Monday, June 11, 2018

Pork Chop Hill

An attorney convicted of criminal solicitation relating to gambling devices was suspended for one year by the Pennsylvania Supreme Court.

TribLive reported on the story

The liquor-law attorney who worked with former State Rep. Marc Gergely to convince business owners to participate in an illegal gambling-machine ring has had his law license suspended by the state, the Pennsylvania Supreme Court announced Friday.

Louis F. Caputo's license was temporarily suspended following his conviction on one count of criminal solicitation related to gambling devices. Caputo and Gergely both pleaded guilty in August .

Because of the criminal conviction, the Disciplinary Board of the Supreme Court of Pennsylvania placed Caputo's license on temporary suspension pending a hearing and final decision from the disciplinary board. He can't take any new clients, but will have up to 30 days to wrap up or pass off any cases he was currently working on. Getting the court to reinstate his license could take years of proving his worthiness to be readmitted to practice.

Caputo referred questions to his attorney Craig Simpson, who said the temporary suspension was typical of such cases.

“We're not going to challenge the interim suspension; we'll let the process play out,” Simpson said.

In wiretapped phone calls Ronald “Porky” Melocchi had described Gergely and Caputo as his “Super PAC,” helping him identify opponents and persuade potential customers to buy illegal video-gambling machines from Melocchi's Glassport business. According to the grand jury presentment against Gergely, Caputo, 40, of Peters allegedly used connections and sources within the Bureau of Liquor Control Enforcement to identify someone who'd been reporting one of Melocchi's customers' machines, then he and Gergely took that information to the business owner to convince her to buy back in.

Melocchi's business was raided in “Operation Pork Chop” in 2013 and he pleaded guilty in 2014. He is serving 10 years on probation. Caputo was sentenced to five years of probation; Gergely resigned Nov. 6 and is awaiting sentencing on one count of conspiracy to operate illegal gambling devices and accepting illegal campaign contributions, both misdemeanors.

The suspension was imposed nunc pro tunc to December 2017. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Side Switching, Other Misconduct, Draws Suspension

The Pennsylvania Supreme Court has imposed a suspension of one year based on an attorney's consent to discipline.

One count involved the attorney's representation of a complainant who had alleged that she was the victim of a sexual assault at Swarthmore College. The attorney reached out to her and another student activist.

The complainant responded "I hire you!" and they engaged in extensive communications on Facebook, through 41 emails and other contacts. He assured her that their communications were confidential. .

The attorney assisted her and a number of other Swarthmore students in drafting a class complaint filed with the Department of Education Office of Civil Rights.

ThinkProgress reported on the OCR complaint. Inside Higher Education noted Swarthmore's response. 

One of the other students bringing the class complaint was Jane Doe (complainant #7) who alleged that Juan Doe had sexually assaulted her on September 10, 2011.

The complainant terminated the attorney by email in June 2013.

In 2015, he filed a civil action on behalf of Juan Doe in a federal district court against Swarthmore. He used extensive  information provided in confidence by the complainant in a section of the lawsuit captioned

The Angry Feminist Cabal Within Swarthmore's OCR And Cleary Complaint Against Juan

The complaint alleged that Jane Doe's accusations were false and made a number of statements harshly critical of the complainant (called student activist #1 in the complaint).

The federal court ordered disqualification as the matter was the same or substantially related to his prior representation of complainant and Jane Doe. 

He made misrepresentation to the Office of Disciplinary Counsel in response to the complaint by stating that the judge had found no conflict.

He also admitted misconduct in unrelated matters involving his representation of his mother.

Editor's note: I mistakenly added a day to the suspension. In Pennsylvania, an attorney suspended for more than a year must petition for reinstatement. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Very Very

An uncivil Canadian? 

Prince Albert Now has this report on recent discipline imposed by the Saskatchewan Law Society.

Interactions with a Crown prosecutor have landed a Prince Albert defence lawyer a hefty fine.

The Law Society launched an investigation into Dale Norman Blenner-Hassett on Feb. 16, 2015 following a letter alleging “a variety of misconduct,” filed by a Crown prosecutor referred to as “S.V” according to a decision published on May 30, 2018. The defence lawyer is facing a $2,500 fine, and paid $1,050 in legal fees after being found guilty of conduct unbecoming of a lawyer.

“It is an understatement to say the two did not have a positive working relationship,” the decision read.

A letter dated Oct. 27, 2014 sent to S.V. regarding a particular criminal client included a number of misstatements, accusations and innuendo according to the statement of facts. Blenner-Hassett’s letter alleged S.V. was aware of and even condoned police mistreatment of one of his clients.

In a letter sent Oct. 29, 2014 S.V. recommended Blenner-Hassett forward his concerns to the police commission. In response, on Nov. 4, 2014 the defence lawyer said her response was “woefully inadequate,” and alleged police officers reported directly to the Crown prosecutor.

“The Member stated that ‘these officers are under your supervision and management during this period certainly, they and you must be held accountable,’” the statement of facts read. “The member stated that S.V.’s conduct may be examined ‘using other avenues.’”

Blenner-Hassett acknowledged his comments in the letters dated Oct. 27, Nov. 4 and Nov. 17 of 2014 “exhibit an intemperate tone and go beyond zealous advocacy.”

The defence lawyer admitted the comments he made were unnecessary and inappropriate personal attacks on a fellow law society member according to the decision.

Further, on March 23, 2015, Blenner-Hassett left a voicemail message on the answering machine of a prospective employer of S.V., referred to as “W.S.” in the decision.

“In the voicemail the Member spoke negatively about [the Crown prosecutor], saying S.V. is ‘very unethical, very adversarial, very sharp, very dishonest… very mean, very nasty… outright lying in certain cases,’” the decision read, and added Blenner-Hassett said a “serious complaint” was filed against S.V.

The alleged serious complaint against the Crown prosecutor was investigated and warranted no further action by the law society.

“These comments were not made within confines of a heated litigation matter,” the decision read regarding the voicemail. “Rather, they were a calculated attempt to damage the reputation of S.V. and impact her employability.”

While Blenner-Hassett accepted responsibility for the voicemail, and expressed remorse, the law society’s decision noted he tried to “obfuscate and deflect blame.”

The decision handed down on May 30, 2018 stated this wasn’t Blenner-Hassett’s first time in hot water.

In May of 2009, the defence lawyer was involved in an informal conduct review, regarding more inappropriate and abusive correspondence to an unrepresented litigant, identified as L.B.

Almost five years later, in February of 2014, Blenner-Hassett was involved in a formal disciplinary hearing regarding other communications with another lawyer, who was representing the litigant who was part of the informal conduct review in 2009. The defence lawyer agreed to forgo civil defamation proceedings in exchange for the withdrawal of a complaint to the law society.

(Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Second Censure For Wyoming Attorney

The Wyoming Supreme Court has rejected a proposed censure by its Board of Professional Responsibility in favor of a 30-day suspension

Mr. Hiatt has been licensed to practice law in Wyoming since 1998, and he maintains a law practice in Rock Springs, Wyoming. This matter arises from his representation of Kyle Dudzik, who contacted Mr. Hiatt in early February 2016 regarding his desire to obtain custody of his son. On March 2, 2016, Mr. Hiatt entered an attorneyclient relationship with Mr. Dudzik. They executed an Attorney-Client Fee Agreement under which Mr. Hiatt agreed to perform the work for a $3,000.00 “non-refundable flat fee.” The agreement provided that Mr. Dudzik would “pay $250.00 per week by Friday of each week, until the $3000.00 BALANCE IS PAID IN FULL.” Mr. Dudzik fell behind in his payments and ultimately paid the balance due after Mr. Hiatt threatened to withdraw from the case.

There were several violations including Rule 1.5

Mr. Hiatt agreed to represent Mr. Dudzik for a “non-refundable flat fee in the amount of $3000.00.” While the fee does not appear to be unreasonable on its face, we make our determination of whether the fee was reasonable by applying the factors above, and we conclude that it was not...

Mr. Hiatt charged Mr. Dudzik a “non-refundable flat fee in the amount of $3000.00.” Mr. Hiatt performed very little work to earn that fee. Despite the “nonrefundable” contract provision, Mr. Hiatt had a continuing duty to charge a reasonable fee and to earn that fee. Because his representation of Mr. Dudzik was terminated before the matter was resolved, and because very little progress had been made in the matter when representation was terminated, we conclude that the full fee of $3,000 fee was unreasonable. However, we agree with the BPR that he did earn a portion of that fee. Based upon Mr. Hiatt’s testimony regarding the time he spent on the case and the work  that was actually done, we agree with the BPR that $1,850, or approximately two-thirds of the flat fee, would have been reasonable for the work performed.

A 2016 censure influenced the result

Despite receiving a public censure for nearly identical conduct in the past, Mr. Hiatt failed to adequately communicate with his client and keep him apprised of the status of his case; he failed to perform the work for which he was hired, which caused a delay that likely harmed his client; and, finally, once representation was terminated, he failed to return the unearned portion of his fee.

(Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Lot Of Money For A Country Lawyer: A "Professional Criminal"

An attorney who pleaded guilty to theft had his attacks on his sentence rejected by the Tennessee Supreme Court

At all times described herein, [the Defendant] was an attorney licensed to practice law in the State of Tennessee, that he was acting in that capacity when he received money from and/or on behalf of his clients who are the victims identified in [C]ounts 1 through 6 of the [i]ndictment.

[The Defendant] admitted his unlawful conduct before the Board of Professional Responsibility, and he has been disbarred as of October 3, 2016, by Order of the Tennessee Supreme Court...

The State did not file notice of any enhancement factors prior to the June 27, 2017 sentencing hearing. However, at the sentencing hearing, several victims provided impact statements. The State read into the record a letter from Kelly Ray, a representative of the Estate of Lois Faile. Ms. Ray stated she was humiliated and embarrassed and that the Defendant “preyed on the weak.” She stated, “Unfortunately, I cannot change the past, but the [c]ourt can rectify the past by issuing a sentence that involves prison time.”

Here

Here, although the Defendant has a consistent record of employment, the trial court found that the Defendant’s six thefts between 2009 and 2015 totaled nearly  $500,000, which “is a lot of money for a country lawyer and amounts to a ‘major source of livelihood’ for at least six years.” During his allocution, the Defendant stated that he “took funds [he] shouldn’t have” because his “family began to have financial problems.” This admission supports the trial court’s finding that the Defendant used the stolen funds as a “major source of livelihood” and was therefore a “professional criminal.”

...the evidence does not preponderate against the trial court’s finding that the Defendant had an extensive record of criminal activity because he committed numerous acts of theft over several years. Therefore, the imposition of consecutive sentences was proper.

Conclusion

the trial court acted within its discretion in applying the sentencing factors, imposing consecutive sentences, and denying alternative sentencing. The trial court imposed an in-range sentence for a standard offender. The record shows that the trial court stated its reasons for imposing mid-range sentences, followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due considerations to the relevant sentencing principles. The trial court sentenced the Defendant to an effective fourteen-year sentence for his six convictions for theft, a sentence consistent with the purposes and principles of sentencing and within the appropriate range. Based on our review, we conclude that the trial court did not abuse its discretion in ordering mid-range sentences within the applicable range, nor did it “wholly depart” from the purposes and principles of sentencing. Therefore, the judgments of the trial court are affirmed.

The Knoxville News Sentinel reported that he was a city court judge.

He was disbarred in a series of court orders.  Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Relativity

Ohio Disciplinary Counsel has filed charges of misconduct against an attorney in a large number of client matters.

The charged attorney has other issues.

The Journal News reported last August

An area attorney will appear in court today as a defendant being arraigned on a felony charge.

William Matthew Tinch, 35, is slated to have a video arraignment on a charge of burglary at 3 p.m. today in Franklin Municipal Court.

MORE: Attorney arrested for allegedly breaking into relative’s home

Tinch was arrested Friday and has been held in the Warren County Jail under a $100,000 cash-only bond. The charge is a second-degree felony.

Franklin police said Tinch allegedly broke into a relative’s Franklin home early Friday morning and accessed a computer leading to his arrest for burglary.

According to police, Linda Crawford, Tinch’s mother-in-law, called police Friday afternoon and reported the basement door of her Oxford Drive residence had been forced open overnight.

“Subsequent investigation found that the victim’s son-in-law, William M. Tinch, entered the residence without permission on today’s date at 3:53 a.m. While inside the house, Tinch accessed the victim’s personal computer and typed a message to the victim,” according to the police report.

Tinch is an attorney for Tinch Law, 301 N. Breiel Blvd. in Middletown, according to the Supreme Court of Ohio and Ohio Judicial System. The website shows no discipline or sanction history for Tinch.

He entered a treatment program shortly after the arrest.

The victim’s family consented for Tinch to enter the treatment program, according to [Judge] Ruppert.

Ruppert said the city prosecutor and Tinch’s lawyer will discuss whether to pursue the felony charge or have it reduced to a misdemeanor after he completes the program and how well he does in the program and how the family feels at that time.

Tinch was released on a $100,000 bond following his video arraignment last week. As a condition of his release, Tinch was ordered to stay 50 yards from his relative’s home on the southwest corner of Miami Avenue and Park Avenue.

He is  suspended on an interim basis. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

According To Hoyle

An answer has been filed to a two-count complaint filed by the North Carolina State Bar.

Count One alleges that the attorney had filed a Designation of Secured Leave for a time period that covered an October 11, 2013 trial date in a criminal matter.

The notice provides

I hereby certify that the secure leave period designated below is not being designated for the purpose of delaying, hindering or interfering with the timely disposition of any matter in any pending action or proceeding.

I further certify that no action or proceeding in which I have entered an appearance has been scheduled, peremptorily set or noticed for trial, hearing, deposition or other proceeding during the designated secure leave period.

He had a trial scheduled in the designated leave period.

He moved for a continuance on October 11 and the State Bar alleged that the designation was false.

Count Two alleges that he acted without authority of a purported client who had been subject to a bail forfeiture after the bail company referred the matter to him.

Bail companies are prohibited by statute from such referrals.

His answer is interesting.

His reason for the designation and continuance was an inadvertent error made without intent to deceive

every year since 1982, [defendant] and a group of friends have taken a Thursday-Sunday golf trip to Myrtle Beach on, usually, the second or third weekend of October...the existence and timing of this annual event are well known to attorneys in the District Attorney's Office, even to the extent that individual ADAs have on occasion reminded him of it when they calendar cases with him.

He alleges that the continuance motion was "so commonplace" that his secretary created it and affixed his rubber stamp signature. He would have stated "annual golf trip" if he had created it himself. 

As to Count Two, he states that he spoke with a client representative that he believed was authorized to speak for the client and did not know the referral was improper. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 10, 2018

Sanction Increased For Partner Misappropriation

The Tennessee Supreme Court raised the sanction a bar discipline matter

The appellee, Charles Edward Daniel, a Knoxville lawyer, received his license to practice law in 1991 following his fifteen-year career in law enforcement positions, including a position with the Internal Revenue Service criminal division. From 1991 to mid-2002, Mr. Daniel worked as a solo practitioner, handling mostly workers’ compensation and personal injury cases. In mid-2002 Mr. Daniel and attorney Mike Pemberton formed the law partnership of Daniel Pemberton (the “Partnership”). Mr. Pemberton came to this partnership from another Knoxville law firm where he had served for a time as managing partner. Mr. Daniel and Mr. Pemberton never had a written partnership agreement, and they did not observe formalities in managing the Partnership, including not formalizing any written agreement about how compensation would be handled for cases brought into the Partnership at its inception or how expense advances by any partner would be reimbursed.

Not a good situation when the partnership ends

The Partnership broke up in late 2009 or early 2010. After Mr. Daniel left, another partner, Dana Scott Pemberton, the wife of Mr. Pemberton, took over his financial oversight responsibilities, and QuickBooks had been installed on her computer by January 2010. Mrs. Pemberton soon discovered that from 2006 to 2009, Mr. Daniel had, on several occasions, deposited client settlement checks into the Partnership’s trust account and then written three checks on that account—one payable to the client and two payable to the Partnership. He would then deposit one of the checks payable to the Partnership into the Partnership’s operating account and deposit the second check payable to the Partnership into his own personal account.

As a result

In May 2010, the Pembertons reported these suspicious transactions to the Board of Professional Responsibility. The Board first contacted Mr. Daniel about the allegations on June 22, 2010. Meanwhile, civil litigation was initiated to dissolve the Partnership and divide its assets. The parties reached a confidential settlement of the civil litigation in July 2011.

After charges were filed in May 2014

The Board alleged that he had “willfully and knowingly engaged in a course of conduct whereby he embezzled money from the [P]artnership, misappropriated [P]artnership funds and falsified records in order to conceal his illicit activities.” The Board asserted that Mr. Daniel’s conduct violated subsections (b) and (c) of RPC 8.4

He claimed entitlement to reimbursements

Before the Hearing Panel, Mr. Daniel testified that, for a significant time after the Partnership’s formation, he had advanced funds as needed to cover all of the Partnership’s operating expenses, including compensation for the attorneys and support staff. Mr. Daniel testified that he had kept a handwritten ledger on a yellow legal pad of the amounts he had advanced the Partnership and the amounts he had reimbursed himself for these advances. By the time of the hearing Mr. Daniel had lost this legal pad, however, so it was not submitted into evidence before the Hearing Panel.

Key findings

The Panel finds that Respondent did not make the other partners of the Partnership aware of what he was doing. The Panel finds that the manner in which Respondent repaid himself money to which he thought he was owed was conducted in a way to conceal his actions from his other partners. The Panel finds that Respondent wrongfully took money from the Partnership.

...the Hearing Panel stated that “although the Panel finds that [Mr. Daniel] intended to permanently deprive his partners of the funds that he misappropriated from the Partnership, he did so based upon his sincere belief that these funds were owed to him from the Partnership.” The Hearing Panel then sanctioned Mr. Daniel to a three year suspension but ordered the entire suspension served on probation.

The Board appealed

the Chancery Court concluded that, even construing the Hearing Panel’s judgment as including findings “that equate to criminal intent,” given the multiple mitigating factors, the Hearing Panel did not abuse its discretion by imposing a sanction of suspension with complete probation rather than disbarment.

The court disagreed

In summary, the Hearing Panel failed to find an applicable aggravating factor, the vulnerability of Mr. Daniel’s law partner victims, and the sanction imposed by the Hearing Panel, probating the entire three-year suspension, is out of line with the sanctions in comparable cases. Other than noting that the parties’ civil litigation settlement removed the need for restitution as a probation condition, the Hearing Panel also gave no explanation for why it decided to probate Mr. Daniel’s entire period of suspension. Nor did the Hearing Panel impose any conditions, probation monitoring, or supervision of Mr. Daniel during the probationary period. See Tenn. Sup. Ct. R. 9, § 8.5 (currently Tenn. Sup. Ct. R. 9, § 14) (“Probation shall be used only in cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and where the conditions of probation can be adequately supervised.”). For all the foregoing reasons, we conclude that the Hearing Panel acted arbitrarily and capriciously by probating the entirety of Mr. Daniel’s suspension.

Thus, to attain an appropriate sanction, comparable to sanctions imposed in other similar cases and reflecting the aggravating and mitigating factors, we modify Mr. Daniel’s three-year suspension to include one year of active suspension followed by probation for the remainder of the suspension.

Knox News reported on the decision.

Daniel left the firm in 2010 after eight years of partnership to open a solo practice, and his former partners discovered the missing money soon afterward. Daniel said the partnership soured over division of a cash settlement he won for the family of Jennifer Hampton, a 21-year-old former homecoming queen from Waterloo, Ala., raped and killed in 2008 by an undocumented immigrant at a West Knoxville motel where the immigrant worked.

(Mike Frisch)

June 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

After The Flood

An 18 month suspension has been ordered by the Virgin Islands Supreme Court for an attorney's mishandling of an estate

In this case, Maynard violated his duty of competence on each of these grounds. Maynard testified that he did not maintain a separate trust account for the Bender estate, failed to file quarterly accounts with the Superior Court on behalf of the Bender estate as required by the Virgin Islands Code, and failed to distribute the estate’s assets to its beneficiaries. Moreover, the record reveals multiple lengthy delays, from 1996 to 2000, then from 2000 to 2006, and then again from 2006 until 2010, and Maynard testified that the estate still remains open. Maynard’s defense that his associates handled the Bender estate is unavailing because Maynard possessed a duty to supervise those associates, and is therefore accountable for their shortcomings. See V.I. S. CT. R.211.5.1. Accordingly, we agree with the panel’s conclusion that clear and convincing evidence demonstrates that Maynard violated Supreme Court Rule 211.1.1 in his handling of the Bender estate.

The court rejected findings of fee misconduct but sustained findings he had failed to safekeep property

The Board concluded that Maynard violated Rule 211.1.15 because Bender’s safety deposit box was never located and is presumed lost, because one of the three savings accounts is missing and the other two were never distributed to the estate’s beneficiaries, because the life insurance policies were never distributed to the estate’s beneficiaries, and because no records were kept with respect to disbursements of the proceeds from the Hurricane Hugo insurance litigation. Maynard claims he did not violate Rule 211.1.15 because he, “personally, has never received any assets belonging to the Estate that he did not promptly inform the probate court of or distribute to the clients.” Maynard further argues that the original stock certificates used to prepare the final accounting were destroyed when the bottom floor of Maynard’s office flooded...

Here, Maynard’s behavior evidences repeated violations of his duty under Rule 211.1.15. Contrary to the guidelines provided by the Rules, Maynard testified that he kept original stock certificates belonging to the estate in the downstairs portion of his office, and that as a result, flooding from Hurricane Marilyn destroyed those certificates. Additionally, Maynard failed to account for, and ultimately, to distribute either the proceeds from the VA life insurance policy, or the contents of the safety deposit box. Further, Maynard testified that he incrementally distributed all of the proceeds from the Hurricane Hugo insurance litigation to Thomas Sheridan, thereby evidencing that Prince did not receive a single dollar of those settlement proceeds, despite the Superior Court’s February 12, 1993 order that the precedes be distributed “to the personal representatives” of the Bender estate jointly.

Sanction

Considering the important nature of the duties violated, Maynard’s clear negligence in discharging those duties, and the substantial financial injuries suffered by the beneficiaries as a result of those violations, we agree with the Board that suspension represents the appropriate sanction in this case, rather than reprimand as Maynard contends.we conclude that Maynard should be suspended from the practice of law for a total period of eighteen months. Indeed, this case presents a picture of a highly experienced, reputable attorney who nevertheless engaged in a pattern of egregious neglect that ultimately resulted in losses to his client—not just of cash, but of personal property that should have passed from Bender to the beneficiaries of her estate. However, in light of our existing precedent, we conclude that suspension for a period of six, as opposed to twelve months is the appropriate baseline sanction...

 Maynard violated his duties under Supreme Court Rules 211.1.1, 211.1.3, 211.1.4, 211.1.15, and 211.8.1 by, among other things, permitting the probate of an estate to languish for over a decade, failing to communicate with Prince with respect to the liquidation of certain securities, and by failing to keep safe certain property of that estate. Maynard’s lethargic attitude toward the administration of the Bender estate not only significantly delayed the beneficiaries’ receipt of certain assets, it wholly precluded them from receiving other assets, which were lost due to the passage of time and Maynard’s generally negligent handling of the Bender estate. Accordingly, we order Maynard to pay restitution to the beneficiaries of the Bender estate in the amount of $29,269.85, representing the value of the assets lost due to his negligence, and we suspend Maynard from the practice of law in this jurisdiction for a period of eighteen months.

(Mike Frisch)

June 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Rule 4.3 Violation In Dealings With Opposing Party

The Maine Supreme Judicial Court imposed a public reprimand of an attorney for conduct in the course of representing a client 

The violations of the Maine Rules of Professional Conduct that are alleged arose out of events that occurred before and during a hearing that occurred before a magistrate at the Skowhegan District Court on March 9, 2015. That proceeding related to a petition for determination of paternity and assessment of child support obligations filed against Shusta's client by the Maine Department of Health and Human Services, FM-2014-00126, and a separate petition for determination of parental rights and responsibilities filed by Shusta on behalf of his client, the father of the child, against the mother of the child, FM-2015-0003.

At all times relevant to the ethics complaint, the mother was not represented. The mother was appointed counsel after she filed a petition for termination of the father's parental rights following the District Court hearing.

At some time prior to the District Court hearing date, Shusta, acting on behalf of the father, contacted the mother to explore the possibility of negotiating an agreement in the parental rights matter. The outlines of the proposed agreement were that (i) the mother would have sole parental rights and responsibilities for the child, (ii) the father would have no contact with or responsibility for the child, (iii) the father would pay retroactive child support for the child in an amount determined in the proceeding initiated by the Department of Health and Human Services until the parental rights and responsibilities order and a concurrent order terminating the father's parental rights were entered, and (iv) the mother would initiate a termination of parental rights proceeding that would be agreed to by the father. The object of the termination of parental rights and responsibilities proceeding would be to end any of the father's obligations toward or responsibilities for the child.

Significantly the court squarely rejected a Rule 4.3 violation

In domestic relations matters, many parties are unrepresented. And in many cases, as in this case, one party is represented and the other party may not be represented. In such circumstances, experience indicates that the attorney for the represented party often speaks with the unrepresented party about the substance of the case with an eye towards resolution of the matter without a full trial. There is no ethical violation in such contact. Such contact is encouraged by court processes in domestic relations matters with the hope of avoiding trauma to children by promoting resolution of cases by agreement without contested hearings. When, as here, agreements are reached in preliminary proceedings, magistrates are authorized to "enter agreements on the record at the conference." M.R. Civ. P. 110A(b)(1).

Such discussions and negotiations occur in all types of cases, including cases where determination of child support may be an issue. Sometimes, there may even be a partial unity of interest between the represented party and the unrepresented party. The unrepresented party may be desirous of having sole parental rights to the child, with the represented party having no participation in the unrepresented party's life or the child's life. Or, as here, the unrepresented party with the child may have no personal interest in collecting child support benefits from the represented party because the child support benefits would actually be paid to the Department. In such circumstances, it is neither unusual nor unethical for the attorney of the represented party to draft documents for the parties to sign to memorialize and implement agreements the parties have reached with regard to parental rights and responsibilities and child support.

In the child support collection case, the Department certainly had an interest adverse to both the mother and the father, because it wanted to continue to collect child support payments from the father to offset the payments that the State was making to the mother to support the child. However, this adverse interest does not create the type of conflict of interest between the represented father and the unrepresented mother that would make the father's attorney's dealings with the mother an ethical violation. In this proceeding, Shusta has been sanctioned based on the Grievance Commission's finding that he had misrepresented to the court the Department's position regarding the proposed settlement of the case. However, Shusta's dealings with the Department do not implicate Rule 4.3.

Thus, in the circumstances, the father's attorney's communications with the mother, his development of documents to implement their settlement agreement, and his drafting of a private termination of parental rights petition for the mother to file with the father's agreement, did not constitute a violation of Rule 4.3 or any other rule of ethics.

Any opinion suggesting that contact and drafting agreements between an attorney representing a party in a domestic relations matter and an unrepresented party in the same matter is an ethical violation could seriously complicate the processing of domestic relations cases. Such contacts must occur with the hope that, as occurred here, a domestic relations case can be resolved by agreements negotiated between the parties without the delay, cost and trauma to the child that result from fully contested proceedings. It must be noted also, that, beyond the contacts between the father's attorney and the mother, extra protection was provided by the fact that the trial court made an independent inquiry of the mother and the father about their understanding of the settlement agreement, and its implications and only indicated the court's approval of the represented terms of the settlement agreement after the court made its own inquiry of the parties. The Court concludes as a matter of law that the Grievance Commission erred in determining that the contact between the father's attorney and the mother, including the drafting of documents, where the court then made inquiry of both parties regarding their understanding of the settlement agreement, amounted to an ethical violation. Accordingly, the Grievance Commission's conclusion that Rule 4.3 was violated is vacated.

The violations

Considering what is left, the determination that Rule 3.3(a)(l) (Candor Toward the Tribunal) had been violated, the Court determines that appropriate sanction, in the circumstances, is a public reprimand. The Court determines that a period of probation, as ordered by the Grievance Commission after finding violations of both Rule 3.3 and Rule 4.3, is not merited. Testimony from the magistrate at the Grievance Commission hearing indicated considerable experience with Attorney Shusta and no indication of any significant problem with misrepresentation of matters to tribunals. Accordingly, a term of probation could add considerable cost and difficulty to an attorney's practice and is not warranted when there is no demonstrated problem that would be significantly resolved with a period of probation.

(Mike Frisch)

June 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 9, 2018

More On Discovery In Bar Discipline

How should discovery work in bar discipline proceedings?

That question was raised in a case I prosecuted involving an attorney named David L. Herndon. 

A native of Springfield, Illinois, he claimed kinship to attorney William Herndon of the Lincoln & Herndon law firm. 

In Herndon, the court rejected an asserted violation of his discovery rights

 Our review of the record of the disciplinary proceedings illustrates that the Hearing Committee permitted Herndon "reasonable discovery" under any tenable definition of that term. At a pre-hearing conference, Herndon presented his request for production of documents from [former client/complainant] MCC. After reviewing the request, Bar Counsel asked the Hearing Committee to limit the scope of the request, stating that "it obviously [is] a request for every document that this corporation has engendered during its history." The Hearing Committee Chairman, after hearing arguments by the parties, granted the portion of Herndon's discovery request for the production of documents to or from him and all checks made payable to him, documents relating to any communications between MCC and him, and documents supporting the allegations made by MCC in a memorandum dated April 5, 1988 to MCC's attorney, Gins, including records showing bills received and payments made to the various vendors.

The Chairman, however, denied Herndon's request for documents relating to the hiring and firing of MCC's accountants, documents relating to hiring and firing of MCC's outside consultants, documents showing MCC's financial status and documents *597 used in the preparation thereof, and documents relating to MCC's suppliers and customers, finding that Herndon had failed to demonstrate a compelling need by failing to "tie those requests into specific allegations of the Complaint and your Answer to the Complaint."[6] Nevertheless, the Chairman held "that to the extent Bar Counsel looks at additional documents [of MCC], it would seem proper that you be provided with an opportunity to examine those documents as well."

The Chairman also made clear at the prehearing conference that additional discovery would be allowed if "further need for additional documents emerges that are clearly related to the issues that are framed." After the first day of the hearing, the Chairman again reminded Herndon of the committee's earlier position with respect to his discovery request:

If documents turn up to which you have not had an opportunity to respond or deal with and which appear to be material and pertinent to your defense, and if further proceedings are necessary, we're going to hold them. So that we're going to see to it, as I've said before, that to the extent I as the Chair and the Committee understands the case and to the extent the Committee appreciates the relevance and the materiality and compelling need for these documents, we will not close the record until you have had an opportunity to respond to them at some point.

Several days later at the next hearing date, Herndon made a motion for contempt for MCC's failure to comply with discovery. Bar Counsel asserted that there had been substantial compliance with the discovery requests, indicating that nineteen documents had been produced before the hearing, that three vendor files had been produced pursuant to the Chairman's ruling from the first day of the hearing, that the Washington Post vendor file had not been produced because Herndon never returned it to MCC after MCC had given it to him, and that a checkbook and checkstubs for the relevant time frame had been produced. Finding compliance with the discovery request, the Chairman denied Herndon's motion. Thereafter, Herndon announced his intention to leave the proceedings and did so after the Chairman informed him that the hearing would continue even if he chose to leave. Herndon's voluntary absence from the proceedings foreclosed the possibility that the Chairman would award additional discovery to Herndon pursuant to his earlier ruling.

The Hearing Committee Chairman did not deny Herndon reasonable discovery by partially denying his request for production of these documents. Herndon's request for documents was sweeping in nature, covering virtually every document in MCC's files. Cf. Premium Serv. Corp., supra, 511 F.2d at 229; In re Electric Weld Steel Tubing Antitrust Litigation, 512 F. Supp. 81, 84 (N.D.Ill.1981). In light of MCC's status as a non-party, the Chairman acted reasonably in determining that Herndon's need for the excluded documents did not "sufficiently outweigh the burden and invasion of corporate privacy" which would have resulted to MCC. See Premium Serv. Corp., supra, 511 F.2d at 229; Hecht, supra, 46 F.R.D. at 607. Thus, we are satisfied that the Hearing Committee complied with the discovery requirements of Rule XI, § 8(f).

Authored by Associate Judge James Belson, joined by Associate Judge John Steadman and Michael Farrell. What a privilege it was to appear before them. 

In Maryland, once charges are filed, the civil discovery rules apply. (Mike Frisch)

June 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Baptism Of Fire

A motion for discovery was dismissed by the Tribunal Hearing Division of the Upper Canada Law Society

The respondent had an on and off relationship with Complainant A, and she is the mother of his child. The Notice of Application alleges that he attempted to intimidate her in the Law Society’s investigation of her complaint against him by threatening to file a professional discipline complaint against her with the College of Nurses if she did not withdraw her complaint against him to the Law Society. The Law Society also alleges that Mr. Fuhgeh engaged in a pattern of vexatious and harassing conduct towards the complainant in the course of their family law dispute to influence that litigation. Two aspects of his alleged harassment are: (a) filing an unfounded professional discipline complaint against Complainant A with the College of Nurses alleging that she had certain health issues; and (b) writing a letter to an Ottawa church about their son alleging that Complainant A was malicious and dishonest in actions relating to the son’s baptism.

Mr. Fuhgeh seeks: detailed medical records from Complainant A; communications between Complainant A and her family and the church; and information about whether their son was baptized, which was a subject of his letter to the church.

Mr. Fuhgeh argues that the medical information would help show that the complaint he made about Complainant A to the College of Nurses was true and well-founded, and that the information about the baptism and communications with the church would show that his comments in the letter were true. He says that the issues in this part of the case are fundamentally about credibility and reliability and that the documents he seeks would assist him in proving that what he says is true, and that what Complainant A says is false.

What is at issue in this professional discipline case before the Law Society Tribunal, however, is whether Mr. Fuhgeh’s actions were conduct unbecoming in light of what he knew at the time. Whether he can now show that what he alleged was in fact true is not likely relevant to whether his actions were harassment and/or an improper attempt to influence the court process. The key issue is the reasonableness of what Mr. Fuhgeh did and his own state of mind, not what his former partner did. The complainant’s credibility will be tested at the hearing through cross-examination, if she is called, on the key issues that are before the Tribunal. What are alleged to be credibility issues here are collateral issues and we find Mr. Fuhgeh has not shown that the documents sought from her are likely relevant.

We note that Mr. Fuhgeh will receive a witness statement from the Law Society setting out her anticipated evidence before the Tribunal if it decides to call Complainant A as a witness.

Accordingly, the motion for production from Complainant A is dismissed.

(Mike Frisch)

June 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 8, 2018

Practice Pointer: Avoid Telling Client To "Go F**k Yourself"

A paralegal engaged in misconduct and was suspended for four months by the Tribunal Hearing Division of the Upper Canada Law Society.

The Paralegal, Pasquale Perrelli Jr., admitted that he committed various acts of professional misconduct: sending a client an offensive text message; failing to attend court dates and to keep a client’s appointment without explanation; not depositing client monies into trust; and not promptly and completely responding to the Law Society in two investigations. This is Mr. Perrelli’s second time being disciplined: in 2011, he was suspended for not responding to the Law Society...

 Mr. Perrelli has been a licensed paralegal since the Law Society first began to regulate paralegals in 2008. His misconduct has a common theme: he has not acted with the professionalism and respect for duties owed to his regulator that are required of a regulated professional.

The first set of allegations relates to Mr. Perrelli’s assistance to an ongoing client, AB, in getting representation for the client’s cousin, CD, on an immigration matter. Mr. Perrelli contacted an acquaintance, David Caporiccio (who it later turned out was neither a licensed paralegal nor a licensed immigration consultant), to represent CD. Mr. Perrelli was present at meetings between Mr. Caporiccio and the clients and was involved in arranging payment of a $2,500 retainer to Mr. Caporiccio.

When Mr. Caporiccio did no work on the matter, AB wanted the money back and communicated with Mr. Perrelli by text about it. Mr. Perrelli sent CD $500, but the clients understandably also wanted the remaining $2,000. Mr. Perrelli told his client he should get the money from Mr. Caporiccio. In the course of this text discussion, Mr. Perrelli wrote to AB: “Go Fuck yourself.”

Costs

The most significant question is whether Mr. Perrelli’s financial circumstances warrant a reduction and if so, how much. An annual income of about $40,000 is modest for the lawyer and paralegal professions, although not as low as some licensees who come before the Tribunal. Mr. Perrelli has three children whom he supports. He is financially strapped right now. On the other hand, he has had a considerable amount of money to invest in an overseas venture that he expects to pay off within the next two years. In my view, while that should result in more time to pay, the licensees of the Law Society should not bear the cost of his investment choices. In these circumstances, taking into account his annual income, I am prepared to make a modest reduction from the starting point of $7,500 and award $6,000 in costs, payable within two years.

(Mike Frisch)

June 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

One Hour Short: A Truly Exceptional Circumstance

In a bar case it called "unusual," the Kansas Supreme Court remanded a matter for an informal admonition

 This case arose out of Respondent's failure to act promptly on and communicate adequately about client A.B.'s request for a recalculation of jail time credit. Although it appears that Respondent and the prosecution ultimately agreed that no relief was due the client, Respondent entered into a July 22, 2014, diversion agreement with the office of the Disciplinary Administrator. Under the agreement, Respondent stipulated to his violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (2018 Kan. S. Ct. R. 292) (diligence) and 1.4 (2018 Kan. S. Ct. R. 293) (communication) on A.B.'s case. The agreement provided that Respondent would avoid sanction for those violations if he met certain requirements, one of which was completion of 16 hours of continuing legal education, including 6 hours on ethics, within one year. Respondent completed only 15 hours, and the diversion agreement was terminated.

Once the diversion was terminated, on June 13, 2016, the office of the Disciplinary Administrator filed a formal complaint against Respondent. The original hearing date was set for September 20, 2016. The office of the Disciplinary Administrator filed an amended formal complaint on August 22, 2016. By this time, Respondent had learned he was suffering from what was believed to be a terminal illness. With survival as his priority, he did not file an answer to either complaint. At the September 20 hearing, on learning of Respondent's illness, the office of the Disciplinary Administrator requested a stay of the proceedings so that Respondent could communicate with the Kansas Lawyers Assistance Program (KALAP) and obtain an evaluation of whether placement back on diversion would be appropriate. The hearing panel filed an order granting the stay and directing the parties to provide a status report on or before January 1, 2017.

...Anne McDonald of KALAP informed the office of the Disciplinary Administrator by letter that Respondent had been in contact with her office several times during the previous 17 months, that he appeared to be recovering physically, that he had received good support from family and friends, and that he had been able to return to law practice full-time. She concluded: "I have not at this time asked him to get an evaluation or to work with KALAP in a more formal setting. If the panel sees fit to reinstate his Diversion and wishes to include a formal contract with KALAP  as one of the conditions, I am certainly happy and willing to do that." Ms. McDonald also stated that she had written the letter at Respondent's request.

The office of the Disciplinary Administrator emailed a copy of Ms. McDonald's letter to Respondent and to members of the hearing panel. In the email, the DeputynDisciplinary Administrator stated: "I accept this as the answer to the Panel's request for a status report."

Having received no notice of the hearing setting, the Respondent did not appear on May 8. He moved to reopen the record; the office of the Disciplinary Administrator did not object; and the hearing panel granted the motion. A third hearing on the amended formal complaint was set for August 29, 2017.

At the August hearing, the panel reviewed the evidence, including live testimony from Respondent. It concluded that not only had he violated KRPC 1.3 and 1.4, as stipulated in the diversion agreement, but also that his conduct in failing to complete the diversion CLE requirement and the diversion's termination constituted a violation of KRPC 8.1(b) (2018 Kan. S. Ct. R. 379) (failure to respond to lawful demand for information from disciplinary authority) and that he violated Kansas Supreme Court Rule 211(b) (2018 Kan. S. Ct. R. 251) (failure to file answer in disciplinary proceeding). The panel determined that Respondent's violations were negligent and that his ill health "[c]learly" contributed to them.

Result

 The only remaining issue before us is the appropriate discipline for Respondent's violations. We agree with the panel that the mitigation in this case is significant. Respondent missed successful completion of his diversion requirements by one 50-minute hour of CLE. It is understandable that such a deficit might arise during his treatment for what had been diagnosed as Stage 4 cancer. Rules are important, of course, and they must be enforced. But, occasionally, they must bend for truly exceptional circumstances. Indeed, at the point that Respondent appeared for his first hearing, the Deputy Disciplinary Administrator recognized this might be such a case. Had everything gone smoothly from that point on, she was prepared to recommend that Respondent be returned to diversion. Instead, after procedural and communication irregularities for which the office of Disciplinary Administrator must bear at least partial responsibility, she sought suspension at the time of the third panel hearing. She now joins in the panel's recommendation of the less severe published censure.

Given all of the circumstances before us, we regard even published censure as a disciplinary step beyond the one necessary. Rather than imposing any discipline as a court, we remand this case to the office of the Disciplinary Administrator for imposition of an informal admonition under Kansas Supreme Court Rule 203(a)(4) (2018 Kan. S. Ct. R. 234). In addition, the costs of this proceeding will be borne by that office.

Video of oral argument linked here. (Mike Frisch)

June 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Vermont Follows New Hampshire

Reciprocal disbarment has been imposed by the Vermont Supreme Court based on sanctions ordered in New Hampshire

 Respondent stipulated to the underlying facts in the New Hampshire matter and to his complicity therein. We summarize the New Hampshire Supreme Court’s findings here. In 2001, respondent and another lawyer persuaded a couple to hire them to pursue additional litigation in a home-construction case although the matter had already been the subject of an arbitration award. Respondent filed two actions. The first action challenged the arbitration award, and it was dismissed as untimely filed. Respondent filed the second action against various alleged subcontractors. The subcontractors moved to dismiss on res judicata and statute-of-limitations grounds and they sought attorney’s fees. Respondent essentially ignored these motions; he filed no responses and did not inform the clients that they had been filed. This pattern continued even after some of the motions were granted. Respondent did not attend a status conference in the case. He later informed the clients that the construction case might not be successful. He lied about having discussed certain issues with the clients and neglected to tell them that the case had already been effectively dismissed and that the court was preparing to award attorney’s fees. The court awarded approximately $16,000 in attorney’s fees. Respondent and his co-counsel then discussed how to pay the fee awards without informing their clients so as to avoid a malpractice claim.

Eventually, respondent and his co-counsel informed the clients about the attorney’s fee award but did not disclose the amount.

 He had admitted the violations

 The rules that respondent admitted to violating are substantially similar to the Vermont rules. To the extent that respondent argues that his personal struggles support the imposition of different discipline in this state, the New Hampshire Supreme Court considered these issues in reaching its decision and nonetheless concluded that disbarment was appropriate. It would be unfair for this Court to consider any evidence that post-dates the New Hampshire decision because this would effectively reward respondent for failing to report his New Hampshire disbarment to this Court. See id. ¶ 3 (stating that "[i]n considering reciprocal discipline," Court is "limited to the ‘face of the record from which the discipline is predicated’ " and does "not consider any explanations or evidence" not found in out-of-state record (quoting A.O. 9, Rule 20(D)). Even if we were to consider later events, however, we would not conclude that the grounds set forth in Rule 20(D) are satisfied.

Because the grounds set forth in Rule 20(D) are not satisfied, the New Hampshire Supreme Court’s decision "establish[es] conclusively the misconduct for purposes of a disciplinary proceeding in this jurisdiction" and the imposition of identical discipline is warranted.

(Mike Frisch)

June 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 7, 2018

False Match.com Profile Of Opposing Counsel Draws Proposed Suspension

An Illinois Hearing Committee proposes a six-month suspension and until further order of an attorney who created a false profile onMatch.com of an opposing counsel

The Administrator filed a seven-count Complaint against the Respondent on August 4, 2017. Count I alleges that Respondent created an account and a false profile on the website of Match.com in the name of "Jane Doe" knowing that she had not authorized him to do so. (At the hearing in this matter "Jane Doe" was identified as attorney Michelle Mosby-Scott). Count I also charges that Respondent denied that he created the false profile in Doe's name when he was initially asked about it by a partner at his law firm. Count II alleges that Respondent knowingly completed a false online registration to the Obesity Action Coalition in the name of Jane Doe while knowing she had not authorized him to do so. Count III alleges that Respondent knowingly completed an online registration to Pig International in the name of Jane Doe while knowing she had not authorized him to do so. Count IV alleges that Respondent knowingly completed an online registration to Diabetic Living in the name of Jane Doe while knowing she had not authorized him to do so. Count V alleges that Respondent intentionally completed a false online registration in the name of Jane Doe for the organization entitled Auto Trader so that Doe would be a subscriber of and receive materials from that organization. Count VI alleges that Respondent knowingly created false reviews of Jane Doe's professional ability and posted the false reviews on Martindale.com and Lawyers.com. Count VII alleges that Respondent knowingly created false Facebook account in the fictitious name of John Kollengrade, created a false review of Jane Doe's professional ability in the name of Kollengrade, and posted the false review on the Facebook page of Doe's law firm.

The Respondent filed an Answer in which he admitted all of the factual allegations and the charges of misconduct.

His story

Respondent testified that his practice at the Thomson & Weintraub law firm involved mostly divorce work, and in the last couple of years divorce cases were about 90 percent of his practice. Many of his divorce cases were contested matters, and he found such work to be very stressful. (Tr. 190-93). In his family law practice in McLean County he had a lot of cases against Michelle Mosby-Scott. He said he dealt with her on a weekly basis, and sometimes a daily basis during trials of contested cases. Respondent said he and Mosby-Scott were always civil to each other. There was no "bickering, or name calling, or nasty letters that went back and forth or anything like that." (Tr. 195-96).

Over time, however, Respondent became frustrated with having cases against Mosby-Scott. He explained that he thought their objectives as to how to practice law and how to get people through divorce cases were far apart. He said he tried "to get people through the process as efficiently and quickly and painlessly as possible." On the other hand, he thought that "one of [Mosby-Scott's] goals was always to maximize the benefit to her client in any case." In other words, Respondent had a conflict in his attitude about how he practiced law and how he perceived Mosby-Scott practiced law. Respondent said he never confronted Mosby-Scott regarding the frustrations he had towards her with these cases. (Tr. 196-97).

Respondent acknowledged that he should have talked to someone about his frustrations, such as another partner, someone at church, his wife, or his parents. But he did not do so and internalized a lot of that frustration. (Tr. 198).

Respondent testified that he put a false profile of Mosby-Scott on Match.com without her knowledge. To do so, he used a fake email address. He put on the site a photo of Mosby-Scott and false information about her. Respondent said he knew at the time that the misstatements about her marriage and children were going to hurt her and have an impact on her, but he did not anticipate how effective it was going to be. He said he was frustrated and angry with her, was trying to be mean, and trying to make fun of her. He added that he was coming up with basically the meanest things. (Tr. 207-208, 211, 237-39, 241).

He acknowledged that he used a fake email address when he posted the profile of on Match.com. He also acknowledged that people, including Mosby-Scott's co-workers, friends, and parents of her children's friends could have viewed the profile. Respondent knew at the time he posted the misstatements about Mosby-Scott's marriage and children that it "would affect her." (Tr. 237-39).

In January 2017, Terrence Kelly, a partner at Respondent's law firm, began investigating to find out if anyone at the firm was responsible for the on line posting regarding Mosby-Scott. Respondent acknowledged that Kelly asked him whether he was responsible for the Match.com posting, and that Respondent denied any responsibility for it. Subsequently, Kelly confronted Respondent with the results of the forensic review of computers, showing that the posting on Match.com regarding Mosby-Scott had come from the computer on Respondent's desk and that Respondent was in the office at that time. Upon being confronted with the foregoing information, Respondent admitted he was responsible for the posting. After his admission, Respondent was grateful and felt guilt and shame. When asked why he did not admit his misconduct sooner, he said he was scared, upset, and in panicked." 

Sanction

 We recognize that the practice of law is a stressful professional. However, attorneys do not routinely snap and engage in a lengthy revenge attack on another attorney or anyone else, such as Respondent did. As we mentioned above, Respondent did not have a sudden burst of anger or a short-term lapse of sound judgment because some adverse incident occurred. Respondent's anger and serious lapse of sound judgment lasted over a lengthy period of time against someone who he acknowledged did nothing that "justified any kind of retaliatory harassing behavior."

We find in the record no credible explanation as to why the stress and pressure of handling divorce cases, among other things, caused Respondent to make his dishonest attacks on another attorney. There was a lack of any evidence from a clinical perspective as to why the Respondent was so affected to engage in the egregious misconduct.

We are also troubled by the fact that even though Respondent believes his handling of family law cases was a factor in causing his misconduct he continues to handle such cases. He is doing so after expressly telling Mosby-Scott that he was done practicing family law and after asserting that he told his current employer, Evans, that could not be a divorce lawyer anymore." (Tr. 221-25). As we mentioned above, Respondent attempted to minimize his family law cases by testifying "I do currently have a couple of family law cases, but it's a tiny amount of my current caseload that I'm handling." (Tr. 223). We also point out that Judge Reynard testified that he ranks contested family law cases as "the most emotionally stressful experience imaginable in litigation." (Tr. 331).

We find that the evidence shows Respondent is a very competent attorney and is well respected in the legal profession. Nevertheless, he engaged in egregious misconduct directed at another attorney that continued over a lengthy period of time and caused significant harm. In fact, his acts of dishonesty continued until he was caught.

We find no basis in the record for concluding that Respondent would not again engage in misconduct when confronted by the stress, pressure, and frustration of practicing law. We note that the character witnesses indicated they believe Respondent would practice law ethically in the future. However, those same witnesses also believed that to be true before learning of Respondent's misconduct in this case, and were shocked or surprised that he did so. We do not doubt the good faith of the character witnesses, but we do not find their testimony in this regard persuasive under the circumstances.

(Mike Frisch)

 

June 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Dog and The Damage

The Wyoming Supreme Court has suspended an attorney for nine months

Ms. Mears is a private practitioner with offices and residences in Jackson and Casper, Wyoming. She was admitted to the Washington State Bar in 2000, where she practiced law for a few years, and was admitted to the Wyoming State Bar in 2006, where she has practiced since. This matter was commenced when Dr. Robert Cushner filed a complaint with the BPR asserting that Ms. Mears was his attorney, and that she had borrowed money from him but refused to pay it back as agreed. He indicated that she “refuses to acknowledge her responsibility to repay the loan or the gravity of borrowing money from a client.” Responding to Dr. Cushner’s complaint, Bar Counsel sent a letter to Ms. Mears informing her that an investigation had been commenced on alleged violations of Rule 1.8(a) of the Wyoming Rules of Professional Conduct, which, in broad terms, prohibits a lawyer from entering into a transaction with a client unless specified conditions are met.

In her response, Ms. Mears stated that Dr. Cushner “was never a client,” although “there was a brief period of time in which we were friends.” She acknowledged that she had reviewed and commented on a contract he was negotiating, but asserted that this was only “a favor to a friend.” Ms. Mears did not deny that she had received money from Dr. Cushner, but explained that

his large dog . . . severely injured my much smaller dog necessitating more than $7,000 in veterinarian bills before she finally passed as a result of the injuries caused by his dog. Additionally, [Dr.] Cushner’s dog also ruined woodwork, doors, home furnishings, carpets and décor at my two separate homes.

She also submitted emails between her and the doctor.

Bar Counsel did not find the Rule 1.8(a) violation

Although Ms. Mears insisted that neither she nor Dr. Cushner had intended to create an attorney-client relationship, she later recognized that “an attorney-client relationship was created” when she reviewed the contract as a favor to him. However, that attorney-client relationship was limited and brief, terminating before the end of October of 2014.

But charged her with submitting false information in response to the complaint by

(a) Falsifying the copies of the breakup emails [she] produced to Bar Counsel.

(b) Misrepresenting that she incurred more than $7,000 in vet[erinarian] bills for injuries inflicted upon [her] dog by [Dr.] Cushner’s dog.

(c) Misrepresenting the extent and cost of repairs to [her] Jackson residence.

(d) Misrepresenting what [she] did with the money she received from [Dr.] Cushner.

The court found that the attorney had submitted altered emails.

The dog

we find clear and convincing proof that Ms. Mears knowingly made false statements of fact material to support her claim that Dr. Cushner’s dog injured and eventually killed her dog.

The damage

The date of the invoice, October 11, 2014, is one day after Ms. Mears had filed a divorce complaint on his behalf. As the BPR observed, Ms. Mears’s representation of the owner in his divorce provided an opportunity for her to enlist his aid in fabricating evidence. Taking this evidence in total, we find clear and  convincing proof that Ms. Mears misrepresented the damages done by Dr. Cushner’s dog and the extent and cost of resulting repairs.

Materiality 

At the time these false statements were made, it had not yet been determined that Ms. Mears and Dr. Cushner had terminated their attorney-client relationship before the transaction occurred. Accordingly, even under Ms. Mears’s theory that the materiality of a fact may change during the course of an investigation, her false statements about the nature of the transaction were material when they were made.

Sanction

We recognize that the facts and circumstances of our prior cases are not identical to those in Ms. Mears’s case. Taken together, however, these cases suggest a range of appropriate sanctions. The BPR’s recommendation of a nine-month suspension in Ms. Mears’s case falls at the high end of that range. The cases from other jurisdictions relied on by Bar Counsel are factually distinguishable and do not support disbarment in this case. Based upon the violations we have determined to be established by clear and convincing evidence, and taking into account the applicable aggravating and mitigating factors, we conclude that the BPR’s recommendation of a nine-month suspension is appropriate.

K2 Radio reported on the suspension. (Mike Frisch)

June 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Way to Get Positive Evaluations

The New Hampshire Supreme Court has imposed an interim suspension of a convicted former judge and attorney.

The Union Leader reported on the charges

Judge Paul Moore is facing accusations of faking potentially dozens of positive, anonymous judicial evaluations of himself, leading the Attorney General to launch a criminal investigation and the Supreme Court to place him on leave without pay.

Moore has been absent from his post at Nashua’s district court since mid-October. At the time, court officials declined to explain his absence. But newly released records from the Judicial Conduct Committee show concerns were first raised by court administrators earlier that summer. 

After spending months investigating, the conduct committee filed formal charges against Moore on Friday, which now jumpstarts proceedings against him. On Monday, the Attorney General’s office said it was opening a criminal investigation into whether Moore tampered with records, obstructed government administration and other charges. 

According to the complaint, Moore purposely attempted to interfere with his 2017 judicial performance evaluation in order to artificially improve his overall score on the evaluations. The state reviews between 18 and 20 judges every year on a rolling basis. 

Last July, a link to an online survey was emailed to Moore that allows judges to complete a self evaluation. A list of 90 randomly selected individuals and agencies were included, as they would each be sent a letter inviting them to complete an evaluation of Moore. 

Three days later, Moore emailed to request the removal of two former employees from the list of potential reviewers. He asked to add 148 names, including landlords, police and parole officers who appeared before him. 

But prior to a public announcement of Moore’s survey, completed evaluations began to come in. In less than 24 hours, he received 16 evaluations with perfect scores in every category, according to Waystack Frizzell, an attorney hired to investigate the case by the Judicial Conduct Committee.

Last week, Moore filed a response to the formal complaint where he admitted to submitting anonymous judicial evaluations of himself online as though some other person was submitting the evaluations. 

He also admitted to making the submissions on many occasions over several weeks using his personal computers, iPads, mobile phones and once or twice from his job at the Nashua District Court. 

The state’s highest court said it has decided to place Moore on administrative leave without pay to preserve the integrity of the Judicial Branch and the public’s trust. 

A judicial committee will meet March 26 to address the matter. 

The complaint alleges that there is probable cause to believe that Moore failed to comply with the Code of Judicial Conduct, failed to act in a manner that promotes public confidence of the judiciary, failed to avoid both impropriety and the appearance of impropriety and allowed his behavior to be influenced by fear of criticism. 

Moore, of Bedford, began his judicial duties in 2001. He also founded MooreMart, a volunteer organization that ships care packages to troops overseas. 

He was previously named the New Hampshire Union Leader and Sunday News New Hampshire Citizen of the Year for 2011, and previously received the William A. Grimes award for judicial professionalism.

And on the recent plea

Placed on leave over concerns he submitted fake evaluations of his own performance, Circuit Court Judge Paul Moore told another lie — this one that chronic pain, anxiety, depression and traumatic stress prevented him from being a judge and he should start receiving a disability pension, a prosecutor disclosed Wednesday.

Moore appeared in Merrimack County Superior Court on Wednesday and admitted to the fraud. It was yet another blow to a popular Nashua judge who was a former U.S. Army Ranger and founded MooreMart, a nonprofit organization that has shipped more than 100,000 care packages to troops deployed overseas.

Moore had already resigned his judgeship, which he gave up after authorities became suspicious of perfect scores on job evaluations supposedly submitted by lawyers and the public last summer. In the weeks ahead, Moore is likely to be disbarred.

On Wednesday, Moore was fined $4,000, must repay $3,900 to the Judicial Retirement System and received a suspended jail sentence.

“He is no longer a judge. He no longer will receive retirement benefits. He walks out of this courtroom not a judge, but a felon,” said Associate Attorney General Jane Young.

June 7, 2018 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

No "Name Clearing Hearing"

The New York Appellate Division for the Second Judicial Department denied this relief

Motions by respondent, returnable April 16, 2018, for an order granting, among other things, reargument from this Court's order denying respondent's latest motion seeking vacatur of the 1998 order suspending him from the practice of law (158 AD3d 889 [2018]; see Matter of Marin, 250 AD2d 997 [1998], appeal dismissed 92 NY2d 945 [1998], lv denied 92 NY2d 818 [1998]), for leave to appeal from the order denying that motion, for assorted relief pursuant to CPLR 5015, for a "name clearing hearing" and other sundry relief. Said motions seek, among other things, relief from respondent's obligation to comply with the duties imposed upon New York attorneys pursuant to Judiciary Law § 468-a and a direction to the Clerk of the Court to issue a statement confirming that respondent has continually been in good standing as a member of the New York bar since his original admission to the practice of law by this Court in 1992.

His only avenue forward is a petition for reinstatement. (Mike Frisch)

June 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

D.C. Proposes Changes To Limited-Scope Representation Rules

The District of Columbia Court of Appeals is seeking comments concerning proposed revisions to Rule 1.2. 

From the letter of the Bar's Board of Governors

Proposed D.C. Rule 1.2 would provide:

(a) A lawyer shall reach agreement with the client on the scope and objectives of representation. The agreed scope of representation may be limited to only certain aspects of a matter (rather than a matter in its entirety), if the client has given informed consent and the limitation does not preclude competent representation or violate other Rules.

(b) Within the agreed scope of representation, a lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (d), (e), and (f). andshall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify

Existing Rule l.2(b) would be renumbered as 1.2(c), and existing Rules l.2(d), (e), and (f) would remain the same. Existing Rule l.2(c) would be deleted because the requirements for limited scope representation would now appear in Rule l.2(a). The Board also recommends several amendments to the Comments to Rule l.2 to provide more specific guidance to practitioners providing limited scope services.

Comments due by July 31, 2018. (Mike Frisch)

June 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)