Saturday, May 27, 2017

Government Lawyer Reprimanded For Rule 4.2 Violation

A reprimand from the Michigan Attorney Grievance Commission

The respondent and the Grievance Administrator filed a stipulation for a consent order of discipline, in accordance with MCR 9.115(F)(5), which was approved by the Attorney Grievance Commission and accepted by the hearing panel. The stipulation contains respondent's admission that he committed acts of professional misconduct in his position as Staff Attorney for the [Michigan] Department of Civil Rights, where he was to provide counsel to Department investigators.

Based upon respondent's admissions and the stipulation of the parties, the panel found that respondent directly contacted a discrimination complainant who was represented, in violation of MRPC 4.2. Respondent was also found to have violated MCR 9.104(1 )-(3) and MRPC 8.4(a) and (c). In accordance with the stipulation of the parties, the panel ordered that respondent be reprimanded. Costs were assessed in the amount of $757.71.

The charging document is linked here. (Mike Frisch)

May 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, May 26, 2017

From McLouth To Tonganoxie

A letter to two principals led to a published censure from the Kansas Supreme Court.

The parties in a post-divorce proceeding wanted their children to attend different schools.

The father had an order to send the children to school in McLouth; the mother wanted them in Tonganoxie.

On August 24, 2015, the respondent sent a letter to [McLouth principal] Mr. Johnson. In the letter, the respondent stated:

'This letter will serve to advise you that I represent [A.C.] concerning the enrollment of her children [] in the Tonganoxie School District. As you should know, the children, along with their mother, recently took up residence [in] Tonganoxie, Kansas 66086, which is located within the boundaries of USD 464. As a consequence of this new residence, my client has filed an application with the District court [sic] that has jurisdiction over this matter seeking to have a determination made about the district where the children will attend school moving forwards [sic]. Because my client's motion is pending, it is scheduled for a hearing on September 9, 2015, there is no order to resolve where they will be attending school. As I am sure you are aware, Kansas law provides that a student attend the school district of residency, which is why, pending a decision being made by the Court, that the children are enrolled in USD 464.'

Additionally, the respondent sent a nearly identical letter to the principal at the Tonganoxie Elementary School. The respondent acknowledged that the letters are not accurate and that a valid court order was in effect. The respondent explained that he did not carefully read the letters prior to sending them out. The respondent stated that he intended to inform the principals that a motion was pending and explain why his client was bringing the children to the Tonganoxie Elementary School.

On August 24, 2015, the father dropped the children off at the McLouth Elementary school. Prior to the start of school that day, the mother picked the children up from McLouth Elementary School and, presumably, took them to the Tonganoxie Elementary School. On August 27, 2015, the father again dropped the children off at the McLouth Elementary School. Again, the mother picked up the children from the McLouth Elementary School prior to the beginning of the school day and, presumably, took them to the Tonganoxie Elementary School.

The genesis of the bar case is described in the hearing panel report

On September 25, 2015, Judge Gary L. Nafziger filed a complaint with the disciplinary administrator's office regarding the respondent's conduct.

On November 4, 2015, the court resumed the hearing. The mother appeared with new counsel. The mother was called to testify and she testified that the respondent gave her legal advice that led her to disregard the court's order. The court concluded that the mother's violation of the court's order was induced by the respondent's legal advice.

The respondent disputes the statements made by his client which led to the court's conclusion. The respondent testified that prior to the time his client enrolled the children in school, he did not have a discussion with his client about the children's school enrollment in the Tonganoxie Elementary School. The respondent asserted that he advised his client that the court order required the children to attend school in McClouth. The respondent admitted, however, that the language of his letter confused his client.

Based on the respondent's response to the initial complaint as well as the respondent's testimony, it is clear that the respondent's client was a difficult client.

The court

In making its disciplinary determination, the court observes that the panel found respondent provided "inaccurate" information in his letters to the two principals, resulting in violations of KRPC 1.4(b) and 8.4(d). Merely providing inaccurate information can be consistent with its finding of his mental state that he "negligently" violated his duty. But the panel also found respondent violated KRPC 8.4(c) by engaging in conduct "that involved dishonesty when he falsely stated to the two principals that no court order regarding school attendance was in effect when, in fact, an order was in effect." (Emphasis added.)

Dishonest statements usually are inaccurate. But inaccuracy is not necessarily indicative of dishonesty, hence the questionable result of "negligent dishonesty." "Dishonest" has been defined as "disposed to lie, cheat, defraud or deceive." (Emphasis added.) The American Heritage Dictionary of the English Language 378 (1981). By contrast, misrepresentation—a form of misconduct that is also covered by KRPC 8.4(c)—can be merely negligent. See Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604-06, 876 P.2d 609 (1994). As the American Bar Association Standards recommend a reprimand for conduct that involves dishonesty (Standard 5.13) as well as for conduct that is negligent (Standard 6.23), this court holds that respondent should be disciplined by published censure.

The video of the oral argument is linked here. (Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Ignorance Excuses Tax Lapses

The Illinois Review Board recommends that charges of dishonesty be dismissed

The Administrator charged Respondent with engaging in dishonesty based upon his treatment of a portion of his employees' wages as non-taxable expenses, which resulted in his tax returns and wage statements underreporting employee compensation.

Following a hearing, the Hearing Board found that Respondent had committed some of the charged misconduct, and recommended that he be suspended from the practice of law for 60 days, with the suspension stayed in its entirety by a one-year period of probation.

The story on failure to pay taxes on wages

Respondent testified that he did not intend to evade his obligation to pay taxes on his employees' wages, and that he had little understanding of the specific types of withholding required from employees' wages. He testified that he knew that, as an employer, he had to pay some amount to the state and federal governments for a portion of the withholding from an employee's paycheck, and understood that he had some responsibility for payments that were not coming out of his employees' pay, but did not have a plan for how he was going to pay his taxes on the non-payroll amounts that were paid to Ms. Smith, Ms. Buhle, and Ms. Styx. He testified that he assumed that, at the end of the year, Ms. Heap and Mr. Zabel "would gather it up and figure it out," but that he did not "actually think about it."

The Administrator sought a two-year suspension but got bupkis

Other than the statements in Respondent's answer, the Hearing Board identified no other evidence to show that Respondent knew that the tax and wage documents contained false information, or that he understood the accounting and tax implications of his decisions. To the contrary, the evidence established that Respondent did not know how his decision to accede to Ms. Smith's request affected his pay records, and did not know that the records prepared by Ms. Heap over-stated expense reimbursement and understated his employees' wages. The evidence showed that Respondent had no involvement in his firm's record-keeping or in the handling of his firm's finances, which is how he has conducted his practice since 1985. The evidence showed that he did not know the logistics of how Ms. Heap paid employees, did not have access to her records, and never saw an employer return or wage statement filed on behalf of his office. While that may have been an irresponsible and foolhardy way to run his practice, it does not, in and of itself, establish the scienter necessary to support a dishonesty finding.

Consequently, the Hearing Board's findings to the contrary, which were based upon the statements in Respondent's answers that it incorrectly deemed to be judicial admissions, are against the manifest weight of the evidence, because they are not supported by the evidence of record in this matter.

In reaching this conclusion, however, we in no way condone Respondent's actions, particularly his poor communication with his bookkeeper, carelessness regarding how he paid his employees, and failure to personally review and ensure the accuracy of his tax documents. His choices exhibit exceedingly poor judgment. But as our Court has noted, a lack of good judgment does not necessarily constitute ethical misconduct. See In re Winthrop, 219 Ill. 2d 526, 546, 552, 554, 848 N.E.2d 961 (2006).

(Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Affairs Of The Heart And The Duty To Disclose

The Louisiana Attorney Disciplinary Board reviewed a hearing committee report and recommends  a stayed six-month suspension with one year of unsupervised probation and 20 hours of CLE for an attorney's failure to disclose an "intimate, romantic relationship" with an FBI agent/witness while serving as an Assistant United States Attorney for the Western District of Louisiana. 

The hearing committee had proposed an actual six-month suspension.

The board noted that the parties had agreed that the actual suspension should be imposed but exercised its independent authority to determine an appropriate proposed sanction.

Of particular interest here is the concurring opinion of Board Member Linda Bizzarro, who notes her view as a career prosecutor and retired AUSA that "discovery issues are better handled by the criminal court system and not by the disciplinary system."

Member Bizzarro notes that the trial judge found the relationship was irrelevant in the criminal case and that the Office of Professional Responsibility of the Department of Justice found no Rule 3.8 violation.

She also notes that the attorney stipulated to violations to bring the matter to a prompter conclusion.

She concludes

The exact parameters potential impeachment information under Giglio are not easily determined...as [prosecutors] proceed in unchartered waters, they must add to their consideration affairs of the heart.

Our prior coverage is linked here.

An "intimate,  romantic" relationship between an Assistant United States Attorney and her lead FBI agent in two cases has led to a proposed six-month suspension and probation by a Louisiana Hearing Committee.

The hearing committee found that the AUSA had failed to disclose the conflict in the investigations and prosecutions of Monroe Councilmen "Red" Stevens and Arthur Gilmore and a separate prosecution of Ouachita Parish Sheriff Royce Toney.

In the Toney case, the AUSA responded to the defendant's supposed "spreading rumors" about the affair (true rumors, it turns out) by making the defendant submit to a "perp walk."

The hearing committee also found that she lied to the United States Attorney when confronted.

The relationship was found to create a Rule 1.7 conflict of interest.

The Times Picayune had a 2008 story about Member Bizzarro. (Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Utah, California, Missouri, Kansas

The Kansas Supreme Court has disbarred an attorney in a matter where the hearing panel found

The respondent has played fast and loose with the truth in the disciplinary proceedings in Utah, in his voluntary resignation in California, and during the disciplinary proceedings here in Kansas. Despite the 1998 order suspending his license to practice law in California, during the Utah sanctions hearing, the respondent testified that he had not previously been disciplined. In the voluntary resignation of his license to practice law in California, despite the pending complaint in Utah, the respondent asserted that he had no disciplinary complaints pending in any jurisdiction. Finally, in correspondence with the disciplinary administrator's office, the respondent falsely claimed that J.B. was fully reimbursed before the bar complaint was filed. Regarding his misconduct in California, the respondent stated that the 'issue was resolved with the California bar,' when in fact, in 1998, his license to practice law in California had been suspended. Further, the respondent failed to report his 2000 reciprocal suspension in Missouri and his 2015 disbarment in Utah.

The Utah disbarment involved intentional misappropriation.

Though the rules allow for flexibility in most cases, there are presumptive sanctions for the most egregious types of misconduct. Disbarment is the presumptive sanction when a lawyer either "knowingly engages in professional misconduct . . . with the intent to benefit the lawyer . . . and causes serious or potentially serious injury to a party" or "engages in serious criminal conduct, a necessary element of which includes . . . misappropriation, or theft." Id. 14-605(a)(1), (2). And though disbarment is the harshest sanction available in the realm of attorney misconduct—"the proverbial professional death-sentence," In re Discipline of Corey, 2012 UT 21, ¶ 40, 274 P.3d 972—we have long said that intentional misappropriation of client funds is one of, if not the most "severe" kind of misconduct in the legal profession. In re Discipline of Grimes, 2012 UT 87, ¶ 15, 297 P.3d 564. Misappropriation of client funds undermines the relationship between attorney and client and damages the legal profession as a whole. Indeed, this court and others have not minced words when addressing it, describing it as "always indefensible," In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997); something "we cannot tolerate," In re Discipline of Johnson, 2001 UT 110, ¶ 14, 48 P.3d 881; a form of "ethical dereliction," In re Blumenstyk, 152 N.J. 158, 704 A.2d 1, 4 (1997); "the gravest form of professional misconduct," Att'y Grievance Comm'n v. Pattison, 292 Md. 599, 441 A.2d 328, 333 (1982); and an act that "reflects poorly on the entire legal profession and erodes the public's confidence in lawyers." In re Disciplinary Action Against Rooney, 709 N.W.2d 263, 270 (Minn. 2006). As we explained in Babilis, a seminal Utah case in this area, intentional misappropriation of client funds "strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself." 951 P.2d at 217.

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 the respondent be disbarred. The hearing panel also unanimously recommended that the respondent be disbarred. The respondent requested probation, that he be given an opportunity to retain or reinstate his license, and that he be allowed to prove to the community that he is a responsible person.

The day prior to the hearing before this court, the respondent notified the office of the Clerk of the Appellate Courts that he would not appear in person or by counsel. The clerk informed him that pursuant to Supreme Court Rule 212(e)(5) he was required to appear and that any response from him must be submitted in writing; the clerk gave respondent the clerk's office fax number.

At the hearing before this court, the respondent did not appear. The Disciplinary Administrator recommended that the respondent be disbarred. We agree with the recommendation of both the Disciplinary Administrator and the panel, and we hold that respondent is disbarred from the practice of law in the state of Kansas.

(Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

California Unveils New Web Page

The web page of the California State Bar has been redesigned.

The State Bar of California announces the launch of its new website: www.calbar.ca.gov. The website redesign and overhaul comes at a time of ongoing reforms for the State Bar, and aims to provide greater accessibility for the public, attorneys and applicants.

With the agency’s primary mission focused on public protection, the new website provides easier access to attorney discipline information and legal resources. The site is mobile-optimized to reflect the reality that many Californians access the web primarily through mobile devices. The site aims to help the public better find information on how to file an attorney misconduct complaint and other attorney discipline system resources.

Features and highlights of the new website include:

Resources for the Public

- Information about how to file an attorney misconduct complaint

- Information about how to avoid fraud from people posing as attorneys, and how to file a complaint against non-attorneys for the unauthorized practice of law

- Multilingual information: complaint forms and instructions on how to file a complaint are now available in Spanish, Chinese, Korean, Vietnamese and Russian. Additional legal resource translations will also be available online soon. Google translate is also available on many legal resources pages for the public

- Information about disbarments, suspensions and other attorney discipline

- Multilingual intake hotline for complaints against attorneys (and for complaints about unauthorized practice of law): 800-843-9053

Information for attorneys licensed in California

- Revamped attorney records (known as the My State Bar Profile feature)

- Pro bono opportunities and other information about supporting legal aid

- Information about attorney ethics and other rules of professional conduct

- MCLE requirements and reporting

- Information about fees and licensing

- California Bar Journal and attorney discipline listings are now part of the main State Bar website

Easier access to information for greater transparency

- Public meetings of the Board of Trustees, as well as State Bar committees and commissions

  of Board of Trustees meetings

- Listings of disbarments, suspensions and other attorney discipline now housed directly on the State Bar website

- Public comment

- Public records

- News releases

Information for prospective attorneys

- Better access to registration tools and Bar Exam information

Information about access to justice

- Details about the State Bar’s work to promote access to justice and diversity in the legal system, including the approximately $30 million distributed annual directly to legal aid

- Resources for those who wish to donate their time or money to helping Californians access the legal system

- Contact information for the public for legal aid organizations that receive grants from the State bars

The State Bar welcomes feedback and suggestions for further website improvements that help achieve the agency’s public protection mission. Please provide feedback via this online survey.

###

The State Bar of California is an administrative arm of the California Supreme Court, protecting the public and seeking to improve the justice system since 1927. All lawyers practicing law in California must be admitted to the State Bar.

Here is the link to the new page for the State Bar Court.

While I always approach any change with trepidation - especially when I already know how to find what I am looking for to prime this pump (a phrase I invented, by the way) - the new California web page appears to improve access and transparency. (Mike Frisch)

May 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 25, 2017

Shorn

The New Jersey Supreme Court has accepted the consent to.disbarment of former Chris Christie ally David Samson.

NJ,com  reported on his recent sentencing

Facing two years in prison for the shakedown of United Airlines in a bizarre scheme to get a more convenient direct flight to his South Carolina getaway home, former Port Authority chairman David Samson found a soft landing Monday.

U.S. District Judge Jose Linares stunned federal prosecutors by sentencing Samson to a year of home confinement, four years of probation and 3,600 hours of community service in his admitted strong-arming of the airline.

The 77-year-old former New Jersey attorney general will also be required to pay a $100,000 fine and wear a location-monitoring device.

"I did something wrong. I violated the law. I deeply regret it. I am trying to live my life to the highest moral standards," Samson said in court, apologizing to his family his friends and the public. "I violated the law. I deeply regret it."

Linares did not minimize Samson's guilt.

"This crime was ridiculous. It was a complete abuse of power. It was corruption that is not to be tolerated," said the judge.

His licence was suspended in July 2016 on an interim basis. (Mike Frisch)

May 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 24, 2017

Like Murder In The First Degree

The Tennessee Supreme Court ordered a five-year suspension  with one active year and probation of an attorney who had misappropriated funds and lied under oath in a deposition about prior bar discipline and bankruptcy.

As this Court stated in Bonnington, “the objective of achieving uniformity of punishment in disciplinary proceedings does not require that every named offense be accorded identical punishment. Like murder in the first degree, lawyer misappropriation of funds is subject to more than one punishment.” Id. at 570–71. We hold that neither Attorney nor the Board is entitled to relief from the Panel’s imposition of a five-year suspension.

The court's summary

This matter initially originated from a fee dispute between attorney Peter M. Napolitano (“Attorney”) and his client Gayle Connelly (“Client”). Client filed a complaint with the Tennessee Board of Professional Responsibility (“the Board”) regarding the fee dispute in 2008. The Board dismissed this complaint in 2010 without imposing any sanctions. Client sued Attorney over the fee dispute and, after Attorney was deposed in conjunction with the lawsuit, Client filed a second complaint with the Board in 2012. This second complaint alleged that Attorney had mishandled funds in his trust account and lied under oath. The Board prosecuted this second complaint, resulting in a hearing before a hearing panel (“the Panel”). The Panel determined that Attorney had committed ethical violations related to his trust account and by lying under oath. Accordingly, the Panel imposed sanctions against Attorney, including a five-year suspension of Attorney’s law license, with one year of active suspension. Attorney and the Board both sought review in circuit court. The circuit court modified the Panel’s sanctions in part but affirmed the five-year suspension.  Both Attorney and the Board sought review by this Court, with Attorney seeking a lesser punishment and the Board seeking disbarment. Additionally, both parties disagree with the Panel’s order of $7,500 in restitution to Client. We hold that the five-year suspension is appropriate and that the Panel did not err in ordering $7,500 in restitution. Accordingly, we affirm the circuit court’s judgment but modify it by adding the requirement of a practice monitor during Attorney’s probationary period.

The attorney represented the client in an employment dispute. They ended up in litigation against each other.

While under oath, [Attorney] was asked in the deposition if he had received any bar complaints related to his New York law license and [Attorney] falsely stated that he had received no complaints. A bar complaint had been filed against [Attorney] resulting in his suspension from the practice of law for five (5) years on January 27, 1994 by the New York Supreme Court Appellate Division for misappropriating $5,000.00 and providing false testimony under oath.

In the same deposition, [Attorney] was asked if he had ever filed a personal bankruptcy and he stated falsely under oath that he had not filed bankruptcy. In fact, [Attorney] had filed two (2) separate Chapter 7 Petitions for bankruptcy. The first Petition was filed on December 6, 1993 in the United States Bankruptcy Court for the Middle District of Tennessee. The second Chapter 7 Petition was filed on July 1, 2003 in the United States Bankruptcy Court for the Middle District of Tennessee. [Attorney] received a personal discharge in each bankruptcy.

Sanction

We hold that, in the event Attorney is successful in having his law license reinstated after serving his first year of suspension, he must have a practice monitor for the remaining years that his suspension is probated. The practice monitor shall supervise Attorney’s compliance with trust account rules and accounting procedures.

(Mike Frisch)

May 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Road Rage Suspension

A road rage incident by an attorney with prior discipline led to a three-month suspension from the New Jersey Supreme Court. 

The letter decision of the Disciplinary Review Board describes the basis for discipline

Although the events leading up to the incident are disputed, respondent admitted that, as a result of aggressive interactions on the roadway, he initiated a confrontation with twenty-one-year old Julia Bouclier. Although he claimed that Bouclier drove recklessly, he admitted that, after Bouclier stopped her vehicle, he exited his vehicle "probably wanting to hurt someone. I would say even worse than that."

Specifically, respondent retrieved a golf club from his trunk and swung the club at Bouclier’s vehicle "as if he were going to hit it," and then threw the club at her car as she attempted to drive away. The club struck Bouclier’s vehicle multiple times as it caromed about. He then retrieved the club and closely approached Bouclier’s vehicle. Respondent stipulated that, from close range, he could see and hear Bouclier crying and attempting to explain herself, but that he was unmoved. He stated that "this could have been my daughter and this is a lesson. You don’t go running people off the side of the road." Nevertheless, respondent then left fine scene without contacting the police, rationalizing that "nobody [was] bleeding." He admitted that "he lost control over his emotions and is remorseful." Ultimately, the police identified and contacted respondent, and he cooperated with the police investigation. Respondent also reported his charges to the OAE.

According to Bouclier, the incident with respondent began when she suddenly braked to avoid a deer. She claimed that respondent began to aggressively "tailgate" her vehicle, and attempted to improperly pass her. At some point, she stopped her vehicle at an intersection. Respondent then exited his vehicle, and began striking the trunk of her vehicle with his golf club. When she attempted to leave the scene, respondent threw the club at her vehicle, striking it again. Bouclier called the police, who interviewed her at the scene and photographed two large dents in her trunk and marks on her rear windshield. Bouclier was distraught, and reported being unable to sleep for fear that respondent might know where she lived and could hurt her and her family.

The sanction discussion noted other violations and discussed "violent lawyer" precedents in the Garden State.

Respondent has demonstrated a penchant for lack of respect for the administration of justice. He has criminally attempted to evade traffic points by improperly using another’s identification; has attempted to use a civil suit to leverage a former client into withdrawing a pending ethics grievance; and has now fled the scene of his violent criminal conduct before the police arrived. There is no mitigation to consider. Accordingly, the Board determined that respondent’s misconduct warrants a three-month suspension to protect the public and to preserve confidence in the bar.

My take: A longer suspension might better protect and preserve. (Mike Frisch)

May 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey Suspends, Disbars For Sex Crimes

Three disciplinary matters before the New Jersey Supreme Court were resolved today in a single opinion

In these matters, the Court considers the discipline to be imposed on attorneys, with no previous disciplinary history, who pled guilty to sex offenses in which their intended victims were children ranging in ages  from nine to twelve. Under Rule 1:20-13(c)(1), the respondents’ convictions constitute conclusive evidence of their criminal conduct, as well as a violation of Rule of Professional Conduct 8.4(b), which proscribes commission of “a criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as a lawyer.” The only task before the Court is to determine the appropriate discipline for each respondent’s ethical violations. The Office of Attorney Ethics (OAE) and the Disciplinary Review Board (DRB) recommended that the Court disbar each respondent.

Respondents Mark G. Legato and Regan C. Kenyon, Jr., each pled guilty to third-degree attempted endangering the welfare of a child. Legato admitted that he engaged in explicit online conversations with a person he believed to be a twelve-year-old girl. He also admitted to scheduling two in-person meetings with the girl, but did not appear at either. Unbeknownst to Legato, the girl was actually an undercover law enforcement officer. Following Legato’s guilty plea, the OAE filed a motion for final discipline before the DRB. In a unanimous decision, the DRB voted for his disbarment.

Respondent Kenyon admitted that over the course of approximately four months, he engaged in online conversations with a person he believed to be a fourteen-year-old girl. He sent her images of, and links to, hardcore adult pornography and arranged to meet the girl, but did not appear for the meeting. Kenyon was unaware that he was in fact communicating with an undercover law enforcement officer. Kenyon maintains that his conduct was the result of his addiction to pornography, for which he began treatment six days after his arrest. In a majority decision, the DRB voted to disbar Kenyon. Three members dissented, recommending instead an indeterminate suspension. In a separate dissent, one member recommended a one-year suspension.

Respondent Alexander D. Walter pled guilty to third-degree endangering the welfare of a child. He admitted during his plea colloquy that on multiple occasions, between December 1, 2010 and April 1, 2011, he masturbated in the presence of a nine-year-old girl, who moved into his home with her mother. He admitted that he masturbated in front of the girl for his own sexual pleasure while the two were alone in the family swimming pool.

Following review of the matter submitted on motion for final discipline filed by the OAE, seven members of the DRB recommended Walter’s disbarment. Two members dissented—one recommended an indeterminate suspension and one recommended a two-year suspension.

HELD: For respondents Legato and Kenyon, the Court imposes indeterminate suspensions from the practice of law, pursuant to Rule 1:20-15A(a)(2). The Court disbars respondent Walter, pursuant to Rule 1:20-15A(a)(1)...

JUSTICE ALBIN, DISSENTING as to respondents Legato (D-99-15) and Kenyon (D-100-15), expresses the view that the sexual exploitation or abuse of children—whether completed or, as in the Legato and Kenyon matters, attempted—is such an egregious violation of societal norms that no discipline short of disbarment will ensure public confidence in the bar or the judiciary’s governance of the bar.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion, except that he did not participate in the matter of respondent Walter (D-101-15; Sections I.C. and III.D).

The majority on sanction

Regarding Legato and Kenyon, there was no actual harm or contact to an actual minor, which would require disbarment. To be clear, we do not minimize the reprehensibility of Legato’s and Kenyon’s conduct simply because the children in the online chat rooms were actually undercover agents. We do, however, find a significant distinction between online and personal physical contact.

As to Walter

Finally, we address the disbarment of respondent Walter. On multiple occasions throughout a five-month period, Walter masturbated in the family pool in front of a nine-year-old girl who was under his care. Strikingly, in describing the course of events to his evaluating psychologist, Walter implied that while in the pool the “physical barriers broke down, and the two became too comfortable with each other physically.” We agree with the DRB’s assessment that this characterization demonstrates that Walter does not appear to take full responsibility for his actions, attempting to apportion blame to a nine-year-old child.

(Mike Frisch) 

May 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

One Less Friend

The web page of the Colorado Presiding Disciplinary Judge reports a recent consent sanction of a 90-day stayed suspension and probation

Crone represented a close friend in a civil suit in 2015 concerning a contract dispute. The contract contained a binding arbitration clause. Crone and opposing counsel agreed to participate in mediation instead of arbitration to save time and expenses. Thereafter, Crone completed no further work on the case. He reported that his anxiety about how to manage the case rendered him unable to communicate with his client.

In January 2016, Crone told his client that the case had been set for mediation in late May, when it was not, and then met with the client for several hours to prepare for the mediation. After telling his client that the mediation was unexpectedly cancelled, his client hired another lawyer. Crone then told his client that he had misrepresented the status of the mediation, refunded all of his client’s attorney’s fees, and paid him additional compensation.

(Mike Frisch)

May 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 23, 2017

"Easy To Work With"

An Arkansas attorney has been suspended on an interim basis.

The suspension order does not disclose the reasons other than to state that his continued practice poses a substantial threat of serious harm to clients and the courts.

KFSM 5 reported on criminal charges against the attorney in December 2015.

A Benton County lawyer is behind bars, after he was arrested on suspicion of multiple misdemeanor charges.

Bryan Powell, 41, was booked into the Benton County Jail on Tuesday afternoon after the sheriff's office arrested him on suspicion of patronizing a prostitute and two misdemeanor charges of unlawful possession of a firearm.

According to the sheriff's office, a confidential source approached deputies stating that the source knew of an attorney that would trade services and represent them in their case.

The source had been arrested for prostitution in a previous investigation.

The source, working with law enforcement, began texting Powell. The lawyer then stated that he was "easy to work with," and liked "female domination," the incident report stated.

When the source asked Powell if he could represent the source in a case, the lawyer replied, "I think we have established I'm taking care of you," according to the report.

The two set up a location to meet in Springdale.

He was arrested shortly after driving to the meet location parking lot and driving off.

Powell was also found with a loaded .380 semi-automatic Smith and Wesson in his pocket and a loaded 9mm semi-automatic Beretta in his vehicle glove box. He did not have a concealed carry license, the report stated.

Upon running a background check on Beretta's serial numbers, it was determined to being a stolen gun out of Benton County in a 2013 case. Powell received an additional theft by receiving charge, according to the report.

He was released this morning on a felony citation, and his court date has been set for Feb. 1, 2016.

(Mike Frisch)

May 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Censure For Driving Through Nebraska With A Reported .392 BAC

The web page of the Colorado Presiding Disciplinary Judge reports

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and publicly censured Kristin Lee Knotts (attorney registration number 35918), effective May 18, 2017. Her public censure is subject to twelve months of monitored sobriety and relapse prevention group therapy. any failure to comply with these conditions constitutes grounds for additional discipline.

In December 2014, Knotts, who was on her way to Colorado, was pulled over in Nebraska for driving erratically. Knotts took a portable breath test, which recorded a blood alcohol count was .392. Subsequent tests were inconclusive. Knotts underwent a substance abuse evaluation in Colorado in summer 2015, where it was determined that she exhibited signs of substance use disorder. Thereafter, Knotts failed to appear for two court dates in her Nebraska case, but she was unemployed at the time and had difficulty returning to Nebraska. Knotts eventually pleaded guilty to a DUI, serving ninety days in jail.

The Office of Attorney Regulation Counsel asked Knotts to undergo an independent medical evaluation and tried on several occasions to schedule the examination, but Knotts failed to comply. She also did not reply to disciplinary counsel’s report of investigation.

This story in the Daily Sentinel (Grand Junction Colorado) involves unrelated (and dismissed) criminal charges against an attorney from Colorado with the same name.

I cannot confirm that it is the same person. (Mike Frisch)

May 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Confidentially Yours

An attorney was reprimanded by the District of Columbia Board on Professional Responsibility for violating his duty of confidentiality to one client in the course of representing another

The Board agrees with the Hearing Committee that a Board reprimand is appropriate because the record reflects that Respondent disclosed obvious client secrets, and still fails to appreciate the wrongfulness of his conduct. Instead, he attempts to minimize his misconduct by arguing that Disciplinary Counsel already knew the information Respondent disclosed, there was no disclosure outside the parties and the Hearing Committee in the Vohra matter, and Respondent obtained a good result for the client at issue. None of these arguments excuse Respondent’s conduct. Thus, the Board issues this reprimand to Respondent to encourage him, and other Bar members, to focus on the importance of safeguarding client secrets, and to exercise due care when making statements that might result in the disclosure of client secrets.

Footnote 4

Disciplinary Counsel argues that the sanction should be more severe than a reprimand because Respondent made additional disclosures of client secrets in its brief to the Board. However, the Board cannot engage in the fact-finding necessary to determine whether Respondent disclosed additional client secrets. We note that Respondent made client-related disclosures during oral argument before the Board that caused the Board Chair to remind Respondent that the argument was a public proceeding. However, as with the disclosures in his brief, there has been no adjudication that these disclosures were unauthorized disclosures of client secrets, and thus, we cannot find that Respondent made unauthorized disclosures in his brief or at oral argument.

The case is In re Timothy J. Battle and can be accessed at this link. (Mike Frisch)

May 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocity

The New Jersey Supreme Court doubled the proposed sanction of a six-month suspension of an attorney already suspended for three years and facing further charges in a matter involving reciprocal discipline based on a Pennsylvania sanction.

From the report of the Disciplinary Review Board

This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (OAE), following Pennsylvania’s suspension of respondent for one year and one day, for her violation of the Pennsylvania equivalent of New Jersey RPC l.l(a) (gross neglect); RPC 1.3 (lack of diligence); RPC 1.4(b) (failure to keep the client reasonably informed about the status of a matter and promptly comply with reasonable requests for information); RPC 1.4(c) (failure to the client to make informed decisions regarding representation); RPC 1.5(a) (unreasonable fee); RPC 1.15(a) (failure to safeguard client funds); RPC 1.15(b) (failure to promptly deliver funds or property to client or third party to which they are entitled); RPC 1.15(c) (failure to keep separate funds in which the attorney and a third party claim an interest); RPC 1.16(d) (failure to refund unearned advance fee); and RPC 3.2 (failure to expedite litigation). The OAE seeks a censure. For the reasons expressed below, we determined to grant the motion and impose a six-month suspension.

The DRB sustained the violations and analysed sanction

Although respondent’s conduct, in a vacuum, might merit a reprimand or a censure, we must consider both aggravating and mitigating factors to determine the appropriate discipline. At the outset, we note no mitigating factors. Aggravating factors, however, abound.

Since her admission to practice, respondent not only has been the subject of prior discipline in both New Jersey and Pennsylvania, but also is facing potential additional discipline in New Jersey in the two default matters currently pending before the Court. In all of those cases (consisting of five separate client matters) respondent had been retained in mortgage foreclosure/modification matters. Such cases involve clients in presumably dire financial circumstances, and thus, called for close and prompt attention. Yet, in each one of those cases, respondent accepted sizeable retainers and other fees, and essentially performed no services. In almost all of those matters, respondent engaged in a pattern of ignoring her client’s requests for information. In none of the matters did respondent voluntarily return the substantial fees she had not earned. In short, respondent appears to have engaged in a continuing pattern of misconduct that has left her financially-troubled clients in an even worse position than when they first consulted her. Nowhere is that more clear than in this case.

Particularly indifference to troubling to us is respondent’s apparent her clients’ predicament. She charged the Nieviarovskis a very large retainer, continued to accept monthly fee payments from them, and then did nothing to advance their interests or to keep them informed of the status of their matters. When she was finally forced to meet with the Nieviarovskis, who travelled from New York to her office in Pennsylvania, she kept them waiting for three hours beyond their appointed time. The insult did not end there.

Instead, at that meeting, and in the presence of her clients, respondent opened a letter she had received from them weeks earlier, only one in a long line of many unanswered communications. It was then, for the very first time -- eight months into the representation -- that respondent informed the Nieviarovskis that a mortgage modification, the very purpose for which they had retained her, would be difficult because they were not in arrears. Then, again for the first time, she further informed them that she would not be able to institute litigation in their behalf until a substantial portion of her fee was paid. By that point, respondent already had accepted from the Nieviarovskis fee payments totaling almost $20,000, including the retainer. Also by that point, she had done nothing in their behalf.

Undaunted, and also at that meeting, respondent produced an "accounting" of her time, which was unsupported by any contemporaneous time records, and which totaled the exact amount the Nieviarovskis had already paid her. The PaDB found that the accounting had no basis in reality and had been created by respondent solely to justify the excessive and unearned fees she already had taken. When the Nieviarovskis began to express concern about continuing the relationship, respondent warned them that, if they decided to terminate the representation, they would be in breach of the Legal Services Contract and that she would retain the sums they had already paid her. Her threat was effective. The Nieviarovskis decided to continue the representation, fearing that respondent would keep the sums they had paid. Unbeknownst to them, however, and perhaps as the final affront, respondent unilaterally terminated the representation several months later, first keeping one more fee payment, and leaving the Nieviarovskis to find substitute counsel

The more we learn of respondent, the more we see the damage she causes to her clients, and to the legal profession as a whole, by her continued inability to conduct herself in accordance with the most basic professional standards and her apparent indifference to the disciplinary process. Not only did her prior New Jersey disciplinary matters proceed on a default basis, but also she took no opportunity to participate in the present matter before us. Thus, under the totality of the circumstances, we determine that respondent should be suspended for six months. We further recommend that this suspension be consecutive to the three-month suspension currently pending before the Court and, further, that respondent’s reinstatement be conditioned on her reinstatement in Pennsylvania and on her repayment of $26,800 to the Pennsylvania Lawyers Fund for Client Security.

(Mike Frisch)

May 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Progressivism In Wisconsin

With a tad of buyer's remorse, the Wisconsin Supreme Court accepted a consented-to reprimand for the following misconduct

The complaint alleged and the parties stipulated that Attorney Dade did not communicate to J.Q. in writing the scope of his representation or the basis or rate of his fee or expenses for which J.Q. would be responsible. Attorney Dade did not communicate to J.Q. in writing the purpose and effect of the $3,000 advanced fee that J.Q. paid. During the course of his representation of J.Q., Attorney Dade made several disbursements from his trust account for the purpose of paying attorney fees he billed to J.Q., without first transmitting the requisite notice to J.Q. that he was going to do so.

The OLR alleged and the parties later stipulated that, by failing to communicate to J.Q. in writing the scope of his representation or the basis or rate of his fee or expenses for which J.Q. would be responsible; and by failing to communicate to J.Q. in writing the purpose and effect of the $3,000 advanced fee that J.Q. paid, Attorney Dade violated SCRs 20:1.5(b)(1) and (2).

The court

This is Attorney Dade's seventh disciplinary proceeding. Given Attorney Dade's lengthy disciplinary history we question whether yet another public reprimand is sufficient discipline for this latest incident of misconduct. Generally, discipline is progressive in nature. See, e.g., In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501. Unfortunately, the parties' stipulation cites no case law in support of a public reprimand and does not explain why progressive discipline is not warranted here. Admittedly, there are times when progressive discipline is not appropriate given the nature of the subsequent violation or other extenuating circumstances...

On balance, we have decided to accept the parties' stipulation and we impose the stipulated discipline, namely a public reprimand. We are persuaded that this is appropriate as the misconduct in this case does not appear to warrant license suspension. Because this matter was resolved without referee involvement, we do not impose costs upon Attorney Dade.4 It appears restitution is not sought; neither the complaint nor the stipulation addresses restitution. Accordingly, no restitution is ordered.

(Mike Frisch) 

May 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Impersonation Of Colleague And Practice While Suspended Draws Permanent Disbarment In Ohio

A disciplinary decision issued by the Ohio Supreme Court is described in this post from Dan Trevas

The Ohio Supreme Court today permanently disbarred a Cincinnati attorney for multiple professional conduct violations, including impersonating a former colleague during his suspension so that he could continue to represent a client in court.

The Supreme Court voted 6-0, with one justice not participating, to disbar Robert H. Hoskins, who had been suspended since April 2015 for other matters. In a per curiam opinion, the Court concluded that Hoskins violated multiple rules governing Ohio attorneys and noted that disbarment  customarily is imposed on those who continue to practice law while under suspension and fail to cooperate in disciplinary investigations.

Ohio Reacts to Kentucky Suspension
Hoskins was suspended by the Kentucky Supreme Court in February 2015 for 60 days, and the Ohio Supreme Court responded in April by suspending Hoskins from practicing in Ohio for 60 days and conditioning his reinstatement on several factors, including his reinstatement in Kentucky.

Hoskins never met the conditions to lift the Ohio suspension. In March 2016, the Office of Disciplinary Counsel filed a complaint charging Hoskins with violating ethical rules while representing six clients, which included practicing while under suspension and lying to clients, opposing attorneys, and courts about the status of his license.

In a separate and unrelated complaint, the Cincinnati Bar Association  already had charged Hoskins with violations regarding six other clients based on incidents dating to 2010. The court followed his initial 60-day suspension with an indefinite suspension in that case. In its June 2016 opinion, the Court stated that Hoskins engaged in “a disturbing pattern of neglect and an ongoing failure to comply with established rules and procedures—not to mention a flagrant disobedience of court orders and a troubling propensity to engage in dishonesty when his actions are questioned.”

Hoskins has admitted to some of the charges brought by the disciplinary counsel.  He did not appear at a hearing conducted by a three-member Board of Professional Conduct panel. The panel found he committed multiple violations and recommended his permanent disbarment, which the board adopted and the Court imposed.

Hoskins Impersonates Former Colleague
Among the charges against Hoskins are that he continued to represent Bertke Electric Company while suspended, made a knowingly false statement, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. In the weeks before his Kentucky suspension, Hoskins filed a civil lawsuit for Bertke Electric, a family business partly owned by Kevin Bertke.

Following the April 2015 Ohio suspension, Hoskins continued to represent Bertke in the case by impersonating his former colleague, Thomas Mayes. Hoskins responded to a discovery request by the opposing attorney in the Bertke case from an email address bearing Mayes’ name. The attorney attempted to notify Mayes of the deficiencies in the response by sending a letter to the mailing address Mayes listed with the Office of Attorney Services.

In a subsequent phone conversation, Mayes told the attorney he had not participated in the case and had not created or used the email address that was used to send the discovery response. When asked if he knew Hoskins, Mayes stated that they previously worked together. The attorney reviewed his records and discovered that the person who identified himself as Mayes during a status conference with the court had called from a phone number that Hoskins registered with the Office of Attorney Services.

Hoskins withdrew from the case in September 2015 without notifying his client. After the court informed Bertke that he needed to obtain a new lawyer, Bertke called Hoskins, who failed to disclose that he had been practicing without a law license for about six months. In addition, Hoskins did not respond to the disciplinary counsel’s inquiries about Bertke’s grievance.

Judge Stops Proceedings Once Hoskins’ Status Revealed
Another series of rule violations occurred in mid-2015 when Hoskins continued to represent Preferred Interiors Drywall Systems LLC in a lawsuit filed in Clermont County Common Pleas Court. At a scheduling conference, Hoskins identified himself as an attorney and did not mention he was under suspension. He appeared at a deposition about two weeks later, where the opposing attorney asked Hoskins if he had been reinstated to practice in Ohio. Hoskins claimed that he had spoken with the disciplinary counsel the day before and that he was informed his license was reinstated.

Another attorney called the board of professional conduct while the deposition was occurring and confirmed that Hoskins had not been reinstated. During a break, the opposing attorney called the judge to inform him that Hoskins was deposing a witness despite his ongoing suspension. The judge confirmed Hoskins’ status and then issued a stay, prohibited Hoskins from participating in the case, and directed him to immediately advise his client of the suspension.

Hoskins also continued to represent four additional clients after his suspension without notifying them of his suspension.

Few Mitigating Factors Found to Benefit Hoskins
The opinion stated that when imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

It found eight aggravating factors including:

  • Hoskins’s prior disciplinary record that included Kentucky and Ohio suspensions
  • Acting with a selfish and dishonest motive by practicing in multiple cases while suspended
  • Repeatedly lying to clients, courts and other attorneys, and impersonating another attorney
  • Engaging in a pattern of misconduct involving multiple offenses
  • Failing to cooperate in disciplinary investigations
  • Submitting false statements during the disciplinary process
  • Failing to acknowledge the wrongful nature of his misconduct
  • Harming his clients.

Although Hoskins attempted to submit a psychologist’s letter in mitigation, the board rejected it, not only because he failed to comply with hearing rules, but  because it was insufficient to establish the existence of a mitigating disorder.

The Court considered the prior penalties imposed on Hoskins, including a $600 fine for practicing in three cases during his first Ohio suspension, as a mitigating factor, but one that had little impact on its decision to disbar him.

“In light of Hoskins’s extensive pattern of deliberately and repeatedly violating this court’s prior orders, the presence of numerous aggravating factors, and the absence of significant mitigating factors, we find that permanent disbarment is the only appropriate sanction in this case,” the Court stated.

In addition to disbarment, the Court ordered him to pay $1,500 in restitution to one of his former clients and pay for the costs of the disciplinary proceedings.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, William M. O’Neill, and R. Patrick DeWine joined the opinion.

Justice Patrick F. Fischer did not participate.

2016-1496. Disciplinary Counsel v. Hoskins, Slip Opinion No. 2017-Ohio-2924.

(Mike Frisch)

May 23, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, May 22, 2017

Illinois Update

The Illinois Supreme Court issued a number of bar disciplinary actions last week.

Among the high (or low) lights

Mr. Feofanov, who was licensed in 1994, was censured. He represented a plaintiff in a consumer fraud case and, after learning of his client’s death, continued appearing in court on behalf of the client and making settlement demands to the defendants without revealing that his client had died.

Mr. Moenning, who was licensed in 1962, was disbarred. While serving as both trustee and trust counsel to several trusts created by two elderly sisters, he paid himself over $360,000 in purported fees without performing sufficient services to justify the payment of the funds. He also took years to notify or pay some of the trust beneficiaries, failed to disburse any funds to one beneficiary as of the time of the disciplinary hearing, failed to timely notify some of the beneficiaries of their interests under the trusts, and never provided an accounting to any of the beneficiaries or to the Illinois Attorney General’s Office. He was suspended on an interim basis on June 15, 2016.

Ms. Pavchinskaya, who was licensed in 2011, was disbarred. She pled guilty to felony theft in state court after she entered a currency exchange, presented a fraudulent check bearing the business name and contact information for her law firm employer, and received $1,960.55 in cash. She also forged multiple checks using the name and contact information of that employer, created and provided fraudulent client information to her employer and misused client property. She failed to appear at her own disciplinary proceeding.

Ms. Schmuhl, who was licensed in 2009, was disbarred on consent. She pled guilty in Virginia state court to abduction with the intent to extort money, aggravated maiming and burglary. She aided and abetted her husband, Andrew Gilbert Schmuhl, also an Illinois attorney, by taking a partner in her former law firm, and the partner’s wife, hostage and attacking them in the couple’s McLean, Virginia, home. She was suspended on an interim basis on May 3, 2017.

And in a matter that we had previously covered, the court apparently did not issue a written opinion on an issue involving duties to third party beneficiaries who are not clients

Mr. Krasnik, who licensed in 1989, was reprimanded and required to complete the ARDC Professionalism Seminar. He drafted a power of attorney and a quitclaim deed for a client who sought to serve as the agent of man whom the client described as a friend of his. Mr. Krasnik never spoke to the alleged friend or conducted any investigation regarding that person’s wishes or competency. The client subsequently used both documents to victimize the other person, who was hospitalized and suffering from dementia.

From our prior coverage

My understanding is that the Illinois Supreme Court rarely issues written opinions. Rather, the court regularly enters orders either agreeing or not with the proposed disposition.

It will be interesting to see where this goes.

Note that My Shingle has some strong views on this case.

(Mike Frisch)

May 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Most Blatant Regulatory Failure In D.C. Bar History Nears A Conclusion

The seemingly endless saga caused by The Worst Hearing Committee Report In D.C. Bar History continues with a report on remand from the District of Columbia Court of Appeals to its Board on Professional Responsibility that absolves four attorneys from the most horrific case of elder abuse conflicts of interest I have ever seen.

From my summary of the hearing committee report

The evidence in the case supports a conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. The result was the significant depletion of the woman's financial resources (and she paid for the ensuing litigation brought in her name), the withdrawal of two of the attorneys after a judge had raised the conflict issue and a court determination by one of the most respected jurists in the District of Columbia that the woman had not been competent to sign the documents that the attorneys had drafted for the benefit of the son.

After they withdrew, the two attorneys continued to stage-manage the dual representation by hiring and paying successor counsel (with the woman's money) and drafting legal documents for the woman's signature.

The hearing committee, throughout its report, repeatedly states that there was "no evidence" of any ethical violations. In fact, there was the testimony of twelve witnesses called by Bar Counsel and the orders of Superior Court judges that provided compelling evidence of the charged misconduct. The hearing committee simply chose to ignore it.

The hearing committee report was filed in October 2012. 

Nearly two years later, the board filed its first report as we reported

From the BPR majority opinion

We adopt the Hearing Committee’s findings of fact because we agree that they are supported by substantial evidence. Despite the quantity of evidence urged by Bar Counsel, when we account for the Hearing Committee’s qualitative credibility determinations, we agree that Bar Counsel has not clearly and convincingly proved the charges against Respondents. The facts argued by Bar Counsel certainly do not “produce … a firm belief or conviction” that the Hearing Committee got it wrong.

In other words, it's fine to ignore the findings of multiple judges and the observations of a dozen witnesses if you accept the self-serving statements of the attorneys that they did not know that their so-called "client" was incapable of decision-making.

The majority's logic would absolve an attorney of conversion if the lawyer denied that the money was gone, even if the bank records proved it.

A concurring opinion would find that the attorneys were aware that their "client" was incapacitated and that her interests conflicted with those of her son. Somehow, and for reasons  that escape me,  those conclusions did not lead to findings of serious ethical violations.

We noted the concurring board opinion and expressed some views about it

The concurrence concludes

This is a sad case. It involves an unnecessary and bitter dispute between a brother and sister, neither of whom distinguished him or herself, over the financial affairs of their mother. Mrs. Ackerman was visually impaired, suffered from dementia, and was distressed by the dispute between her children. The dispute resulted in extensive litigation that was funded by the trust established to provide for Mrs. Ackerman in her later years. The costs of that litigation contributed to the depletion of the trust assets such that questions were raised as to the sufficiency of the trust to support Mrs. Ackerman.

It is also a difficult case. Attorneys retained to handle matters in situations such as this face difficult decisions concerning the capacity of elderly clients to make informed and educated decisions. As noted, the Rules of Professional Conduct provide little guidance for when a lawyer must decline the representation, or withdraw from the representation of a client, who is suffering from dementia and other disabilities that impair her ability to function. That is particularly true in situations such as this where the client retains social graces, has an outward appearance of understanding, at some level, of what is happening, and where, as here, the client is relatively clear as to her wishes, even if she does not fully appreciate the consequences of her actions.

I agree that this is a "sad case," but not for the reasons set forth. The case sadly reflects the inability of the BPR to deal meaningfully with a case in which the hearing committee entirely failed to do its job.

The disingenuous suggestion of the concurrence that the lawyers acted in a good-faith belief as to the mother's competence is belied by an overwhelming amount of record evidence.

And the false equivalence between brother and sister --the brother who tried (with the help of four lawyers) to loot his mother's estate and the sister who tried to protect her -- is deeply offensive to anyone who bothered to study the record of this sorry affair.

It's as if the BPR would find that the person who defends frivolous litigation is as blameworthy as the person who initiates it.

I expect Bar Counsel to appeal these dismissals to the Court of Appeals.

Regardless of the eventual outcome (and I have no optimism at this point) , the story of this case is Exhibit One to prove the failure of the volunteer disciplinary system in the District of Columbia.

In particular, this outcome serves as a warning to victims --don't bother to bring your concerns to the D.C.Bar, as you will only get attacked for your trouble.

To be fair, the hearing committee's gross and inexcusable failure to deal with the evidence put the BPR in a difficult position. One approach would have been to apply due diligence to study and learn the record; the other is the approach taken here --blow the whole thing off as a credibility contest and simply fail to deal with the evidence in a meaningful way.

These so-called guardians of the public trust should be thoroughly ashamed of themselves. In a just world, what happened to Fran Abbott (the complaining daughter) would happen to them.

 The court remanded the case back to the board in September 2015.

I said at the time

I view this result as somewhat better than a Get Out of Jail Free Card but have little hope that the board will treat the matter with the seriousness it richly deserves.

Here, in May 2017, the board made true my prediction.

Disciplinary Counsel can appeal this atrocity to the court, which will face the moral dilemma of attempting to honor its fact finding standard of review (deferring to a hearing committee that utterly failed to do its job and a board unwilling to police it) and the undeniable facts that justify the severest discipline. 

If there ever was a case in D.C. where the disciplinary system perpetrated a greater injustice and more fully failed in its stated public protection purpose, it has escaped my attention.

For those of sufficiently strong stomach, the report in In re Szymkovicz, Szymkovicz, Silverman & King can be accessed through this link. (Mike Frisch)

May 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocal Discipline Imposed

The Rhode Island Supreme Court imposed reciprocal discipline in a matter where the attorney responded to notice but failed to demonstrate a reason t o depart from the sanction of a four year suspension imposed in Massachusetts

This court directed respondent to appear before us at our conference on May 11, 2017.  The respondent failed to appear. Accordingly, we decide this petition based upon the information submitted by Disciplinary Counsel and respondent’s reply of June 20, 2016. After review of the record, we determine respondent has failed to show cause why identical reciprocal discipline should not be imposed.

The respondent’s conduct giving rise to these proceedings is as follows. First, while respondent was serving as the secretary and trustee of a corporation created for the purpose of developing real estate, she converted real estate that properly belonged to the corporation to her own use by amending the name of the grantee of a deed to the corporation to her own name, and recording the amended deed. She then recorded deeds to different units in the real estate development to herself and her mother, leased and sold units for profit, and subsequently lied under oath about having done so.

Second, while acting as a real estate broker, respondent made material misrepresentations to buyers that a condominium unit had not sustained water damage, when she knew that the unit had in fact suffered from water in the basement. When the buyers subsequently filed a civil action based in part on her misrepresentations, respondent gave false testimony during both her deposition and at a subsequent trial. A judgment was entered against respondent in that litigation in the amount of $45,000, doubled pursuant to Mass. Gen. Laws ch. 93A, and she was also ordered to pay the buyers reasonable attorneys fees and costs.

Third, while representing a client in a real estate transaction respondent received $10,000 from the client to be held in trust. The respondent withdrew the funds to her own use. Forty-five days later respondent made restitution of those funds.

Finally, respondent failed to cooperate with the Board of Bar Overseers during the disciplinary investigation of her misconduct. Additionally, she gave false testimony at the ensuing disciplinary hearing, and presented fabricated evidence.

 Massachusetts had been fair to the attorney

We determine that respondent has failed to show, and the record does not reveal, that any of the above-noted reasons that would cause us to refrain from imposing identical discipline are present in this matter. The respondent was provided with a seven-day evidentiary hearing before the Massachusetts Board of Bar Overseers at which eighty-nine exhibits were introduced into evidence. She was represented by counsel throughout the hearing, and testified on her own behalf. She had a further hearing before a justice of the Supreme Judicial Court, and filed an appeal of the order of suspension, an appeal which she voluntarily withdrew. She received all of the process to which she was due. Our review of the record reveals no infirmity of proof that would cause us to reject the conclusion of the Supreme Judicial Court that respondent has committed serious misconduct.

(Mike Frisch)

May 22, 2017 in Bar Discipline & Process | Permalink | Comments (0)