Sunday, August 23, 2015

She's A Rebel

There are not many places where an attorney can fail to cooperate in a bar investigation into escrow account overdrafts, default on bar charges and avoid suspension as final discipline.

One place where that scenario can play out is New Jersey.

The state Supreme Court  reprimanded an attorney based on a Disciplinary Review Board recommendation

 Although an admonition would ordinarily suffice for respondent's recordkeeping irregularities and failure to cooperate with the DEC investigator, we consider, as an aggravating factor, respondent’s default. In a default matter, the appropriate discipline is enhanced to reflect the attorney’s failure to cooperate with disciplinary authorities. "A respondent’s default or failure to cooperate with the investigative authorities operates as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced." In re Kivler, 193 N.J. 332, 342 (2008). Because respondent allowed the matter to proceed to us by way of a default, we determine that the otherwise appropriate level of discipline for her conduct (admonition) should be enhanced to a reprimand.

Notably, however, she has been on interim suspension for the misconduct since May 2014.

It appears that the attorney may be the same person who gained fame as counsel to Phil Spector in his murder trial. (Mike Frisch) 

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Pain Pill Payment Proposal Gets Lawyer Suspended

An order of temporary suspension was imposed by the Kentucky Supreme Court.

The court acted on the request of its Inquiry Commission

The Commission attached the affidavit of Allen C. Trimble, Commonwealth Attorney for the 34th Judicial Circuit, to its petition. According to attorney Trimble, Angie Ballou, a probation and parole officer, reported to him that one of her supervisees, Hope Grundy, had retained Price to assist in a child custody matter. According to Ms. Grundy, Price had done nothing on her case, but he frequently sent text messages requesting more money. In one of those messages, Price stated that he needed that additional money to bribe prosecutors and judges in furtherance of Grundy's case.

After hearing this, Trimble contacted the office of Bar Counsel to report Price's alleged misconduct. Trimble also contacted the Williamsburg Chief of Police, Wayne Bird. Chief Bird then interviewed Ms. Grundy. During the course of the interview, Ms. Grundy received a text message from Price requesting more money. In a subsequent exchange of text messages, Price agreed to accept "15 pain pills" in lieu of a payment of $500.00 in attorney fees. Police officers monitored the subsequent transaction, arrested Price, and charged him with first degree trafficking in a controlled substance.

The court found a sufficient basis to suspend pending further proceedings

After reviewing the petition and attorney Trimble's affidavit, we believe the Commission has supplied us with a reasonable basis to believe that Price poses a substantial threat of harm to his clients or to the public. SCR 3.165(1)(b). Consequently, the Commission's petition for temporary suspension is granted.

(Mike Frisch)

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Failure To Pay Child Support Is Unethical

The Kentucky Supreme Court imposed a suspension of 90 days for an attorney's failure to pay court-ordered child support

The facts are not in dispute. Morgan had a court-ordered child support obligation in the amount of $3,475 per month. In December 2012, he was found in contempt of court for failing to comply with the order. He was given a thirty-day sentence, which was suspended on the condition that he make all his child-support payments. The matter was set for review in the following month. Morgan had not made a payment by that review, and on January 10, 2013, the trial court imposed the thirty-day contempt sentence. Morgan was on work release while in jail and was thus able to continue practicing law. Nevertheless, he had still not paid his child support when released from custody February 9, 2013. As of September 30, 2013, Morgan's child support arrearage was more than $23,000.

He denied that such conduct violated ethics rules

Morgan responded to the initial charge through counsel (his brother), admitting all the factual allegations but denying that they constituted violations of our ethical rules.

The brother withdrew from the case and the attorney "essentially disappeared." 

The court concluded 

We...agree with the trial commissioner that Morgan's failure to provide support for his two minor children "reflects adversely on [his] honesty, trustworthiness or fitness as a lawyer in other respects..." 

For these violations, the trial commissioner recommended Morgan be suspended from the practice of law for ninety days, pointing out that Morgan violated not only duties to his family, but to the legal system and profession as a whole. The Trial Commissioner also noted that all three violations stem from a singular course of conduct—Morgan's repeated failure to pay his child support obligations—rather than from myriad circumstances. The trial commissioner suggested that its recommended ninety-day suspension would not interfere with Morgan's long-term ability to provide for his family. We agree, particularly since neither party has asked this Court for further review.

While Morgan's violations are serious, Morgan does not have a long disciplinary history with the KBA. In fact, his only prior disciplinary matter concerned advertising and resulted in a private reprimand. He also appears to have been suspended recently for failure to pay his bar dues. We understand that all of the current violations are related to Morgan's child support obligations. We do not take this matter lightly, but agree with the trial commissioner that we should not (yet) deprive Morgan of his ability to earn funds with which to support his family through the practice of law for a lengthy time. However, we also point out to him that should he maintain his pattern of habitual nonpayment, the discipline will be much more severe in the event that another complaint on these grounds comes before this Court. 

(Mike Frisch)

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 22, 2015

Reciprocal Suspension For Divorce Contempt

Idaho has reciprocally suspended an attorney based on a Washington State sanction imposed for misconduct in his own divorce

On August 10, 2015, the Idaho Supreme Court issued a Disciplinary Order suspending attorney David A. Goicoechea for one (1) year.  The Idaho Supreme Court’s Order followed a stipulated resolution of an Idaho State Bar reciprocal disciplinary proceeding.

 Mr. Goicoechea was admitted to practice law in Washington and Idaho and practiced law in Spokane, Washington.  On October 10, 2014, the Supreme Court of Washington entered an Order approving a stipulation to one (1) year suspension.  The Washington suspension was effective October 17, 2014.  In the Washington disciplinary case, Mr. Goicoechea stipulated to violations of the Washington Rules of Professional Conduct (RPC) 8.4(c), 3.4(c), 8.4(j) and 8.4(d).  With the exception of RPC 8.4(j), those Washington rules correspond to the same Idaho Rules of Professional Conduct.

 The Washington disciplinary case related to Mr. Goicoechea and his ex-wife’s divorce case.  Mr. Goicoechea was found in contempt numerous times of court orders in the divorce case relating to spousal maintenance payments and his reporting requirements to the court.  The Washington disciplinary case acknowledged as a mitigating factor that Mr. Goicoechea lacked sufficient funds to fully comply with his financial obligations.

 Other than these proceedings, Mr. Goicoechea has no disciplinary history in Idaho or Washington.

  Mr. Goicoechea voluntarily did not practice law in Idaho since the date of his Washington suspension and the Stipulation provided for and the Idaho Supreme Court ordered that Mr. Goicoechea’s suspension in Idaho would be retroactive to October 17, 2014 and will last until October 17, 2015.

(Mike Frisch)

August 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 21, 2015

Copyright Troll Ethics Charges

The Illinois Administrator has filed an amended complaint alleging misconduct in copyright infringement matters

In or about 2010, Respondent Steele created the law firm known as Steele Hansmeier, PLLC ("Steele Hansmeier"), with attorney Paul Hansmeier ("Hansmeier"), who was admitted to practice law in Minnesota in 2007. Between September 2010 and November 2011, Steele Hansmeier maintained an office at 161 N. Clark Street, Suite 3200, in Chicago, and concentrated its practice in copyright infringement matters filed on behalf of entities which purported to own exclusive copyrights to pornographic videos. At all times alleged in this complaint, Steele Hansmeier also maintained a registered business address at the Alpha Law Firm, 80 S. 8th Street, Suite 900, in Minneapolis.

In or about 2010, Hansmeier created the law firm known as Alpha Law Firm ("Alpha Law") which maintained an office in Minneapolis. Alpha Law was affiliated with Steele Hansmeier, and Respondent Steele appeared in certain matters as an attorney of Alpha Law. In matters which Alpha Law handled for certain pornographers, proceeds were paid and deposited into a bank account maintained by Prenda Law, an entity further described in paragraph 4 below.

In or about November 2011, Paul Duffy, an Illinois attorney licensed in 1992 who died on August 10, 2015, and Respondent Steele agreed that they would create a successor law firm to Steele Hansmeier that would operate under the name Prenda Law, Inc. ("Prenda Law"). Paul Duffy and Respondent Steele agreed that Prenda Law would take over Steele Hansmeier’s copyright infringement practice on behalf of pornographers. Respondent Steele and Paul Duffy further agreed that Respondent Steele would continue to perform the same work for Prenda Law that he had performed for Steele Hansmeier, including filing pleadings and communicating with opposing counsel, handling the financial aspects of the firm, and managing client relationships. Respondent Steele and Paul Duffy also agreed that Hansmeier would continue to practice with Prenda Law. At all times alleged in this complaint, Prenda Law maintained its office at 161 N. Clark Street, Suite 3200, in Chicago, having assumed the office space of Steele Hansmeier. In 2012 in a Florida litigation matter, Paul Duffy held himself out to the court as a principal of Prenda Law.

In 2013, in California litigation, Respondent Steele was identified by his client’s local counsel as a decision maker of Prenda Law.

In or about November 2012, Respondent Steele and Paul Duffy created a law firm known as The Anti-Piracy Group, LLC ("Anti-Piracy Group"), as a successor law firm to Prenda Law because Prenda Law’s litigation practice was receiving negative publicity. The Anti-Piracy Group took over the copyright infringement practice of Prenda Law, and assumed Prenda Law’s office suite in Chicago.

At all times alleged in this complaint, Respondent Steele and Paul Duffy’s law firms maintained a website at wefightpiracy.com.

Among the allegations

 Between 2010 and 2012, Respondent Steele and Paul Duffy represented business entities which produced pornographic movies and videos in copyright infringement matters. Beginning in or about 2012, Respondents also began representing limited liability companies organized in the Federation of St. Kitts and Nevis, West Indies. These companies purported to own the exclusive copyrights to adult entertainment videos through an assignment of copyright interests. At all times alleged in this complaint, St. Kitts and Nevis had laws preventing the recording or disclosure of corporate ownership information of any entity organized there. At various times, in litigation filed by Respondent Steele and Paul Duffy there were attempts to ascertain the ownership of the West Indian LLCs. Respondent Steele and Paul Duffy always resisted those attempts and to this date, the ownership of the LLCs is unknown to the courts.

Between September 2010 and February 2012, Respondent Steele and Paul Duffy filed 118 copyright infringement actions in various United States federal district courts on behalf of pornographers and against 15,878 John Doe defendants. As of February 2012, Respondent Steele and Paul Duffy had not served any of the John Doe defendants with service of process. During that time, Respondent Steele and Paul Duffy communicated with the John Doe defendants by letters and phone calls in which they attempted to exact monetary settlements related to allegations that the John Doe defendants had illegally downloaded pornography, and in exchange for the agreement to maintain the confidentiality of the Does’ identity by not naming them in threatened public litigation if settlement funds were received. Respondent Steele and Paul Duffy sent settlement demand letters that identified an entity that produced a pornographic work or owned a copyright to that work, the name of the movie or video, and the date of an alleged illegal download. Respondent’s settlement letters demanded an amount of money ranging from $2,500 to $4,000...

At the time Respondent Steele and Paul Duffy sent the settlement shakedown letters described in paragraph 10, above, while Respondent Steele had an IP address, he did not know the identity of the individual who had actually downloaded the pornographic work at issue, had not taken steps to determine who had "illegally" downloaded the copyrighted content, and did not have a reasonable basis to believe that the recipient of the letter was an actual "infringer."

As of October 2012, Respondent Steele and Paul Duffy had settled approximately 5,000 copyright infringement matters, and recovered millions of dollars in settlement funds.

There are a number of case-specific allegations of misconduct in the complaint.

ARS Technica reported on the recent death of Mr. Duffy. 

Earlier coverage from Abovethelaw. (Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Chat Room Crimes May Prevent Bar Admission

On October 13, the Ohio Supreme Court will hear oral argument on an application seeking permission to sit for the bar examination.

The Board of Commissioners on Character and Fitness has recommended that admission be denied.

In the present case, the Applicant has failed to satisfy his burden. He engaged in conduct that demonstrates a disregard for the law and, more importantly, a complete and utter disregard for the health, safety and welfare of others — namely, vulnerable, female children.

The Applicant was convicted of a number of felony offenses. Under the Felony Rule, we must also consider a number of other factors, including how approval of the Applicant would impact the public’s perception of, or confidence in, the legal profession. See Gov. Bar R. I (1 l)(D)(5)(a)(iv). Attorneys hold a position of trust. Many attorneys come in contact with vulnerable people on a daily basis, including children. Allowing a convicted sex offender to hold this position of trust would clearly undermine the public’s perception of and confidence in the legal profession.

The brief filed on behalf of the applicant notes

John David Tynes is a retired military officer whose life has been relatively uneventful apart from a six-month period in 1998. (Transcript of the Character and Fitness Hearing of John D. Tynes, January 27, 2015 (“Transcript”), 28). Seventeen years ago, during a tumultuous time in his personal life, Tynes made a series of bad decisions that changed the course of his entire life. His family life was turbulent - his four children were exhibiting behavioral problems - and Tynes chose to escape into the virtual world of the newly-available World Wide Web. Id. at 17. There, he entered adult chatrooms where he engaged what he thought were underage girls in sexual messaging. Id. When he attempted to meet one of those girls, he was arrested, charged with, and found guilty of multiple felonies. Id. at 18-20. He never had any sexual contact with a minor. Id. at 18. He served a year and seven months at a military prison and was registered as a sex offender in several states after his release. Id. at 21, 34-35. He is not now, nor is he required to be, registered as a sex offender in Ohio. Id. at 37...

To adopt the Board’s Findings of Fact and Recommendation and disallow Tynes from taking the Bar and from reapplying to take the Bar would go against the weight of this Court’s previous decisions related to similar misconduct. Tynes cooperated completely with the application process and testified with candor and remorse about the circumstances that led to his criminal convictions. While public perception is a factor to be considered when deciding whether an applicant should be allowed to apply for the Ohio Bar, it is not the only factor, nor is it exclusively a negative factor. As a former prisoner who wishes to help current prisoners, the public with whom the Applicant would be interacting in his future legal career may see his former circumstances and current rehabilitated state as an asset, and not a detriment - “If he can get his life together, so can I.”

Attorney Paul McCartney represents the board.  (Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Resignation Means Disbarment

The Kansas Supreme Court has disbarred an attorney who had surrendered his license while a bar complaint was pending 

At the time the respondent surrendered his license, a complaint had been docketed by the Office of the Disciplinary Administrator for investigation. The complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.7 (2014 Kan. Ct. R. Annot. 531) (conflict of interest) and 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct).

We reported on a prior disciplinary action involving the attorney's misconduct as a pro tem judge

The Kansas Supreme Court has suspended a judge pro tem for one year who engaged in sex-related misconduct toward court personnel. The misconduct involved inappropriate remarks and notes ("I want to lick your butt"and "You're hot"), exposing his genitals to one employee and rubbing them in front of another, and sending a digital photograph of his penis from his mobile phone to still another court employee.

Five employees were victims of the behavior. One reported to another judge that the respondent had assisted her with a ticket and asked her what she could do in return. The respondent self-reported to disciplinary counsel shortly before the other judge did so.

The court considered evidence regarding the respondent's mental state and expressed the view that his course of treatment for major depression would be pertinent to his reinstatement. 

The ABA Journal reported his claim that the earlier misconduct was attributable to testosterone medication.

There is no indication whether he is related to the famed attorney of the same name. (Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Struck From The Roll

The New York Appellate Division for the Second Judicial Department has accepted the resignation of an attorney who admitted

The resignor acknowledges in his affidavit that his resignation is freely and voluntarily tendered, and that he is not being subjected to coercion or duress. He acknowledges that the Grievance Committee for the Tenth Judicial District is currently investigating two complaints of professional misconduct against him. The resignor avers that he misappropriated approximately $216,000 entrusted to him as the attorney for the executor of an estate; presented the executor with a check register in which he, among other things, entered false payee names for checks actually made payable to his order or falsely recorded as "void" checks actually made payable to his order, while deliberately withholding the monthly bank statements and canceled checks from the executor; failed to properly re-register as an attorney for two consecutive registration periods (2010-2011 and 2012-2013), and failed to submit answers to pending complaints or otherwise respond to the lawful inquiries of the Grievance Committee. He states that he has now returned all of the funds due to the estate, as well as the entire legal fee he received. The resignor acknowledges that if charges were predicated on the misconduct under investigation, he could not successfully defend himself on the merits against those charges.

He was disbarred and struck from the roll of attorneys and may not seek reinstatement for seven years. (MIke Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tax Cheat Disbarred

An attorney convicted of tax and false statements offenses was disbarred by the Massachusetts Supreme Judicial Court.

This summary from the web page of the Board of Bar Overseers

The two conspiracy counts involved separate but similar schemes to divert funds and conceal income from the IRS. The first scheme involved a business by which the respondent was employed in a “sales position.” He also owned a number of private companies. The respondent sent false invoices from his companies to the business for work that had not been provided. At least $490,000 was improperly obtained over a nine-year period. From these funds, the respondent paid 90% to the general manager of the business and kept 10% for himself. The second scheme involved a construction company the owner of which was the co-conspirator. The respondent sent false bills to the company amounting to $3.3 million, of which the respondent kept 10% and returned 90% to the owner. The conspiracy charged in each scheme was to evade federal income taxes. The tax evasion charges were for false tax returns filed by the respondent between January 2005 and July 2010, in which he failed to report income from the two schemes.

The convictions for making false statements and theft of public money arose from the respondent’s application for and receipt of Section 8 benefits from the United States Department of Housing and Urban Development. Section 8 is a program that provides subsidies to renters whose income is insufficient to pay market rates for housing. In 2006 and 2007, the respondent made false representations on Section 8 applications to HUD to qualify for Section 8 benefits. In all, he received more than $45,000 in benefits to which he was not entitled.

(Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Beyond Distasteful

A justice of the Massachusetts Supreme Judicial Court ordered an indefinite suspension of an attorney  who took advantage of clients facing foreclosure

On one of his loan applications, the respondent falsely misrepresented that he planned to use the property as a second. home. In six of the transactions the respondent's firm represented the lender, and he failed to disclose to his lender fue conflict of interest, or to secure the client's informed consent. He concealed the underlying nature of the transactions as sale/lease-backs with options to purchase, and misrepresented to the lenders that the premises would be . unoccupied. One lender specifically instructed that all brokers' fees had to be disclosed on the HUD-1 forms. On none of the HUD-1 forms that the respondent signed did he disclose any of the fees paid to himself or to his father. He falsely certified as to each transaction that he brought . cash to the table and that the homeowner-sellers received cash. He caused his associates to make false certifications on the HUD-1 forms.

There were criminal consequences

The board found that the respondent pleaded guilty in the United States District Court for the District of Massachusetts to twelve counts of giving real estate kickbacks and giving and receiving unearned fees, in violation of 12 U.S.C. § 2607(a).

Justice Spina

The respondent's express financial interest in the transactions and his conflict of interest...warrant a further sanction. The cumulative sanction exceeds four years. I am satisfied that an indefinite suspension is the appropriate sanction in this case. The respondent's conduct was, as the board found, beyond distasteful. He violated rules of professional conduct in a particularly offensive manner. He used his professional training and experience to devise a sophisticated plan that both took advantage of unsophisticated homeowners in financial distress, and concealed the true nature of his venture from his lender clients. He also was convicted of criminal acts for which he was sentenced to a term of imprisonment. The primary factor in determining the appropriate sanction in bar discipline cases "is the effect upon, and perception of, the public and the bar...Sadly, the respondent's use of his professional skills was motivated by greed, as the board found.

(Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 20, 2015

Public Censure For Conflict By "Intermediary"

The Wyoming Supreme Court imposed a public censure of an attorney who engaged in a conflict of interest in representing a couple (retired University of Nebraska faculty members) in a boundary dispute.

According to the Board on Professional Responsibility, he failed to disclose his close relationship with the potential adverse party

Before he undertook to represent Ganfield and Sudrla, Respondent did not communicate to them the full nature and extent of his relationship with David Cole and his family and business interests.

Respondent did not fully explain to Ganfield and Sudrla the material limitations to Respondent’s ability to fully represent Ganfield and Sudria arising out of Respondent’s relationship with David Cole.

Respondent did not obtain from Ganfield and Sudrla any written informed decision signed by them to Respondent’s representation notwithstanding the conflict of interest arising from Respondent’s attorney-client relationship with Cole.

 He met with Cole

Respondent never discussed with Ganfield and Sudria any proposed simultaneous representation of Cole by Respondent, nor did Respondent ever propose to act as an intermediary in the negotiations between the adverse parties under then-applicable Rule 2.2(a). Respondent did not obtain informed written consent (decision) of Ganfield and Sudrla, in a writing signed by them, to his simultaneous representation of Cole or to Respondent acting as an intermediary.

The Nebraska clients fired him and

About six weeks later, Respondent wrote a letter dated June 11, 2008 addressed jointly to both Cole and Ganfield. In this letter Respondent described the existing dispute and stated that an action would have to be filed by Ganfield and Sudrla against Cole to quiet title in Ganfield. He stated that “In my endeavors” to resolve the matter without litigation, “I have created a severe conflict of interest for myself. . . I cannot represent the parties in any of this litigation as I have put myself in a position of being a “negotiator” rather than a “litigator” in the issues.”

The board found both a conflict and failure to communicate

Before undertaking representation of Ganfield and Sudria in the boundary dispute adverse to Cole, Respondent therefore had duties: (a) to communicate to Ganfield and Sudrla as prospective clients a description of the nature and extent of Respondent’s pre-existing relationships with Cole; (b) to inform Ganfield and Sudrla fully regarding material limitations on his ability to represent Ganfield and Sudrla arising from his relationship with Cole; and (c) to obtain informed written consent from Ganfield and Sudrla in a writing signed by them.

Rule 2.2 of the Wyoming Rules of Professional Conduct has since been rescinded, however, under Rule 2.2 as it applied at the time, if Respondent intended to represent the adverse parties in the boundary dispute simultaneously, in the role of an intermediary, Respondent was required to first consult “separately with each client concerning the implications of the common representation,” and to first obtain “each client’s informed decision to the common representation, in writing signed by the client.”

And

The pleadings filed herein also show that Respondent’s son, and his step-son-in-law each represented Cole (the adverse party to Ganfield and Sudria) at different times. The Board concludes there exists an adequate factual basis for the Board to also approve the parties’ stipulation that Respondent be ordered to make reasonable inquiry in the future when screening new matters to identify and clear potential conflicts associated with adverse representation of parties among lawyers closely related by blood or marriage.

The attorney had been disbarred in 1995 and reinstated (after engaging in unauthorized practice) in 2004. (Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

"How To Make Money And Stay Out Of Trouble"

An attorney has been suspended for three months by a justice of the Massachusetts Supreme Judicial Court for misconduct in connection with two estates.

From the Board of Bar Overseers report

The only rule violations the committee found in connection with the estate tax returns for either of the two estates concerned notice of an additional assessment of interest and penalties on the Mello estate, While the respondent had paid interest and penalties when he filed that estate tax return, the Department of Revenue later sent him a notice of an additional assessment of about $2,200, The committee did not credit the respondent's testimony that he had sent DORa written objection to the assessment based on the release of an estate tax lien DOR had issued, When he received the notice, he was still representing the co"executors of the second estate, and he was still executor of the first estate, He did not pay the additional assessment, and he did not notify ,his clients about it, About three weeks after the respondent received the notice, the co~ executors demanded that the respondent tum over the Mello file to successor counsel. Successor counsel learned of the additional assessment from a copy of the notice in the respondent's file, She caused it to be paid. The committee found that the respondent's failure either to pay the additional assessment or to notify his clients of it violated Mass, R, Prof, C. 1.3 (diligence), 1.4( a) (communicate with client), and 1.4(b) (explain matters to client for informed decision).

The suspension takes effect when the attorney is reinstated from an administrative suspension. The Board also proposed numerous conditions including

One of the courses shall be the M.C.L.E. course known as "How To Make Money And Stay Out Of Trouble."

(Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Judge Who Stole Cocaine Evidence Suspended

A former Pennsylvania judge has been suspended from practice as a result of a criminal conviction.

Details from the Pittsburgh Post-Gazette

Former Washington County Common Pleas Judge Paul Pozonsky stood before the court Monday as a “broken man,” his voice catching as he described losing his job, his reputation and, soon, his wife to an addiction he fueled through stealing cocaine submitted as evidence in his court.

“I made terrible decisions,” he said. “It’s taken away the only job I ever loved.”

For those crimes, Mr. Pozonsky will spend 30 days in the Washington County Jail. Visiting Judge Daniel Howsare of Bedford County ordered him to serve up to 23½ months, but the 59-year-old is expected to be released on parole after one month.

Mr. Pozonsky was scheduled to surrender at 4 p.m. Monday. Defense attorney Robert Del Greco said he needed the afternoon to arrange for the care of his elderly parents, who he had been living with in Muse. After parole, he’ll spend two years on probation in Washington County and will be responsible for more than $15,000 in fees and other court costs.

In explaining his decision, Judge Howsare called the situation “very difficult” and said he didn’t intend to “add salt to the wound.” But he said some incarceration was required for the former judge who created the county’s drug court, knew counseling was available and “instead decided to use the evidence … to satisfy his drug use.”

“It’s a factor that’s difficult to overlook,” he said.

Mr. Pozonsky abruptly retired in June 2012, halfway through his second 10-year term and a month after he was stripped of handling criminal cases by the president judge. Investigators found that some evidence bags in his chambers had been tampered with, their seals broken, and some cocaine had been replaced with baking soda.

He pleaded guilty in March to three misdemeanors — theft by unlawful taking, obstructing administration of law and misapplication of entrusted property — and in exchange, prosecutors dropped three other charges and agreed not to seek incarceration as a penalty. Also that month, Mr. Del Greco said Mr. Pozonsky has been “clean and sober” going on four years.

On Monday, he called his client “the victim of a career-ending, self-inflicted wound.”

“To say that he has suffered mightily is an understatement,” Mr. Del Greco said. He said Mr. Pozonsky will probably be disbarred soon. He has lost his pension of $98,000 per year plus full medical coverage for life.

In asking for leniency, Mr. Del Greco noted the former judge’s 28 years of public service, his role in creating the county’s drug court and the more than 70 letters of support from former prosecutors, colleagues, family, defendants and others.

Jim Kohler, 64, and his daughter Kerri Kohler, 39, who went through Mr. Pozonsky’s drug court, addressed the court.

“He saved my life,” Ms. Kohler said.

Mr. Pozonsky said a “confluence of events” led to his drug use, including family, work and personal issues. He began abusing prescription medicine after a car accident and progressed to cocaine, he said.

He apologized to the court and the residents of Washington County.

“My conduct was inexcusable,” he said.

Deputy Attorney General Michael Ahwesh, lead prosecutor on the case, pointed out that Mr. Pozonsky began getting treatment May 14, 2011, but continued to ask police to turn over cocaine.

“He realized he had a problem and he didn’t do anything,” Mr. Ahwesh said. “The defendant turned the courtroom into his stash house and basically made law enforcement his private suppliers of cocaine.”

After handing down the sentence, the judge called for a recess to discuss where Mr. Pozonsky should serve the 30 days. Mr. Del Greco said he wanted him to stay in Washington County for the jail’s work-release program, and that it’s unlikely anyone the former judge sentenced would still be in the lockup unless the person is a repeat offender.

After the hearing, Barry and Andrea Aller of Burgettstown, whose late daughter Desire’e was in Mr. Pozonsky’s drug court, told reporters they had hoped for a harsher penalty.

“I just don’t think it’s fair that he could do that and sentence people when he himself could have been high sitting on the bench,” she said. “How can you be an addict only in the evening?”

Mr. Pozonsky told Judge Howsare he was never under the influence at work.

Final discipline will be imposed after disciplinary proceedings based on the conviction are concluded. (Mike Frisch)

August 20, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Stealing From The Dead Gets Lawyer Disbarred

The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of grand larceny.

The State Attorney General had a press release on the case

Attorney General Eric T. Schneiderman today announced the guilty plea of Westchester attorney Timothy Griffin, former acting president of United Hebrew Cemetery, on the charge of Grand Larceny in the First Degree. Griffin admitted to embezzling nearly $2 million from the not-for-profit, and he will be sentenced to 3 to 9 years in prison.

“This defendant not only stole from the clients of his law practice, but then stole millions from his charity in an attempt to disguise that theft,” said Attorney General Schneiderman. “My office has zero tolerance for anyone who abuses the public trust by taking advantage of a position at a nonprofit. If you use a charity as your own personal piggy bank, you will face serious consequences, including jail time.”

The Attorney General's investigation revealed that Griffin, a Bronxville real estate attorney, stole nearly $2 million from United Hebrew Cemetery in Staten Island. In late 2012, Griffin was asked to serve as Acting President of the Cemetery after the previous president and his wife were found guilty of embezzling approximately $850,000, as the result of a prior investigation conducted by the Attorney General’s office. In his capacity as Acting President, Griffin made six unauthorized wire transfers from the Cemetery’s account to his own attorney escrow account, totaling $1.9 million.

Griffin stole from United Hebrew Cemetery to cover up his theft of more than $1 million from his legal clients between April 2009 and February 2014. As a real estate attorney, Griffin’s clients gave him money to be held in escrow for pending transactions. Instead of keeping the money in escrow, as required by law, Griffin transferred it to his personal bank account and then used it to fund his lavish lifestyle, including membership at Westchester’s Waccabuc Country Club, a BMW, a Lexus, expensive jewelry and other personal expenses.

Today, Griffin pled guilty before the Honorable Stephen Rooney in Richmond County Supreme Court to one count of Grand Larceny in the First Degree, a Class B felony, in exchange for a sentence of 3 to 9 years in prison.  As part of his plea, Griffin also agreed to sign a confession of judgment in favor of United Hebrew Cemetery in the amount of $1,832,764.00.  

Griffin was separately charged by the Attorney General with multiple counts of Grand Larceny for the thefts from his clients, and he is expected to plead guilty to these counts on February 19, 2015 in Westchester County Court.  Last week, Griffin was sentenced in Connecticut federal court to six months in prison for tax evasion charges.

(Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Bad Alternative To Bankruptcy

The Indiana Supreme Court accepted the resignation of an attorney convicted of a Ponzi scheme.

IndyStar reported on the criminal matter

A Carmel man who bilked elderly investors out of their savings in what prosecutors called a Ponzi scheme will serve four years in prison, court records show.

Hamilton County prosecutors charged Charles Blackwelder, 70, with 20 felony counts in connection with what they called large-scale fraud perpetuated in connection with the now-insolvent Carmel investment firm CFS LLC.

Court documents say Blackwelder took investments from elderly clients to pay off debts from previous investments that tanked.

His daughter, Cara Grumme, 42, also faced 24 felony counts related to the fraud, in addition to two counts of perjury.

Hamilton Superior Court Judge Daniel Pfleging on Thursday sentenced Blackwelder to four years in prison and an additional eight years served either in home detention or a work release program.

The judge also ordered Blackwelder to pay $19 million in restitution.

Grumme received a three-year suspended sentence. Both entered into guilty pleas.

Blackwelder’s attorney, Robert Hammerle, said the man was an honest businessman for most of his career but he was in over his head when the economy took a dive in the early 2000s.

Hammerle said Blackwelder is a husband and father who was honored by the government for his service as a helicopter pilot in the Marines during the Vietnam War.

“It’s no excuse or justification,” Hammerle said. “In hindsight, he should have declared bankruptcy.”

But Hammerle said Blackwelder was desperate to keep his business afloat and not lose any money for his clients. Blackwelder thought he would eventually be able to get back on track and pay everyone in full, Hammerle said.

“Although it was never my intention for anyone to lose money, my clients were financially harmed by my wrongful decisions,” Blackwelder wrote in a statement to the judge. “The shame and guilt I hold at times seems almost unbearable.”

Hammerle said he expects the investors will receive 30 percent of their investment funds when properties related to the company are sold off.

The court order indicates that he is eligible for reinstatement in five years. (Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Probation Violation

A suspension of six months and a day was imposed by the Arizona Presiding Disciplinary Judge for an attorney's violation of conditions of earlier discipline.

Ms. Rogers conditionally admits she missed required MAP appoints with her MAP monitor beginning in September 2013. She further conditionally admits she began drinking alcohol in October 2013. In addition, Ms. Rogers admits she used illegal drugs between November 18, 2013 and December 2, 2013. On December 31, 2013, Ms. Rogers reported to her MAP monitor she had sustained a head injury which required medical treatment. Ms. Roger went on medical leave and was no longer practicing law. Ms. Rogers transferred to inactive membership status on February 4, 2014, and thereafter entered a voluntary rehabilitation program and successfully completed inpatient treatment from February 11, 2014 and May 8, 2014 at Pia’s Place. Effective October 30, 2014, Ms. Rogers voluntarily transferred to active membership status.

The judge accepted a consent sanction

The PDJ finds the proposed sanctions of a six month and one day suspension effective August 1, 2015 and two years of probation upon reinstatement, meets the objectives of discipline, therefore, the Agreement is accepted. A period of suspension of more than six months will require proof of rehabilitation and compliance with other requirements prior to being reinstated to the practice of law. Specific terms and conditions of probation shall be determined at the time of reinstatement.

(Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 19, 2015

Practice Pointer: Read The Discovery Materials

A public censure was imposed by the Wyoming Supreme Court who negotiated a guilty plea to DUI for a client.

The problem? 

Discovery showed the client's blood alcohol content at 0.0%.

The attorney arranged a change of plea but (from the report of the Board on Professional Responsibility)

Mr. Wixom and his parents secured discovery from the County Attorney’s office on March 19, 2014, which included the blood test results mentioned above. The presence of blood amphetamines was explained by the fact that Mr. Wixom was experiencing a hypoglycemic episode as a result of poorly controlled diabetes, which also explained his erratic behavior at the time of his arrest.

On April 8, 2014, the Wixoms wrote a letter terminating Respondent’s services, stating, “You have continuously lied to us. You never went after any case file paper work from the District attorney in Green River, Wyoming. You would not return our calls. You called us Myth [sicJ users. You never filed all the paper work needed in Wyoming. After 2 weeks you text at 5 A.M. to say you are calling now. We have done all the work for you and you still do nothing. So our bill is paid in full. We will never recommend you to anyone.”

Through new counsel, the client pleaded to reckless endangerment.

The attorney also made inaccurate statements in response to the bar complaint.

At the time of the events described above Respondent was undergoing severe stress in his personal life. Respondent developed a serious drinking problem that affected his personal and professional life in a very negative way. However, late in 2014 Respondent sought treatment for his alcohol problem, and reports that he has been sober since December 25, 2014. Respondent is extremely remorseful over the conduct above, and is committed to maintaining his sobriety and in serving his clients pursuant to his professional obligations in the future.

He has a record of prior discipline. (Mike Frisch)

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

State Bar Opposes Reinstatement Of Attorney Convicted Of Domestic Violence

A North Carolina attorney is seeking a stay of the second year of a two-year suspension and reinstatement. to practice. 

The State Bar responds that he has not complied with certain conditions and should remain suspended.

The Macon Daily News had reported on domestic assault charges. against him in February 2013

Last Thursday, William Shilling, 51, was arrested and charged with misdemeanor counts of simple physical assault and simple non-physical assault. Shilling is an attorney with the Macon County Department of Social Services.

According to documents on file at the Macon County Clerk's office, an arrest warrant signed by magistrate Miciah Leatherman states that there was probable cause to believe that Shilling inflicted physical injury to his child, who is less that 16 years old. “The physical injury inflicted caused a red mark on the victim's abdomen, and was inflicted by other than accidental means,” reads the warrant.

The complaint and motion on file states that Shilling assaulted the child after an altercation over the child's grades. According to his wife Cheryl's testimony, the child “got a ‘C’ last grading period in Algebra, Bill took a steak knife, punched it into the wall, jerked and removed it off the wall, removed all of [the child's] gaming systems devices, and told him if he didn't improve his grades, he would beat them into him and clear his room so it looked like a prison cell.”

The warrant continues to claim that Shilling allegedly threatened to physically harm his wife Cheryl Shilling and their son by saying, “I will kill you and I will burn the dogs alive and I will burn the house down.”

An additional warrant states charges of assault on a female after Leatherman found probable cause that Shilling forcefully used his chest to push the victim into a wall in the couples’ residence.

District Court Judge Donna Forga issued a Domestic Violence Protective Order forbidding Shilling from contacting his wife or minor son until Feb. 24.

Additional documents on file at the Clerk's Office signed by Judge Forga, report that in Cheryl Shilling’s request for the domestic violence protective order, on Feb. 9, William Shilling threatened to have Cheryl involuntarily committed and to remove their son's limbs to torture the child. Forga's report states that on Feb. 8, Cheryl claims that Shilling threatened to blow his own brains out and has threatened to drive their vehicle into a ravine making the child an orphan. It also states that Shilling has reportedly said that he wants to bludgeon the child. The document also states that the couple owns two handguns, one in their home and one in the law office.

Shilling was originally released on a $500 bond under orders not to have any contact with his wife or son due to a domestic violence protective order. On Feb. 15, he was once again arrested after sending an email to his wife, and leaving a letter addressed to the child, violating the protective order. Due to the violation, Shilling had to spend 48 hours in jail.

In response to the allegations against him, Shilling has filed a series of documents with the Clerk of Court’s office claiming that his wife's allegations are “baseless and wholly exaggerated.” He requested that the court release monies, personal items, his vehicle; grant visitation with the minor child and custody of his dog, and return office items.

Shilling is scheduled to appear in court on March 7.

He pled guilty to misdemeanor offenses. (Mike Frisch)

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

War Record Does Not Prevent Disbarment For Fraud Conviction

An attorney convicted of federal fraud offenses was disbarred by the New York Appellate Division for the First Judicial Department.

Respondent's conviction stemmed from his involvement with others in a scheme to defraud Electronic Data Systems, Inc. pursuant to a stock purchase. On November 20, 2006, respondent was sentenced to 48 months of incarceration; three years of supervised release after his release from prison, which included confinement in a half-way house; directed to pay $12,799,795 in restitution; and a $1,200 assessment was imposed.

He was suspended as a result of the conviction in 2006.

The United States Court of Appeals for the Second Circuit affirmed the conviction in 2008.

At the disciplinary hearing

... a sanction hearing was held before a Referee. Respondent testified on his own behalf and called a character witness. Although he acknowledged that the issue of his guilt was not before the Referee, he professed his innocence of the crimes he had been convicted of, specifically stating that he disagreed with the jury's verdict. Respondent also recounted his educational and professional history, including his leave of absence from law school in the late 1960's to serve in Vietnam, where he was wounded and received several decorations, including the Bronze Star. He was honorably discharged in 1970, and received his J.D. in 1972, an LLM in Taxation in 1979 and a Certified Public Accountant license in 1980.

Respondent testified that he is the father of two adult children, one of whom has a rare neurological disorder that severely affects his mobility and daily functioning, and which respondent believes is related to his own exposure to Agent Orange when he was in Vietnam. Respondent's son resides with his parents and is dependent upon them for care and support. Respondent further testified that he has established, and raised millions of dollars for, a fund to support medical research to discover a cure for his son's illness. Respondent also attributes his own health problems to Agent Orange exposure. Respondent also testified that during his incarceration his daughter suffered severe injuries in an automobile accident which required extensive surgery and rehabilitation.

The arguments below focused on sanction

The Referee issued a report recommending a five-year suspension retroactive to the date of respondent's interim suspension. A Hearing Panel convened to review the Referee's report. The Committee argued that the Referee's report should be disaffirmed insofar as it recommended a retroactive five-year suspension and that respondent should be disbarred retroactive to October 19, 2006 (the date of his interim suspension); respondent again urged a retroactive five-year suspension.

The Panel disaffirmed the Referee's recommended sanction of a retroactive five-year suspension and recommended that respondent be disbarred. The Panel noted that notwithstanding the mitigating circumstances, respondent's conduct was not a single, uncharacteristic lapse in judgment, but rather a deliberate and sustained participation in a conspiracy that lasted three years. It further pointed to the facts that respondent did not claim that family tragedy or financial pressure prompted him to misbehave, and, moreover, that he failed to acknowledge the basis for his conviction or express even a modicum of remorse.

The court ordered disbarment effective in 2006.

Wonder why this took nine years.

The Washington Post reported a lawsuit arising from dealings between the attorney and sons of Vice President Biden. (Mike Frisch)

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

90 Days For Unauthorized Practice

An attorney who had been administratively suspended for non-compliance with continuing legal education obligations was suspended for 90 days by the Wisconsin Supreme Court for the ensuing unauthorized practice.

Repeating the allegations of each separate matter here is not necessary.  Attorney Capistrant's conduct followed a common theme.  He practiced law with a suspended law license and without telling clients, courts, and opposing counsel about his license suspension.  He failed to diligently pursue certain cases, including matters that he allowed to languish after the circuit court or opposing counsel voiced concerns about his law license status.  He used letterhead that stated he was "admitted in the State of Wisconsin" when his Wisconsin law license was suspended. 

He failed to disclose information concerning the unauthorized practice when he sought reinstatement.

He also defaulted on the bar charges . (Mike Frisch)

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