Thursday, August 14, 2014

Politics As Unusual

The New York Appellate Division for the Second Judicial Department has imposed disbarment for an attorney's felony conviction.

The attorney pleaded guilty in federal court to offenses relating to

...his participation in a scheme, from in or about November 2012 up through and including in or about April 2013, an object of which was to accept a bribe in exchange for authorizing a member of the Democratic Party to appear on the Republican Party primary ballot for New York City Mayor, in violation of New York Penal Law §§ 200.45 and 200.50 (hereinafter the 2013 NYC Mayor Bribery Scheme).

Disbarment was automatic for this felony conviction.

The New York Post reported that the attorney was the head of the Bronx Republican Party. (Mike Frisch)

August 14, 2014 in Associates, Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Heat Of The Moment

A misdemeanor criminal conviction has resulted in an attorney's public censure from the New York Appellate Division for the Second Judicial Department.

The facts

On or about May 21, 2011, the respondent was involved in an incident at Saratoga Spa State Park, which is located within the City of Saratoga Springs, New York, during which he allegedly tackled David P. Needham, throwing Mr. Needham to the ground and causing Mr. Needham to suffer injuries to his neck and shoulder as well as a head concussion. The respondent also was alleged to have applied pressure to Mr. Needham's throat and neck that impeded Mr. Needham's breathing and caused him to be dazed and shaken and to have memory loss. Based upon the subject alleged incident, the respondent was charged, on or about June 6, 2011, in the City Court for the City of Saratoga Springs, with assault in the third degree, a class A misdemeanor, in violation of Penal Law § 120.00(1), and strangulation in the second degree, a class D felony, in violation of Penal Law § 121.12. On September 12, 2011, with the prosecution's consent, the respondent entered an Alford plea (see North Carolina v Alford , 400 US 25) to the reduced charge of reckless endangerment in the second degree, a class A misdemeanor, in violation of Penal Law § 120.20, in full satisfaction of the charges.

As to the sanction

In determining an appropriate measure of discipline to impose, this Court has considered the Special Referee's determination that the respondent's conduct was spontaneous, "having occurred in the heat of the moment." Additionally, the conduct was unrelated to the practice of law. This Court also has considered the evidence in mitigation offered by the respondent, including character letters attesting to the respondent's outstanding reputation in the legal community and his record of pro bono activities. The respondent has no prior disciplinary history.

(Mike Frisch)

August 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Never Admitted, Permanently Disbarred

A Florida attorney who has never been admitted to practice in South Carolina has managed to get permanently disbarred by the South Carolina Supreme Court.

The attorney set up an office in the Palmetto State ostensibly to engage in a federal immigration practice.

Except for a two-week period in 2012, she had no South Carolina lawyers associated with the practice.

The court found that the attorney's web page and other professional listings failed to indicate her practice limitations and contained other material misrepresentations.

She advertised for clients in matters that required her to be a licensed South Carolina attorney.

Further, despite her initial cooperation, she made false statements and eventually defaulted in the bar investigation.

Although the court characterizes its sanction as permanent, it leave open the possibility that the attorney may seek to have it set aside in the future. (Mike Frisch)

August 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Plane Meaning

The Illinois Review Board has recommended a censure of an attorney based on findings of misconduct arising from the representation of a person who survived an airplane crash.

The findings

As a result of the crash, [client] Gumus underwent back surgery and was hospitalized for several weeks. Following his release from the hospital, he went to his ex-wife's home in Rotterdam to recuperate. The first evening he arrived at his ex-wife's home, he suffered a heart attack. Sometime after the plane crash but prior to April 19, 2009, he retained a Netherlands law firm called SAP Advocaten ("SAP") to represent him in all claims relating to the crash.

Soon after the crash, Respondent sent representatives to the Netherlands to meet with victims of the crash. Surreya Yigitbasi ("Yigitbasi"), a lawyer in Turkey, worked for Respondent on an hourly basis. He referred clients to Respondent's firm and assisted Respondent with matters relating to the crash. Yigitbasi testified at the hearing in this matter that he received a phone call in April 2009 from Ali Atak ("Atak"), who identified himself as Gumus' uncle. Yigitbasi gave Gumus' phone number to a lawyer from Respondent's firm. On April 19, four individuals visited Gumus while he was bedridden. After a presentation lasting several hours, Gumus signed a document to retain Respondent's firm to represent him in the United States in claims against Boeing Company or any other persons or corporations that could be liable for his injuries arising out of the plane crash.

As of April 19, Gumus had already retained SAP and he had no intention of discharging SAP from representing him. He was in pain during the meeting and did not understand the purpose of the meeting. Within a day after the meeting, Gumus called SAP. He asked SAP to "certify that these are not my lawyers" and asked for assistance to prevent the four individuals from disturbing him any further. SAP lawyer Sander de Lang ("de Lang") explained at his evidence deposition that under Dutch law, a client may cancel any agreement within eight days after signing without incurring any costs. Mr. de Lang assisted Gumus in preparing a document entitled "Notice of Withdrawal of Attorney", withdrawing "the power of attorney for representation" by Respondent's firm. Mr. de Lang sent a letter and the Notice of Withdrawal to Respondent. Respondent admitted receiving the documents. However, Respondent believed that Gumus was simply confused as to why he had hired Respondent's firm. Respondent did not contact Gumus or de Lang after receipt of the letter and the Notice. Instead, she testified she contacted Yigitbasi, who in turn contacted Atak. Atak did not contact Gumus but told Yigitbasi in this same conversation that everything was "okay" and that Yigitbasi could continue. Yigitbasi relayed the content of the conversation with Atak to Respondent. Respondent testified she then proceeded to do work for Gumus and other victims of the crash in 2009 and early 2010.

Gumus was unaware that Respondent was still acting as his lawyer and he did not authorize Respondent to perform any services on his behalf. SAP worked during the same time period on behalf of Gumus. SAP also worked with an associate in the Kreindler & Kreindler law firm in New York named Orla Brady, and with the Chicago law firm of Powers, Roger & Smith.

On March 23, 2010, Respondent filed a lawsuit in the Circuit Court of Cook County on behalf of Gumus and others against Boeing. She did not communicate with Gumus prior to filing suit. Respondent testified she told Yigitbasi to contact Gumus to approve the filing of the complaint. Yigitbasi told Respondent that he was unable to reach Gumus but that Atak said to go ahead and file the complaint. There was no testimony that either Yigitbasi or Atak communicated with Gumus. Gumus testified he never authorized Respondent to represent him or to file a lawsuit on his behalf.

In early May 2010, Mr. de Lang learned from Turkish Airlines that Respondent was claiming to represent Gumus. He immediately sent an e-mail to Respondent stating that Gumus had discharged Respondent and attaching the April 2009 Notice. Respondent's partner, Mervin Mateo, a New York lawyer, responded to the e-mail advising de Lang of the lawsuit and stating that it would be detrimental to Gumus to dismiss the case. Mateo asserted that Respondent would contact the client. Respondent did not contact Gumus although she claimed an associate, Ray Welcher ("Welcher"), sent Gumus a letter dated May 6, advising him of the filing of the action against Boeing. Welcher denied writing or authorizing the letter. Gumus testified he never received a letter from Respondent's office.

After a flurry of e-mails between various lawyers, Kreindler & Kreindler and Powers, Roger & Smith moved to substitute as counsel in the lawsuit. Thereafter, at Respondent's direction, Welcher contacted Orla Brady of Kreindler & Kreindler and told Brady that Respondent's firm would not oppose the motion to substitute if Brady agreed to pay Respondent's firm 50% of any fees received. Brady refused the demand. Respondent did not appear at the hearing on the motion to substitute but sent Welcher to appear for the firm. At the hearing on the motion to substitute, Brady made an oral motion for sanctions against Respondent. The Court granted the motion to substitute but denied the oral motion for sanctions, stating, "Put it in writing and I will reconsider it." There was no testimony that Brady ever requested reconsideration; she reported Respondent's conduct to the ARDC.

The board agreed with the hearing board that the attorney violated Rule 1.16.  (Mike Frisch)

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Misconduct In Remark About Judge

The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that a statement by the press spokesperson for the Orleans Parish District Attorney's Office did not violate ethics rules.

The basis of the bar charges was a remark made by the accused attorney after a judge had found the defendant in a high-profile case not guilty.

The newspaper report that led to the charges is linked here.

In reponse to a reporter's query, the spokesperson said

District Attorney Cannizzaro has fought hard to eliminate corruption, unfortunately [the judge] thwarted our efforts today.

Both the hearing committee and found found that the statement was not false and was not intended to impugn the integrity of the judge.

The board ordered the dismissal of the charges. (Mike Frisch)

 

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Grudging Acceptance" Of Guilt Not Enough To Obtain Reinstatement

The Wisconsin Supreme Court declined to reinstate a disbarred attorney notwithstanding the favorable referee report and the lack of opposition on appeal from the Office of Lawyer Regulation.

The OLR had opposed reinstatement at the hearing before the referee.

The attorney was convicted in 1984 of conspiracy to obstruct commerce by extortion. His father and brother were also convicted in the same case.

The court here found that the attorney and referee had minimized his role in the crime, in contrast to the conclusions of the United States Court of Appeals for the Seventh Circuit in affirming the conviction.

The court

The record reveals a pattern of a lack of acceptance of responsibility over the years that have passed since Attorney Balistrieri's conviction.  When the [Board on Attorneys Professional Responsibility] recommended against the reinstatement of his license in 1995, in large part based on its conclusion that he had not accepted responsibility for his criminal conduct, Attorney Balistrieri ultimately responded by claiming that BAPR was biased against him because of his Italian heritage.  He attacked the integrity of the reinstatement process with a completely unsupported charge of ethnic bias rather than demonstrate how his words and actions showed that he now understood that he needed to obey both the letter and the spirit of the law and the ethical rules governing attorneys.

Later, in a deposition in a civil case, he asserted that the charges against him were brought by "a homosexual child molester with a cocaine habit..."

In sum

We are not making a full and unconditional confession of one's crime a prerequisite to the reinstatement of a law license for everyone who has committed a crime.  What Attorney Balistrieri was obligated to prove by clear and convincing evidence, however, was that he has a good moral character, that he possesses a proper attitude toward the standards that are imposed upon members of the bar of this state, which includes both the general law and the Rules of Professional Conduct for Attorneys, and that he will act in conformity with them.  His grudging acceptance of the fact of his conviction after decades of besmirching the individuals who did their job in investigating and prosecuting him or who acted within their proper role in the lawyer regulation system is not enough to meet that standard.

The court also concluded that the referee had "downplayed" other issues relating to post-disbarment taxes and omissions on the reinstatement application.

Justice Bradley dissented and would reinstate in deference to the referee's credibility findings. (Mike Frisch)

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Guilty Plea Forecloses Innocence Claim In Bar Discipline Matters

An attorney who had been suspended for two years in New York received identical reciprocal discipline from the Vermont Supreme Court.

The attorney was charged with felony offenses in New York and pleaded guilty to misdemeanor identity theft.

Discipline was imposed in New York as a result of the conviction.

In the Vermont proceeding, the attorney denied that she had defrauded anyone. Rather, she contended that the guilty plea was offered because of her husband's health issues and the legal expenses of fighting the felony charges.

Vermont Disciplinary Counsel agreed and advocated in favor of a public reprimand, contending that the evidence showed that the attorney had "not defrauded anyone" and had entered a "plea of convenience."

The court strongly disagreed, concluding that the guilty plea foreclosed arguments favoring actual innocence.

According to the court, while Disciplinary Counsel plays a "crucial role" in bar discipline matters that entitle its views to the "strongest consideration," it is the court that is the ultimate decisionmaker in attorney misconduct matters.

There is a lesson here - when an attorney is convicted of a crime by plea or trial, courts imposing bardiscipline will not entertain a claim of innocence. (Mike Frisch)

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

All That Jazz

The Connecticut Appellate Court affirmed the findings of misconduct and suspension of five months imposed by the superior court, rejecting a host of contentions of the sanctioned attorney.

It all started in a jazz bar.

The attorney met a couple at the bar who were having marital problems. He and the couple began a social relationship which led to an intimate but non-sexual relationship with the wife.

In her home on several occasions, they held hands, shared wine, "with candles, music and lights dimmed... Their first kiss came on such an occasion on September 24, 2010."

In December 2010,  the husband came home and found the two in the above-described "ambience" and was less than pleased.

The husband then moved to disqualify the attorney. The motion was granted.

The superior court held, and the court here agreed, that the attorney's advice to the wife in the divorce amounted to a concurrent conflict of interest and was prejudicial to the administration of justice.

The court here held that the "conduct prejudicial" rule was not void for vagueness and that the attorney's due process and association rights were not violated.

Further, the superior court properly exercised its discretion in imposing sanction.

The ABA Journal reported on the charges in December 2011

The Connecticut Law Tribune reported on Zelotes’ case earlier this month. The disciplinary panel said the evidence was insufficient that Zelotes’ relationship with the woman was sexual. (Zelotes had admitted that the relationship was “intimate” but denied it was sexual.) But the panel found nonetheless that the “burgeoning romantic and intimate relationship” materially limited the representation.

According to the disciplinary panel, Zelotes explained why he thought an intimate relationship with clients is not problematic. “When you are representing someone you have love and affection for, you’re going to work twice as hard and there’s no question about it. It is not a detriment to the relationship,” Zelotes reportedly said. “My advice to a woman going through a divorce is, find a competent trial lawyer and make him your boyfriend.”

Zelotes told the Norwich Tribune that the disciplinary panel report was “replete with errors” and he’s willing to take the issue all the way to the U.S. Supreme Court.

(Mike Frisch)

August 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Hail To the Chief

An announcement of new leadership for the National Organization of Bar Counsel from the web page of the Pennsylvania Disciplinary Board

The Disciplinary Board of the Supreme Court of Pennsylvania’s Deputy Chief Disciplinary Counsel, Paul J. Burgoyne has been elected to serve as President-Elect of the National Organization of Bar Counsel (NOBC). In this role, he will serve as the Chair of the Program Planning Committee, as well as serve in the absence of NOBC President, Tracy Kepler. In August 2015, he will become President of NOBC. Previously, Burgoyne served as Treasurer (2013-2014) and Secretary of the NOBC (2012-2013) and served two terms as a Director-at-Large (2007-2009, 2010-2012)...

For more than 32 years, Burgoyne has worked in the Office of Disciplinary Counsel (ODC) in Pennsylvania and has served as Deputy Chief Disciplinary Counsel since 1993. Overseen by the Disciplinary Board of the Supreme Court of Pennsylvania, ODC investigates complaints against attorneys, and when appropriate, prosecutes. In his role, Burgoyne is also responsible for providing educational programs for attorneys and consumers.

“I believe that membership in NOBC is necessary for every lawyer in attorney regulation,” said Burgoyne. “As the practice of law becomes more national and international, the relationships among the member jurisdictions are integral to performing our jobs.”

Prior to his position as Deputy Chief, he was a staff counsel in the Philadelphia office beginning in 1981, and later served as Counsel-in-Charge of the Philadelphia office from 1987 to 1993. He spent five years in private practice limited to criminal law, and three years at Legal Aid of Chester County in West Chester, Pa. Those positions provided experience trying cases in both state and federal courts.

In addition to serving the NOBC, Burgoyne has conducted seminars and participated in panels for organizations such as the Association of Professional Responsibility Lawyers, Pennsylvania Association of Criminal Defense Lawyers, Defender Association of Philadelphia, Conference of County Bar Leaders and the National Association of Legal Secretaries.

Burgoyne received his Bachelor of Arts in Political Science from LaSalle University in 1970, and iscurrently the Immediate Past President of the La Salle University Alumni Association Board of Directors and Chair of the Counsel of Past Presidents. He earned his Juris Doctorate degree from Rutgers University Law School in Camden, N.J., in 1973.

Congrats to Paul and the NOBC for a fine choice. (Mike Frisch)

August 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, August 10, 2014

Checks Without Balances

An attorney convicted of grand larceny in the second degree has been disbarred by the New York Appellate Division for the Fourth Judicial Department.

Syracuse.com had the story, which involved the attorney and her spouse stealing over $400,000 from the United Methodist Church of Manilus

The couple was originally indicted in October 2013 for thefts from January 2008 to March 2013.

Prosecutors say the couple wiped out the church's endowment in three ways:

1. By writing checks to Osborn's business
2. By writing checks to Osborn himself
3. By writing checks to Meyer

[Attorney] Meyer was church treasurer and Osborn was chair of the finance committee. They served as each other's checks and balances.

The couple wiped out the church's endowment fund. Much of the money was from people who left it to the 150-year-old church in their wills. The fund was used to pay for programs that help people in need locally and around the world.

In New York, disbarment is mandatory for conviction of a felony under state law. (Mike Frisch)

August 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Arbitrary And Capricious

The Minnesota Supreme Court has held that a panel of the Lawyer Professional Responsibility Board acted in an "arbitrary and capricious" manner in bifurcating disciplinary charges against an attorney.

The attorney (not identified by name in the opinion) was accused of violating Rule 8.4 (dishonesty) and 1.5(e) (fee-splitting with an associate from another firm).

The associate staffed his/her law firm's intake hot line. Over drinks, the associate and the accused attorney reached an agreement by which cases the firm declined were referred to the accused attorney in return for a share of any resulting fees.

The law firm filed the bar complaint.

The panel ordered a private admonition for the fee-splitting and authorized charges for dishonesty. The basis for the dishonesty charge was the accusedattorney's failure to advise clients of the fee arrangements.

The law firm appealed to the court, contending that the bifurcation of the charges was arbitrary and capricious.

The court agreed, holding that the disciplinary panel was required to consider the allegations as a whole.

The court vacated the admonition and ordered that the two charges be heard in a single matter.

This principle - that charges of misconduct against an attorney should be heard in a single matter - is an important one that allows the disciplinary system to see the full picture of an attorney's possible misconduct.

I handled a bar prosecution many years ago where there were allegations of both misconduct and mental disability. The hearing committee and the Board on Professional Responsibility held that the matters must proceed on separate tracks. The D.C. Court of Appeals disagreed and remanded for a single hearing where the issues of misconduct and mental health were considered in a single tableaux.

My case is In re Robert Stone. (Mike Frisch)

August 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, August 9, 2014

What Comes After Disbarment?

Permanent disbarment.

The Louisiana Attorney Disciplinary Board has recommended that a disbarred attorney be permanently disbarred for a post-disbarment criminal convition.

The attorney was disbarred after his conviction on charges that he stole a two-gallon gasoline can from his father.

He also broke one of his father's fingers in the encounter.

Here, he was stopped while driving on a suspended license. He told the arresting officers that there were narcotics in the car. The narcotics were approximately 2000 Xanax pills. He pled to drug possesssion charges.

A hearing committee had proposed that this most recent conviction be held for consideration if he ever sought to get his license back.

The board here concluded that enough is enough. (Mike Frisch)

August 9, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 8, 2014

Twitter Feed Threats Leads To Arrest; Threatened Judge "Didn't Even Know What Twitter Was"

The web page of the Pennsylvania Disciplinary Board reports that an attorney was recently placed on disability inactive status.

Philly.com has some information about the attorney in a June 2014 post

Less than two weeks after she was arrested for allegedly threatening Philadelphia Common Pleas Court Judge Jeffrey Minehart on Twitter, Jennifer Mondesire, the daughter of suspended Philadelphia NAACP leader Jerry Mondesire, has been released on bail.

According to court records, Mondesire, 35, was deemed incompetent after a mental health evaluation, and Judge Marsha Neifield reduced her bail. She has been ordered to comply with in-patient treatment and to stay off all social media.

Mondesire’s Twitter feed, since deleted, contained several messages mentioning Minehart, including at least one direct threat on his life. When reached in his chambers after the arrest, Minehart, who presided over the Kermit Gosnell trial, told us that he didn’t even know what Twitter was and said he had no idea why Mondesire would target him.

Unusually, the Philadelphia Police Department directed all calls about Mondesire to Tasha Jamerson, spokesperson for District Attorney Seth Williams. Normally after an arrest, police release basic details about the defendant and the charges against them — including when mental health issues are involved — but police refused to do so in this case.

Also unusual, police have not released a mugshot of Mondesire and haven't been able to offer an explanation as to why. [UPDATE: Police now say that Mondesire was never photographed, even though she was in custody for more than a week.]

Mondesire's next court date is July 9th. She faces charges of harassment, terroristic threats and marijuana possession. Judge Neifield has sealed the case.

Meanwhile, reports have surfaced that Pennsylvania Attorney General Kathleen Kane has been reviewing a 2009 probe of Jerry Mondesire's finances. And AxisPhilly has been asking a lot of questions about Next Generation Community Development Corporation, the non-profit he created in 1999.

Jerry Mondesire has not responded to requests for comment, and Jennifer Mondesire was unable to be reached.

CNN Justice had this report on the Gosnell case. (Mike Frisch)  

August 8, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2014

Former Hastings Aide Disbarred

The Pennsylvania Supreme Court has disbarred by consent an attorney convicted of money laundering and other federal offenses.

The ABA Journal had the story of the criminal matter

When attorney Mikel D. Jones, obtained a multimillion-dollar credit line from a New York venture capital firm in 2006, he agreed to use the money on legitimate law firm expenses.

But instead Jones, 56, and his wife, Dona Nichols Jones, 54, paid off personal credit card debt and purchased tickets to Philadelphia 76ers basketball games. Federal prosecutors say they used fraudulent invoices from a company they controlled and another business to document, falsely, that goods and services had been provided to the Philadelphia law office Jones owned and operated when they had not, according to the Philadelphia Business Journal and the Philadelphia Tribune.

They also were accused of laundering around $160,000 by putting it in Florida bank accounts for Dona Jones and another relative, and then used that money to repay funds Mikel Jones had withdrawn from his law firm's trust account, the Inquirer article says. The couple reportedly got around $350,000 from the line in 2008 and 2009.

Jones, who was a longtime former aide to U.S. Rep. Alcee Hastings, D-Fla., and was running the Philadelphia personal injury law practice at the same time he was working for Hastings, was convicted in November, along with his wife, of federal crimes related to the couple's use of the law firm line of credit, according to the Pulp blog of the Broward-Palm Beach New Times.

He lost his job with Hastings when he was convicted by a federal jury in Philadelphia and his Florida law license was suspended temporarily last week by the state supreme court, pending further action. Hastings suspended Mikel Jones from his job when federal charges were filed earlier in 2011, notes a Sunshine State News blog post.

His law license is listed as active on a Pennsylvania Supreme Court website.

On Monday, Mikel Jones was sentenced to a 42-month prison term by a federal judge in Philadelphia, and Dona Nichols Jones, who helped in the law firm's operations, got one day, as a Philadelphia Inquirer article details.

The disbarment is effective asofthedate ofthe attorney's 2012interim suspension. (Mike Frisch)

August 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Where The Body Is Buried

The Michigan Attorney Discipline Board has affirmed a panel's one-year suspension of an attorney convicted of felony possession of an unregistered machine gun.

The Grievance Administrator had sought disbarment.

ABC12.com had a story about the criminal case

The family of a murdered Mid-Michigan woman is speaking out after a shocking court confession this week.

Former attorney Michael Hoy admitted he helped bury their loved one's body.

Hoy didn't come clean on his own. He was in federal court for sentencing on a gun charge.

As ABC12 reported Tuesday, the judge brought up Katie Cook's 2005 murder.  There was mention of it, and Hoy's involvement, in his pre-sentencing report.

What didn't come out in court was how Hoy came to be implicated. Federal court documents detail that information.

Out of all the things that could have cracked Cook's murder case wide open, it came down to a state probation officer smelling marijuana during a home visit at Hoy's brother Gerald Hoy's place in Shiawassee County.

Federal court documents show police found a grow operation and guns - a number of them fully-automatic machine guns.

Published reports point to a federal search warrant in which Gerald, a convicted felon, said he got the illegal weapons from his brother Michael.

"When I was contacted by the feds about someone who possibly knew information, I've got that phone call a hundred times," said Mt. Morris Township Police Chief Scott McKenna.

But McKenna said that call about Cook's murder was different.  Police focused on Michael and executed a search warrant at his Genesee County home last July. They found machine guns and materials needed to convert the weapons.

A 15 day dig uncovered Cook's remains, in a Gaines Township cornfield, almost exactly seven years after she went missing from Mt. Morris Township.

The state's case against Michael was eventually dropped while his federal case continued.

He pleaded guilty to one count of possession of an unregistered machinegun. He was sentenced, Tuesday, to one year in federal prison and three years probation.

Michael confessed, after nudging from the judge, that he helped a mentally ill acting friend bury a woman's body, scared that friend would hurt him if he didn't. 

"Everybody's going to present a story that benefits them in some way," McKenna said.  "There's tons of things that had to fall into place for us to find Katie's body. I don't care how they happened. I just care we got here and that her family has her today."

Michael's said he has a written agreement with Genesee County prosecutors to testify against that friend. The agreement includes a misdemeanor charge, according to what was said in federal court Tuesday.

McKenna confirmed there is an agreement in place, but said he is unsure of the exact details. 

Michael's brother Gerald is scheduled to be sentenced in federal court next month.

While Cook's family finds some relief in Michael taking some responsibility, her sister says they don't believe the man suspected in her murder was mentally ill and they don't believe Michael was scared of him.

"We can not wait for all of this to be over. He's just one small step in this. We're waiting to get the big fish," said Jenni Cook.

The suspect, Cook's boyfriend at the time, remains in jail in Missouri charged in a 2010 Christmas Eve attack on his wife.

Marie Hunault says she is that victim and is in the process of divorcing Joseph Hunault.

Police and prosecutors have not publicly named him as the suspect.

"We were driving home Christmas Eve to see family," Marie said Wednesday.

Marie said she and Joseph, who'd been married one month, were arguing, things got physical and then very violent.

"He stabbed me right here," she said pointing to her neck.

Marie said Joseph ditched her, bleeding and nearly dead, on the side of the road, but returned.

ABC12 asked her if she thought he was coming back to kill her. "Oh yeah," she said. "To finish it."

Police arrived, Joseph was arrested and charged.

"If he's found guilty, it's 10 years to life," Marie said.

Marie said she did not know Cook, but confirms a connection between Cook and Joseph.

"He'd bring her name up," she said.

Marie said Joseph would threaten her and hint it wouldn't be the first time he had hurt a woman.

Marie said she also knew Michael well, adding he was through law school at the time sometime in 2006 when she first started dating Joseph.

Hoy was a close friend of Joseph's and frequently at their home, she said. 

Here, the board found that the record was "devoid" of evidence of a sinister intent. (Mike Frisch)

August 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Confirmation, I Need Confirmation

A Tennessee attorney has received a stayed one-year suspension and probation for misconduct in a criminal appeal and a divorce matter.

The attorney failed to perfect an appeal that he had been retained to pursue.

In the divorce matter, the attorney was retained by the wife and "prepared the appropriate paperwork to file the divorce" but

...prior to filing the divorce, [he] received information from the husband that the parties had reconciled. [He] did not confirm the reconciliation with his client or inform her that the divorce complaint was not filed. The wife inquired of [his] office staff concerning the progress of the divorce, and the staff led her to believe the divorce was proceeding.

The wife discovered after approximately a year that the complaint had not been filed. The attorney secured the divorce when the wife informed him that there had been no reconciliation. (Mike Frisch)

 

August 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Trip Not Taken

The California State Bar Court Review Department has recommended a partially stayed two-year suspension and probation for misconduct in two matters.

The recommendation would require an actual suspension of six months.

From 1998 to 2008, Cisneros was a partner at the law firm of Graham, Vaage & Cisneros (Graham Vaage). He represented SMS Financial, LLC (SMS) in numerous client matters. In early 2008, he filed a complaint on behalf of SMS that included causes of action for judicial foreclosure of a deed of trust and breach of continuing guaranty. Cisneros sought a writ of attachment, and a hearing was scheduled for June 11, 2008, after several continuances. Two days before the hearing, Cisneros called Jonathan Hoffer, an SMS partner, claiming he had traveled six hours roundtrip to attend the hearing. He advised Hoffer that the writ application had been taken under submission. None of this was true, which Hoffer discovered when he contacted the court. Hoffer confronted Cisneros by telephone. Cisneros apologized for making the misrepresentation. Thereafter, SMS terminated Cisneros, who fully cooperated in returning SMS’s 90 to 100 client files. At trial, Cisneros testified he felt "horrible" about the situation, but did not explain why he had lied to his client.

In an unrelated matter, the review department found he engaged in what it called misappropriation through gross negligence.

There were a number of mitigating factors, including cooperation, remorse and favorable character testimony. (Mike Frisch)

August 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 5, 2014

Perilously Close

The Wyoming Supreme Court imposed a suspension of three years for an attorney's misconduct in seven matters.

The court rejected both the disbarment recommendation of disciplinary counsel and the attorney's call for a lesser sanction

This Court does not agree with Ms. Richard’s characterization of her conduct as negligent. In case after case, she has demonstrated an intentional, willful refusal to respond appropriately to discovery requests, comply with court orders and follow the rules of procedure. She has also repeatedly demonstrated a total lack of concern for honest communication with opposing counsel and the courts. Looking at each case individually, without considering the other six cases, Ms. Richard’s conduct might be seen as an isolated event, resembling behavior members of the bar have seen from some other lawyer in some other case. Taken together, however, Ms. Richard’s conduct in the seven cases clearly shows not an isolated event but a consistent pattern of misbehavior affecting many, many people. Eight judges sitting in seven districts and lawyers in five different law firms have struggled with Ms. Richard’s obstructionist tactics. The clients of those five law firms as well as Ms. Richard’s clients have incurred unnecessary expense and been subjected to needlessly prolonged litigation because of her misconduct. The video-tape deposition in Miller clearly shows the witness in that case was also a victim of Ms. Richard’s unacceptable behavior.

The court found the misconduct caused the attorney to come "perilously close" to disbarment. (Mike Frisch)

August 5, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Attorney Reprimanded For Judicial Campaign Statements

A majority of the Wisconsin Supreme Court has ordered a public reprimand of an attorney for comments made in connection with the attorney's candidacy for the Supreme Court.

The matter involved a series of complaints filed on behalf of a prosecutor against the attorney.

The two had a contentious relationship that led to 30-day suspensions for both.

The court

We must take care to limit the scope and application of the Attorney's Oath so that it does not reach a substantial amount of constitutionally protected conduct or significantly inhibit an attorney's exercise of the right of free speech.  We are reluctant to deem that statements made during a judicial election violate the Attorney's Oath.  The Attorney's Oath should not be invoked to stifle legitimate critique of judicial administration or process.

However, Attorney Sommers' sweeping assertion that "judges are permitted to get away with falsifying the record" reflects outspoken contempt for the entire court system.  He has declined to participate in this proceeding.  The facts underlying the referee's conclusion that Attorney Sommers violated that portion of the Attorney's Oath requiring an attorney licensed by this court to maintain the respect due to courts and judicial officers are a matter of record and are not disputed.  We emphasize that this determination is made in the context of a default proceeding and our holding is limited to the facts of this case.  In sum, the referee's findings of fact on this point have not been shown to be clearly erroneous, and we adopt them as well as his conclusion of law.

The court did not adopt the referee's sanction proposal of a 60-day suspension.

Chief Justice Abrahamson would impose no discipline, noting that the attorney was suspended for his dealings with the prosecutor. Justice Crooks would adopt the referee's recommendation. (Mike Frisch) 

August 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Note on Reading aspx Hearing Reports from the Louisiana Attorney Discipline Board

Mike Frisch has helpfully cataloged many instances on this site of state bars or their disciplinary authorities making it easier on people to see reports and read them. Or he has nicely ragged on ones that make it hard for no reason. Recently I have had more and more trouble reading the hearing committee reports and disciplinary board opinions from the website of the Louisiana Attorney Disciplinary Board, ladb.org. I don't think it's intentional on their part (they have been a really good souce of information in the past and don't seem to try to hide disciplinary information), and they may open easily on many attorneys' computers, but they don't open easily on mine. They used to download in a PDF format. Now they seem to default to opening on the website's own page instead of getting downloaded (and on mine that just freezes my computer). And if you do download it, it saves in a format ending in .aspx. At least on my computer, that opens as garbled data.

I searched on the internet and found that .aspx is an executable file format that one should be wary to open. I guess opening it within the board's website "viewer" pane is not a problem (if you can get it do that), but once it is downloaded it does look scary to me. But I also read that one can change the file extension from .aspx to .pdf and that new file can then be opened as a regular PDF. I did that and it worked. That of course would be the same procedure one would use to easily read a downloaded report from this site linked from the Louisiana site, since it would likely be "saved as" to the .aspx extension, assuming that just clicking on the link from our blurb does not work.

An appeal to LADB: could you just go back to having the files saved as PDFs? I think this is probably a case where the tech consultants made the site needlessly complicated and assume everyone has on their computers the same opening-up programs as they do. Well, everyone does have a PDF reader. And no one is too scared of just opening up a non-executable simple PDF.

One internet sites tells me: "If you've downloaded an ASPX file and expected it to contain information (like a document or other saved data), it's likely that something is wrong with the website and instead of generating usable information, it provided this server-side file instead." That is exactly what happens with me: when I download the file offered at ladb.org, it arrives as an .aspx file and not "usable information" until I change it to a PDF. Please, ladb, fix the "something is wrong" part?

UPDATE: The site works fine in IE and Chrome browsers. I mean, fine in the sense that you can download a PDF after viewing it in their viewing pane. Personally, I prefer not to have a site open up docs and the like for viewing just by clicking on the Respondent's name. But I recognize that there's no technological error in having it do that. I just like to be asked first whether it does something on my computer. But I can't say LADB is doing anything awful by going ahead and executing a script in a viewing pane by my clicking on the name of a Respondent. It just presents it as a view to the reader. I am not a big fan of that way of doing that, or not asking first whether one wants to have something run on my computer. So I admit I like PDFs as the main presentation. But this way certainly does allow PDFs to be downloaded in these two browsers, at least, and also in some people's Firefox (though not mine).

[Alan Childress]

August 5, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)