Thursday, May 21, 2015

Suspended Attorney Must Pass MPRE

From the New York Appellate Division for the Third Judicial Department

Motion by Edward S. Cooper for an order waiving the requirement that he take and attain a passing score on then Multistate Professional Responsibility Examination as a precondition to his reinstatement to the practice of law (see Matter of Cooper, 124 AD3d 1203 [2015]).

In order to qualify for reinstatement to the practice of law, the rules of this Court require that a suspended or disbarred attorney must take and attain a passing score on the Multistate Professional Responsibility Examination (hereinafter MPRE) subsequent to the entry of the order of suspension or disbarment (see Rules of App Div, 3d Dept [22 NYCRR] § 806.12 [b] [ii]; see also Rules of App Div, 1st Dept [22 NYCRR] § 603.14 [b] [3]; Rules of App Div, 2d Dept [22 NYCRR] § 691.11 [c] [2] [i]; Rules of App Div, 4th Dept [22 NYCRR] § 1022.28 [a] [3]; [b] [3]; see generally Rules of Ct of Appeals [22 NYCRR] § 520.9). The MPRE requirement serves two important purposes: it reemphasizes the importance of ethical conduct to attorneys who have been subjected to serious public discipline, and it also reassures the general public that such attorneys have undergone retraining in the field of professional responsibility.

Upon reading Cooper's notice of motion, counsel's affirmation in support dated March 16, 2015 and Cooper's affidavit in support sworn to March 12, 2015, and upon reading the affidavit in response by Alison M. Coan, Principal Attorney for the Committee on Professional Standards, and having concluded that Cooper has not established good cause for the waiver of theMPRE requirement, it is hereby

ORDERED that the motion is denied.

(Mike Frisch)

 

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

Thrilla In Viera

The ABA Journal has a report on proposed sanctions recommended against a Florida judge by the Judicial Qualifications Commission.

The sanction of a small fine is based on an courthouse hallway confrontation between the judge and a public defender.

The commission found insufficient evidence that the judge punched the public defender in the face but seems to believe that the face was, as they say, punch-worthy

Substantial evidence was offered to the effect that Mr. Weinstock was generally rude, disrespectful, incompetent and a highly unlikeable lawyer.

As to the well-respected judge

Many who observed the June 2, 2014, incident were unable to explain why Judge Murphy became so angry. Judge Murphy’s therapist, Michael Ronsisvalle, testified that Judge Murphy has a strong self-preservation mode that is compulsive, and that, related to his service in the military, Judge Murphy reflects that compulsion onto other people, feeling the undeniable need to protect them, too. In addition to this predisposition to self-preserve and to protect others, Judge Murphy was emotionally affected by the shooting of a defendant in front of the Viera Courthouse just months before the June 2, 2014, incident. Shortly after that, Judge Murphy lost his father. In the three weeks immediately preceding the June 2, 2014 incident, Judge Murphy was away from home for 17 days. The last week of his absence from the Courthouse was spent at a Drug and Veteran’s Court Conference in California. Upon his return to Florida the evening of June 1, 2014, he and his wife hosted guests for a dinner party in their home. Dr. Ronsisvalle described this confluence of events as "a perfect storm" that drained Judge Murphy of emotional energy to cope with Mr. Weinstock on June 2, 2014.

In sum

The altercation between Weinstock and Judge Murphy created a remarkable national embarrassment for not only the judiciary of the State of Florida, but for its citizens as well. Statewide and national newspaper and television media reported the public and violent confrontation between a presiding Judge who actually left the bench after saying he would "beat your ass" in the midst of a judicial proceeding, and the Assistant Public Defender who had defied and disrespected the Judge.

The public defender had "some ownership" of the incident. He has resigned from the public defender's office. (Mike Frisch)

May 21, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

All Or Nothing At All

The District of Columbia Court of Appeals stayed an order of disbarment and imposed a three-year period of probation for misconduct that included reckless or intentional misappropriation.

While the normative sanction for such misconduct is disbarment absent extraordinary circumstances, the court affirmed findings that the violations would not have occurred but for the attorney's dysthymia.

To her credit, respondent admitted that she committed all of the violations, including intentional or reckless misappropriation, she has shown remorse for her misconduct, and she has been substantially rehabilitated as a result of psychotherapy treatment.

The probation is subject to monitoring and

Should respondent violate the terms of her probation or commit any additional violation of the Rules of Professional Conduct, she will be subject to revocation of her probation and face disbarment.

In D.C., what is referred to as Kersey-style mitigation is a pretty much all-or-nothing proposition. Either you establish mitigation and get a fully-stayed sanction or you don't and get the full dose of discipline.

This is in part my legacy as I represented Bar Counsel in the Kersey case. (Mike Frisch)

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

Moral Turpitude Or Fee Dispute?

A stayed one year suspension with 90 days of actual suspension was recommended by the California State Bar Court Review Department in a matter where the issue was whether the conduct involved a "fee dispute" or something worse.

The primary issue before us is whether Aldon Louis Bolanos’s improper handling of client monies constituted misappropriation involving moral turpitude or a fee dispute. After a three-day trial, the hearing judge dismissed the moral turpitude charge, characterizing the case as "a fee dispute that got out of control." Giving great weight to the hearing judge’s factual findings, we agree.

Bolanos represented Victoria McCarthy and co-plaintiff Katherine Schmitt in their employment discrimination lawsuit against R. J. Reynolds Tobacco Company (Reynolds). The relationship between McCarthy and Bolanos deteriorated following her settlement on appeal with Reynolds. McCarthy filed a legal malpractice lawsuit against Bolanos and, ultimately, a State Bar complaint.

The hearing judge found that Bolanos committed misconduct when he: (1) represented clients with a potential conflict without their informed written consent; (2) failed to notify McCarthy promptly of the receipt of settlement funds; (3) improperly withdrew disputed funds from his client trust account (CTA); and (4) failed to promptly return McCarthy’s file at her request. Finding significant aggravation and significant mitigation, the hearing judge recommended discipline, including a 90-day actual suspension...

Balancing the serious aggravation with the significant mitigation, we agree with the hearing judge that a one-year suspension, stayed, a 90-day actual suspension, and a one-year probation period is appropriate discipline under the standards and the applicable case law.

The majority

Contrary to our colleague’s dissent, we have not "fashioned a defense to the moral turpitude charge" that would permit attorneys to unilaterally take their fees based on a belief in their entitlement to them. Rather, we have deferred to the hearing judge’s credibility determination, as we must under our rules and Supreme Court precedent, that Bolanos acted without moral turpitude when he held disputed fees outside of his CTA during the brief pendency of the dispute, given his ignorance of the governing rule and his honest belief that the fee modification was unenforceable.

As set forth in her detailed decision, the hearing judge found Bolanos’s conduct to be an example of aggravated mishandling of disputed fees based on a totality of the facts.

The dissent would impose "more significant discipline" for intentional misappropriation

the record in the instant matter belies Bolanos’s assertion that at the time he took the settlement funds from his CTA, he held an honest good faith belief that his agreement to reduce his fee was unenforceable. By his own admission, he took the additional fee: (1) before he advised McCarthy he was reneging on their agreement; (2) without telling her he had removed the funds; (3) without telling her he had co-signed her name to the settlement check; and (4) without even telling her he had received the funds. I thus find his after-the-fact assertion that he took the fees in reliance on the advice of an unnamed attorney, who told him that his agreement to reduce his fees was unenforceable, is pretextual at best.

The District of Columbia Court of Appeals reached a similar conclusion (albeit without reference to moral turpitude) in this 1997 decision. (Mike Frisch) 

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

Wednesday, May 20, 2015

Suspension For Forcible Touching Convictions

An attorney convicted of five counts of forcible touching has been suspended for one year and until further order by the New York Appellate Division for the Second Judicial Department.

In determining an appropriate measure of discipline to impose, we note, as the Special Referee did, that the respondent "apologize[d] for taking up everybody's time and resources." Further, the respondent testified that in the 2½ years since the acts that gave rise to his conviction—which acts all occurred within a short period of time—he has thought "a great deal" about what he did, has taken responsibility for his actions, and is "truly very sorry for the harm [that he] inflicted." Significantly, the Special Referee reported that the respondent is 33 years old; that this was his first and only conviction; that the conviction—which was a misdemeanor—resulted in neither incarceration nor sex offender registration; and that the subject conduct involved neither clients nor coworkers. Moreover, the Special Referee noted the respondent's testimony that he began receiving treatment for his "impulsive issues" before his sentencing, and that he has had no behavioral issues since the underlying issues occurred. The respondent's participation in outpatient sexual behavior rehabilitation was documented and, at the time of the hearing, he was expected to begin "relapse prevention supportive therapy."

Above the Law reported on the case of the so-called Gentleman Groper.

Details here from The Gothamist. (Mike Fr isch)

May 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Wrath Of God And A Lawyer

An attorney who, among other things, harassed his former clients in his effort to collect fees has been suspended for 90 days by the Minnesota Supreme Court.

The court quoted one letter at length

You are merely trying to escape your financial obligation to me. And unless you and your wife never again maintain any type of business or personal account in this country, I will get my money from you. You have mistaken my kindness for weakness. I did not get to where I am today allowing people, like you, to “punk me.” Perhaps you need to be taught a lesson in life. . . . So unless you want me to own all of your future earnings in your shipping business, or at least most of it, you will start by telephoning my brother and telling him that you were wrong about me “messing you up,” and I am demanding this of you. And if I as much as hear from any other source that you have said any negative thing about me, my firm and your very difficult case, I will come after you with “hell and brimstone.” But please do not forget that after you answer to me, you will also answer to God, the Father, who sees all the evil that men do. What I am saying to you is you will additionally suffer divine justice because this is sheer evil and wickedness.

Also

The referee also concluded that Igbanugo violated Minn. R. Prof. Conduct 8.4(d) by improperly disclosing that K.A. smoked marijuana during the hearing on the collection lawsuit...

By its nature, revealing a client confidence is prejudicial to the administration of justice because it undermines trust in the legal profession and the lawyer-client relationship.

The court agreed with the referee that suspension was appropriate

Based on the unique facts of this case, the serious nature of Igbanugo’s misconduct and the harm his conduct caused to his clients, to the public, and to the legal profession, in addition to the aggravating factors found by the referee, we see no reason to deviate from the referee’s recommendation.

(Mike Frisch)

May 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No "Sovereign Citizen" Defense To Unauthorized Practice

The Ohio Supreme Court has enjoined the unauthorized practice of a non-attorney

Relator’s evidence demonstrates that Brown filed multiple documents in three separate cases in the Cuyahoga County Court of Common Pleas and that in some of those documents, she identified herself as attorney-in-fact for the plaintiff.

The three cases involved the interests of one person. The trial courts had found that the conduct amounted to unauthorized practice.

The court agreed

The board found that relator proved by a preponderance of the evidence that Brown had engaged in the unauthorized practice of law. Relator has proved that Brown prepared for others legal documents that were then filed in the Cuyahoga County Court of Common Pleas and also appeared at a pretrial conference on behalf of another. Therefore, we agree that she engaged in the unauthorized practice of law.

The court also found that a civil penalty was appropriate for the third instance

But noting that Brown filed a complaint and petition for emergency injunction in the Marinpietri matter after she had been clearly admonished by two Cuyahoga Court of Common Pleas Court judges for her unauthorized practice of law, and that she claimed she had the right to file the lawsuit as a “sovereign citizen,” the board recommends that we impose a $5,000 civil penalty with respect to Count 3.

The court imposed a $7,000 fine. (Mike Frisch)

May 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2015

Podiatrist - Attorney Gets the Boot

The Indiana Supreme Court has imposed a suspension of at least four years of an attorney who engaged in criminal conduct in connection with his service as elected county clerk

Respondent’s convictions resulted from his use of federal funds to pay himself impermissible bonuses in connection with work he performed in his capacity as the elected Clerk of Lake County, Indiana.

On sanction

The parties cite no facts in aggravation. The Court, however, finds in aggravation that Respondent was an elected official who betrayed the public trust and violated both his oath of office and the oath of attorneys. The parties cite the following facts in mitigation: (1) Respondent’s lack of prior discipline; (2) Respondent’s cooperation with the Commission’s investigation and prompt reporting of criminal charges against him; and (3) Respondent’s repayment with interest of the monies in question prior to the filing of criminal charges against him.

He  must petition for reinstatement after serving the term of suspension.

NWI.com reported that he was sentenced to 18 months.

Senior U.S. District Court Judge James Moody asked himself out loud, why did Philpot, an intelligent, well-trained man familiar with the proper workings of local government commit his crime, and concluded that the evidence pointed to "arrogance, greed and a warped sense of entitlement."

Philpot, 55, a podiatrist and attorney, served 10 years as Lake County coroner and six years as county clerk between 1992 and 2012.

 (Mike Frisch)

May 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Moving Towards Transparency?

I can now begin the process of stepping down from my soap box.

The District of Columbia Board on Professional Responsibility has, for the first time ever, made available on line an annual report of its activities for 2014.

Kudos to the Board for finally heeding the pleas of myself and others and recognizing the need for some level of transparency and accountability.

At first blush, this report looks to be quite informative. It provides a comparative look at the case load going back to 2010.  

One serious shortcoming is that, so far as I can tell, there is no information provided about how long investigations, prosecutions and contested disciplinary matters actually take.

Without that critical piece of information, as we Biblical scholars like to say, the rest is commentary. (Mike Frisch)

May 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judicial Campaign "Misquote" Sanctionable

The Illinois Review Board has rejected a First Amendment challenge and recommended a censure of a judicial candidate for statements made in the campaign.

In 2012, Respondent ran for the office of Circuit  Judge in the 20th Judicial Circuit. His opponent was Associate Judge  Vincent J. Lopinot. At first he planned to run a positive campaign. However, he  learned that Judge Lopinot's campaign was allegedly considering turning to  negative tactics by publishing an article against Respondent about a prior  charge of an "offensive battery". Respondent had read the Seventh Circuit  opinion in Woidtke v. St. Clair County, id. He then, along with  his campaign manager, decided to respond by sending out a flyer that contained  the following language:

Rodney Woidtke spent 12 years in prison for a murder HE DID NOT COMMIT. (Source: People v. Woidtke, No. 5-99-0331, 5th District, 26 April  2000)

Because ?.

Supervising Public Defender VINCENT J. LOPINOT and his Assistant, Brian  Trentman, "were NEGLIGENT in the representation of Mr. Woidtke in a 1989  criminal proceeding that resulted in his wrongful conviction of  murder of Audrey Cardenas." (Source: Woidtke v. St. Clair County, St. Clair  County Public Defenders Office, Brian K. Trentman and Vincent Lopinot, No.  02-4223, May 2003)

Next to the above statement, Respondent placed a  picture of Lopinot with the word "NEGLIGENT" in white with a red background  underneath the picture. Respondent sent the flyer to 75,000 to 100,000 people.  Despite the mailing of the flyer, Respondent lost the election to Judge Lopinot.

The above language was taken from the Seventh  Circuit opinion but was not an accurate quotation. The opinion actually read in  the opening paragraphs of the opinion, "In Count I, Mr. Woidtke alleged that  Attorney Trentman and his supervisor, Attorney Judge Lopinot, had been negligent  in their representation of Mr. Woidtke in a 1989 criminal proceeding that  resulted in his conviction." Respondent does not deny that he misquoted the  Seventh Circuit opinion.

The Board

We conclude that the Hearing Board's finding that  Respondent intentionally made the false statement in the flyer is not against  the manifest weight of the evidence. Respondent admitted that he assisted in  designing and writing the contents of the mailer and that he approved its design  and contents. Respondent admitted at hearing that he reviewed the various court  opinions regarding the Woidtke matter prior to completing the mailer. He did not  act in haste. The Hearing Board rejected Respondent's testimony that he believed  the mailer accurately quoted the Seventh Circuit opinion as "incredible and  false." Respondent had no objective information from which he could have  concluded that Lopinot supervised Trentman in regard to the Woidtke case. The  Hearing Board, who had the benefit of listening to the witnesses, concluded  Respondent deliberately and intentionally changed the language of the quotation  to create a false impression. The evidence supports this finding.

The Board found that recent U.S. Supreme Court precedent supported its First Amendment position

Respondent argues that Rules 8.2(a), 8.2(b) and  8.4(c) are unconstitutional as applied to his conduct. He contends that his  statements constitute political speech and are protected by the First Amendment  even if the statements are knowingly false. We disagree. Respondent has failed  to direct our attention to any cases which have concluded that all statements  made during a judicial, or any other, election, regardless of their truth or  falsity, are protected speech under the First Amendment to the United States  Constitution or any State Constitution.

The United States Supreme Court has never ruled  Rules 8.2(a), 8.2(b) or 8.4(c) unconstitutional. Similarly, the United States Supreme Court has never held that knowingly  false statements by a judicial candidate against an opponent have First  Amendment protection. Even in the most recent case cited by Respondent, United States v. Alvarez, 567 U.S. ___, 132 S.Ct. 2537 (2012), the  Supreme Court pointed out that there are situations in which knowingly or  recklessly made false statements are not protected under the First Amendment,  citing Garrison v. Louisiana, 379 U.S. 64 (1964) where an appellate  district attorney was convicted of defamation for making disparaging statements  about the judiciary. See also, Williams-Yulee v. The Florida Bar, 575  U.S. ___ (2015)(Court found that a Florida rule prohibiting judicial candidates  from personally soliciting campaign contributions did  not violate the First Amendment given the State's interest in preserving the  integrity of the judiciary).

(Mike Frisch)

May 19, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Never Again

The Ohio Supreme Court did not simply deny an application for bar admission on character and fitness grounds. 

The court permanently barred any future application.

The applicant was born and received his legal education in Israel and obtained an LLM from Michigan State.

During the investigation into Wahidy’s character and fitness to practice law, the bar-admissions committee discovered that he had failed to disclose a number of significant facts regarding his past that he was required to disclose on his registration application, including his 1995 divorce, a foreclosure action, the insolvency of his failed business, a personal-injury action, charges of aggravated menacing and criminal damaging, and multiple jobs he had held. At the panel hearing, Wahidy admitted that he had signed his registration application and certified that his answers were complete and true, even though he knew they were not.

The court rejected the applicant's various explanations for the disclosure lapses and also took into account his failure to deal with debt.

In sum

we adopt the board’s recommendation to disapprove Wahidy’s pending registration application. Based on Wahidy’s complete lack of candor throughout the admissions process, however, we order that Wahidy be forever precluded from reapplying for the privilege of practicing law in this state.

Justices O'Donnell and French would deny admission but permit a future application. (Mike Frisch)

May 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, May 18, 2015

Fifty Seven Years

The New Jersey Supreme Court agreed with its Disciplinary Review Board that dismissal of charges that an attorney failed to set forth a fee agreement with a client was appropriate.

The DRB

Respondent, who has been practicing for fifty-seven years, represented Feman, as a favor to a mutual friend. At oral argument before us, respondent asserted that he had spent fifty to sixty hours on this pro bono matter, that he never intended to charge her a fee, that he successfully negotiated a favorable real estate contract for her, and that he sent the email to her in an attempt to persuade her not to cancel the contract. Under the circumstances, we find no clear and convincing evidence that respondent violated RPC 1.5(b) and determine to dismiss the complaint.

The attorney had been reprimanded and censured in the past.

The 2001 reprimand involved negligent misappropriation ans other misconduct.

The 2006 censure was for "drafting a client’s will that left the entire residuary estate to himself."

(Mike Frisch)

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

"Just Teasing?"

An attorney's second affidavit to resign from the Bar was accepted by the Oklahoma Supreme Court.

The affidavit conceded

In late October or early November of 2012, respondent agreed to represent Client against a felony charge of being a fugitive from justice; they agreed for payment to consist of a retainer of $1500. On November 16, 2012, respondent entered his appearance for Client in her criminal case. Later that month, in their first in-person meeting, respondent sought payment of the retainer; Client instead asked for money to feed her children. Then Respondent asked her if they could get into his car "so I can do whatever I want to you." Client refused, but during the final handshake, respondent pulled Client toward him and made unwelcome sexual contact with her. Client reported respondent's conduct to the Norman Police Department on November 29, 2012. Along with respondent's actions during the initial in-person meeting, Client also informed the police that respondent had been texting her to inquire about kissing her 13-year-old and 17-year-old daughters in exchange for discounted legal fees.

On January 24, 2013, the district court dismissed Client's criminal charges as the time for the warrant to arrive from Texas had expired. Respondent received a copy of the dismissal, but did not inform Client of the district court's action. On February 3, 2013, respondent began texting Client again to inquire about paying his legal fees. Respondent suggested by text message to Client that she could pay for the legal services by sending him nude pictures of her and pictures of her teenage daughters. When Client asked if he was asking for nude pictures of her daughters, he responded, "Whatever u think will make me smile lol." Respondent then sent Client an explicit picture of himself. Respondent later sent a text message to Client suggesting that he should come to Client's home to take the pictures.

Client reported all of respondent's additional communications to a detective with the Norman Police Department, who asked her to contact the Garvin County Sheriff's Office. On the evening of February 3rd, a deputy with the sheriff's office began to text respondent from Client's phone with Client's permission. In response to the deputy's texts, respondent propositioned Client, asking her to wait for him in the nude along with her teenage daughters. Respondent offered his legal services for free in exchange for a sexual encounter with Client and her daughters. Respondent then called Client by phone and agreed to waive all legal fees in return for sexual favors. The next day, respondent persisted with more text messages, prefacing the conversation by stating that he was drunk the night before and he was "just teasing," but then immediately asking what Client would do for him if her case were dismissed. At no point did respondent inform Client that her criminal case had been dismissed.

The attorney pleaded guilty to misdemeanors charges. Tulsa World reported that he was sentenced to probation. (Mike Frisch)

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

Saturday, May 16, 2015

Bar Admission Denied In Louisiana

The Louisiana Supreme Court denied reconsideration of an application for bar admission without opinion.

Justice Weimer concurred and assigned reasons 

While I hesitate to concur and thereby draw further attention to this unfortunate situation, as respectfully as I can say it, the assumption should not be made that admission was denied solely due to past substance abuse. This case is not analogous to others in which conditional admission has been granted following a demonstrated period of recovery. Certainly, the record of substance abuse is extensive and gives one pause when reviewing this application. However, recent indications are that the substance abuse has been eradicated from the applicant’s present life, which is commendable. Furthermore, the recognition and support the applicant has received from members of the legal community are also encouraging indicators. If one views this application only from the standpoint of the applicant’s ongoing recovery from substance abuse, however, the full picture does not emerge. What distinguishes this case from others in which conditional admission has been granted is the applicant’s extensive criminal record. I readily recognize there may be an interrelationship between the applicant’s substance abuse and multiple DUI convictions. However, at the risk of stating the obvious, multiple instances of criminal conduct endangering the safety of the public stand separate and apart from substance abuse and can not be disregarded...

As a result of this “damning” criminal record, distinguishing this matter from others dealing solely with substance abuse is straightforward. Thus, there is no inconsistency or arbitrariness in the court’s present denial of admission.

Justice Crichton, joined by Justice Knoll, dissented

After the Committee on Bar Admissions and the applicant filed a joint petition for conditional admission, this Court appointed a Commissioner to conduct a hearing into the issues surrounding the character and fitness of this petitioner. The Commissioner recommended we grant conditional admission after hearing all the evidence. The evidence presented to the commissioner was persuasive, but I found two letters to be particularly compelling. One letter was from a federal magistrate judge for whom petitioner formerly clerked, and the other was written by the federal district judge who presently employs petitioner as a law clerk. These letters demonstrate in a convincing fashion that petitioner has the strong support of the judges, both of whom are aware of petitioner’s history and the challenges he faces.

The dissenting justices would conditionally admit the applicant. (Mike Frisch)

May 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, May 15, 2015

The Shadow

The Cranston (Rhode Island) Patch has this recent report on criminal charges against a judge

A Cranston Municipal Court Judge and lawyer was arrested by East Greenwich Police on Monday for an alleged domestic altercation in their town.

Thomas Ricci, 51, was arraigned today in Third Division District Court on charges of domestic simple assault and domestic disorderly conduct and released on personal recognizance, court records show.

NBC10 reported Ricci beat and strangled the woman after she confronted him over text messages she found on his phone.

Ricci has served as Senior Associate Judge in Cranston Municipal Court since 2007.

He has also served on the Rhode Island Supreme Court Disciplinary Board, the state Coastal Resource Management Council and Warwick’s Judicial Selection Committee.

He is due to return to court on June 5 for a pretrial conference.

For those interested in recent cases of Rhode Island attorney discipline, GoLocalProv has this article titled Booze, Bribes, And Conspiracy. (Mike Frisch)

May 15, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Convicted And Disbarred

An attorney has resigned and been permanently disbarred by the Kentucky Supreme Court as a result of a felony drug conviction.

Details here from WYMT TV

A Johnson County defense attorney and her son pleaded guilty to drug charges Friday.

Mary Lou Chandler, 63, of Paintsville, pleaded guilty to one count of trafficking in a controlled substance.

Prosecutors recommended Chandler receive a two-year prison sentence to be probated for a period of five years. As part of her plea, Chandler, who is a practicing attorney in Johnson County, agreed to give up her Kentucky Bar Association membership and no longer practice law in the state.

Her son, Matthew Chandler, 35, of Paintsville, pleaded guilty to thee counts of trafficking in a controlled substance. Prosecutors recommended a seven-year prison sentence.

On Sept. 18, Mary Lou Chandler and Matthew Chandler were indicted by a grand jury for selling oxycodone pills to a confidential informant from their Johnson County home on three different dates.

Both will be formally sentenced on Jan. 16.

(Mike Frisch)

May 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Oregon: Stealing From Business Partners No Different Than From Clients

The Oregon Supreme Court has disbarred an attorney for misconduct as a partner in a business venture with two others in which he played the role of general counsel in exchange for a one-third interest in the company

the accused agreed to manage the company’s finances, participate in marketing, and perform functions ordinarily undertaken by a business’s general counsel, such as drafting contracts and sales agreements. The accused had experience in conducting large, complex business transactions between 10 and 20 businesses.

As sometimes occurs, the business prospered but the partners fell out.

The misconduct involved the attorney's efforts to take control of the corporation.

The court found the record messy but concluded

What is clear is that, without consulting his business associates, the accused intermingled his personal and related-business financial affairs with the corporate affairs of Blue Q to the point that an accurate accounting of who owed what to whom would be very difficult to reconstruct. That inadequately explained practice provides context to the trial panel’s determination that the accused improperly diverted corporate assets.

Turns out that cheating a business partner violates attorney ethics rules

On de novo review, we find by clear and convincing evidence that the accused’s diversion of Blue Q assets to EMI and  Carbcert, and his exclusion of his associates from Blue Q’s business affairs, demonstrated dishonesty and a lack of trustworthiness that seriously reflects adversely on his fitness to practice law and violate RPC 8.4(a)(3).

The court also affirmed findings that he made a false statement to the Nevada Secretary of State in corporate dissolution documents.

The fact that the conduct involved business partners rather than client funds did not diminish the sanction

the accused’s conduct, consisting of his exclusion of his associates from the affairs of Blue Q, his diversion of corporate assets to his own use, and his unauthorized dissolution of the corporation, is comparable to theft in terms of its nature and scale of selfish dishonesty.

The attorney is suspended for non-payment of dues (and has been for some time) in both Oregon and Washington State. (Mike Frisch)

May 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, May 14, 2015

ADD No Mitigating Factor

The Indiana Supreme Court has imposed a suspension of at least 240 days for an attorney 's trust account mismanagement and false statements in his personal bankruptcy.

The court

An overarching theme in much of the hearing officer’s report and in the parties’ review briefs involves whether many of the charged instances of misconduct were criminal or merely negligent in nature. However, we need not delve too deeply into this issue, because Respondent expressly stipulated in advance of the hearing that he committed conversion and, in so doing, that he violated Professional Conduct Rules 8.4(a) and 8.4(b). In making these stipulations, the parties agreed that while additional relevant evidence might be introduced at the hearing, “the matters stipulated to herein are conclusively established.” Respondent is bound by these stipulations, and the hearing officer erred by not giving them effect.

As to proffered mitigation

Initially, we note our disagreement with several of the mitigating factors identified by the hearing officer. The record simply does not support the hearing officer’s findings that Respondent “made immediate restitution to [Client] and his trust account” and that no client suffered financial loss because of Respondent’s negligence. Further, Respondent’s diagnosed attention deficit hyperactivity disorder does not explain, excuse, or mitigate the misconduct that occurred here.

Facts in aggravation in this case include Respondent’s substantial experience in the practice of law, the long-term pattern of misconduct committed by Respondent over the span of several years, and the number of violations during that time. Facts in mitigation include Respondent’s lack of prior disciplinary history, his cooperation with the Commission and the disciplinary process, his stipulations designed to streamline the hearing process, and the attestation of professional acquaintances to Respondent’s skill and good reputation.

The hearing officer had recommended a 90-day suspension. (Mike Frisch)

May 14, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Recommended Reading On Prosecutor Misconduct

Reading a fascinating post on America's Deadliest Prosecutors by Professor Robert J. Smith of the University of North Carolina at Chapel Hill led me to an article in the Arizona Republic on prosecutorial misconduct (and the tepid reaction by the bar disciplinary system) in Arizona. 

The Arizona Republic reviewed all direct appeals of death sentences issued by the court between 2002 and the present.

Among those 82 direct appeals, there were 42 in which the defendants alleged prosecutorial misbehavior or outright misconduct, 33 of them from Maricopa County, which, as the largest county, has the busiest Superior Court.

The Supreme Court justices found that impropriety or misconduct had occurred in 16 of those 42 cases.

But only two were reversed and remanded because of the behavior (in one case characterized only as overreaching). Two prosecutors were disciplined. The offenses varied in seriousness from rolling eyes and sarcasm to introducing false testimony and failing to disclose evidence that might have helped the defendant.

But, overwhelmingly, even when misconduct was found, the high court determined that it was “harmless error,” the defendant would have been convicted anyway, or the judge had cured the problem by making a jury instruction.

Some of the most egregious instances do not show up in The Republic’s study because the misconduct triggered a mistrial or caused the prosecution to offer a sweetheart plea deal; for instance, when a prosecutor had improper contact with a disgruntled member of the defense team or when it appeared as if the state had been listening in on a defendant’s jail calls from his attorney.

According to case law, in order to declare a mistrial for prosecutorial misconduct, a trial must be “permeated” with bad behavior on the part of the prosecutor that “so infects the trial with unfairness as to make the resulting conviction a denial of due process.”

Judges are reluctant to risk such drastic measures.

I then came across an excellent blog called The Open File that is dedicated to publishing information on misconduct by prosecutors. 

There appears to be no shortage of information on the subject. (Mike Frisch)

May 14, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 13, 2015

An Affair To Remember

A three-year suspension by consent was imposed by the South Carolina Supreme Court for an attorney's conflicts of interest created by a decades long sexual relationship with a married client.

Mr. Doe owned a real estate investment company. Respondent met Mr. Doe in March 1984 when he came to her office to meet a client. At the time respondent met Mr. Doe, he was married to Mrs. Doe who also served as the corporate secretary for the real estate investment company. Mr. and Mrs. Doe had two children. Shortly after they met in 1984, respondent and Mr. Doe began a private, personal relationship. In early 1985, respondent and Mr. Doe began a secret, sexual relationship that continued until after Mrs. Doe's death in 2001. In 2005, respondent and Mr. Doe lived together and continued their sexual relationship. They remained close companions. Mr. Doe died in February 2011 at the age of 88.

The attorney also represented the client's wife

 respondent collected in excess of $8,150.00 in legal fees from or on behalf of Mrs. Doe. For several closings on behalf of Mrs. Doe's joint ventures, respondent also collected in total approximately $1,400.00 in commissions on behalf of respondent's own real estate company, Kaspar Properties. Throughout this time, respondent was engaged in a sexual relationship with Mr. Doe, her client's husband. Also during this time, Mr. Doe was providing respondent with personal financial support, including loans, gifts of cash, and payment of some living expenses. Respondent did not disclose the affair, the extent of financial support, or the resulting conflict of interest to Mrs. Doe.

The attorney admitted a course of unethical conduct from 1984 to 2001. The conflict ended with the death of Mrs. Doe.

The State reported on a 2014 jury award in the attorney's favor.

A Lexington County jury late last week took two hours to deliberate before awarding a woman $1.6 million in actual damages in a civil case in which she claimed she was hounded by the Richland County Sheriff’s Department, strip-searched and tossed in jail on felony charges that were later dismissed.

The case of lawyer Kay Paschal, who won the verdict against Sheriff Leon Lott, involved a dispute over a dead Columbia businessman’s multimillion-dollar estate, issues of sheriff’s department jurisdiction and charges of exploitation of a vulnerable adult. Questions also arose about whether one of Lott’s deputies was too personally close with heirs of the dead man.

A child of the Does (actually Wallace) caused her to be arrested

Paschal was arrested in November 2011 – the same day she was to appear at an estate hearing in probate court to defend herself against allegations by Wallace’s children that she should not be the estate’s personal representative, according to legal papers and testimony in the case. Paschal lost her status as representative, at least in part because she did not appear at the hearing, the documents said.

At the jail, Paschal was stripped and given “nothing but a sheet to wrap herself in,” according to testimony in the case. She was later released on a personal bond.

The criminal charges were dismissed.  

The court imposed the suspension effective as of its interim suspension ordered in January 2012. (Mike Frisch)

May 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)