Thursday, April 9, 2015

Trial Court Cannot Order CLE As Litigation Sanction

The New York Appellate Division for the Third Judicial Department has held that a trial court lacks the authority to impose continuing education requirements as a sanction for litigation misconduct

current court rules do not permit a trial court to impose a sanction against an attorney in the form of mandated additional CLE requirements. The regulation permits courts to make appropriate awards of costs or impose "financial sanctions," but does not mention any nonmonetary types of sanctions (22 NYCRR 130-1.1 [b]). While Supreme Court has power and control over attorneys,  Judiciary Law § 90 [2]; Taub v Committee on Professional Stds. for Third Jud. Dept., 200 AD2d 74, 77 [1994]; see also Matter of Crockett, 120 AD3d 878, 880 [2014] [requiring attorney to complete additional CLE credits as part of disciplinary sanction]; Matter of Galvin, 87 AD3d 1223, 1223-1224 [2011] [same]). As Supreme Court did not have the authority to require Steele to complete additional CLE credits, we strike that portion of the order.

The litigation began as a suit for unpaid legal fees. (Mike Frisch)

April 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Walks Despite Ethics Violation

The District of Columbia Court of Appeals has held that a criminal prosecutor violated ethical obligations of disclosure under Rule 3.8 but nonetheless concluded that no discipline should be imposed.

The non-disclosure involved notes taken at the hospital in a drive-by shooting case. The report noted that the victim stated that he could not identify the shooter.

The prosecutor was aware of the document but did not disclose it.

This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility ("the Board"). The Board recommended that a 30-day suspension be given to Andrew J. Kline ("Kline") after finding that Kline violated Rule 3.8 (e) of the District of Columbia Rules of Professional Conduct ("Rule 3.8 (e)"). Rule 3.8 (e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused. Bar Counsel takes no exception to the Report and Recommendation of the Board. Kline argued, inter alia, that he did not violate Rule 3.8 (e) because his ethical duties are coextensive with the duties imposed under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Kline relies on the "material-to-outcome" standard recognized by the United States Supreme Court in Brady’s progeny to argue that a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial. We hold that Kline’s interpretation of Rule 3.8 (e), which incorporates a retrospective materiality analysis, is not the appropriate test for determining whether a prosecutor has violated Rule 3.8 (e). We also hold that Bar Counsel proved by clear and convincing evidence that Kline intentionally failed to disclose information in violation of the rule. However, we conclude that given the confusion regarding the correct interpretation of a prosecutor’s obligations under the rule, sanctioning Kline would be unwarranted.

The report was not turned over by the prosecutor at the first trial, which resulted in a mistrial. He left the office and the case was reassigned.

The new prosecutor turned the statement over to the defense. The defendant was convicted at the second trial.

 The conclusion

while clear and convincing evidence has been presented that Kline violated Rule 3.8 when he failed to turn over the Boyd Hospital Statement to the defense prior to trial, we are mindful of the fact that our comment to Rule 3.8 (e) has created a great deal of confusion when it comes to a prosecutor’s disclosure obligations under Rule 3.8. Indeed, the ABA issued a formal opinion on this topic and interpreted our comment to mean that Brady materiality, in the "material-to-outcome" sense, was required to find an ethical violation of Rule 3.8 (e)...

When we add in the testimony of an AUSA responsible for training that the U.S. Attorney’s Office did not provide any separate training on a prosecutor’s Rule 3.8 (e) disclosure obligations, and the argument by Kline that he understood a prosecutor’s ethical obligations to be coextensive with his obligations under Brady and that no violation of Rule 3.8 (e) can be found independent of a Brady violation, we must conclude that his understanding was wrong but it was not unreasonable, and that no sanction is warranted.

In so concluding, we are also taking into consideration no companion violations were charged, no allegations of dishonesty were made, the respondent has a clean disciplinary record, and similar conduct will incur sanctions comparable to that recommended by the BPR in this case now that this court has provided clear guidance on the scope of a prosecutor’s disclosure obligations under Rule 3.8.

The Board on Professional Responsibility had proposed a 30-day suspension.

Update: interesting commentary here from White Collar Crime Professors blog. (Mike Frisch) 

April 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

Sex And Blogging Gets Attorney Suspended

An attorney who had served as Cook County prosecutor was suspended without possibility of reinstatement for three years by the Minnesota Supreme Court.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Timothy Christopher Scannell has committed professional misconduct warranting public discipline, namely, committing two counts of fourth-degree criminal sexual conduct and making derogatory statements on his blog about criminal defendants that he was currently prosecuting, in violation of Minn. R. Prof. Conduct 3.6(a), 8.4(b), and 8.4(d).

Respondent waived his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), unconditionally admitted the allegations in the petition, and with the Director recommended that the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for 3 years.

Following receipt of the parties' stipulation for discipline, we issued an order directing the parties to file memoranda of law showing cause why respondent should not be subject to more severe discipline. Only the Director filed a memorandum in response to the order to show cause.

 The court has independently reviewed the file and approves the recommended disposition.

Details from the Duluth News Tribune

Scannell, 49, was convicted by a jury last July of two counts of fourth-degree criminal sexual conduct, stemming from his relationship with a 17-year-old girl.

He was subsequently removed from office by the Cook County Board of Commissioners, and served a 30-day jail sentence...

Scannell served nearly two full terms as Cook County's elected attorney. He was propelled into the spotlight in December 2011, when he was shot and seriously wounded by a man he had successfully prosecuted on sex crime charges.

However, it was just a year later that Scannell was accused of having a relationship with a 17-year-old girl, whom he coached and mentored. According to trial testimony, Scannell kissed the girl on numerous occasions and touched her sexually.

(Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Off Kill Devil Hills

The former attorney for the Town of Kill Devil Hills ("KDH") has been charged with violating his duty of confidentiality to KDH by executing a series of affidavits that disclosed protected information without the authority of his former client. 

The affidavits relate to an ongoing dispute between the  police officers and a judge, who also has been charged with ethics violations.

The judge has filed an answer to the charges.

The charges against the former town attorney are linked here and here.

The Outer Banks Voice reported on the attorney's dismissal from the town attorney position. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Heirs Unapparent

An attorney convicted of theft offenses has consented to disbarment in Pennsylvania.

From the charging document

This investigation was commenced as the result of an anonymous tip made to the Public Corruption Task Force of the Philadelphia District Attorney's Office regarding a person who was trying to steal real and personal property from the estate of an elderly woman who had recently passed away without heirs. As a result of our Grand Jury investigation, we uncovered a scheme to defraud the estate - and, in tum, the Commonwealth of Pennsylvania - that included eight individuals. The principals were Romanoff T. Quarles and his attorney, Andrew Kaufman, who used his position as an attorney at law to devise and execute the scheme. Others involved in disparate facets of the scheme were Vincent Marciano, a real estate agent who organized a sham sale of the estate's real property; Antoine Turay and Marvin Kimble, who are involved in the funeral home industry and created a false funeral bill that Kaufman then used in a court filing; and Damian Rivers, who was involved with an authorized title agent of the Pennsylvania Department of Motor Vehicles and permitted a sham sale of the estate's automobile.

The now former attorney's sentencing is scheduled for today. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Thanks For Sharing

An attorney who had shared fees with non-lawyers should be suspended for six months, according to a recent recommendation from an Illinois Hearing Board.

The board rejected the Administrator's call for disbarment as well as the attorney's request for a non-suspensory sanction.

There was mitigation

According to the testimony of multiple witnesses,  during the period at issue in the Complaint, there were a number of problems in  the manner in which Respondent's office operated. The environment was loosely  structured, there were problems with support staff and there was a lack of good  organization. There were delays receiving incoming communications and getting documents into the proper files. (Tr.  287-88, 304, 354-55, 665-66). Attorneys were not required to track their time  spent on client matters and often did not do so. (Tr. 316-17, 353-54, 655-56).  Many of Respondent's associates were young attorneys, and there was substantial  turnover. (Tr. 469, 665-66). Attorneys within the firm had significant  disagreements over the manner in which cases should be handled. (Tr. 312-14,  661-62, 667). Caseloads grew significantly, within a short period of time, which  contributed to the lack of good organization, particularly in the Chicago  office. (Tr. 344-45, 354, 356, 467).

A number of witnesses testified Respondent  recognized things were not working well and took steps to correct the problems  in his office. Those steps included hiring a business coach, with whom  Respondent began working in October or November 2011. In the third or fourth  quarter of 2011, Respondent implemented a computerized case management system.  In addition, the firm instituted a policy to insure regular, documented  communication with clients by the attorney assigned to the file and a system to  verify whether these contacts were being made and documented. (Tr. 601-603, 616,  636-37, 660-61, 705-706).

Respondent's office manager, Antonio Rebolledo,  explained in detail the steps taken to improve the functioning of the office.  Rebolledo considered Respondent committed to the various changes. In Rebolledo's  opinion, Respondent took his responsibilities to clients seriously and things  had improved significantly. (Tr. 608-24). Other witnesses also testified the  changes caused the office to become more organized. (Tr. 355, 665-67).

The business coach, Christine Fiorillo, worked  actively with Respondent until March or April 2013. Fiorillo testified in detail  about the problems she saw initially and the changes she considered important.  Fiorillo testified Respondent supported her efforts and implemented multiple  changes, including the case management system, better record-keeping practices  and greater controls. There were significant personnel  changes in the Chicago office. Fiorillo also described problems related to the  accounting side of Respondent's practice and the manner in which those problems  were addressed. (Tr. 705-38).

Respondent's own testimony showed he recognized the  office had not been run well. He hired Fiorillo and followed her suggestions.  (Tr. 808-14). According to Respondent's testimony, the office was no longer  having the problems present before. (Tr. 814-15).

Respondent testified to his motivation in helping  people in his practice. (Tr. 765-67). Fiorillo described Respondent as a person  with a huge heart, who wanted to fight for the little guy.

The board concluded that the Administrator had failed to prove a number of charged ethics violations. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Fine Line

A private admonition for trust account violations was imposed by the Vermont Supreme Court, based on its conclusion regarding the attorney's mental state

We agree with the hearing panel, particularly given this fine line between mental states and the seriousness of imposing suspension or public reprimand over private admonition.  Although we treat violations of trust account rules seriously, the ABA Standards provide no indication that client trust account violations are subject to a different analysis.  And we decline to conclude that any time an attorney should have known his conduct violated the rules, because he is charged with comprehensive knowledge of the content of those rules, that he presumptively will be suspended.  In Fink, we differentiated between mental states in defending against violations and mental states as applied to sanctions.  2011 VT 42, ¶ 41.  We stated that “knowing conduct does not encompass both knew or should have known” because “[i]f the definition extended to constructive knowledge then no misconduct would be negligent.”  Id. (quotation omitted).  We explained that “while a lawyer’s good faith, but unreasonable, belief that his actions are not misconduct is not a defense to a violation, such an error can be a factor in imposing discipline.”  Id.  We agree that under the Fink analysis the presumptive sanction in this case is a public reprimand.

 In reaching this conclusion, we also note that the potential injury to the client is less severe than in Farrar.  Although any mishandling of client property is serious, we consider that attorney took pains not to commingle funds by creating separate subaccounts for distinct purposes and keeping careful, detailed records of each account to ensure no client funds were confused with his personal funds.  In Farrar, on the other hand, the attorney’s bookkeeper transferred money back and forth between the business and client trust accounts, directly commingling the funds.  2008 VT 31, ¶ 3.  The potential that client funds would be used for nonclient related purposes was far greater there than here.  Based on attorney’s mental state, the lack of actual injury, and the low potential for injury, we conclude that public reprimand is the presumptive sanction.

With public reprimand the starting point, we consider whether the mitigating factors reduce the appropriate sanction from public reprimand down to private admonition.  As Disciplinary Counsel recognized, attorney took additional affirmative steps in hiring a CPA at his own expense, ordering bank and court records, and diligently tracking every irregularity going back to the opening of his IOLTA account in 1997.  His personal investigation far exceeded that of Disciplinary Counsel, resulting in details of violations and irregularities that Disciplinary Counsel would not have uncovered.  He disclosed far more information than was required, including several bookkeeping errors and other irregularities that already had been remedied.  Attorney’s extensive efforts go beyond what was required of him and weigh heavily in our consideration of mitigating factors.

We also add to the scale several other mitigating factors stipulated to by the parties: absence of a prior disciplinary record, lack of selfish or dishonest motive, presence of personal problems, positive character and reputation, presence of physical disability, and remorse.  The only aggravating factor is attorney’s thirty years of experience.  The weight of the mitigating factors over the aggravating factors is far greater than in Farrar, 2008 VT 31, ¶ 12, and merits a reduction in sanction.

Judge Robinson concurred with misgivings

I fear that the Court’s holding in this case will have the unintended consequence of reducing the presumptive sanction to public reprimand in the vast majority of cases involving improper dealings with client property.  I have no doubt that the vast majority of lawyers who maintain their trust accounts in a way that violates the rule against commingling do not realize that their practice violate the rules.  But I can imagine a wide range of practices that we would agree a lawyer should know violate the rules.  If we read the “should know” prong out of the description of the presumptive sanction in § 4.12, then we are essentially setting up ignorance of the applicable ethical rules as a defense (or at least a mitigating factor) in a disciplinary proceeding arising from a violation of those rules.  This approach undermines the ability of the Board of Professional Responsibility and this Court to ensure compliance with the rules, and can only undermine public confidence in our effective regulation of the bar.

Judge Durkins joined the concurrence. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Employment Of Disabled Client Leads To Conviction And Stayed Suspension

A stayed suspension of six months was imposed by the Ohio Supreme Court as a result of an attorney's misdemeanor conviction for complicity in workers compensation fraud.

Grubb represented Tracie Lytle in workers’ compensation matters from 2004 through 2010. Between February and July 2007, Lytle collected temporary-total-disability benefits, as one of her doctors determined that she was unable to work. During that six-month period, however, Grubb also provided funds to Lytle. For example, Grubb reimbursed Lytle for mileage to attend court hearings and doctor’s appointments and to take Grubb’s mother out to lunch. Additionally, Grubb assisted Lytle in refunding overpayments from the Bureau of Workers’ Compensation. Grubb testified that during this time, Lytle did not have enough money to attend hearings or even to pay for food.

At some point thereafter, the bureau received an allegation that Grubb was improperly employing Lytle while she was collecting temporary-total disability benefits, and the bureau commenced an investigation. Prior to being charged with any crime, Grubb entered into a plea agreement with the Ohio Attorney General’s office, in which she agreed to plead guilty to complicity to commit workers’ compensation fraud, a first-degree misdemeanor. She also paid the bureau $7,709.92 in restitution, which represented the amount of benefits that Lytle had collected during the six-month period at issue, and an additional $6,731.55 for bureau investigation costs. On January 28, 2013, Grubb was charged with the misdemeanor count in the Franklin County Municipal Court. She pled guilty and was convicted on that same day. The court imposed a $500 fine.

The court considered a number of mitigating factors. The attorney must commit no further ethics violations during the stayed period of suspension. (Mike Frisch)

April 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 7, 2015

Discovery Issues Require Remand

The Ohio Supreme Court has remanded a disciplinary case that involves allegations of billing misconduct.

The allegations involve five billings to three nursing home clients.

Relator alleged that while Smith was employed by a law firm, Weston Hurd, he billed as his own for work that was performed by another attorney at the firm, billed time in excess of the time actually spent on a particular task, billed for work that was never performed by anyone at the firm, and billed time to multiple cases and clients for identical services and time on the same day. A probable-cause panel of the Board of Commissioners on Grievances and Discipline certified relator’s complaint to the full board.

Smith answered the complaint. As his primary affirmative defense, he alleged that his clients had requested and approved generic billing narratives that could be assigned to one of seven litigation phases and deducted from a preapproved budget without disclosing the specific action that he took on his client’s behalf. He claimed that this billing method was necessary to protect his clients against punitive-damages awards that might arise from violations of the Ohio Nursing Home Patients Bill of Rights, codified at R.C. 3721.10 et seq. He further alleged that he was unable to fully defend himself against relator’s complaint because much of the evidence he needed to do so was protected by attorney-client privilege, which the affected clients had not fully waived, and also because his former firm had prevented him from accessing documentary evidence essential to his defense.

The court expressed concern about discovery issues

Given the nature of Smith’s longstanding and consistent defense of the charges against him, we are alarmed by the conspicuous absence of documentary or testimonial evidence regarding the actual content of the online databases with respect to the five cases at issue—evidence that in all probability would serve to either confirm or discredit Smith’s claims. While the record shows that the affected clients or their third-party administrators used online databases to transmit and store pleadings, correspondence, billing, and other documents related to the clients’ underlying actions, the testimony of the witnesses with access to those databases suggests only that the content of those databases should, theoretically, mirror the content of Weston Hurd’s hard file. Therefore, in the interest of justice, we remand this cause for further discovery and hearing.

(Mike Frisch)

April 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

It's a Puzzlement: The First Hiccup

An attorney who was suspended in 2012 for his failure to comply with a fee arbitration determination failed to file the affidavit required of suspended attorneys and did not respond to the ensuing investigation.

As a result, he was censured by the New Jersey Supreme Court.

The Disciplinary Review Board was puzzled

Respondent’s lack of attention to his obligation to file the R~ 1:20-20 affidavit is somewhat puzzling, considering that he has been practicing for twenty-five years, without so much as a disciplinary "hiccup." Not only did he not file the necessary affidavit, but he defaulted in this matter. Like attorneys Terrell, Saint-Ceyr, and Sirkin, who had no history of final discipline, failed to file the required affidavits, following a temporary suspension, and then defaulted in the disciplinary matter that ensued, respondent, too, should receive a censure. We so determine.

The case is In re Robert Vreeland and can be found at this link. (Mike Frisch)

April 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, April 6, 2015

Contract Of Adhesion

An attorney disciplined in Indiana for a contractual provision that limited an associate's post-employment ability to practice was reprimanded as reciprocal discipline by the Kentucky Supreme Court.

The misconduct at issue in this disciplinary action arises from an employment contract Respondent required his new associate attorney to sign as a condition of his hiring. The contract included a "Separation Agreement" (the "Agreement"), which specified that in the event the employment relationship ended, the associate was prohibited from contacting, notifying, or soliciting the clients he obtained while working at Respondent's law firm. Only Respondent had the luxury of notifying the clients of the associate's departure. The Agreement further included a fee arrangement which highly deterred the associate from continuing to represent those clients.

The associate filed the bar complaint in Indiana.

The court rejected private discipline. (Mike Frisch)

April 6, 2015 in Bar Discipline & Process, Law Firms | Permalink | Comments (0) | TrackBack (0)

Speaker Of The Big House

A former Rhode Island Speaker of the House has consented to disbarment.

The Providence Journal reported

It's been a bad week within an already bad year for former Rhode Island House Speaker Gordon D. Fox.

A day after Rhode Island College rescinded the honorary degree it had bestowed on Fox in 2010, the Rhode Island Supreme Court Thursday disbarred the ex-Providence lawmaker as a result of his guilty plea to federal corruption charges.
According to an order issued by the Supreme Court, Fox consented to disbarment in an affidavit filed with the court's Disciplinary Board March 16, two weeks after admitting to accepting bribes and using campaign funds for personal expenses as part of his plea agreement with prosecutors.
The New York Times had coverage of the criminal case.
(Mike Frisch)

April 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Dormant Stage Detected By Random Audit

The New Jersey Supreme Court has reprimanded an attorney as a result of irregularities detected in a random audit of his trust account.

As found by the Disciplinary Review Board

Respondent admittedly left small balances in the law firm trust account, representing undisbursed settlement proceeds from eighty old, closed personal injury matters. The OAE detected these balances during a random audit.

The funds were held on account either for clients who never claimed their share of settlement proceeds or for third party medical providers whose bills respondent intended to negotiate downward for his clients. Of the eighty cases, the OAE highlighted five client matters.

Respondent admitted that the balances existed, that they had remained in the trust account for  claimed that problems locating "transient" clients and clients with "immigration status" issues led  locate clients, and that some of them had surfaced years later looking for their funds, he produced no evidence that the law firm had made continuing efforts to find clients after the first few years that their matters had been closed. In three of the five matters highlighted at the DEC hearing, respondent’s office easily located the clients and returned their funds, after the OAE directed respondent to make such an effort. Those funds lay dormant in respondent’s trust account for fourteen years in Thomas; thirteen years in Hunter; and seven years in Jimenez. Respondent explained that he left the balances in the trust account for the benefit of his clients, claiming that many times, the funds at issue were escrowed pending negotiations instances, the funds belonged to clients who could not be located. Respondent’s office tried to locate clients for the first few years after their matters settled, but did nothing thereafter. As seen above, balances languished for more than a decade in some instances.

Lamentably, New Jersey has made it harder for unsophisticated bloggers such as yours truly to link to its bar decisions.

The case is In re Agrapidis. (Mike Frisch)

April 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, April 4, 2015

Attorney Suspended For Refusing Mental Health Evaluation

From the web page of the Florida State Bar

Janice L. Jennings, P.O. Box 103, West Palm Beach, suspended for 91 days, effective immediately, and indefinitely thereafter, until she complies with the terms and conditions set forth in a Feb. 19 court order and demonstrates rehabilitation. (Admitted to practice: 1985) Jennings refused The Florida Bar’s request that she schedule a mental health evaluation with Florida Lawyers Assistance. The request came after the Bar learned of a written filing and statements in which Jennings advised the court, among other things, that her former employer had caused the implantation of a microchip in her left ear that was designed to harm and disrupt her ability to function. (Case No. SC14-1218)

The Tampa Bay Times reported on the situation in June 2014

A June 16 Times article showed that she had been telling federal judges for more than a decade that she was the victim of mind control and torture, with no apparent effect on her license to practice law...

It was during a May 16 hearing for one of those cases that Jennings told [United States District Court Judge Richard] Lazzara she believed opposing counsel John W. Campbell had tortured her by using a microchip illegally implanted in her brain.

Filings in the matter are linked here. (Mike Frisch)

April 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Three Incidents Lead To Job Loss And Reprimand

The Tallahassee Democrat reports a recent disciplinary sanction from the Florida Supreme Court

The Supreme Court reprimand of a civil litigation attorney in the Office of the General Counsel of the Florida Department of Transportation comes after three separate cases included in a Florida Bar complaint.

Adam J. Ellis was fired after he received an email from FDOT General Counsel Tom Thomas dated Tuesday, the same day the Court released a discipline report of him and 27 other Florida attorneys.

"Your services as an attorney in the Office of the General Counsel are no longer needed and you are being removed from your Selected Exempt Service position effective immediately," the email said.

The Supreme Court placed Ellis on a three-year probation after he pleaded no contest to assault and harassment charges in Oregon, according to a news release from the Florida Bar's Department of Lawyer Regulation.

When the Court reprimand was announced, the Florida Bar's website was undergoing maintenance, making the discipline documents unavailable.

Documents show Ellis reported to the Bar that in March 2010 he had been involved in a personal marital dispute that resulted in charges of assault constituting domestic violence and harassment in Portland, Oregon, which he pleaded no contest to.

Ellis was ordered to enroll in domestic violence intervention counseling, serve 48 hours of community service. Once completed, the charges were dropped by the State of Oregon, according to court records.

In his response, a filing by Ellis's attorney said he entered the no contest plea as a "'plea of convenience,' not as an admission of guilt."

"(Ellis) engaged in criminal misconduct that reflects adversely on his fitness as a member of the legal profession," the complaint states. Ellis denied having engaged in criminal conduct.

The Supreme Court reprimand is also related to a 2011 complaint against Ellis arising from an incident with an assistant state attorney in Pensacola.

While working as an assistant public defender in Pensacola, Ellis approached the woman at a Pensacola restaurant and showed her a photo shopped image of herself with an exposed genital organ outside her mouth, court records show.

He paraded around the room continuing to show the doctored photo to other attorneys as a "joke," court records say.

"Respondent engaged in conduct prejudicial to the administration of justice involving sexual harassment that adversely reflects on his fitness to practice law," the complaint states.

The assistant state attorney filed a complaint with the Florida Bar following the incident after which Ellis wrote an apology letter.

Ellis' reply indicates his "conduct falls squarely within the protected speech guarantee by the First Amendment."

Also considered in the reprimand is a March 2012 arrest and charges of disturbing the peace after a noise complaint by his Escambia County neighbor. Ellis was terminated from the public defender's office after the arrest.

An ECSO deputy made contact with Ellis, who refused to turn down the music "challenging the deputy to go ahead and give him a citation," court records show.

The deputy returned when the neighbor called again and reported the music had been turned up louder than before and Ellis was arrested.

The case was not prosecuted after Ellis entered into a deferred prosecution agreement. His reply said he was illegally arrested.

Ellis in an email said the no contest plea was contingent on entering into a diversion program in which the charges against him would be dismissed.

"I entered a plea of no contest, not a plea of guilty, and I have always maintained my innocence regarding these charges," Ellis wrote.

(Mike Frisch)

April 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

CLE While Intoxicated Leads To Suspension

Virginia Lawyers Weekly has this rather remarkable story 

A lawyer accused of being intoxicated and disruptive at a Continuing Legal Education program last year has been suspended for six months and ordered to enroll in a two-year treatment and monitoring program.

Witnesses accused Reston attorney Wayne R. Hartke of sleeping and loudly snoring during the morning part of the seminar and then yelling at a video screen during the afternoon session, according to charges brought by a Virginia State Bar panel.

Hartke was led from the seminar room by another attendee, according to the ethics charges brought by a disciplinary subcommittee in September. An observer said he smelled of alcohol and had a bottle of liquor among his belongings, the subcommittee said.

In an interview with a VSB investigator, Hartke denied he had been intoxicated, the panel said.

The VSB Disciplinary Board imposed the six-month suspension at a March 27 hearing, according to a summary order from the board.

Under the board’s terms, Hartke was ordered to enroll in Lawyers Helping Lawyers for two years and comply with all of the organization’s terms and conditions. Any notice of noncompliance would result in an order to show why his license should not be suspended for an additional three years.

Hartke was reprimanded by the VSB in 2010 after settling a legal malpractice lawsuit accusing him of failing to protect the interests of individual directors of a corporate client.

Hartke was reprimanded again in 2011. Among the allegations was a 10-day Fairfax County jail sentence for contempt of court. Hartke’s blood alcohol content was measured at .127 during a court appearance, the VSB order said.

Lawyers Helping Lawyers is a 30-year-old assessment, referral, monitoring and support program helping lawyers address addiction and mental health issues.

A prior reprimand with terms is linked here. 

Thanks to Alan Kabat for sending this. (Mike Frisch)

April 3, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

No Notice Of Theft Charges: No License Revocation

The Iowa Supreme Court rejected the license revocation recommendation of its Attorney Discipline Board and suspended an intellectual property attorney for not less than six months. 

The court concluded that the attorney was not placed on proper notice of conversion charges.

The Board brought a three-count complaint against Cepican alleging various violations of the Iowa Rules of Professional Conduct involving his actions with three clients. Each count in the complaint involved a different client, and the evidence at the hearing showed Cepican caused substantial heartache and harm to each of them. In the first count, Cepican represented a client to secure a patent for an invention involving a toy. Over time, he neglected to perform certain legal services and failed to adequately communicate with the client. After the client brought a complaint against him, Cepican failed to reply to the Board on numerous occasions.

The two other counts in the complaint also involved neglect of client matters. One of the counts involved a complex scientific invention by the client. The neglect by Cepican was serious enough for the United States Patent and Trademark Office (USPTO) to issue notices of abandonment of the patent application of the client. The conduct by Cepican in this and other cases eventually led to a default judgment excluding him from practicing before the USPTO.

The notice issue

In this case, the allegations in the complaint did not provide adequate notice to Cepican that he faced a claim of misconduct in the nature of theft that would support revocation of his license. The complaint only alleged he obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned. Cepican admitted, as required by the commission’s sanction, all the allegations in the complaint, but the possibility that he faced a revocation of his license to practice law was not raised until the conclusion of the hearing. Thus, his conduct in failing to respond to the complaint cannot be deemed a waiver of his right to contest the allegations of theft. Under the circumstances, Cepican did not have a fair opportunity to know the issue of theft was in play and to produce evidence to show he had a future colorable claim to the retainer. This defense is established by evidence the attorney had a good-faith intent to perform the work even when the attorney failed to perform enough of the work to exhaust the retainer.

The attorney had indicated that he no longer desired to practice law. (Mike Frisch)

April 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

PS: Pay The Lien

An attorney who failed to protect the interests of a company that had loaned his client money in exchange for payment from the proceeds of a personal-injury settlement has been reprimanded by the Wisconsin Supreme Court.

The client was the attorney's first cousin

In July 2006, [client/cousin] M.F. sought financial advice from Attorney Mitz.  Attorney Mitz arranged for two loans totaling $2,500 each from Attorney Mitz's father and uncle, respectively.  The loan proceeds were put into Attorney Mitz's trust account.  M.F. also applied for a loan from PS Finance for the amount of $8,000.  Attorney Mitz helped M.F. with those loan documents and notarized a number of documents, including an "Attorney Acknowledgement of Explanation of Terms to Plaintiff, of Revocable Lien and Assignment to Pre-Settlement Finance, LLC."

In May 2007, a settlement was reached with J.J.'s insurer, Badger Mutual Insurance, in the amount of $100,000.  Attorney Mitz promptly used a portion of the settlement proceeds to repay M.F.'s loans from Attorney Mitz's father and uncle.  Attorney Mitz failed to notify PS Finance of the settlement.

Between May 2007 and November 2008, Attorney Mitz distributed the remainder of the settlement proceeds, without any payment to PS Finance.

In February 2009, PS Finance learned that M.F.'s personal injury case had settled.  Through a series of conversations and emails made part of the underlying record, Attorney Mitz claimed that he hadn't received the settlement proceeds and that he was still trying to put numbers to the proper disbursements from the settlement, among various other excuses.  In October 2011, Attorney Mitz informed PS Finance that settlement proceeds were in his trust account but that no one had yet been paid.  Attorney Mitz claimed he would fax a letter to PS Finance confirming that the settlement funds were still in his trust account.  PS Finance never received the promised letter.

Eventually, in February 2012, PS Finance filed a grievance with the OLR.  In response to the OLR's inquiries, Attorney Mitz stated that he "first became aware that the loan had in fact been closed and the existence of PS Finance's claimed lien in 2008, after the settlement with Badger Mutual."  In August 2013, Attorney Mitz sent PS Finance a check in the amount of $11,637, the full balance due on the loan. 

The attorney was admitted in 1973 and has no record of prior discipline. (Mike Frisch)

April 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, April 2, 2015

Unsweet Home Alabama

The District of Columbia Court of Appeals will hear oral argument in a reciprocal discipline case next Thursday involving an Alabama disbarment

Thursday, April 9, 2015 9:30 AM

Associate Judges Fisher and Easterly; Senior Judge Ruiz

No. 14-BG-0005


My analysis of the case from a June 2014 post

The District of Columbia Board on Professional Responsibility (BPR) has recommended that an attorney who was disbarred in Alabama be suspended for 90 days with fitness as reciprocal discipline.

The case is a very hard one given a host of factors. It is complicated by the precedents relating to an attorney's failure to participate in reciprocal discipline proceedings.

The attorney was admitted in D.C. in 1986 and had no prior discipline in either Alabama or D.C.

The disbarment involved her conduct during a single state court criminal trial.

The Alabama order (which I have been unable to find on line) quotes from the transcript extensively. The attorney may well have crossed the often difficult to discern line from zealousness to argumentative, but no more so than I have frequently seen in hotly-contested criminal and civil trials.

The trial court found the attorney in contempt and declared a mistrial.

After the trial, the attorney made a comment to a television station "that there was an intolerance by white judges to show respect to black attorneys and that the judge was embarrassed by all the lies the State told during the trial."

The prosecutor filed the bar complaint.

After the Alabama disbarment, the attorney sued a host of defendants including the Alabama Supreme Court.

The suit was dismissed on immunity grounds.

The Alabama State Bar Disciplinary Board found that the attorney's accusation against the judge violated Rule 8.2.  D.C.did not adopt that rule.

Further, the Alabama Board found that the attorney had a "dishonest and selfish motive" in the misconduct.  To me, that finding is nonsense.

This order of the Alabama Supreme Court provides some procedural details.

The reciprocal matter is complicated by two facts: the attorney defaulted and has been suspended for non-payment of D.C. bar dues since 1987.

When an attorney defaults in a reciprocal matter, the court has held (in  case I argued) that the Board's review should be a cursory one "to prevent an obvious miscarriage of justice."

Here, Respondent did not object to the imposition of identical reciprocal discipline-indeed, he took no part in the proceedings.

  Given this posture, we think the role of the Board should be a limited one.   The most the Board should consider itself obliged to do in cases where neither Bar Counsel nor the attorney opposes imposition of identical discipline is to review the foreign proceeding sufficiently to satisfy itself that no obvious miscarriage of justice would result in the imposition of identical discipline-a situation that we anticipate would rarely, if ever, present itself.

The D.C. Court of Appeals imposes summary reciprocal discipline unless someone objects. Here, the court took the unusual step of seeking the Board's views absent any objection.

The Board made the miscarriage of justice finding. Two Board members dissented. The dissent makes some excellent points: the attorney has not paid D.C. bar dues for over 25 years "evincing no interest in remaining a member of this bar" and had not advised D.C.of the Alabama sanction.

The Board is clearly correct (did I write that?) in concluding that contumacious conduct in a single trial would not result in severe discipline in an original matter. I also agree that disbarment as reciprocal discipline is so disproportionate to the misconduct as to shock one's conscience.

While the default is troubling, disbarment in this case is more so.

The Board recommendation may be found at this link by entering the name Sherryl Goffer. The   Alabama order was under the name Sherryl Caffey.

Also, as a blogger who surfs state court and bar web pages for disciplinary orders, I would rank Alabama as the very worst jurisdiction  in terms of online transparency. Lack of transparency (which is not limited to Alabama) makes me wary of any disciplinary regime. If anyone knows how to find Alabama disciplinary orders on line, please educate me.

District of Columbia Bar Counsel supports disbarment.

As an assistant bar counsel, I argued many times in opposition to a downward departure from identical discipline recommendation by the BPR. My position was premised in the idea that the Board often inappropriately either minimized the misconduct found or second-guessed the disciplining tribunal's sanction.

Here, the Alabama proceedings just give me pause that I rarely, if ever, have felt in a reciprocal matter.

I predict that the Court of Appeals will not impose such a harsh sanction. Stay tuned.

I predict that it will be a very unpleasant experience for the Assistant Bar Counsel who argues this case. 

See you there, I hope. (Mike Frisch)

April 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Lawyering While Stoned

Also from the California Bar Journal

GERARD BRENNAN HARVEY [#152669], 53, of Bishop, was suspended from the practice of law for 90 days and ordered to take the MPRE and comply with Rule 9.20 of the California Rules of Court. He was also placed on two years’ probation and faces a two-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect Nov. 21, 2014.

In April 2013, Harvey pleaded guilty to being under the influence of and in possession of a controlled substance. The charges stemmed from an incident in March 2013, when Harvey was in court waiting for his matter to be called, and a bailiff noticed he appeared to be under the influence of a stimulant. After Harvey told him he was fine, just tired, he was allowed to finish his matter in court. However, the bailiff, afraid he might try to drive, contacted an investigator who gave him a narcotics evaluation and determined he was under the influence. A urine sample came back positive for methamphetamine and marijuana.

Harvey later admitted he lied to the bailiff when he told him he had tested clean for drugs the morning of the incident and also admitted to handling several matters in court while he was high on meth. However, the State Bar Court found that no clients were harmed as a result.

In mitigation, Harvey had no prior record of discipline and was experiencing extreme emotional and physical difficulties, including a history of substance abuse, as well as financial stress at the time of his misconduct.

(Mike Frisch)

April 2, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)