Sunday, September 9, 2018

Stay (Just A Little Bit Longer)

The Law Society of Upper Canada Appeal Division declined to stay sanction imposed on a paralegal pending appeal

This is a motion by Roland Spiegel for a stay of the order revoking his P1 licence pending appeal of the Hearing Panel’s Decision on Finding dated September 15, 2017 (2017 ONLSTH 188 (CanLII)). The Hearing Panel found that Mr. Spiegel had engaged in multiple particulars of professional misconduct, including breaches of the duty to be honest. 

The motion for a stay of the revocation order is dismissed...

The division concluded that he failed to raise a "serious issue" 

Mr. Spiegel vehemently insists that he has committed no misconduct whatsoever. Despite this, based on his submissions, it is difficult to discern a serious or arguable issue raised by this appeal.

He raised 21 appeal grounds to no avail in obtaining a stay

  With respect to the alleged errors of fact and respecting the credibility of witnesses, the reasons of the Hearing Panel demonstrate that it was alive to Mr. Spiegel’s position and that it carefully considered the evidence and the defenses raised by Mr. Spiegel. The Hearing Panel committed no obvious errors in this regard.

No irreparable harm

Mr. Spiegel’s inability to work in his chosen field does not give rise to irreparable harm as it can be cured if he is ultimately successful in his appeal.

Thus

 the interests of justice do not justify granting a stay and therefore the motion is dismissed. 

(Mike Frisch)

September 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 7, 2018

Age Of Consent (Disbarment)

The Arizona Presiding Disciplinary Judge has accepted an attorney's consent to disbarment.

Sonoran News reported on criminal charges

Former Cave Creek Attorney Noel Hebets, 66, was arrested on Aug. 3 and charged with five counts of sexual exploitation of a minor under the age of 15, a class 2 felony dangerous crime against children.

Acting on a tip provided by the National Center for Missing and Exploited Children (NCMEC), detectives from the Arizona Internet Crimes Against Children Task Force of the Phoenix Police Department served a search warrant at the home of Attorney Noel Hebets on north 48th Street in Phoenix.

The search warrant was part of an ongoing investigation that led to Hebets’ residence based on the IP address of his internet account.

Numerous images were reported to NCMEC and forwarded to Phoenix police detectives depicting children being sexually abused and exploited being uploaded from Hebets’ IP address.

According to the probable cause statement, several of the images depicted young, prepubescent female children either posing in the nude in an exploitative position or being sexually abused and/or assaulted by adult males.

The Internet service provider was served with a subpoena for the subscriber’s information, which revealed Hebets’ residence on 48th Street.

Numerous computers were located during the early morning raid and a forensic preview was conducted on the computers at the scene.

The forensic preview located several image files depicting the sexual exploitation of prepubescent females.

One of the photos described in the probable cause statement was a full-color image of an adult male engaging in anal intercourse with a prepubescent female child, with no breast development or pubic hair, who appeared to be in significant distress.

Numerous other images were located during the forensic preview.

Additional forensic analysis will be completed to locate all images and videos on all the various media sources and computers.

During the search of the residence, numerous documents were located with the same email address and user names initially reported.

The same software programs that were reported as being utilized to send images of children being sexually exploited were located on Hebets’ computer and images depicting the sexual exploitation of minors were located in folders associated with the software programs.

Multiple bondage items were found during a search of the residence along with small dolls and children’s clothing.

When Hebets was interviewed, he admitted to using a variety of programs found on his computer during the preview.

The probable cause statement called Hebets, whom it said has access to children living in the area and images depicting young children being sexually assaulted, a danger to the community and requested bond be set at no less than $100,000.

However, the court ordered Hebets released with an appearance bond of $5,000 but with the caveat he must have an electronic monitoring device installed before he could be released.

The court also determined Hebets is not indigent and is financially able to pay for a lawyer. So far there has not been a notice of appearance by any defense counsel.

Hebets’ financial information provided to Pretrial Services Agency reveales he owes delinquent back taxes to the IRS.

Recorded documents reveal he owes over $120,000 in back taxes to the IRS.

Hebets last appeared before Cave Creek Town Council in January 2016 representing Jim O’Toole and the Roadhouse, in an attempt to resurrect the patio the Roadhouse constructed in the town’s right-of-way without permits or permission and was forced to remove.

Hebets annoyed members of council when he repeatedly referred to the illegal construction as a “trial period” and said they just wanted permission to put it back exactly the way it was during the “trial period.”

Irritated, Councilman Dick Esser finally said, “What happened here was not a ‘trial period.’”

Hebets responded, “I think ‘trial period’ was a name I gave it.”

Sexual exploitation of a minor carries a prison term of 10 to 24 years.

(Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

From Taylorville To Shelbyville

A former candidate for judicial office has been charged with misconduct in a recent complaint filed by the Illinois Administrator

 Under Illinois law, the Resident Circuit Judge for a particular county and any candidate for election to that office must reside within that county. Under Illinois election law, a residence must be a permanent abode; and the elements of residency require (1) physical presence and (2) the intention to remain in that place as a permanent home.

At all times alleged in this complaint, Respondent owned a home in neighboring Christian County, Illinois, in Taylorville; Respondent had a physical presence and resided in the Taylorville home with his wife and their two young sons; Respondent received mail at the Taylorville home; and Respondent used his Taylorville home address for his personal banking, financial and tax purposes. Until at least December 6, 2017, Respondent’s Illinois driver’s license address and his Illinois voter registration address were his Taylorville home address.

At all times alleged in this complaint, Respondent’s home in Taylorville was his residence and permanent abode. Respondent intended to keep the Taylorville home as his residence and permanent abode unless and until he would win the Republican nomination for Resident Circuit Judge for Shelby County and acquire a family home in Shelby County.

Michael Locke and his wife Kristee Lee Locke ("the Lockes") were acquaintances of Respondent. In 2017, the Lockes and their two children lived in a large one-room loft apartment which they rented at 601 S. Vine Street, Shelbyville, Illinois, in Shelby County.

On or shortly before December 6, 2017, Respondent asked the Lockes for permission to use their address in order for him to run for election to the office of Shelby County Resident Circuit Judge. Specifically, Respondent wanted the Lockes’ permission to state their address as his address on documents and for campaign purposes. The Lockes agreed. Respondent and the Lockes understood that Respondent would not move in, reside, or have a physical presence at their address.

On December 6, 2017, Respondent and Kristee Locke signed a "lease agreement" that Respondent had drafted. The agreement provided that Respondent would pay the Lockes $50 per month as rent, and that Respondent would pay $200 for four months’ rent in advance.

Also on December 6, 2017, Respondent submitted an application to the Shelby County Clerk to change his voting address to 601 S. Vine Street, Shelbyville. Respondent placed his signature on the application beneath a statement declaring that he "lived" in the election precinct for that address "at least 30 days from the date of the next election" and that the information he provided was "true to the best of my knowledge under penalty of perjury."

Also on December 6, 2017, Respondent submitted a notice of change of address to the Illinois Secretary of State in which he gave the Lockes’ address as his new address. As a result, the Secretary of State issued a temporary driver’s license to Respondent that stated that his address was 601 S. Vine Street, Shelbyville.

At no time in 2017 and through the date of the primary election on March 20, 2018, was 601 S. Vine Street, Shelbyville, or anyplace in Shelby County, Respondent’s residence or permanent abode. At no time did Respondent reside or live at 601 S. Vine Street, Shelbyville.

Respondent’s representations in the application for change of voting address which he submitted to the Shelby County Clerk and in the notice of change of address which he submitted to the Illinois Secretary of State were false, because Respondent did not live or reside at 601 S. State Street, Shelbyville, or in the election precinct for that address.

Effingham Daily News reported that he withdrew from the race. (Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Web Of Lies, House Of Cards

A three-month suspension has been imposed by the New Jersey Supreme Court in a matter described in the report of the Disciplinary Review Board

This matter stems grievant Jazaar Redding, from respondent’s representation of through the Office of the Public Defender (OPD) as a pool attorney. Respondent did not notify Redding about a hearing on his petition for post-conviction relief (PCR) before appearing on his behalf and then engaged in a web of lies and misrepresentations to the judge, to the OPD, and to the DEC with regard to his conduct.

He had failed to notify the client of a hearing and signed the client's name to a waiver of appeal rights with a tiny "poa" notation.

The presenter argued further that respondent’s excuses spanned the original representation, the PCR hearing, the investigation, and the DEC hearing itself. As the presenter noted, "excuses can carry a lawyer only so far. Ultimately excuses become so numerous that, like a house of cards,they collapse on their own weight."

Further

At the outset, we note that neither respondent’s nor Redding’s testimony was entirely credible. Nevertheless, the DEC properly found respondent guilty of all of the above violations. It is undeniable that respondent took actions contrary to his client’s wishes by that Redding did not wish to appeal the court’s determination. Prior thereto, he failed to notify Redding of his upcoming hearing. Afterwords, he failed to inform him of the outcome. During the course of the representation, respondent made misrepresentations to the court and to the OPD. He lied to the court about his efforts to contact Redding, which ultimately negatively impacted Redding’s ability to pursue an appeal...

A parsing of respondent’s testimony leads to the inescapable conclusion that, when called upon to explain his misconduct, he offered one contradictory explanation after another.

As per usual, the DRB cites to the depressingly lenient history of New Jersey sanctions for webs of lies and houses of cards. (Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Parts Now Known

A Louisiana Hearing Committee proposes the permanent disbarment of an already suspended attorney for theft from his employer.

He was working as an accountant.

He defaulted on bar charges of theft and embezzlement, involving two unauthorized checks written on his employer's business account totalling $4,000. The checks were made payable to his girlfriend.

When confronted by the employer, he denied the crime but "fled to parts unknown." He was arrested in Miami and extradicted to Mississippi.

He now faces the criminal charges in Mississippi. (Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 6, 2018

Elder Law Attorney Consents To Disbarment

The New Jersey Supreme Court has accepted an attorney's consent to disbarment.

JSHN reported

Attorney General Christopher S. Porrino announced that prominent Ocean County attorney Robert Novy, who hosted a radio show and taught seminars on elder law, was arrested today on charges that he stole more than $1.2 million from elderly clients. The victims in some cases did not have close relatives to guard their interests or suffered from dementia. Detectives of the Division of Criminal Justice arrested Novy, 65, of Brick, N.J., on charges of first-degree money laundering, second-degree theft by unlawful taking, and second-degree misapplication of entrusted property. Novy will be lodged in the Ocean County Jail with bail set at $500,000.

In addition to arresting Novy, detectives this morning executed a search warrant at the offices of Novy & Associates, LLC, on Ridgeway Avenue in Manchester, seizing billing records and other evidence. The Attorney General’s Office obtained a court order freezing over $3.5 million in assets held in various bank accounts of Novy and his law firm. Attorneys from the Division of Criminal Justice also applied for a Superior Court judge to appoint a trustee to oversee the business operations of the law firm.

The charges are the result of an ongoing investigation by the Division of Criminal Justice Financial & Computer Crimes Bureau, assisted by the New Jersey Division of Taxation Office of Criminal Investigation. The case was referred to the Division of Criminal Justice by Ocean County Surrogate Jeffrey W. Moran. Novy also was investigated by the New Jersey Office of Attorney Ethics, which issued an ethics complaint against him on Jan. 26, 2016, and assisted the Division of Criminal Justice.

From 2010 through 2015, Novy allegedly stole more than $1.2 million from four clients. He allegedly laundered most of the funds through his attorney trust accounts and/or attorney business accounts. The Division of Criminal Justice, as part of its ongoing investigation, is looking at other large suspicious financial transactions involving numerous other clients of Novy. Novy has participated in educational seminars on topics of elder law and hosted a bi-monthly radio program “Inside the Law,” which focused on topics of concern to senior citizens.

“While Novy held himself out as a leading legal advocate for the elderly, we allege that he corruptly used his reputation and his law license to prey on vulnerable seniors, taking control of their finances and stealing more than $1 million from their life savings.” said Attorney General Porrino. “In his greed, Novy not only betrayed his oath as a lawyer to uphold the law, he betrayed all standards of decency.”

“When senior citizens hire a lawyer to put their financial affairs in order, they should be able to trust that they will be treated honestly and with respect. Instead, Novy is charged with deviously draining his clients’ estates,” said Director Elie Honig of the Division of Criminal Justice. “We urge anyone with information about such thefts by Novy to contact our office.”

Attorney General Porrino and Director Honig urged anyone with information about alleged misappropriation of client funds or other suspicious transactions involving Novy to contact the Division of Criminal Justice’s toll-free tipline 1-866-TIPS-4CJ to report the information confidentially.

In conducting the investigation, the Division of Criminal Justice obtained and reviewed voluminous bank records and conducted an extensive financial analysis. The investigation revealed that Novy allegedly stole funds from elderly and deceased clients who, in some cases, did not have a close relative to claim their estate or challenge Novy’s actions. Novy gained control through wills, powers of attorney, and trust documents, making himself the sole financial decision-maker for these clients.

Typically, Novy transferred funds from the personal bank accounts of the clients to his lawyer trust accounts. It is alleged that he then excessively billed the clients without any supporting invoices, withdrew funds from the trust accounts, and deposited funds into his personal bank account or the law firm’s operating account. In some instances, Novy allegedly withdrew funds from his clients’ personal bank accounts and deposited the funds directly into his personal bank account or law firm’s operating account. When clients had sizeable assets in the form of an annuity or life insurance policy, Novy allegedly directed insurance companies to redeem the policies and send the money directly to him.

It is alleged that Novy engaged in the following thefts from clients:

He allegedly stole $78,000 from an 88-year-old woman who suffered from dementia, billing the woman and her estate a total of $78,000 that was not supported by any invoice or records showing justification.

He allegedly stole more than $176,000 from an 85-year-old woman who suffered from Alzheimer’s. Among other things, he allegedly withdrew funds directly from her personal account totaling nearly $60,000, converting them into cashier’s checks and depositing the checks directly into his personal account. In addition, he allegedly used his power of attorney to cash out an annuity the woman held, depositing over $122,000 into his attorney trust account and then issuing checks from that account to his law firm totaling $117,000, claiming they were “power of attorney fees.”

He allegedly stole at least $459,000 from an 87-year-old woman. Among other things, he deposited proceeds totaling roughly $387,000 from two annuities into his attorney trust account, and subsequently transferred those funds into his law firm’s business accounts. He claimed part of the money was for attorneys’ fees and power of attorney fees, but he did not justify those huge fees.

He allegedly stole nearly $550,000 from another elderly woman. He allegedly transferred nearly $300,000 that he held for her in his attorney trust account into the firm’s business accounts without any invoices or evidence that legal services were provided. On another occasion, Novy allegedly wrote himself a check for $250,000 from the woman’s personal bank account and deposited it into his own personal bank account.
In some cases, when challenged by trustees or relatives about particular funds that had been withdrawn from client accounts, Novy claimed they were “administrative errors” and repaid the funds. The Division of Criminal Justice is continuing to investigate suspicious transactions related to more than a dozen additional clients of Novy.

Deputy Attorneys General Peter Gallagher and William Conlow are assigned to prosecute Novy. They investigated the case for the Division of Criminal Justice Financial & Computer Crimes Bureau with Detective Anne Hayes, who was lead detective, Detective Jordan Thompson, Analyst Terri Drumm, and Civil Investigator Wayne Cummings, under the supervision of Deputy Bureau Chief Mark Kurzawa and Bureau Chief Michael Monahan. Deputy Attorney General Derek Miller and Investigator Debra Maiorano are handling the state’s forfeiture action.

Attorney General Porrino thanked the Ocean County Surrogate, the New Jersey Office of Attorney Ethics and the Division of Taxation Office of Criminal Investigation for their valuable assistance in the investigation. Special Agents Mike Mullane and Will Makar investigated for the Division of Taxation Office of Criminal Investigation.

First-degree money laundering carries a sentence of 10 to 20 years in state prison, including a mandatory period of parole ineligibility equal to one-third to one-half of the sentence imposed, and a fine of up to $500,000. Second-degree crimes carry a sentence of five to 10 years in state prison and a fine of up to $150,000.

The charges are merely accusations and the defendant is presumed innocent until proven guilty. Because the charges are indictable offenses, they will be presented to a grand jury for potential indictment.

(Mike Frisch)

September 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 4, 2018

Stealing Origination Credit Alleged

A recent complaint filed by the Illinois Administrator

From November 1, 2007 to April 23, 2018, Respondent practiced law at Kovitz Shifrin Nesbit ("KSN") , a Chicago law firm that concentrates its practice on condominium law. While employed at KSN, Respondent held the positions of associate and, later, non-equity principal.

During the time Respondent was associated with KSN, the firm had used LexisNexis’ Juris program as its practice management software, and all KSN employees are assigned a Juris profile. Among other functions, KSN had used Juris to manage their client accounts and client billing, including the attorney(s) from whom a client originated, and which attorney(s) had worked on a particular matter for a client.

During Respondent’s employment with KSN, Respondent knew that the firm’s administrative staff was solely responsible for inputting client information into Juris whenever a new client is opened at the firm. That information is based on a client intake form which was circulated amongst KSN attorneys, and which included the client’s name, property management information, the name of the property manager, and the originating attorney.

At all times alleged in this complaint, an originating attorney at KSN was the attorney responsible for bringing a particular client to the firm. Originating attorneys were eligible to receive origination credit, which were legal fees a client paid to the firm, and which counted towards the originating attorney’s book of business. Origination credit may sometimes be shared and split evenly between two or more attorneys.

In January of 2014, Respondent was promoted to the position of non-equity principal at KSN. As a non-equity principal, Respondent’s income was comprised of a base salary plus extra compensation derived from a percentage of origination credit ("origination compensation") and compensation derived from working credit, which was a percentage of what Respondent bills a client when he worked on a client matter ("working compensation"). Respondent received origination compensation regardless of whether he worked on any matters, so long as he was the originating attorney for that particular client; he received working compensation regardless of whether he was the originating attorney, so long as he worked on a matter and billed the client.

For 2014, Respondent’s origination compensation was 10%; for 2015 to 2016, his origination compensation was 15%; for 2017, 16%, and for 2018, 17%. From 2014 to April of 2018, Respondent’s working compensation was 8.333% of what he billed for the matters on which he worked.

During the entire period Respondent was associated with KSN, the right to assign and change originating attorneys to clients and client matters was restricted to KSN’s administrative department and other clerical staff. Disputes over who should receive origination credits were a frequent source of conflict at KSN, and it was KSN’s policy that no attorney at the firm would have the right to change origination credits. Once the information was entered into Juris, no origination credit could be changed from one attorney to another without the express written permission of the attorney(s) to whom the origination credit was assigned.

Sometime prior to May of 2014, Respondent inadvertently discovered that his Juris profile had the ability to make changes to origination credits, and that he could do so from his work computer.

From May 2014 to April 18, 2018, Respondent made over 200 unauthorized changes in Juris in which he either removed other attorneys with whom he was sharing origination credit, or assigned himself as the originating attorney on matters in which he was not entitled to receive origination credit.

The changes Respondent made resulted in an increase of $202,881.47 to his origination credit during the period referenced in paragraph 9, above. As a result of this increase, Respondent received at least $30,000 in additional origination compensation between May 2014 and April 2018, at the cost of other KSN attorneys.

At no time did Respondent have authority to make any of changeshe made in Juris, referenced...above.

Respondent knew that he did not have authority to make changes to the assignment of origination attorneys at the time he made them.

On April 18, 2018, a KSN attorney noticed that his origination credits had been changed without authorization and notified KSN’s managing principal, Robert Kogen ("Kogen"). Kogen subsequently conducted an investigation and discovered that Respondent had been making changes to origination credits for the previous four-plus years.

On April 23, 2018, Respondent appeared at KSN’s Mundelein office where he was questioned by Kogen and Matthew Moodhe, a member of KSN’s Executive Committee. On that same day, KSN terminated Respondent’s employment.

(Mike Frisch)

September 4, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 2, 2018

Neither A Lawyer Nor A Burglar Be

Recent discipline summaries from the California Bar Journal

Shell Kaminsky [#284216], 38, of Brentwood, was summarily disbarred effective August 22, 2018, ordered to notify clients of the discipline and perform other obligations under rule 9.20 of the California Rules of Court. Kaminsky pleaded no contest to a felony count of second degree burglary. Burglary is a crime involving moral turpitude. Kaminsky did not participate in the State Bar proceedings and did not provide any mitigation evidence. Kaminsky had no prior record of disciplinary matters.

Peter D. King [#282249], 41, of Livermore, was summarily disbarred effective August 22, 2018, ordered to notify clients of the discipline and perform other obligations under rule 9.20 of the California Rules of Court. King pleaded guilty to a felony charge of second degree burglary. Burglary is a crime involving moral turpitude. King did not participate in the State Bar proceedings and did not provide any mitigation evidence. King had no prior record of disciplinary matters.

The King Review Department report is linked here. 

He was admitted on March 20, 2012 and has been administratively suspended as of July 1, 2016 for non-payment of dues. An interim disciplinary suspension has been in effect as of December 26, 2017. 

The Kaminsky Review Department report may be found here. 

She was admitted on August 13, 2012, administratively suspended on July 1, 2015 and suspended for the crime on March 12, 2018.

Two very short careers at the Bar.

The Press Democrat had the story of an earlier arrest of Ms. Kaminsky

An East Bay lawyer charged with possessing methamphetamine and prescription pills when she tried to enter the Sonoma County courthouse claims she is the victim of an illegal search.

Shell Kaminsky, 31, of Brentwood is seeking to suppress evidence obtained during her July 17 arrest on grounds that she was not present when deputies looked in her briefcase.

In court papers, Kaminsky admits grabbing her phone and running after security guards went through her belongings and found nearly a gram of the illegal stimulant. She was arrested minutes later in a nearby parking lot.

But she said the briefcase wasn't in her possession later when deputies retrieved it from the court entrance where she left it. They conducted another search and turned up dextroamphetamine pills.

Because the briefcase was not under her immediate control, a suppression motion filed in her defense claims that anything found in it was taken illegally and cannot be used as evidence against her.

"Ms. Kaminsky asserts the search of her briefcase was without warrant and without other legal means to justify the search," said her lawyer, Jason Tucker, in the motion.

In their legal papers Tuesday, prosecutors argued that Kaminsky's belongings were abandoned by her and that she no longer had a reasonable expectation of privacy.

 Chief Deputy District Attorney Diana Gomez said rules regarding searches are clearly posted at the entrance to the court. Kaminsky saw them when she submitted her briefcase and wallet for inspection and later fled despite a command from a security guard to stop, Gomez said.

"The subsequent search of the property she abandoned at the station is lawful," Gomez wrote.

Kaminsky is charged with two felonies, possession of methamphetamine and possession of pills without a prescription. She's also charged with failing to subject herself to a search upon entering a courthouse, a misdemeanor.

The later charge makes her ineligible for court-ordered drug treatment programs, Tucker said.

A preliminary hearing is set for Nov. 19. The suppression issue will be decided by Judge Robert LaForge.

Any sanctions from the State Bar of California would follow a separate path. A conviction could result in a suspension of her license to practice but would not lead to automatic disbarment.

A Bar spokeswoman didn't return a call Tuesday seeking comment.

 

Kaminsky, who received her license about a year ago, was representing a client in a multi-defendant assault case when she was arrested.

Prosecutors said she was walking through the north entrance to the courthouse when security guards spotted the clear plastic bag in her belongings.

Kaminsky grabbed her phone and ran. A security guard and two deputies followed her as she walked at a "faster than normal" pace across Ventura Avenue just north of Administration Drive.

She ducked behind some cars and took off her suit jacket before Deputy Michael Whiteside shouted to her, according to court papers.

He recognized her from the courthouse when she turned around. He asked her how she came to have drugs other than the prescription pills and she responded she "could imagine how it got there" but she refused to say anything else, according to court papers.

Whiteside then asked why she was walking away and she said "she didn't want to have to deal with it in front of people," the papers said.

(Mike Frisch)

September 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 1, 2018

Three Strikes And Out In California

The California State Bar Court Review Department recommends disbarment of an attorney

Dennis Patrick O’Connell, a criminal defense attorney, is charged with 19 counts of misconduct in four client matters. Those charges include four counts each of failure to perform with competence, refund unearned fees, render appropriate accounts to clients, and obtain consent from incarcerated clients before accepting attorney fees from their family members. He was also charged with improper division of a fee for legal services and failure to promptly release a client’s file. This misconduct is similar to O’Connell’s wrongdoing in two prior disciplinary matters.

The hearing judge found O’Connell culpable of 16 of the 19 charges and recommended that he be actually suspended for two years and until he provides satisfactory proof to this court of his rehabilitation, fitness to practice, and present learning and ability in the general law. The Office of Chief Trial Counsel of the State Bar (OCTC) appeals the hearing judge’s discipline recommendation and asserts that disbarment is appropriate. O’Connell also appeals, maintaining that he is not culpable as charged.

After independently reviewing the record (Cal. Rules of Court, rule 9.12), we affirm most of the judge’s findings of fact and culpability determinations. However, as this is O’Connell’s  third discipline case, disbarment is appropriate under standard 1.8(b). In not recommending disbarment, the hearing judge incorrectly found that it was not warranted because O’Connell’s misconduct did not show a “habitual course of conduct.” But this showing is not required where an attorney has two prior disciplines and standard 1.8(b) applies. We do not find sufficient justification to depart from standard 1.8(b), particularly since O’Connell has committed nearly identical misconduct in his prior cases. We recommend the standard’s presumptive discipline of disbarment as necessary to protect the public, the profession, and the administration of justice.

Sanction analysis

We find no reason to depart from the presumptive discipline of disbarment under standard 1.8(b). The State Bar Court has had to intervene three times to ensure that O’Connell adheres to the professional standards required of those who are licensed to practice law in California. He has failed to meet his professional obligations since 1999 and did not present compelling mitigation. We conclude that further probation and suspension would be inadequate to prevent him from committing future misconduct that would endanger the public and the profession. (In the Matter of Moriarty (Review Dept. 2017) 5 Cal. State Bar Ct. Rptr. 511, 528 [disbarment appropriate under standard 1.8(b) for third disciplinary matter where aggravation outweighed mitigation, no compelling mitigating circumstances, and multiple instances of similar wrongdoing in disciplinary record].) The standards and decisional law support our conclusion that the public and the profession are best protected if O’Connell is disbarred.

(Mike Frisch)

September 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred In The Heartland

An attorney left no stone unturned in his effort to avoid discipline in a case that began as a referral from the Securities and Exchange Commission and ended in disbarment by the Nebraska Supreme Court.

In a letter dated March 11, 2016, the enforcement division of the U.S. Securities and Exchange Commission (SEC) notified the Counsel for Discipline of “possible professional misconduct” by Nimmer. The SEC had subpoenaed records from Nimmer’s client trust account in connection with an unrelated investigation and reported that its “review of Nimmer’s trust account transactions revealed that he wrote numerous checks for personal expenses, ranging from rent and child support to dog boarding and landscaping fees.” On March 18, the Counsel for Discipline notified Nimmer that he was the subject of an investigation and provided him a copy of the grievance.

Counsel for Discipline subpoenaed the trust account records and filed charges

On February 1, 2017, the Counsel for Discipline filed formal charges against Nimmer. It alleged that between January 2006 and February 2016, Nimmer wrote personal checks on his client trust account to 29 different businesses, individuals, and organizations. Additionally, it alleged that on December 20, 2007, Nimmer deposited a $10,000 check from his mother issued to him with the notation “loan” into his client trust account. The formal charges alleged that by using his client trust account in this fashion, Nimmer commingled his personal funds with client funds and thereby violated his oath of office as an attorney...

The attorney move to dismiss and to recuse the prosecutor but the referee found misconduct

Nimmer’s written exceptions [to the court] challenge nearly every aspect of the referee’s report. Consolidated and summarized, Nimmer takes exception to the referee’s (1) evidentiary rulings, including admitting the subpoenaed records of Nimmer’s client trust account; (2) finding clear and convincing evidence of disciplinary violations; (3) rejecting Nimmer’s affirmative defenses; and (4) recommending a 1-year suspension.

As the court reviews bar discipline de novo, the court did not consider the exceptions and found trust account violations

...we cite a few representative examples.

From 2005 through 2009, Nimmer wrote 19 checks on his client trust account to the Omaha Public Power District. He testified these checks were “more likely than not” his utility payments, but claimed that without his pre-2011 subsidiary trust account records, he could not be certain.

From 2006 through 2009, Nimmer wrote 27 checks on his client trust account to “Cox Communications.” Nimmer testified that Cox Communications was his current Internet service provider and was not a client of his, but he could not remember whether he had the same provider at the time the checks were written and did not want to “venture a guess.”

Nimmer wrote a check to his ex-wife on the client trust account with the notation “Jan./Feb. health ins.” Nimmer testified this check “may have” been a payment to his ex-wife for his daughter’s health insurance, but he did not “remember for sure.” Additionally, Nimmer wrote at least 22 other checks to his ex-wife, many with notations such as “camp,” “daycamp,” “Rachel’s camp,” “travel,” and “cookies.” Nimmer admitted these checks were not related to any client representation, but when asked if the checks represented personal payments on behalf of his daughter, Nimmer replied, “I’m not going to characterize them that way.” Nimmer himself offered several exhibits documenting payments he made from his client trust account in 2011, 2013, 2014, and 2016 for his daughter’s summer camp.

Nimmer wrote approximately 15 checks from his client trust account to “Cricket.” Nimmer testified, “I think Cricket is a cell phone provider,” but he did not recall why he had written the checks.

In 2007, Nimmer wrote a check from his client trust account to the Nebraska State Bar Association in the amount of $320. When asked whether he was paying his bar dues out of his client trust account, Nimmer replied, “There is no notation that allows me to say for sure.”

A host of affirmative defenses fell on deaf ears, e.g.

Simply put, neither good faith nor ignorance of the rules prohibiting commingling client and personal funds provides a defense to a disciplinary charge that an attorney violated the rules against commingling.

On sanction, attitude matters

Nimmer has challenged this court’s authority to discipline him and repeatedly tried to prevent consideration and review of his client trust account records. While lawyers facing disciplinary charges should not be discouraged in any way from mounting a vigorous defense, some of the legal positions advanced by Nimmer in this proceeding border on the frivolous and reflect an attitude which bears negatively on his willingness to conform his conduct to the Nebraska Rules of Professional Conduct...

Absent mitigating circumstances, this court has repeatedly held that disbarment is the appropriate discipline in cases of misappropriation or commingling of client funds. Mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases where they are extraordinary and substantially outweigh any aggravating circumstances.  In this case, we do not find any such mitigating factors...

Nimmer has been disciplined for misconduct previously, and his prolonged and persistent violation of the rule against commingling reflects a general failure, or unwillingness, to fully comprehend the serious nature of his conduct. After balancing the relevant factors in comparison to other cases, and considering the need to protect the public, the need to deter others, the reputation of the bar as a whole, Nimmer’s fitness to practice law, and the aggravating circumstances, we conclude the only appropriate sanction here is disbarment.

He had previously been publicly reprimanded. 

State ex re l. Counsel for Discipline v. Nimmer can be found at this link. (Mike Frisch)

September 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 31, 2018

An Awesome Power Abused

The indiana Supreme Court has sanctioned a former prosecutor

We find that Respondent, Trista Hudson, committed attorney misconduct by failing to disclose exculpatory evidence and by prosecuting a charge she knew was not supported by probable cause. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.

The story

At relevant times, Respondent served as a deputy prosecuting attorney in Porter County. In 2013, “Defendant” was charged with five counts of child molesting, the first four of which were tried together and are at issue here. Counts I and II alleged criminal deviate conduct involving Defendant’s stepchildren K.C. and E.C., respectively. Counts III and IV alleged fondling with respect to K.C. and E.C. The four counts were based upon statements made by the children to various police officials, and there was no physical or medical evidence of child molesting.

Five days before trial, Respondent interviewed E.C. in preparation for trial with a detective present. During this interview E.C. recanted the facts underlying Count II, stating he had lied at the request of his and K.C.’s biological father. Respondent believed E.C.’s recantation was truthful.

However, Respondent did not disclose E.C.’s recantation to defense counsel, nor did she withdraw Count II at any point prior to or during trial. During her direct examination of E.C. at trial, Respondent avoided asking any questions about the allegations underlying Count II. E.C.’s recantation, and the fact his father had coached him to lie, was revealed at trial during defense counsel’s questioning of E.C. and other witnesses. Respondent did not immediately disclose to the court that she had known about E.C.’s recantation for nearly one week. After the prosecution concluded its case-in-chief, the trial court addressed Respondent’s failure to disclose the recantation and determined that the appropriate remedy was to enter judgment of acquittal for Defendant as to all four counts.

Sanction

Quite thankfully, we have not previously had occasion to consider the question of an appropriate sanction for a Rule 3.8(a) or Rule 3.8(d) violation. There can be little doubt that prosecuting a charge known to lack probable cause, and failing to disclose known information or evidence tending to negate a defendant’s guilt, are among the most serious ethical violations a prosecutor could commit. “The State is never more awesomely powerful, nor is the individual more vulnerable, than in a criminal prosecution[.]” State v. Taylor, 49 N.E.3d 1019, 1023 (Ind. 2016).  These rules of professional conduct are central to the prosecutorial function and essential to ensuring the integrity and fairness of our criminal justice system.

The respondent asked for a public reprimand; the Disciplinary Commission proposed a four-year suspension.

The court split the baby

After careful consideration of this matter, we conclude that Respondent should be suspended for a period of at least eighteen months and required to go through the reinstatement process before resuming practice.

(Mike Frisch)

August 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

I Spy

The Pennsylvania Supreme Court imposed a one-year suspension retroactive to the attorney's interim suspension and probation for four years as a result of a criminal conviction.

After a break up with his former girlfriend, the attorney broke into her garage and installed a GPS tracking device and a USB audio recording device in her automobile with the intent to discover who she was dating.

He admitted the conduct in a criminal case and was convicted of criminal trespass and interception of communications.

He notified the Bar of the conviction and was suspended in January 2018.

PennLive reported on the criminal case.

Casale, who is married, admitted he broke into the woman's South Williamsport garage and installed a GPS tracking device and audio recorder in her car. She found the device in March 2016.

The charges stated the two had an on-and-off four-year relationship that she broke off in September 2015.

An arrest affidavit stated he had confessed to South Williamsport police telling them he placed the devices in November or December 2015 so he could find out who she was seeing.

The woman, in a statement read by Deputy Attorney General William Abraham, she said she trusted Casale and she has suffered emotionally.

It was the victim who recommended a large fine go to a women's center, said Butts who characterized the crime as a type of domestic violence.

During the proceeding, Casale turned to woman and apologized, saying: "I am so sorry for violating your privacy. I know sorry doesn't do it."

He also apologized to his wife.

(Mike Frisch)

August 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Second Chances

Disbarment has been ordered by the New York Appellate Division for the Second Judicial Department of an attorney who had been reinstated after an earlier three-year suspension.

His prior discipline history

The respondent was previously suspended in 1993 for three years by the Appellate Division, First Department, based on a pervasive pattern of commingling of escrow funds and conversion of client funds (see Matter of Pelsinger, 190 AD2d 158). In suspending the respondent, the First Department noted that he failed to cooperate with the investigation from its inception and failed to “offer a credible explanation for his conduct” (id. at 161). He was reinstated by the First Department on February 2, 1999.

Following his reinstatement in 1999, the respondent was the subject of multiple grievance complaints filed between 2006 and 2013, which resulted in the issuance of three Letters of Caution and four Admonitions.

Here

The respondent’s extensive disciplinary history,including a three-year suspension for similar misconduct, is a significant aggravating factor. Moreover, while the respondent indicated that he accepted responsibility, his expressions of remorse were perfunctory and less than genuine. When asked at the hearing for an explanation for the numerous checks he drew against his escrow account, made payable to himself, the respondent repeatedly could provide no explanation. The respondent engaged in conduct that was intentional and deceptive. Having willfully allowed a default judgment to be entered in the DiChiara action, the respondent moved to vacate the default judgment by submitting knowingly false statements to the District Court. In another instance, the respondent engaged in a conscious effort to ensure that a closing took place by a certain date. Knowing that he lacked sufficient funds to cover certain checks, the respondent instructed the payees not to cash the checks until sufficient funds were obtained. He once again engaged in a persistent pattern of escrow account violations. Rather than the result of inattention, as the respondent claims, the aforementioned conduct was knowing and purposeful. Notwithstanding the mitigating evidence presented, we conclude that under the totality of the circumstances, a disbarment is warranted. We further conclude that the respondent has not demonstrated that he should be diverted to a monitoring program at this stage of the proceeding.

In an unrelated matter, the court found extraordinary mitigation and imposed a public censure

In seeking leniency, the respondent asks that the Court take into consideration the following mitigating factors: he accepts full responsibility for his actions and is genuinely remorseful; during the period 2015 to 2016, he suffered from significant health issues, including a life-threatening infection that required surgery; his situation was exacerbated by other personal problems (an emergency office relocation and the need to care for his elderly mother, who suffered injuries as a result of a fall); he has undertaken remedial steps to prevent the recurrence of neglect by hiring additional staff, reducing his caseload, and investing in office equipment to better maintain communications with his clients; he possesses a stellar reputation in the Bar for his skills as a trial lawyer; he has for many years contributed significantly to the Bar by giving CLE lectures on a regular basis and sharing information in other types of forums, making him an asset to the legal community; and he has a reputation as a skilled and zealous advocate, to whom others refer difficult cases.

The respondent’s disciplinary history is an aggravating factor. We note, however, that the vast majority of the instances of the respondent’s past neglect consisted of a failure to keep his clients apprised of the status of their cases. Under the totality of the circumstances, including the extraordinary mitigation in this case, we find that a public censure is warranted.

(Mike Frisch)

August 31, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 30, 2018

No Bar Counsel Privity: NOBC Is Not Enough

The District of Columbia Court of Appeals imposed a sixty-day suspension of an attorney, rejecting his contention that he had no attorney-client relationship with a putative client and thus had not engaged in a multiple client conflict of interest.

Notably a Virginia three-judge panel had reviewed the cold record of the D.C. proceeding and declared ("barely so") that no misconduct had occurred.

The attorney then sought to use collateral estoppel to terminate the D.C. proceeding but failed to persuade

Missing here is privity between Disciplinary Counsel and its Virginia counterpart. Privies are sometimes described as “those who control an action although not parties to it; those whose interests are represented by a party to an action; and successors in interest.” Carr v. Rose, 701 A.2d 1065, 1075 (D.C. 1997) (quoting Smith v. Jenkins, 562 A.2d 610, 615 (D.C. 1989)). Mr. Robbins argues that Disciplinary Counsel was effectively in privity with Virginia’s Bar Counsel because the two are members of the National Organization of Bar Counsel and share a common goal of disciplining attorneys who violate rules central to the conduct of the profession. But as highlighted by Disciplinary Counsel, there is no evidence that Disciplinary Counsel participated in the Virginia proceedings or coordinated with Virginia’s Bar Counsel to present consistent arguments. This is especially significant where no live witnesses testified in the Virginia proceedings; the Virginia court merely considered the cold record of the proceedings before the Hearing Committee in D.C.

...In reaching its final decision, the Virginia court concluded simply that local Bar Counsel had not proven by clear and convincing evidence that an attorney-client relationship existed, but offered no analysis to support its conclusion. Rather, the court stated only that it found “that the evidence falls short, but barely so.”

For these reasons—Disciplinary Counsel’s lack of participation in the Virginia proceeding, the Virginia Court’s reliance on an inferior record, and the Hearing Committee’s full hearing on the violations before Virginia’s decision—the Virginia decision is not entitled to preclusive effect.

A finding of an attorney-client relationship in the case was a necessary predicate to the conflict of interest violation. (Mike Frisch)

August 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

D.C. Gives Free Pass To Big Firm Lawyer

A case that started with a felony conviction has resulted in probation with no period of suspension in a decision of the District of Columbia Court of Appeals.

Thus a big firm lawyer avoids any meaningful sanction for nearly killing an innocent victim.

Respondent, Wayne R. Rohde, was convicted over a decade ago in Virginia of "leaving the scene of an accident," a felony. The Board on Professional Responsibility ("the Board") has determined that Mr. Rohde committed both a "serious crime," under D.C. Bar R. XI section 10 (b) and violated Rule 8.4 (b) of the Rules of Professional Conduct by committing "a criminal act that reflects adversely on [his] . . . fitness as a lawyer." As a sanction, the Board recommends a two-year suspension from the practice of law, with a fitness requirement, stayed in favor of three years of probation with conditions. Mr. Rohde has not contested either the Board’s assessment of his misconduct or its recommended sanction. Disciplinary Counsel, however, argues that the Board’s recommended sanction is inadequate. Specifically, Disciplinary Counsel argues that because Mr. Rohde’s crime involved moral turpitude, either per se or on the facts, Mr. Rohde must be disbarred per D.C. Code § 11-2503 (a) (2012 Repl.). Alternatively, Disciplinary Counsel argues that this court should disregard Mr. Rohde’s Kersey mitigation evidence (which it argues should not be considered in a disciplinary case based on a felony conviction) and exercise its discretion to disbar Mr. Rohde.

Editors note: It took over a decade because of gross systemic failure - the hearing committee took seven years to issue a report.

This court employs three distinct analyses to evaluate a bar discipline case based on a criminal conviction. We begin with an element-focused inquiry to assess if the crime is one of moral turpitude per se. If it is not, we then refocus the inquiry to assess the facts and circumstances that fairly bear on the question of moral turpitude in the actual commission of the crime, such as motive or mental condition. If the crime is not one of moral turpitude, either per se or on the facts, we then conduct a comprehensive analysis of the totality of the circumstances, including any aggravating and mitigating factors, and exercise our discretion to impose a just sanction.

 Applying this rubric to Mr. Rohde’s case, we conclude, based on an examination of the crime’s elements, that his conviction under Virginia law for leaving the scene of an accident without complying with reporting requirements or rendering aid to the person whose car he hit does not meet the stringent test for moral turpitude per se. We further conclude that Mr. Rohde’s offense was not one of moral turpitude on the facts, relying on the undisputed evidence that Mr. Rohde was in an alcoholic blackout during its commission and the credited expert testimony that he was unable to exercise appropriate judgment while in that condition. Lastly, we exercise our discretion as to the appropriate sanction. Considering the totality of the circumstances, we acknowledge the gravity of Mr. Rohde’s conduct as well as his previous pattern of drinking and driving, but we also look to his powerful Kersey mitigation evidence (which we hold is properly considered in cases involving a felony conviction but not reflecting moral turpitude). Specifically, Mr. Rohde demonstrated that at the time he committed this crime he was suffering from alcoholism, that he subsequently sought treatment, and that he has now been in recovery for many years. In light of Mr. Rohde’s rehabilitation and the distinct function of the disciplinary system not to punish but "to maintain the integrity of the [legal] profession . . . to protect the public and the courts, [and] to deter other attorneys from engaging in similar misconduct," In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc), we see no utility in disbarring or actively suspending Mr.Rodhe and thus adopt the Board’s recommended sanction.

There might be some utility in cautioning the Bar about the commission of such crimes and instructing that the consequences will be more than a total free pass.

My case summary

Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.

After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.

His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.

He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court's usual (indeed, nearly invariable) practice for felony convictions.

The hearing was competed on January 15, 2008.

The report was filed last Friday - seven years and a day after.

And it stinks.

According to the committee, the offense is not one of moral turpitude and was caused by his alcoholism. The committee bought his story that he was essentially morally blameless due to an "alcoholic blackout."

Notably, he denied an ongoing alcohol problem when it served his purposes in the criminal case. In the disciplinary case, the cause was demon rum. That little inconsistency was no problem for the hearing committee.

Nor were his four prior alcohol-related traffic accidents an issue.

My read on the Board on Professional Responsibility report

So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.

No real disciplinary consequences because he'a an alcoholic?

As noted, and in sharp contrast to the attorney in the Kersey case (which I prosecuted), this attorney was practicing effectively at a major firm at the time of the near-fatal collision. The evidence in Kersey showed that his alcohol addiction had pervasively impaired every aspect of his professional and personal life.

Further, Kersey did not involve a felony or any other crime.  

The court apparently - and dangerously - holds that Kersey mitigation is now available to convicted felons. Maybe so. But it cannot dilute or negate any element of the offense. See Rule XI, section 10. That pretty much destroys the "blackout" story. 

A prior decision (linked above) correctly held

 While Hopmayer maintains that his alcoholism negates the element of moral turpitude, the Board takes the position that Hopmayer's [theft] conviction is conclusive evidence of his mental intent, that he should not be granted a hearing to dispute or explain the factual circumstances underlying the offense, and that this court should disbar him. The issue in this case is one of first impression in the District of Columbia. We agree substantially with the Board, adopt its recommendation, and order Mr. Hopmayer disbarred.

And the floodgates are now open. Mitigation that would be laughed out of a criminal court (try telling a court you are not guilty of fleeing an accident scene because you were in an alcoholic blackout and see how far you get) can now save your D.C. law license without a hiccup.

This is one of the most shameful days in the history of the D. C. Bar.

It has been over 20 years since the court considered a bar discipline case en banc. The last one - In re Elliott Abrams - was my case.

This case deserves the full court's attention.  (Mike Frisch) 

August 30, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 29, 2018

Rocky Mountain (Too) High

The Minnesota Supreme Court imposed a shorter suspension as reciprocal discipline based on a Colorado sanction

Respondent was suspended in Colorado after she submitted false billing entries for the December 2016 billing cycle. Respondent initially lied to attorneys at her firm when they confronted her about the falsified billing entries but confessed later that day. Respondent submitted the false billing entries in order to meet her law firm's yearly billable-hours expectation for associates. No client paid an inflated billing entry. Respondent's misconduct violated Colo. R. Prof. Conduct4.l(a) and 8.4(c). The Presiding Disciplinary Judge found the existence of one aggravating factor and several mitigating factors. When respondent, who is a resident of Colorado, was reinstated to practice law in Colorado in May 2018, she was not placed on probation.

Here

The parties contend that reciprocal discipline is not appropriate in this case because the imposition of the same discipline would be substantially different than the discipline warranted in Minnesota.

The court has independently reviewed the file and approves the jointly recommended disposition. Although we typically impose identical discipline in a reciprocal disciplinary proceeding, identical discipline is not required if it is "substantially different from [the] discipline warranted in Minnesota." Rule 12(d), RLPR. We have imposed less-severe discipline in similar cases involving false billing entries when the misconduct occurred during a short period of time and no client paid an inflated time entry.

...We conclude that a 9-month suspension is substantially different from the discipline warranted in Minnesota and agree that a 6- month suspension is appropriate. 

 (Mike Frisch)

August 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

At The Mandalay Bay

The Illinois Administrator has filed a complaint alleging misconduct by an attorney in his capacity as President of the Puerto Rican Bar Association ("PRBA")

On May 3, 2014, Eulalia De La Rosa ("De La Rosa"), who was then the President of the PRBA, and Claudia Badillo ("Badillo"), who was then the Treasurer of the PRBA, opened the PRBA Chase account. At some time thereafter, De La Rosa obtained a debit card ending in 9839 for the PRBA Chase account (the "9839 debit card").

At some time between January 29, 2016 and November 1, 2016, Respondent was sworn in as President of the PRBA.

Pursuant to Article VIII, Section C of the PRBA bylaws...as President of the PRBA, Respondent was also a director of the PRBA. Accordingly, during the time that Respondent was President of the PRBA, Respondent owed the fiduciary duties listed in Article V, Section E of the PRBA bylaws, referenced in paragraph four, above, to the PRBA. Respondent was also bound by Addendum A...as well as all other duties of the President and directors set forth in the PRBA bylaws.

At some time between November 1, 2016 and November 28, 2016, De La Rosa gave Respondent the 9839 debit card because Respondent had taken over the role of President.

Between November 28, 2016 and December 5, 2016, Respondent was in sole possession and control of the 9839 debit card.

On December 6, 2016, Respondent was added as a signatory on the PRBA Chase account. That same day, De La Rosa and Badillo were removed as signatories because their terms as President and Treasurer, respectively, were over. At some time on or around December 6, 2016, Respondent received a debit card ending in 4853 for the PRBA Chase account (the "4853 debit card").

Between December 6, 2016 and July 24, 2017, Respondent was in sole possession and control of the 4853 debit card, and he was the sole signatory on the PRBA Chase account.

Between November 28, 2016 and July 24, 2017, Respondent used the 9839 debit card and the 4853 debit card to make 77 ATM withdrawals, totaling $10,574.90, for his own personal or business use. Of those 77 ATM withdrawals, Respondent made five withdrawals at the Mandalay Bay hotel in Las Vegas, Nevada, in the total amount of $894.95.

Between November 28, 2016 and July 24, 2017, Respondent used the 4853 debit card to make purchases for his own personal or business use, totaling $721.50. Respondent made two of those purchases at the Mandalay Bay hotel in Las Vegas, Nevada, in the total amount of $525.90.

Between November 28, 2016 and July 24, 2017, Respondent made 15 electronic transfers from the PRBA Chase account to his personal bank account at Chase, in the total amount of $5,061.15. Those 15 electronic transfers were for Respondent’s own personal or business use.

He made some payments back into he account but

 On July 25, 2017, the board members of the PRBA held an emergency board meeting, at which Respondent was in attendance, to discuss Respondent’s use of funds in the PRBA Chase account. During that meeting, Respondent resigned from his position as President of the PRBA, effective immediately.

As of July 25, 2017, Respondent still owed the PRBA $4,930.41.

(Mike Frisch)

August 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Six Months Is Not Enough

The full Maine Supreme Judicial Court has vacated a six-month suspension imposed by a single justice and remanded for a more severe sanction determination.

The order was sought by the Board of Bar Overseers.

The attorney had been reinstated after a money laundering conspiracy conviction

In June 2014, as a result of his guilty plea to, and resulting conviction of, federal charges of conspiracy to launder money and aiding and abetting, 18 U.S.C.S. §§ 1956(a)(1), (h) 1957(2) (LEXIS through Pub. L. No. 115-231), Prolman was suspended indefinitely from the practice of law in Maine. Following his guilty plea, Prolman received a sentence of twenty-four months’ imprisonment and twenty-four months’ supervised release. In November 2015, the Board filed a motion seeking further disciplinary action against Prolman, and Prolman responded with a motion seeking limitation or termination of his suspension. After a hearing on those motions in February 2016, a single justice of the Supreme Judicial Court (Alexander, J.) issued a decision concluding that Prolman had violated M.R. Prof. Conduct 8.4(a)-(d) but nonetheless ordering the termination of Prolman’s suspension as of July 1, 2016, thereby reinstating him to the practice of law.  Pursuant to that order, Prolman’s reinstatement and continued active practice was conditioned upon his compliance with the terms and conditions of his federal supervised release.

 And was then the subject of a complaint from a vulnerable client

When he arranged for his client to live in his apartment, Prolman was aware of his client’s social history, history of abuse, submissiveness to men, and vulnerability to abusive physical and sexual relationships. Despite this knowledge, on more than one occasion while Prolman and his client were residing at his apartment between March 29 and April 9, 2017, Prolman approached his client seeking sexual gratification and engaged in sexual acts with her. The client regarded Prolman’s sexual acts as “gross.” Although she did not consent, she also did not communicate her objection to Prolman’s sexual acts, simply submitting to what Prolman demanded as she had done in past relationships with men who had taken advantage of her vulnerability...

...During the time his client was residing at the apartment, Prolman consumed and provided his client with wine. Prolman’s conditions of supervised release prohibited his use or possession of alcoholic beverages, and a violation of those conditions also would be a violation of the March 17, 2016, disciplinary order requiring compliance with the terms of his supervised release.

 The court here

We all agree that the sanctions imposed were simply insufficient and represent an abuse of discretion. Three of us would conclude that the ABA Sanction Standards have been engrafted onto the Maine Rules of Professional Conduct, and that the court erred as a matter of law and therefore abused his discretion in failing to apply those Standards. Three of us would look to those Standards for guidance but would not determine that they have been wholly engrafted into the Maine Rules.

Unanimously, we vacate the judgment and remand the proceedings to the court for the imposition of a sanction that reflects the serious behavior of the attorney and that, at a minimum, would require Prolman to apply for readmission upon demonstration of a thorough understanding of the ethical obligations of a Maine attorney.

 Three justices concurred

We would... hold that Maine Bar Rule 21(c) incorporates the ABA Sanction Standards, and we would vacate the judgment and remand this matter to the court to impose a sanction using the methodology and framework set out in those ABA Sanction Standards.

(Mike Frisch)

August 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Facilitator

Disbarment of an attorney has been ordered by the Maryland Court of Appeals

This attorney disciplinary matter concerns a Maryland-barred attorney who acted as a facilitator in a complex money laundering scheme that induced investors to advance funds in exchange for a false promise of a full return of the advanced fees and a future construction loan under the guise of an escrow agreement. Specifically, Respondent Jeneba Jalloh Ghatt ("Respondent" or "Ms. Ghatt") agreed that her law firm would serve as escrow agent, which in effect converted her attorney trust account into a repository for the advanced fee scam. Although Respondent may not have initially been a knowing participant involved in the complex fraudulent scheme, she ultimately became complicit in the scam when she failed to verify and safeguard the advanced funds and then misrepresented her disbursements of those funds. For these reasons, we disbar Ms. Ghatt.

The court

In this case, we have concluded that Ms. Ghatt engaged in intentional dishonest conduct and that she misused trust money. Ms. Ghatt specifically represented to [complainant] Mr. Yates, by way of the Confirmation of Deposit, that she had personally verified and confirmed the existence of a sub-account holding $500,000 in the Ghatt Law Group attorney trust account. However, Ms. Ghatt’s testimony revealed that she merely relied on the same Confirmation of Deposit that Strategic Capital had sent her rather than verifying the sub-account by investigating with Citibank and her attorney trust account. In addition, Ms.  Ghatt sent a screenshot of her Citibank attorney trust account to both Mr. Seiler, acting as Mr. Yates’s attorney, and Bar Counsel, suggesting that she was holding the $500,000 owed to Mr. Yates despite full knowledge that her brother had linked his own account to Citibank and that he had sent her the screenshots. These are the two most troubling instances of dishonest conduct, which constituted violations of MLRPC 3.3, 8.1, and 8.4.

The link to oral argument may be found here.  (Mike Frisch)

August 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Proceeding Expeditiously

The Law Society of Upper Canada Hearing Division Tribunal has denied a motion to dismiss or delay proceedings pending a related civil action 

The Law Society alleges that lawyer Maria Marusic misappropriated or assisted in misappropriating over $1 million when she co-signed cheques transferring a client’s funds from trust to her firm’s general account. It also alleges that in representing a second client, she failed to prevent the unauthorized practice of law by her former partner, Claudio Martini, while he was suspended, and associated with or used his services. Finally, it alleges that she acted without integrity in the manner in which she handled that client’s settlement.

Ms. Marusic argues that the Law Society’s application should be dismissed without a hearing. She says that the Law Society has created an abuse of process by requiring her to respond to allegations about her association with Mr. Martini while at the same time pursuing this discipline proceeding. Alternatively, she asks that the hearing be delayed until a civil action connected with the misappropriation allegations is decided.

The motion is dismissed. The allegations to which the Law Society is currently seeking a response form part of a new investigation into Ms. Marusic’s associations with Mr. Martini on matters not at issue in this application. Moreover, even if the new investigation did involve the same allegations, the Law Society is entitled to continue to investigate, including exercising its powers to require licensees to respond. We also find that it would be inappropriate for us to exercise our discretion to delay the hearing of the serious allegations against Ms. Marusic. The civil case involves different issues and is at a relatively early stage. The need for this matter to proceed expeditiously has been emphasized in earlier Tribunal proceedings and that approach should continue to be followed.

(Mike Frisch)

August 29, 2018 in Bar Discipline & Process | Permalink | Comments (0)