Friday, March 23, 2018
The Maryland Court of Appeals has disbarred an attorney convicted of serious crimes
Respondent Claire L. K. K. Ogilvie violated Maryland Attorneys’ Rules of Professional Conduct 19-308.4(a), (b), and (d). These violations stemmed from Respondent’s criminal conviction for breaking and entering, malicious wounding, and abduction, all of which occurred in the Commonwealth of Virginia. The Court of Appeals held that disbarment was the appropriate sanction for Respondent’s misconduct.
The Daily Progress reported on the crime
A former high school teacher was sentenced to four years in prison after pleading guilty to breaking into House Minority Leader David J. Toscano’s home in February and assaulting his wife.
Claire Ogilvie, 36, pleaded guilty Friday to breaking and entering, malicious wounding and abduction by force or intimidation. She was sentenced to 50 years in prison, with all but four suspended.
As part of the plea agreement, prosecutors removed a clause stating Ogilvie had a deadly weapon from the breaking and entering charge. If convicted on the charge as it originally stood, Ogilvie faced up to a life sentence.
Tramontin left her house for about half an hour to take her son to practice. The door to the house was unlocked when she returned, but Tramontin thought she could have left it that way, Haislip said.
Inside the house, smoke detectors started beeping and wouldn’t stop, as if the batteries were dying, and this led Tramontin to check the basement. Once Tramontin reached the basement, she was jumped from behind and pushed to the ground, Haislip said. Her hands were tied behind her back with a soft material, possibly a cloth.
Ogilvie told Tramontin to stay on the floor and started questioning her, at one point striking her head multiple times with a pipe that had a faucet handle attached to it, causing Tramontin’s face to bleed, Haislip said.
At some point, Ogilvie tried to get her to go to the laundry room and Tramontin refused. Tramontin bit Ogilvie’s finger hard, causing Ogilvie to lose her grip on the pipe. Haislip said Tramontin was able to get the weapon and hit Ogilvie on the head.
Ogilvie’s demeanor then changed and Tramontin was able to talk her down by saying she could be part of the family again. He said Tramontin wanted Ogilvie to leave before her son came home.
The women cleaned up and Ogilvie left. Once Tramontin’s son was home, they went to the emergency room, as she was bleeding profusely.
Haislip said Ogilvie didn’t have permission to be in the house and authorities later found photographs that proved she had broken in before. He said she either came in with a key from when she watched their house while still on good terms, or through an open window in the basement.
She had written a letter asking not to be suspended or disbarred
 I do not feel that my charges violate the Maryland Rules of Professional Conduct. While these convictions would reflect adversely on myself as a person, they do not do so on my honesty, trustworthiness, or fitness to practice law specifically. Although an attorney is personally answerable to all criminal laws, she should be professionally answerable only for those offenses indicating a lack of characteristics desirable and relevant to law practice, such as those involving dishonesty, fraud, or the like.
In addition, my experiences while incarcerated have in fact made me more fit to practice law. The injustices I’ve witnessed and experienced, including those committed by my own attorney, have opened my eyes to the inadequate resources available to defendants, and the prejudice defendants face in the criminal justice system and in the media.
Respondent’s illegal acts negatively impact the public’s perception of the legal profession. See id. Respondent unlawfully entered the home of another, and maliciously wounded and abducted someone in that home. Any one of these offenses negatively impacts the public’s perception of the legal profession. When we consider the illegality and egregious nature of the acts collectively, it is very clear that Respondent’s actions or similar conduct carried out by an attorney would leave the reputation of the legal profession in disrepute. We, therefore, conclude that Respondent violated MARPC 19-308.4(d)...
Although Respondent’s criminal conduct may not rise to the level of egregiousness as the attorneys’ conduct in Greenleaf and Painter, her conduct surely rises above the level of severity as that of the attorneys in Kerpelman, Clinton, Dechowitz, and Sheinbein. Considering the felonious nature of Respondent’s conduct, her criminal conviction and sentence, her failure to report her charges and conviction to Bar Counsel, and the absence of any extenuating circumstances, we concluded that Respondent’s “serious criminal conduct” warrants disbarment.
The Kentucky Supreme Court ordered the temporary suspension of an attorney based on a motion by the Inquiry Commission of the State Bar
Gray represented his client in a civil case in Jefferson Circuit Court, the trial"for which was held in December 2017. On the last day of trial, Gray delivered an hour-long closing argument. Gray's demeanor and performance during the argument concerned the trial judge, and after the jury returned its verdict against Gray's client, the trial judge asked Gray to submit to a breathalyzer test. Gray acquiesced and blew a .337 on the breathalyzer. Emergency medical services were called and Gray was taken to a local hospital by ambulance.
Because the Commission has shown probable cause that such a substantial harm exists, we hereby temporarily suspend Gray from the practice of law.
Domestic violence violence draws a three-month suspension from the New Jersey Supreme Court.
The Disciplinary Review Board reported
On March 29, 2016, respondent appeared before the Honorable Mitzy Galis-Menendez, J.S.C., Superior Court of New Jersey, Hudson County, and pleaded guilty to third-degree aggravated assault, admitting that, on April 5, 2015, he attempted to cause significant bodily injury to his wife by punching her and causing her nose to bleed.
The attorney entered into diversion with anger management.
Apparently because there was no final judgment of conviction, the DRB refused to admit and consider the police report of the crime.
The OAE maintained that domestic violence is a serious crime and that an aggravated assault conviction should result in a term of suspension. The length of the suspension is dependent on the circumstances of the case, the disciplinary history of the attorney, and a review of the aggravating and mitigating factors. Because respondent’s conduct was severe in nature with only slight mitigation, the OAE recommended a three-month or six-month suspension.
Respondent sought a censure and
Respondent also offered evidence to support his belief that his wife married him only for her own immigration purposes and that his resistance to assist her in making misrepresentations on her citizenship application led to the altercation.
The DRB found some mitigation but did not consider "unblemished record" as such since the crime was committed only a year after his 2014 admission. (Mike Frisch)
How many attorneys are admitted in both Tennessee and Vermont?
At least one, who was reciprocally censured by the Vermont Supreme Court
On January 30, 2018, Disciplinary Counsel for the Professional Responsibility Board filed with the Court a certified copy of an Order of Public Censure of respondent entered by the Board of Professional Responsibility of the Supreme Court of Tennessee. The Tennessee Board of Professional Responsibility found that respondent engaged in a pattern of collecting a partial attorney fee from clients in Chapter 7 bankruptcy proceedings and requiring the clients to make installment payments on the remainder of his fees after their bankruptcy petitions were filed. Respondent failed to advise his clients that they had no legal obligation to pay the remainder of his fees after their petitions were filed. Respondent collected post-petition attorney fees from his clients, which constituted a concurrent conflict of interest since respondent put himself in the position of creditor with his own clients. In certain cases where his clients failed to comply with their installment payments, respondent filed civil collection actions against them after their debts were discharged in bankruptcy in violation of federal law. Additionally, in his collection actions, respondent requested a one-third fee above and beyond the amount alleged to be owed as an attorney fee while acting in a pro se capacity. The Tennessee Board of Professional Responsibility concluded that by these acts, respondent violated Tennessee Rules of Professional Conduct 1.1 (competence), 1.4 (communication), 1.5 (fees), 1.7 (conflict of interest), 1.9 (duties to former clients), 3.1 (meritorious claims), and 8.4(a) and (d) (misconduct), and it publicly censured respondent for these violations.
The District of Columbia Court of Appeals denied the motion of a recently-disbarred attorney to withdraw his consent.
On further consideration of this court’s January 18, 2018, order that disbarred respondent by consent, effective January 22, 2018, respondent’s motion to withdraw his consent to disbarment, the opposition of Disciplinary Counsel and reply thereto, and the motion of Disciplinary Counsel to file attachments 14 and 16 to his opposition under seal, it is
ORDERED the motion of Disciplinary Counsel to file attachments 14 and 16 under seal is granted and the Clerk shall seal these attachments. It is
FURTHER ORDERED that respondent’s motion to withdraw his consent to disbarment is denied.
Associate Judges Glickman and Thompson and Senior Judge Steadman were on the order.
Our coverage of the consent of the former D.C. city councilman. (Mike Frisch)
The Kansas Supreme Court has disbarred an attorney who offered to surrender his license after oral argument.
He was intoxicated at his discipline hearing on four complaints.
On February 8, 2018, at 9:45 a.m. a hearing panel of the Kansas Board for Discipline of Attorneys convened a hearing on the formal complaint. During the hearing, the hearing panel became concerned that the respondent was under the influence of alcohol. The hearing panel recessed the hearing, made arrangements for alcohol testing, and requested the respondent submit to testing to determine the presence of the alcohol. The respondent agreed to submit to the testing. A representative from the Kansas Lawyers Assistance Program along with a representative from the Disciplinary Administrator's office transported the respondent to a facility for the alcohol testing. The respondent's breath alcohol concentration at 11:17 a.m. was .185. To validate its accuracy, a second test was administered at 11:33 a.m. indicating a breath alcohol concentration level of .200. Also on February 8, 2018, the Disciplinary Administrator filed a motion for temporary suspension requesting that the court issue an order to the respondent to show cause why his license should not be temporarily suspended. On February 13, 2018, the court issued an order to show cause and scheduled the matter for argument on March 6, 2018. On March 6, 2018, Kimberly L. Knoll, Deputy Disciplinary Administrator, and the respondent appeared before the court and argued the motion for temporary suspension. For good cause shown, on March 7, 2018, the court granted the motion and ordered the temporary suspension of the respondent's license to practice law.
This court finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.
Our coverage of the oral argument on the Administrator's motion for temporary suspension is linked here.
Oral argument video linked here. (Mike Frisch)
Thursday, March 22, 2018
The Florida Supreme Court has disbarred an attorney
The egregious facts, as found by the referee, demonstrate Gilbert’s failure to exercise any supervision over Steven Sacks, Gilbert’s employee with a known history of wire fraud and embezzlement of more than $7 million. Even after Gilbert was warned by Sacks’ probation officer of the risk of financial irresponsibility and his opinion that Sacks should not be working at a law firm given his criminal past, Gilbert did nothing. In fact, shortly after hiring Sacks, when Gilbert became aware that Sacks had embezzled over $20,000 from the law firm’s operating account, Gilbert fired and then rehired Sacks, eventually delegating to Sacks all matters regarding the administration of Gilbert’s firm’s trust account. The details are set forth more fully below, but by the end of 2014 Sacks had embezzled nearly $5 million from the firm’s trust account.
Whether Gilbert was aware of or personally involved in the theft is not the critical inquiry. Indeed, this case gives new meaning to the phrase "turning a blind eye." Gilbert, as an attorney and fiduciary, was directly responsible for his firm’s trust account and for the supervision of employees. As an attorney, he owed a duty to the public and to his clients to safeguard their money. Instead, he flouted the system by lying to a federal probation officer and allowing a nonattorney to hold himself out as a law school graduate and a certified public accountant (CPA). Sacks was neither and never had been. For the reasons that follow, we approve the referee’s factual findings and recommendation as to guilt but reject the referee’s recommended disciplinary sanction and, instead, impose the sanction of disbarment.
Gilbert’s conduct was equally, if not more, egregious than that in Rousso. Gilbert hired and rehired a felon convicted of wire fraud, who had embezzled nearly $8 million. Gilbert never investigated the circumstances of Sacks’ prior criminal conviction and never verified Sacks’ assertions of his prior experience. He ignored the probation officer’s warnings that Sacks should not be trusted in a position of financial responsibility. Then, shortly after his employment, Sacks stole from Gilbert and was rewarded by being reemployed and given more responsibility. Additionally, Gilbert lied to Officer Feldman, intentionally preventing Officer Feldman from, as the referee found, "fulfilling his lawful function with the eventual harm to dozens of individuals and entities and the loss of approximately $4.8 million."
From the web page of the Colorado Presiding Disciplinary Judge
The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended Arron Burt Nesbitt (attorney registration number 40610) for one year and one day, with nine months to be served and the remainder to be stayed upon successful completion of a two-year period of probation, effective April 13, 2018.
In winter and spring 2016, Nesbitt, a law firm partner, was planning to join another firm. During the time leading up to his departure, he billed various clients for work that he did not perform. For example, he billed several hours for editing a report that he received from another attorney; that edited report was then sent to the client with few, if any, edits inputted. He billed time for reviewing deposition transcripts and medical records that his firm did not receive until after Nesbitt began working elsewhere. On a few occasions, Nesbitt billed clients for attending depositions, though the deposition transcripts do not reflect his presence at the depositions, nor do call logs show that he monitored the depositions by telephone. Nesbitt recklessly overbilled; he had no incentive or motive to improperly bill for tasks that he did not complete or perform.
Through this conduct, Nesbitt violated Colo. RPC 1.5(a) (a lawyer shall not charge or collect an unreasonable fee) and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).
The Minnesota Supreme Court imposed an indefinite suspension of an attorney admitted in 2010
The appropriate discipline for an attorney who misappropriated client funds, commingled client and business funds, made false statements to the Director, failed to cooperate with the Director’s investigation, created a false and misleading document, failed to maintain required trust account records, failed to safeguard and promptly refund an unearned retainer, made false statements to clients, neglected client matters, and failed to communicate with clients is, given the existence of substantial mitigating factors, an indefinite suspension with no right to petition for reinstatement for 18 months.
The attorney was admitted in 2010 and had no prior discipline. The misconduct involved six clients.
Klotz’s misconduct includes lying to the Director, not cooperating with the Director’s investigation, creating a false and misleading document, misappropriating client funds, and neglecting and lying to clients. Making false statements to clients and the Director constitutes serious misconduct...
Klotz’s pattern of making false and deceptive statements spanned more than a year He repeatedly lied to his clients when he claimed to be nearly done with work for them or that he had sent documents to them. He also lied to the Director in response to her initial inquiries about his trust account. Finally, Klotz produced a false and misleading chart and redacted his bank statements in a misleading manner to attempt to hide his misappropriation of P.C’s funds.
Klotz’s failure to cooperate with the Director’s investigation is also serious misconduct.
Notwithstanding the serious multiple violations
The Director argues that the type of stress the referee found is not sufficiently extreme or extraordinary to mitigate misconduct. But we have never examined whether particular stressors in an attorney’s life were objectively so extreme or extraordinary as to warrant mitigation. In prior cases, we have examined the particular facts and circumstances facing each attorney and whether the record showed that those stressors constituted extraordinary stress for that attorney. To create the legal threshold the Director requests would impose an objective standard onto what is an inherently subjective matter. Accordingly, we decline the Director’s invitation to set a legal threshold for the types of stress eligible for mitigation. We instead look to the record for factual support of any claims of mitigation due to extreme stress.
Here, the record establishes that, after his child was born, the stress that Klotz experienced increased by a significant amount. The referee found that Klotz suffered stress related to his son’s sleep problems, suffered substantial sleep deprivation, and experienced stress related to caring for his son while his wife worked long hours. The referee found that the stress Klotz experienced was “among the causes of his inability to manage his own practice and the ethical violations that resulted,” and “compound[ed] and exacerbate[d] respondent’s mismanagement of his practice.” Because evidence in the record supports this finding, the referee’s conclusion that extreme stress was a mitigating factor was not clear error.
A clean prior record was not mitigation.
As to the dishonesty
Because inexperience in practice does not mitigate acts of dishonesty, the referee clearly erred by finding that inexperience mitigated Klotz’s acts of dishonesty. The referee did not, however, err by finding that inexperience mitigated Klotz’s failure to safeguard client funds and trust account record violations. This finding is supported by the record, and the referee expressly noted that Klotz’s rule violations related to file management and his trust account stemmed from his ignorance, failure to learn, and gross negligence. Accordingly, the referee did not clearly err by concluding that Klotz’s inexperience mitigated some of his misconduct.
Wednesday, March 21, 2018
A conviction as an accessory after the fact to a securities fraud drew a four-year suspension from the New York Appellate Division for the Second Judicial Department.
On March 31, 2017, Judge Arthur D. Spatt of the United States District Court for the Eastern District of New York, in summarizing the facts, noted that the respondent had committed a “very bad act.” The sentencing court remarked as follows:
“Between January 2009 and February 2011, a period of approximately 25 months, this defendant, knowing that a crime has been committed, namely a conspiracy to defraud the United States through the commission of securities fraud, received and released, comfort[ed] and assisted, the offender in order to hinder and prevent the offender’s apprehension in violation of federal law. That’s the nature of the crime he pled guilty to.
“The defendant was an attorney for the company called Permapave Industries, Inc. He was convicted of being an accessory due to his assistance of the defendant Eric Aronson in covering up or attempting to cover up the fraudulent scheme to avoid detection.
“These other persons, Mr. Aronson and company, raised money by investments secured by promissory notes. When it became apparent that the promissory notes would not be paid, the defendant, as the attorney for the company, was involved in exchanging the promissory notes for convertible debentures. And, ultimately, the defendant, on January 8, 2009, sent a letter to investors holding the promissory notes with respect to what was happening.
“But the major point here, the major bad act, very bad act, was that the defendant let Aronson use his attorney escrow account to put the money away, to deposit and withdraw investor funds to keep the scheme operating and to help Mr. Aronson, and the defendant concealed the truth about this escrow account from investors.
“Portions of [the funds] in the escrow account [were] misappropriated by the defendant Aronson. And I don’t know whether any was taken by this defendant. I’m not sure about that.
“But it’s very difficult in this case to ascertain how many victims were defrauded as a result of this defendant’s action in this coverup. He was involved clearly in the coverup rather than commission of the crime.
“As set forth in the presentence report as revised, the defendant was the attorney who allowed Aronson to use his escrow account to deposit and withdraw funds which perpetrated the instant scheme. He worked with Aronson which resulted in a scheme where people were defrauded.
“This was an abuse of a position of public trust as he was a licensed and experienced attorney who knew that he could not use this attorney escrow account for anything like this.
The court noted mitigation but
Notwithstanding the Special Referee’s failure to mention any aggravating factors in her report, this Court notes the following aggravating factors: the respondent knowingly used his escrow account to shield funds from creditors, the respondent knowingly frustrated the judicial process when he agreed to use his escrow account to circumvent a freeze of Permapave’s bank accounts, the respondent minimized his culpability by denying knowledge of the fraud; and the respondent was an experienced attorney whose career included one year of full-time employment with the SEC. Moreover, contrary to the Special Referee’s findings, we find that individuals were harmed, namely, the investors who were defrauded. In covering up the fraudulent scheme, the respondent perpetuated the harm. While the respondent did not use the funds deposited into his escrow account for personal gain, he was paid a lucrative retainer fee of $10,000 per month for his services.
Under the totality of the circumstances, we conclude that the respondent’s criminal conduct warrants a suspension from the practice of law for a period of four years.
The North Carolina State Bar has filed a complaint alleging that an attorney had drafted a will for a client that, among other things, appointed himself as personal representative with a broad grant of discretionary authority.
The client died in May 2015.
Over the next two years, he paid himself $257,041.50 for 342.722 hours of work at $750 per hour. He paid himself from estate funds without court approval.
The complaint alleges that he falsely asserted to the Superior Court and the State Bar that $750 per hour was his standard rate.
He also is alleged to have charged the estate for non-legal services such as meeting with a locksmith and returning a modem to Time Warner cable. (Mike Frisch)
The North Dakota Supreme Court affirmed an admonishment of attorney who ran for a seat on the court
In 2016 Bolinske campaigned for a seat on the Supreme Court. As part of his campaign Bolinske issued a press release alleging in part that certain members of the judiciary hid court records from the public. He claimed a petition for a supervisory writ he filed with this Court against a district court judge was purposely hidden or misfiled under the docket number of another case on this Court's website.
The court's review
Although Bolinske raises arguments relating to the substantive evidence and merits of his informal admonition, we granted leave to consider Bolinske's appeal of the Disciplinary Board's decision "on the procedural issue of whether the Disciplinary Board acted arbitrarily, capriciously or unreasonably, in affirming the issuance of an admonition by Inquiry Committee West."
Bolinske argues the Disciplinary Board's decision affirming the admonition is arbitrary, capricious and unreasonable because its decision does not discuss what facts it considered and contains no analysis. He contends the Board's decision did not afford him adequate due process because he was not able to argue his appeal in front of the Board or attend the Board's meeting at which it considered his appeal...
Here, Bolinske appeared at the March 2017 Inquiry Committee West meeting and provided committee members documents he claimed supported his allegations. The Committee issued a written notice of disposition to Bolinske explaining its decision to issue an admonition. As allowed under N.D.R. Lawyer Discipl. 3.1(D)(8), Bolinske appealed the Inquiry Committee's disposition to the Disciplinary Board. The Board issued a written decision explaining it considered Bolinske's appeal and affirmed the Inquiry Committee's decision to issue an admonition. Bolinske claims he should have been able to attend the Board's meeting; however, the disciplinary rules do not provide the opportunity to appear at the Disciplinary Board's meeting for an appeal in an informal proceeding. N.D.R. Lawyer Discipl. 3.1(D)(8); see also N.D.R. Lawyer Discipl. 6.1(A)-(B) (deliberations and minutes from the Disciplinary Board's meeting, along with documents prepared by Board members, are confidential). Bolinske also exercised his right under N.D.R. Lawyer Discipl. 3.1(D)(8) to petition for leave to appeal the Disciplinary Board's decision with this Court.
On this record, Bolinske has failed to establish a lack of due process under N.D.R. Lawyer Discipl. 3.1. He received the process due to him under the rules and had sufficient opportunity to be heard. Bolinske's right to due process in this informal disciplinary proceeding was not violated.
Tuesday, March 20, 2018
An attorney departed the Superdome after halftime of a New Orleans Saints exhibition game.
The next thing he remembers is waking up in the hospital believing that he was a mugging victim.
He also possessed cocaine.
He had been found injured by police and transported to Tulane Lakeside Hospital. When cocaine was found, he went from there to central lockup.
A criminal possession case resulted in diversion.
He had invoked the 5th Amendment in the bar proceedings. Indeed, the case raises some interesting questions about the role that the Bar's lawyer counseling program plays in the disciplinary process.
A Louisiana Hearing Committee found that there was not sufficient evidence that suggested an ongoing alcohol or cocaine problem and recommends a fully-stayed suspension with continued diagnostic monitoring for two years. (Mike Frisch)
The Virginia State Bar Disciplinary Board suspended an attorney for a year and a day
The Respondent was an attorney licensed to practice law in the Commonwealth of Virginia at all times relevant to the conduct set forth herein. Between December 20, 2015 and January 8, 2016, the Respondent took three (3) checks totaling in excess of one thousand six hundred dollars ($1,600.00) from the business of her then boyfriend, David Wilds (hereinafter referred to as “Wilds”). The Respondent testified that, at the time that she took the money, Wilds was not supporting their child. The Respondent took the checks, which were made out to Wilds’s business, to a nearby bank and requested that the teller deposit the checks into the Respondent’s joint checking account with Wilds. However, the teller refused to deposit the checks as they were not made out to the Respondent. Thereafter, the Respondent went to a different bank branch and used an ATM to deposit the checks into her joint checking account with Wilds.
On February 24, 2016, the Respondent was arrested on a charge of larceny of checks in violation of § 18.2-98 of the 1950 Code of Virginia. On December 5, 2017, the Respondent entered into a Plea Agreement and Agreed Disposition with the Commonwealth, wherein she agreed to plead guilty to the felony charge of larceny; and, the Circuit Court for the City of Winchester found that the facts were sufficient to sustain a finding of guilt in that matter. The Court then deferred the case for a period of two years during which time the Respondent must complete fifty hours of community service and be placed on supervised probation for a period of one year followed by one year of unsupervised probation. In accordance with the Plea Agreement, upon the successful completion of the two-year deferral period, the Respondent’s conviction will be reduced to a misdemeanor.
The board rejected her motion to dismiss because she was not convicted of a felony.
The Respondent has refused to acknowledge the wrongful nature of her conduct in this matter. Rather, she testified that she was merely guilty of “being in a bad relationship” and “being a bad girlfriend.” Furthermore, in preparation for her hearing before the Board, the Respondent drafted and requested that Wilds sign a statement claiming that he had requested that the prosecutors dismiss the larceny of checks charges against the Respondent. Wilds refused to sign the document; and, according to the testimony of Kristen Zalenski, Attorney at Law, Special Prosecutor for City of Winchester (hereinafter referred to as “Zalenski”), Wilds never asked her to drop the charges against the Respondent. The Board finds the Respondent’s refusal to acknowledge the wrongful nature of her conduct and her attempt to submit false evidence in this proceeding to be aggravating factors.
On the other hand
In its consideration of mitigating factors, the Board found that the checking account into which the checks were deposited was in both the Respondent and Wilds’s name, that Wilds received all of the funds from the checks, and that the Respondent kept none for herself. This evidence was confirmed by Zalenski, who testified that Wilds did receive all of the money from the Respondent.
In her testimony on Respondent’s behalf Detective Marti Ivins (hereinafter referred to as “Ivins”), who was assigned to investigate this matter, admitted that she had not checked with the State Corporation Commission to determine whether the Respondent was the Registered Agent for Wilds’s business. During the hearing before the Board, with permission of the Respondent and Bar Counsel, the Board retrieved the State Corporation Commission’s records. They reflected that, at the time of the events at issue, the Respondent was, in fact, the Registered Agent for Wilds’s business.
In addition to investigating the larceny charge, Ivans testified she had also been assigned to investigate an allegation of rape made by the Respondent against Wilds. Ivins admitted that the Respondent had reported the rape allegation to the Winchester City Police Department, but no arrest was made, as the matter was not investigated. Instead, Ivins charged the Respondent with filing a false police report against Wilds. That charge was later dismissed, and the Respondent filed a complaint against Ivins; however, nothing came of it.
The attorney is presently serving a disability suspension. This disciplinary sanction will start when the disability suspension ends. (Mike Frisch)
A Massachusetts resignation led to a reciprocal three-month suspension by the New York Appellate Division for the First Judicial Department.
The attorney had defaulted in New York
the only issue left for resolution by this Court is the appropriate sanction to impose. As a general rule, in reciprocal disciplinary matters, this Court gives significant weight to the sanction imposed by the jurisdiction in which the charges were initially brought (see Matter of Peters, 127 AD3d 103 [1st Dept 2015]; Matter of Cardillo, 123 AD3d 147 [1st Dept 2014]). Only in rare instances will this Court depart from its general rule (see Matter of Lowell, 14 AD3d 41, 48 [1st Dept 2004], appeal dismissed 4 NY3d 846 , lv denied 5 NY3d 708 ). This is such an instance because this Court has imposed suspensions ranging from three to nine months for the misconduct at issue (see e.g. Matter of Marshall, 153 AD3d 1 [1st Dept 2017]; Matter of Peralta-Millan, 141 AD3d 87 [1st Dept 2016]). A three-month suspension is in general accord with this Court's precedent, particularly given respondent's lack of prior discipline, aggravation and venal intent.
The Massachusetts disciplinary proceeding arose from respondent's representation of the plaintiff in a defamation action which was filed in 2006 and dismissed on summary judgment in 2010. Although respondent filed a notice of appeal, he neglected to meet the deadline for assembling the record and the appeal was dismissed. Respondent unsuccessfully engaged in further efforts in the appellate court to obtain relief from the dismissal. Following dismissal of the case, respondent led his client to believe that his claims had been reinstated and respondent was working to obtain a monetary award or settlement. Respondent allegedly went as far as to claim he had secured an award of over $1 million for the client. In 2015, the client learned there had been no further litigation and no settlement
In or about March 2017, respondent, represented by counsel, tendered his resignation from the practice of law to the Massachusetts Bar Counsel, conceding that he had misled his client in violation of various provisions of the Massachusetts Rules of Professional Conduct. Respondent further acknowledged that if the matter were litigated before the Board of Bar Overseers (the Board) and the Massachusetts court, he would likely receive a term of suspension, rather than an indefinite suspension or disbarment. However, he declined to contest the allegations or any sanction.
The Board initially rejected respondent's resignation and requested additional information regarding Bar Counsel's assessment as to whether the underlying conduct would or would not warrant disbarment. Bar Counsel provided additional information which included its assessment that if the matter were to be litigated through contested proceedings, respondent would receive a term of suspension, and that counsel was not aware of any facts or circumstances that would justify an indefinite suspension or disbarment. Counsel noted that there was mitigation, to wit, respondent had no prior record of discipline, he did not act with venal intent, the client did not suffer any harm, and there was no aggravation. However, given respondent's voluntary tendering of his resignation and that he was represented by skilled and experienced counsel, the Board recommended that respondent's resignation be accepted by the Massachusetts court.
By order of July 21, 2017, the Massachusetts court accepted respondent's resignation and struck his name from the roll of attorneys, effective August 20, 2017. As noted, the Committee seeks an order finding that respondent has been disciplined by a foreign jurisdiction and directing him to demonstrate to this Court why discipline should not be imposed in New York for the underlying conduct (22 NYCRR 1240.13) because respondent's misconduct in Massachusetts would violate New York Rules of Professional Conduct (22 NYCRR 1200.0) rules 1.4(a)(1)(iii), 1.4(a)(3), 8.4(c), and 8.4(h). The Committee additionally contends that this Court's precedent supports at least a three-month suspension and that such sanction is further supported by the fact that respondent neglected to inform it of his discipline in Massachusetts pursuant to 22 NYCRR 1240.13(d).
The Illinois Supreme Court recently announced a number of dispositions in bar matters.
Mr. Boorstein, who was licensed in 1960, was suspended from the practice of law for ninety days. During the course of representing a husband and wife in a mechanic’s lien action, he created a fictitious corporation that had a name similar to one of the parties to the case, drafted a letter containing false statements about the fictitious corporation, and attached the letter to a motion to dismiss in which he referred to the letter. About a year later, while the case was still pending, he created two fraudulent lien releases, had his employees sign and notarize the phony documents, and directed the creation of another fictitious corporation, in order to deceive a bank into believing that the lien no longer existed. The suspension is effective on April 5, 2018.
Mr. Niesse, who was licensed in 2005, was suspended for six months. He was the chief financial officer for Precious Metal Refinery Services (“PMRS”). During the pendency of a lawsuit filed by one of PMRS’s former employees against the company, Mr. Niesse gained access to that employee’s personal e-mail account without that former employee’s knowledge or authorization. The information Mr. Niesse obtained was subsequently used against the plaintiff in the lawsuit. When his conduct was discovered, Mr. Niesse filed an affidavit with the court in which he made false statements by portraying his access to the former employee’s personal e-mail as “inadvertent.” The trial court imposed a default judgment as a sanction against PMRS based on Mr. Niesse’s conduct. The suspension is effective on April 5, 2018.
Mr. Vazanellis, who was licensed in 2005, was suspended in the State of Illinois until he is reinstated to the practice of law in the State of Indiana. While not registered or authorized to practice law in Illinois, he represented clients in at least sixteen different court actions in Illinois, including fourteen criminal cases and two civil litigation matters.
Mr. Fitzgerald, who was licensed in 1991, was suspended on an interim basis and until further order of the Court. He was convicted in the Circuit Court of Berrien County, Michigan, of manufacturing over 200 marijuana plants and possessing, with the intent to deliver, marijuana, both felonies. He was also charged with maintaining a drug house, a misdemeanor, for his role in operating an indoor marijuana grow operation by cultivating and manufacturing marijuana plants, in Sawyer, Michigan.
Monday, March 19, 2018
The South Carolina Court of Appeals affirmed an order denying access to bar complaints against a prosecutor
In this action pursuant to the Freedom of Information Act (FOIA), South Carolina Lawyers Weekly (Appellant) asserts the circuit court erred in refusing to compel Scarlett Wilson, as Solicitor of the Ninth Judicial Circuit, to produce any disciplinary complaints against her. Appellant argues the circuit court erred by: (1) failing to find Wilson is a public officer and her office is a public body subject to FOIA; (2) relying on Rule 12 of the Rules of Lawyer Disciplinary Enforcement to determine the requested documents are not required to be disclosed; (3) finding the documents were exempt from FOIA pursuant to S.C. Code Ann. § 30-4-40(a) (2007 & Supp. 2017); and (4) failing to find Wilson waived her right to confidentiality. We affirm.
On July 10, 2015, Phillip Bantz, a staff writer for South Carolina Lawyers Weekly sent a FOIA request to Solicitor Wilson's official email address requesting "any records relating to any disciplinary complaints against you or action taken with respect to you as a member of the bar."
The Ninth Circuit Solicitor's Office (the Solicitor's Office) responded, on official letterhead, and denied Bantz's request. The office noted, "In the last year a number of grievances have been filed against Ms. Wilson by or at the behest of disgruntled criminal defense lawyers . . . . The South Carolina Office of Disciplinary Counsel thoroughly investigated these matters and recommended dismissal of all of these charges."
In denying the FOIA request, the Solicitor's Office noted that "[w]hile the Solicitor's Office is a 'public body' and subject to FOIA, Ms. Wilson is not personally a 'public body.'"
The court found no waiver
Initially, Appellant asserts Solicitor Wilson waived her right to confidentiality of the requested documents by referring to their existence in her FOIA response. We disagree.
The Bar rules govern
Based on the plain language of Rule 12(b), complaints filed with the Office of Disciplinary Counsel do not become public documents until formal charges are filed and 30 days have passed after the filing of an answer, or in the absence of an answer, 30 days after the time to file an answer has expired. Because Rule 12(b) indicates lawyer disciplinary complaints do not become public until after formal charges are filed, and no formal charges were filed against Solicitor Wilson, any complaints would not be public documents, and Solicitor Wilson would not be required to be disclose them pursuant to FOIA.
A published opinion of the California State Bar Court Review Department recommends disbarment for a criminal conviction
On April 30, 2013, Jordan Tonya Louise Peters was driving under the influence of prescription drugs when, without braking, she rear-ended a car stopped at a traffic light. The other driver was seriously injured and the other driver’s passenger, her 69-year-old husband, died. On her plea of nolo contendere, Peters was convicted of felony vehicular manslaughter while intoxicated without gross negligence.
Disbarment is the presumed sanction for a felony conviction in which the surrounding facts and circumstances involve moral turpitude, unless the most compelling mitigating circumstances clearly predominate. A hearing judge found that the facts and circumstances surrounding Peters’s conviction involved moral turpitude, and, not finding compelling mitigation, recommended disbarment.
Peters appeals. She argues that the facts and circumstances surrounding her crime did not involve moral turpitude and her mitigating circumstances are entitled to more credit. She contends that a two-year actual suspension would be sufficient to preserve the integrity of the profession and protect the public. The Office of Chief Trial Counsel of the State Bar (OCTC) requests that we affirm the disbarment recommendation.
Upon our independent review (Cal. Rules of Court, rule 9.12), we find the facts of the conviction involve moral turpitude, and the mitigating circumstances are not compelling. We can discern no reason from this record to deviate from the applicable disciplinary standard, and thus affirm the disbarment recommendation.
The attorney had a history of prescription drug abuse and had ceased practice in 2012 due to stress.
On April 30, 2013, Peters picked up a Neurontin refill and then went to her office at the construction company at which she was employed at the time, worked on several projects and interacted with colleagues. At trial, she admitted that between 9:18 a.m. and 2:00 p.m., she took six or seven Neurontin pills—more than her full day’s prescribed dose—in roughly five hours. She also had several other prescription drugs in her system, including tramadol, another pain medication prescribed by her primary care doctor. She testified that she did not feel impaired and felt no different that day than any other day.
Unexpectedly, Peters was called around 3:15 p.m. to pick up her son and left work earlier than planned. Three eyewitnesses who observed her driving testified at trial. Making a left turn, on a Roseville, California street, Peters veered right across four lanes, and drove up and over a curb and sidewalk until all four tires were on a grassy area beyond the sidewalk. Peters recalled striking only the curb. Without stopping, she returned to the road and swerved left across three lanes toward the center median. She then swung back over to the right-hand curb, almost came to a stop, but did not. She continued to drive at varying speeds for another half-mile. Her driving was so erratic and worrisome that two drivers behind her turned on their emergency flashers to try to slow traffic and to warn others, and one of them called 911.
Around 3:40 p.m., Peters was traveling at approximately 50 to 60 miles per hour when, without braking, she rear-ended one of several cars stopped at a red light. Bonnie Weaver was the driver of that car and her husband of over 48 years, Robert Weaver, was the front seat passenger. The impact crushed the back half of the Weavers’ car, leaving nothing behind the front seats. The couple suffered grave injuries and were transported to the hospital. Robert died hours later. Bonnie survived, but continues to suffer from her injuries, as discussed in detail below in aggravation. Peters’s erratic driving also set off a chain of events that caused a separate collision involving three other cars, resulting in injuries to two other victims.
She pled no contest to the criminal charge.
On moral turpitude
Peters argues that she should not be found culpable of moral turpitude, primarily because she did not know she was addicted to Neurontin nor did she feel impaired the day of the collision. However, her contention does not correctly reflect the test for moral turpitude. The test is whether the facts and circumstances surrounding her criminal conduct show either “a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties)” or involve “such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession...
Peters had an admitted history of being unable to control her prescription drug use, which prompted one physician to cease treating her. Though she stopped using Norco in 2012, she took Neurontin contrary to direction for nine to 12 months prior to the collision. On the day of the crash, Peters knowingly took six or seven Neurontin pills—more than her full day’s prescribed dose—in about five hours. Despite having previously felt sedated by the drug, she still chose to drive. For nearly a mile, she traversed widely across multiple lanes but did not stop, even after she ran all four tires of her car over the curb and onto the grass. Instead, she continued driving at approximately 50 to 60 miles per hour, and, without braking, rear-ended the Weavers’ stopped car. She destroyed their car, killed Robert, gravely injured Bonnie, and injured others.
While the board gave some mitigating weight to her 19-year discipline-free career, little was given to her depression and drug abuse
We applaud Peters’s rehabilitation efforts, both voluntary and mandatory. Yet, given her years-long history of abuse, her earlier resistance to seeking treatment, and that she only began her treatment just over two years ago, we find, for the purposes of attorney discipline, that Peters has started but not completed rehabilitation.
Despite remorse and favorable character evidence
While she had a 19-year discipline-free career before the collision, her rehabilitation is in its early phase, and we find she has not shown her misconduct is unlikely to recur. For the same reason, her crime is not fully mitigated by her physical and emotional problems. These mitigating factors, together with her moderate evidence of good character, pro bono and community service, and remorse, and her limited credit for cooperation do not constitute compelling mitigation. They fall far short of predominating, given her extremely serious misconduct and the profound harm she caused. Anything less than disbarment would fail to protect the public and undermine its confidence in the legal profession. Thus, before Peters is entitled to resume practicing law, she should be required to demonstrate in a reinstatement proceeding by clear and convincing evidence, her rehabilitation and exemplary conduct over an extended period of time.
An interlocutory license suspension from the Hearing Division Tribunal of the Upper Canada Law Society of a paralegal license.
The evidence discloses that Ms. Zopf has been criminally charged with one count of Identity Theft, two counts of Fraud Under $5,000, two counts of Obtaining Credit by Fraud, one count of Uttering Forged Documents, two counts of Identity Fraud and one count of Possession of a Counterfeit Mark.
These criminal charges relate to two incidents, one in September 2015 and one in June 2017. It is alleged that in September 2015, Ms. Zopf obtained a payday loan of $400 by falsely holding herself out to be someone else and by tendering identity and other documents. It is alleged that in June 2017, Ms. Zopf attempted to open a Bell Canada account for landline, internet and television services using a false identity.
The investigator’s affidavit includes evidence tending to prove the alleged criminal conduct. The criminal charges allege conduct that is outside of Ms. Zopf’s work as a paralegal and is instead personal conduct. However, the alleged criminal conduct raises significant issues of honesty and integrity.
It is not necessary or appropriate that we determine whether Ms. Zopf acted as is alleged in the outstanding criminal proceedings nor are we to determine whether those actions, if proven, would be professional misconduct.
Our responsibility is to determine whether there are “reasonable grounds for believing” that there is a “significant risk of harm” to members of the public, or to the public interest in the administration of justice, if the suspension order is not made and that making the suspension order is likely to reduce the risk.
The affidavit evidence provides reasonable grounds for believing that Ms. Zopf may have acted as is alleged in the outstanding criminal proceedings. This evidence is not challenged for the purposes of this motion nor is there any evidence to the contrary. Of course, this is not to say that Ms. Zopf will be found guilty of those charges, but that is not the question here.
Friday, March 16, 2018
An Ad Hoc District of Columbia Hearing Committee proposed a 60-day suspension with 30 days stayed of an attorney who engaged in ethical violations primarily after he had been discharged as counsel for a group of clients who were victims of a financial fraud.
Following a legal career at several major law firms, Respondent organized Capital Legal Group (US) in approximately November 2013. Respondent referred to himself as the “managing partner” of Capital Legal Group, but had no associates or partners, relying instead on as-needed contract lawyers. Stip. 1; RX 1; Tr. 200-02, 282-83 (Wallace).
In approximately March 2014, Respondent was contacted by Richard Cole, whom he had known in the 1970s while in law school. Tr. 19, 503-07. Cole alleged that he had recently been the victim of fraud perpetrated by an organization calling itself Charter Investments (“Charter”). In brief, Charter purported to offer certificates of deposit at above-market rates. When investors wired funds to Charter’s account at the East West Bank in California, the funds were withdrawn immediately, and were never invested. Cole had invested – and lost – $280,000 through this fraud. DX 21 at 24. Cole had learned of eleven individuals, and one homeowner’s association (“HOA”), similarly victimized, and sought legal representation for the group on a contingency fee basis.
The respondent agreed to represent the clients for a contingent fee.
Disciplinary Counsel contends that Respondent mishandled the transition of the Charter clients’ matter to successor counsel, failed to specify the amount or nature of his claim for fees, if any, on his former clients’ recovery, and intentionally held up the distribution of funds to former clients who had fired him and then made disciplinary complaints against him, in violation of Rules 1.3(b)(2), 1.16(d), and 8.4(d). Respondent contends that he had a valid claim for fees, that any delay in clients receiving their settlement funds was caused by successor counsel’s fee agreement and the operation of California law pertaining to attorney liens, and that he did not violate any of the Rules charged.
The committee found each charged violation.
Notably, they found that the attorney's retaliation against only the former clients who filed bar complaints prejudiced the administration of justice
Disciplinary Counsel contends that Respondent violated Rule 8.4(d) by retaliating against four clients who had reported his conduct to Disciplinary Counsel by selectively maintaining his fee claims against these clients only, by informing the clients he was about to serve an ACAB petition on them, requiring them to hire local counsel, and by asserting that he would not resolve his claims for fees against them until the disciplinary matters concluded. Respondent contends that he was entitled to resolve legitimate disputes with those clients, and that he was constrained in his ability to resolve his fee dispute because the clients had placed him in an adversarial position when they filed disciplinary complaints against him.
As set out at length above, Respondent made no good faith effort to either inform his clients of the fee he believed he was owed, or to resolve his fee claim through negotiation or the ACAB process. He seemed to believe that the clients had the obligation in the first instance to suggest what his fee should be, and that the fact that they did not do so is the principal reason no resolution was reached. That suggestion is absurd. If Respondent believed he was legitimately entitled to be paid for any work he may have done for his twelve Charter clients on the Charter matter, it stands to reason he would have asserted a fee claim against all – not just four – of the clients. His putative justification for this course of action was that the disciplinary complaints filed by the four clients at issue somehow tied his hands. However, reaching a settlement that interferes with a client’s ability to file a disciplinary complaint or requires the client to withdraw an existing complaint violates Rule 8.4(d)...
We find Respondent’s testimony attempting to justify his selective decision to waive his fees to be untruthful, and to be contradicted by contemporaneous evidence, including Respondent’s own contemporaneous statements.
Respondent’s credibility is further undermined by the untruthful testimony he gave about the work he allegedly did for the Charter clients.
In some jurisdictions, such a finding would lead to a much harsher sanction.
An intriguing tidbit
On August 14, 2017, Respondent moved for sanctions and for an order to show cause, contending, first, that sanctions are appropriate for Disciplinary Counsel’s allegedly bad faith efforts to supplement the record with impeachment evidence. Respondent further contends that Disciplinary Counsel should be ordered to show cause why it should not be held in contempt for allegedly violating the Hearing Committee’s witness sequestration order. For the reasons discussed in the Confidential Appendix, infra, we recommend that Respondent’s motions be denied.
The probation proposed to follow the suspension has several conditions.
The case is In Re William E. Wallace and can be accessed here. (Mike Frisch)