Monday, December 8, 2014

Office Manager Settled Cases And Misappropriated; Attorney Suspended

The Kansas Supreme Court has ordered a three-month suspension of an attorney for misconduct that involved, among other things, the failure to supervise a non-attorney employee

With regard to KRPC 1.15 and 5.3, the facts are clear and convincing that respondent did not properly supervise his office manager, he failed to keep a master list of clients, and he failed to keep proper accounting records. These failures resulted in unauthorized settlement negotiations, delays or omissions of deposits or disbursement of funds, and misappropriation of monies. Had respondent acted with the care of a "professional fiduciary" (see KRPC 1.15, Comment [1] [2013 Kan. Ct. R. Annot. 556]) and provided "appropriate instruction and supervision concerning the ethical aspects" of the office manager's employment (see KRPC 5.3, Comment [1] [2013 Kan. Ct. R. Annot. 627]), the monetary losses may have been thwarted and certainly could be more accurately accounted for so that full restitution could occur. There is clear and convincing evidence that respondent violated KRPC 1.15 and 5.3.

Investigation into the client's complaint led to the discovery of other thefts by the office manager.

The attorney did not know of the misconduct of the office manager but "should have known." (Mike Frisch)

December 8, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Conduct That Reflects Adversely

Any bets on the likely outcome of a disciplinary complaint recently filed by the Illinois Administrator?

The charges

On June 7, 2013, Respondent entered Reliance Bank in Creve Coeur, Missouri, wearing sun glasses, a scarf over his face, and gloves. He approached a teller and brandished a revolver. Respondent told the teller that "this is a hold up; no alarms; no dye packs" or words to that effect and demanded money. The teller gave $7,290 to Respondent, who then fled from the bank with the money.

On August 2, 2013, Respondent entered First National Bank in Weldon Springs, Missouri, wearing sun glasses, a scarf over his face, and gloves. He approached a teller and brandished a revolver. Respondent told the teller that "this is a hold up; no alarms; no dye packs; no bait money" or words to that effect and demanded money. Bank employees gave $5,602 to Respondent, who then fled from the bank with the money.

On September 20, 2013, Respondent entered First Bank in Marthasville, Missouri, wearing sun glasses, a scarf over his face, and gloves. He approached a teller and brandished a revolver. Respondent told the teller that he wanted "50s and 100s from the vault; spread them out; wait 60 seconds before you hit the alarm" or words to that effect. Bank employees gave $43,677 to Respondent, who then fled from the bank with the money.

Police received a description of Respondent’s car, and later on September 20, 2013, an officer of the Missouri State Highway Patrol stopped him. When the trooper stepped out of his car, Respondent stepped out of his car, raised his gun and fired four shots at the trooper. At least one shot struck the trooper in the center of his chest. The trooper was wearing a protective vest which prevented Respondent’s bullet from penetrating his body. The trooper returned fire and struck Respondent in the leg, causing Respondent to fall and lose possession of his gun. Respondent tried to regain control of the gun and the trooper fired warning shots. Respondent then stopped moving, and the officer was able to place him under arrest. A search of Respondent’s car uncovered a sawed-off shotgun that had no serial number and had not been federally registered.

Respondent entered a guilty plea in the criminal case.

As EMissourian.com reported, he was a graduate of Washington University Law School and was sentenced to a 45-year state prison term to be served after he finishes a 25-year federal sentence.

The Administrator alleges that the conduct

reflect[s] adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, in violation of Rule 8.4(b) of the Illinois Rules of Professional Conduct.

I'd say so. (Mike Frisch)

December 8, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, December 5, 2014

Lawyer Beats False Evidence Rap

 The Louisiana Attorney Disciplinary Board agreed with a hearing committtee that the Office of Disciplinary Counsel failed to prove that an attorney had knowingly presented false evidence in a criminal trial.

The hearing committee concluded that the attorney had "reason to suspect" that the evidence was false but followed his client's wish to nonetheless use it.

The criminal case involved five counts of attempted second degree murder in a September 6, 2007 encounter outside a French Quarter club.

The incident was captured on videotape. The video was presented in the prosecution's case and showed the defendant stabbing one of the victims.

The defense offered its own video. The state countered that this defense video was false evidence. 

The state was correct, as the defense video was a doctored January 2007 tape.

The ODC charged

The second video as offered by the defense proved to be a complete fabrication, as it involved an entirely separate incident which occurred at the same location some nine months earlier. The defense had crafted the second video - Video No. 2 - from cell phone camera footage which a defense investigator had retrieved from the MySpace page of one of the victims - which involved some of the same participants as the September 2007 attack.

Because the defendant professed to have expertise in digital data transfer techniques, the Respondent instructed Mr. Boudreaux to prepare the My Space footage for presentation in court. Boudreaux has admitted that he altered the MySpace footage to make it appear to be identical or similar to the footage appearing in the state's surveillance video (Video No. 1). Once the trial began, Respondent then successfully convinced the trial judge to allow him to show the video to the jury. He also elicited what was later revealed to be false testimony from a witness, Lionel Rayford, to the effect that the January 2007 video depicted the fight that occurred outside the French Quarter club on September 16, 2007.

The ODC noted that the attorney offered inconsistent stories.

The board gave absolution for the changing accounts

...the Committee made a finding of fact that Respondent did not review the underlying three-year-old trial transcript in advance of his sworn statement and made misstatements about the events in both his sworn statement and in his response to the charges. The Committee found his live testimony before them to be credible, concluding that he did not offer false evidence to the court, did not make a false statement of fact to the court and likewise did not fail to correct a false statement made to the court.

The board dismissed the charges, deferring to the credibility determinations of the hearing committee.  (Mike Frisch)

December 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 4, 2014

No Thanks For Sharing

An attorney convicted of  sex trafficking and pornography offenses was disbarred by the New York Appellate Division for the First Judicial Department.

This press release from the New Jersey Office of the United States Attorney describes the charges

De Sear used an Internet-based peer-to-peer file-sharing program to advertise, distribute and download hundreds of images of child pornography.  In seeking out “friends” on the peer-to-peer file-sharing network, De Sear used a picture of a young boy to represent him as his avatar, and invited individuals with usernames that contained terms such as “boy,” “child,” and “little” to join his peer-to-peer network.

De Sear named one of his file-sharing folders “BoysCute,” and made files with graphic, descriptive names available for sharing in his folders.  He also allowed his “friends” to preview the content of his shared files in thumbnail view to select which files to download, and used the peer-to-peer program’s chat function to make specific offers to distribute and display child pornography with descriptive titles.

The chat messages sent by De Sear to an individual with the username “boycuddle2" included De Sear’s observation: “best are guys who have kids of their own to share . . . there is a network of those guys,” but it is “hard to get into that club without a kid[.]”

De Sear regularly viewed and shared child pornography from the kitchen of his home, sometimes leaving his computer running overnight so that the child pornography files he had selected using the file-sharing program could download while he slept.

In 2010, De Sear regularly logged onto the file-sharing program using his then-employer’s wireless “guest” network.  During one of these sessions, De Sear distributed multiple child pornography files to an undercover law enforcement agent by having placed the files in his file-sharing folders on the peer-to-peer network.

The court

 Here, respondent was convicted of distribution of child pornography and during his plea allocution he admitted that he was in possession of computer files that he knew to contain images of child pornography, which he distributed via the internet. Therefore, respondent's sworn plea admissions, read in conjunction with the superceding information to which he pled guilty, makes his conviction under 18 USC § 2252A(a)(2)(A) "essentially similar" to a New York felony conviction under Penal Law § 263.16. Thus, we find that automatic disbarment pursuant to Judiciary Law § 90(4)(b) is warranted in this instance.

The attorney was described in the press release as a partner in an international law firm. The Village Voice reported that he resigned from the firm. (Mike Frisch)

December 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Brother Can You Spare A Disbarment?

The Washington State Supreme Court has disbarred an attorney for misconduct in connection with the administration of his mother's estate.

The attorney was appointed as personal representative on his mother's death in 1995. He lived with her at the time of her death and had his law office in her home.

The estate was to be equally divided between him and his three brothers.

The court affirmed findings that the attorney had engaged in frivolous motions and appeals, ignored discovery obligations and mis-valued estate assets.

In this case, the hearing officer reasonably concluded from the evidence presented at the hearing that Jones filed frivolous motions and appeals that harmed his brothers and the administration of justice. Jones filed numerous motions and appeals in the trial court, the Court of Appeals, and this court. Each motion was denied, and sanctions were awarded against Jones. Because Jones received sanctions, the hearing officer reasonably concluded that Jones was put on notice of the frivolous nature of his motions before refiling and appealing them. Like in Sanai, the hearing officer did not rely solely on a particular judicial ruling, but rather used judicial decisions as evidence that Jones filed repetitive frivolous motions that resulted in sanctions. The hearing officer's conclusions were additionally supported by the testimony of six witnesses, resulting in over 1,500 pages of transcripts, as well as nearly 200 exhibits.

The court found seven aggravating factors including refusal to acknowledge the ethical violations

Jones argues that the record does not support refusal to acknowledge because he is not required to agree with the charges made or to confess. However, the aggravating factor of refusal to acknowledge the wrongful nature of conduct was correctly applied. Jones continued to file motions, lawsuits, and appeals even after being sanctioned numerous times for the frivolous nature of such filings. By receiving sanctions, Jones was aware of his RPCviolations but persisted with his conduct.

Result: Disbarment. (Mike Frisch)

December 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2014

I'm Gonna Wash Those Drugs Right Outta My Hair

A Louisiana Hearing Committee has recommended the disbarment of an attorney who defaulted on charges in a number of matters.

While most of the violations might fairly be characterized as "garden variety" neglect, one weed stands out.

The attorney represented the father in a child custody matter. Mother's counsel advised him that he would be filing a motion alleging that the father was abusing illegal drugs.

The attorney's response was to purchase a shampoo product called Ultra Clean, which was "advertised as purifying buildup of medication from the hair and commonly used in attempts to avoid positive hair follicle drug tests."

He then visited the client at home.

In a pretrial conference the next day, the attorney vigorously (and falsely) denied that his client was using drugs.

A cuticle test came back as presumed positive for marijuana, amphetamines and methamphetamines.

The Ultra Clean worked - the hair follicle test was negative. (Mike Frisch)

December 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Censure Proposed For Judicial Candidate

A candidate for judicial office should be publicly censured for false statements made during the campaign, according to a report and recommendation of an Illinois Hearing Board.

The Republican had said this about his Democratic opponent

Respondent designed and wrote the contents of a  mailer, or approved its design and contents. Respondent caused between 75,000  and 100,000 copies of the mailer to be circulated and also caused it to be  printed in newspapers as a campaign advertisement. The mailer contained the  statement:

Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian  Trentman "were NEGLIGENT in their representation of Mr. Woidtke in a 1989  criminal proceeding that resulted in his wrongful conviction of  murder of Audrey Cardenas."

(Source: Woidtke v. St. Clair County, St. Clair  County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No.  02-4223, May 2003). The above statement in the mailer was false, in that Judge  Lopinot, as a part-time public defender in 1989, had no supervising duties over  Brian Trentman; there was no finding that Judge Lopinot was negligent; and Judge  Lopinot had no involvement in the Woidtke case in 1989. Respondent knew the  above statements in the mailer were false or he made the representations with  reckless disregard as their truth or falsity.

The mailer also gave the false appearance that the  United States Court of Appeals in the case of Woidtke v. St. Clair County, et  al., 335 F.3d 558 (7ht Cir. 2003) (No. 02-4223) had found Judge Lopinot  negligent in the Woidtke case. Respondent knew the source citation gave such a  false appearance or he created or authorized the citation with reckless  disregard as to it truth or falsity.

Key finding

We find it impossible to believe that Respondent  actually thought the quotation on his mailer accurately reflected what the Court  of Appeals said or meant. The quotation on the mailer makes it appear that the  Court of Appeals said that Judge Lopinot and Trentman "were negligent" in  representing Woidtke in the 1989 criminal proceeding. In other words, the  quotation makes it appear that negligence by Judge Lopinot and Trentman was a  finding of fact or statement of historical fact in the case. In reality,  however, the Court of Appeals was simply stating what allegation was made by the  plaintiff in his civil lawsuit. Any attorney acting in good faith, and  particularly an attorney who had been engaged in the practice of law for more  than 20 years, would know that stating negligence by the defendants was  "alleged" is vastly different than stating that the defendants "were negligent."  Clearly, the quotation on the mailer misrepresents what the Court of Appeals  said or meant. Thus, we find Respondent's testimony that he believed the mailer accurately quoted from  the Court of Appeals opinion to be simply incredible and false.

The hearing board rejected the accused attorney's First Amendment defense to the charges. (Mike Frisch)

December 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Enough Hours In The Day

The Tennessee Supreme Court has disbarred an attorney who "submitted inflated, false and deceptive fee claims to the Administrative Office of the Courts."

The attorney had billed more than eight hours a day (usually 10-11 hours) for approximately 478 days over a period of slightly less than two years and could not produce any records to verify the bills.

He "billed nearly twelve hours on a day when he attended an eight hour, out of state CLE."

The attorney also was charged with knowingly understating his income in his personal bankruptcy and failed to appear for the final hearing in the disciplinary matter. (Mike Frisch)

December 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2014

Fiduciary Breach Charges Rejected In Illinois

The Illinois Supreme Court has suspended an attorney for three months for his neglect of an estate matter.

The court does not often issue full opinions in disciplinary matters; the vast majority of the court's actions are orders.

The court rejected a number of arguments pressed by the Administrator and in particular criticized arguments of misconduct based on fiduciary duties outside the practice of law

 Despite this court's order, the Administrator continues to seek discipline  based on respondent's conduct as trustee and executor without basing the charge  on a specific alleged violation of a Rule of Professional Conduct. The  Administrator's brief is replete with argument based on the legal theory of  breach of fiduciary duty rather than specific disciplinary rules. In keeping with our March 14, 2014, order, we do  not address this issue.

The court also rejected dishonesty charges

...there is no evidence that respondent intended to deceive. To the  contrary, the evidence establishes that respondent provided what he believed to  be truthful information to Boers. The first letter, dated April 18, 2001, set  forth respondent's understanding of the arrangement between Boers and Hannah,  including that she would receive "interest" on her investment. Respondent had no  independent knowledge of whether the monthly payments to Boers were or were not  actually interest. Hannah sent to respondent the funds remitted to Boers, and  the cover letters to Boers stated exactly what Hannah told respondent to write  to her. The subsequent cover letters merely followed a form repeating the  message that respondent received from Hannah: the checks represented "interest."  There is no clear and convincing evidence that respondent made a statement that  he knew was false.

It was the Administrator's burden to prove by clear and convincing  evidence that respondent's statements in his cover letters to Boers were false.  However, the Administrator presented no evidence whatsoever to establish what  was the nature of the payments. After carefully reviewing the record, we hold  that the Hearing Board's finding of dishonesty in violation of Rule 8.4(a)(4)  was against the manifest weight of the evidence. We conclude that respondent did  not violate Rule 8.4(a)(4) as alleged in count VI.

That left only neglect and commingling

Regarding the neglect of Sloan's estate, this court has repeatedly  observed that neglect in the performance of an attorney's duties to a client can  be sufficient to warrant discipline. Where a corrupt motive and moral turpitude  are not clearly shown, suspension is a proper punishment.  Regarding the finding of commingling, we recognize  that respondent maintained a client trust account. However, he used the account  as he would any other business account, commingling his personal funds with  client funds. This practice violated respondent's professional duty to maintain  client funds in a separate account. This court has repeatedly stated that  commingling will not be countenanced.  Commingling is a ground for suspension, as is misrepresentation (citations omitted)

The precedent that the court relies upon in dismissing the fiduciary breach allegations is linked here. I think that the dissent in the case makes the better argument in favor of finding that fiduciary violations are sanctionable under the court's ethics rules. (Mike Frisch)

December 2, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

License Annulled

The West Virginia Supreme Court of Appeals annulled the license of an attorney who had no record of prior discipline.

The findings below

In the instant disciplinary proceeding, the [Hearing Panel Subcommittee] concluded that Mr. Scotchel charged excessively high attorney’s fees despite performing little if any substantive work on a variety of legal matters involving the complainant, Mr. Lewis Snow, Sr., including: the sale of Mr. Snow’s sanitation business, certain misdemeanor charges, a workers’ compensation coverage issue, and claims before the Public Service Commission. The HPS also concluded that Mr. Scotchel improperly retained proceeds from the sale of Mr. Snow’s sanitation business in supposed payment for such unreasonable unpaid attorney’s fees and that he failed to provide a requested full accounting of the money to Mr. Snow from the sale of the business. Furthermore, despite being instructed during the course of the disciplinary proceedings below to re-create the time demonstrating his work and fees on his claimed representation for Mr. Snow, Mr. Scotchel failed to provide a detailed accounting to support his claimed fees.

The court

...the HPS properly concluded that there was clear and convincing proof that Mr. Scotchel violated duties owed to his client by charging unreasonable fees, failing to communicate the basis of the fees, failing to have a contingency fee in writing, failing to provide Mr. Snow with his money from the sale of the sanitation business, failing to provide a full accounting as requested by Mr. Snow, and failing to comply with Disciplinary Counsel’s request for itemized billings or accountings.

As to sanction

Mr. Scotchel’s violations in this case are egregious and touch the very essence of the public’s perception of the legal profession. While these are Mr. Scotchel’s first offenses of the Rules of Professional Conduct giving rise to discipline, this is not a case of simple negligence or neglect. We conclude that Mr. Scotchel misappropriated client funds and thereafter attempted to justify such a misappropriation by fabricating his involvement in other matters in which Mr. Snow was involved. The HPS had the opportunity to observe Mr. Scotchel’s testimony and found that much of his testimony lacked credibility. The HPS was also able to hear and observe the testimony of several witnesses which the HPS found to be credible.

(Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tennessee Ethics Board Sued

A news story from WSMV.com

A bombshell of a lawsuit goes in front of a Nashville  judge Thursday as a pair of Nashville lawyers are suing their own ethics board for what they call ethical violations and a cover-up.

That means they are suing the very people who punish lawyers for bad ethics.

It all started when one lawyer saw an email about his upcoming case sent to a judge without his knowledge.

When a lawyer is punished for some kind of ethical violation, it is the job of the Board of Professional Responsibility for the Supreme Court of Tennessee to hold a hearing and decide guilt or innocence.

However, when attorney Jim Roberts was looking  into defending himself, he saw an email from the board to the judge in his case describing the case.

It was a secret email he knew nothing about.

"We discovered that the Board of Professional Responsibility was systematically engaging in unethical conduct. They, on a regular basis, were having secret conversations with judges, and now they are trying to cover it up," Roberts said.

Attorney Connie Reguli made a Freedom of Information Act request for all emails regarding upcoming cases against lawyers.

"It's as if I would send a letter to a judge saying, 'judge, I'm coming into your courtroom tomorrow, and this guy is a real schmuck. And here is what I want you to do,'" Reguli said.

Reguli got the emails from the Board of Professional Responsibility, but there was a huge problem. There were at least 50 pages of redacted emails.

"They've taken it all out," Reguli said. "They've deleted everything else on that email, and it's high importance."

"There is no way that one side gets to have secret communications with a judge and the other side not know about it and not be told about it," Roberts said. "And we've caught them. We caught them red-handed, acting unethically, and they have to explain it."

Channel 4 News sought a statement from a representative for the Board of Professional Responsibility but we never heard back.

The issue goes to court Thursday, and Roberts and Reguli said they will demand unredacted, unerased emails.

(Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Steals From His Secretary; Suspension Proposed

Sometimes a secretary or support staffer steals from a lawyer or the lawyer's escrow account.

Rarely is it the other way around.

An attorney who had misappropriated funds from his "retired elderly secretary" should be suspended for three years, according to a recent report and recommendation of the Illinois Review Board.

When Respondent's retired elderly secretary,  Generose Schweickert ("Schweickert"), became ill in 2005, she asked Respondent  for assistance in handling her financial affairs. Respondent prepared, and  Schweickert executed, two powers of attorney giving Respondent power to handle  Schweickert's finances. Beginning in 2005, Respondent actively managed her  affairs and he paid himself attorney fees for performing those services. In or  about 2009, Schweickert became mentally incompetent. Thereafter, over several  years, Respondent took $95,000 of Schweickert's funds and used the money for his  own personal purposes. In addition, Respondent failed to timely pay the nursing  home where Schweickert resided resulting in an action by the nursing home to  involuntarily transfer Schweickert and recover the delinquency. Respondent,  acting as Schweickert's attorney, failed to appear at a status conference and  failed to comply with an agreed order entered in the matter.

A lesser sanction than disbarment was appropriate

While Respondent's conduct could support a sanction  of disbarment, we agree with the Hearing Board's recommendation that  Respondent's misconduct warrants a three year suspension. However, we recommend  that the suspension continue until further order of the Court. Respondent's  failure to fully understand the impropriety of his acts, as evidenced by his  continued insistence that the takings were loans and his poor financial  condition, support the necessity of a future assessment before he resumes the  practice of law.

The secretary had worked for the attorney from 1964 until she retired in 1984. She never married and had no close relatives. (Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Sunday, November 30, 2014

A Strong Reminder To Do Your CLE

An attorney who twice signed verifications for CLE credit that he had not earned was publicly reprimanded by a North Carolina General Justice Court.

Because the attorney formally had served as Counsel to the State Bar, the matter had been independently reviewed for a probable cause determination.

The attorney had claimed twelve hours of credit after attending for only the first and last hour of a class in September 2013.

He had engaged in similar conduct two years earlier.

The court called the reprimand a "strong reminder of the high ethical standards of the legal profession."  (Mike Frisch)

November 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, November 29, 2014

Photo Finish

An attorney admitted to practice in 2009 was suspended for five years for engaging in sexual relations with a client in a domestic relations matter.

He sent three clients explicit text messages that included photographs of his erect penis.

He advised one client that he had had a vasectomy and thus that she could"ride bareback" with him.

The Disciplinary Hearing Commission found that the clients were vulnerable and that the explicit photographs demonstrated "a lack of judgment and integrity."

Two of the clients indicated that they had less trust in lawyers as a result of their interactions with the attorney.

The attorney also wrote off fees for one client without authority to do so from his firm and lied about his  conduct to disciplinary authorities.

The commission concluded that disbarment was not required. Rather, he may seek reinstatement after five years if can satifies the numerous conditions set forth in the order. (Mike Frisch)

November 29, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, November 28, 2014

Sex OK If Attorney-Client Relationship Over; Dissent Calls Majority Decision A "Work Of Fiction"

The West Virginia Supreme Court of Appeals disagreed with a hearing panel subcommittee of its Lawyer Discipinary Board and found no misconduct resulted from a sexual relationship between an attorney and his former client.

Notably, the attorney had not opposed the recommended 90-day suspension.

On de novo review,  a majority of the court concluded that the sexual relationship began after the joint representation of the client and her husband on estate planning matters had ended.

The court majority concluded that the husband had fired the attorney at a January 2010 meeting that took place at The Greenbrier.

The termination was "because of [the husband's] concerns over the nature of [the attorney's] relationship with his estranged wife."

There was a concurring opinion by Justice Workman that agrees with the majority but noted that an attorney who terminates representation would be wise to send a "disengagement" letter.

Two  justices dissented.

Justice Ketchum saw no evidence of an attorney-client relationship at the time of the sex but noted that the attorney had agreed that violations meriting a 90-day suspension had taken place.

Strong words from Justice Loughry in dissent, who calls the majority opinion a "result oriented...work of fiction" that will "send a message that the Court is more interested in protecting its own than policing its own."

Justice Loughry would find that there was an ongoing attorney-client relationship and chides the majority for its focus on testimony viewed in isolation (that the client thought of the attorney as a "friend") and its reliance on "utterly illogical" factors in support of its conclusions.

The hearing panel subcommittee report is linked here.

The subcommittee squarely found that the attorney-client relationship with both husband and wife continued well past the Greenbrier meeting and that the sex started during that period of time.

It further found that the attorney's claim that the end came at The Greenbrier was a knowing falsehood.

The husband did not retain new counsel until June 2010.

The Charleston Gazette reported that the attorney left his position as the Charleston managing partner of his firm in July 2014. (Mike Frisch)

November 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Domestic Violence Suspension

The Oklahoma Supreme Court has imposed a suspension of two years and a day for an attorney's domestic violence conviction

On or about the evening of July 3, 2011, Respondent's wife and two children were sleeping in their car to avoid Respondent who was intoxicated. Respondent approached the car and accused the son, who was 14 years of age, of breaking a television set. Respondent's son exited the vehicle and soon thereafter a verbal and physical altercation ensued. During the incident Respondent punched his son in the mouth causing a small cut and swollen lip. This occurred in the presence of Respondent's wife and 7 year old daughter. Tulsa Police were called and Respondent was arrested.

While on probation for the offense there was a second incident of violence toward his son.

The court

Respondent has presented no defense for his actions and his brief states he readily accepts any discipline. He claims to have reconciled with his son and has completed 52 weeks of DVIS classes. The attached letter written by Mr. Brett states Respondent has matured and grown from his disbarment experience and is now "professionally prepared to resume his obligations as a practitioner of the law." This letter was dated August 11, 2014, less than a month after Respondent received his interim suspension. Although, we encourage Respondent to continue his reconciliation efforts and remain sober, not enough time has passed to convince this Court he is prepared to resume the practice of law. This point is emphasized by the fact he reported having a relapse the day following the filing of his brief, August 22, 2014. As in Soderstrom, we find a suspension period of two years and one day is appropriate.

The suspension is effective as of the date of the interim suspension. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Neither Doctor Or Lawyer

The South Carolina Supreme Court has imposed a two-year suspension of an attorney who also was an opthalmologist.

The attorney achieved some level of notoriety last year when the same court suspended her for not having a current email address.

The problem here was the attorney's litigation (found to be frivolous) for denial of her hospital privileges.

From the fourth dismissal of these claims

Judge Harrington was warranted in ordering sanctions in this case, especially because Appellant, a licensed attorney, made identical legal arguments in the 2005 litigation and did not prevail on the merits. Appellant has continuously and repeatedly challenged the Hospital's credentialing decisions without any legal basis to do so, and in the process, has cost the Hospital untold amounts of time and resources in defending these claims. Therefore, we further find that Judge Harrington was warranted in enjoining Appellant from filing any future claims in the circuit court without first posting bond.

The court here rejected the attorney's efforts to relitigate the merits of the underlying claims. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Accident Derails Career Of Ohio Bar Applicant

An applicant for admission to the Ohio Bar disclosed two alcohol-related incidents that had taken place in 2010.

One involved a reckless driving conviction that was pled down from driving under the influence; the other an open container of beer.

He was provisionally allowed to sit for the July 2013 exam.

But shortly before that event he was involved in another alcohol-related driving event in which he struck a parked car and left the scene. He had been drinking after a night of studying.

As a result, he was not allowed to sit for the 2013 exam.

The Ohio Supreme Court has now denied him permission to sit again.

The court noted concerns about his candor in connection with the pre-exam incident. His hearing testimony was inconsistent and an email to the Board of Commissioners on Character and Fitness had mischaracterized the circumstances.

The applicant was not found to have a chemical dependence and the bar's program did not propose that he enter into treatment.

He may reapply to sit in July 2015. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Stroke That Wasn't Leads To Increased Reciprocal Discipline

The Maryland Court of Appeals has ordered an indefinite suspension with possible reinstatement after one year as reciprocal discipline based on sanctions imposed in Delaware.

Notably, the sanction in Delaware was a public reprimand.

The attorney had failed to complete CLE requirements and had not responded to bar inquiries. 

He also made a false statement

Poverman failed to complete his 2013 Annual Registration Statement by the March 1, 2013 deadline. On March 12, 2013, the Delaware Supreme Court issued an order directing Poverman to appear before the court and show cause why he should not be suspended or sanctioned for such failure. ODC sent the show cause order to Poverman’s Baltimore office on March 19, 2013. On March 27, 2013, the date on which he was due to appear before the court to respond to the show cause order, Poverman called Cathy Howard, Clerk of the Supreme Court, and advised her that he would complete his registration statement online.

Based on their conversation, Howard believed that Poverman had suffered two strokes, which hindered his completion of the registration statement. On the same day, Howard sent an email to ODC relaying that Poverman had experienced two strokes and that he would complete the registration prior to his scheduled appearance before the Supreme Court. On April 9, 2013, Poverman repeated this assertion to the ODC in an email, stating that he had a “second stroke” in December 2012. Poverman, however, was never formally diagnosed as having suffered a stroke.

The court

...we conclude that indefinite suspension with a right to apply for reinstatement after no less than one year would not be “too harsh.” Although Poverman also has no prior disciplinary history, the other mitigating factors that applied to Kepple do not apply to him. Poverman was not “youthful and inexperienced” when he committed the misconduct, and the Board did not find he made a timely good faith effort to rectify the consequences of his misconduct. Furthermore, Poverman, unlike Kepple, repeatedly ignored communications from a disciplinary authority. We conclude that Poverman’s misconduct warrants an indefinite suspension with a right to apply for reinstatement in one year.

(Mike Frisch)

November 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Suspension Proposed For Blogging On Probate Matters

An Illinois Hearing Board has proposed a suspension of three years of an attorney who it found had

made false statements concerning the integrity of the judges, knowing  they were false or with reckless disregard for their truth or falsity, and  engaged in dishonest conduct and conduct prejudicial to the administration of  justice. The Hearing Board found, while Respondent had accused judges and other  attorneys of criminal conduct, there was not clear and convincing evidence that  she presented or threatened to present criminal charges, in order to obtain an  advantage in a civil matter.

As set forth below, the statements involved a guardianship matter and were made on a blog

Beginning in November 2011, Respondent wrote and  administered an Internet blog about the Sykes case. The blog consists of a  series of writings, by various persons, including Respondent. Respondent made  numerous blog posts over time. Some of those writings concern probate court and  the probate system in general. Other writings relate specifically to the Sykes  case and persons involved in it. The blog alleges corruption, in probate court  in general and the Sykes case in particular. For a time, there were  two blogs, one of which described itself as "(a)n attorney blog concerning  corruption and greed in the Probate Court of Cook County," because Respondent  used hosting sites which offered different features. (Tr. 318-19, 606-610,  820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate  them as the blog.

Respondent testified she produced the blog as a  private person not as an attorney. (Tr. 384). Respondent also testified her  knowledge and skill as an attorney was required to post and author the  statements on the blog. (Tr. 410). On the blog, Respondent stated she published  the blog primarily from a legal standpoint and it took an attorney to make the  comments appearing on the blog. (Tr. 411-12). When Respondent began keeping  track of time she spent on the blog, she calculated its value using her hourly  rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent's  Summary, the blog was open to the public. Respondent estimated, by the time of  the hearing, her blog had an audience of about 40,000. (Tr. 318).

The blog includes allegations of wrongdoing by  specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28).  These allegations are summarized in a "Table of Torts." While those persons are  referenced by initials, the Table identifies the persons to whom the initials  refer. Respondent prepared the Table of Torts. Because Respondent periodically  added material to the Table of Torts, more than one version is in evidence.  Respondent acknowledged the exhibits fairly represent snapshots of the Table of  Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).

On the blog, Respondent described the Table of  Torts as "TEN PAGES of questionable behavior, corruption, misfeasance,  malfeasance, perpetration of misdemeanors and felonies," occurring in the Sykes  case, (Adm. Ex. 24 at 16), and as a "Summary of the Case! - 90%+ of the wrongful  conduct all in one convenient place." (Adm. Ex. 21 at 10). We begin, therefore,  with the Table of Torts, for the purpose of providing an  overview of the blog and context for the statements with which Respondent is  charged.

The hearing board

Respondent was licensed to practice law in 1986,  nearly thirty years ago. She has no prior discipline.

While Respondent acted with reckless disregard for  the truth of her accusations, based on our impressions of Respondent, we do not  believe she was acting out of a deliberate purpose of harming the judges and  attorneys involved. Respondent genuinely, though unreasonably, believed  something was wrong with the proceedings in the Sykes case. Respondent knew Mary  and Gloria before the guardianship. While Respondent used decidedly misguided  means, we believe she was acting out of a sincere desire to help Mary. We were  also convinced Respondent truly believes there are abuses in the probate system  and the system needs to be changed, to protect persons who are the subject of  adult guardianship proceedings. From our perspective, it appears Respondent has  genuine concern for senior citizens and perceives the senior population as  vulnerable, especially to financial exploitation. This concern, as a general  matter, is a legitimate one, even though Respondent had no reasonable basis for  believing the judges or attorneys in Mary's case were corrupt.

We do not believe Respondent acted with a  self-serving motive. The evidence did not support a theory that Respondent was  reaping a significant financial benefit from her activities including operation  of the blog.

The proposed suspension will, if adopted, continue until reinstatement is ordered by the court.

As a blogger who frequently finds it necessary to criticize disciplinary processes in D.C. and elsewhere, I confess that I find this proposed sanction excessive given the absence of prior discipline and the conceded sincerity of the attorney's beliefs, even if unfounded.

Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.

In my view, that conduct should be, if not encouraged, at least allowed.

Once again, I applaud the District of Columbia Court of Appeals for declining to adopt Model Rule 8.2 (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)