Thursday, October 12, 2017
The web page of the Ohio Supreme Court notes that seven reports in disciplinary cases have been filed with the court.
One case from the Board on Professional Conduct involves an unusual incident of road rage between an attorney and a bicyclist, referred to as The Bicycle Incident in the report.
The attorney apparently concluded that the bicyclist had impacted with his automobile. He tailgated and the pulled in front of the bicyclist, suddenly hit the brakes and caused a collision as a result.
The incident attracted the attention the attention of two witnesses. One was a medical doctor who stopped and started videotaping the attorney's in-your-face post-collision behavior toward the cyclist. The attorney moved his car, returned on foot, and began an altercation with the doctor.
The second witness tried to break it up. The doctor's video device fell to the ground and was stomped on by the attorney.
Criminal charges led to a no contest plea to misdemeanor criminal damaging and a 90-day stayed jail sentence.
The doctor sued the attorney and settled for $5,000.
The attorney was alleged to have failed to cooperate in the bar investigation but had been hospitalized as a result of an accident on the Ohio Turnpike. The board found insufficient evidence of the charge.
The attorney was found to have falsely described The Bicycle Incident in the civil litigation and the bar proceedings.
The board recommends a two-year suspension with one year stayed on conditions. (Mike Frisch)
Wednesday, October 11, 2017
The Tennessee Supreme Court has disbarred an attorney for the second time formisappropriation.
Clarksville Now reported
Montgomery County attorney Carrie Gasaway has been disbarred from the practice of law by the Tennessee Supreme Court, effective October 9, 2017.
According to a news release, she will be required to pay restitution and the costs of the disciplinary proceeding.
Gasaway was previously disbarred by order in October of 2015, which remains in effect.
A petition for discipline was filed in November 2016, which contained three complaints alleging misappropriation of funds from trust, lack of diligent representation and charging of an unreasonable fee. A petition for final discipline was filed in December 2016 based on Gasaway’s criminal conviction for felony theft over $10,000. Following that conviction, the Tennessee Supreme Court suspended Gasaway from the practice of law in September 2016.
Gasaway has been ordered to pay restitution in the amount of $57,899.45 to four former clients.
Gasaway and attorney Fletcher Long were convicted in May of trying to extort money from Michelle Langlois, who had hired them to attend the reading of her father’s will in October 2010. They both gave up their law licenses.
They were each sentenced to two years in prison, which was suspended to four years of probation.
Tuesday, October 10, 2017
An opinion of the California State Bar Court Review Department
Michael Christopher Bennett appeals a hearing judge’s decision recommending disbarment because Bennett defrauded and intentionally misappropriated $13,860 from his employer, forged signatures, and misused the seals of two notaries public. Bennett does not contest culpability but requests discipline less than disbarment. Principally, he argues that he did not intend any harm, has implemented safeguards against future violations, and has otherwise been rehabilitated. The Office of Chief Trial Counsel of the State Bar (OCTC) does not appeal and requests that we affirm the disbarment recommendation.
Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s findings of fact and law with minor modifications. The applicable disciplinary standard calls for disbarment absent compelling mitigation that clearly predominates. Bennett has not established this level of mitigation. To the contrary, his mitigation is far outweighed by his egregious, dishonest misconduct, which caused significant harm to his former employer, his clients, the public, and the administration of justice. Thus, we affirm the hearing judge’s disbarment recommendation as appropriate discipline.
The attorney was admitted in 2005.
He engaged in "off-the-books" representation of 18 clients while at the Generations law firm.
On January 2, 2013, Bennett informed the [employer attorney Trudy and office manager Tom] Nearns that he was leaving the firm that day for another job. Afterwards, Tom searched Bennett’s computer and discovered emails referencing a client matter not in the firm’s database, which had been forwarded to Bennett’s home email address. Tom also found an engagement letter directing the client to make a prepayment to Bennett and assuring that the prepayment would be placed in the firm’s trust account.
On January 11, 2013, Trudy [Nearns] wrote to Bennett that Generations was aware that he had engaged a client and accepted a prepayment on the firm’s behalf without notifying it. On January 15, 2013, the Nearns confronted Bennett, who misrepresented to them that he had personally received payment in only one matter. On January 17, 2013, Tom [Nearns] emailed Bennett, informing him that he and Trudy knew Bennett had improperly engaged other clients, and identifying four more matters. Bennett then responded that those four were the only ones. Bennett knew, however, that he had worked on and received funds for additional matters.
Ultimately, the Nearns discovered evidence of other "off-book" work. Trudy testified that she concluded Bennett took fees in 18 matters. Bennett admits that, while employed by the firm, he "provided legal services on sixteen (16) matters and billed a total of $13,860, separate and apart from the work billed from Generations; i.e.[,] [he] met with 16 people, performed legal work on their behalf, and had them pay him directly." He performed this off-book work without the firm’s knowledge or authorization, instructed clients to pay him directly, misled clients that he was providing their payments to Generations, and used firm resources, including letterhead and computers, while being compensated by the firm to perform full-time work on its behalf. Bennett did not notify Generations that these clients had retained the firm for new or additional legal services, or that they had paid for the services.
His effort to blame the firm failed.
Bennett contends that Trudy potentially committed misconduct by providing privileged and/or confidential documents to the State Bar without receiving clients’ written permission to do so. He also claims that the State Bar, in turn, potentially committed misconduct by accepting those materials, filing a public NDC that included clients’ names, and posting the NDC with those names on the State Bar’s website. Bennett provides no authority for his contentions. And although he acknowledges that OCTC filed a motion to dismiss the original NDC without prejudice about two weeks after it had been filed, he fails to note that OCTC promptly returned the documents when it realized the materials were arguably privileged and/or confidential. Bennett responded to OCTC’s motion by requesting that the NDC be dismissed with prejudice, which was rejected. He fails to show that this was an error, or that he was denied a fair hearing.
Bennett’s overall misconduct is rife with dishonesty. He created and hid an off-book practice from his employer and then lied about the extent of this practice when confronted. Moreover, he lied to clients, committed multiple forgeries, and used two notary seals without authorization. This dishonesty goes directly to his fitness to practice. And honesty is absolutely fundamental in the practice of law; without it, "the profession is worse than valueless in the place it holds in the administration of justice." (Tatlow v. State Bar (1936) 5 Cal.2d 520, 524.)
We acknowledge Bennett’s and several witnesses’ contention that his wife’s severe depression and the resulting stress upon Bennett were a cause of his misconduct. We also note that Bennett and his wife have taken steps to lessen the chance of such pressures arising again. Yet many attorneys experience emotional and physical difficulties comparable to those that Bennett faced. "While these stresses are never easy, we must expect attorneys to cope with them without engaging in dishonest activities, as did [Bennett]." (In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511, 522.) "Misappropriation . . . simply cannot be excused or substantially mitigated because of an attorney’s needs, no matter how compelling." (Hitchcock v. State Bar (1989) 48 Cal.3d 690, 709.).
If one is going to engage in any form of unauthorized practice of law, a place to avoid is the Commonwealth of Pennsylvania.
That eternal truth is on full display in a case just posted on the web page of the Disciplinary Board in which the attorney consented to a suspension of six months.
The attorney was admitted in Pennsylvania in December 1992. She went on involuntary inactive status in 1998 and was administratively suspended on April 2, 2010 for failure to register and pay annual fees.
From 1996 to 2006, the attorney was Director/Counsel to Merrill Lynch in Plainsboro, New Jersey. She continued in that capacity until 2007 with BlackRock Inc. after it had acquired Merrill Lynch. She timely applied for In-House Counsel status in New Jersey.
In 2007, she began with the Hartford in Connecticut. She was accorded Authorized In-House counsel status by Connecticut in 2008 and maintained that status until revoked in 2017.
The problem arose when the Hartford relocated her to its Radnor Pennsylvania headquarters in mid-December 2012. She contacted Pennsylvania authorities concerning reactivating her license but failed to follow through with the required reinstatement process and engaged in extensive unauthorized practice.
The case is In re Alice Pellegrino. (Mike Frisch)
Monday, October 9, 2017
The Springfield (Mo) News-Leader reports
A Springfield attorney was disciplined Thursday by the Missouri Supreme Court in connection with an armed confrontation in Reeds Spring and questionable accounting in 2012.
Rita K. Sanders faces the indefinite loss of her law license, though that suspension was put on hold on the condition Sanders' completes two years of probation that requires quarterly reports and additional controls on her practice, according to a court order.
Sanders' discipline case involved two distinct matters in 2012. The first count against her was in connection with her involvement in a fugitive hunt in Stone County. The second pertains to concerns about Sanders' accounting practices involving client funds.
The suspension and an accompanying $1,500 fee comes after Sanders was found to have violated several rules of professional conduct. Sanders initially argued against probation, instead asking for a reprimand with certain requirements, according to court documents.
Sanders currently represents one of several people suspected in an April 2016 killing in Webster County and recently argued that charges against her client should be tossed.
Hunting a fugitive in Reeds Spring
In May 2012, Sanders was helping search a Reeds Spring motel room for a fugitive. With her were a bond agent and the Reeds Spring chief of police.
Following that, Sanders and the bond agent followed a tip that another fugitive was in a Reeds Spring motel room and notified local law enforcement that they were on their way south. They met the local police chief at the Reeds Spring City Hall, according to court documents.
After obtaining a key from the motel's manager, Sanders and the police chief drew their guns and entered the room, according to court documents. They saw "an apparently naked woman" alone in bed and yelled at her to prove she was unarmed, the state's brief say, and Sanders watched her while the chief checked the bathroom.
The fugitive was gone. Sanders and the chief put their guns away.
The bail bondswoman "understood that she had no authority to stay in the room because her bonding authority required her to leave the premises if the fugitive absconder was not there," the state wrote. "But, (she) and Sanders stayed and interrogated (the naked woman) about (the fugitive's) whereabouts."
Sanders was a law enforcement officer previously but no longer was in 2012. Still, court documents say, she described herself as being in "police mode" while in the motel room and taking the naked woman's phone out of her purse.
Upon dumping out the purse, Sanders and the bonding agent found no weapon or working phone but did find a pouch containing methamphetamine and drug paraphernalia. She later said she was looking for a phone number in the pouch and among the contents of the purse.
"I went through every paper in her purse," Sanders recalled. "We were looking for anything and everything that might lead us to this man that we knew was extremely dangerous."
Sanders' attorney claimed that the police chief "essentially deputized" Sanders and told her several times to "back him up." By doing so, Sanders' argument went, she was acting legally as part of a posse.
The state's counsel argued Sanders could not legally act as part of a posse because she was aiding a city police chief, not a county sheriff. Missouri law specifically endows sheriffs with power of rustling up a posse.
As a result of the incident, Sanders was charged with kidnapping, armed criminal action, unlawful use of a weapon, and fugitive recovery, court documents say. She eventually pleaded guilty to peace disturbance.
Multiple accounting issues
In a less dramatic retelling, the state outlined instances in which Sanders' trust account went into overdraft status on at least two occasions. Sanders was cautioned to "avoid further risk to (her) clients' funds and additional disciplinary investigations" after the first overdraft in March 2012.
After the second, the state's disciplinary counsel office found "no violation but poor recordkeeping and failure to supervise her staff," according to court documents. Sanders was advised multiple times to study accounting fundamentals.
In August 2014, however, there was yet another overdraft notification stemming from Sanders' accounting practices, the state said. This time, Sanders' initially blocked the state from her records and complained about an ensuing subpoena.
Once again, the state found "no misappropriation" but did find inadequate recordkeeping, commingling of personal funds with clients' money and "numerous undocumented transfers."
In response, Sanders' attorney noted she had "a high volume traffic and criminal practice" who had "no trust account problems until 2012 when the bookkeeper she had retired."
Sanders admitted to commingling money but blamed staff for the first accounting error and a delayed deposit on the second. She rehired the old bookkeeper, court documents say.
"Clearly a reprimand with conditions is an appropriate sanction in this case to protect the public, maintain the integrity of the profession, promote confidence in the disciplinary system and to provide consistency in the discipline imposed," Sanders' attorney argued.
The Missouri Supreme Court disagreed and determined Sanders' violated no fewer than five attorneys' rules.
Sanders' side of the story
When the News-Leader asked for an interview and outlined the events in the court documents, Sanders did not dispute most facts. But she offered information that doesn't appear in court documents and expressed her frustration with the situation.
"I was rather disappointed in the outcome because, quite frankly, I did absolutely nothing wrong out there in Reeds Spring," she said.
Sanders said she was initially only there to serve as a driver for her friend, described as so vision impaired that she "sees three of everything at night."
The two had tried to contact the Stone County Sheriff's Office but were told no deputies were available, Sanders said. When the pair rendezvoused with the Reeds Spring police chief, Sanders said he recognized her by name as a former law enforcement officer. The two had never met, Sanders said.
Before going into the motel room, the police chief asked Sanders whether she would back him up. She said she had her snubnose with her in her car and couldn't say no when the chief asked her to serve as back-up.
"What do you say?" Sanders said. "It's illegal to refuse to obey a lawful order. I didn't know what to do. They make it sound like I was out there playing Jane Wayne."
"I'm a grandmother," she continued. "The last thing I wanted to do was to go into a motel room when I didn't know how many people were in there. ... I didn't have a choice."
Sanders concurred that she had gone through the purse but says she never searched the room itself. She hung around the motel after being in the room she said, but only to speak with the motel manager and invite her to church.
She never again saw the woman, who Sanders believes was the tipster who called in the fugitive's location in an attempt to claim a reward. The fugitive later went to prison and testified in Sanders' favor at a hearing, she said.
Sanders acknowledged the accounting errors but said nobody was hurt and no checks were bounced. She wasn't trying to play any accounting tricks but was just trying to move money the right way and didn't quite understand what was expected, she said.
"It destroyed me," Sanders said of the aftermath. "It destroyed my life. It destroyed my business."
She figured that pleading down would make her problems go away, but she says that hasn't happened. Though she welcomed the chance to share more information, she wasn't optimistic that talking to a reporter would make a difference.
"I'm really frustrated about the system right now," she said. "I've spent my whole life fighting for justice."
"Jiminy Christmas, how about a break here?"
Hat tip to coolcrosby. (Mike Frisch)
The Nevada Supreme Court has suspended a convicted attorney
The State Bar has filed a petition under SCR 111 to inform this court that attorney Curtis Cannon has been convicted of voluntary sexual conduct between a prisoner and another person, a category D felony in violation of NRS 212.187. Cannon did not self-report the conviction to the State Bar as required by SCR 111(2). Because the conviction is for a felony offense, it is a "serious" crime as defined in SCR 111(6). As such, SCR 111(7) and (8) normally would require that we temporarily suspend Cannon and refer him to a disciplinary board for a hearing to determine the extent of the discipline to be imposed, if any. Cannon, however, was transferred to disability inactive status under SCR 117 in 2014 and, therefore, currently is prohibited from practicing law
We conclude that a referral to a disciplinary board is unnecessary because the conduct underlying the conviction appears to have been the subject of a grievance that was filed against Cannon before he was transferred to disability inactive status. The disciplinary proceedings as to that grievance, and several others filed against Cannon, were stayed pursuant to SCR 117. The conviction therefore may be addressed in the context of the pending disciplinary proceedings should they be resumed upon Cannon's reinstatement to active status, as provided in SCR 117(4). But, given the nature of the criminal conviction and its connection to Cannon's practice of the law, we are convinced that a temporary suspension under SCR 111 is warranted to ensure that Cannon cannot resume the active practice of the law until a disciplinary panel and this court have the opportunity to consider the appropriate discipline, if any, as a result of his criminal conviction.
The Las Vegas Review-Journal reported on the crime, which involved oral sex
Both Cannon and [incarcerated client] Wallis acknowledged that inappropriate conduct had occurred between them during the jail visit, according to an arrest report.
The contact occurred on the fourth floor of the detention center’s north tower during the 26-minute visit.
Cannon told the detectives that he was on medication and had not had sex with his wife for 14 years. Wallis, he said, wanted to marry him.
The case is In re Curtis Cannon. (Mike Frisch)
Saturday, October 7, 2017
The Nevada Supreme Court imposed a 35-day suspension rather than the proposed reprimand for an attorney's communication with a witness
This disciplinary proceeding grows out of a letter and followup email that Callister sent D.E., who witnessed a will Callister's client disputed. In them, Callister offers D.E. $7,000 "[i]n exchange for your honest testimony. . . that you never witnessed the Decedent signing a will." The letter runs several pages and threatens D.E. with personal liability and "the legal implications of perjury" if D.E. does not disavow the will. Callister sent the same letter, but not the follow-up email, to another third party who also had witnessed the will.
It is unethical for a lawyer to offer money to a fact witness contingent on the content of the witness's testimony.
The record does not support that Callister's conduct was merely negligent. His communications with D.E. were deliberate, not a casual comment in a courthouse elevator that an unnoticed witness accidentally overheard. The undisputed evidence shows that: (1) Callister wrote and sent a letter to a third-party fact witness, offering $7,000 if the witness would testify that the will he had witnessed was a fake; (2) he threatened the witness with civil litigation and criminal exposure if he did not testify as Callister wanted; and (3) a month later, Callister resent the letter as a .pdf to an email address and reiterated his cash offer, at the witness's request. From the letter and email it appears that Callister intended to do exactly what he did. If Callister was negligent, it was in not recognizing that his conduct violated the Rules of Professional Conduct until after the fact. But ignorance or mistake of law does not transform an intentional act—improperly influencing, or attempting to influence, fact witness testimony—into negligence.
Callister defended his conduct before the Disciplinary Board on the bases the will was forged, he needed D.E. to disavow the will to prove his case, and the testimony he solicited was truthful. But "lawyers cannot condition fact witnesses' compensation on the content, substance, or perceived usefulness of their testimony." Douglas R. Richmond, Compensating Fact Witnesses: The Price Is Sometimes Right, 42 Hofstra L. Rev. 905, 911 (2014)...
When apprised of Canister's dealings with D.E., the judge presiding over the will contest excluded D.E.'s testimony, disqualified Callister, and reported the matter to the State Bar. This cost Callister's client his lawyer of choice and protracted the proceeding, adding legal complications and needless expense. It also imposed systemic costs, fostering public cynicism of a system where fact witness testimony appears to be bought and sold. To his credit, Callister revoked the offer to D.E. after talking to his partner about the ethical problems it posed, before any money changed hands. This prevented further harm but did not reverse the prejudice his misconduct caused.
The appropriate sanction depends on the seriousness of the offense and case-specific aggravating and mitigating factors. Despite the seriousness of the offense, considerable mitigation exists: Callister has no prior disciplinary offenses, eventually revoked his improper communications, and enjoys an otherwise good reputation. Nonetheless, the seriousness of the offense, the prejudice it caused, and the fact it was deliberate make public reprimand insufficient.
The case is In re Jonathan Callister. (Mike Frisch)
The Nevada Supreme Court ordered the disbarment of convicted attorney Robert Graham on September 11, 2017 with one unusual feature
we disbar attorney Robert C. Graham from the practice of law in Nevada. Such disbarment is irrevocable. SCR 102(1). Graham shall pay restitution as set forth by the State Bar in the amount of $17,208,152.78. He shall also pay a fine of $1 million to the Nevada Client Security Fund.
The Las Vegas Review-Journal reported on the crimes and bar action
Graham, 52, who is in custody at the Clark County Detention Center on $5 million bail, pleaded guilty before District Judge Kerry Earley to two felony counts of theft and three counts of exploitation of an older/vulnerable person. He faces a prison term of 16 to 40 years at his Jan. 11 sentencing.
“He’s a despicable predatory thief, plain and simple,” District Attorney Steve Wolfson said after the hearing. “He’s going to serve more time in prison than some murderers. As much justice as we could deliver was delivered today.”
Graham wore black reading glasses as he stood before Earley in jail garb and chains to enter his plea.
“I’m guilty of these charges, your honor,” Graham told the judge.
His lawyer, Deputy Public Defender Bryan Cox, added afterward, “It’s been a very difficult case, especially for the victims and the victims’ families.”
In the courtroom, Chief Deputy District Attorney J. P. Raman, the lead prosecutor in the case, read aloud the names of more than 110 clients who deserve a share of the $16 million in restitution prosecutors will seek against Graham.
The money was stolen between 2011 and 2016, Raman said in court papers Thursday.
The thefts — which ranged from as little as $20 to more than $1 million — occurred in 64 estate cases, 21 trust funds, 10 guardianship cases, and four special needs trusts, the court papers show.
Graham’s guilty plea capped a 10-month legal saga that began when he abruptly shut down his Lawyers West office in Summerlin on Dec. 2 after years of looting client funds.
In interviews with the Las Vegas Review-Journal after his indictment earlier this year, former clients described their frustration with Graham as they fought, sometimes desperately, to get him to turn over their funds in the years and final months before he closed his law practice.
Clients lost everything
The victims who lost everything include a wheelchair-bound woman with cerebral palsy and three young children who survived a crash that killed their parents. Some of the victims are expected to testify at Graham’s sentencing.
Graham secretly funneled an average of $187,000 a month in client funds over the years to a special bank account to run his law practice and pay personal bills, grand jury transcripts show.
He used client funds to pay $244,000 in taxes and $700,000 a year in advertising. He also used the money to make thousands of dollars more in charitable donations to numerous organizations, including the Church of the Latter Day Saints and Boys Town of Nevada, the testimony shows.
“I was responsible for the litigation and felt I had no out,” Graham said. “So bit by bit, I moved the chairs on the deck. Each year, things got worse and worse, and I tried to bail myself out and just couldn’t.”
Assistant Bar Counsel Janeen Isaacson has since asked the Nevada Supreme Court to permanently disbar Graham.
“He stole millions of dollars to feed his ego and desires for wealth and power, and he used his law license to do it,” Isaacson said at a recent disciplinary hearing.
Several former clients filed an involuntary bankruptcy petition against Lawyers West in December seeking the firm’s remaining assets.
But lawyers for the clients have admitted there is slim chance of recovering the missing funds. In Bankruptcy Court papers, Lawyers West listed $8.7 million in liabilities and only $438,000 in assets, mostly in unpaid legal fees unlikely to be collected.
Wolfson said Thursday that obtaining restitution from Graham in the criminal case also will be difficult because of his lack of assets.
“The odds of recovering anything significant are probably not very likely,” he said.
The Nevada Supreme Court rejected a petition of the State Bar to impose an interim suspension of an attorney convicted of reckless driving
This is a petition under SCR 111 concerning attorney Rahul Kulkarni, based on a conviction for reckless driving, a misdemeanor in violation of NRS 484B.653(1)(a). See NRS 484B.653(3)(a) (providing that first-offense violation of NRS 484B.653(1)(a) is a misdemeanor). Kulkarni self-reported the conviction to the State Bar as required by SCR 111(2). Because the conviction is not for a "serious crime" as defined in SCR 111(6), temporary suspension and referral for disciplinary proceedings are not mandatory. SCR 111(7), (8). Having considered the petition and supporting documentation, we conclude that Kulkarni's offense is a minor one that does not warrant the imposition of a temporary suspension or referral to a disciplinary board at this time. See SCR 111(9). We therefore decline to take any action on the petition.
The links to the Nevada cases do not work. They can be found under unpublished opinions on the court's web page. (Mike Frisch)
The Nevada Supreme Court accepted a consent six-month suspension with three months stayed on conditions
In the plea agreement, Holper admitted to one or more violations of the following Rules of Professional Conduct: 1.1 (competence), 1.4 (communication), and 3.1 (meritorious claims and contentions) by (a) filing a complaint on behalf of a client alleging a cause of action knowing that the statute of limitations had expired and the defendant was not liable, and (b) not communicating with the client regarding the status of her case; 1.3 (diligence) by failing to diligently pursue a case; 1.6 (confidentiality of information) by allowing privileged information to be shown to a client's family member without the client's permission; 1.8 (conflict of interest) by entering into a business transaction inappropriately with a client; 1.15 (safekeeping property) by failing to maintain client funds in his trust account and failing to account for settlement funds; 3.3 (candor toward the tribunal) by not being forthright with a state court about his client's pending federal charges and his reasons for seeking to change that client's plea in an adjudicated misdemeanor matter; 5.3 (responsibilities regarding nonlawyer assistants) by failing to appropriately supervise a nonlawyer assistant; 8.1(b) (disciplinary matters) by failing to give correct or adequate information to the State Bar in responding to the disciplinary inquiries; and 8.4 (misconduct) by failing to comply with the Rules of Professional Conduct. Holper agreed to (1) a 6-month suspension, to be conditionally stayed with the exception of 90 days actual suspension; (2) a 1-year probation period, during which he must have no new grievance resulting in the imposition of actual discipline; (4) complete 20 additional hours of continuing legal education; (5) pay restitution; and (6) pay the actual costs of the disciplinary proceeding plus fees.
Justice Douglas dissented and would not approve the agreement.
The case is In re Scott Holper.
In an unrelated matter
Under the conditional guilty plea agreement, Mann admitted that he entered into an agreement to represent a client for a flat fee of $125,000, which was earned upon payment. The client paid the fee in full and Mann represented the client for one month before filing a motion to withdraw as counsel. Thereafter, Mann filed a complaint against the client to recover $28,987.50 in additional fees for extraordinary services and he sought punitive damages. Allegations in the complaint were then used against the client in ongoing trust litigation between the client and her daughters. Mann also refused to release the client's file to her new counsel and asserted a retaining lien that was arguably not supported by Nevada law. Mann admitted to violating RPC 1.16(d) (declining or terminating representation) and RPC 8.4 (misconduct) by withdrawing his legal representation in a manner that failed to protect the client's interests. Mann agreed to a five-month suspension and to pay the fees and costs of the disciplinary proceeding. In exchange, the State Bar agreed to dismiss allegations as to violations of RPC 1.5 (fees), RPC 1.6 (confidentiality), RPC 1.15 (safekeeping property), and RPC 5.4 (professional independence of a
The court did not approve
Having reviewed the record of the disciplinary proceedings, we reject the conditional guilty plea agreement and remand this matter to the Southern Nevada Disciplinary Board for further proceedings.
The case is In re David Mann. (Mike Frisch)
Friday, October 6, 2017
A misdemeanor conviction for resisting or obstructing a police officer drew a private reproval by the California State Bar Court Hearing Department.
On May 18, 2016, respondent and his wife (now respondent’s ex—wife) received a letter ordering them to vacate their home of 13 years by May 26, 2016. Upon receipt of the letter, respondent got upset and began drinking, because the lender previously had agreed to a May 31, 2016 foreclosure date. Consequently, respondent, relying on the May 31, 2016 foreclosure date, made arrangements for new housing and for a U-Haul.
When respondent read the lender’s letter, respondent became extremely upset and began drinking. Soon thereafter he grabbed a can of lighter fluid and left the house with his wife. His wife called the police and told the police that when respondent left the home, he had said that if he could not have the home, no one could have it and that he was going to burn the house down. As police officer Patricia Varozza (Varozza) was in the area, she responded to the wife’s call. When Varozza saw the person, who she believed to be respondent, she surmised that he was very upset and angry. She called out his name and began talking to him. But, she was unable to engage respondent as he started to jog away from her and toward his home. Varozza told him to stop on numerous occasions; but, respondent did not heed her calls.
Within three to five minutes Varozza caught up with respondent, who had reached the front yard of his home. Respondent squirted the light fluid toward Varozza; but, it did not touch her. Varozza used her taser on respondent, although it did not appear to have any effect on him. However, another officer, Marcus Frank (Frank), who had arrived on the scene, deployed his taser, which hit respondent twice on the back. Frank testified that the only knowledge he had regarding the lighter fluid, was based on the statement of respondent’s wife. Frank said he noted that respondent’s eyes were watery and he had a moderate odor of alcohol. But, respondent was calm and compliant.
Varozza described respondent as being completely different after being tased. She testified that it was as if respondent were a completely different person. He became compliant, seemed very calm, and was polite. Varozza testified that although respondent had a lighter with him, she never saw him light it. Varozza credibly testified that respondent was never disrespectful. When paramedics arrived on the scene, respondent was taken to the hospital, where it was determined that he had 0.27% blood alcohol content.
As to sanction
Clearly, respondent and his wife were involved in a disastrous marriage, which resulted in an extremely contentious custody dispute. At the same time the lender notified respondent that the agreed upon foreclosure date was being accelerated. Yet, despite this series of unfortunate events, respondent even in his inebriated state, somehow found the emotional strength to withdraw from the brink of disaster on May 18”‘. He did not burn any property; and he calmed himself down and interacted with the police officers in a calm and respectful way.
Thereafter, respondent entered therapy, divorced his wife, won the custody dispute, and moved 50 miles away from his wife in order to avoid the stressors of what clearly was a toxic relationship...
Respondent’s conduct on May 18, 2016, appears to have been the result of a singular lapse in judgment, which occurred when respondent was emotionally distraught due to the overwhelming family and emotional problems confronting him. Moreover, respondent has since taken steps to eliminate the possibility of being once again overwhelmed by eliminating many of the stressors that caused him to feel beaten down. As noted, respondent changed his residence to a location, which is 50 miles away from his ex~wife’s residence. He obtained sole custody of his child, and he has entered therapy. Considering and balancing all of the relevant factors, the court has determined, and orders, as outlined below, that respondent receive a private reproval with reproval conditions attached.
An attorney who had consented to disbarment in North Carolina and Illinois as a consequence of a South Carolina conviction has now consented to the same sanction in the Commonwealth of Virginia.
By committing the acts described in his Affidavit of Surrender of Law License and by being convicted of one ( 1) felony count of pointing and presenting firearms at a person, one (1) misdemeanor count of unlawful carrying of a pistol, and one (1) misdemeanor count of possession of cocaine in Charleston County, South Carolina, Howell committed criminal. acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in violation of Rule 8.4(b) of the North Carolina Rules of Professional Conduct.
We had reported on the earlier sanctions with a link to WRAL.com
A 39-year-old Cary man, who has worked as a tax attorney in Raleigh, is accused of holding his ex-girlfriend hostage at a South Carolina grocery store.
The Isle of Palms Police Department has charged Robert Howell with attempted murder, kidnapping and first-degree burglary in the incident, which happened Wednesday.
Investigators said Robert Howell followed Autumn Yee, 29, of Cary, to Isle of Palms, where she was vacationing. Howell allegedly took Yee to Hudson's Market, where she alerted one of the clerks by silently mouthing "call police."
In a 911 recording, the woman can be heard speaking to an emergency operator about the situation.
"I need you to come to Wild Dunes, please. There's a man with a gun and he's holding me hostage," she said. "I need you to get here quick."
Isle of Palms police Capt. Kimberly Usry said Yee tried to keep herself and her assailant in public places so someone could see them. At some point, she jumped over the counter to try to get away. Howell grabbed her, ran out of the store toward the beach and was arrested, Usry said.
Police said Yee, who suffered minor scratches in the incident, had gone to Isle of Palms to flee from Howell a day after he allegedly assaulted and threatened her in her Cary home.
"Officers responded and found that a subject and been harassing the victim there," Cary police Capt. Randall Rhyne said.
In a 911 call that day, Yee told dispatchers she arrived home and found him pacing back and forth in the road, staring at her. She said she was frightened and asked the call-taker to stay on the line until help arrived.
"I'm just afraid to get out of the car," she said in the recording released Monday. "I just want a cop to escort me to my door and ask him to leave."
Robert Howell and his estranged wife, Sarah Howell, are locked in a contentious custody battle over their three children. According to court documents, Sarah Howell had subpoenaed Yee in the custody case.
A day after Yee was held hostage, Sarah Howell sought a protective custody order against her husband, citing the kidnapping as proof that he posed a danger to her and her children.
Cary police said they are now working with South Carolina authorities to serve Robert Howell with additional warrants.
"We take domestic violence very seriously," Rhyne said. "We have a pro-arrest policy for these type of offenses. We try to get them adjudicated to the full extent of the law."
Bo Demster, a managing partner at Poynter & Spurill in Raleigh, confirmed that Howell worked as a tax attorney at the firm from 2013 until this April. The terms of his departure were not disclosed.
"This was a real surprise to all of us who have worked with him," Demster said of Howell's arrest.
An attorney suspended for three years by the Pennsylvania Supreme Court was reciprocally disbarred by the New York Appellate Division for the First Judicial Department.
Notably, the Pennsylvania sanction was imposed in 2006
The [Pennsylvania] Board found that respondent had violated the Pennsylvania Rules of Professional Conduct regarding competent representation, acting with reasonable diligence and promptness, keeping a client informed about the status of a matter, explaining information to client to allow them to make informed decisions, communicating the basis or rate of fee in writing before or within a reasonable time after commencing legal representation, not withdrawing given that his representation violated the Rules of Professional Conduct, knowingly making a false statement of material fact of law to a tribunal, knowingly making a false statement to a third person, practicing in a jurisdiction in violation of professional regulations in that jurisdiction, and engaging in conduct that is prejudicial to the administration of justice. The Board also found that respondent willfully violated the Pennsylvania Rules of Disciplinary Enforcement by, inter alia, failing to notify various individuals, including clients and adverse parties, of his transfer to inactive status.
The Board noted that there was overlapping between the two disciplinary matters "as the acts of misconduct in the instant proceeding occurred during the same time frame as the misconduct in the previously determined matter" but respondent's misconduct of engaging in the unauthorized practice of law was not charged in the former, it was only considered in aggravation. The Board found that in addition to his unauthorized practice of law, respondent "demonstrated a clear lack of competence in his handling of [one] matter, a consequence of which was the dismissal of his clients' civil case," and, in aggravation, was the fact that respondent's competency or conduct had been placed in issue in at least seven civil cases, six of which were legal malpractice cases. Referring to respondent's suspension imposed in the previous disciplinary matter for his "multiple acts of misconduct....wherein he commingled and converted client funds and engaged in other acts of dishonesty," the Board recommended that respondent be suspended for three years, to run concurrent to his three-year suspension previously imposed by the court on August 30, 2005.
The position of the New York Departmental Disciplinary Committee
The Committee now moves for an order, pursuant to the Rules for Attorney Discipline Matters (22 NYCRR) § 1240.13, imposing reciprocal discipline on respondent, predicated upon discipline imposed by the Supreme Court of Pennsylvania. The Committee requests that respondent be disbarred, effective as of April 25, 2017, the date he reported his foreign discipline (rather than nunc pro tunc to August 30, 2005, when he was disciplined in Pennsylvania).
Respondent, pro se, was personally served in hand with this motion at his New York registered address but has not filed any response papers.
The court imposed disbarment nunc pro tunc
In light of all of the circumstances and the nature of disbarment versus the punishment imposed by the Supreme Court of Pennsylvania (a three-year suspension), the Committee's motion for reciprocal discipline should be granted, and respondent is disbarred from the practice of law in the State of New York and his name stricken from the roll of attorneys and counselors-at-law, nunc pro tunc to August 30, 2005.
At the time the respondent surrendered his license, a formal complaint had been filed in which it was alleged that the respondent was dilatory in filing a bankruptcy for his client. In addition, it was alleged that the respondent misled his client about the filing of the bankruptcy and misled an attorney for a creditor in the bankruptcy as to the status of the bankruptcy case.
The court grants the petitioner's petition for reinstatement of his license to practice law in Kansas subject to the following conditions: The petitioner continues to receive treatment from Dr. Parker until such time as Dr. Parker believes that treatment is no longer necessary, and prior to reinstatement the petitioner must satisfactorily complete a bar review course approved by this court. Petitioner shall furnish satisfactory proof to the Clerk of the Appellate Courts that he has attended an approved bar review course and include records tracking his participation in and interactions with the course curriculum as well as provide a certification of completion. The course must also include an ethics component. The petitioner must also prior to reinstatement pay all fees required by the Clerk of the Appellate Courts and pay all fees required by the Kansas Continuing Legal
The Indiana Supreme Court has suspended a recently convicted attorney
The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following felony offenses under Indiana law: theft (8 counts), check deception (5 counts), and corrupt business influence (2 counts).
IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately. Respondent is already under suspension as ordered in Case No. 48S00-1504-DI-175. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect...
The HeraldBulletin.com covered his guilty plea
Embattled local attorney Stephen Schuyler pleaded guilty to multiple criminal charges in Madison Circuit Court Division 3 on Thursday.
His trial on charges of theft and deception was to begin on Tuesday.
Judge Thomas Newman Jr. scheduled sentencing in his court for 9 a.m. June 22.
His legal troubles emerged in January 2015 when a check he wrote to East Lynn Christian Church in the amount of $78,387.13 bounced. The church was named as a beneficiary in the estate of Sara Wilding.
Later that year, criminal Magistrate Judge Stephen Clase removed Schuyler from more than 130 cases in which he had a fiduciary interest in estates and guardianships. Those cases were assigned to other lawyers.
The Indiana Supreme Court accepted a recommendation from the Indiana Attorney Disciplinary Commission to indefinitely suspend Schuyler's law license because he didn't cooperate in the investigation of complaints filed against him.
Schuyler was forced to sell property he owned in Adams Township and Syracuse.
At sentencing, Newman will determine whether Schuyler will serve time in prison and whether he will be required to pay restitution.
What typically happens in cases like this is that a person will borrow money from an account and promise to pay it back with future earnings.
"If he's got a $600,000 home in southern Madison County, and a lake home in northern Indiana, it's pretty hard not to consider that greed," Cummings added. "That's a fairly lavish lifestyle in my view."
Newman will decide whether Schuyler will serve any time in prison at sentencing later this month. The maximum number of years he could serve is eight years under the most serious Class C felony charge.
"A lot of people that he ripped off want to see him get the maximum sentence," Maxine Pitkin said Thursday in a phone call to The Herald Bulletin.
Schuyler handled the estate of an uncle, who bequeathed $150,000 to Pitkin's mother, and $60,000 to Pitkin and her brother. Checks Schuyler wrote all bounced, said Pitkin, who lives in California.
"We want justice, and that's the only justice we can get," Pitkin said.
US News reported that he was sentenced to an eight-year term of imprisonment. (Mike Frisch)
Thursday, October 5, 2017
Ohio Disciplinary Counsel has filed a complaint alleging serious neglect of several criminal matters on the part of the accused attorney.
While the recited factual averments tell a number of sad tales of client abuse, one allegation in particular caught my eye in describing the initial office meeting with the incarcerated client's relatives.
In respondent's office, there was a large statue of an angel holding a spear and standing with its foot on the head of the devil. Respondent told [the client's family members] that he...is the angel who fights the devil and evil doers on behalf of his clients.
Another count refers to an office statue of a winged angel.
An unrelated complaint involves allegation that a juvenile court magistrate falsely claimed to be working a 40-hour week.
The recent improvements that the Ohio Board of Professional Conduct undertook to provide easy access to pending charges are a model for other jurisdictions to follow.
If the above links do not work, the first case is In re Michael Cheselka. The second is In re Charles Wochna. (Mike Frisch)
The Florida Supreme Court has rejected a referee's proposed 60-day suspension in favor of a one year term.
In July 2015, The Florida Bar filed a complaint against Dopazo, alleging that he engaged in misconduct in violation of the Bar Rules. The Bar made two distinct claims in its Complaint. First, the Bar alleged Dopazo participated in a patient-client recruiting scheme orchestrated by a nonlawyer, in which Dopazo obtained clients and paid the nonlawyer for those client referrals. Second, the Bar alleged Dopazo either directly himself or through an employee or agent knowingly solicited Penny Jones, the mother of a brain-injured child at the hospital, while the child was in a coma. A referee was appointed to consider the matter. Following a hearing, the referee submitted his report, in which he made the following findings and recommendation.
On December 22, 2011, after a federal trial on the matter concluded, the Federal Bureau of Investigation sent the Bar materials concerning the investigation and subsequent indictment of two nonlawyers for their involvement in an illegal patient-client recruiting scheme with medical clinics involving local lawyers. After reviewing those materials, the Bar suspected Dopazo to have been involved in the scheme and to have paid for client referrals. At the final hearing, the Bar presented evidence that Dopazo provided thirty-one payments to Miami-Dade Services, Inc., suggesting Dopazo made these payments as part of the scheme to receive potential client information. Dopazo acknowledged the payments but explained they were made on letters of protection for healthcare services furnished to his clients at the medical clinics. The Bar admitted there was no “smoking gun” to directly support its allegation that Dopazo was involved in the patient-client recruiting scheme.
The referee found insufficient evidence of the above charges but
In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to become a client of his for a fee. There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf. The referee found that Dopazo’s appearance at the hospital was completely unexpected, and while she did apparently retain his services at that time, Jones’ limited education and fragile emotional condition at the time likely rendered her unable to make a rational decision whether to retain counsel or reject Dopazo’s efforts to sign her up as a client. In defense of his actions, Dopazo claimed that his office called him and told him to go see Jones in the hospital intensive care unit; however, the referee found that this explanation was insufficient.
The court rejected the attorney 's attacks on the evidence but weighed the Bar's appeal for a two-year suspension
Here, case law supports the Bar’s assertion that the referee’s recommended sanction of a sixty-day suspension is too lenient. In Weinstein, this Court disbarred a lawyer who solicited a stranger who was hospitalized with brain damage after a motorcycle accident when the lawyer also committed a series of lies to execute the solicitation...
In cases where the lawyer has been previously disciplined for engaging in conduct of a similar nature, this Court typically takes an incremental approach in imposing discipline, increasing the severity of discipline in each instance. See Fla. Bar v. Norkin, 132 So. 3d 77, 92 (Fla. 2013); Fla. Bar v. Morgan, 938 So. 2d 496, 499-500 (Fla. 2006). Dopazo previously received a public reprimand for solicitation in 2004, and he has committed the same rule violation a second time by soliciting Jones in this case. Therefore, a more severe sanction is warranted because Dopazo committed the same conduct for which he was previously disciplined. Further, “the Court has moved toward imposing stronger sanctions for unethical and unprofessional conduct” to protect the legal profession from dishonor and disgrace. Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015). Unethical violations of the solicitation rule, such as the ones committed by Dopazo in this case, have the potential to harm people who are already in a vulnerable condition and bring dishonor and disgrace on the entire legal profession. This Court will not tolerate these improper solicitations and will “impose severe sanctions on those who commit violations of them.” Barrett, 897 So. 2d at 1277. Therefore, we conclude that a one-year suspension from the practice of law is warranted in this case.
A reciprocal public censure has been ordered by the New York Appellate Division for the Third Judicial Department based on a sanction imposed in Florida and not reported as required.
The Florida proceeding
By judgment entered October 23, 2014, the Supreme Court of Florida, among other things, publicly reprimanded respondent based upon a complaint filed against him by The Florida Bar (The Florida Bar v Kaufman, 153 So 3d 910 [Fl 2014]). Respondent executed a document entitled Conditional Guilty Plea for Consent Judgment, wherein he voluntarily admitted that he had failed to properly communicate with clients and had improperly shared legal fees with nonattorneys...
The attorney objected
Respondent has filed papers in opposition, contending that there was an infirmity of proof establishing the misconduct in Florida and that the misconduct for which he was disciplined in that state does not constitute misconduct in New York (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.13 [b] , ), to which AGC has replied in opposition.
The court concluded that there contentions were unsupported
Turning to the issue of the appropriate disciplinary sanction, we take note that respondent's public reprimand in Florida was tantamount to a censure in this state. Accordingly, we hold that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent should be censured in this state.
Wednesday, October 4, 2017
A conflict of interest drew a public reprimand from the South Carolina Supreme Court
Respondent was employed by Oconee Medical Center (OMC) as General Counsel. A patient at OMC had no family or friends to care for her, so Respondent volunteered to act as her guardian and conservator. Respondent did not discuss the possible conflicts of interest that could arise out of her appointment with the patient and did not get the patient to waive these conflicts.
Respondent billed the patient for her time as conservator; the patient's bills totaled $8,687. The patient's home needed repairs, and Respondent hired her son to do cleaning and repair work on the home for $10 per hour. Respondent paid her son a total of $700. Respondent's son had a history of drug abuse, but Respondent believed him to be sober at that time. Respondent gave her son permission to stay in the home while he was working as he did most of the work at night after his day job. At some point, Respondent's son moved into the patient's home. Respondent was not aware of her son's move into the home, but she acknowledges she would have known if she had inspected the utility bills she was paying on the patient's behalf.
Respondent admits she did not properly monitor the work her son was performing at the patient's house. She states she had meningitis and was required to be hospitalized both in and out of state over a three month period during the time her son was working on the house. When Respondent returned to work, she discovered the patient's home had been vandalized by her son and/or his friends. She also discovered her son had forged the patient's name to the patient's car title and sold the patient's car. Additionally, her son had sold some of the patient's possessions. Respondent promptly reported the matter to the police.
Respondent was arrested and charged with Failing to Report Exploitation of a Vulnerable Adult by the Seneca Police Department. She was accepted into pretrial intervention program (PTI), and her charge was expunged. Respondent made full restitution, including all fees she collected, and apologized to the patient. She also
performed 48 hours of community service and attended a class required of all PTI participants.
The attorney admitted the conflict. (Mike Frisch)
The South Carolina Supreme Court has imposed an 18-month definite suspension of an attorney, who among other things, failed to pay for several depositions
Respondent admits his pattern and practice of failing to timely pay for court reporting services violates Rule 4.4 (in representing a client, lawyer must have respect for rights of third persons) and Rule 8.4(e) (it is professional misconduct to engage in conduct that is prejudicial to the administration of justice) of the Rules of Professional Conduct (RPC) found in Rule 407, SCACR.
He failed to respond to bar complaint and did not honor that terms of an agreed discipline
In the Agreement for Discipline by Consent that concluded the Swartz complaint, the second Graber complaint, and two client complaints, Respondent agreed to certain conditions. Those conditions included paying the investigation costs by November 29, 2014, completing the Legal Ethics and Practice Program (LEAPP) Ethics School and Law Office Management School by October 29, 2015, and maintaining $1,000 in his operating account to cover costs incurred on behalf of clients, including court reporting invoices.
The Commission sent letters reminding Respondent of his obligations on November 17, 2014, January 7, 2015, April 29, 2015, April 30, 2015, August 26, 2015, and January 8, 2016. Respondent did not complete the required LEAPP sessions, which were available to him in February 2015, September 2015, and February 2016. Furthermore, Respondent did not pay the investigation costs.