Thursday, September 24, 2015

Back To The Lawyer Referral Drawing Board

The Florida Supreme Court has rejected proposed amendments to its rules governing for-profit lawyer referral services

We have carefully reviewed the final report of the Special Committee and conclude that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses. We recognize that the anecdotes presented in the final report do not represent every non-lawyer-owned, for-profit referral service; however, the potential harm is too great for us to approve the amendments proposed by The Florida Bar. These amendments would not cure the multiple concerns highlighted by the Special Committee, but would allow the troubling incidents discussed in the final report to continue. The dangers that nonlawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar.

Accordingly, we reject the current petition and instruct The Florida Bar to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required. While the action we take today may be viewed by some as severe, we conclude it is absolutely necessary to protect the public from referral services that improperly utilize lawyers to direct clients to undesired, unnecessary, or even harmful treatment or services. Our action today will also prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.

Justice Canady

I concur with the majority’s rejection of the proposal submitted by the Board of Governors. But I dissent from the majority’s direction that the Bar propose amendments “that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” Majority op. at 6. Instead, I would direct that the Bar propose amendments incorporating the proposals recommended by the Special Committee on Lawyer Referral Services.

The Florida Bar is directed to file a new per ition by May 2016. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Never Mind

The Indiana Supreme Court withdrew a recently-ordered suspension for an attorney's failure to respond to an order to show cause in a disciplinary matter.

Turns out he did respond

On July 17, 2015, this Court ordered Respondent to show cause why he should not be immediately suspended from the practice of law for failure to cooperate with the Commission’s investigation of grievances. On September 18, 2015, this Court issued an order suspending Respondent from the practice of law for noncooperation with the Commission, effective immediately. That order noted that “Respondent has not submitted a response to the Court’s order to show cause.”

It has now come to the Court’s attention that Respondent in fact did tender to the Clerk a response to the show cause order, but that response was not filed by the Clerk, noted on the chronological case summary, or transmitted from the Clerk to the Court. See Clerk’s “Affidavit,” attached to this order.

Being duly advised, the Court hereby RESCINDS and WITHDRAWS the order of suspension issued in this cause on September 18, 2015. The Clerk is directed to make an appropriate nunc pro tunc entry on the Roll of Attorneys removing reference to Respondent’s being suspended on September 18, 2015.

(Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Unwitting Madoff Facilitator Disbarred

The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of federal felony offenses

On June 23, 2014, in a criminal action entitled United States v Konigsberg, commenced in the United States District Court for the Southern District of New York under Docket No. 10 Cr. 228, the respondent entered a plea of guilty, before United States District Court Judge Laura Taylor Swain, to one count of conspiracy to falsify books and records of a broker-dealer and of an investment advisor, to obstruct or impede the lawful governmental functions of the Internal Revenue Service in the ascertainment, assessment, computation, and selection of income taxes in violation of 18 USC § 371; one count of falsifying books and records of a broker-dealer in violation of 15 USC §§ 78q(a) and 78ff, 17 CFR 240.17a-3, and 18 USC § 2; and one count of falsifying the books and records of an investment advisor in violation of 15 USC §§ 80b-4 and 80b-17, 17 CFR 275.204-2, and 18 USC § 2. As part of the plea agreement, the respondent agreed to forfeit the sum of $4,400,000 to the United States.

AP reported on the criminal case

A jubilant accounting firm executive who worked for some of Bernard Madoff's most important clients emerged from a courtroom hugging family and friends on Thursday after a judge spared him prison time and agreed not to require post-sentence supervision.

The leniency shown 79-year-old Paul Konigsberg means he can visit two of his grandchildren in Moscow as soon as he gets a new passport.

Konigsberg pleaded guilty last year to conspiracy and falsifying books and records, admitting that he unwittingly had a role in Madoff's multi-decade fraud by agreeing to let the Ponzi scheme's employees change trading records on some of his client's financial statements.

U.S. District Court Judge Laura Taylor Swain said what Konigsberg did was "seriously wrong" but agreed with prosecutors and Konigsberg that he did not know Madoff was defrauding thousands of investors of nearly $20 billion.

She said Konigsberg, through his cooperation, earned leniency from federal sentencing guidelines that called for at least eight years in prison. She also rejected a request by a court-appointed monitor recovering money for Madoff investors who had asked that Konigsberg be required to cooperate further with his office as part of his sentence.

Assistant U.S. Attorney David Abramowicz said Konigsberg's help included providing information that explained how Madoff and his workers dealt with his most favored investors.

Konigsberg never was employed by Madoff, though he did give him tax advice. Plagued by his association with Madoff, he sold his Manhattan accounting and consulting firm four years ago.

Konigsberg, who fought back tears as he addressed the judge before the sentence was announced, called Madoff "truly a monster."

"It is an extremely sad day in my life," he said in remarks that left his lawyer, Reed Brodsky, in tears.

But the announcement of the sentence left him giddy as he hugged many of the more than 60 family and friends who applauded after the court proceeding ended.

His supporters included Stephen Konigsberg, who came to the sentencing from Moscow, which his father hopes to visit soon to see two of his grandchildren, ages 6 and 9.

"It's a wonderful result and a just result," the son said outside court.

Paul Konigsberg declined to comment, except to chuckle at the impression his lawyer had left when he told the judge that his client is so charitable that he once told everyone on his plane to take off their clothes to give to people in Cuba before flying out of that country.

"We left with the shirts on our backs," he said with a smile.

The 77-year-old Madoff is serving a 150-year prison sentence after revealing the fraud in December 2008.

(Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Court Suspends Attorney Who Blamed Mother For Misconduct

The Illinois Supreme Court adopted the three-year suspension recommendation of its Review Board in a matter described in the Board's report

Respondent was licensed in 2003 when he was 50 years old. He has been a sole practitioner with a general practice in Carpentersville, Illinois. He is also a Certified Public Accountant.

In a five count Complaint, the Administrator charged Respondent with misconduct arising out his representation of clients who planned to open and operate a nightclub in Florida called Dixie Roadhouse (Counts I-IV) and of an individual in the purchase Shell gas station (Count V). In both client matters, the Administrator charged Respondent with misappropriating funds given to him to hold in escrow and with making false statements to others about his handling of the funds in an effort to cover up his misdeeds.

During the course of the Administrator's investigation, Respondent tendered to the Administrator falsified bank records purporting to show that he was properly holding the funds. When the fabrication was discovered, Respondent blamed his mother for the fabrication of the records. Respondent claimed his mother misappropriated the funds in question by transferring funds from his IOLTA account to his business account and then covered up the misuse of the funds in an elaborate scheme aided by a woman the mother met at an unspecified Kinko's copy shop.

The Hearing Board did not believe Respondent or his mother. In fact, the Hearing Board began its report by stating that they found "the testimony of Respondent and his mother, Selma Frazin, lacking in credibility and, in large part, untruthful," noting that "Respondent and Ms. Frazin have changed their stories so many times it is impossible to determine when, if ever, they are telling the truth." While Respondent claims that the Hearing Board erred in disbelieving him, we disagree. The Hearing Board was not required to accept Respondent's testimony. This Board gives deference to the Hearing Board's determinations of credibility. Moreover, the Hearing Board's findings are well supported by the record as set forth generally below and in greater detail in the Hearing Board's Report. (citations omitted)

Our earlier coverage is linked here. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Alleged Credit Report Access Leads To Bar Charges

The Illinois Administrator has filed a complaint alleging that an attorney used information obtained through discovery to illegally access a opposing party's credit history.

... through the course of pretrial discovery, Respondent obtained Jacek’s personal identifying information, including his social security number, as well as information concerning Jacek’s financial history.

On or about December 5, 2014, Respondent visited the website, an online consumer credit reporting site which allows consumers to access their own credit reports.

Pursuant to 15 U.S.C. § 1681q, any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined, imprisoned for not more than two years, or both.

On or about December 5, 2014, Respondent entered Jacek’s identifying information, including Jacek’s name, address, date of birth, and social security number, into the website for the purpose of obtaining Jacek’s credit report.

On or about December 5, 2014, Respondent obtained Jacek’s credit report from the website.

At no time did Respondent request or receive Jacek’s permission or authorization to obtain Jacek’s credit report.

On December 8, 2014, Respondent filed on behalf of Bozena four reply briefs in Cook County Circuit Case No. 2013 D 7670. The reply briefs related to petitions for Jacek to pay additional child support and contribute to various expenses. As an exhibit to each reply brief, Respondent attached a portion of Jacek’s credit report that Respondent obtained from

 On December 11, 2014, after discovering that Respondent had obtained Jacek’s credit report without permission or authority, Jacek’s attorney, Lucas Figiel, filed an emergency motion for an order prohibiting Respondent from using Jacek’s credit report.

On December 11, 2014, after a hearing on Figiel’s emergency motion, Judge John Thomas Carr entered an order prohibiting Respondent from using Jacek’s credit report.

The underlying case involves marriage dissolution. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 23, 2015

Blogger Suspended In Illinois

An attorney who blogged about probate court was suspended for three years and until further court order by the Illinois Supreme Court.

From the Review Board report

This case involves Respondent's statements on a blog impugning the integrity of certain judges, guardians ad litem ("GALs") and the lawyers involved in a case in the Probate Court of Cook County. The Hearing Board concluded that Respondent violated Rules 8.2(a) which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer"; 8.4(c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation"; and 8.4(d) which prohibits "conduct that is prejudicial to the administration of justice."

The Administrator's Complaint alleged that Respondent made statements in violation of the above rules when she blogged about an adult guardianship of Mary G. Sykes ("Mary") pending in the Probate Division of the Circuit Court of Cook County ("the Sykes case"). In December 2009, the probate court had disqualified Respondent from representing Gloria Sykes ("Gloria"), one of Mary's daughters, in the case. Thereafter, Respondent published blogs related to the Sykes case. The Administrator's Complaint set forth ten excerpts taken from Respondent's blogs and alleged that the statements in the excerpts were made in violation of the Rules. See, Administrator's Complaint, paragraph 9. The Hearing Board based its findings on these ten statements. See, Hearing Bd. Report, pp. 7-16, 24-31.

Respondent does not dispute that she made the ten statements in question. She contends that the Hearing Board's findings are against the manifest weight of the evidence because the statements are true. She also contends that her statements on the blog are protected by the First Amendment of the United States Constitution (First Amendment). We have read Respondent's brief and have the benefit of the parties' oral argument before this Board...we affirm the Hearing Board's findings of misconduct and conclude that her false statements are not protected by the First Amendment.

I posted my view that this suspension is far too severe when the Review Board filed its report. (Mike Frisch)

September 23, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Bad Night Leads To 30 Day Suspension

The Illinois Supreme Court has accepted a consent suspension of a former assistant state's attorney.

From the Administrator's complaint

From 2008 through April 10, 2013, Respondent was employed as an Assistant State's Attorney with the Office of the Cook County State's Attorney. Respondent resigned her position as an Assistant State's Attorney in April 2010. Respondent was assigned to a felony preliminary hearings courtroom at the time of her resignation.

In her position as an Assistant State's Attorney, Respondent was a minister of justice as a representative of the people of the state of Illinois, sworn to support the constitution of the United States and the constitution of the state of Illinois.

On September 22, 2012, Respondent and a male companion, Bradley Gould ("Gould"), attended a Chicago Cubs baseball game where they were drinking alcoholic beverages. They continued drinking after leaving the game at a local bar and then a restaurant with family and friends.

On September 22, 2012, after leaving the restaurant, and beginning at or around 7:30 p.m., Respondent was near an adult merchandise store located at 854 W. Belmont Avenue in Chicago called "Taboo Tabou."

Respondent entered Taboo Tabou with Gould. Shortly after entering Taboo Tabou, Respondent and Gould began creating a disturbance by stumbling and speaking in loud voices and were asked by the store manager, Dinah Pineda, to leave the store. Respondent pulled a badge from her purse and told Pineda "you can't do this to me I'm a State's Attorney."

After approximately 10 minutes of Ms. Pineda repeatedly asking Respondent and Gould to leave, they exited the store. However, after approximately another 10 minutes, Respondent opened the door to Taboo Tabou and poked her head through, while yelling "bitches" at Pineda and another employee. At the same time, Respondent and Gould were banging on the glass windows of the store while shouting and making obscene gestures.

Ms. Pineda then called the Blue Havana cigar store, which is next door to Taboo Tabou, and has the same owner, to ask for help from an employee of that store, to see if he could get Respondent and Gould to leave and generally to diffuse the situation. At the same time Pineda call "911" for assistance.

David Boone, the employee from Blue Havana, arrived and repeatedly asked Respondent and Gould to leave, but they only became more belligerent. Respondent went into her purse again and presented her States Attorney's badge to Boone. Respondent swung at Boone. Boone tried to walk away from her, but Respondent fell. Respondent got up and then began running down the street, yelling that she had been "assaulted." At the same time, Gould began videotaping Boone with his cell phone which he positioned directly in front of Boone's face. The phone hit Boone and Boone hit the phone out of Gould's hand. Gould attempted to hit Boone, but Boone punched him and Gould hit his head on the metal window frame. Respondent then charged at Boone, fell to the ground, grabbed Boone's leg and bit him, breaking the skin and causing injury to Boone's knee. Several bystanders pulled Respondent off of and away from Boone.

The police arrived and placed Respondent in handcuffs and in a police SUV where she managed to get her hands out of the handcuffs. Respondent was taken out of the SUV by a female officer, re-handcuffed and put back in the vehicle. Respondent told the officer at least six times that she was an Assistant State's Attorney. Respondent called the officer "a cunt, slut, bitch whore, and dyke" and slapped at her. Respondent got out of the handcuffs again and was kneeling on the floor of the vehicle attempting to vomit. Respondent was taken out of the vehicle again and, while sitting on the curb, proceeded to try to make herself throw up while screaming obscenities.

After the police interviewed witnesses, Respondent and Gould were arrested. Respondent was ultimately charged with attempted official misconduct, battery, resisting arrest, criminal trespass to property, assault and disorderly conduct. People v. Sarah Naughton, 12 MC 1260599. Following a bench trial, Judge Anthony John Calabrese found Respondent and Gould not guilty on all charges on April 5, 2013.

The acquittal did not prevent discipline for the underlying behavior.

This link takes the reader to Above the Law's earlier coverage.

This Chicago Sun-Times article reports on the aftermath of the incident.

The case drew a fair amount of attention because part of the incident was caught on video and posted on YouTube, where at last count there were more than 67,000 views and roughly 100 comments. Another video – from inside the squad car – surfaced later, during Naughton’s 2013 trial, at which a judge acquitted Naughton of every charge, including resisting a peace officer, attempted official misconduct and battery. She left the state’s attorney’s office shortly thereafter.

(Mike Frisch)

September 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

We Listen And We Care But We Can't Say We Win

An advisory  opinion from the Connecticut Statewide Grievance Committee concludes that a proposed logo violates advertising rules

The logo depicts a multi-point star enclosed in a circle. Underneath is the first listed partner name of the law firm followed by word "law." The proposed phrase is "we listen. we care. we win." Since this phrase will be used in various forms of undetermined future advertising material, the proposed phrase on its own does not contain the name of an attorney admitted in Connecticut responsible for its content as required by Rule 7 .2( d) of the Rules of Professional Conduct. This opinion assumes that the proposed phrase, when placed in the context of actual advertising material, will comply with that requirement when disseminated.

The problem

The proposed advertisement violates Rule 7 .1 of the Rules of Professional Conduct because the reference to the firm winning is likely to create an unjustified expectation as to success. Rule 7.1 prohibits communications that are false or misleading. It is misleading for a lawyer to make claims in an advertisement that cannot be substantiated. Id. In some instances, an appropriate disclaimer given equal weight could correct a statement that is likely to create unjustified expectations or otherwise mislead a consumer. Id.

 By stating, "we win" the firm is creating unjustified expectations for prospective clients. The firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits. The statement is misleading. The firm could correct this misleading statement by including a disclaimer, explaining that results are based on the merits ofthe case and that success in the past does not guarantee success in the future.

(Mike Frisch)

September 23, 2015 in Bar Discipline & Process, Current Affairs, Ethics | Permalink | Comments (0)

Tuesday, September 22, 2015

No Eagle Scout

From the Idaho State Bar

On September 17, 2015, the Idaho Supreme Court entered an Order accepting the resignation in lieu of discipline of Eagle attorney, John T. Bujak.  The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to the following conduct.

 During his tenure as the Canyon County Prosecutor in 2009-2010, by agreement of Canyon County and Nampa, funds for prosecutorial services for Nampa were received and deposited in Mr. Bujak’s trust account, with an expected reimbursement from the trust account to Canyon County at the end of each fiscal year.  Mr. Bujak removed funds from his trust account for personal use.  At the conclusion of fiscal year 2010, there were insufficient trust account funds to reimburse Canyon County for expenses related to the Nampa prosecutorial services.  Mr. Bujak admitted that these circumstances violated I.R.P.C. 1.4(b) [Communication with Client], 1.7(a)(2) [Conflict of Interest: Current Clients], and 1.15(a), (b), (c) and (e) (effective 2009-2010) [Safekeeping Property].

In addition, during the criminal prosecution of Respondent on a felony charge of preparing false evidence and a computer crime, Respondent admitted one count of contempt for willfully failing to disclose expert materials pursuant to I.C.R. 16 by the deadline ordered by the court.  Mr. Bujak admitted that these circumstances violated I.R.P.C. 3.3(a) [Candor Toward the Tribunal], 3.4(c) (d) [Fairness to Opposing Party and Counsel], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].

A report from Idaho Statesman

John Bujak’s resignation last week from the Idaho State Bar ending the legal career, at least temporarily, of one of Idaho’s most controversial lawyers.

Bujak, 46, who survived four felony jury trials and a federal bankruptcy court trial without a guilty verdict, said he decided to give up his law license rather than continue to fight efforts to disbar him. Idaho State Bar Counsel Bradley Andrews filed a complaint against Bujak July 9, seeking disbarment and unspecified restitution.

More information at this link from Boise Weekly that links to reports of the Press-Tribune.  (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Education On Linkage Between Addiction And Bar Discipline

Disciplinary prosecutors have long been aware of the correlation between alcohol and drug issues and problems with bar discipline.

Ohio has for some time required education about this issue for both applicants for admission and as part of an admitted attorney's continuing legal education. 

A recent video posted on the Supreme Court's web page tells the story of a judge whose drinking led to such problems and may be useful as an educational tool. (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

IOLTA Account Violations Leads To Suspension

An attorney who used his IOLTA account for personal expenses over an extended period of time consented to a three-year suspension by the Pennsylvania Supreme Court

From the report of the Disciplinary Board

Respondent, while knowing it was wrong to do, paid for hundreds of personal expenses out of his IOLTA, using it as a personal account for approximately one year and nine months. Respondent made an untimely distribution of settlement funds to a client. He caused many overdrafts in his IOLTA, and deposited his own money into his IOLTA to make his clients, including a minor, whole. Respondent did not have permission to use his client's funds. By doing this he commingled his own funds with client funds and misappropriated client funds, even if the misappropriation was in small amounts and only for a short time. Respondent has no prior history of discipline; expressed remorse; and admitted his wrongdoing, as evidenced by his agreement to enter into a joint petition for discipline on consent.

(Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Not A Scintilla

An attorney admitted to practice in 2007 has been disbarred by the Pennsylvania Supreme Court.

The report of the Disciplinary Board notes that the initial misconduct was relatively minor and involved his failure to appear to receive an informal admonition.

However, he failed to participate in the ensuing proceedings and thus displayed his indifference t o his responsibilities.

Had he shown a "scintilla of interest" in retaining his license by responding to the charges, disbarment would likely not have been proposed and imposed. (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 21, 2015

Bad Son And Brother

A recent Hearing Board report and recommendation from Illinois

Respondent acted as trustee of a trust his mother  established, to provide for her care during her lifetime and for distribution of  any remaining trust assets equally between Respondent and his siblings after her  death. Over a five-year period, which began while his mother was alive and  continued after she died, Respondent took more than $360,000 from the trust,  without authority. Respondent had not repaid any of this money, even though two  of his siblings filed a lawsuit, to which Respondent initially did not respond,  and obtained a judgment against Respondent.

In the other matter, Respondent allegedly failed to  properly communicate with a client he represented in a civil lawsuit and pursue  that case after trial. In his response to the ARDC's initial inquiry into that  matter and in his sworn statement to the ARDC, Respondent made false statements.

The Hearing Board found Respondent acted  dishonestly in taking the funds from the trust, conduct which warranted  professional discipline. In relation to the lawsuit against Respondent, the  Hearing Board found the Administrator did not prove misconduct, as the evidence  did not show Respondent's behavior actually prejudiced the administration of  justice and Respondent was acting solely as a party to the lawsuit.

The client Respondent represented in the civil  lawsuit did not testify. Consequently, the Hearing Board did not find sufficient  evidence to support any findings of misconduct as to that matter. The Hearing  Board found, however, that Respondent's statements to the ARDC about that case  were false and Respondent knew they were false.

The Hearing Board recommended that Respondent be  suspended for two years and until he satisfied the judgment against him in the  civil case brought by his siblings.

The board rejected a sanction imposed of suspension until further court order

From our perspective, the evidence presented as to  Respondent's mental health condition did not warrant a suspension until further  order. The personal losses Respondent experienced, while significant, occurred  in 2010 to 2011. No mental health symptoms were reported before fall 2010. By  that time, Respondent had been misappropriating funds from the Moran trust for  well over three years. The evidence did not indicate any genuine causal  relationship between Respondent's mental health condition and his misconduct;  the evidence of any link at all was inconclusive, at best. Further, the evidence did  not provide real grounds on which to believe Respondent's mental functioning was  currently impaired. From Dr. Henry's observations, Respondent's memory and  abstract reasoning were intact. Respondent reported he had returned to normal  functioning by 2012 or 2013, after receiving treatment.

We recommend Respondent's suspension also continue  until he makes restitution.

(Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Admonition For Supreme Threat

A recent admonition from Massachusetts



Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]

Improper Threat or Presentation of Criminal or Disciplinary Charges [Mass. R. Prof.

C. 3.4(h)]


On September 16, 2013, a New Jersey lawyer filed a civil suit in New Jersey Superior Court on behalf of her corporate client (Company A). The lawsuit alleged that the defendants, a corporate entity and an individual doing business as Company B, had failed to pay Company A for services rendered. The respondent represented the interests of an investor and managing member of Company B as its outside general counsel.

In October 2013, the respondent contacted the lawyer for Company A in an attempt to resolve the civil dispute. The parties were unable to resolve the matter. On or about January 27, 2014, the New Jersey court entered a default judgment against the defendants in the civil lawsuit. The defendants did not contest the entry of the default judgment or move to vacate the default judgment or reopen the matter.

On September 2, 2014, the respondent sent an email to the plaintiff’s lawyer, in which he threatened to file a motion with the Supreme Court of the United States of America seeking her disbarment unless she removed the default judgment. The respondent stated that if he was forced to file any motions in the case, he would seek her disbarment and significant attorneys’ fees and costs. After the lawyer responded to the respondent’s initial email, he sent her a second email on September 2, 2014, again threatening to petition the Supreme Court of the United States of America for her disbarment unless she dismissed the civil action and removed the judgment secured in that case. The respondent set a deadline of 6:00 p.m. on the following Friday for her to remove the judgment, or he would seek her disbarment. Therespondent further stated, “Should you have any questions, please retain the service of a competent Supreme Court of the United States of America practitioner.” Mass. R. Prof. C. 3.4(h) prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter. To the extent that the defendants had a valid defense to the New Jersey civil action, the appropriate remedy would have been for the defendants to move to vacate or remove the default judgment and seek to present their defense. In addition, the respondent had no non-frivolous basis for filing a petition seeking the disbarment of the New Jersey lawyer with the Supreme Court of the United States. In these circumstances, the respondent’s conduct violated Mass. R. Prof. C. 3.1 (prohibiting lawyers from asserting frivolous claims) and 3.4(h) (threatening to file disciplinary charges solely to gain an advantage in a private civil matter).

The respondent, who was admitted to practice in 1989 and had no prior discipline, received an admonition for his conduct on the condition that he attend a continuing legal education class identified by bar counsel.

(Mike Frisch) 

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Convicted in Illinois And Reinstated In Wisconsin

The Wisconsin Supreme Court has reinstated an attorney who consented to license revocation in the wake of a federal wire fraud aiding and abetting conviction

Attorney Hurtgen's petition for consensual license revocation stated that he could not successfully defend against pending charges of professional misconduct relating to a conviction, entered following a guilty plea entered in the Federal District Court for the Northern District of Illinois, to one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2, in connection with a long-running federal investigation of corruption in the administration of former Illinois Governor Rod Blagojevich.

The favorable evidence

 The referee noted that letters supporting Attorney Hurtgen's petition were filed by numerous persons, including former Wisconsin Governor James E. Doyle, that each writer spoke very highly of Attorney Hurtgen, and that several mentioned their belief that Attorney Hurtgen never acted inappropriately. The referee noted that Attorney Hurtgen currently serves as a managing partner of a private investment company and as an operating director of a Chicago-based investment and merchant bank. At this time, he does not intend to use his law license, if reinstated, to practice as an attorney but instead will use the license in his own business affairs.

Huffpost Chicago reported on the guilty plea. (Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred After 59 Years; Reinstatement Denied

The Maryland Court of Appeals denied reinstatement to an attorney disbarred in 2007

Common sense also demonstrates the impropriety of Respondent's action.   In the process of crafting a clever argument to prove that no conflict existed because the confidential information lost its confidential value, Respondent loses sight of a fundamental test by which these questions ought to be resolved.   The Comment to MRPC 1.9 reads, in relevant part:  “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”   We are of the opinion that when Respondent filed a suit sounding in contract against a former client, an entity he created, over a business transaction he helped construct by creating the relevant documents now central to the contract suit, he effectively changed sides. 

The fact that Respondent joined the side of his former client's former business partner (who he also represented in the disputed transaction) bodes worse, not better, for Respondent.   Were we to accept Respondent's position on this question, we would be approving precisely the type of betrayal of confidence and fiduciary duty the Maryland Rules of Professional Conduct are designed to protect.   See Hughes v. McDaniel, 202 Md. 626, 633, 98 A.2d 1, 4 (1953) (“[T]he confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client's necessities, credulity and liberality.”).   It does not take too vivid an imagination to perceive a situation where an attorney represents two parties who become embroiled in a controversy over a business transaction with one another.   Under Respondent's view of what constitutes a conflict of interest, the attorney would be permitted to choose to represent the party he or she, in his or her professional judgment, stood the best chance of prevailing.   This type of fair-weather loyalty and former client poaching is forbidden;  an attorney may not abandon the duty not to harm a former client when circumstances make it expedient and/or self-serving to do so.   As the Comment to MRPC 1.9 says, in pertinent part:  “Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client.”

The court agreed that the conflict had not been waived and that the petitioner had acted dishonestly

The hearing judge found no mitigating circumstances.   With 59 years experience as a member of the Maryland Bar, Respondent should have appreciated the extent

(Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 18, 2015

Hair Unapparent

The Louisiana Supreme Court has disbarred an attorney for misconduct in several matters.

One notable episode of client counseling

Attorney Jonathan Johnson represented the father in a child custody matter in which respondent represented the mother of the minor child. On April 12, 2012, Mr. Johnson notified respondent that he would be filing an emergency custody petition on behalf of his client based on allegations that respondent’s client was abusing illegal drugs. That afternoon, respondent went to a health store and purchased a product called Ultra Clean, a shampoo advertised as purifying buildup of medication from the hair and commonly used in attempts to avoid a positive hair follicle drug test. After purchasing the shampoo, respondent visited his client at her home.

The following day, Mr. Johnson presented the emergency custody petition, and the presiding judge conducted a pre-trial conference in chambers. During the pre-trial conference, respondent adamantly denied that his client was taking illegal drugs. The judge ordered respondent’s client to submit to drug screening, including cuticle and hair follicle testing. The hair follicle test was negative, but the cuticle test was presumed positive for marijuana, amphetamines, and methamphetamines.


On March 11, 2013, respondent pleaded guilty to one count of theft of utility service and one count of theft. He was fined $500 and sentenced to serve one hundred eighty days in jail on each count. The court suspended the sentences and placed respondent on supervised probation for one year.

The court

By his knowing and intentional misconduct, respondent has demonstrated a lack of concern for the welfare of his clients, third persons, the administration of justice, and the viability of his law license. After further considering the aggravating factors present in this case – in particular respondent’s selfish motive and his indifference to making restitution to his clients – the sanction of disbarment is fully supported.

(Mike Frisch)

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

Virginia Suspends Non-Virginia Attorney

A New York attorney not admitted to practice in Virginia has been sanctioned for misconduct relation to her immigration law practice by the Virginia State Bar Disciplinary Board

Respondent practiced immigration law in the Commonwealth of Virginia. Specifically, Respondent practiced in or was associated with law offices located in Fredericksburg and Arlington County, Virginia. In October of 2011, Respondent opened her own law office in Falls Church, Virginia. From October of 2011 to March of 2012, Respondent represented a client in an immigration matter in Virginia.

She had failed to comply with the terms of a reprimand and did not respond in the bar case predicated on the non-compliance

The Chair opened the hearing by calling the case in the hearing room and causing the Assistant Clerk to call Respondent’s name three times in the adjacent hall. The Respondent did not answer or appear.

Result: six month suspension in a jurisdiction where the attorney never was admitted. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (2)

Former City Attorney Suspended

The Vermont Supreme Court has ordered the interim suspension of an attorney convicted of felony hit-and-run.

Details from the Rutland Herald

Former city attorney Christopher Sullivan will serve at least four years behind bars in the hit-and-run death of Mary Jane Outslay.

Sullivan, 55, of Rutland, was sentenced this afternoon in Rutland criminal court. A jury convicted Sullivan in March of driving under the influence with death resulting and leaving the scene of an accident with death resulting.

Judge Theresa DiMauro sentenced Sullivan to four to 10 years in prison on each charge, with the sentences to be served concurrently.

And from Vermont Today  in July 2013

New filings in the hit-and-run case against former Rutland City official Christopher Sullivan show that prosecutors conducted secret inquest hearings before charges were brought.

Three weeks passed between the April 10 crash that killed 71-year-old Jane Outslay and the arrest of the attorney who pleaded innocent to felony counts of leaving the scene of a fatal crash and driving under the influence with death resulting.

Investigators and prosecutors with the Vermont attorney general’s office have been mostly close-mouthed about the reason for the delay in charging Sullivan, 53, who came to the city police department the day after the fatal crash to identify himself as the driver. 

The lengthy investigation outraged some in the community who believed Sullivan was receiving special treatment. But investigators said the delays were due to a thorough investigation that included numerous interviews and the analysis of autopsy and crash reconstruction evidence.

In a motion filed in Rutland criminal court this month, an attorney representing an insurance company providing coverage to Sullivan indicated that prosecutors also conducted inquest hearings: closed-door court proceedings in which a witness answers a prosecutor’s questions under oath and in the presence of a judge.

“The state proceeded with a criminal inquest,” Springfield attorney Brendan Donahue wrote in a motion filed with the court June 7, adding that Sullivan’s wife was compelled to testify along with other witnesses. “The state subsequently filed charges against Mr. Sullivan.”

The content of the inquest proceedings is unknown. Assistant Attorney General Cindy Maguire, who is handling the case, declined to comment this week, as did Donahue.

The revelation that inquests were conducted was contained in a motion from Donahue who is trying to block a subpoena from prosecutors trying to obtain an insurance claim filed by the Sullivans.

Donahue, who represents GEICO auto insurance, wrote that Sullivan’s wife reported an incident to the insurance company April 11 but no recorded statement was obtained.

The motion doesn’t indicate whether the damage to Sullivan’s 2004 Lexus sedan was reported before or after he told police he was the driver in the crash. The subpoena ordered by the attorney general’s office indicates that prosecutors don’t know the answer to that question, either, as the request seeks “the time the claim was reported, who reported the claim and any statements made by the policy holders.”

After the initial claim was filed, Donahue said GEICO was directed to conduct all further communications regarding the claim through Rutland attorney William O’Rourke.

O’Rourke couldn’t immediately be reached for comment Wednesday.

In his motion to quash the state’s subpoena, Donahue argues that the company shouldn’t be compelled to turn the claim over to prosecutors because the file is protected by a number of exemptions, including attorney-client privilege and insurer-insured privileges. He also asked that if the documents must be turned over that they be examined in a private hearing.

Donahue also argued that prosecutors didn’t need the insurance records because of the inquest hearing.

“The state cannot make any showing that it is in substantial need of the information it seeks or that it is unable to obtain the equivalent information without undue hardship,” Donahue wrote. “The state has the benefit of the police investigation as well as the inquest testimony it gathered from various witnesses, including Mrs. Sullivan.”

The attorney general’s office has not filed a response to the motion and no hearing date has been set to consider the request.

Prosecutors say Sullivan was impaired by alcohol when he struck and killed Outslay, of Mendon, who was crossing Strongs Avenue at about 5:10 p.m.

Investigators said the impact did considerable damage to the hood and windshield of Sullivan’s car — including a significant hole in the passenger side of the windshield — but Sullivan did not stop at the scene.

Instead, police say he drove to a parking lot in Rutland Town where he called his legal partner for advice before going home.

The court has set a trial ready date in Sullivan’s case for January 15.

Sullivan served in City Hall as the city attorney and assistant city attorney for 19 years until 2007.

The suspension will remain in effect while the circumstances are investigated. (Mike Frisch)

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

Informal Admonition For Commingling: Attorney Left Earned Fee In Escrow Account For Six Weeks

The District of Columbia Office of Bar Counsel informally admonished an attorney who commingled funds by failing to remove an earned fee from her escrow account

Because you failed to promptly remove your earned fees from your IOLTA account, you commingled your funds with entrusted funds from two client matters for a six-week period of time. Such commingling violated the Rule, in that you failed to segregate your funds from those held in trust for clients and/or third persons.

We have determined that an informal admonition, rather than a more substantial sanction, is warranted under the circumstances of this case. Specifically, during the pertinent period of time, you properly placed client funds in trust rather than in your operating or personal account, which would have placed your clients' funds at risk. Here, there was no apparent risk to the clients and you made prompt disbursement to the clients and third party providers from the settlements. We also take into consideration that you do not regularly handle entrusted funds in the course of your practice and that you no longer manage the IOLT A account, but rather, have delegated that duty to the managing partner of your firm.

In deciding to issue this Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you cooperated with our investigation, you have accepted responsibility for your actions, and you have no prior discipline although you have been practicing in this jurisdiction for 34 years. You also have agreed to take six hours of Continuing Legal Education (CLE) classes, pre-approved by this office, and on the subject of trust accounts. You agree to forward proof of attendance of the CLE classes within six months of the date of this Informal Admonition and you agree that if this proof of attendance is not submitted to Bar Counsel within six months of this Informal Admonition, then this Informal Admonition will be considered null and void and we will re-open this matter.

Access the informal admonition at this link by entering the name Patricia Barnes . (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (1)