Saturday, April 15, 2017

Tax Court Disbarment Affirmed By Federal Circuit Court

The United States Court of Appeals for the District of Columbia Circuit affirmed a United States Tax Court disbarment order.

Attorneys have duties not only to clients, but to opposing counsel and courts. Because our legal system depends on attorneys working with opponents and abiding by court orders, each court has the “inherent power” to control attorneys’ admission to its bar and their expulsion. In re Echeles, 430 F.2d 347, 349 (7th Cir. 1970).

The United States Tax Court has disbarred Wilfred I. Aka for repeated failures to discharge his duties to the court, clients, and opposing counsel alike. Today we uphold its order, clarifying in the process the basis for our jurisdiction in this case and the proper standard of review.

As to jurisdiction

Although we have reviewed Tax Court disbarment orders on previous occasions, see In re Thies, 662 F.2d 771 (D.C. Cir. 1980); Rodriguez v. U.S. Tax Court, 398 Fed. App’x 614 (D.C. Cir. 2010); Krouner v. U.S. Tax Court, 202 Fed. App’x 470 (D.C. Cir. 2006), we have not expressly held that we have jurisdiction to do so. Today we confirm that we do.

Standard of review

in this appeal from the Tax Court’s disbarment order, we will review the court’s factual findings for clear error. Nonetheless, we will consider de novo appellant’s argument that the Tax Court violated the Fifth Amendment’s Due Process Clause.

He had previously been reprimanded.

Only three years would pass, however, before the Tax Court again ordered Aka to show cause why he should not be disciplined, this time for misconduct in seven other cases. Again the Tax Court accused him of missing hearings, ignoring opposing counsel’s requests for documents and conferences, and disregarding court orders, all in violation of its practice rules and the ABA Model Rules of Professional Conduct. Again the court gave him an opportunity to make his case. The court first extended by more than three months the time period allowed for Aka to respond to its show-cause order, a period in which Aka submitted three written documents. The court also held a disciplinary hearing at which Aka appeared with counsel and provided testimony. These written and oral submissions were discussed in detail by the Tax Court in its memorandum suborder, but again the court found that Aka disputed no material facts but only blamed his clients. The court also noted that even if Aka was right that his clients had hampered his work on their behalf, he was still at fault for shirking his duties to opposing counsel and the court itself. As it also observed, “[t]he fact that Mr. Aka’s failures are chronic and extend over the entire period that he has been admitted to this Bar, continuing even after his most recent disciplinary hearing, compel us to conclude that they are done knowingly.” Supp’l App. at 27. The Tax Court thus disbarred Aka for violating its orders and rules, this time willfully, and a month later denied his motion to vacate or modify its disbarment order.

Merits

In Aka’s telling, the Tax Court’s failure to propose a plan for his reinstatement robbed him of due process in violation of the Fifth Amendment; and that court’s decision to disbar him deprived him of substantive due process. Neither claim succeeds.

First, Aka offers no legal authority for his contention that the Tax Court violated his due-process rights. Due process requires a court pursuing disbarment to give attorneys fair notice and a chance to be heard, and to follow its published rules for disbarment proceedings. Ruffalo, 390 U.S. at 550; In re Bird, 353 F.3d 636, 638 (8th Cir. 2003). The Tax Court did so here; Aka does not deny that. He claims instead that the court deprived him of due process by failing to lay out steps for his reinstatement. Due process does not require such guidance, however, and Aka cites no authority to show that it does.

Second, Aka contends that the Tax Court denied him substantive due process by, for example, disbarring him absent evidence that he had committed any crime...It is impossible to wrench from these cases a substantive due  process right to bar membership or against unduly harsh disbarment. Indeed, Aka’s substantive due process claims are so “completely devoid of merit” that they do not trigger our jurisdiction to consider claims made under federal law. 

Judge Rogers concurred

In sum, this court’s published opinions reflect a fulsome scope of review of the factual record and the disciplinary procedures afforded to the attorney. Although acknowledging that due deference is to be accorded to the discretionary choice of discipline by the imposing court, see Ex parte Burr, 22 U.S. 529, 530 (1824), this court all the while renders an ultimate assessment of what is appropriate in view of the facts found and the process afforded during the disciplinary proceeding, see, e.g., In re Snyder, 472 U.S. 634, 647 (1985); Sacher v. Ass’n of the Bar of City of New York, 347 U.S. 388, 389 (1954); see also In re Jacobs, 44 F.3d at 88 (interpreting Burr). Succinctly put, this is an abuse of discretion standard of review, which encompasses examination of “whether the reasons given reasonably support the conclusion.” Kickapoo Tribe, 43 F.3d at 1497 (quoting Johnson v. United States, 398 A.2d 354, 365 (D.C. 1979)).

Today, the court, much as in our unpublished opinions declining to choose between abuse of discretion and de novo review, purports to avoid making the choice again, going only so far as to adopt a clearly erroneous standard of review for factual findings and a de novo standard of review of constitutional Due Process challenges. Op. 4. But our precedent indicates this court will decide for itself the appropriateness of a sanction in cases that present serious concern about the extent of discipline imposed. Whatever discomfort there might be to extending an abuse of discretion review to the disciplinary actions of an Article I court, see Freytag v. Comm’r of Internal Revenue, 501 U.S. 868, 891 (1991), this court is bound by Section 7482(a)(1) and our interpretation of it. See LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996).

Judge Griffith concurred in his own opinion

Our panel opinion notes that we have jurisdiction to hear Aka’s procedural challenge to the Tax Court’s disbarment order, that this challenge fails, and that the Tax Court has not come close to depriving Aka of substantive due process.

I do not believe, however, that due process claims are the only ones that Aka has raised before us. He has also argued that the Tax Court’s decision to disbar him—the result, and not simply the process—was too severe a penalty for his particular misconduct. As Aka raises it, this objection is not a constitutional one, rooted in due process or otherwise. It is simply an argument that in imposing such a grave and lasting penalty, the Tax Court abused its discretion.

I take no position here on whether we have jurisdiction to hear such non-constitutional challenges to disbarment orders...

This court need not “respond specifically to every argument made by every appellant.” Troy Corp. v. Browner, 129 F.3d 1290 (D.C. Cir. 1997). But disbarment orders are serious business. In reviewing them, we owe attorneys a thorough treatment of their arguments, however unpromising. I have written separately with that in mind.

(Mike Frisch)

April 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Privacy V. Public Access In Canadian Bar Admission

An important issue in bar admissions involves striking a proper balance between the privacy of an applicant and the public interest in matters involving attorney licensure.

An applicant who was admitted last November by the Law Society of British Columbia despite allegations of collaboration on a test raised issues of the confidentiality of the proceedings.

As a result, an order governing public access to information about the case has recently been entered by a Hearing Panel.

We accept that the parties, through their agreement, have identified the Confidential Information within the hearing record and the Admission Decision that is highly personal and sensitive for the Applicant and other individuals.  We further accept that, to the extent the parties have reached agreement, disclosure of the Confidential Information has no public interest value.  We address below the question of the public interest value of the Confidential Information in respect of which the parties do not agree.

Again, the Law Society in its submissions accepts that the agreed to restrictions on disclosure of the Confidential Information would not compromise the Law Society’s ability to inform the public of the result of the Admission Decision and the essential reasons for that result.

The disclosure of information involves a balancing of interests

In Applicant 9, the panel sought to weigh the public interest in hearing transparency and openness on the one hand against the value of personal privacy on the other.  The panel concluded that some of the information in evidence was highly sensitive, and its disclosure could be damaging to the privacy interests of the applicant.  Conversely, there was no public interest value in disclosing the sensitive personal information.  Therefore, the balance clearly favoured restricting disclosure of the information.

In this matter, a similar balancing of interests is required; however, the considerations are not as straightforward as in Applicant 9

There, the underlying issues had all been finally determined.  The competing interests being weighed were relatively discrete and known.  The public interest was limited to ensuring that the process was transparent and that the community could be sufficiently informed of the decision and the reasons for it.  The applicant’s interest was limited to preserving his personal privacy in respect of past conduct.

Here, the public interest goes beyond transparency and openness in regard to a completed hearing process.  Rather, consideration must be given to the public interest in enabling the Law Society to pursue its core mandate of protection of the public by engaging in additional prospective processes arising from the evidence disclosed in this matter.

The Law Society’s ability to take additional steps for the protection of the public following the conclusion of this matter is a significant factor to consider in balancing the competing interests.

On the other hand, the considerations militating in favour of restrictions on disclosure of the Confidential Information include not only the Applicant’s personal privacy, but also matters of broader public interest, including avoiding additional new harms to the Applicant and others.

The hearing panel's order limited access to portions of the hearing transcript and the findings.

The underlying admissions issue

The Applicant...admitted to collaborating with another student (“Student 1”) in respect of two Professional Legal Training Course (“PLTC”) assessments (together, the “Assessments”) when students were expressly and repeatedly instructed that such collaboration was prohibited.

In this matter, the Law Society took the position that, notwithstanding the seriousness of the Applicant’s conduct, if this Panel accepted the Applicant’s evidence explaining how and why she engaged in the prohibited collaboration, it would be open to us to conclude that the Applicant is of sufficiently good character, repute and fitness to be called and admitted.

 The Panel found the Applicant to be credible and forthright, including with respect to her explanation of her admittedly inappropriate conduct.

[Given our conclusion in that regard, and in light of the Applicant’s particular circumstances, which are set out in greater detail below, the Panel finds that the Applicant has met the test and is eligible to be called and admitted.

The similarity of drafting between applicant's submission and that of another student had been noticed. 

Applicant admitted the violation when confronted and provided incriminating Facebook messages

Student 1:      A little worried about getting done for working together if our shit looks too much alike.  But trust we can figure out a way not to plagiarize each others [sic] crapola.

Applicant:      Ya I’m super paranoid about that shit so you don’t need to worry about me taking yours or anything.

(together, the “Facebook Messages”)

The Applicant testified that she was surprised to see the reference in Student 1’s message to “working together.”  She recalled that, at the time, she had associated “cheating” with plagiarism.  That is the reason that, in her response, she had stated she would not take Student 1’s work.

In cross-examination, counsel for the Law Society put it to the Applicant that the Facebook Messages in fact showed that she was “at pains to avoid getting caught” collaborating.  The Applicant disagreed with this proposition.  She testified that she was focused on her concern about plagiarism, not collaborating.

In her favor

The Applicant’s behaviour following the discovery of her collaboration speaks even more favourably to her good character than was the case in Cattermole.  There, the student initially denied her plagiarism to both her principal and the Deputy Director of the Alberta bar admission course.  Nonetheless, such conduct in that matter did not result in the student being denied call and admission, although it is important to recall that Cattermole was a discipline, rather than a credentials matter.  In any event, the Hearing Committee determined that only a reprimand was required, at least in part, due to the stresses that the student had experienced leading up to her misconduct in light of the negative consequences that she had already suffered.

The balance of the interests of privacy and the public interest in the bar admissions process is a difficult one to strike.

As an example , I am previously on record that Louisiana in particular offers little guidance in articulating standards and reasoning in conditional  admission matters.  (Mike Frisch)

April 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 14, 2017

Do Not Hit Send

A complaint recently filed by the Illinois Administrator alleging the following rule violations

  1. in representing a client in a domestic relations dispute, using means that have no substantial purpose other than to embarrass, delay, or burden a third person, including sending offensive emails regarding [opposing counsel] Ms. Renwick to her former professor and making disparaging comments and references to and about Ms. Renwick, her client, and her client’s child in pleadings filed publicly with the court, in violation of Rule 4.4(a) of the Illinois Rules of Professional Conduct (2010); and

  2. conduct that is prejudicial to the administration of justice by sending harassing emails to opposing counsel and making sexist and inappropriate references to her in pleadings filed publicly with the court, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

The case

Respondent represented Fredrick Williamson in a dispute regarding the allocation of parental responsibilities of Mr. Williamson’s child. The case was docketed in the Circuit Court of Cook County, Domestic Relations Division, as Williamson v. Hines, case number 2016 D 8018. Masah S. Renwick represented Kimberly Hines, the mother of the child, in the matter.

He filed a pleading that referred to Ms. Renwick as "Ms. Loudmouth," and made other uncomplimentary comments ending with "like a dull knife, just ain't cutting'; You just talkin' loud and sayin' nothing!"

Respondent attached a picture of the child who was the subject of the proceeding to the Memorandum. Respondent stated in the Memorandum that he "read" the child as "tacky," a "HOT GHETTO MESS," and "PEDOPHILE BAIT!!!!!!!!!!!!!!!!!!." (emphasis in original) Citing to a "[b]lack [j]oke," Respondent wrote that the child "lookted [sic] like a weevehead, midget stripper, bout to jump on the pole and twirl." In the Memorandum, Respondent stated that the child’s mother, Ms. Hines, perpetrated the obscenity because she was "creating a mini-me to accompany her as an accessory, like a big Louis Vuitton bag." Respondent accused Ms. Hines of having low self-esteem, and stated that if anyone suffered from a learning deficiency, it was Ms. Hines and not her child.

Respondent also stated in the Memorandum that the child’s mother suffered from psychoses, and referred to Ms. Renwick’s argument in court as "bumbling incompetence." He accused Ms. Renwick of "tootsie rolling" (which Respondent defines as "[l]ollygagging"), over Labor Day weekend, rather than working on the case.

Respondent included several acknowledgements at the end of the Memorandum including one to the "wratched, Antonin Scalia" for teaching Respondent to be "mean, vicious, and viperous, with sarcasm and wit." Respondent also stated that while he could "try to do Richard A. Posner," (referring to the Judge of the United Stated Court of Appeals for the Seventh Circuit), Justice Posner "can’t even begin to try to possibly do me."

 There are also email charges

Respondent forwarded to Ms. Renwick an email invitation to a Halloween party that he had received from Val and Frank Motley. Mr. Motley was a college professor of Ms. Renwick and the dean of admissions at her alma mater, Indiana University. In the email that he sent to Ms. Renwick at 10:22 p.m. that evening, Respondent included the message "You’re NOT invited."

On September 22, 2016, at 10:30 p.m., Ms. Renwick replied to Respondent’s email regarding the Halloween party and advised him that she had a standing invitation to the Motleys’ party.

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 9:14 a.m. email at 10:43 p.m. in which he stated the following: "Frank [Motley] told me to treat you like a real lawyer. So I decapitated you. … Just who the hell do you think you were patronizing. Certainment non moi! Big mistake."

On September 22, 2016, Respondent replied to his own 10:43 p.m. email at 10:50 p.m. in which he told Ms. Renwick to "get to work, or be quiet."

 On September 22, 2016, Respondent sent a reply to Ms. Renwick’s 10:30 p.m. email at 10:54 p.m. in which he stated that he could have Ms. Renwick disinvited from the Halloween party, and that Ms. Renwick may find herself disbarred. In that email, Respondent also inquired as to whether Ms. Renwick would be "wearing [her] weave" to the next court date.

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 10:58 p.m. in which he told Ms. Renwick that she may have met him in law school, but that Respondent was in disguise. In that email, Respondent also told Ms. Renwick that "[y]ou don’t seem to know too much."

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 11:05 p.m. His reply copied Frank Motley, and Respondent stated the following about Ms. Renwick: "She could be disbarred and doesn’t even realize it."

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 11:10 p.m. His reply copied Mr. Motley, and Respondent stated that Ms. Renwick was "out there seriously perpetratin’."

On September 22, 2016, Respondent sent another reply to Ms. Renwick’s 10:30 p.m. email at 11:16 p.m. His reply copied Mr. Motley, and Respondent stated that Ms. Renwick was a "trip" and that she should attend the Motleys’ Halloween party as "herself, a real witch."

And  in a motion

Respondent stated that Ms. Renwick "dresses for court like she’s going to a cocktail party, tottering about in five inch, open toed stilettos at 9:30 a.m., not p.m., obviously dazed and confused, too much leg, too much décolletage, far too much mouth, and, in general just too much." Respondent criticized Ms. Renwick’s attire and compared her to a bad imitation of Alexis Carrington Colby, a character from the 1980s television show "Dallas." Respondent called Ms. Renwick a "walking joke performing as a lawyer," a "total nightmare," and an "affront to working women everywhere."

Back to electronic messages

On October 5, 2016, Respondent sent Ms. Renwick an email at 10:19 p.m., and he copied Frank Motley on that email. In that email, Respondent told Ms. Renwick that she had "let loose" her "big mouth" one time too many, and that she needed to "keep [her] big trap shut." Respondent told Ms. Renwick that she had "f[*]cked with the wrong person," and that he would "drag [her] through the mud and slam [her] against a brick wall, before handing [her] over to the ARDC for intense questioning." He advised Ms. Renwick that she would need a lawyer to defend her license to practice law.

In his October 5, 2016 email, Respondent referred to Ms. Hines as "a whore – an educated whore – but a whore none the less," and stated that going to church at this late date would not help her. He referred to Ms. Hines as a "looser" [sic] and a "trollop" and assured Ms. Renwick that she would "go down" with Ms. Hines.

Also in his October 5, 2016 email to Ms. Renwick, Respondent told her that she was in "deep doo doo" and didn’t even know it. Respondent referred to Ms. Renwick as "Uma Brincadeira Grande – A Big Joke in Portuguese," and promised her that he would continue to write "exceptionally nasty things about [her] conduct as a lawyer" that would become part of the public record. Respondent warned Ms. Renwick to come to her senses before it was too late, and he threatened that if she continued to "play with" him, it would not end well.

On October 4, 2016 at 6:02 p.m., Respondent sent Ms. Renwick an email, copying Frank Motley, in which he invited her to "Temptation Walk down to the ARDC."

On October 5, 2016, Respondent sent Ms. Renwick another email at 11:36 p.m. in which he, among other things, told her not to come "tootsie rolling up in court when the hearing date is set" and called her a "paragon of verbosity."

(Mike Frisch)

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

No Fighting Chance

One spouse has consented to disbarment in Illinois while the other is subject to a disciplinary complaint arising from their convictions for crimes against the wife's former legal employer

In 2014 and at other times, Leo Fisher ("Fisher") was the managing shareholder of the law firm of Bean Kinney & Korman, P.C. in Arlington, Virginia, and Respondent’s spouse, Alecia Marie Schmuhl ("Alecia Schmuhl"), was employed as an associate attorney at the firm.

 In or about October 2014, Fisher terminated Alecia Schmuhl’s employment at Bean Kinney & Korman, P.C.

In or before November 2014, Respondent purchased two prepaid mobile phones, and Alecia Schmuhl purchased adult diapers and a Taser.

On November 9, 2014, Alecia Schmuhl drove Respondent to the home that Fisher and his spouse, Sue Duncan ("Duncan"), both age 61, shared in McLean, Virginia. At or about 6:15 p.m., Fisher partially opened the front door, and Respondent pushed the door open and fired a Taser at Fisher’s chest. Alecia Schmuhl left and shortly thereafter, at Respondent’s request, Alecia Schmuhl drove back to the house to bring Respondent a backpack that he had left in their car.

On November 9, 2014, after entering Fisher and Duncan’s residence, Respondent displayed a novelty police badge and bound the couple. After Alecia Schmuhl gave the backpack to him, Respondent, over about a three-hour period, interrogated the couple, slit Fisher’s throat with a knife, and fired a pistol at Duncan (a bullet grazing her head) before he stabbed her several times in her neck, back and shoulders. Duncan feigned her death and then set off a security alarm and called 911. Alecia Schmuhl communicated by mobile phone with Respondent during the course of the evening and returned to pick him up down the street from the house. Alecia Schmuhl drove away from the scene with Respondent. When police tried to pull over the Schmuhls’ car, Alecia Schmuhl sped away. After several miles, Alecia Schmuhl stopped the car, and she and Respondent were arrested.

On May 18, 2015, based on the events described in paragraphs one through five, above, Respondent was charged with two counts of abduction with the intent to extort money, two counts of aggravated maiming, two counts of using a firearm in the commission of a felony, and one count of burglary, in a seven-count indictment returned against him in the Circuit Court of Fairfax County, Virginia, in the matter entitled Commonwealth of Virginia vs. Andrew Gilbert Schmuhl, case number FE-2015-467.

The complaint now proceeds to adjudication before a Hearing Board. (Mike Frisch)

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

A Blessing For Pot Advice

A clear and unambiguous statement of policy from the Massachusetts Board of Bar Overseers

BBO/OBC POLICY ON LEGAL ADVICE ON MARIJUANA

The Massachusetts Board of Bar Overseers and Office of the Bar Counsel will not prosecute a member of the Massachusetts bar solely for advising a client regarding the validity, scope, and meaning of Massachusetts statutes and laws regarding medical or other legal forms of marijuana or for assisting a client in conduct that the lawyer reasonably believes is permitted by Massachusetts statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.
 
(Mike Frisch)

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

On The Beach (House)

A published opinion of the California State Bar Court Review Department recommends disbarment of an attorney for misconduct in connection with a family trust

This disciplinary proceeding arises from Jane L. Schooler’s actions as trustee and executor of her parents’ multi-million dollar estate and trusts. The Office of the Chief Trial Counsel of the State Bar (OCTC) charged her with violating her fiduciary duties, making misrepresentations to the probate court, refusing to follow court orders and pay sanctions, and maintaining an unjust action by filing frivolous appeals. The hearing judge found Schooler culpable and recommended discipline including a two-year actual suspension continuing until she demonstrates her rehabilitation...

we affirm the hearing judge’s factual and culpability findings, as supported by the record. Though we do not assign additional aggravation, we recommend disbarment given Schooler’s egregious misconduct and the substantial harm she caused the beneficiaries, as detailed in the Factual Background. We do not recommend Schooler be ordered to pay sanctions in light of our disbarment recommendation and because the state courts have already ordered such payments.

In the case

The parties filed stipulations to admit documents and facts, and a 10-day trial commenced in April 2015. Schooler testified for five days. The hearing judge issued his decision in October 2015, and amended it on November 4, 2015.

The allegations involve misconduct a family trust

When Schooler’s parents originally created a family trust in 1989, it contained language designating the Beach House as a unique and special asset. It directed that the house should not be liquidated unless absolutely necessary, and should be made available for Schooler, Katherine, and Andrew to live in if they desired. The family trust also provided that any children living in the Beach House should pay the property taxes and a monthly rent not to exceed $2,500. When [mother] Rowena died, however, the special asset provision no longer applied because the Beach House was moved from the Rowena Trust to the Rowena Estate, which did not contain this specific provision.  Nevertheless, Schooler testified that she did not plan to sell the Beach House, and thus could comply with the restriction in the original family trust.

In 2004, when Rowena died, Schooler and her brother Andrew were living in the Beach House, and the lower level of the home was rented to tenants who were paying $2,200 per month. In early 2005, Schooler told Andrew he had to move out, and ordered the tenants to vacate the property. She told her brothers that she intended to paint and make repairs in order to sell the house by the end of 2005. But after Andrew and the tenants moved, Schooler did not put the Beach House on the market, re-rent it, or distribute it to her siblings by other means.  Instead, she continued to live in it and use income from the Rowena Trust and Trust B to repair and maintain it, spending a total of $106,779 on the Beach House from October 2005 to April 2007. She also changed the locks and installed a security gate, preventing the Schooler Brothers from accessing the property.

Schooler did not pay rent while she lived in the Beach House, although she represented in accountings that she paid $2,000 per month. Ultimately, she defaulted on the mortgage payments on the house, and Washington Mutual Bank recorded two notices of default and an election to sell against the property.

Schooler also did not pay taxes on the real property parcels in Las Vegas. As a result, the Office of the Clark County Treasurer issued three notices of intent to sell real property in December 2010. The notices stated that overdue taxes, penalties, and interest of $19,993, $20,004, and $19,900 were owed on the respective parcels, and the county had scheduled them to be sold at a public foreclosure auction.

Around April 25, 2011, Schooler filed a Chapter 11 bankruptcy petition on behalf of an entity called the “Schooler Trust” to avoid the sale of the parcels. On June 23, 2011, the petition was dismissed because the trust was ineligible to file for bankruptcy.

She failed to distribute assets, was removed as trustee and filed frivolous appeals.

To begin, Schooler committed multiple acts of moral turpitude, in violation of section 6106, and failed to comply with the law, in violation of section 6068, subdivision (a), as follows. She misused her authority and discretion, and violated numerous fiduciary duties set forth in the Probate Code by intentional means that were frequently infused with dishonesty and/or concealment. She made repeated misrepresentations to the court and third parties by filing documents falsely stating that she was a trustee and personal representative in an attempt to circumvent court orders. And she misrepresented her status when she executed a grant deed giving the Beach House to herself and Katherine, even though she knew that the court had ordered Trumble to evict her and sell the property. Finally, she intentionally violated court orders by failing to pay sanctions...

Schooler had a fiduciary duty under the terms of the trusts to equitably distribute the Rowena Estate to the named beneficiaries. Unfortunately for them, she failed in performing these duties for seven years after her mother’s death. In particular, she distributed almost none of the assets of the sizeable estate, and continued living in a major asset, the Beach House, after evicting her brother and rent-paying tenants. During the same time, she allowed the mortgage on the Beach House to go into default, failed to pay taxes on the Nevada properties, refused to accept offers to buy certain properties, and did not collect or pay any rent on the Beach House while she lived there. Her conduct contributed to a substantial loss in the value of the trust corpuses, which financially harmed her siblings who still have not received their full distribution of the estate. Moreover, after Schooler was removed as trustee, she filed a series of frivolous appeals and made misrepresentations to courts and others to try to retain control of the assets.

In sum, we find that Schooler’s blatant disregard for her ethical duties and for the court’s processes calls for discipline at the highest end of the range provided in standard 2.11— disbarment.

(Mike Frisch)

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

"Lip Service Does Not Translate Into Legal Service"

An Ad Hoc District of Columbia Hearing Committee recommends a 90-day suspension for an attorney of 40 years experience who seriously mishandled a civil claim and did not cover himself with glory in his defense to the disciplinary charges

Romeo Morgan, the owner of Morgan’s Seafood on Georgia Avenue, N.W., retained Respondent to represent him in a civil case against two officers of the Washington Metropolitan Transportation Authority (“WMATA”), WMATA itself, and any other appropriate entity, for injuries that resulted from an incident that occurred outside his restaurant. Respondent agreed to represent his interests. Respondent did not file suit within either the one-year statute of limitations for potential intentional torts or within the three-year statute of limitations for all other forms of tortious conduct. Mr. Morgan was a client who frequently called and spoke to Respondent not only about his case but also about other unrelated matters. Respondent assured Mr. Morgan that his matter was progressing properly. Respondent led Mr. Morgan to believe that a lawsuit had been filed by Respondent on his behalf and that settlement offers had been made by WMATA. At some point, Mr. Morgan asked an attorney who represented him in another matter, Jennifer Bezdicek, Esquire, to check on the case. Ms. Bezdicek learned that no suit had ever been filed by Respondent and that the three-year statute of limitations had expired. Further, she learned that there had been no offer of settlement from WMATA. Instead, Respondent had given the impression that Mr. Morgan could have a sum of money from WMATA, in an attempt by Respondent to avoid responsibility for failing to actually seek recovery from WMATA. 

The committee sets out at length the bumpy history of the representation. Respondent did not handle the criminal case brought against the client, which resulted in a not guilty verdict.

The client shopped the WMATA case to several lawyers (including respondent for a period of time) and retained him one day before the statute for intentional torts ran.

The disciplinary case was hotly contested with the attorney denying any misconduct.

Adverse findings.

At the hearing, Respondent attempted to deceive the Hearing Committee concerning his conversations with Mr. Morgan. Tr. 541-546 (Respondent). Respondent was unwilling to admit that he had specifically told Mr. Morgan at any time that he was advancing his legal interests. Id. Respondent also claimed, incredibly, that in his numerous phone conversations with Mr. Morgan over a two-year period, they never discussed the WMATA case—the case for which Mr. Morgan had hired him—and that his conversations with Mr. Morgan never caused Respondent to review the case file.

He dealt with the problem by deception

 In the summer of 2012, after Respondent knew that the statute of limitations had expired, he called Mr. Morgan and told him that WMATA wanted to settle the case and had offered $10,000. Tr. 57 (Morgan). Respondent was seeking to create the impression that the money was a settlement from WMATA. The offer was an attempt to deflect responsibility for blame rather than an offer of restitution. 

The hearing committee sustained most of the charged violations, rejecting only charges of intentional misconduct.

Disciplinary Counsel has proven by clear and convincing evidence that Respondent “dropped the ball” by allowing the statute of limitations to expire without filing suit or informing his client of an intent not to do so. In fact, Respondent didn’t just “drop the ball,” he never even got in the game...

Respondent’s effort to blame his secretary for misfiling Mr. Morgan’s file is not a defense. An attorney is responsible for his client’s case despite any errors by subordinates...

Respondent cannot excuse his failures by blaming his secretary for several reasons: 1) he had the case for two years before the statute of limitations for negligence actions expired; 2) during that time he was in frequent contact with Mr. Morgan; 3) Respondent never put any notes, information, or evidence in the file during that time; and 4) the whereabouts of Mr. Morgan’s file were easily discoverable. It should be noted that Respondent discovered, in December 2011, without any particular difficulty, that the case had been misfiled. All that it required was the desire to look for it. Respondent was not the victim of a set of bad circumstances. He did nothing during a time when his basic duties as a lawyer required him to act. Returning Mr. Morgan’s phone calls was not enough. Lip service does not translate into legal service.

Dishonesty

For a period of almost three years, Respondent misled Mr. Morgan into thinking that he was vigorously pursuing Mr. Morgan’s cause of action, even though he was not pursuing the claim. Respondent ignored the case despite a steady stream of questions from Mr. Morgan. However, even more disturbing than Respondent’s placating “we’re on top of it” pronouncements was what occurred after December 2011. At that point, Respondent knew that Mr. Morgan’s case was dead, but he still kept up the pretense of representation. Respondent had every opportunity to tell Mr. Morgan the truth, but he chose not to do so. During his testimony, Respondent did not explain why he kept silent. We can only infer that Respondent was trying to limit the amount of damage done, not to Mr. Morgan, but rather to himself. Proof of Respondent’s continuing dishonesty can be found in the fact that Mr. Morgan (a “high maintenance client”) continued to have discussions with Respondent even after the statute of limitations expired. Had Respondent been honest, Mr. Morgan would have known something in December 2011. 

Prior record

Respondent received an informal admonition for threatening an opposing party with criminal prosecution in violation of DR 7-105(A) in 1987. Respondent testified that he had no previous disciplinary record. He then tried to backtrack and say that it was a “minimal” history. 

On the respondent's defense

Certainly, Respondent has the right to put the evidence of Disciplinary Counsel to the test on its burden of proof. Such action is not counted against Respondent in any way. However, what is counted against Respondent is his attitude toward his misconduct. First, while blaming his secretary for misfiling, he “acknowledges” that the case was his responsibility. What Respondent fails to realize is that it was not the filing of the case folder in the wrong drawer that is the issue. Rather, it is everything he did and did not do after the case jacket was sent to the “Never Never Land” of the criminal filing drawer. He sat on a case doing absolutely nothing while assuring Mr. Morgan that he was looking after his interests. He did not even know where the file was. What happened is Respondent’s fault and not his secretary’s. After the discovery of his failure to file the case before the lapse of the statute of limitations, Respondent played a coy game with Mr. Morgan while he tried to figure a way to limit his own liability. When discovered by another attorney, he continued to try to bluff his way out without facing responsibility. He insulted the client to Ms. Bezdicek by saying that all he (Mr. Morgan) was interested in was money. He gratuitously insulted Mr. Morgan by referring to him as “the Mayor of Georgia Avenue.” This was clearly an insult implying that Mr. Morgan had an inflated sense of his own importance. It is uncertain what would have happened to Mr. Morgan if he had not had Ms. Bezdicek follow up on the case. It was her diligence alone that finally brought Respondent’s conduct to light. Respondent has never truly acknowledged his misconduct in any way.

The case is In re Jay Weiss and can be found at this link. (Mike Frisch)

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

Thursday, April 13, 2017

Refilling The Swamp

Because the Office of Disciplinary Counsel did not object, the District of Columbia Court of Appeals has summarily (without any hearing) reinstated convicted felon David Savafian.

 On consideration of Disciplinary Counsel’s report regarding petitioner’s petition for reinstatement wherein Disciplinary Counsel informs the court that Mr. Safavian has demonstrated that he is fit to resume the practice of law, and it appearing that petitioner is eligible to file the petition for reinstatement, see In re Safavian, 29 A.3d 479 (D.C. 2011), it is

ORDERED that petitioner’s petition for reinstatement is granted. It is

FURTHER ORDERED that David H. Safavian is hereby reinstated to the Bar of the District of Columbia.

The panel consisted of Associate Judges Beckwith and Glickman and Senior Judge Farrell.

When Disciplinary Counsel favors reinstatement and the Court does not object, the first notice received by the public is the order of reinstatement itself.

Having recently given the same free pass to Scooter Libby and Abramoff associate Robert Coughlin, it would appear that sympathetic understanding for convicted Republicans is a core value in the D.C. Office of Disciplinary Counsel.

Fear not, Kellyanne. (Mike Frisch)

April 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 12, 2017

Hold The Phone (Call)

The Oklahoma Supreme Court has reprimanded an attorney for two voicemail messages to a soon-to-be former client

Nichalas Frank hired the respondent in November of 2015 to represent him in three (3) criminal cases pending in Oklahoma County District Court. Mr. Frank's grandfather paid the respondent the five-hundred dollar ($500) retainer fee required to obtain his services, and Mr. Frank was to pay an additional total of $4,000.00 to the respondent in six monthly payments.  Frank, however, failed to make any further payments.

On March 15, 2016, the respondent learned during a staff meeting that Mr. Frank had not made any additional payments for attorney fees. The respondent reacted to this by telephoning Frank and, in front of his staff, leaving two messages containing expletives and threats. We will address the content of the messages later in this opinion.

After receiving the respondent's voicemail messages, Frank contacted a local Oklahoma City TV news station. In an interview with the station he stated he feared for his life because the respondent was pretty powerful, and "I'm pretty sure he can do what he wants to do at any moment." The TV station aired the news story on March 16, 2016, and played bleep-censored audio of both voicemail messages left by the respondent. He refused to be interviewed and did not comment on the allegations.

On March 17, 2016, Mr. Frank filed a grievance with the Oklahoma Bar Association regarding the respondent's conduct. That same day the respondent filed motions to withdraw from Frank's cases and was authorized to do so by the District Court on March 21, 2016.

In his written response to Frank's grievance, the respondent advised he had appeared in court on Frank's behalf and continued the cases because he was not getting paid, and he was trying to consolidate them before the same judge. The respondent went on to state that when he learned Frank had not paid the fee promised, he left the two voicemails, "in an attempt to get Frank to pay him so that he would not have to withdraw." In his written response, the respondent also stated that Frank

". . . needed me to get his attention and I did. . . . I simply spoke to him in words he understood. My communication was directed to him personally, and was intended to be private in nature. Sometimes communications with difficult drug addicted clients has [sic] to be blunt and straight forward to impress upon them the reality of their situation."

The expurgated version

The respondent objects to the Trial Panel's characterization of his conduct as "morally reprehensible." He believes the conduct involved merely offensive behavior and insults. He argues that the Trial Panel has expanded "morally reprehensible" beyond deceit, dishonesty, misrepresentation, criminality, and sexual misbehavior. While he appears to be focused on his choice of expletives, we are focused on the subject matter of the two recorded messages.

The respondent writes that "Swear words are the exclamation marks of spoken language." Modern dictionaries describe the words used by the respondent as offensive and vulgar. Because words in dictionaries are the result of substantial research, we accept that they accurately reflect the current public opinion of the words the respondent chose to use. We delete these expletives in quoting his messages.

The respondent left this message at 10:31 AM:

"Mr. Frank, this is Chad Moody. It's not your [deleted]. It's not your piece of [deleted] that you step on. It's not your slave. It's not your [deleted]. It's Chad Moody who works for you, but you won't [deleted] pay me! So why don't you come to my office, because I'm having a frustrating day, and I would like to really beat the [deleted] out of somebody and that way, you can at least make yourself somewhat useful to the human race. [Deleted] pay me [deleted]!"

Again, at 10:33 AM, the respondent telephoned Frank, and in front of his staff, left this message:

"Mr. Frank, by the way, Chad Moody, calling you back, and at this point, I really do think you should probably find other counsel because I'm to the point of wanting to see you go to prison and that's not a good equation. It gives me a horrible conflict of interest. So I'm letting you know I've got this conflict of interest because I would love to see your sorry [deleted] in prison because you're using me like your [deleted]."

The facts show that the phone calls immediately followed information from the respondent's staff informing him that Mr. Frank had not paid the attorney fees he had promised to pay. The respondent's subsequent verbal abuse and threats were a coercive attempt to intimidate Mr. Frank into paying. The substance of the messages does not support the respondent's explanations that he was trying to shock Mr. Frank into following the respondent's recommendations to him so he would receive a lighter sentence. The respondent's assertion that his choice of language was in his client's best interest and the language is protected by the First Amendment's Freedom of Speech Clause, found in the Constitution of the United States, is merely unpersuasive rationalization for rash acts.

The recorded tirade reveals that the respondent no longer intended to represent his client, he only wanted his fees to be paid. He is entitled to his fees, and as an attorney, he should know bullying and threats are not acceptable behavior for a professional who has sworn to uphold the rule of law. The courts are open to protect breaches of contract. Of all people, a lawyer should know that.

The conduct violated Rule 8.4(d)

We are concerned that the respondent does not appear to realize that his use of intimidation and threats to collect a debt due him is unacceptable behavior for an attorney. He shows no remorse, no embarrassment for his actions. He even defends the actions as protected speech. He testifies that his client deserved it for lying to him about paying the attorney fees. From his own testimony, he has asserted that such behavior is not his ordinary course of dealing with the clientele he has chosen to represent, that is, those who are accused of violating drug laws. Neither his two attorney witnesses, nor a member of his staff, who also testified at his hearing, were willing to testify that such invective should be considered acceptable behavior for an attorney. His actions violate ORPC 8.4(d), and RGDP 1.3. Justice cannot be administered by taking the position of a foe, by belittling one's own client, nor by informing the client that his lawyer wants to physically beat him and then see him go to prison. In other words, the respondent's conduct is prejudicial to the administration of justice. Such action also brings discredit upon the legal profession.

 In mitigation, the facts support this is not the respondent's typical method of handling his clients. He has not been disciplined by this Court before. We expect that the respondent will not repeat his behavior. There is no evidence before this Court that Mr. Frank suffered any legal harm regarding his criminal cases as the result of the respondent's withdrawal as Mr. Frank's attorney.

NewsOK reported on the sanction. (Mike Frisch)

April 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

More Likely A Dupe Than A Fraudster

The Tribunal Hearing Division of the Law Society of Upper Canada ordered limitations on an attorney access to trust funds but denied a motion for interlocutory suspension

Mr. Deonarain deposited four certified cheques totalling approximately $1.9 million into his trust account which turned out to be counterfeit. Before it was discovered that these cheques were counterfeit, Mr. Deonarain paid out nearly $1.4 million in certified funds which have not been recovered. As a result, his mixed trust account became overdrawn by approximately $1.35 million.

 The Law Society’s position is that this cheque fraud was possible because Mr. Deonarain was complicit in the fraud or, alternatively, because he failed to take precautions that he ought to have taken to avoid the fraud.

In 2012, Mr. Deonarain was found to have engaged in professional misconduct by failing to be on guard against assisting in dishonesty or fraudulent conduct in respect of nine residential real estate transactions between 2005 and 2008. In the vernacular, Mr. Deonarain allowed himself to be a dupe. The position of the Law Society is that Mr. Deonarain has, at the very least, once again allowed himself to be a dupe of a fraudster.

There is an outstanding investigation involving 50 questionable withdrawals from Mr. Deonarain’s trust account totalling $175,000. In March 2016, the Law Society unsuccessfully sought an interlocutory suspension in connection with this investigation and another investigation which has since been closed. Mr. Deonarain has not responded to certain requests made in respect of these withdrawals.

Mr. Deonarain categorically denies that he was complicit in the fraud. His position is that he is a victim and that, while it may be in retrospect that he should have acted differently, his licence to practise law should not be suspended.

The Division

The Law Society alleges that Mr. Deonarain was complicit in this fraud. Mr. Deonarain emphatically denies this. Our responsibility is not to determine this issue but rather to assess the probabilities. In our view, it is quite unlikely that Mr. Deonarain knowingly participated in a fraud. In any cheque fraud such as this, the lawyer is left with an overdrawn bank account and, subject to any available defence, owing the amount of the bad cheques to the bank. The victims in a cheque fraud are the lawyer, the bank and any other clients with monies in the mixed trust account. It is unlikely that a lawyer would knowingly assist a fraud in which the lawyer himself would be a victim – not impossible, but unlikely. In the face of his vehement denial under oath, which was not effectively challenged in cross-examination, and the inherent illogic of engaging  in a fraud on oneself, we consider the possibility that Mr. Deonarain was complicit in this fraud to be remote.

On the other hand, it appears more likely that Mr. Deonarain failed to be on guard against becoming the tool or dupe of an unscrupulous client. This was not an ordinary real estate transaction where money was paid and title transferred in return. The retainer was, to say the least, unusual. According to Mr. Deonarain, he did not know the client and did little to confirm his identity. He did little other than meet with VM, write three letters, receive three responses, deposit cheques received from VM and immediately give VM certified cheques in return. The documentation of the loan obligations was problematic. Mr. Deonarain did not prepare releases. The retainer made little sense and required little work. The agreed fee was $6,000.

Order

The Licensee shall not handle client funds in a general or trust account.

(Mike Frisch)

April 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 11, 2017

Breaking Up Is Hard To Do

A petitioner who had been suspended for two years and a day in 2012 had been granted reinstatement by the Oklahoma Supreme Court.

The suspension involved criminal charges

On January 30, 2009, Conrady returned to Oklahoma following a three-week trip to the Middle East. Conrady was met at the Tulsa airport by his longtime girlfriend, Janice Pierce ("Pierce"), for a return trip to Okmulgee. During the drive home, Pierce informed Conrady she no longer wanted to continue their relationship. Pierce dropped Conrady off at his apartment; however, she refused to discuss the relationship any further. At some point Pierce also advised Conrady that she had begun dating a fellow Sunday school teacher at her church, Steve McCroskey ("McCroskey"). 

Over the next twenty-four hours, Conrady became increasingly despondent. He began consuming vodka and taking pain medication. Pierce ignored Conrady's repeated efforts to contact her during this period of time. On the evening of February 1, an intoxicated and emotionally charged Conrady armed himself with a .45 caliber semi-automatic handgun and drove to McCroskey's residence. Fortunately, prior to Conrady's arrival, McCroskey and Pierce had departed to return McCroskey's six-year-old daughter to her mother in Wilson, Oklahoma. Conrady arrived at the residence and forcibly entered the house, armed with the loaded pistol. After finding no one present, Conrady fired rounds throughout the home, including into a bathroom mirror, a television, and other personal items belonging to Pierce's boyfriend. One of the rounds pierced an interior wall and the projectile was discovered in a bedroom normally occupied by McCroskey's daughter. Another round penetrated the outside wall of the house and lodged in a neighbor's storm door. After exiting the home, Conrady discharged his firearm multiple times into Pierce and McCroskey's unoccupied vehicles. Conrady left the scene and returned to his home in downtown Okmulgee.

Shortly after the incident, police arrived at Conrady's residence to discuss his involvement in the shooting. Conrady refused to authorize a search of his property; however, officers obtained a search warrant and retrieved the .45 caliber pistol used in the shooting. Conrady was placed under arrest and was subsequently charged by the Okmulgee County District Attorney with six counts in State of Oklahoma v. Conrady, Case No. CF-2009-22...

Conrady pled nolo contendere to all six counts. He was ordered to return for sentencing on August 18, 2010. After a continuance, the matter was rescheduled for sentencing on October 13, 2010. Conrady withdrew his original plea at the October hearing and pled guilty to the six charges. On December 15, 2010, the trial judge issued an order deferring sentencing on all six counts, with the probationary periods on each to run concurrently over a period of five years. Conrady was also required to pay court costs and restitution to both of his victim.

 He produced favorable character testimony, completed his obligations in the criminal matter and had no further incidents. (Mike Frisch)

April 11, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Children Of Mingo County

The West Virginia Supreme Court of Appeals has imposed a three-month suspension for misconduct as a court-appointed guardian of an infant. The case involves inexplicable gross neglect of the attorney's obligations that included willful disobedience of the court's orders to file briefs.

The case generated a 42-page majority opinion, a vigorous dissent of the Chief Justice and an equally impassioned concurring/dissenting opinion from another Justice.

From the majority opinion

The issue before us arises out of Lauren Thompson’s (“Ms. Thompson”) acts and failures to act in her capacity as a court-appointed guardian ad litem representing the interests of an infant. The conduct includes the disregard of orders of this Court commanding the filing of appellate briefs or summary responses in the setting of appeals brought by parents who had their parental rights terminated at the circuit court level.

The West Virginia State Bar Lawyer Disciplinary Board instituted formal disciplinary charges against Ms. Thompson on January 6, 2016, with the filing of a Statement of Charges. Following discovery and a hearing, the Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board found violations of the West Virginia Rules of Professional Conduct (“the Rules of Professional Conduct”) and has recommended that Ms. Thompson be suspended for a period of three months, required to petition for reinstatement, and attend an additional twelve hours of continuing legal education in the area of abuse and neglect and/or law office management, in addition to other recommended sanctions.

Ms. Thompson objects to the recommended suspension. She contends the appropriate sanction for her violation of the Rules is a public reprimand. Alternatively, she requests that this Court adopt the recommendation of the HPS of suspension from the practice of law for three months; but, she seeks credit for the time she has been prohibited from serving as appointed counsel in criminal and abuse and neglect matters during the pendency of the disciplinary process. 

The Office of Disciplinary Counsel (“ODC”) disagrees with the recommendation as to sanctions. Specifically, the ODC contends that the length of the proposed three month sanction is inadequate given the circumstances, which include malfeasance and intentional contempt.

We have undertaken a thorough review of the record submitted, the briefs, and the arguments of the ODC and Ms. Thompson, as well as the applicable legal precedent. This Court has carefully considered the report and recommendations of the HPS. Upon our review of both aggravating and mitigating factors, as well as considering the high priority nature of abuse and neglect cases and the tender years of a vulnerable infant child who lacked a voice, this Court adopts the three month suspension from the practice of law recommended by the HPS, together with the recommendation of the completion of additional continuing legal education. This Court concludes that automatic reinstatement after suspension of three months pursuant to Rule 3.31 of the Rules of Lawyer Disciplinary Procedure is appropriate, and we further require Ms. Thompson to pay the costs of these disciplinary proceedings.

The attorney had failed to file required pleadings despite the judge's importunings. She described her conduct as an "out of body" experience that led to a September 30, 2015 order

This Court held Ms. Thompson in contempt and ordered that she was denied eligibility for guardian ad litem and other court appointments until such time as the ODC investigated and any resulting disciplinary proceedings were concluded. We reiterated the critical role of guardians ad litem in all stages of abuse and neglect proceedings. The Court observed the troubling lack of concern Ms. Thompson displayed for the individual infant child she represented and the child’s need for permanency.

Evidence from the disciplinary hearing

Ms. Thompson’s mother, the Honorable Miki Thompson, Judge of the Circuit Court of Mingo County, testified that, during the relevant time-frame, Ms. Thompson was under significant stress and strain due to the tragic death of her sister and due to attempting to act as counsel in a challenging wrongful death action arising from that death. Judge Thompson testified that the emotional strain was relieved when they were able to obtain counsel to undertake representation in the wrongful death action. According to Judge Thompson, her daughter understands her violations of the Rules and is unlikely to make the same mistakes again...

The foster parents of the child, who are the pre-adoptive parents, also testified regarding their disappointment in the delay due to the failure of Ms. Thompson to file her briefs. While they agreed that no actual harm was suffered by the child, they spoke about the emotions involved, the worry and fear delay causes, and the stress of having to continually deal with DHHR for all sorts of things such as approvals for physician visits and to go on family outings and vacations while waiting on a permanency decision.

The court on sanction

During the period of refusal to file briefs, Ms. Thompson believed the child was safe and secure with good and loving foster parents who sought adoption of the child such that any delay she caused would not result in harm. Ms. Thompson states that she now understands the concerns of the foster parents regarding the delay and lack of permanency determination. Ms. Thompson stated she realized what she had done was wrong, recognized her errors in judgment, meant no disrespect to the authority of the courts or court staff, and candidly acknowledged it took a “lot of stepping back to understand” her failures and violations of the Rules. Finally, as to mitigating factors, we find that by working toward stipulations of fact, violations, and factors considered in terms of sanctions, Ms. Thompson demonstrated a cooperative attitude toward the proceedings...

We adopt the HPS recommendation of a sanction consisting, in part, of a three month suspension from the practice of law. In adopting the recommended three month suspension, we give considerable deference to the testimony of Judge Cummings who has had an opportunity to directly observe Ms. Thompson’s conduct and professionalism in appointed cases. We are also cognizant of the fact that the preclusion from appointed cases since September 2015, as applied to a small solo practice in rural Mingo County, substantially reduced the ability of Ms. Thompson to practice law in the fashion she had developed. This Court is mindful of the important role of deterring unacceptable conduct when designing appropriate sanctions. We are all too aware of the increasing pattern of untimely, inadequate, and perfunctory filings, submissions, and representation of those lawyers appointed to the vital role of guardian ad litem in abuse and neglect proceedings. Lawyers with practices including representation of children and respondents in abuse and neglect proceedings should consider this opinion, the sanction of suspension, and the length of preclusion from appointment during the disciplinary process as a cautionary tale. We also adopt the recommendation of the HPS that Ms. Thompson complete an additional twelve hours of continuing legal education in the area of abuse and neglect and/or ethics and law office management. In light of the three month suspension, reinstatement shall be automatic...

There is a dissent from Chief Justice Loughry

Never before has this Court been faced with a lawyer disciplinary case of this nature. While it is commonplace for this Court to determine the appropriate discipline for attorneys who fail to act timely or zealously, there is almost always a cogent explanation offered for such conduct. Disorganization, lack of adequate support, case or practice management issues, personal issues, or simple neglect essentially form the universe of proffered explanations. While none of these serve to “excuse” lawyer misconduct, they at least provide a rational context for the conduct we are obligated to examine. In the instant case, however, the respondent’s willful refusal to timely file briefs on behalf of her infant client, despite multiple court orders to do so, defies any rational explication. Moreover, the myriad and ever-evolving justifications offered by the respondent range from half-hearted to confounding to infuriatingly ill-conceived, to put it mildly. Despite the respondent’s protestations to the contrary, this case involves more than a mere failure to file or comply with a court order: it involves a complete, willful abdication of an attorney’s duties to the most vulnerable client known to our judicial system, under circumstances where that client was most in need of representation. Accordingly, I respectfully dissent.

The Chief Justice underscores the importance of the guardian ad litem's role and the impact of the attorney's failures on the adoptive parents

In a flabbergasting lack of self-awareness, the respondent feigned concern about the fact that the adoption had not yet been finalized as of the date of her disciplinary hearing, but flippantly conceded: “So June, July, August, September, then we’ll count October, those four months are on me. I did that. And I hate that I did that and it sucks.”

Justice Workman concurred and dissented in part

It is disheartening that the majority has chosen to prioritize protecting the financial interests of a member of the bar over the protection of the children of Mingo County...

While I concur in the three-month suspension imposed by the majority, its refusal to bar respondent from hereafter representing court-appointed infants in abuse and neglect and family court matters is irresponsible and dangerous to the weakest, most voiceless group of children in society. The respondent’s offense in this matter is not merely an untimely filing, which this Court unfortunately sees regularly. Rather, it is conduct so completely lacking in the judgment and competence needed to properly protect these most vulnerable clients that it calls for an individualized sanction designed not to be overly punitive to the lawyer, but to protect these vulnerable children. Accordingly, while I concur in the suspension issued by the majority, I would permanently bar respondent from taking court appointments as guardian ad litem in abuse/neglect and family law matters. I would further require that she petition for reinstatement and undergo one year of supervised practice subsequent to any reinstatement. Critically, due to the unique circumstances presented in this case, I would also require respondent to undergo a psychological evaluation prior to any petition for reinstatement.

...the majority appears curiously preoccupied with respondent’s future practice and resultant personal economic consequences were this Court to continue its bar against her work as guardian ad litem. The majority should be more concerned about the safety of abused and neglected children in Mingo County rather than the protection of the lawyer’s income. I will not belabor the obviously distorted priorities that this reflects, or the ostensible attitude that this level of representation is “good enough” for the children of Mingo County. Instead, I focus on how this concern about respondent’s practice is not only inappropriate but also patently wrong. The majority indicates that the approximate seventeen-month ban on abuse and neglect appointments preceding this matter has occasioned a 90% decrease in respondent’s income. As a result, the majority seemingly appears concerned that a future prohibition on guardian ad litem work would effectively “wipe out” respondent’s practice, gravely noting the “less satisfactory office space” and reduction in staff caused by the “embargo” on her appointed work...

More importantly, any histrionics suggesting that a ban on future guardian ad litem appointments would be devastating to respondent’s practice are completely unfounded. Respondent herself stated she enjoyed a “lively and profitable personal injury practice.” In fact, she previously appeared before this Court on a breach of contract action.  Respondent stated in her affidavit to this Court, “I take nearly a third as much pro bono work as I do retained work.” Not only would this one-third also apparently include criminal appointments—which she could continue to do—but plainly reveals that the majority of respondent’s practice was not in fact guardian ad litem work. How respondent or other members of this Court manage to equate 90% with one-third is unclear. Finally, respondent herself stated that she had no intention of accepting future abuse and neglect appointments and is much happier with her “life and practice” (such as it could possibly be given that she is “inactive” with the Bar) without such work.

The Charleston Gazette-Mail reported on the order barring court appointments. (Mike Frisch)

April 11, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 10, 2017

Meth Addicted Attorney Reinstated After Recovery

The Indiana Supreme Court has reinstated an attorney who had been suspended as a result of a criminal conviction.

The reinstatement is based on findings that

(1) The petitioner desires in good faith to obtain restoration of his or her privilege to practice law; (2) The petitioner has not practiced law in this State or attempted to do so since he or she was disciplined; (3) The petitioner has complied fully with the terms of the order for discipline; (4) The petitioner’s attitude towards the misconduct for which he or she was disciplined is one of genuine remorse; (5) The petitioner’s conduct since the discipline was imposed has been exemplary and above reproach; (6) The petitioner has a proper understanding of and attitude towards the standards that are imposed upon members of the bar and will conduct himself or herself in conformity with such standards; (7) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence, and in general to aid in the administration of justice as a member of the bar and an officer of the Courts; (8) The disability has been removed, if the discipline was imposed by reason of physical or mental illness or infirmity, or for use of or addiction to intoxicants or drugs; (9) The petitioner has taken the Multistate Professional Responsibility Examination (MPRE) within six (6) months before or after the date the petition for reinstatement is filed and passed with a scaled score of eighty (80) or above.

The South Bend Tribune reported on her 2007 arrest

An Evansville lawyer faces drug-dealing charges for allegedly selling and delivering methamphetamine to a police informant at her law office. Teresa Perry, 33, was arrested Friday and jailed without bond at the Vanderburgh County Jail. Her arrest is the second time in just over a month that an Evansville attorney has faced meth-related charges. Brad Happe, who police say is a "friend and associate" of Perry, was arrested March 29 after authorities said they uncovered a meth lab in his Evansville law office and apartment. Sgt. Kurt Althoff of the Vanderburgh County Sheriff's Department said police were suspicious at that time that Perry was involved, but the case against her was strengthened after Happe's arrest. He said a confidential informant told police he had seen Perry and Happe, 30, using meth together. Perry's arrest started with a police-monitored drug deal in April, Althoff said. According to the affidavit, an informant met Perry on April 21 and bought $5 worth of hydrocodone. He also delivered two containers of pseudoephedrine pills and $100 for a future delivery of meth, the affidavit said. Two days later, the informant picked up 1.19 grams of meth that had been left in a desk drawer in Perry's law office, according to the affidavit. Police arrested Perry and then conducted a search of her law office Friday, reportedly uncovering a digital scale with meth residue, hypodermic needles and other evidence. According to the affidavit, Perry admitted to police she had used meth as recently as a month ago, the affidavit said, but she denied selling it.

The Indiana Law Blog posted a series of stories from Kate Braser of the Evansville Courier & Press.

Teresa Perry's relatives said she was the kind of child who always earned straight A's, kept her room spotless and never failed to remember a loved one's birthday. As an adult, she would call to check on her cancer-stricken grandmother several times a day.

Her home was tidy, and she volunteered at her church.

Those are some of the reasons why relatives say they were shocked by the 33-year-old lawyer's arrest in May. Perry was addicted to methamphetamine and faces eighty felony charges related to the drug.

Perry's arrest came one month after the arrest of another Evansville lawyer, Brad Happe. He, too, admitted to a methamphetamine addiction, but contested his arrest on meth-making charges. Last week, a jury found him not guilty of manufacturing the drug.

The back-to-back arrests of two local professionals forced some to re-evaluate stereotypes about the drug, which can be manufactured using over-the-counter ingredients.

Now deep into an intensive addiction recovery program, Perry said she is proof positive that meth's grip extends beyond the rural and poor.

"Meth affects everyone," she said. "There are a lot of types of users. I am familiar with a number of professionals who use. It's definitely a drug that is affecting all classes of people."

14 News reported on the jury acquittal of Mr. Happe.  (Mike Frisch)

April 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Censure Proposed For Trust Account Misuse

The Illinois Review Board took a rather sympathetic approach to the case of an attorney who had admitted dishonest use of advanced retainers in five matters

The Hearing Board clearly and thoroughly set out the few aggravating and myriad mitigating circumstances involved in this case. We summarized them above, and need not repeat them here. We wish to emphasize, however, its findings regarding Respondent's acceptance of responsibility and remorse for her misconduct. The Hearing Board found that Respondent was "particularly candid and contrite" throughout the hearing about her misconduct. (Hearing Bd. Report at 23.) It noted that she "acknowledged her misconduct and did not attempt to justify, excuse, or minimize her actions." (Id.) It found it "evident from her testimony and demeanor [that] she recognizes the seriousness of her misconduct, regrets her actions, and was extremely ashamed and remorseful." (Id.) It also found it evident that "she has been deeply affected by these proceedings and has used this process as an opportunity to learn from her mistakes." (Id.)

While we by no means condone Respondent's misconduct, which was serious and unacceptable, we believe, as did the Hearing Board, that Respondent made a mistake that she will not repeat. We find compelling that Respondent has taken responsibility for her actions and expressed deep and sincere remorse for her conduct. We believe that, but for her mistake, which we acknowledge was a grave one, Respondent appears to be an exemplary young lawyer.

Under the circumstances of this matter, then, we believe that a suspension - even a short one - is not necessary to achieve the goals of attorney discipline. Rather, taking into account that the purpose of a sanction is not to punish the attorney but to protect the public, maintain the integrity of the legal profession, and protect the administration of justice from reproach, Timpone, 157 Ill. 2d at 197, we believe that the sanction of censure is sufficient to serve the goals of attorney discipline.

The misconduct

 Between April and August 2014, Respondent received security retainers from five clients in separate matters and deposited them into her client trust account. During the time when she should have been holding all or part of the retainers because she had not yet earned fees equal to the retainers, she drew funds from her client trust account for her own business or personal expenses, thereby using without authorization a portion of the funds she should have been holding on behalf of her clients.

Respondent used a total of $4,354.07 of her clients' funds. Her clients were not aware that she used portions of their security retainers before she earned them. She restored the funds she had taken before the Administrator commenced his investigation into her conduct. Clients who requested that she return the unearned portion of their retainers received their funds without delay.

No client had been harmed or complained.

Richard Green dissented

I agree with my colleagues, and therefore join in their majority opinion, in all respects except their ultimate sanction recommendation. I believe that a 30-day suspension, as recommended by the Hearing Board, would be a more appropriate sanction for Respondent's misconduct under the facts involved here.

I find that Peters provides a useful parallel to this case, in circumstances as well as reasoning. Here, as in Peters, Respondent's misconduct appears to be an aberration in what we hope will be a long and unblemished career. But, because Respondent knowingly violated her obligations and used client funds, "protection of the integrity of the legal profession demands that Respondent receive a sanction greater than ? censure." Peters, 2012PR00048 (Review Bd.) at 4. As in Peters, I believe a 30-day suspension "is consistent with the purposes of discipline while making it clear to attorneys that they will face sanctions if they misuse their clients' funds." Id. at 5.

Absolute honesty in an attorney's handling of clients' money is essential. Therefore, any dishonest taking of a client's money should merit some suspension, even in a matter like this one where there is extensive mitigation. For this reason, I would recommend that Respondent be suspended for 30 days for her misconduct.

The Administrator sought a six-month suspension. (Mike Frisch)

April 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Mortgage Loan Modification Predator Deserves Disbarment

The Massachusetts Supreme Judicial Court affirmed a single justice's order of disbarment in a matter

arising out of the respondent's solicitation and handling of a substantial number of mortgage loan modification cases over more than a four-year period.

Before the full court, the attorney accepted the findings of misconduct which the single justice found he had 

"systematically extracted illegal and excessive fees from numerous vulnerable and desperate clients with deceptive advertisements, misleading contractual arrangements, and deceptive and useless services such as the 'lender benefit analysis' and the 'forensic loan audit.' In addition, he engaged in unlawful fee-splitting to provide his partner and his employees with the financial incentive to use the machinations to enhance his personal financial interest at the expense of his clients."

We focus instead on the respondent's claim that this misconduct warrants a public reprimand rather than disbarment. For the reasons that follow, we reject that claim and conclude that disbarment is appropriate.

On sanction

The respondent's misconduct involved repeated and multiple ethical violations in connection with loan modification and mortgage foreclosure cases over a number of years. We acknowledge that a single violation of one of the disciplinary rules at issue here might typically result in an admonition, public reprimand, or, perhaps, a term suspension. But it is well established that disciplinary violations are not viewed in isolation. We consider instead the "cumulative effect of the several violations committed by the respondent." Matter of Palmer, 413 Mass. 33, 38 (1992). See Matter of Crossen, 450 Mass. 533, 574 (2008) ("[c]umulative and wide-ranging misconduct may warrant the sanction of disbarment, even if the individual instances of unethical conduct would not warrant so severe a sanction"); Matter of Saab, 406 Mass. 315, 326-327 (1989). As the board observed, "[e]ven minor violations, when aggregated, can result in a substantial sanction exceeding what each alone would receive."

The repeated nature of the respondent's misconduct, over a period of years, involving hundreds of economically, educationally, and linguistically disadvantaged clients in strained financial circumstances, evidenced by threatened foreclosure of their homes, warrants a substantial sanction...

Considering the extent of the misconduct, weighing the presence of the factors in aggravation and the absence of factors in mitigation, and giving due deference to the board's recommendation, we conclude there was no error in the single justice's judgment that disbarment is warranted.

(Mike Frisch)

April 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Electronic Ethics In Tennessee

The Tennessee Board of Professional Responsibility has censured a public defender who engaged in a conflict of interest by sending "inappropriate text messages" to a client he had been appointed to represent.

The Cleveland (Tennessee) Daily Banner reported  that the sanction was imposed by consent.

In a unrelated matter, the board censured an attorney whose client in a domestic case had been directed to bring the data stored in his cell phone to court. "Acting at [the attorney's] direction, " the material was deleted by the client.  (Mike Frisch)

April 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Contrasting Approaches In Bar Counsel Selection Process

The appointment of a new Bar Counsel is the most consequential decision that a disciplinary system makes.

Paramount in making such a decision is finding a person who will oversee investigations without fear or favor and pursue allegations in a manner that protects the public and upholds the integrity of the legal profession.

Interestingly (and noted previously on this blog) both Maryland and the District of Columbia are in the process of selecting a new Top Lawyer Cop.

For Maryland, it is only the third Bar Counsel in the past 35 years. In D.C., there have been a lot more bar politics and seven Bar (now Disciplinary) Counsel over that same period of time.

Maryland commendably identified three finalists and sought public input

The Attorney Grievance Commission of Maryland has selected the applicants listed below as finalists for the position of Bar Counsel:

Raymond A. Hein, Acting Bar Counsel, former Deputy Bar Counsel, Attorney Grievance Commission of Maryland, former Associate, Redmond, Cherry & Burgin, PA, former Associate, Horn, Bennett & Redmond, PA.

Lydia E. Lawless, Senior Assistant Bar Counsel, former Assistant Bar Counsel, Attorney Grievance Commission of Maryland, former Associate, Vesper & Lawless, LLC.

Gerard R. Vetter, Assistant United States Trustee, Department of Justice, United States Trustee Program, Adjunct Faculty, University of Maryland Francis King Carey School of Law, former Chapter 13 Trustee, Office of Chapter 13 Trustee, former Shareholder, Goldman & Vetter, former Partner, Weinberg & Green, former Associate and Partner, Semmes, Bowen & Semmes.

Comments on the qualifications of these applicants should be provided in writing to the Attorney Grievance Commission, 200 Harry S. Truman Parkway, Suite 300, Annapolis, Maryland, 21401, received on or before April 3, 2017.

By contrast, the District of Columbia powers-that-be hired a search firm to vet applicants, conducts its business in total secrecy and we will likely find out who our next leader is when it is announced.

When the then powers-that-were studied the D.C. disciplinary system back in 2005, there was much talk about the need for transparency in consent dispositions. Talk, of course, is cheap.

I have no idea which approach will get you a better Bar Counsel but given the public interest I much favor an open process.

Note: As I was counting up the D.C. Bar Counsel, I noticed for the first time that the first four were named Fred, Tom, Tom and Fred. Len Becker broke the trend.  (Mike Frisch)

April 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, April 9, 2017

Bar Discipline In A Google World

The Law Society of British Columbia Review Board cited precedent for the proposition that adverse publicity is not a mitigating factor in bar discipline

...the argument that adverse media publicity should be taken into account as a mitigating factor has been rejected by the panel in Law Society of BC v. O’Neill, 2013 LSBC 23 (CanLII), where the panel found at paragraph 20(j) as follows:

The Respondent and his counsel both said that the Respondent will suffer from the adverse publicity this will bring to the Respondent.  His counsel submitted that, as we live in a “Google World”, anyone who googles the Respondent will learn of these proceedings and he will carry that stigma with him forever.

We do recognize that possibility exists and that the Respondent may suffer somewhat from it in the future.  However, we do not believe that is a significant factor for consideration.  When lawyers have misconducted themselves, the adverse publicity that comes with that must be accepted by the lawyer.  That is true for all lawyers and is not unique to this case.  It should not, in our view, be a factor which should be considered to reduce the penalty that the Panel believes is otherwise appropriate.

All lawyers will face this potential embarrassment if they are disciplined for misconduct, and we believe that to reduce an otherwise appropriate penalty because of potential public knowledge of it would be wrong in principle.  It could mean that all penalties should be reduced because of the adverse publicity about the lawyer.  We do not believe that is a correct principle to follow.

Here, the board affirmed a hearing panel's four-month suspension of an attorney who has violated trust account rules in transitioning from solo practice to a law firm

In March 2010, Ms. Sas ceased practising as a sole practitioner and joined a larger firm of lawyers.  In early 2011, she still held monies in trust that had been received from clients while she was practising as a sole practitioner, and there were several outstanding files and unbilled time and disbursements relating to her former sole practitioner practice that needed to be dealt with.  At that time, she embarked on a file review project to deal with those outstanding files, including unbilled fees and disbursements and monies held in trust.

The hearing panel’s decision on Facts and Determination, reported at Law Society of BC v. Sas, 2015 LSBC 19 (CanLII), sets out in detail the transactions by which the Applicant “zeroed out” the trust accounts.

Having reviewed those transactions, the hearing panel concluded that the Applicant breached the Act and the Law Society Rules and that her conduct constituted professional misconduct in the following ways:

(a)         The Applicant improperly billed clients for disbursements that were not incurred;

(b)        The Applicant knew, or was wilfully blind to the fact, that those clients had been improperly billed for disbursements that were not incurred or, alternatively, was reckless as to whether those billings for disbursements were proper;

(c)         The Applicant instructed her bookkeeper to add disbursements that had not been incurred to client ledgers;

(d)        The Applicant made payments to her law corporation from trust funds:

(i)                 for disbursements that she knew, or ought to have known, were not properly incurred by those clients; and

(ii)               in some instances without immediately delivering bills to clients; and

(e)         The Applicant’s conduct in paying her law corporation from trust funds for disbursements that had not been incurred constituted misappropriation of the trust funds.

(Mike Frisch)

April 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Recovery From Alcohol Addiction Leads To Reinstatement

Reinstatement has been granted by the Colorado Hearing Board of a petitioner suspended for a crime committed while intoxicated.

The misconduct

On May 28, 2003, Petitioner engaged in conduct leading to the suspension of his license to practice law. Petitioner, while intoxicated, forced open the doors to an apartment belonging to someone he did not know and attacked the occupant. Petitioner ended up in the hospital with critical injuries after sustaining a blow to the head from a baseball bat. Police arrested Petitioner and took him into custody upon his release from the hospital.

In June 2003, Petitioner was charged in Arapahoe County with first degree burglary in violation of C.R.S. §18-4-202, and criminal mischief in violation of C.R.S. §18-4-501. Petitioner pled guilty to second-degree burglary (F4) and misdemeanor criminal mischief (M2). Petitioner was sentenced to one year of probation for the criminal mischief and a three-year deferred sentence for the second-degree burglary.

The petitioner began to deal with his alcohol problem after suspension

On May 15, 2006, Petitioner began working for the law firm of Underhill & Underhill, P.C. and remains there to the date of this reinstatement hearing.  He spends his limited spare time playing golf and playing rugby on a less competitive level. Now when he is alone, he does not feel depressed and does not feel any urge to take a drink.

Petitioner candidly testified about the conduct that directly led to the suspension of his license to practice law. He accepted the serious nature of his past behavior and accepts full responsibility for his excessive use of alcohol. Although suspended for only six months, Petitioner waited over two years to seek reinstatement knowing he was not ready earlier. Petitioner believes he has experienced the necessary fundamental or “psychic” change in his character. Petitioner acknowledged that he is not cured from alcoholism and that his continued sobriety depends on maintaining a positive lifestyle. He is willing to do everything to maintain his rehabilitation, because he wants to practice law again and be a productive member of society.

Now

The Hearing Board finds by clear and convincing evidence that Petitioner is now rehabilitated, has complied with all the applicable rules in the reinstatement, and therefore should be reinstated subject to the conditions set forth at the conclusion of this opinion and order.

While the Hearing Board finds Petitioner established rehabilitation by clear and convincing evidence, the Hearing Board’s primary concern is protection of the public. Therefore, the Hearing Board deems the condition that Petitioner meet with Dr. Muller one more time necessary to ensure his successful transition back into the practice of law.

The Hearing Board commends Petitioner for the zeal he demonstrated in these proceedings, and trusts he will maintain his enthusiasm and respect for the practice of law in the future. The Hearing Board also commends Petitioner for his candor concerning his prior alcohol usage. Petitioner’s honesty about, and desire to overcome, these problems speak to his integrity, and the good faith he brought to these proceedings.

(Mike Frisch)

April 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 7, 2017

Thirty!

The District of Columbia Board on Professional Responsibility has recommended a suspension of six months with fitness in a case involving multiple acts of misconduct in handling immigration appeals

Disciplinary Counsel charged Respondent with violations of the Rules of Professional Conduct arising from thirty separate cases. Prosecuting in bulk is not the typical approach, and it presents unique challenges for the disciplinary system. Nonetheless, on the whole, the Hearing Committee did an admirable job and, with a few exceptions, we adopt its Report and Recommendation.

We depart from those recommendations in three areas...First, we do not agree with the Hearing Committee’s conclusion that routinely disregarding court orders did not seriously interfere with the administration of justice. Second, we do not agree with the Hearing Committee’s conclusion that a lawyer must set forth all of the reasons why he or she would like more time to file a brief in a consent motion for an extension of time. Third, we do not agree with the Hearing Committee that when a lawyer seeks more time so that he or she can resolve the financial details of a relationship with his or her client, that constitutes a delay for no legitimate purpose. Finally, we do think that on these facts the Respondent should be required to show fitness.

The charges were filed in November 2012. An interim suspension was ordered on February 6, 2013.

The hearing was held in July 2013 and the hearing committee report did not arrive until August 10, 2016.

The attorney has now served an interim suspension of more than four years.

The process, at least in part, is the punishment.

The board described the violations

...after filing the thirty Petitions for Review, Respondent failed to file a brief in twenty-nine of those cases because his clients determined that they could not go forward with the Petition. Even in the one case in which Respondent did file a brief, he failed to file an appendix. Yet Respondent did not dismiss the actions when his clients decided not to go forward; instead, he simply did nothing, and the Fourth Circuit dismissed the petitions for failure to prosecute under Fourth Circuit Rule 45.

As a result, Respondent ignored court filing deadlines in all thirty cases. However, in seventeen of those cases, Respondent filed one or more consent motions for more time. Disciplinary Counsel noted that these requests for more time used the same boilerplate language in each case—that Respondent was a busy solo practitioner and that the case was complicated. Disciplinary Counsel alleges that Respondent filed these motions for different reasons than those given in the consent motions, and that the real reason for filing the extensions was that the persons for whom he filed Petitions had either not yet determined whether to hire Respondent or had already decided not to pursue the Petition.

The board found the conduct was prejudicial to the administration of justice

the Hearing Committee’s application of [precedent in finding no violation]  produces a counterintuitive result: whether a lawyer violates Rule 8.4(d) would seem to depend not on the lawyer’s conduct but, rather, on how efficiently the court before which the lawyer practices is managed. A lawyer who routinely disregards court orders—as Respondent did here—when practicing before a well-run court receives a disciplinary windfall under the Hearing Committee’s reading of Hopkins, which asked only if there was an actual interference with the administration of justice. However, Rule 8.4(d) broadly encompasses conduct that at least potentially impacts the judicial process to a “serious and adverse degree.” Hopkins, 677 A.2d at 61.

But the various motions for extensions were not dishonest

A motion for an extension does not require a confession of the lawyer’s primary reason for the request—for example, prior procrastination. Failing to disclose to the court the primary reason for a request for an extension is not generally misleading or dishonest, nor is it misleading or dishonest in this case. There is no requirement that an attorney “disclose a principal or substantial reason for [his or her] request, wholly apart from the reasons proffered to the court.” H.C. Rpt. at 87. Rules 3.3(a) and 8.4(c) require candor and honesty, not an exhaustive litany of every motivation for filing a motion. Respondent need only truthfully provide one or more of the legitimate reasons the Court would be justified in granting an extension, and not omit material facts in an effort to mislead the court. Rule 8.4(c) requires candor, but not completeness. See Rule 8.4(c) (“It is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”). Here, the information Respondent did not include was not material. It is hard to imagine, for example, that Respondent’s failure to include his clients’ financial situation would, in any way, have mattered to the Fourth Circuit. This is a far cry from misleading or lying to the Court. We do not agree with the Hearing Committee’s determination in these three cases that Respondent violated Rule 3.3(a) and Rule 8.4(c), because neither Rule requires that a lawyer present every reason, or even the principal reason, for the Court to grant a motion for extension. Disciplinary Counsel therefore did not prove by clear and convincing evidence that the reasons proffered in the motions for extension in either Lazo II, Ali, or Bowen were false or misleading.

Moreover, consent motions, generally, require less explanation of why they are justified. Short consent motions are good for every part of the legal system: judges have to wade through fewer papers; lawyers have less writing to do; and clients do not pay for lawyers to fight about things that are not in dispute.

And the attorney's motions were not brought solely for delay

Respondent had a purpose in bringing these motions other than delay: to allow Respondent to receive payment. The implicit premise in the argument that supports the Hearing Committee’s conclusion is that delaying a proceeding in order for the lawyer to receive payment is an improper purpose. The Hearing Committee does not offer support for this proposition. We have been able to find none...

Again, the motions Respondent filed were consent motions. The affected third-party agreed to the delay. While it may have been annoying for the Executive Office for Immigration Review to be unable to move the case along, these extensions of time added no more work, no more cost, and no potential for prejudicing that third-party’s interests. The third-party, in short, was minimally affected, if affected at all. Moreover, the reason Respondent sought the delay was not to injure or harass the third-party but, instead, to get paid. This is, of course, less noble than working to advance his client’s cause, but getting paid is an important reality of the private practice of law. In the absence of authority to the contrary, we are reluctant to determine that modest delay that does not meaningfully injure a third-party is an improper purpose such that it would violate Rule 4.4(a).

The board rejected a number of challenges to the process raised by the attorney.

Respondent argues that this matter should be dismissed for several reasons: (1) he has been suspended since February 2013, and has been prejudiced by the Hearing Committee’s delay in preparing its report and recommendation; (2) the Hearing Committee failed to complete its report within 120 days, in violation of D.C. Bar R. XI, § 9(a); (3) under D.C. Bar R. XI, § 3(a)(2), he cannot be suspended for more than three years (and he has already been suspended for more than four years pursuant to D.C. Bar R. XI, § 3(c)); (4) the evidence does not support a finding of misconduct; (5) the Board does not have jurisdiction to discipline him; and (6) he was not served with a copy of the hearing transcript together with the Hearing Committee report and recommendation. We reject these arguments.

Sanction

In thirty cases, Respondent ignored court orders. He did so as a matter of course. He testified that he believed having the Fourth Circuit dismiss an appeal instead of voluntarily dismissing it would help his clients (see, e.g., Tr. 392-96) when that is flatly inconsistent with the text of the rule and the testimony of an expert (see, e.g., Tr. 117-18). And he testified not only that this was his understanding in the past, but that it continued to be his understanding even as these proceedings unfolded, even during oral argument before the Board.

We are impressed by the sheer number of cases—thirty!—where Respondent violated court orders, his response to being corrected about basic issues such as how the rules of the Fourth Circuit function throughout this process, and his intransigence with respect to numerous points about how basic parts of the practice of law work (e.g., it is wrong to have a client sign something while in custody because that would be inherently coercive (Tr. 458)). On this record, with this quantum of continued misconduct and the likelihood of his repeating such conduct, we have little trouble concluding that there is “clear and convincing evidence that casts a serious doubt upon the attorney’s continuing fitness to practice law.” Carter, 887 A.2d at 6.

The case is In re Aroon Padharia and can be accessed at this link. (Mike Frisch)

April 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)