Thursday, May 19, 2016
An attorney who engaged in criminal contempt by violating a consent decree to cease his family business operations was suspended for one year by the New Jersey Supreme Court.
The court followed the recommendation of a majority of the Disciplinary Rrview Board.
This matter stems from respondent’s activities as an employee of a sports supplement manufacturing company, Quality Formulation Laboratories, Inc., and its related entities, American Sports Nutrition, Inc., and Sports Nutrition International, LLC (collectively QFL), which were owned and operated by respondent’s father, Mohamed Desoky, respondent’s brother. On July 12, 2010, the United States Attorney’s Office filed a petition in the District Court for an order to show cause why defendants QFL and Mohamed Desoky, and contemnor defendants Omar Desoky and respondent, should not be held in criminal contempt. On April 26, 2011, the United States Attorney filed an amended petition.
The contempt led to a prison sentence.
Here, respondent’s misconduct was not complicated. He continued to work at his father’s food supplement plant, knowing that the consent decree required its operations to cease. Respondent blamed himself for having advised his father in a manner that resulted in violations of the consent decree. Respondent ultimately received a twenty-four month prison term for his crimes.
Also there was an incident of domestic violence
According to police records, [respondent] and his wife had a verbal disagreement which quickly escalated into a physical altercation. The offender yelled at his wife and called her names. He then grabbed her, laid her over his knees, and slapped her buttocks repeatedly before dropping her on the living room floor. When the wife tried to call for help, the offender dragged her to the bedroom and covered her mouth to prevent her from yelling. [Respondent] was arrested and transported to police headquarters, where he admitted the conduct described above. On January 14, 2014, in the West Paterson Municipal Court, the charge was dismissed.
A dissent from the DRB favored disbarment
Before us, respondent contended by way of defense/ mitigation that, despite respondent’s advice to the contrary, his father moved the family business to New York to bypass the prohibition of the consent decree. In short, before us respondent disavowed his testimony at the time of his sentencing before Judge Brown.
Respondent cannot have it both ways. Either he was untruthful before Judge Brown or he was untruthful in his presentation before us. Regardless of when he was untruthful, that untruthfulness, taken together with his criminal conviction, warrants disbarment.
A misdemeanor conviction for permitting drug use on premises has drawn a stayed six-month suspension from the Ohio Supreme Court.
In 2011, while in law school, Glaser leased a house in Cincinnati. Her minor daughter and then long-time boyfriend, Jackie Sanders, lived in the home with her, although Sanders’s name was not on the lease. Glaser claims that while she was in school, her relationship with Sanders began deteriorating: he was not permanently employed, he was drinking heavily, and he could be abusive to her at times. In 2013, after graduating from law school, Glaser began working at the Hamilton County Public Defender’s Office. She claims that at that point, she and Sanders were essentially living in separate areas of the house and that she planned on moving out.
However, in January 2014, the police conducted a search of the home and found various illegal drugs, two digital scales, and a gun registered in Glaser’s name that was stuffed with heroin. Sanders was later charged with and pled guilty to several felonies, including trafficking in and possession of heroin, trafficking in cocaine, and having a weapon while under a disability. He was sentenced to 24 months in prison. Glaser was charged with knowingly permitting drug abuse on her premises, a fifth-degree felony, but she ultimately pled guilty to the lesser attempt charge. Following her plea, she was sentenced to pay a $100 fine.
At her disciplinary hearing, Glaser acknowledged that she had had concerns about the number of people that Sanders was permitting to come into the basement area of her home and about whether those individuals were engaging in any criminal activity. But she further testified that she had not known that Sanders had cocaine or heroin in the home, that she had not placed the heroin in her gun, and that she had never seen the digital scales in her house. She also testified that she has no plans to continue her relationship with Sanders once he is released from prison.
The court found no aggravating factors.
Six-month suspension but
with the entire suspension stayed on the conditions that she (1) submit to an assessment for domestic abuse by a professional affiliated with the Ohio Lawyers Assistance Program or by another qualified professional and comply with any recommendations made as a result of that assessment, (2) submit to monitoring by an attorney due to Glaser’s new-lawyer status, (3) refrain from any further misconduct, and (4) pay the costs of these proceedings. If Glaser fails to comply with the conditions of the stay, the stay shall be lifted and she shall serve the full six-month suspension.
The Ohio Supreme Court imposed a stayed one-year suspension for an attorney's ethics violations in several matters.
One stands out
In February 2013, Bennett met with Brittany M. Wilson (“Brittany”) to discuss the possibility of representing her in a marital dissolution or divorce proceeding. During that meeting, Bennett and Brittany discussed the documents that she would need for a dissolution, the issues that were most important to her, and what she had hoped to achieve. After the meeting, Brittany decided to retain a different attorney.
Less than four weeks later, in March 2013, Brittany’s husband, Charles Joseph Wilson (“Joe”), retained Bennett to represent him in the same matter. Bennett, however, failed to inform Joe that he had previously met with Brittany. Nor did Bennett discuss the potential conflict of interest with Brittany or Joe or obtain written waivers from them of the conflict. Instead, Bennett called Brittany and informed her that Joe had retained him. During that telephone conversation, Brittany advised Bennett that she had since hired other counsel, but he continued to discuss the dissolution proceeding with her. Indeed, he noted that based on his previous discussion with her, he believed that she and her husband were close to reaching a dissolution agreement.
The Wilsons, however, could not reach an agreement, and in October 2013, Bennett filed a complaint for divorce on Joe’s behalf. Bennett later recognized that because of his prior consultation with Brittany, he had to withdraw as Joe’s counsel. Bennett also agreed to refund the unearned portion of Joe’s retainer, which amounted to $327.50. However, at his disciplinary hearing, Bennett explained that because his former law firm had issued the refund check, he could not confirm whether Joe had actually received it.
The sanction is stayed on compliance with a number of conditions. (Mike Frisch)
A 60-day suspension was imposed by the Wisconsin Supreme Court for an attorney's misconduct in handling his mother's estate.
The attorney had defaulted on the charges and had faced a recommended suspension of two years but a majority of the court ratcheted the sanction down
We note, too, that the three counts of misconduct at issue here do not evince an extensive pattern of indifference to our ethical rules. Finally, we note that our knowledge of Attorney Roitburd's misconduct is limited to the facts alleged in the OLR's complaint and established by Attorney Roitburd's default. As a result, there is much we do not know about his work as personal representative of his mother's estate, and about the estate itself. For example, while we know that certain assets went unaccounted for, we do not know whether any mistakes Attorney Roitburd made in the administration of the estate rose to the level of dishonesty or bad faith. We do not know whether Attorney Roitburd was an heir to the estate, such that he might otherwise have been entitled to receive some amount of the assets at issue. We do not know whether his actions affected the rights and realization of payments to creditors of the estate...
In light of our resolutions of prior disciplinary actions, and in light of the unique circumstances of this case, we deem the OLR's and the referee's recommended two-year suspension to be excessive. To be clear, Attorney Roitburd should not construe this opinion as a vindication of any aspect of his misconduct or his failure to appear at any stage of these disciplinary proceedings. We simply conclude that, while Attorney Roitburd violated his ethical duties as an attorney, a 60-day suspension will be sufficient to accomplish the objectives of the lawyer disciplinary system.
Justice Abrahamson dissented and stated
(I) I disagree with the four justices joining the OLR per curiam blocking release of Justice David T. Prosser's separate writing and insisting that his writing be released at a later time. No basis exists for this action. Indeed, the four justices have violated the Supreme Court's Internal Operating Procedures (IOP).
(II) I disagree with the length of suspension imposed by the per curiam opinion. The per curiam grants Attorney Roitburd a 22-month reduction in the sanction requested in the OLR complaint to which he defaulted. There is no justification for this significant downward departure.
On Wisconsin. (Mike Frisch)
The Wisconsin Supreme Court has reversed and remanded a matter in which the Board of Bar examiners declined to recommend admission.
This is a review, pursuant to SCR 40.08(7), of the final decision of the Board of Bar Examiners (Board) declining to certify that the petitioner, Joshua E. Jarrett, has satisfied the character and fitness requirements for admission to the Wisconsin bar set forth in SCR 40.06(1). The Board's refusal to certify that Mr. Jarrett satisfied the character and fitness requirements for admission to the Wisconsin bar was based primarily on Mr. Jarrett's conduct following his second year in law school, when he committed academic misconduct by misrepresenting law school grades and information to a prospective employer. After careful review, we reverse and remand the matter to the Board for further proceedings.
We appreciate the Board's concern regarding this candidate, and we appreciate the thorough investigation the Board conducted into Mr. Jarrett's background and past conduct. Mr. Jarrett's academic misconduct raised a significant question about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar.
The applicant attended the University of Wisconsin Law School and been successful in the school's Innocence Project clinic.
But he made false statements in a summer job application
The resume and unofficial transcript that Jarrett submitted to the New York City Law Department were both false. The resume contained two falsehoods. It showed Mr. Jarrett's grade point average (GPA) to be 2.75, when it was actually 2.72. It also listed him as a staff member of the Wisconsin Law Review, when, in fact, he was not a member. The unofficial transcript listed three false grades for his coursework. It indicated that he had "B" grades, when, in fact, he had "B-" grades for all three courses.
The matter came to light when he applied for admission based on Wisconsin's diploma privilege.
a majority of this court has determined that denying Mr. Jarrett admission to the bar is simply too harsh a penalty under the circumstances presented. We appreciate the time-consuming and difficult job the Board performs in conducting its character and fitness investigations. Indeed, we find no fault with the Board's findings or reasoning in this case. The Board serves the critically important role as a gatekeeper to admission to the bar. Ultimately, however, we are persuaded that, subject to the imposition of certain conditions, Mr. Jarrett may safely be admitted to the practice of law...
...we direct the Board to certify Mr. Jarrett's admission to practice law in Wisconsin. Mr. Jarrett's admission to the practice of law in Wisconsin is contingent on his compliance with certain requirements set forth in this order as well as certain conditions on his license to practice law. Specifically, we direct the Office of Lawyer Regulation (OLR) to identify and appoint a practice monitor to serve as a mentor to Mr. Jarrett and to supervise and oversee Mr. Jarrett's practice of law and related professional activities for a period of two years following the practice monitor's appointment.
There are concurring and dissenting opinions.
PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). I would affirm the final decision of the Board of Bar Examiners (Board) declining to certify Joshua E. Jarrett's character and fitness for admission to the Wisconsin bar. I am persuaded by the Board's finding that Mr. Jarrett's conduct in connection with his efforts in 2012 to secure summer employment with the New York City Law Department was both dishonest and deceptive and that such conduct demonstrates that Mr. Jarrett has acted in a manner that is not honest, diligent, or reliable. Coupled with the Board's finding that Mr. Jarrett was not credible at the evidentiary hearing before the Board and when claiming he forgot to disclose three fairly recent separate speeding violations from Georgia, Kentucky, and Wisconsin, I conclude that there are simply too many incidents in which Mr. Jarrett considered the truth optional when it was not to his advantage.
Based on the record before this court, I am not persuaded that Mr. Jarrett has demonstrated the requisite moral character and fitness "needed to assure to a reasonable degree of certainty the integrity and the competence of services performed for clients and the maintenance of high standards in the administration of justice." SCR 40.06. I would affirm the Board's decision.
I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.
Wednesday, May 18, 2016
The Maryland Court of Appeals has ordered the interim suspension of an attorney as a result of a judgment entered in the City of Charlottesville, Virginia.
The Daily Mail had this story.
A former Virginia high school teacher who police say attacked the wife of a state legislator was indicted by a grand jury on Monday on three felony charges of entering a house armed, abduction and malicious wounding, according to court documents.
Police say Claire Ogilvie, 36, attacked Nancy Tramontin, the wife of David Toscano, a member of the Virginia House of Delegates, in their Charlottesville home on Feb. 24 and struck the woman several times in the head.
Tramontin said in a statement released February 27 that she and Ogilvie were friends prior to the attack.
The legislator's wife said she met Ogilvie in 2010 at a program called Semester at Sea, which allows students to take college courses on a cruise ship, and ended the relationship in 2012.
On board, 'befriended Nancy and David's son, tutoring him during the voyage,' according to the statement.
'The Toscanos and Ms. Ogilvie became friends over the course of the voyage, and after they returned Claire moved to Charlottesville early in 2011,' her statement said. 'Nancy helped Ms. Ogilvie settle in, including her in family holidays, and community events and generally trying to welcome her to the community. She was part of the local fall 2010 Semester at Sea community.
'In 2012, Nancy became concerned that Ms. Ogilvie had developed an unsettling interest in the Toscano family. The family reduced their contact, beginning in the early summer, and saw her for the last time in fall 2012. Before the attack, Nancy and the Toscanos had not seen Ms. Ogilvie in over a year.'
Ogilvie attended both Yale University and George Washington University Law school - and even competed on both 'Jeopardy!' and 'Who Wants to Be a Millionaire,' Roanoake.com reported. She also reportedly worked as a lawyer for Foley & Lardner.
Until her arrest, she was a teacher at William Monroe High School in Stanardsville, outside Charlottesville.
Ogilvie remains in jail without bond.
Ogilvie's next court date is set for Sept. 17 in Charlottesville Circuit Court.
The Daily Progress reported that the attorney received a four-year prison term in January 2015. (Mike Frisch)
The Ohio Supreme Court has ordered a stayed six-month suspension in a case involving conflicts of interest and related charges against two attorneys.
Relator alleged that a co-counsel arrangement between Cannata and Phillips, which included the representation of limited-liability companies in which Cannata was a member, created conflicts of interest and falsely created the impression that the two attorneys were practicing law in a partnership, in violation of the Rules of Professional Conduct.
The court's findings
After graduating from the United States Air Force Academy, serving on active duty in the Air Force, and obtaining a master’s degree in business administration from Rensselaer Polytechnic Institute, Cannata returned to Cleveland in 1993 and started a construction business. He branched out into housing and commercial real-estate development before he attended and graduated from the Cleveland Marshall College of Law in 2002. He continued his business career after completing law school and devoted only 20 to 30 percent of his professional time to his solo legal practice. Because of his business contacts, Cannata was able to attract legal business that required more legal experience and expertise than he possessed, so he began to refer certain matters to Phillips, a more experienced lawyer, and worked with him as co-counsel.
In 2009, Cannata and Phillips entered into a written co-counsel agreement that established how they would divide their fees on their co-counsel cases, provided that they would maintain their separate practices of law in their separate offices, and stated that nothing in about the co-counsel relationship would “establish * * * any other relationship, including without limitation a partnership, a professional association, or a law firm.” At the same time, they filed articles of organization for a limited-liability company called Cannata Phillips, L.P.A., L.L.C., in which they represented that they were a law firm, and Cannata created a website for the company that appeared to represent that he and Phillips were members of a law firm. Phillips testified that they did not intend to operate as a law firm and that he intended for the filing to provide public notice that he would not be bound by Cannata’s other liabilities. From 2009 through 2011, Cannata and Phillips shared approximately $140,000 in legal fees.
The attorneys violated conflicts of interest rules. However, because they were not in fact partners, Rule 1.10 was inapplicable.
The court concluded that a stayed suspension with the requirements of no future violations was the appropriate sanction. (Mike Frisch)
Tuesday, May 17, 2016
The Illinois Administrator has filed a complaint alleging systematic unauthorized practice by a New York attorney who resided in Illinois.
In December 2003, Respondent moved to Illinois and leased a single-family house located at 7400 Choctaw Road, Palos Heights, Illinois ("the Choctaw Road house"), from Said and Nancy Ghusein ("the Ghuseins"), for one year. Respondent agreed to pay monthly rent to the Ghuseins in the amount of $1,650. Respondent and the Ghuseins thereafter agreed to extend the term of the lease each year, until 2013.
At all times alleged in this complaint, the Ghuseins owned and operated a retail bridal clothing business located in Oak Lawn, Illinois, which operated under several trade names, including the names, "Eva’s Bridal" and "Exclusives for the Bride."
In September 2004, Respondent and the Ghuseins agreed that Respondent would represent them and their business in pending and future Cook County legal matters relating to their business. At that time, Respondent and the Ghuseins agreed that the Ghuseins would pay Respondent’s legal fees by waiving his $1,650 monthly rent obligation for the Choctaw Road house and allow Respondent to reside in the Choctaw Road house.
The complaint alleges that his efforts to gain Illinois admission foundered on the shoals of concerns about unauthorized practice and that he improperly represented the clients in a host of legal matters.
Respondent’s business cards...are false and misleading because they identify Respondent as an attorney at an Illinois address and do not state that Respondent is not authorized to practice in Illinois or that the only state in which Respondent was licensed was New York.
Between January 1, 2010 and at least June 2014, Respondent provided the business cards... to attorneys, judges, and others to lead them to believe that he had been generally admitted to the Illinois bar and that he had been authorized to practice law in Illinois without limitation.
Between at least January 1, 2010 and April 20, 2016, the date a complaint was voted by an Inquiry Panel of the Commission, Respondent has maintained a law office, and has maintained a continuous and systematic presence within the State of Illinois, by practicing state law from offices in his residences at the Choctaw Road house and 6201 West 124th Street in Palos Heights and identifying himself as an attorney at the UPS facility address without disclosing that his sole law license was from New York.
It is further alleged that he made false statements to judges and the ARDC. (Mike Frisch)
The Wisconsin Supreme Court upheld 45 counts of ethical misconduct and ordered a suspension of three years.
The attorney's contentions
Attorney Gatzke strenuously argues that the referee's recommendation for license revocation is wholly unwarranted. He points out that none of the counts asserted by the OLR allege that Attorney Gatzke's legal representation was deficient in any matter. He asserts the fact that he has not been previously disciplined, that his entire career has been an effort to benefit his community, and that he has been extremely cooperative with the OLR throughout the disciplinary process are significant mitigating factors that the referee should have weighed in determining what discipline is appropriate. He suggests that a suspension of less than five months is the maximum discipline warranted. He agrees that it would be appropriate for the court to require him to have his trust account reviewed by an accountant on a quarterly basis for a period of one year.
On the other hand
The OLR asserts there is overwhelming evidence in this case that Attorney Gatzke converted client funds systematically over a period of years and the misconduct cannot be explained away by ignorance or sloppy recordkeeping. The OLR says the referee appropriately noted that the ABA standards for imposing lawyer sanctions provide that "disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client," and where "a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice." ABA Standards, §§ III.C.4.11 and III.C.5.11(b). The OLR says in concluding that the multiple instances of conversion of client funds required revocation, the referee pointed to aggravating factors, including a pattern of misconduct, multiple offenses, refusal to acknowledge wrongdoing, the vulnerability of the victims, together with Attorney Gatzke's substantial experience in the practice of law and his indifference to making restitution. Thus, the OLR argues that revocation is an appropriate sanction.
The court split the baby
Much more troubling than the recordkeeping and trust account deficiencies are Attorney Gatzke's failure to obtain written conflict waivers before entering into business transactions with P.S. and his conversion of P.S.'s funds. We acknowledge that Attorney Gatzke's lack of previous disciplinary history warrants some consideration. However, the number of counts of misconduct at issue in this case requires a serious sanction... In Cooper, an attorney who was found to have committed multiple violations of SCR 20:8.4(c) as well as multiple trust account violations received a three-year suspension. We find a three-year suspension to be an appropriate sanction in this case as well.
The court also ordered restitution with a dissent on that point from Justice Gableman
I concur in the portion of the opinion suspending Attorney Gatzke's license to practice law for three years, imposing full costs, and requiring him, upon reinstatement, to submit to trust account monitoring. I dissent from the portion of the opinion ordering Attorney Gatzke to make restitution to P.S. and A.S. I believe the issue of restitution should be addressed in a separate civil proceeding.
I am authorized to state that Justice REBECCA G. BRADLEY joins this concurrence/dissent.
A decision issued today is summarized by Dan Trevas on the web page of the Ohio Supreme Court
A Toledo woman, who is not a licensed attorney, admitted she was wrongfully practicing law in Ohio when advising clients on how to reduce resources in order to qualify for Medicaid’s long-term care coverage. The Ohio Supreme Court today ordered her to stop advising individuals and marketing herself as an advisor and to return nearly $7,300 to a former client.
The Supreme Court unanimously found Raye-Lynn Abreu engaged in the unauthorized practice of law when operating under the trade names of A.I.M.S. (All Inclusive Medicaid Specialists), Personalized Long Term Consulting & Medicaid Specialists, and Medicaid Solutions. The Court accepted a consent decree Abreu entered into with the Toledo Bar Association that was approved by the Court’s Board on the Unauthorized Practice of Law.
Assisting With Medicaid Qualification Strategy
In a per curiam decision, the Court explained that Abreu contracted with Susan Heasley for $7,975 and with Howard Williamson Jr. for $8,975, representing she would “create a strategy specific to your family’s needs,” and that “the strategy will define the exact amount of resources you will be able to retain and the date Medicaid eligibility will exist.” Williamson elected to terminate his contract with Abreu, and she returned his payment.
The bar association brought a complaint against Abreu to the board. Abreu admitted to the board that when she marketed and represented to Heasley and Williamson that she was a Medicaid specialist who could create a strategy for the appropriate way to reduce resources to become Medicaid eligible, she was engaging in the unauthorized practice of law.
In the board’s report to the Court, it noted that prior to starting A.I.M.S., Abreu worked for the Ohio Department of Job and Family Services for 12 years and at an Area Office on Aging where she helped clients with Medicaid applications. She began circulating brochures at Lucas County nursing homes offering estate planning.
As part of the consent decree, Abreu agreed to immediately stop rendering advice or providing strategies to reduce resources to achieve Medicaid eligibility, including strategies for spending down and arranging assets and income to meet Medicaid requirements. She also agreed to stop marketing or advertising in any fashion that she will provide advice or strategy for spending down and arranging assets to become Medicaid eligible. She consented to pay Heasley $7,275 in restitution. The Court did not to impose any civil penalties on Abreu but did assess $1,877.90 against her to pay the board’s costs for the matter.
An attorney's felony theft conviction has resulted in his automatic disbarment by the New York Appellate Division for the Second Judicial Department.
The plea minutes reveal that, during the period from 2009 to 2012, the respondent misappropriated or stole client funds belonging to four different clients (Carmella Merola, Patricia Sherry, Farris Summers, and the Estate of Anna Duval). In each instance, the respondent invaded his clients' funds for personal use, using the funds to pay his bills, mortgage, and rent. Furthermore, when these individuals demanded their funds and the respondent failed to deliver to these individuals the funds they were entitled to receive, the respondent made false representations and promises to them at different points in time. The respondent lacked the funds to make full restitution to his victims. The Assistant District Attorney indicated that the People intended to seek confessions of judgment in the following amounts: $250,145 (Merola); $114,287.97 (Sherry); $122,129.39 (Summers); and $213,497 (Duval).
The ABA Journal reported on the crimes
A former New York prosecutor has admitted to embezzling $700,000 from four real estate clients.
Robert DePalma, 54, who has a St. George law office and formerly worked for the Staten Island district attorney, has pleaded guilty to a scheme to defraud and four counts of second-degree grand larceny, said Queens District Attorney Richard A. Brown in a news release (scroll down).
One client, who sold a home for $274,000, got nothing, reports the Staten Island Advance, as DePalma allegedly used the money for personal and business expenses.
His lawyer, Eric Nelson, declined to comment when contacted by the newspaper.
In 2012, DePalma was disbarred by consent in New Jersey due to a claimed $3,800 misappropriation from a client. However, the reciprocal discipline imposed in New York in 2013 was reduced to a suspension, reports another Staten Island Advance article published earlier this year.
An opinion by the Second Department imposing the suspension cited DePalma’s “profound remorse” and “full acceptance of responsibility,” the newspaper says.
It also noted DePalma’s “impressive” character witnesses,” including five judges, and “outstanding service to the community.”
DePalma faces up to 9 years when he is sentenced on Dec. 23 in the New York case.
Monday, May 16, 2016
The Wyoming Supreme Court has adopted the report and recommendation of its Board on Professional Responsibility and imposed a public censure of an attorney who, among other things, had charged a clearly excessive fee by requiring payment of a 1 and a half percent interest on unpaid bills, compounded monthly.
Such an interest charge "was not reasonable under the circumstances."
The attorney also violated Rule 1.4 (communication) and Rule 1.15.
According to the board
Because of Respondent's lack of diligence in clearly communicating the fee arrangements, it is difficult to determine if Respondent knew or should have known he was dealing improperly with client property when he applied the $4,000 to fees and finance charges billed by Respondent several months prior to payment. However, given the timing of the transfer and the Respondent wrote "lawsuit" on the "for" line of the $4,000 check, the Board finds that Respondent knew or should have known that he was dealing improperly with the $4,000 payment when he directed his staff to apply the funds to prior billing statements.
Saturday, May 14, 2016
With its trademark terseness, the Louisiana Supreme Court has granted an in-house license to an unnamed applicant.
Justice Knoll gave the as much of the story as we are likely to get in dissent
I respectfully dissent from the majority’s decision to grant petitioner a limited license to practice law in this state as in-house counsel for his employer. Petitioner was disbarred in another jurisdiction after he deliberately engaged in a pattern of improper billing practices at his former law firm. As a result of petitioner’s dishonest acts, his law firm was required to reimburse the client’s losses of more than $595,000. In my view, petitioner’s conduct demonstrates a fundamental lack of moral character. Had petitioner been a practicing attorney in Louisiana at the time of this misconduct, there is no question that he would have been permanently disbarred...
The mere fact petitioner is seeking a limited license to practice law is of no moment. Supreme Court Rule XVII, § 14(A)(1)(f)(2) provides in-house counsel are required to satisfy the same standards of character and fitness as all other applicants for admission to the Louisiana bar.
As explained in my concurrence in In re: Hinson-Lyles, 02-2578 (La. 12/3/03), 864 So. 2d 108, “… it is a mockery of our rules to allow someone to apply for admission when the undisputed conduct at issue is a recommended ground for permanent disbarment.” Considering petitioner’s egregious conduct, I see absolutely no basis for granting him admission to the bar in this state in any capacity.
Justice Crichton concurred
I join the majority in granting petitioner a limited license to practice law in the State of Louisiana as provided by La. Sup. Court. Rule XVII, § 14. I write separately to point out that while petitioner’s past conduct is egregious indeed, the application before this Court demonstrates that he has made full restitution; he has acknowledged his wrongdoing, and he has consistently sought atonement for the far-reaching consequences of his actions. Notably, he met the stringent requirements to be re-admitted to the bar in another jurisdiction, and is presently a member in good standing there. Furthermore, although petitioner previously applied for a limited license in Louisiana in 2012, which this Court denied, I believe the additional time since that decision has allowed petitioner an even greater opportunity for professional improvement and reestablishment. Petitioner has also shown sufficient rehabilitative efforts, through counseling and therapy, as well as his full disclosure with his present employer, who supports and encourages petitioner’s application. Moreover, this Court is only granting a limited ability to practice law as an in-house counsel for petitioner’s present employer, and he will not be afforded the full benefits of a standard practicing lawyer. In my view, based upon the time that has passed, and petitioner’s sufficient showing that he has made every effort to follow, and continue on, a straight and narrow path, this Court has made the correct decision to allow petitioner a limited license to practice law in Louisiana.
Chief Justice Johnson also dissented.
I must say that I look with disfavor on Louisiana's practice of not identifying the applicant or explaining the rationale for its actions. (Mike Frisch)
Friday, May 13, 2016
The Louisiana Supreme Court has accepted the resignation of a former District Attorney.
The Times Picayune had the story of his conviction on obstruction of justice charges
Harry Morel Jr., the retired St. Charles Parish district attorney, described Wednesday (April 20) by U.S. Attorney Kenneth Polite as a "predator" who for two decades demanded sexual favors from "vulnerable" women seeking his legal help. Morel hit on at least 20 women, Polite said after Morel pleaded guilty to a single count of obstruction of justice.
Polite said his office will seek the maximum prison time of three years. Sentencing is set Aug. 17.
"By title he was the embodiment of justice, the elected district attorney of St. Charles Parish for over 30 years," Polite said. "However, in the darkness of his heart he was something else entirely: a man who perverted his position of power to take sexual advantage of desperate women who needed help, and he did this over and over again."
Morel, 73, pleaded guilty as expected before U.S. District Judge Kurt Englehardt. Prosecutors said he harassed a witness before the grand jury that was investigating him.
The office of the United States Attorney posted further details.
According to court records, MOREL served as the elected prosecutor of St. Charles Parish, Louisiana from on or about January 1, 1979 until May 31, 2012. Thereafter, he became an Assistant District Attorney in the Office of the District Attorney for St. Charles Parish and remained in that position until January 11, 2013. MOREL resided in, and his office was located in, St. Charles Parish, Louisiana, in the Eastern District of Louisiana.
As District Attorney and as an Assistant District Attorney for St. Charles Parish, MOREL was responsible for prosecuting individuals charged with criminal and traffic offenses against the State of Louisiana. As the District Attorney, MOREL had the authority and discretion to, among other things, make bail recommendations, make sentence recommendations and bring dismiss, forego or reduce charges.
MOREL freely admitted that he is guilty of Obstruction of Justice in that he harassed Individual "A" and attempted to prevent and dissuade Individual "A" from attending or testifying in an official proceeding,i.e., the federal grand jury, by telling Individual "A" to "get rid of” and to "destroy" the evidence of a meeting they had and to deny the inappropriate nature of the meeting to law enforcement officials. Furthermore, based on Individual "A"'s representations, MOREL believed there would be a federal Grand Jury investigation, and as a result asked her to conceal information that would have likely led to her being a witness before that body.
MOREL also admitted that on other occasions, between 2007 and 2009, he solicited sex from other individuals who were defendants or who had family members who were defendants in the St. Charles Parish criminal justice system. While soliciting sex from these individuals, MOREL likewise used the office of the District Attorney to provide benefits to these other individuals, including falsifying community service reports.
MOREL faces a maximum term of imprisonment of three years, a fine of $250,000 and one year of supervised release following any term of imprisonment. Under the terms of his Rule 11(c)(1)(B) plea agreement, MOREL acknowledges that the Government will recommend that the Court impose the maximum sentence of three years in prison. U.S. District Judge Kurt D. Engelhardt set sentencing for August 17, 2016.
U.S. Attorney Polite noted that the investigation has not implicated any other former or current employees of the St. Charles Parish District Attorney's Office.
The Mississippi Supreme Court has disbarred an attorney for misconduct that had resulted in his permanent disbarment by the United States Bankruptcy Court for the Northern District of Mississippi
The bankruptcy court concluded that “in filing the 2015 Petition and First Certificate, Mr. Labovitz has acted in bad faith and has violated a myriad of Bankruptcy Code provisions, Federal and Local Rules of Bankruptcy Procedure, and ethical rules imposed by the Mississippi Rules of Professional Conduct.” Id. On its findings, the bankruptcy court permanently disbarred Labovitz from the practice of law in the United States Bankruptcy Court for the Northern District of Mississippi...
Upon review ofthe facts gleaned from the record before this Court and the bankruptcy court’s findings, it is clear that Labovitz’s conduct constituted a violation of our ethical rules. Labovitz knowingly and willfully filed a bankruptcy petition on another individual’s behalf despite a lack of authority to do so, and then forged that individual’s signature on various documents presented to the bankruptcy court. This conduct clearly constitutes a violation of Rules 3.3(a) and 8.4 (c) and (d).2 The egregiousness of his actions combined with his history of ethical violations warrants disbarment.
The court here found no mitigation sufficient to warrant a lesser sanction.(Mike Frisch)
The Iowa Supreme Court has imposed a 60-day suspension of an attorney for misconduct in two client-related matters.
One involved representation of clients in "manure easement" matters.
There was also this
After the Board filed its complaint against Stoller, [opposing counsel] Robert sent a letter to Pat O’Brien, counsel for the Board, regarding a firearm incident with Stoller. Robert stated in his letter that there had been a pretrial conference in the small claims case in May or June 2014, during which Stoller pulled a .44 Magnum pistol out of his briefcase. Robert further stated that Stoller was waving the pistol in the air and said that he would “take care of” John Maloney, the opposing party. Robert told O’Brien that he was scared that Stoller would attack him physically and that he obtained a concealed carry permit for this reason. Stoller does not deny that he took a firearm out in Robert’s presence, but he claims that it occurred in his office and it was “a joking incident amongst men.” He further asserts that he keeps the gun in his desk because he has been attacked in his office on two separate occasions. Stoller denies that he ever threatened to harm anyone.
One of the matters involved a concurrent conflict of interest
While Stoller did obtain written consent from both Chaplin and the Martens in this case, he did not obtain the consent until well after he had undertaken the representation of both parties. As discussed above, Stoller had represented the Martens for a number of years. He began representing Chaplin in late March 2011, when he prepared the consent form and advised her to sign the consent form effectively transferring all of the assets of OCI to the Martens. Stoller then helped Chaplin establish a corporation and wrote the lease agreement between the Martens and Chaplin’s new corporation. Stoller did not obtain written consent from the parties until May 30, well after the material events had already occurred.
In consent to conflicts, timing is everything.
There was also dishonesty
Stoller perpetrated a sham transaction that demonstrated a lack of honesty. He arranged for one client, who did not have authority to do so, to purport to sell property to another client for far less than the property’s value. From the very beginning, his actions demonstrated more than a misreading of Iowa law. His actions demonstrated the intent to mislead not only OCI but also his own clients. Stoller not only assisted Chaplin in transferring the remaining assets of OCI for far less than the equipment was worth, he also assisted her in creating a new entity and allowed her entity to take possession of the equipment to operate her own bar and restaurant. Throughout, Stoller continued to represent to Chaplin and the Martens that there was legal authority to support his actions.
The other client matter also involved concurrent conflicts
First, we must clearly identify the clients. The clients involved are NuStar and the Zylstras. Second, we must determine whether a conflict of interest exists. In the companion case, we held that a conflict existed because the position of NuStar at the time Stoller undertook their representation was directly adverse to that of the Zylstras...
Stoller began his representation of NuStar in early May, knowing that the action would eventually become adverse to the Zylstras if they refused to sign the deed. Stoller began contacting the Zylstras on behalf of NuStar before the May 13 email officially terminating the attorney– client relationship. By the time Stoller sent the May 13 email, he was already contemplating taking action against the Zylstras on behalf of NuStar. His email to the Zylstras stated,
I must now put you on formal notice that if the signed deed is not received by my office by the close of business on Wednesday, May 14, 2014, that I will need to pursue the appropriate remedies for specific performance and damages on behalf of Nustar.
In this email, Stoller clearly evinces the intent to pursue a future adverse action against the Zylstras. The intent to pursue legal action unless the Zylstras complied with NuStar’s request to sign the deed arose before the email was sent. Stoller and NuStar had already discussed the possibility of taking action, which is precisely why the demand, or “formal notice” language, is included in the email. Until the Zylstras received the May 13 email, Stoller continued to represent them in their small claims action. In the same email terminating the attorney–client relationship, Stoller threatened to bring a civil suit against the Zylstras on a legal matter that he had previously discussed with Robert.
The gun incident did not merit a sanction
The commission also recommended that Stoller be prohibited from possessing a firearm while conducting any legal business as a condition of his reinstatement. The commission made this decision despite the fact that the Board never requested a firearm sanction. Robert’s letter to the Board came in the middle of these proceedings. Stoller was given no notice that the commission would consider restrictions on firearms as part of his disciplinary proceeding. The “absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprive[s] [a] petitioner of procedural due process.” In re Ruffalo, 390 U.S. 544, 552, 88 S. Ct. 1222, 1226, 20 L. Ed. 2d 117, 123 (1968). While the allegation, if true, is disturbing, we decline to adopt the recommendation of the commission as to the possession of a firearm.
The Grievance Commission had proposed a 90-day suspension.
The court released an opinion in the Zylstra litigation holding that it was not an abuse of discretion to disqualify the the attorney. (Mike Frisch)
Two attorneys have been appointed as receivers of the practice of a Maine attorney recently imprisoned for bilking elderly clients.
BDN Maine reported on the crimes
A Belfast lawyer was sentenced Friday to 30 months in prison for stealing nearly $500,000 from two elderly clients.
In one case, William L. Dawson Jr. placed an 85-year-old Belfast resident in a nursing home for four years while he looted her bank accounts, according to court records.
The theft was uncovered in March 2013 when a teller at Key Bank noticed Dawson was writing large checks to himself on at least a weekly basis from the account of Veronica Pendleton. She alerted her supervisor, and a review of the account was undertaken, as well as that of another customer, 97-year-old Doris Schmidt. In that case, Dawson also was writing large checks on her account, according to Assistant Maine Attorney General Leanne Robbin.
Murray ordered Dawson to pay restitution of $385,000 to Pendleton’s estate and $98,000 to Schmidt’s estate. Both women have since died.
The prosecutor said that after an investigation began, Dawson submitted bills he said explained the checks. But Robbin said the reasons Dawson gave for the billing were “breathtaking.” Even though his office was just a one-minute drive from Pendleton’s home, Dawson would bill her $250 per hour for six to seven hours to go check on the house, pick up her mail and take care of her bills while she was in the nursing home.
A probate court in 2013 removed Dawson’s power over their finances.
Attorney Susan Thiem, who represents the Pendleton estate, said Friday that Dawson had put Pendleton in the nursing home for a temporary medical condition but kept her there for four years until his theft of her money was uncovered. Thiem read a letter from Anne Cilley, who was a friend of Pendleton, in which she said that after the theft was uncovered, Pendleton was able to return home for three months before she died.
Pendleton had told Cilley she felt like she had been incarcerated for four years and missed seeing the birds and squirrels in her yard, according to Cilley’s letter.
Schmidt suffered from dementia and was in the same nursing home as Pendleton. Dawson had given himself power of attorney over Schmidt’s finances without going to probate court, according to the prosecutor.
Sarah McPartland-Good, the director of planned giving for the University of Maine Foundation, said both women previously had given to the foundation. Pendleton donated money for scholarships for forestry and related programs while Schmidt gave to the senior college at the Hutchinson Center in Belfast. She said the theft deprived at least one student each year from receiving at least a year’s worth of tuition in scholarship.
Dawson spoke to Murray before the sentence was imposed. He said overseeing the properties and finances of the two women was a heavy burden and he wished he had done a better job. He said he checked on their homes on a daily basis because he had a prior client whose pipes burst while she was in a nursing home and significantly damaged the home. Dawson said he did not want a repeat of that incident.
Murray also ordered Dawson to repay $36,000 in back state incomes taxes for 2011, 2012 and 2013 from the unreported income he received from the victims’ accounts.
Dawson has agreed to sell his house with the proceeds of the sale — minus taxes he owes and his attorney’s fees — to go toward repaying some of the money owed. Dawson filed for bankruptcy last month, which Thiem said will make it more complicated to recover money.
The judge agreed to allow Dawson to report to jail at noon Saturday so the lawyer could complete his tax returns.
Dawson has practiced law in Maine since 1989.
Back in 2011, Dawson was reprimanded by the bar overseers after three separate clients filed complaints alleging he had not done his work in a timely or competent fashion.
Considering the sentence imposed on the Iowa attorney reported below, I'd call the sentence here to be on the light side. It is hard to imagine conduct that reflects more poorly on the profession. (Mike Frisch)
Billing For Unperformed Indigent Defense Work Leads To Conviction, Disbarment And Ten Year Prison Sentence
The Iowa Supreme Court recently accepted the consent disbarment of an attorney convicted of theft.
The Des Moines Register reported on the crimes
A former Spencer attorney who pleaded guilty to a charge that he overbilled the state nearly $178,000 was sentenced Friday to 10 years in prison.
Attorney Ney McDaniel had been improperly paid at least $177,755, mostly for hours he didn't work while being under contract to represent indigent Iowans between 2007 and 2011, a state audit released in 2013 showed.
McDaniel was subsequently arrested and pleaded guilty to a felony theft charge. Clay County District Court Judge Patrick Tott on Friday sentenced McDaniel to prison, fined him $1,000 and ordered him to repay the money he was improperly paid.
“We’re satisfied…We think the prison sentence sends a strong message,” Assistant Attorney General Robert Sand said Friday.
He had been suspended on an interim basis as a result of the guilty plea. ( Mike Frisch)
Thursday, May 12, 2016
A disciplinary decision that dismissed charges was recently issued by an Arizona Hearing Panel
This single count complaint arose out of husband calling the State Bar 42 times from four phones in a single day, regarding the representation by [Respondent] Mr. White of husband’s wife (“client”) in divorce proceedings in 2013. The divorce case involved allegations of significant and pervasive domestic violence by husband against client. The complaint alleges three categories of unethical actions occurred during the representation of client. The first of these is Mr. White made descriptive sexual comments to client. There is no allegation he propositioned her or committed domestic violence against her, but that he made rude and inappropriate descriptive sexual comments. We find this untrue. The second category is Mr. White was inadvertently insensitive in two other comments. We believe he was insensitive and as he acknowledged, thoughtless. We find his tactless comments did not violate the ethical rules.
The third category alleged Mr. White failed to timely withdraw from representation and “filed a frivolous notice to the court.” The allegation stated that pleading revealed confidential client information to the court submitted without the informed consent of his client. We find this also untrue. As a result, we dismiss the case.
The panel found that the husband's domestic violence against the attorney 's client motivated the bar complaint
In domestic violence, the victim is often subjected to emotionally abusive and controlling behavior. At its core, domestic violence seeks control of its victim. Violence is but one tool of a methodical design to dominate, control and isolate the victim from any who might protect or rescue. While not presented, we accept domestic violence is epidemic with a wide range of victims in every community. Its reach seems limitless. Neither age, economic status, faith or its absence, race, nationality, gender identity, sexual orientation, education or intellectual prowess assure its absence. Like echoes in a canyon, the consequences of domestic violence can reverberate generationally and last multiple lifetimes. As a result, the children were also victims of the domestic violence. It is in this context the case was presented.
We do not ignore the ongoing plight of client by our dismissal. It appears likely to us she was compelled by husband, as part of his continuing control of her, to report these non-existent statements of Mr. White to the police. It was likely intended by husband to place client in a position where she believes she could not retract her statements as they would constitute a false police report. Regardless, we find her testimony before us diminished substantively the allegations. While we regret the plight of client and the seemingly ongoing domestic violence against her, we focus on the evidence before us to determine what is true regarding the allegations in the complaint.
The client was also victimized by "revenge porn."
As to the merits
We find Mr. White aggressively advocated for his client and sought to protect her. We expect no less, especially in such pervasive domestic violence. We believe the State Bar properly brought this case before us. It is our task to determine the facts and apply the law to those facts. The duty of the State Bar is clear under Supreme Court Rule 55(a). “The state bar shall evaluate all information coming to its attention, in any form, by charge or otherwise, alleging unprofessional conduct, misconduct, or incapacity.” Because we find the substantive allegations untrue or not violations of the Rules of Professional Responsibility, we dismiss this case.
An inappropriate but not unethical comment had to do with a motion to withdraw as counsel
Mr. White inquired why the motion to withdraw had not been returned. Client gave him an explanation and Mr. White, while attempting to emphasize the importance of her proceeding for the sake of her and her children, jokingly and inappropriately stated if she requested he file such a motion again he would put her over his knee and spank her and enjoy it. We, the Panel, find this statement entirely inappropriate. However, we find no sexual intent in the comment, but rather past frustration at the inability of client to follow the steps to protect her children and herself from husband.
For the second time in as many days, a former official with the Bristol Virginia Utilities Authority pled guilty to federal conspiracy charges United States Attorney John P. Fishwick Jr. announced today.
G. Walter Bressler, 73, of Bristol, Virginia, waived his right to be indicted and pled guilty this afternoon in the United States District Court for the Western District of Virginia in Abingdon to a one count Information charging him with conspiracy to commit program fraud and having knowledge of the actual commission of felony and concealing such felony from the United States.
“Mr. Bressler had a requirement as general counsel for BVU to ensure they were following the law and he failed in that duty,” United States Attorney John P. Fishwick Jr. said today. “
“Public corruption, which includes the illegal mishandling of taxpayer funded programs, is the FBI’s highest criminal investigative priority. The Bristol Virginia Utilities Authority mess is an example of what can happen when corruption is tolerated by government officials and employees,” said Adam S. Lee, Special Agent in Charge of the FBI’s Richmond Division.
“Today’s plea is a reminder that IRS-CI will remain vigilant in our investigation of these financial fraud schemes and will continue working with our law enforcement partners to combat this type of criminal conduct,” said Thomas Jankowski , Special Agent in Charge, IRS Criminal Investigation, Washington D.C. Field Office.
According to evidence presented at today’s hearing by Assistant United States Attorney Zachary T. Lee, Bressler was employed as General Counsel for BVU from January 1, 2009 to March 1, 2015. As part of his duties as General Counsel, Bressler was involved in the negotiations between Company #1 and BVU. BVU entered into an agreement with Company #1 that if BVU signed a contract for services with Company #1, then Company #1 would pay to entertain BVU executives, to include Bressler, and BVU Board Members and employee during a site visit in Dallas, Texas in November 2011. This entertainment included the payment of hotel expenses, limousine services, meals and tickets to a Dallas Cowboys football game, including access to a luxury box. In all, Company #1 paid more than $10,000 to entertain BVU executives and Board Members during the weekend of November 5, 2011 and November 8, 2011. Company #1 entered into a contract with BVU for the amount of $4,496,096.
On or about and between August 2013 and September 31, 2013, allegations of misconduct on the part of Wes Rosenbalm were brought to the attention of the BVU Board of Directors and Bressler. These allegations were discussed in multiple board meetings during executive sessions, during which Bressler was present.
On September 16, 2013 a BVU Board of Directors Meeting was held, after entering into executive session, the BVU Board of Directors, with Bressler present, discussed the implications of the alleged misconduct of Rosenbalm, specifically the BVU Board of Directors discussed the receipt of tickets by Rosenbalm from vendors and contractors engaged in business with BVU and the implications that the acceptance of those gifts violated the Virginia Procurement Act.
BVU Board Members also discussed the possibility that vendors who were not awarded contracts in favor of those who gave gifts were going to “raise all kinds of ruckus.” During the course of the executive session, board members, with Bressler present, discussed the possibility that other BVU employees, specifically, Stacy Pomrenke and David Copeland, were also mentioned as being involved in illegal activity associated with vendors of BVU.
During the September 16, 2013 executive session, BVU Board Members, with Bressler present, had specific discussions about violations of federal law, the types of violations that had occurred and the consequences of those violations. However, following those discussions neither any of the Board Members or Bressler decided to contact law enforcement with the information that state and federal law had been violated, but instead determined it was best to provide Wes Rosenbalm with a severance package in hopes that any allegations of misconduct by Rosenbalm, other BVU employees, or BVU Board Members would not be made public or become known to law enforcement.
On or about September 25, 2013, the BVU Board of Directors entered into an agreement with Rosenbalm to pay Rosenbalm a severance package of $269,420 in return for his resignation as CEO of BVU.
BVU Board Member #1, independently, and without support of the Board of Directors, brought his concerns about misconduct at BVU to the attention of law enforcement on or about October 21, 2013.
The investigation of the case was conducted by the Federal Bureau of Investigation and the Internal Revenue Service, Criminal Investigation. Assistant United States Attorney Zachary Lee and Special Assistant United States Attorney Kevin Jayne prosecuted the case for the United States.