Friday, June 22, 2018

Revenge Of The Eastern Shore Hicks

A road rage incident led to a 30-day suspension by the Maryland Court of Appeals

Paul was admitted to the Bar of this Court in June 2002. He is a full-time solo practitioner who has maintained a law office in Anne Arundel County.

This attorney grievance matter stems from two separate incidents. The first involved multiple confrontations between Paul and another driver which occurred in Wicomico and Dorchester counties. The second incident involved contentious litigation between Paul’s client, David Burke, and opposing parties, some of whom were represented by Edward Kerman, Esquire

Notably, he had a prior reprimand in a case where a dissent would have suspended him f or 90 days. 

The rage

The vehicular incident consisted of dangerous driving, a confrontation at a traffic light, and an accident that led to Paul being charged with multiple misdemeanors. Paul’s behavior and recollections both before and at the district and circuit court proceedings are also at issue.

At the evidentiary hearing, Paul chose not to testify to this portion of Bar Counsel’s allegations. Instead, Paul’s deposition testimony, taken on August 24, 2017, and testimony during the District Court trial in the criminal case, held on August 20, 2013, was admitted into evidence.

According to Paul’s version, in late afternoon on May 13, 2013, he was driving in the westbound lane on Route 50 in Wicomico County after attending an unrelated pretrial settlement conference held in Salisbury. Paul was traveling in the left lane when a black car in front of him slowed down and he observed that the female driver of the black car  was using her mobile phone. Paul moved to the right lane, beeped his horn while passing the black car, and then switched back to the left lane. During his deposition, Paul stated that he beeps his car horn every time he observes a driver using a mobile phone as a way of telling drivers to not use their phones while operating a vehicle.

Editor's note so do I.

The black car then sped past Paul, driving approximately seventy miles per hour and “cut him off while waiving her hand at him.” Paul admitted that, after being cut off, he probably drove too close to the black car. The black car sped up and then braked suddenly, causing Paul to nearly collide with the back of the black car. At first, Paul believed that the black car’s sudden stop may have been due to the driver’s use of her cell phone. After three consecutive sudden stops though, Paul determined that the black car’s driver was intentionally slamming on her brakes. Soon after, Paul and the black car approached a red traffic light, at which point Paul exited his vehicle and questioned the driver of the black car about why she was purposely decelerating suddenly. Paul stated that, while he was outside of his vehicle, the driver of the black car made faces at him, gave him the middle finger, stuck her tongue out at him, and generally acted belligerent. After the traffic light turned green, Paul moved to the right lane to “get away from the black car.”

Minutes later, now in Dorchester County, Paul attempted to move from the right lane to the left lane. Although Paul witnessed a car approaching in the left lane from
behind, he determined he had enough time and room to enter the left lane. While Paul was shifting lanes, the approaching car sped up and attempted to keep Paul from entering the left lane. Paul then realized that this car was the same black car from the earlier encounter. Paul alleged that the black car moved onto the shoulder located to the left of Paul’s car and sped up. Paul heard the rumble strip being driven on and saw the mud flap of the black car being torn off. Paul stated that the black car then attempted to merge into the left lane so he moved into the right lane. Paul was confident that the two vehicles did not make contact.

The black car then slowed down and eventually entered the left lane. Paul continued driving until he entered Easton and pulled off at a restaurant to use the restroom. When Paul entered the parking lot, a Maryland state trooper approached Paul and asked what had happened to his vehicle. Paul stated that nothing had occurred. The trooper pointed to paint on the side of Paul’s vehicle, and Paul asserted that he did not know where the paint came from. The trooper then told Paul that the driver of the black car had reported that Paul hit her vehicle, which Paul immediately denied. After another trooper arrived, Paul was arrested and given traffic citations charging negligent driving, failure to stop after accident involving damages to attended vehicle/property, unsafe lane change, and failure to return to/remain at scene of accident involving attended vehicle/property damage.

He showed up for trial without counsel but retained counsel on the day of trial. A continuance was denied because two witnesses had travelled distances to testify.

During the trial, the driver of the black car, Jasmine Taylor, recalled the details of May 13, 2013 differently than Paul’s trial testimony. Taylor testified that Paul was tailgating her car presumably because Paul wanted Taylor to move into the right lane. When the cars stopped at the red traffic light, Taylor stated that Paul exited his vehicle and began “aggressively yelling” and displayed his middle finger to Taylor before finally returning to his vehicle. After approximately eight miles, Taylor recalled that, while in the
process of passing Paul’s vehicle, Paul “swerved his car into [hers].” Taylor described being almost off the road due to Paul’s maneuver until Paul eventually moved into the right lane. After this, Taylor moved into the right lane behind Paul, and Paul sped off. Taylor asserted that her car was damaged.

A driver of a different car who observed both the altercation at the red traffic light and the impact between the vehicles, Roselle Harde, also testified. At the traffic light, Harde asserted that Paul exited his vehicle, displayed both of his middle fingers towards Taylor, and reentered his vehicle and drove off. Approximately eight miles later, Harde was driving in the right lane while Taylor drove next to Harde in the left lane. Harde witnessed Paul’s car drive in between Harde and Taylor’s cars, causing Harde to move to the right shoulder. Harde attempted to alert Paul that he could drive in front of her in order to avoid injury to any party. Thereafter, Harde observed Paul’s vehicle make contact with Taylor’s vehicle. After the cars hit, Harde stated that Paul moved behind Taylor and took a picture of Taylor’s license plate. Once Taylor then pulled off onto the shoulder, Harde did the same and gave Taylor her name and address. Harde later drove to Easton at the request of the police to identify Paul as the person who struck Taylor’s vehicle.

The district court judge considered the testimony of Harde to be credible and found Paul guilty of two charges: failure to return to/remain at scene of accident involving damage to attended vehicle/property and negligent driving. The district court judge then sentenced Paul to sixty days of incarceration, suspending all but twenty days, to begin immediately. The district court judge did not immediately set a bond and made a request that Paul’s attorney return at 4:30 p.m. While confined in a holding cell, Paul made a phone call to his wife. Paul told her that he had not received a fair trial because “these people on the Eastern Shore, they’re a bunch of hicks here and they hate people from Annapolis.” Paul asserts that, when his attorney conversed with the district court judge at 4:30 p.m., the district court judge set a $100,000 bond because “he didn’t appreciate [Paul] calling people from the Eastern Shore hicks.” That evening, Paul paid a bondsman $10,000 to secure his release.

Paul appealed the district court judge’s ruling to the circuit court and hired a new attorney for the appeal. Although Paul was not privy to the conversations between his new attorney and the Assistant State’s Attorney, Paul believed that the attorneys had worked out a plea agreement prior to the court proceeding. At the circuit court trial on September 16, 2013, Paul’s attorney offered a plea agreement for the record but the Assistant State’s Attorney claimed that the State had not agreed to that deal. In his deposition, Paul admitted that his attorney “maybe thought he had a deal and maybe put too much emphasis on that thought.” Thus, before the circuit court judge, Paul pleaded guilty to the two charges he  had been found guilty of in district court. After the Assistant State’s Attorney reiterated the factual background, the circuit court judge described Paul’s actions in the road rage incident as “not only strange” but “dangerous behavior.” The circuit court judge sentenced Paul to twenty days of incarceration to be served on weekends, with credit for the one day Paul served prior to posting bond following the district court case.

The other matter involved a misrepresentation to opposing counsel. The court found those allegations were not proven.

The court rejected a host of charges made by Bar Counsel but found some misconduct

We agree with the hearing judge’s assessment of Paul’s conduct; Paul’s dangerous and threatening conduct reflected adversely on his trustworthiness and fitness as an attorney. Accordingly, clear and convincing evidence supports the conclusion that Paul’s conduct violated both MLRPC 8.4(a) and (b).

Maryland Bar Counsel overcharged the case as per its recent custom and had several charges rejected, including those relating to the "bunch of hicks" remark that apparently was overheard on surveillance and reported to the judge violated Rule 8.2.

Paul suggested that the district court judge imposed a greater bond upon him because the district court judge had heard of his telephone conversation with his wife in which Paul stated “you can’t get a fair trial from these people on the Eastern Shore. They’re a bunch of hicks here and they hate people from Annapolis.” The hearing judge found that Paul “was merely stating his opinion to his wife” and that there was “no evidence that he was aware his private conversation could be overheard” or that Paul intended his opinion to be made public. The hearing judge concluded that without testimony from Paul’s lawyer in the district court case, whom Paul testified at his deposition told him that the district court judge had imposed the high bond because of overhearing the conversation, or from the district court judge himself, Bar Counsel did not meet its burden. For these reasons, we agree with the hearing judge’s determination that Bar Counsel failed to present clear and convincing evidence that Paul violated MLRPC 8.2(a) for his statements regarding the district court judge.

In the second matter, two issues emerged.

First, Bar Counsel prosecuted a "sad duty to report opposing counsel" complaint. 

Second, the court again rejected Bar Counsel's charge of a Rule 3.1 frivolous litigation violation. Perhaps that office should re-evaluate its understanding of that rule. 

The court here rejected both Bar Counsel's call for a longer suspension and the Respondent's suggestion that he had been punished enough.

Interestingly, the court awarded full costs to Bar Counsel notwithstanding the rejection of several charges. The court has focused on this issue in a number of recent cases.

Oral argument video linked here. (Mike Frisch)

June 22, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 21, 2018

His Award Is Disbarment

The Oklahoma Supreme Court disbarred an attorney for misconduct in three client matters.

His self-representation made an impression

The case at bar is an extreme example of how the trial panel's effort to provide due process to a respondent provides fertile ground for a respondent inclined to mischief to abuse the process.
. . . .
. . . [A]s is readily apparent in the 3083 page transcript, the Respondent routinely ignored deadlines and Orders all the while complaining that he wasn't being treated fairly. He was late to virtually every day of hearing. He falsified evidence. His disdain and contempt for the disciplinary process was palpable by his actions.
Respondent's utter failure to recognize that the door of due process swings both ways is punctuated by his application to this Court for Extraordinary Relief complaining that the Presiding Master had concluded that Respondent would not be permitted to elicit the testimony of his expert witness because of his failure to comply with the most fundamental of multiple orders and clear statutory mandate requiring that documents upon which his expert relied be produced to the Complainant.
Respondent's evolving defense as to Counts One and Two is that[,] to properly know whether he had accurately accounted to his clients[,] records going back to 2006 had to be considered (records he alternately claimed to not have but necessarily furnished to his expert). As the record became more and more confused because of Respondent's late production and manipulation of data, the Complainant asked leave to have yet another expert (in addition to the investigator for the Complainant) review and testify. Respondent agreed to this before he disagreed. . . .
The Trial Panel and the Presiding Master have been called upon throughout these proceedings to balance the need for an orderly proceeding and due process to all in accordance with fundamental rules of civil procedure as over and against the Respondent's seemingly endless quiver of obfuscatory tactics--all in the interest of providing an adequate record for this Court. It is the Byzantine abuse of the process by the Respondent which provides the clearest record in establishing the appropriate discipline in this matter.

We cannot agree more.

But what is even more insulting than Kruger's lack of respect for this institution is his lack of respect for his clients, as evidenced by his utter failure to express remorse or acknowledge the gravity of his wrongdoing. For example, at one point in his testimony--after hearing days of evidence demonstrating his mishandling of thousands of dollars of his clients' money--Kruger said: "you know, we're talking about nickels and dimes really." And at another point, in describing his work in representing Ms. McCarroll and her family, he stated: "So I should receive some kind of award from the Bar, I would think, like lawyer of -- of the universe." We find this irreverence particularly disturbing.

In light of this evidence, we conclude that Kruger breached his duty of candor owed to the tribunal, breached his duty to act fairly to the opposing party and counsel, and knowingly made false statements of fact in connection with a bar matter, thereby violating Rules 3.3, 3.4, and 8.1 of the Oklahoma Rules of Professional Conduct.

* * *

Based on the foregoing, it is clear that Kruger has committed professional misconduct as that term is defined in Rule 8.4 of the Rules of Professional Conduct. It is also quite clear that the only appropriate response to Kruger's misconduct is to disbar him. The possibility of Mr. Kruger continuing to practice law in our State poses too great a danger to its courts and to its people.

(Mike Frisch)

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

But Her Emails

The Maryland Court of Appeals overturned a circuit court order commanding Bar Counsel to investigate Hillary Clinton's attorneys

Jurisdiction is not a flashy or glamorous area of the law. What it lacks in luster, however, it makes up for in fundamental importance in our legal system. As a threshold issue, one of significant constitutional dimension, jurisdiction must be addressed before a cause of action may proceed.

This case began when the Appellee, Ty Clevenger, submitted to the Attorney Grievance Commission of Maryland a complaint alleging professional misconduct by three Maryland-barred attorneys while they were representing former Secretary of State Hillary Clinton. The Office of Bar Counsel thereafter informed Mr. Clevenger that it would not undertake an investigation of the allegations in his complaint because he had no personal knowledge of the allegations presented and was not an aggrieved party or client.

Mr. Clevenger filed a petition for writ of mandamus in the Circuit Court for Anne Arundel County, seeking to compel Bar Counsel to open an investigation into the alleged misconduct of the named attorneys. The Attorney Grievance Commission and Bar Counsel (collectively, “the Commission”) filed motions to dismiss the petition and to seal the case to protect the confidentiality of the complaint and responses. Mr. Clevenger opposed both motions. The circuit court granted the motion to seal and denied the Commission’s motion to dismiss the petition. Following a hearing on the merits of the mandamus petition, the circuit court ordered the Commission to investigate the allegations presented in the complaint. The circuit court also vacated its previous order sealing the case.

We granted a writ of certiorari to determine whether, before reaching the merits of the case, the circuit court had jurisdiction to entertain the petition for writ of mandamus. For the reasons that follow, we hold that because this Court has original and exclusive  jurisdiction over attorney disciplinary matters, of which Bar Counsel’s decision to investigate a complaint is a part, the circuit court was without jurisdiction to consider and grant the mandamus petition and to order Bar Counsel to conduct an investigation of the allegations in Mr. Clevenger’s complaint.

Clevenger is an attorney admitted in Texas who filed a bar complaint

Specifically, Mr. Clevenger alleged that the attorneys violated Rules 19-308.3, 19-303.4(a), and 19-308.4(c) by destroying evidence related to ongoing federal investigations, failing to report the misconduct of the other attorneys, and engaging in conduct involving dishonesty. The allegations appeared to Bar Counsel to be based solely on information derived from publicly available sources.

Deputy Bar Counsel responded

It appears that you have no personal knowledge of the allegations presented in your correspondence, nor are you a personally aggrieved client or party possessing material information that would assist this office in reviewing such allegations. Under these circumstances, we decline to conduct an investigation of the named attorneys with you designated as the complainant.

The Maryland Rules grant Bar Counsel authority to open a complaint on Bar Counsel’s own initiative. Pursuant to Maryland Rule 19-707(b), the records of an investigation by Bar Counsel, including the existence and content of any complaint or response, are confidential. In accordance with that rule, we are unable to provide you with additional information.

He was undeterred

On December 20, 2016, Mr. Clevenger, proceeding without the assistance of a Maryland-barred attorney, filed in the Circuit Court for Anne Arundel County a Petition for Writ of Mandamus (“Petition”). He sought to have the circuit court compel Bar Counsel to conduct an investigation, arguing that then-effective Maryland Rule 19-711 required Bar Counsel to investigate every complaint that was not facially frivolous or unfounded. The Commission moved to dismiss the Petition for lack of jurisdiction, among other grounds.

And to the surprise of many onlookers

By a written order dated September 22, 2017, the court granted the Petition and ordered the Commission to investigate the allegations presented in Mr. Clevenger’s complaint.

The obvious jurisdictional bar prevents the court from addressing important issues of bar discipline accountability and transparency. An obviously politically motivated complaint is a poor  vehicle for such a discussion.

Video of the argument on the merits linked here.

Update: Capital Gazette covered the story and interviewed Clevenger. He is quoted as saying that with the right connections you can get away with "just about anything" in Maryland.

This is actually true but has nothing to do with this particular disposition. (Mike Frisch)

June 21, 2018 in Bar Discipline & Process | Permalink | Comments (1)

A Failed Test Of Character

An attorney who was censured in New Jersey received the same sanction as reciprocal discipline in New York

On February 25, 2015, Arthur Alte IV, a TD Bank customer, cashed a check for $1,185.65 at the drive-up window of the Hazlet, New Jersey, branch of TD Bank. Mr. Alte became distracted while on his cell phone and left the drive-up window without retrieving from the transaction tube the bank envelope containing $1,185.65 in cash and his driver’s license. A few minutes later, Mr. Alte realized his error and returned to the bank, and saw the transaction tube still sitting in place with a white envelope inside. When he opened the envelope, he found his driver’s license and 65 cents. He immediately alerted bank personnel about the missing $1,185, and contacted local police.

The Hazlet police reviewed the bank’s surveillance video for the drive-up area, and observed the driver of a white BMW automobile, the very next automobile to move through that lane after Alte, taking cash out of the transaction tube, counting it, and returning the envelope containing Alte’s driver’s license and 65 cents. The driver of that vehicle then drove away without conducting a transaction.

Two weeks later, on March 10, 2015, police received information from TD Bank identifying the respondent as the driver of the white BMW. The respondent had not returned the cash to TD Bank. Once contacted by police, the respondent went to the police station, cooperated fully with police, and admitted having taken the $1,185 on February 25, 2015. The respondent explained that he “had a momentary lapse of reason,” made a bad decision, and took the money.

Sanction

The DRB, upon review, found that although the respondent claimed that he had “a  momentary lapse of reason” when deciding whether to keep or return the $1,185, which he knew belonged to another bank customer, he “failed that impromptu character test, deciding to keep the money.” Further, the respondent’s lapse continued for another two weeks, until he was finally identified by bank employees. In mitigation, the DRB noted that once the respondent was identified, he cooperated with police, self-reported his conduct to the OAE, completed the PTI program, and paid full restitution to the victim. Further, the respondent demonstrated remorse for his conduct, and had no prior discipline in 30 years at the New Jersey bar. The DRB concluded that a censure “adequately addresses [the] respondent’s single, apparently aberrant, act.”

(Mike Frisch)

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

Dewey Cheatum and Howe

A convicted attorney has been disbarred by the New York Appellate Division for the Second Judicial department

By way of background, the respondent was indicted, along with others, in 2014 and charged with one count of scheme to defraud in the first degree, in violation of Penal Law §
190.65(1)(b); multiple counts of grand larceny in the first degree, in violation of Penal Law § 155.42; multiple counts of falsifying business records in the first degree, in violation of Penal Law § 175.10; one count of violating General Business Law § 352-c(5) (the Martin Act); and one count of conspiracy in the fifth degree, in violation of Penal Law § 105.05(1). The underlying conduct of these alleged offenses consisted of a systematic course of actions taken by the respondent and others, all senior management of the law firm of Dewey & LeBoeuf, LLP (hereinafter the firm), in response to the poor financial condition of the firm. To prevent the financial collapse of the firm, the respondent and others allegedly employed various forms of fraudulent accounting adjustments, misrepresented the firm’s financial performance to lenders, and misrepresented the firm’s compliance with other lending requirements. Ultimately, all such efforts proved unsuccessful and the firm collapsed...

The respondent opposes the motion to strike, seeking, instead, a suspension of no more than one year. The respondent does not contest his felony convictions; however, he argues that he should not be disbarred due to various mitigating factors, for instance, his no-jail sentence, his remorse, and the absence of any intent to hurt anyone.

The various mitigating factors are unavailing because by virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a) (see Matter of Ginsberg, 1 NY2d 144)

(Mike Frisch)

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

New York, New York

An attorney has been suspended by the New York Appellate Division for the Third Judicial Department

In April 2016, AGC, then known as the Committee on Professional Standards, authorized a Chief Attorney's Complaint (see Rules of App Div, 3d Dept [22 NYCRR] former § 806.4 [a]) regarding allegations that respondent, among other things, threatened opposing counsel in a City Court proceeding with criminal charges unless counsel disgorged monies to his client. In July 2017, while AGC was investigating the foregoing allegations, it received a second complaint of professional misconduct alleging, in part, that respondent had engaged in a conflict of interest and impermissible self-dealing during his representation of a relative in connection with the administration of an estate. Pursuant thereto, AGC directed respondent to provide, among other things, a detailed written response to the allegations along with various records and to appear for an examination under oath (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.7 [b] [2]). AGC reports that respondent failed to respond or produce the requested records and also failed to appear at the scheduled February 9, 2018 examination as directed. 

The interim suspension will stay in effect until further court order.

In an unrelated matter, the court denied relief to a disbarred attorney. 

Motion by respondent, returnable May 29, 2018, for an order vacating this Court's 1997 order disbarring him from the practice of law (see generally Matter of Shieh, 245 AD2d 801 [1997], lv dismissed 92 NY2d 939 [1998]), "cleans[ing] his record" of his disbarment and other sundry relief.

I prosecuted a reciprocal discipline disbarment case involving this former attorney, who also sought reconsideration by calling the judges who imposed discipline "judicial f**kers." 

Before that bon mot, he was respresented by present Disciplinary Counsel Hamilton P. Fox III. (Mike Frisch)

 

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

Wednesday, June 20, 2018

New Jersey Rejects Compulsive Gambling Mitigation

The New Jersey Supreme Court has disbarred an attorney for knowing misappropriation, rejected his gambling addiction as mitigation

He sought to mitigate with a gambling addiction as described by the Disciplinary Review Board

Respondent, who was born in October 1961, that his introduction to gambling occurred at age six, when his father took him to the race track. At age nine or ten, respondent’s father introduced him to football pools. Respondent invariably lost each week, resulting in "an awful feeling," which he now recognizes was depression. At age eleven, respondent attended overnight camp where he and other campers played poker after "lights out."

In middle school, respondent was stripped of an unidentified award when the school administration learned that he had been distributing football pools. In high school, he and his father ~attended horse races all along the east coast. Respondent even gambled in Puerto Rico casinos, despite being underage, because his grandfather was able to gain him entry.

He wrote a senior paper on compulsive gambling, became the "dormitory  bookie" in college but did well and gained entry to the University of Pennsylvania Law School.

 Respondent spent the next twenty-two years free of gambling and living a healthy lifestyle. He attended GA meetings regularly, had a sponsor and sponsored other GA members, held offices, and worked on his defects.

He went to a "large national law firm" as an associate.

At some point, respondent left that firm and went to another. He turned to payday loans to fund some casino gambling. In the fall of 2010, he lost all of it, felt hopeless, and "overdosed massively." A few days later, his parents found him, unconscious, in a dilapidated house. Respondent spent the night in an emergency room, followed by a week in a mental health facility.  Because he had been missing from the law firm for ten days, he was fired.

No mitigation

Respondent admitted that he knowingly misappropriated the $32,500 in escrow funds. In his words, "it didn’t matter" that he knew it was wrong: "I was compulsively gambling and it was there." Thus, nothing in respondent’s testimony or Dr. Dattilio’s report established that, on those occasions when respondent used the escrow monies to gamble, he was driven by a compulsion to misappropriate trust funds. Rather, he was driven by a compulsion to gamble. The trust account funds were merely the means by which to do so...

Hollendonner requires the disbarment of attorneys who knowingly misappropriate or borrow escrow funds, either for their own benefit or for the benefit of another, for a good purpose or for a bad purpose, with or without the intent to defraud, and with or without the intent to make restitution. In re Hollendonner, 102 N.J. 21; In re Noonan, 102 N.J. 157 (1986). Thus, respondent must be disbarred.

(Mike Frisch)

 

 

 

June 20, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 19, 2018

Two Reinstated In Rhode Island

The Rhode Island Supreme Court has reinstated two attorneys.

One matter involved non-practice-related crimes

On October 15, 2014, the petitioner, Steven A. Murray (petitioner or Murray), entered a plea of nolo contendere to one count of felony assault in violation of G.L. 1956 § 11-5-2. He was sentenced to a three-year term of imprisonment, which was suspended with probation. Conditions of his probation included substance-abuse counseling. On that same date, petitioner also entered a nolo contendere plea to a misdemeanor charge of operating a motor vehicle while under the influence of intoxicating liquor, in violation of G.L. 1956 § 31-27-2. He was sentenced to a one-year term of imprisonment, also suspended with probation, to be served concurrently with the sentence in his felony assault conviction.

He was suspended for 18 months

Disciplinary Counsel noted that petitioner had successfully completed his probationary terms for his convictions, no new offenses had occurred, that petitioner was actively involved in substance-abuse treatment, and there was no information that petitioner was currently abusing alcohol. Counsel recommended that any reinstatement be conditioned on petitioner continuing in substance-abuse treatment.

We considered this petition at our conference on November 16, 2017. After hearing the parties, we concluded that we were not satisfied that petitioner had taken adequate steps to confront and overcome his history of alcohol abuse. We continued this matter for six months, encouraged petitioner to more actively participate in substance-abuse programs, and directed him to provide Disciplinary Counsel with a specific treatment plan and submit monthly written reports to Disciplinary Counsel regarding his compliance with that plan.

This matter was again before Court at its conference on May 30, 2018. Petitioner has taken, and is continuing to take, appropriate steps to address his alcohol abuse. Disciplinary Counsel has not uncovered any information, other than petitioner’s above-noted convictions, that reflect adversely on petitioner’s current fitness to be reinstated.

Notably

A criminal conviction does not create an insurmountable obstacle to the resumption of the practice of law.

The other involves a practice-related disbarment

On January 10, 2003, while facing formal disciplinary charges alleging serious financial mismanagement of his law firm client account, the petitioner submitted an affidavit to this Court acknowledging that he would not contest the allegations, freely admitting that he had diverted client funds for an improper purpose, and voluntarily consenting to his disbarment from the practice of law in this state.

The petitioner was admitted to the practice of law in this state in 1989. During his legal career, petitioner served as a Special Assistant Attorney General, an Assistant City Solicitor and was engaged in the private practice of law. Prior to 2002, petitioner was not the subject of any  allegations of professional misconduct. However, beginning at approximately that time, petitioner engaged in conduct that led to his disbarment.

The petitioner practiced law in a partnership with another attorney that he met while the two were in law school. The petitioner concentrated his practice in the area of representing plaintiffs with personal injury claims. His partner practiced in the area of criminal defense. The petitioner maintained the law firm accounts and managed the practice. His partner relied on petitioner to run the office and pay the costs of maintaining the practice. They would then share in the income of the law firm.

However, the practice was not generating sufficient income to cover all of the office expenses and compensate the employees, petitioner, and his partner. The petitioner did not advise his partner that the practice was not as successful as it appeared to be. Rather, in order to pay office expenses, his partner, and himself, petitioner began to divert funds held in the law firm client account that had been earmarked to pay the medical bills of personal injury clients.

It was only a matter of time before the medical providers noticed they were not being paid. The petitioner’s partner first became aware of petitioner’s misconduct when the medical providers began contacting the office inquiring about their payments. The petitioner abruptly left the practice, and only then did he disclose what he had done to his partner.

The mer its

Disciplinary Counsel has advised this Court that he has uncovered no evidence of any conduct by petitioner during the fifteen years he has been disbarred that raises a question as to his present moral fitness. Petitioner has been self-employed, performing title examinations for other attorneys; all attest that his work has been exemplary. Numerous
attorneys have submitted letters to this Court attesting to petitioner’s character and recommending his reinstatement. Petitioner has been actively involved in his community, coaching youth baseball and basketball.

However, the nature of petitioner’s past misconduct is of great concern to this Court. The petitioner diverted in excess of $400,000 of client funds in his misguided effort to keep the law firm solvent. When he abruptly left the practice, petitioner’s now-former partner was saddled with those unpaid bills. Fortunately for the clients, the partner was able to resolve or compromise these outstanding debts on the clients’ behalf by paying them out of his own funds. We note that petitioner’s former partner has neither supported nor objected to this petition.

He is reinstated on "strict supervision. (Mike Frisch)

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

Monday, June 18, 2018

Gone To Texas

An attorney was reprimanded in Michigan as a result of a 10 day suspension in Florida.

Texas also ordered a reciprocal 10-day suspension and described the misconduct

Robert Munsters ("Munsters") and his mother, Bertha Slagboom ("Slagboom") hired Respondent on December 15, 2014, to represent Slagboom in her divorce. After the initial meeting, Munsters and Slagboom had problems contacting Respondent, both by phone and email. Respondent had relocated to Texas without notice. After repeatedly calling and attempting to email respondent, Munsters finally received an answer. On July 29, 2015, Respondent emailed Munsters a copy of Slagboom's prenuptial agreement, along with a request for documents. Respondent claimed that opposing counsel was not being cooperative. From the docket sheet, it appears that Respondent failed to file any discovery requests with the court, although Munsters stated that he was provided a copy. In September 2015, Munsters informed Respondent that he could no longer cover the monthly costs for his mother's care and that it was imperative something happen immediately or his mother would be forced to leave her assisted-living facility. In response, Respondent blamed opposing counsel, claiming that her calls and correspondence were not returned. Respondent also enclosed documents which she requested Munsters or his brother fill out. On October 5, 2015, Munsters requested his stepfather's financial assistance with Slagboom. His stepfather refused. Munsters' stepfather, however, agreed to assist with moving the divorce forward and to pass information to his attorney, Jennifer Henson. Ms. Henson replied that there was no correspondence from Respondent, including a September 12, 2015 letter that Respondent claimed she had sent. In October 2015, Munsters informed Respondent that he had received an eviction notice from the assisted living facility, and his mother had 45 days to move. On March 9, 2016, Munsters received a phone call from Respondent, who told him that she thought he and his mother would be better served by a local Florida attorney. On March 11, 2016, Respondent filed Wife's Motion for Temporary Support and other relief with the court. On March 28, 2016, Munsters emailed Respondent, requesting all information on the case. On April 5, 2016, Munsters received a packet of incomplete documents from Respondent. Although Respondent, through her counsel, represented that significant legal work was performed, the record does not support that claim. After initially being hired in December 2014, Respondent, when contacted by Munsters in June 2015, had done nothing to advance Slagboom's case. In addition, contrary to Respondent's assertions that she provided Munsters with a financial affidavit for his mother at their first meeting, Munsters received nothing until September 2015. The affidavit was then completed and filed with the court by October 2015. Respondent first claimed that Munsters was notified of her move to Texas, then stated that he could have always reached her via email or cell phone. This assertion was not true. In her response to The Florida Bar's inquiries, Respondent asserted that she had ongoing communications with Munsters and had worked on Slagbloom's case. From the documents supplied by both Munsters and Respondent, Respondent did not communicate with Slagboom or Munsters for approximately nine (9) months. In her response to The Florida Bar's request for more infommtion, Respondent asserted that she provided Munsters with a copy of her e-mail and phone number. Respondent could not supply documentation supporting this assertion. Most recently, Respondent claimed that her computer crashed and she could no longer gain access to the documents.

(Mike Frisch)

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

Friday, June 15, 2018

Twitter And Youtube Misconduct Alleged

A recent complaint filed by North Carolina State Bar alleges both traditional and cutting-edge violations of the prohibition against conduct prejudicial to the administration of justice.

The charged attorney represented herself in federal court litigation. She took the video deposition of a defendant named Amy Bouque.

After losing on summary judgment and exhausting her appeals, she posted the 37 minute video of the deposition on Youtube with audio commentary. 

The post was titled: "Amy Bouque: Best Ways to Tell if A Witness is Lying."

She publicized the video on Twitter as a helpful way to "identify deceit." 

The defendant got a protective order that the attorney challenged at the hearing and on appeal. After losing, she took down the video but replaced it with a video that consisted of still images of the deposition with narration stating that the witness had committed perjury.

The defendants went back to court for a second protective order. The judge considered (but declined to impose) sanctions but suggested that the attorney was playing games.

She was ordered to remove all videos relating to the deposition, in the judge's word

    "None. Zero."

The issue led to 61 docket entries and two Fourth Circuit opinions.

The Fourth Circuit order remanding on procedural grounds is here. 

We conclude that the magistrate judge lacked authority to enter an order on Defendants' motion for a protective order. A magistrate judge may not decide, postjudgment, a motion that would be a proper pretrial motion under § 636(b)(1)(A) because “resolution of such motions is dispositive of a claim.” Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993); see Rajaratnam v. Moyer, 47 F.3d 922, 924 (7th Cir. 1995); Aluminum Co. of Am., 663 F.2d at 501 (holding that motion to quash subpoena “was not a ‘pretrial matter’ but set forth all of the relief requested”). Therefore, the district court was required to provide de novo review; its order makes clear, however, that it reviewed only for clear error. 

The attorney's answer is linked here. 

The answer asserts First Amendment protection and states the her motivation was to educate the public about pro se litigation. She denied that she knowingly violated any court order.

Lorene D. Park has a nice summary of the underlying litigation. (Mike Frisch)

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

An Attorney From Wahoo Gets Suspended

The Nebraska Supreme Court has suspended an attorney from Wahoo convicted of a federal tax offense

This is an attorney discipline case in which the only question before this court is the appropriate sanction. Kent J. Trembly admits to receiving a felony conviction for filing a false individual income tax return in the U.S. District Court for the District of Nebraska. The referee recommended Trembly be suspended from the practice of law for 18 months. However, after our de novo review of the record, we conclude a 3-year suspension from the practice of law is the proper sanction.

Sanction

we do not believe this court should impose a bright-line rule that a felony conviction creates a presumption in favor of disbarment, as we have for acts of misappropriating funds and commingling. Unlike those violations, the acts that may result in a felony conviction are simply too numerous to apply a rigid rule governing our determination of how to
handle such conduct. Therefore, we agree with the parties that the nature of the conduct underlying the conviction, as well as the other factors for determining discipline, is the proper focal point for our proceedings. Nevertheless, we also refuse to adopt a rule that gives no effect to the existence of a felony conviction for the actions of an attorney...

we consider a felony conviction to be a strongly aggravating factor in determining the sanction ultimately imposed on an attorney.

Here

Trembly’s felony conviction for filing a false income tax return underreporting more than $1.1 million in income was an offense of moral turpitude that requires a sanction sufficient to maintain the public’s confidence in the bar and deter such action in other attorneys. Further, the magnitude of the violation and the resulting felony conviction aggravate the misconduct. Conversely, Trembly’s attitude and demonstrated fitness to continue practicing law, the fact that no clients were harmed by his actions, and the numerous mitigating factors each warrant leniency.

...we hold that a 3-year suspension of Trembly’s license is necessary to maintain the public’s confidence in the bar and deter such action in other attorneys.

 The decision in State ex rel. Counsel for Discipline v, Trembly can be accessed here. (Mike Frisch)

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

Thursday, June 14, 2018

"Compassion Fatigue" And Bar Discipline

The Washington State Supreme Court has disbarred an attorney

Attorney William H. Waechter committed multiple lawyer trust account violations. Among other things, he converted client funds and most egregiously, he forged a client's signature on a check. Waechter appeals the Washington State Bar Association (WSBA) Disciplinary Board's (Board) unanimous recommendation to disbar him. He contends that the Board erred by failing to consider the emotional problems mitigating factor and that double jeopardy principles apply. While we agree that the emotional problems mitigator should have been considered in relation to his trust account practices, it carries little weight in this case and does not affect his sanction. We agree with the Board's recommendation and disbar Waechter from the practice of law.

There were issues in five client matters

The hearing officer found four aggravating factors: dishonest or selfish motive, pattern of misconduct, multiple offenses, and substantial experience in the practice of law. Four mitigating factors ultimately applied, including absence of prior discipline, full and free disclosure to the disciplinary board, character or reputation, and remorse. The hearing officer recommended disbarment and payment of restitution.

The mitigation issue

Here, Waechter argues the testimony of Dr. Marta Miranda that Waechter likely suffered vicarious traumatization or compassion fatigue constitutes an emotional or personal problems mitigating factor. Dr. Miranda testified that compassion fatigue often occurs in "the helping professions" like social workers and lawyers. 3 VRP (May 18, 2016) at 502. These professionals do not experience trauma themselves, but they suffer as a result of working with traumatized populations. Relevant to Waechter's case, symptoms of compassion fatigue include avoiding traumatic material, mental dissociation from daily life, avoidance, and becoming "jaded." Id. at 504. Dr. Miranda testified that Waechter's three successive personal injury case losses in 2012 and his overidentification with his clients led to compassion fatigue. The doctor stated it was likely these losses and; the resulting secondary trauma caused Waechter to be careless and avoid stresses, such as his bookkeeping duties. Dr. Miranda further testified that she did not believe Waechter took his clients' funds or transferred trust account funds with a conscious intent...

We agree with the ODC in part. Dr. Miranda's testimony does not establish a connection between the trauma and Waechter's decisions to convert client funds and forge his nephew's signature. However, the testimony does establish a connection between Waechter's compassion fatigue and his poor bookkeeping. Accordingly, the Board erred in failing to consider this mitigator when it considered the sanction for Waechter's trust account violations.

No double jeopardy

Assuming, without deciding, that Waechter may raise the issue for the first time on appeal, we conclude double jeopardy does not apply to attorney discipline.

This appears to be a matter of first impression in Washington. As such, we look to other jurisdictions for information and guidance...

Our sister jurisdictions that have addressed the issue have concluded that the double jeopardy clause is not implicated in attorney disciplinary proceedings.

[The Pennsylvania] court explained that should disciplinary actions be viewed, for constitutional purposes, as placing an individual in jeopardy, an attorney convicted of a crime could not be then disbarred for that crime. Id. If an attorney sanction and criminal prosecution would bar the other, the State would have little ability to protect the public. Id.

Conclusion

While the Board erred in failing to consider Waechter's emotional or personal problems as a mitigating factor, the mitigator is afforded little weight under the circumstances of this case and does not affect the sanction. We conclude that double jeopardy does not apply to attorney discipline proceedings. Therefore, we disbar Waechter from the practice of law and order the hearing officer's recommended restitution payments.

Justice Madsen

I concur in the majority's outcome but disagree with respect to the majority's holding that the Board erred when it adopted the hearing officer's decision not to apply the emotional or personal problems mitigating factor.

(Mike Frisch)

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

Suspension For Sex Crime Conviction

The Michigan Attorney Discipline Board has suspended the license of an attorney convicted of criminal sexual conduct -third degree. 

The Farmington Press reported on the criminal charges

 A Farmington Hills attorney is on the other side of the justice system as he faces accusations of sexual assault from an alleged incident in October.

Daniel Carlson, 33, of Farmington Hills, was arrested March 8 on two felony charges: criminal sexual conduct, third degree, and obstruction of justice. The criminal sexual conduct charge is a 15-year felony; the obstruction charge is a five-year felony. 

Carlson posted a $15,000 bond for the first charge and a $2,500 bond for the second charge.

Carlson was arraigned March 9 in the 77th District Court in Mecosta County — near Big Rapids — on the felony charges, according to an email statement from Mecosta County Sheriff Sgt. Casey Nemeth.

Nemeth said in the email statement that Carlson was arrested as a “result of an investigation into Carlson being accused of sexually assaulting an incapacitated female” last fall.

He was also arrested for “failing to comply with (a) court-ordered search warrant for evidence.”

According to Nemeth’s email statement, the Mecosta County Sheriff’s Office was helped by the Farmington Hills Police Department and the Michigan State Police Crime Lab.

Amy C. Clapp, chief assistant prosecuting attorney for the Mecosta County Prosecutor’s Office, said during a recent phone interview that the victim in the case was reportedly penetrated by the suspect’s finger. 

Clapp said Carlson was charged in Morton Township in Mecosta County, and the criminal sexual conduct, third degree, charge factors in a victim who was impaired. 

“Specifically, the criminal sexual conduct in the third degree is … an incapacitated victim,” Clapp said. 

She added that the suspect might have had reason to believe that the reported victim was “physically helpless” at the time of the alleged incident.

Clapp declined to comment on where Carlson and the victim were at the time of the incident.

A 9 a.m. March 21 probable cause hearing was scheduled before 77th District Court Judge Scott Hill-Kennedy.

“Our initial pretrial essentially is to see what is the next step,” Clapp said. “Just an opportunity for the defense attorney and our office to talk about the case.”

Roger Wotile, Carlson’s Cadillac-based defense attorney, said during a recent phone interview that his client is “certainly upset with the accusation.”

“The accusation is that something happened at the end of October of last year,” Wotile said, adding that Carlson pleaded not guilty.

“The woman making this complaint admits she was highly intoxicated,” Wotile said, adding that the woman allegedly could not remember what happened to her the next day after the reported event. 

Wotile also said that the victim made a statement a couple of weeks later saying she believed that Carlson improperly touched her when she was intoxicated.

“Now, five months later, the matter has come up again and will be vigorously defended,” Wotile said. “At the end of the day, Dan has pleaded not guilty, and (I) hope it can be reasonably and amicably ended,” Wotile said. 

Pioneer Group also reported on the motions in the criminal case.

The interim suspension is in place pending final discipline. (Mike Frisch)

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

Snowball's Chance

Permanent disbarment has been ordered by the Kentucky Supreme Court

In October 2016, Respondent represented Daniel Snowball at a mediation conference regarding Snowball's personal injury claims against several defendants. Upon conclusion of the mediation, Snowball and another plaintiff accepted aggregate settlement payment of $22,500.00, from which $9,166.66 would be paid to Humana Insurance Company to retire its subrogation claim against the defendants.

Defendant, State Farm Insurance Company, agreed to issue a check in the amount of $22,500.00 payable to both Snowball and Respondent. From  that check, Humana's subrogation payment and Respondent's fee were to be deducted. The check was issued in November 2016 and sent to Snowball. Snowball endorsed the check and delivered it to Respondent's legal assistant.

By January 2017, Humana had not been paid, prompting its legal counsel to email Respondent repeatedly seeking payment. After receiving no response, Humana filed a Motion to Enforce Settlement Agreement in Kenton Circuit Court. On January 27, 2017, the Kenton Circuit Court entered an Order to Enforce Settlement, requiring Respondent to pay Humana within fourteen days. Four days later, Respondent sent Humana's counsel an email seeking verification of the payee. Humana responded with the payee information the same day. Neither Snowball nor Humana has yet received their respective portions of the $22,500.00 settlement.

In March 2017, Snowball's new attorney, Todd McMurtry, sent  Respondent a demand for 'Snowball's portion of the $22,500.00 settlement. He also inquired about Humana's subrogation payment. Resporident never responded.

The attorney did not respond to the ensuing charges. (Mike Frisch)

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

Master Of The Bluegrass

The Kentucky Supreme Court sanctioned a Master Commissioner with a four-year suspension with the last 18 months probated.

During her tenure, Chenault managed the Master Commissioner's bank accounts. Chenault's job duties included paying her own and her staff's salaries from the Master Commissioner's operating account. The Administrative .Office of the Courts (AOC) conducted annual audits of the bank accounts and noticed substantial discrepancies in the audits for 2013 and l2014.

Specifically, Chenault should have paid herself an annual salary of no  more than $58,000; however, in 2013, Chenault exceeded her authorized compensation by $32,663.07, and in 2014, by $27,520.83.

She entered an Alford plea to criminal charges.

Bar Counsel sought disbarment

We have held, "our precedent is crystal clear: we treat criminal financial misconduct by attorneys very seriously; and we have previously found that disbarment was appropriate for numerous attorneys who had committed criminal offenses involving dishonesty in. financial matters." Kentucky Bar Ass'n v. Rorrer, 222 S.W.3d 223, 229 (Ky. 2007). However, we look to the specific facts and circumstances of each case. Of the cases Bar Counsel points us to, we believe that Chenault's case is most like Polk's. Chenault had been the Master Commissioner for more than six years with no evidence of intentional misappropriation of funds prior to 2013. Furthermore, when she became aware of the amount of funds she had misappropriated, she deposited an amount sufficient to pay those funds back in her lawyer's escrow account prior to being ordered to repay the amount. She participated in the disciplinary process and, while providing mitigating circumstances" did not contest  the fact that her conduct violated our ethical rules-unlike Layton. In distinguishing the other cases cited by Bar Counsel, unlike King and Polk, Chenault did not move the Court for disbarment and her Alford plea did not require her to do so.

We also point out that, while we take financial crimes seriously, we have not always held permanent disbarment was the appropriate sanction.

She must satisfy outstanding claim judgment arising from the misconduct prior to reinstatement. (Mike Frisch)

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

Eroded Trust

Disbarment has been imposed by the New York Appellate Division for the Third Judicial Department

Resulting from her involvement in a scheme to defraud certain mortgage lenders, respondent pleaded guilty in June 2010 to one count of conspiracy to commit mail and wire fraud in violation of 18 USC § 1349 in the United State District Court of the District of Connecticut, and she was sentenced in April 2012 to 366 days in prison with three years of post release supervision. As a result of her conviction, the Superior Court of Connecticut for the Judicial District of Danbury suspended respondent from the practice of law in Connecticut for four years, effective June 3, 2012.

Here

In determining the appropriate discipline in this matter, we take note of the nature of respondent's conduct underlying her conviction (see Matter of Mueller, 131 AD3d 762, 762 [2015]; Matter of Briggs, 120 AD3d at 1523). Specifically, respondent's use of her law license to perpetrate a scheme to defraud mortgage lenders directly implicates the honor and integrity of the profession by eroding the public's trust in attorneys (see Matter of Hernandez, 156 AD3d 1109, 1111 [2017]). Moreover, the severity of her misconduct is evidenced by the amount defrauded from the mortgage lender victims as a result of her actions, which totaled nearly $1 million. We find that the foregoing conduct, coupled with respondent's persistent biennial  registration delinquency that spans the last six reporting periods (see Matter of Nichols, 152 AD3d 1044, 1045 [2017]), warrants significant discipline. Accordingly, we conclude that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent should be disbarred in this state.

(Mike Frisch)

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

The Saving Grace Of New Jersey

An attorney's consent to disbarment in the District of Columbia and Maryland (and  disbarment in Pennsylvania) was reduced to virtually nothing by the New Jersey Disciplinary Review Board

Simply put, respondent did not engage in conduct that would constitute knowing misappropriation in New Jersey.

Unlike the District of Columbia, Maryland, and Pennsylvania, in New Jersey, attorneys may place advanced fees in either the attorney trust account or the attorney business account, and there is no requirement that the fees be taken only as they are earned, unless a specific agreement between the attorney and the client requires it.

I'd take no pride in that lawyer-loving rule. We used to have it in D.C. before we wised up about the use of Other People's Money.

The board

There are no aggravating factors for our consideration. In mitigation, this matter marks respondent’s first brush with disciplinary authorities in New Jersey in over twenty-five years at the bar. Therefore, we determine to impose an admonition.

Members Gallipoli and Zmirich voted to impose a reprimand.

The attorney had been suspended on an interim basis in New Jersey.

When an attorney consents to disbarment in D.C., the supporting facts simply are not contained in the affidavit.

This result should encourage misappropriating lawyers to join the New Jersey Bar, quietly consent if they are caught and use this precedent to avoid reciprocal discipline and keep their law license in a haven of lawyer forgiveness.  (Mike Frisch)

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

Diving Into Misconduct

A report and recommendation of the Ohio Board of Professional Conduct proposes a two-year suspension with 18-months stayed for an attorney's conduct in his representation of his former diving coach.

The coach was a silver medalist in the 1956 Olympics.

The attorney drafted an estate plan for the client and his spouse in 2011. In 2014, the client was diagnosed with dementia and his spouse sought the attorney's assistance with a divorce. He advised her that he could not representation either of them due to the estate plan conflict.

Notwithstanding that, he not only represented him but charged excessive fees, filed a frivolous declaratory judgment action, made a false statement to a tribunal and communicated with the spouse rather than through her counsel.

The board noted that he continued to "equivocate, recast, and justify his conduct.." (Mike Frisch)

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

Ohio Board Files Discipline Recommendations

From the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct today announced that it has filed 12 disciplinary case reports with the Supreme Court of Ohio.

  • Eleven reports recommend discipline for attorneys charged with professional misconduct.
  • One report recommends discipline for a magistrate who violated the Code of Judicial Conduct.

The parties in each case will have an opportunity to file objections to the Board’s report and recommendation with the Supreme Court. If objections are filed, the case will be scheduled for oral argument. No oral argument is scheduled in reinstatement proceedings, and objections are not permitted in a case submitted upon consideration of a consent to discipline agreement.

Additional information about each case, including the report and recommendation, may be obtained by clicking on the link for each case. Questions regarding pending cases should be directed to the Office of Public Information at 614.387.9250.

Cuyahoga County

Disciplinary Counsel v. Howard Alan Dunn
Supreme Court Case No. 2018-0813
Recommended sanction:  Six-month suspension, stayed

Disciplinary Counsel v. Charles Francis Wochna
Supreme Court Case No. 2018-0814
Recommended sanction: Six-month suspension, stayed

Cleveland Metropolitan Bar Association v. Jennifer Ellen Wintner (consent-to-discipline)
Supreme Court Case No. 2018-0810
Recommended sanction: One-year suspension, stayed

Erie County

Erie-Huron County Bar Association v. Robert Zelvy
Supreme Court Case No. 2018-0812
Recommended sanction: Six-month suspension, stayed

Franklin County

Disciplinary Counsel v. Phillip Louis Harmon
Supreme Court Case No. 2018-0817
Recommended sanction: Two-year suspension, 18 months stayed

Disciplinary Counsel v. Magistrate Marla R. Holben
Supreme Court Case No. 2018-0816
Recommended sanction: Public reprimand

Jefferson County

Disciplinary Counsel v. Michael J. Marshall
Supreme Court Case No. 2018-0809
Recommendation: Indefinite suspension

Licking County

Disciplinary Counsel v. Stephen Wallace Barns
Supreme Court Case No. 2018-0823
Recommended sanction: Public reprimand

Lucas County

Disciplinary Counsel v. Thomas Daniel Pigott
Supreme Court Case No. 2018-0815
Recommended sanction: Six-month suspension

Portage and Summit Counties

Disciplinary Counsel v. Thomas Charles Holmes and Ashleigh Brie Kerr (consent-to-discipline)
Supreme Court Case No. 2018-0818
Recommended sanction: Six-month suspension, stayed, for each respondent

Stark County

Disciplinary Counsel v. John David Clark (consent-to-discipline)
Supreme Court Case No. 2018-0808
Recommended sanction: Six-month suspension, stayed

Wood County

Wood County Bar Association v. Sarah Ann Miller Driftmyer
Supreme Court Case No. 2018-0811
Recommendation: Six-month suspension, stayed

(Mike Frisch)

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

Wednesday, June 13, 2018

No Testing Accomodation

The Minnesota Supreme Court has revoked a conditional readmission of an attorney who was suspended for a minimum of 30 days in 2017.

He was required by the court to pass the professional responsibility portion of the state bar examination within one year and twice failed to pass the MPRE.

He then moved for an extension "because he was unable to adequately prepare for the Match 2018 MPRE due to pressing family obligations that required him to travel out of the country during the winter before the exam and the time it took him to prepare for and attend a sentencing hearing that was scheduled 2 days before the exam."

The Director of the Office of Lawyer Professional Responsibility opposed the request.

The court notes that such requests have been "routinely denied."

He may reapply when he passes.  (Mike Frisch)

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