Tuesday, April 8, 2014

A Can Of Red Bull

A Virginia attorney agreed to a public reprimand without terms for misconduct that took place outside of the practice of law.

The attorney left a grocery store "with a can of Red Bull without paying for it, although she had paid for the other groceries in her possession."

Charges of petit larceny were eventually reduced to unlawful entry. The attorney complied with the requirements of community service.

The Washington Post reported that the attorney served as a county  chief public defender (Mike Frisch)

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

Former Justice Suspended For Profiting From Referrals

A town court justice who presided over traffic, minor drug and alcohol offenses and small claims matters was suspended from the practice of law for not less than five years without automatic reinstatement by the Indiana Supreme Court.

Defendants who faced first-time traffic charges would receive deferred prosecution "if they took a defensive driving course." Such courses were conducted in the justice's courtroom on a Saturday with the profits going to the driving school.

But things changed

 In October 2001, Respondent created her own business called Diversified Educational Services ("DES") which offered the defensive driving courses. Respondent's father contracted with W.S.1 to open a checking account in the name of DES, which Respondent and her father controlled. Respondent directed that the fees collected from defendants that she ordered to attend the driving school be deposited into the DES account. Between November 2001 and December 2003, people attending DES driving school paid fees totaling $29,600. W.S. was shown as the sole owner of the account to conceal Respondent's financial interest in DES. Respondent paid W.S. $3,800 from the DES account for his cooperation. Respondent did not disclose her financial interest in DES to the Town or to defendants charged with traffic offenses in her court.

In December 2001, Respondent stopped paying rent to the Town for DES's use of the courtroom for the driving classes. Between December 2001 and December 2003, DES conducted sixteen driving school classes for which no rent was paid to the Town.

The justice also used her position to profit from referral of young adults to a counseling program and concealed her financial interest in the referrals.

The justice was convicted of mail fraud and was suspended on an interim basis as a result. The court considered a number of mitigating factors. (Mike Frisch)

April 8, 2014 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

Sanction: Pro Bono

An out-of-state attorney's "ill-advised and poorly conceived" efforts to expand his firm's practice into Rhode Island resulted in a rather unusual sanction.

The attorney is not admitted in Rhode Island. He sent a solicitation letter to twelve Rhode Island residents concerning Rhode Island matters. The letters contained several misrepresentations.

The court concluded that his primary problem was inattention and failure to supervise a non-lawyer employee, rather than "deliberate disregard" of ethical rules.

The sanction

...the respondent... is hereby ordered to provide pro bono legal services to twelve Georgia residents within one year from the date of this order. The provision of pro bono services will be provided through referrals from the Cobb Justice Foundation, a partnership between Legal Aid of Cobb County and the Cobb Bar Association. The respondent shall submit monthly written reports to Disciplinary Counsel verifying his compliance with this order.

(Mike Frisch)

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

California And Three Strikes

An attorney's second brush with the disciplinary system drew a proposed one-year suspension wuth fitness by the California State Bar Court

 This consolidated proceeding marks the second time Ilse Marie Butterfield’s dishonesty has brought her before the State Bar Court. The first time occurred after she filed a 2009 declaration in federal district court that she signed in her client’s name, and then lied about the signature to the judge and at her deposition. She received probation and a 30-day suspension. Then in 2011, while serving her 30-day suspension, Butterfield falsely informed a superior court that she could not attend a hearing due to a previously set engagement rather than because she was suspended. In the same client matter, she engaged in the unauthorized practice of law (UPL), and later denied it to the State Bar Office of Probation (Probation). Also, she violated several conditions of her probation...

 

It is worth emphasizing to Butterfield that attorneys are sworn officers of the courts, and "[i]t is, of course, an extremely serious breach of an attorney’s duty to lie in statements made to the court." (In re Aguilar (2004) 34 Cal.4th 386, 394.) Practically speaking, our courts simply cannot function unless they can trust that the attorneys appearing before them are telling the truth. Honesty is absolutely fundamental in the practice of law; without it, " ‘the profession is worse than valueless in the place it holds in the administration of justice.’ " (In re Menna, supra, 11 Cal.4th at p. 989].) Since this case is Butterfield’s second disciplinary matter, any future failure to comply with her ethical responsibilities may result in her disbarment. (Std. 1.8(b) [disbarment for third discipline case unless compelling mitigation clearly predominates].)

The suspension will be followed by probation for three years. (Mike Frisch)

 

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

Practicing "Paralegal" Disbarred

An attorney who was employed as a paralegal during a period of suspension engaged in unauthorized practice and was disbarred by the Delaware Supreme Court:

During his suspension, Feuerhake worked as a paralegal under the supervision of Jeffrey K. Martin, Esquire. But Feuerhake never provided Martin with a copy of the Suspension Order. Nor did he inform Martin of this Court’s prohibition on his ability to practice law during his suspension. The record also demonstrates that there was sufficient staff available at Martin’s office to return phone calls and contact clients.

Following his suspension, Feuerhake communicated with a client, Ms. Lamb, to inquire about facts related to her case. They planned for and later discussed the results of a pretrial conference. Feuerhake also spoke with another client, Ms. Barkes, up to twenty times to discuss the contents of briefs he wrote and filings by opposing counsel. Feuerhake also attended four depositions at which Ms. Barkes was present and communicated with the four different witnesses being deposed.

In conjunction with these specific violations, Feuerhake continued to engage in the practice of law in violation of the Suspension Order. He discussed cases with clients. He exchanged emails with opposing counsel about a draft  trial conference before the District Court on behalf of a client. Although Feuerhake noted on the record that he was only attending as a paralegal, he nonetheless addressed the court, made arguments and objections, responded to opposing counsel, and tried to distinguish case law.

Finally, Feuerhake received $39,466.66 as his share of a contingency fee from a settlement agreement...

As to sanction

Feuerhake argues that disbarment is overly punitive and instead suggests that a continued and extended suspension is more appropriate because he adequately performed during his suspension in aiding his clients. He further suggests that disbarment is inappropriate because he did not act wantonly or maliciously. We disagree. Disbarment is not limited to wanton or malicious misconduct. Disbarment is necessary to protect the public and the administration of justice, to preserve confidence in the legal profession, and to deter other lawyers from engaging in similar conduct during a period of suspension. Any other sanction would not sufficiently preserve the public’s trust and confidence in the integrity of the disciplinary process for Delaware lawyers.

(Mike Frisch)

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

Admission Update Lapse Draws Three-Year Suspension

The Michigan Attorney Discipline Board has reduced a panel disbarment to a three-year suspension of an attorney who had "failed to update his affidavit of p[ersonal history in support of his [bar admission] application..."

The attorney graduated in 1998 and was denied Michigan admission in 2001. He renewed the application in 2006 and was "required, as are all applicants, to acknowledge in his own handwriting that he had a continuing obligation to immediately inform the Standing Committee on Character and Fitness if any of the answers in his personal history affidavit included with his answers ceased to be true."

He failed to update a 2009 criminal charge and a personal protection order served on him. He also did not advise of a 2009 citation for leaving an accident scene. (Mike Frisch)

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

Friday, April 4, 2014

A Bed In The Office

The North Dakota Supreme Court has disbarred an attorney admitted in 1972.

Among the charges were

The petitions for discipline in both files allege Overboe had sexual contact with multiple clients and offered to exchange his legal services for sexual favors.

And findings

On or about the month of February, 2006, Overboe engaged in conduct which constituted a substantial step toward knowingly having sexual contact with a client, [S.K.], at his office, in that Overboe grabbed her around the lower back and buttock area and tried to kiss her on the mouth, to the annoyance and alarm of [S.K.]...

On or about October 14, 2006, Overboe had sexual contact with a client, [A.R.], in that Overboe touched her buttocks on the way to his office, and at his office rubbed his groin against her body and grabbed her buttocks...

On or about October 23, 2006, Overboe offered to hire [A.R.] with the intention of engaging in sexual activity, in his office, through the offer of exchanging sexual favors for a reduction in legal fees...

In approximately 1997 or 1998, Overboe represented [W.M.]. She had been referred to Overboe through a legal services program. During a meeting at his office, Overboe made remarks to [W.M.] questioning whether she was breast feeding, and other remarks that made [W.M.] uncomfortable. [W.M.] testified that Overboe had a fridge, and a couch or bed, in his office.

In approximately 1999, [M.R.] was referred to Overboe by Legal Assistance of North Dakota. He met with her after regular business hours. Overboe had chilled wine, which he was drinking, and which he offered to [M.R.]. Overboe told her of his personal life and personal problems he was having. He told her how much she would have to pay if the matter had not been referred by Legal Aid. Overboe's comments made [M.R.] fearful of being alone with Overboe.

In approximately 1995 and 1996, Overboe represented the employer of [M.B.]. On one occasion, [M.B.] took papers for her employer to Overboe at his office. While [M.B.] was at his office, Overboe walked around his desk, unzipped his pants, and exposed himself. [M.B.] was appalled by Overboe's conduct...

Beginning in early 2005, Overboe represented [R.L.] in a divorce matter. During the course of the representation, Overboe asked [R.L.] for sexual favors in exchange for reducing her financial obligation to him. [R.L.] testified that she initially thought Overboe was joking but realized he was serious when he unzipped his pants and exposed himself.

The attorney was suspended on an interim basis in 2006 and complained about the delay. He also contended that a disability suspension, rather than disbarment, should have been imposed.

The court also found ethical violations of a non-sexual nature. (Mike Frisch)

 

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

Not Practice Ready

The Nebraska Supreme Court has ordered a three-year suspension of an attorney followed by probation for two years on reinstatement.

The attorney had been admittted in 2003 and worked in-house for an insurance company before entering private practice.

He was ill-equiped for the transition

In August 2010, respondent left the carrier company to engage in the private practice of law. Up to that time, respondent did not have any experience in the financial aspects of the attorney-client relationship. He had never negotiated a fee, handled client funds, or drafted a contract for the provision of legal services, nor had he ever worked with a billing system or utilized a trust account...

Although respondent was an associate at the law firm, he practiced independently, essentially sharing office space with no direct supervision by the law firm. Because respondent operated largely on his own under this agreement, the law firm did not provide him with formal training or oversight related to the handling of client funds or billing.

 He got into trouble in representing a building contractor. The trouble included misappropriation. (Mike Frisch)

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

Thursday, April 3, 2014

One Letter, Three Years

The Florida Supreme Court rejected a referee's proposed 91-day suspension and suspended an attorney for three years.

The attorney had represented the plaintiff who sought a judgment against the defendant.

The defendant prevailed in the litigation. She then sent two letters to the attorney seeking payment of her attorney's fees and costs. At the time, she was unrepresented.

The attorney responded by writing to the United States Attorney "accusing the defendant of attempting to extort money from him and requesting that she be criminally prosecuted."

The court found the letter violated several ethical rules, including presenting criminal charges solely to obtain an advantage in a civil proceeding. (Mike Frisch)

April 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Probation For Actor/Author/Lawyer

An attorney who was convicted of five alcohol-related driving offenses received a stayed suspension of a year and a day and probation of two years from the Pennsylvania Supreme Court.

Some of the offenses involved accidents. All were committed while the attorney was driving a black Mercedes Benz SUV.

The blood alcohol content results from the incidents were stunning - "greater than .30," .281. .274 and .257.

Because all five incidents occurred before any conviction, the attorney received first offender treatment in each of the criminal cases.

According to the Disciplinary Board report, he has made a dramatic recovery from his alcoholism and is not practicing law. Rather, he is  

...currently working as an actor and is also President and CEO of GoingLong Productions, a film production company which operates  in association with Longitude Entertainment in Los Angeles [and] has appeared in two upcoming feature films...

His acting biography is linked here. Among the roles he has played is superlawyer Ted Olsen.

He is also the author of a treatise on prosecutorial misconduct.

The disposition is a testament to the impact alcoholism recovery can have on a disciplinary sanction. (Mike Frisch)

April 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Gunning For Disbarment

The New York Appellate Division for the Second Judicial Department imposed summary disbarment for a criminal conviction.

The facts

The respondent admitted that on July 26, 2005, he was knowingly in possession of a loaded firearm. Specifically, the respondent had an uzi in the trunk of his car, along with live rounds of ammunition.

The conviction involved a federal felony. (Mike Frisch)

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

Husbands And Wives

A attorney who had represented both a defendant husband and his cooperating wife in a drug distribution investigation and trial engaged in both a Rule 1.7 and 1.9 violation, according to a recent decision of the Montana Supreme Court:

This proceeding concerns not a Sixth Amendment violation but evaluation of compliance with the Rules of Professional Conduct. Before the Commission, Detective Fritz testified that Neuhardt represented [the wife] Christenson when she gave incriminating information against [her husband] Vasquez, who also was Neuhardt’s client. Simply stated, Christenson was a materially adverse witness against Vasquez. Fritz’s unrefuted testimony was that Christenson had “ratted out” Vasquez. Even if Vasquez also implicated himself, Neuhardt failed to appreciate the conflicting interests between husband and wife or to explain those conflicts to his clients and pursue the possibility or effectiveness of any waiver.

Based on the foregoing, the Commission correctly concluded that Neuhardt violated Rule 1.7, MRPC, whether or not “actual prejudice” to Vasquez’s defense occurred as a result of Neuhardt’s joint representation.

The court imposed a public censure along with a 90-day suspension. The attorney must appear in court for the administration of the censure.

There is a problem with the link. The case is In re Solomon Neuhardt.  (Mike Frisch)

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

Five Strikes And Not Out

We just reported a suspension of a year and a day in Pennsylvania for a third instance of neglect, with two justices dissenting for a more severe sanction.

Then, we see this decision imposing censure by the New Jersey Supreme Court.

The Disciplinary Review Board noted

We note that this is respondent’s fifth brush with the disciplinary system. His previous run-ins have resulted in an admonition, two reprimands and a censure. All but the censure were imposed before respondent began his representation in the matter before us. However, the representation here was ongoing when the censure was imposed. Not only has respondent failed to learn from mistakes, he has, as we observed in our decision imposing his 2011 censure, a "propensity to violate" the Rules...

I've been teaching my classes about the profound differences between state bar regulatory systems.

I wonder how Pennsylvania and New Jersey (which, I imagine, share authority over a large number of attorneys) deal with the disparate standards in reciprocal discipline matters. (Mike Frisch)

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

Three Strikes And Almost Out

The Pennsylvania Supreme Court ordered a suspension of a year and a day in a matter in which the attorney had neglected a criminal appeal to which he had been appointed.

The Disciplinary Board noted that the matter was the attorney's third instance of professional discipline for similar conduct and that he had not learned from the first two disciplinary encounters.

He had twice been informally admonished.

At the disciplinary hearing, the attorney admitted to a drinking problem but did not present evidence of rehabilitation. He is presently suspended for failure to pay costs.

Justices Baer and Stevens dissented and would impose a three-year suspension. The dissenters would order greater sanctions for "recidivist" violators.

Justice Baer expounded on his views in a second matter in which an attorney was suspended for a year and a day. The matter was the attorney's fourth disciplinary sanction in ten years. (Mike Frisch)

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

Bandages And Waste

An illinois attorney has consented to disbarment as a result of a conviction summarized in the statement of charges

The Indictment alleged that Movant, while  serving as a Cook County Commissioner, engaged in an extortion scheme involving  his conduct in extorting a company to hire a minority subcontractor with whom  Movant had financial ties and which involved kickbacks from the sale of bandages  to Stroger Hospital and other public hospitals. He was also charged with taking  a $5,000 payoff in connection with the development of a waste transfer station  in Cicero, Illinois.

On July 1, 2013, Movant pled guilty, before the  Honorable Gary Feinerman, to Count Five of the Indictment, conspiracy to commit  extortion, in violation of Title 18, U.S.C. sec. 1951(a). In his plea agreement,  Movant admitted that between 2008 and 2011, he extorted an unnamed company,  which was awarded a contract to help improve Cook County Hospital's revenue  cycle, into using his friend and co-defendant, Ron Garcia, and Garcia’s  business, Chicago Medical Equipment & Supply, Inc., as a minority subcontractor  in return for a $100,000 bribe. Garcia forgave a $100,000 mortgage loan he made  to Movant in exchange for Movant’s assistance in steering the sub-contract to  Garcia’s company. Movant later tried to disguise his receipt of the bribe by  claiming that he had repaid the purported loan and by producing false invoices  on his law office letterhead which falsely indicated that he had performed legal  work for one of Garcia’s companies. In pleading guilty, Movant also admitted to  the following conduct: that he also sought to obtain orders of Dermafill  bandages from Cook County in return for kickbacks; sought to obtain approval for  a waste-transfer station in return for kickbacks while a Town of Cicero  official; and evaded his federal income taxes between 2007 and 2010 by  misreporting the income from his law office.

He was sentenced to a 132 month term of imprisonment. (Mike Frisch)

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

Tuesday, April 1, 2014

The "Susceptible Boy-Lawyer"

The Illinois Review Board has proposed a one-year suspension with six months stayed and probation for misconduct of an attorney who had represented himself.

The misconduct involved criticism of judges, for example

In January 2011, following a hearing at which  Respondent failed to appear, Judge Kennedy issued an order denying Respondent's  outstanding motions. Respondent filed a motion to reconsider the order on  February 23, 2011. Respondent alleged that Judge Kennedy improperly ruled on  Respondent's motions because the case had been set only for a status. Respondent  stated, "Such back-alley justice makes a mockery of the legal procedures that  gives parties notice of hearing and a right to be heard, procedures  traditionally sets our legal system form that of oppressive dictorial regimes."  In December 2011, Respondent filed a pleading to substitute Judge Kennedy,  referring to Judge Kennedy and Attorney Janello as "predators" and to Judge  Kennedy as a "scourge on his profession." Respondent referred to opposing  counsel Mr. Janello as a "susceptible boy-lawyer" who learned  from Judge Kennedy the power of corruption so he "can accept a judgeship,  representing the next generation of Illinois corruption."

There was mitigation

We recognize Respondent offered evidence mitigating  his misconduct. Most importantly, Respondent's misconduct in this matter arose  out of a case in which he represented himself. He did not jeopardize his clients  by engaging in the misconduct at issue here. In fact, according to Respondent,  he has represented clients without complaint. The Hearing Board found in  mitigation that Respondent acted without corrupt or dishonest motive and that he  testified he recognized that his language was inappropriate. Respondent has not  been previously disciplined. Respondent called two character witnesses who  testified as to his honesty and charitable acts. Respondent testified as to his  significant volunteer activities, including volunteering with the Red Cross,  volunteering with his neighborhood association, and providing some pro bono  legal services through the Land of Lincoln Legal Assistance Foundation. He is  active in his church and in the local Masons Lodge. At the time of the conduct,  Respondent was a partner in a law firm with his significant other and mother of  his three children, Christina Manuel. He is no longer a partner with Ms. Manuel  but he continues to work for Ms. Manuel. Finally, in mitigation the Hearing  Board found that Respondent's firm has a general practice and serves a lower  socioeconomic community in the Champaign area, a community that is underserved  by the legal profession.

The board found a violation of Rule 4.4(a), which the hearing board had not found. (Mike Frisch)

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

Tennessee Rejects Procedural Challenges To Imposition Of Discipline

From the web page of the Tennessee Supreme Court

A suspension of Knoxville attorney Roger D. Hyman’s law license has been upheld by a unanimous opinion of the Tennessee Supreme Court.

In 2010, the Board of Professional Responsibility filed a petition for discipline against Mr. Hyman for two unrelated complaints. The petition charged that Mr. Hyman communicated with a person who he knew was represented by counsel, threatened a litigant, filed a lien against a litigant that was later declared void, failed to appear at a hearing, and failed to timely pay sanctions required by a court order.

In 2011, a hearing panel found that Mr. Hyman violated multiple Rules of Professional conduct and that he showed a “complete disregard for the Rules.”

Mr. Hyman appealed the hearing panel’s decision to the Knox County Circuit Court, which affirmed the judgment of the hearing panel. Mr. Hyman then appealed to the Supreme Court, challenging the method for selecting the hearing panel, the admission of prior discipline, and the standards that the panel used to determine the sanctions.

The Supreme Court upheld the decision of the hearing panel, noting that attorneys subject to discipline do not have a right to participate in the selection of the hearing panel, that Mr. Hyman’s five prior incidents of discipline were relevant to the imposition of current sanctions, and that the hearing panel applied the proper standards for determining Mr. Hyman’s sanction.  The Court affirmed Mr. Hyman’s six-month suspension from the practice of law.

Read the opinion in Roger David Hyman v. Board of Professional Responsibility authored by Justice Janice M. Holder.

In one matter, the attorney represented the husband in a divorce case. The client's "only significant pre-marital asset consisted of an assortment of sports cards and a collection of 'Transformer' memorabilia" which the client claimed were in his wife's possession.

She denied it.

The attorney called the wife a "liar and a thief" at her deposition and asked her if English was her "native language."

After the divorce, the attorney flied a replevin action seeking the cards and Transformers or $1 million in damages. The attorney filed a notice of lien les pendens that was declared void. (Mike Frisch)  

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

Conviction May Be Moving Violation

The Ohio Supreme Court has suspended an attorney convicted of felony offenses.

The Upper Arlington News has the story

An Upper Arlington man convicted last month in Franklin County Common Pleas Court of a charge related to child pornography may be forced to move away from a local elementary school.

William Feldman, 67, of 4295 Lyon Drive, was sentenced Jan. 30 to three years' probation and ordered to register with the Franklin County Sheriff's Office as a Tier II sex offender after he pleaded guilty to a felony charge of pandering sexually oriented matter involving a minor.

Upper Arlington City Attorney Jeanine Hummer said both her office and the Upper Arlington Police Division intended to notify Feldman that his conviction and classification as a sex offender will require him to relocate.

She said the police division has determined Feldman currently lives within 1,000 feet of Greensview Elementary School.

"He will be instructed that he will be required to relocate," Hummer said Feb. 6. "The police submit that first notice once they make a determination.

"I just received a letter sent out from (Upper Arlington Police) Sgt. (John) Wilhelm notifying Mr. Feldman that he falls within the residential restrictions. We will be following up with our own correspondence, as well."

Hummer said she had found no deadline in the law for Feldman's relocation, and the city typically attempts to achieve compliance without taking legal action.

However, the city can enforce an injunctive action, she said.

According to Franklin County Chief Deputy Sheriff Rick Minerd, the Franklin County Internet Crimes Against Children (ICAC) Task Force, which teams with local law enforcement officials, searched Feldman's home in May 2012 after task force officials made contact with him in an Internet chat room.

"They found child porn on his computer," Minerd said. "He told investigators he started viewing child porn in '09.

"He admitted he looked at thousands of child porn images. They also found videos in a (computer) folder."

Feldman originally faced eight counts of pandering sexually oriented matter involving a minor, but seven of those charges were dismissed after he pleaded guilty to a single count.

In addition to probation and being required to register as a sex offender for the next 25 years, he can have no Internet access at his home.

His attorney, Eric Hoffman, said Feldman was viewing the material in his home and was not sharing it with others.

Hoffman added that Feldman has no previous criminal record, and might challenge any action to force him to move from his home of the last 20 to 25 years.

"I was aware the law existed," Hoffman said. "Whether the city was going to pursue that recourse was something we were going to wait and see.

"I don't know yet (if he'll relocate). I know there are some defenses."

The local law prohibits anyone who is convicted of or who has pleaded guilty to a sexually oriented or child-victim offense from living within 1,000 feet of any school premises, licensed daycare facility, preschool, public park, swimming pool, library or playground.

"At the time Mr. Feldman purchased his home, this law did not exist," Hoffman said. "There's a good chance we would be defending that cause of action, especially since that law did not exist when he moved to Upper Arlington."

According to the Ohio Supreme Court's attorney directory, Feldman has a law license from the University of Cincinnati.

The directory states Feldman was admitted to practice law in Ohio in November 1973, but his license currently is inactive.

(Mike Frisch)

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

Monday, March 31, 2014

Sixteen Years Later, 61 Days

The Kentucky Supreme Court concluded that an attorney had represented divergent interests in violation of conflicts of interest rules.

The court found that the attorney had represented a criminal defendant and the estate from which he would be disinherited under the slayer's statute.

The court rejected charges that the attorney charged a contingent fee in a criminal case.

The court imposed a sixty-one day suspension, noting the delay

A litany of words and phrases may be used to describe the long journey of this disciplinary case and the factual backstory preceding it, but words like "swiftness," "celerity," "dispatch," or "alacrity" are not included in the lexicon. This disciplinary proceeding and the facts giving rise to it cover a sixteen-year period: a death; an indictment; a manslaughter trial; a conviction and sentencing; an unsuccessful criminal appeal; an order of post-conviction relief based on ineffective assistance of counsel; and two sets of disciplinary complaints against Respondent, who represented the accused in the criminal case and represented him and others in related matters...

It was the unnatural death of one man that set in motion the chain of events.

The court rejected numerous ethics charges but found a conflict violation

The Court has been hesitant to find ethical violations in most probate settings. Indeed, Rule 1.7 authorizes multiple representations where the representation is not adversely affected and the clients consent to the representation. Respondent obtained waivers from each of the Manning brothers and maintained that attorney-client confidentiality was never an issue between her, the executor and the Manning brothers The fact is that the interests of the Manning brothers were diametrically opposite because of Kentucky's slayer statute. Respondent could not have reasonably believed that the representation would not be adversely affected when one of the clients is on trial for killing the testator and a negative outcome in that case would bar that client.from taking under the will. No waiver could make that conflict disappear. Moreover, Respondent prevailed on the executor to use estate funds to pay for expert witness fees in Manning's criminal defense. This was clearly an unallowable use of funds from an estate where such an expenditure had nothing to do with the administration of the estate and where the outcome of who was entitled to the benefits of the estate was clearly in issue. It is noted also that the transaction was of financial benefit to Respondent as well. Had the estate not paid the bill, Respondent would have likely been obligated to pay it.

A dissent would find that the attorney engaged in incompetent representation and would suspended for 120 days. (Mike Frisch)

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

Reasons Other Than Mental Heath Issues

the Vermont Supreme Court has held that the denial of admission to a law graduate did not violate the Americans with Disabilities Act.

The court found reasons other than mental health issues precluded a finding of present fitness

...we recognize the need for compassion and respect towards those who suffer from mental health disabilities, the vast majority of whom are able to effectively treat their symptoms and contribute productively to society.  We do not take lightly the decision to deny an applicant for unfitness.  Nevertheless, we hold that applicant is unable to meet his burden of proof for admission.  The record evidence amply supports the findings, which in turn support the conclusion that applicant’s conduct—not his mental health history or status—demonstrates his unfitness to practice law.  As outlined by the commissioner, these behaviors include: applicant’s statements—made without supporting evidence—before the Vermont Judicial Retention Committee, during oral arguments before the Maryland Court of Appeals, and before the commissioner in this case regarding a Vermont magistrate, whom he accused of lying and conspiring to prevent his admission to the bar of New Hampshire; applicant’s continued claims that he is competent to provide drug counseling to narcotics users without a license; and most especially applicant’s disturbing conduct in various forums, including this proceeding, which the commissioner was able to observe firsthand.  As noted, the commissioner found that applicant’s obsession with the perceived “corruption” of the family court is “pervasive” and prevented applicant from focusing on the issues in this matter and other proceedings.  The commissioner found, with reason, that applicant’s demonstrated inability to focus and to “filter his presentations” in a variety of legal forums would render his representation of clients other than himself highly problematic, and demonstrated an inability to “make proper presentations of fact and law on behalf of a client or to focus on the client’s needs in or out of court.”  The commissioner also observed, again with reason, that if applicant believed he could provide drug counseling services without training or a license, his judgment in representing clients in areas outside his area of expertise and competence was highly questionable, potentially “putting his clients at financial and emotional risk.” 

The applicant first sought admission in Vermont in 2004. (Mike Frisch)

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