Monday, November 17, 2014

West Virginia Village By the Sea

Justice Benjamin has now filed his concurring and dissenting opinion from a decision of the West Virginia Supreme Court of Appeals last month to deny a writ of prohibition to the state Attorney General.

The holding of the majority

In this proceeding, we have determined that the Attorney General lacked standing to have this Court determine the enforceability of an informal advisory opinion issued by ODC. We also have determined that this Court could not address the merits of the informal advisory opinion because to do so would result in this Court issuing an advisory opinion. As a result of a collateral issue being raised in this proceeding, regarding the authority of the Attorney General to prosecute criminal offenses, we took the extraordinary measure of addressing this issue in this opinion because of its widespread implication to our criminal justice system. In this regard, we have determined that county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney General as a special prosecutor. We further conclude that under West Virginia Constitution article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal prosecutorial authority of the Attorney General was abolished. After resolving the collateral issue raised in this opinion, the writ of prohibition prayed for is denied.

The result inspired the following tale from Justice Benjamin

 ONCE upon a time, there was a village by the sea. Some villagers fished the sea in their trawlers. Others were content to cast their lines in a vast freshwater inland lake where fish were abundant. Yet other villagers were farmers, who worked the land and who used the lake to water their livestock. All the villagers were happy. Food was plentiful. No one went hungry. Villagers enjoyed recreational time at the beach, at the lake, and at the parks. Life was good for the village by the sea.

One day, the lead sea captain of the sea trawlers noticed that sea conditions had become such that he now had more fishermen than needed to meet his quotas for fish. At the same time, he noticed that the lake anglers were often unable to meet their quotas. The lead sea captain proposed that several of his fishermen be transferred to the lake, on an as-needed basis, to assist the lake anglers.

Upon learning of this, the farming boss immediately objected, maintaining that sea fishing was sea fishing and lake fishing was lake fishing. He asserted that it was simply not proper for the chief lake angler to supervise sea fishermen who, though competent fishermen, had been trained their entire lives by others in the net-method of fishing, not the line-method of fishing. The farming boss warned that if the lead sea captain insisted on the transfer, the farmers would construct irrigation ditches to their fields from the lake, thereby reducing the lake’s fish population to a level compatible with the quota abilities of the lake anglers.

A conflict having arisen in the village, the matter was taken before the village elders. Determined to get to the bottom of the controversy that was disturbing the village’s customary calm, the Elders asked if any sea fishermen had yet been transferred to the lake. The lead sea captain and the chief lake angler assured that such was not the case. The Elders then inquired whether digging had commenced on the irrigation ditches. The farming boss responded that construction of irrigation ditches had not begun, being merely in the planning stages. The Elders exchanged glances among themselves, and then proclaimed—partly in exasperation and partly in relief—"There is no current conflict here! Everything is running along smoothly, just as it always has been."

The representatives of the various occupations heeded the Elders’ proclamation, and, indeed, all the villagers in attendance were constrained to admit that the sea might thereafter grow less jealous of its bounty, such that no fishermen need ever be transferred and no irrigation ditches need ever be dug. Indeed, everything probably had been premature. Just as the proceedings were about to adjourn, however, the Elders conferred among themselves and announced that a fence would be built all the way around the lake, with but two gates for which the farming boss and the chief lake angler would be given the only keys. At this, the lead sea captain leapt to his feet and exclaimed, "But this is unnecessary. Our fishermen will have no place to take their families on the weekends! Other villagers will no longer be able to enjoy the lake. With all respect, learned Elders, why would you insist upon such an unnecessary and extravagant thing when there is no current need?" A reverential hush fell as the question lingered in the room. "Because," the Elders replied nonchalantly, "we know what is best for all of you, we know what you need, we are quite good at building fences, and this is what is needed for life to be good in our village by the sea."

He concurs in the result but notes

Notwithstanding the unassailable case it makes that it has no authority to render an advisory opinion, the majority proceeds to embark on that very journey. The trip is justified, according to the majority, because the scope of the Attorney General’s authority is "collateral" to what it describes as the ultimate issue before us, i.e., whether the exercise of such authority would violate the ethics rules. With all respect to my colleagues in the majority, the ultimate issue before us has been revealed as whether we have jurisdiction of the Attorney General’s petition. Having answered that question in the negative, we are bound to answer no others.

(Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Former Hearing Panel Member Gets Stayed Suspension

The Pennsylvania Supreme Court accepted the consent sanction of a stayed suspension with probation for two years in a case in which the attorney had neglected cases over a two-year period, had money sanctions imposed upon him and paid the sanctions (roughly $65,000) out of firm accounts without telling his partner or the client..

The attorney concealed his conduct from his partner and the client, Wachovia Bank. Wachovia found other counsel when the defaults and sanctions came to light. Also later revealed were additional misuses of the firm operating account.

The attorney has repaid the firm about a third of the amount that he misused.

The disciplinary board

The instant matter does not involve the misappropriation of client funds; rather it involves the "misdirection" of operating funds and subsequent misrepresentation to Respondent's partner of the true  purpose of the use of the operating funds, which was to satisfy sanctions orders resulting from Respondent's neglect.  Furthermore, Respondent attempted to deceive the client, Wachovia, into believing that Respondent's billings were for services rendered rather than for services and sanctions.

Mitigating: The attorney self-reported the misconduct and suffers from depression.

Aggravating: The attorney had served as a member of a disciplinary hearing committee.

Justice Stevens dissented and would reject the consent discipline. (Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, November 14, 2014

Incompetent Death Penalty Defense Leads To Disbarment

In a rather unusual case, the Kansas Supreme Court has disbarred an attorney for ethical violations committed in the course of defending a client in a death penalty case.

Also unusual was the attire of the attorney in oral argument before the court. The Topeka Capital-Journal reported that he came dressed as Thomas Jefferson.

Dressed as Thomas Jefferson, 18th century Revolutionary War patriot, lawyer Ira Dennis Hawver faced the Kansas Supreme Court on Friday to answer disciplinary findings he provided ineffective assistance of counsel to a defendant sentenced to death.

Video here.

The attorney had no prior experience in death penalty cases. He devoted approximately 60 hours to preparing the case and had not tried a murder in twenty years.

in the proceedings, he repeatedy referred to his client as a "professional drug dealer" and a"shooter of people."

He was also distracted by his campaign for Governor.

His claim that his conduct was protected by the First Amendment failed to persuade

Many of the deficiencies the panel found involved nonexpressive conduct, including Hawver's failure to investigate for the guilt and penalty phases of Cheatham's case, inadequately preparing for trial, failure to file an alibi notice, failure to seek out or accept financial assistance for trial preparation, and failure to devote sufficient time to the case. The free speech guarantee extends to the spoken and written word and to conduct "'sufficiently imbued with elements of communication . . . .'" Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). But whether conduct is so imbued depends on whether the actor intended to convey a particular message and whether "'the likelihood was great that the message would be understood by those who viewed it.'" Johnson, 491 U.S. at 404. The nonexpressive conduct in this case clearly was not intended to convey any particular message, so it is not protected speech. Imposing attorney discipline for this nonexpressive conduct does not implicate First Amendment concerns.

On the other hand, some of the deficiencies involved expressive conduct, including telling potential jurors that Cheatham was a drug dealer and had previously been convicted of voluntary manslaughter for shooting and killing another person; telling the jury during the guilt phase it would take "superhuman" efforts to see past Cheatham's criminal history to find him not guilty; and telling the jury during the penalty phase that it should execute the person who committed the crimes for which it had just found Cheatham guilty. But this expressive conduct also was not protected speech.

A lawyer who undertakes a duty to act only in the client's best interests possesses no First Amendment interest in such in-court speech.

The court

In addition to the injury to the legal system found by the panel, it is important to note Hawver's misconduct actually injured Cheatham, who was "improperly advised by [an] unqualified lawyer[ ]" resulting in a deprivation of Cheatham's constitutional right to assistance of counsel... Moreover, Hawver's inadequate performance—particularly as to the penalty phase of Cheatham's trial—might have caused or contributed to the jury sentencing Cheatham to death.

In deciding that disbarment is the appropriate sanction under the circumstances, this court is mindful that one panel member recommended indefinite suspension, while the remaining two recommended disbarment. We also recognize there may be some tension in reconciling the panel's conflict of interest findings with its determination of a lack of selfishness as a mitigating factor.

But in this court's view the essentially uncontroverted findings and conclusions regarding Hawver's previous disciplinary history, his refusal to accept publicly financed resources to aid in his client's defense, and his inexplicable incompetence in handling Cheatham's case in the guilt and penalty phases of the trial are more than sufficient to require disbarment. See ABA Standard 4.51 (disbarment generally appropriate when a lawyer's course of conduct demonstrates "the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer's conduct causes injury or potential injury to a client"). We hold that disbarment is the appropriate discipline.

The client was granted a new trial last year.

From the order reversing the client's conviction

...we must determine whether this conflict adversely affected the adequacy of Hawver's performance. Cheatham maintains the financial disincentive under which Hawver labored was illustrated by his failure to adequately investigate and prepare the case and by his failure to withdraw and serve as an alibi witness for Cheatham. We agree.

Hawver estimated he spent around 200 hours in defense of Cheatham. This is appallingly low for a death penalty case defense and even more stunning when all but 60 of those hours, as Hawver testified, were spent in trial. In addition, Hawver failed to retain an investigator or to assemble a defense team to adequately present Cheatham's case due to an unwillingness to invest the resources this would take. As a result, potential defense witnesses were never interviewed and possible leads, such as an unexplained foot print at the crime scene, were never pursued. Hawver admitted openly that he had no intention of spending his own funds to prepare the case and no intention of taking time away from his other cases or his political activities. Hawver obviously realized the questionable nature of his inattention because he had Cheatham acknowledge it in writing. In sum, Hawver's representation bore a greater resemblance to a personal hobby engaged in for diversion rather than an occupation that carried with it a responsibility for zealous advocacy.

Hawver also failed to make himself available as an alibi witness for Cheatham by serving as his counsel. Cheatham notes that if called to testify, Hawver would have explained that on the day before the murders, Hawver had advised Cheatham to leave town because Hawver believed the police were looking for an excuse to arrest Cheatham. Similarly, Cheatham would have testified that he followed his counsel's advice and left for Chicago on the afternoon of December 13. And Hawver most certainly could have provided a measure of credibility to Cheatham's claim that he was in or on his way to Chicago at the time of the murders by taking the stand and recounting to the jury how he had advised Cheatham to get out of town. But that line of testimony was foreclosed because Hawver was serving as trial counsel.

Even so, Hawver attempted during closing argument to present this evidence by stating, “Now when I first got this case, I got a call from Phillip Cheatham in Chicago-“ but the State objected before he could finish because Hawver's argument was beyond the scope of admitted evidence. Clearly, Hawver recognized too late the contribution his testimony could have brought to the defense and attempted unsuccessfully to present it. But becoming an alibi witness would have required him to withdraw from the representation and forego any claim to a fee or the public attention garnered from serving as trial counsel in a double homicide trial.

We hold that under the circumstances presented the fee arrangement in this death penalty case created a conflict of interest for Hawver that adversely affected the representation of Cheatham in multiple respects. And we hold further that it is not necessary for Cheatham to show that he was actually prejudiced by Hawver's failure to adequately pursue his defense or withdraw and provide alibi support. Cheatham's convictions, therefore, must be reversed and the case remanded for a new trial.

(Mike Frisch)

November 14, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Complaint Filed In California Bar Controversy

The California State Bar has been sued by its former executive director Joseph Dunn.

The complaint alleges that Senator Dunn filed a series of whisteblower notices last November that disclosed serious ethical breaches, prosecutorial lapses and fiscal improprieties committed by State Bar President Craig Holton. "certain members" of the Board of Trustees and Chief Trial Counsel Jayne Kim.

The complaint was filed in the Superior Court of the County of Los Angeles. Dunn is represented by Geragos & Geragos. (Mike Frisch)

November 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Reprimand For Non-Compete Provision

The Indiana Supreme Court has imposed a public reprimand of an attorney who had contained a non-compete provision in an associate's employment agreement.

 In 2006, Respondent hired an attorney ("Associate") to work in his law office pursuant to an employment agreement. Respondent’s law practice focuses primarily on Social Security disability law. The employment agreement included a noncompete provision that prohibited Associate from practicing Social Security disability law for two years in the event his employment with Respondent was terminated.

In 2013, Respondent fired Associate. Thereafter, Respondent sent letters to Associate’s clients advising that Associate no longer worked at the firm and that Respondent would be taking over their representation, and in those letters Respondent included Appointment of Representative forms for the clients to complete in order for Respondent to replace Associate as the clients’ representative before the Social Security Administration.

Despite the foregoing, Associate continued to practice Social Security disability law after leaving the firm, and at least two of Associate’s existing clients chose to keep Associate as their lawyer. Respondent did not attempt to enforce the noncompete provision and, after the disciplinary grievances were filed against him, Respondent provided Associate with the files for Associate’s clients.

The court approved an agreed disposition. (Mike Frisch)

November 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

I'll Be Barred For Christmas

The Oklahoma Supreme Court has suspended an attorney until December 23, 2014.

The story

On April 29, 2013, the Respondent drove to the home of his former spouse, let himself into the home and began talking about his sadness over their divorce. An argument arose about a bicycle in the garage and a struggle ensued that caused a superficial injury to the his former spouse's leg. Neighbors called the police about the loud voices and [he] fled on foot when police cars began arriving in the neighborhood. He later returned and drove away, followed by the Tulsa Police Department. He refused to pull his vehicle over when requested and led the police on a high-speed chase. The officers used spike strips to slow the Respondent's vehicle. He left his vehicle and began to run from the police. He was apprehended by and resisted a canine police officer. He was arrested, treated at a hospital for dog bites and then taken to the Tulsa County jail.

The attorney pled guilty to four misdemeanors and was suspended on an interim basis as a result.

There was mitigation

In the present matter the Respondent sought treatment and has followed up his treatment by attending Alcoholics Anonymous in order to maintain his sobriety. No clients were harmed by his conduct and he has recognized the seriousness of his actions and is remorseful for the disrepute it brought upon the legal profession. The Cooley and Bernhardt and Burns cases involved felony sentences; the Respondent is serving deferred and suspended sentences for misdemeanor violations. Each of these cases concerns the discipline of a lawyer whose conduct outside the setting of his professional practice brought disrepute and harmed the public image of the profession. reported that he was employed by a public defender office.

Question: What can one do but resist a canine police officer who is apprehending you? You can't obey their commands. (Mike Frisch)

November 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Air Disbarment

The New York Appellate Division for the Third Judicial Department has disbarred an attorney convicted of tax evasion.

The FBI Washington Field Office had this account of the case

Jon C. Cooper, 64, of Washington, D.C., pled guilty on October 9, 2013 in the U.S. District Court for the District of Columbia to one count of tax evasion related to his failure to report over $448,000 in income he received in 2006.

The guilty plea, which took place on October 9, 2013, was announced today by U.S. Attorney Ronald C. Machen, Jr.; Valerie Parlave, Assistant Director in Charge of the FBI’s Washington Field Office; and Thomas J. Kelly, Special Agent in Charge of the Washington Field Office of the Internal Revenue Service-Criminal Investigation (IRS-CI).

As part of his guilty plea, Cooper admitted that, in December 2006, he and Alan Messner induced an Indonesian airline company to pay them a $1 million security deposit to lease two aircraft using various false and fraudulent pretenses, representations, and promises—including forged and fraudulent documents. Cooper admitted that, after he received the $1 million security deposit, he transferred $284,500 to Messner in December 2006 and January 2007. Cooper spent the balance of the security deposit for his own personal benefit. Cooper and Messner did not provide the promised aircraft and did not return any funds to the Indonesian airline company.

Cooper admitted that he did not report at least $448,727 of those proceeds on his federal income tax return for 2006. Instead, by under-reporting his income, Cooper claimed a tax refund that year. As a result of Cooper’s tax evasion, Cooper caused a tax loss of at least $133,464 to the United States.

Cooper is to be sentenced on January 23, 2014, before the Honorable Amy Berman Jackson. He faces a maximum sentence of five years in prison and a $250,000 fine. In addition, as part of his guilty plea, Cooper agreed to pay $133,464 owed to the United States. Cooper further agreed to make restitution of $1 million to the victimized Indonesian airline company.

(Mike Frisch) 

November 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bar Complaint Leads To Bar Charges Against Complainant

An attorney who had filed a bar complaint against opposing counsel in a landlord-tenant matter violated ethical rules in so doing, according to a recent complaint filed by the Illinois Adminstrator.

The charged attorney had contended in the underlying matter that a lease had been forged. The bar complaint that forms the basis of the present matter alleged that the forger was opposing counsel.

According to the charges

 Respondent, by signing and forwarding to the  Administrator the request to investigate [opposing counsel] Wentz...presented disciplinary charges against Wentz in an attempt to obtain an  advantage (discovery and monetary assistance by requesting that the ARDC retain  a handwriting expert and obtain the transcript of the trial), in a civil  proceeding (appeal number 3-12-0975), and in an effort to discredit Wentz. In  the alternative, Respondent had no purpose other than to harass or needlessly  burden Wentz.

The attorney also is alleged to have failed to cooperate in the investigation. (Mike Frisch)

November 13, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2014

Devil In the Details

The Minnesota Supreme Court denied the motion of an attorney who had been suspended for at least 30 days for additional time to take and pass the state bar professional responsibility examination.

The court's origninal order required the attorney to pass the exam within one year. When the attorney had failed to provide the court with proof of passage, a show cause order was entered.

The attorney stated in response that "during the summer of 2014 she realized for the first time ithat the professional responsibility portion of the state bar examination is only offered three times per year" and that realization came too late. In any event, she contended that financial problems prevented her registration.

She is now registered for the November 2014 exam.

 The court revoked the attorney's conditional reinstatement.

These are the kind of details to which a suspended attorney should pay close attention. (Mike Frisch)

November 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 11, 2014

"Largest Federal Fraud Case In Idaho History"

An Idaho attorney has resigned from the bar in the wake of his federal court conviction.

The web page of the Idaho disciplinary counsel notes

The Idaho  Supreme Court accepted Mr. Ellison’s resignation in lieu of discipline.  By the terms of the Order, Mr. Ellison may  not make application for admission to the Idaho State Bar sooner than five  years from the date of his resignation.  If he does make such application for  admission, he will be required to comply with all of the bar admission  requirements in Section II of the Idaho Bar Commission Rules and shall have the  burden of overcoming the rebuttal presumption of the “unfitness to practice  law.”

The Order also  provides that consistent with I.B.C.R. 512(d), if an appeals court vacates or  reverses Mr. Ellison’s conviction, or if a trial court enters an order granting  a motion for a new trial, a motion for judgment of acquittal, or a motion to  withdraw a plea of guilty, that removes Mr. Ellison’s conviction of the crimes,  which are the basis for this sanction, Mr. Ellison may file with the Clerk of  the Idaho Supreme Court, a motion for dissolution or amendment of the sanction. had this report on the underlying case

Douglas Swenson, former president of failed property management company DBSI, faces 20 years in federal prison. The company’s former general counsel, Mark Ellison, faces a sentence of up to five years.

A U.S. district judge in Idaho has sentenced Douglas Swenson, the president of failed southwest Idaho property-management company DBSI, to 20 years in federal prison without parole for defrauding investors, the Associated Press reports.

The judge, B. Lynn Winmill, also sentenced DBSI’s former general counsel, Mark Ellison, to five years in prison. Federal prosecutors have said they will seek at least $75 million in restitution, which will be set later. In April 2013, $1.5 million was seized from Swenson on the orders of a federal magistrate judge, the Associated Press reports.

This is the largest federal fraud case in Idaho history. Winmill told those in the courtroom that it was the toughest he had presided over in almost 30 years as a judge, as he believed that the defendants did not set out to defraud investors. He said he tried to weigh the descriptions of Swenson and Ellison as family men, churchgoers, and community leaders who had never before been in trouble with the law against the harm done to investors, some of whom lost hundreds of thousands of dollars, The Idaho Statesman reports.

In April a jury convicted Swenson of 44 counts of securities fraud and 34 counts of wire fraud. Ellison was convicted of 44 counts of securities fraud. Attorneys for Swenson and Ellison said they plan to appeal their convictions, the Associated Press reports.

Jeremy Swenson and David Swenson, Douglas Swenson’s sons and former company secretaries who were also convicted of securities fraud, were sentenced on Thursday to three years in prison followed by three years of supervised release and a $4,400 special assessment. They will also have to pay restitution, which will be set later, KTVB reports.

DBSI, founded in 1979, was once one of Idaho’s largest employers. Before it filed for bankruptcy in 2008, it managed 280 shopping centers, office buildings and other commercial buildings across Idaho and 33 other states. The company’s holdings were worth $2.7 billion, and many of them were owned by groups of investors to whom DBSI sold fractional shares. The company claimed to have a net worth of more than $105 million, when in fact it lost a total of $170 million in 2007 and 2008, The Idaho Statesman reports.

Swenson and Ellison concealed the company’s financial difficulties from investors and employees, and even continued to accept new investments when they knew there were not enough earnings to keep paying off investors.

University of Maryland Professor Jeffrey Mitchell told the court on Wednesday that he invested $113,000 in DBSI just 70 days before the company collapsed, and was given no indication that the company was in any financial trouble, the Associated Press reports.

However, other investors said that they understood the risks involved. Under federal regulations, DBSI investors had to have a minimum yearly income of $200,000 or a net worth greater than $1 million. They were also required to sign a document acknowledging that there was no guarantee of return and that they could afford to lose their investment, the Associated Press reports.

(Mike Frisch)

November 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

Problematic Answer

The Michigan Attorney Discipline Board has affirmed the denial of a suspended attorney's petition for reinstatement.

The suspension involved a false statement in a federal court proceeding.

The problem here

As noted in the panel's report, petitioner's testimony that he believed the Attorney Grievance Commission was part of the State Bar and he therefore had been suspended by the State Bar, and that because he had no pending cases in any courts, he was not "suspended by a court," was simply not credible in light of the fact that petitioner was fully aware of the process having gone through an entire reinstatement proceeding that resulted from his prior thirty month suspension. Additionally, on cross-examination, petitioner admitted that when the matter was brought to the court's attention, he wrote a letter of explanation which did not include his apparent belief that he had been suspended by the State Bar but rather had indicated thathe  had voluntarily resigned.

(Mike Frisch)

November 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


An attorney's latest brush with ethical violations resulted in a one-year suspension by the Wisconsin Supreme Court.

The court noted that the attorney

has a lengthy and troubling disciplinary history, with three consensual private reprimands, one consensual public reprimand, and four previous suspensions. 

Here, the attorney picked up a alcohol-related driving conviction after previous discipline for such misconduct.

He also again violated court orders in his domestic case

...although he had been disciplined in that proceeding for criminal convictions that arose out of improper actions toward his then-wife, he subsequently chose to violate a domestic abuse injunction by sending legal documents to her directly.  Further, although he had been disciplined in Guenther III for his second offense of operating a motor vehicle with a PAC, he engaged in the conduct again, leading to a third PAC conviction.  This repetition of misconduct makes the violations in this matter more troubling and worthy of a lengthier suspension, which hopefully will impress upon him the seriousness of his misconduct and the need to conform his conduct to both the criminal laws of this state and the Rules of Professional Conduct for Attorneys. 

(Mike Frisch)

November 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Litigation Misconduct Draws One Year Suspension

The New Jersey Supreme Court has imposed a one-year suspension as reciprocal discipline in an interesting litigation-misconduct matter.

The misconduct involved an associate's attorney handling of an employment discrimination matter against the client's former employer (OMD). The associate was supervised by partners of his law firm.

OMD had sought information about the client's efforts to mitigate damages through, among other things, obtaining new employment. Responsive documents were provided by the firm.

The firm retained an economist to assess damages. The expert prepared an analysis based on the assumption that the client would be unemployed through the end of 2010.

Prior to service of the expert's report, the client got two job offers. She accepted a job with Kraft that paid her more than she made at OMD. She advised the attorney informed about her employment situation, who in turn told his supervisor.

The firm then received and sent to opposing counsel the expert report, asking for a $350,000 settlement.

Then client was deposed a month later and lied about the situation. The attorney was aware of the false testimony but did not move to correct it

Negotiations continued until OMD learned about the client's new job.

The Disciplinary Review Board

 OMD’s counsel moved for sanctions and dismissal. [Supervising attorney] Gilly and another partner from the firm were present at the May 2011 oral argument on the motion. Respondent was not present. The judge imposed a sanction $2,500 against [client] Fryer and $15,000 against the firm, "based on false testimony by Ms. Fryer at her deposition" and respondent and Gilly’s efforts "to conceal Ms. Fryer’s new employment and to leverage a false expert report in order to extract a favorable settlement." The judge declined to dismiss the case against OMD at the time. Respondent was asked to resign from the firm on May 31, 2011.

The court imposed the same sanction as originally ordered by the New York Appellate Division for the First Judicial Department.

LAW360 reports that the partner was suspended in the New York Southern District and had sued the law firm.  (Mike Frisch)

November 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2014

Left Turn Leads To Deaths And Suspension

The District of Columbia Court of Appeals has suspended an attorney convicted of causing the deaths of two people.

The attorney was driving a 2013 BMW; the couple died on a 2006 Harley motorcycle.

NBC News 4 had reported on the charges.

Mark Sgarlata, a partner in a Tysons Corner law firm, faces two counts of aggravated involuntary manslaughter for killing Ricky and Leia Wrenn, when he drove his car into their motorcycle...

Investigators say Sgarlata made a left turn into a shopping center just after midnight Oct. 6 and crashed into the Wrenns on their motorcycle, killing them.

He had faced another DUI charge in the past. Records show arrested in March 2011, but the charge was pleaded down to reckless driving. He had a restricted license for six months.

The court imposed an interim suspension pending final discipline for the attorney's resulting conviction. (Mike Frisch)

November 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Best Paid Court Appointed Attorney In Ohio Was Cheating

The Ohio Supreme Court has ordered a two-year suspension with the second year stayed on conditions of an attorney who engaged in gross overbilling for court-appointed legal services.

The attorney became the subject of scrutiny when the Dayton Daily News reported that he was the "attorney receiving the highest payment for court appointed legal work in Ohio."

Turns out he was billing for services in four counties such that in 2008 he billed 2,555.5 hours (the point 5 is a nice touch) to a single county, which comes out to over seven hours a day 365 days a year.

His billings to other counties got him over eight hours a day.

Restitution of $50,000 is one of the reinstatement conditions. (Mike Frisch)

November 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Suspended For Misconduct In Handling Settlement Proceeds

An attorney retained as successor counsel in a contingent fee personal injury action was suspended for two years with the second year stayed on conditions by the Ohio Supreme Court.

The first firm initially had claimed a lien for fees and costs of under $3,000. When the case settled for $150,000 a month into the attorney's taking the case they claimed to have done most of the work and sought the bulk of the settlement proceeds.

The attorney had the settlement check released to her by the responsible judge, who initially had kept the check in a bowl on her desk.

The attorney failed the follow the court's instructions on distribution of the proceeds and was late for court proceedings. Eventually, the attorney was heldin contempt and incarcerated.

The attorney made a claim of bias by the trial court and contended that the hearing on the check distribution violated her rights in that her cross-examination of prior counsel was not allowed to be completed.

The court here rejected the bias claim but expressed concern about the fairness of the distribution hearing, which reains unresolved on appeal.

The court ordered restitution to the first firm among other conditions on reinstatement. (Mike Frisch)

November 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

Plea Bargaining Discipline For Release Of Grand Jury Transcripts

The Arizona Presiding Disciplinary Judge has ordered the reprimand of an attorney who gave grand jury transcripts to a reporter.

It is clear release of such sensitive documents to the press when it is forbidden by court rule and statute is a direct interference with the legal process. It can cause significant harm to the opposing party, which is not in the interest of the public, harm the interest of the client, or disrupt the integrity of the legal system. Whether this harm happened, has yet to happen, or did not happen, the potential for significant harm undoubtedly existed. As with all matters, this case has been carefully considered. A request for modification was cautiously considered.

This is not to say a reprimand is not the appropriate action to be taken. As with plea bargaining in criminal proceedings, consent agreements typically involve one pleading to a lesser charge and often includes a request for leniency. Through the process of consent agreements, the parties are able to establish a mutual acknowledgement of the weaknesses and strengths of a case. Both parties are represented by counsel and the terms of the agreement support a negligent state of mind. The object of lawyer discipline is not to punish the lawyer, but to protect the public, the profession and the administration of justice. That purpose is met by the agreement.

The judge found that the attorney had acted with a knowing state of mind. (Mike Frisch)

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

Tuesday, November 4, 2014

Sex, Lies And A BMW

The Illinois Review Board has recommended a three-year suspension of an attorney who engaged in a sexual relationship with a client

The Hearing  Board found Respondent's sexual relationship with the client, while representing  her in a lawsuit seeking damages for the wrongful death of her husband,  constituted a conflict of interest. The Hearing Board found Respondent also  engaged in a conflict of interest and improper business transaction by his  multiple financial dealings with the client, while representing her. The Hearing  Board concluded Respondent counseled his client to testify falsely, by telling  her to describe their relationship as strictly platonic, as she was preparing  for depositions in the wrongful death case. The Hearing Board also concluded  statements Respondent made to the ARDC during its investigation of his conduct  were false.

The evidence that he sought to get the client to lie

While another attorney was preparing [client] Scott and her  children for their depositions in the wrongful death lawsuit, he asked Scott  about her personal relationship with Respondent. Scott telephoned Respondent and  informed him of the inquiry. Shortly after this call, Respondent sent a text  message to Scott, which told Scott to "deny anything other than we r good  friends nothing more I could lose my license." Scott then told the counsel  preparing her for her deposition that she and Respondent were just friends.

The review board found that the findings were not against the manifest weight of the evidence.

The attorney also took out $48,000 in loans from the client to, among other things, buy himself a BMW.

The recommendation, if adopted, will require the attorney to establish his fitness prior to reinstatement. (Mike Frisch)

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

Not Clucking Defiance, Not Conduct Prejudicial, Floodgates Closed

An attorney who settled a malpractice claim brought by a former client but was unable to pay the agreed $50,000 did not engage in conduct prejudicial to the administration of justice, according to a report of the New Jersey Disciplinary Review Board.

The DRB recommended (and the court imposed) an admonishment for his failure to respond to the bar investigation.

As to the alleged Rule 8.4(d) violation

Respondent’s failure to comply with the settlement in the malpractice action is a civil matter, not a disciplinary matter. If respondent’s actions in this context become fodder for a finding of misconduct, then every attorney-litigant who is unable to pay a civil judgment will face disciplinary charges. The floodgates will be opened.

Moreover, logic forces the conclusion that respondent was unable to timely pay the judgment against him. Had he timely paid, the amount due to his client would have been $50,000. Otherwise, the figure would rise to $118,000. Respondent testified that he ultimately paid $93,766.34 to the former client. Clearly, it was in his interest to timely pay the amount due, had he been able to. But there is no indication that his failure to timely make the payment was an act of defiance... To find that respondent was guilty of conduct prejudicial to the administration of justice implies a malevolent intent that the record does not support. The disciplinary system is not meant to function as a collection agency.

The attorney suffered from (entirely understandable) depression during the period of the violations --he had lost his mother, father and sister and was divorced. (Mike Frisch)

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

Monday, November 3, 2014

Death Moots Guardianship

A recent bar discipline summary from the web page of the Idaho Bar Counsel

On  October 27, 2014, the Idaho Supreme Court issued a Disciplinary Order suspending  Meridian attorney Brian L. Boyle from the practice of law for a period of 90  days, effective October 1, 2014.  The  Disciplinary Order included a withheld six-month suspension and a one-year  disciplinary probation upon reinstatement. 

The  Idaho Supreme Court found that Mr. Boyle violated I.R.P.C. 1.2(a) [Scope of  representation], 1.3 [Diligence], and 1.4 [Communication]. The Idaho Supreme  Court’s Disciplinary Order followed a stipulated resolution of an Idaho State  Bar disciplinary proceeding in which Mr. Boyle admitted that he violated those  rules. 

The  formal charge case related to Mr. Boyle’s representation of a client who sought  a guardianship of a disabled child. In that case, Mr. Boyle failed to promptly  file the guardianship petition, failed to communicate with his client about the  status of the case, and failed to communicate with the minor’s appointed  guardian ad litem. The client erroneously believed that she had been appointed  as guardian. However, the Court had not appointed a guardian and instead  scheduled a show cause hearing due to inactivity in the case.  Approximately two months before the show  cause hearing, the child died. At the show cause hearing, Mr. Boyle informed  the Court that the child was still living and that his client wanted to be  appointed guardian. After the hearing, the guardian ad litem contacted Mr.  Boyle’s client, learned that the child was deceased, and informed the  Court.  The case was ultimately  dismissed.

The  Disciplinary Order provides that 90 days of suspension will be served effective  October 1, 2014, and six months will be withheld. Mr. Boyle will also serve a  one-year probation following reinstatement, subject to conditions specified in  the Order.

(Mike Frisch)

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