Wednesday, June 22, 2016

Reinstated To Retire

An attorney who was disbarred for dishonest conduct in 2007 has been reinstated in Maryland.

But hold the congratulations because there is this

ORDERED, that Petitioner, upon taking in open court and subscribing to the oath of attorneys required by MD Code (2004), Business Occupations and Professions Article Sec. 10-212, be reinstated as a member of the Bar of Maryland on the condition that Petitioner agree he will apply immediately following reinstatement for placement on inactive/retired status with the Client Protection Fund and thereafter remain inactive permanently...

Welcome back (sort of). (Mike Frisch)

June 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

What Me Hurry?

By now my view that the District of Columbia Bar's "attorney discipline" system is pathetically slow and pro-lawyer is well known.

Examples abound but here's one that falls squarely on the Board on Professional Responsibility.

The case involves an attorney named Kelly Cross and his conviction arising from an encounter in a D.C. sports club.

A hearing committee issued a report proposing a three-year suspension on May 28, 2015 (see my prior coverage here).

On August 19, 2009, Respondent used a video camera that he had hidden in his toiletry bag to surreptitiously record a patron at a local gym while that individual undressed in the gym’s locker room. Respondent was discovered, subsequently arrested and eventually pleaded guilty to misdemeanor voyeurism in violation of D.C. Code § 22-3531(c). Bar Counsel charged that: (1) Respondent violated Rules 3.4(a) (obstructing another party’s access to evidence), 8.4(b) (criminal acts reflecting adversely on honesty, fitness, or trustworthiness), 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and 8.4(d) (serious interference with the administration of justice); and (2) Respondent was convicted of a crime involving moral turpitude within the meaning of D.C. Code § 11-2503(a). Bar Counsel contends that Respondent’s crime requires disbarment under the statute. Respondent contended at the hearing that his actions, although criminal, were in essence based on a misunderstanding.

The Hearing Committee finds by clear and convincing evidence that Respondent violated Rules 8.4(b) and 8.4(c), but that the evidence is insufficient to find that he violated Rules 3.4(a) and 8.4(d) or that he committed a crime of moral turpitude within the meaning of D.C. Code § 11-2503(a). The Hearing Committee further finds that Respondent engaged in this   misconduct before, and that Respondent’s explanation for his misconduct to the Hearing Committee was false based on his demeanor, key contradictions in his testimony and the basic implausibility of his story. The Hearing Committee recommends, therefore, that Respondent be suspended from the practice of law for a period of three years with a fitness requirement as a condition of reinstatement.

Neither side saw fit to note any exception.

And the BPR has done nothing in the more than a year since the hearing committee report was filed.

Note that the conviction occurred in 2009 and Disciplinary Counsel filed charges in 2012.

It should not take over half a decade to decide if voyeurism involves moral turpitude on its facts, especially when Disciplinary Counsel concedes the point that here it did not.

There must be a better way. (Mike Frisch)

June 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Domestic Battery As Ethics Violation

A complaint alleging that an attorney's domestic battery conviction violated ethics rules was recently filed by the Illinois Administrator.

In August, 2012, Respondent was residing in a house in Valparaiso, Indiana, with his then wife, Angela Coleman, and their four minor children.

On August 12, 2012, between 11:00 p.m. and 12:00 a.m., Respondent argued with Ms. Coleman. Respondent’s behavior escalated, he became loud, and Ms. Coleman moved to her bedroom to avoid waking their sleeping children.

Respondent followed Ms. Coleman into the bedroom where he punched her in the face and head. Ms. Coleman sustained injuries including an injured lip, black eye and knots on her head.

Ms. Coleman escaped to the bathroom where she locked the door and refused Respondent access to the bathroom. Shortly thereafter, Respondent convinced Ms. Coleman to leave the bathroom.

Respondent handed Ms. Coleman an ice pack and convinced her not to notify the police due to possible legal implications to Respondent and their family. Ms. Coleman did not notify the police at that time.

On August 13, 2012, Ms. Coleman did not attend work because her facial injuries were obvious, nor did she notify police of Respondent’s actions the previous evening.

On August 14, 2012, Ms. Coleman arrived at work at Valparaiso University wearing sunglasses to conceal her black eye. Shortly after her arrival, Ms. Coleman left work and returned home to retrieve her children’s original identification documents.

On August 31, 2012, Ms. Coleman reported Respondent’s actions...to the Valparaiso Police Department.

As a result

On July 30, 2013, a Porter Superior Court jury found Respondent guilty of domestic battery in the matter of State of Indiana v. Narles W. Coleman, cause number 64D04-1210-FD-10158.

On July 30, 2013, Judge David L. Chidester sentenced Respondent, in State of Indiana v. Narles W. Coleman, cause number 64D04-1210-FD-10158, to 365 days in Porter County jail with time served but for 60 days suspended, 60 days of community service, $500 fine, costs of $218 and twelve months of probation.

(Mike Frisch)

June 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Another Day, Another Censure In New Jersey

Censure has been imposed by the New Jersey Supreme Court for conduct described in a letter of consent issued by the Disciplinary Review Board

Here, although respondent was guilty of misconduct in ten client matters, the Board considered, in mitigation, that: (I) prior to leaving the Seigel Capozzi law firm, respondent updated the firm on the status of his files; (2) respondent cooperated with the OAE; (3) at the time of his violations, respondent suffered from an undiagnosed severe depression until 2013, when he was diagnosed, and then received intensive inpatient and outpatient treatment; (4) respondent’s treating physician provided a report in which he opined that respondent’s improved condition rendered him capable of practicing law; (5) there was no proof that any of the clients suffered monetary damages; (6) respondent was contrite; and (7) respondent has no history of discipline. The Board, thus, determined that a censure was warranted and required respondent to provide proof to the OAE of his continued treatment for depression through 2016.

 Censure for misconduct in 10 client matters is a very lawyer-friendly disciplinary response notwithstanding the mitigation. (Mike Frisch)

June 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, June 21, 2016

Dunn Not Done: California Bar Saga Continues

Law360 reports

The former California state bar director who alleged that he was fired for exposing the organization's ethical violations can pursue his claims that the bar and some of its leadership retaliated against him and wrongfully fired him, an arbitrator ruled on Friday.

JAMS arbitrator Edward A. Infante found on Friday that Joe Dunn, the State Bar of California's former executive director, can move forward with three claims related to his employment contract, including one allegation that he was retaliated against after digging up evidence that the chief trial counsel Jayne Kim was editing records to clear a backlog of disciplinary cases.

Infante, a former chief magistrate judge of the U.S. District Court in the Northern District of California, also allowed claims related to Dunn's firing to continue against the bar's president, Craig Holden. Dunn had sufficiently bolstered his accusation that Holden acted outside his role at the bar to attack the former state senator-turned-executive director, according to the decision.

Because those claims were sufficiently alleged at this stage, the arbitrator can't decide them on their merits at this point, Infante found. "Based on the facts alleged in the [amended notice of claims], the arbitrator cannot determine, as a matter of law, that Mr. Holden was acting within the scope of his authority when he engaged in the alleged conduct," he wrote.

Dunn's amended notice of claims included violations of the state labor code, breach of fiduciary duty, intentional interference with contractual relations and breach of implied covenant of good faith and fair dealing.

Infante shot down for the fourth and last time Dunn's claim that the bar had breached its fiduciary duty in firing him, without granting him permission to amend it, according to filings in the case. 

Along with seven unnamed whistleblowers, Dunn had sued the bar in November 2014 alleging that its chief trial counsel, Jayne Kim, purged the public disciplinary case backlog to inflate her productivity and failed to actively prosecute unlicensed lawyers preying on immigrants after the state Legislature passed a bill  creating new criminal punishments for the practice. Kim said in late April that she would resign, though the bar trustees had voted to approve her for a second term.

Dunn also claimed that bar President Craig Holden, a partner at Lewis Brisbois Bisgaard & Smith LLP, targeted Dunn and others for speaking out.

An amended complaint included new allegations that Beth Jay, a retired principal counsel to the chief justice of the California Supreme Court, had "intentionally interfered with Senator Dunn's employment at the state bar."

A California judge determined a year ago that the dispute fell "squarely" within the scope of Dunn's employment agreement and granted a defense motion to compel arbitration. During the arbitration proceedings, the bar and Holden filed a demurrer seeking a dismissal of the suit, which they called retaliation for justified termination.

In April, Infante rejected Dunn's case but permitted the former state senator to rewrite some of the claims to meet pleading standards, according to that decision.

Moez Kaba of Hueston Hennigan LLP, who represents the bar, noted that Dunn's allegations must be accepted as true at this stage, even if there's no evidence to support them.

"Even under this standard, the arbitrator narrowed the case by granting the demurrer with respect to Mr. Dunn's breach of fiduciary duty claim," Kaba said. "With respect to Mr. Dunn's remaining claims, when the facts are presented to the arbitrator, either at summary judgment or trial, we are confident that the bar and Mr. Holden will succeed."

The current president of the state bar, David J. Pasternak, said in a statement that his organization appreciated the arbitrator's decision to narrow the case.

"As for the remaining claims, we remain confident, as we have been all along, that we will prevail when all of the facts are made known through the discovery process,"

Pasternak said. "In the meantime, we will continue focusing our efforts and energies on public protection."

Attorneys for Dunn did not immediately respond to requests for comment on Monday.

Dunn and the unnamed whistleblowers are represented by Mark J. Geragos and Ben J. Meiselas of Geragos & Geragos PLC.

The bar and Holden are represented by John Hueston, Moez Kaba, Joe Reiter and Stanley Chen of Hueston Hennigan LLP.

The arbitration is Dunn v. State Bar of California et al., case number 1100083130, before JAMS Arbitration.

(Mike Frisch)

June 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Act Of Will

The Illinois Administrator has charged an attorney with creating a false will

Between approximately 2000 and 2011, Respondent represented John J. Waters ("Waters") in various legal matters, including matters related to real estate owned by Waters. Waters held title to, or claimed possession of, more than a dozen parcels of real property situated throughout Illinois. During at least that same time period, Respondent also represented Paul Iverson ("Iverson"), a friend and business associate of Waters, in his own legal matters, including litigation and real estate matters.

On October 15, 2011, Waters died in Cook County, Illinois.

At the time Waters died, he was survived by three brothers, Daniel Waters, Gerald Waters, and Edmund Waters, and a sister, Marguerita Waters ("heirs to the Waters Estate").

Prior to November 14, 2011, Respondent drafted the purported last will and testament of Waters, which was dated March 8, 2010 ("2010 will"). The 2010 will named Paul Iverson the executor of the Waters Estate and bequeathed all assets of the Waters Estate to Iverson.

Waters did not sign his 2011 will. Prior to November 14, 2011, Respondent, or someone acting at his direction, signed the purported signature of Waters to the 2010 will.

At all times alleged in this count, the purported 2010 will of Waters was false, and Respondent knew it was false, as Respondent either signed, or caused someone else to sign, the purported signature of Waters to that will.

Prior to November 14, 2011, at the request of Respondent, Alexander Gloeckler and Mohinder Rakalla signed a document attesting that they had witnessed Waters sign the purported 2010 will.

At all times alleged in this count, the attestation of Gloeckler and Rakalla...was false, and Respondent knew it was false, as Respondent knew that Waters did not sign the 2010 will, but he instructed Gloeckler and Rakalla to attest that they had witnessed Waters sign the will.

He also is charged with submitting false evidence, assisting criminal conduct, conflict of interest and failure to cooperate with the investigation. (Mike Frisch)

June 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 20, 2016

Due Process Denied To Defense Attorney

The Connecticut Appellate Court reversed a finding of misconduct and 20-day suspension imposed against a criminal defense attorney who was alleged to have violated a court  ruling by mentioning his client's acquittal on related federal charges.

The defendant attorney, John R. Williams, claims in relevant part that his right to due process was denied when the court failed to provide him with proper notice of a disciplinary hearing and a meaningful opportunity to be heard before rendering a judgment suspending him from the practice of law for twenty days. We agree and, accordingly, reverse the judgment of the trial court and remand the case for a new hearing.

The problem arose during the cross-examination of a cooperating witness

‘‘Q: Do you remember that Judge Shea said, ‘I also want to add, I echo what Mr. McConnell said. While your assistance did not result in a conviction, the fact is—’ ‘‘[The Prosecutor]: Objection. ‘‘The Court: Sustained. The jury will step out.’’ (Emphasis added.) After the jury was excused, the colloquy continued:

The Court: Mr. Williams, I respect you a great deal, but you have expressed your outrage several times already at various things that happened. I think that this is actually pretty outrageous, because we specifically addressed the question of whether the jury should be informed of what [was] the outcome of the federal trial before, and it was agreed that you were not to mention that without the specific consent of the court, and you— you should know that if you wanted to get into this, you needed to obtain my consent prior to mentioning this in front of the jury.

The attorney also mentioned that his client had not been convicted on federal charges in closing argument.

Then

On October 9, 2014, the jury returned a guilty verdict on all counts against  [client] Reyes, and the court then scheduled a bail hearing for 2 p.m. that same day. Immediately following the bail hearing and the release of Reyes on bail with certain conditions, the court excused the prosecutor, and it requested that Williams remain in the courtroom. Immediately thereafter, the court proceeded to hold a hearing on Williams’ actions and the possibility of sanctions.

Williams told the court that he was not prepared to go forward at that time because he ‘‘had not anticipated that this hearing would be held this afternoon because [the court] had previously indicated that [he] would be given an opportunity [to] obtain such transcripts as [he] needed and review them in preparation [for the hearing].’’ Williams then informed the court that he had ordered the transcripts as the court had instructed him to do, but that they had not yet been delivered. As a result, he explained, he, therefore, had not had time to prepare for a hearing. Notwithstanding Williams’ protestations, the court proceeded with the hearing, found that Williams had violated the order of the court on more than one occasion, and sanctioned him by suspending him from the practice of law for twenty days. This appeal followed.

On appeal, Williams argues that the court caught him off guard at the end of his client’s bail hearing by immediately holding a hearing regarding his actions during his client’s trial. He argues that he tried to explain to the court that he was not prepared and that the court specifically had told him that he would be given time to obtain a transcript and to prepare for a hearing that would be scheduled after Reyes’ trial. He contends that trial does not end until after sentencing and that it certainly does not end with a contested bail hearing. He further argues that he ‘‘was given no opportunity at all to prepare to meet the accusations against him, and, in fact, was not even given notice that his summation would be considered a separate ground for discipline.’’ Under the particular circumstances of this case, we agree that Williams was not given adequate notice of and time to prepare for the hearing in which the court found him in wilful violation of its orders and ordered him suspended from the practice of law for twenty days.

The court agreed

In sum, although the court clearly wanted to address this extremely serious matter as soon as possible, it, nevertheless, did not rule summarily at the time of the conduct that it found offensive.6 See Practice Book § 2- 45. Rather, the court told Williams that he should order the relevant transcripts and be prepared for a hearing that would be scheduled after Reyes’ trial and at which Williams would be given the opportunity to try to explain why his conduct was not a violation of the court’s order. Williams, thus, was entitled to a properly noticed hearing regarding his conduct and whatever sanction might be appropriate, and he was entitled to time to prepare for that hearing. Accordingly, the judgment must be reversed and the case remanded to the trial court for a new hearing.

(Mike Frisch)

June 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Excess Zeal

A panel of the Maine Board of Bar Overseers has publicly reprimanded an attorney

Respondent Beth A. Maloney, Esq., of Kennebunkport, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Maloney was admitted to the Maine Bar in 2002 and is a solo practitioner. In addition to being a lawyer, she is also a published author.

By way of background, for several years prior to her admission to the Maine bar, Attorney Maloney practiced transactional law in California. Such a practice resulted in her having virtually no courtroom experience as a trial lawyer. For most of Attorney Maloney's time in Maine, the bulk of her practice has been as a Guardian ad litem in M. R. S. Title 22 protective custody matters, representing the best interests of children in cases of alleged abuse and neglect.

The complaint matters at issue in this proceeding arose out of Attorney Maloney's trial conduct in two highly contested family law matters involving child custody concerns.

The attorney had been sanctioned for pursuing meritless claims

Of note, Attorney Maloney has never had any client file a complaint against her. Since the time of these cases at issue, she has referred all inquiries for representation in family matters to other attorneys. At the disciplinary hearing, Attorney Maloney candidly agreed that her conduct was regrettable and that her zeal for her clients' causes had interfered with her professional judgment. She apologized for her behavior and had already determined to no longer accept contested family matters. In the unlikely event that determination changes, Attorney Maloney will engage co-counsel for such contested matters.

(Mike Frisch)

June 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Harvard To Jail And Disbarment For Nursing Home Fraud

An attorney convicted of federal health care fraud has been disbarred by the Georgia Supreme Court.

Parent Advocates reported on the criminal case.

A federal judge this week convicted George D. Houser, a Harvard-educated lawyer and member of the State Bar of Georgia, of failing to provide services in three nursing homes for which he collected $32.9 million in Medicare and Medicaid payments. Houser, 63, was also convicted of failing to pay $800,000 in employee payroll taxes and failing to file personal income tax returns. After a monthlong bench trial, Judge Harold L. Murphy of the Northern District of Georgia issued his order with findings of fact and conclusions of law on Monday, according to a statement released Tuesday by the U.S. attorney's office.

The statement said it was the first time a defendant has been convicted in a federal court trial for submitting payment claims for "worthless services." The court concluded that the evidence showed "a long-term pattern and practice of conditions at defendant's nursing homes that were so poor, including food shortages bordering on starvation, leaking roofs, virtually no nursing or housekeeping supplies, poor sanitary conditions, major staff shortages and safety concerns that, in essence, any services that defendant actually provided were of no value to the residents." Sentencing has been tentatively set for June. Houser faces a maximum sentence of 20 years in prison and a $250,000 fine on the health care fraud charges, the government statement said. Houser declined to comment Wednesday. He previously has denied wrongdoing in the criminal case and in a related civil case in which he and his company were ordered to pay $43.5 million to the family of a man found to have died of malnourishment and dehydration in one of the nursing homes. Houser had court-appointed counsel in the criminal case, Michael Trost and William Morrison. Trost said Wednesday that Houser's case will be appealed, although he was not sure who would handle it. He added that the government's "novel civil theory of fraud" is likely to be a key issue.

The two assistant U.S. attorneys who prosecuted the criminal case—Glenn Baker and William Traynor—presented evidence indicating that Houser diverted $8 million of federal health care reimbursements to his own personal use, according to the U.S. attorney's statement. The items he is accused of purchasing with the money include: $4.2 million for real estate on which he planned to develop hotels in Atlanta, Brunswick and Rome; a $1.4 million house in Atlanta for his ex-wife in lieu of alimony; two Mercedes-Benz automobiles, furniture and vacations for himself and his current wife. The government also accused Houser of writing bad checks to employees, leading to staffing shortages; failing to pay vendors for such essentials as utilities and garbage pickup; and failing to repair leaking roofs and broken air-conditioning units. The nursing homes—two in Rome (Mount Berry and Moran Lake, with 100 patients each) and one in Brunswick (Wildwood, with 200 patients)—were part of a company Houser inherited from his parents, who started the business in 1963. The nursing homes have since been closed by the Georgia Department of Human Resources Office of Regulatory Services.

The U.S. attorney's statement said a state surveyor who inspected the Moran Lake nursing home in Rome testified that the heat, flies, filth and stench created an environment that was "appalling and horrendous." "It almost defies the imagination to believe that someone would use millions of dollars in Medicare and Medicaid money to buy real estate for hotels and a house while his elderly and defenseless nursing home residents went hungry and lived in filth and mold," U.S. Attorney Sally Quillian Yates said in the statement. "We will continue to aggressively protect our most vulnerable citizens and hold accountable those who prey on the elderly and steal precious health-care dollars." Houser didn't fare any better before a jury in a 2010 civil trial in Floyd County.

A Rome Judicial Circuit Superior Court jury returned a $43.5 million verdict against Houser and his company, Forum Group, in favor of plaintiff Loretta Turhune. Her father, Morris Ellison, died eight months after entering Moran Lake nursing home for post-operative rehabilitation. The medical examiner testified at the trial that the autopsy revealed Ellison died of malnourishment, dehydration and an undiagnosed, untreated broken hip. Turhune's lawyers, Michael A. Prieto of Perrotta, Cahn & Prieto in Cartersville and Stephen G. Lowry of Harris Penn Lowry DelCampo, said their post-trial conversations revealed that jurors were "absolutely disgusted."

The plaintiffs lawyers have had difficulty collecting that verdict, however. Houser filed for bankruptcy protection in the middle of the trial, claiming between $20 million and $100 million in assets. And although Prieto and Lowry staked their claim with the bankruptcy court, it was superseded by the government's indictment, which includes a forfeiture provision. Houser represented himself in the civil trial, and also in an unsuccessful motion for a new trial last October. He filed briefs blaming the patient, who he claimed was difficult to care for because of "violent dementia," and accusing Rome Judicial Circuit Judge J. Bryant Durham Jr. of mishandling his trial.

A 20-year sentence was imposed in the criminal case as reported in the Examiner.com.

The conviction was affirmed by the United States Court of Appeals for the Eleventh Circuit.

The federal appeals court characterized the conditions in the facilities as "barbaric" and "uncivilized ." Further, the court rejected the argument that the "worthless services" charge was void for vagueness

As the defendants in Chesbrough did, Mr. Houser sought reimbursement from Medicare and Georgia Medicaid for required services--pharmaceutical, diagnostic, medical and dietary--that simply were not provided.

(Mike Frisch)

June 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 18, 2016

Reinstatement Denied

An application for reinstatement of a suspended attorney has been denied by the Rhode Island Supreme Court

On March 23, 2016, the petitioner filed his reinstatement petition. However, the petitioner has not met all of the requirements for reinstatement set forth in Article III of the Supreme Court Rules. Accordingly, his petition is not ripe for review by this Court.

We also note that there are several disciplinary matters currently pending before the Supreme Court Disciplinary Board regarding conduct of the petitioner that occurred both before and after our order of suspension. Pursuant to Rule 16(c), on a petition for reinstatement the petitioner “shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this State and that his or her resumption of the practice of law within the State will be neither detrimental to the integrity and standing of the Bar or the administration of justice nor subversive of the public interest.” Those pending matters must be brought to a conclusion prior to our consideration of this reinstatement petition.

Furthermore, we note that on March 6, 2015, a justice of the Superior Court issued sanctions against the petitioner pursuant to Rule 11 of the Superior Court Rules of Civil Procedure in a number of different cases based, in part, upon findings that the petitioner made misrepresentations to the court. The total amount of the sanctions imposed is $19,267.06. The petitioner filed an appeal in only one of those cases in which the sanction was $1,000. We affirmed that sanctions’ order when that appeal was before us. Wells v. Blanchard, No. 2015- 138-M.P. (April 15, 2016). The petitioner did not appeal from the remaining sanction orders, and they have become final orders of the court. The sanctions remain unsatisfied.

(Mike Frisch)

June 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 17, 2016

Utah Sanctions Prosecutor

A seven-month suspension of a prosecutor was affirmed and reversed in part by the Utah Supreme Court.

Tyler James Larsen was a prosecutor with the Davis County Attorney’s Office from 2007 to 2010. He was charged with two sets of violations of the Utah Rules of Professional Conduct in 2012. One charge alleged a misstatement of fact in violation of rule 3.3. The other alleged a failure of a prosecutor to make a timely disclosure of exculpatory evidence to the defense under rule 3.8. In the proceedings reviewed on this appeal, the district court found that Larsen had violated both rules. And it imposed a sanction of suspension for seven months—thirty days for the rule 3.3 violation and six months for the rule 3.8 violation.

The court overruled the false statement finding

...the district court erred in implicitly treating a reckless misstatement as the legal equivalent of a knowing one. It did so in concluding that Larsen’s misstatement was “knowing or reckless,” and in basing its determination of a violation of rule 3.3 on the finding that Larsen could have avoided making a misstatement if he had undertaken a “reasonably diligent inquiry.” This too was error. Our rules do not treat knowledge and recklessness as equivalents. They state that “‘[k]nowingly,’ ‘known’ or ‘knows’ denotes actual knowledge of the fact in question.” UTAH R. PROF’L CONDUCT 1.0(g) (emphasis added).

We reverse on the basis of this definition. Actual knowledge is distinct from recklessness. And our rules require actual knowledge to sustain a charge under rule 3.3. So we reverse on the ground that the district court conflated knowledge and recklessness and did not find that Larsen made a knowing misstatement.

But affirmed the failure to timely disclose

In so doing we reject Larsen’s plea for a reduced sanction. The prosecution’s duty of disclosure under rule 3.8(d) is an important one. And the district court found that Larsen’s violation of this rule was not only knowing but intentional. That strikes us as a sufficient reason to sustain a suspension and to reject Larsen’s request for a lesser sanction such as a public reprimand.

Yet we also reject OPC’s—and amicus Utah Association of Criminal Defense Lawyers’—request for more serious sanctions. OPC has asked for the imposition of a three-year suspension in this case. And amicus seeks an outright disbarment. Both requests are based on the same essential point—that the prosecutor plays an important role in our system of justice, and that a failure to disclose exculpatory evidence can do substantial harm to the administration of justice. We do not disagree with these premises. But we nonetheless affirm the six-month suspension imposed in this case. We do so on three grounds: (1) a suspension from the practice of law, even for six months, is a serious penalty for a practicing lawyer; (2) there are at least some mitigating circumstances in this case; and (3) the precedents involving sanctions against prosecutors under rule 3.8(d) include a few suspensions for six months but none for any greater period, and no disbarments

 The court noted that there are no precedential Utah cases but rejected the proposed approach of the Office of Professional Conduct

We see little upside and plenty of downside in the proposed requirement of a single, overarching sanction proposed by OPC. The downsides are apparent in our review of the decision below. If the district court had imposed a single, overarching sanction, our review on appeal would have been hampered in a couple of respects: We could not have identified the separate sanction imposed for the count on which we reverse and remand, and we could not have evaluated the propriety of the sanction imposed on the count on which we affirm. The latter point seems especially significant. Our review as to the propriety of a sanction imposed for a violation of one of our rules of professional conduct would be substantially impaired if we had before us only a single, overarching sanction in a case involving multiple ethics charges.

For these reasons we reject the OPC’s cross-appeal. We affirm the district court’s decision to impose separate sanctions for the separate charges at issue in this case—and, indeed, urge future courts to follow the pattern that was followed here, as it will aid our review of attorney discipline cases on appeal.

(Mike Frisch)

June 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Incompetent Defense Leads To Lengthy Suspension

The New York Appellate Division for the Fourth Judicial Department found that an attorney had incompetently represented a DUI client

Respondent admits that, in July 2012, the client was in the custody of two sheriff’s deputies and made certain statements to the deputies that were recorded by a body camera worn by one of the deputies. Respondent admits that the prosecution subsequently alleged that certain of those statements constituted threats against the deputies and, on at least two occasions thereafter, the prosecution provided respondent with a DVD containing a video recording that depicted the alleged threats. Respondent also admits that the video recording was received into evidence in one of the criminal proceedings in which respondent represented the client. Respondent admits that, although he subsequently moved the trial court for an order suppressing the alleged threats, he failed to view the video recording prior to making the motion or prior to the Huntley hearing. The Referee found that respondent called his client as a witness at the Huntley hearing without advising the client as to the existence of the video recording and, on direct examination, the client testified that he had not made the alleged threats to the deputies and that the deputies had failed to advise him of his Miranda rights. On cross-examination by the prosecutor, the client again denied that he had made the alleged threats. Respondent admits that, had he viewed the body camera video recording prior to the Huntley hearing, he would have known that one of the deputies had issued Miranda warnings to the client and that the client had made the alleged threats to the deputies. He also would have known that the client had made the alleged threats because he was unable to make bail, rather than as a consequence of questioning or prompting by law enforcement. Respondent further admits that the record of the Huntley hearing indicates that he mistakenly believed that the prosecution was obligated to establish the voluntariness of the client’s statements by only a preponderance of the evidence, rather than beyond a reasonable doubt. In addition, in cross-examining a witness for the prosecution, respondent questioned only the ability of the witness to identify respondent’s client as the perpetrator of the alleged criminal conduct and did not ask questions concerning the voluntariness of the client’s statements to law enforcement. Respondent admits that the client was charged with perjury based on the client’s testimony at the Huntley hearing and was thereafter convicted, upon a jury verdict, of two counts of perjury in the first degree. Although the client was sentenced to a term of incarceration on the perjury conviction, that term was to run concurrently with a longer term of incarceration that was imposed for certain other criminal conduct of the client.

The attorney incompetently handled a second criminal matter and had a record of prior discipline.

He was suspended for two years and until further court order. (Mike Frisch)

June 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

No Obvious Miscarriage Of Justice

The District of Columbia Court of Appeals disbarred an attorney who had not participated in the disciplinary process.

Having agreed with a Hearing Committee’s findings and conclusion that respondent, Eleanor Nace, violated District of Columbia Rules of Professional Conduct 1.1(a)-(b), 1.3(a)-(c), 1.4 (a), 1.15 (a) & (e), 1.16 (d), 8.1 (b), and 8.4 (d), the Board on Professional Responsibility (“the Board”) recommends that respondent be disbarred from the practice of law in the District of Columbia. The Board agreed with the Committee’s find that, among other forms of misconduct, respondent recklessly misappropriated her client’s entrusted funds, conduct that in itself generally mandated disbarment under In re Addams...

A noteworthy footnote

respondent did not participate in the proceedings either before the Hearing Committee or before the Board. See D.C. Bar Rule XI, § 8 (f) (“Failure to answer and default”). Recently, in In re Green, No. 15-BG-894 (D.C. Apr. 21, 2016), we held that where an attorney has failed to make an argument before the Board, he has forfeited his right to raise that argument before us and that any safety valve would be limited to an obvious miscarriage of justice. If that be so where, as in Green, an attorney did file an exception with us, a fortiori the same standard would appear to apply where no exception was filed with us and the respondent defaulted at both levels of earlier proceedings. No miscarriage of justice is evident here.

(Mike Frisch)

June 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 16, 2016

"Everyone Hates You"

It seems like a busy time in the Arizona disciplinary system in matters involving excess emotion on the part of attorneys both in and out of the courtroom.

A 30-day suspension was imposed for behavior in two matters, one involving misconduct in defending a DUI case.

Mr. Mehrens represented a client charged with two counts of aggravated DUI, class 4 felonies. Deputy County Attorney, Soo Chang, originally offered a standard plea to one count of endangerment, a class 6 undesignated felony, which could ultimately be designated a misdemeanor, and one count of DUI, a class 1 misdemeanor. Mr. Mehrens would testify acceptance of the plea was only conditioned upon confirmation of the B.A.C. by the blood tests being over the legal limit. She agreed to keep the plea open pending the results of blood tests confirming the B.A.C. was over the legal limit. In anticipation of the status conference, Deputy County Attorney Chang staffed the case with her supervisor, Deputy County Attorney, Amy Diederich, who told her due to a change in office policy the endangerment had to be designated a felony.

On May 27, 2014. Ms. Chang and Mr. Mehrens met before the status conference in the negotiation room. Ms. Chang informed Mr. Mehrens of the change in office policy and that the endangerment count would be required to be designated a felony. Mr. Mehrens protested and demanded to speak with Ms. Chang’s supervisor. She called her supervisor, Ms. Diederich. In the agreement Mr. Mehrens states he had an unpleasant professional relationship with Ms. Diederich. The agreement states, if this matter proceeded to hearing, Ms. Diederich would testify when she entered the negotiation room, Mr. Mehrens yelled he was taking the original offer, the State could not change it and continued to yell while Ms. Diederich tried to explain the reason for the change. She would testify Mr. Mehrens accused her of being unprofessional, unethical, a “scumbag” and a “pig”. When Mr. Mehrens asked for her name, he replied, “Oh, that’s right. Everyone hates you.”

Mr. Mehrens admits that he portrayed and held himself out as being extremely upset and that his conduct was deliberate. He does not deny he yelled at Ms. Diederich and affirms he used “negative” language. He does not recall calling her these two names. He acknowledges he may have had an angry tone. Under the conditional admissions he acknowledges he was angry and may have used “negative” language.

If this matter went to hearing, Attorney Tyler Harrison would testify he observed Mr. Mehrens “yelling” at Ms. Diederich, “calling [her] names,” and “yelling in a voice loud enough for everyone in the room to hear” and Mr. Mehrens told her everyone “hates” her. He would also testify Mr. Mehrens “got in her face,” was “stomping around” and “parading to make a show.” Mr. Mehrens admits he left the negotiation room, went to the courtroom and affirmed the preliminary hearing date without calling the case on the record and then left.

The attorney stipulated to a Rule 4,4 (a)  violation. Also, it appears that not everyone hates Ms. Diederich. 

A separate matter

...Mr. Mehrens conditionally admits he was involved in an accident, arrested by police for leaving the scene of an accident, charged with five counts and convicted of three. Those were failure to yield in an intersection, A.R.S. § 28-772; DUI BAC over .08 within two hours of driving, A.R.S. § 28-1381; and leaving the scene of an accident, A.R.S. § 28-662. It is his second DUI in the past seven years. The criminal conviction is on appeal. Despite that appeal, for purposes of this agreement only, he admits the conviction of the DUI constitutes a violation of E.R. 8.4(b) [Misconduct] [It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.]

The sanction includes probation and was imposed based on conditional admissions.

It appears that the conditional agreement does not address other rule 4.4 (a) violations alleged in the complaint.

In one instance, the complaint alleged that the attorney opined that a prosecutor had "essayed a ham-fisted apercu... a nimble writer, of course, avoids such gaucheries." He also allegedly speculated in a pleading that a criminalist  was unavailable because she "ha[d] plans to get her nails done."

Glad I'm not supervising this probation. (Mike Frisch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Obsession To Suspension

An Arizona Hearing Panel has imposed a suspension of six months and a day

The single count complaint arose out of Ms. Killion’s actions over several years. The actions revolve around the unrefuted extreme abuse of alcohol by Ms. Killion, her threats to have Complainant Bart Barrett killed, a man with whom she had occasional sexual relations, her threats to misuse her position as an attorney to intimidate or cause him harm, and her long term and wide reaching harassment of him, his family members, and associates.

The attorney's initial response

Ms. Killion filed her answer on June 24, 2015. [See Response to Complaint filed June 24, 2015.] In her answer she requested: “protection against the State Bar of Arizona and any and all persons associated with the State Bar of Arizona”; “reasonable attorney salaries that Respondent could have earned but for Complainant’s actions from the year 2005 to retirement age”; “for all retirement funds that Respondent could have accrued but for Complainant’s actions from the year 2005 forward”; and “for all reasonable attorney salaries and law school tuition and costs that Respondent could have earned or has expended if the State Bar of Arizona admitted Respondent to practice law imprudently and/or with malicious or careless intent.” She also sought general, special, and punitive damages against the State Bar.

The panel

We find Ms. Killion’s harassing and threatening Mr. Barrett with criminal charges based on her “large file” of evidence in an effort to intimidate him is wrongful, with or without an existing attorney-client relationship. She also harassed others in order to further harass him. Attorneys bear ethical responsibility to the public and profession. When a member of the public knows someone is an attorney and is subsequently threatened by that attorney, the Panel cannot see how this would not be a misrepresentation of an attorney’s power or a dishonest use of legal knowledge. Ms. Killion used her status as an attorney as a tactic to encompass her target in fear of legal ramifications. [Testimony of Mr. Barrett, stating his fear of Ms. Killion using her abilities as an attorney because she was “potent with the pen”.] Ms. Killion also used an alias to harass individuals. [SB Ex. 18.] The Panel finds Ms. Killion violated ER 8.4(c)...

The Panel finds Ms. Killion went beyond negligence in her misconduct and acted knowingly, if not intentionally: her harassing behavior toward Mr. Barrett and those associated with him; the litigation threats toward Mr. Barrett through the use—and abuse—of her legal training; and abuse of her position as an attorney to impose fear on individuals.

The actions of Ms. Killion were obsessive. Whether caused solely by her use of alcohol or for some other underlying cause, Ms. Killion fixated on Mr. Barrett and acted out that fixation with harassing behavior to others to control him. These behaviors were apparent to us throughout the hearing. We are concerned at the imbalance demonstrated and her conduct in this proceeding. We find the evidence clear and convincing she violated the Ethical Rules failing her duty to the public and legal profession. The commentary to ER 8.4 states a “lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.”

The appended charging document recites some of the communications at issue, such as: "His Dick? Small. But did I love him? Yes. But you undid that. And now I will undo your life [name omitted]...and plus his dick barely works anyway."

The attorney had been an associate at Lewis & Roca. (Mike Frisch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unsubstantiated Medical Claims Draw Three-Year Suspension

An Arizona attorney who made false statements to secure postponements in civil and bar matters was suspended for three years by the Presiding Disciplinary Judge.

Ms. Lyons was asked numerous times to substantiate she had cervical cancer. This request was based on Ms. Lyons’ use of her medical condition to request an extension of time to respond to the State Bar in count one. Ms. Lyons told the State Bar she “received devastating news regarding [her] on-going battle with cervical cancer in that additional surgery and treatment is needed and, if not removed from the surrounding organs, the cancer has been deemed terminal.” In count two, she used her cervical cancer as a justification for a continuance before Judge Trebesch.

After numerous requests for documentation to support this very serious medical condition, Ms. Lyons has failed to do so, even refusing to sign releases so the State Bar could obtain the records with no upfront expense to Ms. Lyons. We find Ms. Lyons was using this horrific, and apparently fraudulent, diagnosis to garner sympathy and inappropriate delays for her benefit and for her client’s benefit, as the only issue left to be determined in count two was the child support her client had to pay. [Exhibit 10, Bates 414 ; Exhibit 11, Bates 44.] Ms. Lyons also cited the death of her father as one of the substantial losses she had endured. The State Bar’s investigation revealed that the person who passed away was not her father.

The attorney had earlier been suspended for lapses in her CLE obligations. (Mike Fr isch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

New Jersey Bar Sanctions: No Suspension When Attorney With Prior Discipline Finds New Rules To Violate

An attorney with a record of prior discipline that included failure to supervise an embezzling employee has been censured by the New Jersey Supreme Court.

Notably, the court followed the recommendation of the Disciplinary Review Board, which had rejected the District Ethics Committee's call for a six-month suspension.

In recommending a six-month suspension, the DEC placed great emphasis on respondent’s ethics history -- a reprimand (failure to supervise, negligent misappropriation, commingling, and recordkeeping violations) and a three-month suspension (charging improper expenses, failing to promptly deliver funds, recordkeeping violations and misrepresentations to ethics authorities), finding that his  prior suspensions  had little "impact" on him. However, the earlier cases involve different types of misconduct, from that present here and, therefore, cannot be said that he failed to learn from his prior mistakes.

 The board report reflects the rather sad state of New Jersey attorney ethics

In sum, the totality of respondent’s misconduct in both matters include violations of RP__~C 1.2, RPC 1.3, RPC 1.4(b), RP__C 3.2, RPC 8.4(c), and R. 1:21-IA(3). The only issue left for determination is the proper quantum of discipline. Generally, a misrepresentation to a client requires the imposition of a reprimand. In re Kasdan, 115 N.J. 472, 488 (1989). A reprimand may still be imposed even if the misrepresentation is accompanied by other ethics infractions. (citations to the many disheartening supporting precedents omitted)...

Had this been respondent’s first brush with the ethics system, a reprimand could have been justified. However, his disciplinary history warrants increasing the discipline to a censure.

Member Gallipoli and Member Zmirich voted to impose a sixmonth suspension. Vice Chair Baugh and Member Clark did not participate.

Hey New Jersey lawyers with prior serious discipline. Make sure you find new rules to violate when you have your third brush with New Jersey bar discipline. (Mike Frisch)

 

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not Disbarment Worthy

The Utah Supreme Court vacated a disbarment order while agreeing that the attorney engaged in misconduct meriting a suspension

Mr. Ciardi’s saga began with an incident in the Fifth District Court in 2011, where he was scheduled to appear to represent a client. Mr. Ciardi was not present when the judge called his case, so the judge dismissed it. During the next roll call, Mr. Ciardi interrupted the judge’s calendar and asked the court to recall his case. The judge told Mr. Ciardi not to interrupt his calendar and to sit down. Mr. Ciardi ignored these instructions and continued to argue with the judge. The judge then ordered Mr. Ciardi to leave the courtroom. As a bailiff escorted Mr. Ciardi from the courtroom, he caused a disturbance. Mr. Ciardi continued to yell and make disparaging remarks about the judge in the hallway outside the courtroom.

Mr. Ciardi then went to the clerk’s office and became belligerent with the clerk. The clerk found it necessary to request the assistance of a bailiff to deal with him. The bailiff asked Mr. Ciardi to leave the courthouse numerous times, but he refused and continued to yell at the bailiff and make disparaging remarks about the judge. A second, and then a third, bailiff was called to the clerk’s office, where the incident lasted approximately one hour. Eventually, two bailiffs escorted Mr. Ciardi out of the courthouse while he yelled obscenities at the bailiffs in front of members of the public.

He entered an Alford plea to disorderly conduct but at a bar screening panel hearing

At the hearing, Mr. Ciardi continued to behave badly, making disparaging remarks about the fifth district judge and the court, calling the latter’s proceedings “slipshod, amateurish” and, in the case of appeals from justice courts, “sham appeals.” Mr. Ciardi also expressed his disdain toward the screening panel members and the proceedings before the panel, referring to the hearing as a “complete sham” and a “joke proceeding.” He also repeatedly interrupted witnesses and referred to them as liars and idiots.

The court

We believe that a lengthy suspension, certainly one as long as the two years that have passed since the district court disbarred Mr. Ciardi, is an adequate response to the specific behavior charged and found by the district court. We therefore reinstate Mr. Ciardi’s right to practice law in the State of Utah as of the date of this opinion.

We note that in so holding, we do not take the view that there should be no consequences for Mr. Ciardi’s reckless and offensive allegations of bias, discrimination, and incompetence of Utah judges and Utah courts contained in his pleadings before the district court and this court. Should the OPC deem it advisable, these actions would certainly warrant investigation.

 (Mike Frisch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 15, 2016

But Only If You Pass

The Oklahoma Supreme Court has reinstated an attorney who had resigned, but have required him to pass the bar exam

He had resigned  without any charges pending

Due to personal family reasons, Petitioner voluntarily tendered his resignation from the practice of law to the OBA on June 16, 2006. The OBA approved Petitioner's resignation effective July 6, 2006, pursuant to Article II, Section 3 of the Rules Creating and Controlling the Oklahoma Bar Association.1 At the time of Petitioner's resignation, no disciplinary proceedings or grievances were pending against him. However, Petitioner was administratively suspended for failing to pay $100.00 in CLE late fees prior to the effective date of Petitioner's resignation...

In the ten (10) years since Petitioner's resignation, Petitioner has earned his living working in various employment positions. Relying heavily on his work as an instructor, director, and current paralegal, Petitioner advances those law-related duties as evidence of his competency in the law. While the valuable education Petitioner's students receive is related to the law, teaching paralegal courses to non-attorneys and working as a paralegal does not rise to the level of training and competency expected of Oklahoma practitioners. Similarly, Petitioner's additional evidence of competency-namely, that he regularly reads the Oklahoma Bar Journal, other legal publications, and has taken four hours of CLE (including one hour of legal ethics)-falls short of this Court's exacting standard. Oklahoma practitioners are required to take twelve hours of continuing legal education, including one hour of ethics, every year. See Rule 3, Rules for Mandatory Continuing Legal Education, Okla. Stat. tit. 5, ch. 1, app. 1-B. Yet, to date, Petitioner has only completed four hours since his resignation in 2006. Simply put, Petitioner's extended absence coupled with his failure to maintain competency in the law through OBA approved CLE courses weighs heavily against an affirmative finding in favor of Petitioner's competency.

Thus

Petitioner has failed to demonstrate his competency and learning in the law by clear and convincing evidence. In order for Petitioner to demonstrate his competency and learning in the law, Petitioner must retake and successfully pass the Oklahoma Bar Examination. Therefore, Petitioner, Harold Glenn Drain's application for reinstatement is granted contingent upon successful completion of the Oklahoma Bar Examination.

(Mike Frisch)

June 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment In The Side Pocket

An attorney was disbarred by the New York Appellate Division for the First Judicial Department as a result of a felony conviction

Respondent's conviction stems from conduct arising from his activities as the managing partner of Baystar Capital II, L.P. (Baystar), a private investment fund. Baystar primarily made short-term investments but it also invested in several illiquid, difficult-to-value investments, referred to as "side pockets." When these investments were realized, or deemed realized, gains or losses were allocated to investors' capital accounts.

In 2003, Baystar made an $8.4 million "side pocket" investment in Island Fund LLC. By 2006, the Island Fund side pocket investment had generated a return of more than $16 million to Baystar before deductions for expenses and taxes. Without consulting or informing the investors in Baystar, respondent used "a substantial amount" of those funds to invest in other entities, including some in which he had an economic interest. Respondent accounted for such diversions by, inter alia, creating loan notes between the other entities and the Island Fund side pocket. Further, in response to investor inquiries regarding whether Island Fund had made distributions to Baystar, respondent intentionally failed to disclose that such distributions had been made because he did not want investors to question him about his use of the funds. Additionally, respondent admitted that monthly fund updates sent to investors at his direction failed to disclose the monies remitted to Baystar by Island Fund and respondent's use of such funds.

In March 2011, respondent entered into both a deferred prosecution agreement with the U.S. Attorney's Office and a consent judgment with the SEC whereby he agreed to disgorge approximately $12 million and pay a civil fine of $130,000 pursuant to an agreed upon payment schedule. By decision and order of June 20, 2012, respondent was found in civil contempt for failing to comply with the terms of the consent judgment. The court found that, after making some of the agreed upon payments, respondent spent hundreds of thousands of dollars on personal indulgences, including private air travel and vacations (2012 WL 2343668, 2012 US Dist LEXIS 85628 [ND Cal 2012]). By subsequent order, the court appointed a receiver to identify and take control of respondent's assets and income, and to sell those assets to pay down the judgment (2013 WL 4504271, 2013 US Dist LEXIS 118942 [ND Cal 2013]). Respondent's failure to make the required payments under the judgment not only resulted in a contempt finding, but it was deemed a breach of his deferred prosecution agreement and the criminal case against him was allowed to proceed. As noted, respondent plead guilty to wire fraud in that prosecution.

He had failed to report the conviction as required. (Mike Frisch)

June 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)