Monday, May 15, 2017
A significant oral argument will be heard by the District of Columbia Court of Appeals on May 23
IN RE: CHRIS C. YUM BAR REGISTRATION NO. 424602
Christopher C. Yum, Pro Se
William R. Ross, Esquire [for the Office of Disciplinary Counsel]
From our prior coverage of the issue in this proceeding
I have been waiting a long time for a case to come along that would provide District of Columbia Bar (now Disciplinary) Counsel with an opportunity to test the single most public protection-unfriendly rule of the Board on Professional Responsibility, the infamous Board Rule 9.8
Evidence of unadjudicated acts of misconduct occurring prior to the Court’s order of disbarment or suspension with fitness (“unadjudicated acts”) may be introduced by Disciplinary Counsel at a hearing on reinstatement only if: (i) Disciplinary Counsel demonstrates that the attorney seeking reinstatement received notice, in Disciplinary Counsel’s letter dismissing the complaint alleging the unadjudicated acts, that Disciplinary Counsel reserved the right to present the facts and circumstances of the unadjudicated acts at a reinstatement hearing; and (ii) Disciplinary Counsel gives notice in the Answer to the petition for reinstatement that he intends to raise the unadjudicated acts at reinstatement.
Let me say it plainly: No legitimate public policy purpose underpins any rule that excludes relevant evidence in the reinstatement hearing of a disbarred attorney.
Question: who in their right mind dreams up a procedural rule to exclude evidence in a reinstatement matter on grounds other than its merits?
Answer: the District of Columbia Board on Professional Responsibility.
My prayers are answered in the reinstatement proceeding of an attorney who had consented to disbarment while facing bar charges that his federal false statement conviction involved moral turpitude on its facts
Petitioner filed the instant Petition for Reinstatement on June 14, 2015. See DX 1 (Responses to Reinstatement Questionnaire for Petition for Reinstatement, Reinstatement Questionnaire, and Petition for Restatement). On October 15, 2015, Disciplinary Counsel opposed the Petition for Reinstatement and asked that a Hearing Committee be assigned to hold a hearing on the Petition. See DX 2 (Disciplinary Counsel’s Answer to Petitioner’s Petition for Reinstatement). The Board assigned the matter to the present Hearing Committee.
The Hearing Committee held a prehearing conference on January 22, 2016. Petitioner and Disciplinary Counsel submitted a set of twenty-three stipulated facts on February 3. In addition, Petitioner submitted four exhibits and Disciplinary Counsel submitted twenty-five.
On March 9, 2016, Petitioner objected to Disciplinary Counsel’s proposed Exhibits 9 and 16 through 25. Disciplinary Counsel filed responses to Petitioner’s objections on March 11. Exhibits 16 through 25 related to the 2006 criminal matter. Disciplinary Counsel’s Exhibit 9 was the Specification of Charges submitted for Contact Member review on February 28, 2011. Exhibit 16 was a Department of Labor investigative report, and Exhibits 17 through 25 were Department of Labor interview reports and FBI interview reports, all of which concerned the underlying criminal matter.
The Hearing Committee held a hearing on March 14, 2016. At that hearing, the Hearing Committee excluded Disciplinary Counsel’s Exhibit 9 and Exhibits 16 through 25, except for the cover page that constituted the first page of Exhibit 9. Hearing Tr. 20:7-14, 24:8-11. The Hearing Committee concluded that the exhibits alleged unadjudicated acts of misconduct before the effective date of the disbarment and that Disciplinary Counsel had failed to satisfy the condition for their admissibility – that it had provided notice to Petitioner reserving the right to present evidence of the unadjudicated acts on reinstatement, as required by Board Rule 9.8(a). Hearing Tr. 20:7-14. Disciplinary Counsel objected to that ruling on the record. Hearing Tr. 23:17-18.
Does the reader understand that this hearing committee refused to hear relevant evidence by operation of a ridiculous procedural rule intended to do nothing but tie Disciplinary Counsel's hands in conducting a fair reinstatement inquiry?
Notably, it appears that these reports do not involve "unadjudicated acts of misconduct." Rather, reports on the nature of underlying offense involve the circumstances surrounding the misconduct. I'd say those circumstances are worth knowing before you let a convicted felon get his law license back.
This is exactly what Disciplinary Counsel was exploring in its charges when the attorney threw in the towel and consented to disbarment.
At the hearing, Petitioner testified credibly that the “material facts” to which he agreed in the affidavit in support of consent to disbarment were the facts set out in the criminal information and the plea agreement. Hearing Tr. 98:10-12, 99:18-20, 100:15-21, 102:19-21. He stated that he never admitted to other allegations in the draft Specification of Charges, and he denied the truth of the additional allegations related to the underlying criminal case.
This may or may not be true. The Hearing Committee prevented Disciplinary Counsel from presenting the evidence that well might disprove it.
And the Ad Hoc Hearing Committee recommends reinstatement!
The case is In re Chris Yum.
In No Stone Left Unturned, I predicted that if this "drunk on due process" rule ever got before the Court of Appeals it would go down in flames.
I hope I was right.
In the preceding post, we noted that the Georgia Supreme Court imposed a lesser sanction than that sought by the State Bar.
To keep the world in balance, the court ordered a six-month suspension despite the State Bar calling for a Review Panel Reprimand
The facts, as deemed admitted by virtue of Johnson’s default, show that, in November 2015, a client retained Johnson to represent him in a civil matter, and Johnson charged the client $7,500 to be paid in installments with a $2,500 deposit up front, which the client paid. Johnson employed a disbarred attorney as his paralegal, and he informed the client that the paralegal would assist him in the client’s matter. But Johnson failed to personally do any work at all on the matter and instead allowed the disbarred attorney to have contact with the client in person, by telephone, and through written correspondence. Johnson (and his paralegal) ultimately abandoned the legal matter to the client’s detriment. Johnson also personally failed to communicate with the client, and when the client attempted to terminate the representation, Johnson failed to refund the fee he was paid that he did not earn. In addition, although Johnson acknowledged service of the Notice of Investigation on September 12, 2016, Johnson failed to respond to it in accordance with Bar Rule 4-204.3 (b).
In aggravation of the level of discipline, the Investigative Panel considered that Johnson acted willfully in collecting a fee from the client and then abandoning his legal matter, and that he acted with a selfish motive. The State Bar also notes that Johnson has a prior disciplinary history, including a formal letter of admonition that he received on January 8, 2012, and an Investigative Panel Reprimand that he received on August 12, 2016.
The Georgia Supreme Court has reprimanded an attorney for communication and consultation lapses in representing a family of Mexican citizens in immigration matters.
The State Bar had sought more severe discipline.
The court agreed that some charges were not supported
The special master found that Stewart violated his duties of consultation and communication under Rules 1.2 and 1.4, but did not violate Rule 1.3 because he did not “willfully abandon” or “willfully disregard” a legal matter entrusted to him or fail to act with a reasonable degree of promptness in these clients’ immigration matters. The special master also concluded that the State Bar failed to show by clear and convincing evidence a violation of Rules 5.3 or 5.5 (a) in Stewart’s dealings with his non-lawyer assistant, particularly where the record showed that Stewart instructed his non-lawyer assistant not to practice law, that the non-lawyer assistant helped the son apply for legal status without Stewart’s knowledge or permission, that Stewart severely reprimanded his assistant for this conduct, and that the non-lawyer assistant had not done anything similar since then. The special master further found that although Stewart directed his non-lawyer assistant to help the client family with the completion of their yearly work permits, there was insufficient evidence to establish that what the assistant did constituted the practice of law or that Stewart helped his assistant in rendering these services. The special master noted that the State Bar did not cite any authority that the non-lawyer assistant’s essentially ministerial acts(taking passport pictures, helping the family complete forms, collecting the necessary fees, and filing documents with the appropriate authority) constituted the practice of law in Georgia. Thus, the special master concluded that the State Bar failed to show that Stewart violated Rule 5.5 (a)
The attorney had been previously suspended for 18 months.
The Special Master's findings of fact show that Stewart began his legal career in 1995, after a 20-year exemplary military career with the United States Army. He practices primarily criminal defense work in Henry and Butts County and has been active in the formation of an indigent defense system in Henry County.
Detective Kevin Thomas of the McDonough Police Department referred his friend Tara Brown to Stewart for representation in her divorce action. Brown was nine months pregnant and unable to work, and her fiancé was in jail. The detective, who was also a friend of Stewart's, suggested to Stewart that he represent Brown in her uncontested divorce in exchange for sexual favors. Stewart and Brown had telephone conversations in which they discussed the divorce and a sexual relationship. Brown then decided she would not hire Stewart and contacted Judge Hayes of Henry County about the sexual nature of the discussions with Stewart. As a result of this conversation, undercover police officers set up a recording device on Brown's telephone and in her home. Brown continued to have telephone conversations with Stewart and he ultimately agreed to represent her in her uncontested divorce in exchange for sexual encounters. Brown and Stewart never engaged in any sexual activity and Stewart never represented Brown in her divorce. Stewart was arrested and pled guilty to a misdemeanor charge of solicitation of sodomy. His license to practice law was suspended upon the entry of his guilty plea. Brown subsequently filed a civil suit against Stewart.
Based on these facts, we agree that discipline under Rule 8.4 is appropriate. The maximum punishment for a violation of this rule is disbarment and this Court has previously stressed to the bar that extramarital relationships with clients are inappropriate. See In the Matter of Lewis, 262 Ga. 37, 415 S.E.2d 173 (1992). However, in this case the Special Master found significant mitigating circumstances, including the fact that no sexual activity occurred and Stewart did not pressure Brown, but instead repeatedly suggested that they forget the matter. Additionally, Stewart participated in counseling, acknowledged the wrongfulness of his conduct, and showed remorse. Also, Stewart has received a criminal sanction and punishment for his conduct. Finally, prior to this incident, Stewart had an excellent reputation in the legal community and had no prior disciplinary infractions.
The Pennsylvania Supreme Court has imposed a five-year suspension of an attorney whose laptop computer was seized by police pursuant to a warrant.
The ensuing search revealed at least 300 images of child pornography and led to a guilty plea to 150 counts of possession.
Law360 reported that he was a debt collection attorney and was suspended in 2015. The suspension imposed here is retroactive to the interim suspension.
The case is In re Allan Christopher Smith and can be accessed at this link. (Mike Frisch)
Friday, May 12, 2017
The Nebraska Supreme Court has held
In this direct appeal, Bashir V. Loding challenges his conviction for first degree sexual assault of a child. He alleges that he received ineffective assistance of counsel, that there was insufficient evidence to support his conviction, and that he received an excessive sentence. He presents one issue of first impression: whether representation by a former senior certified law student, who was not yet an admitted member of the Nebraska bar, although accompanied by an admitted lawyer, constitutes per se ineffective assistance of counsel. We conclude that it does not. The record is insufficient to address two claims of ineffective assistance. Because we find no merit in Loding’s other claims, we affirm the judgment of the district court.
Loding was represented at trial by a licensed attorney, James Schaefer, and the attorney’s son, Robert Schaefer. At one point, Robert had been certified to practice law under James’ supervision pursuant to our rules authorizing limited practice of law by senior law students. Believing that he was still certified to practice, Robert participated during voir dire and gave the opening statement and closing argument at Loding’s trial in April 2016. But Robert’s status had changed. He graduated from law school in the spring of 2015. After graduation, he took both the Uniform Bar Examination (UBE) and the Multistate Professional Responsibility Examination (MPRE). He passed the UBE but failed the MPRE. And the record is clear that he was notified of this failure prior to the April 2016 trial.
As we have already explained, a passing score on the MPRE is a substantive requirement for admittance to the Nebraska bar. The MPRE measures “examinees’ knowledge and understanding of established standards related to the professional conduct of lawyers.” These standards guide the Nebraska Rules of Professional Conduct to which all licensed attorneys within Nebraska are held accountable. Violations of these standards and rules of professional conduct can subject an attorney to disciplinary proceedings.
In sum, our standards and rules emphasize the importance of the ethical practice as indicative of an attorney’s legal ability. An applicant for admittance to the Nebraska bar who has demonstrated that he or she lacks the required knowledge of his or her ethical obligations is incompetent to act as counsel.
Having found that Robert lost his status as a senior certified law student and failed to meet the substantive requirements to be a licensed attorney at trial, we now consider the effect of his participation at trial...
We concede that if Loding had been represented only by Robert, he would have been completely denied the right to assistance of counsel. A complete denial of assistance of counsel is a per se violation of his right to counsel. However, other jurisdictions have declined to find per se ineffective assistance of counsel when there has been “active participation of a licensed attorney throughout a defendant’s trial.” As the Eighth Circuit explained, “[i]f co-counsel provides petitioners with effective assistance at all critical stages of the proceedings, [a defendant’s] Sixth Amendment rights have been protected.” The theory is that effective assistance of licensed cocounsel would include correcting any error by the unadmitted cocounsel. And, in finding no per se violation in circumstances quite similar to those before us, the Eighth Circuit relied on its earlier decision in U.S. v. Rosnow.
James, a qualified, licensed attorney in Nebraska, was the lead attorney for Loding’s trial. It is undisputed that he was present at all times throughout the trial and for all interactions between Loding and Robert. Thus, there was no per se violation of Loding’s constitutional right to counsel. We now turn to consider whether Loding is entitled to relief on his claims under Strickland...
Loding alleges that he received ineffective assistance of counsel because James did not secure his written consent to be represented by Robert. While this alleges a very serious violation of our court rules, there is a disciplinary process established to adjudicate rule violations. But that is not the matter before us in this appeal. The question here is whether James (and Robert, under James’ direction) provided ineffective assistance of counsel under Strickland. We conclude that the record is not adequate to address this matter on direct appeal.
The court gave a passing grade to the closing argument
During their closing argument, Loding’s counsel discussed the State’s burden of proof, the presumption of innocence, perceived conflicts in the State’s evidence, A.B.’s lack of credibility, the defense’s theory of the case, the function of the criminal justice system, the significance of the jury’s role, the magnitude of the charge, and the standard for reasonable doubt. Because there was no deficiency in this argument, the record establishes that Loding’s counsel were not ineffective.
We emphasize that we take very seriously Loding’s complaint that James failed to obtain Loding’s written consent to Robert’s participation in the conduct of his trial. Although we decline to find a per se violation of the right to effective assistance of counsel, it deserves careful scrutiny under Strickland. And we conclude that the record is insufficient to do so. Loding’s allegation regarding counsel’s actions regarding A.B.’s mother also raises a serious claim of ineffective assistance of counsel. But here again, the record is insufficient.
As to Loding’s other allegations of ineffective assistance of counsel, the record affirmatively refutes them. And we find no merit to his assignments of insufficient evidence and excessive sentence. We therefore affirm the judgment of the district court.
The case is State v. Loding and should be found at this link. (Mike Frisch)
Wisconsin Rejects The "Ah, No" Approach To Reciprocal Discipline; Abrahamson Concurrence Questions OLR Handling Of Reciprocal Matters
The Wisconsin Supreme Court has imposed reciprocal discipline based on an attorney's Illinois disbarment, rejecting his alleged violation of due process based on the failure to personally serve the Illinois bar charges.
The attorney did not tell Wisconsin of the 2015 Illinois disbarment where a hearing committee found
Respondent engaged in serious misconduct in this matter by practicing law while suspended and dishonestly misappropriating client funds. Either one of these types of wrongdoing would alone warrant a substantial sanction. Respondent's misconduct is significantly aggravated by his previous discipline for similar misconduct and his failure to fully cooperate in this matter. Furthermore, Respondent failed to demonstrate that he had made restitution and established little else in the way of mitigation. Respondent's misconduct also occurred while he was already subject to a suspension until further order of the Court. In accordance with the purposes of the disciplinary process, we conclude that disbarment is appropriate to protect the public, the legal profession and the administration of justice.
A referee was appointed in Wisconsin who found
[I]t [is] impossible to believe that the respondent was in any way deprived of due process in the Illinois proceedings against him. Any problems in service were the direct result of the respondent's own misbehavior and not the result of any failure on the part of the ARDC. Further, the due process issue was considered by the Illinois authorities at the June 2015 [sic] hearing and respondent's arguments were properly rejected by that tribunal.
The referee went on to point out that Attorney Peiss "undertook the same sort of behavior" when attempts were made to serve the complaint in the instant action. The referee noted that according to an affidavit of the process server, numerous attempts at personal service were made without success and when the process server finally made telephone contact with Attorney Peiss to discuss meeting to accept service, Attorney Peiss's response was, "ah no," whereupon he hung up on the process server, after which the complaint had to be served by mail...
Upon careful review of the matter, we adopt the referee's findings of fact and conclusions of law. We agree with the referee that Attorney Peiss failed to demonstrate that he was denied due process in the Illinois proceeding. Accordingly, we approve the referee's recommendation and impose the identical discipline imposed by the Supreme Court of Illinois, namely the revocation of Attorney Peiss's license to practice law in Wisconsin. We also assess the full costs of the proceeding against Attorney Peiss.
Justice Abrahamson has a concurring opinion that raises a number of pointed questions about how reciprocal matters are handled in Wisconsin.
This is a reciprocal discipline case. It raises the question of what is "identical discipline" in a reciprocal discipline matter.
The Office of Lawyer Regulation seeks revocation of Attorney Peiss's Wisconsin license in the instant case, while the Illinois discipline was "disbarment." The documents filed by the OLR in the instant case, like the documents filed in other reciprocal discipline cases, do not explain the extent to which the other state's discipline (here disbarment) is or is not identical to the Wisconsin discipline of revocation.
This failure on the part of the OLR hampers the work of this court. The per curiam opinion is defective in not equating disbarment and revocation.
I conclude that the OLR should improve its presentation in reciprocal discipline cases by comparing the Wisconsin discipline to be imposed with the discipline imposed in the other state...
The instant case, as well as other reciprocal discipline cases, raise the question of what is identical discipline. I suggest that the OLR Procedure Review Committee (Professor Marsha Mansfield, University of Wisconsin Law School, Reporter), appointed by the court in June 2016, should consider reviewing and revising the Supreme Court Rules governing reciprocal discipline when a lawyer licensed in Wisconsin is disciplined in another state.
Justice Abrahamson concurred and dissented in a second reciprocal discipline matter decided today, where the court imposed a 60-day suspension based on a like period of suspension imposed by the Minnesota Supreme Court.
She has been a frequent voice for improvement in Wisconsin attorney discipline
I am confident that the OLR Procedure Review Committee (Professor Marsha Mansfield, University of Wisconsin Law School, Reporter) will examine the time it takes each entity in the chain of discipline proceedings to perform its function, including the OLR, the Preliminary Review Committee, the referee, and this court. This court's Internal Operating Procedures (printed in volume 6 of the Wisconsin Statutes) provide that per curiam opinions in attorney disciplinary proceedings are prepared by a court commissioner for the court's consideration. Wis. S. Ct. IOP III-H (Feb. 13, 2017).
Several years ago when I did a "time" study I found what appeared to be unwarranted delay at every step.
One of my cases involved the issue whether a seven-year suspension is "substantially different" from the maximum sanction in D.C. where disbarment is a five-year suspension.
A seven-year suspension at this time with retroactive application of almost two years is in practice close to a five-year suspension imposed with prospective effect only, which we could plainly do under our own disciplinary scheme. See In re Willcher, 404 A.2d 185 (D.C.1979). Thus, on the facts of this case, the entry of an order suspending respondent nunc pro tunc for seven years will apply here a sanction functionally equivalent to that which would be both possible and warranted under the sanction scheme provided for by our Rules for disciplinary cases first initiated in the District. Adopting in this manner the "identical discipline" as that imposed by the foreign jurisdiction does not in practice result in a "substantially different" sanction here.
I fondly remember being questioned on this issue by one of my all-time favorite judges, Senior Judge John Steadman. (Mike Frisch)
Thursday, May 11, 2017
A two-year suspension of a tri-county panel has been increased to three years by the Michigan Attorney Discipline Board
Following a finding of judicial misconduct, the Michigan Supreme Court removed Judge Wade H. McCree from office and ordered him conditionally suspended from the bench for six years beginning January 1,2015. In re McCree, 495 Mich 51; 845 NW2d 458 (2014). Based on the findings ofthe Court and the Judicial Tenure Commission (JTC), the Grievance Administrator filed a three-count formal complaint alleging attorney misconduct pursuant to MCR 9 .116(B). Following hearings on misconduct and discipline, Tri-County Hearing Panel #2 imposed an order of discipline suspending respondent's license to practice law for two years. The Grievance Administrator petitioned for review, arguing that the panel erred by imposing insufficient discipline. Respondent filed a cross-petition asserting that the panel erred in imposing a suspension of greater than 90 days, that any suspension should have a retroactive effective date in light of respondent's interim suspension and removal from the bench, and that the panel erred in concluding that it was bound by the doctrine of collateral estoppel to adopt the findings of the Michigan Supreme Court. For the reasons discussed below, we increase the discipline imposed from a two-year suspension to a three year suspension.
From the Michigan Supreme Court opinion in the judicial misconduct case
The evidence establishes that respondent (a) had a sexual relationship with a complaining witness in a case pending before him without recusing himself for several months, (b) engaged in numerous ex parte communications with her concerning the case, as well as concerning another case in which one of her relatives was a party, (c) violated various policies of the courthouse by permitting his mistress to enter the facility through an employee entrance without going through security, allowing her to remain alone in his chambers while he was on the bench, arranging for her to park her vehicle in an area reserved for judges, and sneaking her cell phone into the courthouse for her, (d) transmitted numerous text messages to her while he was on the bench that contained inappropriate and derogatory references to defendants, litigants, and witnesses appearing before him, (e) lied about when and why he finally did recuse himself from the case in which his mistress was the complaining witness, (f) sought to use the prosecuting attorney's office as leverage against his then ex-mistress by concocting charges of stalking and extortion against her, and (g) lied under oath during the JTC proceedings. [In re McCree at 55-56.]
Although there is no evidence that respondent corruptly affected the outcome of a case, there is ample evidence that he, in the words of the panel, "disregarded the duty of recusal ... or deliberately may have kept the case to curry favor with Ms. Mott." We agree with the panel that a lengthy suspension is more appropriate in this case than disbarment, but, in light of the totality of respondent's conduct, including the "brazen disregard of his ethical duties," to quote the Colorado Court, we believe that a three-year suspension should be imposed for his misconduct as a public official and his deceptive conduct.
One of my great thrills in life was arguing a case in the U.S. Supreme Court opposed by Solicitor General Wade McCree. (Mike Frisch)
The three most significant players in the operation of the District of Columbia Bar and the attorney discipline system are the Bar's Chief Executive Officer, the Disciplinary Counsel and the Executive Attorney to the Board on Professional Responsibility.
All three of these positions have now been filled replacing long-tenured incumbents.
The final jewel of this triumvirate is now in place with today's announcement
The D.C. Board on Professional Responsibility has appointed Hamilton P. “Phil” Fox III as the new disciplinary counsel. Fox will assume his duties on June 7...
A Yale Law School graduate, Fox has enjoyed a diverse legal career. He was a law clerk to U.S. Supreme Court Justice Lewis F. Powell, Jr., a federal prosecutor, a solo/small firm practitioner, and a partner in international law firms.
Fox has a long affiliation with the D.C. attorney discipline system. He served as a Hearing Committee Member (1986-1988), and later a member, vice chair, and chair of the Board on Professional Responsibility (1988-1996). Fox has also represented respondents in disciplinary proceedings.
Fox also has a long history of service to the courts and the Bar. He was a member and chair of the Committee on Admissions and Grievances, District of Columbia Circuit (1996-2000); a member, vice chair, and chair of the D.C. Bar Legal Ethics Committee (2003-2011); a member of the D.C. Bar Rules of Professional Conduct Review Committee (2009-2011); and a member of the Committee on Unauthorized Practice of Law, D.C. Court of Appeals (2009-2011).
The Board chose Fox after a nationwide search conducted by legal search firm Major, Lindsey & Africa, which garnered over 100 applicants with diverse expertise from around the country.
I am hopeful that new CEO Robert Spagnoletti, new Executive Attorney James Phalen and this fellow Fox signal a new era of more efficient attorney discipline and a Bar that listens to the membership in the broadest sense. (Mike Frisch)
The Nevada Supreme Court granted a motion for interim suspension for a criminal conviction but stayed the order on conditions.
The court considered the rule mandating interim suspension for a felony offense and whether good cause existed to stay the order
Consistent with these goals, we hold that "good cause" to relieve a lawyer from automatic interim suspension depends, first and foremost, on the danger the lawyer's crime and other established misconduct suggest he or she poses to clients, the courts, and the public. Cf. SCR 102(4)(b) (providing for temporary suspension of a lawyer where, although not convicted of a crime, the lawyer "appears to be posing a substantial threat of serious harm to the public"). A related but secondary concern is "whether there is a substantial likelihood, based on all the available evidence, that a significant sanction will be imposed on the [lawyer] at the conclusion of any pending disciplinary proceedings." In re Discipline of Trujillo, 24 P.3d 972, 979 (Utah 2001). Additional factors suggested by this case include the harm interim suspension will cause the lawyer and the lawyer's existing clients, and the mechanisms available for monitoring the lawyer's conduct so suspension can be stayed and conditions imposed, rather than set aside outright.
Any crime by a lawyer reflects adversely on the profession. But Treffinger's crime—first-time possession not for purposes of sale of a controlled substance does not inherently involve dishonesty, theft, or serious interference with the administration of justice. We recognize, as the Texas Supreme Court did in In re Lock, 54 S.W.3d 305, 309 (2001), a case involving similar facts, that "possession of a controlled substance may adversely affect a lawyer's ability to practice honestly and effectively." But "looking solely to the elements of the offense, we cannot say that the elements of Treffinger's offense mandate the legal conclusion that every attorney guilty of that offense is categorically unfit to practice law." Id. The risk in allowing a lawyer who has entered a conditional guilty plea to possession of a controlled substance to continue to practice pending formal disciplinary proceedings is not per se intolerable, as it would be, for example, where a lawyer has victimized his clients by stealing from them. This view finds support in the Nevada Lawyers' Assistance Program and Lawyers Concerned for Lawyers, both of which proceed from the premise that education and treatment, with proper monitoring, can allow a lawyer to continue to practice despite an addictive disorder...
By his plea, Treffinger has admitted committing the crime of possession of a controlled substance—heroin—as serious a possessory offense as exists. We thus are not prepared to "set aside" his suspension as he asks. But by virtue of his plea, Treffinger has subjected himself to stringent probation conditions, with which he has thus far complied. These conditions include being subject to search at any time of day or night without prior notice or a warrant, successfully completing any counseling deemed necessary by the Division of Parole and Probation, having no contact with his co defendants (other than his fiancée), performing 300 hours of community service, completing substance abuse evaluation, and being subjected to and complying with random drug tests.
Courts hesitate to fashion stayed suspension orders not imposed as part of stipulated final discipline because of the difficulty and expense associated with adequate compliance monitoring. See In re Conduct of Obert, 89 P.3d 1173, 1181 (Or. 2004). But here, Treffinger already is on probation and in a diversion program addressing the criminal act giving rise to the referred disciplinary charge. This court can stay Treffinger's interim suspension and require, as a condition of the stay, that he provide the office of bar counsel quarterly compliance reports from his probation officer and that he immediately advise the State Bar of any violations without unduly imposing on the office of bar counsel. These conditions cabin the risk associated with allowing him to continue to practice despite his plea.
The professional discipline to be imposed on Treffinger remains undecided. If Treffinger successfully completes his diversion program, he will not be a convicted felon. His admitted act of possessing a controlled substance remains a violation of law for which bar discipline is appropriate, see Nev. R. Prof. Cond. 8.4(b), but the felony conviction will not exist.
we grant the State Bar's petition under SCR 111(1) and (7), suspend Treffinger from the practice of law, and refer this matter to the Southern Nevada Disciplinary Board for formal disciplinary proceedings. We stay the suspension conditioned on Treffinger's continued adherence to the terms and conditions of his probation, his successful participation in his diversion program, and the absence of any further disciplinary offenses. Treffinger shall provide the office of bar counsel with quarterly compliance reports from his probation officer and shall immediately notify the State Bar of any probation violations, so the office of bar counsel can timely apply to this court to dissolve the stay in that event.
The link may not work. The case is Discipline of Timothy Treffinger.
Pahrump Valley Times reported that the attorney is a former prosecutor. (Mike Frisch)
A District of Columbia Ad Hoc Hearing Committee has approved a consent discipline on these facts
Respondent has freely and voluntarily acknowledged that the material facts and misconduct reflected in the Petition are true. Tr. 21-22; Affidavit ¶¶ 4,
Specifically, Respondent acknowledges that:
a) Starting around May 2009, Respondent was employed as in-house counsel for intellectual property issues at a company in Texas.
b) During the summer of 2012, Respondent used his work-issued phone on various occasions to take prurient photos and videos of clothed, non-consenting, and unaware individuals, both at his workplace and at public venues.
c) Respondent stored and edited some of the photos and videos on his workplace computer. They were discovered during routine IT maintenance, resulting in his arrest in September of 2012, for Improper Photography or Visual Recording (5 Tex. Penal Code § 21.15).
d) During the nine-month period from the time of his arrest to the time he pleaded guilty, Respondent attended over 180 meetings for people suffering from addiction to pornography and sex; including 105 Sex Addicts Anonymous (SAA) meetings, 50 therapist-led SAA type meetings, and 33 SAA-type meetings operated by his church. In reaching this total, Respondent attended 90 meetings in 90 days.
e) On June 4, 2013, Respondent pleaded guilty in the District Court of Harris County, Texas, to one count of improper Photography or Visual Recording. The presiding court deferred any adjudication of guilt. Under the Court’s order, Respondent was placed on community supervision for a period of five years (subject to various conditions), ordered to serve 30 days in jail and pay a $250 fine. f) Respondent promptly notified Disciplinary Counsel of his guilty plea. He also promptly notified the USPTO.
The D.C. Court of Appeals suspended the attorney on a interim basis but
The Board then recommended to the Court of Appeals that it vacate Respondent’s interim suspension and refer the matter to Disciplinary Counsel under D.C. Bar R. XI, § 8 (governing investigations that do not involve criminal conduct). Disciplinary Counsel took exception to that recommendation, arguing that, Respondent’s interim suspension should remain in place and that the case should continue under the auspices of D.C. Bar R. XI, § 10.
Ultimately, Respondent, the Board, and Disciplinary Counsel all filed briefs before the Court of Appeals addressing the issue. Throughout this process, Respondent continued to acknowledge the wrongfulness of his misconduct.
On September 17, 2014, after Disciplinary Counsel and the Board had filed briefs before the Court of Appeals, and shortly before Respondent filed his brief, the Court of Criminal Appeals of Texas (the criminal court of last resort in Texas) held that the subsection of the statute under which Respondent was charged was unconstitutional.
The agreed sanction
Respondent and Disciplinary Counsel have agreed that the sanction in this matter should be a two-year suspension, fully stayed in favor of two years of unsupervised probation, with the requirements that Respondent (1) self-certify to Disciplinary Counsel each month that he is complying with the treatment directions of his psychiatrist and any other provider(s), (2) self-certify to Disciplinary Counsel each month that he attended at least one Sexual Addicts Anonymous meeting, (3) immediately seek counseling from a Certified Sex Addiction Therapist should his treatment regimen appear insufficient, (4) waive privilege to the extent necessary for Disciplinary Counsel to verify his compliance with the terms of probation, and (5) not be found to have engaged in any misconduct in this or any jurisdiction.
Respondent engaged in deceitful conduct, and that conduct required some preparatory steps (placing the mobile phone camera in a position to record private images without the subject’s consent) rather than a single impulsive action, and it occurred on more than one occasion. We find that the imposition of discipline is justified.
The stipulated record also reveals several factors that weigh in the Respondent’s favor. Respondent initiated efforts – seeking a diagnosis and treatment for his mental health disorder and attending regular meetings of Sexual Addicts Anonymous – immediately following his arrest, and occurring for nine months before his guilty plea. These actions demonstrate acceptance of responsibility. In the same vein, Respondent promptly notified Disciplinary Counsel of the guilty plea and has cooperated fully with the investigation and proceedings in this jurisdiction. Furthermore, the parties’ stipulation concerning Respondent’s intent is well-supported by the record, which includes a statement by his treating psychiatrist. Respondent also submitted to an independent medical examination at Disciplinary Counsel’s request, and the examining psychologist found him to be a credible reporter with a low risk of recidivism, who acknowledges the harm he caused to others.
The case is In re Darrell Fuller and can be found at this link. (Mike Frisch)
Wednesday, May 10, 2017
A private reproval was imposed by the California State Bar Court Review Department based on a stipulated disposition
On June 30, 2014, respondent went to the hospital for treatment for alcohol problems. Respondent was given an IV while at the hospital. Against medical advice, respondent left the hospital without receiving treatment, and with the IV still in her arm. At the request of the hospital, the Roseville police department performed a welfare check on respondent later that day. Respondent was intoxicated at the time of the welfare check, but did not return to the hospital.
Shortly before 12:20 p.m. on the following day, July 1, 2014, respondent was involved in an automobile accident with Ariana and Bruce Bakeman ("Bakemans") in Roseville, CA. Respondent rear ended the Bakeman’s vehicle. Ariana Bakeman was evaluated at the scene for complaints of neck and back pain and dizziness.
Both vehicles pulled into a Target parking lot. Respondent spoke with the passenger, Bruce Bakeman, for a few moments and provided him with her driver’s license.
Contrary to the Bakemans’ request for respondent to await police arrival, respondent left the scene.
The Bakemans reported the accident to the Roseville Police Department as a hit and run collision with injuries.
The license plate number provided by the Bakemans was traced to respondent. Ariana Bakeman subsequently positively identified respondent in a photo lineup.
At approximately 5:30 pm that day, respondent was arrested at a nearby Johnny Garlic’s restaurant and jailed for violation of Penal Code section 849(b)(2). While in jail, respondent was also charged with violation of Vehicle Code section 20001 (a) for the earlier auto accident.
One of the officers that investigated the auto accident recognized respondent’s name, and recalled performing welfare checks at respondent’s home, including the evening before, and previously arresting her for driving under the influence.
In separate matters
On July 14, 2009, respondent became intoxicated from the consumption of alcohol and wandered onto a construction site. Respondent detained pursuant to Penal Code section 849 (b)(2). Respondent was issued a citation for violation of Penal Code section 647(t"). The case was dismissed on September 28, 2009 in the interest of justice.
On October 3, 2009, respondent reported being assaulted by her then husband. On October 6, 2009, respondent left a message on the investigating officer’s voicemail that she had lied about the assault to avoid arrest for public drunkenness or professional discipline. Respondent was charged with violation of Penal Code section 148.5 [Making a False Report of a Crime], a misdemeanor. The case was dismissed in the interest of justice on September 16, 2010.
Within three days of being released from jail on July 3, 2014, respondent took immediate steps to address her alcohol problems by voluntarily enrolling in an one year intensive outpatient chemical dependency program and seeking support through participation in Alcoholics Anonymous and religious activities. She completed the outpatient program shortly after her criminal case settled in 2015.
Respondent had approximately 13 years of discipline free practice at the time of her misconduct in 2014 (eight years of discipline free practice at the time of the citation for public drunkenness on July 2009).There is no evidence to refute her claim of sobriety for the past 2 ½ years or to suggest that her misconduct will recur.
There are several conditions attached to the reproval. (Mike Frisch)
The April 2017 quarterly report of the North Carolina Office of Counsel has a number of highlights
Joseph Lee Levinson - 16 DHC 11 Levinson, of Benson, pled guilty to the felony offense of conspiracy to obtain money in the custody of a bank by false pretenses by, among other devices, fabricating lease agreements to cause lenders to believe his client was purchasing houses as rental property when his client was actually purchasing the houses in which to grow marijuana for a large scale drug trafficking operation. The Chair of the DHC entered an order of interim suspension of his law license. Hearing has not been scheduled because he is in prison.
In re: Colleen Janssen (Wake County Superior Court). The Wake County Superior Court appointed the Office of Counsel to investigate and report to the court upon alleged professional misconduct of former Wake County assistant district attorney Colleen Janssen. The OOC submitted its report under seal on December 9, 2016. The court ordered Janssen to appear and show cause why the court should not impose professional discipline. After hearing on March 8- 10, the State Bar submitted a proposed order of discipline recommending that the court suspend Janssen for five years and permit her to seek a stay of the final three years upon compliance with conditions. The State Bar also recommended that Janssen receive credit toward service of the suspension for time she did not practice law after she resigned her position as assistant district attorney. On March 22, the court entered an order prohibiting Janssen from serving as prosecutor for any federal, state, county or municipal entity and prohibiting Janssen from practicing law in the employment of any federal, state, county, municipal or private entity or police agency providing legal advice or assistance to any law enforcement officers or law enforcement agencies. The court did not impose professional discipline.
Steven B. DeCillis – 12 DHC 25 & 17 BSR 2 In July 2013, the DHC found that DeCillis, formerly of Oxford and now of Charlotte, did all of the following simultaneously: sued L.H. in a personal injury case, represented L.H. in three matters that were unrelated to the personal injury case, and engaged in a sexual relationship with L.H. He was suspended for five years. After serving three years, DeCillis was eligible to apply for a stay of the remaining two years upon demonstrating his compliance with numerous conditions. DeCillis’s petition for stay was scheduled for hearing on April 28 but he withdrew the petition on April 10.
Suits against Bar employees include one against my erstwhile NOBC colleague Root Edmonson
David S. Harless v. Root Edmonson et al (US District Court for the Southern District of West Virginia). In 2005, David S. Harless was transferred to disability inactive status. Harless’ petitions for reinstatement to active status were denied in 2010 and 2012 because he did not demonstrate that he was no longer disabled. On December 21, 2016, Harliss filed a lawsuit in federal court in West Virginia against State Bar employees Root Edmonson and Jennifer Porter, among others. On January 4, 2017, the federal court dismissed the lawsuit on its own motion. The court characterized the complaint as “incoherent, fanciful ramblings which lack any arguable basis in law or fact.” The complaint had not been served on Edmonson or Porter. Harless did not appeal.
Loushanda Myers v. Krista Bennett, Fern Gunn Simeon, John Silverstein and unnamed “unknown agents of the North Carolina State Bar,” et al (US District Court, EDNC). Krista Bennett and Fern Gunn Simeon are State Bar employees. During some or all of the events alleged in the complaint, John Silverstein served as Chair of the Grievance Committee and is presently President Elect of the State Bar. Myers asserts that the State Bar defendants, the North Carolina court system, and numerous Johnston County government officials violated her rights. She does not describe the alleged violation with particularity but it appears to arise out of Myers’ arrest by Johnston County law enforcement officials. The court allowed the State Bar defendants’ motions to strike and to dismiss. Myers appealed to the Fourth Circuit Court of Appeals. The Fourth Circuit dismissed that appeal as interlocutory. On January 19, 2016, the Court dismissed Myers’ claims against the remaining defendants. Myers again appealed to the Fourth Circuit. On December 27, 2016, the Fourth Circuit dismissed her appeal. Her petition for en banc hearing by the Fourth Circuit was denied on February 28, 2017. Her time in which to petition the United States Supreme Court for certiorari has not expired. The Office of Counsel represents the State Bar defendants.
These quarterly summaries are a great way to evaluate the work of the disciplinary system. (Mike Frisch)
The Ohio Supreme Court has suspended a former judge
In April 2014, a Cuyahoga County grand jury indicted Jacob—while he was serving as a municipal court judge—on 21 counts of criminal conduct, ranging from felony tampering-with-evidence and promoting-prostitution charges to misdemeanor solicitation and falsification offenses. In September 2014, after a five-day bench trial, the Cuyahoga County Court of Common Pleas found him guilty of five misdemeanors: three counts of solicitation under R.C. 2907.24(A)(1), one count of falsification under R.C. 2921.13(A)(11), and one count of falsification under R.C. 2921.13(A)(13). As to the remaining charges, the court either acquitted Jacob or ordered the charges dismissed. After his convictions but before appearing for his sentencing, Jacob resigned from the bench. In October 2014, the court sentenced him to serve a total of 60 days in jail, pay $2,500 in fines, complete a two-year term of probation, and submit to six months of home monitoring upon his release from jail. He immediately served his jail time, paid his fine, and later successfully completed probation and home monitoring.
In November 2015, the Eighth District Court of Appeals affirmed Jacob’s convictions. See State v. Jacob, 2015-Ohio-4760, 50 N.E.3d 279 (8th Dist.) The court found that there was “sufficient and substantial evidence that Jacob solicited at least three women to engage in sexual activity for hire.” Id. at ¶ 20. In describing the evidence against Jacob, the court noted that he had first responded to an advertisement in which a woman offered massages, but after they met in person, the massages evolved into sex for money. Jacob continued to request the woman’s services and met her at various hotels across the state. He later engaged in three-way sexual acts with the woman and a second prostitute, asked the second prostitute to engage in individual sexual acts with him, and also solicited prostitution services from a third woman. Id. at ¶ 3-5.
The Eighth District also described the evidence supporting Jacob’s falsification convictions, which arose from an unrelated case pending on his municipal court docket. As explained by the court of appeals, a defendant, David Holt, made an unscheduled appearance before Jacob and requested to plead guilty to a pending domestic-violence charge. Jacob informed Holt that a domestic violence conviction would prevent him from owning a firearm and result in other collateral consequences. Jacob then sua sponte reduced the domestic-violence charge to disorderly conduct and found Holt guilty of the amended charge. Jacob never read Holt his rights, asked him if he had consulted with an attorney, or heard from the alleged victim. Further, Jacob amended the charge without the city prosecutor’s presence or consent, and he signed and journalized an entry that falsely indicated that the prosecutor had authorized the change. Id. at ¶ 6-10, 22-24.
In his appeal of the falsification convictions, Jacob admitted that he had signed an inaccurate entry but argued that he did not actually know that the entry was false because he had merely signed a boilerplate form. Id. at ¶ 10, 22, 24. The Eighth District, however, “emphatically reject[ed] this claim,”
The facts establish that he was fully aware of his duplicitous actions and tried to hide them. Jacob knew that the journal entry was false because he was the one who changed it; he changed the entry to make it appear that the prosecutor authorized the amendment to the original charge, and then he signed off on the entry. This clearly demonstrates that he knowingly falsified the journal entry, not just signed a falsified journal entry.
Dan Trevas has a summary of the case
The Ohio Supreme Court today suspended a former Bedford Municipal Court judge who was convicted of soliciting prostitution and falsifying a court record.
In a per curiam opinion, the Supreme Court suspended former Judge Harry J. Jacob II from the practice of law for two years with one year stayed. Jacob resigned as judge in October 2014 after a Cuyahoga County Common Pleas Court convicted him of five misdemeanors. He was sentenced and served 60 days in jail, served six months of home monitoring after being released, and was fined $2,500 and placed on two years’ probation.
The Ohio State Bar Association filed a complaint against Jacob for judicial and professional misconduct based on the activities that led to his criminal conviction, and the association did not object to the Board of Professional Conduct’s recommended sanction, which the Supreme Court accepted.
Judge Pays Prostitutes
Jacob, who began serving on the Bedford Municipal Court bench in 2010, unsuccessfully appealed his conviction to the Eighth District Court of Appeals, which noted there was “substantial evidence that Jacob solicited at least three women to engage in sexual activity for hire.” Prosecutors charged he first responded to an advertisement in which a woman offered massages, and when they met in person, the encounter evolved into sex for money. He continued to request that the woman meet him at various hotels across the state. He also began to solicit two other women for sex.
Judge Reduces Charges Unilaterally
In an unrelated case, David Holt made an unscheduled appearance before Jacob with a request to plead guilty to a pending domestic violence charge. Jacob explained to Holt that a domestic violence conviction would prevent him from owning a firearm and would have other consequences. Jacob then reduced the domestic-violence charge to disorderly conduct and found him guilty of the amended charge.
Jacob never read Holt his rights, asked if he had consulted an attorney, or heard from the alleged victim. He amended the charge without the consent of the city prosecutor, and signed the court entry that falsely indicated the prosecutor authorized the amended charge. In his appeal, Jacob acknowledged signing an inaccurate journal entry, but claimed that a paperwork error led him to sign the wrong form. The Eighth District rejected the claim, finding he knew the entry was false because he was the one that changed it.
Disciplinary Charges Follow Conviction
At a disciplinary hearing, Jacob admitted to the crimes and was charged with violating five rules governing the behavior of Ohio judges and lawyers, including a requirement that judges “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety.”
The Court majority opinion stated that when considering a sanction for judicial and professional misconduct, the Court considers several factors including aggravating circumstances and mitigating factors as well as sanctions imposed in similar cases.
The board found Jacob’s sexual gratification was a selfish motive, that he engaged in a pattern of misconduct, committed multiple offenses, and refused to acknowledge the wrongful nature of some of his conduct. In contrast, the board found Jacob had no prior disciplinary history, resigned from his judgeship, cooperated with disciplinary authorities, demonstrated good character and reputation, and fully complied with his criminal sentence. The Court noted he also sought the assistance of the Ohio Lawyers Assistance Program and a psychiatrist.
The opinion stated that judges have a greater duty to obey the law than others and breaching that obligation will result in the Court using its “full measure” of disciplinary authority.
“By engaging in the criminal activity in this case, Jacob failed to uphold the integrity of the judiciary, and he diminished public confidence in our branch of government,” the Court stated. “Considering that Jacob continued to deny making misrepresentations in the journal entry, the board concluded that his ‘egregious conduct, both inside and outside the courtroom,’ warrants a two-year suspension, with one year stayed.”
The Court ruled the second year is stayed on the condition that Jacob commit no further misconduct, and if he does, the stay will be lifted. It also charged him $1,306 for the cost of the disciplinary proceeding.
Justices Terrence O’Donnell, Sharon L. Kennedy, William M. O’Neill and R. Patrick DeWine joined the majority opinion.
Chief Justice Maureen O’Connor and Justice Judith L. French dissented and stated they would suspend Jacob for two years without suspending any portion of the sanction.
Justice Patrick F. Fischer did not participate in the case.
Cleveland.com reported on the criminal case. (Mike Frisch)
A disciplinary complaint filed in Ohio alleges
In early 2015, G&G Star Enterprises, doing business as Fred Astaire Dance Studio in Morristown, New Jersey, filed an I-129 Petition for Non-Immigrant Worker (I-129 or petition) on behalf of Veronika Gadzheva. The petition requested that Gadzheva, a Bulgarian ballroom dancer, be permitted to enter the United States on an 0-1 B visa due to her extraordinary ability in the arts (dance).
The petition was granted but problems developed
Gadzheva immediately began working for G&G; however, problems soon began to develop in the employment relationship, and Gadzheva wished to change employers.
In or about July 2015, Gadzheva obtained an offer of employment from Londance III Studio in Laguna Niguel, California...
Gadzheva emailed respondent regarding the transfer of her 0-1 visa to a new employer. Gadzheva had been referred to respondent by a friend.
Respondent agreed to represent Gadzheva and to file a new I-129 petition on her behalf.
The allegations involve consequential neglect and false representations
On October 20, 2015, G&G Enterprises requested revocation of the I-129 petition that it had filed on Gadzheva's behalf, and it was subsequently revoked. Because respondent had not yet filed a new petition, Gadzheva was now considered "out of status." In addition, Gadzheva may have begun accruing days of "unlawful presence" in the United States. At 180 days of unlawful presence, Gadzheva could potentially face a three-year bar for re-entry to the United States, and at 360 days, Gadzheva could potentially face a ten-year bar for re-entry to the United States...
On December 3, 2015, Gadzheva emailed respondent and inquired into whether she could return to Europe before the new I-129 petition was approved. Despite the fact that Gadzheva was "out of status," respondent falsely stated that she could travel to Europe because her existing 0-1 visa was "still good." Gadzheva ultimately decided, however, not to travel to Europe until the new I-129 petition had been approved.
Between December 3, 2015 and April 15, 2016, Gadzheva and her employer, Patricia West, called respondent at least 20 times regarding the status of the I-129 petition. Even though he had not yet filed the petition, respondent consistently told Gadzheva and West that the petition had been filed and that it would be approved shortly. He told them that the immigration process moves slowly and led them to believe that he had other clients who were waiting for approvals as well. He also told them that certain times of the year, such as around Christmas, were very busy times for USCIS, which caused additional delays. Even when Gadzheva inquired into starting the process over and filing a new I- 129, respondent told her to wait another two weeks.
On April 15, 2016, and over seven months after he initially stated he had filed a petition, respondent filed an I-129 on behalf of Gadzheva. Prior to filing this petition, respondent did not provide it to West for her signature or review. Instead, respondent forged West's signature on two different places on the petition.
Eventually new counsel stepped in
On July 11, 2016, HYIL filed a new I-129 petition on behalf of Gadzheva and requested expedited processing. It was approved on July 22, 2016 without any requests for further information; however, because Gadzheva was "out of status" at the time it was filed, she must leave the United States in order to activate her new 0-1 visa. She was - and still is - afraid to leave the country in order to activate her 0-1 visa due to uncertainty as to whether she accrued any days of unlawful presence, and if so, how many days.
The attorney is charged with dishonest conduct in both statements to the client and her employer as well as in responding to the bar complaint
Prof. Cond. R. 8 .4( c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) by leading Gadzheva and West into believing he had filed an I-129 petition on behalf of Gadzheva and that the petition was pending and by altering the copy of the I-129 petition that he provided to relator.
He is also charged with IOLTA violations.
A sharp-eyed reader noticed that this post comes on the birthday of Fred Astaire.
A few years ago, a student shocked me when I mentioned Bob Hope by asking who Bob Hope was.
For those unschooled in the undeniable charms of the immortal Fred, here's a snapshot. Rita Hayworth ain't no slouch neither! (Mike Frisch)
The web page of the Arizona Presiding Disciplinary Judge notes that an appeal has been taken from a recent decision dismissing ethics charges against a court-appointed attorney.
The facts in this matter are generally undisputed. Mr. DeBrigida represented criminal clients in Rule 32 post-conviction relief (PCR) matters on behalf of the Office of Public Defense Services. On more than one occasion, Mr. DeBrigida relied on an incorrect addresses given to him by the Office of Public Defense Services when he attempted to make initial contact with his appointed clients by letter. He further allegedly failed to meet court imposed deadlines to file PCR petitions. The Court approved repeated requests for extensions. We do not find based on the evidence that such practice was unusual or a violation of ethical rules.
The State Bar was critical of Mr. DeBrigida for mailing initial engagement letters to new clients allegedly to wrong addresses. Ironically, the State Bar submitted as evidence three of its letters that had been returned by the U.S. Postal Service – the Bar had mailed each of those letters to those same clients. [SBA Exhibits 4, 11, & 27.] Even when pursuing discipline against this Respondent for faulty mailings, the hearing panel notes that the State Bar had the same experience.
The Respondent presented sufficient evidence to show that he has put systems in place to confirm all addresses supplied to him by the Office of Public Defense Services. He also showed that he has adopted a system of calendaring to track Office of Public Defense Services case deadlines.
The State Bar has the burden of clear and convincing evidence. While many of the facts are stipulated to, the implications of those facts were not stipulated to. The burden of proof relates to both facts and their implications. The State Bar having failed to meet its burden of proof,
IT IS ORDERED dismissing the matter with prejudice.
Attorney Panel Member James Marovich concurred
Margaret Atwood, the Canadian novelist and poet, has said that if she had to wait for perfection, she would never write a word. A similar idea also has been echoed in medicine, where it has been said that “because humans are not perfect, corrections must be made from time to time.” Washington and Leaver, Principles and Practice of Radiation Therapy 38 (4th ed. 2016).
The same can be said for lawyers and the practice of law. We are human and we are not perfect, and if we had to wait for perfection, we would never be able to help our clients. Alan Dershowitz, in his Letters To A Young Lawyer, wrote that “[l]aw is an imperfect profession … all practicing lawyers – and most others in the profession – will necessarily be imperfect, especially in the eyes of young idealists.”
Reasonable under the rules does not mean perfect.
The Arizona Presiding Disciplinary Judge approved a consent agreement for a reprimand and 18 months probation for the following misconduct
In Count One, Mr. Poster represented a client in a civil forfeiture matter involving allegations of money laundering and the sale/transportation of drugs while employed as a delivery person. Thereafter, Mr. Poster failed to adequately communicate with and diligently represent his client. Mr. Poster further failed to provide a formal response to requests for admissions regarding the property at issue and failed to file a response to the motion for summary judgment.
In Count Two, Mr. Poster was hired to represent a confidential informant. Upon review of disclosure material, Mr. Poster became aware that a former client was mentioned in the police reports. Mr. Poster and the prosecutor discussed the potential conflict of interest. Mr. Poster took no action and the prosecutor was forced to file a motion to determine counsel. Mr. Poster disclosed a former client’s status as a confidential informant to a lawyer representing a defendant who was arrested and criminally charged due to Respondent’s former client’s actions. This disclosure placed Mr. Poster’s former client in a potentially dangerous position.
The agreed sanction was deemed appropriate
Upon review, the Presiding Disciplinary Judge finds the proposed sanctions of reprimand, 18 (eighteen) months of probation (LOMAP and CLE), $5,000.00 restitution to Robert G. White within ninety (90) days, and the payment of costs totaling $1,203.30 within thirty (30) days meets the objectives of attorney discipline.
The count two case involved a confidential informant represented by the attorney who was a key witness against his client. When the prosecutor raised the conflict issue, the case was handed off to a lawyer with whom he shared office space and support staff.
The substitute lawyer (Brown) filed a motion to the compel disclosure of the informant that the sanctioned attorney had drafted prior to substitution of counsel. (Mike Frisch)
Tuesday, May 9, 2017
A convicted attorney was disbarred by the New York Appellate Division for the First Judicial Department
On July 28, 2016, in Supreme Court, New York County, respondent pleaded guilty to grand larceny in the second degree (two counts) in violation of Penal Law § 155.40(1), a class C felony, and grand larceny in the third degree (11 counts) in violation of Penal Law § 155.35, a class D felony, in full satisfaction of an indictment and a superior court information, based upon his admission that from in or about August 2012 through November 2015, he stole settlement funds from 13 clients totaling $743,327.04. The plea agreement respondent entered into lists the names and amounts he converted from each client.
On September 9, 2016, respondent was sentenced to an indeterminate term of 3 to 9 years in prison on the C felonies and 1 to 3 years on the D felonies, to run concurrently.
Resignation was not an option
In support of his current motion to resign, respondent argues, inter alia, that it would be "punitive" if he was not permitted to resign, that if the Court was not inclined to grant his request then it makes 603.11 a nullity, and that he was a good lawyer for 28 years and only in the last few years did he become addicted to Oxycotin and then heroin. On that last point, respondent states that he believes his addiction "was a suicidal attempt to end my life," that his life, health, reputation and family life have all been destroyed and he has been punished due to his addiction, and asks this Court to order him to CASAT, a drug rehab program, even though he has been clean and sober for more than one year.
The Committee correctly states that respondent's conviction of New York felonies are a basis for automatic disbarment pursuant to Judiciary Law § 90(4). Thus, respondent's conviction of the felonies of grand larceny in the second and third degree constitutes grounds for automatic disbarment and his name should be stricken from the rolls, effective the date of his guilty plea (Matter of Todorovich, 144 AD3d 1 [1st Dept 2016]; Matter of Ioannou, 116 AD3d 178 [1st Dept 2014]; Matter of Lax, 88 AD3d 342 [1st Dept 2011]; Matter of Armenakis, 86 AD3d 205 [1st Dept 2011])...
The cross motion to resign must also be denied as this Court has previously determined [*3]that we cannot accept such a resignation where the attorney has "automatically ceased to be an attorney upon his conviction of a felony" (Matter of Stark, 309 AD2d 4, 5 [1st Dept 2003]; see Matter of Galloway, 135 AD3d 193 [1st Dept 2015]). Moreover, respondent has failed to correct the deficiencies in his affidavit of resignation, to wit, his failure to specifically describe misconduct he committed.
Details here from the web page of the New York County District Attorney.
Manhattan District Attorney Cyrus R. Vance, Jr., today announced the sentencing of JEFFREY LESSOFF, 59, a former personal injury attorney, to 3-to-9 years in state prison for stealing approximately $500,000 in civil damages awarded to 13 of his clients. On July 28, 2016, the defendant pleaded guilty in New York State Supreme Court to multiple counts of Grand Larceny in the Second and Third Degrees. As part of the sentence, the court executed judgment orders holding LESSOFF liable to repay approximately $700,000 to his clients – representing the damages and forfeiting fees for any services rendered.
“Jeffrey Lessoff stole half a million dollars from his clients to finance a life on the lam in Spain,” said District Attorney Vance. “One client, a former schoolteacher, waited in vain for three years to receive money owed to her following a career-ending injury. I urge anyone who believes that he or she may have been a victim of theft or fraud by an attorney to call my Office’s Financial Frauds Bureau at 212-335-8900.”
...In the fall of 2015, the defendant sold his law practice and fled to Spain with what remained of the stolen funds. In December 2015, LESSOFF briefly returned to the United States and was arrested at Miami International Airport and extradited to New York.
The Vermont Supreme Court affirmed the denial of admission of an attorney who had been sanctioned in Wisconsin for his advocacy in criminal matters
Applicant applied for admission to the Vermont Bar in March 2015. Pursuant to what was then Vermont Rule of Admission to the Bar 11(d), the Character and Fitness Committee appointed a member of the Committee to investigate applicant’s moral character and fitness and to decide whether to certify applicant’s admission. The member assigned to applicant’s application reported in July that he could not recommend applicant’s admission. The member noted three areas of concern: applicant’s disciplinary history in Wisconsin, including multiple contempt charges and a public reprimand; other “inappropriate past activity,” including speeding tickets, a conflict with a previous employer, and applicant’s failure to take responsibility for those occurrences; and his record of financial difficulties.
Pursuant to Rule 11(g), the Committee convened a three-member panel to hold an evidentiary hearing to allow applicant the chance to present additional information to support his application. At that December 2015 hearing, applicant and the panel agreed that the record to be considered by the Committee consisted of his application to the Vermont Bar, including attachments, the written record of his application to practice law in the State of Washington, and correspondence between applicant and the Committee. Applicant testified under oath and answered questions from members of the panel.
In a written decision issued in January 2016, the hearing panel acting on behalf of the Committee declined to certify applicant’s good moral character and fitness. Such certification is a prerequisite to admission to the Vermont Bar. The panel’s written findings include the following.
• Applicant graduated from the University of Wisconsin Law School in 2002 and was admitted to practice in Wisconsin in 2003.
• He is an attorney in good standing in Wisconsin, the U.S. District Courts in Wisconsin, and the U.S. Court of Appeals for the Seventh Circuit.
• From 2003 to 2006, he was employed as a lawyer with the Wisconsin State Public Defender’s. In 2005, friction developed between applicant and his employer concerning a policy issue involving juvenile defendants. Applicant expressed his views on the issue publicly, was suspended for insubordination, and resigned in July 2006 to go into private practice. Applicant does not regret his vigorous advocacy in connection with the policy question.
• From July 2006 through May 2012, applicant was self-employed as a lawyer in Wisconsin, specializing in representing indigent criminal defendants.
• In November 2008, in the matter of State v. Kostopoulos, applicant was held in contempt of court for insubordination to the court.
• In November 2009, in the matter of State v. Carter, applicant suggested in the course of a hearing on a routine discovery motion that the judge suffered from a physical health issue that affected her “ability to be appropriate.”
• As a result of the two above incidents, the Wisconsin Office of Lawyer Regulation filed a disciplinary complaint against applicant in June 2012. Applicant ultimately admitted the allegations of the complaint, did not oppose the imposition of a public reprimand, and agreed to pay specified costs. Applicant did not contest the proceedings because litigation would have interfered with his family’s travel plans and because his lawyer told him it was a “set up,” that he had little chance of success, and that he faced greater financial exposure if he contested the charges.
• In July 2010, applicant was held in contempt in the case of State v. Echols for ignoring instructions of the court, insisting on referring to his client by first name, and injecting his personal views.
• In April 2011, applicant was held in contempt twice in the same proceeding, State v. Donald—once for a personal attack on the prosecutor, and once for inappropriate behavior during voir dire.
• In August 2011, applicant was charged with violating a municipal ordinance relating to airport security. Applicant had gotten into a dispute with a TSA officer after he refused to present identification as part of the pat-down process.
• In December 2011, a bank initiated foreclosure proceedings against applicant and his wife for a condominium property. The condominium had been damaged by high water and was partly uninhabitable. The applicant did not have adequate insurance to cover the loss. Applicant abandoned his home to the bank. He is unaware of any deficiency liability claimed by the mortgagees.
• Applicant closed his law practice at the end of May 2012. He maintains that he cannot practice law in Wisconsin because of unfair treatment by Wisconsin judges in retaliation for his efforts to uncover the racially motivated illegal activities of the Milwaukee Police Department and District Attorney’s office.
• In October 2012 applicant wrote an open letter to the United States Department of Justice stating that his contempt citations in the State v. Echols and State v. Donald cases and his problems in State v. Carter were the result of his attempts to expose corruption in the Milwaukee Police Department and District Attorney’s office. The applicant submitted this letter to the Character and Fitness Committee to support his contention that the initial reviewer of his application was not treating him fairly.
• From June 2012 to January 2014 applicant lived in New Zealand. He has lived in the State of Washington since January 2014.
• Applicant is repaying approximately $260,000 in student loans.
• In May 2013, applicant applied for admission to the bar of the State of Washington. After a day-long hearing on his application, including numerous witnesses regarding the above incidents, the Character and Fitness Board voted eight to one to grant his application for admission. The Washington Supreme Court denied the application in November 2014.
• In the Vermont proceeding, applicant has registered his concern that he is not being treated fairly and that he is being punished for being a whistleblower against illegal state action. He was not able to show any direct causal link between his zealous advocacy on behalf of indigent, minority clients in Wisconsin and his disciplinary issues, but argued that denying his application to practice in Vermont would be tantamount to “aiding and abetting” the unjust treatment he received at the hands of the authorities in Wisconsin.
The Committee’s decision, applicant’s arguments on appeal, and our analysis center on a number of specific events, including applicant’s suspension by the Wisconsin Public Defender’s; conduct leading to multiple contempt charges and a stipulated public reprimand by the Wisconsin Supreme Court for professional misconduct; and violation of a municipal ordinance after applicant failed to follow TSA security procedures.
There were a number of contempts and a reprimand in Wisconsin for overzealous advocacy
In each of the cases...applicant demonstrated disrespect toward the court by willfully disregarding court orders or interrupting or inappropriately arguing with the judge about those orders; he showed very little understanding of the bounds of proper courtroom demeanor, particularly in the presence of a jury; and he frequently responded to the court’s admonitions by asserting that the judge was biased against him. Moreover, these incidents do not appear to be isolated. In reviewing the record relating to the specific instances at the center of this case, we saw in the transcripts multiple other instances of improper conduct in the courtroom.
Applicant has not shown that this pattern of insubordination will not continue in Vermont if he is admitted to practice here. He has not offered any evidence of remedial coursework, work with a mentor, counseling, or other steps he has taken to learn about proper courtroom behavior and improve his conduct. He has not shown that since the time of these incidents he has successfully practiced law within the bounds of decorum; he has not practiced law since 2012.
Most important, compounding applicant’s disturbing history of misconduct in court, is his apparent inability to take responsibility for his actions. Although he contends that he has taken responsibility for his actions, the record reflects otherwise. He has shown a persistent lack of accountability both in his testimony at the hearing before the Committee, and more recently in his appeal letter to this Court...
Applicant’s history of misconduct and his refusal through this entire process to recognize that he acted inappropriately is concerning because it suggests that he will continue to misbehave in Vermont courts. Although the conduct that led to applicant’s disciplinary sanctions does not “involve either dishonesty or lack of trustworthiness in carrying out responsibilities,” they do “have a rational connection with [his] present fitness or capacity to practice law” and “relate to the state’s legitimate interests in protecting prospective clients and the system of justice.” V.R.A.B. § 11(b)(1) (Supp. 2013). Applicant has shown a clear pattern of disrespecting the court when he receives an unfavorable ruling, and then accusing the court of bias for calling out that misconduct. He has continued that pattern in this very appeal. Applicant’s inadequacy may be remediable, but his failure to demonstrate a genuine understanding of his problem, and to truly accept responsibility for his actions suggests that he learned little from his prior sanctions and is likely to continue to act inappropriately in Vermont courts.
Justice Dooley dissented
While I acknowledge that this case is close, and the Board performed a thorough and comprehensive analysis of applicant’s eligibility for admission, I would reverse the Board’s decision that applicant does not have the good moral character and fitness to be admitted to the Vermont bar. Four factors primarily prompt this dissent.
The first is what this case does not involve. While there are allusions to potential injuries to clients in the Board and majority decisions, this is not a case where applicant has failed to fulfill his professional obligations to his clients. Indeed, applicant represented a high volume of clients in Wisconsin with no apparent indication of client complaints. Nor, as the majority states, is there any indication that applicant is dishonest or untrustworthy. See ante, ¶ 46. Nor is there any indication that applicant is an incompetent lawyer. The cases in which applicant was found in contempt involve overzealous representation rather than inadequate representation. I emphasize this because I believe that the traits that are not in issue are generally more important than a risk of overzealous representation.
Second, the disciplinary body in Wisconsin imposed a relatively light sanction of a public reprimand for the conduct that led to the contempt citation in two of the cases. I do not condone contemptuous conduct, but we have only a limited understanding of the culture and circumstances in which the contempt citations arose. I am concerned that we are weighing the instances of misconduct more heavily than the evaluative body of the Wisconsin Judiciary which is much closer to the events and circumstances.
Third, my review of the record indicates that applicant has taken responsibility for the inappropriate tactics he employed that led to the contempt citations but continues to assert that the unfair treatment of his clients and the circumstances with which he was confronted required passionate zealous advocacy. This is a fine line, and in my view the difficulty in walking it has caused much of the Board’s and majority’s view that applicant continues to assert that what he did was proper.
I am more persuaded by the Washington Character and Fitness Board’s conclusion that: “Mr. Brittain seems to have better insight into his past and ways to avoid such misconduct in the future. He is maturing and accepting responsibility for his actions. Mr. Brittain and his witnesses have indicated he will no longer return to the behavior exhibited in 2008 through 2011.” There is some risk that applicant will again engage in the conduct that caused the contempt citations, but I do not believe he is “likely” to do so, the standard for determining good moral character. See V.R.A.B. 11(b)(1).
Finally, I am influenced by applicant’s passion for justice in an area of the law where we need more zealous and skilled advocates. In saying this, I am not endorsing professional misconduct or suggesting that we should lower character and fitness admission standards to admit passionate advocates. I am suggesting that we not confuse passion and zealous advocacy with character flaws.
The Wisconsin reprimand is linked here.
Predicting likely future risk to violate ethics rules is a tricky business. (Mike Frisch)
Monday, May 8, 2017
The Point Pleasant Beach incident
On June 26, 2007, respondent pleaded guilty in Point Pleasant Beach Municipal Court to municipal ordinance 3-21, prohibiting "Nudity, Indecent or Lewd Dress and Exposure," for which he was fined a total of $339 with costs.
From the police report
This officer observed a white male subject sitting at the corner of the bar in front of the dance area of the bar with his hand down his shorts and appeared to be masturbating. This officer observed him staring at a group of woman [sic] dancing on the dance floor as he did this. This officer also observed a couple of male bar patrons look at what this subject was doing and appeared alarmed, moving away from him. This officer also observed this subject take his hand out of ~his shorts when someone appeared to notice what he was doing, then put his hand back when the person moved away.
This officer approached this subject and requested to speak to him outside the main bar area. This officer spoke to this subject, who identified himself as Todd C. Sicklinger, in the walkway from the boardwalk to the Tiki Bar. This officer asked Sicklinger if he knew why I wanted to speak with him. He nodded his head stating that he knows that he shouldn’t have been masturbating in public like he was. He stated that he is going through a divorce and wanted to relieve some tension. Sicklinger apologized for his actions and asked if he could be given a warning.
A second incident involved lewdness charges at Connolly Station
At sentencing, respondent admitted that, on May 24, 2008, while at a Belmar restaurant and bar known as Connolly Station, he drank "a lot of vodka and a lot of beer" before acting "in an inappropriate manner which offended the people" around him. Respondent’s defense counsel characterized respondent’s action as "terribly inappropriate." The sentencing judge declined to "go into specifics but . . . [respondent has] represented . . . it won’t happen again."
Charges as a result
Within the jurisdiction of this court, perform a flagrantly lewd and offensive act by gratifying the sexual desire of defendant or any other person, knowing or reasonably expecting that the act was likely to be observed by a nonconsenting person who would be affronted or alarmed, specifically by grabbing his penis through his pants and starting to masturbate while on the dance floor at Connolly Station.
respondent appeared in Bradley Beach Municipal Court and pleaded guilty to the disorderly persons charge of lewdness...
This officer observed a male subject later identified as Todd Sicklinger walking south through the Quick Check lot. This officer observed Sicklinger’s right hand to be down the front of his pants and his hand to be stroking his penis as he was walking through the lot. Sicklinger then entered Quick Chek while masturbating. Sicklinger quickly exited the store and began walking east on Park Place Avenue. This officer then stopped Sicklinger at the 500 block of Park Place, for the observed violation. This officer asked for his identification and asked Mr. Sicklinger to have a seat on the curb. Mr. Sicklinger then yelled "[F***] You I will fight you now." This officer advised Mr. Sicklinger to relax and to keep his voice down. This Officer then observed that Mr. Sicklinger’s penis was still erect.
When two additional policemen arrived as backup, respondent began yelling "[F***] you guys, you are all fat" and, after removing his shirt, "squared off" against them. He continued to challenge them to fight, yelling "Let’s go all three of you, I will [f***] you up." Respondent was then placed under arrest for disorderly conduct and escorted to the patrol vehicle. The officers had difficulty securing respondent in the rear of the vehicle, as he refused to sit and attempted to kick them.
At Lake Como
On November 24, 2015, respondent pleaded guilty in Lake Como Municipal Court to "doing a lewd/offensive act," in violation of N.J.S.A. 2C:14-4a and was sentenced to two years of probation...
Within the jurisdiction of this court, perform [sic] a flagrantly lewd and offensive act by exposing his genitals for the purpose of arousing or gratifying the sexual desire of defendant or any other person, knowing or reasonably expecting that the act was likely to be observed by a nonconsenting person who would be affronted or alarmed, specifically by masturbating in front of 3 female subjects in the parking lot of Bar Anticipation.
Here, we determine to assess the sanction for respondent’s misconduct solely on the 2010 Bradley Beach lewdness conviction for masturbating in a Quick Chek parking lot. We considered the remaining three matters as aggravating factors, as follows.
The Lake Como lewdness conviction occurred in 2015, long after respondent’s New Jersey license to practice law already had been revoked. The Point Pleasant Beach and Belmar Borouqh incidents did not constitute criminal convictions. Because these matters involved violations of local ordinances, they cannot serve as a basis for imposing a sanction in a motion for final discipline.
We consider, however, in aggravation, that respondent has engaged in a pattern of inappropriate sexual behavior, as demonstrated by the Lake Como, Point Pleasant Beach, and Belmar Borouqh matters...
The four incidents here span a period of eight years, the last one occurring as recently as last summer. For respondent’s years-long pattern of inappropriate sexual conduct, and based on respondent’s seeming indifference to the seriousness of his actions, we determine that a three-month suspension is warranted.
Finally, we are mindful that the sanction imposed on respondent will not become effective unless and until heis reinstated to practice law in New Jersey. Nevertheless, should respondent ever seek reinstatement, we require him to provide proof of both sobriety and fitness to practice law, as attested by a mental health professional approved by the OAE.
Member Gallipoli voted for a one-year suspension with the above conditions. Member Singer voted to censure respondent, with the above conditions. Vice-Chair Baugh and Member Zmirich did not participate.
The Michigan Grievance Administrator filed charges against an attorney who had handled a criminal appeal but apparently failed to notice that a full day of the trial had not been transcribed.
According to the complaint, the client's conviction for manslaughter and second- degree child abuse was affirmed.
Eighteen months later
On or about November 19, 2013, Tuesday Watson, an acquaintance of Mr. Brown, contacted the Calhoun County Circuit Court stating that she had reviewed the trial transcripts but could not find certain testimony. This led to the court's discovery that the August 13, 2010 trial transcript had not been transcribed...
The trial transcript that was not transcribed contained, among other testimony, an argument of Mr. Brown's trial counsel that the court should pay for a medical expert witness, which was denied by the trial court.
As a consequence of not having the August 13, 2010 trial transcript, Respondent did not present the above-stated preserved issue on appeal.
The Michigan Innocence Clinic got the appeal reinstated
On or about February 23, 2017, Calhoun Circuit Court Judge Sarah Lincoln issued an opinion finding that Respondent's appellate representation was ineffective assistance of counsel in accordance with United States v Cronic, 466 US 648 (1984). Specifically, the court stated in its opinion, "Based upon the content of the missing transcript as well as the numerous references to the testimony during closing argument; it is inconceivable that Defendant's appellate attorney could have given this instant case even a cursory review without noticing that there were significant gaps in the record."
The complaint alleges lack of competence, failure to seek the client's lawful objectives and conduct prejudicial to the administration of justice. (Mike Frisch)