Friday, June 26, 2015

Ethics Rules And Civil Liability

The Nebraska Supreme Court has affirmed the dismissal of claims against an attorney pressed by his late friend and client's former husband

The present litigation involves [attorney] Larson, who was a friend of Judy’s. Judy and Larson met in the early 1990’s when both represented different defendants in a federal criminal case. Over the years, Larson assisted Judy in various legal matters, including continuing legal matters relating to her divorce from [plaintiff] Gallner. Larson, who resides in another state, would also periodically visit Omaha for personal and professional activities. On those visits, Larson would sometimes stay at Judy’s home. Judy attended Larson’s wedding and also attended Larson’s wife’s funeral. Judy introduced Larson to her parents. Jordan testified that Larson was a close friend of Judy’s and that he, Jordan, telephoned Larson upon Judy’s eventual death.

Judy named Larson as her successor trustee and beneficiary. His representation of her involved unrelated matters.

He received over $236,000 after her death.

The court rejected the plaintiff's contention that the business transaction rule created liability to his benefit

The record clearly shows that at the time Judy made Larson a beneficiary on the American Family policy, he was representing her in legal matters. It is axiomatic that the relationship between attorney and client is a fiduciary or confidential one, and there is nothing that suggests the informality between Judy and Larson makes the relationship less so. We conclude that because Larson was Judy’s attorney, he has the burden to show that the gift from Judy was fair.

We conclude that Larson has met his burden. As the district court noted, Judy was herself a lawyer. She did not suffer from any diminished mental capacity and was not elderly or incapacitated. She understood the consequences of her designation...

In addition, at the time Judy first contacted Larson regarding the American Family policy, she had already also engaged the services of another lawyer for estate planning purposes. She did not seek Larson’s advice with regard to the drafting of the unexecuted trust or with respect to the change in beneficiary on the American Family policy. Larson did not seek the designation as beneficiary and was unaware of it until after the designation was made. And because Larson had done much uncompensated legal work for Judy, the designation seemed reasonable to Larson.

The ethics rules do not create a cause of action

we note that Gallner essentially argues that Larson violated the disciplinary rules applicable to Larson as an attorney, and therefore breached a duty to Judy. But as we note above, the rules are designed to provide guidance and “not designed to be a basis for civil liability.”

Nor did an asserted malpractice case exist under the circumstances

there is simply no evidence of an employment relationship regarding estate matters upon which to base a malpractice claim. Larson plainly did not represent Judy on any estate planning matter. Nor can Gallner show a neglect of duty. We concluded above that Larson showed on these facts the designation of him as beneficiary was fair. Finally, Gallner cannot show any loss, because as noted above, Judy’s father, not Jordan or the estate, was the contingent beneficiary on the American Family policy. We find no merit to this argument.

(Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

AUSA Admonished For Misleading Statement To Tribunal

The District of Columbia Office of Bar Counsel has informally admonished an Assistant United States Attorney

We find that you violated Rules 8.4(c) which prohibits engaging in conduct involving "dishonesty, fraud, deceit, or misrepresentation." This violation occurred when you responded, as a representative of the United States, to a question from a Superior Court judge with a misleading answer. When the court asked if the family of a homicide victim had asked to be heard at the plea hearing, you responded by stating that they had not asked to be heard at the plea. When you made this response, you were aware that the family had not asked to be heard at the plea hearing because they were not aware of it and you were aware that it was your responsibility to notify them of the hearing, either directly or through the victim's advocate from your office.

An attorney may reject an informal admonition, in which case Bar Counsel files charges that proceed in the normal course.

My understanding is that these admonitions are not published until after the time to reject the sanction has expired.

The case is In re Charles Cobb. (Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Sobriety Lapse VIolates Probation

The Pennsylvania Supreme Court found that an attorney had violated the terms of a previously-imposed probation and suspended him for a year and a day.

He was required to cooperate with a sobriety monitor

Mr. Lefevre's testimony was credible and persuasive. He noted that from the beginning of the probation period, Respondent never completely complied with all conditions of probation. Mr. Lefevre discussed his concerns with Respondent in May of 2014 and noted improvement on Respondent's part, but never full compliance. At a certain point, Mr. Lefevre stopped hearing from Respondent altogether. From December 4, 2014 to December 29, 2014, Respondent had no contact with Mr. Lefevre. There was contact on December 29, 2014, but Mr. Lefevre felt that Respondent's attitude regarding his significant lapse in communication was cavalier. After December 29, 2014 until April 18, 2015, Respondent had no contact with Mr. Lefevre. Mr. LeFevre attempted to contact Respondent on two occasions in February of 2015, with no success. The April 18, 2015 voice mail from Respondent to Mr. Lefevre indicated that Respondent, by his own admission, had relapsed from his sobriety. Mr. Lefevre attempted to contact Respondent but was unsuccessful and has not had any communication with Respondent since that voicemail.

The Disciplinary Board viewed the violation as a "serious matter." (Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Taste For Fine Wine At No Cost

Kathleen Maloney reports this discipline decision on the web page of the Ohio Supreme Court

In a unanimous ruling, the Ohio Supreme Court suspended Rodger W. Moore of Fort Mitchell, Kentucky, for two years with one year stayed because he had shoplifted on seven occasions and later lied about it to the Cincinnati Bar Association.

Admitted to practice in Ohio in 2001, Moore was arrested the same year in Atlanta, Georgia, for allegedly stealing 12 bottles of wine from a grocery store. The wine averaged a little more than $12 per bottle. He agreed to do 65 hours of community service.

In March 2012, Moore again was caught shoplifting three bottles of wine – more expensive vintages this time – along with olive oil at a Cincinnati grocery store. Instead of walking out with the items, he brought UPC codes for less pricey items with him and scanned those at the self-checkout. The false UPC codes reduced the price of the groceries by $359.10.

Moore pled guilty and was allowed to enter a diversion program. He also confessed he had taken expensive bottles of wine this way from the same store five other times.

His lawyer advised him to report the March 2012 charge to the bar association. In correspondence, as well as an interview, with the bar association during an investigation, Moore made false statements about the incident and did not disclose his other thefts.

In imposing the sanction, the court noted that Moore showed an unwillingness to take responsibility for his misconduct. The decision set out specific conditions the attorney must follow to have one year of the two-year suspension stayed and described other requirements for his reinstatement.

2014-1737Cincinnati Bar Assn. v. MooreSlip Opinion No. 2015-Ohio-2488.

(Mike Frisch)

June 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 25, 2015

Attempted Murder Is Crime Of Moral Turpitude

J. Michael Farren has been disbarred by the District of Columbia Court of Appeals.

...Mr. Farren was convicted of, among other things, attempted murder in violation of C.G.S. §§ 53a-49 (a)(2) and -54a (a), which is a crime that “requires a finding of the specific intent to cause death.” State v. Murray, 757 A.2d 578, 583 (Conn. 2000). In examining a crime requiring the same intent to kill, this court deemed it to be “self-evident” that murder is a crime of moral turpitude per se for purposes of attorney discipline. See In re Carpenter, 891 A.2d 223, 223-24 (D.C. 2006) (concluding that murder for pecuniary gain under C.G.S. § 53a-54 (b) is a crime of moral turpitude per se because it requires proof of the specific intent to cause death and noting that “[f]irst-degree murder . . . offends the generally accepted moral code of mankind” (citation omitted)). We hold that Mr. Farren’s crime of attempted murder is also one of moral turpitude per se and, as a result, one that requires disbarment under D.C. Code § 11-2503 (a).

The Stamford Advocate reported on the sentencing

Farren picked up his wife by the throat, threw her across the room and struck her head and face as many as 10 times with a heavy metal flashlight, according to testimony during his trial in early July. He strangled her more than once during the attack, causing her to lose consciousness.

She lost a significant amount of blood, suffered a broken jaw and cheek bone as well as deep cuts to her head that left her skull visible, and tufts of hair had been wrenched off her scalp, a doctor said on the stand. Her smile is now crooked from the nerve damage to her right cheek from the attack.

On July 1, Farren, 61, who was an attorney serving in both Bush White Houses and a general counsel for Xerox Corp., was convicted by a six-person jury of attempted murder, first-degree assault and risk of injury to a minor.

Does anyone find it remarkable that there is a D.C. precedent for this proposition?

The case involved, believe it or not,  another D.C. admitted attorney convicted of murder in Connecticut.

Thankfully, this court has not had to consider before, in regard to attorney discipline, whether first-degree murder is a crime of moral turpitude per se. But the answer is self-evident. First-degree murder —including murder for pecuniary gain—"offends the generally accepted moral code of mankind."

I had argued the issue in the high-profile Ruthann Aron case when I was at Bar Counsel.

Unfortunately, she consented to disbarment after full briefing and oral argument. (Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Out Of Kokomo

An attorney who had abandoned his law practice in Kokomo and left for Australia was disbarred by the Indiana Supreme Court.

The eleven counts of misconduct in this case arise from Respondent’s abrupt abandonment of his Kokomo law practice and move to Australia in September 2013, two days after enlisting Brent Dechert as his attorney surrogate. See Admis. Disc. R. 23(27). Counts 1 through 7 each involve particular clients who retained Respondent to file bankruptcy petitions. In each case, Respondent was paid a retainer fee up front, did little or no work on the case thereafter, and eventually absconded to Australia without refunding or making arrangements to refund unearned legal fees. In most of the cases, Respondent was largely unresponsive to client inquiries regarding case progress, and in two of the cases Respondent knowingly misrepresented to the client that a bankruptcy petition had been filed when in fact no petition had been filed. Counts 8 through 10 are similar in nature and involve particular clients who retained Respondent in various non-bankruptcy matters. Finally, Count 11 charts twenty-two additional clients of Respondent identified by Dechert as having been abandoned by Respondent with legal matters still pending, and to whom unearned fees are still owed. In sum, Respondent was paid a total of $58,366 by the clients identified in these eleven counts. None of these clients’ legal matters were completed by Respondent. The balance in Respondent’s attorney trust account at the time it was turned over to Dechert was $2,060, with no records left indicating to which client or clients that sum belonged.

An aggravating factor was his accepting new clients and retainers when his plan to leave the country was in place.

For a variety of reasons, an attorney may be faced with the need or desire to wind down his or her law practice. Whatever the reason, the attorney’s ethical obligation to protect clients’ interests is clear. Among many other things, key practice management records (such as client files and business and trust accounts) should be in order and reconciled, clients should be notified and kept fully and accurately informed of matters relating to their case, fee issues should be resolved, and appropriate contingency plans for transitioning clients’ cases to successor counsel should be implemented.

Respondent did virtually none of these before absconding to Australia. He did not reconcile his trust account; he looted all but a small portion of it and left behind no records indicating to which client(s) that remaining sum belonged. He did not notify clients of the status of their cases; when clients inquired, Respondent mostly avoided them and in some instances lied to them. Respondent did not refund unearned fees; he stole them. Most clients were not notified of his impending move out of the country, and Respondent continued to accept new clients (and their money) even as the abandonment of his law practice was imminent. Finally, while Respondent did enlist the aid of Dechert as an attorney surrogate, Respondent did so at the last minute and in a manner that precluded Dechert, despite his commendable efforts to triage the harm caused by Respondent, from being able to fully protect the interests of Respondent’s clients

(Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred Without Hesitation

The Indiana Supreme Court disbarred an attorney

Respondent, Robert Stochel, committed attorney misconduct by stealing trust account funds belonging to a former law partner and that partner’s clients, embezzling funds from a receivership and actively concealing that theft for nearly a decade, and refusing to cooperate with the Commission’s investigations into his actions.

He stole from a receivership as well as his former partner.

The court

We conclude that each of these [sanction] standards applies to the matter before us. Respondent stole hundreds of thousands of dollars from the receivership and tens of thousands of dollars from his former law partner and that partner’s clients. In the receivership case, Respondent covered up his theft for nearly a decade, lied to all comers, deceived the court and later defied its orders, and actively obstructed the disciplinary process. Respondent throughout has expressed absolutely no remorse or intent to make restitution. In addition, he has neither challenged the hearing officer’s report nor argued any mitigating facts. Under these circumstances, the Court unhesitatingly concludes that disbarment is warranted.

The Indiana Lawyer had reported on his emergency suspension by the court. (Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Serious Sanction Warranted

The Wisconsin Supreme Court has imposed a three-year suspension of an attorney who did not place advance fees in escrow and failed to perform services

With respect to the appropriate sanction, the referee noted that this case includes many instances where Attorney D'Arruda accepted monetary payments from clients for legal services he was to render.  In many instances, those initial payments by clients were placed into Attorney D'Arruda's business account rather than into his trust account.  Attorney D'Arruda repeatedly failed to provide an itemized statement to his clients or otherwise account for the disposition of payments received from his clients.  The referee said that this conduct was similar to that for which Attorney D'Arruda was both privately and publicly reprimanded in the past.  The referee said:

I am most bothered by the fact that in numerous instances, when Attorney D'Arruda knew his license to practice law was going to be temporarily suspended, he continued to accept new cases and payments from new clients, knowing he was about to have his license temporarily suspended.  Without the benefit of an explanation from Attorney D'Arruda, I can only conclude that Attorney D'Arruda knowingly accepted monetary payments from new clients and that he had no intention of fulfilling his duties to represent the clients or return the money once his license was temporarily suspended.  In other words, Attorney D'Arruda intentionally took money from new clients with no intention of providing legal services to them and with no intention of refunding the money paid by these clients.  This is intentional misconduct of a most serious nature.

The court

This case involves 42 counts of misconduct affecting 12 clients.  In all three [comparable] cases, the attorneys failed to comply with clients' requests for information, failed to explain matters to the extent reasonably necessary to permit clients to make informed decisions regarding the representations, and failed to timely respond to the OLR's requests for information.  Although Attorney D'Arruda's prior disciplinary history is not extensive, the misconduct at issue here is very serious and warrants a significant sanction.  We also agree that Attorney D'Arruda should make restitution as recommended by the referee and that he should be required to bear the full costs of this proceeding.

(Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

D.C. To Consider Screening

From the web page of the District of Columbia Court of Appeals

Comments Sought on Move to Amend Rules 1.10, 1.15, and 7.1

June 16, 2015

The District of Columbia Court of Appeals is soliciting public comment on proposed amendments to the D.C. Rules of Professional Conduct that include revisions to Rules 1.10 and 7.1 and comments thereto, and the addition of a new comment to Rule 1.15.

The proposed amendments were submitted to the court by the D.C. Bar Board of Governors on recommendation of the Bar’s Rules of Professional Conduct Review Committee.

The proposed amendments are summarized below:

A. Rule 1.10 (Imputed Disqualification: General Rule)
Amend Rule 1.10 and its comments to allow ethical screening (without client consent) of lawyers moving laterally between private employers with certain initial notice requirements to former clients. The committee further recommends the addition of a new subparagraph (f) to address situations in which a law firm cannot provide required notifications without violating confidentiality obligations to an existing client.

B. Rule 7.1 (Communications Concerning a Lawyer’s Services)
Amend Rule 7.1 and its comments to prohibit the payment of referral fees, but continue to allow payment of the usual and reasonable fees or dues charged by a lawyer referral service. These changes will restore the approach the District used prior to the 1991 adoption of a rule allowing the use of paid intermediaries or “runners,” which was repealed in 2007.

C. Rule 1.15 (Safekeeping Property)
Adopt a new Comment [2] of Rule 1.15 to provide more detailed guidance to lawyers on financial record keeping for trust accounts. Delete Section 19(f) of Rule XI of the Rules Governing the Bar as largely duplicative of the obligations arising under Rule 1.15(a). The committee recommends that the guidance on financial record keeping: (1) reflect the purpose of the “complete records” language of Rule 1.15 as interpreted and explained by the D.C. Court of Appeals in In re Clower, 831 A.2d 1030 (D.C. 2003); and (2) encourage lawyers to consult the ABA Model Rules on Client Trust Records.

Read the court’s notice of public comment as well as additional information about the Bar’s proposal, including the report of the Rules Review Committee.

The Court of Appeals declined to accept the committee’s recommendation to establish a new Rule 8.6 that would have imposed on all Bar members a duty to disclose exculpatory information about a convicted person and has instead asked the committee to study further ABA Model Rules 3.8(g) and (h) and whether the D.C. Rules should be amended to include those provisions.

Ten copies of any written comments should be submitted to the Clerk, D.C. Court of Appeals, 430 E Street NW, Washington, DC 20001, by August 10. All comments submitted concerning the proposed amendments will be available to the public.

(Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thy Partners Brothers Keeper

A six-month suspension was ordered by the New York Appellate Division for the Second Judicial Department as a result of conduct that was committed by  his law partner's brother

The charges against the respondent arise from his conduct, as a law partner of Peter Galasso, relative to the maintenance of fiduciary funds held by their firm (hereinafter the firm), incident to the practice of law. As in the case against Peter Galasso, the charges against the respondent center around the undisputed misappropriation of more than $5 million from the firm's multiple escrow accounts. The respondent, like Peter Galasso, did not directly engage in the misappropriation of client funds. Rather, fiduciary funds held by the firm were misappropriated by Peter Galasso's brother, Anthony Galasso, the firm's bookkeeper and office manager.

Anthony Galasso, in his capacity as office manager, deposited the funds into an escrow account at Signature Bank (the Baron escrow account). [Peter Galasso] and fellow partner James Langione were the only authorized [signatories] on the account application. However, Anthony Galasso apparently altered the application to permit electronic fund transfers and to include himself a—[nonlawyer]—as a [signatory].

 Between June 23, 2004, and January 1, 2007, Anthony Galasso transferred approximately $4,501,571 from the Baron escrow account into six other firm accounts maintained at Signature Bank through the use of roughly 90 Internet transfers. It seems that the Baron funds were used to replace money that Anthony Galasso had already removed from [other] firm accounts. Transferred funds from the Baron escrow account were then disbursed to [Peter Galasso], firm employees and other entities in the course of business, all without the knowledge of the firm's principals or the consent of the Barons. In particular, approximately $360,000 in funds transferred from the Baron escrow account were used to finance the purchase of the firm's office condominium. To escape detection, Anthony Galasso had the genuine Baron escrow account statements, generated by the bank, diverted to a post office box and fabricated false statements for review by the firm . . . .

 Anthony Galasso confessed to the theft of the above funds on January 18, 2007, and ultimately pleaded guilty to two counts of grand larceny in the first degree, 10 counts of falsifying business records in the first degree and 10 counts of criminal possession of a forged instrument in the second degree. He was sentenced to [two and a half] to [seven and a half] years' imprisonment, as well as $2,000,000 in restitution.

 As in the case of Peter Galasso, the respondent's culpability is predicated upon his failure to properly oversee the management of the firm's bank accounts, including necessary supervision of the firm's employee, Anthony Galasso.

His culpability was of a lesser degree than that of the Brothers Galasso

Unlike the respondent's partner, Peter Galasso, the respondent received no "unjust enrichment" from the defalcations by Anthony Galasso. Indeed, the respondent injected personal funds into the firm's purchase of an office condominium, rather than funds derived from the fraudulent activities of Anthony Galasso, as Peter Galasso did.

Moreover, the respondent attempted to make restitution to his aggrieved clients—the Carroll Estate, Adele Fabrizio, and Theresa Halloran—from his personal funds, independent of, and in addition to, settlement funds obtained and disbursed as a result of litigation.

Under the totality of the circumstances, the respondent is suspended from the practice of law for a period of six months.

Peter Galasso was suspended for two years. (Mike Frisch)

June 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 24, 2015

Bad Neighbors

A suspension of twelve months has been imposed by the South Carolina Supreme Court for this incident

On January 31, 2012, respondent went to a restaurant where his son tended bar in order to drive his son home after completing his shift. While at the restaurant, respondent came into contact with a former neighbor and the neighbor's son. A verbal altercation escalated into a physical fight. The Charleston County Sheriff's Office responded. The former neighbor alleged respondent and respondent's son physically assaulted him and his son. The former neighbor refused medical treatment while his son was transported to the hospital.

The criminal charges were eventually dropped after a conviction at a trial in absentia.

The attorney had previously been suspended for six months. (Mike Frisch)

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

$250 Per Hour Errands

The Wisconsin Supreme Court has ordered a two-year suspension of an attorney who had "systematically overbilled" a client.

During the events giving rise to this matter, Attorney Armstrong was a licensed real estate broker doing business as ABA Realty, Inc.  She was the only broker employed by the firm.  Attorney Armstrong was licensed by the office of the Insurance Commissioner of Wisconsin to sell life, accident, and health insurance lines for several companies.

From the 1980s until October 2005, Attorney Armstrong had an attorney-client relationship with a woman we shall refer to as B.R.T.  B.R.T. was born in October 1924.  Briefly stated, Attorney Armstrong engaged in a lengthy pattern of misconduct, repeatedly overbilling her client, and ultimately, between 2000 and 2005, charging her client $170,651.95 for various tasks, many of which were not legal in nature.

The court

between September 1, 2004, and November 1, 2005, Attorney Armstrong billed B.R.T. somewhere between $58,422.32 and $62,815.20 for what was primarily nonprofessional work assisting B.R.T. with matters related to her duplex.  This work included "general contractor" type of services (such as consulting with her client about needed repairs, soliciting bids, and helping select contractors such as painters, carpenters, plumbers, and the like); property manager services (such as dunning tenants for unpaid rent, fielding complaints, keeping accounting records for rents, listing the duplex for lease, and seeking new tenants); retaining and supervising workers to clean the duplex; personally sorting and boxing the client's personal property; and running errands (such as picking up parts and supplies, boxes, plastic bags, packing tape, mulch, and the like).

Attorney Armstrong charged her client at her professional rate of $250 per hour for these services and charged her client $150 per hour for services performed by legal assistants.

The OLR alleged and the parties have stipulated that, by charging her $250 hourly rate as an attorney, and by charging her paraprofessional staff rate of $150 per hour, for the aforementioned nonprofessional work, Attorney Armstrong violated former SCR 20:1.5(a) 

The attorney stipulated to the violations. (Mike Frisch)

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

The Sin Of Inattention

An attorney who had allowed his personal injury practice to be run by a thieving paralegal was disbarred by the Maryland Court of Appeals

Attorney discipline cases that result in disbarment often find the attorney committing one of the seven deadly sins – e.g., greed, lust, sloth. This is not one of those cases. The sin in this case was inattention – inattention to clients, inattention to an attorney trust account, and inattention to the activities of a non-lawyer assistant in whom the attorney misplaced his trust and who misused the attorney trust account to the detriment of the attorney’s clients. Sadly, this too merits disbarment, as our regulation of the practice of law must protect the public not only from those attorneys who engage in deliberate, egregious acts of misconduct, but also those who fail to fulfill the routine duties of the profession that serve and safeguard their clients.

The court explained the nature of the duty to supervise non-lawyers

Under MLRPC 5.3(c)(2), four elements must be present to impute an employee’s misconduct to an attorney: (1) misconduct by the employee that would violate the MLRPC if done by the attorney; (2) partnership status or a direct supervisory relationship; (3) the attorney’s knowledge of the wrongdoing at a time when its consequences can be mitigated; and (4) the attorney’s failure to take reasonable remedial action.

The court noted

Ironically, on the record before us, it appears that Mr. Smith and his family members may have incurred the greatest monetary loss as a result of his misguided efforts to shore up his trust account with personal funds.

As to sanction 

Mr. Smith’s blanket delegation of authority to Ms. Staley-Jackson to communicate with clients, negotiate settlements, sign pleadings and other court papers, obtain client consent for settlements, and transmit and cash checks without adequate supervision relinquished his role and obligations under the disciplinary rules and was, at best, gross negligence. For example, when it became evident that his trust account was being invaded and payments were not being received by the appropriate payees, he was slow to investigate, to the detriment not only of his clients and the third party payees, but also of his own financial well-being as well. In attempting to make the trust account whole with family loans and out of his own pocket without conducting a thorough audit of the account, he delayed discovery of Ms. Staley-Jackson’s defalcation and effectively facilitated her final theft of funds. We need not pinpoint where along the spectrum between gross negligence and knowing misconduct he ultimately landed to conclude that his state of mind, while perhaps not evil, was not innocent...Given the volume and severity of Mr. Smith’s misconduct, including the resulting misappropriation of client funds and concealment of information from clients, the factors found in mitigation do not warrant a lesser sanction than disbarment.

The attorney is also admitted to practice in the District of Columbia. (Mike Frisch)

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

Tuesday, June 23, 2015

Bar Applicant Must Disclose Ongoing Criminal Activity

The Maryland Court of Appeals has published its opinion in a matter in which disbarment had been ordered the day after oral argument.

From the court's summary

Disbarment is the appropriate sanction when an applicant for admission to the bar who had secretly recorded, in intimate circumstances, female tenants who rented rooms in his house over a two-year period and whose conduct was discovered by the tenants and police shortly before his bar admission ceremony, failed to disclose that criminal conduct to the State Board of Law Examiners, the Attorney Grievance Commission, or the Court of Appeals.

The attorney was convicted of criminal offenses.

The court

A lawyer must, at a minimum, be trustworthy. One who wants to be a lawyer in Maryland must disclose to the State Board of Law Examiners (“SBLE”) and this Court information that bears on that trait. Failure to satisfy those requirements may prevent admission to the bar or, when discovered, result in disbarment.

We have disbarred the newly-admitted lawyer who is the respondent in this disciplinary proceeding and now set forth the reasons why we took that action. To explain our decision, we need not catalog precisely what past indiscretions an applicant must recall and reveal in a bar application. It suffices to say that an applicant who is engaged in ongoing criminal conduct while the application is pending must disclose it to SBLE and this Court. And it is self evident that an applicant who, as a landlord, uses hidden cameras to secretly view and record his tenants in their private bedrooms in intimate moments, without their knowledge or consent, is not trustworthy...

Mr. Van Dusen committed criminal acts that adversely reflect on his fitness to practice law. This conduct was neither an isolated nor a minor incident, but rather a serious invasion of the privacy of Ms. Malova, Ms. Prywes, Mr. Woodhams and others that extended over at least two years. Mr. Van Dusen also failed to disclose material information concerning his activities, their detection, investigation, and prosecution to SBLE and this Court. This demonstrated a serious lack of candor and truthfulness. The hearing judge also found that Mr. Van Dusen’s failure to notify SBLE and this Court regarding his surreptitious video recording of his tenants, the police investigation, the pending charges, the civil complaints, and the subsequent conviction, was deliberate and calculating.

The oral argument (at which the attorney represented himself) is linked here. (Mike Frisch)

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

Fake Degrees, Real Disbarment

An attorney charged with federal offenses in New York has consented to disbarment in the District of Columbia.

The Board on Professional Responsibility has recommended to the Court of Appeals that the consent be accepted.

This press release of the United States Attorney for the Southern District of New York describes the charges

As alleged in an indictment (the “Indictment”) unsealed today in Manhattan federal court, KASSEL created a scheme to obtain employment-based visas for immigration clients in exchange for a fee by pretending that these individuals possessed advanced degrees that they never earned. To perpetrate the scheme, KASSEL and ROSANNA ALMONTE, an assistant working for KASSEL, prepared and submitted fraudulent visa applications supported by fictitious diplomas and fake transcripts. JANA HALODA and VACLAV HALODA, both originally clients of KASSEL, facilitated the fraud by creating the fraudulent diplomas and supporting documents on a home computer and printer. More than a hundred fraudulent visa applications supported by these forged documents were submitted between 2008 and the present.

The indictment is linked here. (Mike Frisch)

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

Both Prosecutor And Defense Counsel Accused Of Ethics Violations; Both Exonerated

The Oklahoma Supreme Court has exonerated the prosecutor and defense attorney of ethical charges for their handling of a first degree murder case.

The Muskogee County District Attorney's office filed first degree murder charges against two men, Clinton Potts and Chad Pippin, for the 2004 murder of a man named Gregory Clark. Respondent Ward, who was then an assistant district attorney in Muskogee County, was the lead prosecutor at trial. Respondent Starr represented Mr. Potts. The jury trial of Mr. Potts began on July 20, 2009, and lasted until August 3, 2009. The jury found Mr. Potts guilty, and he was sentenced to life in prison without parole. Respondent Starr recommended Mr. Potts retain appellate counsel and proceed with an appeal. In a four-page opinion, the Court of Criminal Appeals reversed his conviction for prosecutorial misconduct and ineffective assistance of counsel. The disciplinary proceedings against Respondent Ward and Respondent Starr stem from such proceedings.

As to the prosecutor

In the case before us, the record reflects that all assistants in the Muskogee County District Attorney's office, as well as District Attorney Moore, carried a very heavy case load. District Attorney Moore testified that prosecutors were to get ready for trial as best they could, sometimes even on a moment's notice. Upon receiving the assignment to the Potts case, Respondent Ward did just that in the approximately twenty-five calendar days he had to prepare. He testified he spent just about every waking moment preparing for the trial while still receiving case assignments in other matters, making court appearances, and juggling his own case load. The OBA questioned Respondent Ward about why he did not seek a continuance to have more time to prepare for trial. Respondent Ward testified that when he asked Respondent Starr about a possible continuance, Respondent Starr told him he wouldn't be able to agree to a continuance because his client was in jail and had been for some time. When Respondent Starr could not agree to a continuance Respondent Ward testified he knew he had to just "buck up and get ready and win or lose, put the trial on." The OBA did not present clear and convincing evidence that Respondent Ward failed to competently and diligently prosecute the case.,,

We are convinced by the evidence offered in mitigation that Respondent Ward is not "a prosecutor who loves victory more than he loves justice." The Complaint against Respondent Ward is dismissed, and he is exonerated of all charges. 

And as to defense counsel

Jury trials are not an exact science. A lawyer's decision about what witnesses to call or not call at trial is an exercise of professional judgment, and lawyers must make informed and sound judgment calls in the heat of the moment at trial. The record clearly shows Respondent Starr acted competently and diligently in making such decisions for his client. This Court is not in the business of playing the Monday-morning quarterback. Just because counsel for the OBA would have defended the case differently, does not mean Respondent Starr did not provide his client with competent representation. Respondent Starr is exonerated on this charge...

Our record clearly reveals that appellate counsel for Mr. Potts inserted the words "failed to" and "no strategic reason" throughout the affidavit to achieve a certain result on appeal. Had Respondent Starr been given the opportunity to testify at the evidentiary hearing, he would have explained in greater detail each of the statements in the affidavit and there would have been no misunderstanding about the meaning of his affidavit. Instead, because the State was completely unprepared to put on evidence at the evidentiary hearing, the statements in the affidavit have gone unchallenged until now "by the light of truth we call cross-examination." The PRT, up to this point, is the only tribunal to have received evidence and examined the contents of the affidavit in light of the evidence in the underlying case. After hearing several days of testimony and reviewing the jury trial transcript and record in the underlying criminal case, the most the PRT could conclude was that Respondent Starr "should have reviewed the affidavit more carefully" to "be as accurate as possible." The PRT concluded Respondent Starr was negligent in signing the affidavit and recommended a public censure. Although we agree Respondent Starr negligently signed the affidavit, we decline to impose any discipline against Respondent Starr. These proceedings against Respondent Starr have been punishment enough. Under the facts and circumstances of this case, and considering Respondent Starr's forty-year career with no previous discipline, the Complaint against Respondent Starr is dismissed in its entirety. 

In sum

It bears repeating that the Findings of Fact and Conclusions of Law filed after the evidentiary hearing in the underlying criminal case were drafted entirely by appellate counsel for Mr. Potts with the intention of gaining a reversal. The trial court signed off on the Findings of Fact and Conclusions of Law, which upon review, clearly reflect appellate counsel's untested theory of the case. The Court of Criminal Appeals then reversed Mr. Potts' conviction for prosecutorial misconduct and ineffective assistance of counsel relying solely on these Findings of Fact and Conclusions of Law. The State's failure to make any kind of record at the evidentiary hearing and its blatant attempt to sweep the misgivings of the Muskogee County District Attorney's office under the rug at the expense of Respondent Starr has exponentially compounded all aspects of this case. The reversal of Mr. Potts' conviction is not supported by the evidentiary record presented to the PRT.

The OBA's interest in prosecutorial ethics and protection of criminal defendants is a worthy and most timely concern, but the investigation into Respondent Ward and Respondent Starr's handling of this case is not worthy of the time and effort employed. While we agree that the buck must stop somewhere that somewhere is not with Respondent Ward or Respondent Starr. It is with the District Attorney, who is ultimately responsible for the prosecution of cases in the county and who, as chief administrator of the office, is at least partially responsible for the conduct and trial tactics of his or her assistants.

NewsOK reported that the underlying criminal charges were dismissed. 

I don't think I have seen a case where both prosecutor and defense counsel have been charged and exonerated in the very same case. (Mike Frisch)

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

Child Porn Conviction Draws Indefinite Suspension

The Ohio Supreme Court has indefinitely suspended an attorney as a result of a felony conviction.

Grossman was charged by information in the United States District Court for the Southern District of Ohio in August 2013 with one count of receipt of visual depictions of child pornography. He pleaded guilty and on January 28, 2014, was sentenced to 60 months in prison and five years of supervised release. He was ordered to pay $1,500 in restitution, plus a special assessment of $100.

And

Grossman admitted that he had communicated online with an undercover police officer who was posing as the father of an 11-year-old girl and that they discussed various sex acts involving the fictitious girl before Grossman went to a prearranged location expecting to meet her. In his presentence psychological examination, Grossman stated that he did not believe that he would have had sexual contact with the minor but that he went to meet her out of curiosity. He also stated that he hoped that “he would not have acted on a fantasy.”

The court

Having considered Grossman’s conduct, the applicable aggravating and mitigating factors, and the sanctions imposed for comparable misconduct, we agree that an indefinite suspension is the appropriate sanction in this case.

He cannot seek reinstatement until he completes the terms of his criminal probation. (Mike Frisch)

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

Reinstatement And The ADA

An Illinois Hearing Board has recommended the reinstatement of an attorney convicted of two retail thefts.

Petitioner's first conviction stemmed from an incident that occurred at a Sports Authority store in Niles, Illinois, on June 6, 2006. The criminal complaint charged that while shopping with his wife and son, Petitioner knowingly took possession of a baseball and a t-shirt valued at $31.99. Petitioner was charged in a one-count misdemeanor complaint with retail theft in violation of 720 ILCS 5/16A-3(a). Following a bench trial on December 8, 2006, Petitioner was found guilty of retail theft and sentenced to one year of misdemeanor probation, 112 hours of community service, payment of fines and costs, and completion of parenting classes.

Petitioner's second conviction stemmed from an incident which took place on October 31, 2006, at a Costco store in Niles, Illinois. The criminal complaint charged that while shopping with his wife and son, Petitioner knowingly took possession of, carried away, or transferred a digital camera valued at $1299.99, without paying the full retail value of the merchandise. Petitioner was charged with one count of retail theft in violation of 720 ILCS 5/16A-3(a). On January 9, 2007, Petitioner pled guilty to that charge and was sentenced to two years of probation and ordered to avoid contact with Costco. 

He had denied the offenses

According to Petitioner, the first incident in June 2006 took place when he and his wife and son stopped at a Sports Authority in Niles on their way home from his son's baseball practice. After they left the store without buying anything, Petitioner was approached by several individuals who requested he accompany them back into the store. Once back inside, they went into a room where the individuals questioned Petitioner and asked him to empty his pockets. Petitioner testified he had a baseball in his pocket, which he had brought with him from the practice field. He also had his wife's tank top, which Petitioner had picked up when his wife changed after practice. Although the store employees did not initially accuse Petitioner of stealing the items, they eventually suggested he was trying to steal something. After Petitioner denied the accusation, the individuals told him he could get out of the situation by paying a small fine. Petitioner refused to pay the fine because he had not committed any crime. 

The Costco incident

Petitioner testified that the events leading to his second arrest began after he arrived home from work on October 31, 2006. As he was getting out of his car, Petitioner encountered two individuals in his driveway. Petitioner recognized one of these individuals as one of the Sports Authority employees but he did not know the other. Petitioner testified these men did not say anything to him, but just hit him in the face and throat so he was unable to speak. They then grabbed him by his jacket, removed his wallet, and stole his money. According to Petitioner, before the individuals left, they demanded he meet them later that night at the Costco store in Niles. Petitioner stated he was frightened by this incident. (Tr. 37-39, 116-17, 119).

Although Petitioner had never been to the Costco store in Niles, he followed the instructions of these individuals and went. Petitioner testified he was angry when he arrived at Costco. After entering the store, Petitioner went to the camera department, which is where they were supposed to meet, and came across a display of cameras in boxes. Petitioner picked up one of the boxes, opened it, and removed the camera and lens. A Costco employee approached Petitioner, saw what he was doing, and took him into a back room. Petitioner stated he never left the store with the camera and lens. (Tr. 38-40, 116-19).

According to Petitioner, the Costco employee did not originally intend to charge him with stealing. After the employee called the police, however, the same officer from the Sports Authority incident showed up and convinced the Costco employee Petitioner should be charged. Petitioner was then placed under arrest and charged with a felony for stealing the camera. 

Two points of interest - the hearing board concluded that his denial of guilt did not preclude reinstatement and that the American with Disabilities Act did not prevent a requirement of mental health treatment as a condition of reinstatement

With respect to the issue of ADA compliance, we note that the authority cited by Petitioner involved bar admissions practices in other states and is not directly applicable to this reinstatement proceeding. Furthermore, the terms of the Settlement Agreement entered into in the Louisiana matter are clearly not binding on us here. Nevertheless, we have considered the significant issues addressed in those proceedings and believe our recommendation, which is set forth below, is consistent with the Justice Department's interpretation of the ADA and the spirit of the Settlement Agreement. We note that our recommendation is not based solely on Petitioner's prior mental health diagnosis, but on his past conduct which led to his prior disciplinary proceeding and the suspension of his law license. Additionally, the condition we are recommending is based on our concern that issues regarding Petitioner's conduct have not been fully mitigated or addressed, because Petitioner has not demonstrated he has been symptom-free while engaged in the practice of law.

(Mike Frisch)

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

Monday, June 22, 2015

Hair Unapparent

Disbarment should be imposed of an attorney who tried to help his client beat a drug test, according to a recommendation of the Louisiana Attorney Disciplinary Board approving findings below.

The Committee finds that upon notice that Respondent's client's ex-husband was filing an emergency custody petition based on his client's abuse of illicit drugs (reported by his client's mother to the ex-husband), the Respondent and his client traveled to a health store seeking a "hair stripper" or detox shampoo. The Respondent purchased the product, Zydot UltraClean hair treatment, and then traveled to his client's home where he remained until sometime after 6:40 pm. The following day, counsel for the ex-husband presented the emergency custody petition, and the presiding judge conducted a pre-trial conference in chambers. In the pre-trial conference, Respondent denied that his client was using drugs. The court ordered Respondent's client to submit to cuticle, urine and hair follicle drug screens. The hair follicle screen was negative, but the urine screen was positive for marijuana, and the cuticle screen was presumed positive for marijuana, amphetamines and methamphetamines. Based on these circumstances, the Committee finds that Respondent purchased the detox shampoo for use by his client in order to avoid a positive result on a hair follicle drug screen that Respondent anticipated would be ordered by the district court after the emergency petition for custody was presented to the court.

The Committee finds that Respondent violated rule 3.3(a) because he made a false statement to the district court. His purchase of a masking agent for his client's hair when an order for a drug test the next day was probable indicates that he possessed knowledge or a strong suspicion that his client had been abusing drugs. His statements to the district court during the pre-trial conference "adamantly denying" that his client used drugs were false. The Committee also finds that Respondent violated Rule 3.4(b) by falsifying evidence because he purchased the detox shampoo for his client to use before a probable court ordered drug screen.

He was found to have engaged in more prosaic misconduct in a number of other matters, including a criminal conviction

[he] entered pleas of guilty to counts of Theft of Utility Services and Theft. He was fined $500; sentenced to serve 180 days in jail on each count, said sentences to be suspended; and placed on one year of supervised probation.

(Mike Frisch)

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

Case Summaries Educate The Public

A nice feature of the excellent web page  of the Ohio Supreme Court is a summary of cases scheduled for argument.

For example

The Board of Commissioners on Grievances and Discipline recommended to the Supreme Court in a December 2014 report that Thomas J. Simon of Ashtabula be suspended for two years, with 18 months stayed. The board determined that Simon neglected two cases because he didn’t keep the clients reasonably informed about their cases, including that courts had dismissed them. (The disciplinary board is now known as the Board of Professional Conduct.)

Clients Complain
Danny Hubbard lost his job as a truck driver for the Village of Jefferson in 2009 and hired Simon to represent him in a wrongful termination case. Hubbard claims he never received three letters about his case – two spelling out the cost of the attorney’s retainer, and one about the status of the case. Simon also missed a hearing. After reviewing Hubbard’s sometimes conflicting testimony, the disciplinary board panel that reviewed the matter concluded that Simon didn’t inform Hubbard about the need for a retainer, didn’t tell him about information needed for discovery or the city’s request for summary judgment from the court, and didn’t ask for the client’s consent before dismissing the case. Simon also neglected to inform Hubbard that he had no professional liability insurance.

In the second case, Louis Grippi hired Simon in April 2010 for a wrongful termination claim involving the City of Ashtabula and a union. Simon didn’t respond to motions made by the city and the union, and the case was dismissed with prejudice. Grippi stated that he found out his case was dismissed while reading the newspaper. The board’s panel determined that the attorney didn’t keep Grippi informed about the case status and failed to notify the client about the pending dismissal of his case.

Attorney’s Objections
Simon, who served as Ashtabula’s city solicitor for more than two decades, objects to the board’s conclusions and recommended sanction. He argues that the panel failed to consider all the evidence provided. Given each client’s conflicting testimony before the board’s panel, Simon contends that the disciplinary counsel didn’t meet its burden of proof with clear and convincing evidence. He notes that no harm came to either client and he cooperated in the disciplinary process. He adds that the Ashtabula County Bar Association dismissed Hubbard’s grievance against him. In Grippi’s case, Simon contends that he also learned about the case dismissal from the newspaper.

He concludes that he has violated only one professional conduct rule, and he asks the court to either fully stay any suspension or issue a public reprimand.

Disciplinary Counsel’s Perspective
The Office of Disciplinary Counsel, which investigated the complaints, counters that it met the burden by presenting clear and convincing evidence of the professional conduct violations at the hearing. The disciplinary counsel notes that the panel is in the best position to evaluate the evidence and the credibility of witnesses to draw its conclusions, which were that Simon didn’t keep his clients reasonably informed about their cases. Counsel supports the two-year suspension with 18 months stayed.

- Kathleen Maloney

A gold star for this. (Mike Frisch)

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