Tuesday, January 16, 2018

Towel Thrown In

A former Akin Gump attorney has consented to disbarment in Maryland.

Abovethelaw reported last February

Biglaw bombshell alert: Jeffrey Wertkin, an Akin Gump attorney who joined the firm last year after a successful stint at the Justice Department prosecuting cases under the False Claims Act, was arrested on January 31 by the FBI (the arrest documents were unsealed on February 6). Wertkin was charged with obstruction of justice and contempt of court. He stands accused of trying to sell the details of a whistleblower lawsuit for $310,000 to an employee of a company that was under investigation by the Department of Justice.

According to the allegations, Wertkin — dressed in a wig, and going under the name “Dan” — was arrested in the lobby of a Cupertino, California hotel. He reportedly told the arresting agent, “My life is over.”

As noted by Bloomberg Technology, lawsuits under the False Claims Act have a unique process, which Wertkin allegedly sought to exploit (though it isn’t clear how Wertkin got a hold of the complaint):

The arrest highlights the unusual process involving lawsuits under the False Claims Act, which allows whistle-blowers to sue companies on behalf of the U.S. government. The lawsuits, which are filed under court seal and given to the Justice Department, typically claim a company cheated taxpayers. The U.S. may investigate for months or years before notifying the company of the claims. Whistle-blowers can share in any recovery, and some have collected tens of millions of dollars.

The FBI’s investigation began when they were alerted by an employee of the company targeted by the lawsuit. The employee received a voicemail from “Dan” offering details of the suit in exchange for a “consulting fee.”

The employee agreed to secretly record calls to Dan for the FBI. On Dec. 22, Dan said he would provide the full complaint for $300,000, the FBI said. Two weeks later, Dan suggested he get paid in untraceable bitcoins, and said buying the complaint would help the company “get out ahead of the investigation.” The employee unsuccessfully sought to negotiate a cheaper price for the sealed lawsuit, according to the court filings.

The price was eventually settled at $310,000 (Wertkin allegedly wanted travel costs covered), and when he went to make the drop-off, he was arrested.

An ATL source had this to add about Wertkin: “He was DOJ lead on a number of my cases. He was not the most liked person, but he always purported to be a very ‘by the book’ guy. So this is pretty shocking.”

Akin Gump’s statement about the arrest is suitably chagrined and notes they have fired Wertkin:

“We are shocked and deeply troubled by the conduct alleged in the charges filed against Mr. Wertkin,” an Akin Gump spokesman said in an e-mailed statement. “Honesty and integrity are at the core of our values and our client relationships. Immediately upon learning of these charges, we took swift action and Mr. Wertkin is no longer with the firm.”

Wertkin has been released on $750,000 bail.

(Mike Frisch) 

January 16, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 15, 2018

"I Mean No Disrespect"

Inappropriate communications with Law Society staff and adjudicators led to findings of misconduct and a scheduled penalty hearing by a Tribunal Hearing Division of the Upper Canada Law Society

The Law Society alleged that Mr. Robson engaged in professional misconduct by engaging in abusive and unprofessional communications with the Law Society, Law Society Tribunal members and Tribunal staff, in breach of the Law Society’s Rules of Professional Conduct. Mr. Robson did not deny the communications were his. In defence, he relied primarily on his diagnosed mental illness to excuse his behaviour.

When taken in their entirety, Mr. Robson’s communications with Law Society prosecutors, Tribunal staff, and panel members are abusive, offensive, and unprofessional as alleged. They are replete with: demeaning personal comments; derogatory descriptions; unsupported allegations of improper conduct, bias and incompetence; offensive comparisons between his treatment by the Law Society with the experiences of indigenous children in residential schools, the treatment of Jews by the Nazis during World War II; and the sexual abuse of children by Catholic priests. His communications with the public malign the courts and one of its judges, without any reasonable basis to do so.

The Law Society also alleged and proved that Mr. Robson: failed to co-operate with the Law Society by failing to co-operate with a Law Society investigation and to respond fully and completely when he was requested to do so; failed to pay a mediator’s account when he had undertaken to do so; and communicated in an offensive and unprofessional manner with another lawyer.

This Tribunal is sympathetic to licensees who suffer from mental illness and recognize the courage it can take to face this diagnosis. In this case Mr. Robson was diagnosed with Stress Response Syndrome (“SRS”) and major depressive disorder. We looked carefully at the evidence to determine whether Mr. Robson’s mental illness prevented him from fulfilling all of his obligations as a lawyer during the time period in question, which is the test he must meet. The psychiatric evidence does not support that conclusion. It does not support the existence of mental illness at the relevant time or that the mental illness caused him to be incapable of meeting his obligations from January 2008 to March 2016.

Mr. Robson asked that this conduct application be converted into an Invitation to Attend (“ITA”). Mr. Robson has engaged in all of the professional misconduct that was alleged in the Notice of Application. The misconduct is serious in nature. While Mr. Robson has been diagnosed with a mental illness, we do not conclude that his illness materially contributed to his misconduct. As a result, we deny his request.

An example from a lengthy course of events

 In October 21, 2014, he wrote, “Kindly do not have [prosecutor] confront me. I hate liars.” In an October 23, 2014, e-mail to one of the prosecutors, he threatened, “I am coming after you and [second prosecutor] and the dirty woman behind you and others as required full blown.”

In October 28, 2014 correspondence to the prosecutor and the Tribunal, after his licence had been restored, Mr. Robson, in an e-mail, described the discipline department as a “very serious, ragingly virulent cancer operating within the body of the [Law Society].” In November 2014, he authored correspondence to the hearing panel chair (whose decision had been overturned) saying he had no business sitting on any other discipline matter and that each of the panel lacked critical thinking skills. He asked for their undertakings not to act again as members of a discipline panel. He ended by saying, “I mean no disrespect.”

 In e-mails in mid-November, Mr. Robson again refused to deal with one of the prosecutors whom he described as “dishonest” and advised of the demeaning nicknames that he had assigned to two adjudicators. He advised a client in an e-mail dated November 28, 2014, that the Law Society had no “correct moral centre,” that it was, “a disgrace to the entire country” and “a hillbilly organization” whose “abuse is readily deferred to by the courts.”

 He wrote that the Law Society was “very similar to Catholic priests being able to get away with raping young boys” and that it was “a monster from a Stephen King novel, a rabid putrefying SARS like scum undetected and allowed to migrate because of lack of proper oversight.”

In e-mails to third parties on December 4, 2014, Mr. Robson extended his insults and bias claims about the Law Society to the Superior Courts. In one e-mail, he said his life had been destroyed by the court and judges that he described as accomplices to theft. He described one judge as a “disgrace to the bench.” In subsequent e-mails, he continued his abuse of the Chair of the Tribunal, calling him by derogatory names.

Later

On September 3 and 9, 2015, Mr. Robson communicated with the Law Society’s investigation counsel, in what would become this matter, in a threatening and derogatory manner. He called her a “wastrel” and accused her of having an improper and conspiratorial manner. He advised that proceedings against her personally would be initiated shortly.

In November 2015, Mr. Robson complained about the inappropriate dress of the chair of the panel, “The event was not a motor cycle mamma fest or a party at a local pick up joint. Kindly ensure that the panelists dress appropriately in the future.” When the complaint was rejected as unfounded, Mr. Robson reiterated his position, maligned opposing counsel who supported the chair’s dress as appropriate and accused the Law Society of deception when it declined to send the complaint to the panel chair saying the Law Society “disgracefully attempted to mislead me by saying that the subject panel was functus.”

 The panel rejected defenses and expressed concern about his attitude toewards his behaviors. 

At the same time, Mr. Robson did not resile from some behaviour and comments. He maintained that he was justified in comparing his treatment by the Law Society to the treatment of indigenous children in residential schools, to the treatment of Jews in Nazi Germany and to the abuse of young boys by Catholic priests. He could not, even after his diagnosis and treatment, admit that his situation did not compare. Nor could he admit that it was inappropriate to respond to opposing counsel’s settlement offer by telling him to “Fuck Off.” He also refused to admit that he had an obligation to pay a mediator’s account that he had undertaken to pay...

In our view, this conduct application should not be converted to an invitation to attend as asked. To do so would usurp the prosecutorial discretion exercised by PAC. The misconduct is sufficiently serious that an invitation to attend would be inappropriate. The evidence as to mental illness is not such that diversion from discipline is appropriate.

A penalty hearing will be held. (Mike Frisch)

January 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Uninvited (Snowstorm Trips)

A Maine Grievance Commission Panel imposed a reprimand of an attorney for neglect and related violations.

Mr. Boucher’s complaint involves Attorney Lunn’s neglect and failures to communicate with proper responses to the requests of his client, Mr. Boucher, regarding the status – including the retainer balance – of the two related legal matters Mr. Boucher understood he had hired Attorney Lunn to undertake against his neighbor.

In that regard, in August 2013 Mr. Boucher had met with Attorney Lunn to discuss two different, but related matters: 1). To pursue a Protection from Harassment action; and 2). To possibly file a civil damages action. Each matter concerned Christopher Sabine’s (Mr. Boucher’s neighbor) misuse of his skidder and intentional “water damage” (from snow plowing) to Mr. Boucher’s property.

Mr. Boucher’s grievance focused on Attorney Lunn’s lack of proper response(s) to his requests for status and progress updates about those matters.

Mr. Boucher’s requests to Attorney Lunn concerning the status of $5,000.00 retainer amount Mr. Boucher had paid to Attorney Lunn were likewise not properly answered by Attorney Lunn.

Mr. Boucher further claimed that for more than 3  years Attorney Lunn failed to take steps or efforts to have his Protection from Harassment action filed with the court.

Attorney Lunn’s initial written response to Bar Counsel’s investigative inquiry claimed that he did not feel Mr. Boucher had much of a case. However, he failed to include appropriate confirmation that he had actually ever communicated and properly informed Mr. Boucher that he would not pursue his matter(s), i.e. that Mr. Boucher would need to and should consult with other counsel.

Attorney Lunn agrees he failed to ever issue any declination letter to Mr. Boucher or otherwise properly confirm to him that he was not going to represent him regarding either matter, i.e., the Protection from Harassment or the “snow plowing.” Attorney Lunn now agrees that such conduct by him was in violation of Rules 1.3 (diligence) and 1.4(a)(b) (communication) of the Maine Rules of Professional Conduct.

An arbitration hearing resulted in these findings

  1. Since Attorney Lunn never charged Mr. Boucher for the PFH issue, the Panel only focused its concerns and analysis on Mr. Boucher’s possible civil damages action(s) against Mr. Sabine;
  2. Attorney Lunn’s billing of Boucher for his many “uninvited (snowstorm) trips” to Mr. Boucher’s property was unreasonable;
  3. Attorney Lunn had also failed to ever clearly and fully inform Mr. Boucher about those snowstorm trips;
  4. Attorney Lunn failed to meet his burden of proof (which he had to meet due to the lack of a written fee agreement (see M. Bar R. 7(e)(12)) that the balance of $2,217.57 (from the $5,000.00 paid retainer) in fees and costs was reasonable and earned by him; and
  5. As a result, Attorney Lunn was then ordered by the FAC Award to refund that amount to Mr. Boucher, then being due within 30 days of his receipt of such notice (see M. Bar R. 7(g)).

The attorney paid the amount ordered and st ipulated to the sanction. (Mike Frisch)

January 15, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 14, 2018

Rude And Condescending

The Florida Record reports that an attorney admitted in 1967 has been publicly reprimanded for "rude and condescending" treatment of a court officer.

From the referee's report on the conduct

On February 7, 2017, respondent and his nonlawyer employee were present in county court in Brevard County, Florida. Respondent's employee was assisting respondent by filling out a plea form for respondent to file in court that morning. While standing in the public gallery area of the courtroom, respondent's employee reached over the bar separating the public area from the rest of the courtroom and began looking through paperwork on a table. A Brevard County Sheriff's Office deputy assigned to the courtroom observed respondent's employee leaning over the bar and approached respondent's employee. The courtroom deputy asked if she could help, and respondent's employee advised she needed the last page of a plea form identifying herself as respondent's paralegal. The deputy informed respondent's employee that she had the wrong plea form in her hands. During this exchange, respondent interjected and advised the deputy that his paralegal was confused because the felony plea forms should not be kept in the courtroom where the misdemeanor criminal matters are handled. The deputy explained to respondent and his nonlawyer employee that felony proceedings occasionally took place in this particular courtroom. Respondent then began speaking loudly over the deputy and told her that if she wanted to say something she needed to direct her remarks to him because his paralegal was just doing her job. The deputy advised respondent that because his employee had reached over the bar, she needed to directly address the employee. Further, the deputy also needed to communicate that respondent's employee picked up the incorrect form and wanted to provide her with the correct form. In a raised voice and demeaning manner, respondent stated, "We don't really need your help. You're a guard here. OK. You're not the judge and you're not the supervisor." The deputy found respondent's tone to be rude and condescending toward her to the extent that it undermined her authority, especially in light of the fact that other people were present in the courtroom at the time on unrelated matters.

The sanction was imposed on consent, (Mike Frisch)

January 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 13, 2018

Empty Tank

The Altoona Mirror reported on a recent Pennsylvania consent to disbarment

Attorney Meghan Farrell Irwin, who narrowly lost a race for magisterial district judge in November, was disbarred Friday by the state Supreme Court.

The disbarment is “on consent” by Irwin, who has submitted her resignation, according to the court’s Disciplinary Board, which did not disclose the reason for disbarment.

The court disbarred her because of an allegation — not made by a client — in February 2017, that she performed with “lack of diligence on a matter,” Irwin said Friday.

The allegation was untrue, and she could have defeated it, she said. But she decided not to fight it because she is exhausted from the election campaign and her work as a lawyer, and because, if she lost the election, she was going to wind down her practice to focus on her family anyway, she said.

“In some ways, I feel relieved,” said Irwin, who has five children. “I feel like I don’t have anything left in the tank for a job I didn’t want to do anymore.”

The allegation was made to the court after she had announced her intention to run for election, and she believes it was made because of her campaign, Irwin said.

She declined to disclose who made the allegation, saying it was confidential.

If she had won the election, she could have served as a magisterial district judge despite the disbarment, she said, explaining that MDJs don’t need to be attorneys.

Asked why she didn’t fight the allegation, if only to clear her reputation, she said the public would still have known, “and people talk and form their opinions, no matter what my (actual) conduct.”

“I just wanted to end it,” she said.

The disbarment goes into effect Feb. 11, reflecting the standard 30-day grace period to enable disbarred lawyers to wrap up their practice, according to the Disciplinary Board.

Irwin has notified her outstanding clients about what has happened, referring them to her father, Tom, an attorney who practices in the same office.

She didn’t dismiss the idea of working again as a lawyer, saying she could apply for license reinstatement at some point, “if that’s what I want to do.”

“I wish it was not this way,” she said. “(But) I don’t have regrets.”

(Mike Frisch)

January 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Illinois Potpourri

The Illinois Supreme Court has announced a number of dispositions in bar discipline matters.

Among the cases resolved

Mr. Cardenas, who was licensed in 1995, was censured. He was convicted in the Circuit Court of Cook County of reckless conduct relating to an incident in which he removed his leather belt and used it to hit his then 14-year old daughter.

Ms. Cohen, who was licensed in 1978, was suspended for thirty days. During a four-year period when she had not registered to practice law and was thus removed from the Master Roll, she represented the City of Berwyn in approximately 100 different municipal ordinance proceedings before a hearing officer. The suspension is effective on February 2, 2018.

Mr. Meserow, who was licensed in 1985, was suspended for six months and until further order of the Court, with the suspension stayed in its entirety by a one-year period of probation. During a court proceeding, he shouted and criticized the presiding judge, then later filed a frivolous motion criticizing that same judge and falsely accused her of violating several provisions of the Code of Judicial Conduct.

Mr. Mora, who was licensed in 1968, was censured. While representing a client in a legal malpractice matter, he sought to sell his car and purchase a new one from a used car dealership. He entered into a business transaction with his client whereby Mr. Mora sold the old car to the client for its trade-in value, and the client agreed to co-sign Mr. Mora’s loan application for the new car so that he could obtain more favorable financing terms using the client’s better credit rating. Mr. Mora purchased the new vehicle with his client registered as a co-owner, and subsequently incurred various traffic tickets and late payments that led to an administrative judgment being entered against the client.

Mr. Niew, who was licensed in 1972, was censured. His wife, Kathleen Niew, an Illinois lawyer, was disbarred in 2013 for misappropriating $2.34 million belonging to a client who she represented in a real estate matter. After her disbarment, Mr. Niew failed to ensure that his wife no longer maintained a presence in their law office and he also failed to supervise his associate, to prevent that associate from aiding Ms. Niew in the unauthorized practice of law.

We had reported on the charges in the last listed matter. Mike Frisch)

January 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Free Talk

An  admonishment has been imposed by an Arizona Hearing Panel for a prosecutor's negligent failure to disclose Brady material

At all times relevant, Ms. Roubicek was licensed to practice law in Arizona, having been admitted to the State Bar of Arizona on October 24, 2003. [JPS at 2.] Ms. Roubicek began felony prosecution in 2012 when she became employed with the Pima County Attorney’s Office. This matter concerns the State prosecution of Ronald Johnson by Ms. Roubicek. She was not involved in the investigation or in obtaining the indictment.

After Johnson was indicted

On November 21, 2013, [co-defendant] Mr. Barstow engaged in a free talk with the State.  Mr. Barstow was present with his lawyer. [Sealed Ex. 1.] Ms. Roubicek, with two Tucson Police detectives also participated in the free talk. At the beginning of the free talk, Ms. Roubicek advised Mr. Barstow that the recording of the free talk may be provided to other defendants in the matter and that any exculpatory information would be disclosed. [JPS at 6.] Mr. Barstow provided information about a different source for at least some of the hashish, which was the basis for one of the charges against Mr. Johnson. Mr. Barstow’s free talk also included information showing that Mr. Johnson was not the individual who possessed the firearm which was the basis for another charge.

Mr. Barstow made statements regarding Mr. Johnson during the free talk. Mr. Barstow’s statements are accurately reproduced in the free talk transcript. At the time of Mr. Barstow’s free talk, Mr. Barstow was still a defendant in the same case as Mr. Johnson. Mr. Barstow made some exculpatory statements concerning Mr. Johnson. [JPS 7-9.]

Barstow pleaded guilty and 

On February 12, 2014, Ms. Roubicek moved to dismiss and/or amend the charges against Mr. Johnson that were impacted by the free talk. Ms. Roubicek moved to dismiss the charges of possession of marijuana, production of marijuana, and possession of a deadly weapon during a felony offense. Ms. Roubicek moved to amend the charge of possession of a  the court of the State’s non-objection to Mr. Johnson’s motion to sever his case from the other defendants. Mr. Johnson’s case was severed and set for trial on March 18, 2014, on the amended charges.

Trial was continued

On March 31, 2014, Ms. Roubicek disclosed the Barstow free talk. [2:11:30 p.m.] The SBA alleges that Ms. Roubicek disclosed the free talk on the day before the trial, which Ms. Roubicek refutes, showing that the trial was set for April 22, 2014, at the time of the afternoon disclosure rather, than April 1. The minute entry confirms the defense in that morning status conference also needed time to obtain an expert witness and the case was continued to April 22, 2014. [Id. at 2:12:09 p.m.; Ex. 25.]

Ms. Roubicek was unable to try the Johnson case due to a conflict with another case, and did not oppose the continuance. She then went back to her office after that status conference. [HT at 2:12:20 p.m.] She then discovered that the free talk documents had not yet been disclosed, and she immediately alerted her paralegal to disclose the free talk that day. [Id. at 2:13:29 p.m.] She was under the impression that once Mr. Barstow was locked into a plea agreement, she was to get the plea agreement, the documents, the audio, and the transcript together in a packet, so that it would all be disclosed together, and she believed that had all taken place. [Id. at 2:12:57 p.m.]

And the case was dismissed

On April 21, 2014, a status conference was held. There, defense counsel orally made a Motion to Dismiss due to the disclosure violation. The court then ordered defense counsel to file a formal written motion by April 25, 2014. Defense filed its Motion on April 28, 2014, which was granted. On June 30, 2014, there was a hearing set to consider the Motion to Dismiss. [JPS at 15; HT at 1:15:50 p.m.]

The court dismissed the matter with prejudice and found Ms. Roubicek’s conduct was unintentional error. [Sealed Ex. 3.] Ms. Roubicek told the court that she believed she had cured the issue over the exculpatory evidence by dismissing and amending certain charges on the indictment, and that she thought she had handled things correctly. [Id. at 2:16:32 p.m.] The Pima County Attorney’s Office did not take disciplinary action against Ms. Roubicek. [Id. at 2:26:50 p.m.]

The attorney testified in the bar hearing

During the evidentiary hearing held October 18, 2017, Ms. Roubicek testified that she had no prior training related free talks, no prior training related to the Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) reporting requirements,  and testified that she was unfamiliar with the Brady rule. [Hearing Testimony (“HT”) at 1:27:03 p.m.] She did, however, testify that she may have attended CLE courses that discussed the Brady rule. [Id. at 2:33:10 p.m.] Ms. Roubicek made a plea offer to Mr. Johnson on September 11, 2013, to a class 4 felony. [Id. at 1:32:09 p.m.; Ex. 12, Bates 132.] At that point, there was no free talk with Mr. Barstow. [Id.]

The panel rejected the State Bar's request for a suspension of six-months and a day. (Mike Frisch)

January 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 12, 2018

No Probation For Inappropriate Language Toward Prospective Client

Dealings with a prospective client have drawn a one-year suspension by the Kansas Supreme Court,

From the findings below

On April 27, 2016, A.J., a prospective client, called the respondent, seeking representation. During the telephone conversation, the respondent called A.J., 'baby,' which made A.J. feel uncomfortable. After the respondent called A.J. 'baby,' A.J. tape recorded the remainder of their telephone conversation. The respondent scheduled an office appointment with A.J. for the next day. The remainder of the telephone conversation went as follows:

'[By A.J.] You didn't forget about me, did you?

'[By the respondent] No, what do you need? With a voice like that, I can't forget that.

'[By A.J.] Okay.

'[By the respondent] So you want to bring your paperwork and come see me tomorrow at noon?

'[By A.J.] Yeah, that'll be fine.

'[By the respondent] Do you know where it's at?

'[By A.J.] No, I'm not really familiar.

'[By the respondent] Okay. So write this down. Okay?

'[By A.J.] Okay.

'[By the respondent] Tell me when you're ready.

'[By A.J.] I'm ready

'[By the respondent] 1919 North Amidon.

'[By A.J.] Uh-huh.

'[By the respondent] I'm on the third floor, Suite 312. When you get off the elevator on the third floor, you do a U-turn to your left.

'[By A.J.] Okay.

'[By the respondent] I'm down the hallway. Now, do you know that Amidon is up there at 21st and Amidon where Twin Lakes is?

'[By A.J.] Yeah, I know where—I know where that's at. You need me to bring you pretty much everything that I got.'[By the respondent] To show that you guys are married. Okay?

'[By A.J.] Okay.

'[By the respondent] And don't wear any under panties.'

A.J.'s nine year-old daughter overheard the respondent's request.

He then called three times leaving messages to confirm the appointment. She instead complained to disciplinary authorities.

Further

In his response as quoted above, the respondent stated that he ran into an old client at the courthouse, she offered him sex for legal services, he became angry, and, as a result of his prior experiences, he took out his anger on an innocent bystander. At the hearing, however, the respondent's testimony included many facts not included in his initial complaint.

He has practiced for 34 years, was cooperative with the process and sought help

The respondent sought treatment from Renee C. Fields, LSCSW. The respondent has been in continuous treatment with Ms. Fields since June 9, 2016. Ms. Fields diagnosed the respondent with adjustment disorder with disturbance of conduct. According to Ms. Fields, the respondent's conduct was situational, he has made improvements, and his prognosis is good...

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the office of the Disciplinary Administrator recommended that if the panel found the respondent attempted to consummate a sexual relationship with a past or prospective client, the appropriate discipline would be a one-year suspension, with 90 days to be served, followed by probation; however, if the panel found that the respondent did not attempt to consummate a sexual relationship with a past or prospective client, the appropriate discipline would be a one-year suspension, the suspension stayed, and the respondent placed on probation subject to the terms and conditions of his probation plan supervised by a licensed attorney. Respondent requested permission to supplement the record with a proposed probation supervisor and that he be disciplined by either published censure or probation. The panel unanimously recommended that respondent be disciplined by a one-year suspension and that, after serving 30 days, he be placed on probation for two years subject to the terms and conditions listed in the final hearing report.

But since then his compliance was less than stellar

This court agrees with the recommendation of the Deputy Disciplinary Administrator and holds that respondent's license to practice law in the state of Kansas be suspended for one year, that he not be granted probation, and that he undergo a reinstatement hearing pursuant to Rule 219(d). While Falk's affidavit explained respondent missed his August meeting with him because of "some urgent thing that was going on with" respondent's two minor sons, the respondent offered no explanation to this court for why he failed to reschedule for that month. He also offered no explanation for why he failed to formally meet with Falk during September and October, even though Falk's affidavit stated they saw each other at least once a week at the courthouse during those months—and Falk reminded "him that we needed to meet, on a formal basis, regularly, at least once a month." Chance meetings at the courthouse do not fulfill the probation condition that the meeting occur at respondent's law office so that Falk "can review the files he [respondent] is working on, his calendar, and talk to his legal assistant Vicky."

While respondent explained he missed the monthly Lawyers' Group meetings because they conflicted with his court-allocated visitation with his sons, he offered this court no explanation for why he did not instead eliminate the conflict by seeking modification of this probation plan condition. Nor did he explain why he waited until November 29 to notify his supervisor Falk that he was violating the terms of his proposed probation by missing the meetings.

Moreover, respondent did not address other compliance issues raised by Falk's December 6 affidavit. Specifically, respondent did not sign "the necessary information releases" for his therapist to speak directly with Falk until after their meeting on November 29—five months after he agreed to this condition. Per respondent's proposed plan, "Mr. Phillips will sign appropriate releases for his psychologist, Dr. Renee Fields to be able to talk to me [Falk] about her care and treatment of Mr. Phillips. . . . I will contact Dr. Fields at least once a month, to check on Mr. Phillips' progress in treatment." Additionally, at least as of December 1, Falk had not provided the Disciplinary Administrator any reports regarding respondent's "conduct while working this probation plan"—although the panel's recommended probation conditions required Falk to "prepare a quarterly report to the disciplinary administrator regarding the respondent's status on probation."

In short, respondent's post-hearing conduct has not shown this court he will fulfill the conditions of any probation plan in the future.

Oral argument video linked here. (Mike Frisch)

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Second Bite

An attorney who was disbarred in Florida received the lesser sanction of a three-year suspension by the New Jersey Supreme Court.

He must. however, secure Florida reinstatement to be able to seek reinstatement in New Jersey.

The Disciplinary Review Board found the conduct warranted "substantially different" discipline in New Jerse y because the record did not establish "knowing" misappropriation.

But there was other bad stuff per the DRB

In December 2006, respondent and Larry M. Webman launched an enterprise to sell parcels of land in Costa Rica, Central America. Respondent was aware that, in 1993, Webman had been convicted of felony wire fraud and engaging in a scheme to defraud, and that he had served eighteen months in a federal prison for those crimes. Additionally, respondent knew that, in March 2006, the Commodity Futures Trading Commission (CFTC), an independent federal agency that regulates futures and option markets, issued an order permanently enjoining Webman from any dealings with commodities futures sales or transactions.

Notwithstanding that knowledge, the attorney went forth with Webman.

It is true that we are bound by the facts contained in the Florida record. "A final adjudication in another court, agency or tribunal, that an attorney admitted to practice law in this state . . . is guilty of unethical conduct in another jurisdiction . . . shall establish conclusively the facts on which it rests for purposes of a disciplinary proceeding in this state." Rule 1:20-14(a)(5). Nevertheless, we are not bound by the Florida court’s legal conclusion that respondent had an overarching duty to maintain the deposit monies intact in his trust account by way of a constructive escrow agreement. Indeed, a portion of the Florida case that the referee cited in support of his finding of a constructive escrow, United American Bank of Central Florida v. Seliqman, supra, 5499, So.2d 1014, contains the following quoted language: "[i]n the absence of an express agreement, written or oral, the law will imply" certain duties of care upon the escrow agent, in this case, respondent.

Here, however, the parties had an express, written, and fully executed escrow agreement, as evidenced by paragraph six. Therefore, we cannot find clear and convincing evidence that respondent knowingly misappropriated purchasers’ deposit monies, either for himself or for another improper use.

Respondent, nevertheless, engaged in egregiously dishonest, fraudulent conduct, in violation of RPC 8.4(c). We find that he also assisted Webman in conduct that he knew was fraudulent, in violation of RPC 1.2(d), and ran afoul of Florida’s recordkeeping rules, equivalent to New Jersey R. 1:21-6 and RPC 1.15(d).

When respondent partnered with Webman and drafted the model purchase and sale agreement, he knew that Webman had been convicted of fraud in federal court, that Webman had spent time in a federal penitentiary for his crimes, and that a few short months before launching the PIPCR scheme, Webman had been banned for life from participating in the futures and commodities markets in the United States. Under such obvious circumstances, it was unconscionable, and perhaps deliberate, for respondent to draft such a lopsided escrow arrangement into the purchase and sale agreement.

It is also axiomatic that, in any purchase and sale agreement, the seller is presumed to own the property he is offering for sale. The facts here, however, suggest that the purchasers were not aware that PIPCR did not own the property when they turned over their deposits to secure the purchase price of their lots. But respondent knew that PIPCR and Webman did not own the Hardy property. He also knew that Webman would use those funds to purchase that very property and for other, unrelated purposes. Respondent also acted dishonestly by facilitating PIPCR’s $267,000 mortgage and loan for the Hardy property, which encumbered the property that he and Webman were actively marketing to the unsuspecting purchasers at the time.

(Mike Frisch )

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Worthy Addition To The District Of Columbia Bar

An order entered yesterday by the District of Columbia Court of Appeals

No. 17-BG-1437

IN RE: SHON ROBERT HOPWOOD,  M110434

Applicant.

BEFORE: Glickman and Thompson, Associate Judges; and Steadman. Senior Judge.

                                                                   ORDER

On consideration of the findings of fact, conclusions of law, and recommendation of the Committee on Admissions, and the record, it is

ORDERED that the applicant’s application for admission to the District of Columbia Bar is granted and the Committee on Admissions shall certify the applicant for admission to the District of Columbia Bar.

Shon's story - told on 60 Minutes, in his published autobiography Law Man, the New York Times, Washington Journal,  NPR and elsewhere - of his journey from convicted bank robber to respected advocate and law professor - has been recounted elsewhere.

I am honored to have represented Shon in this matter.

On a personal note, the participation of Senior Judge John Steadman carries a deep meaning for me.

Judge Steadman came to the Court as a Georgetown Law professor who had taught when I was a student there in the early 1970s. He joined the court shortly after I took the job of Assistant Bar Counsel in 1984.

One of the benefits of being an Assistant Bar Counsel (if one takes the job seriously) is the frequency of arguments before the Court. 

I suspect that I argued 35 or more disciplinary cases before Judge Steadman. I revere and respect him on a par with any appellate jurist I have ever appeared before.

There were giants in my days - the names of Judges Pryor, Belson, Mack and Schwelb come to mind - but given Shon and my Georgetown connections, having Judge Steadman on this order is sublime justice. (Mike Frisch)

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Complaint Of Former Spouse Leads To Interim Suspension

The New York Appellate Division for the First Judicial Department has suspended an attorney 

By order entered September 21, 2010, respondent was suspended from the practice of law for three months based on his plea of guilty to attempted criminal possession of a forged instrument (2010 NY Slip Op 82856[U] [1st Dept 2010]). By order entered March 24, 2011, he was reinstated (2011 NY Slip Op 67836 [U] [1st Dept 2011]).

Respondent last registered with the Office of Court Administration (OCA) on or about June 4, 2014, listing a law firm as his business address. By letter dated July 24, 2017, the firm advised the Committee that respondent had stopped working there in February 2015. Respondent has failed to register or pay dues for the 2016/17 biennial period.

The Attorney Grievance Committee received a complaint from respondent's former wife alleging that he failed to comply with numerous financial obligations contained in an order issued on October 21, 2016, after hearing, by a Court Attorney Referee in Supreme Court, Nassau County, in their divorce proceedings. Prior to the hearing, by order dated May 21, 2015, respondent had been found in willful contempt based on his failure to pay $5,000 in interim counsel fees and committed to a correctional center for 60 days with a purge amount of $5,000, which he subsequently paid. By order dated May 20, 2016, respondent was found in willful contempt for a second time based on his alleged failure to pay child support and maintenance arrears, as required by a so-ordered stipulation dated December 4, 2015, and in failing to pay college tuition for their minor child.

Despite being served with the complaint, multiple demands that he answer the complaint, and a judicial subpoena duces tecum demanding his appearance, respondent has not appeared or contacted the Committee. Respondent has been notified repeatedly of his default and asked to contact the Committee, but has failed to do so, even though he has been advised that his failure to cooperate could expose him to an interim suspension.

The Committee now moves for an order, pursuant to the Rules for Attorney Disciplinary Matters (22 NYCRR) § 1240.9(a)(3) and (5), and Judiciary Law § 468-a(2), immediately suspending respondent from the practice of law until further order of this Court based upon his failure to comply with a lawful demand of the Court or the Committee, uncontroverted evidence of professional misconduct, and his failure to register with and inform OCA of changes to his attorney information. By order entered October 12, 2017, this Court granted the Committee permission to serve the motion, and any additional filings in this case, upon respondent by first class mail with tracking and certified mail, return receipt requested. Respondent has not opposed the motion.

The Committee has presented clear and uncontested evidence that respondent has engaged in conduct that immediately threatens the public interest, warranting his immediate suspension. The record establishes, among other things, that respondent has failed to comply with the numerous requests of the Committee contained in letters, emails and voice mails requesting that he answer the complaint and that he has failed to comply with a court ordered subpoena directing his appearance for deposition (see Matter of Spencer, 148 AD3d 223 [1st Dept 2017]; Matter of Yoo Rok Jung, 132 AD3d 236 [1st Dept 2015]). The record further establishes that respondent was found in willful contempt for failing to comply with court orders in connection with his financial obligations in the matrimonial matter with his former wife, which evinces a shocking disregard for the judicial system (see Matter of Rennie, 260 AD2d 132 [1st Dept 1999])Lastly, respondent is delinquent in his attorney registration and has failed to notify OCA of changes to his addresses and telephone numbers within 30 days of such change, as required by Judiciary Law § 468-a(2), thereby frustrating the Committee's attempt to communicate with him regarding its investigation (see Matter of Banji, 106 AD3d 73 [1st Dept 2013]).

Accordingly, the Committee's motion should be granted and respondent suspended from the practice of law, effective immediately, and until further order of the Court.

The order matures into disbarment if no response is received after six months. (Mike Frisch)

January 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 11, 2018

Pillow Talk

Two attorneys who have no professional relationship but reside together and are engaged to be married have been charged with confidentiality violations by the Ohio Disciplinary Counsel.

One of the attorneys was admitted in 2001; the other in 2010. According to the allegations, they both practice in the school law area.

They met on November 9, 2014 at an Ohio School Boards Association conference in Columbus, Ohio. They have not been co-counsel in any matters.

The allegations contend that during the period of January 2015 to November 2016, the attorneys (primarily through forwarded emails) exchanged client information such as names, work product and privileged communications. It is alleged that the more senior attorney assisted the more junior attorney in completing the work.

No indication from the charges how this came to light. Also, no answer to the charges has yet been posted. 

If the above link does not work, click here for Disciplinary Counsel v. Holmes and Kerr. (Mike Frisch)

January 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Judge Not

An order from the Ohio Supreme Court

 In re Disqualification of Vettori-Caraballo.

Sua sponte, Diane Vettori-Caraballo, Attorney Registration No. 0062545, disqualified from acting as a judge pursuant to Gov.Jud.R. III(6)(A). Further ordered that she shall remain disqualified while any and all indictments filed in the United States District Court for the Northern District of Ohio, Eastern Division, are pending and until further order of this court.

WKBN 27 reports on a possible resignation.

Three judges plan to step in to fill the vacancy left in Mahoning County Court No. 3 now that Judge Diane Vettori-Caraballo faces criminal charges.

Judge Joseph Houser, Judge Scott Hunter and Judge David D’Apolito will share the responsibilities, and there will be no change to the court’s services, according to a statement from Mahoning County Area Courts.

The statement indicates that Vettori-Caraballo left a voicemail to Administrative and Presiding Judge Scott Hunter, anticipating her resignation as judge of the Mahoning County Area Courts.

The Supreme Court of Ohio disqualified her from serving as judge during her pending criminal trial.

She’s accused of stealing at least $96,200 from a deceased former client’s home. She had been helping the client, Dolores Falgiani, draft a will when she learned about the money stored in shoe boxes around Falgiani’s home, according to court records.

Vettori-Caraballo is charged with one count of fraud, one count of structuring cash deposits and one count of making false statements to law enforcement.

As those area court judges scramble to fill the void left by Diane Vettori’s disqualification, the head of Mahoning County’s Democratic Party urges residents to have faith in the local legal system.

Chairman Dave Betras, who is also an attorney, said Vettori-Caraballo and her alleged actions are very uncommon.

“In any system, there is going to be one or two that, you know, something might happen. But overall, the judiciary in Mahoning County is excellent,” Betras said.

Charges against Vettori-Caraballo came just a day after a complaint was filed against Mahoning County Probate Judge Robert Rusu for failing to recuse himself from dozens of cases involving former clients from his private practice days. Betras said there is no comparison between the two cases.

“Judge Rusu’s case cannot and should not be compared in any fashion to Judge Diane Vettori’s case – not even close,” Betras said.

While Rusu’s case is being handled by the Ohio Supreme Court and is not a criminal matter, Vettori-Caraballo is due in federal court next week and is expected to plead guilty to her charges.

Vettori-Caraballo’s colleagues in the county’s area courts say they learned she was in trouble through the local media...

 (Mike Frisch)

January 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Split Sanction For Domestic Abuse

An order from the Louisiana Supreme Court

 In November 2016, respondent was arrested and booked with domestic abuse battery and resisting an officer. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joshua Paul Melder, Louisiana Bar Roll number 33983, be suspended from the practice of law for a period of one year and one day. It is further ordered that all but six months of the suspension shall be deferred, subject to respondent’s successful completion of a five-year period of probation to coincide with his Judges and Lawyers Assistance Program recovery agreement. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

(Mike Frisch)

January 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 10, 2018

One Email An Insufficient Response

The Minnesota Supreme Court has disbarred an attorney for misappropriation and failure to cooperate

Capistrant was admitted to practice law in Minnesota in 1987. We indefinitely suspended him in 2015, with no right to petition for reinstatement for 6 months, for refusing to promptly return a client file, not informing a client that his Wisconsin law license had been suspended, neglecting two lawsuits in Wisconsin, and failing to cooperate with the disciplinary investigation. In re Capistrant, 863 N.W.2d 398, 398 (Minn. 2015) (order). Capistrant has not petitioned for reinstatement and therefore remains suspended.

Capistrant’s misconduct in this case, which largely predates his 2015 suspension, relates to a single client. The client sought legal services from Capistrant to handle his son’s probate action and revise a trust that named his deceased son as a beneficiary. Capistrant met with the client only twice. At their second meeting, Capistrant presented the client with an invoice in the amount of $2,643. The invoice itemized $547 as "advances" for future filing fees and related costs for the probate action. The client paid the invoice in full.

Shortly thereafter, Capistrant abandoned the client’s case altogether. He never deposited the $547 into trust, stopped communicating with the client, and did not file the probate action. Months later, the client finally received his file back from Capistrant. Although Capistrant had agreed to refund the $547, he never did so. The client subsequently filed his son’s probate action on his own, proceeding pro se, and again incurred the filing fees that he had previously paid to Capistrant.

In late 2015, the Director sent three notices of investigation to Capistrant, none of which he answered. In 2017, the Director personally served Capistrant with a petition for disciplinary action alleging: (1) misappropriation of client funds; (2) client neglect, including failure to communicate with the client and to diligently pursue the client’s case; and (3) noncooperation with the Director’s investigation. Because Capistrant did not answer the petition, we deemed the allegations admitted under Rule 13(b), Rules on Lawyers Professional Responsibility (RLPR). In re Capistrant, A17-0429, Order at 1–2 (Minn. filed June 28, 2017).

Aside from one e-mail exchange with the Director suggesting that he was entitled to "mitigation," which Capistrant sent nearly 16 months after the Director first attempted to contact him, Capistrant has otherwise failed to cooperate with the disciplinary process. He has not filed any document in this proceeding, nor did he appear at oral argument

The court found no mitigating factors. (Mike Frisch)

January 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Family Choices

An Illinois Hearing Board proposes a 60-day suspension

We found that Respondent failed to provide competent representation to her clients in an adoption case by being unprepared for a court hearing and failing to prepare her clients for the hearing. We also found that Respondent had a conflict of interest by representing clients in the adoption case while also representing, in other matters, an adoption agency that was the respondent in the adoption case with interests adverse to her clients. We also found a conflict of interest where Respondent's sister testified on behalf of the adoption agency and adverse to her clients at the hearing in the adoption case. We also found that Respondent failed to explain the conflict of interest and that she was unprepared for the court hearing to her clients in order for them to make informed decisions about her representation. Finally, we found that Respondent failed to withdraw from representing the clients in the adoption case where her continued representation violated the Rules of Professional misconduct. We recommend that Respondent be suspended for 60 days.

 On sanction

In aggravation, Respondent failed to recognize a clear conflict of interest, especially when Respondent's sister began testifying adversely to Respondent's client. See Twohey, 191 Ill. 2d 75, at 89. Also in aggravation, and very troubling, is that Respondent's testimony indicates she still does not fully understand her conflict of interest in representing the Warrens or what is necessary for an informed waiver of a conflict. Additionally, Respondent demonstrated she does not recognize or understand that her representation of the Warrens at the hearing in November 2013 fell far short of competent representation expected of attorneys. Respondent was specifically asked if she believed she effectively represented the Warrens at that hearing. Respondent replied, "I believe given the situation, given the eloquence with which Janet presented herself at that point in time, given Judge Rice and his inclinations, yes, I do."

Further, Respondent's misconduct caused significant harm to the Warrens. Although the ultimate outcome of the adoption case may have resulted in the Warrens' petition being denied, Respondent's misconduct resulted in the Warrens being totally surprised, shocked, and devastated by the sudden, unexpected ruling ordering the immediate removal of the child from the Warrens. The Warrens hired Respondent and Family Choices believing they were hiring a team on their behalf. However, at the hearing on November 22, 2103, they suddenly found Family Choices turning against them and Respondent being unprepared and doing nothing meaningful on their behalf. It is understandable why the Warrens felt betrayed. In In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995), the Supreme Court pointed out that the respondent's neglect and long delays in client cases caused "considerable and needless anxiety," along with the infliction of "anguish" on his clients. Similarly in the case before, Respondent's misconduct caused Janet and Gregory Warren to suffer anguish, along with considerable and needless anxiety."

There is also significant mitigation in this case. The Respondent was fully cooperative during her disciplinary proceeding. She has been practicing law for more than 30 years and has not been previously disciplined. Her misconduct in this matter occurred in one case, during an otherwise lengthy and unblemished career. Respondent testified that she does pro bono work. She also testified that she now recognizes the need for and keeps "copious notes," and will not file a pleading until she has seen a signed contract.

In addition, six impressive witnesses testified favorably as to Respondent's outstanding abilities as an adoption attorney and as to her honesty and integrity. The foregoing witnesses included a judge, a retired judge, two attorneys who practice adoption law, and two individuals who were represented by Respondent in adoption cases.

Finally, Family Choices is no longer in operation and, thus, Respondent will not have a conflict based upon her relationship with Family Choices in the future.

(Mike Frisch)

January 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 9, 2018

Twelve Years After

An Ad Hoc  District of Columbia Hearing Committee recommends disbarment for a reckless misappropriation of entrusted funds.

Notably, the matter involved three client complaints filed with then-Bar Counsel in 2005.

What delay?

Respondent complains that he was denied due process because Disciplinary Counsel waited five years after the complaints were lodged before filing the Specification of Charges. Respondent argues that the delay was “unreasonable, unnecessary, an abuse of discretion and has been extremely detrimental to the Respondent in many ways.” R. Br. at 7. Disciplinary investigations are complex and require time to develop properly. The record in this case shows that Disciplinary Counsel notified Respondent of the complaints on April 5, 2005 (Ms. Hammie-Bonner); November 9, 2005 (Mr. Thompson); and September 28, 2005 (Mr. Wyatt). DX 1-F; DX 2-A; DX 3-A. Disciplinary Counsel sent correspondence to Respondent prior to the conclusion of these investigations in May 1, 2008 (Ms. Hammie-Bonner); January 24, 2008 (Mr. Thompson); and August 20, 2007 (Mr. Wyatt). DX 1-N; DX 2-E; DX 3-C. On October 30, 2008, Respondent was reciprocally suspended by the D.C. Court of Appeals based on a disciplinary suspension in Maryland. DX C. Two years later, DisciplinaryCounsel filed the Specification of Charges in this case.

Delay in disciplinary investigations does not benefit the Respondent, the public, or our disciplinary system. But investigations that are conducted in a cursory fashion without sufficient time to consider all aspects of the charges are much worse for everyone. Respondent cites no prejudice he suffered due to Disciplinary Counsel’s delay other than “keeping his life in suspense.” R. Br. at 8. Moreover, the vast majority of the delay in this proceeding was at the request of Respondent who filed several motions for deferral and various requests for additional time to submit his filings. The Hearing Committee does not find that this delay was unreasonable or detrimental to Respondent sufficient to warrant a dismissal of the charges or a reduction in the sanction.

And

 Disciplinary Counsel served Respondent with a Specification of Charges on October 27, 2010. Respondent, through counsel, filed an answer on December 14, 2010. In July 2011, this matter was stayed while Respondent defended criminal charges in Nigeria. See Board Order of July 19, 2011. On April 22, 2016, the case  resumed after Respondent failed to file a response to an order to show cause why the stay should not be lifted. By this time, Respondent’s counsel had withdrawn and he has since proceeded pro se. After holding two pre-hearings and accommodating other requests for delay, the Hearing Committee held a hearing on May 16, 2017. 

The case is In re Ephraim Ugwuonye.

Sahara Reporters reports his disbarment in Maryland, New York and Nigeria as did The Nigeria Lawyer. (Mike Frisch)

January 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

In Deed

The Rhode Island Supreme Court rejected the proposed 60-day suspension of its Disciplinary Board and censured an attorney

The relevant facts are undisputed. For many years the respondent has provided legal representation to the Newport Bay Club Home Owner Association, Inc. (hereinafter referred to as NBC). NBC is a not-for-profit corporation incorporated under the laws of the State of Rhode Island that is the managing entity of a time-share development and commercial property known as the Newport Bay Club and Hotel located on Thames Street in Newport, Rhode Island. Time-share units are sold by NBC to owners who purchase vacation property for set periods of time, usually in units of one-week duration. Besides the purchase price, unit owners were assessed annual maintenance fees by NBC. If an owner failed to pay the assessed maintenance fees, NBC had the right to foreclose on the delinquent unit owner’s interest in the property.

Among the legal services routinely rendered by the respondent to NBC was the collection of delinquent fees and, when requested by the Board of Directors of NBC, foreclosing on owner interests. In the ordinary course, acting pursuant to a statutory power of sale, the respondent would prepare a foreclosure deed to be executed by a duly authorized officer of NBC; that execution would be witnessed by a notary public, and when properly executed the foreclosure deed was recorded in the land evidence records for the City of Newport.

However, the respondent did not follow the appropriate course of conduct in providing these legal services to NBC. Instead, he engaged in a persistent pattern of signing the name of the President of the NBC Board of Directors to the foreclosure deeds and acting as the notary witness to that signature. The respondent then caused the falsely executed documents to be recorded.

The conduct of the respondent came to light during the course of litigation between NBC and a former employee/manager of NBC. The respondent self-reported his conduct to Disciplinary Counsel. The respondent subsequently prepared and caused a confirmatory deed to be properly executed and recorded to clear any title issues caused by his recordation of the improperly executed deeds containing the false notary affidavit clauses. Neither NBC nor any of the time-share owners whose ownership interests had been foreclosed upon incurred any financial harm due to the respondent’s conduct.

The court concluded that suspension was not required.

We believe this case presents unique circumstances which cause us to reduce the level of discipline recommended by the board. We find the respondent’s lengthy, unblemished history, coupled with his heartfelt remorse, warrant a departure from our prior decisions in similar circumstances. We do not condone the respondent’s conduct. However, we also do not believe, in view of the totality of the circumstances of this case, that his suspension from the practice of law is necessary to protect the public.

(Mike Frisch)

January 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 7, 2018

More Crimes Of The Heart

The Pennsylvania Supreme Court imposed a temporary suspension based on a criminal conviction.

Pennsylvania Real-Time News had this report in September 2016

 A lawyer in Lycoming County has been accused of illegally placing a tracking device and audio recorder in the vehicle of the South Williamsport woman who had jilted him.

Michael J. Casale Jr. 64, of Williamsport, was charged Thursday by South Williamsport police and released on $25,000 unsecured bail. The arrest affidavit states Casale confessed and told police he knows he committed a crime.

Police said the investigation began March 14 after the woman reported finding a GPS tracking device and audio recorder while cleaning out her car.

She told police she had an on-and-off four-year relationship with Casale that she broke off in September 2015, the affidavit states. Casale told police he took the break-up hard.

She also told investigators Casale came to her home at 10:30 p.m. on Feb. 20 intoxicated, said he wanted to renew their relationship and told her he had checked her garage to see if her new boyfriend's car was there.

For a period after that, the affidavit states, she ran into Casale at different places and he texted her. He denied the encounters were related to the devices, police said.

The woman provided police a copy of an email she said she received March 15 from her apologizing for his "drunken visit," the charges state.

She told them he made a second apology by telephone on April 7, saying he had been obsessed with her and requested a face-to-face meeting to confess something, the affidavit states. The woman said she rejected the meeting request.

Casale told police he placed the devices last November or December so he could find out who she was seeing, the charges state.

He claimed several times he went to remove the devices but the car was locked, police said.

Casale is charged with burglary, criminal trespass, interception of communications and criminal attempt to intercept communications.

He told District Judge Gary Whiteman at his arraignment he is married.

The attorney consented to the suspension. (Mike Frisch)

January 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, January 6, 2018

Busy Work

The New York Appellate Division for the First Judicial Department censured an attorney for internal law firm billing irregularities

The Attorney Grievance Committee (Committee) seeks an order pursuant to Judiciary Law § 90(2) and the Rules for Attorney Disciplinary Matters [22 NYCRR § 1240.8(a)(5)], directing respondent's public censure for false entries made in his law firm's internal billing records (Rules of Professional Conduct [22 NYCRR § 1200.0] rules 8.4[c], [h]). Specifically, the Committee and the respondent stipulated that between March 2012 and September 2013, respondent engaged in a pattern of making false entries into the firm's internal billing records. Respondent fabricated and falsely entered 94.8 hours in total. The clients were not aware of the false entries and were never billed for the fabricated hours because respondent removed the false entries before the bills were sent to clients.

The Committee and respondent agree on the stipulated facts and on the discipline. The Committee found no precedent for any public censure for falsifying time records where clients were not harmed. Disciplinary cases involving false or over-billing that have resulted in public discipline involved more egregious conduct in which the clients were directly impacted by the misconduct (Matter of Stone , 230 AD2d 481 [1st Dept 1997][one-year suspension]; Matter of Segall , 218 AD2d 331 [1st Dept 1996]). However, notwithstanding this lack of precedent, the Committee and respondent agree that public censure is appropriate because he engaged in this conduct for a period of over two years, he is a senior attorney with extensive experience, and although he did not intend to financially benefit or over-bill his clients, he intended to and did "deceive his colleagues and his firm about how busy he was." In mitigation, respondent has never before been the subject of a disciplinary investigation in this Judicial Department in his 34 years of practice, he fully cooperated with the Committee, expressed genuine remorse and embarrassment, and he lost his partnership at his firm.

(Mike Frisch)

January 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)