Wednesday, November 18, 2015

Former Prosecutor's License Annulled

The West Virginia Supreme Court of Appeals has annulled a former prosecutor's license for job-related sexual misconduct, rejecting a Hearing Panel Subcommittee's proposed two-year suspension.

Mr. Clifton lives and works in Marlinton, Pocahontas County, West Virginia. Before he started law school in 2004, Mr. Clifton operated a bar/restaurant, was a police officer, and worked for Child Protective Services, all in Marlinton. Upon successful completion of law school and the bar examination, Mr. Clifton was admitted to the bar on November 5, 2007. Directly following his admission, Mr. Clifton served as an assistant prosecuting attorney for Pocahontas County from November 7, 2007, to January 15, 2011. Mr. Clifton began working for the prosecutor’s office part-time, ultimately shifting to full-time employment before leaving the office in 2011 for private practice.

In August 2012, a criminal investigation of a police officer in Marlinton led the State Police and the Federal Bureau of Investigation (“FBI”) to investigate Mr. Clifton. Mr. Clifton was indicted on two counts of sexual assault in the second degree and two counts of imposition of sexual intercourse on an incarcerated person in the Circuit Court of Pocahontas County.

The criminal charges were dismissed with prejudice but

The [Office of Disciplinary Counsel] obtained a copy of the files concerning the criminal investigation, and using that information, the ODC identified three women who, it determined, engaged in sexual conduct with Mr. Clifton in his office while he served as an assistant prosecuting attorney. The ODC contended that Mr. Clifton’s sexual involvement with these women was unethical, and the Investigative Panel of the [Lawyer Disciplinary Board] detailed the alleged unethical conduct in a statement of charges...

Which led to findings of misconduct 

First, with regard to T.S., the HPS found that T.S. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office and that she provided him with sexually explicit photos and videos he solicited while she was on probation and participating in day report [a court-ordered program]...Also with regard to Mr. Clifton’s relationship with T.S., the HPS found that Mr. Clifton provided false information to the ODC when he denied the conduct alleged in the indictment...

Second, the HPS found that Mr. Clifton attempted to require K.M. to perform oral sex on him when she went to his office at the prosecutor’s office about her son’s criminal case...

Third, the HPS found that L.B. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office after she approached him with an inquiry about a criminal matter while she was both a defendant and a victim.

T.S. was on probation and unhappy with the court-ordered program. He reached out to her

After T.S. began Day Report, Mr. Clifton sent her a message on Facebook, a social networking website, regarding a picture she had posted of herself. Mr. Clifton testified, “I told her I really liked this one photo of her backside toward a camera where she was wearing only panties and I said ‘Yeah, I really like that one.’ And she said ‘Well, it looks a lot better now.’ And I said, ‘You’ll have to show me.’” Both T.S. and Mr. Clifton stated that following the messages regarding the picture, the two began an ongoing correspondence. T.S. testified that she told Mr. Clifton that she was upset about having to take part in Day Report. She testified, “I didn’t want to be on day report and he told me that he could maybe help me.” According to T.S., in response to her displeasure with Day Report, Mr. Clifton told her “to stop by [his office at the courthouse] sometime.”

She did.  Several times.

The other victims had been in sexual relationships with him prior to his becoming an attorney; both were pressured to give him oral sex because of his position. 

The court found the violations and imposed annullment

It is apparent from the record before us that Mr. Clifton knowingly and intentionally violated a duty to his former client, the State. By engaging in sexual relationships with T.S., K.M., and L.B.—all of whom were, at some point during the time Mr. Clifton was an assistant prosecuting attorney, a victim, a defendant, or seeking help for another defendant—Mr. Clifton created a conflict of interest with his client. This same activity also violates his duty to the public and the legal system. As a public officer charged with the prosecution of criminal cases, abusing his position by engaging in sexual relationships with T.S., K.M., and L.B. impacted the fair administration of justice. Mr. Clifton acknowledged that his conduct, at least as far as the sexual banter and explicit photograph exchanges with T.S. are concerned, created “an inescapable negative reflection” on the legal profession. Finally, by providing false information to investigators regarding his relationship with T.S. and then by providing false information to the ODC regarding the recording of the sexual encounter between himself and K.M., Mr. Clifton violated a duty to the legal system and to the profession.

The amount of real injury in this case is great. As the HPS aptly surmised, it is not likely that the women who made the allegations against Mr. Clifton will be trusting of lawyers and the legal system in the future. By using his position as assistant prosecuting attorney to elicit sexual behavior from vulnerable women—women involved in criminal matters and/or seeking his help—he has damaged the prosecutor’s office in Pocahontas County and the legal profession on the whole.

The ODC charges are linked here. 

The West Virginia Record  had a report on the civil case filed by T.S. against the attorney and a police officer. (Mike Frisch)

November 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Dismissed Criminal Charges Can Form Basis For Ethical Violation

The web page of the Idaho State Bar reports on a sanction imposed for multiple DUIs

On July 19, 2013, the Idaho Supreme Court entered a Disciplinary Order suspending Mr. Kime for one year, with all one year withheld, based on Mr. Kime’s felony conviction for driving under the influence of alcohol (“DUI”). The Disciplinary Order placed Mr. Kime on disciplinary probation through April 3, 2015, and required that he comply with the conditions of his criminal probation, which prohibited any consumption of alcohol. Thereafter, Mr. Kime consumed alcohol in violation of the terms of his criminal and disciplinary probations. Consequently, on May 8, 2014, the Idaho Supreme Court entered a Disciplinary Order imposing the one-year suspension that was previously withheld.
           In November 2015, while still on criminal probation, Mr. Kime was stopped by law enforcement while driving his vehicle after consuming alcohol. He was charged in Kootenai County with felony DUI. The Court subsequently determined the traffic stop was illegal and the criminal charge was dismissed. As part of the resulting disciplinary case, Mr. Kime admitted that his conduct violated I.R.P.C. 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

The Disciplinary Order provides that twelve (12) months of Mr. Kime’s twenty-seven (27) month suspension is withheld subject to the terms of his two (2) year probation upon reinstatement, with terms including the following: avoidance of any alcohol or drug-related criminal acts or traffic violations; a program of random urinalysis, with provision that if Mr. Kime tests positive for alcohol or other tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed; and if Mr. Kime admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during his period of probation, the twelve (12) month withheld suspension shall be imposed. 

(Mike Frisch)

November 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 17, 2015

Sex Crimes Get Illinois Attorneys Disbarred

The Illinois Supreme Court has ended the much-publicized disciplinary matter involving attorney Paul Weiss with an order of disbarment. 

We had this story on the April 2014 hearing board report.

The hearing [board] has proposed a 30-month suspension for a series of sexually harrassing acts against female employees,  a neighbor and a stranger.

Our earlier post links to and quotes the findings of behavior set forth in great detail that is truly horrific.

Given the nature and extent of the acts against subordinate lawyers, staff and even neighbors described in the hearing board report, I boldly predicted

I suspect this will end in a disbarment.

The Review Board had also recommended a lesser sanction of 30 months suspension over the dissent of Richard Green

While I agree with my colleagues with respect to their agreement that the findings of the Hearing Board are not against the manifest weight and their analysis of the applicable law, I must disagree as to the recommended sanction. Respondent engaged in similar conduct in the 1990's, was disciplined and was to get treatment. Rather, he continued his bad behavior and in fact escalated it. Nothing in the record shows that he will not continue with the misconduct. Clearly this behavior leads the profession into disrepute. I would recommend that Respondent be disbarred.

The prior misconduct was described by the Review Board

The Hearing Board correctly considered his prior discipline in aggravation. Factors in aggravation revealed that, in 1993, while 26 years old, Respondent attended a high school girls' volleyball game where he first saw a 17 year old girl he did not previously know. In November and December of 1993, Respondent made at least six obscene telephone calls to the girl, resulting in his arrest in February 1994 and conviction in March 1994 for telephone harassment. In addition, between November 1993 and April 1994, Respondent made six to eight obscene phone calls to another woman, a fellow associate working with him at a Chicago law firm. From December of 1994 to January 1995, while on supervision for the telephone harassment conviction, Respondent made at least four obscene phone calls to a woman who had been a paralegal at the firm where he worked. During March 1993, again in the Fall of 1993, and in September 1994, Respondent made a number of obscene phone calls to yet another woman.

The court sustained the Administrator's exception as to sanction.

The petitions by the Administrator of the Attorney Registration and Disciplinary Commission and respondent Paul M. Weiss for leave to file exceptions to the report and recommendation of the Review Board are allowed, and respondent Paul M. Weiss is disbarred.

CBSChicago noted that eBossWatch  named him one of 2014's Worst Bosses in America.

The Illinois State Bar Association has summaries of the disciplinary orders entered on November 17 including another sex offense disbarment

Mr. Hedges, who was licensed in 2005, was disbarred on consent. He pled guilty to a Michigan-based charge of attempted criminal sexual conduct. In his plea, he admitted that he attempted to engage in sexual conduct with an individual by using force or coercion, but failed in the perpetration of the sexual conduct. He was sentenced to a 30-day term of incarceration and a 24-month period of probation.

(Mike Frisch)

November 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Business Development Plan Leads To Disbarment

An attorney has been disbarred by the New York Appellate Division for the First Judicial Department as a result of a criminal conviction

...conviction of any criminal offense classified as a felony under the laws of New York results in automatic disbarment by operation of law. On March 25, 2015, Respondent pleaded guilty in Supreme Court, New York County, to bribery in the third degree in violation of Penal Law § 200.00, a class D felony, and was sentenced to six months incarceration and five years probation. Respondent's conviction stems from his paying a New York City Criminal Justice Agency employee money to persuade criminal defendants to retain respondent as their attorney.

 From the New York Post

 One of three criminal-defense lawyers accused of paying a court employee thousands of dollars to funnel defendants their way has pleaded guilty.

Dwane Smith, 56, copped to bribery in Manhattan Supreme Court in exchange for six months in prison, authorities said.

Smith allegedly paid an employee of the Criminal Justice Agency, which interviews defendants before they’re arraigned, $10,000 to send him more than 50 clients.

The employee allegedly got a total of $40,000 from the three lawyers.

The cases against the other lawyers, Benjamin Yu and Jae Lee, are pending.

(Mike Frisch)

November 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Former Cozen O'Connor Attorney Gets Three Years

A three-year suspension was imposed by the New York Appelate D ivision for the First Judicial Department nunc pro tunc to an earlier suspension.

LAW360 reported on the  suspension

A New York appeals court on Thursday suspended a former Cozen O'Connor attorney from practicing law after he admitted in January to charging a client of another law firm that he had previously worked at for his personal travel expenses.

John D. Horenstein, who told the Appellate Division of New York Supreme Court's disciplinary committee that he resigned from that firm for making the allegedly fraudulent billing to its client, had billed for more than $40,000 for six personal trips to Dallas, according to the committee.

The firm whose client he allegedly charged for the trips was Condon & Forsyth LLP, and Horenstein later worked for Cozen O'Connor in 2012, according to Reuters. Horenstein is no longer listed on Cozen O'Connor's website. The appeals court's slip opinion Thursday did not identify the law firms by name, and neither an attorney for Horenstein nor the law firms could be immediately be reached for confirmation Thursday.

“An attorney is guilty of professional misconduct immediately threatening the public interest such that suspension is warranted … when he or she converts or misappropriates client funds for personal or business expenses,” the court said Thursday. “Specifically, the committee's evidence, which [Horenstein] contends is substantially accurate, indicates that respondent converted and/or misappropriated client funds inasmuch as he billed his prior firm's client [ over $40,000] for legal fees not actually incurred by the client, which expenses respondent actually incurred for purely personal reasons.”

Horenstein admitted to billing the Condon & Forsyth client, who was not identified, after the client questioned the charges, which he billed between February to July 2011 when he took the trips, according to the opinion.

In March, Horenstein submitted the billing records to the disciplinary committee, which found also that Condon & Forsyth had begun its investigation after the client questioned the allegedly fraudulent charges, the opinion said.

“When the firm asked [Horenstein] for an explanation, he confirmed that he had in fact billed the firm's client for expenses not incurred by the client and which were instead purely personal,” the court said.

Horenstein in May confirmed to disciplinary committee the details of Condon & Forsyth's claims about his conduct and allegedly fraudulent charges to the client, according to the opinion.

Horenstein is represented by Richard M. Maltz.

The case is In the Matter of John D. Horenstein, case number M-3078, in the Supreme Court of the State of New York, Appellate Division, First Judicial Department.

(Mike Frisch)

November 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 16, 2015

Disbarment Not Deferred

A failed effort to deal with the requirements of ethical practice has led to the disbarment of a South Carolina attorney.

In May 2014, a circuit court judge forwarded ODC a motion filed by respondent in a civil case in which he admitted he had neglected the case and had failed to keep his clients informed of the status of the proceedings. In response to the Notice of Investigation, respondent represented to ODC that his failing in the case resulted from depression, that he had been in touch with Lawyers Helping Lawyers, that he was getting the recommended treatment, and that his other cases were in order and unaffected by his condition.

Respondent proposed a deferred discipline agreement which was accepted by an Investigative Panel of the Commission on Lawyer Conduct (the Commission) on October 17, 2014. In the deferred discipline agreement, respondent admitted to violations of the Rules of Professional Conduct and agreed to comply with certain terms and conditions, including completing the South Carolina Bar's Legal Ethics and Practice Program (LEAPP) Ethics School and Law Office Management School within nine months, seeking treatment with a psychologist, contacting his Lawyers Helping Lawyers' monitor on a weekly basis, and filing quarterly reports to the Commission for a period of two years.

On March 2, 2015, respondent self-reported that he had not complied with the terms of his deferred discipline agreement. As a result of respondent's failure to comply with the terms of the deferred discipline agreement, the Investigative Panel terminated the agreement.

There were a number of matters that involved misconduct in addition to the failure to comply with the deferred discipline agreement. (Mike Frisch)

November 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thefts Draw Prison And Disbarment

The Georgia Supreme Court has disbarred an attorney convicted of mail fraud and aggravated identity theft.

The FBI Atlanta Division reported the conviction.

Wilson R. Smith, 63, a former attorney from Vidalia, Georgia, was sentenced earlier this week by Chief United States District Court Judge Lisa Godbey Wood to serve eight years in federal prison for a scheme to settle his clients’ cases without their knowledge and to steal the settlement proceeds. Smith pled guilty in May to mail fraud and aggravated identity theft charges.

According to evidence presented during the sentencing hearing, Smith settled two separate personal injury cases from 2013 to 2014, without his clients’ knowledge or authority, and then kept the $1.25 million in settlement proceeds for himself. Smith delayed detection of his scheme by providing his clients with phony case updates, including fictitious trial dates. One of Smith’s clients became concerned about supposed trial delays and contacted a court clerk. The client was told that the lawsuit had been settled and dismissed for over a year. Shortly thereafter, on January 14, 2015, Smith was arrested by the Georgia Bureau of Investigation (GBI). Later, Smith was indicted on federal fraud charges in February of 2015. Additional investigation determined that Smith schemed at least 10 victims out of settlement proceeds and other monies held in his attorney trust account.

United States Attorney Edward Tarver stated, “This former attorney chose greed over the interests of his clients. He caused great harm to the clients he swore to protect and to the entire legal system. Attorneys who lie, cheat and steal can expect that their lawyering days will soon be over and that they’ll find themselves in a federal prison cell.”

In addition to an eight-year prison sentence, Smith was ordered to pay $1,285,000 in restitution. After his released from prison, Smith will serve three years on supervised release.

The investigation of the Smith case was conducted by the GBI, the District Attorney’s Office of the Middle Judicial Circuit, and the FBI. First Assistant United States Attorney James D. Durham prosecuted the federal case on behalf of the United States.

He had been suspended pending this order. (Mike Frisch)

November 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Granted

The Massachusetts Supreme Judicial Court granted reinstatement to an attorney who aided a client fraud under somewhat sympathetic circumstances.

The attorney represented the mother of a 17 year old daughter who lived with her father in a southern state, The daughter ("Sally") was hospitalized for a drug overdose while visiting the mother,


On Friday night September 14, 2007, Sally's mother managed to remove Sally from a DCF group activity. Ex. 4 (90); Tr. 13 (Petitioner). Worried that.DCF would look for Sally at her home, the mother left her near a dumpster in the rain, called the petitioner, told him she had 'taken Sally, infom1ed him where she had left her and asked him to. pick Sally up. Ex. 4 (90); Tr. 13 (Petitioner). The petitioner did so. He did not call the police or DCF, because Sally had just had bad experiences with both. Ex. 4 (90). He advised her to go back to DCF custody .. Id. When she refused, he arranged for friends (who were actually clients) to let her stay at their house for the night. Ex. 4 (90-91 ); Tr. 13, 31 (Petitioner). The petitioner felt like this was an emergency, and his primary concem was for Sally's safety. Ex. 4 (90); Tr. 13-14 (Petitioner).

The next day, the petitioner and his wife went to the friends'·house to speak with Sally. Ex. 4 (91 ); Tr. 14. He again encouraged her to go back to DCF; she again refused. I d.; Tr. 83-84 (Sandra Hession). Sally expressed an intention to retum to her father's home in a southern state, and said that she would hitchhike if necessary. Ex. 4 (91); Tr. 18-20 (Petitioner). The petitioner and his wife gave Sally clothing and $300 in cash for a bus ticket to return to her father's home. Ex. 4 (91). The mother was informed that Sally had left to go to her father's home and, after the petitioner learned she had safely arrived, the mother was so apprised. Ex. 4 (91-92).

Days later, at the hearing on· September 19, 2007, the petitioner appeared before the new judge and told him that Sally had "apparently" left DCF custody. Ex.' 4 (92). Asked by the judge if the mother had any idea where Sally was, the petitioner gave a vague description of Jane having received a call from Sally; explained that Jane had told him that Sally was "local"; and concluded that he didn't think Jane knew much more than that. Ex. 4 (93).

Counsel for DCF asked to examine Jane. Id. The petitioner asked for and was allowed a brief recess to speak with her. After she was put under oath, Jane took the stand and made numerous misrepresentations, among them that she believed Sally was somewhere in the New England area; that Sally had assured her she would appear in court that day; and that Jane would contact DCF in the event Sally were to return home. Ex. 4 (94).

The court here concluded that a "humanitarian impulse" motivated the misconduct.

We note that after he was suspended, the petitioner spent the first two months working around his farm, where he and his wife raise many sheep and goats. Tr. 11, 26-27 (Petitioner). He observed that he spent time thinking about what he had done, and noted that farm work is "really good" for that. Tr. 26-27 (Petitioner). He also got a job in a carpet store, where he worked until fairly recently. Tr. 26 (Petitioner). In terms of charitable endeavors and conimunity work, the petitioner wrote that he used to engage in a great deal of such work, prior to his suspension, but since the suspension and due to extreme time constraints, his only ·community activity is church involvement. Ex. 1 (8). He did not discuss charitable work at the hearing. However, there was testimony that he.generally attends church regularly, both Saturday night and Sunday morning. Tr. 92 (Lukens)...

We are satisfied that the petitioner now has a better grasp of the proper balance between zealous advocacy and candor to the tribunal, such as to make unlikely a future lapse.4.

The suspension was for a year and a day. (Mike Frissch)

November 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, November 13, 2015

Bill Of Particulars

The District of Columbia Court of Appeals has granted rehearing and issued a corrected opinion in a disbarment matter  to correct its discussion of Bar Counsel's purported failure to provide the attorney a bill of particulars.

Mr. Barber next argues that he received insufficient notice of the charges against him because the Specification was “nothing more than a ‘shotgun pleading’” that did not adequately explain which factual assertions were used to justify which rule violations. Mr. Barber’s claim, however, is not that a bill of particulars was erroneously denied—it is that his constitutional right to due process was violated. We find no merit to this contention. Even assuming that the Specification was in some way deficient, Bar Counsel, in its opposition to Mr. Barber’s motion to dismiss, identified the factual allegations in the Specification that supported the particular rule violations of which Mr. Barber claimed to be uncertain. Moreover, at the outset of the hearing, Bar Counsel briefly went through each charge and explained which facts in particular supported each charge. The Constitution requires nothing more .

The court's revised opinion reflects its rjection of a host of other procedural claims. (Mike Frisch)

November 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 12, 2015

A Vow For Better Future Conduct Falls On Deaf Ears

An attorney with a record of prior discipline has been suspended for two years and until further order by the New York Appellate Division for the Second Judicial Department.

The priors

The respondent has an extensive prior disciplinary history, consisting of: (1) a letter of caution in September 1996, for neglecting an immigration matter and for failing to timely apply for relief from deportation, resulting in the client's deportation; (2) an admonition in January 1998, for neglecting a matrimonial matter and failing to keep his client apprised of its status; (3) an admonition in October 2001, for failing to satisfy an outstanding default judgment against him arising out of his failure to pay rent on his law office; (4) an admonition in October 2001 for neglecting personal injury matters entrusted to him by two clients; (5) an admonition, personally delivered in December 2008, for neglecting four separate legal matters (for the same client) and for entering a business transaction with that client by improperly borrowing money from him; and (6) an admonition, personally delivered in November 2012, for neglecting a matrimonial matter and for failing to advise the client that he had moved his law office.

Here, the misconduct involved both neglect and a loan from a client.

Having admitted the charges, the respondent seeks mercy or leniency, and would like to see fairness done. In mitigation, he states:

"I acknowledge that my regrettable misconduct has brought shame on you as attorneys. I intend to do better in the future. I have tried my best to mitigate the damages by refunding all legal fees to Rafael Camaron in Charge One and by making full payment with interest to Anthony Rechais in Charge Two."

The respondent's neglect of client matters is longstanding, for which he was repeatedly admonished in the past. Although apologetic, the respondent has undertaken no meaningful steps or measures to remedy his neglectful conduct. Notwithstanding the respondent's remorse and vows to do better in the future, we find that a two-year suspension is warranted in view of the respondent's extensive disciplinary history, which we consider to be an aggravating factor.

November 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Great News!

The District of Columbia Court of Appeals has approved consent dispositions in two disciplinary matters.

One case involved a one-year consecutive suspension (to another sanction) for false statements on the D.C. Bar application.

The parties stipulated that this court’s previous sanction in In re Thomas-Bellamy, 97 A.3d 591 (D.C. 2014) ("Thomas-Bellamy I"), which imposed a six-month suspension, constituted an aggravating factor. Respondent presented mitigating circumstances that included the favourable resolution of her Maryland disciplinary cases, and the fact that she did not take on any District of Columbia clients and fully cooperated with Bar Counsel. As a result, Bar Counsel and respondent negotiated imposition of discipline in the form of a one-year suspension with a fitness requirement, to run consecutive to the sanction imposed in Thomas-Bellamy I.

The other matter involves an extended period of neglect from 2002 to 2006 that was a result of alcoholism.

Based upon respondent’s recognition that he neglected client matters, he admittedly violated seven rules of the District of Columbia Rules of Professional Conduct over that period. These violations all stemmed from respondent’s alcohol dependence, and therefore, the parties stipulated that respondent satisfied his burden of proof and he met the factors required to mitigate his sanction. See In re Kersey, 520 A.2d 321 (D.C. 1987) (holding that alcoholism is a mitigating factor to be considered in determining discipline and identifying factors the court should consider when evaluating the appropriateness of the recommended discipline in disciplinary cases involving alcoholism). Additionally, the Committee considered respondent’s subsequent efforts to address his alcohol dependence and his cooperation with Bar Counsel as additional mitigating factors, which included  participation in an independent medical examination to assess his recovery from alcohol abuse and ability to practice law. The parties stipulate respondent has been substantially rehabilitated after receiving treatment for alcoholism since 2011, poses no current risk to his clients; and that he is not a recidivist risk while he continues to manage his disorders through Alcoholics Anonymous ("AA") and periodic counseling and continues to work in a well-staffed and automated work environment. As a result, Bar Counsel and respondent negotiated the imposition of discipline in the form of a four-month suspension, stayed in favor of an eighteen-month period of unsupervised probation with conditions. If Bar Counsel has probable cause to believe respondent violated any of the terms of his probation, he may seek revocation of probation. Further, if respondent changes employment and the parties cannot agree on any additional condition necessary to prevent a relapse, Bar Counsel may move to modify probation to include an appropriate additional condition.

Always a good day when a consent goes through. A great day when there are two approved consents. (Mike Frisch)

November 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 11, 2015

Lies My Lawyer Told Me To Tell

The Michigan Attorney Disciplinary Board has suspended a convicted attorney.

The Macomb Daily had this report

A Grosse Pointe Park-based attorney admitted he obstructed justice by telling a client to lie about a prior criminal conviction in U.S. Immigration Court.

 David K. Wegner, 70, pleaded guilty to obstruction of justice, punishable by up to five years in prison, on Thursday in front of U.S. District Judge Robert Cleland in Detroit. He is scheduled to be sentenced Jan. 7.

 U.S. Attorney Barbara McQuade says in a press release that Wenger instructed a client to not disclose he was convicted of third-degree criminal sexual conduct in 1990 shortly before he was to testify in May, 28, 2013. Wenger also repeatedly told his client and his client’s family to not reveal the conviction, and failed to disclose all of his client’s convictions in a legal document filed May 9, 2013, the feds say.

Wenger, who faces potential ramifications from the Michigan Attorney Discipline Board, had his law license suspected for 90 days in May 2012 for actions in connection with four other immigration matters, according to board records. He also failed to respond to a formal complaint. Wenger also was ordered by the board to pay restitution of $2,000 and costs of $1,914.16.

Wenger, admitted to the State Bar of Michigan in 1973, also was reprimanded by the board in 1992 and 2010, records say.

The suspension will remain in effect until final discipline is imposed. (Mike Frisch)

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Defense "Defies The Most Basic Principles Of Attorney Professional Responsibility"

The California State Bar Court Review Department found that a recommendation of disbarment was "abundantly supported" and in turn proposed that sanction for misappropriation of entrusted funds.

The defense

At the State Bar Court trial and before us, Anderson has offered as his sole defense that he was not the managing partner of the firm when the funds were misused and that he was only following the directives of the attorney who was the managing partner. He also points to mitigating factors, and states that his only misconduct was in not reporting to the State Bar earlier the loss of the clients’ funds, for which he should receive an unspecified sanction.


Anderson’s defense, rejected by the hearing judge, is unavailing because it is at odds with his actual role in the law firm, with the many personal acts he took to misappropriate the clients’ trust funds, and with his admissions that he was responsible for the safety and security of the clients’ trust funds, that he knew of the loss of the clients’ funds at the time of his acts, and he concealed those losses from the clients. His defense also defies the most basic principles of attorney professional responsibility.

 The resume

Anderson has no record of prior discipline. He graduated from the University of California Los Angeles Law School and was editor-in-chief of its Law Review. Admitted to practice in California at the end of 1967, he had seven years of experience as an associate in a large multinational law firm engaged in business transactional law, followed by service as the managing partner of a small firm which had a significant land development client in the Middle East and grew into a 27-lawyer multinational firm. Seeking less travel, he left that firm to practice business transactional law as a partner in two successive San Francisco law firms.

In 1998, Anderson joined the firm of Lanahan and Reilly in Santa Rosa, and became an equity partner in either 2001 or 2002. He served as managing partner in 2006 and 2007. In 2010, the firm was renamed Lanahan, Steever and Anderson, LLP. While at this firm, Anderson continued to do business transactional law.

The managing firm partner in the period 2009 through February 2012 was Scott Steever, but Anderson had signature authority on different firm and client trust bank accounts (CTA) and used that authority from about November 2009. Between March and December 2012, Anderson assumed the role of managing partner due to Steever’s illness.

 The review board found that the established misconduct seriously harmed the client victims.

Considering that it was repeated, occurring more than 50 times in these two matters over a two year period, it was certainly not aberrational, and we deem that the public could well be at risk of further such misconduct, particularly when viewing Anderson’s lack of insight shown at trial and on review.

We also agree with the diminished weight accorded by the hearing judge to Anderson’s character evidence. (Std. 1.6(f).) Only one witness, a business developer and financial and securities expert, testified in person. His version of Anderson’s misconduct was formed largely from Anderson’s view of the facts, and this witness did not believe that the formal disciplinary charges were correct. The remaining ten witnesses submitted brief written declarations,; and, as the hearing judge found, five of these declarants’ statements were word-for-word identical.

(Mike Frisch)

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tippecanoe And Suspended Too

A 60-day suspension has been ordered by the Indiana Supreme Court for misconduct in a paternity action filed in Tippecanoe County

Mother later hired Respondent, who filed a motion for change of venue to Lake County, where Mother resided. The court denied the motion. In several written communications between August 7, 2012 and April 12, 2013, Respondent accused Father’s counsel of having arranged venue in Tippecanoe County by fraud, deceit, and trickery; of intentionally violating Mother’s rights as a disabled person in refusing to transfer venue to Lake County; and in engaging in other unprofessional and unethical conduct. Respondent also wrote to Father’s counsel, “[y]our possibly homophobic, racist, sexist clients should not be using the Courts to further that agenda.” In some of these communications, Respondent threatened to file a disciplinary complaint against Father’s counsel unless counsel would accede to Respondent’s demands that venue be transferred to Lake County. Respondent also accused Father of having stolen money from his client and proposed that Respondent and Mother would not press criminal charges if opposing counsel would agree that the paternity case should be transferred to Lake County.

In April 2013, Respondent filed a motion to correct error in the paternity action with respect to the denial of Mother’s motion for change of venue to Lake County. In the motion to correct error, Respondent accused the judge of taking a “stubbornly injudicious attitude” toward the court proceeding, and further accused the judge of "taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.” Respondent withdrew his appearance in the paternity case shortly thereafter.

The hearing officer found a lack of remorse in aggravation and lack of prior discipline. as mitigation. (Mike Frisch)

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Child Porn Conviction Leads To License Revocation

The Wisconsin Supreme Court has accepted the license revocation of an attorney admitted in 1988.

In March 2015, Attorney Switalski entered guilty pleas to ten felony counts of child pornography. An additional 22 counts were dismissed but read in for sentencing purposes. In June 2015, Attorney Switalski was sentenced to ten three-year prison terms, to be served concurrently, each followed by five years of extended supervision. Attorney Switalski is currently in prison.

He had been  "a school teacher and coach at Newman Catholic High School in Wausau."

 Wausau Daily Herald reported on the March 2015 conviction

 A former Newman Catholic High School teacher and coach was convicted Monday of 10 counts of possession of child pornography.

Michael Switalski, 51, of Wausau taught religion, law and history.

An additional 22 counts of possession of child pornography were dismissed and read in during the plea hearing in Marathon County Circuit Court. Those charges can be considered at the time of sentencing.

Investigators searched Switalski's home and found 95 photos and a dozen videos showing naked children in various poses, according to the criminal complaint. He was charged in March 2014.

Switalski is one of hundreds of customers worldwide who bought videos from Toronto company Azov Films and received the videos through the mail, according to the criminal complaint.

(Mike Frisch)

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Jail Time For Attorney

The Detroit Free Press reports on a dispute with a judge that will land an attorney in jail

A well-known and outspoken Macomb County defense attorney has a 20-day jail sentence awaiting him when he finishes defending his client in an ongoing criminal trial.

Timothy Barkovic, who got in trouble several years ago after getting into a courtroom tussle, will have to serve the jail sentence and pay a $250 fine after a Macomb County Circuit Court judge found him in contempt several times Friday during the trial.

Macomb County Circuit Judge Edward Servitto said in court today that the jail sentence — to be served after the verdict in the trial — was imposed after Barkovic “defiantly refused to answer” the judge's questions about a conversation that had occurred outside the courtroom. The judge said he wanted to make sure jurors were not prejudiced by the topic of a loud conversation between Barkovic and the assistant prosecutor at the copy machine 6 feet from the jury room.

Barkovic is representing Eric Gala, who is accused of keeping his elderly parents in an unsanitary room in their Fraser motel in 2013. Gala is charged with second-degree vulnerable adult abuse and embezzlement from a vulnerable adult over $100,000. His trial started Oct. 29...

The Gala case has had many twists and turns, including a prior request from the prosecutor’s office to disqualify Barkovic, which was granted. Barkovic was reinstated when Gala refused to speak to the new attorney as the court ordered.

Barkovic — who said in court today that he has been loud since he was a kid —  also is charged with stalking and disturbing the peace in 41B District Court in Clinton Township in an unrelated matter for allegedly harassing his next-door neighbors in Harrison Township for more than a year. He is scheduled for a pretrial hearing Nov. 18. Barkovic has said the charges are “totally unfounded” and that the county prosecutor is retaliating against him.

In 2009, Barkovic faced misdemeanor assault charges after a scuffle with a police officer in district court in Shelby Township.

(Mike Frisch0

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Day Of Admission

The Maryland Court of Appeals heard oral argument yesterday morning in a bar admissions matter.

Later in the day the court (a majority concurriing) granted admission.

The oral argument focus on a criminal matter that took place about 15 yars ago. (Mike Frisch)

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Holding Out

The Pennsylvania Supreme Court added 18 months to a three-year suspension for practice while suspended

Respondent received notice of Supreme Court's Order placing him on administrative suspension as well as correspondence from the Disciplinary Board alerting Respondent to the restrictions placed on administratively suspended attorneys. Nonetheless, shortly thereafter, in the Pennsylvania SEC matter, Respondent held himself out as an attorney to the SEC, using stationery with letterhead from his former law office, providing an address of a nonexistent law office, and including the professional designation of "Esq." after his name . The SEC informed ODC of Respondent's transgressions and ODC promptly sent Respondent a DB-7 Request informing Respondent that his conduct before the Pennsylvania SEC may have violated the Rules of Professional Conduct.

Undaunted, Respondent again held himself out as an attorney to third parties and used both stationery and the escrow account from the "Elam Law Firm" in the Motion Picture Project matter. Even after the Supreme Court ordered that Respondent be suspended from the practice of law for three years, Respondent continued to engage in the unauthorized practice of law, in that he knowingly continued to hold himself out to third parties as an attorney, engaged in prohibited law-related activities, and received a legal fee for doing so.

Respondent's repeated conduct of using stationery with the letterhead of the Elam Law Firm, an escrow account entitled "The Elam Law Firm," and the professional designation of "Esq." after his name was analogous to the deceitful conduct of the attorneys in Goldin-D:idinsky, Moeller, and Martin. Goldin-Didinsky and Moeller . both used legal stationery with a non-existent law office address, whereas Martin created a fee agreement for a non-existent law firm. These three formerly admitted attorneys, like Respondent, knowingly gave documents to third parties that falsely communicated that they were in good standing.

The sanction was imposed by consent. (Mike Frisch)

November 11, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, November 10, 2015

Two Gone In Ohio

Dan Trevas reports two disciplinary matters decided today by the Ohio Supreme Court

In  separate disciplinary cases announced today, the Ohio Supreme Court indefinitely  suspended two attorneys, each with more than 20 years of legal experience, from  the practice of law.

  • The Supreme Court indefinitely  suspended with conditions Columbus attorney David C. Watson Jr.
  • The Supreme Court indefinitely suspended  with credit for time served Toledo attorney Deneen M. Marrelli.

Watson’s Violations Occurred While on Probation       In Columbus Bar Assn. v. Watson, the  Supreme Court noted that in 2012 it found Watson had committed multiple  violations of the Rules of Professional Conduct and sanctioned him to a one-year suspension of his law  license. That suspension was stayed with the condition he contract with the Ohio  Lawyers Assistance Program (OLAP) for help and serve a monitored probation. In February  2014, he completed his OLAP contract, but remained on probation. In September  2014, the Columbus Bar Association charged him with additional misconduct  involving client matters, and a three-member panel of the Supreme Court’s Board  of Professional Conduct found he violated two rules. The panel and the full  board recommended the high court indefinitely suspend him with his  reinstatement subject to several conditions.

In a per curiam decision,  the Court found the charges against Watson, who was admitted to practice law in  Ohio in 1985, stemmed from two incidents. In 2011 and 2012, he accepted multiple  retainer payments from a couple who asked Watson to represent them in a real  estate dispute. Watson deposited the payments into his general business account  rather than into a required interest-bearing client trust account. The couple  became dissatisfied with his representation and filed a grievance against him  with the Columbus Bar Association. The parties arbitrated the case and it resulted in Watson refunding  the couple $3,862. It also led to the Board of Professional Conduct finding  Watson failed to comply with the rule requiring retainers be held in the client  trust account separate from general business accounts.

In June 2012, Watson accepted a  $3,500 retainer from a couple to represent them as potential creditors in a  bankruptcy case, which he also failed to deposit in the client trust account.  Watson filed two documents on behalf of the couple. Watson conceded one  document could have been completed by a non-lawyer, and the second was a  two-page objection to the debtor’s plan. It was rejected by the bankruptcy court  because it was based on incorrect information mistakenly taken from an  unrelated case. The bankruptcy court overruled the objection because Watson  failed to appear as counsel for the couple. Based on his action, the board  found Watson violated the rules for charging and collecting a clearly excessive  fee.

When considering the board’s  recommendation of an indefinite suspension with conditions, the Supreme Court  considered the aggravating factors of Watson’s prior  disciplinary actions, engaging in multiple offenses, and having a selfish  motive. The Court also considered mitigating factors including his timely  restitution payment when ordered and having a cooperative attitude toward the  disciplinary proceedings.

“Watson has  demonstrated a pattern of the same misconduct in two separate disciplinary  matters – namely, repeatedly failing to deposit client funds in his trust  account. And even worse, when he engaged in the misconduct at issue here, his  prior disciplinary case was either pending or he had already been placed on  probation,” the Court wrote in the unanimous opinion.

Watson told the board  he is no longer practicing law, and the Court ruled that if he wants to seek  reinstatement, he has to complete four tasks including adjusting the fee taken  from the couple he represented in bankruptcy court and successfully completing  his probation conditions.

2015-0593. Columbus Bar Assn v. Watson, Slip  Opinion No. 2015-Ohio-4613.

Video camera icon View oral argument video of this case.

Marrelli Previously Suspended In June 2013, the Mahoning County  Bar Association filed a complaint with the Board of Professional Conduct  charging Marrelli with seven rule violations arising out of her 2010  representation of man in a post-divorce custody matter.

The charges against her included  charging a clearly excessive fee, dividing fees with lawyers who are not in the  same firm without getting the client’s written approval, and not fully  disclosing the identity of the other attorneys and the work they were doing.

Marrelli, who was admitted to  practice law in Ohio in 1989, did not respond to the complaint brought by the  bar association, and the Court imposed an interim default suspension. The board  set a hearing for Marrelli to demonstrate why it should not transform the interim  suspension into an indefinite suspension, and Marrelli was also charged with  violating rules for not assisting in a disciplinary investigation or keeping  the Court apprised of her residential and office addresses.

When considering a sanction,  the board found that Marrelli was not acting with a dishonest or selfish motive  and she refunded the client a portion of the retainer paid. But it also noted  the client failed to appear at two court appearances where Marrelli was to  represent him. The Court, in a unanimous decision, adopted the board’s  recommendation that Marrelli should receive an indefinite suspension with  credit for the time served under the interim default suspension.

2013-1253. Mahoning Cty. Bar Assn. v. Marrelli, Slip  Opinion No. 2015-Ohio-4614.

Video camera icon View oral argument video of this case.

(Mike Frisch)

November 10, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 9, 2015

Motherless Child

A public reprimand has been imposed by the Indiana Supreme Court on these facts

A few days after the custodial mother of a five-year-old child died, maternal relatives consulted with Respondent regarding the maternal grandparents’ desire to obtain custody of the child and return with the child to the grandparents’ native Kenya following the mother’s memorial service in South Bend. The child’s father lived out-of-state, was in arrears on support, and had had very little contact with the child during the last three years.

Respondent filed a motion in the St. Joseph Probate Court seeking leave for the grandparents to intervene and an award of custody to the grandparents. Respondent did not serve the motion on the father. At Respondent’s request a hearing was held two days after the motion was filed. Respondent did not provide the father with notice of the hearing, nor did he request the court to postpone the hearing in order to give the father a chance to be heard. Respondent also did not allege that emergency judicial relief without written or oral notice to the father was authorized. See Trial Rule 65(B) (requiring, among other things, that an applicant’s attorney certify to the court in writing the efforts made to provide notice to an adverse party or the reasons why such notice should not be required). Following the hearing, the probate court awarded the grandparents custody of the child, and thereafter the grandparents returned to Kenya with the child.

The father later filed a motion to correct error and to set aside the order awarding grandparents custody. The grandparents returned from Kenya with the child for a hearing, after which the probate court granted the father’s motion and held that the father should be the child’s primary custodian. (In their briefs, the parties indicate that the father later chose to relinquish custody and that the child returned with the grandparents to Kenya, where he has remained).

The attorney admitted the facts. (Mike Frisch)

November 9, 2015 in Bar Discipline & Process | Permalink | Comments (0)