Tuesday, November 11, 2014
An Idaho attorney has resigned from the bar in the wake of his federal court conviction.
The web page of the Idaho disciplinary counsel notes
The Idaho Supreme Court accepted Mr. Ellison’s resignation in lieu of discipline. By the terms of the Order, Mr. Ellison may not make application for admission to the Idaho State Bar sooner than five years from the date of his resignation. If he does make such application for admission, he will be required to comply with all of the bar admission requirements in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttal presumption of the “unfitness to practice law.”
The Order also provides that consistent with I.B.C.R. 512(d), if an appeals court vacates or reverses Mr. Ellison’s conviction, or if a trial court enters an order granting a motion for a new trial, a motion for judgment of acquittal, or a motion to withdraw a plea of guilty, that removes Mr. Ellison’s conviction of the crimes, which are the basis for this sanction, Mr. Ellison may file with the Clerk of the Idaho Supreme Court, a motion for dissolution or amendment of the sanction.
Law.com had this report on the underlying case
Douglas Swenson, former president of failed property management company DBSI, faces 20 years in federal prison. The company’s former general counsel, Mark Ellison, faces a sentence of up to five years.
A U.S. district judge in Idaho has sentenced Douglas Swenson, the president of failed southwest Idaho property-management company DBSI, to 20 years in federal prison without parole for defrauding investors, the Associated Press reports.
The judge, B. Lynn Winmill, also sentenced DBSI’s former general counsel, Mark Ellison, to five years in prison. Federal prosecutors have said they will seek at least $75 million in restitution, which will be set later. In April 2013, $1.5 million was seized from Swenson on the orders of a federal magistrate judge, the Associated Press reports.
This is the largest federal fraud case in Idaho history. Winmill told those in the courtroom that it was the toughest he had presided over in almost 30 years as a judge, as he believed that the defendants did not set out to defraud investors. He said he tried to weigh the descriptions of Swenson and Ellison as family men, churchgoers, and community leaders who had never before been in trouble with the law against the harm done to investors, some of whom lost hundreds of thousands of dollars, The Idaho Statesman reports.
In April a jury convicted Swenson of 44 counts of securities fraud and 34 counts of wire fraud. Ellison was convicted of 44 counts of securities fraud. Attorneys for Swenson and Ellison said they plan to appeal their convictions, the Associated Press reports.
Jeremy Swenson and David Swenson, Douglas Swenson’s sons and former company secretaries who were also convicted of securities fraud, were sentenced on Thursday to three years in prison followed by three years of supervised release and a $4,400 special assessment. They will also have to pay restitution, which will be set later, KTVB reports.
DBSI, founded in 1979, was once one of Idaho’s largest employers. Before it filed for bankruptcy in 2008, it managed 280 shopping centers, office buildings and other commercial buildings across Idaho and 33 other states. The company’s holdings were worth $2.7 billion, and many of them were owned by groups of investors to whom DBSI sold fractional shares. The company claimed to have a net worth of more than $105 million, when in fact it lost a total of $170 million in 2007 and 2008, The Idaho Statesman reports.
Swenson and Ellison concealed the company’s financial difficulties from investors and employees, and even continued to accept new investments when they knew there were not enough earnings to keep paying off investors.
University of Maryland Professor Jeffrey Mitchell told the court on Wednesday that he invested $113,000 in DBSI just 70 days before the company collapsed, and was given no indication that the company was in any financial trouble, the Associated Press reports.
However, other investors said that they understood the risks involved. Under federal regulations, DBSI investors had to have a minimum yearly income of $200,000 or a net worth greater than $1 million. They were also required to sign a document acknowledging that there was no guarantee of return and that they could afford to lose their investment, the Associated Press reports.
Monday, November 10, 2014
The Michigan Attorney Discipline Board has affirmed the denial of a suspended attorney's petition for reinstatement.
The suspension involved a false statement in a federal court proceeding.
The problem here
As noted in the panel's report, petitioner's testimony that he believed the Attorney Grievance Commission was part of the State Bar and he therefore had been suspended by the State Bar, and that because he had no pending cases in any courts, he was not "suspended by a court," was simply not credible in light of the fact that petitioner was fully aware of the process having gone through an entire reinstatement proceeding that resulted from his prior thirty month suspension. Additionally, on cross-examination, petitioner admitted that when the matter was brought to the court's attention, he wrote a letter of explanation which did not include his apparent belief that he had been suspended by the State Bar but rather had indicated thathe had voluntarily resigned.
An attorney's latest brush with ethical violations resulted in a one-year suspension by the Wisconsin Supreme Court.
The court noted that the attorney
has a lengthy and troubling disciplinary history, with three consensual private reprimands, one consensual public reprimand, and four previous suspensions.
Here, the attorney picked up a alcohol-related driving conviction after previous discipline for such misconduct.
He also again violated court orders in his domestic case
...although he had been disciplined in that proceeding for criminal convictions that arose out of improper actions toward his then-wife, he subsequently chose to violate a domestic abuse injunction by sending legal documents to her directly. Further, although he had been disciplined in Guenther III for his second offense of operating a motor vehicle with a PAC, he engaged in the conduct again, leading to a third PAC conviction. This repetition of misconduct makes the violations in this matter more troubling and worthy of a lengthier suspension, which hopefully will impress upon him the seriousness of his misconduct and the need to conform his conduct to both the criminal laws of this state and the Rules of Professional Conduct for Attorneys.
The New Jersey Supreme Court has imposed a one-year suspension as reciprocal discipline in an interesting litigation-misconduct matter.
The misconduct involved an associate's attorney handling of an employment discrimination matter against the client's former employer (OMD). The associate was supervised by partners of his law firm.
OMD had sought information about the client's efforts to mitigate damages through, among other things, obtaining new employment. Responsive documents were provided by the firm.
The firm retained an economist to assess damages. The expert prepared an analysis based on the assumption that the client would be unemployed through the end of 2010.
Prior to service of the expert's report, the client got two job offers. She accepted a job with Kraft that paid her more than she made at OMD. She advised the attorney informed about her employment situation, who in turn told his supervisor.
The firm then received and sent to opposing counsel the expert report, asking for a $350,000 settlement.
Then client was deposed a month later and lied about the situation. The attorney was aware of the false testimony but did not move to correct it
Negotiations continued until OMD learned about the client's new job.
The Disciplinary Review Board
OMD’s counsel moved for sanctions and dismissal. [Supervising attorney] Gilly and another partner from the firm were present at the May 2011 oral argument on the motion. Respondent was not present. The judge imposed a sanction $2,500 against [client] Fryer and $15,000 against the firm, "based on false testimony by Ms. Fryer at her deposition" and respondent and Gilly’s efforts "to conceal Ms. Fryer’s new employment and to leverage a false expert report in order to extract a favorable settlement." The judge declined to dismiss the case against OMD at the time. Respondent was asked to resign from the firm on May 31, 2011.
The court imposed the same sanction as originally ordered by the New York Appellate Division for the First Judicial Department.
LAW360 reports that the partner was suspended in the New York Southern District and had sued the law firm. (Mike Frisch)
Thursday, November 6, 2014
The District of Columbia Court of Appeals has suspended an attorney convicted of causing the deaths of two people.
The attorney was driving a 2013 BMW; the couple died on a 2006 Harley motorcycle.
NBC News 4 had reported on the charges.
Mark Sgarlata, a partner in a Tysons Corner law firm, faces two counts of aggravated involuntary manslaughter for killing Ricky and Leia Wrenn, when he drove his car into their motorcycle...
Investigators say Sgarlata made a left turn into a shopping center just after midnight Oct. 6 and crashed into the Wrenns on their motorcycle, killing them.
He had faced another DUI charge in the past. Records show arrested in March 2011, but the charge was pleaded down to reckless driving. He had a restricted license for six months.
The court imposed an interim suspension pending final discipline for the attorney's resulting conviction. (Mike Frisch)
The Ohio Supreme Court has ordered a two-year suspension with the second year stayed on conditions of an attorney who engaged in gross overbilling for court-appointed legal services.
The attorney became the subject of scrutiny when the Dayton Daily News reported that he was the "attorney receiving the highest payment for court appointed legal work in Ohio."
Turns out he was billing for services in four counties such that in 2008 he billed 2,555.5 hours (the point 5 is a nice touch) to a single county, which comes out to over seven hours a day 365 days a year.
His billings to other counties got him over eight hours a day.
Restitution of $50,000 is one of the reinstatement conditions. (Mike Frisch)
An attorney retained as successor counsel in a contingent fee personal injury action was suspended for two years with the second year stayed on conditions by the Ohio Supreme Court.
The first firm initially had claimed a lien for fees and costs of under $3,000. When the case settled for $150,000 a month into the attorney's taking the case they claimed to have done most of the work and sought the bulk of the settlement proceeds.
The attorney had the settlement check released to her by the responsible judge, who initially had kept the check in a bowl on her desk.
The attorney failed the follow the court's instructions on distribution of the proceeds and was late for court proceedings. Eventually, the attorney was heldin contempt and incarcerated.
The attorney made a claim of bias by the trial court and contended that the hearing on the check distribution violated her rights in that her cross-examination of prior counsel was not allowed to be completed.
The court here rejected the bias claim but expressed concern about the fairness of the distribution hearing, which reains unresolved on appeal.
The court ordered restitution to the first firm among other conditions on reinstatement. (Mike Frisch)
Wednesday, November 5, 2014
The Arizona Presiding Disciplinary Judge has ordered the reprimand of an attorney who gave grand jury transcripts to a reporter.
It is clear release of such sensitive documents to the press when it is forbidden by court rule and statute is a direct interference with the legal process. It can cause significant harm to the opposing party, which is not in the interest of the public, harm the interest of the client, or disrupt the integrity of the legal system. Whether this harm happened, has yet to happen, or did not happen, the potential for significant harm undoubtedly existed. As with all matters, this case has been carefully considered. A request for modification was cautiously considered.
This is not to say a reprimand is not the appropriate action to be taken. As with plea bargaining in criminal proceedings, consent agreements typically involve one pleading to a lesser charge and often includes a request for leniency. Through the process of consent agreements, the parties are able to establish a mutual acknowledgement of the weaknesses and strengths of a case. Both parties are represented by counsel and the terms of the agreement support a negligent state of mind. The object of lawyer discipline is not to punish the lawyer, but to protect the public, the profession and the administration of justice. That purpose is met by the agreement.
The judge found that the attorney had acted with a knowing state of mind. (Mike Frisch)
Tuesday, November 4, 2014
The Illinois Review Board has recommended a three-year suspension of an attorney who engaged in a sexual relationship with a client
The Hearing Board found Respondent's sexual relationship with the client, while representing her in a lawsuit seeking damages for the wrongful death of her husband, constituted a conflict of interest. The Hearing Board found Respondent also engaged in a conflict of interest and improper business transaction by his multiple financial dealings with the client, while representing her. The Hearing Board concluded Respondent counseled his client to testify falsely, by telling her to describe their relationship as strictly platonic, as she was preparing for depositions in the wrongful death case. The Hearing Board also concluded statements Respondent made to the ARDC during its investigation of his conduct were false.
The evidence that he sought to get the client to lie
While another attorney was preparing [client] Scott and her children for their depositions in the wrongful death lawsuit, he asked Scott about her personal relationship with Respondent. Scott telephoned Respondent and informed him of the inquiry. Shortly after this call, Respondent sent a text message to Scott, which told Scott to "deny anything other than we r good friends nothing more I could lose my license." Scott then told the counsel preparing her for her deposition that she and Respondent were just friends.
The review board found that the findings were not against the manifest weight of the evidence.
The attorney also took out $48,000 in loans from the client to, among other things, buy himself a BMW.
The recommendation, if adopted, will require the attorney to establish his fitness prior to reinstatement. (Mike Frisch)
An attorney who settled a malpractice claim brought by a former client but was unable to pay the agreed $50,000 did not engage in conduct prejudicial to the administration of justice, according to a report of the New Jersey Disciplinary Review Board.
The DRB recommended (and the court imposed) an admonishment for his failure to respond to the bar investigation.
As to the alleged Rule 8.4(d) violation
Respondent’s failure to comply with the settlement in the malpractice action is a civil matter, not a disciplinary matter. If respondent’s actions in this context become fodder for a finding of misconduct, then every attorney-litigant who is unable to pay a civil judgment will face disciplinary charges. The floodgates will be opened.
Moreover, logic forces the conclusion that respondent was unable to timely pay the judgment against him. Had he timely paid, the amount due to his client would have been $50,000. Otherwise, the figure would rise to $118,000. Respondent testified that he ultimately paid $93,766.34 to the former client. Clearly, it was in his interest to timely pay the amount due, had he been able to. But there is no indication that his failure to timely make the payment was an act of defiance... To find that respondent was guilty of conduct prejudicial to the administration of justice implies a malevolent intent that the record does not support. The disciplinary system is not meant to function as a collection agency.
The attorney suffered from (entirely understandable) depression during the period of the violations --he had lost his mother, father and sister and was divorced. (Mike Frisch)
Monday, November 3, 2014
A recent bar discipline summary from the web page of the Idaho Bar Counsel
On October 27, 2014, the Idaho Supreme Court issued a Disciplinary Order suspending Meridian attorney Brian L. Boyle from the practice of law for a period of 90 days, effective October 1, 2014. The Disciplinary Order included a withheld six-month suspension and a one-year disciplinary probation upon reinstatement.
The Idaho Supreme Court found that Mr. Boyle violated I.R.P.C. 1.2(a) [Scope of representation], 1.3 [Diligence], and 1.4 [Communication]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding in which Mr. Boyle admitted that he violated those rules.
The formal charge case related to Mr. Boyle’s representation of a client who sought a guardianship of a disabled child. In that case, Mr. Boyle failed to promptly file the guardianship petition, failed to communicate with his client about the status of the case, and failed to communicate with the minor’s appointed guardian ad litem. The client erroneously believed that she had been appointed as guardian. However, the Court had not appointed a guardian and instead scheduled a show cause hearing due to inactivity in the case. Approximately two months before the show cause hearing, the child died. At the show cause hearing, Mr. Boyle informed the Court that the child was still living and that his client wanted to be appointed guardian. After the hearing, the guardian ad litem contacted Mr. Boyle’s client, learned that the child was deceased, and informed the Court. The case was ultimately dismissed.
The Disciplinary Order provides that 90 days of suspension will be served effective October 1, 2014, and six months will be withheld. Mr. Boyle will also serve a one-year probation following reinstatement, subject to conditions specified in the Order.
The Maryland Daily Record has a report on a disciplinary hearing
A Montgomery County [Maryland] judge is hearing evidence in the disciplinary case against a Chevy Chase lawyer who pleaded guilty last year to secretly videotaping female tenants staying at his house.
Dennis A. Van Dusen was sentenced in July 2013 to five years’ probation and ordered to pay a $2,500 fine after pleading guilty to three counts of visual surveillance with prurient intent.
Bar Counsel for the Attorney Grievance Commission filed its petition for disciplinary action against Van Dusen in April, according to court records. Judge Anne K. Albright is presiding over the three-day hearing, which began Thursday.
There is no timetable for Albright to issue her findings. Once she does, Van Dusen and Bar Counsel will each be given a chance to file exceptions with Maryland’s highest court, the Court of Appeals, which will ultimately decide whether to disbar Van Dusen, suspend him, impose a lesser sanction or no sanction at all.
Van Dusen’s acts did not involve his law practice, but the Court of Appeals has found in other cases that criminal acts can violate the Maryland Lawyers’ Rules of Professional Conduct.
Van Dusen has multiple master’s degrees from Harvard University and graduated from the University of the District of Columbia’s law school in 2009, according to a transcript posted on his personal website. The Maryland Court of Appeals admitted Van Dusen to this state bar Oct. 5, 2012, despite receiving an unfavorable report from the Character Committee that covers Montgomery County.
The case is Attorney Grievance Commission v. Dennis Alan Van Dusen, 29833M.
Van Dusen was arrested in October 2012 after a tenant noticed a pinhole in the smoke detector directly above her bed, where a camera was discovered. A police search of Van Dusen’s computers and hard drives found sexually explicit images of many tenants, although police believe Van Dusen did not share the images online.
A day after police came to his house, Van Dusen sent the tenant a text message, according to the tenant’s complaint.
“I am willing to discuss settlement before you make a claim but not afterward,” the text said. “Best to communicate by email or txt.”
In February, a civil jury found Van Dusen liable for more than $1 million in damages in a lawsuit brought by the former tenant and her former boyfriend. That same month, another tenant was awarded more than $820,000 in her civil lawsuit against Van Dusen, according to court records.
Huffington Post noted the guilty plea in the criminal case.(Mike Frisch)
A story from the November 2014 online edition of the California Bar Journal
A Garden Grove attorney who was the subject of hundreds of complaints from distressed homeowners agreed to be disbarred last month for his misconduct in 14 of those cases.
Stephen Lyster Siringoringo [#264161], 33, admitted to taking illegal advanced fees from homeowners in loan modification cases, failing to provide those homeowners with an accounting and aiding in the unauthorized practice of law by allowing non-lawyers to meet with those clients, according to a stipulation filed Oct. 15 in State Bar Court.
Although he stipulated to 29 counts of misconduct in the 14 cases, the State Bar’s Office of Chief Trial Counsel said it has received 796 additional complaints about Siringoringo’s conduct.
The Siringoringo Law Firm would set up retainer agreements with its clients where loan modification work would be split into stages. In the first two stages, which involved completing the loan application, clients would be charged between $2,000 and $3,500. In the third stage, when the loan application was submitted and the firm purportedly negotiated with lenders, clients would be charged $495 every 30 days while awaiting the lender’s decision.
Siringoringo provided refunds ranging from $1,500 to $5,970 in the 14 cases outlined in the stipulation. Other former clients may be eligible for reimbursement from the Client Security Fund after Siringoringo’s discipline is finalized by the California Supreme Court.
Siringoringo was the subject of an earlier discipline case. In 2013, the State Bar Court recommended he receive an 18-month suspension for collecting advanced fees in 20 loan modification matters.
The current stipulation notes that Siringoringo’s similar misconduct in the prior case occurred only one or two years earlier.
“Significantly, Respondent was aware of the ethically suspect nature of his conduct in accepting advanced fees in loan modification cases before any of the 14 clients in the current matter retained him,” it read.
The story of the attorney who the District of Columbia Board on Professional Responsibility deemed to be fit to practice gets worse and worse.
I now learn that the attorney was recently prosecuted for ethical violations in two other matters by the Maryland Attorney Grievance Commission (Misc. Petition Nos. 29034, 29262) and failed to participate in the ensuing disciplinary proceedings.
According to a public report filed on January 24, 2014, Judge Cynthia Callahan of the Montgomery County Circuit Court found numerous ethics violations and noted
Respondent's disregard for the lawful disciplinary process established by the Court of Appeals, previously manifested in his failure to respond to Bar Counsel's letters, continued at this level of the disciplinary process when Respondent failed to appear in court for the scheduled pretrial conference on December 2, 2013 and for the judicial hearing on December 16, 2013.
Also noteworthy is that Judge Callahan got her report out (with intervening holidays) in just over a month.
Oral argument before the Maryland Court of Appeals will be held next week.
In the D.C. case, the hearing committee took about thirteen months to issue a report (actually not too bad given the delay in other cases). It then took the BPR another thirteen months to issue its report. Two years of discipline-free practice.
Now, the D.C. BPR report will likely get lost in the backwash of reciprocal discipline from Maryland.
That is a death it richly deserves. (Mike Frisch)
A public reprimand was imposed on an attorney by agreement for failure to communicate with a difficult client who had a difficult civil case.
The Georgia Supreme Court noted
Moncus admits that he could have done more to communicate with the client about the predictable length and processes of litigation; to convey the potentially grave negative effects of failing to respond to discovery, to convince the client to defend the summary judgment motion, and to convey the seriousness of the potential consequences of not responding. He admits that he should have made a greater effort to contact the client by phone or other available methods. Alternatively, Moncus states that, in hindsight, it would have been better to withdraw as the client’s counsel.
On the plus side
The State Bar does not dispute the facts regarding the misconduct and confirms that Moncus was fully and promptly cooperative and forthcoming to the Bar’s numerous inquiries, including an independent forensic examination of Moncus’s computer systems in light of the client’s belief that Moncus recently created some of the letters he said he had sent the client during the initial representation. The State Bar states that the interests of the public and the Bar would be served by accepting the petition and imposing a public reprimand.
In Georgia, the attorney must appear in court to be reprimanded. (Mike Frisch)
Friday, October 31, 2014
A Cody attorney has been censured by the Wyoming Supreme Court for litigation misconduct.
The Missoulian has the details
The Wyoming Supreme Court on Wednesday censured a Cody lawyer who represented a surgeon in a defamation lawsuit filed by another doctor.
The court ruled lawyer Laurence Stinson violated a professional rule prohibiting lawyers from making court filings without a good-faith basis and making filings intended only to embarrass the other party in litigation. It ordered him to pay over $15,000 to cover disciplinary proceedings.
Stinson's office said he was unavailable for comment Wednesday.
Stinson had represented Dr. John H. Schneider, a neurosurgeon who practiced in Cody. The Wyoming Board of Medicine revoked Schneider's license early this year.
Dr. Jimmie Biles of Cody sued Schneider in 2011 contending he was behind anonymous fliers disparaging Biles' medical practice. Biles also had sued Lisa Fallon, of Indiana, alleging she had distributed the fliers.
According to Biles' lawsuits, the flier was sent in 2010 to more than 14,000 residents of north-central Wyoming. The lawsuits alleged that Schneider hoped the mailing would result in his getting more neurosurgical patients. Schneider had denied he was behind the mailings.
The Supreme Court ruling states the following:
— Fallon had told Biles' lawyers that Schneider had given her money to produce the fliers and provided her with a mailing list.
— While the lawsuit was pending, workers at West Park Hospital in Cody discovered a computer flash drive in the hospital laundry. It showed communications between Schneider and Fallon in which he encouraged her not to talk to Biles' lawyers.
— Stinson was aware that Schneider had written the flash-drive communications to Fallon when Stinson wrote Schneider's response to Biles' complaint. In the response, Stinson alleged that Biles knew his allegations against Schneider were false because Fallon had said she alone was responsible for the fliers. The response then listed "affirmative defenses" disparaging Biles personally and professionally.
— Biles' lawyers found an email-exchange between Schneider and Fallon showing he encouraged her to say she was too sick to testify to Biles' lawyers at a deposition and promising her a "a 250K-plus payoff." Soon after that discovery, Schneider entered a confidential settlement with Biles, ending the lawsuit.
The Supreme Court ruling on Wednesday says Stinson has contested the conclusions by the Wyoming State Bar that he had violated professional standards. Stinson maintained that he had an obligation to his client to mount a vigorous defense to Biles' lawsuit.
Schneider's settlement of the Biles' lawsuit remains an issue in an ongoing civil case in U.S. District Court in Wyoming.
The Wyoming Board of Medicine early this year revoked Schneider's license following an investigation into his involvement in treating Russell Monaco, 47, of Billings, Montana. Monaco died from an overdose of painkillers the day after his release from West Park Hospital in late 2011.
Monaco's relatives filed a federal lawsuit last year claiming negligence by the hospital and medical personnel, including Schneider. Lawyers for Monaco now are seeking details of the settlement between Schneider, his corporate interests and Biles.
In July, U.S. District Judge Scott Skavdahl of Casper signed an order denying a request from Schneider for a protective order to prevent Monaco's lawyers from pursuing information about whether Schneider moved money around after Monaco's death to attempt to shield it from creditors.
Skavdahl stated in his ruling that Monaco's lawyers allege that after Monaco's death, Schneider borrowed $3 million from a limited family partnership, submitted a claim for indemnification from an insurance company he owned and then paid the claim, leaving the insurance company insolvent.
Casper lawyer Stephenson Emery represents Schneider in the Monaco suit and filed another brief earlier this month asking for a protective order to keep Schneider's financial records secret. "The fraudulent transfer alleged is the Biles lawsuit settlement," he wrote. "The settlement is confidential."
An attempt to reach Emery for comment on Wednesday was unsuccessful.
Lawyer Jon Moyers of Billings, Montana, represents the Monaco family. He declined comment on the case Wednesday.
An attorney admitted in 2011 has had his career end with disbarment by the Nebraska Supreme Court.
The attorney had accepted retainers that he used as his own but had not been earned, mishandled cases and failed to respond to the disciplinary charges.
He also fabricated evidence submitted in response to one client bar complaint.
Respondent did not communicate with his clients regarding their cases and did not properly appropriate his clients’ trust fund accounts. He did not properly withdraw from representation of any of his clients and still maintains their files to this day. Correspondingly, Respondent prejudiced several of his clients’ cases; in particular, he allowed Rodwell’s case to be dismissed completely for failure to update the court. The Respondent has not cooperated with the Counsel for Discipline in its efforts to investigate his case, and in fact, Respondent is evading service from the Counsel for Discipline and this court. Respondent failed to provide records necessary to audit his client trust account. In the one instance when Respondent did reply to the Counsel for Discipline, he fabricated evidence of alleged communication with his clients. Thus, Respondent has engaged in dishonesty, fraud, deceit, and misrepresentation.
It's (mercifully) not often that a career at law terminates in this fashion in less time that it takes to get through law school. (Mike Frisch)
Wednesday, October 29, 2014
An attorney admitted to practice in Utah and California has been permanently disbarred in south Carolina for solicitation of a South Carolina client and subsequent false statements to disciplinary authorities.
The attorney was associated with a company named Fulcram 360
Fulcrum 360 was owned and operated by non-lawyers. Fulcrum 360 prepared and distributed marketing materials for J Nolan Legal on behalf of respondent. The materials included a direct mail solicitation and a website. Fulcrum 360 represented to respondent that an attorney had reviewed the marketing materials for ethical compliance and that it had developed a referral network consisting of attorneys in each state to refer clients for foreclosure representation if necessary. In fact, neither respondent nor Fulcrum 360 had a referral relationship or association with an attorney licensed to practice law in South Carolina.
In or around February 2013, a South Carolina resident received a direct mail solicitation from respondent addressed to her at her home in Eastover, South Carolina. The solicitation stated it was issued after the prospective client made known to respondent a desire not to be solicited by virtue of her failure to respond to prior attempts to contact her. The direct mail solicitation contained material misrepresentations and omissions of facts necessary to make certain statements considered as a whole not materially misleading. Specifically, the solicitation did not disclose the name under which respondent was licensed to practice law, contained the trade name J Nolan Legal which made it difficult for the prospective client to identify respondent, and did not specify that respondent is not licensed to practice law in South Carolina or otherwise indicate the jurisdictional limitations on his ability to practice law in this state. The direct mail solicitation: 1) listed a "virtual office" in California which respondent only used for the purpose of receiving mail while he actually worked from an office in Utah and 2) failed to include the various disclaimers required by Rule 7.3(d)(1), (2) and (3), Rule 407, SCACR. Further, respondent sent the solicitation in the form of a folded postcard that revealed the nature of the prospective client's legal problem on the outside and he failed to maintain a record of dissemination of his solicitations to South Carolina residents.
Respondent made false statements during the disciplinary investigation. In particular, respondent stated in his response to the initial notice of investigation, "I have a lawyer licensed to practice law in South Carolina as part of my network. This lawyer was responsible for all legal work for South Carolina residents and lives in South Carolina." At the interview, respondent admitted he did not have an attorney licensed or living in South Carolina in his network and that a representative of Fulcrum 360 prepared his response and he signed it.
As to sanction
We find it appropriate to permanently debar respondent from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing him to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing him to advertise or solicit business in this state. Before seeking an order from this Court to either allow him to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar's Legal Ethics and Practice Program Ethics School, Law Office Management School, and Advertising School.
Ever mindful of its role as the protector of accused attorneys rather than the public, the District of Columbia Board on Professional Responsibility has proposed a 90 day suspension with automatic reinstatement of an attorney who engaged in serious neglect.
The board applied the so-called Cater standard to find that Bar Counsel had failed to prove by clear and convincing evidence that there was a "serious doubt" as to the attorney's fitness to practice law.
Thus reinstatement will be automatic if the D.C. Court of Appeals agrees.
The Cater case is a rather unusual decision.
The Court of Appeals hates to hurt the feelings of the volunteer lawyers on the board and, in Cater, a unanimous panel had soundly rejected the board's interpretation of the supervisory duty of an attorney for non-lawyer employees.
The board had found no violation of the duty to supervise the work of an embezzling secretary where, over an extended period of time, the attorney had allowed the employee to steal and abscond with entrusted estate funds.
The court flatly rejected the board's elaborate effort to render the supervision obligations of Rule 5.3 non-existent from an enforcement point of view.
As a sop (I believe), the court accepted the lesser evil proposed by the board and adopted its wildly public-unfriendly standard for determining when a fitness showing should be imposed for attorney misconduct
..we grant the Board's request for clarification of the legal standard to be followed in deciding whether the so-called fitness requirement is warranted. Resolving a disagreement between the Board and Bar Counsel, we approve the “clear standard” proposed by the Board: to justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law.
This ill-advised "clarification" has led to a number of instances of erring on the side of automatic reinstatement contrary to the public interest.
As I noted in this March 20, 2008 post titled The Public Speaks:
What is interesting is the hearing committee report itself. The two lawyers agree on sanction, finding that automatic reinstatement is in the public interest because Bar Counsel failed to show clear and convincing evidence of a serious doubt regarding fitness to practice. This is the so-called Cater standard, which I criticized in my article on the D.C. disciplinary system. This case shows how this laughably legalistic formulation can be used to frustrate the overarching goal of any disciplinary system, which is protecting the public from unfit lawyers. As I had predicted, it permits the system to justify leniency as a supposed failure of Bar Counsel to meet its burden of proof.
Notably, the non-lawyer is having none of this lawyerese mumbo jumbo and rightly complains about the leniency of the sanction: "Remorse does not, by itself, demonstrate [his] rehabilitation... only that he is aware he did wrong... Any recommended sanction should accurately reflect the seriousness of the offense. Eighteen months does not, in this case, achieve that goal." I suppose one needs to become a lawyer to unlearn such common sense.
Here, the attorney had failed to file a post-hearing brief and appear for oral argument before the board. No problem, in their eyes
We have considered Respondent’s failure to consistently respond to Bar Counsel’s inquiries during the course of its investigation and his lack of participation in proceedings before the Board in assessing the second Roundtree factor. However, we do not find that this lack of consistent participation in the disciplinary process detracts from Respondent’s forthright admissions and recognition of the seriousness of his misconduct in his testimony before the Hearing Committee.
Also unimportant was the attorney's reprimand in Maryland for similar misconduct.
The case is In re John Green and can be accessed at this link.
I have learned that Bar Counsel had filed additional charges against this attorney on September 25, 2013. The charges were not reviewed and approved until last week - thirteen months later.
I find it shocking that the BPR would issue this report knowing that its own deficient processes had delayed consideration of further charges while blithely assuring the public that the attorney is fit to practice.
If someone can explain to me why charges sit unreviewed for over a year while other charges against the same attorney are being litigated, I'd be pleased to hear that justification.
Until then, spare me the concern about the deficiency of Bar Counsel's proof of the attorney's unfitness to practice. (Mike Frisch)
Monday, October 27, 2014
The Delaware Supreme Court has publicly reprimanded a Maryland lawyer who had been admitted pro hac vice by the Court of Chancery for violation of a court order.
The attorney had, at the behest of his client, filed an action in Maryland in violation of a court order in the Delaware matter.
The attorney admitted that the Maryland action violated the Delaware order and "testified credibly that he was under great pressure from his client to file the Maryland Action, that he knew that it violated the Seizure Order, but that he chose to carry out his client's wishes rather than respect the Seizure Order."
The Court of Chancery granted the attorney's motion to withdraw. (Mike Frisch)