Friday, September 21, 2018

Wicked Words, Wicked Deeds

An order entered by a Connecticut Superior Court Judge yesterday in the case of Corona v. Day Kimball Healthcare Inc. suspending an attorney for 120 days begins as follows

For the courts to guarantee the triumph of the law over the loud, there must be civility in court proceedings.

The court's ire was drawn by a statement picked up by a lapel microphone before a deposition that revealed the attorney's strategy to an associate

"Fuck him, she said - referring either to opposing counsel or the court itself - I am going to give him such a fucking hard time."

The court rejected the suggestion that this bon mot was "ordinary lawyer talk" and explained at length how the attorney's conduct of the proceeding showed that her "wicked words betoken[ed] wicked deeds." 

The ABA Journal noted prior sanctions

A 24-year practitioner has been sanctioned $11,484 by a Connecticut judge for coaching a witness during a deposition.

Defense lawyer Madonna Sacco has been sanctioned four times previously for “strikingly similar” behavior during depositions, but the penalties apparently didn’t have the desired deterrent effect, according to Hartford Superior Court Judge Robert Shapiro. He found not only that the medical malpractice specialist had violated discovery practice standards but that she had also violated attorney ethical rules, reports the Connecticut Law Tribune.

During a hearing earlier this year, Sacco argued that the judge had incorrectly invoked the ethics rules without adequate notice, contending that the state’s attorney disciplinary system was the proper forum for any such complaint. However, she has since paid the sanction, the legal publication reports. She declined to comment for the article.

No attorney grievance has been filed against Sacco, notes Mark Dubois, the chief disciplinary counsel for the the state. “Sometimes,” he says, “judges just like to handle these things themselves.”

Thanks to Steve Zoni for sending this order to us. (Mike Frisch )

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Shades Of Gray And Black

A public  censure of an attorney has been imposed the the New Yor k Appellate Division for the First Judicial Department

The Attorney Grievance Committee commenced this disciplinary proceeding by a petition of charges (Judiciary Law § 90[2], Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.8), alleging that respondent was guilty of certain misconduct in violation of the Rules of Professional Conduct (22 NYCRR 1200.0) because he counseled a client to engage in conduct he knew was illegal or fraudulent and misrepresented his personal experience and knowledge during a meeting with the client. Specifically, respondent met with a potential client who represented himself as appearing on behalf of a West African minister. The individual stated that the minister desired to purchase real property in the form of a brownstone, an airplane, and a yacht in the United States and identified the money as "gray money" or "black money." Respondent did not personally inquire as to the provenance of the money. Although respondent knew that the money was questionable, he informed the individual that he would have to consult with an expert to determine whether the money could be moved anonymously and to make sure that the money was "clean" and not criminally derived. Nonetheless, respondent offered suggestions on how to transfer the money into the United States from other countries in ways that would mask the minister as the ultimate or beneficial owner. He also misrepresented his personal experience and knowledge of the subject matter to keep the potential client interested.


In light of the significant factors in mitigation, including respondent's cooperation, admitted conduct and acceptance of responsibility, and the fact that the misconduct was aberrational and occurred in the context of a single, open-ended conversation during a meeting with a potential client after which respondent took no further steps, the parties agree that a public censure is appropriate.

(Mike Frisch)

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Supervision Obligations When Secretary's Ex-Husband Is Murdered

An attorney has been suspended for 60 days by the Iowa Supreme Court

Mathahs has practiced law in Iowa since 2001. Upon obtaining his law license, Mathahs has practiced mostly from an office in Marengo. Although he practiced with a firm for a brief period after becoming an attorney, Mathahs has been in a solo practice for most of his career.

In October 2001, the SPD and Mathahs entered into a contract whereby Mathahs would provide legal services to indigent adults and juveniles in certain Iowa counties. The contract initially specified that Mathahs would provide services in seven counties. Through a series of renewals, the geographic scope increased to as many as nineteen counties. Mathahs testified his SPD work eventually constituted more than ninety-nine percent of his practice. The parties agree Mathahs was very busy and performed his representation of indigents and juveniles satisfactorily. Mathahs continued in this line of work until the expiration of his most recent contract with the SPD on May 1, 2013. Since that time, Mathahs has not been under contract with the SPD.

To receive payment from the SPD for his services, Mathahs was required to submit General Accounting Expof expenses, including mileage. enditure (GAX) forms to the SPD detailing the dates, specific services performed, and the amount of time for each service. Mathahs was also required to submit itemization of expenses, including mileage...

On March 1, 2013, Samuel Langholz from the SPD wrote to Mathahs about his concerns over the accuracy of the hours and mileage expenses recorded on Mathahs’s GAX forms. Langholz wrote that Mathahs had claimed more than 3000 hours and had received more than $180,000 in fiscal year 2010 (July 1, 2009, to June 30, 2010).

Langholz and Mathahs met on March 7 to discuss the matter. On March 24, Mathahs wrote to Langholz to explain the inaccuracies and discrepancies in his GAX forms. After acknowledging he had signed the GAX forms and accepting responsibility for the incorrect information, Mathahs explained how the errors had occurred.

With regard to the excessive hours, Mathahs explained it was the result of inattentiveness on the part of his legal secretary. Mathahs attributed his secretary’s inattentiveness to the brutal murder of her exhusband. He stated he could not fire her because her ex-husband’s death had ended child support and left her with no income. Mathahs further explained he had instructed his secretary as to her duties by dictation on cassette tapes and had told her to work from the dictation sequentially. Each tape contained information regarding  the correspondence, motions, and reports but would put the billing off until later. She would then go back and listen to the same tapes, fastforwarding through the correspondence, motions, and reports she had already completed to get to the parts about billing. Because she skipped around when transcribing the dictation, she would bunch together time from many different dates into one date instead of recording the time as hours spent over the course of many days. According to Mathahs, after becoming aware of her mistakes, he told her to stop skipping around, but she failed to comply. The secretary also haphazardly entered the dates of service, and thus the dates of service on the GAX forms often did not correspond to the dates Mathahs had done the actual work.

With regard to the excessive mileage expenses, Mathahs explained that beginning in 2009, he made single trips for several clients and erroneously billed each client for the total mileage.

The court rejected a defense of  laches based on a four-year delay in the bar process.

Misconduct re fees and expenses

Mathahs conceded he billed the SPD for excessive hours and mileage and reimbursed the state for some of the excessive fees and mileage expenses he billed. Based on the record, we conclude the Board proved by a convincing preponderance of the evidence that Mathahs violated rule 32:1.5(a).

And he failed to properly supervise his secretary'

Mathahs knew of her diminished mental state and lack of attentiveness at work because of her ex-husband’s murder. Yet upon finding billing errors, he simply instructed her to listen to the dictations sequentially and continued to allow her to prepare his GAX forms. A reasonably prudent lawyer in Mathahs’s shoes would have taken more care to ascertain that his secretary did not repeat her mistakes, especially when she began working remotely and Mathahs found it difficult to monitor her compliance with office procedures.

The court looked to prior caselaw as well as the mitigating and aggravating factors in determining sanction. (Mike Frisch)

September 21, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 19, 2018

Practice In The Shadows Draws Revocation

A licensed legal consultant had his limited license revoked  by the New York Appellate Division for the Second Judicial Department

Charge one alleges that the respondent exceeded the scope of his authority as a legal consultant by holding himself out as an attorney in the State of New York, in violation of section 521.3(f) of the Rules of the Court of Appeals (22 NYCRR) and rule 8.4(d) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: On or about November 25, 2015, the respondent appeared at the New York City Office of Trials and Hearings in Matter of Taxi & Limousine Commn. v Doumbia (Index No. 80041335A). The respondent noted his appearance for his client, Daouda Doumbia, on the record, and confirmed on the record that he was an attorney. The respondent participated in the entire hearing, including the direct and redirect examinations of his client. The respondent failed to identify himself as a legal consultant.

Counts two and three alleged business card, letterhead  and trade name violations.

His response

While the respondent declined to testify at the hearing, he testified at his examination under oath during the Grievance Committee’s investigation that he did not view representing clients before an administrative agency as practicing law. At the hearing, the respondent contended that the term “legal consultant” does not exist in the legal profession throughout the entire world, and that the term “legal consultant” is not a professional title, unless used in conjunction with the title of attorney or lawyer. The respondent contended that in the absence of the word “attorney,” no one understands what a “legal consultant” is, and thus, he should be able to hold himself out as an attorney.

The referee sustained all charges

“Respondent is a legally educated Sudanese lawyer who sought (and was granted) court permission to practice as a ‘licensed legal consultant’ (L.L.C.). This status was sought only after repeatedly failing to pass the New York State Bar examination.

“As an L.L.C., he was obliged to limit his legal consulting practice, consistent with the Rules of the Court of Appeals. However, the available evidence suggests that Respondent viewed himself as imbued with ‘attorney’s status’ equal to lawyers who pass the bar examination, and are approved by the Committee on Character and Fitness.

“Respondent’s decision to practice in administrative tribunals was marred by representation calculated to indicate he was a duly admitted lawyer. His business card, and attendant paperwork, similarly created a carefully calculated ‘optic’ that those with whom he interacted were dealing with a New York licensed lawyer.

“That Respondent apparently did not comply with General Business Law Section 130, and utilized a de facto trade name, are powerful indicia of an attempt to operate a law practice in the proverbial ‘legal shadows.’”

(Mike Frisch)

September 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Opiates and Mitigation Weighed In Louisiana

The Louisiana Supreme Court has ordered a  year and a day suspension of an attorney with all but 90 days stayed with conditions

In 2012, respondent was involved in an automobile accident that caused injuries to the driver of the other vehicle. Respondent was under the influence of a prescription drug, butalbital with codeine, at the time of the accident. Respondent was arrested and charged with second offense DWI,  careless operation of a motor vehicle, obstruction of justice, and vehicular negligent injuring.

In August 2013, respondent pleaded no contest to DWI, careless operation, and vehicular negligent injuring. For each count, he was sentenced to serve six months in the parish jail, with credit for time served; the sentence was suspended and respondent was placed on unsupervised probation for six months with conditions, including payment of a fine plus costs and completion of community service.

He entered an in patient recovery program for a three-day evaluation but

Palmetto recommended that respondent complete a long-term inpatient treatment program followed by the execution of a five-year JLAP recovery agreement. Palmetto also recommended that respondent taper off all controlled medications under medical supervision and that he complete inpatient treatment “before consideration for return to the practice of law.” Respondent declined to comply with Palmetto’s recommendations. 

At the disciplinary hearing

Respondent denied that he has a drug problem warranting substance abuse treatment or the requirement that he execute a JLAP agreement. Respondent emphasized that in the past he has taken only pain medication prescribed to him by “a doctor that knew my history for 30 years. And I took the medication as prescribed.” Moreover, he reiterated that as of 2016, he is no longer taking any pain medication. Respondent testified that he is sober at this time and does not need any help in staying sober, as recommended by the professionals at Palmetto...

While recognizing that respondent has recently made vast improvements in limiting his prescription drug usage, the committee nonetheless recommended that respondent execute a five-year JLAP recovery agreement as a condition of a fully deferred one year and one day suspension.

Before the Disciplinary Board

After review, the disciplinary board determined that the hearing committee erred in finding that respondent had experienced withdrawal symptoms. Additionally, the board noted that respondent stopped using pain medication several months prior to the hearing and has had success with alternative treatments to manage his pain.

Therefore, the board recommended that respondent be suspended from the practice of law for one year and one day, fully deferred, subject to a two-year period of probation. Given the change in circumstances since respondent’s last evaluation at Palmetto in 2015, the board also recommended that he undergo an updated substance abuse evaluation at a JLAP-approved facility and comply with whatever conditions are recommended pursuant to that evaluation.

The court ordered an evaluation

On June 11, 2018, respondent submitted to a three-day evaluation at the Professionals’ Wellness Evaluation Center (“PWEC”) in Alexandria, a facility approved by JLAP. On June 20, 2018, PWEC released its report, indicating that respondent’s hair test was positive for opiates, despite his claim that he was no longer taking opioid pain medication, and that respondent has an untreated substance use disorder which will require long-term inpatient treatment at a JLAP-approved facility.

His response

In his response, respondent states that he suffered severe pain after falling in his kitchen in January 2018, causing injuries to his head, neck, and back. To relieve the pain, he took the remains of an old prescription for hydrocodone that he had in his medicine cabinet. However, respondent represents that he did not disclose his use of hydrocodone when he was evaluated at PWEC in June 2018 because he did not recall this accident; instead, his memory of the accident was only triggered when he received the results of his hair test, which was positive for recent use of hydrocodone. Respondent concludes that he is willing to undergo regular “stand alone” monitoring for drug and alcohol use, but that he is not in need of inpatient substance abuse treatment.

The court

In this case, respondent, like a growing number of people in our country, developed an addiction to medications that were validly prescribed by his physician to relieve severe and chronic pain. As shown by the PWEC evaluation, he clearly requires long-term inpatient treatment to successfully address this unfortunate disease, but thus far he has been reluctant to agree to participate in such treatment. In order to fulfill our role of ensuring the public is protected, we conclude it is necessary to fashion a suspension which is responsive to respondent’s current misconduct and provides him with an adequate opportunity to address his substance abuse issues so he may safely practice law in the future.

Accordingly, we will suspend respondent from the practice of law for one year and one day. In view of the mitigating factors, we will defer all but ninety days of this suspension, subject to a two-year probationary period and with the condition that during the active period of his suspension, respondent shall enter into long-term inpatient treatment at a JLAP-approved facility, as recommended by PWEC. Thereafter, he shall comply with any and all recommendations made by the treatment facility and JLAP, including, but not limited to, entering into a JLAP recovery agreement. Should respondent fail to comply with any of these conditions or commit any misconduct during the probationary period, the ODC shall have the right to file a summary petition in this court requesting that the deferred portion of respondent’s suspension be made immediately executory, or requesting other relief as appropriate.

Justice Crichton dissented

I dissent in what I believe is a premature disposition of respondent’s case. The majority’s per curiam ignores respondent’s prayer for an opportunity to be heard as to the January 2018 incident and the June 2018 PWEC report. Specifically, in my view, respondent should be allowed the opportunity to confront and cross-examine the methodology and results of the test as well as an opportunity to provide an explanation under oath as to these issues. Anything less offends fundamental due process, which we must extend to all parties, including lawyers. Accordingly, in lieu of immediately implementing sanctions, I would instead remand the matter for an evidentiary hearing.

Two colleagues joined the dissent. (Mike Frisch)

September 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Under The Table

The Cincinnati Bar Association has filed a complaint alleging that a criminal defense attorney violated jail procedures by passing $11 in cash under the table to an inmate with whom she had a romantic relationship.

The incident was observed by prison officials who searched the inmate. The search revealed that he possessed smokeless tobacco (which was seized as contraband) but did not locate the cash. 

The attorney was charged with a criminal offense in passing the tobacco but pleaded guilty to a second degree charges of passing the $11.

If the above link does not work, the complaint involving attorney Virginia Riggs-Horton can be accessed here. (Mike Frisch)

September 19, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 18, 2018

Reprimand Insufficient

Dan Trevas reports on the Ohio Supreme Court web page

The Ohio Supreme Court today suspended former Mahoning County Commissioner and Youngstown Mayor John A. McNally from practicing law based on criminal convictions for his role in the “Oakhill scandal.”

In a per curiam opinion, the Supreme Court disregarded the Board of Professional Conduct’s recommendation that McNally receive a public reprimand, and issued a one year suspension, with six month stayed.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and R. Patrick DeWine joined the opinion. Justices Patrick F. Fischer and Mary DeGenaro did not participate in the case.

Opposition to Property Purchase Led to Criminal Convictions
The Mahoning County Bar Association alleged in 2017 that McNally violated multiple rules governing the conduct of Ohio attorneys when he served as a county commissioner in 2006 and 2007. McNally opposed the county’s purchase of the Oakhill Renaissance Center. A subsequent criminal investigation into the efforts by McNally and other local officials to thwart the purchase led to McNally pleading guilty to four misdemeanor charges.

Since the early 1980s, the Mahoning County Department of Job and Family Services had been located in spaced leased in the Ohio Valley Mall Company’s Garland Plaza. In 2006, the Southside Community Development Corporation, owners of Oakhill, sought to sell the county the property, which the county intended to use to relocate the job and family services offices. The Oakhill owners filed for bankruptcy, and the majority of county commissioners voted to purchase Oakhill and assume its debt.

McNally, the county treasurer, and the county auditor filed objections in the bankruptcy case, seeking to prevent the sale. The Carfaro Company, the Ohio Valley Mall’s parent company, also filed legal actions to block the sale and prevent the department’s relocation.

In 2008, the Youngstown Vindicator began to publish articles suggesting McNally and others acted unethically when opposing the Oakhill purchase. A special prosecutor was appointed to investigate, and in 2010, McNally, the county treasurer, and the county auditor were indicted on multiple criminal charges.

While the 2010 indictment against McNally was later dismissed, he was indicted again in 2014. In 2016, McNally pleaded guilty to four misdemeanors, including attempted unlawful use of a telecommunications device, attempted disclosure of confidential information acquired in the course of a public official’s duties, and making false statements in an official proceeding. The other counts were dismissed. He was sentenced to one year of community control, and agreed to place his law license on inactive status during that period. He also was ordered to perform 20 hours of community service, and to pay a $3,500 fine and $3,098 in court costs.

McNally completed his sentence, and he was returned to active status as a lawyer.

Bar Association Files Complaint
The county bar association filed a complaint against McNally with the Board of Professional Conduct alleging eight rule violations. The parties stipulated to the facts and the misconduct as well as to aggravating circumstances and mitigating factors that the board considers when recommending a sanction. A three-member board hearing panel agreed with the parties’ request to dismiss six of the eight charges, and found that McNally engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that he committed an illegal act that reflected on his honesty and trustworthiness.

Court Considers Sanction
The board recognized that rule violations involving dishonesty typically lead it to recommend that the Supreme Court suspend a lawyer from practicing law. But citing evidence, that McNally introduced at his disciplinary hearing to challenge the facts of his criminal convictions, the board concluded that McNally’s conduct should not lead to a suspension of his license to practice law.

The Court, however, recognized that once a lawyer pleads guilty to criminal charges, the facts of those charges cannot be challenged in a related attorney-discipline proceeding.

“Those facts cannot be explained away by the parties or the board,” the Court stated.

The opinion noted that among the charges McNally contested was giving false testimony in an official proceeding. The Court stated that had McNally told the truth during the proceeding, it would have raised additional questions about his association with the Carfaro Company and his motives for opposing the Oakhill purchase.

The Court concluded that the “seriousness of McNally’s conduct” warranted the suspension, which was stayed for six months on the condition that he not commit further misconduct. If he fails to comply with the condition, the stay will be lifted and he must serve the full year.

2017-1743. Mahoning Cty. Bar Assn. v. McNally, Slip Opinion No. 2018-Ohio-3719

(Mike Frisch)

September 18, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 16, 2018

Lifestyles Of The Rich And Suspended

A justice of the Massachusetts Supreme Judicial Court adopted recommendations of its Board of Bar Overseers and ordered suspension of two attorneys in a 72-page opinion

This matter came before me on an information and record of proceedings pursuant to S.J.C. Rule 4:01, § 8(6), and a recommendation and vote by the Board of Bar Overseers (board) that respondent Gerald L. Nissenbaum be suspended from the practice of law in the Commonwealth for a period of three years for multiple instances of misconduct. These included knowing misrepresentations of fact to a judge of the Probate and Family Court and before the Appeals Court; "improperly disparaging the presiding judge" in a guardianship case (in which Nissenbaum publically [sic] represented the ward and also had an "agreement of representation" with the ward's sons; making knowingly false and disparaging remarks in two motions to have the judge recused after the judge declined to approve what he viewed as excessive fees in the guardianship case; charging and collecting ''clearly excessive fees"; and engaging in a conflict of interest involving his former clients (the sons). 

As set forth more fully below, Nissenbaum was a highly-successful domestic relations attorney.

The (not my) three sons had retained him to assist with their father's financial affairs. 

Kenneth Simon Sr. (Kenneth Sr.) was in poor health and was living in a nursing home on Cape Cod. The brothers told Nissenbaum they were concerned that his much younger wife, Anne Flaherty Simon (Anne), was dissipating his assets and that his health care costs were not being paid. At the time, the Simon sons were estranged from their father because they had disapproved of his marriage to Anne; they did not attend the wedding and had not had much contact with him after the marriage. The sons told Nissenbaum they had become concerned when the nursing home contacted them to say that the facility had not been receiving payments. After speaking with the Simon sons, Nissenbaum recommended appointing a temporary guardian for Kenneth Sr...

The sons wanted the eldest, Kenneth Jr., to be appointed as guardian, but Nissenbaum advised them that a judge probably would not agree to that arrangement because of the conflict of interest with Anne.

The guardian was also prosecuted

The board recommended also that respondent James Veara be suspended for a period of one year and one day for his role in the joint misconduct. More particularly, the board found that Veara failed to correct what he knew to be Nissenbaum's deliberate misrepresentations that Nissenbaum was no longer representing the sons; made knowingly false and disparaging statements impugning the integrity of the presiding judge in a case; and charged and collected clearly excessive fees.

Nissenbaum was admitted in 1967.

He persuaded a judge to appoint Veara to serve as a guardian and did not disclose that he had never previously served in that capacity.

Although his usual fee for legal work was from $100 to $300 per hour, he told Nissenbaum that he would charge an hourly rate of $400 if he were appointed as temporary guardian for Kenneth Sr. Veara decided to increase his rate "simply because he knew he could and because the ward could afford it.'' Nissenbaum did not inform the sons of Veara's lack of experience or that Veara was charging a significantly higher rate than his usual hourly rate.

Veara in turn retained Nissenbaum as counsel so both could water themselves at the trough. 

Throughout the guardianship, Nissenbaum and Veara had paid themselves from the margin loan on Kenneth Sr. 's brokerage account. Each also kept an "evergreen retainer," which never fell below a certain sum; Nissenbaum replenished his retainer from Kenneth Sr. 's estate at least twice.

The pie

When the guardianship began, Kenneth Sr. 's assets totaled approximately $4.5 million. Soon after his marriage to Anne in July, 2004, Kenneth Sr. had transferred title to his house in Harwich Port to himself and Anne as tenants by the entirety. In September, 2004, he executed a will that left Anne $150,000.00, the Harwich Port house, and $120,000 in an education trust; he executed a declaration of trust leaving the residue of his estate to his grandchildren.

On the day that he was appointed, Veara retained Nissenbaum as his counsel. That same day, Nissenbaum filed the previously prepared complaint for divorce on behalf of Veara. Veara did not consult with Kenneth Sr. and did not read the divorce complaint before authorizing Nissenbaum to file it.

In fact, Veara at that point had never met Kenneth Sr.

When they actually did meet at a later hearing, Kenneth Sr. expressed his love for Anne and eschewed any desire for a divorce.  

The plot thickened

Nissenbaum filed, on Veara's behalf, a petition to prepare a new estate plan for Kenneth Sr. The proposed plan would have revoked Kenneth Sr.'s will and replaced it with one that created a family trust for the lifetime benefit of Kenneth Sr., and thereafter his sons, and would have created a real estate trust to hold title to the house in Harwich Port. The next day, Nissenbaum filed, on Veara's behalf, a complaint to annul Kenneth Sr. 's marriage to Anne; the complaint alleged that the marriage had resulted from Anne's "deceit and imposition, fraud and duress," and that the "essentials of the marriage relationship" had been so "abrogat[ed] and vitiat[ed)" that no marriage should be deemed to have existed. Kenneth Sr. was not consulted about a new estate plan or an annulment. Nissenbaum also filed a motion to amend the earlier complaint for divorce to add grounds of cruel and abusive treatment. 

 A hearing was held on a motion to hold Anne in contempt and on the guardianship status

The judge then asked Nissenbaum if he continued to represent the Simon sons. Nissenbaum responded, "No, I represent Mr. Veara now. The children are not parties to the case." After confirming the details of the manner in which Veara had been appointed, the judge asked Nissenbaum about the status of his relationship with the Simon sons after Veara was appointed. Nissenbaum replied, "Well, in terms of -- well, I don't represent them in this case."

He was still billing the sons for his services.

By late October, 2005, Kenneth Sr. 's health was declining. At the end of the month, he was placed on ventilation and lifesustaining medications. On October 22, 2005, Nissenbaum revised a draft motion, prepared by his associate, to enter "do not resuscitate" and "do not intubate" orders concerning Kenneth Sr.'s care.

One less witness, I suppose. He died on November 2. 

Then the fees

Veara charged a total fee of $126,813.45 to Kenneth Sr. 's estate. Veara also charged the estate $21,169.28 in expenses for payments he made to a private investigator to investigate whether Anne had been engaged in illegal activities, and to a research firm to determine whether an annulment action would survive the death of one of the parties. Veara had not consulted with Kenneth Sr. about these activities. Veara's first and final account also charged the estate $375,177.03 for legal fees paid to Nissenbaum, at a rate of $600 per hour. Together, these fees totaled $523,159.76.

For a temporary guardianship that lasted 83 days. 

Anne deigned to object and a judge noticed

When Veara confirmed that he had been charging approximately $375 per hour for his services as a court appointed guardian, Judge Scandurra asked "Are you kidding?" When the judge noted that Veara was seeking an additional $45,000 in fees that were not covered in the invoices he had submitted, Veara explained that the extra fees sought accounted for his activities after Kenneth Sr. 's death to "wind up affairs." After Veara also confirmed that Nissenbaum had charged $600 per hour, Judge Scandurra responded "Gentlemen, I'm not going to sign this motion. This is an insult and an affront to the Court," and added, "you'll have to have a hearing on this."

A Master actually approved the fees (two of the sons objected and cited conflicts of interest) but the judge disagreed.

Nissenbaum then sought that judge's recusal

The motion stated that, at the September hearing, Judge Scandurra had "verbally attack[ed) " Veara and Nissenbaum "in a loud, aggressive, often angry voice, repeatedly chastising them for charging hourly rates which Scandurra, without benefit of a trial, concluded could never be justified and, worse, were an 'insult to the court! ' '' The motion claimed that Judge Scandurra's conduct "went beyond intentionally inflicting embarrassment on counsel in front of others then in the courtroom to being an embarrassment to the court, itself." "This was all the more shocking to counsel because, until that point in time, they held Scandurra in high regard."

Another judge (Judge Steinberg) held an 11-day hearing on the fee request and issued an order concerning the already fully-paid amounts

He ordered Veara to return $107,741.75, and Nissenbaum to return $199,859.64, to Kenneth Sr. 's estate. He also determined that the $21,169.28 in charges from the private investigator and the research group were unreasonable, and ordered Nissenbaum and Veara to reimburse Kenneth Sr. 's estate for those charges, with each to pay one half of the amount.

The attorneys appealed and sought to recuse Judge Steinberg. They lost on both counts.

Judge Scandurra filed the bar complaint in 2008. Bar Counsel filed charges in 2014.

Justice Lenk on Nissenbaum

the description of "charging an excessive fee" does not adequately convey the nature of the respondents' misconduct. The act of attempting to wring the largest possible amount of money from his client's elderly ward, in the months before his death, for his own financial gain, as described in Nissenbaum's own words, is abhorrent on its own and cannot but harm the public's perception of the reputation and integrity of the bar. Particularly where there has been extensive publicity surrounding the respondents' actions, it would do additional substantial harm to the perception of the public and the bar, and serve to encourage, rather than deter, similar misconduct by others, if Nissenbaum simply were allowed to evade any sanction because of his last minute retirement, after vigorously pursuing litigation challenging the hearing committee's and the board's findings for approximately three and one-half years, and having previously pursued a strategy in the Probate and Family Court of what Judge Steinburg described as filing actions in ''bad faith,'' where the respondents' "egregious litigation conduct was designed to make the proceedings as costly as possible in an attempt to force the Simon children to withdraw or abandon their objections."

She concluded that the evidence supported the conclusion that Veara knew Nissenbaum falsely denied representing the sons and failed to correct that falsehood.

Cape Cod Times reported on the lower court return of fees order and noted that Anne had served time for operating a Cape Cod prostitution ring. The same source reported that the attorneys accused her of marrying Kenneth Sr. for his money and plotting to kill him with a Viagra overdose or by pushing him down a flight of stairs when he was drunk. 

Huffington Post covered Nissenbaum's book on high-end divorce matters entitled Love Sex and Money: Revenge and Ruin in the World of High-Stakes Divorce

Nissenbaum’s clients are the ultra-rich, he explains, “because only the rich can pay what I charge: $700 an hour, which is tops for this kind of work in Boston and in most places around the country.” His clients must also have $5 million in assets, and many have another zero or two after the 5. They have so much money, he says, that they “don’t mind my fees and expenses.” One case — with a twenty-four-day trial — earned him $2 million. “One case went on for seventeen years,” he writes. “My fee? A cool and hard-earned million. For a client who left happy.”

If the hard luck of rich folks in extremis is your thing, the fast-paced, sometimes sexually explicit case histories in Sex, Love and Money will take your mind off your troubles and make you glad, once and for all, that you don’t have $5 million in bank — because, that way, you know your spouse won’t ever hire Nissenbaum to divorce you.

(Mike Frisch)

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

A Sad Ending To A Promising Career

The Virginia State Bar Disciplinary Board accepted the revocation of an attorney's license.

The Roanoke Times reported 

A Richmond attorney who gained national exposure five years ago for helping incarcerated juvenile offenders as a University of Virginia law student pleaded guilty Thursday to three felonies related to smuggling an addictive opioid drug and a cellphone to an inmate at Riverside Regional Jail serving 30 years for murder.

In a plea agreement between the prosecution and defense, Dana Lauren Tapper, 30, of Richmond, pleaded guilty in Prince George Circuit Court to one count each of providing a prisoner with a cellphone, conspiracy to provide the prisoner with a cellphone and conspiracy to provide a controlled substance to the prisoner.

In exchange for her pleas, Assistant Prince George Commonwealth's Attorney Mark Bernard withdrew three accompanying felony charges.

In accordance with the agreement, Circuit Judge Allan Sharrett sentenced Tapper to 20 years in prison with all but three months suspended. The judge allowed a defense request that Tapper begin serving her time on Aug. 13.

The charges against Tapper, who received national attention in 2013 when she appeared on "The Ellen DeGeneres Show" and was handed two $10,000 checks in a surprise gift, arose from two incidents five days apart at Riverside Regional Jail involving an inmate named Karon Porter. Tapper provided Porter a cellphone on Dec. 7 and passed him Suboxone strips on Dec. 12, according to a summary of evidence.

Suboxone is a frequently abused narcotic, Bernard told the court. It is typically used in the management of opioid abuse and withdrawal but can be abused resulting in addiction.

Tapper was not the attorney of record for Porter, but she went to visit him at Riverside Regional Jail 38 times between November 2016 and February 2018, according to jail records.

The investigation into Tapper's illegal activities at the jail, which is in Prince George, was investigated by Chesterfield County police who received a tip from another inmate about Tapper and Porter.

Tapper was represented Thursday by attorneys Craig Cooley and Chris Collins. Both the prosecution and defense emphasized in court Thursday there was no evidence that Tapper was having a sexual relationship with Porter.

Porter, 28, was sentenced in September to 30 years in prison on a felony murder charge for killing a third-generation Marine officer in a horrific crash while fleeing police in Chesterfield County in March 2013.

When asked by the judge if the defendant had anything to say, Tapper declined to comment. Tapper also declined to comment to reporters as she left the courthouse.

Collins said that Tapper plans to surrender her law license now that she has pleaded guilty.

Tapper was recognized in 2013 as a third-year law student for volunteering her time outside of her classes at the UVa School of Law "to help children transition out of juvenile detention centers in Virginia," according to a story on the school's website at the time.

During her televised appearance, DeGeneres presented her with a gift of $10,000 contributed by Shutterfly, an online photo service. "That'll help pay for your bar exam and other expenses, right?" DeGeneres said to Tapper.

 Moments later, a Shutterfly representative walked on stage and handled Tapper an oversized check for an additional $10,000.

Tapper worked with the JustChildren program at the Legal Aid Justice Center and also participated in the law school's Child Advocacy Clinic, which provides legal assistance to troubled low-income children.

A friend of Tapper, Kathryn Cragg, who also was a third-year law student at the time, had written DeGeneres a letter about Tapper, which DeGeneres read on the show.

"Most law students are lured in by promises of large corporate salaries to help pay off their debt, but Dana has been steadfast in her commitment to helping those less fortunate," Cragg wrote in her letter.

In the story for the school's website, Tapper was quoted as saying, "I want to be an advocate for kids. I've met some of the most incredible people. They have just this incredible untapped potential. I would like to help them realize it."

Tapper, who at the time of her arrest lived in a Richmond apartment in the 2300 block of East Cary Street, operated a law practice at 2222 Monument Avenue in the city. It has since closed,

WRIC ABA 8 had additional coverage of the conviction. (Mike Frisch)

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

Saturday, September 15, 2018

A Collateral Consequence For Paul Manafort

When a member of the District of Columbia Bar pleads guilty to or is adjudicated guilty of a crime, the following provisions of D.C. App. R. XI, section 10 are applicable

 (a) Notification. If an attorney is found guilty of a crime or pleads guilty or nolo contendere to a criminal charge in a District of Columbia court, the clerk of that court shall, within ten days from the date of such finding or plea, transmit to this Court and to Disciplinary Counsel a certified copy of the court record or docket entry of the finding or plea. Disciplinary Counsel shall forward the certified copy to the Board. Upon learning that the certified copy has not been timely transmitted by the clerk of the court in which the finding or plea was made, or that an attorney has been found guilty of a crime or has pleaded guilty or nolo contendere to a criminal charge in a court outside the District of Columbia or in any federal court, Disciplinary Counsel shall promptly obtain a certified copy of the court record or docket entry of the finding or plea and transmit it to this Court and to the Board. The attorney shall also file with this Court and the Board, within ten days from the date of such finding or plea, a certified copy of the court record or docket entry of the finding or plea.
  (b) Serious crimes. The term "serious crime" shall include (1) any felony, and (2) any other crime a necessary element of which, as determined by the statutory or common law definition of such crime, involves improper conduct as an attorney, interference with the administration of justice, false swearing, misrepresentation, fraud, willful failure to file income tax returns, deceit, bribery, extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a "serious crime."
  (c) Action by the Court—Serious crimes. Upon the filing with this Court of a certified copy of the record or docket entry demonstrating that an attorney has been found guilty of a serious crime or has pleaded guilty or nolo contendere to a charge of serious crime, the Court shall enter an order immediately suspending the attorney, notwithstanding the pendency of an appeal, if any, pending final disposition of a disciplinary proceeding to be commenced promptly by the Board. Upon good cause shown, the Court may set aside such order of suspension when it appears in the interest of justice to do so.

According to the web page of the D.C. Bar, among the membership is

Paul J Manafort Jr. 

Membership Status: Good Standing 
Date of Admission: 01/20/1979 

Thus, we can expect an order suspending him in the District of Columbia shortly.   His inactive status does not deprive the court of the jurisdiction to suspend and disbar him. 

As the crimes for which he has been adjudicated guilty include offenses that involve moral turpitude per se, he will be disbarred "as night follows day" unless he is pardoned. 

If a pardon is granted, he will nonetheless be subject to discipline although not automatic and summary disbarment. (Mike Frisch)

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

Friday, September 14, 2018

Will Rogers, ADHD And Bar Discipline

The Iowa Supreme Court has imposed a one-year suspension  of an attorney

Royce D. Turner, over a span of twenty months, was repeatedly rebuked by state and federal judges for missing hearings and violating court rules. He was found in contempt several times. Three of his clients were arrested and two were jailed for missing hearings he overlooked. Despite an ongoing audit, Turner continued to flout basic requirements for client trust accounts.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Turner alleging multiple violations of the Iowa Rules of Professional Conduct. He delayed responding to the Board’s inquiries and complaints. Our court imposed a five-month interim suspension to protect the public. We permitted Turner’s return to practice with the help of an experienced attorney under stipulated limitations pending resolution of the disciplinary charges.

The parties submitted a stipulation of facts. A division of the Iowa Supreme Court Grievance Commission found violations of numerous rules. Noting Turner’s inexperience and attention deficit hyperactivity disorder (ADHD), the commission recommended a three-month suspension of his license to practice law with conditions on his reinstatement. The Board recommends a suspension of twelve to eighteen months. Based on our de novo review, we now suspend Turner’s license to practice law for one year from the date of this opinion with conditions on his reinstatement.

Inexperienced sole practitioners who lack mentors and take on cases without the requisite experience are at greater risk of making mistakes. Any Iowa lawyer should be concerned about receiving one rebuke from a judge. Attorneys should view a single mistake as a wakeup call to reexamine practices or get help to avoid further missteps. Continuing to make the same mistakes without correcting behavior invariably leads to more trouble, as shown here. According to the adage commonly attributed to Will Rogers, “good judgment comes from experience, and a lot of that comes from bad judgment.” We hope Turner gains better judgment from his bad experiences.

ADHD may mitigate if treatment is sought

We have recognized that “[p]ersonal illnesses, such as depression or attention deficit disorder, do not excuse a lawyer’s misconduct but can be mitigating factors.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Curtis, 749 N.W.2d 694, 703 (Iowa 2008). The key for mitigation is that the lawyer proactively seeks treatment to address the condition and avoid reoccurrence of the misconduct. See Clarity, 838 N.W.2d at 661 (“To be considered in mitigation, the alcoholism must have contributed to the ethical misconduct, and the lawyer must undertake rehabilitative efforts to control his addiction.”); see also Dolezal, 841 N.W.2d at 129 (noting that when an attorney receives treatment for an illness, “his efforts to get healthy must be considered in fashioning an appropriate sanction” (quoting Iowa Supreme Ct. Att’y Disciplinary Bd. v. Fields, 790 N.W.2d 791, 800 (Iowa 2010))). Because Turner attends counseling sessions and takes medication, we consider his depression and ADHD in mitigation.

The attorney was admitted in 2013. (Mike Frisch)

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

Jumping The Gun

The Delaware Supreme Court has approved an affidavit of an applicant who passed the Bar exam in 2016 but had not yet been admitted.

The affidavit acknowledged that the applicant engaged in unauthorized practice by accepting fees in two legal matters and forging a client's name.

She pleaded guilty to misdemeanor theft.

The agreement provides that she refrain from future unauthorized practice and withdraw her application for Delaware admission. (Mike Frisch)

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

SOBB Brother

The Illinois Administrator has filed a complaint alleging misconduct that led to a criminal conviction for an attorney's role in posting bond for an accused drug trafficker

In August 2011, Troy Clark ("Clark") was arrested and charged in the Circuit Court of Cook County, Illinois, with offenses relating to trafficking controlled substances in the matters entitled People of the State of Illinois vs. Troy Clark, case numbers 11 CR 15697, 11 CR 15698, 11 CR 15699, 11 CR 15700 and 11 CR 15701 ("Clark's cases"), and, on August 27, 2011, the court in his cases set his bond at $400,000 cash, with the requirement that a source of bail bond hearing ("SOBB hearing") be conducted before bail could be posted for Clark.

In late September or early October 2011, Clark's girlfriend, Tamira Smyth ("Smyth"), was introduced to Respondent. At or about that time, Smyth and Respondent agreed that Respondent would assist Smyth in posting funds for Clark's bond. Thereafter, Smyth delivered hundreds of thousands of dollars in cash to Respondent in installments, and Respondent devised a transaction in which Smyth would not be identified as the source of funds for Clark's bond.

In or about October 2011, Respondent contacted Kevin Frank ("Frank") and Kenneth Lukowski ("Lukowski"), employees of Forshay Land Title & Appraisal Services, Inc. ("Forshay Land Title"), a business located in Roscoe, Illinois. At or about that time, Respondent promised to pay thousands of dollars to Lukowski, and, to explain the source of $400,000 being available for Clark's bail, Lukowski agreed to testify under oath at a SOBB hearing in Clark's cases about a fictitious transaction regarding property that Lukowski owned at 12746 Waltham Close in Roscoe ("Waltham Close property").

Lukowski testified at the hearing and

 On or about October 20, 2011, in reliance on Lukowski's false testimony and the purported promissory note and other fictitious documents, Judge Flood entered an order allowing funds from the purported loan transaction between Lukowski and Forshay Storage & Van to be used to post bond in Clark's cases.

The State conducted an investigation of the transaction and

 On July 26, 2018, pursuant to a plea agreement, Respondent pled guilty to forgery and subornation of perjury, as charged in Counts 7 and 8 of the indictment in case number 12 CR 12822.

 On July 26, 2018, the Honorable Alfredo Maldonado entered a judgment of conviction against Respondent as to Counts 7 and 8 of the indictment in case number 12 CR 12822, and sentenced Respondent to a concurrent term of two-years probation, with conditions including completion of the TASC (Treatment Alternatives for Safe Communities) Treatment Program. On the motion of the State, Judge Maldonado dismissed all of the other counts of the criminal indictment returned against Respondent.

(Mike Frisch)

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

Thursday, September 13, 2018

No Reciprocal Suspension For "Relatively Minor" Misconduct

The New York Appellate Division for the Second Judicial Department has imposed a reciprocal public censure based on a Minnesota sanction.

Among the violations

In March 2012, while he was still on probation from a 2010 disciplinary action, the respondent represented J.D. in a child visitation matter. M.S. was the court-appointed parenting consultant. DuringM.S.’s deposition, the respondent implied that M.S. had previously been accused of sexual misconduct with minors. At the hearing before the referee, the respondent testified that he recalled that M.S. had been accused of sexual contact with minors. At the conclusion of the hearing, the referee determined that the respondent had no evidence to support that recollection, that the respondent’s testimony was not credible, that the question “appeared to be intended to embarrass and humiliate” M.S., and that the question was asked without a good faith basis, thus violating Minn R Prof Conduct 4.4(a) and 8.4(d).


In 2013, S.A. discharged the respondent and requested that her files be returned to her. S.A. retrieved her files in May 2013. In August 2013, S.A. contacted the respondent informing him that her files were incomplete. In December 2013, the respondent located four more boxes of files and sent them to S.A.’s home. The referee determined that the respondent “failed to apply adequate reasonable actions to timely return files,” thus violating Minn R Prof Conduct 1.16(d). Among the files sent to S.A. were files belonging to other clients. By doing so, the referee determined that the respondent violated Minn R Prof Conduct 1.6(a).

Minnesota suspended him for 60 days followed by probation but

In view of the “relatively minor” nature of the misconduct underlying the Minnesota order of discipline, and the fact that the respondent does not practice law in New York and has already been reinstated in Minnesota, we conclude that a public censure is warranted.

(Mike Frisch)

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

Wednesday, September 12, 2018

Manslaughter Conviction Draws Interim Suspension

An order from the Oklahoma Supreme Court

The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), has forwarded to this Court certified copies of the Criminal Information and Judgment and Sentence on a plea of guilty. Emma Barlie Arnett entered a plea of guilty to Manslaughter 1st Degree, in violation of 21 O.S.2011, § 711, which occurred on August 27, 2017. Arnett was sentenced to twelve years in the custody of the Department of Corrections with the first four years to be served in custody and the last eight years to be suspended with supervision under the division of Probation and Parole.

...Pursuant to Rule 7.4 of the RGDP, Emma Barlie Arnett has until October 16, 2018, to show cause in writing why a final order of discipline should not be imposed, to request a hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until October 31, 2018, to respond.

Oklahoma News 4 reported on her arrest for killing a pedestrian

Around 12:45 a.m. on August 27, the Tulsa World reports Brown was walking in the right lane of traffic when he was struck by Arnett’s vehicle, who was also driving in the right lane.

Brown was taken to the hospital where he later died.

Police say Arnett identified herself to the officer on scene but “would not make statements until her attorney was present.”

The officer said he smelled a “strong odor of alcohol” coming from Arnett.

According to court records, she declined to take a breath or blood test. She did agree to take a field sobriety test, but officers said she failed.

Arnett was taken to the hospital for a blood test. Her blood alcohol level was 0.142. The legal limit is 0.08.

She was charged with first-degree manslaughter and DUI Friday.

Her court date has been set for December 8.

(Mike Frisch)

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

"Docket Mining" In Domestic Cases Banned In Pennsylvania

From the web page of the Pennsylvania Disciplinary Board

By Order dated July 30, 2018, upon the recommendation of the Disciplinary Board, the Supreme Court of Pennsylvania amended Rule of Professional Conduct 7.3. The Rule will be effective 60 days after the date of the Order.  R.P.C. 7.3 permits certain forms of solicitation, save for limited exceptions. Recently, the Board was alerted to a practice concerning attorneys’ solicitation of defendant spouses upon the filing of a divorce complaint. Certain practitioners conducted daily reviews of docket filings to advertise their services to defendant spouses in recently filed divorce complaints.  The Board became concerned that this practice could result in the defendant spouse receiving a solicitation letter before that spouse knew that a complaint in divorce had been filed, thereby creating the potential for domestic violence. 

The amendment adds new paragraph (b)(4) to provide that a lawyer may contact, or send written communication to, the target of the solicitation for the purpose of obtaining professional employment unless the communication is a solicitation to a party who has been named as a defendant or respondent in a domestic relations action. In such cases, the lawyer shall wait until proof of service appears on the docket before communicating with the named defendant or respondentThe commentary is amended to add new comment [8] to explain the reason for requiring a lawyer to withhold solicitation in domestic relations actions until after proof of service on the docket, specifically noting that the risk of violent confrontations may increase in these matters if a defendant or respondent is solicited prior to service of the action.

(Mike Frisch)

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

"A Personal Piggy Bank"

A convicted attorney has been suspended by the Pennsylvania Supreme Court

Metro USA reported

A Philadelphia-area attorney and accountant was convicted of embezzlement this week for running a charter school scam that also brought down the scion of one of Philly's formerly most powerful political families.

David T. Shulick was convicted by a jury in federal court on May 7 of embezzling some $800,000 from the School District of Philadelphia using a charter school he ran, intended to help at-risk students. Instead, Shulick, with the aid of Chaka Fattah Jr., falsified paperwork and faked student enrollments to inflate the budget of a school and enrich themselves, federal prosecutors said.

Fattah Jr. previously got a sentence of five years prison time in 2016 for charges related to the Delaware Valley High School (DVHS) scam, after a trial at which he represented himself.

His father, ex-Philly Congressman Chaka Fattah, was later convicted of corruption a year later for an unrelated campaign fundraising scam/fraud and got a 10-year sentence in prison.

During his trial, Fattah Jr. laid all the blame for misuse of funds at on Shulick's shoulders. But in fact, federal prosecutors revealed they got the information to indict Fattah Jr. when he attempted to inform federal authorities about the inner workings of Shulick's scam, in what was allegedly an attempt to sideline his employer and set up a similar school scam himself.

Evidence at trial showed that DVHS hired Fattah Jr. as a consultant to meet a state requirement for 10 percent of the contract to be awarded to a minority business. From 2014-15, the school got some $2.1 million in funding from the School District, and Fattah Jr. was reportedly earning roughly $75,000 annually. Shulick was also convicted of conspiring with Fattah Jr. to perpetrate the fraud.

U.S. Attorney William McSwain said Shulick got the funding by "promising to provide at-risk students with a level of guidance counseling for their needs, psychological support services, and school security," with a "decent wage" for teachers.

"He flagrantly broke all these promises," McSwain said in a statement. "Instead, he took money specifically allocated for these laudable purposes and spent it selfishly on himself."

DVHS reportedly falsified paperwork reporting the numbers of students and employees they had to get more taxpayer money, but Shulick and Fattah Jr. used the money to enrich themselves. Federal prosecutors said Shulick faked business expenses to cheat on taxes and listed nannies and housekeepers as employees of the school, while using the profits to renovate his vacation home on the Shore and installing a $9,000 set of speakers in his Gladwyne home

"He used his business like a personal piggy bank and a pass- through to hide his income and expenses from the IRS,"McSwain said. "When it comes to education, my office has zero tolerance for fraud."

Shulick could face prison time at sentencing and is expected to be ordered to pay significant restitution to the School District.

The interim suspension was imposed pending final disciplinary action. (Mike Frisch)

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

Tuesday, September 11, 2018

Pistol Packing Nevada Lawyer Gets Suspended

The Nevada Supreme Court has ordered a six-month and a day suspension for, to put it mildly, deposition misconduct.

He was representing himself as the defendant in a defamation lawsuit. 

The misconduct involves Pengilly's behavior during a noticed plaintiffs deposition at his office. When questioning the deponent, Pengilly used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered questions for the deponent, and repeatedly made inappropriate statements on the record. Pengilly went on to ask the deponent if he was "ready for it" while positioning his hand near his hip. The deponent briefly left the room, but when he returned Pengilly displayed a firearm he had holstered on his hip to the deponent and opposing counsel. As a result, the deposition was terminated and the underlying defamation litigation was put on hold pursuant to an order by the discovery commissioner. The discovery commissioner also sanctioned Pengilly for his conduct...

Having reviewed the record on appeal, we conclude that there is substantial evidence to support the panel's findings that Pengilly violated RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). Indeed, the deposition transcript, coupled with the testimony at the formal hearing, demonstrates that Pengilly displayed appalling behavior toward the deponent. Additionally, the record is clear, and Pengilly admits, that he displayed a firearm. Accordingly, we agree with the hearing panel that Pengilly committed the violation set forth above.

The harm

Pengilly argues that his conduct should be viewed under a negligence standard, but we agree with the panel that he acted knowingly as he was consciously aware of his conduct and knew his behavior was inappropriate. His conduct caused actual injury to the proceeding as the deposition concluded early and the discovery commissioner had to issue a protective order, causing the case to be delayed. Both the deponent and his attorney testified they were afraid Pengilly was going to shoot them, and their fears were documented: they immediately called the police, filed police reports the next day, filed for a TPO, and filed bar grievances. Further, there was the potential for serious injury to every one present—the deponent, his attorney, the court reporter, Pengilly's office staff, and even Pengilly himself--because a deadly weapon was involved.

The case is Discipline of James Pengilly, decided September 7.

13Action News reported on the conduct.

Pengilly is accused of pulling a gun on Mark Stuhmer during a deposition. Stuhmer and his brother Chris -- who's the founder and CEO of Christopher Homes -- are suing Pengilly for defamation in a case involving their C2 Lofts community homeowners association.

Depositions in that case are suspended until the criminal matter is resolved. When they resume, it'll be in the courthouse with a marshal present. 

(Mike Frisch)

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

New Charges Against Larry Klayman

The District of Columbia Disciplinary Counsel has filed new charges against Larry Klayman.

The allegations involve Klayman's pro hac vice petition to represent Cliven Bundy in Nevada and a Bivens action he filed in Nevada against Chief Judge Gloria Navarro, Senator Harry Reid and President Obama among others.

The allegations set forth the procedural history of a complaint brought against him in the District of Columbia by his former client Judicial Watch.

At the time he sought pro hac admission in the Bundy case, a District of Columbia Hearing Committee had conducted a plenary hearing, taken testimony and made a "preliminary, non-binding" fiding of at lease one ethical violation. Such a finding allows the committee to hear evidence of prior discipline.

The District Court found he had made "misleading and incomplete" disclosures about his disciplinary history. The motion for admission (and a supplemental motion) were denied. 

The Bivens action was brought against the judge who had denied the pro hac petition. He vigorously (and, the complaint alleges) frivolously litigated a series of mandamus actions in the Ninth Circuit and in turn sought review by the United States Supreme Court.

Klayman claimed that the author of the orders (Circuit Judge Jay Bybee) of first two denied mandamus petitions made false allrgations about him. He further alleged judicial bias in relationships between Judges Navarro and Bybee as well as between Judge Bybee and Senator Reid. 

The petition alleges that he engaged in frivolous conduct, made a false statement of fact (or failed to correct such a statement) to a tribunal, violated his obligations in his application and supplemental application for pro hac Nevade federal court admission, and violated provisions of Rule 8.4. (Mike Frisch)

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

"Without A Clear Understanding Of The Underlying Facts"

A petition for voluntary discipline was rejected by the Georgia Supreme Court

we do not accept a Review Panel reprimand as a sufficient sanction for a putative Rule 8.4 (a) (4) violation without a full understanding of the underlying facts.

The attorney pleaded to a charge that he had affixed a client's name to a document in a forfeiture matter

According to the petition, Dorer signed a verification for his client and had his assistant notarize the verification. If the signature purported to have been affixed by the client himself, that certainly could amount to deceit or a misrepresentation. The signature, however, did not purport to have been affixed by the client. To the contrary, the signature was followed immediately by the notation “WEP DD,” which any reasonable lawyer would understand to be a disclosure that the signature was affixed by “DD”—presumably Dorer—with the express permission of his client. When a lawyer signs a document for a client, with the express permission of the client and disclosing to those to whom the document is directed that the signature was affixed by the lawyer for the client, the lawyer has committed no ethical violation. To the contrary, that is something lawyers routinely do.

Chief Justice Melton dissented

In line with this precedent, Dorer has asked for this appropriate discipline, and the State Bar has agreed to this resolution. Under these clear-cut circumstances in which the petitioner admits to the crime, agrees that he has violated the applicable rule, and requests the appropriate punishment, we should accept the petition for voluntary discipline. To do otherwise, as the majority does, simply frustrates the efficiency of the disciplinary process, both from the perspective of protecting the integrity of the State Bar and allowing the disciplined petitioner to reach the resolution of his case.

(Mike Frisch)

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