Thursday, February 19, 2015

No Violation For Assisting Client In Revoking Power Of Attorney

The North Dakota Supreme Court has dismissed ethics charges against an attorney who was alleged to have violated Rule 1.14 in his representation of a client who desired to revoke a power of attorney.

Here, Runge was retained for the purpose of helping [client] Franz execute necessary documents to leave [living facility] Missouri Slope. According to Runge, he ascertained no conservatorship or guardianship was in place for Franz, but found a power of attorney designating [daughter] Pfeifer as Franz's attorney-in-fact existed. Runge indicated he talked to Franz on the telephone on April 2, 2013, and Franz expressed his desire to leave the nursing home. Runge stated he drafted the revocation of the power of attorney for Franz and took the document to the nursing home on April 2, 2013, where he personally met with Franz and discussed the ramifications of the revocation. According to Runge, Franz signed the revocation after indicating he understood the document. Runge stated concerns about Franz's health may have existed when Franz first arrived at the nursing home in October 2012, but those concerns did not exist in April 2013, and the decision to leave the nursing home was Franz's decision. The evidence indicates Runge was adequately and reasonably able to evaluate Franz's capacity from the telephone conversation and in the personal meeting with Franz at Missouri Slope on April 2, 2013. Runge's assessment of Franz's capacity was within the range of a lawyer's exercise of professional judgment...

Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013. Nothing indicates Runge did not understand the limited powers conferred upon Pfeifer by the power of attorney and by the emergency care statement when Franz executed the revocation of the power of attorney on April 2, 2013. This Court recognized the rules of professional conduct set a minimum level of conduct for discipline. See Disciplinary Action Against McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661. Runge's communications with Franz demonstrated Franz's ability to articulate the reasons for his desire to leave the nursing home and to appreciate the consequences of his decision. See N.D.R. Prof. Conduct 1.14 cmt. 6 (outlining factors for assessing capacity). Although Runge could have contacted Pfeifer before Franz executed the revocation of the power of attorney, N.D.R. Prof. Conduct 1.14 did not require him to contact her after ascertaining Franz's capacity. We conclude clear and convincing evidence does not establish Runge violated N.D.R. Prof. Conduct 1.14. The complaint against Runge is dismissed.

The Disciplinary Board had issued an admonition.

I do not recall a case where an alleged Rule 1.14 has been the sole charge.

The rule concerning clients with diminished capacity is not designed with enforcement intentions (in sharp contrast to many other rules). It reads more like an "ethical consideration" under the old Code of Professional Responsibility.

You do see the rule invoked as a defense or explanation in disciplinary proceedings.  (Mike Frisch)

February 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wyoming Bar Counsel Concludes Arizona "Overcharged" Attorney

The Wyoming Supreme Court has issued a public censure of an attorney for misconduct in connection with the representation of a client in a high-profile Arizona bar discipline matter.

The attorney had represented former deputy county attorney Lisa Aubuchan in both bar disciplinary and as a plaintiff in civil proceedings.

Aubuchan was disbarred.

The defendants in the civil suit were Phoenix attorneys who filed the bar complaint when the case was dismissed.

In the Arizona bar matter, the attorney was alleged to have filed the civil suit in bad faith and lied to Arizona Bar Counsel by claiming that the representation was pro bono when in fact there was a contingent fee arrangement.

He "decided not to contest the disciplinary proceedings" and consented to disbarment in Arizona.

In this reciprocal proceeding, Wyoming Bar Counsel concluded that Arizona Bar Counsel had"overcharged" the case.

The attorney claimed that he accepted disbarment in Arizona with the understanding that he could contest sanction in his other jurisdictions. The record offered support for his asserted understanding.

The court accepted his challenge to reciprocal discipline, finding that the record only sustained the frivolous litigation charge. The  sanction was reduced from disbarment to censure.

It is most unusual to see a reciprocal disciplining court essentially accept the proposition that the disciplinary process in another jurisdiction was untrustworthy.

Two federal courts had deferred consideration of reciprocal discipline pending the resolution of this proceeding.

This is a case that likely will generate interest among disciplinary counsel around the country.  (Mike Frisch)

February 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Similar To Playboy Photos Get Attorney Convicted, Disbarred

A criminal conviction has led to an order of disbarment by the New York Appellate Division for the Second Judicial Department.

...the respondent was charged in the Court of Common Pleas of Delaware County, Ohio, with three counts of unlawful sexual conduct with a minor, three counts of illegal use of a minor in nudity-oriented material or performance, three counts of illegal use of a minor in nudity-oriented material or performance, and one count of rape.

On February 5, 2013, the respondent entered a written plea of no contest to two counts of attempted illegal use of a minor in nudity-oriented material or performance (a lesser included offense of the crime set forth in counts four and six of the above-referenced indictment), in violation of § 2923.02(A) of the Ohio Revised Code, as it relates to § 2907.323(A)(1). On May 10, 2013, Judge W. Duncan Whitney of the Court of Common Pleas of Delaware County, Ohio, sentenced the respondent to 24 months of imprisonment for both crimes, to run concurrently, and directed him to pay the costs of prosecution, and fines totaling $20,000. In addition, because he had been found to be a "Tier II Sex Offender/Child Victim Offender Registrant," he was advised to register as a sex offender in accordance with § 2950.032 of the Ohio Revised Code.

The respondent is currently incarcerated at a correctional facility in Orient, Ohio.

The Delaware County Court of Appeals affirmed the conviction and described the conduct

Appellant's convictions for attempted illegal use of a minor in nudity oriented material or performance stemmed from two photographs sent to him from a fifteen year old girl. One photograph depicted the girl topless, and the second photograph depicted an exposed nipple.

The court rejected the attorney's constitutional and other claims

We conclude the photographs depict nudity. As to a lewd exhibition, the subject is posed; therefore, the photographs are an exhibition. The posed partially clothed subject is not in a normally posed fashion. The poses are inherently sexual as the subject arched her back and fully exposed her breasts. These photographs are similar to images portrayed in "Playboy" whose main purpose is to exhibit sexual behavior that approaches sexual innuendo.

Upon review, we find the convictions for attempted illegal use of a minor in nudity oriented material or performance were not against the manifest weight of the evidence.

The attorney had appealed after entering an Alford plea. (Mike Frisch)

February 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unbundled

The California State Bar Court Review Department has recommended a 90-day suspension for an attorney's misconduct in several loan modification matters

 Two Notices of Disciplinary Charges alleged that from 2010 to 2012, he collected legal fees before completing each loan modification service outlined in a single retainer agreement. A loan modification law enacted in 2009 prohibits collecting any fees until each and every loan modification service contracted for has been performed; it is designed to protect the borrower.

The Review Department rejected the attorney's "advice of counsel" defense

 The record reveals that [the attorney] received conflicting information about "unbundling" his legal services from knowledgeable professionals in the industry, including attorneys, and from State Bar representatives. Even so, much of his misconduct occurred while the State Bar was investigating him about collecting fees for the unbundled services. Scurrah’s reliance on the advice of other attorneys is not a defense to his wrongdoing, but it does warrant mitigation.

 The attorney's constitutional challenge to the 2009 loan modification law that forbade the fee collection prior to completion of services also was rejected. (Mike Frisch)

February 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2015

Suspension For Domestic Violence

A Colorado attorney has been suspended as a result of a domestic violence conviction

On October 22, 2013, Stefu was arrested in connection with an incident involving domestic violence. He entered a plea of guilty to a class-six felony of conspiracy to commit felony menacing in Adams County District Court on August 29, 2014. Although much of the conduct underlying the criminal charges is controverted, Stefu admits that he pushed his wife down onto a couch and placed his hand on his mother-in-law during an argument with her. Stefu was sentenced to two years of probation, ordered to perform forty-eight hours of community service, and assessed charges and fees.

The suspension is for two years with at least 60 days served.

He also must complete his criminal probation before he can seek reinstatement.  (Mike Frisch)

February 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Like a Daughter

An indefinite suspension with no reinstatement for at least a year was imposed by the Minnesota Supreme Court for misconduct described by the court

The respondent attorney engaged in misconduct by entering into an investment agreement, which amounted to an unsecured $500,000 loan, and several related business transactions with a client in violation of his obligations under the rules of professional conduct regarding conflicts of interest. The attorney also made misrepresentations to a client and opposing counsel in the course of a civil lawsuit, and to the Director during the disciplinary investigation, caused harm to his client, and did not demonstrate genuine remorse for the misconduct. 

The circumstances

The misconduct in this case relates to D.S., who was a member of Severson’s household. D.S.’s childhood history was tragic. When D.S. was 3 months old, her parents were killed in a car accident. D.S. was the sole beneficiary of various insurance proceeds that were placed in a conservatorship administered by her adoptive mother (mother). When D.S. was in high school, she experienced serious conflicts with her stepfather that they could not resolve. As a result, D.S. asked and Severson agreed that she would become a member of the Severson household. The Seversons thereafter treated D.S. like a daughter.

The attorney received the conservatorship proceeds after D. S. became an adult. He used the half million as investment funds on her behalf but got into financial difficulty

In January 2007, D.S. requested that Severson return the $500,000 to her. Because Severson was unable to consummate a sale of the FSSCF stock, Severson was unable to return D.S.’s principal. By 2008, Severson was in serious financial trouble. Notably, Severson had acquired an equine center in 2007 and later sold the facility for $1.5 million on a contract for deed, but the purchasers defaulted on the contract. Thereafter, Severson assigned his seller’s interest in the equine center to D.S. as security for her principal, and had D.S. sign a $250,000 mortgage regarding their interest in the equine center; but Severson did not explain to D.S. that he had her sign the documents because of his financial difficulties.

D.S. hired an attorney who sought return of the money and an accounting. The attorney responded with false representations that persisted in the disciplinary investigation.

The court rejected the attorney's claim that D.S. was not his client and thus that there was no Rule 1.8(a) violation.

In sum

We conclude that the referee’s finding that Severson’s motivations were not selfish was not clearly erroneous. Severson testified that he intended to subsidize D.S.’s education through the investment agreement because he knew he could not obtain a 9% return on the investment. Severson also testified that the original purpose for assigning the equine center to D.S. was to provide a source of payment for her inheritance. This testimony supports the referee’s finding that Severson’s motivations were not selfish. In sum, we uphold all but two of the referee’s findings. We conclude the referee clearly erred when he found that Severson misrepresented to his bank that D.S. was his daughter, and clearly erred when he did not find that Severson’s lack of remorse was an aggravating factor...

Severson’s misconduct harmed D.S., who trusted him. It took D.S. several years to recover some of her principal from Severson, she had to hire an attorney in order to do so, and in the end, she lost at least one-third of the principal she had given to Severson...

We conclude that when considered in its totality, Severson’s misconduct is very serious. Severson violated the conflict of interest rules by entering into an investment agreement with a client that involved a substantial sum of money and had terms that were unfair and unreasonable. Severson further violated the rules by having that same client assign and mortgage her interest in a building without disclosing that doing so was for his benefit. These business transactions harmed the client, who had to sue Severson in order to get her money back and in the end did not recover one-third of the principal she had entrusted with Severson. Moreover, Severson committed multiple acts of dishonesty by failing to disclose that the assignment and mortgage of the equine center was for his own personal interest, failing to disclose that he, and not his law firm, generated four invoices he used to try to obtain an offset of the amount he owed the client, and making misrepresentations to the Director. Also, Severson did not exhibit remorse for his misconduct, or the effect his misconduct had on his client. Severson has not cited any case that includes multiple misrepresentations and conflicts of interest, involving a substantial sum of money, in which we have imposed a suspension of less than 1 year. We therefore conclude that the appropriate discipline is an indefinite suspension with no right to petition for reinstatement for a minimum of 1 year.

(Mike Frisch)

February 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 17, 2015

Suspension For Law Firm Embezzlement

The Wisconsin Supreme Court has imposed a two-year suspension of an attorney who embezzled from his law firm

 Attorney Koenig accepted payments from the firm's clients without the firm's knowledge and then cashed those checks at Summit Credit Union where he maintained an account.  He also received money for legal work that he performed for acquaintances who paid him directly.  Attorney Koenig normally performed such work during regular law firm office hours and he used the firm's equipment, supplies, and staff.  Although a Kohls firm attorney would have been permitted to perform work for family or perhaps close friends at no charge, it was understood by the firm's employees that any legal work performed by an employee should be reported to the firm.  It was also understood by the firm's employees that all billings for legal work should be reported to the firm.

Attorney Koenig received other funds for honorariums and reimbursements for presenting continuing legal education programs or public workshops that he also did not turn over to the firm. 

The attorney stipulated to the misconduct and agreed with the sanction. The diverted fees amounted to nearly $40,000. (Mike Frisch) 

February 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Hazardous Waste

A 90-day suspension has been imposed by the Wisconsin Supreme Court for an attorney's criminal conviction and client-related misconduct.

The crime

On April 18, 2012, the OLR filed a complaint alleging the nine counts of misconduct that underlie this appeal.  The complaint alleges that on July 20, 2005, Attorney Hammis was convicted in the Court of Common Pleas, Tuscarawas County, Ohio of the crime of reckless endangering, a first degree misdemeanor under Ohio law.  Attorney Hammis did not report his conviction to the OLR or to the clerk of this court as required by supreme court rules.  Attorney Hammis was to pay all court costs in the Ohio criminal matter.  The Tuscarawas County Clerk of Court prepared an itemized bill of costs and sent it to Attorney Hammis on August 24, 2005.  The itemized bill of costs was repeatedly mailed to Attorney Hammis—at least 26 times—but Ohio court records indicated he had not paid the costs, which totaled $232.16 as of September 13, 2010.

The Ohio criminal matter arose while Attorney Hammis was the president, operator, and sole member of ST&E Fabrication, LLC (ST&E).  The OLR's complaint alleged that ST&E was charged in a separate companion criminal case in which Attorney Hammis pled guilty on behalf of ST&E to two felony counts of illegal transportation of hazardous waste and illegal disposal of hazardous waste. 

As to sanction

With respect to the appropriate level of discipline, after careful review of the matter, we conclude that a 90-day suspension is appropriate.  This is not the first time that Attorney Hammis has been found to have committed professional misconduct.  Some of the behavior in this case mirrors the misconduct that resulted in his four-month license suspension back in 2011.  Although Attorney Hammis argues that the referee was biased against him, the referee found Attorney Hammis's version of events to be incredible.  Credibility determinations are particularly within the province of the trier of fact, and we find no basis to second-guess them. 

In addition, as an inmate, I.B. was a particularly vulnerable client.  All of these factors weigh against imposing a public reprimand.  On the other hand, it is arguable that there may be some overlap between some of the counts alleged in the OLR's complaint. On balance, we conclude that a 90-day suspension, which was the level of discipline originally sought by the OLR, rather than the four-month suspension recommended by the referee, will sufficiently protect the public from similar misconduct and impose upon Attorney Hammis the gravity of the misconduct.  We further agree with the referee's recommendation that Attorney Hammis be ordered to make restitution to I.B. in the amount of $995 and that he bear the full costs of this proceeding.

(Mike Frisch)

February 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Lawyer Suspended For Plot To Kill Former Business Partner's Lawyer

A Michigan attorney has been suspended as a result of his recent guilty plea to solicitation to commit murder.

This report from Michigan Live

Authorities alleged [attorney] Gomery, a former prosecutor, tried to pay contractor Dale Fisher $20,000 to murder attorney Christopher Cooke.

Gomery allegedly sought the murder ahead of hearing in a bankruptcy case.

Cooke represented Gomery's former business partner, Fred Topous Jr., in lawsuit. In 2013, a jury found Gomery had fabricated documents that would have given him half interest in the former Mitchell Creek Golf Course property in East Bay Township, which Gomery and Topous formed a business partnership to buy in 2009.

Gomery was ordered to pay Topous $314,000. Gomery filed for Chapter 13 and 7 bankruptcy protection in an attempt to discharge the large debt owed to Topous, who sued Gomery in 2012.

Topous, a convicted sex offender and $57 million lottery winner, was a former client of Gomery's whom the accused lawyer represented in a 2008 car accident case.

Gomery's trial was delayed due to health issues with his attorney Frank Stanley. He was arrested July 14. In December, 13th Circuit Court Judge Philip Rodgers denied a motion by Stanley to pursue an entrapment defense in the case.

Gomery served as Leelanau County Prosecutor from 1997 to 2000, and as Grand Traverse County assistant prosecutor from 1991 to 1993.

The interim suspension was imposed as a result of the felony plea. (Mike Frisch) 

February 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Charges Dismissed; Dissent Concludes Attorney Used Bond Challenge As Extortion

The Georgia Supreme Court has dismissed ethics charges against an attorney accused of dishonesty and unauthorized communication with a represented party.

The court interpreted Rule 4.2 to permit communications between an attorney and in-house counsel even where the entity client also has outside counsel, relying on the reasoning of a D.C. Bar ethics opinion.

Such lawyer-to-lawyer communications do not violate the rule.

Notably, the court had earlier rejected a voluntary petition for a reprimand. The court then expressed concern about the leniency of a reprimand in light of the dishonesty allegations.

The Review Panel had found misconduct and proposed a six-month suspension and panel reprimand,

The court majority also absolved the attorney on charges relating to his filing objections to the validation of bonds and offer to withdraw the exceptions if the developers paid him a substantial amount of money.

The court noted that the State Bar did not charge the attorney with litigation abuse and expressed no opinion as to whether the attorney's conduct violated Rules 3.1 and 3,5.

Justice Benham dissented.

He would find that the conduct of the attorney was dishonest and would impose a six-month suspension.

According to the dissent, the attorney filed two validation challenges amounting to $1.3 billion and offered to drop them immediately if the developers  paid him $1,3 million. This was a "dishonest attempt to leverage his constitutional challenge into an extortion of money for himself."

Justice Benham agreed with the trial court that this was "egregious, improper and appalling" conduct.

 Justice Hunstein agreed. (Mike Frisch)

February 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, February 13, 2015

Good Deed Leads To Punishment

The Ohio Supreme Court has issued an order of interim suspension as a result of an attorney's felony conviction.

The Mansfield News Journal had the story of the arrest from last September

John Good never suspected he would have to turn in his former law partner.

Good, now the Ashland Municipal Court judge, called police last week when he discovered nearly $9,000 missing from a former client's trust account.

Tim Potts, an Ashland defense attorney and a former member of the Ashland County Prosecutor's Office, has been charged in the case.

Potts, 43, pleaded not guilty Tuesday to charges of grand theft (two counts), obstructing justice, forgery, passing bad checks, falsification, endangering children, possession of cocaine, possession of heroin and possession of drug paraphernalia.

Potts and Good both worked under former Prosecutor Robert DeSanto, then formed a legal partnership until Good became municipal court judge in 2012.

"I was shocked," Good said. "I would not imagine that Tim Potts would do something like this. I never had any reason to believe Tim Potts was involved in drugs or that he would steal.

"I feel bad for his family, but I don't feel bad for him at all."

Because of Potts' ties to Ashland court officials, the Richland County Prosecutor's Office is handling the case. Retired Stark County Common Pleas Judge Charles Brown Jr. is presiding.

Rolf Whitney was appointed to represent Potts. He could not be reached for comment.

Richland County Assistant Prosecutor Gary Bishop is sharing the duties with fellow Assistant Prosecutor Cliff Murphy. Bishop explained the charges.

"It's alleged that he got involved in drug use," Bishop said of Potts. "It's alleged that he went to his former partner's office and started taking money out of a client's trust account."

Bishop said Good's law partnership with Potts dissolved when the former was elected.

"The client trust account was supposed to be dissolved as well," Bishop said. "It was except for one client's money. It's alleged that Mr. Potts went in and took the money out of that account."

Bishop has tried cases against Potts.

"It's a little uncomfortable prosecuting a professional colleague," he said. "It's also uncomfortable because we want to do everything by the book so the public understands there won't be any special treatment in this case."

Good agreed, saying he didn't hesitate to report his colleague.

"It's a sad situation," he said. "It's just a little bit hard for me to generate much sympathy."

(Mike Frisch)

February 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2015

Dueling Emails Reference Dueling Banjos

An Arizona attorney was placed on probation and admonished for his communications with a prospective client for whom he had performed services but not been compensated.

After sending an invoice that was not paid

Complainant and [attorney] Mr. Wilenchik “…exchanged dueling emails that grew increasingly insulting and off-color…” when Complaint emailed, “I told jerry I would take care of you. Now you can f—k off!” This resulted in Mr. Wilenchik stating he didn’t “…want his d—n money anyway…” Complainant replied, “Bring it b---h!” As conditionally admitted in the agreement, the emails spiraled downward.

Part of that "downward spiral" was in the response to the "bring it" comment:

OK drug dealer - I look forward to the many nights and mornings when you think of my name and squeal - you mean nothing to me. Check out the movie Deliverance.

The complainant owns a medical marijuana consulting business.

The conditional admission concedes a violation of Rule 41(g), which, among other things, obligates attorneys to avoid engaging in unprofessional conduct. 

Note that the violation is of a Supreme Court rule rather than a Rule of Professional Conduct.

Practice pointer: Don't give into the natural impulse to hit the "send" button. (Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ten Day Sit Down For Failure To Appear

An attorney who had failed to appear for his client's resentencing was suspended for 10 days by the Florida Supreme Court.

The court rejected the referee's proposal of a public reprimand.

Cohen was hired to represent a client at a resentencing hearing in the client’s criminal case pursuant to Graham v. Florida, 560 U.S. 48 (2010). On March 15, 2012, Cohen was mailed a Notice of Hearing, indicating that the resentencing hearing was scheduled for March 28, 2012. The referee found that Cohen received the Notice on March 19. On the same day, Cohen filed a "Motion to Continue Resentencing Hearing and Notice of Unavailability," asserting that the notice provided for the Graham resentencing hearing was not reasonable and that he did not have adequate time to prepare; Cohen also stated in the motion that he was unavailable on March 28 because he was previously retained to prepare a petition for writ of certiorari on behalf of another client. Significantly, Cohen did not indicate in the motion whether the State agreed to the continuance, he did not submit a copy directly to the presiding judge, and he did not set the motion for a hearing.

Because the client’s resentencing hearing had not been continued, on the day set for the hearing, March 28, 2012, the presiding judge traveled from the county where he was then assigned to the county where the hearing was to take place; the judge had reserved a courtroom and scheduled court staff in order to conduct the hearing. The assistant state attorney, the client, and the client’s former appellate attorney were also present. However, Cohen did not appear. As a result, the presiding judge was forced to reschedule the hearing for a later date. The judge testified before the referee, without hesitation, that had Cohen appeared at the hearing and requested a continuance, the judge likely would have granted his request. The assistant state attorney also testified that she had no objection to Cohen’s request for a continuance. However, Cohen simply chose not to attend. The referee found that Cohen has substantial experience in the practice of law, and particularly in the practice of criminal law, and he should have known that his motion to continue was not self-executing. The resentencing hearing was properly noticed and it had not been continued; thus, Cohen was required to appear.

Following the hearing, the referee noted that Cohen made no personal effort to contact the presiding judge to explain his absence.

The judge reported the lapse to the State Bar.

The court here concluded that the intentional nature of the misconducted warranted a short suspension. (Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Criminal Assault Sanction Imposed

A six-month suspension with credit for time served on an interim suspension was imposed by the South Carolina Supreme Court as discipline for an attorney's assault and battery conviction.

As part of his probation, an evaluation for substance abuse, anger, and sexual deviance was performed. After testing, the evaluator did not classify respondent with a substance abuse diagnosis and determined respondent did not need to participate in a substance abuse class or alcohol counseling. Regarding respondent's risk for sexual offense, the evaluator determined respondent has low risk indicators, suggesting respondent would not knowingly violate his own or another person's boundaries.

The parties had agreed to this disposition.

Carolina Live reported the arrest. The attorney had been a public defender. (Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Profane Magistrate Disciplined

Stephanie Breouger reports on the web page of the Ohio Supreme Court

The Ohio Supreme Court today has suspended a long-time  magistrate accused of abusive and disrespectful conduct.

The Supreme Court ruled 4-2 to suspend Stephen E. Weithman  of Delaware for two years, stayed, for violating  professional conduct rules. Weithman served as a magistrate for more than 30 years,  most recently in the Delaware County Common Pleas Court Domestic Relations Division.

Among the charges brought by the Disciplinary Counsel, Weithman  was accused of making inappropriate comments during a contentious case of a woman  who claimed her ex-husband was in contempt of court for posting nude pictures  of her on the Internet. Weithman lost his temper during a March 2007 hearing  and went on a profanity-laced tirade. During the trial in 2008, Weithman jokingly  told the ex-husband’s lawyer he would pay him a dollar to make the ex-wife cry  on the stand. He was also accused of looking at the ex-wife in a “demeaning and  degrading fashion” in the hallway.

In another case from 2013, he used abusive, vulgar language  and yelled at a husband’s lawyer while threatening to delay the divorce.  Weithman refused to recuse himself, but was later removed from the case by the  trial court after the husband’s lawyer filed a motion challenging his  impartiality.

While the Board of Commissioners on Grievances and  Discipline, now known as the Board of Professional Conduct, recommended  Weithman be suspended for one year, with six months stayed with conditions, the  Supreme Court decided to increase the length of his suspension to two years to “best  protect the public from future misconduct at Weithman’s hand.”

“Weithman’s quick temper, his impatient, disrespectful, and  profanity-laced rants directed toward the litigants and counsel who appeared in  his courtroom, and his failure to curb displays of disrespect and excessive  familiarity exhibited by counsel who had long practiced in his courtroom have  also compromised public trust and confidence in the independence, impartiality,  and integrity of the judiciary,” the court wrote in the per curiam decision.

His suspension will be stayed as long as he doesn’t engage in any further  misconduct and that he remain in compliance with the terms of a contract with  the Ohio Lawyers Assistance Program for treatment of mental health issues.

Justices Terrence O'Donnell, Sharon L. Kennedy, Judith L.  French, and William M. O'Neill joined in the majority opinion.

Chief Justice Maureen O’Connor and Justice Judith Ann  Lanzinger dissented and would have imposed the one-year suspension with six  months stayed.

Justice Paul E. Pfeifer did not participate in  the decision.

2014-0544. Disciplinary Counsel v. Weithman, Slip  Opinion No. 2015-Ohio-482.

Sampling

This is so goddamn simple. If you give the discovery and don’t do all this bullshit, I don’t have to sit here for hours and listen to this crap. So everybody’s excused.

Goddamn it. Comply with discovery and shut up once in a while. You make 17 hairline things, we’ll do 8 of them but not these 9. Stupid. All Franklin County attorneys are stupid.

And

I don’t know what it is with the Franklin County Attorneys, these Franklin County Attorneys, but they all have to have these Rule 75 hearings in every case, Rule 75 hearings all the time. I’ll give you your Rule 75 hearing but you won’t get a decision on this until the divorce is tried and I’ll continue this divorce for two more years.

The court found mitigation

His treating psychologist reports that Weithman has been forthcoming, has uncovered major triggers for his anger, and has worked hard to interrupt the pattern and correct the ways in which he shows his anger

(Mike Frisch)

February 12, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Tweeting Ethics Explored; Attorney Suspension Proposed

The Louisiana Attorney Disciplinary Board has proposed a year and a day suspension of an attorney charged with using the internet and social media to disparage two judges.

The hearing committee found

Respondent used the internet and social media in an effort to influence Judge Gambrell's and Judge Amacker's future rulings in pending litigation. Respondent's conduct threatened the independence and integrity of the court and was clearly prejudicial to the administration of justice.

Respondent also used her Twitter account to publish multiple tweets linking the audio recordings of the minor children discussing alleged sexual abuse; to publish false, misleading and inflammatory information about Judge Gambrell and Judge Amacker, and to promote the online petition, all of which was designed to intimidate and influence the judges' future rulings in the underlying proceedings.

Respondent knowingly if not intentionally embarked on a campaign using internet, social media and ex parte communication specifically designed to intimidate and to influence the judges' future rulings in pending litigation. Her online campaign to influence judges in pending litigation threatened the independence and integrity of the judiciary. Respondent's conduct also caused the  personal safety.

The board here found that the attorney did not violate the ex parte contact rule but otherwise affirmed the hearing committee's conclusions.

The board

In the instant matter, Respondent made false and misleading statements on the internet and in pleadings. As demonstrated by the cases cited above, the discipline for similar misconduct ranges from suspensions of six months to twelve months. One troubling fact that distinguishes Ms. McCool’s misconduct from these other cases is that she used the internet and social media to facilitate her misconduct. Consequently, the offending language remains present and accessible on the internet today. Furthermore, Respondent has expressed no remorse for her conduct claiming instead it is protected free speech. In addition, Respondent also directly violated several court Orders by releasing and promoting the aforementioned audio recordings which were part of a sealed court record.

(Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Chapter Two Leads To Chapter 7 Problems

The California state Bar Court Review Department has publicly reproved an attorney for mistakes made after moving from her public defender position to private practice.

 After 14 years as a public defender, respondent...began a new chapter in her career as a bankruptcy attorney. One of her first clients was facing imminent eviction. In her haste to file a Chapter 7 bankruptcy petition to stay the eviction, [she] certified to the bankruptcy court that she had been paid $3,100 as her pre-petition legal fee, when she actually had received $950. Moore carelessly repeated the incorrect amount of her fee in an application for a waiver of filing fees, which she filed three days later. Although she subsequently became aware of these errors, she failed to correct them. However, she voluntarily informed an investigator for the Office of the Chief Trial Counsel for the State Bar (OCTC) that she had overstated her legal fee in the bankruptcy matter when the investigator called her to inquire about two other attorneys in an unrelated matter.

The attorney had done death penalty work as a public defender.

The review department agreed with the hearing judge that a reproval was the appropriate discipline.

[The attorney's] wrongdoing, although related to the practice of law, occurred during a time of stress and appears to be aberrational, given her 14 years of discipline-free practice. Her grossly negligent misstatements occurred within a three-day period, and her intentional failure to correct those misstatements occurred over a five-week period. Rather than conceal her misconduct, Moore voluntarily disclosed it to a State Bar investigator. She also testified that she is ready and willing to be disciplined for her misconduct. She has been cooperative and candid from the outset.

The Office of Chief Trial Counsel had sought more severe discipline. (Mike Frisch)

February 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 11, 2015

First Shirt

The North Dakota Supreme Court has reprimanded an attorney for a Rule 3.4 violation in a division of property dispute in the wake of a default divorce matter in which she represented the wife.

The wife rented an apartment from the attorney, who believed that the husband had signed the lease.

The issues before the hearing panel are related to Stanley's actions after the informal disciplinary complaint was filed. After receiving the informal complaint, Stanley called the husband at his workplace at the Minot Air Force Base ("MAFB"). She made multiple calls to MAFB in an attempt to speak to the husband or his "first shirt." A first shirt is a special duty given to a Master Sergeant or higher enlisted rank who acts as a liaison between the enlisted airmen and the command and is in charge of the welfare and morale of the enlisted airmen. The husband stated the signature on the lease was not his and informed Stanley he could not speak to her while he was at work. Stanley then repeatedly called MAFB in an attempt to speak to his first shirt. During the calls, she became frustrated and short tempered after not being put in contact with the husband's first shirt. The hearing panel found the MAFB personnel were not cooperative in directing her call to the appropriate place.

When the husband's first shirt returned Stanley's call, Stanley's statements implied she wanted the husband to be fired. Stanley also asked the first shirt to require the husband to submit to a polygraph test. The hearing panel found Stanley's conduct was retaliation for the disciplinary complaint filing. The hearing panel found her conduct to be harassing, embarrassing, and burdensome to the husband.

The complaint was filed by the husband's new wife. (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Properly Chastised

An attorney who submitted a redacted letter from a treatment facility in support of a plea for leniency in his client's second offense DUI case was publicly censured by the Pennsylvania Supreme Court.

The client had been discharged from the facility for non-compliance with the program. The attorney had his paralegal take that fact out of the version of the letter and submitted the document with a sentencing memorandum. As a result, it appeared that she had completed the treatment.

He also made false representation at allocution.

The Disciplinary Board noted that the attorney was distracted by other matters and motivated by a desire to assist the client, as successful completion of an inpatient program is a significant factor in such cases.

The board concluded that this "is not a suspension matter" and that the sanction "still permit[s] a properly-chastised but nonetheless reputable member of the bar to continue practicing in that community." (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Absolved Of Theft Charges; Majority Cites Pleading Defect

The recommendation of an Illinois Hearing Board is summarized below

The Administrator filed a one-count complaint  against Respondent, alleging that she failed to deposit her client's settlement  funds into her client trust account and hold these funds separate from her own  property. The Complaint also alleged Respondent failed to promptly deliver these  funds to her client's medical providers and failed to provide her client with a  written statement regarding the outcome of a contingency matter. In addition, it  was alleged that Respondent dishonestly used her client's funds for her own  purposes and that her use of these funds constituted the criminal act of theft.  Although Respondent admitted that she improperly handled her client's funds and  failed to provide her client with the written statement regarding the outcome of  the contingency matter as required by the Rules, she denied engaging in any  fraudulent, deceitful or dishonest conduct.

Although the majority of the Hearing Panel found  the Administrator proved by clear and convincing evidence that Respondent  engaged in the majority of the charged misconduct, it found the Administrator  failed to properly plead and prove that Respondent engaged in the criminal act  of theft. After considering the nature of Respondent's misconduct, the  mitigating and aggravating evidence, and case law precedent, the majority  recommended Respondent be suspended from the practice of law for one year, with  the last six months stayed by a period of probation for one year, subject to  conditions.

The board majority view on the Administrator's criminal theft charges

The Administrator bears the burden of proving  Respondent committed the underlying criminal act of theft in order to prove a  violation of Rule 8.4(b). As a result, we are dismayed at the Administrator's  failure to plead in the Complaint that Respondent intended to permanently  deprive Mr. Akporido and/or Rehab and Pain Management of the use or benefit of  the funds. As stated above, proof of this element is necessary to establish she  engaged in the criminal act of theft. We strongly believe that if the  Administrator chooses to charge such a serious allegation of misconduct that  carries criminal connotations, he should, at the very least, ensure the factual  allegations pled in a complaint support the elements that constitute the  criminal offense at issue. This is especially the case when a respondent has  neither been charged with nor convicted of the offense. This assures that a  respondent receives proper notice of the charges against him/her.

A dissent on that point from committee member Stein

I think that the Administrator adequately pled his  charge that Respondent intended to deprive her client - Ayi Akporido - of some  $2,260 that he entrusted to her to pay his creditors. Disciplinary complaints  must "reasonably inform the attorney of the acts of misconduct he is alleged to  have committed." Ill. Sup. Ct. R. 753(b). While no discipline can result from  uncharged misconduct, a disciplinary complaint "need not have the same  specificity as a criminal charge, and the Administrator need not plead every  fact []he intends to introduce in evidence." In re Rice, 95 CH 210, M.R.  13391 (Mar. 21, 1997) (Review Bd. at 7) (citing In re Harris, 93 Ill. 2d  285, 292, 443 N.E.2d 557 (1982)).

The Complaint alleges that Respondent used the  balance of Mr. Akporido's money "to pay her own personal and business expenses,  without authority" and without telling Mr. Akporido that she used his money "for  her own purposes" (Compl. at pars. 9-10). The Complaint also alleges that  Respondent's actions consummated "the criminal offense of theft, in violation of  720 ILCS 5/16-1(a)(1)(A) and Rule 8.4(b) of the Illinois Rules of Professional  Conduct. . . ." (Compl. at par. 11(e)). These allegations gave Respondent  reasonable notice that she stood charged with theft.

In addition to adequately pleading theft, I believe  the Administrator proved this charge even though Respondent paid one of Mr.  Akporido's creditors $500 of the $2,260 that her client owed. Returning some or all of another's ill-gotten  property does not undo the intent to steal it.

I find it an uncomfortable result (at best) to see an accused attorney go free from discipline on what at most is a minor pleading defect.

Charges should be resolved on their merits, not on pleading technicalities, if we are to support the profession's privilege of self regulation. (Mike Frisch)

February 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)