Monday, September 18, 2017

A Contentious Hearing

As is its usual custom, the New Jersey Supreme Court followed the recommendations of the Disciplinary Review Board and imposed censure and reprimand on co-respondent attorneys. 

Notably, the court-appointed Special Master had proposed disbarment for the censured attorney and a one-year suspension for the reprimanded one.

Obviously an unusual case.

A group of former employees of Prudential Life Insurance Company (Prudential) retained Leeds, Morelli and Brown (LMB) to sue Prudential for discriminatory practices (the Prudential litigation). Although the case settled, as part of the settlement Prudential paid an "advance" to the plaintiff’s law firm, LMB, without notice to the plaintiffs. Alleging that Prudential "bought off" their counsel, the plaintiffs then retained respondents to sue both their prior counsel and Prudential. Lederman v. Prudential Insurance Company of America, Inc. (Lederman). In turn, LMB filed a collateral lawsuit against respondents, personally, as well as two lawsuits against respondents’ former and current clients.

The allegations (sustained by the DRB) involve conflict of interest in the resolution of the collateral litigation.

But or more prurient interest was the hearing before the special master, which involved the censured attorney's departure by ambulance and 10-day absence, the denial of repeated attempts by the attorney's counsel to withdraw, a vigorous and contentious motions practice and accusation of bias on the part of the special master.

None of which made the DRB sympathetic to the censured attorney.

On counsel's attempts to withdraw

The presenter had objected to [counsel] Hill’s withdrawal because, in her view, Hill served as a "buffer" for Roper. The record  demonstrated that Roper  failed to act in accordance with the appropriate  courtroom decorum.  When Roper was present,  her conduct repeatedly was disruptive and disrespectful. For example, she shouted that a particular ruling was "bull[@#$%]" and told the special master that "the blood will be on your hands" after he denied her motion for a stay.

And bias

Respondents maintain that the special master was biased and that he was acting as the prosecutor during the hearing. The record simply does not support this conclusion; there was no reasonable basis to conclude that he was unfair or biased. To the contrary, the record demonstrates that respondents and Hill did everything possible to hamper the progress of the case, which included accusing the special master of bias and of acting as a prosecutor. 

The DRB on the censure

Respondent’s conduct during the hearing, however, was egregious. She failed to appear for the majority of hearing dates, despite her clear obligation to do so. When she was present, she was disrespectful and disruptive, and engaged in repeated outbursts. Further, both she and her counsel defied the special master’s order that they appear for the final hearing dates. Although Roper was directed to appear and was even given a second opportunity, she chose not to do so. She made a conscious and ill-considered decision to disobey a court directive. The proper course would have been to attend the hearing, and note her continuing objection. She chose instead to flout the special master’s authority and thus, the authority of the Court. For this significant aggravating factor, we determine to impose a censure.

(Mike Frisch)

September 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"The Eyes, The Smile The Mind" Leads To "Your Wife Called Me"

The North Carolina Office of Counsel publishes a quarterly report that contains a wealth of information such as this case summary

It is alleged that [attorney] Averitt, of Cary, forged a letter purporting to be from the Augusta National Golf Club, falsely represented that his employer had eight tickets to the Masters Golf tournament, and sold the fictitious tickets on Craig’s List. Because Averitt alleged that he is disabled, the disciplinary proceeding was stayed and Averitt was transferred to disability inactive status. The DHC entered a consent order concluding that Averitt is disabled and continuing his disability inactive status. This proceeding will remain stayed until Averitt successfully petitions for transfer back to active status.

Another reported disposition involves a five-year suspension for sex with a client who was engaged in litigation with her ex- boyfriend and that started with text messages

[Attorney] Braswell and J.M. had several text message exchanges before he met with her on 24 November 2015 to include the following exchanges:

a. 11/19 message from Braswell to J .M.: "Thinking of you. Is that ok?"

b. 11/19 message from J.M. to Braswell: "Why do you think you need to ask?"

c. 11/19 message from Braswell to J.M.: "Then you have also figured out that my interest in you goes beyond helping you out of your current situation. But if you want me to stop there then you should tell me now. Not that I would stop but I would know your position."

d. 11/19 messages from J.M. to Braswell: "I would like to get to know you. The worst thing that can happen for either of us is we made a new friend. I feel that if don't leave myself open I will continue to live with regret!" "And you are supposed to be working!"

e. 11/19 message from Braswell to J.M.: "I couldn't agree more. I think we share a lot of mutual interests and a relationship would only enhance our potential. "

f. 11/19 message from J.M. to Braswell: "I would like to know what I did do to capture your attention. I did not get the impression many women distract you like this. I may be completely off base."

g. 11/19 message from Braswell to J.M.: "You are very perceptive. If you must know ... the eyes, the smile the mind"

h. 11/20 message from J.M. to Braswell: "Just got to the hotel. You need to watch out, someone might think you like me!"

i. 11/20 message from Braswell to J.M.: "And the problem would be ... "

j. 11/20 message from Braswell to J.M.: "I think you are exactly my type .. ,[sic] expressive, energetic, confident, sexy and fun"

k. 11/21 message from Braswell to J.M.: "Good morning. Woke up thinking of you. Taking the kids to the kiddy museum later today. When is the first soccer match"

i.  11/22 message from Braswell to J .M.: "I look forward to making you smile and laugh. That is the least 1 can do to thank you for adding value to my life."

m. 11/23 message from Braswell to J.M.: "; .. Remember try not to look as good as you did before otherwise I can't promise that I won't try and kiss you."

Lunch at a Chinese restaurant led to Ddnner and sex followed shortly thereafter.

Communications between J.R.  and the attorney 's wife also figure int the story.

J.M. sent the following text messages to Defendant after she was contacted by his spouse

a. "Hey, your wife called me. I told here [ sic] I had the kids in the car, which I did. Guess you are going to have a shitty night, I am calling her back shortly. She has a lot of questions"

b. "Just to let you know I am filing a complaint with the board. You are unethical!"

The Goldsboro News-Argus reported the suspension. (Mike Frisch)

September 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 16, 2017

Real Politics And Bar Politics

The Baltimore Sun (and many other news outlets) carried this story last week

An Anne Arundel County judge has ordered Maryland officials to investigate a complaint against three lawyers accused of deleting emails while representing former presidential candidate Hillary Clinton, overruling objections from lawyers representing the state.

Circuit Court Judge Paul F. Harris Jr. ruled Monday after a short hearing in Annapolis that the Attorney Grievance Commission and Office of Bar Counsel Maryland Office of Bar Counsel must investigate attorneys David E. Kendall, Cheryl D. Mills and Heather Samuelson. All three are licensed to practice in Maryland and could face professional sanctions if the commission determines there are guilty of misconduct.

Ty Clevenger, a Texas attorney who lives in New York, filed the complaint, saying they deleted thousands of emails related to a private email server Clinton used during her time as Secretary of State. He argued they engaged in misconduct by destroying evidence.

Clevenger said he is writing a book on political corruption and called the Clinton email scandal a case study of politically affiliated attorneys receiving preferential treatment. Clevenger’s complaint seeks to have them disbarred in Maryland. He unsuccessfully filed a similar complaint with the Washington, D.C., bar.

Clevenger received media attention for his work in Texas, assisting in the indictment on fraud against of Texas Attorney General Ken Paxton, a Republican in office since 2015.

“My thesis is: If you are a politically prominent attorney, you are held to a different standard,” Clevenger said after the hearing. “I’ve seen this in Texas, California … I choose this case because I knew people would pay attention.”

Samuelson, Mills and Kendall all could not be reached for comment.

The commission is based in Annapolis, which puts any appeal of their decision before the Anne Arundel court.

The bar counsel decided not to investigate this case and has that discretion when they deem cases to be frivolous, Rhode told the judge.

Harris asked her to explain how the case was frivolous, but Rhode said she could not do so without releasing confidential information. Rhode and the attorney generals office declined to comment due to ongoing litigation.

Clevenger said it was the first time his Maryland complaint was labeled as frivolous. The bar counsel initially responded to Clevenger’s complaint by saying he has “no personal knowledge of the allegations presented in your correspondence, nor are you a personally aggrieved client or party possession material information that would assist this office in reviewing such allegations,” according to court documents.

The bar counsel dismissed Clevenger’s complaint, prompting him to ask a judge to force the bar counsel to investigate the allegations.

Leading up to Monday’s hearing the Maryland Attorney General’s Office filed a motion to dismiss the case, which was denied by Judge Ronald A. Silkworth. The judge ruled Clevenger had a right to request the investigation as Maryland law allows any person to file a bar grievance.

Clinton’s emails have been an ongoing story since her run for president against Donald Trump in the 2016 election.

Republicans have used the emails as a rallying cry. When it was discovered that 33,000 emails were deleted — which is the impetus for this bar grievance — Republicans pointed to it as proof that Clinton was abusing her power while secretary of state.

The FBI ultimately opened an investigation into Clinton’s use of the private server. During the investigation, Clinton pointed to the use of personal email by Secretary of State Colin Powell as a precedent. But the comparison wasn’t exact — Clinton maintained a private server in her home, Powell did not, according to media reports.

Democrats have railed against the investigation against Clinton, calling it politically motivated and unfair.

During the investigation, Clinton said she didn’t knowingly send or receive classified information on the private server. The FBI ultimately ruled that while Clinton did receive and send classified information, she didn’t knowingly do so.

Former FBI director James Comey released a statement on July 5, 2016 saying Clinton’s administration was careless but the email usage didn’t rise to pursuing charges.

I have a number of thoughts here. 

First, I am far from certain that a circuit court judge has the authority to order the Bar Counsel to investigate any particular complaint. I think that is a dangerous precedent.

Second, Clevenger is correct that who you are, as opposed to what you did, is a highly consequential factor in bar discipline.

Try prosecuting a well-placed partner at a prominent firm for billing irregularities and see how it goes if you need to be convinced of this fact.

Third, bar discipline is an ill-suited vehicle to address the conduct of prominent political figures across the political spectrum.

Do the names Jay Bybee, John Yoo, David Addington, Monica Goodling (slap on the wrist in Virginia) et al ring a bell? 

Efforts to initiate a bar investigation against Eric Holder over the  Fast & Furious contempt went nowhere. 

And how is that complaint to the D.C. Bar against KellyAnne Conway going? 

Wouldn't it be nice if all bar proceedings - including dismissal letters - were made public?  

Then, the supposedly-protected public would be better able to judge whether the systems that  regulate attorneys are legitimate and free from inappropriate influences.

(Mike Frisch)

September 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 15, 2017

Losing Hope In Iowa

A $20,000 loan from estate funds drew a two-year suspension of an attorney by the Iowa Supreme Court.

In this disciplinary action, Powell is accused of obtaining a $20,000 loan from the administrator of an estate during the time he served as the designated attorney for the estate in violation of the rules of professional conduct. The administrator was the beneficiary of a $40,000 life insurance policy on the life of the decedent in the estate. The insurance company paid the insurance proceeds to Powell, and he deposited them in his law firm trust account. At the request of Powell, the administrator orally agreed to loan Powell $20,000 of the proceeds. Powell withdrew the loan proceeds from the trust account before a written loan agreement was executed. The written agreement subsequently prepared by Powell provided for the law firm to repay the loan in monthly installments at ten percent interest. The amount of each monthly payment was to be based on an unspecified amount of firm receipts received during the preceding month. Powell claimed he asked the administrator if he wished to seek independent counsel before agreeing to make the loan. The administrator denied any request was made.

Powell subsequently made sporadic and minimal monthly payments. The administrator eventually filed a breach-of-contract action. Powell settled the lawsuit by agreeing to pay $25,000 to the administrator in monthly installments of $1500.

The sanction was affected by prior discipline

we are confronted with a significant aggravating factor in this case. In addition to client harm, the pattern of unethical conduct by Powell over the last decade raises a serious and fundamental question of his fitness to practice law. See Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004). We begin to lose hope that lawyers will ever understand and meet their ethical obligations when they repeatedly engage in unethical conduct. Id. At some point, public protection and the reputation of the profession justify the revocation of a license to practice law. Powell is approaching this point. He continues to fail to honor the ethical boundaries of the profession. However, we have not adopted a three-strikes approach to revocation. The current discipline will be the third for Powell, but it involves a single incident. Unlike in Beckman, we are not faced with a new series of unethical conduct that justifies losing hope that he could practice law in an ethical manner again. Cf. id. His background of discipline justifies a sanction greater than recommended by the commission, but not revocation. 

Justice Wiggins dissented noting his position the last time around

I once again dissent to any sanction short of revocation. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell (Powell II), 830 N.W.2d 355, 360–64 (Iowa 2013) (Wiggins, J., dissenting) (calling for the revocation of Powell’s license). For the last twelve years, Powell has managed to use his clients’ funds contrary to our ethical rules. His extensive disciplinary history is as follows.

In 2005, Powell received a private admonition for charging an excessive fee to a client.  Powell II, 830 N.W.2d at 356 (majority opinion). In 2007, we suspended Powell’s license to practice law for six months because of his numerous and persistent unethical actions involving the collection of fees from clients. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Powell (Powell I), 726 N.W.2d 397, 408 (Iowa 2007). In 2010, Powell received another private admonition for failing to make an accounting before withdrawing fees from his trust account. Powell II, 830 N.W.2d at 356. In 2011, we temporarily suspended Powell from practicing law for seven months and appointed a trustee to take control of his trust account in response to his various trust violations. Id. at 356, 359–60. At the time, the trustee determined his trust account was short approximately $43,000. Id. at 356. In 2013, we imposed a three-month suspension for the same trust account violations that led to his interim suspension in 2011. Id. at 359–60.

Within nine months of his most recent reinstatement, Powell once again flouted our rules of professional conduct. It is apparent to me that Powell’s practice of law does not generate enough income to support his practice or his lifestyle...

Although he did not outright convert his clients’ funds, he found a way on three separate occasions to access these funds unethically. Furthermore, he appears not to have learned anything from his prior disciplinary proceedings. For the protection of the public, and the integrity of the bar, I would revoke his license.

(Mike Frisch)

September 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

We Got Trouble (In Iowa City, Not River City)

The Iowa Supreme Court has suspended an attorney who took loans from a client

In an effort to salvage his troubled real estate investments, an attorney borrowed money from certain longtime clients. The attorney failed to advise the clients to obtain independent counsel, failed to obtain their written informed consent, and continued to represent those clients after borrowing the money. The attorney also did not disclose his perilous financial situation. The loans eventually totaled $177,000 in principal amount, none of which has been repaid.

There was a stipulation on the facts

In this case, all three branches of the rule—subparts (1), (2), and (3)—were violated. The loan terms were not fair and reasonable. Lynch went to the Bells because he needed immediate money and could not get it elsewhere. The interest rates were low for the risk involved, as subsequent events have proved. We agree with the commission that Lynch did not advise the Bells orally of the need to obtain independent counsel, let alone in writing as the rule requires. Informed consent in writing was not obtained. These rule violations were not just technical.

The stipulated facts and exhibits and the hearing record leave no doubt that Lynch did not convey the full extent of his financial distress to the Bells.

The court also found a concurrent conflict of interest.

Sanction

We conclude that Lynch’s license should be suspended indefinitely without possibility of reinstatement for six months. The misconduct here was more serious than that involved in Pederson and Willey. To bail out his collapsing real estate investments, Lynch turned to his longstanding clients, serially obtaining loans that undoubtedly no commercial lender would have made. Lynch provided no meaningful disclosures to his clients of the sort a commercial lender would have required and instead told them he needed the money right away. If Lynch had done even part of what rule 32:1.8 requires, in all likelihood the loans would never have occurred. Through his ethical violations, Lynch took advantage of his clients for his personal benefit. As the commission put it, “Respondent’s misconduct has made wholly vulnerable the relationship between the lawyer and the client.”

Still, the Board does not contend, nor has it attempted to prove, that Lynch engaged in fraud. The violations, although serious and recurring, had a single starting-point and were “uncharacteristic” when measured against the attorney’s lengthy legal career.

And

To establish his eligibility for reinstatement, Lynch must also demonstrate that he has either repaid the Bell loans, entered into agreed-upon plans with the Bells for repaying the loans (and be current on those plans), or filed bankruptcy in order to discharge or restructure the loans.

(Mike Frisch)

September 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Iowa Revokes License Despite Recovery From Substance Abuse

The Iowa Supreme Court revoked an attorney's license for misconduct 

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint against an attorney alleging multiple violations of our ethical rules including the misappropriation of funds in his representation of three clients. The Board also alleged the attorney violated ethical rules arising from his conviction for domestic abuse assault. The Iowa Supreme Court Grievance Commission (commission) found eight violations of our ethical rules and recommended a three-month suspension. For the reasons outlined below, we revoke the attorney’s license to practice law in the state of Iowa.

The assault

On November 11, 2015, Guthrie was arrested for domestic abuse assault for assaulting his girlfriend. On May 9, 2016, Guthrie pled guilty to domestic abuse assault in violation of
Iowa Code section 708.2A(2)(a)(2015). The court entered an order for deferred judgment and probation.

As to the practice-related misconduct

While it may be debatable whether Guthrie misappropriated client funds involving Dizdarevic and Petrick, it is clear that Guthrie misappropriated client funds in the Vogel case. In Vogel’s case, Guthrie was advised on October 16, 2015, that the appeal had been dismissed. At that time, Guthrie knew there was no remaining work to be performed on the appeal.  However, Guthrie continued to bill Vogel for unperformed work for weeks thereafter. Even when questioned by staff about his billing practices, Guthrie simply stated that he doubted Vogel would notice or ask for copies of the work for which he was billed.

But Guthrie not only continued to bill Vogel for unperformed work for weeks following the voluntary dismissal of the appeal, he also directed the transfer of client funds from Vogel’s trust subaccount to the firm’s general account. Guthrie later personally withdrew client funds for unearned fees. Additionally, Guthrie acted knowingly when withdrawing the client fees. Guthrie admits that he authorized the transfer of the client funds to “maintain the illusion that [he] was competent and that [his] numbers looked normal to [his] partners for that month.” And clearly, Guthrie knew that he had not performed the work or earned the fees.

There is also a clear acknowledgement by Guthrie of the misappropriation and conversion of client funds contained in the stipulation of facts and rule violations he signed.

The attorney had no "colorable claim" to the Vogel funds.

we do find it necessary to make note of several facts. First, the conduct giving rise to the ethical violations occurred over a period of approximately one month during a time when Guthrie’s substance abuse reached its peak. Second, since the violations, Guthrie took immediate steps to address his substance-abuse issues. Guthrie sought treatment and has successfully maintained his sobriety. Finally, there have been no further violations of our ethical rules since that time. Guthrie should be commended for addressing his substance-abuse issues and remaining sober. However, due to Guthrie’s misappropriation of client funds, we find that revocation is the appropriate sanction.

(Mike Frisch)

September 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Dismissal Appropriate For De Minimus Fee Misconduct

The Wisconsin Supreme Court agreed with a referee's recommendation and dismissed disciplinary charges against an attorney in light of an earlier decision 

While the OLR and Attorney Rajek litigated this disciplinary proceeding, we issued our decision in Rajek I. That matter also involved several counts of misconduct related to Attorney Rajek's fee agreement. We concluded that Attorney Rajak had committed five of the six alleged violations of the  Rules of Professional Conduct but we opted to impose no discipline and we reduced the costs he was required to pay. ..

Our decision in Rajek I is certainly relevant to the two alleged counts of misconduct involving Attorney Rajek's fee agreement. Reasonable minds could differ as to whether the other two counts involving refusal to submit to binding arbitration for a lengthy period of time and delay in cooperating with the OLR could warrant prosecution and discipline. However, we acknowledge that the OLR may, in its discretion, cease prosecution if, as here, the OLR determines that the charges at issue are de minimus. We are satisfied with the OLR's explanation for its decision to stipulate to dismissal of the pending complaint and its exercise of discretion in this matter. Accordingly, we adopt the referee's report, accept the stipulation, and dismiss the complaint. The OLR did not seek restitution and we do not order restitution in this case. Finally, because there is no finding of misconduct, we do not impose costs upon attorney Rajek.

(Mike Frisch)

September 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Mel Hirschman Remembered

The Baltimore Sun has a nice obituary tribute to my friend Mel Hirshman

Melvin Hirshman, who was bar counsel for the Attorney Grievance Commission of Maryland for nearly three decades, died Monday of lymphoma at Anne Arundel Medical Center. He was 85.

“He handled the job so very, very well. It’s a difficult job, and you have to make important decisions ... for the entire bar, bench and the justice system,” said Joseph F. Murphy Jr., former chief judge of the state Court of Special Appeals, who later served as a Court of Appeals judge from 2007 until retiring in 2011.

“Mel had the perfect talent and temperament for the job. He handled a very difficult job at times so very well,” said Judge Murphy, who now is a member of the law firm of Silverman, Thompson, Slutkin & White LLC. “He wanted to help lawyers avoid problems and was generously proactive.”

“He was an institution in and of himself as bar counsel. He served the commission well for so many years,” said Linda Lamone, who has been a member of the Attorney Grievance Commission for 22 years and is now the currently chair.

He obtained a bachelor’s degree in history in 1952 from American University and his law degree three years later from the Washington College of Law at American University.

He served in the Navy from 1955 until his discharge in 1961 as a corpsman at Bethesda Naval Hospital.

Mr. Hirshman was admitted to practice law in the District of Columbia and in 1965 became a member of the Maryland bar. He established a general law practice in 1956 in Adelphi.

Because of the nature and variety of his legal practice and membership in lawyer-ethics organizations, Mr. Hirshman was appointed in 1981 by the Court of Appeals as bar counsel to the Attorney Grievance Commission of Maryland. He succeeded the late L. Hollingsworth “Holly” Pittman, the first bar counsel after the commission was set up by the Court of Appeals in 1975.

Mr. Hirshman supervised a staff of eight attorneys, six investigators, two paralegals, an office manager and 10 administrative personnel.

The role of the bar counsel is to investigate complaints against Maryland’s lawyers and, if necessary, bring disciplinary action.

One lawyer used to write letters to him “addressed to Gestapo,” Mr. Hirshman told The Daily Record in a 2009 interview.

“I don’t take any of that personally. It’s just something that has to be done because the object is to protect the public,” he said.

“I always felt that a lawyer should not disgrace the diploma he has on his wall and, more important, that he not harm the clients that he learned in school he is supposed to help,” Mr. Hirshman told The Baltimore Sun at the time of his appointment.

“When the bar was smaller, most everyone knew everyone else, and there was a tendency among lawyers to protect one another,” Mr. Hirshman told The Sunday Sun Magazine in a 1982 interview.

“I don’t think that’s true any more. With a greater number of members of the bar, there’s more impersonality and it’s easier to find one lawyer willing to file suit against another,” he said.

“He spent a lot of time engaging attorneys in the field, making sure the rules ... of the law were followed,” Ms. Lamone said. “He was a no-nonsense type of guy for sure, and members of the commission liked and respected him.”

Marianne J. Lee has been executive secretary to the commission since 2001 and considered Mr. Hirshman a mentor.

“Mel had a big passion for the job as bar counsel and was the first person at work and the last to leave,” Ms. Lee said. “He had a real and genuine interest in lawyers, and he looked at them as people,” she said. “He was honest, had lots of integrity and was fair. He had a lot of pride in his work. He was very hardworking and a class act.”

“About 67 percent of complaints [against attorneys] are screened out because they do not violate that state’s rule of professional conduct,” Mr. Hirshman told The Capital newspaper of Annapolis in a 2007 interview. “Many clients are just not happy with the outcome of their cases and take it out on their attorney.”

In 1998, The Sun reported that “even lawyers who were arrested and prosecuted by state’s attorneys — and convicted in criminal court of stealing huge sums from their clients — rarely have to serve much time in prison. Instead, they are ordered to repay what they’ve stolen, but often fail to do so.

“The second chances granted by the system of discipline can have disastrous consequences for people who unwittingly hire those lawyers.”

Mr. Hirshman, who was quite familiar with repeat offenders, told The Sun in the interview, “My favorite expression, and my assistants know it, and everyone else knows it, is: If you’ve got a bad lawyer, he will be back.”

But Mr. Hirshman said in a 2004 interview with The Daily Record that financial irregularities remained the biggest cause of disbarment for Maryland lawyers.

At times, Mr. Hirshman could exude a somewhat gruff exterior.

“Form my perspective, Mel was a lovable, crusty character, who reminded me of my father: astute, fair and always reaching to forge a consensus,” said Jeffrey P. Ayres, an attorney with Venable LLP., and a longtime member of the commission.

Mr. Hirshman retired in 2010.

“The commission was the love of his life, next to his family,” his wife said.

The Annapolis resident enjoyed playing tennis, listening to classical music and was a “voracious reader,” his wife said. He was also a fan of Broadway musicals and liked taking courses at Anne Arundel Community College.

He was a member of Kneseth Israel Synagogue in Annapolis, where funeral services were held Wednesday.

In addition to his wife, he is survived by two sons, Robert Hirshman of Laurel and Jefferson Hirshman of Washington; two daughters, Tiffany Jackson of Millersville and Kimberly Michero of Altadena, Calif.; and eight grandchildren.

fred.rasmussen@baltsun.com

(Mike Frisch)

September 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred For Wire Fraud

A federal fraud conviction has led to an attorney's disbarment by the South Carolina Supreme Court

While a partner in a Myrtle Beach law firm, McAdams joined with Freeman and Walker to create an entity known as Global Holdings Group, LLC (GHG). McAdams and his co-defendants purported to engage in international financial investments and solicited funds from wealthy individuals for high-yield, unregulated transnational investment opportunities. McAdams used his status and position of confidence as an attorney to identify and target wealthy individuals for solicitation of investment opportunities, while also bolstering the credibility of GHG. During the course of the enterprise, McAdams became aware that the investments were fraudulent and that the solicited funds were not being used as promised, but he continued to use his position as an attorney to solicit funds for GHG. Rather than engaging in any investment transactions, McAdams and his co-defendants used the solicited funds to pay for personal expenses and to make lulling payments to previous investors in an effort to perpetuate the fraud.

Eventually, a federal investigation ensued, and in 2014 McAdams was charged with three counts of wire fraud, one count of wire fraud conspiracy, and one count of international money laundering. McAdams subsequently pled guilty to the one count of wire fraud conspiracy in exchange for dismissal of the remaining charges. As conditions of the plea deal, McAdams agreed, inter alia, to further cooperate with the Federal Government in the prosecution of his co-defendants, and to pay restitution totaling $3,327,494.11.

He defaulted on the bar charges

Given the nature and magnitude of McAdams' misconduct, his lack of participation in the disciplinary process, and absence of any mitigating factors, we find disbarment to be the appropriate sanction, not retroactive to the date of interim suspension.

(Mike Frisch)

September 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 14, 2017

Alcoholism And Upskirt Photography

The South Carolina Supreme Court imposed a suspension of nine months with monitoring for two years of an attorney charged with upskirt photography. 

The story

In August 2016, respondent was arrested and charged with voyeurism pursuant to S.C. Code Ann. § 16-17-470(B) (2015) after he used a cell phone to take a picture up a woman's skirt in a grocery store. He was 56 years old at the time. Respondent failed to inform the Commission on Lawyer Conduct in writing within fifteen days of the arrest. Respondent represents he reviewed the rule regarding self-reporting an arrest and consulted with an attorney, but concluded he did not have a duty to self-report.

In January 2017, the charge was remanded to the municipal court contingent upon respondent pleading guilty to assault and battery, third degree. The following month, respondent pled guilty as agreed and was sentenced to pay a fine of $776.

By way of an affidavit in mitigation, respondent states he is an alcoholic in active recovery and attends Alcoholics Anonymous (AA) five to seven times a week. Respondent states he had been sober for approximately 235 days as of the date of the affidavit - May 15, 2017. He also attends a follow-up care program at Coastal Recovery Center where he is completing their intensive outpatient treatment program. He has provided a letter from the Center regarding his continued participation in outpatient treatment and stating respondent appears to be committed to "life-long recovery in abstinence based recovery principles."

Respondent explains that he progressed from being a social drinker to an alcoholic in 2013 and began attending AA "off and on" at that point, with some periods of  sobriety, including one twenty-month period. At the time, he was living in Northern Virginia and had the support of sober friends and an AA sponsor. Respondent states he was "highly successful" while working in the Northern Virginia/DC area where he "excelled" in positions with Westlaw/Thomson Reuters. However, when Thomson Reuters downsized, respondent lost his job. He took and passed the Virginia bar examination and established a solo practice in Northern Virginia, while maintaining his license to practice law in South Carolina.

However, in August 2015, respondent moved from Virginia to Myrtle Beach to care for his elderly mother. He took a job with a criminal defense firm, but left their employ in January 2016. Respondent neglected to participate in AA after he relocated and soon relapsed, "culminating with binge drinking in the summer of 2016." At his family's insistence, he scheduled himself to be checked in to an inpatient treatment facility. However, on the day he was scheduled to report to the treatment facility, he was charged with the crime that is the basis of this disciplinary action. Respondent was highly intoxicated at the time of the incident and when he checked into the treatment facility later that day. He completed a twenty-eight day inpatient program followed by two months of intensive outpatient treatment. Respondent has submitted a letter from the treatment facility regarding his participation in treatment while hospitalized.

Respondent notes that in nearly thirty-four years of practice as an assistant solicitor and a private practitioner, no client or any other party has lodged any type of complaint against him relating to his work.

In 1997, this Court imposed a four month suspension on respondent after he pled guilty to simple assault and battery for pulling down a woman's bathing suit while she was sunbathing at the beach in 1994. In re Parrott, 325 S.C. 162, 480 S.E.2d 722 (1997). The opinion notes respondent had been involved in a similar incident in 1989, but was not prosecuted. Respondent covered his face in both incidents and fled when the women put up a struggle. He had no prior connections with either woman. In mitigation, respondent offered the testimony of a psychiatrist who testified respondent was suffering from "an adjustment disorder with mixed emotions and problems with conduct." The psychiatrist opined a "psychosexual development arrest" caused the assaults. It was also the psychiatrist's opinion respondent was "developmentally arrested at the adolescent stage and his acts showed the type of sexually immature behavior normally associated with that stage." The psychiatrist believed respondent's developmental problems occurred because of family problems when respondent was growing up, that the acts would not recur, and that respondent was responding well to treatment and counseling.

The bathing suit suspension is linked here. (Mike Frisch)

September 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Lawyers And Loans In Iowa

The Iowa Supreme Court has a blogger-friendly policy of announcing on Thursdays the decisions expected to be filed on the following day.

Back from its summer hiatus, the court has announced that four bar discipline matters are slated for release tomorrow.

The Des Moines Register had information about two of the cases

Two Iowa lawyers accused of conflicts of interest and failing to pay back loans from clients could have their law licenses suspended.

The Grievance Commission of the Iowa Supreme Court is recommending license suspensions for attorneys Rodney Powell, of Clive, and Lawrence L. Lynch, of Iowa City.

According to court records, Lynch has been a practicing attorney since 1971. For more than 30 years he had an attorney-client relationship with Darrel and Carolyn Bell. In 2008, Lynch called the Bells in Florida where they were vacationing and asked them for a $90,000 loan to be secured by property he owned in Iowa City. The Bells agreed and borrowed the $90,000 from a Columbus Junction bank, then loaned the money to Lynch, according to court documents.

In March 2010, with the $90,000 loan still outstanding, Lynch secured a $17,000 loan from two other clients of his law office — the Bells’ son and daughter-in-law, Tom and Mary Teresa Bell, according to court documents.

 

In February 2012, Lynch borrowed an additional $70,000 from Darrel and Carolyn Bell, while continuing to serve as their attorney.

In 2014, Lynch reportedly told Carolyn Bell the property he used to secure the $90,000 loan was of insufficient value to pay off the delinquent taxes and the three mortgages on the parcel, and he attempted to have her release her lien on the property so it could be sold.

At around that same time, Carolyn Bell contacted another lawyer for advice and Lynch self-reported his conduct to the Iowa Supreme Court Attorney Disciplinary Board, which led to a hearing before the Grievance Commission and a recommendation that the Supreme Court suspend Lynch’s license for nine months.

The Clive attorney, Rodney Powell, has practiced law in the Des Moines area since 1988. In 2012, he was hired by Gary Morris to handle the estate of his father, Tony Morris, according to court records. Sometime after the estate received $71,000 in insurance proceeds, Powell contacted Gary Morris and asked him for a loan of $20,000 from the insurance proceeds. Morris agreed and asked for a written loan agreement. The next day, before such an agreement could be considered and signed, Powell moved $20,000 from the estate account into the accounts of the Powell Law Firm. A month later, the loan agreement was signed, according to court records.

Although the loan was to be repaid in full by May 2015, Powell had repaid a total of only $1,300 at that point, prompting Morris to contact another lawyer and sue the law firm. At a Grievance Commission hearing on the matter last year, Morris testified that he was a 75-year-old retired truck driver living on a fixed income and dependent on Social Security to make ends meet.

Powell has a history of licensing issues, according to court records. In 2005, he was given a private admonition for charging a client excessive fees. In 2007, his license was suspended for six months for imposing illegal finance charges on clients and aggressive bill-collection practices that included the reporting of client’s unpaid bills to the IRS as taxable income. In 2010, he received a private admonition for his handling of a client’s trust account. In 2013, his license was suspended for three months due to ethical violations related to a client’s trust account.

The Grievance Commission is now recommending that the Iowa Supreme Court suspend Powell’s license for six months, arguing that the “rules violated in this case go to the very heart of what the public fears the most with respect to lawyers.”

Stay tuned. (Mike Frisch)

September 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Not As Bad As All That

The Illinois Review Board took a more charitable view of an attorney's misconduct than did the Administrator and proposed a 60-day suspension

The Administrator charged Respondent in a one-count complaint with dishonestly misappropriating about $7,000 in escrow funds. Following a hearing at which Respondent was represented by counsel, the Hearing Board found that the Administrator had proven the charged misconduct, and recommended that, for his misconduct, Respondent be suspended for 60 days.

The Administrator filed exceptions, challenging the Hearing Board's sanction recommendation and asking the Review Board to recommend, instead, a six-month suspension. Respondent cross-appealed, challenging the Hearing Board's finding of dishonesty as well as its sanction recommendation, which he contends should be no more than censure.

The Review Board affirmed the Hearing Board's dishonesty finding, which was based largely on its credibility findings, to which the Review Board gave deference. The Review Board also found persuasive the Hearing Board's reasoning that the extensive and compelling evidence in mitigation indicated that Respondent would not engage in similar misconduct in the future. The Review Board thus concluded that a suspension of 60 days is commensurate with Respondent's misconduct, falls within the range of discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline; and that a longer period of suspension would be akin to punishment and would not benefit the public or legal profession.

Sanction

We believe that the Hearing Board's analysis of the unique circumstances of this case, as well as of relevant authority, is exceptionally thorough and well-reasoned. The Hearing Board gave significant weight to the "extensive and compelling evidence in mitigation," including that:

  • this was an isolated instance of misconduct in an otherwise unblemished career;

  • the evidence did not show that Respondent intended to permanently deprive any individuals of their funds;

  • no individual suffered actual harm, and none of the buyers or sellers complained about Respondent's actions or testified on behalf of the ARDC;

  • Respondent promptly paid restitution long before the ARDC's involvement;

  • Respondent proactively recognized and remedied deficiencies in his law practice;

  • Respondent has ceased practicing law as a sole practitioner, is working as a non-equity partner in a law firm, and has closed his client trust account;

  • Respondent cooperated with the ARDC's investigation, and expressed remorse and took responsibility for his conduct;

  • Respondent engaged in pro bono and volunteer work, including "years of dedication" to his local school board; and

  • Respondent presented "compelling" character testimony.

(See Hearing Bd. Report at 14-17.)

Based on these factors, the Hearing Board was convinced that Respondent would not engage in similar misconduct in the future. Id. at 21. We are hard-pressed to find a flaw in its thoughtful analysis that would cause us to depart from its recommendation. We thus conclude that a suspension of 60 days is commensurate with Respondent's misconduct, falls within the range of discipline that has been imposed for comparable misconduct, and is sufficient to serve the goals of attorney discipline.

(Mike Frisch)

September 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Vicarious Liability For Thieving Partner

The New York Appellate Division for the Third Judicial Department censured an attorney based on stipulated findings

we determined, among other things, that respondent violated his fiduciary obligation to safeguard client funds on deposit in his law firm's escrow account by abdicating his responsibility to oversee and supervise the account to his former law partner, who unbeknownst to respondent misappropriated $25,000 from the account (Matter of Crane, supra).

Sanction

We have now heard from respondent in mitigation, including his expression of remorse and his submissions from colleagues and clients attesting to his good character. Notably, the individual most directly affected by the subject misappropriation submitted correspondence in which he "strongly recommend[s] leniency" and states that he "would not hesitate to seek [respondent's] legal counsel again in the future." We take note that respondent had no venal intent, he did not take any role in nor did he financially benefit from the defalcations by his former law partner, nor were there any "early warning signs" or "red flags" signaling the existence of any such financial improprieties. Moreover, no actual injury was sustained by any clients, respondent has an otherwise unblemished disciplinary history and the misappropriated funds have now been returned. Accordingly, in order to protect the public, maintain the honor and integrity of the profession and, most importantly, emphasize to others the significance of fulfilling their independent fiduciary duty to safeguard client funds (see Uniform Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.8 [b] [2]), we find that, under the circumstances presented, respondent should be censured.

(Mike Frisch) 

September 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 13, 2017

Document Removal Draws Informal Admonition

The District of Columbia Office of Bar Counsel has informally admonished a Seyfarth Shaw partner

Disciplinary Counsel opened an investigation after receiving an Order Regarding Sanctions dated April 20, 2017, from the United States Civilian Board of Contract Appeals. The Board found that your actions "seriously interfered with the administration of justice and impeded the orderly and expeditious disposition of this appeal."

We have completed our investigation and find that your actions violate Rule 8.4 ( d).

Rule 8.4(d) prohibits a lawyer from engaging in conduct that seriously interferes with the administration of justice. We find that you removed documents from GSA's counsel's table without their knowledge or consent and then failed to immediately return the documents upon their request. Because of your actions, the full Civilian Board of Contract Appeals held a special telephone conference and suspended the merits hearing in the underlying case to hold a hearing to address your conduct. We find that this conduct seriously interfered with the administration of justice.

The sanctions did not form the basis for reciprocal discipline

The United States Civilian Board of Contract Appeal issued a Public Reprimand in this matter. Because the judges sitting on the Board are not Article 3 judges, we are unable to take reciprocal action in this case. We are issuing you an Informal Admonition in this matter, based on your acknowledgment that your conduct violated Rule 8.4 ( d) and your agreement to accept this Informal Admonition.

The case is In re James Newland, Jr. Bar Docket No. 2017- D144 and can be accessed at this link.

The reprimand imposed by the Civilian Board of Contract Appeal is linked here. 

The litigation involved a dispute involving a federal post office and courthouse in Massachusetts.

At some point, GSA brought four large, bound rolls of interlineated (also called conformed or posted) contract drawings into courtroom 3. Because this particular set of drawings had not yet been added to the electronic appeal file, counsel, the presiding judge, and witnesses used these documents in their paper form during the hearing.

On February 2, 2017, the Board adjourned the hearing at 2:32 p.m., upon the completion of the direct examination of Suffolk’s witness, Murray Smith. The parties left the courtroom and entered their respective conference rooms. GSA left the bound drawings and binders containing the contract specifications in the courtroom. GSA counsel planned to begin cross-examining Mr. Smith when the hearing reconvened on February 7 at the E. Barrett Prettyman United States Courthouse in Washington, D.C., to which the hearing was to be relocated while the Board’s courtrooms were undergoing renovations.

The Board’s security camera footage shows that at 2:58 p.m., Mr. Newland, Mr. Smith, Nadine Ebersole (then employed by Suffolk as a paralegal), and Glen Stevens (an expert witness for Suffolk) walked out of their conference room carrying trial materials. As they walked past the door to courtroom 3, they stopped. Mr. Newland motioned the others to follow him into the courtroom, which they did. Once in the courtroom, Mr. Newland removed the interlineated contract drawings from GSA counsel’s table. At 2:59 p.m., the four emerged from the courtroom with the drawings. Ms. Ebersole carried two rolls of drawings and Mr. Smith carried the remainder. They walked down the corridor toward the exit. Conference room A is visible from the corridor through a wall of windows. GSA representatives were in conference room A at the time Suffolk’s teamleft the courtroomwith the drawings. In declarations submitted to the Board, Mr. Newland and others say that they thought that GSA had left the materials behind in the courtroom, and Mr. Newland stated that he decided to help GSA by transporting the drawings from the courtroom to the Prettyman Courthouse for their use the following Tuesday, when the hearing was scheduled to resume. The four, however, did not take all of the material in the courtroom. They left behind GSA’s  copy of the contract specifications, as well as a series of demonstrative drawings on a large sketch pad that had been designated and identified as hearing exhibits.

The four walked past conference room A, where GSA representatives remained, past the office of the Clerk of the Board, past the Board’s security staff, into the elevator lobby, and departed, carrying the drawings and other trial materials. Mr. Newland did not inform GSA representatives, or anyone else, that he had removed the drawings from GSA’s counsel’s table, the courtroom, or the building. Mr. Newland placed the drawings into the trunk of his car, drove his witnesses to the D.C. offices of Seyfarth Shaw LLP, and then proceeded eventually to his home, which is some distance south of Washington, D.C.

Shortly after 3:00 p.m., GSA’s Mr. Scott left conference room A, went into the courtroom, and discovered that the interlineated contract drawings were missing. Mr. Scott contacted the Clerk of the Board and other Board personnel and expressed concern that the documents had been removed without his knowledge. At 3:10, he called Mr. Newland to ask him about the drawings. Mr. Scott left a voicemail message [questioning about the drawings]...

Mr. Newland at some point decided to “send [the drawings] out and have them scanned while we had them because we had a four day break for trial.” Transcript at 1233. At 6:50 a.m., on Friday, February 3, 2017, a third-party vendor picked up the drawings from Mr. Newland’s house to scan them. Half an hour later, Mr. Newland advised Mr. Scott by e-mail [that led to a series of further emails between them]...

On Monday, February 6, 2017, the Board (with all three panel members participating) held a conference call to discuss the situation. GSA requested that appellant’s counsel be sanctioned for taking the contract documents and having them scanned without GSA’s permission.

On sanctions

Mr. Newland admits to removing GSA’s interlineated contract drawings from opposing counsel’s table, without permission and without notice. He admits that he took the drawings off the Board’s premises, placed them in his car, and drove them to his home. Disregarding GSA counsel’s request that he return the documents immediately,Mr. Newland elected to have them scanned and copied by a third party, delaying their return until late the following afternoon. As with the removal, the reproduction occurred without GSA’s consent. This conduct is troubling, to say the least.

As much as we are troubled by Mr. Newland’s removal of GSA’s drawings from the courtroom, we are equally, if not more, troubled by Mr. Newland’s changing and irreconcilable explanations for his actions. As noted above, on February 2, in response to Mr. Scott’s e-mail message sent to him immediately after Mr. Scott discovered the drawings were missing, Mr. Newland initially said that “we thought we would bring ½ the documents to prettyman.” This first explanation appears to be what Mr. Newland conveyed to his trial team. In the sworn declarations submitted by Mr. Smith, Mr. Stevens, and Ms. Ebersole, all stated that they understood that Mr. Newland would be acting as the custodian of the documents for the purpose of transporting the drawings to the new hearing location for the next day of hearings.

On Friday, in his February 3 e-mail message to the presiding judge, however, Mr. Newland stated that he sent the drawings to a third party vendor for scanning on Thursday evening. Later, Mr. Newland claimed that the drawings were sent to be scanned and copied on Friday, early morning. Mr. Newland did not inform GSA counsel that he planned to have the drawings scanned and copied, nor does it appear that he told Mr. Smith, Mr. Stevens, or Ms. Ebersole about this plan. Mr. Newland further neglected to advise the presiding judge that he had taken possession of the drawings and decided to hand them over to a third party
for scanning without attempting to coordinate any of this with GSA.

At no time has Mr. Newland acknowledged his misconduct in removing the drawings from opposing counsel’s table without permission. During the conference call before the panel on February 6, as well as during the February 9 hearing, Mr. Newland admitted removing the documents (we “literally carried out what we were able to carry”), seemingly unaware that his actions were problematic.  In response to GSA’s allegations concerning the nature of the materials, Mr. Newland suggested that, in the absence of a protective order, he could freely remove any documents from the courtroom. Mr. Newland has elected to focus on GSA’s failure to add these drawings to the electronic appeal file. However, as Mr. Newland also acknowledges, during the course of the hearing, he never informed the presiding judge of GSA’s failure to produce the interlineated contract drawings. Instead, Mr. Newland took matters into his own hands. Mr. Newland’s decision to appropriate the drawings from opposing counsel’s table is inexcusable and violates the standards of professional conduct. Mr. Newland’s attempt to shift the focus away from his conduct and to blame GSA is problematic.

The board rejected proffered expert ethics opinions in defense of the attorney.

Board Judge Zischkau concurred in part

Mr. Newland’s conduct was an aberration in the way he has conducted himself during the past four years. At the February 9 hearing, he apologized for his conduct. As the presiding judge, this isolated event does not change my belief in Mr. Newland’s honesty, trustworthiness, and fitness to practice before the Board. I have no doubt that he will fulfill his duties as counsel for the appellant, cooperate with GSA counsel, and support the Board’s role in the fair administration of justice for the remainder of these proceedings. I believe the circumstances call for an admonishment from the bench, rather than a public reprimand.

There is a dissent

With the matter before the full Board, I disagree with the ultimate conclusion to issue a simple public reprimand to Mr. Newland. Original documents were removed from agency counsel’s table without the consent of agency counsel. Those documents were the property of the agency. The intentional removal is unacceptable and contrary to notions of the proper and ethical practice of law. That taking of the documents merits barring Mr. Newland, who acknowledges initiating the removal, from further participation in these appeals. For me, that is the crux of the sanction proceeding.

(Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Prosecutor Censured For Witness Harassment

The Tennessee Supreme Court censured a prosecutor for conduct toward a state witness.

The Jackson Sun had the story 

Matthew Stowe, 24th Judicial District Attorney, received a public censure Tuesday.

Stowe is the District Attorney for five West Tennessee counties, including Decatur County. Stowe was previously the District Attorney on the Holly Bobo case, though the censure is unrelated to that investigation.

The censure is based on one complaint of ethical misconduct, in which he engaged in harassing a witness with "no substantial purpose other than to embarrass, delay, or burden a witness." According to a news release, the allegations came in regard to a murder case.

In the prosecution of a murder trial, Stowe's office was working with a witness through an Assistant District Attorney, and the witness told Stowe's office that there may be a scheduling conflict, the release said.

The witness was told that her schedule could not be accomodated, and that she would need to appear as scheduled, the release said.

Despite the witness' agreement to appear, Stowe began directly communicating with the witness and her supervisor, saying he would hold the woman "personally responsible if she blow[s] this trial."

The release says Stowe directed his office to start preparation of charges to prosecute the witness if she failed to appear.

The public censure does not affect Stowe’s ability to practice law.

(Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Dog Bite Pro Bono Defense Costs Job And Reprimand

The Louisiana Attorney Disciplinary Board imposed a public reprimand

Respondent was terminated from her position as Assistant Attorney General at the State of Louisiana Attorney General's Office for representing Stanley J. Lee, Jr., in a criminal matter (dog fighting), at the 7th Judicial District Court, in violation of Louisiana Code of Criminal Procedure, article 65. Respondent represented Mr. Lee on this charges in court on Wednesday, April 23, 2014 and Wednesday, April 30, 2014. Respondent submitted sick leave at the Office of Attorney General on these days.

The representation was pro bono

La. C. Cr. P. Art. 65 makes it “unlawful” for any assistant attorney general “to defend or assist in the defense of any person charged with an offense in any parish of the state.” Respondent acknowledged that she violated Article 65 and that the representation was “unlawful” but denied that it constituted criminal conduct under Rule 8.4(b) as charged by ODC. The committee found that she violated the provision, as she had admitted, but concluded she did not knowingly do so. It found that while Respondent had been informed by Attorney General officials that she, and others similarly employed, were free to engage in the private practice of law in lieu of salary increases, the evidence did not clearly establish that she was provided with her employer’s Private Practice Policy, which addressed the prohibition.

As to sick leave

The committee also considered the allegation that Respondent claimed sick leave at the Attorney General’s office for two of the three days she made appearances in court in Concordia Parish (April 23, 2014 and June 11, 2014) and her failure to make any entry for time away from the office on a third day (April 30, 2014). After considering Respondent’s testimony, which indicated that on two occasions, she mistakenly entered the wrong code into the Attorney General’s litigation time and billing program and then failed to submit the proper paperwork  which would have corrected the error, and that, in fact, she had worked 7.5 hours as claimed on April 30, 2014, the committee found a lack of clear and convincing evidence to establish that misconduct had occurred.

The board found a conflict but

Respondent worked as an Assistant Attorney General in the Civil Division and represented a criminal defendant, pro bono, in a different parish than the one in which she worked in a non-prosecutorial role. Her conduct was negligent, and once she learned that she had violated the Rules, she immediately took steps to rectify the consequences of her misconduct. No aggravating factors are present and several very significant mitigating factors apply.

A dissent would impose a private admonition. (Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Suspension Reimposed For Failure To Pass MPRE

The Minnesota Supreme Court has denied a motion to extend the time allowed for a suspended attorney to pass the MPRE

We expressly stated that, by August 30, 2017, Obasi was required to file with the Clerk of the Appellate Courts proof of his successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility and that failure to do so would result in automatic re-suspension, as provided in Rule 18( e )(3 ), Rules on Lawyers Professional Responsibility (RLPR). Obasi, No. Al6-l l32, Order at 2. The professional responsibility examination referred to in Rule 18( e )(3) is the Multistate Professional Responsibility Examination (MPRE). See Rule 4.A(S), Rules for Admission to the Bar...

We conditionally reinstated Obasi on January 19, 2017. In re Obasi, 889 N.W.2d 295, 295 (Minn. 2017) (order). We repeated the requirement that, by August 30, 2017, Obasi had to file with the Clerk of the Appellate Courts proof of successful completion of the MPRE and that failure to do so would result in automatic re-suspension, pending successful completion of the examination, as provided in Rule 18(e)(3), RLPR. Obasi, 889 N.W.2d at 296. Obasi filed a motion asking for an extension of time to provide proof of successful completion of the MPRE. Obasi states that he sat for the March 2017 MPRE but did not receive a passing score. He sat for the August 12, 2017 MPRE, but it will take longer than 1 month for the results to be reported, which will not allow him to comply with the deadline in our order. Obasi claims that he will not file proof of having passed the MPRE by August 30 through "no fault of [his own]" and for reasons "clearly beyond [his] control." Obasi asks the court to extend the deadline to provide proof of having passed the MPRE ''to a reasonable date immediately after the date of the publication of the results of the August examination."

He failed to show good cause for a further suspension

Obasi has not shown good cause for failing to comply with our August 30, 2017 deadline. In addition, Obasi has now failed to comply with the August 30, 2017 deadline to provide proof of his successful competition of the MPRE. Based on Obasi' s motion, it is clear he cannot comply with this deadline.

The court revoked the conditional readmission and imposed an indefinite suspension. (Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Overzealous

A reprimand was imposed by the Maine Board of Bar Overseers on an attorney for misconduct in a paternity matter as described by this summary

In 2015, Attorney Shusta represented James L. in a paternity suit. The Department of Health and Human Services (DHHS) filed a complaint in Skowhegan District Court against Mr. L., seeking to establish that he was the father of a child borne by Amy C. in 2012. AAG Spooner represented DHHS in the matter. Separately, Attorney Shusta filed a parental rights and responsibility action regarding the minor. In turn, AAG Spooner filed a motion to consolidate the two cases, which the court granted without objection by Attorney Shusta. The court then issued a case management order, scheduling mediation followed by a status conference on March 9, 2015.

Prior to mediation, Attorney Shusta contacted Ms. C., who was unrepresented, asking her if she would consent to the termination of Mr. L.’s parental rights, suggesting to her that her child could be adopted by her boyfriend. Attorney Shusta claimed that the “the word on the street was” that Ms. C. wanted to terminate the parental rights of Mr. L. In her interactions with Attorney Shusta, Ms. C., who has an 11th grade education, did understand that he was not representing her legal interests. Attorney Shusta states that at a case management conference he informed Ms. C. about the effect of termination, including giving up all future child support from Mr. L. At this time Ms. C. was not interested in termination.

At some point, Attorney Shusta and AAG Spooner had discussed the termination of parental rights issue: AAG Spooner informed Attorney Shusta that she would object to the termination unless there was a finding that it was in the child’s best interests, and that DHHS would not bring such a case under the present circumstances.

On March 9, 2015, Attorney Shusta met with Ms. C. in the Skowhegan courthouse prior to mediation, presenting her with a petition to terminate his client’s parental rights, which he had not provided to AAG Spooner. Ms. C. signed the paperwork. Denise Bemis, a DHHS enforcement agent, was running late and did not take part in mediation discussions overseen by Attorney Rob Washburn, which lasted 20 minutes. Eleven minutes later, Attorney Shusta, Ms. Bemis, and Ms. C. appeared in front of Family Law Magistrate Stephen J. Chandler. AAG Spooner was not in attendance, nor was her presence required by DHHS policy.

Attorney Shusta informed Magistrate Chandler that an agreed-upon petition for termination of parental rights and responsibilities would be filed. Magistrate Chandler asked Ms. Bemis about her understanding of the agreement. The transcript shows the following colloquy (emphasis added):

Ms. Bemis: I understand the agreement. I still – I feel that AAG Spooner should be given the opportunity to review that agreement.

Mr. Shusta: She has had the opportunity to review the agreement. She has had the opportunity to review the petition. She requested a change in the petition and we made that change today.

The Court: And she knows that this – there’s going to be no ongoing child support?

Mr. Shusta: Yes. And I suspect that there’s going to be a name change and an adoption in the near future

As a result, Magistrate Chandler signed Attorney Shusta’s draft order, which ended the parental rights and responsibilities matter and severed the DHHS paternity action. Attorney Shusta claims when he used the term “she” in the above dialogue, he was referring to Ms. C., who was present in the courtroom, and not to AAG Spooner, who was not present.

At the June 14, 2017 Grievance Commission hearing, AAG Spooner testified that Attorney Shusta never gave her an agreement or petition to review. Magistrate Chandler testified at this hearing that he had no independent recollection of what occurred during the status conference, adding that he was unsure of whom “she” referred to because the hearing was a long time ago and since then he had heard many other cases. He stated that under the circumstances he probably would have still signed the same order even if he knew that AAG Spooner had not received the documents from Attorney Shusta. However, Magistrate Chandler opined that it would be logical that the first “she” addressed AAG Spooner. Ms. Bemis credibly testified that she thought Attorney Shusta was referring to AAG Spooner. Initially, Ms. C. thought “she” referred to AAG Spooner, but upon further questioning was unsure.

At the grievance hearing, AAG Spooner testified that Maine law only allowed DHHS or a custodial parent to a file termination of parental rights action. Because Mr. L. was not the custodial parent, he could not initiate termination of parental rights proceedings. There is no dispute that Attorney Shusta prepared the paperwork for Ms. C. even though he was solely representing Mr. L.

The context strongly suggests that the “she” referred to by Attorney Shusta in the colloquy was AAG Spooner, whom he knew had a strong interest in this case. Arguably, Attorney Shusta was vigorously representing his client, who did not want to pay child support because he was not involved in his son’s life. However, Ms. Bemis informed the court that she felt AAG Spooner should be given the opportunity to review the agreement, which set the reference point for the colloquy. The evidence strongly weighs against Attorney Shusta who suggests that he was referring to Ms. C. because she annotated the agreement in front of the court. Furthermore, the electronic recording of the colloquy indicates that Attorney Shusta emphasized that “she” has reviewed the agreement, which supports the conclusion that “she” referred to AGG Spooner, who had not reviewed the agreement.

Even if Attorney Shusta had quickly explained to Ms. C. that she would never receive child support from Mr. L. upon termination being approved by the court, he was the one who planted the idea in her head that it would be a good idea because the child could be adopted. Attorney Shusta was the one who called Ms. C., who earlier rejected termination, to see if she would reconsider. In fact, he called her two times to review the details in the proposed agreement. At the July 17, 2017 Grievance Commission hearing, Attorney Shusta’s attorney asked him the following questions:

Q. And do you believe that you explained things to [Ms. C.] in a way that she could understand?

A. Yes.

Q. And did you provide her with opportunities to ask you questions.

A. Yes.

Q. And did you make it clear to her that she could always back out of the termination process at any point if she wanted to?

A. Yes. And I pointed out that if she did, she wasn't losing on the child support.

Yet, Ms. C. had no idea that only DHHS or herself could initiate termination. She signed paperwork prepared by Attorney Shusta, who says that he orally, but never in writing, encouraged her to get her own counsel to review everything. It appears that Attorney Shusta may have been hoping that Ms. C., who has struggled financially, would not get an attorney to review the paperwork, to the benefit of his client, Mr. L. When all the facts are viewed together, Attorney Shusta provided legal advice to an unrepresented adverse party by encouraging her to sign a petition, which his client was not legally authorized to submit to a court, to the detriment of the unrepresented party.

Attorney Shusta knew that he could only represent one party, which was Mr. L. and not Ms. C.

a period of probation also was imposed. (Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

First Day In Session

The Rhode Island Supreme Court has accepted an attorney's consent to disbarment.

The Providence Journal's Katie Mulvaney recently reported

A Warwick lawyer has consented to disbarment after self-reporting to state disciplinary counsel that he had stolen $1.2 million from clients.

Vincent J. Mitchell, whose practice was at 303 Jefferson Blvd., Warwick, reported to Supreme Court Chief Disciplinary Counsel David D. Curtin in late August that he took a total of $1,207,233 from 10 clients to fuel gambling and drug addictions, Curtin said Friday.

The state Supreme Court on Thursday, its first day back in session after summer recess, issued an order disbarring Mitchell effective immediately.

He had been licensed since 2000, with a practice centered on estate planning and long-term health-care planning, Curtin said.

Curtin said Mitchell, who was accompanied by a lawyer, presented him with folders detailing his clients and their losses. They range from a high of $239,000 to $53,000.

The Rhode Island State Police Financial Crimes Unit and the state attorney general’s office have been contacted and criminal charges are expected to be filed, he said.

 Curtin said he is in the process of contacting the affected clients. He declined to name any because several are not yet aware of their losses. He believes some might be in nursing homes.

“It’s certainly tragic for the affected families. It’s big money for these people,” several who have limited means, he said.

Curtin said his office is working to determine whether other clients might have been impacted and the losses are at a higher scale. It appears Mitchell has no assets, but that is being examined too, he said.

Any family who believes they have been affected should call Curtin, 401-823-5710 or the state police financial crimes unit, 401-444-1202.

(Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Failed Adoption

The Indiana Supreme Court imposed a public reprimand of an attorney om stipulated facts

“Clients” tentatively had agreed with “Birth Mother” to adopt her baby after its birth, and Clients retained Respondent to represent them in the intended adoption. Late in her pregnancy, Birth Mother expressed concern to Respondent about Clients adopting her child and asked to look at profiles of other prospective adoptive parents. Respondent provided Birth Mother with these profiles, and Birth Mother ultimately selected another set of adoptive parents from the files provided to her by Respondent. Respondent did not discuss any of this with Clients until after Birth Mother had chosen a different set of adoptive parents. Although Respondent had other prospective adoptive parents sign written conflict-of-interest waivers, he neglected to have Clients sign one.

When Respondent and Clients discussed a partial reimbursement of fees advanced by Clients, Respondent presented Clients with a release form to sign that purported to bar Clients from filing a “claim” with the Disciplinary Commission. Clients refused to sign the release and retained separate counsel in contemplation of a legal malpractice suit. Respondent and Clients eventually reached a settlement.

The parties cite no facts in aggravation. Mitigating factors cited by the parties include among other things Respondent’s lack of prior discipline, his cooperation with disciplinary proceedings, and his settlement with Clients.

The court the sanction proposed by the parties. (Mike Frisch)

September 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)