Saturday, August 9, 2014

What Comes After Disbarment?

Permanent disbarment.

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

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

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

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

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

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

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

Friday, August 8, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, August 7, 2014

Former Hastings Aide Disbarred

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

The ABA Journal had the story of the criminal matter

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

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

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

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

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

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

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

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

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

Wednesday, August 6, 2014

Where The Body Is Buried

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

The Grievance Administrator had sought disbarment.

ABC12.com had a story about the criminal case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Police arrived, Joseph was arrested and charged.

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

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

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

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

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

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

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

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

Confirmation, I Need Confirmation

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

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

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

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

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

 

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

The Trip Not Taken

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

The recommendation would require an actual suspension of six months.

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

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

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

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

Tuesday, August 5, 2014

Perilously Close

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

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

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

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

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

Attorney Reprimanded For Judicial Campaign Statements

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

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

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

The court

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

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

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

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

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

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

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

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

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

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

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

[Alan Childress]

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

Prepared But Not Filed

A Cleveland attorney has been suspended from practice pending further proceedings by the Ohio Supreme Court.

The interim suspension was based on a federal felony criminal tax conviction.

The United States Attorney's Office for the Northern District of Ohio reported on the allegations

Attorney Ronald L. Rosenfield  was charged in an information with failing to report and pay approximately $196,832  of employment taxes announced United States Attorney Steven M. Dettelbach.   The case is assigned to United States  District Judge John R. Adams in Akron.   The unpaid taxes consisted of  income taxes and FICA taxes withheld from the  wages paid by his law firm,  Ronald Rosenfield Co., L.P.A., including his own wages, for the eighteen  consecutive calendar quarters from December 2006 through March 2011, according  to the information.  The information also  alleges that Rosenfield failed to report and pay an unspecified amount of  additional employment taxes for all of the prior quarters dating back to June  2001.

At all relevant times, Rosenfield retained a national  payroll firm, which prepared the law firm’s required employment tax returns for  him to file with the Internal Revenue Service.   Rosenfield, however, did not file any of those returns and made no  payments of the taxes reported on those returns, according to the information.  Moreover, the information alleges that  Rosenfield claimed credits on his personal income tax returns for his unpaid  income tax withholdings.

(Mike Frisch)

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

Monday, August 4, 2014

Flying Blind

A rather unusual set of ethics charges was recently filed by the Illinois Administrator.

The complaint alleges that the attorney instituted frivolous litigation in connection with the Malaysian Airlines Flight 370 matter

As of the date this matter was referred to the Inquiry Board, no trace of the aircraft had been found, and no evidence had been recovered which indicated that it had crashed or had experienced any mechanical malfunction.

On March 25, 2014, Respondent, or someone acting at her direction, using the name "Monica R. Kelly," prepared and signed a Verified Petition for Discovery, pursuant to Illinois Supreme Court Rule 224, against the Boeing Company and Malaysian Airlines, and filed it in the Circuit Court of Cook County. The clerk of the Court docketed the matter and assigned it case number 2014L003408.

Under Illinois Supreme Court Rule 137, by signing the petition described...above, Respondent certified that she had read the petition and that, to the best of her knowledge, information or belief formed after reasonable inquiry, it was well grounded in fact and was warranted by existing law.

In the petition..Respondent alleged that she represented the estate of Firman Chandra Siregar ("Siregar"), that Siregar had been a passenger on Malaysian Airlines Flight 370, that the aircraft had crashed, that Siregar had been killed.

Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence had been discovered regarding the location or disposition of Malaysian Airlines Flight 370.

...Respondent alleged that Siregar’s estate reasonably believed that Malaysian Airlines Flight 370 had crashed as the result of negligent design, manufacture, repair and maintenance of the aircraft by the Boeing Company.

Respondent’s allegations...had no basis in fact and were frivolous, because Respondent knew at the time she filed the petition that no evidence existed that Malaysian Airlines Flight 370 had experienced a mechanical malfunction, and that the evidence in fact showed that the aircraft had changed direction and had continued to fly for several hundred miles after its last contact with air traffic controllers.

In March 2014, at the time Respondent filed the petition described above, Illinois Supreme Court Rule 224 authorized the filing of such a petition "for the sole purpose of ascertaining the identity of one who may be responsible in damages," and Illinois courts had long held that a Rule 224 petition was not appropriate if the identity of any potentially-responsible defendant was known to the petitioner. Guertin v. Guertin, 204 Ill.App.3d 527 (3rd District, 1990); Roth v. St. Elizabeth’s Hospital, 241 Ill.App.3d 407 (5th District, 1993)

Respondent’s petition in case number 2014L003408 was frivolous, because Supreme Court Rule 224 did not permit the filing of such a petition where the "identity of one who may be responsible in damages" was known to the petitioner, and Respondent knew that the missing aircraft had been manufactured by the Boeing Company and that it was being operated by Malaysian Airlines when it disappeared. Respondent therefore had no need to discover the identity of a responsible party, and no basis for filing a Rule 224 petition.

On March 25, 2014, Respondent conducted news media briefings in Kuala Lumpur to announce the filing of her action against the Boeing Company and Malaysian Airlines and to claim that those entities were responsible for the disappearance of Flight 370.

On two occasions in 2013, the Hon. Kathy M. Flanagan, a Judge of the Circuit Court, had dismissed Rule 224 petitions filed by Respondent against aircraft manufacturers, on the basis that such petitions were not authorized by the rule, when the identity of a potential defendant was known to the petitioner.

On March 28, 2014, the Judge Flanagan entered, sua sponte, a memorandum opinion and order dismissing Respondent’s petition in case number 2014L003408, in which the judge found that the petition exceeded the scope of Supreme Court Rule 224, that it was baseless, and that Respondent knew that the filing of a Rule 224 Petition was inappropriate where the identity of a potential defendant was known.

Earlier coverage from the Chicago Tribune

Aviation litigation experts contacted by the Tribune agreed that while taking court action to preserve evidence in advance of a lawsuit can be an important step, filing such litigation before a plane had even been found seemed to be jumping the gun.

"It seems to be a legal gray area when we are operating without the plane," said Bruce Ottley, a professor and co-director of DePaul University's International Aviation Law Institute. "It certainly gets them attention to be first. ... But when you file it before we even have verified that the passengers are dead, it may be a little bit early."

It wouldn't be the first time the tactics of Ribbeck Law Chartered or its associates had drawn complaints. Last year, after the Asiana crash, the National Transportation Safety Board recommended that Illinois regulators investigate the firm over allegations its attorneys violated U.S. law barring uninvited solicitation of air crash victims in the first 45 days after a crash.

(Mike Frisch)

August 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

An Offer You Can Refuse

A criminal defense attorney who offered a witness $300 (and later $500) to not show up for a trial committed an offense worthy of disbarment, according to a recent report of a Louisiana Hearing Committee.

The criminal case involved a burglary where a gun was taken from a "raised double-shotgun house."

The hearing committee found that he came to a restaurant where the key witness was employed and offered him payment to drop the charges. The offer was increased on a second visit.

The hearing committee rejected the contention that the offer was intended as restitution rather than a bribe. They also found that the attorney's hearing testimony was false.

The witness told the prosecutor, who filed the bar complaint.

The accused attorney had called as a witness a lawyer who teaches trial practice at Tulane Law School. His own witness "testified that he never  would offer money to a victim to drop a case; that would be unethical." (Mike Frisch)

August 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Charged With Lack Of Diligence, False Statement

The North Carolina State Bar has filed ethics charges against a Johnston County Assistant District Attorney.

The attorney is alleged to have failed to make reasonably diligent inquiry into the availability of a crime lab report in a rape case. The charges were eventually dismissed when the lab report concluded that the sperm fraction from vaginal swabs did not match with the defendant.

Cocaine charges against that defendant were also dropped because he "had served more time awaiting trial than he could receive for conviction on the cocaine possession charge."

The attorney also is charghed with a false statement concerning the status of the DNA report.

The answer to the charges seeks dismissal. (Mike Frisch) 

August 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 1, 2014

Former Bar President Still Former Lawyer

The Ohio Supreme Court has denied the reinstatement petition of an attorney suspended  for a federal false tax filing conviction.

The  Plain Dealer reported on the conviction

Prominent Cleveland attorney Leslie W. Jacobs was sentenced Tuesday in U.S. District Court in Youngstown to one year and one day in federal prison for one count of filing false income taxes from 2004-2007.

Jacobs, a Harvard Law School graduate and former president of the Ohio State Bar Association, was also given an additional four months, less one day, of home confinement and ordered to pay a $10,000 fine...

The court's order states that the petitioner failed to comply with the requirements imposed by his suspension. (Mike Frisch)

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

Trending Away From Disbarment

An Illinois Hearing Board has recommended a suspension of nine months of an attorney who used a power of attorney to write himself checks from the account of an elderly woman.

His defense

Respondent, who had power of attorney for the property of his client, Eleanor Smith, acknowledged he used funds from Eleanor Smith's bank accounts but asserted he cannot be found to have committed misconduct because there was no attorney-client relationship between him and Eleanor Smith. He further asserted he was entitled to the funds as his fees. The Hearing Board rejected both of these assertions.

The committee concluded

Respondent admittedly met with Eleanor and her family, obtained information from them, accepted fees from Eleanor and advised Eleanor regarding the best method to protect her assets from further dissipation by her husband. Respondent also recommended that Eleanor sign the Agreement and give Respondent power of attorney for property. The Illinois Supreme Court has held that all of these activities constitute the practice of law...

Respondent admits he took money from Eleanor's accounts but claims he was entitled to it as fees. We find no evidence to support this assertion. Respondent was paid in full for the invoices he prepared for Eleanor. Even if he performed legal services after the last invoice date of October 2010, he has no documentation upon which to ascertain the amount of fees purportedly due to him. He did not produce work product or time records after October 2010, nor did he testify as to any work he performed for Eleanor after October 2010. Thus, there was no reasonable basis for the purported fees Respondent paid himself. At the time of hearing, more than two years after his representation of Eleanor ended, Respondent had yet to determine the amount of fees he claims he earned. This reinforces our determination that he has no basis for asserting he was entitled to the funds as fees. By converting the funds, Respondent failed to keep property in his possession in connection with a representation separate from his own property, in violation of Rule 1.15(a).

As to sanction

Respondent's misuse of his client's funds constitutes serious misconduct that warrants a period of suspension. There are several factors in aggravation. Respondent abused his position of trust for his own benefit at a time when he was in a precarious financial position and his elderly client was vulnerable and in poor health. We also consider the harm Respondent caused by his misconduct. He caused financial harm to Eleanor by dissipating the assets he was hired to preserve. He also caused Eleanor's family, who was dealing with Eleanor's failing health, to experience anxiety and stress when they learned of her unpaid bills. Additionally, Respondent's misconduct was not an isolated incident but a pattern of misconduct over a period of several months.

We must note Respondent was less than cooperative with discovery in this matter. He did not identify witnesses with knowledge of the subject matter of the proceeding, as required by Commission Rule 253, nor did he respond to the Administrator's Request to Produce Documents. An attorney is obligated to cooperate with the Illinois Supreme Court and its agency, the Attorney Registration and Disciplinary Commission, in connection with a disciplinary proceeding.

The Hearing Committee also found that the attorney's conduct was dishonest.

In a recent comment, my colleague Alan Childress noted that we ethics professors teach our students that misuse of entrusted funds gets  an attorney disbarred.

If that ever was true, it surely no longer is.

Here, the Administrator sought a suspension of twelve to eighteen months. The attorney, based on his defenses, sought dismissal of the charges. (Mike Frisch)

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

Thursday, July 31, 2014

Neglect Of CJA Client Is Serious Misconduct

The District of Columbia Court of Appeals took the rare step of rejecting an uncontested sanction recommendation in a matter involving neglect and related violations by an attorney appointed to represent an indigent client who was seeking post-conviction relief.

The court ordered a suspension of six months with all but 60 days stayed rather than the fully stayed 30-day suspension proposed by a hearing committee and the Board on Professional Responsibility

This court bears the ultimate responsibility of ensuring in disciplinary cases that any sanction imposed will adequately protect the public and the courts, maintain the integrity of the profession, and deter others from engaging in similar misconduct. To fulfill those objectives, we determine that a six-month suspension, with all but 60 days stayed, and a one-year probationary term is appropriate in this case. A 60-day suspension period will give Ms. Askew time to adequately structure her practice. A concurrently commencing one-year period of supervised probation will ensure that she does in fact take all the steps needed to achieve that goal. Moreover, if it is not an automatic consequence of her suspension, we also direct that Ms. Askew be removed from all panel lists for court-appointed counsel in Superior Court and this court, without prejudice to her ability to reapply once she has completed her term of suspension and probation.

The court found that the misconduct was serious and that there were no significant mitigating factors. There was also this

...we are troubled by Ms. Askew‟s willingness at the hearing to make representations that not only contradict prior factual assertions, but also would lack the ring of truth even if they had been made in the first instance.

The attorney will be subject to a year of probation upon reinstatement (which is automatic after the 60 days).

Notably (and I believe a first), the court ordered the attorney's removal from any program involving court appointments.

Kudos to the court for not simply rubber-stamping an unduly lenient sanction. (Mike Frisch)

July 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Practice Pointer: Don't Threaten A Bar Complainant

The Colorado Presiding Judge ordered a stayed six-month suspension and probation for an attorney's misconduct in five matters.

One of the matters

 In a final matter, Buchheit placed several phone calls and sent numerous test messages to an individual who had filed a request for investigation against Buchheit with the Office of Attorney Regulation; Buchheit threatened that individual with a lawsuit unless he spoke with Buchheit. Through this conduct, Buchheit violated C.R.C.P. 251.32(e) (prohibiting lawsuits based on testimony given in disciplinary proceedings or communications relating to attorney misconduct) and Colo. RPC 8.4(d) (proscribing conduct prejudicial to the administration of justice).

(Mike Frisch)

July 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

Groping Conviction Leads To Disbarment: "Believed She Was Enjoying It As Much As He Was"

The New York Appellate Division for the Second Judicial Department has accepted the resignation of a British solicitor convicted of groping a woman on a bus trip from Edinburgh to London.

The Express (U.K.) had the story of the criminal trial

Hugh Robert Wotherspoon was arrested after the German woman plucked up the courage to tell the driver how the man had been repeatedly fondling her thigh on a journey south from Scotland.

The 54-year-old married solicitor, who specialises in patent applications from his firm’s offices in London, Munich and New York, admitted that he had “tried it on” with the woman.

He insisted he was not guilty of any criminal offence because he believed she was enjoying it as much as he was.

But the woman, from London, said Wotherspoon’s behaviour had left her “shocked and shaken” and the only reason she did not hit him or scream for help was that she was too afraid of what his reaction might have been.

Legal Cheek also reported on the trial

Wotherspoon, who lives in Surrey, said that after sitting for so long next to the woman in the bus’s cramped seats it seemed natural to stroke her thigh.

So, about 90 minutes into the journey, with no words having been exchanged between the pair, he put his hand on the woman’s knee. The Exeter University and College of Law-educated lawyer told the court:

“It seemed suitable and comfortable and proper at the time and I thought she would feel the same…I put my hand on her knee. I thought she might like it. It just seemed right. It didn’t seem wrong or terrible in that situation…”

But the woman removed Wotherspoon’s hand with what he termed “a gentle, diffident brush-off”. Undeterred, half an hour later Wotherspoon pushed his hand down between her thigh and his, and started tapping her leg with his fingers.

“I did not have any reason to believe that another touch would be unwelcome,” he explained.

Earlier on, the woman, who comes from London but can’t be named, had told the court that she was left “shocked and shaken” by what happened.

The court

...the resignor informed the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts that on August 8, 2012, in the Crown Court at Carlisle, United Kingdom, he was convicted of sexual assault of a female. He also informed the Grievance Committee that on August 31, 2012, he was sentenced to supervision in the community for 36 months, directed to pay certain costs, directed to pay compensation to the complainant, and required to remain on the sex offenders registry for five years. He further informed the Grievance Committee that by order dated December 10, 2013, the Solicitors Disciplinary Tribunal suspended him from practicing as a solicitor in the United Kingdom for an indefinite period, and directed him to pay certain costs. The resignor acknowledges that if charges were predicated on the facts and circumstances underlying his criminal misconduct, he could not successfully defend himself on the merits against such charges.

The resignation results in disbarment.

In the District of Columbia, as a result of this decision, the disciplinary system would not have been able to rely upon the conviction as a basis for discipline. In my opinion, a case such as this shows why the linked opinion is bad law and policy. (Mike Frisch)

July 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Armed In The Office

An attorney who failed to respond to a series of client-initiated bar complaints was suspended for two years by the Wisconsin Supreme Court.

He had already been suspended for failure to respond to complaints and to pay dues.

When the bar sought responses to the complaints here, the attorney's response recalls what Davy Crockett said after losing an election in Tennessee: You can go to Hell, I'm going to Texas.

Attorney Moss sent a letter to the OLR saying he would not respond to any grievances.  He enclosed his State Bar membership card to serve as his resignation from the State Bar.

He went to Oregon.

One tidbit involved this observation from a client

In February of 2012, G.G. and K.S. met with Attorney Moss at his Galesville law office.  During the meeting they saw a handgun in Attorney Moss's lap and in his hand as he was sitting behind his desk.  Attorney Moss told them he was carrying the handgun for protection from people who were hounding him and from clients who stalked and harassed him.

The court rejected the Office of Lawyer Regulation's call for a shorter suspension

we conclude that the nine-month suspension sought by the OLR and recommended by the referee is an insufficient sanction for Attorney Moss's misconduct.  Although Attorney Moss had a license to practice law in Wisconsin for only slightly more than three years before his license was suspended, during that short timeframe he engaged in repeated misconduct where he took fees from clients, failed to perform the work for which he was retained, failed to communicate with the clients regarding the status of their matters, and failed to return fees and client files upon request.  The incident in which Attorney Moss was brandishing a handgun during a client meeting is disturbing.  We believe that a two-year suspension of his license to practice law in Wisconsin is a sanction more commensurate with the misconduct at issue in this case. 

The attorney was admitted in 2009. (Mike Frisch)

July 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

ALMS For The Disbarred

The Pennsylvania Supreme Court has disbarred an attorney who assisted a company called ALMS in drafting trusts sold by non-lawyers to senior citizens.

After nine days of hearings, the attorney was found to have engaged in dishonesty, failures to communicate with clients, conflicts of interest and aiding the unauthorized practice of law.

The Disciplinary Review Board noted that the attorney began his association with entities engaged in such activities within three years of his bar admission. He continued to violate ethics rules after receiving notices from the Office of Disciplinary Counsel and even after entered into a 2004 consent decree to cease assisting unauthorized practice.

He also drew a law school classmate into the mess. (Mike Frisch)

July 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)