Thursday, July 20, 2017

New York Admits Undocumented Immigrant To Practice

An order of bar admission from the New York Appellate  Division for the Second Judicial Department

Applicant passed the July 2016 New York State bar exam and the State Board of Law Examiners certified her for admission to this Court (see Rules of Ct of Appeals [22 NYCRR] § 520.7). Applicant is an undocumented immigrant, who is authorized to be present in the United States under the auspices of the Deferred Action for Childhood Arrivals policy of the federal government. This Court's Committee on Character and Fitness has conducted the required investigation of applicant's application for admission, including a personal interview of applicant, and has approved the application and certified to this Court that applicant possesses the character and general fitness requisite for an attorney and counselor-at-law (see CPLR 9404; Rules of App Div, 3d Dept [22 NYCRR] § 805.1).

Being satisfied that applicant possesses the character and general fitness requisite for an attorney (see Judiciary Law § 90 [1] [a]) and finding no legal impediment to applicant's admission (see Matter of Vargas, 131 AD3d 4 [2015]), we approve the application and direct the Clerk of the Court to admit applicant to
the bar, including scheduling the administration of the attorney's oath of office to applicant (see Judiciary Law § 466).

The opinion does not identify the applicant. (Mike Frisch)

July 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Two Fees In Ohio

The usual excellent summary from Dan Trevas on the web page of the Ohio Supreme Court

The Ohio Supreme Court today sanctioned two attorneys for fee-related misconduct and other violations of the rules governing Ohio attorneys.

In separate, unanimous per curiam opinions:

  • Robert L. Johnson of McDonald was indefinitely suspended.
  • Patricia A. Pickrel of Centerville was suspended for two years, with one year stayed on conditions. (Justice Patrick F. Fischer did not participate in Pickrel’s case.)

Two Bar Associations Complain About Lawrence
In March 2014, Johnson received an interim suspension because of his failure to respond to a disciplinary complaint filed by the Lorain County Bar Association. Johnson obtained a lawyer and was engaged in Board of Professional Conduct proceedings when the Trumbull County Bar Association filed a separate set of charges against him. The board consolidated the two matters, which involve multiple allegations of misconduct involving multiple clients.

One of the charges investigated by the Lorain County Bar Association stemmed from a 2012 notification by Chase Bank that Johnson’s client trust account contained insufficient funds to cover a $5,000 check he wrote to attorney Michael J. Godles. Godles signed a contingent-fee contract to represent Alice Stevanus in a personal injury lawsuit. Godles later asked Johnson, who was not a member of the same law firm, to serve as co-counsel, but violated rules by not obtaining Stevanus’s written consent to Johnson’s representation and not disclosing their fee-sharing arrangement. Johnson also did not notify Stevanus that he did not carry professional-liability insurance.

The attorneys settled Stevanus’s claim for $65,000 and deposited the funds in Johnson’s client trust account, of which Johnson indicated he sent $7,500 to Stevanus, allotted $21,500 for attorney fees, and retained a $36,000 account balance. Johnson actually sent $37,500 to Godles in three checks, and while he claimed the account had a $36,000 balance, a $5,000 check he sent to Godles was twice returned because the bank had placed a hold on the account.

Johnson testified he received $7,500 for his services, sent Stevanus $7,500 and that the $37,500 he had sent to Godles was to cover Godles’ fee, and to pay Stevanus’s outstanding medical bills. However, Johnson failed to account for the remaining $12,500, and the professional conduct board found he either failed to maintain or refused to produce receipts, invoices, ledgers, or any other material documenting his handling of Stevanus’s funds.

The board found he violated several rules in the matter, including failing to maintain certain records regarding client funds and failing to promptly deliver funds to a client. The board also found several instances where Johnson accepted fees from clients and failed to perform the promised services.

“The board recommends that we indefinitely suspend Johnson from the practice of law with no credit for the time served under his interim default suspension based, in part, on findings that he neglected 11 separate client matters and that he failed to reasonably communicate with at least one client, maintain records regarding client funds in his possession, refund unearned fees on the termination of his representation, and cooperate in no fewer than 14 disciplinary investigations,” the opinion stated.

Board Considers Johnson’s Sanction
The opinion noted that the board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it.

The board found Johnson acted with a dishonest and selfish motive, engaged in a pattern of misconduct that involved multiple offenses, initially failed to cooperate in the disciplinary process, harmed multiple clients, and failed to make restitution, noting he owes about $13,000 to 15 former clients.

The board also found Johnson had no prior disciplinary record, made full disclosure to the board, and cooperated with the disciplinary process once he retained a lawyer.

In addition to the suspension, the Court ordered him to pay restitution to his clients, and in order to be reinstated, he will have to submit to a mental-health evaluation by the Ohio Lawyers Assistance Program (OLAP), enter into an OLAP contract, and comply with all recommendations from OLAP and his treating professionals.

2014-0136 and 2014-1403Lorain Cty. Bar Ass. v. JohnsonSlip Opinion No. 2017-Ohio-6869.

Pickrel Overstates Hours
Pickrel has been registered as an inactive attorney since 2005, and in 2016 the Office of the Disciplinary Counsel alleged she violated several professional conduct rules by overbilling a law firm for more than $87,000 for nonattorney, document-review services.

In 2005, Pickrel became an independent contractor for the Ulmer & Berne law firm performing document review services for the Cincinnati office. In 2012, she started working on a large project in which she was paid $65 per hour. The arrangement required she perform her work on the firm’s secured website and it was only possible to do the work while logged on.

Twice a month Pickrel would report via email the amount of time she worked in a two-week period and that figure was logged into a separate firm system used to generate her payment. From 2012 to 2015 she collected $125,000 working on the project.

In December 2015, a firm associate discovered a discrepancy between the number of hours Pickrel reported for the last two weeks of November and the hours she was logged onto the secure website. When notified, Pickrel alleged the application she used to track her hours was “all screwed up” and her time may have been inaccurate for the past month.

The firm conducted an audit and found Pickrel overbilled the firm by more than $87,000 during a four-year period, with excess billing accounting for up to 89 percent of her annual compensation. When contacted by the firm partner in charge of the project, Pickrel stated she was a bad record keeper and had computer trouble, but eventually admitted to her misconduct. She requested an opportunity to reimburse the company and paid $87,260 in 2016.

The board found she violated the rules by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The opinion stated that while Pickrel was not registered as an active attorney, the conduct rules still apply.

The board found Pickrel acted with a dishonest or selfish motive, engaged in a pattern of misconduct, and committed multiple offenses. It also found she had no prior disciplinary record, made timely restitution, fully disclosed her behavior to the board, cooperated in the disciplinary process, and voluntarily refrained from the practice of law.

Pickrel also established she had a mental-health disorder, submitting evidence that she was diagnosed with dysthymia in 2016, and had been treating the disorder with a therapist. The therapist has certified that Pickrel is able to return to the competent, ethical, professional practice of law.

“Having considered Pickrel’s lengthy pattern of dishonest and deceitful billing practices, the applicable mitigating factors, including her contributing mental disorder and her prompt payment of full restitution, and the sanctions we have imposed for comparable misconduct, we agree that a two-year suspension with one year stayed on the conditions recommended by the board is the appropriate sanction in this case,” the Court wrote.

The Court stayed the second year of her suspension on the condition that she continue to participate in counseling, remain in compliance with her OLAP contract, and not engage in further misconduct. If she is reinstated to the active practice of law, she must serve a two-year period of monitored probation.

2017-0225Disciplinary Counsel v. PickrelSlip Opinion No. 2017-Ohio-6872.

(Mike Frisch)

July 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

From $3.80 To $201,048.43

The Ohio Supreme Court permanently disbarred an attorney for misconduct described in the report of the Board of Professional Conduct.

From the court's opinion

According to the parties’ stipulations, from 2007 to 2014, Little primarily represented plaintiffs in personal-injury cases. During that time period, she misappropriated $363,444.30 in settlement funds in 23 separate client matters. With one exception, she engaged in a similar pattern of misconduct in each of those client matters. Specifically, after settling her clients’ cases, she deposited the settlement funds into her client trust account and paid out her clients’ share and amounts for her attorney fees—if she charged a fee—and other expenses. However, she wrongfully withheld all or portions of the remaining settlement amounts that should have been either paid to various lienholders or co-counsel or held in trust pending discovery of any additional liens...

The amounts that Little misappropriated in the 23 client matters ranged from $3.80 in one case to $201,048.43 in the McIntires’ case. In most of the matters, she stole between $500 and $11,000 from her clients’ settlement funds. In addition to using the misappropriated funds to pay liens in unrelated cases, she also used the money for her own personal and professional benefit, including to pay office-related expenses.

Little’s misconduct in one of the 23 client matters identified in relator’s complaint was slightly different than the others. As alleged in count 11, she represented Ashley Ruth in a personal-injury matter and after settling the case, she deposited $440,890.19 into her client trust account. She should have disbursed $281,951.80 to Ruth but instead disbursed only $281,451.79, and therefore misappropriated $500 from her client. Little also failed to promptly withdraw her share of attorney fees from her client trust account, and she ultimately withdrew only $43,899 of the $75,000 in fees that she was entitled to, which resulted in her commingling personal and client funds.

 In September 2014, Little self-reported her misconduct to relator and later commenced repaying some of the amount that she had stolen. At the time that the parties entered into stipulations, Little still owed $104,989.65 in restitution. She also admitted that since 2007, she had failed to maintain required ledgers for her client trust account, which made it difficult to determine the source and purpose of many of her transactions.

The court concluded that the only sanction for such conduct was permanent disbarment. (Mike Frisch)

July 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Misconduct Alleged In Alcohol And Drug Related Incidents

The Illinois Administrator has filed a complaint alleging

On October 13, 2016, Respondent left her home alone, driving a white pickup truck. Respondent drove to Bogies Sports Bar ("Bogies") near the intersection of Chapin Street and Liberty Street in Morris, Illinois. After leaving Bogies, Respondent crashed her truck into a parked utility vehicle.

On October 13, 2016, at about 11:20 p.m., Mia Shannon ("Shannon"), a concerned citizen, called 911 about a car crash on Chapin Street. Shannon saw Respondent’s white truck driving on west Chapin Road and then saw the truck crash into a parked utility vehicle. Morris Police Department Officer Mark Vanderploeg was dispatched to the area to investigate.

On October 13, 2016, at 11:23 p.m., Officer Vanderploeg found a white pickup truck on Chapin Street. The truck had crashed into a parked heavy duty utility vehicle. Respondent was not inside or near the truck. Inside the truck, the officer found a deployed airbag with blood on it, an earring in the driver seat, an empty plastic cup next to spilled liquid and a strong odor of alcohol, drug paraphernalia with residue, cannabis and pills.

After conducting some investigation about the circumstances of the crash, Officer Vanderploeg, found Respondent at the hospital and spoke with her

Respondent told officer Vanderploeg that her truck had been stolen. Respondent had crashed her truck on Chapin road. Her statements that her truck was stolen were false and she knew they were false. Respondent’s speech was slurred and she smelled of alcohol.

Count Two

On December 24, 2016, at 1:42 a.m., Deputy Butterfield and Sergeant Clampitt, both of Grundy County Deputy Sheriff Department, located Respondent inside Honest Abe’s Tavern ("Abe’s"), a local bar in Will County. Respondent was wanted in Will County on a failure to appear warrant stemming from a Joliet traffic ticket. Deputies entered the bar and saw Respondent inside of Abe’s. Deputies told security that they were there to speak to Respondent. Security located Respondent and informed deputies of her exact table inside the bar.

Security informed Respondent that the police were there to speak with her. Respondent then picked up her jacket and walked over to the bar section of Abe’s. Respondent had two small plastic bags containing cocaine and cannabis inside her jacket pocket. Respondent walked over to Philip Centracchio ("Centracchio") and handed him both plastic bags. Respondent and Centracchio were immediately detained by deputies.

While being detained by deputies, Centracchio stated that the plastic bags did not belong to him and that Respondent had walked up to him and handed them to him. The contents of the plastic bags were suspect cannabis and cocaine and one bag field tested positive as cocaine.

On December 24, 2016, Respondent was arrested for possession of cocaine and charged with Possession of a Controlled Substance in case number 2016CF282 in Grundy County. A custodial search of Respondent found drug paraphernalia (a bowl) with cannabis residue. The suspect cannabis was entered into evidence. As of the date of this filing, the case remains pending in Grundy County.

 Count Three

 On January 15, 2017, Respondent visited Fergy’s Bar & Grill ("Fergy’s") on Main Street in Seneca, Illinois. Also on January 15, 2017, Office Michael Hettelle was on routine patrol in and around Main Street in Seneca. Shortly after 3:00 a.m., Respondent and one other person were in the parking lot of Fergy’s yelling at two people on the other side of the parking lot. Respondent and the one person with her got into a pickup truck with the Respondent driving.

Respondent drove out of Fergy’s parking lot on to the roadway. After driving for approximately two blocks, Respondent drove through a stop sign and was pulled over by Officer Hettelle. Inside the car, Respondent was driving with a plastic cup containing alcohol in the center console next to Respondent. Respondent’s breath smelled of alcohol and Respondent admitted to Officer Hettelle that she had consumed alcohol before driving that evening. Officer Hettelle also smelled alcohol on Respondent’s breath, observed her eyes to be glassy and red and her speech to be slurred. Respondent agreed to submit to standardized field sobriety test ("SFST"). Respondent failed all SFSTs that were administered. Respondent refused to submit to a preliminary breath test.

Respondent was arrested for Driving Under the Influence ("DUI") and taken to the police station. Respondent was also offered a breath alcohol test at the police station and declined. Respondent was issued a Summary Suspension. Respondent was issued citation numbers 11791, 11792 and 11794 for Disobeying a Stop Sign, Driving Under the Influence and Illegal Transportation of Alcohol by Driver respectively. Respondent was given a notice to appear in court on March 3, 2017 at the LaSalle County Courthouse. The cases were assigned case numbers 17 TR 465, 2017 DT 21 and 17 TR 466. As of the date of this filing, the cases remain pending in the LaSalle County Courthouse.

The attorney also is charged in an instance of client-related neglect. (Mike Frisch)

July 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 19, 2017

Quicken Loans Not Engaging In Unauthorized South Carolina Practice

The South Carolina Supreme Court absolved Quicken Loan on civil allegations of unauthorized law practice

We accepted this declaratory judgment matter in our original jurisdiction to determine if Respondents/Petitioners Quicken Loans, Inc. (Quicken Loans) and Title Source, Inc. (Title Source) have engaged in the unauthorized practice of law (UPL). In their complaint, Petitioners/Respondents Vance L. and Thelma Boone, Travis G. and Theresa S. Messex, and Brian and Kelli Johnson (collectively "Homeowners"), alleged the residential mortgage refinancing model implemented by Quicken Loans and Title Source in refinancing the Homeowners' mortgage loans constitutes UPL. In addition to seeking declaratory relief, Homeowners' complaint also sought class certification and requested class relief.

We referred this matter to a Special Referee to take evidence and issue a report containing proposed findings of fact and recommendations to the Court regarding the UPL issue, as well as on the issues of class certification and class relief. Following an evidentiary proceeding during which the parties submitted extensive testimony and documentary evidence, the Special Referee issued a report proposing various factual findings and recommending this Court declare that Quicken Loans and Title Source engaged in UPL but opining that neither class certification nor class relief were appropriate under the circumstances. Quicken Loans and Title Source took exception to the Special Referee's proposed findings of fact and UPL recommendation. Homeowners took exception to Special Referee's recommendation that class certification and class relief were unwarranted under the circumstances.

No UPL

We find the record in this case shows licensed South Carolina attorneys were involved at every critical step of these refinancing transactions, as required by our precedents. We also find that requiring more attorney involvement would not effectively further our stated goal of protecting the public from the dangers of UPL. We therefore respectfully reject the Special Referee's conclusion that Quicken Loans and Title Source committed UPL. Because we reject the finding of UPL, we need not address the parties' ,remaining exceptions, including Homeowners' request that we declare their mortgages void and certify this case as a class action.

...we believe requiring more attorney involvement in cases such as this would belie the Court's oft-stated assertion that UPL rules exist to protect the public, not lawyers...we do not believe requiring more attorney involvement would appreciably benefit the public or justify the concomitant increase in costs and reduction in consumer choice or access to affordable legal services. Cf. In re Unauthorized Practice of Law Rules, 309 S.C. at 306, 422 S.E.2d at 124–25 (recognizing the strict licensing requirements for becoming a Certified Public Accountant (CPA) and holding "that allowing CPAs to practice in their areas of expertise, subject to their own professional regulation, will best serve to both
protect and promote the public interest").

(Mike Frisch)

July 19, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Sex And Reinstatement

The Palmetto State reports on an attorney's reinstatement effort

A Charlotte attorney, accused of mixing sex and the law, has asked for his license back after he was caught sleeping with a woman he was suing at the same time.

Steven DeCillis, according to a 2013 complaint by the North Carolina State Bar, “elevated his sexual interests above the best interests of his clients.”

The complaint says that while representing one woman in 2010, the lawyer improperly began representing a second woman his original client was suing. To compound matters, he then began having sex with his new client.

In 2013, his law license was suspended for five years, and DeCillis was ordered to seek psychological treatment for what is described in the complaint as a “sexual compulsive disorder.”

Now, DeCillis wants to resume his legal practice that began 24 years ago when he joined the North Carolina bar. Four years into his suspension, he’s scheduled to meet in Raleigh with a star bar disciplinary panel in October in hopes of having his law license reinstated. He did not respond this week to Observer emails and texts seeking comment.

 The case marks the second time the bar has confronted DeCillis about his behavior around women.

The state bar oversees North Carolina’s legal profession, while also attempting to protect the public from unscrupulous attorney practices.

The language of the organization’s findings against DeCillis summarizes the case this way:

“Defendant’s decisions to ... represent a client and have sex with that client at the same time he was suing that client on behalf of another client evidence a lack of judgment, trustworthiness and integrity.”

According to the complaint, here’s what happened:

In April 2010, DeCillis agreed to take the case of a woman who had been injured in a car wreck and wanted to sue the other driver. DeCillis filed her complaint that August.

Ten months later and while the lawsuit was still pending, DeCillis, without alerting his original client, agreed to represent the other driver in a series of unrelated legal matters.

At some point in this new business relationship, DeCillis also began sleeping with the other woman, the bar says. That represented a blatant conflict of interest that “violated the trust of both his clients and the justice system,” the complaint says.

The original client did not learn the full scope of DeCillis’ entanglements until August 2011, when the attorney presented her with a settlement check from the lawsuit and a document informing her of his personal and professional ties to the other woman.

While the bar was investigating the case, DeCillis underwent therapy for what he learned to be his compulsive behavior. According to the complaint, the attorney’s medical provider determined DeCillis “should not have unsupervised contact with female clients for the foreseeable future.”

This is not the first time DeCillis’ actions around women have come to the bar’s attention. In 2003, it threw out a complaint against the attorney for lack of evidence, but it noted a pattern sexually aggressive behavior “not in accord with accepted professional practice.”

It added this warning: “Similar conduct in an attorney-client relationship would be the basis for discipline and could result in suspension and/or disbarment.”

In its suspension order a decade later, the bar gave DeCillis the option of applying for reinstatement after three years – provided , among other conditions, he can prove he has undergone extensive psychological treatment and “does not currently pose a sexual threat to females with whom he comes in contact with professionally,” including clients and witnesses.

He must also undergo an assessment by a therapist of the bar’s choosing.

Hat tip to Reddit Bar Lawyer. (Mike Frisch)

July 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 18, 2017

Fake Asylum Stories Get Lawyer Disbarred

Readers of this blog with an interest in bar discipline processes may be aware that New York imposes automatic disbarment when an attorney is convicted of a felony under New York law.

Where an attorney is convicted of either federal or state offenses outside the Empire State, the courts look to whether the felony is "substantially similar" to a New York felony. If it is, disbarment follows as night follows day.

This brings us to a disbarment imposed today by the Appellate Division for the First Judicial Department.

The crimes

On April 14, 2014, respondent was found guilty, after a jury trial, in the United States District Court for the Southern District of New York, of conspiracy to commit immigration fraud in violation of 18 USC § 371, a felony. Respondent was sentenced to 60 months imprisonment, followed by three years of supervised release, fined $12,500, and a forfeiture money judgment of $7,245,000 was imposed against her jointly and severally with her codefendants.

Respondent's conviction arises from her participation in a scheme that involved the submission of hundreds of fraudulent asylum applications to federal immigration authorities on behalf of Chinese aliens by two Chinatown law firms operated by respondent. Respondent initially operated a law firm under the name of Law Offices of Feng Ling Liu. Later, she changed the name of the law firm to Moslemi and Associates, Inc. Respondent and her co-conspirators created and submitted asylum applications containing false stories of persecution purportedly suffered by alien applicants.

Specifics

At bar, respondent was convicted after trial, where she did not testify, thus, there are no plea admissions. Nevertheless, respondent's conduct as described through evidence and testimony in the trial record, that she supervised and actively participated in the preparation of falsified asylum applications which were filed with immigration authorities, when read in conjunction with the indictment upon which she was found guilty, corresponds to the New York felony of offering a false instrument for filing in the first degree (Penal Law § 175.35). Consequently her conviction is a proper predicate for automatic disbarment under Judiciary Law § 90(4)(a) and (b) (see e.g. Matter of Skelos, 142 AD3d 196 [2d Dept 2016] [trial record established essential similarity between federal felony and New York felony]; Matter of Simels, 94 AD3d at 111).

Respondent's former employee testified that he was hired by respondent as a "storywriter" to craft false stories of persecution for clients seeking asylum. He testified that at the time of hiring it was his understanding that the stories he would be writing were "fake." He further testified that during the two years he worked at the firm, he worked on hundreds of asylum applications and, out of those applications, he believed less than 20 were "real, meaning they stated a real claim for asylum based on actual events." The employee explained that even the applications that were "real" were changed to provide a more sympathetic case or circumvent certain immigration requirements for asylum. The former employee generally testified that respondent supervised him and would review, edit, or provide comments to him as a "storywriter" employee, and he gave specific examples of such conduct.

Another employee, who began as a paralegal and was later admitted to the New York bar, [*3]testified that she worked on hundreds of asylum applications during her three years at the firm. She stated that approximately 10% of cases were based on actual facts involving persecution, and that some asylum applications containing actual facts were prepared in a manner to make their stories look better. She also admitted to writing fake attesting letters in support of clients' asylum claims and that these letters were often reviewed and approved by respondent prior to filing with the USCIS.

 In addition to the above witness testimony, the Judge's comments at sentencing further support that respondent's conduct is equivalent to a New York felony. The Judge stated that the evidence established that respondent was the leader of the conspiracy, which had as its goal "to trick immigration officials into granting asylum to countless inapplicable applicants", she "[was] the one who benefitted most from this most egregious effort to defraud our government," and, unlike many of her codefendants who accepted responsibility for their criminal conduct, respondent continued to blame others.

Notably, the court looked at the facts and found sufficient evidence of substantial similarity

The record of respondent's conviction is "conclusive evidence of [her] guilt" in this disciplinary proceeding and the trial testimony cited by the Committee, read in conjunction with the indictment upon which respondent was found guilty, establishes "essential similarity" between the offenses at issue (22 NYCRR 1240.12[d]; Matter of Margiotta, 60 NY2d at 150).

(Mike Frisch)

 

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Overreach Draws Reprimand

There seem to be a significant number of recent improper withdrawal from representation disciplinary matters.

The New Jersey Supreme Court reprimanded an attorney whose fee demand on discharge was found to be more than a tad excessive. 

From the Disciplinary Review Board letter

In late August 2013, [client] Tosun’s former husband filed another motion to terminate alimony and to reduce child support payments. On September 4, 2013, respondent informed Tosun that he required a new retainer for this latest because he had exhausted the fixed fee she had paidin May 2013.

Tosun objected to the request and retained new counsel. Counsel sought the turnover of Tosun’s file and a refund of a portion of the $35,000 retainer, noting that respondent had performed services during a period of fewer than two months in 2013. Respondent refused to refund the retainer, prompting Tosun to file a fee arbitration request, in December 2013. The fee arbitration panel awarded Tosun $34,100, concluding that respondent was entitled to only $900. On appeal, the Board upheld the fee arbitration panel’s determination. Respondent, thereafter, promptly refunded $34,100 to Tosun.

As per usual, the tepid New Jersey response to misconduct

The Board determined that respondent’s fee was so excessive that it evidenced an intent to overreach. Such a finding ordinarily results in the imposition of a reprimand.

The DRB noted the absence of prior discipline. (Mike Frisch)

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Motorcycle Riding And The Duty To Cooperate

An attorney who defaulted on disciplinary charges has been disbarred by the Arizona Presiding Disciplinary Judge

The bar’s investigator found Ms. Morley at her home on October 19, 2016. She told the investigator she knew about the charges , knows she needs to respond, health issues arose  in August at about the time she received this charge (although the State Bar transmitted the charge in June), she thinks she has lupus and takes some kind of medication for it, and she may have some type of connective tissue disease but cannot obtain an unambiguous diagnosis due to insurance coverage issues and her doctor’s retirement.

Ms. Morley’s active Facebook profile that she updated in July and August, 2016, shows her looking healthy and riding a motorcycle.

The attorney's misconduct involved four client matters

ER 1.16(d) provides that upon termination of representation a lawyer must take reasonable steps to protect the client’s interest, such as giving reasonable notice, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payments of unearned fees or unincurred expenses. See, e.g., In re Mitchell, 727 A.2d 308 (D.C. 1999). She did none of these and more than ignored her duties. She was actively avoided her duties.

In similar manner she knew that the State Bar was screening her for possible ethics and professionalism violations in these four cases, that she was required to respond, and did not respond. She knew that she was unresponsive, unprepared, misled the court and failed to serve her clients resulting in her essentially abandoning and injuring them financially...

Ms. Morley deserted her clients and abdicated her duties to the court and the State Bar. She harmed the public, the profession and the administration of justice. Disbarment is the appropriate sanction and meets the objective of attorney discipline, which is to deter other attorneys from engaging in similar misconduct and to instill public confidence in the integrity of those lawyers who conduct themselves appropriately, ethically, and responsibly.

The presiding judge also imposed a restitution requirement in each matter. (Mike Frisch)

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Bicycle Accident Led To Representation Lapses

An attorney who suffered a shattered pelvis in a bicycle accident has agreed to a six-month suspension for ethical lapses in cases that were ongoing at the time of the accident.

The Arizona Presiding Disciplinary Judge accepted a consent to the discipline. 

In four counts, Mr. Nelson accepted fees from clients and then, because of unforeseen medical reasons he experienced in 2016, failed to provide the legal services for which he was contracted to perform. Mr. Nelson further failed to safekeep client property and return unearned fees upon request. Because of his medical issues both physical and mental, Mr. Nelson determined he was no longer able to represent clients and was forced to withdraw from all client matters. In Count Three, Mr. Nelson failed to adequately communicate and diligently represent his client when he failed to comply with requests for discovery and to respond to a motion for summary judgment...

The parties agree that the presumptive sanction is suspension and that the following aggravating/mitigating factors are present in the record: 9.22(a) prior disciplinary offenses; 9.32(c) personal or emotional problems, 9.32(e) full and free disclosure and 9.32(l) remorse. Mr. Nelson is unable to work, has removed himself from the practice of law, and currently receives social security/disability payments.

The sanction also requires probation and restitution to the affected clients. (Mike Frisch)

 

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Domestic Violence Conviction Leads To Interim Suspension

The Arizona Presiding Disciplinary Judge has ordered the interim suspension of an attorney convicted of felony domestic violence.

The web page of the State Bar reports

The Presiding Disciplinary Judge of the Arizona Supreme Court issued an order placing Thomas A. Germuska on interim suspension.

On March 29, 2017, Thomas A. Germuska was convicted by a jury in Maricopa County Superior Court of a Class Four Felony Domestic Violence, and a Class One Misdemeanor Assault, Domestic Violence committed on June 26, 2016.

As provided for Arizona Supreme Court Rule 61(d), the interim suspension shall remain in effect until final disposition of all pending disciplinary proceedings against Germuska.

Thomas A. Germuska was ordered to notify current clients of his interim suspension and shall not accept new clients. He was also ordered to attend a telephonic status review on Dec. 12, 2017 at 9:30 a.m.

Germuska’s interim suspension was effective June 13, 2017.

Such orders typically remain in place until disciplinary proceedings are completed or the conviction is vacated or overturned. (Mike Frisch)

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

It's The Client's File

A common error that often leads to a disciplinary sanction is the failure to comply with the ethical obligation to provide the client file to either the client or successor counsel when the representation terminates.

A Michigan attorney had been reprimanded for the misconduct

Based upon respondent's admissions and the stipulation of the parties, the panel found that respondent failed to surrender papers and property to which a client was entitled, in violation of MRPC 1.16(d); failed to promptly make a criminal defendant's file, including all discovery material obtained, available to appellate counsel upon request, in violation of MCR 6.005(H)(5); and failed to preserve a criminal defendant's file for at least five years after the file is disposed of in the trial court, in violation of MCR 6.005(H)(5). Respondent was also found to have violated MCR 9.104(1)­(3).

Note the Michigan requirement regarding preservation of the file in a criminal case, an obligation not found in the Model Rules. (Mike Frisch) 

July 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 17, 2017

Estate Of Delay

The Indiana Supreme Court has imposed a stayed 30-day suspension and probation for an attorney's mishandling of several estate matters.

Count 1. In February 2009 Respondent was retained to serve as the attorney for an estate. From 2010 through 2016, Respondent failed to keep the co-executors reasonably informed about the status of the case, despite several requests from one of the coexecutors. Respondent failed to timely file the estate’s income tax returns and inheritance tax returns. In November 2016, after administering the estate, Respondent closed the estate.

Count 2. Between 1991 and 2014, Respondent filed 21 separate estates in LaGrange Circuit Court that were not closed by October 24, 2016. Since that time, Respondent has closed 14 of those 21 estates. None of the personal representatives or beneficiaries of these old estates have complained of Respondent’s handling of those cases. The parties cite no facts in aggravation. In mitigation the parties cite Respondent’s lack of prior discipline, her making of restitution, her cooperation with the disciplinary process, her remorse, and her recent progress in closing the majority of old estates.

Note the comment that provides additional information about the attorney's political career (link here to Ballotpedia.). (Mike Frisch)

July 17, 2017 in Bar Discipline & Process | Permalink | Comments (2)

Sunday, July 16, 2017

Tennessee Reinstates Attorney

The Tennessee Supreme Court has reinstated an attorney convicted in 2008 and disbarred for bringing contraband into a correctional facility.

She pled guilty in part on this proffer

And [the Defendant] did in fact drop off—I believe it was a Wendy’s cup that had marijuana in it, had tobacco in it, which is contraband in the jail, it’s not allowed in the jail, and had fifty-eight Xanax. I think there were eight Xanax bars, and then the rest were Xanax tablets, which is Alprozolam, a schedule IV controlled substance. That cup was confiscated by Detective Bailey.

The plea further indicates that the attorney was romantically involved with the inmate. 

From the presentencing report

The report shows that the fifty-year-old Defendant did not have a prior criminal record other than three speeding tickets. She was married but separated from her husband. In 2004,she graduated with a juris doctorate degree from Vanderbilt University Law School. She reported employment with the Legal Aid Society of Middle Tennessee in 2003 and with a law firm, Byrd & Associates, PLC from August 2004 to February 2006. After February of 2006, she was self-employed. The Defendant surrendered her law license at the guilty plea hearing.

The above opinion involved a failed attempt to get diversion for the offense. (Mike Frisch)

July 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 14, 2017

Reinstated For Pro Bono Only

An interesting order from the Delaware Supreme Court involves an attorney who was suspended for one year in 2010 and thereafter placed on disability inactive status.

He then transferred to retired in September 2014.

In 2017, he sought reinstatement for the limited purpose of providing pro bono legal services on a limited basis. 

After a hearing, the Office of Disciplinary Counsel and the Board on Professional Responsibility supported the limited reinstatement, which the court adopted with a two-year probationary period. (Mike Frisch)

July 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sanctioning Dishonesty In D.C.

An attorney with an extensive disciplinary record who was previously sanctioned for CJA voucher billing misconduct lied in a recusal motion and before a hearing committee and thus should be suspended for one year, according to the District of Columbia Board on Professional Responsibility.

The United States Attorney had declined to prosecute the billing fraud if the attorney made restitution, which he did.

Here, he falsely represented in a recusal motion that the judge had filed the voucher bar complaint (he had not) and that the complaint had been dismissed (it had not), as well as gave false testimony in the bar hearing.

The board viewed the three year and fitness sanction sought by Disciplinary Counsel as unduly harsh

Here, Respondent’s conduct is simply less severe [than cases cited by Disciplinary Counsel]. Like those cases involving extended periods of suspension beyond a year, Respondent lied in his recusal motion to Judge Canan; lied to the Hearing Committee about the reason for including misrepresentations in the recusal motion; and was previously suspended in the Voucher case for making reckless misrepresentations on CJA vouchers, and received five informal admonitions arising out of other matters (none of which involve dishonesty). However, his conduct neither involved the protracted and repeated dishonesty nor any other overt act to conceal the dishonesty as found in the three year suspension cases. In addition, Respondent’s conduct did not involve the extensive neglect present in Bradley. Thus, while the misconduct here, a false statement to a court and false testimony to the Hearing Committee, is unquestionably serious, it is not as serious as the conduct in Bradley or the three-year suspension cases.

But did propose a fitness requirement

we find that Disciplinary Counsel has proven by clear and convincing evidence that there is a serious doubt as to Respondent’s ability to practice law following his suspension. Here, Respondent’s misconduct was very serious, as it involved multiple instances of dishonesty—to the court (in the recusal motion) and the Hearing Committee (in his false testimony)—even if such dishonesty did not occur over a protracted period of time. The Court has consistently held that “‘honesty is basic to the practice of law, and that lawyers have a greater duty than ordinary citizens to be scrupulously honest at all times.’” In re Baber, 106 A.3d 1072, 1077 (D.C. 2015)(quoting Guberman, 978 A.2d at 209 n.10). Thus, when a lawyer’s misconduct creates a serious doubt as to a lawyer’s honesty, it creates a serious doubt as to his or her ability to practice law. 

The case is In re Harry Tun. (Mike Frisch)

July 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorney-Executor Sells Estate Property To His Spouse At A Bargain And Bargains For A Six-Month Suspension

An attorney who had drafted estate documents appointing himself as executor and on the client's passing  had proceeded to sell estate property to his own spouse at a bargain price has accepted a six-month suspension by the New Jersey Supreme Court.

According to a letter of the Disciplinary Review Board, he failed to notify residuary beneficiary St. Mary's Church.

Respondent obtained three appraisals on [deceased client] Berry’s residence as follows: (i) from David Bossart in the amount of $90,000, (2) from Timothy Piso in the amount of $175,000, and (3) from Stuart Appraisal Company in the amount of $275,000. David Bossart was not an MAI appraiser, as was required by the will.

And that appraisal brought down the price

Respondent averaged the three appraisals to arrive at $180,000 as the purchase price, and then sold the property, for that amount, to his wife, by deed dated February 4, 2015. Respondent was familiar with the property, having grown up in the area. He also was aware that the tax-assessed value of the property was $407,800 and the ratio of assessed to true value was less than 100%. Respondent never conferred with the residuary beneficiary, St. Mary’s Church, regarding the sales price. Respondent had previously informed neither Berry of his interest in purchasing the property, nor the residuary beneficiary of his interest, after Berry’s death. Prior to Berry’s death, however, he had expressed to third parties his interest in purchasing the property.

Respondent returned the property to the Berry estate only after St. Mary’s Church learned of the sale to respondent’s wife and after Boyd filed a grievance. On September 28, 2015, he transferred the property to St. Mary’s Church, which entered into a contract of sale for $569,000, several weeks later, following a bidding war.

As is usual, the DRB studies the depressing landscape of sanctions for comparable cases but finds enough bad stuff to suspend

Respondent is a former deputy surrogate for Morris County, responsible for overseeing estate administrations and litigated matters with respect to estates and guardianships in the Superior Court. Thus, he has specialized knowledge in the area of estate administration and certainly should have known better than to engage in such deceitful conduct. Respondent engaged in a longterm scheme to obtain his client’s property. The record suggests that he coveted this property for some time. Respondent’s conduct as a whole, is far more egregious than that of Hurd. Based on the totality of the circumstances, including the mitigating and aggravating factors, the Board determined that a six-month suspension is warranted for respondent’s misconduct.

That's still more than light for this misconduct. (Mike Frisch)

July 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

On The Beach House

The Pennsylvania Supreme Court accepted the five-year consent suspension of an attorney who had bestowed "certain items of value" on former Luzerne County Judge Michael Toole 'including the use of [his] beach house, in exchange for Judge Toole's appointment of a particular arbitrator before the court."

The Toole prosecutor had hailed the attorney's cooperation in that investigation.

The attorney had been interim suspended since December 2010. The suspension is imposed retroactive to the date of the interim suspension.

Judge Toole was disbarred and sent to prison.

And the Toole misconduct was relatively small potatoes compared to the heinous misconduct of other Luzerne County judges  in the notorious Kids for Cash case.

The link takes you to the recent discipline page. The case is In re Harry Carboni. (Mike Frisch)

July 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Perfidious Albion

An attorney from Albion who was arrested for misuse of estate funds has resigned from the Bar of the Indiana Supreme Court.

WISHTV.com8  reported  on her arrest and included a rather unfortunate mug shot

A Noble County attorney for an estate was arrested Monday for allegedly utilizing her position to make unauthorized cash withdrawals from the estate’s account.

The arrest stemmed from an investigation that began in March of last year, which found that Diane Miller, 60, made unauthorized withdrawals from the estate totaling $63,000, according to a press release from the Noble County Sheriff’s Department.

Miller was charged with one felony count of theft. She was later released on her own recognizance, promising in writing to show up for future court appearances and not engage in illegal activity, the press release said.

A special prosecutor for the Kosciusko County Prosecutors Office has been appointed to prosecute the case.

(Mike Frisch)

July 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Bars And Politics

We recently reported on disciplinary charges filed in Ohio that involve allegations of verbal abuse of an employee.

Disciplinary Counsel Scott Drexel charged that the abuse

By the foregoing conduct, as well as other conduct of a similar nature, respondent violated the following provision of the Rules of Professional Conduct:

( a) By verbally insulting and harassing his employee on multiple occasions, respondent violated Prof. Cond. R. 8.4(h) [ engaging in any other conduct that  adversely reflects on the lawyer's fitness to practice law].

The recent controversy over emails sent by Marc Kasowitz has resulted in a bar complaint filed with the Departmental Disciplinary Counsel for the New York Appellate Division for the First Judicial Department.

There are also reports of bar complaints filed against Attorney General Sessions (Alabama) and Kellyanne Conway (District of Columbia). 

State Bars have been notoriously reticent in taking on cases with a political tint.

In the Bush II era, virtually nothing was done to the Department of Justice attorneys who used political considerations in hiring (a Virginia reprimand for Monica Goodling) , advocated for torture and engaged in other abuses of power.

Also noteworthy is the undeniable fact that then-D.C. Bar Counsel did not contest the reinstatement of three convicted felons who got their law licenses back after the minimum five years without a speck of public notice until a court order was entered.

The favored felons are I.Lewis Libby, David Savafian and Robert Coughlin. 

In D.C., the bar powers-that-were was much more interested in pursuing whistleblowers than any other form of potential misconduct by government actors.

The most energy went into the pursuit of Jesslyn Radack and Thomas Tamm as reported by Newsweek (and notes my personal interest in these matters)

A whistleblower who sparked intense public debate about warrantless surveillance nearly a decade before Edward Snowden now faces ethics charges that could result in his disbarment.

Thomas Tamm, a former Justice Department attorney, told reporters in 2004 about the Bush administration bypassing standard legal procedure for intercepting Americans’ international phone calls and emails, and publicly outed himself weeks before President Barack Obama took office.

Tamm’s tip helped New York Times reporters James Risen and Eric Lichtblau win a Pulitzer Prize in 2006. And under Obama, who had criticized the program, the Justice Department in 2011 announced it would not bring criminal charges against him.

But on Tuesday, the D.C. Office of Disciplinary Counsel – which prosecutes disciplinary matters involving members of the D.C. Bar – unveiled ethics charges against Tamm that could result in his disbarment.

The charges allege Tamm “failed to refer information in his possession that persons within the Department of Justice were violating their legal obligations to higher authority within the Department” and “revealed to a newspaper reporter confidences or secrets of his client, the Department of Justice.”

 The D.C. Office of Disciplinary Counsel began its investigation in 2009, but the charges weren’t filed until late December and were first reported by the National Law Journal on Tuesday.

Gene Shipp, who leads the attorney-prosecuting office as disciplinary counsel, declined to comment specifically on the Tamm case, but attributed the delay in filing charges to a redoubled attempt to clear a case backlog resulting from about 1,000 complaints a year, less than half of which are investigated.

 “Sometimes we stand down when other agencies are doing things, we don’t try to get in front of the federal government,” Shipp says. 

The matter now goes to a three-member hearing committee for appraisal and then a nine-member Board on Professional Responsibility, before possible evaluation by the District of Columbia’s court system.

Some cases take a few years, others longer.

“We’re very young in the process of this case," Shipp says. “God bless anybody who has to go through this system – it’s difficult. People spend a long time becoming a lawyer and then to face charges, it’s hard. But we have to protect the public, however long it takes.”

Georgetown University law professor Michael Frisch is representing Tamm, and he knows how long the process can take. Frisch previously represented hard-charging whistleblower attorney Jesselyn Radack, a former Justice Department ethics adviser who waited a decade to learn if the office would bring charges for her exposing details about the interrogation of “American Taliban” John Walker Lindh.

“It’s unfortunate and it’s not unusual – the kind of delays the record reflect here are becoming fairly common in the D.C. Bar disciplinary system,” Frisch says. “You see a lot of cases where the investigative period takes years and then the process itself takes years once the charges are filed.”

Frisch says it’s possible the Board on Professional Responsibility will short-circuit the case by recommending no action against Tamm before it reaches court. The Office of Disciplinary Counsel would have to choose not to appeal for that to happen – but Shipp says changing his mind isn’t impossible.

“A lot of the damage of these cases is the strain and pressure of having to endure the process and the charges,” Frisch says.

 It’s unclear if possible disciplinary action within the District of Columbia would affect Tamm’s ability to practice law in Maryland, where he currently works as a public defender.
 
 Frisch says he has “no comment” on whether political motives may be in play, but Radack says she believes political persecution is at hand.

“I’ve known Tom Tamm for many years and he is one of the most ethical attorneys I know,” she says. “I believe the bar charges against him are politicized retaliation. The fact that they are bringing them more than 10 years after his revelations diminish any [inkling] of legitimacy because of stale evidence and eroded memories due to the passage of time.”

“Like in my case, I suspect that some of the witnesses against Tamm have passed away,” she says. “This has nothing to do with justice and everything to do with politics, retaliation and punishment – as do so many of the government’s actions designed to ruin whistleblowers’ careers.”

In her own case, Radack says, the possibility of bar charges “were a Sword of Damocles over my head.”

The Tamm case ended with a consented-to public censure to bring an end  to an  "investigation" initiated in 2009

(Mike Frisch)

July 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)