Saturday, November 18, 2017

Sex Was Ethical; Lie Was Not But Over Dissent: "The Practice Of Law Is Not A Dating Service"

The West Virginia Supreme Court of Appeals has admonished an attorney who had agreed to accept a 60-day suspension.

The Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) found that Respondent Sarah Campbell violated two provisions of the West Virginia Rules of Professional Conduct and recommended that she be admonished and ordered to pay the costs of these proceedings. Ms. Campbell does not challenge the recommendations of the HPS; however, the Office of Disciplinary Counsel (ODC) of the LDB objected to the sanctions. This matter comes before this Court upon the objections of the ODC.

Based upon the parties’ stipulations, the ODC asserts that the appropriate sanction is a suspension of Ms. Campbell’s license to practice law for sixty days with automatic reinstatement, six months of supervised practice following her suspension, and that she be required to pay the costs of these proceedings.

In order to resolve this case, we must consider whether a sexual relationship between an attorney and her client predates the attorney-client relationship. Given the long history of the relationship in this case, we find that it does.

Even so, this Court finds that there is clear and convincing evidence to support the findings of the HPS that Ms. Campbell violated Rules 4.1 and 8.4(c) of the Rules of Professional Conduct because she misrepresented to her supervisor the nature of her relationship with a client. For the reasons explained below, we adopt the sanctions recommended by the HPS.

The attorney is a public defender appointed to defend her client

In 2002, Ms. Campbell and Mr. H began a romantic relationship; at the time, she was fourteen and he was sixteen years old.  In 2003, this relationship became sexual and continued intermittently until December 2013, when both parties decided to pursue other romantic partners.

In October 2013, Ms. Campbell was admitted to practice law in West Virginia and began working for the Nicholas County Public Defender’s Office. In April 2014, having practiced law for only six months, Ms. Campbell was appointed to represent Mr. H. in an abuse and neglect proceeding.  Shortly thereafter, Mr. H. was arrested on felony charges stemming from the abuse and neglect proceeding and Ms. Campbell was again appointed to represent him.

That same month, due to the nature of their relationship and fully complying with her obligations under Rule 1.7(b), Ms. Campbell initiated a discussion with Mr. H. about her continued representation.  Mr. H. verbally waived the conflict and asked Ms. Campbell to continue representation, adding that he believed it would “lead to more zealous representation.”

In September 2014, Mr. H. told Ms. Campbell he was in love with her and asked her to restart the relationship. At that time, Ms. Campbell advised Mr. H. that they should speak with her supervisor, Chief Public Defender Cynthia Stanton, to make her aware of the preexisting sexual relationship. Mr. H. insisted on seeing Ms. Stanton alone and Ms. Campbell obliged.

During this private meeting, Mr. H. told Ms. Stanton that he was in love with Ms. Campbell, but failed to disclose the prior relationship or that Ms. Campbell had feelings for him as well. As a result, Ms. Stanton believed that Mr. H. was merely asking for permission to date Ms. Campbell. At the same time, Mr. H. led Ms. Campbell to believe that he told Ms. Stanton everything about the preexisting relationship and that she was fine with its continuance. During this meeting, Ms. Stanton did not question Ms. Campbell about the relationship and Ms. Campbell did not inquire as to the extent of Ms. Stanton’s knowledge of it. Still operating on inaccurate information, Ms. Stanton advised Ms. Campbell that she did not believe a judge would grant a motion to withdraw from representation of Mr. H. and that she believed continued representation would be appropriate.

Ms. Campbell met again with Mr. H. and indicated for a second time that he could request new counsel, but informed him that she did not have a problem moving forward with representation. Shortly thereafter, Ms. Campbell and Mr. H. resumed sexual relations. From roughly October 2014 until May 2015 (when Mr. H. was indicted), aside from appointments related to his case, Ms. Campbell saw Mr. H. socially a maximum of five or six times.

Police discovered the relationship during a home detention check and told the assistant prosecutor, whose boss reported it to the ODC purportedly to comply with Rule 8.3. 

Prior to filing his complaint with the ODC, Assistant Prosecutor White advised Ms. Stanton of the allegations. Ms. Stanton contacted Ms. Campbell by telephone and asked if the allegations were true, alerting her that her job depended on the response. Ms. Campbell denied having a sexual relationship with Mr. H. Immediately thereafter, Ms. Campbell filed a motion to withdraw as Mr. H.’s counsel and Assistant Prosecutor White filed the disciplinary complaint against Ms. Campbell.

The attorney denied misconduct

In a May 2016 sworn statement, Ms. Campbell addressed the misrepresentations made to Ms. Stanton and denied violating the Rules of Professional Conduct, stating that the relationship began when the two were in junior high school and continued intermittently until 2013, when it dissipated but did not end.

As to the bar charges

However, as previously stated, the HPS concluded that Ms. Campbell did not violate any of the rules alleged by the LDB. The HPS found no violation of Rule 1.7, deeming it sufficient that Ms. Campbell had consulted with Mr. H. and obtained his consent for the representation, and because there was no evidence that Ms. Campbell’s representation of Mr. H. was materially limited by her personal interest. The HPS further concluded that Ms. Campbell did not violate Rule 1.8(j), because a consensual sexual relationship had existed for more than ten years at the commencement of the representation. The HPS also concluded that Ms. Campbell did not violate Rule 8.1(a) because, for the reasons stated above, she believed that her client had informed Ms. Stanton of the relationship, and therefore she had not made a false statement. Finally, the HPS concluded that Ms. Campbell did not violate Rule 8.4(d) after finding that the relationship itself was not prohibited.

As for the imposition of an appropriate sanction, the HPS concluded that Ms. Campbell violated two rules, both stemming from misrepresentations made to her supervisor and her actions following those misrepresentations, and further concluded that there were no aggravating factors.

Notably

In addition to the mitigating factors listed above, the HPS was particularly troubled by the fact that the disciplinary complaint was filed by opposing counsel in ongoing litigation. This fact is even more pronounced considering the investigation of the relationship ensued within 24 hours of Ms. Campbell having refused to grant a continuance to accommodate the complainant – the prosecutor – in the case against Mr. H...

After being made aware of the proposed 60-day suspension, Ms. Stanton testified that she would recommend to the Public Defender Corporation that Ms. Campbell be able to continue her employment after her suspension and that she believed Ms. Campbell continued to zealously represent clients.

The HPS report is linked here. 

The court agreed as to ethical sex

as the comments to the rule make clear, “[s]exual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship.”  Not only does the evidence fail to support a finding that Ms. Campbell took advantage of Mr. H., but the type of longstanding relationship between the two simply does not present the same concerns associated with new relationships that truly begin after representation begins. For these reasons, we conclude that for purposes of Rule 1.8(j), a longstanding and continuous, albeit intermittent sexual relationship, though dormant at the commencement of an attorney-client relationship, is a preexisting relationship.

The court accepted admonishment as the sanction.

Chief Justice Loughery dissented and would find the sex-with-client rule violated

  in an effort to avoid Rule 8.4(g)/1.8(j)’s unambiguous proscription against sexual relations with clients, the subcommittee and the majority try to retrofit the respondent’s actions within the rule’s exception for existing relationships. This effort fails. The plain language of the exception only allows a lawyer to have a sexual relationship with a client if the sexual aspect “existed between them at the commencement of the lawyer/client relationship.” Id. (emphasis added). Both the respondent and Mr. H. testified under oath that they were not engaged in a sexual relationship when the respondent was court-appointed to represent Mr. H. in April 2014. Instead, the respondent testified about having a prior, intermittent sexual relationship with Mr. H. that had “dissipated” by December 2013, a time when they were each dating other people. The respondent admitted there was no sexual conduct between them until late September or October 2014, which was while she was already engaged in the ongoing legal representation of Mr. H.

In an analysis that would be more suited for the readers of a romance novel, the subcommittee theorized about what the respondent’s and Mr. H.’s feelings were, or might have been, about their prior, intermittent relationship. Reasoning that “relationships do not stop and start with mathematical precision,” the subcommittee found that this was an ongoing sexual relationship. Blindly following the subcommittee’s lead, the majority somehow concludes that the respondent is exempt from the prohibition in Rule 8.4(g)/1.8(j). However, the uncontested facts and unambiguous rule language should not be disregarded based upon the subcommittee’s romantic musings.

Rule 8.4(g)/1.8(j) is plainly-worded and free from ambiguity. As such, it is not subject to interpretation or construction.

He would find a concurrent conflict of interest and conduct prejudicial to the administration of justice

A suspension from the practice of law is an appropriate sanction for a lawyer’s sexual misconduct with a client. For example, in Lawyer Disciplinary Board v. Hewitt, No. 35515 (W.Va. Apr. 14, 2011) (unreported order), a lawyer began a sexual relationship with a client and was convicted of misdemeanor trespassing upon the property of her paramour’s ex-spouse. This Court, inter alia, suspended the lawyer from the practice of law for three months. Id.

The respondent’s conduct in this matter was intentional, dishonest, risked harm to her client because she valued her own personal concerns over those of Mr. H., and subjected the practice of law to extreme disrepute. The practice of law is not a dating service; lawyers are expected to maintain their professionalism at all times. In my opinion, for her multiple violations of the Rules of Professional Conduct, the respondent should receive at least the sanction to which she stipulated: a sixty-day suspension from the practice of law, six months of supervised practice, and payment of costs.

From the "romance novel"

When does a relationship begin? When does it end? The former is perhaps easier to answer than the latter but experience teaches us that when a sexual relationship spans over a course of more than ten years, that relationship and the emotional bond which attends it, does not end simply because the parties are not engaging in sexual intercourse at any particular moment in time. And so it has been with Sarah Campbell and Jackie Hall since 2003...

The continuation of the relationship at the commencement of, during and even after the representation was entirely consistent with the history of their relationship up to that time. It was sporadic and intermittent. To say that their relationship ended in December of 2013 and started anew in October of2014, the position advocated by Disciplinary Counsel, simply goes against the grain of human nature and experience. We are not looking at a prior brief encounter where the parties were not invested with emotional bonds. We are looking at a ten-year, plus, relationship. Relationships do not stop and start with mathematical precision and Rules 8.4(g) and 1.80) do not require such a strained interpretation.

Justice Workman joined the dissent. (Mike Frisch)

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

Operation Pork Chop

Trib Live has the story of a recent suspension reported on the web page of the Pennsylvania Disciplinary Board

The liquor-law attorney who worked with former State Rep. Marc Gergely to convince business owners to participate in an illegal gambling-machine ring has had his law license suspended by the state, the Pennsylvania Supreme Court announced Friday.

Louis F. Caputo's license was temporarily suspended following his conviction on one count of criminal solicitation related to gambling devices. Caputo and Gergely both pleaded guilty in August .

Because of the criminal conviction, the Disciplinary Board of the Supreme Court of Pennsylvania placed Caputo's license on temporary suspension pending a hearing and final decision from the disciplinary board. He can't take any new clients, but will have up to 30 days to wrap up or pass off any cases he was currently working on. Getting the court to reinstate his license could take years of proving his worthiness to be readmitted to practice.

Caputo referred questions to his attorney Craig Simpson, who said the temporary suspension was typical of such cases.

“We're not going to challenge the interim suspension; we'll let the process play out,” Simpson said.

In wiretapped phone calls Ronald “Porky” Melocchi had described Gergely and Caputo as his “Super PAC,” helping him identify opponents and persuade potential customers to buy illegal video-gambling machines from Melocchi's Glassport business. According to the grand jury presentment against Gergely, Caputo, 40, of Peters allegedly used connections and sources within the Bureau of Liquor Control Enforcement to identify someone who'd been reporting one of Melocchi's customers' machines, then he and Gergely took that information to the business owner to convince her to buy back in.

Melocchi's business was raided in “Operation Pork Chop” in 2013 and he pleaded guilty in 2014. He is serving 10 years on probation. Caputo was sentenced to five years of probation; Gergely resigned Nov. 6 and is awaiting sentencing on one count of conspiracy to operate illegal gambling devices and accepting illegal campaign contributions, both misdemeanors.

Matthew Santoni is a Tribune-Review staff writer. Reach him at 724 836 6660, msantoni@tribweb.com or via Twitter @msantoni.

(Mike Frisch)

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

Friday, November 17, 2017

Hairless And Denied Reinstatement

The Louisiana Supreme Court has denied reinstatement to an attorney whose conditional license was revoked in 2011. 

Justice Clark  concurred and dissented in part and is "doubtful that he should ever be readmitted."

Throughout this process, petitioner has attempted to evade responsibility for his misconduct by lying and deceit. He has filed false pleadings in this Court, and shaved his entire body and cut his fingernails to the quick in an unsuccessful attempt to avoid testing for cocaine (he tested positive). 

Justice Clark dissents from the portion of the order that permits reapplication if the petitioner complies with the conditions of the 2011 order.

Among the conditions are a five-year contract with the Bar's counseling service including quarterly hair testing. (Mike Frisch)

November 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Probation For Neglect Of Criminal Appeals

The Kansas Supreme Court considered mitigation in sanctioning an attorney's neglect of several criminal appeals and related violations.

From the hearing panel

The respondent suffers from major depressive disorder. Additionally, during the relevant time period, the respondent's house burned and his dogs perished in the fire. The respondent has struggled with repairing and rebuilding his home. It is clear that the respondent's depression and personal difficulties contributed to his misconduct...

The respondent has been in treatment for his depression for some time. The respondent has demonstrated a meaningful and sustained period of successful rehabilitation. Finally, it appears that the respondent's treatment for his depression has arrested the misconduct and recurrence of the misconduct is unlikely, provided the respondent remains compliant with this treatment plan.

He fully cooperated

The respondent is an active and productive member of the bar of Topeka, Kansas. 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.

Prior discipline

The discipline imposed in 1993, 1998, 2000, 2002, and 2004 is remote in time to the misconduct in this case.

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, at which the respondent appeared, the office of the Disciplinary Administrator recommended that respondent be placed on probation subject to the terms and conditions of the proposed probation plan for a period of 18 months to 2 years. The respondent requested that he be allowed to continue to practice law, subject to the terms and conditions in the proposed plan of probation; he also acknowledged that a period of suspension might be required. The hearing panel recommended that respondent be suspended from the practice of law for a period of two years, that the imposition of the suspension be suspended, and that respondent be placed on probation for a period of three years subject to the terms and conditions listed in paragraph 42, subparagraphs a-l, in the final hearing report.

At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator and the respondent both recommended that respondent be
suspended for two years and that imposition of the suspension be stayed for three years pending respondent's successful service of probation governed by the terms and conditions set forth in the final hearing report. A majority of the court agrees with that recommendation. A minority of the court would impose a harsher sanction, including some period of immediate suspension.

IT IS THEREFORE ORDERED that [the attorney] be and is hereby disciplined by suspension for two years, stayed for three years pending respondent's successful service of probation governed by the terms and conditions set forth, in the final hearing report...

Video of oral argument is linked here. (Mike Frisch)

November 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Shank Non-Redemption

An attorney has been suspended for four months by the Wisconsin Supreme Court.

Count one of the amended complaint arose out of an incident that occurred in the course of Attorney Cohen's representation of R.S., who is serving a life sentence for a homicide conviction. On October 18, 2013, Attorney Cohen traveled to the Columbia Correctional Institution to meet with R.S. Attorney Cohen carried with him a black bag containing pens, transcripts, and papers. He also brought a white pastry bag containing two crème-filled donuts and hard boiled eggs. Attorney Cohen informed correctional officers that he had brought his lunch with him.

Attorney Cohen met with R.S. for several hours. At some point correctional officers moved them to a different room. When leaving the room, R.S. threw Attorney Cohen's white pastry bag into a trash container. An officer searched the discarded bag and found a leftover donut and a toothbrush package with the toothbrushes removed. A subsequent search of R.S. and his belongings revealed two toothbrushes and a 1.5 ounce container of McCormick brand red pepper. The toothbrushes and pepper had been secreted by Attorney Cohen into the prison in a legal folder.

According to prison authorities, the toothbrushes were heavier than the ones available to inmates at the prison canteen and could be fashioned into shanks. The authorities also concluded that the crushed red pepper could be made into a pepper spray.

When correctional officers interviewed Attorney Cohen about the items, he denied knowing anything about them.

Three other counts dealt with the representation of another criminal client.

The referee

The referee said he was troubled by the fact that Attorney Cohen did not present any mitigating evidence about the prison incident either at the evidentiary hearing or as part of the stipulation. The referee further said that he was troubled by Attorney Cohen's behavior during the hearing. The referee said, "Attorney Cohen took no responsibility for his actions. He demonstrated no remorse for his actions and demonstrated contempt for the proceedings. Attorney Cohen did not even bring a file to the hearing to assist him in his representation."

...We also agree with the referee that Attorney Cohen's behavior is more egregious than Attorney Mross' furnishing inmates with cigarettes because the contraband delivered to the inmate by Attorney Cohen could have been used as a weapon. In addition, we note that Attorney Mross had no disciplinary history and there were no other counts of misconduct involved. By contrast, Attorney Cohen was previously reprimanded for a misdemeanor disorderly conduct conviction, and in addition to the criminal conviction this case also involves three additional counts of misconduct with respect to Attorney Cohen's representation of C.S.

Costs were also imposed. (Mike Frisch) 

November 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tarra Simmons Can Sit For The Washington State Bar

As a follow up to yesterday's post on the Tarra Simmons oral argument, I am advised that the Washington State Supreme Court entered an order granting her permission to sit for the bar examination.

Congratulations to her and to her counsel Shon Hopwood. 

One thing that I will say having seen the argument is that the quality of Shon's advocacy itself is a ringing endorsement of a policy allowing admission of rehabilitated convicted felons (although I confess bias in his favor).

I learned through my involvement in this case that the court has only issued two written opinions in admission cases, both many years ago.

The 1984 decision in In re Belsher is linked here and involved this applicant

On March 12, 1973, in Boulder, Colorado, petitioner placed a homemade bomb in his parents' car. The bomb consisted of several sticks of dynamite and a timing device. The timing device was activated that same day, causing an explosion which demolished the Belshers' car. Belsher's mother and father, however, escaped injury by leaving the car a few seconds before the explosion.

Petitioner was arrested and admitted responsibility for the explosion. After a psychiatric examination by Dr. Charles Clark, petitioner was found to be competent to stand trial. On March 14, 1973, he was charged with two counts of attempted first degree murder and one count of first degree arson. A joint motion for deferred prosecution with 2 years' supervised probation on the condition that petitioner undergo continuing psychiatric treatment was granted on November 26, 1973. Dr. Clark was selected as the treating psychiatrist.

In March 1974, it was discovered that petitioner had been manufacturing an illegal drug ingredient (amphetamine precursor) in his chemistry lab at the University of Colorado. He advised Dr. Clark that he was doing so in order to become an undercover agent for the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service. About this same time, petitioner also attempted to purchase two pistols, using a friend's name. As a result of these incidents, petitioner was charged with attempt to manufacture dangerous drugs, conspiracy to manufacture dangerous drugs, and criminal impersonation. In addition, petitioner's deferred prosecution was revoked.

Pursuant to plea bargain arrangements, petitioner pleaded guilty on May 16, 1974 to three reduced charges: third degree assault, possession of a dangerous drug, and criminal simulation. All other charges, including those stemming from the bombing incident, were dismissed. Petitioner was placed on supervised probation to run until May 16, 1979. One of the conditions of the probation was that petitioner continue to see Dr. Clark.

The court was unpersuaded that the he had recovered from mental health issues.

Petitioner contends that his past misconduct, although serious, was the result of mental problems which have since been corrected. He points to the fact that 9 years have gone by since the termination of his treatment with Dr. Clark. Petitioner argues that this passage of time without serious mishap demonstrates that he has overcome the problems that plagued him in the past and that he is possessed of present good moral character.

Having previously engaged in serious misconduct, petitioner must "clearly demonstrate" that he is now worthy of the public trust that is placed in attorneys; if doubt remains, fairness to the public and the bar requires that admission be denied. See Eddleman, at 43.

In this case, there is doubt as to petitioner's rehabilitation. Dr. Carney, who was the last to examine petitioner, expressed some doubt in his report as to petitioner's complete recovery. Dr. Carney stated that such a recovery after an active episode of schizophrenia would be "highly unusual." He further stated:

In my opinion Mr. Belsher shows very subtle signs that have to do with constricted emotions, emotional distance in the interview, curious lack of apparent remorse, and a poor understanding of the impact of his behavior on other people. Considering these observations, a case could be made for the diagnosis of Schizophrenia, residual type, in which there are no prominent psychotic symptoms but some indicators of the illness.

The possibility that petitioner's apparent recovery is merely a temporary remission is a disturbing one. The uncertainty is compounded by the absence of any continuing record of petitioner's progress regarding his ailment after 1975. This lack of any psychiatric evaluation of the manner in which petitioner has handled stress over the past 9 years makes it difficult, if not impossible, to predict how petitioner would handle the high degree of stress which is inherent in the practice of law.

I hope the court here will issue a thorough opinion here that addresses the relationship between the admissions apparatus and the court, the showing necessary to establish character and fitness in light of prior criminal conduct and the impact of recovery from addiction on the analysis.

Coverage of the broad issue from The Atlantic is linked here. (Mike Frisch)

November 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Kickback Reprimand

The South Carolina Supreme Court imposed a public reprimand for payment of a referral fee to a non-lawyer

Police Chief (Chief) worked a motor vehicle accident with significant injuries and developed a relationship with the victim's family (Family). Chief suggested the Family contact Respondent for representation. Respondent maintains there was never any initial agreement between himself, Chief, or any third party for the payment of a referral fee. Respondent learned of the Family's potential case through the brother (Brother) of his long-standing business partner (Partner). Respondent told Brother he could not approach the Family directly. He believes Brother conveyed this information to Chief, who then recommended Respondent to the Family. After obtaining a favorable settlement for the Family, Respondent charged Family a fee below the prevailing rate. After the case, Partner approached Respondent, asking him to pay Brother and Chief for the referral. Respondent wrote two checks, one for $48,500 and one for $20,000, from his personal account. He initially characterized the checks as loans to Partner, although now he admits the payments were for Chief's efforts in putting him in contact with the Family.

Respondent admits his conduct violated Rule 5.4 (except under limited circumstances, a lawyer or law firm shall not share legal fees with a nonlawyer) and Rule 8.4(e) (it is professional misconduct to engage in conduct that is prejudicial to the administration of justice) of the Rules of Professional Conduct contained in Rule 407, SCACR.

(Mike Frisch)

November 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 16, 2017

In The Wake Of A Break Up

A Single Bencher Hearing Committee of the Law Society of Alberta imposed a reprimand based on the following admission of guilt

  On May 26, 2015, I was retained by R.J. to represent her in separation and divorce proceedings from her then spouse (the “Matrimonial Proceedings”).

During the course of my retainer, which lasted for approximately 7½ months, I worked with R.J. to gather information and prepare materials in support of her position during the Matrimonial Proceedings. These activities included reviewing and assessing the materials provided to me, communicating in person and over the telephone with her, communicating with her then spouse (who was self-represented at the time), and drafting pleadings.

In mid-October 2015, my relationship with my long-term girlfriend came to an end, which breakup caused me great emotional distress.

In November 2015, I met twice with R.J. and communicated with her a few times by telephone and by text message. At the time, I believed that there was a mutual attraction between us. It is clear to me now that I misjudged the situation and used insensitive and inappropriate language in my communications with her during this period.

Throughout the time that I served my client, I worked diligently and effectively in attending to the demands of her file and to providing legal services required by her.

On January 5, 2016, R.J. terminated my retainer and her file materials were returned to her shortly thereafter.

On February 8, 2016, R.J. submitted a Lawyer Complaint Form to the Law Society (the “Complaint”), which the Law Society proceeded to investigate.

The attorney fully cooperated in the investigation. (Mike Frisch)

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

An Oral Argument Worth Watching

The Washington State Supreme Court heard oral argument (video linked here) in a fascinating bar admission case argued by my colleague Shon Hopwood. 

The case involves review of a decision of the Bar Association to deny the applicant permission to sit for the bar exam on character and fitness grounds. 

The argument raises important issues about rehabilitation from serious misconduct and the appropriate standard of review of a 6-3 board recommendation against admission. In particular, there are questions whether adverse findings below were rooted in gender perceptions.

Note how engaged multiple members of the court are with the record and the issues. I was particularly impressed with Justice Yu. 

The case of Tarra Simmons is recounted in my network news

On Saturday a former Washington state prison inmate will graduate magna cum laude from Seattle University School of Law. But her criminal record may prevent her from practicing law as a licensed attorney.

Tarra Simmons’ story could be a movie. She was a nurse, a mom and a wife. Then in 2010 her father, whom she was caring for, died suddenly. After his death, she said, she started using meth and abusing prescription drugs.

“Within 10 months of using, I was arrested three times and eventually sent to prison,” Simmons said in an interview about prison reentry on TVW’s “Inside Olympia” program.

Her final arrest was for delivery of Oxycodone, possession of marijuana with intent to deliver and unlawful possession of a firearm. Simmons spent 20 months behind bars and went through a drug treatment program. She was released in 2013 and her life was in tatters.

“Nobody would hire me because of my criminal record,” Simmons recounted. Her home was in foreclosure and she had to declare bankruptcy.

“I had a lot of barriers,” she said.

Eventually she did get a job at Burger King.

Through it all Simmons got help—a lot of help—from lawyers. They helped with her foreclosure, with the debt that had piled up while she was in prison, and with family law issues relating to her children.

But these attorneys did more than help. They also saw potential in Simmons and encouraged her to apply to law school, which she did.

“I decided that if I was having all of these problems and I have some education in my background, and I have some other privilege, that there’s a lot of people that are suffering,” Simmons explained.

She figured that, as a lawyer, she could help others navigate the hurdles to re-entering society after serving time in prison.

In 2014, Simmons was accepted to Seattle University Law School. Awards and recognition followed. She was named a King County Bar Foundation Scholar and a King County Washington Women Lawyers Scholar. In 2015 she received a Public Interest Law Foundation Grant. And in 2016 she became a Legal Foundation of Washington Goldmark Fellow.

Also in 2016, Gov. Jay Inslee appointed her to the state’s new 15-member Statewide Reentry Council, which she now co-chairs with King County Prosecutor Dan Satterberg.

This year Simmons became only the second student from a Washington state law school to receive a prestigious national Skadden Fellowship. Described as “a legal Peace Corps,” the 29-year-old fellowship program, sponsored by the Skadden law firm in New York, allows recent law school graduates or those finishing judicial clerkships to devote two years to providing civil legal services to the poor. Simmons was awarded the fellowship to work with recently released prisoners.

When Simmons graduates from law school on Saturday she will be awarded the Dean’s Medal for the graduating student “who has the greatest potential to achieve the legal profession’s most noble aspirations for justice and ethics.”

But despite all the accolades, all the honors, and all the successes Simmons has achieved, she’s just been dealt a major setback: Simmons may not get to join the legal profession—at least not right away.

This wasn’t something Simmons was going to talk about publicly yet. But the story came out as she spoke on “Inside Olympia” about her role on the governor’s reentry council and the challenges people like her face after prison.

Here’s what happened.

About a month ago, the Washington State Bar Association’s Character and Fitness Board, on a vote of 6 to 3, recommended against Simmons’ admission to the bar.

All applicants to take the Washington Bar Exam must pass a character and fitness review before they can take the test. For the vast majority it’s a formality. But some applicants get flagged and must make their case to the board. That Simmons was one of them, given her background, wasn’t a surprise. The recommendation not to admit her, though, was.

“It’s very hard, personally for myself and for my children,” Simmons said. “[It sends] a strong message to the community that second chances are really, really hard to get.”

Right now, she can’t even sit for the exam as she had planned to in July.

The Bar Association’s character and fitness review is guided by court rules and takes into account many factors including past unlawful conduct, neglect of financial responsibilities and disciplinary action by any professional licensing agency.

On paper, Simmons has several red flags: felony convictions, bankruptcies and enforcement action against her by the state’s nursing board.

The Washington State Bar Association doesn’t comment on specific cases. But Jean McElroy, the association’s general counsel, said when deciding on character and fitness, the board considers how recent and serious the misconduct was, and its cumulative nature.

“The Board wants to treat everybody fairly and equally,” McElroy said. “And there are people who come in and have great records … but within what the board is looking at, the board just isn’t comfortable that they’re there.”

McElroy added the board must consider not just the fitness of the applicant, but also the protection of the public.

“There’s all sorts of trust that’s put into lawyers,” she said, noting that some states won’t allow anyone with a felony record to become an attorney. Washington is not one of those states.

But still, the recommendation not to admit her is confounding to Simmons and her supporters. She delivered to the board more than 100 letters of recommendation, including one from a judge on the Washington Court of Appeals.

“It’s disappointing,” said Elizabeth Hendren, an attorney at the Northwest Justice Project who first met Simmons when she was in prison and was among those who encouraged her to go to law school.

“She’s already had more accolades and success than many attorneys have throughout their careers,” Hendren said.

Prosecutor Dan Satterberg, Simmons’ co-chair on the reentry council, added, “I have never met any law student more prepared to be a contributing member of the Bar than Tarra.”

But the door to her legal career hasn’t slammed completely shut. Simmons will request a review of the board’s recommendation by the Washington Supreme Court, which has the final say on admission to the bar.

“I think the Supreme Court should take a look at this matter and reverse the Board’s decision,” Satterberg said in an email.

If that’s not successful, Simmons would be able to reapply for admission in one year.

In the meantime she would be able to conduct a limited law practice under the supervision of a licensed attorney. The logistics, though, would be difficult because her sponsoring law firm is in Seattle and the work she planned to do is in Kitsap County.

Simmons said without a license to practice, she might focus on advocacy work instead of legal representation.

One thing she doesn’t have to worry about: losing her Skadden Fellowship. She’s been told she can keep it.

“We deeply believe in her and we believe that this will be resolved amicably,” said Susan Plum, director of the Skadden Foundation. “She just projects resilience and what could be better for the clients?”

Amid the bad news about the Bar Association, Simmons recently received another gubernatorial appointment—this one to the state’s Public Defense Advisory Committee.

The ABA Journal also covered the appealed decision. (Mike Frisch)

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

Suspended In Vegas

The Nevada Supreme Court imposed a four-year suspension, rejecting a more lenient proposed by the parties

Reade and the State Bar initially entered into a conditional guilty plea agreement under which Reade stipulated to violating RPC 8.4(b) (misconduct) and a suspension for 2 years. A Southern Nevada Disciplinary Board hearing panel approved the agreement. However, we rejected the conditional guilty plea because the 2-year suspension was insufficient. On remand, Reade again stipulated to violating RPC 8.4(b) (misconduct), and the hearing panel recommended that Reade be suspended from the practice of law in Nevada for 30 months and be required to pay a $25,000 fine to the Clients' Security Fund. This automatic review followed.

The court upped the suspension but further ruled

Reade's challenge to our authority to impose fines in addition to suspension or disbarment pursuant to SCR 102 is a matter of first impression. Based on the plain language of SCR 102, we conclude that this court can only impose a fine in conjunction with a public reprimand or a letter of reprimand.

Considering all of these factors, we agree with the panel's recommendation that Reade be suspended. However, we do not agree that a 30-month suspension is commensurate with the criminal conduct that resulted in Reade's conviction. In fact, this court has imposed longer suspensions in similar cases involving attorneys convicted of felonies and violations of RPC 8.4(b).

The case is Matter of R. Christopher Reade. 

The Las Vegas Review - Journal reported on the crimes.

Reade admitted in his plea agreement that he hid from authorities the role of Young in the $2.3 million purchase in 2007 of a company that brokered sales on the high-risk foreign currency exchange market.

At the time, Reade represented Young and his Global One Group, an Internet-based company that claimed to be training people how to trade on the currency exchange market. Young ran his massive fraud scheme online through Global One, defrauding investors out of $16 million between 2006 and 2008, according to federal prosecutors.

Reade acknowledged that Young and Global One funneled the $2.3 million into a holding company Reade created to purchase the currency exchange broker, Trend Commodities, and lied to regulators about it.

“Defendant Reade knew that his representations were false and that Young had committed the offense of money laundering by directing the transfer of money … for the Trend purchase,” Read’s plea agreement states.

(Mike Frisch)

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

California Here He Comes (With A Valid New Jersey License)

A reprimand was imposed on an attorney by the New Jersey Supreme Court, which adopted the sanction proposed by the Disciplinary Review Board.

Notably, the attorney had abandoned the client, left the state with no forwarding address and defaulted on the bar charges.

 Count one of the complaint alleged that, on an unspecified date, Cheryl Star retained respondent to represent her in a FINRA dispute.  According to the complaint, FINRA is the financial industry’s regulatory body for brokers. Thereafter, Star provided respondent with stock statements and tax returns and paid him $2,000 against a contingent fee for the representation.

After the FINRA arbitration was adjourned to July 2012 with no notice to Star, she became dissatisfied with respondent’s lack of communication and terminated the representation. Prior to the adjourned date, Star retained a new attorney.

At some point, respondent had closed his office and moved first to California and then to Chicago. He never notified Star of his relocation...

Count two of the complaint alleged that respondent moved to California without informing Star or providing her with his new address., and that he was silent about any plan to continue representing her. Further, respondent failed to notify the Supreme Court "that he was moving [out] of the State of New Jersey."

As a result of respondent’s silence, Star was left to wonder what happened to her file and whether respondent had filed her FINRA claim, actions "contrary to the proper administration of justice and the proper handling of this matter."

Abandon client, check.

Abandon practice, check.

Fail to respond and participate in bar grievance process, check. 

Please help me understand how this is a matter worthy of a reprimand. (Mike Frisch) 

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

Thefts Draw Permanent Disbarment

An attorney's misconduct drew an order of permanent disbarment from the Louisiana Supreme Court

In their reports, the hearing committee and the disciplinary board concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar. We agree. The deemed admitted facts and supporting documentary evidence indicate that respondent converted approximately $70,000.  Respondent converted funds belonging to multiple clients, negotiated a settlement check with the forged endorsement of a client, failed to forward funds owed to a medical provider, and converted funds belonging to co-counsel. Respondent also failed to make restitution to any client or third party. This conduct amounts to repeated or multiple instances of intentional conversion of client funds with substantial harm, as required by Guideline 1 of the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E.

Respondent’s conduct demonstrates a disregard for his clients and for his duties as an attorney. In order to protect the public and maintain the high standards of the legal profession in this state, we find respondent’s license to practice law in this state must be revoked, and he must permanently forfeit any opportunity to return to the practice of law in the future. Accordingly, we will adopt the board’s recommendation and permanently disbar respondent. We will also order respondent to make restitution to his former clients and to third parties, as appropriate.

 (Mike Frisch)

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

$30 Million Dollar Man

Automatic disbarment was imposed as a result of a federal felony conviction by the New York Appellate Division for the Second Judicial Department

During the respondent’s plea allocution, he admitted that he voluntarily took part with others to conspire and defraud the banking industry as alleged in the indictment. Specifically, from January 2003 to January 2008, the respondent, with others, devised a scheme to defraud certain financial institutions by obtaining more than $30 million through materially false and fraudulent statements In mortgage loan applications, and by concealing material information regarding the collateral values of properties that were supposed to secure the mortgages.

Under the circumstances of this case, we conclude that the respondent’s conviction of conspiracy to commit bank fraud, in violation of 18 USC §§ 1349 and 1344, constitutes a felony within the meaning of Judiciary Law § 90(4)(e). By virtue of his federal felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

A press release from the United States Attorney for the Eastern District of New York describes the charges.

At each closing, Petiton, an attorney admitted to practice in New York State, oversaw the actual sales to innocent sellers, and simultaneously created sham trusts into which title to the properties was transferred for no money. He and the coconspirators then immediately transferred title back to the co-defendants at nearly double the price to create a false paper trail documenting the artificially-inflated prices. Meanwhile, real estate appraiser Joseph Mirando prepared false appraisal reports to justify the inflated prices, while HTFC closing attorney Eric Finger concealed the far lower, true sales price for properties by lying on federal-mandated settlement forms. Finger received wire transfers of funds from the warehouse lenders, and after paying the innocent third-party sellers, disbursed the surplus money fraudulently obtained in the mortgages to his fellow co-conspirators.

(Mike Frisch)

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

Wednesday, November 15, 2017

(844) FIX-TICKET

A public reprimand from the South Carolina Supreme Court

To market his legal services, Respondent sent direct mail solicitation letters to potential clients who received traffic tickets. A recipient of one of the letters filed a complaint with the Commission on Lawyer Conduct. In response to the complaint in this matter, Respondent acknowledged the following violations of the Rules of Professional Conduct in his solicitation letters:

1.          Respondent used the tagline "attorneys at law" on his law firm letterhead. The tagline was misleading because Respondent is a solo practitioner.

2.         Respondent claimed that he has "28 years experience both as a lawyer and former law enforcement officer" in his solicitation materials. Respondent acknowledges the claim was misleading because he has only been a lawyer and former law enforcement officer for sixteen years. Respondent's intention was to relay that he has twenty-eight years total experience as a law enforcement officer and as a lawyer combined.

3.          Respondent used the telephone number (844) FIXTICKET. Use of the phoneword is the equivalent of a nickname, trade name, or moniker and is likely to create unjustified expectations or an implication that he can achieve results by unethical means. Furthermore, the phoneword is a moniker that implies an ability to obtain a certain result.

4.          Respondent stated in his solicitation letters that he learned about the recipient's traffic ticket from "court records." Respondent's identification of the source of his information was not sufficiently specific.

Website

Respondent's solicitation letter specifically referred the recipient to the website of Respondent's law firm. On his website, he claimed he has "unique insight into the South Carolina traffic laws that many other lawyers simply do not have." Respondent admits this claim cannot be factually substantiated.

On Line Profile

The solicitation letter specifically referred the recipient to Respondent's profile on www.avvo.com ("AVVO"), a legal marketing website. AVVO creates profiles for attorneys without their consent, knowledge, or participation, then invites them to "claim" their profiles and participate in a variety of AVVO marketing activities, including "ratings," peer endorsements, client testimonials, and online contact with prospective clients. Respondent claimed his AVVO profile and used the website to market his legal services.

The attorney had been confidentially admonished in 2013 for a response to a negative client review, in part

This is just an ungrateful former client who now wants to "blame his lawyer" because of what "he" did. This is typical of a very young person who has a lot of growing up to do. To my former client: Do me a favor. The next time you are arrested, call a public defender and see what happens and after you sit in jail for 3 months they might get around to sending you a form letter. Good luck.

Here

In reviewing Respondent's AVVO profile in connection with the investigation of the current complaint, ODC discovered Respondent had not removed the offending post after receiving the admonition. Respondent never removed the offending post after receiving the admonition, which he admits he should have done.

(Mike Frisch)

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

Not OK In Oklahoma

The Oklahoma Supreme Court accepted an attorney's resignation for the following admitted misconduct

Respondent is aware that a grievance was lodged against him, DC 15-117, and is pending with the Office of the General Counsel of the OBA. The grievance alleges that from approximately 2008 through 2014, Respondent improperly obtained Department of Public Safety media emails for the purpose of obtaining and forwarding accident report information to employee(s) of his law firm. The grievance alleges that from 2008 though 2012 the emails were obtained by Respondent establishing and controlling a fictitious media outlet solely for that purpose and that from 2012 through 2014, Respondent improperly obtained the emails from an Oklahoma Highway Patrol Trooper. The grievance alleges that the employee(s) would use the Department of Public Safety media emails to identify and contact accident victims on Respondent's behalf for the purpose of soliciting professional employment. The grievance further alleges that Respondent trained, controlled, supervised, and paid the employee(s) to solicit and recommend his services as an attorney.

 Respondent is aware that, if proven, the allegations concerning his conduct would constitute violations of Rules 7.2(b), 7.3(a), 8.4(b), and 8.4(c) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2011, ch. 1, app. 3-A, Rule 1.3, RGDP, and his oath as an attorney. Respondent waives any right to contest the allegations.

(Mike Frisch)

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

Recorded Jail Conversations Get Attorney Disbarred

The Tennessee Supreme Court disbarred an attorney for misconduct that was caught on audiotape in conversations with his incarcerated cousin.

The cousin was charged with domestic assault.

The captured conversations related to the attorney's providing false testimony at the cousin's bond hearing regarding the true source of bond money. He further described teir plan to coerce the victim into not testifying. 

The Tennessean reported

Former Metro Councilman Loniel Greene lied in court, and he won’t face criminal charges for it.

Greene was in court Wednesday for a second time, testifying that he was now being honest that he used someone else's $10,000 — not his own earnings — to get his cousin out of jail in a domestic violence case.

He confirmed that he made a deal with prosecutors. In exchange for Greene’s truthful testimony Wednesday and resignation from Metro Council, he would not face perjury or money laundering charges related to his first court appearance Jan. 6.

Prosecutors wanted Greene’s cousin, Tavares Buchanan, to go back to jail, arguing a judge should revoke his bond because he was still making threats to the woman police have accused him of beating up.

So they used evidence — jail phone calls between Greene and Buchanan and then Greene’s own testimony — to show Greene lied about the source of the money he used to post bond.

 On Jan. 6, Greene told a judge the $10,000 he was posting to get Buchanan out of jail was his own money, according to court documents.

But on Wednesday, he admitted in court that was not true, and the money came from a stash at Buchanan’s mother’s house. He said he was only trying to help his family. He appeared in court with his attorneys, Ed Yarbrough and Alex Little of Bone McAllester Norton law firm in Nashville.

In a series of questions, Assistant District Attorney General Danielle Nellis asked Greene if he did say in the first court hearing that the money for the bond was his..

"I did," Greene replied.

"Was that true?" Nellis asked.

"It was not."

"Were you under oath at that time?"

"I was."

The rookie councilman represented District 1, which includes the Bordeaux and Joelton areas. He resigned Friday, one day after prosecutors filed court papers questioning his honesty in the January bond source hearing.

In cross-examination with Justin Johnson, Buchanan's attorney, Greene denied trying to influence the woman, Sparkle Johnson, not to come to court. That was another allegation made by prosecutors in court papers filed last week. 

 Buchanan was arrested Dec. 30 and charged with aggravated kidnapping and aggravated assault. Metro police detective Chad Young testified that Buchanan was arrested that day after leaving Greene's house.

Police seized three cellphones: one that was powered on found in Buchanan's pocket and two that were turned off and found in his car, Young testified. Young said Nashville detective Chad Gish uncovered videos on one of the phones that show the woman injured and naked with an expletive written on her forehead, and show a man that looks like Buchanan at the scene.

Those videos were taken the day after Christmas and before Buchanan was arrested, Young said.

Criminal Court Judge Mark Fishburn heard testimony from Greene and Young and said that Buchanan would remain out of custody, placed on house arrest and GPS monitoring.

The hearing on whether to revoke Buchanan's bond continues Tuesday. Johnson, the defense attorney, asked for the delay, saying he’d been hired only 36 hours before.

Fishburn warned that anyone — Greene included — trying to contact the woman could lead to contempt of court charges.

Greene on Wednesday gave his side of the story about the explicit language in the jail phone calls, and statements that he would "work on" the victim. He said he was the godfather of Buchanan's son. The boy's mother is the woman Buchanan is accused of abusing.

MORE: Listen to the jail phone calls here.

Greene said the woman had brought charges against Buchanan before, but always dropped them. He said the seriousness of the current charges against Buchanan made him worry Buchanan would hurt himself, and he had been counseling Buchanan and the woman.

"Your honor, what’s missing here is Mr. Buchanan and Ms. Johnson have had a toxic and violent relationship for years," Greene said.

He said he was not talking as a councilman or an attorney but as a cousin when he made those jail calls. He apologized for his language.

But Fishburn said Greene's tone in the calls did not fit his story that he was just trying to help the couple.

The "defendant never asked you to do something to influence victim in this case, is that your testimony?" the judge asked.

"Yes, your honor," Greene replied.

Fishburn replied by reading a transcript, provided by prosecutors, of what Greene now admits he said in those calls, including the statements:

“Let me, let me work on her. Because s---, they gonna need her … let me work on her.”

“You just can’t try to just throw him up the river and then think that you gonna be accepted in the family, that just don’t work.”

“’Cuz this game you try to play. You try to play the system, mother f----- I am the system.”

Fishburn said that was Greene abusing his authority as a councilman.

Greene appeared in court to post his cousin's bond about two months after he was shot three times near a West Nashville gas station. Greene told police he followed someone he thought he recognized away from the gas station.

Many details of the interaction remain unclear.

Police have not been able to talk to their suspect, Brandon Hunt-Clark, who is in jail in Mississippi on an unrelated robbery charge.

The same source reported on the cousin's crime. (Mike Frisch) 

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

Responsible Behavior After Bankruptcy Leads To Conditional Admission

A conditional admission was granted by the Louisiana Supreme Court

Petitioner applied to take and successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) subsequently declined to certify petitioner for admission to the bar based on facts and circumstances pertaining to the neglect of his financial responsibilities. Petitioner then applied to this court, seeking admission. We denied the application, with the provision that he could not reapply for admission for a period of three months, “and only after providing documentation that he has made arrangements to satisfy his financial responsibilities.” In re: Committee on Bar Admissions CFN- 945794, 15-2299 (La. 2/5/16), 183 So. 3d 507

One year later, petitioner filed the instant petition, representing that he had obtained an order of discharge in bankruptcy of the debts cited by the Committee. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. During the proceedings, petitioner introduced evidence that although some of his debts had been discharged in bankruptcy due to circumstances beyond his control, he had reaffirmed other debts, including his vehicle and an office building. Furthermore, petitioner introduced evidence that he had entered into a monthly payment arrangement with his student loan creditor. Petitioner also introduced evidence that he had made payments to the IRS to satisfy a portion of a federal tax lien against him and had entered into a monthly installment agreement with the IRS to satisfy the remaining sum due. Thereafter, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. Neither party objected to this recommendation.

Considering the commissioner’s recommendation and the entire record of this proceeding, we conclude petitioner is eligible to be conditionally admitted to the practice of law in Louisiana, subject to a probationary period of three years.

This order provides quite a bit more detail than most Louisiana conditional admission orders. (Mike Frisch)

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

Risk To The Public Justifies Interlocutory Suspension

The Law Society of Upper Canada Tribunal Hearing Division suspended an attorney on an interim basis

The Law Society originally brought this motion on December 19, 2016 for an interlocutory suspension of the respondent's licence to practise law. At the time, there were five complaints against Mr. Cengarle and five civil actions against him. The complaints alleged that the Respondent's assistant of about 30 years, Rose De Filippis, was running a fraudulent investment scheme through Mr. Cengarle's trust account. It was alleged that millions of dollars were owed to clients as a result of investments that took place in 2015 and 2016. The Law Society's investigation of the complaints was ongoing.

In response

The respondent was self-represented. He indicated at the hearing that he consented to an interlocutory suspension, but after the Law Society made its submissions, Mr. Cengarle took the position that there was no risk to the public or the administration of justice, and therefore the statutory requirements for an interlocutory suspension were not met. The Respondent, however, did not make any submissions or file any factual material in support of his position, other than to argue that the starting date for the suspension should be October 31, 2017 rather than September 1, 2017, as submitted by the Law Society.

The evidence

There are some 14 claims, and 19 complainants, relating to allegedly criminal conduct in the respondent's office over a period of several years that was discovered by clients and Mr. Cengarle over the last two years. Ms. De Filippis appears to be the prime perpetrator of a series of transactions in which she solicited and or received funds from the respondent's clients, most but not all intended by the clients as investments. The monies were paid into Mr. Cengarle's trust account, and in some cases periodic interest was paid, but when it came time for repayment of the principal amount and accrued interest, large amounts of money were missing.

 Before initiating this suspension motion last December, the Law Society was investigating complaints against the respondent that raised several issues:

a.            mishandling and or misappropriating trust monies;

b.            involvement in allegedly fraudulent investment, real estate and mortgage schemes;

c.            failure to adequately supervise his staff;

d.            failure to report his legal assistant's misappropriation to the Law Society; and

e.            acting without instructions from his client.

The danger

 There are reasonable grounds for believing that there is a significant risk of harm to the public if an order suspending the respondent's licence is not made: 

a.            Mr. Cengarle either knowingly or recklessly facilitated Ms. De Filippis' alleged fraudulent scheme by failing to supervise or question her as she directed funds into and out of his trust account.

b.            Mr. Cengarle admitted that he learned at least by August 2015 that Ms. De Filippis had possibly engaged in improper self-dealing, yet he did not terminate her employment and did not report the allegations to the Law Society until after the commencement of the Law Society's investigation in August 2016.

c.            Mr. Cengarle admitted that Ms. De Filippis had access to his Teranet key and she knew his password.

d.            Mr. Cengarle was previously disciplined for an issue involving client funds being loaned to Ms. De Filippis in preference to an estate and its beneficiaries. The hearing panel, as noted, referred to Ms. De Filippis as the respondent's "…long-time employee and business partner," and stated that he acted out of personal loyalty to her, contrary to the best interests of his client. 

There are reasonable grounds for believing that there is a significant risk of harm to the public interest in the administration of justice if an order suspending the respondent's licence is not made:

a.            Misappropriating trust monies is misconduct that connotes lack of honesty and integrity on the part of a lawyer.

b.            On the evidence before us, it appears that Mr. Cengarle knowingly or recklessly facilitated Ms. De Filippis' alleged fraudulent scheme by failing to supervise or question her as she directed funds into and out of his trust account.

c.            Public confidence in the administration of justice includes, as a significant component, public confidence in the legal profession and in its governance and regulation.

d.            If the Respondent were allowed to continue to practise law in these circumstances, public confidence in the profession and the administration of justice would be eroded.

An interlocutory suspension is likely to reduce the risk of harm to the public because Mr. Cengarle will not have access to clients and client funds. A suspension, publicly noted on the Law Society's website, will maintain public confidence in the integrity of the profession and thereby reduce the risk of harm to the public interest in the administration of justice.

There is no indication that lesser measures would suffice in these circumstances. Taking all of these considerations into account, we exercised our discretion to order an interlocutory suspension.

An approach that gives appropriate weight to the public interest. (Mike Frisch)

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

Backburned

An Ad hoc District of  Columbia Hearing Committee recommends a stayed suspension of a solo practitioner for misconduct in a court-appointed criminal matter.

Here, Respondent conceded that, from his appointment on April 2, 2014 to his removal on July 10, 2015, he did not take any steps necessary “to advance Mr. Thompson’s case or pursue his legal interests.” Stip. 9. As he admitted in his testimony, he put the case on a “backburner” and neglected it...

Respondent violated Rules 1.4(a) and 1.4(b) by initiating, over the entire course of his representation of Mr. Thompson, only one substantive and two nonsubstantive communications with his client, while ignoring Mr. Thompson’s repeated attempts to contact him.

Bad enough but

Respondent’s misrepresentations to Mr. Thompson and the court regarding his supposed efforts to obtain the draft § 23-110 motion from Ms. Wicks violated Rule 8.4(c)...

Respondent admits that he falsely told the court that “both of us [Mr. Thompson and Respondent] were waiting for her [Ms. Wicks] to complete a draft,  23-110 petition,” when in fact Respondent had told Ms. Wicks not to send him the draft, and thus knew that his statement to the court was false. FF 30. This establishes a violation of Rule 3.3(a)(1).

The Hearing Committee rejected the request of Disciplinary Counsel for a stayed fitness requirement.

The case is In re Cary Clennon. (Mike Frisch)

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

Tuesday, November 14, 2017

At Most An Error Of Judgment, No Malpractice

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a counterclaim alleging legal malpractice

Defendant alleges that plaintiff committed legal malpractice by failing to file a timely motion for attorneys' fees in a federal patent proceeding in which it represented defendant. Defendant relies on Federal Rules of Civil Procedure rule 54(d)(2)(B), which sets the deadline at 14 days after entry of a judgment in the proceeding. It alleges that 16 months after the deadline, and following extensive posttrial proceedings, plaintiff moved for attorneys' fees as a sanction. As the motion court found, federal case law holds that a motion for attorneys' fees is timely under rule 54(d)(2)(B) when filed 14 days after the entry of judgment or within 14 days of the resolution of postjudgment motions (see e.g. Sorenson v Wolfson, 170 F Supp 3d 622, 628 [SD NY 2016], affd 683 Fed Appx 33 [2d Cir 2017]). Thus, the court correctly dismissed the counterclaim for failure to state a cause of action for legal malpractice predicated on the missed deadline.

On appeal, defendant argues that plaintiff's filing of a sanctions motion, instead of a motion for attorneys' fees as the prevailing party pursuant to 35 USC § 285, constitutes malpractice. We may entertain this new legal argument because it appears on the face of the record, involves no new facts, and is determinative (Vanship Holdings Ltd. v Energy Infrastructure Acquisition Corp., 65 AD3d 405, 408 [1st Dept 2009]). However, the argument does not avail defendant.

The record shows that plaintiff had contemplated filing a motion pursuant to 35 USC § 285 and decided against it. The statute provides that the court may award attorneys' fees to the prevailing party "in exceptional cases" (see Octane Fitness, LLC v Icon Health & Fitness, Inc., __ US __, __, 134 S Ct 1749, 1756 [2014]). Plaintiff advised defendant that it would be a "stretch" to argue prevailing party under § 285. Thus, defendant's theory that plaintiff breached a duty of care to it by choosing to apply for attorneys' fees via a sanctions motion instead of a motion under § 285 amounts to no more than an allegation that plaintiff made an error in judgment, which does not state a cause of action for malpractice (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Sitomer v Goldweber Epstein, LLP, 139 AD3d 642 [1st Dept 2016], lv denied 28 NY3d 906 [2016]).

Moreover, defendant failed to allege that the choice of a sanctions motion rather than a motion under § 285 was a proximate cause of its claimed injury, since there are no allegations in the counterclaim that would establish that the patent proceeding was an exceptional case [*2]warranting attorneys' fees (see Octane Fitness, 134 S Ct at 1756).

We have considered defendant's remaining arguments and find them unavailing.

(Mike Frisch)

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