Thursday, August 10, 2017
A decision issued today is summarized on the web page of the Tennessee Supreme Court
A District Committee of the Virginia State Bar Disciplinary Board has ordered a public reprimand of an attorney for being drunk in public.
But (as Paul Harvey would say), there is a rest of the story.
The attorney appeared in court representing himself in a civil matter. Several police officers both in and out of the courtroom noticed he appeared to be intoxicated. He was asked to leave the courtroom and an officer noticed an odor of alcohol. He declined to take a breathalyser and was arrested for being drunk in public.
Those charges were not pursued when he withdrew the appeal of an earlier DUI.
In the bar case, he denied that he was intoxicated.
Notably, the cited violation was a lack of competence in representing himself!
He had not complied with the terms of a private admonition, leading to this reprimand. (Mike Frisch)
The web page of the Ohio Supreme Court links to a story from the Columbus Dispatch
A disciplinary board is asking the Ohio Supreme Court to permanently disbar a Columbus lawyer for improperly using his client trust account to launder more than $700,000 withdrawn from the assets of his elderly mother in the years before her death.
The Ohio Board of Professional Conduct also found that Kinsley Nyce concocted “a complete sham” to explain some of the transactions and dishonestly tried to conceal his conduct while displaying contempt for the disciplinary process and showing no remorse.
The charges against Nyce, 65, accuse him and his brother, Roger, of improperly using his office trust account and the dormant bank account of an estate to disperse money taken from their mother after she gave her sons the power of attorney over her affairs.
Barbara Nyce had more than $700,000 in assets prior to entering the first of two Vermont nursing homes in 2013, but owed the facilities about $205,000 by the time she died in 2015, the complaint states. Her sons also sold themselves their mother’s home for $10, the complaint says.
On one day in mid-2013, the Nyce brothers transferred $584,619 from their mother’s bank account, with $200,000 placed in the bank account of a closed estate, $200,000 placed in a certificate of deposit in Kinsley Nyce’s name and $177,172 used to buy a condominium in the name of Kinsley Nyce’s wife, the complaint says.
The nursing homes owed money for Mrs. Nyce’s care prior to her death are suing the Nyce brothers and their mother’s estate in federal court in Vermont in alleging the fraudulent transfer of her assets.
The board also accuses Nyce of failing to notify clients that he did not carry professional malpractice insurance.
Nyce will be permitted to make arguments with the Ohio Supreme Court arguing against the loss of his law license.
He also was village solicitor for the tiny town — and notorious speed trap — New Rome in western Franklin County in the early 2000s before he was fired. He became a critic of the town and its officials before the village with fewer than 150 residents was dissolved in 2004.
The Idaho Supreme Court sanctioned a convicted former prosecutor
On April 13, 2017, the Idaho Supreme Court issued a Disciplinary Order suspending Boise attorney, Jolene C. Maloney, from the practice of law for a period of 24 months, with 18 months of that suspension withheld. The Disciplinary Order also provided that if reinstated following her suspension, Ms. Maloney will be placed on probation for a period of three ( 3) years. Ms. Maloney' s 6 -month suspension from practicing law in Idaho will be from March 10, 2017, when she closed her law practice in anticipation of being suspended, through September 10, 2017.
The Idaho Statesman reported
Jolene Maloney was serving as the top prosecutor for Boise County when she was charged with driving under the influence of intoxicants last April — a felony under Idaho law because it was her third DUI within a decade. She stepped down soon after.
Maloney pleaded guilty in January and was sentenced Friday at the Ada County Courthouse in Boise.
If she successfully completes serving 120 days in jail and seven years of supervised probation, she can petition the court to dismiss her conviction entirely under a withheld judgment. The alternative? “A prison sentence can be forthcoming if the defendant wants to take that risk,” 4th District Judge Jason Scott said.
The jail sentence is four times longer than the one recommended by the state in the plea deal reached with Maloney, and her probation will be two years longer than specified in the deal — which the judge was not legally bound to follow.
Maloney got credit for two days served in jail. Her probation officer will have 30 days of discretionary jail time that can be imposed if she’s not meeting expectations.
Earlier in the hearing, Maloney expressed remorse and apologized to Boise County, its Chief Deputy Prosecutor Jay Rosenthal, Idaho State Police and “those that I have put in jeopardy.” She thanked friends and colleagues for helping her get through the past year.
“This has been the hardest year of my life, publicly and privately,” she said. Her attorney said her time at an inpatient treatment facility in New Mexico may have saved her life.
Scott declined to consider any of Maloney’s stay at a treatment facility as credit for jail time served. He also denied her attorney’s request that she be put under house arrest rather than taken to the county jail, where she’d encounter people she’d prosecuted or represented.
Maloney’s attorney said the 41-year-old mother of two suffered a significant trauma and has PTSD — and that’s why she became a binge drinker. He said she’s been getting counseling for that underlying issue, and participating in support groups for both that and substance abuse.
At Maloney’s plea hearing in January, Scott said he would not be bound by the plea agreement because he didn’t want to be limited to a maximum of 30 days in jail. He said he wanted to read the sentencing investigation report before reaching any decision.
Friday, he went through a long list of mitigating and aggravating factors in the case.
In her favor: It is her first felony conviction. She’s considered a low risk to reoffend. She’s been a productive member of society. She has strong community support. She completed an inpatient treatment program. She was monitored for alcohol and had no violations.
And, Scott noted, Maloney has already been punished in many ways. She lost her job as Boise County prosecutor, was “publicly shamed” in news reports and social media, was sanctioned by the Idaho Bar Association.
But Maloney was the top law enforcement official in Boise County at the time of her offense, the judge said, and she prosecuted people for the very same crime she committed. He said that she put other people at risk by driving while intoxicated — and knew better.
Scott summarized the details of her prior misdemeanor convictions, including two DUIs, a collision with a motorcycle, and an incident where she went to a bar and left young children home alone. Her common threads, the judge said: high blood-alcohol content and an unwillingness to admit to it when confronted.
As part of her sentence, Maloney’s driver’s license will be suspended for one year, starting when she is released from jail. When she gets her license back, she won’t be allowed to drive without the permission of her probation officer and an interlock device on her vehicle.
Maloney was arrested in Garden City early on the morning of April 8 last year. Her blood alcohol level tested at .183 and .182, more than twice the legal limit of .08.
Maloney had four prior misdemeanor convictions, including DUIs in 2012 and 2013. Boise County commissioners said they were aware of Maloney’s history when they appointed her prosecutor in April 2015.
The Ohio Board of Professional Conduct has filed recommendations with the state Supreme Court in two related matters that led to criminal convictions.
WFMJ. com reported
Two Youngstown attorneys will not see any prison time for violating federal law, but one of them is under house arrest.
A judge sitting in U.S. District Court in Cleveland sentenced attorneys Neal Atway of Youngstown and Scott Cochran of Austintown on Tuesday.
Forty-five-year old Cochran was fined $2,500 and placed on probation for two years after being convicted on a charge of misbehaving in court by failing to provide truthful testimony in a trial.
Atway, 49, was fined $2,000 and placed on probation for three years, with the first four months to be served on electronically monitored home confinement.
Atway was found guilty of conspiring against the rights of a client who had hired him to represent him in a federal criminal case.
Lawyers representing Cochran and Atway filed memorandums in federal court suggesting sentences for their clients.
In Atway’s sentencing memorandum, attorney Roger Synenberg suggested probation for his client, writing, “Mr. Atway is deeply remorseful, ashamed, and embarrassed by his conduct.”
Synenberg says Atway has been punished by having been found guilty of a felony and the trauma it has caused his family.
Lawyer Lynn Maro suggested that a fine be levied against attorney Cochran, saying he has already suffered significant punishment.
“While many of his clients were willing to stay with him, and many in the local legal community expressed continued support for him, the stress and his commitment to fighting the original charges against him devastated his (law) practice,” wrote Maro in the sentencing memorandum.
Atway and Cochran pleaded guilty to the less serious violations following a mistrial that was declared last March as a jury was considering evidence presented from an original six count indictment handed up against the two in February 2014.
Both attorneys and convenience store owner Mohd Rawhneh of Boardman were originally accused of taking part in a plot to extort money from another local convenience store operator.
The original charges against the attorneys included extortion, conspiracy to obstruct justice, and making false statements to investigators.
Atway had been hired by store owner Charles Muth who faced sentencing in federal court for his involvement in a drive-by shooting incident where a bullet was fired into the Boardman home occupied by the wife of Rawhneh, a rival convenience store owner.
Instead of representing Muth’s best interests, prosecutors say Attorney Atway conspired with Rawhneh to leverage money and property from Muth by leading him to believe that if he didn’t pay up, Rawhneh would appear at Muth’s sentencing hearing to urge that he receive more prison time.
Rawhneh operates the Tiger's Den Drive Thru in Howland, the Hanoverton One Stop in Hanoverton, the 7 & 30 Superette and Ohio Food Mart in East Liverpool, as well as two other stores in Ravenna and Kent.
At one point, Muth allegedly gave Rawhneh part ownership in one of his stores, and gave attorney Atway $18,000 dollars with the understanding that the cash would be given to Rawhneh, according to court documents.
Atway and Cochran pleaded guilty to the lesser charges after federal prosecutors said they would retry the case following the mistrial.
Attorney Cochran was charged with misbehavior in the presence of the court because during his March trial, Cochran testified under oath that he didn’t know before Muth’s sentencing that Rawhneh had told Atway that he would remain silent during sentencing if Rawhneh could come to an agreement with Muth.
However the U.S. Attorney says Cochran was party to a phone conversation prior to the sentencing where Atway told Muth that Rawhneh would agree to keep his mouth shut during Muth’s sentencing.
Rawhneh has already pleaded guilty to charges of aiding and abetting, conspiracy to commit wire fraud, and conspiracy to tamper with a witness, victim or an informant. He has yet to be sentenced.
Wednesday, August 9, 2017
The New York Appellate Division for the Second Judicial Department accepted the resignation of a convicted attorney and ordered disbarment.
A press release on the case from the Office of the United States Attorney for the Eastern District of New York
On June 24, 2016, following a five-day trial, a federal jury convicted Flom of money laundering. According to previous court filings and the testimony at trial, between December 2013 and April 2014, Flom accepted $141,300 into his bank account from investors whom he believed to be the victims of a securities fraud scheme. He then funneled those monies to a man he believed was orchestrating the fraud scheme, but who in fact was an undercover agent with the FBI—while keeping a 5% fee for himself. At trial, the jury heard that recorded conversations between Flom and the undercover agent in which Flom bragged that the letters of his name stood for “For Love of Money” and provided advice to the undercover agent about how they could use the guise of attorney-client privilege to conceal the fraud from law enforcement.
At trial and at sentencing, the government also presented evidence that between approximately February 2012 and August 2013, Flom knowingly laundered $756,168 in a nearly identical securities fraud scheme with Cecil Franklin Speight. In this scheme, investor-victims who believed they were making legitimate stock purchases were instructed to send money to bank accounts belonging to Flom, knowing he was a lawyer and believing that he was going to transfer funds to the issuers of the securities. In fact, Flom took the investor-victims’ money, kept a percentage for himself and sent the remainder to Speight. The investor-victims received only worthless counterfeit stock certificates.
On February 12, 2016, Speight was sentenced to 42 months’ imprisonment and ordered to pay $3.3 million dollars in restitution following his guilty plea to conspiracy to commit mail fraud and securities fraud.
The root of many but not all disbarments. (Mike Frisch)
An Arizona Hearing Panel ordered a reprimand of an attorney based on misconduct findings in the wake of a suspension imposed by the state Supreme Court.
The original suspension was for criminal conduct unrelated to practice and may have been unexpected
The hearing panel erred in recommending diversion as the presumptive form of discipline appeared likely to be greater than a reprimand. On appeal, the Supreme Court ordered a three month suspension followed by one-and-one-half years of probation.
The panel here found that the attorney, once suspended, made substantial efforts to comply with the suspension order
Donna Kent, the Chief Operating Officer of Mr. Henderson’s law firm testified Mr. Henderson was “devastated” by this decision, but quickly “got down to work,” “dogged[ly]” working to ensure that he complied with the suspension Order. [Tr. 254:7-25.] He started by meeting with his lawyer, Scott Rhodes, to discuss a letter from the Bar which described the parameters of the suspension. [Tr. 334:3-15; Ex. 72. The Bar’s letter did not mention negotiations.
A negotiation matter led to the charges and findings but the panel squarely rejected the State Bar's view of the matter
Under Standard 6.1, the Bar also seeks disbarment. We fail to see how the actions of Mr. Henderson constituted “threats and intimidation” which “caused potentially serious interfere[ance] with the legal proceeding between the Robbs family and Loiselle.” After this unsupported conclusory allegation the State Bar specifies the actions of Mr. Henderson that caused the interference. “Specifically, the Loiselle matter resulted in a lawsuit filed by the Robbs against Loiselle.” [Id.]
The final concluding sentence of its Standard 6.1 argument is unsupported by the record and contains speculation that is contradictory. The State Bar concludes, “Had a licensed lawyer been involved in negotiations on the Robbs behalf, rather than a suspended lawyer engaging in unethical conduct, the lawsuit may have been avoided all together.” [Id. 18-19.] But under the Bar’s argument, Loiselle believed Henderson was a lawyer (although we find no occasion within the record where Mr. Henderson stated to Loiselle or others that he was) and did not settle. Mr. Henderson ultimately referred the Robbs to a licensed lawyer and the matter still did not settle.
Lawyers who are suspended or disbarred may not practice law or hold themselves out as eligible to practice. In Arizona, Rule 31 defines the practice of law. Mr. Henderson testified that he regretted sending the communications and in retrospect understood how a reasonable person might believe they came from a lawyer. [Tr. 360:4-22, 375:12-376:10.] However ill-advised those communications were, nothing about them indicates that Henderson intended, knew or believed they violated his suspension.
To the contrary – Henderson’s open pattern of communications indicates that he did not believe he was violating his suspension. Henderson did not communicate in a secretive manner indicating consciousness of guilt. He sent numerous emails and letters, not only to Loiselle, See Exhibit 4 at Bates SBA102-134, Exhibits 29-34; but to third parties, including a real estate agent, Exhibit 17, and numerous officers of companies affiliated with Loiselle, Exhibit 27. Mr. Henderson did not take actions consistent with a person who was conscious that he was violating the Order and trying to “cover his tracks.” We find his actions were negligent.
While much testimony was presented seeming to raise new allegations, the complaint was not amended. We decline to consider allegations not alleged in the complaint. Nor are we convinced the unsupported conclusory opinion of the State Bar that Mr. Henderson was obligated to close his trust account is accurate.
The Scottish Solicitors' Discipline Tribunal has ordered sanctions against an attorney as described in this summary
Edinburgh 11 May 2017. The Tribunal having considered the Complaint dated 20 February 2017 at the instance of the Council of the Law Society of Scotland against Alison Hazel Margaret Greer, 5 Brady Crescent, Moodiesburn, Glasgow; Find the Respondent guilty of professional misconduct in respect of (a) her failure in her obligation to see that the firm, in which she was a partner with the added duties incumbent on her as Designated Cashroom Partner, complied with the Accounts Rules, in her duty to supervise the firm’s office manager and cashier, in her duty to take steps to satisfy herself that fees being charged to executries were properly so charged and that fee notes were properly rendered and to see that at all times the sums at credit of the client account exceeded the sums due to clients and (b) her continued drawing of funds from the firm while it was being financed by the overcharges to clients; Order that the name of the Respondent be Struck Off the Roll of Solicitors in Scotland; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent but that this publicity shall not include the names of clients of the firm.
The full findings are linked here. (Mike Frisch)
Tuesday, August 8, 2017
The North Dakota Supreme Court imposed a six-month suspension of an attorney who had engaged in a conflict of interest as attorney-in-fact and personal representative of his mother and her estate.
The will left the estate to the attorney's daughter. He fathered a son after his mother's death and wanted him to share
The hearing panel reasoned that Allen acted as the attorney for himself as the personal representative of the estate, thereby binding himself to the rules of professional responsibility, and that he had a duty "to advance the cause of the estate through his actions and counsel." The panel found that "[w]hen Allen's son was born in 2013, Allen's personal interests became adverse to the interests of the estate and contrary to his fiduciary duty because Allen wanted [his son] to receive a portion of the estate," and "[t]hese contrary interests created conflicts of interest" in violation of the rule "when Allen failed to withdraw as counsel for the personal representative." The panel reasoned, "Allen's role as personal representative and attorney for the personal representative prevented him from self-dealing with regard to the estate property" under N.D.C.C. § 30.1-18-13 (U.P.C. § 3-713), and "[b]y attempting to negotiate a proposal of which he was a direct beneficiary, Allen created . . . a conflict of interest by placing himself in a situation where he was unable to place his duty to his client before his personal interest." The panel found that "Allen's two adverse interests kept Allen from being able to consider, recommend, or carry out [a] course of action on behalf of his client" and that by continuing the representation despite the conflicts, Allen violated the rule.
But the court rejected this finding
The hearing panel found that when Allen filed the application for informal probate in April 2012, he made statements of material fact indicating the will was validly executed, he was unaware of any documents revoking the will, and the instrument submitted was Margaret Allen's last will. The panel found that sometime before his son's birth in July 2013, Allen decided the son "should be included within the distribution of the estate, even though [the son] could not take under the terms of Margaret's will." The panel found, "Allen's conclusion that [the son] became a potential heir was not shared with the court and Allen made no corrective filings to the informal probate documents, nor were any other actions taken by Allen to advance his position at that time." When Allen attempted to negotiate with Baker after the son's birth, "[n]o terms of Allen's proposals were contemplated by the will." The panel found that Allen resigned as personal representative in January 2014 and filed the petition for formal adjudication of intestacy in May 2014, claiming "for the first time . . . that Margaret's will was invalid, that [the son] took under the will, and that Allen himself was entitled to property as an intestate heir." The panel found this position was "factually inconsistent" with the April 2012 informal probate documents. The panel concluded the rule was violated because "Allen failed to correct a statement made to the court when he did not inform the court that the previously provided information, which had been the basis for the informal probate, was now believed to be incorrect after further consideration of Margaret Allen's will."
The court's decision to impose a moderate sanction was influenced by the unlikelihood that the misconduct would recur.
The hearing panel recommended that "a more severe sanction of disbarment is warranted" in this case, but determined "Allen's lack of a disciplinary record merits a downward departure." The panel further recommended that "Allen's conduct is egregious and he should be made to demonstrate to the Court that he has taken steps to ensure that such conduct will not occur in the future." In addition to Allen's lack of a disciplinary record, we are persuaded to depart downward because the circumstances that led to discipline here are unlikely to reoccur.
No mothers left presumably.
Justice Crothers concurred
Our decision today makes clear that lawyers acting in a non-lawyer representational capacity are exposed to disciplinary sanction for professional misconduct AND potentially limit their future ability to assert personal claims. I agree with the Court's order. I write separately to highlight what I believe is the impact of our ruling on the ability of a family member-lawyer to later assert any claim against a decedent's estate. Specifically, if a lawyer agrees to serve in a familial fiduciary capacity such as a personal representative, the lawyer likely is barred from using information obtained in that capacity (and by the inherent simultaneous representation by the lawyer under Rule 1.7) in any subsequent proceeding involving the estate...
Reading Rules 1.7, 1.8 and 1.9 together leads to the conclusion that lawyers acting as family member-personal representatives are barred in the future from asserting any claims that may adversely affect the former client. This limitation applies whether the lawyer personally asserts a claim or later represents another party against a successor personal representative. The Rules presumably bar such claims whether a lawyer self-represents or hires counsel. The exception is when a personal representative (meaning the successor personal representative) expressly consents according to the particular requirements in Rules 1.7(d)and 1.8(b). See Majority, at ¶ 19.
I write separately to highlight these constraints placed on lawyers and to point out that today's case will broadly impact a lawyer's ability to assert future claims. In light of our ruling, lawyers should advisedly and cautiously accept representational positions in family-related matters where they might have a personal interest that is or might be adverse to the estate.
A public censure has been imposed by the New York Appellate Division for the First Judicial Department for a comparable sanction imposed in New Jersey.
The professional misconduct arose from respondent's purchase of the law practice formerly known as Pinck & Pinck, LLP. In April 2013, Lawrence and Justin Pinck sold their law practice to respondent. Respondent failed to publish a notice of his purchase of the law practice, in violation of NJRPC 1.17(c)(3). Further, respondent stipulated that he accepted approximately 130 active files from the Pincks despite not sending, and knowing that the Pincks had not sent, 60-days' prior notice of the transfer to the clients, in violation of NJRPC 1.17(c)(2). Respondent charged 44 of those clients additional fees in violation of NJRPC 1.17(d). Respondent also violated NJRPC 8.4(a), which provides that it is professional misconduct for an attorney to "violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another."
In his affidavit of consent, respondent explained that this misconduct arose from his exercise of poor judgment in agreeing to take over cases from the Pincks. The transaction transpired quickly, without respondent performing due diligence, based upon his trust in Lawrence Pinck, a long-time colleague. Respondent had not been aware of the requirements set forth by NJRPC 1.17 regarding the sale of a law practice and expressed remorse for not adhering to the disciplinary rules.
While the obligations regarding practice purchase notification differs in the two jurisdictions
The remaining misconduct for which respondent was disciplined in New Jersey does constitute misconduct in this State. NJRPC 1.17(c)(2), which requires the seller of a law practice to provide clients with 60-days' prior notice of the sale, is analogous to RPC rule 1.17(c)(2), which requires the seller and buyer of a law practice to jointly provide each of the seller's clients with 90-days' prior notice. Further, NJRPC 1.17(d), which provides that "[t]he fees charged to clients shall not be increased by reason of the sale of the practice," is analogous to RPC rule 1.17(e), which provides that "[t]he fee charged a client by the buyer [of a law practice] shall not [*3]be increased by reason of the sale, unless permitted by a retainer agreement with the client or otherwise specifically agreed to by the client." Further, NJRPC 8.4(a) and RPC rule 8.4(a) contain identical language prohibiting lawyers from violating or attempting to violate the rules of professional conduct, knowingly assisting or inducing another to do so or doing so through the acts of another.
Respondent has already stipulated to the finding of misconduct. As respondent's admitted violations of NJRPC 1.17(c)(2) and (d) and 8.4(a) also constitute misconduct in this State, the imposition of reciprocal discipline is appropriate.
The Arizona Presiding Disciplinary Judge approved an 18-month probation of an attorney who had failed to heed a client's directive that time was of the essence in the representation
Mr. Schmerl has been licensed to practice law in Arizona since 1990. At an unstated date in early 2016, Ms. Hennel paid Mr. Schmerl $600 to represent her regarding a simple real estate transaction (contract and quit claim deed) of her father and stepmother’s townhome in Arizona. Ms. Hennel was attempting to buy her stepmother’s half interest in the property. Father was 92 years old and stepmother suffered from dementia and lived in a supervised care home in Oregon. The Stepmother’s son had power of attorney and approved of the real estate transaction. The parties stipulate Mr. Schmerl knew her father was 92 as he had been hired to draft burial instructions for him a year earlier in 2015.
On March 6, 2016, the Ms. Hennel corresponded with Mr. Schmerl reminding him that time was of the essence as her father and stepmother were elderly. He did not respond. Ms. Hennel emailed Mr. Schmerl’s assistant on March 10, 2016, and called on March 11, 2016 emphasizing the urgency of the matter. The assistant summarized the matter to Mr. Schmerl on March 10, 2016 and scheduled a phone call with Ms. Hennel for March 11, 2016.
In the March 11, 2016, telephone call, Mr. Schmerl communicated to Ms. Hennel that her case was a “straight forward transaction” and “should take a week, maybe two.” The project should have been completed no later than March 25, 2016, or an explanation given to Ms. Hennel. However, as Mr. Schmerl concedes in his agreement, he had no intention to complete the task by that date. Instead, he “created an internal deadline of April 6, 2016.” He did not inform his client of this.
A week later, Ms. Hennel followed up by email to Mr. Schmerl’s assistant on March 17, 2016. Two weeks after his promise, on March 25, 2016, she again emailed his assistant and then called Mr. Schmerl’s assistant on March 30, 2016 reemphasizing the urgency given her father’s advanced age. The parties stipulate she was not given any useful information.
Finally, Mr. Schmerl called Ms. Hennel on April 6, 2016 (the date of his “internal deadline”) and stated he understood the urgency. The parties stipulate that Mr. Schmerl “promised to send Complainant a draft on April 8, 2016. It was another promise he did not keep as Mr. Schmerl sent nothing to Ms. Hennel by April 8, 2016. As conceded by Mr. Schmerl, that was because he “pushed back that date due to the demand of other cases.” The ignoring of his client and his task was because of the baseless conclusion by Mr. Hennel that Ms. Hennel “was just being antsy.”
Despite the multiple requests for immediate action on the “straightforward” task by his client and his multiple failed promises to perform, Mr. Schmerl continues to rationalize his misconduct. In the agreement he claims, “had he understood that Ms. Hennel’s father was terminal ill he would have accelerated his efforts.” There is no offered foundation for Mr. Schmerl’s hunch that his client “was just being antsy.”
The inaction continued and led to serious consequences when father died
The inaction of Mr. Schmerl was the direct cause of substantial financial loss to his client. In the agreement, Mr. Schmerl only concedes “that he did not complete Ms. Hennel’s projects as quickly as he would like have liked, and he did not update her as promptly as he should have.” It is unclear what his statement should mean. The facts are Mr. Schmerl did nothing. He never updated her and apparently never even began the “projects.”
The interest of Ms. Hennel’s father passed to his step-wife and the parties stipulate that “defeated the intentions of all concerned parties.” The loss to his client is stipulated to be $39, 250.
The judge expressed concerns about the appropriateness of probation but approved the sanction
Nothing is stated to explain how it is not dishonest to prioritize other cases while promising to prioritize the “straightforward” task for Ms. Hennel. Nor is there any explanation of why the prioritization of these other cases was not for selfish reasons. No explanation is stated that any efforts at restitution were made, or how the consequences of his misconduct was rectified. Similarly, there is nothing offered to suggest “remorse.” Unless the parties are submitting the self-serving concession of Mr. Schmerl that he “did not complete Ms. Hennel’s projects as quickly as he would like have liked, and he did not update her as promptly as he should have.”
... On these admitted facts, it appears Mr. Schmerl knowingly, if not intentionally, misled his client, ignored her communications, and delayed in refunding her monies. The agreement appears to rely on the rationalizations that his case load has grown and that he had a right to disbelieve his client based on his own baseless, speculative hunches about the health of her 92 year old father. He admits he did nothing to complete the task he acknowledged was “straightforward” because he favored the demands of other cases. The parties stipulate his client suffered actual harm of over $39,000. It is not clear how a repeat of LOMAP will prevent untruthfulness, and a lack of loyalty to his client.
Consent agreements, are a necessary part of the prioritization of discipline matters by the State Bar. Consent agreements are resolutions based on minimal information, rather than the fuller presentation brought by a litigated hearing with exhibits and testimony. The PDJ defers to the parties and the ADPCC, but remains troubled by the admitted facts, yet also recognizes pertinent information may have been omitted.
Sunday, August 6, 2017
An attorney has consented to disbarment in Illinois in the wake of a recent guilty plea
On July 18, 2017, Movant was charged in a two-count superseding information with knowingly possessing a video tape and other material that entertained images of child pornography, in violation of Title 18, United States Code, 2252A(a)(5)(B), and with knowingly possessing a camera containing images of child pornography, in violation of Title 18, United States Code 2256A(a)(5)(B).
On July 19, 2017, Movant entered a plea to guilty to the two-count superseding information, and an order confirming Movant’s plea was entered in case number 16 CR 542. Movant is scheduled to be sentenced in case number 16 CR 542 on November 2, 2017.
The Naperville Sun reported on the crimes
A Naperville man charged with producing child pornography in his home had victims sign contracts after they turned 18 to cover the fact that they were underage when they were filmed and photographed, a federal indictment said.
Douglas Alan Willis, 53, a corporate lawyer for Oakbrook Terrace-based Intertek-Professional Service Industries Inc., was charged Tuesday with one count of producing child pornography and one count of conspiracy to produce child pornography.
Willis pleaded not guilty in federal court in Chicago and was released after paying a $5,000 bond, said Joseph Fitzpatrick, a spokesman for the U.S. Attorney's Office. Willis was issued a summons to appear in court rather than being arrested, Fitzpatrick said. His next court date has not been set.
The terms of the bond — such as whether Willis is prohibited from traveling or having contact with minors – was not made public, Fitzpatrick said. His mug shot was not released.
From the Chicago Sun-Times
A west suburban Naperville man pleaded not guilty in federal court on Tuesday to charges that he created child pornography.
Douglas A. Willis, 52, was charged with one count of conspiracy to produce child pornography and one count of producing child pornography, according to a statement from the U.S. Attorney’s Office for the Northern District of Illinois.
According to the indictment, Willis and an unidentified person agreed that the other person would recruit boys under 18 to engage in sex acts and pose for nude photographs.
The other person allegedly brought the boys to Willis’ home, where they were given controlled substances and alcohol, federal prosecutors allege.
Willis then took photos of the boys showing their genitals and having sex acts performed on them, prosecutors claim. Both Willis and the other person also took photos and videos of each other engaged in sex acts with the underage boys.
The conduct charged in the indictment spans from September 1993 until at least August 2001, prosecutors said.
He faces 10-20 years if convicted, prosecutors said.
The state Supreme Court must approve the consent. (Mike Frisch)
When an attorney is suspended from practice, he or she is generally obligated to so notify current clients, opposing counsel and the courts in each case in which an appearance has been entered.
Most places require an affidavit demonstrating compliance.
Some places take that obligation seriously; others do not.
Attorneys there are regularly prosecuted - and are subject to tough sanctions - for the failure to comply with the notification and affidavit obligations.
An unpublished opinion of the California State Bar Court Review Department concludes that an attorney failed to comply with the notification requirements ordered as part of a two year suspension.
we affirm the hearing judge’s finding that Eldridge willfully violated rule 9.20, but also find her culpable for moral turpitude by gross negligence for filing a false compliance affidavit. We affirm the judge’s finding in aggravation for Eldridge’s prior discipline and assign it significant weight because the prior misconduct was serious and similar to the misconduct here. We also affirm the judge’s mitigation findings for good character, emotional difficulties, and remorse, but do not allow mitigation for lack of harm.
The Review Department further concluded that progressive discipline requires a three-year suspension.
In this matter, the attorney had failed to properly notify four clients of her suspension
Eldridge argues that she had only “imperfect compliance” because she had either substituted out or withdrawn from each case on May 26, 2010, the day before the effective date of her suspension. However, as the hearing judge found, Eldridge’s assertion that withdrawing as of May 26, 2010, immunized her from rule 9.20’s requirements is not supported by case law. To the contrary, case law is well settled that strict compliance with rule 9.20 is required because the rule “performs the critical prophylactic function of ensuring that all concerned parties— including clients, co-counsel, opposing counsel or adverse parties, and any tribunal in which litigation is pending—learn about an attorney’s discipline.” (Lydon v. State Bar (1988) 45 Cal.3d 1181, 1187, citing Durbin v. State Bar (1979) 23 Cal.3d 461, 467-468 [referring to former rule 9.55, previous version of rule 9.20].) The operative date for identification of clients being represented in pending matters and others to be notified under rule 9.20 is the filing date of the Supreme Court order for compliance, not the later effective date. (Athearn v. State Bar (1982) 32 Cal.3d 38, 45 [rule 9.55 clearly contemplates advance notice to existing clients— notice to clients at effective date of Supreme Court order does not comply].) Therefore, Eldridge had to provide written notice, as required by rule 9.20, for cases that were pending as of the April 27, 2010, filing date of the Supreme Court’s order, and her failure to do so establishes her culpability.
And the lapse involved the dread moral turpitude
We find that Eldridge’s misrepresentations were made with gross negligence amounting to moral turpitude because she recklessly failed to carefully and accurately fill out the rule 9.20 declaration. The Supreme Court has held that gross negligence can constitute moral turpitude— both when the behavior impacts an attorney’s duties to a client and when it affects non-clients.
The Review Department accepted the findings below on mitigation but nonetheless increased the sanction proposed by the hearing department by a year, noting that the misconduct involved a false affidavit.
In the District of Columbia, the only significant consequence of not filing the required affidavit is that the time for serving the suspension does not start for reinstatement purposes until a compliant affidavit is filed.
until the § 14(f) affidavit is filed, the period of suspension does not begin to run (although the suspension itself is, of course, effective from the time it is imposed)
Saturday, August 5, 2017
The District of Columbia Board on Professional Responsibility rejected an attorney 's request for confidential discipline for a violation of the duty to communicate with a client
It is undisputed that Respondent violated Rule 1.4(a). Indeed, Respondent conceded this violation in the hearing, in his post-hearing briefs, and in his brief to the Board. Respondent excepts to the sanction recommendation of the Hearing Committee and seeks a private sanction. In doing so, however, Respondent argues for a sanction that is not available in the District of Columbia. In his briefs, Respondent repeatedly asserts that the Board has the authority to impose a private sanction, but does not provide any statutory, rule, or case support for this proposition
...Despite Respondent’s assertion that there should be private discipline, there is none.
The board explains that the only non-public discipline is diversion, which is only given if Disciplinary Counsel proposes it and obtains approval.
Here, the board recommended that the attorney receive an informal admonition.
I actually think that the board has the power to order an informal ad, not just recommend it. Perhaps it anticipates a petition for review by Disciplinary Counsel.
Disciplinary Counsel had sought a public censure but
Disciplinary Counsel asserts that Respondent should receive a public censure because there is “a laundry list of aggravating factors” in this case. ODC Br. at 7. Disciplinary Counsel argues that Respondent “deliberately withheld work product he claimed was critical to Dr. Chen’s case when he represented him, [and] refused to surrender them when discharged, despite having received $2000 for whatever work he made purportedly performed . . . .” Id. at 7. Before the Hearing Committee, Disciplinary Counsel argued that “[a]lthough this disciplinary matter involves only one client’s case, Respondent has not shown he appreciates the need to communicate effectively with his clients, and to date has refused to recompense Dr. Chen for the fee that yielded him no benefit.” ODC PFF at 20.
We note that Disciplinary Counsel did not charge Respondent with any Rule violations that would encompass these assertions.
The case is In re Frederic Schwartz and can be found at this link. (Mike Frisch)
Friday, August 4, 2017
A disciplinary decision issued today by the Tennessee Supreme Court is summarized on the court's web page
The Tennessee Supreme Court has increased a hearing panel’s recommended punishment of a public censure and suspended Paul Julius Walwyn from the practice of law for one year. He will serve six months of the suspension on active suspension and six months will be served on probation with a practice monitor. The Court also required that Mr. Walwyn complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
This disciplinary matter arose out of Mr. Walwyn’s representation of his client in a first degree murder trial. Following the client’s conviction, Mr. Walwyn filed a motion for new trial, which was denied. Mr. Walwyn failed to file a notice of appeal for three and a half years and failed to adequately communicate with his client in the interim. The client filed this complaint during the delay in his proceedings, after which a late-filed notice of appeal was filed and was later accepted by the Court of Criminal Appeals.
The hearing panel determined that Mr. Walwyn had violated the Rules of Professional Conduct by not exhibiting the skill, thoroughness, or preparation necessary when representing his client; by failing to file a timely notice of appeal; by waiting three and a half years to file a motion to accept a delayed appeal; by failing to keep his client informed about the status of his case; by violating the Rules of Professional Misconduct; and by engaging in conduct that was prejudicial to the administration of justice with the above stated conduct. Accordingly, the hearing panel imposed a public censure with the conditions that he be supervised by a practice monitor for one year and that he complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
Neither the Board of Professional Responsibility nor Mr. Walwyn appealed the hearing panel’s decision. The Tennessee Supreme Court then reviewed the discipline pursuant to Rule 9 of the Tennessee Supreme Court Rules and entered an order proposing to increase the punishment because it seemed inadequate. After review, the Court, in a unanimous opinion authored by Justice Roger A. Page, concluded that a public censure was inadequate, particularly in light of Mr. Walwyn’s prior disciplinary record. As a result, the Court increased the attorney’s discipline to one year on suspension with six months of the suspension on active suspension and six months to be served on probation with a practice monitor. The Court also required that the attorney complete six additional hours of CLE on subjects related to the management of a law practice and/or client communication.
Notably, the court looked to a series of prior cases for purposes of assessing comparable discipline. Two involved the same attorney. (Mike Frisch)
This is the time of the year when the District of Columbia Board on Professional Responsibility tries to clear its docket and move cases along to their conclusion.
The board has released a number of reports over the past week or so, some of which have been blog-worthy.
But still to come - hopefully soon - is the next stage in the drama of Judge Roy Pearson, famed for suing a cleaners over a pair of pants.
The underlying civil case was concluded in 2007.
In June 2016, a hearing committee concluded
the Hearing Committee respectfully recommends that the Board find that Disciplinary Counsel has proved by clear and convincing evidence that Respondent violated Rules 3.1 and 8.4(d) and that Disciplinary Counsel has not proved by clear and convincing evidence that Respondent violated Rule 3.2(a). The Hearing Committee further recommends that Respondent be suspended for 30 days, that the suspension be stayed, that the stay be conditioned upon the successful completion of a period of probation of two years during which Respondent shall not make assertions in litigation unless there is a basis in law or fact for doing so that is not frivolous and shall not be sanctioned by a court for litigation-related conduct; and that any clients Respondent represents in litigation during the period of his probation be informed of the fact of his probation. If Respondent appears as lead counsel in a litigated matter, he should consider associating with other counsel.
The board received briefs and heard oral argument in the matter.
Our coverage of the hearing committee report noted that the bar investigation opened in 2007 and lay fallow for many years for reasons that the record does not address. (Mike Frisch)
Thursday, August 3, 2017
The full Massachusetts Supreme Judicial Court affirmed a single justice's conclusion that an attorney
"systematically extracted illegal and excessive fees from numerous vulnerable and desperate clients with deceptive advertisements, misleading contractual arrangements, and deceptive and useless services such as the 'lender benefit analysis' and the 'forensic loan audit.' In addition, he engaged in unlawful fee-splitting to provide his partner and his employees with the financial incentive to use the machinations to enhance his personal financial interest at the expense of his clients."
The attorney appealed the single justice's order of disbarment and sought a public reprimand.
As to misconduct
Both State and Federal law prohibits a lawyer from charging advance fees for mortgage assistance relief services unless the fees are deposited into a client trust account...There was no error in the single justice's determination that the respondent violated rule 1.5 (a).
The full court also affirmed false advertising and fee-splitting with non-lawyer violations.
And no way to a reprimand
The repeated nature of the respondent's misconduct, over a period of years, involving hundreds of economically, educationally, and linguistically disadvantaged clients in strained financial circumstances, evidenced by threatened foreclosure of their homes, warrants a substantial sanction...
Considering the extent of the misconduct, weighing the presence of the factors in aggravation and the absence of factors in mitigation, and giving due deference to the board's
recommendation, we conclude there was no error in the single justice's judgment that disbarment is warranted.
The Oregon Supreme Court has suspended an attorney for two years for a false statement to a tribunal in a domestic relations matter
The accused made his first appearance in the matter as attorney of record when he filed a Motion to Vacate Default Judgment on husband’s behalf on March 7. The accused based his motion on ORCP 69 B(2), which requires a party to file and serve notice of the intent to apply for an order of default at least 10 days before applying for the order, if the opposing party or the party’s counsel has previously provided written notice of intent to appear. The accused attached to that motion a declaration in which he stated, “I provided to counsel for Petitioner written notice of intent to appear in [this] action on January 29, 2014.” The accused, however, did not attach as an exhibit to the declaration any written notice of intent to appear.
Opposing counsel contended that an email used in a motion to show the date was fabricated
The court granted the accused’s motion to vacate. The court declined to make a finding that the email was fraudulent and asked the accused to find the email in electronic form and forward it to [opposing counsel] Claar. The accused never did so. The parties subsequently settled the dissolution matter.
He then filed a bar complaint
A Bar technology expert, Johnson, examined the purported email and concluded that it had not been sent. As Johnson later testified before the trial panel, the fact that the email had not been sent was evident from its formatting.
And the accused's attorney own technology expert chimed in with this rather unhelpful nugget
When a trial panel member asked Englen whether, in his opinion, the purported January 29 email could have been fabricated intentionally, Englen responded, “Completely, yeah, absolutely. * ** No doubt, this could be completely totally made up.”
Having reviewed de novo all the evidence in this case, which we have summarized above, we agree with the trial panel and conclude that there is clear and convincing evidence that the accused violated RPC 3.3(a)(1) (making a false statement of fact or law to a tribunal or failing to correct a false statement of material fact or law previously made to the tribunal by the lawyer); RPC 3.4(b) (falsifying evidence); RPC 8.4(a)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice law); and RPC 8.1(a)(1) (knowingly making a false statement of material fact in connection with a disciplinary matter). Further recitation of the factual bases for our independent conclusion would not benefit the bench, the Bar, or the public. Because, as noted, neither party has challenged the appropriateness of the sanction, we also conclude that a two-year suspension is appropriate.
The North Carolina State Bar has filed a complaint alleging that an attorney who had been sued for malpractice engaged in a campaign of retaliation against the former client's law firm that was prejudicial to the administration of justice.
After the case was voluntarily dismissed, it is alleged that the attorney sought a meeting with the firm that had filed the suit and wanted them to pay his fees in defending the action.
The demand was rebuffed.
Then, according to the complaint, the attorney threatened a social media campaign that included potential attacks on several firm lawyers who had no involvement in the malpractice case.
He sent an email that threatened to expose that an attorney at the firm "forgave his wife for sleeping with a lawyer at the firm so long as the lawyer left the firm" and to tell the children "how forgiving their father is."
And that was "just for starters." (Mike Frisch)
A letter of reprimand approved by the New Jersey Supreme Court has this rather depressing observation on sanction from the Disciplinary Review Board
Generally, reprimands are imposed for negligent misappropriation of client funds, even when accompanied by other, non-serious infractions, such as recordkeeping deficiencies, commingling, or failure to promptly deliver funds to clients..
Since when is commingling a "non-serious" infraction? And failure to deliver someone else's money to them?
Here, respondent’s misconduct was serious and negligently exposed Francisco’s attorney trust account funds to invasion. There are no aggravating factors to consider in this case. In mitigation, respondent has no disciplinary history and he readily admitted his misconduct by consenting to discipline. With the OAE’s assistance, he promptly took corrective measures to address his recordkeeping deficiencies.
Based on the above precedent and the absence of aggravation, the Board determined that respondent’s misconduct warrants a reprimand.
The issue came to light when an escrow check bounced, leading to an audit.
The court's order is linked here. (Mike Frisch)