judge Shirron sent Ms. Zimmerman a letter advising her that he had attempted to contact her by phone, and requesting that she send him copies of all pleadings filed by defendant and a telephone number where she could be reached or message left during normal business hours. Judge Shirron advised her that he would not waste his time in the future making multiple attempts to contact her at a time when she may be accepting calls.
The response was a recusal motion
In her motion, Ms. Zimmerman, alleged that Judge Shirron’s October 1, 2012, letter to her was “unprofessional, demeaning, sarcastic, and totally unprovoked”. She also alleged that Jude Shirron had “engaged in outrageous, unprofessional conduct in the past.
Ms. Zimmerman attaches and incorporates an article from The Committee to Expose Dishonest and Incompetent Judges, Attorneys and Public Officials as proof of Judge Shirron’s “outrageous and unprofessional” past conduct. In the article, Judge Shirron is referred to as a “certified moron”, “ethical gnome”, “knucklehead”, “schmuck”, “dimwit”, and “big time dumb ass”.
After recusal was denied, the war continued
In the petition, Ms. Zimmerman, continued to make accusations about Judge Shirron’s motives and professionalism in presiding over the case. Some of the accusations made by Ms. Zimmerman, included a statement that Judge Shirron was “girded for war”, that Judge Shirron became unreasonably angry in the October 1 letter he sent her when he was unable to reach her by telephone, and that Judge Shirron was “angry, hostile and abusive.”
The conduct violated several ethics rules including Rule 8.2. (Mike Frisch)
Thursday, November 19, 2015
The New York Appellate Division for the First Judicial Department has ordered a two-year suspension of an attorney for misconduct in her own family litigation.
The court noted
this Court granted the Departmental Disciplinary Committee's petition for an order giving collateral estoppel effect to five judicial decisions; four issued by Supreme Court, Kings County and one issued by the Second Department. This Court found, based on these decisions, that respondent had engaged in misconduct...
Respondent's misconduct occurred during the course of protracted litigation involving two LLCs controlled by her immediate family. Respondent was a member of both LLCs and counsel of record. In 2002, when the litigation at issue commenced, respondent had limited legal experience. Specifically, respondent held only temporary or part-time positions as a law intern or clerk until she was employed in January 2005 as an Administrative Law Judge for the New York City Environmental Control Board, and later as an ALJ with the New York City Department of Health. Respondent was not employed as a practicing attorney prior to January 2013.
Respondent, her sister, Esther Nash, and mother, Dorothy Nash, were the principals of 501 Second Street, LLC (501 LLC) which owned a building located at 501 Second Street in Brooklyn. In October 2001, 501 LLC leased the building for 48 years to Gihon LLC (Gihon). In January 2002, Gihon commenced an action against 501 LLC in Supreme Court, Kings County for breach of contract, alleging, inter alia, that 501 LLC had failed to deliver possession of the premises, and for a declaratory judgment as to the rights and obligations of the parties under the lease.
Between April 2002 and November 2006, the court issued various adverse decisions against 501 LLC which included contempt judgments totaling approximately $116,000. In December 2003, in an effort to enforce one of its contempt judgments, Gihon delivered a property execution notice to the Sheriff and thereafter a sale of the 501 Second Street property was scheduled. On or about December 23, 2003, a deed, purportedly dated October 10, 2003, was filed with the New York City Register's Office which conveyed the Second Street property from 501 LLC to 501 Second Street Holding Corp. (501 Corp.). Respondent was the notary public who acknowledged her mother's signature on the deed.
In March 2004, respondent commenced an action in Supreme Court, Kings County on behalf of 501 Corp. to enjoin the Sheriff's Sale based on the fact that 501 LLC, the judgment debtor, no longer owned the property. Respondent also brought an order to show cause to stay the pending sale. By decision dated April 16, 2004, the court denied a stay, dismissed the underlying action, directed the Sheriff to proceed with the sale of the property, and sanctioned 501 Corp. $7,500 payable to the Sheriff. In its decision, the court suggested that the deed at issue was backdated by respondent and referred the matter to the District Attorney for investigation. In our collateral estoppel order this Court found respondent's actions to prevent the Sheriff's Sale amounted to misconduct, however, we declined to find disciplinary violations regarding the allegedly backdated deed since the court did not explicitly find such.
At the sanctions hearing before the Referee, respondent testified that the proceeding to stay the Sheriff's Sale was proper because personnel in the Sheriff's office advised her to initiate the proceeding, and 501 LLC was never served with the underlying contempt judgment, a restraining notice, or the property execution notice. The Referee noted that respondent made similar claims in her opposition to the Committee's collateral estoppel petition, which were already rejected by this Court.
Gihon sued 501 LLC to set aside the previously discussed deed of transfer. By decision of December 28, 2007, the court granted Gihon summary judgment, finding that the transfer was a fraudulent conveyance in violation of Debtor Creditor Law § 276. The court's findings underlying its decision granting Gihon summary judgment, which this Court affirmed on appeal, are part of the misconduct findings previously made by this Court (DR 1-102[a] and  [22 NYCRR 1200.3(a)(4) and (5)]).
In December 2010, Gihon entered a judgment against 501 LLC in the amount of $203,280. As part of its collection efforts, it subpoenaed respondent, in her individual capacity and as a member of the judgment debtor, to appear at a deposition and to produce documents. Respondent did not comply with the subpoenas, nor did she move to quash it, and by order of July 19, 2011 the court found respondent in contempt. Respondent purged the contempt by filing timely answers to the subpoenas. The court's contempt finding, even though it was purged, is part of this Court's prior misconduct findings (Rules of Professional Conduct rules 3.4[c] and 8.4[d]).
Respondent testified before the Referee that the deed transfer was not dishonest, fraudulent, nor intended to thwart Gihon's enforcement of its contempt judgment. She testified that the deed had been executed prior to entry of the contempt judgment, and that there was no wrongdoing on her part. Respondent further testified that she was aware of the court's March 13, 2003 order holding 501 LLC in contempt and imposing daily contempt fines but, in her view, it was "just an order... a warning", and not "a judgment." Respondent, as justification of her actions, stated that the court's contempt order failed to state that a set monetary sum was due, nor did it establish a payment deadline.
When asked to explain why she waited until December 2003 to record a deed which was purportedly executed on October 10, 2003, respondent could not provide any explanation, but she claimed that the delay in recording the deed was a non-issue. The Referee found that, given respondent had previously been employed at a real estate law firm, her response "stretch[ed] credibility." Respondent denied that the fraudulent conveyance harmed Gihon or that the resulting action to set aside the conveyance wasted court resources.
As to the July 2011 contempt finding against her, respondent testified that the subpoenas served by Gihon were an improper discovery tool and violated the directives of the court, which had previously ordered that all discovery requests be made through an appointed referee. Respondent further testified that various "protective orders" were in place which prohibited Gihon's counsel from compelling respondent to appear at their offices. As noted, although respondent purged the contempt, she was still found to have committed misconduct.
In June 2004, nearly one month after the dismissal of 501 LLC's action to stay the Sheriff's Sale, respondent's mother, Dorothy Nash, executed a $1 million credit line mortgage on behalf of 501 Corp. in favor of Norma Vigo, a private lender. 501 Corp. drew $675,000 against the credit line but then defaulted on the mortgage. In December 2006, Vigo commenced a foreclosure action against 501 Corp. Respondent, who appeared as 501 LLC and 501 Corp.'s counsel in the matter, moved to dismiss Vigo's complaint prior to serving an answer. The court denied the motion and directed her to serve an answer. Instead, respondent made four motions for reargument all of which were denied. By decision dated October 22, 2010, the court denied respondent's fourth reargument motion, finding it entirely without merit, and sanctioned respondent $1,500 for engaging in frivolous motion practice; $1,000 was to paid to Vigo as attorney's fees and $500 was to be paid to the Lawyers' Fund for Client Protection. Respondent unsuccessfully appealed the sanctions. The court's October 22, 2010 sanction order was the basis for this Court's finding respondent engaged in frivolous conduct.
At the sanction hearing, respondent continued to take the position that her repeated motions to reargue did not constitute frivolous motion practice. Respondent further testified that she had not paid the $1,000 sanction to Vigo's counsel because no sanction hearing had been held. In addition, respondent testified that, in her view, she was not required to pay the sanctions award to Vigo's counsel because, among other things, they failed to follow proper procedure by entering a judgment against respondent and then serving her with a notice of entry. Respondent testified that, while her appeal of the sanctions award was unsuccessful, Vigo's counsel never pursued collection of the sanctions. Respondent also testified that Vigo's counsel may have added the sanction award to the foreclosure judgment entered against her client.
Here, respondent's misconduct was established based upon five prior court decisions, and included her participation in a fraudulent conveyance to defeat enforcement of a judgment, thereby flouting prior court orders; frivolous litigation and motions; disparaging comments regarding an adversary for which she was twice sanctioned; and a contempt finding for refusing to comply with two subpoenas (which she purged). It is submitted that respondent's misconduct is aggravated by her repeated and steadfast refusal to acknowledge any wrongdoing whatsoever and failure to express remorse.
The record is devoid of any meaningful mitigation evidence.
It is true that at the outset of the litigation which resulted in these proceedings respondent was a relatively inexperienced attorney. But as the Committee rightly argues, while respondent's missteps might have been attributed to inexperience when the litigation commenced, after more than a decade, such argument no longer is persuasive. As the Committee notes, as recently as May 30, 2013, more than 10 years after her admission, respondent was again sanctioned by the Second Department in connection with the litigation at issue. In addition, we agree with the Committee that, unlike here, the cases cited by respondent in support of a censure or shorter suspension involved compelling mitigation, not the least of which was acknowledgment of wrongdoing and remorse, or concerned nonvenal misconduct.
The New York City Bar Association has this profile of the judge/attorney. (Mike Frisch)
A retired attorney convicted of a serious offense is subject to disbarment, according to a decision of the New York Appellate Division for the Third Judicial Department.
Although Dawson has self-certified as retired from the practice of law since 2012, his retired status precludes him from practicing law for a fee and entitles him to a waiver of the biennial registration fees, but does not preclude him from providing legal services pro bono (see Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [g]). His obligation to register as an attorney has continued unabated (see Judiciary Law § 468-a ; Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [a]-[c]) and, in fact, Dawson remains currently registered to date, having last registered in March 2014.
Retirement from practice and resignation from the bar are not synonymous concepts. Resignation from the bar, like admission to the bar, requires an order of this Court and may be accomplished only by sworn affidavit application. Once the application to resign has been granted, the former attorney's name is formally stricken from the roll of attorneys; he or she is thereafter prohibited from practicing law in any respect (compare Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [g]) and becomes subject to stringent notice, filing and record-keeping requirements (see Rules of App Div, 3d Dept [22 NYCRR] § 806.9; see also Judiciary Law §§ 478, 479, 484, 486). Inasmuch as Dawson has not undertaken the steps necessary to effectuate his resignation from the bar, his name remains on the roll of attorneys and he therefore remains subject to the disciplinary authority of this Court.
The offense was a felony DUI. (Mike Frisch)
Wednesday, November 18, 2015
The West Virginia Supreme Court of Appeals has annulled a former prosecutor's license for job-related sexual misconduct, rejecting a Hearing Panel Subcommittee's proposed two-year suspension.
Mr. Clifton lives and works in Marlinton, Pocahontas County, West Virginia. Before he started law school in 2004, Mr. Clifton operated a bar/restaurant, was a police officer, and worked for Child Protective Services, all in Marlinton. Upon successful completion of law school and the bar examination, Mr. Clifton was admitted to the bar on November 5, 2007. Directly following his admission, Mr. Clifton served as an assistant prosecuting attorney for Pocahontas County from November 7, 2007, to January 15, 2011. Mr. Clifton began working for the prosecutor’s office part-time, ultimately shifting to full-time employment before leaving the office in 2011 for private practice.
In August 2012, a criminal investigation of a police officer in Marlinton led the State Police and the Federal Bureau of Investigation (“FBI”) to investigate Mr. Clifton. Mr. Clifton was indicted on two counts of sexual assault in the second degree and two counts of imposition of sexual intercourse on an incarcerated person in the Circuit Court of Pocahontas County.
The criminal charges were dismissed with prejudice but
The [Office of Disciplinary Counsel] obtained a copy of the files concerning the criminal investigation, and using that information, the ODC identified three women who, it determined, engaged in sexual conduct with Mr. Clifton in his office while he served as an assistant prosecuting attorney. The ODC contended that Mr. Clifton’s sexual involvement with these women was unethical, and the Investigative Panel of the [Lawyer Disciplinary Board] detailed the alleged unethical conduct in a statement of charges...
Which led to findings of misconduct
First, with regard to T.S., the HPS found that T.S. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office and that she provided him with sexually explicit photos and videos he solicited while she was on probation and participating in day report [a court-ordered program]...Also with regard to Mr. Clifton’s relationship with T.S., the HPS found that Mr. Clifton provided false information to the ODC when he denied the conduct alleged in the indictment...
Second, the HPS found that Mr. Clifton attempted to require K.M. to perform oral sex on him when she went to his office at the prosecutor’s office about her son’s criminal case...
Third, the HPS found that L.B. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office after she approached him with an inquiry about a criminal matter while she was both a defendant and a victim.
T.S. was on probation and unhappy with the court-ordered program. He reached out to her
After T.S. began Day Report, Mr. Clifton sent her a message on Facebook, a social networking website, regarding a picture she had posted of herself. Mr. Clifton testified, “I told her I really liked this one photo of her backside toward a camera where she was wearing only panties and I said ‘Yeah, I really like that one.’ And she said ‘Well, it looks a lot better now.’ And I said, ‘You’ll have to show me.’” Both T.S. and Mr. Clifton stated that following the messages regarding the picture, the two began an ongoing correspondence. T.S. testified that she told Mr. Clifton that she was upset about having to take part in Day Report. She testified, “I didn’t want to be on day report and he told me that he could maybe help me.” According to T.S., in response to her displeasure with Day Report, Mr. Clifton told her “to stop by [his office at the courthouse] sometime.”
She did. Several times.
The other victims had been in sexual relationships with him prior to his becoming an attorney; both were pressured to give him oral sex because of his position.
The court found the violations and imposed annullment
It is apparent from the record before us that Mr. Clifton knowingly and intentionally violated a duty to his former client, the State. By engaging in sexual relationships with T.S., K.M., and L.B.—all of whom were, at some point during the time Mr. Clifton was an assistant prosecuting attorney, a victim, a defendant, or seeking help for another defendant—Mr. Clifton created a conflict of interest with his client. This same activity also violates his duty to the public and the legal system. As a public officer charged with the prosecution of criminal cases, abusing his position by engaging in sexual relationships with T.S., K.M., and L.B. impacted the fair administration of justice. Mr. Clifton acknowledged that his conduct, at least as far as the sexual banter and explicit photograph exchanges with T.S. are concerned, created “an inescapable negative reflection” on the legal profession. Finally, by providing false information to investigators regarding his relationship with T.S. and then by providing false information to the ODC regarding the recording of the sexual encounter between himself and K.M., Mr. Clifton violated a duty to the legal system and to the profession.
The amount of real injury in this case is great. As the HPS aptly surmised, it is not likely that the women who made the allegations against Mr. Clifton will be trusting of lawyers and the legal system in the future. By using his position as assistant prosecuting attorney to elicit sexual behavior from vulnerable women—women involved in criminal matters and/or seeking his help—he has damaged the prosecutor’s office in Pocahontas County and the legal profession on the whole.
The ODC charges are linked here.
The West Virginia Record had a report on the civil case filed by T.S. against the attorney and a police officer. (Mike Frisch)
The web page of the Idaho State Bar reports on a sanction imposed for multiple DUIs
On July 19, 2013, the Idaho Supreme Court entered a Disciplinary Order suspending Mr. Kime for one year, with all one year withheld, based on Mr. Kime’s felony conviction for driving under the influence of alcohol (“DUI”). The Disciplinary Order placed Mr. Kime on disciplinary probation through April 3, 2015, and required that he comply with the conditions of his criminal probation, which prohibited any consumption of alcohol. Thereafter, Mr. Kime consumed alcohol in violation of the terms of his criminal and disciplinary probations. Consequently, on May 8, 2014, the Idaho Supreme Court entered a Disciplinary Order imposing the one-year suspension that was previously withheld.
In November 2015, while still on criminal probation, Mr. Kime was stopped by law enforcement while driving his vehicle after consuming alcohol. He was charged in Kootenai County with felony DUI. The Court subsequently determined the traffic stop was illegal and the criminal charge was dismissed. As part of the resulting disciplinary case, Mr. Kime admitted that his conduct violated I.R.P.C. 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).
The Disciplinary Order provides that twelve (12) months of Mr. Kime’s twenty-seven (27) month suspension is withheld subject to the terms of his two (2) year probation upon reinstatement, with terms including the following: avoidance of any alcohol or drug-related criminal acts or traffic violations; a program of random urinalysis, with provision that if Mr. Kime tests positive for alcohol or other tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed; and if Mr. Kime admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during his period of probation, the twelve (12) month withheld suspension shall be imposed.
Tuesday, November 17, 2015
The Illinois Supreme Court has ended the much-publicized disciplinary matter involving attorney Paul Weiss with an order of disbarment.
We had this story on the April 2014 hearing board report.
The hearing [board] has proposed a 30-month suspension for a series of sexually harrassing acts against female employees, a neighbor and a stranger.
Our earlier post links to and quotes the findings of behavior set forth in great detail that is truly horrific.
Given the nature and extent of the acts against subordinate lawyers, staff and even neighbors described in the hearing board report, I boldly predicted
I suspect this will end in a disbarment.
The Review Board had also recommended a lesser sanction of 30 months suspension over the dissent of Richard Green
While I agree with my colleagues with respect to their agreement that the findings of the Hearing Board are not against the manifest weight and their analysis of the applicable law, I must disagree as to the recommended sanction. Respondent engaged in similar conduct in the 1990's, was disciplined and was to get treatment. Rather, he continued his bad behavior and in fact escalated it. Nothing in the record shows that he will not continue with the misconduct. Clearly this behavior leads the profession into disrepute. I would recommend that Respondent be disbarred.
The prior misconduct was described by the Review Board
The Hearing Board correctly considered his prior discipline in aggravation. Factors in aggravation revealed that, in 1993, while 26 years old, Respondent attended a high school girls' volleyball game where he first saw a 17 year old girl he did not previously know. In November and December of 1993, Respondent made at least six obscene telephone calls to the girl, resulting in his arrest in February 1994 and conviction in March 1994 for telephone harassment. In addition, between November 1993 and April 1994, Respondent made six to eight obscene phone calls to another woman, a fellow associate working with him at a Chicago law firm. From December of 1994 to January 1995, while on supervision for the telephone harassment conviction, Respondent made at least four obscene phone calls to a woman who had been a paralegal at the firm where he worked. During March 1993, again in the Fall of 1993, and in September 1994, Respondent made a number of obscene phone calls to yet another woman.
The court sustained the Administrator's exception as to sanction.
The petitions by the Administrator of the Attorney Registration and Disciplinary Commission and respondent Paul M. Weiss for leave to file exceptions to the report and recommendation of the Review Board are allowed, and respondent Paul M. Weiss is disbarred.
CBSChicago noted that eBossWatch named him one of 2014's Worst Bosses in America.
The Illinois State Bar Association has summaries of the disciplinary orders entered on November 17 including another sex offense disbarment
Mr. Hedges, who was licensed in 2005, was disbarred on consent. He pled guilty to a Michigan-based charge of attempted criminal sexual conduct. In his plea, he admitted that he attempted to engage in sexual conduct with an individual by using force or coercion, but failed in the perpetration of the sexual conduct. He was sentenced to a 30-day term of incarceration and a 24-month period of probation.