Wednesday, April 20, 2016

Preponderance Standard Applies In Utah Bar Discipline

The Utah Supreme Court has held that the Bar must establish misconduct by a preponderance of evidence.

The attorney was found in violation of Rule 8.4(b) for tax offenses.

 The Office of Professional Conduct (OPC) of the State Bar thereafter charged Steffensen with violating rule 8.4(b) by committing these tax-related offenses. In the district court proceedings on these charges, the court found that OPC had established a violation of rule 8.4(b) by a preponderance of the evidence. It also acknowledged, in response to Steffensen’s argument that a violation of rule 8.4(b) could be established only upon proof beyond a reasonable doubt, that OPC had not proven Steffensen’s criminal acts by that criminal standard of proof. Because the court concluded that the preponderance of the evidence standard applied, however, it held that OPC had carried its burden of establishing a violation of rule 8.4(b).

The court

 We affirm. The question presented finds a clear and explicit answer in our rules. The Utah Rules of Lawyer Discipline and Disability expressly prescribe the applicable standard of proof...

 Lawyers and litigants are free to seek an audience with one of our advisory committees if they wish to advocate for an amendment to our rules. Those committees consider such requests on a regular basis. And our process for striking the best procedural balance—for affording a fair opportunity to be heard without bogging down the system with too much procedure—is ongoing. We do not foreclose the possibility of adopting a higher standard of proof on a charge of a ―criminal act‖ in a proposed amendment to our rules in the future.

But we see no basis for effectively amending our rules in the course of this adjudicative proceeding. Rule 14-517 speaks with straightforward clarity. It prescribes a preponderance standard for all ―[f]ormal complaints of misconduct.‖ And we see no room in the straightforward terms of the rule for the adoption of a higher standard of proof on a charge of ―criminal act‖ under rule 8.4(b) of the Utah Rules of Professional Conduct.

Nor do we see a basis for overriding those clear terms on due process grounds. Steffensen makes no effort to tie his challenge to the preponderance standard to any traditional, established tenets of due process.

(Mike Frisch)

April 20, 2016 in Bar Discipline & Process | Permalink | Comments (1)

No Good Deed Goes Unpunished

A reprimand has been imposed by the Ohio Supreme Court of an attorney admitted in 1975

disciplinary counsel, charged [attorney] Bond with multiple violations of the Rules of Professional Conduct after he provided financial assistance to a man whom he believed to be a client but who was actually a thief.

Because the thief was not a client

We find that Bond violated Prof.Cond.R. 8.4(a) by loaning money to a person whom he believed was his client and therefore adopt the board’s findings of fact and misconduct, dismiss the remaining alleged violations, and agree that a public reprimand is the appropriate sanction for Bond’s misconduct.

The story

On February 18, 2014, Bond filed a report with the Chardon Police Department alleging that he had received a phone call earlier that month from Patrick Paul Heald, who stated that he had been referred to Bond to discuss his personal-injury case. Bond reported that when he met Heald at a diner in Willoughby, Ohio, on February 3, 2014, Heald’s right arm was bandaged and he was limping. Heald claimed that he had been badly burned in an industrial accident and requested financial assistance to pay for medication and living expenses until he received his next paycheck. Later that day, Bond entered into a contingent-fee agreement to represent Heald in his personal-injury matter. He also had Heald sign a photocopy of seven $100 bills with the notation, “Temporary loan of $700.00 cash advanced 2/3/14 by Daniel E. Bond to Patrick Paul Heald,” and then gave him the cash and a check for $1,300. Heald did not repay the loan as agreed and made excuses for his failure to do so.

After receiving a telephone inquiry from another man seeking representation in a personal-injury matter, Bond reported these facts to the Chardon Police Department. Heald was indicted and convicted of theft, for which he was sentenced to eight months in prison and ordered to pay restitution of $2,000 to Bond.

The court followed the recommendation of the Board of Professional Conduct.


O’NEILL, J., dissents and would dismiss the complaint.

(Mike Frisch)

April 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Indefinite Suspension For Addicted Lawyer's Guardianship Thefts

Dan Trevas has a summary of a recent bar discipline case on the web page of the Ohio Supreme Court

The Court first suspended Thomas’ license in July 2014 when he was convicted of two counts of theft and one count of theft from the elderly, which were felonies he committed while serving as a court-appointed guardian. He also was convicted of three misdemeanor counts of falsification.

Thomas, who served as the guardian for four individuals, pleaded no contest to the theft of thousands of dollars from them and for attempting to conceal the thefts by filing false inventories with the Preble County Probate Court. He was sentenced to 4½ years in prison and ordered to make $208,095 in restitution, the largest award being $115,112 to one of the clients.

Based on the crime, the Office of Disciplinary Counsel charged Thomas with multiple violations of the rules governing attorneys, and the Board of Professional Conduct conducted hearings based on the claims. The board found Thomas, who was first admitted to practice in 2001, violated several rules including the prohibition of a lawyer committing illegal acts; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; knowingly making a false statement of fact or law to a tribunal; and knowingly offering evidence that the lawyer knows to be false.

In considering the sanctions, the board found Thomas acted with a dishonest or selfish motive by using the money he misappropriated from his clients to maintain an addiction to ephedrine and to compensate for the loss of legal practice income as a result of his addiction. The board also noted that he engaged in stealing client money and trying to conceal it with false filings for more than six years.

The board learned that one client owed more than $115,000 settled for $89,000 paid by Thomas’ professional-liability insurer and that Thomas’ father agreed to pay the other clients up to $18,000 over the next two years. In its unanimous per curiam opinion, the Court noted that Thomas owes those other clients more than $90,000, and that he has made no effort to compensate the victims.

The Court imposed the indefinite suspension with six conditions that Thomas would have to meet to be considered for reinstatement that include: completing his incarceration; paying full restitution to all clients; complying with the terms of his probation; completing an Ohio Lawyers Assistance Program (OLAP) substance-abuse program and addiction-treatment program; signing an OLAP recovery contract for a term determined by OLAP; and being in full compliance with all treatment recommendations.

The court's opinion is linked here. (Mike Frisch)

April 20, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Reprimand For Rubber Stamp

The South Carolina Supreme Court has publicly reprimanded an attorney

We now clarify that an attorney's duty to oversee the disbursement of loan proceeds in a residential real estate transaction is nondelegable. To fulfill his or her duty, the attorney must ensure: (a) that he has control over the disbursement of loan proceeds; or (b) at a minimum, that he receives detailed verification that the disbursement was correct. In practice, an attorney may find that utilizing his own trust account and disbursing the funds himself provides the most effective means of fulfilling this duty. We stand by our decision in Richardson, however, and do not require that the funds must pass through the supervising attorney's trust account. See id. Therefore, we also find an attorney's verification of proper disbursement, via sufficient documentation or information received from the appropriate banking institution—in addition to the disbursement log itself—to be acceptable in fulfilling his duty to oversee the disbursement of funds.

In essence, Respondent was used as a rubber stamp for a non-lawyer, out-of-state organization with no office in South Carolina, whose involvement was not disclosed to Respondent's clients. This Court has insisted on lawyer-directed real estate closings in order to protect the public. Respondent's method of handling his client's business provided no real protection to his clients and no attorney record of the transaction by which to verify the details of the closing if problems developed after closing.

Chief Justice Pleicones would not impose a sanction

I respectfully dissent. Through an error on the part of a title insurance company, the Office of Disciplinary Counsel became aware of a single closing wherein Respondent failed to explain the nature of a "net funding transaction" -- to clients who admittedly sought and obtained a home mortgage refinance from their mortgage company, and who suffered no prejudice. In my opinion, these facts do not warrant a public reprimand. Moreover, nothing in this single instance justifies the modification of our holding in Richardson -declining to "specify the form [that attorney supervision of loan disbursements] must take . . . ." - in favor of adopting a non-delegable duty to oversee loan disbursements through "detailed verification" or through the receipt of "sufficient documentation or information" in addition to the disbursement log itself. The majority neither explains what this means nor how more oversight could have prevented the title company from issuing checks drawn on the wrong account.

(Mike Frisch)


April 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Stealing From Firm Merits Disbarment

The South Carolina Supreme Court has disbarred an attorney who

 stole thousands of dollars from his law firm (the Firm) by improperly billing clients.

The story

Respondent worked for the Firm, both as a summer clerk while in law school and as an attorney following his graduation in 1994,  until he abruptly resigned in 2011. The Firm became suspicious of Respondent when a client contacted the Firm and claimed to have received a bill for $500 from Respondent asking the client to pay Respondent directly, which was in contravention of the Firm's policies. Typically, clients paid the Firm, and the Firm then paid its lawyers a fixed salary, a percentage of profits, or a combination of both. When the chairman of the Firm's executive committee (the Chairman) confronted Respondent on October 5, 2011, about the billing abnormality, Respondent initially feigned ignorance. The next day, Respondent emailed the Chairman and admitted sending the bill, which he termed a "local" statement, in response to the client's request. Respondent said the fact that he may have accidentally deposited the check into his personal account "embarrassed and horrified" him, "caused [him] fits," and kept him up at night. After "discovering" that he had in fact deposited the check, Respondent immediately agreed to repay the $500, plus interest. He reiterated that he was "extremely embarrassed and mortified" and "[could not] believe [he] made such an egregious error and [he was] just sick about it.

About a week later, Respondent met with the Firm's executive committee to discuss his actions. He claimed the two local statements he mentioned to the Chairman were the only times he had billed clients directly and was adamant that those two occurrences were isolated mistakes. The Firm's executive committee, however, remained suspicious and hired a computer forensics expert to examine Respondent's laptop to ascertain whether there were other instances of improper billing

The firm's suspicions were quite justified

 The forensic examination uncovered approximately $77,000 in improper invoices, dated from August 2009 through September 2011. The computer expert also testified there had been two attempts to "scrub," or completely erase, the computer's hard drive. The expert said those attempts were largely successful, as there was evidence of other invoices that could not be recovered.

 The firm reported the attorney to the Georgia and South Carolina Bars.

The attorney sought a six-month suspension

Respondent relies heavily on the absence of client harm from his misconduct in arguing for a shorter suspension, noting he stole money from the Firm, not clients.

Despite some mitigating factors, the court imposed disbarment.

Like Baldwin, Respondent converted client fees that were owed to his law firm to his personal use and took great measures to conceal his theft. When confronted and given the opportunity to come clean, Respondent repeatedly and emphatically denied any wrongdoing. Respondent thereby engaged in a serious pattern of theft and dishonesty over an extended period of time. When compared to Baldwin's, Respondent's conduct is certainly egregious enough to merit disbarment. Indeed, Baldwin only stole $4,000 from his firm, while Respondent stole well over $70,000.

 (Mike Frisch)

April 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Shining

An Illinois attorney has moved for consent disbarment as a result of a criminal conviction.

The motion describes the crime

On or about August 7, 2012, Kelsey E. ("K.E."), a Minnesota resident, was in her hotel room at the W Hotel in Chicago. She had left the door to her hotel room ajar for a friend that she was expecting to arrive. At approximately 2:00 am, Movant entered K.E.’s hotel room, without permission. Movant proceeded to push K.E. down on the bed and forcibly hold her down. He fondled her breasts with his hands and mouth. He also vaginally penetrated her by force with his fingers. K.E. was able to kick Movant off of her. Movant told K.E. he would be back and then left K.E.’s hotel room. Thereafter, K.E. called the friend she had been expecting and reported the assault. The friend called the Chicago Police and notified hotel security. As K.E. was speaking with Chicago Police officers about the assault, Movant was seen walking in the hotel hallway on the same floor as K.E.’s room. K.E. identified Movant as her attacker and Movant was arrested in the hotel.

The attorney was convicted at a jury trial of criminal sexual assault and criminal sexual abuse and not guilty of residential burglary. He was sentenced to a total a six years in prison.

The Chicago Tribune noted his explanation for the lip balm

At trial prosecutors alleged that Bergamino had covered his hands with lip balm after his arrest later the night of the rape to destroy potential DNA evidence. During closing arguments, a prosecutor had ridiculed Bergamino’s testimony that he was the “son of a germaphobe” who had used Carmex, a lip balm, to clean his hands while being booked at a Near North District police station.

The Illinois Supreme Court recently declined to allow a further appeal of the conviction.

This story on the trial from the Chicago Tribune

A real estate lawyer arrested on charges he sexually assaulted a 24-year-old woman in her upscale Near North Side hotel room smeared his hands with lip balm as he was being booked by police in an attempt to thwart the 2012 investigation, prosecutors said Tuesday as his trial began.

Anthony Bergamino Jr, now 51, was arrested near the alleged victim’s room at the W Chicago Lakeshore Hotel at 644 N. Lake Shore Dr., moments after she saw him in the hallway and identified him as her attacker, according to testimony.

At the Near North District police station, investigators handcuffed one of Bergamino’s hands to a wall and placed a tube of lip balm found in his pocket on the bench next to him, Officer Willie Peoples testified.

Peoples said he began filling out paperwork from the arrest when he noticed that Bergamino had covered his hands with lip balm.

“His hands were shined up like a glazed donut,” Peoples testified. “I smelled (lip balm).”

Cook County prosecutors implied Bergamino took the action to taint potential DNA evidence on his hand.

The consent goes to the Illinois Supreme Court for final action. (Mike Frisch)

April 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, April 19, 2016

Bar May Proceed In "Friending" Without Disclosure Matter

The New Jersey Supreme Court has issued an opinion in a matter brought to head off a bar prosecution.

In so doing, the unanimous court affirmed the broad authority of the Office of Attorney Ethics to proceed notwithstanding a decision to not investigate a complaint rejected at intake by a district ethics committee.

The particular matter at issue involved friending an adverse party to uncover helpful evidence.

The court's summary

In this appeal, the Court considers whether the Office of Attorney Ethics (OAE) may investigate a grievance against an attorney alleging misconduct violating the Rules of Professional Conduct (RPCs) after the Secretary of a District Ethics Committee (DEC) has declined to docket the matter.

The following facts, setting the background of this matter, are derived from the complaint that the OAE filed with the District XIV Ethics Committee, and plaintiffs’ complaint filed in the Superior Court. On March 10, 2007, a police car driven by a sergeant with the Oakland Police Department allegedly struck a pedestrian, Dennis Hernandez. Hernandez claimed that he suffered permanent injuries, and commenced suit against the Borough, the police department, and the sergeant. Plaintiffs, who are attorneys licensed in New Jersey, were employed by the law firm that represented the defendants in the lawsuit. In order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s "friends." The OAE contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account. She therefore submitted a "friend request" to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.

Hernandez learned of the firm’s actions during discovery in the lawsuit, and objected to defendants’ use at trial of the documents that the paralegal obtained from his Facebook page. He also filed a grievance with the District II-B Ethics Committee, asserting that plaintiffs violated the RPCs by contacting him directly through his Facebook page without first contacting his attorney. The Secretary of the District II Ethics Committee, with the consent of a public member, declined to docket the grievance, having concluded that the allegations, if proven, would not constitute unethical conduct. Hernandez’s attorney then contacted the Director of the OAE (Director) and requested that the OAE review the matter and docket it for a full investigation and potential hearing.

After further investigation, the Director filed a complaint against plaintiffs with the District XIV Ethics Committee. Plaintiffs requested that the Director withdraw the complaint, contending that the OAE was precluded from proceeding after the DEC declined to docket the grievance. The Director refused to withdraw the complaint, and plaintiffs filed a complaint in the Superior Court to enjoin the OAE from pursuing the matter. The trial court dismissed the complaint, holding that the Supreme Court and the ethics bodies that it established have exclusive jurisdiction over attorney disciplinary matters. The Appellate Division affirmed the trial court’s determination in an unpublished decision. This Court granted plaintiffs’ petition for certification. 222 N.J. 15 (2015).

HELD: Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.

1. Under the State Constitution, the Supreme Court has exclusive jurisdiction over the admission to practice and the discipline of attorneys. The Court has created several entities to assist in its disciplinary role, including the DECs, the OAE, and the Disciplinary Review Board (DRB). The system in its entirety is designed to foster a fair and effective process that enables the public to voice complaints about attorney behavior, empowers investigatory bodies to review and thoroughly investigate grievances, and gives attorneys an opportunity to respond to allegations of misconduct and defend themselves with vigor. The disciplinary system, structured in this fashion, promotes public confidence in the legal system. (pp. 6-8)

2. The DECs and the OAE are the two entities that have the authority to investigate and prosecute grievances against attorneys licensed in New Jersey. Each DEC has a Secretary, required to be a licensed attorney, who receives and reviews all grievances on behalf of the DEC. The DRB sits as an intermediate appellate tribunal in disciplinary matters; its primary role is to review recommendations for discipline and appeals from findings of no unethical conduct. Consistent with the constitutional mandate, the Supreme Court is the final arbiter of ethics and disciplinary matters. (pp. 8-9; 12)

3. The OAE and the Director have broad authority to administer the disciplinary system and investigate and prosecute allegations of attorney misconduct. Under the Court Rules, the Director has discretionary authority to investigate any information coming to his attention, whether by grievance or otherwise, and also has exclusive investigative and prosecutorial jurisdiction in certain matters. Disciplinary proceedings may also begin at the OAE, and a grievant may therefore raise an ethics complaint directly with the Director. (pp. 10-11).

4. Plaintiffs’ complaint asks the Superior Court to restrain the OAE from taking any action in furtherance of the disciplinary allegations against them. The Court holds that the trial court and the Appellate Division correctly found that the Superior Court lacked subject matter jurisdiction over this direct challenge to the attorney disciplinary process, and reiterates that the Supreme Court has exclusive responsibility in this area. (pp. 14-16)

5. Addressing the question presented in this matter, the Court rejects plaintiffs’ contention that Rule 1:20-3(e)(6) bars the Director from taking further action to review allegations of unethical conduct and file a disciplinary complaint after a DEC Secretary has declined to file a similar claim. The Court states that the Director’s action in that event does not constitute an appeal from action by the DEC, which is not permitted by the Rule. The Court further states that the Rule applies only to appeals to the DRB, rather than to further action by the Director. (pp. 17-21)

6. The Court finds that plaintiffs’ interpretation of Rule 1:20-3(e)(6) to preclude further action by the Director is also contrary to the broad investigative and prosecutorial authority that Rule 1:20-2(b) vests in the Director, and the purpose of the disciplinary rules to protect the public and promote the thorough and fair investigation and defense of allegations of unethical conduct. The Court further states that the Rules do not preclude further inquiry by the Director if a DEC Secretary declines to docket an important, novel issue as to which there is little guidance, or mistakenly declines to docket an allegation of egregious, unethical conduct. The Court finds that the OAE’s discretionary review of grievances that DEC Secretaries do not docket does not conflict with the goals of the Michels Commission, which was formed to examine and recommend changes to the attorney disciplinary system. (pp. 21- 27)

7. The Court concludes that the Director of the OAE retains discretion when appropriate to review a grievance after a DEC Secretary has declined to docket it, but is not required to investigate or formally respond to requests from a grievant to pursue a matter that a Secretary has not docketed. (pp. 27-28)

The judgment of the Appellate Division is AFFIRMED.

It is definitely in the public interest to uphold the broad investigative and prosecutorial authority of disciplinary counsel. (Mike Frisch)

April 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, April 18, 2016

Axe Threat Leads To Conviction And Bar Charges

A complaint recently filed by the Illinois Administrator

On May 29, 2015, after 9:30 p.m., Respondent called his estranged wife, Linda Smith, on the telephone and asked if she wanted any food from McDonald’s restaurant. Ms. Smith declined. Respondent then became agitated and began arguing over the telephone with Ms. Smith. Respondent and Ms. Smith were living in separate residences at the time, both of which were in St. Joseph County, Indiana.

During the argument, sometime between 9:45 p.m. on May 29, 2015, and 12:25 a.m. on May 30, 2015, Respondent told Ms. Smith over the telephone that she was a bad wife and expressed anger over the fact they were separated. Respondent told Ms. Smith he was going to split her chest open with an axe. Respondent then told Ms. Smith he was looking for an axe, and then stated that he was coming to her home. Ms. Smith fled her home, drove to the Mishawaka Police Department, and reported Respondent’s conduct to police officers.

Police officers responded to Ms. Smith’s home and observed Respondent inside the home. In Respondent’s vehicle was an axe. The police saw the axe and arrested Respondent.

At all times alleged in this Complaint, there was in full force and effect sections 35-45-2-1(a)(1) and 35-45-2-1(b)(1)(A) of the Indiana Code, which provide that a person who communicates a threat to another person to commit a forcible felony with the intent that the other person be placed in fear of retaliation for a prior lawful act commits the crime of intimidation, a Level 6 Felony.

On June 3, 2015, the St. Joseph County (Indiana) Prosecutor’s Office issued a one-count information against Respondent, charging him with intimidation, a Level 6 Felony, in violation of Indiana Code 35-45-2-1(a)(1) and Indiana Code 35-45-2-1(b)(1)(A). The matter was docketed as State v. Fronse Wayne Smith Jr., St. Joseph Superior Court case number 71D02-506-F6-000361.

On September 15, 2015, the St. Joseph County Prosecutor’s Office filed an amended information, amending certain language but not changing the charge, level of felony, or criminal statutes that Respondent was alleged to have violated. A copy of the amended information is attached as Exhibit 1.

On September 24, 2015, a jury trial was held in State v. Fronse Wayne Smith Jr. That same day, the jury found Respondent guilty of intimidation, a Level 6 Felony, as charged.

On November 4, 2015, Judge John Marnocha entered a judgment of conviction against Respondent for intimidation. Judge Marnocha sentenced Respondent to one year in the St. Joseph County Jail, suspended the jail sentence, and placed Respondent on probation for one year. The order was entered nunc-pro-tunc to September 24, 2015, due to a scrivener’s error. A certified copy of the judgment of conviction and sentencing order is attached as Exhibit 2, and a copy of the order of nunc-pro-tunc is attached as Exhibit 3.

The complaint alleges a violation of rule 8.4(b). (Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Threats Draw Interlocutory Suspension

A post earlier day involving reciprocal discipline in Michigan for misconduct found by the Law Society of Upper Canada inspired me to take a took at the web page of discipline imposed there.

I came across this recent decision granted an interlocutory suspension for misconduct in California.

This motion is different than most interlocutory suspension motions. Ordinarily, these motions are based on alleged professional misconduct, that is, conduct of the licensee in their professional capacity. In this case, the conduct in issue is in Mr. Sumner’s personal or private capacity.

Mr. Sumner previously lived in California where he practised as a lawyer. An incident occurred between Mr. Sumner and his then roommate as a result of which Mr. Sumner was arrested. The charges arising out of this incident were ultimately withdrawn and Mr. Sumner obtained a declaration of factual innocence. Mr. Sumner considers that he was unfairly and unlawfully dealt with in this process. At issue is Mr. Sumner’s ongoing attempt, as he sees it, to right this wrong. There is little if any issue as to what Mr. Sumner has actually done.

Background of issues relating to the attorney's dealings with Chief Deputy District Attorney Kochis

In 2007, officers of the Montclair Police Department responded to a 911 call from Mr. Sumner’s then roommate. On the strength of a private person’s arrest form signed by his roommate, Mr. Sumner was arrested for battery and vandalism. A criminal complaint charging battery and vandalism was filed in late 2007. The charges were dismissed in early 2008.

In agreeing to the dismissal of these charges, the District Attorney required a $300 donation to the “House of Ruth,” a battered woman’s shelter. Mr. Sumner made this donation. Mr. Sumner says that it was improper to require him to make a payment to a private enterprise in exchange for dismissal of the charges made against him. He also asserts that some form of kick-back was paid by the House of Ruth as a consequence of this compelled donation. Mr. Sumner acknowledges that he has no evidence supporting this assertion...

 After executing the mutual release and obtaining the declaration of factual innocence, Mr. Sumner considered that he had been treated improperly and unfairly. According to Mr. Kochis (as reflected in an interview record of the California Bureau of Investigation), Mr. Sumner quickly sent an email to Mr. Kochis saying that he wanted his former roommate to be arrested and prosecuted for filing a false report and that he wanted members of the police department arrested for false imprisonment, kidnapping and assault with a deadly weapon. This did not occur.

Mr. Sumner’s view is that Mr. Kochis had committed a number of criminal acts in requiring or accepting the release given in exchange for not opposing the petition. While the list may not be exhaustive, Mr. Sumner has alleged that Mr. Kochis solicited a bribe, conspired to solicit a bribe, accepted a bribe, committed extortion, conspired to commit extortion, extorted under colour of official right and conspired to extort under colour of official right.


According to the reports by the California Bureau of Investigation, Mr. Sumner made a number of highly problematic communications on January 3, 2012

a. Mr. Sumner spoke with an assistant in Mr. Kochis’ office and said that, “I’m going to arrest your chief Kochis. If he resists, I’m going to kill him."

b.  Mr. Sumner was transferred to Supervising Investigator Randles and, in a recorded call, repeated the statement that had been made to the assistant and also said “I’m sure he gets a lot of enemies in gangs, right? So I’m thinking maybe I’ll go and find a gang because I’m an attorney, by the way, and I think that when an attorney gives a gang authority to go and place him under private person’s arrest, which I can do …, I think that a gang might just do it.” There is no need to detail other similarly problematic statements made.

c. Mr. Sumner left a voice message for Mr. Kochis’ secretary which stated “John Kochis is a piece of fucking (unintelligible) trash and I’m going to arrest him or I’m going to get a gang to arrest him and if he resists so help him god he’ll fucking die!

d. Mr. Sumner posted the following emails on a website

 i. “Chief Deputy District Attorney John Kochis, When I go to California next I will arrest. If you resist, I will kill you in accordance with the law!!! You are a criminal and a piece of shit!!!! You should die!!!!!

ii. “Dear Hells Angeles [sic] …John P. Kochis committed several felonies and I wish to place him under arrest. Therefore, I authorize the hells Angeles [sic] to act as my agent and arrest … John P. Kochis. If he resists, the Hells Angeles [sic] may use all lawful force to secure the prisoner, including lethal force if allowed by law.”

          iii.        “Dear Devils Diciples, … I wish to place … John P. Kochis under private person’s arrest … as he committed the felony of extortion and others. I seek your assistance … in placing the piece of human shit under arrest. If he resists, I authorize you to use all lawful force to secure the prisoner, including lethal force if allowed under law.

e. Mr. Sumner sent over 21 e-mails to various state and local officials, Hells Angels, Devils Diciples and Mr. Kochis, some of which contained threats to kill or physically harm Mr. Kochis.

The California State Bar began an investigation and got this response

On April 28, 2014, Mr. Sumner sent an e-mail to the State Bar Deputy Trial Counsel, copied to The e-mail stated:

Dear Webmaster at Hells Angels, I hereby summon your assistance to arrest, and if they resist to use all lawful force, including lethal force, against John P. Kochis (a tyrant) for racketeering and his supporters for conspiracy to racketeer.

The same day, Mr. Sumner sent another e-mail to the State Bar Deputy Trial Counsel stating:

Because you are a supporter of tyranny, you have little to no right to life. I can use violence in the street to rid the world of a tyrant you fucking piece of shit!!

As to interlocutory suspension

It is also appropriate to note that Mr. Sumner has now made threatening communications in response to actions by the Law Society. While these communications do not explicitly threaten physical harm other than to Mr. Kochis, threats against Law Society staff and benchers are implicit. We conclude that threats of this kind against the Law Society in response to regulatory scrutiny also give rise to reasonable grounds for believing that there is a significant risk of harm to the public interest in the administration of justice if not effectively addressed. Public confidence in the administration of justice depends in part on confidence in effective regulation of the legal profession. Threats such as these, in response to proceedings brought by the Law Society, meet the legislative test for an interlocutory suspension in our view. Notably, this response to Law Society proceedings is not private conduct.

Mr. Sumner has made clear that he is unwilling to cease conduct such as described above pending his conduct hearing. Mr. Sumner has again engaged in conduct that is very similar to the conduct that gave rise to his outstanding conduct application. There is no assurance that he will not do so again. Indeed, the contrary appears to be true. In our view, the public would reasonably fail to understand why Mr. Sumner would be permitted to continue to practise pending his hearing in these circumstances. We conclude that an interlocutory suspension should be ordered in support of public confidence in the legal profession, and its regulation by the Law Society, and in the administration of justice.

The State Bar of California web page reflects that he is disbarred there. (Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Ungovernable" In Canada; Disbarred In Michigan

A disbarment from a Michigan hearing panel has an unusual aspect

Respondent did not attend the public hearing and was in default for his failure to file an answer to the formal complaint. Based on respondent's default, the hearing panel found that respondent was determined to be ungovernable within the meaning of Law Society of Upper Canada v Ebagua, 2014 ON LSTA40; practiced law while suspended, in violation of Rule 6.07(3) of the Rules of Professional Conduct of the Law Society of Upper Canada; communicated with a potential client in a manner inconsistent with the proper tone of professional communication, in violation of Rule 6.03(5) of the Rules of Professional Conduct of the Law Society of Upper Canada; failed to maintain the integrity of the legal profession, in violation of Rule 6.01 (1) of the Rules of Professional Conduct of the Law Society of Upper Canada; practiced law through a business entity that did not have a Certificate of Authorization from the Law Society of Upper Canada, in violation of §61.0. 7 of the Law Society Act; and, failed to cooperate with an investigation conducted by the Law Society of Upper Canada, in violation of Rule 6.02 of the Rules of Professional Conduct of the Law Society of Upper Canada and §49.3 of the Law Society Act.

Law Times had reported on the Canada disbarment in February 2015

Leahy, a lawyer called to the bar of Ontario in 1991, spent a good part of his career caught in the crosshairs of the law society. After years of proceedings, the regulator disbarred him in December for professional misconduct.

One of his past proceedings dates back to a 2004 suspension for practising without insurance with more recent decisions dealing with findings such as a failure to co-operate with an investigation.

Last year, the law society found Leahy guilty of practising law during a suspension of his licence, communicating with a client in an unprofessional manner, and failing to co-operate with an investigation in relation to a complaint from Federal Court Chief Justice Paul Crampton.

In January 2013, Leahy, convinced that Federal Court Justice Robert Barnes had a personal vendetta against him, wrote a complaint to Crampton.

“It really does not matter to me that Justice Barnes loathes me, but, when he continues to pursue a personal agenda at my litigants’ expense a time comes when I must speak out,” he wrote in the letter.

Leahy went on to describe his side of the legal wrangling involving federal skilled workers and a failure by Barnes to enforce an agreement.

He also criticized Barnes for penning “a venom-laced” decision against him.

“. . . In his zeal to skewer me and slice and dice anyone who retains my services, Justice Barnes has issued an irrational decision,” according to the letter, which also suggested removing Barnes from the matter lest he continue “knifing” Leahy’s clients.

While Leahy can no longer practise, the case behind the complaint affects the lives of hundreds of potential immigrants. Some of the litigants had applied to become permanent residents through the federal skilled-worker category as far back as 2004, but their applications were still languishing at Citizenship and Immigration Canada when a note in the 2012 budget proposed throwing them out in order to reduce the backlog of cases.

(Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment For Serial Ethics Offender: Attorney Asked Client To Post Fake Favorable AVVO Reviews

A long record of prior discipline along with newly-found misconduct has led to the disbarment of a New Jersey attorney.

Among the plethora of found violations was this nugget

Pachowicz had testified at respondent’s July 31, 2013 ethics hearing that he had asked her to "make fake reviews on him to make him look better on AVVO. He would tell me -- like I was a John or I was somebody else; and I would pretend that I was one of his clients and say that I was happy with his services." She further testified that, at respondent’s direction, she had pretended to be other clients saying "something nice about him" so that his ratings would improve, because they were low. Pachowicz complied with respondent’s requests because he was her lawyer, she felt sorry for him...

 The Disciplinary Review Board report noted that

Respondent’s conduct, overall, suggests a character that is unsalvageable. As we found in respondent’s prior matter, he is a "serial ethics offender" who demonstrates an "appalling indifference toward his clients" and the rules of the profession, and has refused to learn from his prior ethics problems...

Based on the totality of the factors present here, including respondent’s seeming inability to tell the truth, his disregard for his obligation to cooperate with the attorney disciplinary system and, indeed, to comply with the Court’s orders, his brazen and outrageous conduct, and the principle of progressive discipline, respondent’s misconduct is on par with those attorneys who were disbarred. We believe that respondent is not capable of conforming his conduct to expected standards and, therefore, recommend his disbarment.

 The New Jersey Supreme Court adopted the recommendation. (Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

False Promises In Ads, Other Misconduct, Get Attorney Disbarred

A justice of the Massachusetts Supreme Judicial Court has disbarred an attorney admitted in 2006 for a wide array of ethics violations in his loan modification practice.

The misconduct involved splitting fees, false and misleading print, radio and web advertising, charging illegal and excessive fees and other violations.

According to the Board of Bar Overseers, the attorney had

"systematically extracted illegal and excessive fees from numerous vulnerable and desperate clients with · deceptive advertisements/ misleading contractual arrangements/ and deceptive and useless services such as 'the 'lender benefit analysis' and the 'forensic loan audit.' In addition he engaged in unlawful fee--splitting to provide his partner and his employees with the financial incentive to use these machinations to enhance his personal financial interest at the expense of his  clients."

Justice Lenk rejected the attorney's more benign explanations regarding his business-getting approach

The advertisements also contained other intentional, significant, and serious omissions that made them highly misleading. Listeners were not told that none of their money would be refunded, even if they did not meet the prequalification. requirements, the respondent never filed· a loan modification application on their behalf, or the lender declined to offer a modification or offered one on terms  the client found unacceptable. Listeners also were not told that they were statutorily entitled to a full refund if.the respondent did not obtain an acceptable loan modification offer. Nor were they informed that the particular results described by clients featured in the ads were unusual, that their situation might differ, or that the lender alone had the authority. to make a loan modification offer, on terms the lender chose. The radio advertisements also did not confirm to various requirements in the rules of professional conduct in Massachusetts'· Rhode Island, New York, and Virginia, regarding providing notification of the content of the advertisements to the proper entities (e.g., such as boards of bar overseers or attorneys general),· and retaining copies of the content for specified periods.

The justice also rejected the attorney 's proposed sanction of reprimand, noting that the misconduct spread over a lengthy period

The respondent has expressed not one iota of remorse for the harm he caused, and has engaged in no effort whatsoever to make restitution...

The respondent also apparently lacks any understanding of the seriousness of his misconduct with respect to the radio advertisements, promising that the respondent is the only lawyer who can guarantee a permanent loan modification, on impossibly unrealistic terms, and that he has relationships with well known, highly experienced attorneys in this specialized field. These advertisements, aired across the country, are not, as he claims "mere puffery" or inadvertent and sloppy use of language. As the board found they are deliberate falsehoods concerning the nature of the respondent 's essentially sole practitioner firm (otherwise staffed by nonattorneys  apparently working on a commission basis), and the results the respondent would be able to achieve given the best possible outcome.

The State Attorney General had this report on sanctions imposed on the attorney last year

A Revere attorney and his two businesses have been ordered to pay more than $625,000 for targeting homeowners with deceptive advertisements and demanding thousands in illegal advance fees for mortgage modification and foreclosure relief services they failed to deliver, Attorney General Maura Healey announced today.

“At a time when homeowners were struggling to afford their mortgages, this attorney abused his clients’ trust and deliberately exploited their financial circumstances by demanding exorbitant fees based on false promises, leaving these homeowners even more vulnerable,” AG Healey said. “This judgment puts an end to these deceptive and unfair practices and confirms that those who seek to capitalize on the foreclosure crisis will be held accountable.” 

The final judgment links to PDF file, issued by Suffolk Superior Court Judge Paul Wilson against David Zak and his businesses Zak Law Offices, P.C., and Loan Modification Group, Inc., finds defendants liable under the state’s Consumer Protection Act. The court found that the defendants preyed upon at-risk homeowners throughout Massachusetts who were facing the imminent loss of their homes, took unlawful advance fees based on deceptive guarantees that mortgage loans could be modified to prevent foreclosures.

The judgment requires the defendants to pay more than $625,000, including $400,000 in civil penalties, more than $68,000 in attorney’s fees and costs, and $157,000 in consumer restitution for approximately 65 former clients who complained to the AG’s Office about the deceptive practices and unlawful advance fees.

As found by the Superior Court, the defendants targeted Spanish and Portuguese-speaking homeowners with misleading radio advertisements guaranteeing dramatic loan modifications and legal representation to avoid foreclosure. The defendants failed to disclose in the advertisements that there was no guarantee of success, when in fact they had failed to obtain the promised modifications for most of their clients. 

On the basis of these false promises, and in violation of Massachusetts law, the defendants demanded non-refundable advance fees of $5,000 or more from distressed homeowners – when foreclosure relief services were available for free elsewhere – only to fail to deliver on their promises, leaving homeowners even more at risk of foreclosure. 

Under the terms of the judgment, Zak and his companies are enjoined from engaging in deceptive advertising or soliciting, arranging or accepting advance fees for mortgage assistance or foreclosure-relief services.

In 2007, the AG’s Office issued regulations that prohibit soliciting or accepting an advance fee in connection with foreclosure-related services – with certain limited exceptions for licensed attorneys preparing bankruptcy filings or court proceedings to avoid foreclosure – or advertising services without disclosing exactly what is offered to avoid foreclosure, among other unfair practices.

This discussion of the above findings om MFI- Miami 

Hearing Officer Betty Waxman determined that Zak specifically targeted Latinos with deceptive advertisements for mortgage modification services and misled Spanish and Portuguese-speaking clients with unrealistic and often false guarantees about securing dramatic loan modifications. Evidence introduced in the case showed that Zak opened an office in Revere, Mass. because he believed its Latino community would be “easy targets” and gullible.

Zak used radio and written advertisements in Spanish and Portuguese to contact Latino homeowners having difficulty making mortgage payments, falsely claiming to have saved hundreds of Latinos from foreclosure, promising to cut their mortgage payments in half, asserting that he was the only attorney in Massachusetts who knew how to do loan modifications, and boasting that he had a “secret formula” and “magic numbers” unknown to others for obtaining loan modifications.

Atty. Zak even hired a “Coordinator of the Latino Market”, who was charged with leveraging her extensive network of contacts in the Latino community to recruit agents and clients.

Waxman found that Zak charged Latino clients inflated and duplicative fees for services that were available elsewhere for free, encouraged them to intentionally fall behind on mortgage  payments, failed to adequately translate documents, misrepresented the status of clients’ cases, performed minimal, substandard work—often failing to secure promised mortgage modifications, refused to provide appropriate refunds, and engaged in threats, intimidation, and demeaning conduct.

(Mike Frisch)

April 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, April 16, 2016

Hockey, Drugs And Bar Discipline

A justice of the Maine Supreme Judicial Court has reinstated a suspended attorney by terminating his interim suspension effective July 1, 2016.

A hearing on these matters was held at the Capital Judicial Center on February 19, 2016. The principal issues for the hearing were whether Gary Prolman should be disbarred from the practice of law, reinstated to the practice of law, or have his current suspension from the practice of law extended for a specific period of time, and what conditions to require of Prolman should he be reinstated to the practice of law.

It is quite a story

Before the events that gave rise to this proceeding, Prolman had been generally well regarded by other members of the bar who had professional contact with him. He had been subject to no other disciplinary actions.

Outside of his law practice, Prolman was very involved in his community, particularly with youth and high school hockey and with local charities that focused on children’s needs. He became assistant or head coach of several high school hockey teams in York and Cumberland County.

Through his involvement with hockey programs, Prolman also began to develop a separate business as a sports agent, advising and promoting young hockey players who demonstrated potential to play professionally. This business venture required much work and years of effort before realizing any returns. To support his sports agent business, Prolman relied on income from his law practice and a significant loan from his father. In 2012 Prolman’s sports agent business was about to realize significant returns, as three players he had advised for as many as eight years were entering professional hockey careers with good prospects of playing in the National Hockey League.

For many years prior to 2012, Prolman had regularly used cocaine and sometimes drank alcoholic beverages excessively. There is no evidence that his drug and alcohol abuse affected his law practice or his relationships with his clients. It primarily manifested itself during times away from his practice, though his cocaine use was becoming more regular by 2012.

At some point in 2012, Prolman’s cocaine dealer introduced Prolman to David Jones. Prolman soon became aware that Jones was an illegal drug dealer, primarily involved in sales of large quantities of marijuana. Jones expressed interest in having Prolman assist him in incorporating and acquiring real estate for some business ventures. Prolman assisted Jones as requested and was paid in cash for his legal advice and assistance.

Jones also learned of Prolman’s sports agent business and offered to invest in and become a part owner of the sports agent business. Prolman accepted Jones’s offer, viewing Jones’s investment as a way to repay his father’s significant loan that had been supporting the sports agent business and to stop relying on his family to support this venture.

During this time, Prolman decided to move his office from Portland to York County. With the assistance of his cocaine dealer’s spouse, who was a real estate agent, Prolman located a building in Saco that he could use as an office and residence, with other space to rent to tenants. To aid in purchase of the Saco property, Prolman accepted Jones’s offer to invest in and become a part owner of the property, and Jones may have been listed on the purchase and sale agreement. However, none of the purchase documents listed Jones as a part owner, and the financing documents did not identify Jones as having any interest in the Saco property.

In these various transactions Prolman accepted $127,875 in cash from Jones, which he then deposited in various banks in amounts of less than $10,000 to avoid federal cash source reporting requirements.

With his criminal practice experience Prolman was aware that the cash payments he was receiving from Jones were proceeds from drug transactions that were being laundered through the payments to Prolman. At one time Prolman assisted Jones by converting a large number of small bills into larger bills that could be more easily concealed by Jones as he travelled to acquire more illegal drugs.

In mid-2012, Jones was arrested in Kansas while returning to New England with illegal drugs purchased in California. Shortly after Jones’ arrest, Jones’ girlfriend appeared at Prolman’s residence with a large amount of cash which she indicated could be used to get an attorney and provide bail for Jones in Kansas. Prolman retained $50,000 of the larger amount offered by Jones’ girlfriend, considering it a payment toward Jones’s investment in Prolman’s sports agent business. It does not appear that any of those funds were used to support an attorney or bail for Jones.

A search of Jones’ residence in Maine led to discovery of receipts from Jones’ cash transactions with Prolman, which then led to investigation of Prolman’s actions, directed by the United States Attorney’s office. Prolman initiated contact with the U.S. Attorney’s office to discuss his situation.

In late 2012, at a meeting involving Prolman, his retained attorney for the criminal matter, federal investigators, and an Assistant United States Attorney, Prolman was not truthful with those officials concerning specific details of his dealings with Jones, his own criminal conduct, and his illegal drug usage. For example, when asked by the federal investigators about his handling of approximately $127,000 in illegal drug-related funds, including making deposits at different banks in amounts that were purposely less than $10,000 each, Prolman asserted those funds had been generated by his legal services for an unnamed legal client. At that meeting Prolman also did not disclose that he had received the additional $50,000 in cash, delivered to him by Jones' girlfriend, and that he had then made several additional smaller bank deposits from those funds.

In later meetings with an Assistant United States Attorney and investigators, testimony by the Assistant United States Attorney indicated that Prolman was more forthright and provided much useful information that supported the bringing of charges against other individuals involved in the illegal drug trade. As part of his cooperation with the U.S. Attorney’s office, Prolman provided grand jury testimony in support of the government’s prosecution of others that, in at least one instance, was viewed as creating some personal risk for Prolman.

He pleaded guilty to federal money laundering charges and spent time in prison, where he began to turn his life around

Unlike several of the attorneys appearing on the list of offenses provided by the Board of Overseers, Prolman had no prior disciplinary proceedings during his twenty years of practice in Maine before 2012. During that time, he was very actively engaged in the practice of law, particularly criminal defense work, sometimes providing valuable service to those who could not afford to pay him for his work. He was also willing to provide advice and assistance to other lawyers to help them address challenges with their cases or with their practices.

As reflected by many letters from attorneys filed in both the federal sentencing proceeding and filed as exhibits in this proceeding, Prolman was well respected and well known by his peers with active criminal practices in York and Cumberland Counties. In fact, in this Court’s experience with disciplinary matters, the number of letters from fellow members of the Bar supportive of Prolman’s reinstatement, complimentary of his skills, and noting the need for those skills in the profession is unusual, certainly not indicative of one who, in the past, had practiced at or near the bounds of ethical propriety.

The evidence also indicates that Prolman was more actively involved in his community and in charitable work than many other members of the Bar. As attested in many letters from members of his community, from clients, from parents, from persons involved with charities, from persons involved with youth and school hockey programs, beyond his practice, Prolman had an unusually valuable role in his community helping local charities and through involvement with youth and high school sports programs, particularly hockey programs. These are services which, when provided by Prolman, were greatly valued and which are still needed and could again be provided, particularly if Prolman resumes his law practice.

Considering Prolman’s past history, which, but for the aberration in 2012 is exemplary, considering what the Court finds to be his sincere commitment to change his life and avoid the ethical problems and contributing substance abuse issues that led to the events in 2012, and considering that Prolman has already served a twenty-one month suspension which required him, at the start, to essentially wind up his practice, the Court finds that the Board of Overseers of the Bar has not demonstrated, by a preponderance of the evidence, that disbarment or a lengthy additional suspension is required or is appropriate in the circumstances.


Based on the findings and conclusions stated in this Order, the Court concludes that, but for the aberrational events in 2012, and Prolman’s reluctance to accept full responsibility for his actions and ethical violations during 2013 and 2014, Gary M. Prolman has been a valued and trusted attorney and an unusually important and generous contributor to his community outside the law. The Court also concludes that Prolman’s reinstatement will be in the public interest, and that, with reinstatement, subject to conditions, Prolman can again provide important service to the public as an attorney and resume his role as an important contributor to his community.

The Port land Press Herald  had reported at the time of his sentencing that his legal career was "likely over."

Senior Associate Justice Alexander authored the opinion. (Mike Frisch)

April 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, April 15, 2016

No Advisory Opinion: Bar Discipline In Kansas

The Kansas Supreme Court has issued a published censure of a criminal defense attorney for his handling of an advanced fee and subsequent withdrawal from the representation.

The court quoted the hearing panel findings

A lawyer may charge a flat fee to a client for a specific task to be undertaken. When the flat fee is paid to the lawyer, it must be deposited into the lawyer's trust account and the fee cannot be withdrawn until it is earned. Since a flat fee is not earned until completion of the task, the entire flat fee must remain in the lawyer's trust account until that task is completed unless the lawyer and client otherwise agree to partial withdrawals based upon the amount earned for completion of specified subtasks. KRPC 1.15(a).

The respondent failed to deposit the flat fee received from C.B. into his trust account. Because the respondent failed to deposit unearned fees into his trust account, the hearing panel concludes the respondent violated KRPC 1.15(a)

The court decided an important issue on the powers of the hearing panel but declined to give an advisory opinion on advanced fees; rather, the court found adequate guidance in its approval of the findings of misconduct.

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, at which the respondent appeared, the Disciplinary Administrator representative recommended published censure. The respondent requested informal admonition. The Hearing Panel ultimately recommended published censure, but it also "recommend[ed] certain conditions be attached to the respondent's published censure." Despite the permissive, nonbinding tone established by the panel's use of the word "recommend," it then directed the respondent to perform certain tasks within specified time limits:

"First, the hearing panel directs the respondent to permit the auditor employed by the disciplinary administrator's office to conduct a trust account audit within 90 days of the date of this report. Second, the hearing panel directs the respondent to submit written policies regarding time records and fee agreements which are in compliance with the Kansas Rules of Professional Conduct to the disciplinary administrator's office for approval within 30 days of the date of this report. Finally, the hearing panel directs the respondent to pay his client $5,650 within 30 days of the date of this report."

These directions were not permissive or nonbinding. Rather, they conveyed clearly nonnegotiable requirements of behavior, and the deadlines for that behavior to occur were likely to ripen long before respondent's case reached its oral argument date before  this court. This is, in fact, exactly what occurred. The panel's Final Hearing Report bears a date of September 16, 2015, while this court heard oral argument on March 1, 2016—well after the longest of the panel's specified time limits—90 days—expired.

 Although neither respondent nor his counsel contested the panel's "conditions" or the power of the panel to impose or enforce them, by the time the parties reached oral argument before this court, there was evident lack of unanimity on whether respondent had complied to the greatest extent possible. In particular, the representative of the Disciplinary Administrator challenged the nature and completeness of documents respondent had supplied to facilitate the required audit. As a result of what she viewed as less-than-enthusiastic embrace of the panel's directions, she sought a sanction more severe than the published censure she had sought at the panel hearing, i.e., a 60-day suspension with a requirement of a reinstatement hearing.

Respondent's counsel resisted this effort to raise the stakes in this case and implored us to provide definitive guidance, particularly for the criminal defense bar, on how to account for flat fees and other advanced fees within ethical boundaries. Although prompted to do so by questions from several members of the court, respondent's counsel did not take issue with the panel's power or authority to order his client to fulfill certain requirements pending oral argument before this court; nor did he challenge the appropriateness of the Disciplinary Administrator's office seeking more serious sanctions at oral argument because of perceived deficiencies in respondents' compliance with interim panel orders. Also in response to questions from the bench, the representative of the Disciplinary Administrator stated that she had relied on her interpretation of several earlier disciplinary cases for the proposition that a hearing panel was empowered to suggest or require a course of action to be followed by a respondent between the panel hearing and Supreme Court oral argument and that this court would consider the respondent's resulting behavior in deciding discipline. She also appeared to favor more extensive ethical guidance from this court for lawyers who accepted flat or other advanced fees.

 We decline counsels' invitation to issue what we believe would be an advisory opinion on ethical accounting for flat fees and other advanced fees. Having adopted the panel's findings and conclusions, we have already done what is necessary on that subject in this case. We must, however, address the question of whether a disciplinary hearing panel may issue mandatory directives to respondents—directives to be ignored or treated casually at their peril. Certain of our prior cases may have been less than clear on this point, and on whether the court will look favorably upon the Disciplinary Administrator's recommendation of a more severe sanction as a result of what it regards as noncompliance with such directives...It is time for a course clarification, if not correction.

Simply put, our current Kansas Supreme Court Rules do not permit a disciplinary hearing panel to impose discipline or to require or enforce any conditions attached it—not between a panel hearing and oral argument to this court or at any other time...

All of this being said, we do not mean to discourage respondents from taking corrective or rehabilitative actions between their disciplinary hearings and their oral arguments in the Supreme Court. Indeed, such actions may appropriately be considered by us when we decide discipline, because they may be indicative of a respondent's acceptance of responsibility and/or remorse. We have previously remarked that respondents should keep us and the Disciplinary Administrator's office informed of any such actions by way of affidavit submitted before oral argument.

The court warned

We also hasten to add that there is one type of situation in which the court will certainly consider post-disciplinary hearing misbehavior by a respondent without additional factfinding in a remanded or new disciplinary proceeding. That situation arises when a respondent has been provided notice of the oral argument setting for his or her case and nevertheless fails to appear. In such a case, the violation of KRPC has occurred before the eyes of the court, see Kansas Supreme Court Rule 212(d), (e)(5) (respondent shall appear before the court), and no further factfinding below is necessary to preserve the respondent's right to due process. The court may impose discipline more severe than that recommended by the panel or Disciplinary Administrator as a result of the new violation, with or without a recommendation to do so.

Are there other jurisdictions where an attorney facing bar discipline must appear for the oral argument or face negative consequences?

If you watch the oral arguments in Kansas bar cases, you will note that the attorney regularly addresses the court personally (after counsel's remarks if represented) and answers the court's questions.

Is that practice unique to Kansas?

I certainly have not seen a respondent address the court in D.C. unless  acting as pro se counsel. 

Oral argument is linked here. (Mike Frisch)

April 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not Sorry Enough

An attorney has been suspended for 18 months for misconduct in several matters by the Kansas Supreme Court.

At oral arguments in this case, Hawkins gave an unsympathetic acknowledgment of wrongdoing, stating that she was sorry for any conduct that the court found to be in violation of the KRPC. When asked what she thought would be an appropriate level of punishment should this court find that her actions violated the KRPC, Hawkins suggested a term of probation similar to that imposed in In re Rumsey, 301 Kan. 438, 343 P.3d 93 (2015)...The conduct at issue in Rumsey was the respondent's act of calling opposing counsel, during the middle of a criminal trial, a derogatory term and submitting an affidavit to the Disciplinary Administrator which falsely claimed that it was signed before a notary public. 301 Kan. at 440-441. The severity of this conduct was lessened by several mitigating factors, including (1) the respondent's contemporaneous apology to opposing counsel; (2) evidence showing that the respondent was suffering from health problems during trial; (3) the hearing panel's finding that the affidavit was not offered to mislead or deceive the Disciplinary Administrator or the hearing panel; (4) the respondent's cooperation during the disciplinary hearing and his full acknowledgment of wrongdoing; and (5) several witnesses, including two district court judges, who testified to respondent's excellence as a criminal defense attorney. 301 Kan. at 443-45.

In contrast, the conduct at issue here, conduct constituting numerous rule violations, arose from three separate disciplinary complaints. Hawkins' actions included delay in returning unearned legal fees to a former client, filing false pleadings in district court, improperly calling into question the veracity of a court employee, and engaging in  behavior that unreasonably delayed the resolution of two legal matters. Additionally, seven attorneys testified about problems or negative experiences they had in working with Hawkins.

Though we have not accepted some of the hearing panel's findings, a majority of this court concludes that the hearing panel's recommended discipline of 18 months' suspension is warranted given the nature and volume of Hawkins' conduct, the duties she violated, and the aggravating circumstances present coupled with the lack of any mitigating evidence. A minority of the court, however, would impose a shorter term of suspension.

The video of the oral argument is linked here. (Mike Frisch)

April 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, April 14, 2016

Fatal Subtraction

An attorney who was suspended for three years with proof of current fitness has been denied reinstatement by the District of Columbia Court of Appeals.

The court had noted in suspending the petitioner

Given the nature of the misconduct at issue, we expressed "no doubt that if and when Daniel seeks reinstatement, his status with the IRS will be a relevant consideration."

Notwithstanding that admonition

We agree with the Hearing Committee that Mr. Daniel failed both to fully document his tax deficiencies and to substantiate his assertion that he had satisfied his tax obligations. His failure to submit adequate proof—in particular, his failure to demonstrate that he had come clean to the IRS5—is fatal to his petition for reinstatement...

There is simply nothing in the record before us to show that Mr. Daniel ever advised the IRS in a meaningful way that he had concealed taxable income such that it could reliably make an assessment of his tax obligations and any outstanding deficiencies. Given his history of dishonesty, his conclusory assertions that he was  "all square" with the IRS are inadequate.

A word to the wise

Should Mr. Daniel once again petition for reinstatement, he will have to provide some documentation that he has communicated with appropriate staff at the IRS to disclose his past concealment of funds and to ensure that the agency has accurate information from which it can assess his tax obligations and deficiencies from 1996 (when he opened the 329 IOLTA account12) through 2005. In addition and for the same time period, Mr. Daniel will have to provide documentation from the IRS detailing his income, his tax obligations, any tax deficiencies, and any payments made to address those deficiencies.

The court's opinion had been released as an unpublished memorandum and opinion on February 22. It was published on motion of Disciplinary Counsel. (Mike Frisch) 

April 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Domestic Violence Bar Charges

The Illinois Administrator has filed a complaint alleging domestic violence misconduct

On June 9, 2013, Respondent pushed, shoved, and struck Astrid Conte-Russian, who was Respondent’s girlfriend at the time. As a result, Conte-Russian lost consciousness, suffered swelling to her jaw, bruising on her arm, a displaced fracture to her left forearm, and had a laceration to her eye that required stitches.

On August 8, 2013, Respondent was arrested by the Chicago Police Department and charged with domestic violence, in violation of 720 ILCS 5/12-3.2 (a)(1), as a result of the incident described in paragraph two, above. The matter was docketed as People v. Jenk, case number 13 DV 74550 in the Circuit Court Cook County, First Municipal District.

On March 18, 2013, after a bench trial, Respondent was found guilty of domestic batter in case number 13 DV 7455001. The court sentenced Respondent to 18 months of court supervision and fined him $500 plus court costs.

(Mike Frisch)

April 14, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, April 13, 2016

Convicted Attorney Faces Bar Discipline

A story in the Columbus Dispatch details information about a number of convicted Ohio attorneys

Nearly a dozen lawyers a year are convicted of felonies in Ohio, but few face the kind of charges that are likely to send Javier Armengau to prison.

“The ones I’m aware of usually fall into two groups — stealing or embezzling from clients and drug charges due to an addiction,” said S. Michael Miller, who served as Franklin County prosecutor for more than 17 years before becoming a defense attorney in 1996. “It’s very rarely anything involving violence.”

A Franklin County jury convicted Armengau on Monday of single counts of rape, kidnapping and public indecency, four counts of sexual battery and two counts of gross sexual imposition. The victims were two clients and the mother of a client.

The rape and kidnapping convictions mean that the 52-year-old Armengau is likely to be sent to prison when he is sentenced on Aug. 12. The maximum sentence for all the convictions, if imposed consecutively, would be 41 years.

Yesterday, Common Pleas Judge David W. Fais refused to declare a mistrial in the case. Armengau’s attorneys had argued that prosecutors should have told them that an accuser who traveled from Venezuela to testify at the trial had asked the prosecution to help her stay in the United States.

“The court finds no evidence that the state had any agreement, express or tacit, with (the woman) regarding her green card or immigration status,” Fais wrote. “The court further finds that although (she) clearly expressed that she was disappointed by the lack of help she received from the prosecution, her subjective want or need for help regarding her immigration status is not evidence that there was a mutual understanding or agreement that the prosecution would help (her) in exchange for her testimony.”

The Ohio Supreme Court suspended Armengau’s law license on an interim basis the day after his conviction. The decision was in response to a June 16 request by the Columbus Bar Association, although an automatic suspension typically occurs as soon as the court receives a certified copy of a felony conviction for a lawyer.

On Wednesday, the bar association appointed Columbus lawyer Dennis McNamara to begin reviewing Armengau’s files to determine whether any of his clients need help finding a new attorney. Armengau continued to practice law and obtain clients until his conviction.

Clients who paid Armengau for legal services that weren’t rendered and are unable to recover their money can file a claim with the Supreme Court’s client security fund, said bar counsel Bruce Campbell. Information is available at 1-800-231-1680.

Pat Sheeran, administrative judge for Franklin County Common Pleas Court, said he instructed the clerk’s office to send a memo to all of Armengau’s Franklin County clients to alert them to their next court date.

Those who are unaware of his license suspension will learn about it and their need for a new attorney when they appear in court, he said.

The article also identifies other Ohio attorneys convicted of felony offenses.

A Dispatch report on the jury verdict quotes one of the defense attorneys.

Jennifer Coriell, one of Armengau’s attorneys, called the verdicts “a miscarriage of justice in every way” and said an appeal will be filed. She said the accusers’ testimony included inconsistencies and the judge allowed jurors to hear “a lot of testimony that should have been kept out.”

(Mike Frisch)

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ex-Girlfriend And Her Ex-Husband issues Endanger Lawyer's Child

A stayed one-year suspension has been imposed by the Ohio Supreme Court.

After a day of drinking at a bar, Salters drove to his ex-girlfriend’s apartment and got into a physical altercation with her ex-husband. Later that night, after picking up his two-year-old daughter, Salters returned to the bar, leaving his daughter asleep in his vehicle while he went inside to drink alcohol. When bar employees advised Salters that they had found his daughter awake in the car, he brought her into the bar. Salters then drove from the bar to his ex-girlfriend’s apartment and forcibly entered the apartment, leaving his daughter in the vehicle. The ex-husband and some other occupants of the apartment hit Salters and forced him out. When the police arrived, Salters failed to advise them that his daughter was in his car. She was subsequently discovered by an officer who heard her crying as he was canvassing the area.

Salters pled guilty to charges of trespassing in a habitation, a fourth degree felony, operating a motor vehicle while intoxicated, a first-degree misdemeanor, and child endangering, a first-degree misdemeanor. He received a suspended 15-month prison sentence and was placed on community control for three years for the trespassing charge, was ordered to serve a 30-day jail sentence for the drunk-driving charge, and received a suspended five-month jail sentence for the child-endangering charge. Salters was also ordered to pay $5,290 in restitution for the injuries and property damage that he caused as well as $2,500 in fines. Upon notification of his conviction, we suspended his license on an interim basis.

There was mitigation

The parties stipulate that the mitigating factors include the absence of a prior  acceptance of responsibility for his actions, his full and free disclosure to the board and his cooperative attitude toward the proceedings, the imposition of other penalties, and his entering into and complying with a recovery contract with the Ohio Lawyers Assistance Program ["OLAP"].

He must complete his criminal probation and maintain compliance with OLAP conditions. (Mike Frisch)

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

From Reprimand To Resignation

A Florida public reprimand for having sex with a matrimonial client drew much heavier reciprocal discipline in New York.

The [Departmental Disciplinary] Committee moves for an order imposing reciprocal discipline in the form of a two-year suspension, or, in the alternative, sanctioning respondent as this Court deems appropriate. In response, respondent requests that he be permitted to resign pursuant to 22 NYCRR 603.11.

The Appellate Division for the First Judicial Department ordered accepting the attorney's offer of resignation.

The facts

The Florida Bar filed a complaint against respondent in 2013, charging him with engaging in misconduct by having sexual relations with a matrimonial client during the course of the representation. In 2014, respondent, represented by counsel, entered into a stipulation and consent judgment whereby he admitted that, inter alia, a client retained him in 2008 to represent her in a dissolution of marriage proceeding, and that in 2009 "he did engage in one isolated and consensual improper personal encounter with [his client] at the time that her case was concluding." He consented to a public reprimand and agreed to pay the costs incurred by the Florida Bar in connection with the disciplinary proceeding. The Supreme Court of Florida approved in full an uncontested Referee's report — recommending discipline in accordance with the stipulation and consent judgment — and publicly reprimanded respondent by order dated April 10, 2014.

 Clearly a reprimand would not be imposed  in New York

We find that respondent's misconduct contravenes New York's strong public policy prohibiting lawyers from engaging in sexual relations with clients in domestic relations matters during the course of their representation (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.8[j][1][iii] ["A lawyer shall not . . . in domestic relations matters, enter into sexual relations with a client during the course of the lawyer's representation of the client"]). Although this Court noted in 1991 that "no jurisdiction in the United States ha[d] adopted an ethical code provision expressly proscribing sexual involvement between a lawyer and a client, whether the representation involves a matrimonial matter or otherwise" and that the disciplinary rules then in effect "contain[ed] no such prohibition" (Edwards v Edwards, 165 AD2d 362, 368 [1st Dept 1991]), this is clearly no longer true (and has not been for quite some time).

In 1993, the late Chief Judge Judith S. Kaye "announced sweeping changes" to matrimonial practice, including the prohibition of "sexual relations between attorney and client during the course of representation" (Edward A. Adams, Divorce Law Reforms Unveiled, NYLJ, Aug. 17, 1993 at 2, col 4). The rule was approved by the Presiding Justices of all four departments of the Appellate Division following a May 1993 report by the Committee to Examine Lawyer Conduct in Matrimonial Actions, and was incorporated into part 1400 of the court rules (and later moved to DR 1-102[A][7] [22 NYCRR 1200.3(a)(7)] of the Code of Professional Responsibility). Although the rule originally applied only in the context of domestic relations matters, in 1999 restrictions on lawyers' sexual conduct with clients were expanded to include all areas of practice, and the language of the rule was again moved to DR 5-111 (22 NYCRR 1200.29-a)...

"Because domestic relations clients are often emotionally vulnerable, domestic relations matters entail a heightened risk of exploitation of the client. Accordingly, lawyers are flatly prohibited from entering into sexual relations with domestic relations clients during the course of the representation even if the sexual relationship is consensual and even if prejudice to the client is not immediately apparent" (rule 1.8, comment 17).

For these reasons, notwithstanding respondent's position that the improper relationship with his client in the Florida divorce proceeding was an isolated, consensual incident at the time the case was drawing to a close, his misconduct was in clear violation of Rule 1.8(j)(1)(iii) and cannot be ignored. Moreover, although the Committee requests reciprocal discipline, we find that disciplinary resignation is an appropriate resolution of this matter (see Matter of Valley, 123 AD3d 176 [1st Dept 2014]; Matter of Kelly, 226 AD2d 1 [1st Dept 1996]).

The attorney practices in New Mexico. (Mike Frisch) 

April 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)