Thursday, July 14, 2016
5 1/2 Year D.C. Bar Counsel "Investigation" Leads to Probation That Need Not Be Disclosed To Clients
The District of Columbia Court of Appeals has ordered a stayed suspension of 30 days with probationary conditions of an attorney who had breached the duty of confidentiality and engaged in related violations.
The attorney's probationary status need not be disclosed to clients
The Board concluded that respondent should not be required to report his probation to current or new clients. See D.C. Bar R. XI, § 3 (a)(7). The Board did, however, indicate that if Disciplinary Counsel determines in accordance with Board Rule 18.3 that respondent has violated any term or condition of his probation, Disciplinary Counsel may file with the court a verified motion to show cause why the matter should not be referred to a Hearing Committee for an evidentiary hearing.
The misconduct related to a motion to withdraw as counsel in civil litigation.
From the hearing committee report
Respondent’s Motion to Withdraw as Counsel and the attached letter made allegations about [the client] Ms. Butler based on information obtained during the representation, and revealed aspects of her settlement strategy, among other disclosures. Confidential Appendix, ¶ 7. In his Motion for Reconsideration, Respondent made additional accusations that implicitly reflected communications between them, and described at least one communication between them. See id., ¶ 14. Respondent also attached to his Motion five e-mails from Ms. Butler to him.
At the disciplinary hearing
Throughout the hearing, Bar Counsel amply evinced its exasperation with Respondent. And at times, the Hearing Committee found it necessary to require Respondent to move forward with his examination, testimony and arguments more pertinently and efficiently and with less digression and repetition. However, the Hearing Committee, unlike Bar Counsel, does not find the pre-hearing motions practice, the three-hour hearing on motions and other matters, or Respondent’s several instances of disorganization and lack of focus to be particularly unusual in litigation (let alone abusive) or to have caused any undue delay in or extension of the hearing itself or the overall disposition of this matter. (There is no suggestion that Respondent was in any way responsible for the extraordinary – and unexplained – five-and-one-half-year hiatus between the initial letter of inquiry and the filing of the Specification of Charges, after which the matter then moved expeditiously to hearing within five-and-one-half months.)
The hearing committee criticized Bar Counsel's use of precedent
Bar Counsel seeks a 60-day suspension and a requirement that Respondent then show his fitness to practice law before being re-admitted to the Bar. Bar Counsel has not adduced any apposite authority supporting this recommendation and such a sanction would be inconsistent with sanctions imposed in similar situations.
Although Bar Counsel relies heavily upon Gonzalez in its analysis of the Rule 1.6(a)(1) allegation, Bar Counsel Brief at 12-14, Bar Counsel ignores Gonzalez in its sanction argument. As discussed supra at 10-12, the facts in Gonzalez and in this matter are remarkably similar – indeed, nearly identical. With respect to the appropriate sanction, the Board determined that Gonzalez “‘had made a mistake he is not likely to make again. . . .’” Gonzalez, 773 A.2d at 1028. The Board – and, indeed, Bar Counsel also – recommended an informal admonition, and the Court of Appeals agreed.
The hearing committee did not find sufficient evidence that the attorney was presently unfit to practice
The Hearing Committee has explained above its reasons for having no serious concerns about Respondent’s fitness to practice law competently and ethically. Bar Counsel has not come close to meeting the serious doubt standard by clear and convincing evidence. Imposition of a fitness requirement would result in a backdoor suspension of uncertain and potentially unconscionable length that would be grossly inconsistent with the sanctions imposed in proceedings involving similar circumstances.
Yesterday I praised the efficiency of the BPR in promptly moving a disbarment recommendation to the court. Today, this case shows more evidence of Bar Counsel's gross neglect of its duty to protect the public. This case took seven years total to resolve a single matter with all the fault for the delay attributable to Bar Counsel.
Maybe they changed the name to Disciplinary Counsel to blame those "other" people for taking 5 1/2 years to "investigate" a matter that required little more than a review of court filings. (Mike Frisch)
Wednesday, July 13, 2016
AL.com Alabama reports on an attorney 's guilty plea
A South Carolina attorney has pleaded guilty to defrauding a University of Alabama sorority – her alma mater – of hundreds of thousands of dollars in a sorority house furnishing scheme.
U.S. Attorney Joyce White Vance today announced 39-year-old Jennifer Elizabeth Meehan entered her plea Tuesday in federal court. Meehan, who was tasked with furnishing the University's new Gamma Phi Beta house, was arrested last year and accused of defrauding the sorority of nearly $400,000 through schemes in which Meehan submitted invoices for a sorority's furniture and equipment and received payment for them without ever actually providing the goods to the house.
Vance said Meehan was president of the House Corporation Board of the Epsilon Lambda Chapter of Gamma Phi Beta Sorority in an unpaid, volunteer capacity and was tasked with furnishing the $14 million sorority house between September 2013 and March 2015. The new house was the largest in the sorority's national history.
According to the plea agreement, Meehan executed a bank fraud scheme to illegally obtain money from First Citizens Bank & Trust Company and the Bank of Tuscaloosa. Gamma Phi Beta's account was at the Bank of Tuscaloosa and Meehan opened an account at First Citizens Bank under a fraudulent business name.
In September and November of 2014, Meehan submitted fraudulent furniture invoices totaling about $375,000 to Greek Resource Services, a contract company that handles the finances for fraternities and sororities at UA. GRS drew money from Gamma Phi Beta's account at Bank of Tuscaloosa and gave Meehan two checks totaling about $375,000. She deposited that money into the newly opened First Citizens account, authorities said.
In January 2015, Meehan entered a First Citizens Bank & Trust branch in Anderson, S.C., and wired $175,000 from the fraudulent business account into her personal business account at Bank of America for her personal use, according to her plea agreement. The U.S. Secret Service and the U.S. Postal Inspection Service investigated the case, which Assistant U.S. Attorney David H. Estes prosecuted.
Under the plea agreement, Meehan agreed to forfeit, as proceeds of illegal activity, $234,648, and to pay additional restitution of $34,815 to Greek Resource Services. Initially charged with eight counts, the government agreed to drop seven other fraud and money laundering counts against Meehan as part of the agreement and agreed to recommend a 20-month prison sentence.
She had previously been publicly censured in Tennessee and reciprocally in South Carolina.
The Board of Professional Responsibility (the Board) of the Supreme Court of Tennessee specified respondent submitted a false resume to a potential employer and made false statements to disciplinary counsel for the Board.
Bar discipline undoubtedly to follow for this conviction.
A suspension had already been imposed, according to this story from the Independent Mail. (Mike Frisch)
The Minnesota Supreme Court has imposed a public reprimand for a Rule 8.4 violation.
Robert Stoneburner was admitted to practice law in Minnesota in April 1977. He has no previous record of professional misconduct. The Director’s petition for disciplinary action in this case is based on two criminal offenses that Stoneburner committed on August 24, 2013.
That day, Stoneburner and his wife engaged in a heated argument. The argument culminated with Stoneburner throwing a small “soft sided case” at his wife, which hit her in the leg. As Stoneburner’s wife called 911, Stoneburner physically wrested the phone from her and hung it up. The 911 operator returned the call, and Stoneburner again hung up the phone. When the 911 operator called back a second time, Stoneburner answered and told the operator there was no emergency. Only when the operator requested to speak to his wife did Stoneburner hand over the telephone. At the referee hearing, Stoneburner testified that he interfered with the 911 call because he did not want to be arrested.
Stoneburner was charged in Stearns County with three crimes in connection with the incident: one count of gross misdemeanor interference with a 911 call, Minn. Stat. § 609.78, subd. 2(1) (2014); one count of misdemeanor domestic assault-fear, Minn. Stat. § 609.2242, subd. 1(1) (2014), and one count of misdemeanor domestic assault-harm, Minn. Stat. § 609.2242, subd. 1(2) (2014). Following trial, a jury found Stoneburner guilty of interfering with the 911 call and committing domestic assault-fear, but acquitted him of domestic assault-harm.
A referee had found that no ethical violations were established and recommended that the charges be dismissed.
The OLR Director ordered a transcript and sought review.
The Director urges us to conclude that the referee’s application of Rule 8.4(b) to Stoneburner’s conduct was clearly erroneous because the comment to the rule states that criminal “offenses involving violence” are in the category of offenses that “indicate lack of those characteristics relevant to the practice of law.” The Director points to a wide range of Minnesota statutes categorizing misdemeanor domestic assault-fear as a crime involving violence, e.g., Minn. Stat. § 609.02, subd. 16 (2014), and argues that the fact that Stoneburner’s crime involved violence is conclusive evidence that Rule 8.4(b) was violated.
The domestic incident did not violate Rule 8.4(b)
the referee properly noted that this case does not involve an allegation that Stoneburner’s acts—although unquestionably condemnable—caused physical harm to his victim. This case, then, is different from those in which we have imposed discipline for misdemeanor assaults.
We do not minimize the seriousness of domestic assault offenses, nor imply that an attorney who commits misdemeanor domestic assault cannot thereby violate Rule 8.4(b). Rather, we hold that the referee’s determination that the Director did not carry her burden to prove a violation of Rule 8.4(b) by clear and convincing evidence in this case is not clearly erroneous.
But interfering with the 911 call did violate Rule 8.4(d).
The referee’s conclusion on this issue was clearly erroneous. The undisputed evidence convinces us that Stoneburner’s acts were prejudicial to the administration of justice. The 911 telephone system is one of the most important gateways to our system of criminal justice. As the Legislature has recognized, interference with an emergency call is a crime against a vital government service. See Minn. Stat. § 609.78, subd. 2(1). Interference delays a crime victim’s right to aid, confuses first responders, undermines the State’s ability to investigate and prosecute violent crime, and needlessly consumes criminal justice resources. An attorney should never act to prevent a victim’s access to the criminal justice system, especially by the use of force or coercion.
In this case, Stoneburner used force and coercion to hinder his wife’s access to aid. He took the telephone from her to prevent her from reporting the assault. He compounded the interference by preventing his wife from answering the operator’s return call. When the operator called again, Stoneburner attempted to mislead the operator for the purpose of avoiding arrest. His conduct was clearly prejudicial to the administration of justice.
And the sanction must be public
In this case, we cannot conclude that a private admonition is sufficient discipline. Stoneburner’s misconduct in violating Rule 8.4(d) substantially differs from previous cases in which we have determined that the violations warranted only private discipline. See In re Panel No. 94-17, 546 N.W.2d 744, 747 (Minn. 1996) (holding that an attorney violated Rule 8.4(d) by threatening to bill a client for time spent responding to an ethics complaint); In re A.M.E., 533 N.W.2d 849, 850-51 (Minn. 1995) (concluding that an attorney violated Rule 8.4(d) by making a profane phone call and sending a derogatory fax to a complainant in an attempt to interfere with the disciplinary process). In neither 94-17 nor A.M.E. did the attorney’s conduct constitute a criminal offense, and the misconduct at issue in both of those cases was less serious than in this case. Nor is this case similar to In re Panel File 98-26, 597 N.W.2d 563, 568 (Minn. 1999), in which we concluded that, although the attorney committed serious misconduct, a private admonition was sufficient. In that case, we concluded that the misconduct “did not stem from any malicious intent” and recognized that the misconduct was accompanied by immediate affirmative actions on the part of the attorney to mitigate the consequences. Id. at 568-69. Here, those factors are not present, and we decline to take the extraordinary step of ordering a private admonition for misconduct that we consider serious. Attorneys licensed in this state must understand that their obligation to support the administration of justice is fundamental, and that even isolated acts that directly impede it may warrant public discipline. Thus, we conclude that the appropriate discipline is a public reprimand.
When the District of Columbia Board on Professional Responsibility gets out a report in a matter involving a proposed disbarment in less than four months, I stand and applaud.
Applause please for the board report filed yesterday in In re Catherine E. Abbey, Bar Docket No. 2012- D370.
From the date of deposit of the settlement check into the IOLTA account until the medical providers were paid—that is, from January 5, 2012, until November 14, 2012— Respondent was required to keep $4,498.83 in her account. However, on eight occasions between those dates, the ending daily balance of Respondent’s IOLTA account fell below the amount due to the medical providers, and thus, Respondent misappropriated entrusted funds.
We must now determine whether Respondent acted negligently, recklessly or intentionally. We agree with the Hearing Committee that Respondent was reckless. Although Respondent was aware of her responsibility to maintain the necessary amount of funds in her IOLTA account, she did not reconcile her IOLTA records during the time that she held Mr. Vouffo’s funds in trust and she did not keep a ledger. Respondent failed to track settlement proceeds relating to individual clients, and she knew that she did not maintain sufficient funds in the IOLTA account, because she occasionally made payments to other clients’ medical providers from her business account when her IOLTA account had insufficient funds.
The Board thus agrees that the Hearing Committee’s conclusions of law are supported by clear and convincing evidence, including the finding that the misappropriation was reckless. Finally, the Board agrees with the recommended sanction of disbarment. Thus, and for the reasons set forth in the Hearing Committee’s Report and Recommendation, which is attached hereto and adopted and incorporated by reference, we recommend that Respondent be disbarred, the sanction mandated by Addams.
The hearing committee report was filed on March 29, 2016.
This is the D.C. BPR at its best - swift adoption of an appended hearing committee report where the attorney had filed an exception but no supporting brief.
I'm impressed. Hope it's a sign of a favorable trend. (Mike Frisch)
The web page of the Ohio Supreme Court lists four disciplinary cases that are scheduled for hearing in the near future.
One of the cases involves an allegation that an independent contractor attorney had overbilled a law firm for online document review in a case.
From the charging document
Starting in 2012, respondent began working on a large pharmaceutical project for Ulmer & Berne. Similar to what she had done in the past, respondent accessed documents related to this project via a secure website where she read, coded, and summarized documents for Ulmer & Berne attorneys involved in the project...
In late 2015, Ulmer & Berne discovered a discrepancy between the amount of hours that respondent had submitted to Ulmer & Berne as time spent reviewing documents and the amount of hours that respondent was logged on to the secure website.
Thereafter, Ulmer & Berne performed a comprehensive audit of respondent's time records between 2012 and 2015 and determined that respondent had overbilled the firm...
In total, between 2012 and 2015, respondent overbilled Ulmer & Berne by $87,620.
In December 2015, Attorney Gina Saelinger, a partner at Ulmer & Berne, called respondent to discuss Ulmer & Berne's findings and to determine whether respondent had an explanation for her conduct.
At first, respondent stated that she was a bad record keeper and that she had some issues with her computer, but by the end of the conversation, respondent acknowledged her misconduct and requested the opportunity to reimburse Ulmer & Berne for any overbilled amounts.
On January 5, 2016, respondent wired Ulmer & Berne $87,620.
Very few state bar web pages provide such easy access to allegations of unethical conduct. (Mike Frisch)
The California State Bar Court Review Department found that an attorney's "unprecedented" misconduct in cheating his elderly business partner was worthy of disbarment
Respondent Wade Anthony Robertson appeals from a hearing judge’s decision recommending disbarment. The judge found that Robertson defrauded his elderly business partner and client, Dr. William C. Cartinhour, Jr., made material misrepresentations in the process, and ultimately misappropriated $3.5 million of Cartinhour’s funds, which Robertson has not returned. The judge also found Robertson abused the litigation process by asserting frivolous positions in civil and bankruptcy proceedings. The judge found no mitigation, but serious aggravation for multiple acts of misconduct, significant harm to Cartinhour and to the administration of justice, and lack of remorse.
On review, Robertson raises a host of unmeritorious legal and factual challenges and seeks dismissal. The Office of the Chief Trial Counsel of the State Bar (OCTC) does not appeal and generally supports the hearing judge’s findings and conclusions.
Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm. Using his relationship as Cartinhour’s attorney, Robertson perpetrated a years-long multi-million dollar theft. A jury in a federal district court awarded Cartinhour $7 million in compensatory and punitive damages against Robertson, which was affirmed in 2012. Yet Robertson has not paid the award or returned any of the funds he took from Cartinhour. Given his grave misconduct, including a massive misappropriation unprecedented in this court, and his utter lack of remorse, we conclude disbarment is necessary to protect the public, the courts, and the legal profession.
The report notes that the misconduct began less than three years after the attorney was admitted.
Robertson created a sham partnership and, over a roughly four-year period, fraudulently induced Cartinhour to “invest” $3.5 million in the Credit Suisse litigation with the promise of high returns. He also manipulated Cartinhour into signing many legal documents that served Robertson’s own interests but were detrimental to Cartinhour’s—notably, the confidentiality provision in the partnership documents, the waiver of the partnership agreement’s year-end audit requirement, the will appointing Robertson as executor of Cartinhour’s estate, and the “Vote & Agreement.” All the while, Robertson intended to use and did use the “investment” money for his own benefit. He perpetuated this fraud by repeatedly mischaracterizing the status of the litigation and its likelihood of generating enormous returns. And his duplicitous conduct continued as he admonished Cartinhour for “breaching” the confidentiality of their agreements and threatened legal action for that alleged breach. Robertson dishonestly exploited his position of trust for his personal benefit and to Cartinhour’s detriment in what the hearing judge aptly described as “a well-implemented, well-thought out, and deviously orchestrated plan to defraud Cartinhour and misappropriate large sums of money.”
The litigation between the former partners resulted in a number of reported decisions in the District of Columbia federal courts. (Mike Frisch)
Tuesday, July 12, 2016
It is a little known fact that the District of Columbia Court of Appeals, the District of Columbia Bar, the Board on Professional Responsibility and the Office of Bar (now Disciplinary) Counsel all came into existence in the early 1970s.
The court was created in 1970 and birthed the Bar, the Board and Bar Counsel in Rules I and XI.
Unlike many courts at that time that had to grapple with the creation of a disciplinary system after the Clark Committee report, the court lacked any historical framework for the process of disciplining errant attorneys.
The most significant case from the early years (read the time of Fred Grabowsky as Bar Counsel) is In re Colson. There the en banc court interpreted a provision of the District of Columbia Code to mandate permanent disbarment for all convictions involving moral turpitude and laid out the procedures for determining moral turpitude.
Colson is also noteworthy for the dissent of Judge Stanley Harris, which lays out in as much detail as we will likely see the process that led to the delegation of power to the BPR.
I feel strongly and I believe my view is shared by the great majority of persons who are knowledgeable in the field of professional discipline that the basic decisional responsibility for the sanction to be imposed in a disciplinary proceeding should rest upon the judges of a jurisdiction's highest court, rather than upon the members of a court-created disciplinary body. After all, our Board on Professional Responsibility is not akin to an administrative agency which is presumed to have an expertise which we lack; we should be quite as capable in this area as our appointed Board members, and we should be free of even the hint of potential peer pressures which might make a particular respondent feel that he or she can receive impartial consideration only from judicial officers.
Nonetheless, the majority of my colleagues effectively concluded to the contrary. For reasons which remain inexplicable to me, this court, in adopting the above-quoted provision, has conferred what amounts to a quasi-agency status upon the Board which we have created and whose members we appoint.
While I disagree with the adoption of such a provision, I recognize that differences of opinion make, among other things, horse races and dissenting opinions. However, this case came along soon thereafter, and the majority promptly found itself confronted by its new creation.
In 1980, the en banc court decided In re Kerr and held that attorneys convicted of a crime of moral turpitude could never seek reinstatement.
The decision to create deference to the BPR on sanction and to permit the BPR to hire and fire Disciplinary Counsel were two highly consequential and ill-advised delegations of authority that have led to a system inappropriately subject to influence by the organized Bar.
More to follow on that subject.
As I mentioned in an earlier post today, the Court has decided six en banc cases in the post-Fred Grabowsky era. All were argued and decided during my tenure from 1984 to 2001; three were argued by me. I will discuss the cases and their significance in roughly the order in which they were decided.
First was In re Reback & Parsons. The 1986 decision involved a matter in which a division of the court had suspended two attorneys for a year and a day (then meaning a separate fitness hearing before reinstatement) for neglect and misrepresentation. The attorneys had signed the client's name to a complaint after the initial divorce petition had been dismissed and failed to so advise the client and the court.
The en banc court reduced the suspensions to six-months. The judges whose sanctions were reduced - Judges Terry and Newman - were none too pleased.
The Reback & Parsons precedent was quickly rendered largely moot by the decision in In re Hutchinson. There a division of the court had suspended an attorney for six-months (the same ultimate sanction as Reback and Parsons) for lying to the SEC in an insider trading investigation in order to conceal ill-gotten profits.
The Hutchinson court held that a six-month suspension was not the ceiling for dishonest conduct without prior discipline and articulated its fullest vision of the considerations at play in determining disciplinary sanction. It remains one of the most significant disciplinary decisions of the en banc court.
It took the court several years to hold in a division that disbarment was possible for serious dishonesty without prior discipline.
That case - In re Goffe - was also mine and represented the culmination of years of effort to get the BPR to take serious dishonesty seriously.
From the Goffe decision
We do not agree that Hutchinson was intended to limit possible sanctions in attorney dishonesty cases to a maximum three year suspension. As we have previously noted, neither Hutchinson nor Reback "purported to establish a ceiling for misrepresentation cases." Kennedy, 542 A.2d at 1229. The seriousness and pervasiveness of the pattern of misconduct here is unparalleled in this jurisdiction. Indeed, the misconduct is more severe than the misconduct in Garner, supra, where we concluded, as already noted, that "disbarment is well within the range of sanctions for similar misconduct in the District of Columbia." Garner, 636 A.2d at 421. The strictness with which other jurisdictions have dealt with similar misconduct is also persuasive. Respondent's pattern of misconduct, the absence of meaningful mitigating factors, and the need to protect the public and governmental institutions warrant a sanction consistent with Garner.
The battle over dishonesty cases continues to this day.
The Hutchinson decision was also a bit of revenge for Judge John Terry (a wonderful man and judge who was my sponsor for Supreme Court Bar membership). The revenge was expressed in Judge Newman's concurrence
In my dissent in In re Reback, 513 A.2d 226, 234 (D.C.1986) (en banc), I made clear that I believed the six months' suspension imposed on Reback and Parsons was woefully inadequate; I thought the appropriate sanction was suspension for one year and a day. It was clear to me then that the inadequate sanction imposed in that case would come back to haunt us in future cases. In this case it does. The en banc court struggles to distinguish Reback to justify a greater sanction in this case. I decline to join in that struggle. The sanction in Reback was seriously deficient. A sanction here of a one-year suspension, however, is appropriate.
I inherited Hutchinson from the late Jackson Rose and argued it before the BPR and the court.
Next came In re Peter Wolff. Wolff had been convicted in Virginia of selling pictures depicting children engaged in sex acts. The en banc court agreed with the division's disbarment on grounds that the crime involved moral turpitude. The case has little if any precedential value and, indeed, I could not find an online link to the (very short) decision.
I well remember the Wolff en banc oral argument, principally for the testy exchanges between Judge Nebeker and Wolff 's attorney, who later gained a measure of fame for his representation of John Bobbitt.
In re Addams involved the en banc determination that disbarment was the presumptive sanction for intentional or reckless misappropriation. Many of the difficult issues that the disciplinary system faces regularly involve application of Addams and its progeny. One of the landmark cases in D.C. bar history.
I took over In re McBride from another attorney at Bar Counsel after the court had granted rehearing en banc. The division had disbarred an attorney convicted of misdemeanor fraud.
The case was quite sympathetic.
McBride, a member of the District of Columbia Bar since 1954 and a 28-year honored veteran of the Department of Justice, had retired in 1983 to become a solo practitioner. According to McBride's brief, his practice consisted of many pro bono referrals from his church, including a request that he help Mrs. Shahid and her two young children, immigrants from Pakistan, change their immigration status from visitor to resident alien. With McBride's assistance, Mrs. Shahid's petition to change her immigration status was conditionally granted. But as she made preparations to fly to Pakistan to appear personally at the United States Consulate there, she grew fearful that some snag in the process would prevent her from returning to the United States and would require her to stay in Pakistan where her physically abusive ex-husband resides. She panicked and pleaded with McBride to help her obtain an American passport to use to reenter the United States in case her new immigration status was not approved. McBride helped Mrs. Shahid provide the passport office with two identification documents that belonged to a third person. McBride accompanied her to that office and remained with her as she applied for and picked up the passport. McBride received no financial or any other benefit from his actions, all of which occurred within four days. On the other hand, he has never disputed that he knew his conduct was dishonest and designed to secure for Mrs. Shahid a passport to which she was not entitled.
The division applied the Colson precedent to disbar McBride.
The en banc court considered the question of whether to overrule Colson and Kerr in whole or in part.
The unanimous court overruled Colson and Kerr in two respects. Misdemeanor convictions no longer could involve moral turpitude per se - every convicted misdemeanant gets a hearing.
More significantly, McBride overruled the holding in Kerr that made disbarment for a moral turpitude conviction permanent. That aspect of the case had led to a significant number of reinstatement petitions, many of which have been granted after felony convictions.
My favorite moment involved an exchange with Judge Terry toward the end of my argument when he asked me
What is most important to you [Bar Counsel] here?
My answer was for the survival of the procedures laid out in Colson for determining moral turpitude.
The court left the procedures intact.
Judge John Ferren had been the sole dissenter in Kerr. My sense is that he greatly enjoyed the argument and seeing his dissent later written into an unanimous opinion authored by him overruling it.
Finally, there is In re Abrams, which was my case from soup to nuts.
We had just finished the Abrams hearing when he was pardoned of the underlying conviction by President George H. W. Bush. As they say, the case took a new direction after that little twist.
The division (Judge Terry again as author) held that a Presidential pardon precluded the imposition of any professional discipline, relying principally on the 1866 Supreme Court decision in Ex Parte Garland. That 5-4 decision involved the restoration of practice privileges before the Supreme Court to a pardoned Confederate.
The en banc court held that the pardon did not act to insulate the beneficiary from sanction in a 5-4 decision authored by the late (and also wonderful) Judge Frank Schwelb.
No moral character qualification for Bar membership is more important than truthfulness and candor.” In re Meyerson, 190 Md. 671, 59 A.2d 489, 496 (1948). An attorney is required to be a person of good moral character not only at the time of admission to the Bar, but also thereafter. In re Rouss, 221 N.Y. 81, 116 N.E. 782, 783 (1917) (Cardozo, C.J.). The pardon could not “reinvest [Abrams] with those qualities which are absolutely essential for an attorney at law to possess or rehabilitate him in the trust and confidence of the court.” In re Lavine, 2 Cal.2d 324, 41 P.2d 161, 163 (1935) (citation omitted). Accordingly, we hold that this court's authority to impose professional discipline was not nullified by the presidential pardon.
To prepare for the en banc argument, I did two things of significance.
First, I read Chief Justice Rehnquist's history of the court. It was incredibly helpful and insightful in understanding the high court in the immediate aftermath of the Civil War. Because I anticipated the possibility of Supreme Court review (Abrams later petitioned for certiorari and did not get a single vote), it shaped my arguments for that eventuality.
Second, I took my darling daughter Hannah Frisch (now Caprice) to the cemetery at the Gettysburg National Battlefield and together we recited the Gettysburg Address. I cherish that memory.
There have been no en banc disciplinary cases in D.C. since the 1997 Abrams decision. (Mike Frisch)
The full Massachusetts Supreme Judicial Court agreed with a single justice's denial of an attorney's third petition for reinstatement, describing the process of its review.
Weiss has failed to meet this burden. He has demonstrated none of the bases for reversal identified in the rule. The argument made in his memorandum is essentially that the single justice's probing questions of bar counsel at the hearing before him indicated that the single justice may have been inclined to grant reinstatement, yet ultimately did not do so, and that this somehow constitutes reversible error; alternatively, Weiss argues, the full court, with the single justice included, should review the matter anew. Neither position has merit or satisfies the letter or the spirit of the rule...
"Unlike nearly all other States, which require that judgment in bar discipline cases shall be by the full court, we in this Commonwealth use the single justice system in such cases." Matter of Alter, 389 Mass. 153, 156 (1983). We review the single justice's decision (on issues other than the initial choice of a sanction at the disciplinary stage) to determine whether there has been an abuse of discretion or clear error of law. See Matter of McBride, 449 Mass. 154 (2007); Matter of Cobb, 445 Mass. 452, 466, 475 (2005). While we share the single justice's stated concern in this case that bar counsel may have been attempting to use the reinstatement process to some extent "to extract further punishment for past acknowledged and sanctioned misconduct," which would have been improper, we find no error in the single justice's ultimate ruling that the hearing committee's and board's findings, report, and recommendation reflect a "careful consideration of the matter" and support the denial for reinstatement. The petitioner has not shown otherwise in his memorandum.
The denial of the petition was not "markedly different" from other cases disposed of by a single justice.
As the single justice observed, this is not an easy case. The petitioner, who was suspended for one year and one day, has not practiced law since May, 2011. As the hearing committee recognized, he has a sincere desire to return to practice. The focus of reinstatement proceedings, however, is on the "integrity and standing of the bar, the administration of justice, [and] the public interest," S.J.C. Rule 4:01, § 18 (5), rather than on a petitioner's private interests. See Matter of Fletcher, 466 Mass. at 1020. Neither the hearing committee, nor the board, nor the single justice was satisfied that those interests would adequately be protected if the petitioner were reinstated, on this record, at this time.
The 2011 suspension order is linked here. (Mike Frisch)
A one-year suspension with all but five months stayed has been proposed by the Illinois Review Board
Respondent represented eight clients in separate proceedings to reduce their property tax assessments or obtain property tax refunds. After receiving a refund on behalf of each client but before paying the client, Respondent transferred money out of his client trust account into personal or operating accounts, temporarily leaving the client trust account with insufficient funds on each occasion to cover what the client was owed. In addition, on a few of these occasions, he overdrew his client trust account, thereby triggering an overdraft notice both to him and to the ARDC.
Because of the overdraft notices, the Administrator began investigating Respondent and ultimately charged him in an eight-count complaint with failing to hold client funds separate from his own property and dishonestly using client funds for his own purposes, in violation of Rules 1.15(a) and 8.4(c), respectively, of the Illinois Rules of Professional Conduct (2010).
The Hearing Board found that Respondent had violated Rule 1.15(a), but attributed it to poor accounting practices and not dishonest motives. It thus found that he had not violated Rule 8.4(c). It recommended that Respondent be suspended from the practice of law for one year, with the last seven months stayed by an 18-month period of probation with conditions. The Administrator filed exceptions to the Hearing Board's finding of no dishonest conduct, as well as its sanction recommendation. For the reasons set forth below, we affirm the Hearing Board's finding that Respondent did not violate Rule 8.4(c), and concur with its sanction recommendation.
Respondent has a client trust account into which he deposits client funds. During 2011 and 2012 - the time period covered by the Administrator's complaint - Respondent was constantly depositing tax refund checks received on behalf of clients into the client trust account. Immediately upon receiving the tax refund checks and without ensuring the deposits had posted, he usually would write checks from the client trust account to his clients for their portion of the refunds and to himself for fees and costs. Sometimes, instead of writing himself a check, he would collect his fees and costs by transferring funds electronically from the client trust account to his personal or operating account. At hearing, he testified that he never withdrew or transferred funds from the client trust account that he did not believe he was entitled to as fees or costs.
During this time, Respondent was not using proper bookkeeping procedures. He was not reviewing his client trust account statements or keeping track of the posting of deposits or clearing of checks. He was using QuickBooks and had an accountant, but the accountant was not reconciling the client trust account or inquiring about overdrafts. Consequently, on eight occasions, each of which became the subject of a count in the Administrator's eight-count complaint, Respondent ended up using client funds for his own purposes by either overdrawing his client trust account or allowing it to fall below the balance necessary to ensure that all funds he owed to clients were in it.
Notwithstanding Respondent's lapses, his bank honored all of the checks he wrote to these eight clients, and all of the clients received the funds to which they were entitled before the Administrator filed his complaint. In addition, no client complained about Respondent, and he still represents a number of the clients.
On each of the eight counts, the Hearing Board found that Respondent had violated Rule 1.15(a), which provides that an attorney who is holding client funds in connection with a representation has an obligation to safeguard those funds and segregate them from his own funds in a client trust account. Neither party appeals from that finding.
The board agreed with the hearing board that the Administrator failed to prove that the misconduct involved dishonesty and that a short suspension was appropriate
Respondent offered extensive evidence in mitigation. Respondent's clients never complained about him to the ARDC and never contacted him regarding the whereabouts of their funds; they were all paid all of the funds due them before the Administrator filed his complaint; and Respondent still represents some of them. Also, his wife experienced life-threatening medical issues in 2011 and 2012, during the time of his misconduct.
Beginning in 2013, Respondent began taking steps to correct the deficiencies in his law practice and client trust account bookkeeping procedures, including hiring a new accountant, whom he meets with regularly and who reconciles his client trust account monthly; reviewing his bank statements monthly; maintaining a detailed client ledger; making sure the checks he deposits in the client trust account post before he issues checks to clients and himself; and no longer making electronic transfers from his client trust account. In early 2013, Respondent read the Illinois Rules of Professional Conduct relating to trust account procedures, and in April 2015, completed a client trust account webinar.
Respondent testified about his involvement with many professional organizations, including the fact that he has volunteered his time to speak at seminars for some of them; his pro bono work for various not-for-profit organizations and low-income homeowners; and his service on various boards and committees. He also presented the testimony of six character witnesses who testified about his good character. Finally, Respondent has not been disciplined in his 35 years of law practice in Illinois, and he has accepted responsibility for not maintaining his client trust account and expressed remorse and regret for his conduct.
In aggravation, despite being informed of the ARDC's investigation in 2011, Respondent did not audit his client trust account until 2013. Moreover, the amount of client money that Respondent used without authorization - $125,000 - is significant, and his failure to safeguard and segregate client funds spanned over a year and a half, which shows a pattern of mishandling client funds.
The board also recommends probation of 18 months.
In cases involving misuse of entrusted funds, the intent of the attorney is the most crucial element in determining the appropriate sanction. In Illinois, the issue is whether the conduct violated the separate rule prohibiting dishonesty.
In D.C., the question is dealt with by finding that the misappropriation was intentional or negligent (disbarment unless the attorney is a recovering addict whose condition caused the misconduct) or negligent (typically a six-month suspension with or without fitness).
Someday - maybe soon - the court may reconsider the Addams precedent.
The District of Columbia Court of Appeals has decided a total of six en banc cases since it repealed a rule that required that all disbarments be from the full court.
I argued three of the six for Bar Counsel, including the last one. The court has not taken a disciplinary case en banc since the Abrams case in 1997.
One of the joys of working as a disciplinary prosecutor in D.C. (you read that correctly) was the opportunity to litigate in opposition to some truly great lawyers. Ken Mundy was one of the people I got to work with only because I prosecuted attorneys. He and I argued a case before the Board on Professional Responsibility just before his shocking and untimely death. I well remember his wit and smile as he made every effort to grind my arguments into dust.
I don't remember who prevailed but I can still see Ken up at the podium working me over and making me enjoy it. A great lawyer can be more artist than technician. (Mike Frisch)
Monday, July 11, 2016
A reciprocal suspension of a year and UFO was imposed by the New Jersey Supreme Court based on a sanction in New York.
As reported by the Disciplinary Review Board
Respondent was admitted to the New Jersey bar in 1991 and the New York bar in 1992. He has no history of discipline in New Jersey. However, in 2003, respondent was censured in New York for misconduct he had committed in connection with his representation of Ricky Baker in his action against the New York Department of Health (NYDH), as described below. In that case, respondent had made egregious misrepresentations in his resume that had induced [the client] to retain him, specifically with respect to his litigation experience.
This misconduct involves the same client, who had sued and prevailed in a legal malpractice claim against the attorney. He then engaged in criminal contempt in the post-judgment attempts to collect by making false statements that led to an investigation and conviction.
The suspension was imposed nunc pro tunc and the sanctioned attorney is thus eligible to seek reinstatement. (Mike Frisch)
The Wisconsin Supreme Court has reinstated an attorney who had been subject to a series of suspension orders.
Attorney Edgar was admitted to practice law in Wisconsin on June 17, 1985. On March 22, 1999, the Court suspended her license to practice law for two years for misconduct consisting of conversion of funds, improperly commingling funds, and falsely certifying that she had a trust account and maintained proper trust account and bank records.
In 2003, Edgar's license was suspended for an additional year, retroactive to March 22, 2001, for misconduct consisting of multiple violations of failing to take reasonably practicable steps to protect her clients' interests; failing to keep clients reasonably informed or to comply with clients' requests for information; failing to act with reasonable diligence; and failing to cooperate with OLR's grievance investigations. She also failed to render a full accounting in connection with an advanced fee; practiced law while under administrative suspension; and failed to obtain a written conflicts waiver.
The referee supported the petition
We conclude that the referee's findings support a determination that Attorney Edgar has met her burden to establish by clear, satisfactory, and convincing evidence that she has met all of the standards required for reinstatement of her license to practice law in Wisconsin. The referee found that Attorney Edgar has not practiced law during the period of her suspension; that she has complied fully with the terms of the order of suspension and will continue to do so until her license is reinstated; and that she has maintained competence and learning in the law. If reinstated, Attorney Edgar intends to serve as a guardian ad litem in Children's Court.
The record further supports the referee's conclusion that Attorney Edgar's conduct since her suspension has been exemplary and above reproach; that she has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with those standards; that she can be safely recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and an officer of the courts; and that she has fully complied with the requirements set forth in SCR 22.26.
The attorney will be subject to two years of monitoring. (Mike Frisch)
Friday, July 8, 2016
Unlike its American counterparts, the Law Society of Upper Canada has and exercises disciplinary authority over paralegals,
The Law Society Tribunal revoked a paralegal's license
Mr. Djukic is 56 years of age. He became licensed as a paralegal with the Law Society in March 2008, and is also a registered immigration consultant with the Immigration Consultants of Canada Regulatory Counsel. His paralegal licence has been suspended on an interlocutory basis since December 2014...
Mr. Djukic’s actions clearly brought discredit upon the paralegal profession. Through his work as an immigration consultant and his standing as a paralegal, Mr. Djukic was able to meet and, ultimately, to persuade members of two families to provide him with monies totaling more than $900,000. He did this by deceiving them into believing that they were investing or loaning funds to people who could pay high interest rates when, in fact, he was using the funds to sustain his own lifestyle. Further, despite his promises of repayment, to date Mr. Djukic has made no restitution to the complainants. As this behaviour clearly reflects adversely on his honesty, integrity and trustworthiness, we found that Mr. Djukic engaged in conduct unbecoming.
Thursday, July 7, 2016
A disclosure issue led the Maryland Court of Appeals to deny an application for bar admission notwithstanding the favorable recommendation of its Board of Law Examiners
Applicant’s failure to disclose a Petition to Violate Probation on his Bar Application in the face of his known obligations to candidly, accurately and currently disclose impinged upon his character and fitness to practice law warranting denial of his application for admission to the Bar of Maryland.
Judge Battaglia's majority opinion
[Applicant] Gjini’s Bar application was forwarded to a member of the Character Committee for the Seventh Appellate Circuit, David DeJong, Esquire, because Gjini reflected a Montgomery County address. Mr. DeJong interviewed Gjini on September 9, 2014 and October 23, 2014 and concluded that Gjini had failed to bear his burden of proving his character and moral fitness for the practice of law in Maryland because of Gjini’s August 13, 2013 driving while impaired charge as well as his extensive driving record which included another alcohol related offense for which Gjini was not prosecuted. In addition, Mr. DeJong was concerned about on-line comments he found that Gjini had written on internet message boards while in law school. After Mr. DeJong forwarded his recommendation to the Character Committee for the Seventh Appellate Circuit and before it conducted a hearing under Rule 5(b)(2),6 Gjini received a Petition to Violate Probation filed by his probation officer on December 30, 2014 alleging that Gjini had “failed to verify attending and successfully completing a local Health Department alcohol treatment program” with a corresponding Show Cause Order in which Gjini was required to appear on February 18, 2015 in the District Court for Montgomery County. Gjini’s hearing was postponed due to weather, and Gjini appeared before a district court judge in Montgomery County on March 23, 2015, just a few days before his Character Committee hearing. The district court judge determined that Gjini had not satisfied the alcohol education program requirement and gave him sixty days to complete another program at which time Gjini would need to reappear. Gjini did not supplement his Bar Application with any of this information at any time.
The committee learned of the violation from another source.
For those who post comments on line, there is this from the proceedings below
During his investigation of Mr. Gjini's application, Mr. DeJong discovered, rather serendipitously, several statements which Mr. Gjini had posted to various chat-rooms on the internet as recently as his last semester in law-school. Those postings included commentary upon martial arts videos and similar matters and are set forth, verbatim, as follows:
“This guy is a dipshit.”
“Yo, shut the fuck up so we can watch the video.”
“The both fight like hoes.”
“The bully kid was a pussie.”
“That girl is hot as fuck.”
“Who is the faggot that made this video?”
“Just keep games like they are with a PS3 controller. None of this gay shit.”
“Straight NUTT in that bitch.”
Mr. Gjini admitted that he posted the statements, above. He admitted, further, that the statements were posted while he was in law school and, in fact, many were placed during his last semester in law school. While the undersigned find these postings to be troubling, we do not believe that they are of sufficient magnitude to preclude Mr. Gjini from the practice of law.
The substance and nature of the postings may reflect something of a chasm between persons of Mr. Gjini's generation and the undersigned members of the Hearing Committee. The language employed by Mr. Gjini certainly is not to be applauded and the undersigned would not encourage its use. Nonetheless, it appears no worse than that which is commonly found on the internet, and that which is regularly employed by pop-music stars and sports figures.
Further, we note that Mr. Gjini expressed what we believe was sincere regrets with respect to the use of such language in his sworn testimony before this Committee.
Based upon our review of the record, contrary to the recommendation of the State Board of Law Examiners based upon the omission of any consideration to address Gjini’s failure to disclose his Petition to Violate Probation and its attendant Show Cause Order and the hearing that followed, we determine that Gjini does not possess the present good moral character to practice law in Maryland; Gjini completely failed to supplement his Bar application with any of the facts developed solely through the efforts of Mr. Vaughan, the Chair of the Character Committee.
We are not persuaded that Gjini’s failure to disclose is mitigated in any way by his various excuses which varied from initially not knowing he had to disclose, then with his assumption that he did not have to disclose and finally, that his failure was a calculated error. We have consistently stated that disclosure on the Bar application and supplementation is mandatory...
Judge Adkins dissented
Respectfully, I dissent from the decision of the Majority to deny admission to Mr. Gjini to the Maryland Bar for lack of character and fitness. The Majority finds offensive his failure to disclose to the State Board of Law Examiners the fact that he received a Petition to Violate Probation and an attendant Show Cause Order after he chose to take an online course, instead of an appropriate in person course, to satisfy a condition of his probation...
I agree with the Board of Law Examiners and the Character Committee that he should be admitted. His alleged violation of probation—the taking of an online course rather than participating in an appropriate course in person—is a rather minor transgression...
Although Mr. Gjini clearly was under the obligation to supplement his Application for Bar Admission, not doing so under these circumstances should not constitute the basis for denying him the privilege of practicing law for which he has studied.
Chief Judge Barbera and Judge McDonald have authorized me to state that they join in the views expressed in this dissenting opinion.
A two-year suspension was imposed by the New York Appellate Division for the Third Judicial Department as a result of a conviction
In August 2015, Padilla pleaded guilty to the crime of manufacturing, distributing or dispensing a controlled dangerous substance, i.e., marihuana (see NJ Stat Ann 2C:35-5). This charge stemmed from the discovery by New Jersey authorities of a marihuana growing operation in the basement of Padilla's home. In October 2015, Padilla was sentenced to, among other things, 90 days in jail and two years of probation. He duly reported his conviction to this Court.
The court took into consideration the absence of prior discipline. (Mike Frisch)
The District of Columbia Court of Appeals quietly reinstated an attorney who had been quietly disbarred on consent in 2011 after the attorney's "serious crime" conviction as part of the Jack Abramoff scandals.
Because Disciplinary Counsel did not oppose reinstatement, there were no hearings or (as there is in many jurisdictions) any meaningful public notice of the reinstatement request.
Associate Judges Fisher and Thompson and Senior Judge Farrell approved the reinstatement.
The Washington Post described the criminal plea
A former high-ranking official in the Justice Department pleaded guilty yesterday to accepting thousands of dollars worth of meals and sports tickets from Republican lobbyist Jack Abramoff in exchange for helping a variety of Abramoff's clients.
Robert E. Coughlin II, the former deputy chief of staff of the Justice Department's criminal division, became the latest of more than a dozen public officials, lobbyists and congressional staff members to be convicted or to plead guilty in the wide-ranging federal investigation of Abramoff's activities.
As part of his plea agreement, Coughlin, 36, agreed to cooperate with investigators, making him a potentially important witness in the ongoing scrutiny of Rep. John T. Doolittle (R-Calif.). Coughlin acknowledged performing a variety of official acts for Kevin A. Ring, a key member of Abramoff's lobbying team at Greenberg Traurig and a former legislative aide to Doolittle. Coughlin and Ring are longtime friends who worked together on Capitol Hill a decade ago.
Coughlin admitted violating the federal conflict-of-interest statute while he served in the department's offices of legislative affairs and public liaison between March 2001 and October 2003. According to court papers filed yesterday, he leaked department information, attended meetings and contacted his Justice colleagues to help clients of Abramoff and Ring.
Federal investigators are scrutinizing Doolittle and his wife, Julie, who owned a consulting firm that was hired by Abramoff and Greenberg Traurig to raise money for a charity Abramoff founded. Ring, while working for Abramoff, was an intermediary in the hiring of Julie Doolittle's firm, Sierra Dominion Financial Solutions Inc., people familiar with the investigation have told The Washington Post.
Also unresolved is an investigation of former House majority leader Tom DeLay (R-Tex.), whose wife, Christine, worked for a lobbying firm that received client referrals from Abramoff.
Coughlin told U.S. District Judge Ellen S. Huvelle yesterday that he already had met at least once with federal investigators.
Ring wined and dined Coughlin on 25 occasions at pricey restaurants, primarily Signatures, a downtown establishment that was partly owned by Abramoff. Coughlin also accepted from Ring 20 tickets to seven sporting events at the Verizon Center, Oriole Park at Camden Yards and FedEx Field, where Abramoff leased luxury suites; five tickets to three concerts; and one round of golf, the documents said. Prosecutors estimated the value of the gifts to be about $6,180, but Coughlin's estimate is about $4,800.
Coughlin helped Ring and Team Abramoff in efforts to secure $16.3 million from a division of the Justice Department to build a jail for the Mississippi band of Choctaw Indians, one of Abramoff's clients, and in the process waive a competitive-bidding requirement. Initially, Justice approved a $9 million grant.
According to the court filings, which included excerpts from e-mails, Ring often sprinkled meal invitations with requests for aid. He invited Coughlin to attend an April 2001 meeting at Justice about the Choctaw jail grant "so some of the clowns there know that I have friends, if you get my drift." After that meeting, Ring treated Coughlin and his wife to a $300 meal at Olives.
When the grant was approved a year later, Ring sent Coughlin an e-mail with the subject line: "Choctaw CHA-CHING!!!!"
"Thanks is not strong enough," Ring wrote to Coughlin. "We need to celebrate this issue finally being over." Three days later, Ring bought Coughlin lunch at Signatures.
At Ring's request, Coughlin also helped with an immigration matter for a student attending Abramoff's yeshiva in Silver Spring, leaked internal deliberations regarding a bill affecting a client and contacted Justice officials regarding a land dispute between Indian tribes, among other things.
Coughlin also identified Justice officials who the lobbyists could consider "friendlies," employees who would assist Abramoff in achieving results for their clients.
Ring declined comment yesterday.
Coughlin told prosecutors he did not recall having a substantive conversation with Abramoff, and said his main contact with the team was Ring, who has known Coughlin since 1992 and worked with him for then-Sen. John D. Ashcroft (R-Mo.), who became attorney general in 2001.
While Coughlin knew Ring was not footing the bill for gifts personally, he did not know that Ring was billing their social gatherings as lobbying expenses. "Coughlin also was unaware that Lobbyist A [Ring] held Coughlin out to be one of his most valuable lobbying contacts at DOJ," said the document, known as a statement of offense.
Coughlin failed to report the gifts on his financial disclosure forms for 2001, 2002 and 2003.
Twice, in March and April of 2002, Ring also discussed with Coughlin a possible job at Greenberg Traurig, the court filing said.
In 2006, Coughlin won an award from then-Attorney General Alberto R. Gonzales for his efforts to prevent fraud and white-collar crime. Gonzales said at an awards ceremony that Coughlin deserved recognition for "exceptional dedication and effort to prevent, investigation, and prosecute fraud and white-collar crimes."
Coughlin, who said he now lives in Texas, faces as much as five years in prison and a $250,000 fine, but his plea agreement indicates he is likely to face no more than 10 months and a $10,000 fine, or less, if he cooperates.
I wonder why Disciplinary Counsel thought that no hearing on present fitness should be held. (Mike Frisch)
An apparently ignoble career at the Bar culminated in a disbarment imposed yesterday by the New York Appellate Division for the Second Judicial Department.
In determining an appropriate measure of discipline to impose, we find that the respondent has engaged in serious misconduct, including a repeated and longstanding failure to honor his duties as a fiduciary as demonstrated by his misappropriation of escrow funds on multiple matters, commingling of client and personal funds, failure to maintain and produce required bank and bookkeeping records, as well as his failure to cooperate with the lawful demands of the Grievance Committee concerning the investigation of multiple complaints. Of note, the respondent has an extensive disciplinary record, having received eight admonitions and six letters of caution for similar misconduct, including his failure to properly handle funds or property in which another party had a potential interest, commingling personal funds with funds held as a fiduciary incident to the practice of law, and failure to cooperate with grievance investigations. Under the totality of circumstances, effective immediately, the respondent is disbarred and his name is stricken from the roll of attorneys and counselors-at-law (see Matter of Goddard, 103 AD3d 139). In view of the respondent's disbarment, the application pursuant to 22 NYCRR 691.3, under Appellate Division Docket No. 2014-06741, is discontinued.
The court found misconduct beyond that found by the referee
After the hearings were completed on April 22, 2015, the Special Referee filed a report in which he sustained charges 1-17, 21, 24-42, 44, and 49, sustained in part charge 18, and did not sustain charges 19, 20, 22, 23, 43, and 45-48. Further, with respect to the application to impose discipline pursuant to 22 NYCRR 691.3, the Special Referee found that the respondent failed to establish that the order of the Unites States District Court for the Southern District of New York dated May 23, 2014, was arrived at in deprivation of the right of due process to which the respondent is entitled.
The Grievance Committee now moves to confirm in part and disaffirm in part the Special Referee's report, and to impose such discipline upon the respondent as this Court deems appropriate. Prior to submitting response papers, the respondent filed an affidavit of resignation with this Court sworn to on January 7, 2016. Thereafter, the respondent, by his attorney, submitted an affirmation in opposition to the Grievance Committee's motion, contending that, in view of the respondent's affidavit of resignation, the motion was moot and, therefore, should be denied. In that regard, we note that the respondent's affidavit of resignation simply acknowledges that he is "aware of a pending investigation" that concerns his failure to cooperate with the Grievance Committee in connection with one complaint and, as such, does not sufficiently acknowledge the extent of his professional misconduct. Furthermore, under the circumstances of this case, the acceptance of the respondent's proffered resignation at this late stage, after the hearings have been completed and the Special Referee has filed a report, would serve only to allow him to avoid the findings of his professional misconduct. We therefore reject the respondent's proffered resignation. As to the charges in the petition and the supplemental petition, we find the Special Referee properly sustained charges 1-17, 21, 24-42, 44, and 49, and in part charge 18. However, we find that the Special Referee improperly declined to sustain charges 19, 20, 22, 23, 43, and 45-48, and in part charge 18, and those charges should have been sustained, based upon the evidence adduced.
The federal district court had already disbarred the attorney.
I hope that cases like these will not come before the court in the future with a total of 14 "cautions" and "admonitions" for "similar misconduct." That sounds to me an awful lot like a regulatory failure. (Mike Frisch)
A story from the Columbus Dispatch via the web page of the Ohio Supreme Court
The Republican candidate for Hocking County prosecutor has withdrawn his name from the ballot after pleading guilty to misdemeanor crimes related to unethical behavior.
Jason A. Sarver, a 36-year-old criminal defense lawyer from Rockbridge, agreed to withdraw as part of a negotiated plea deal, special prosecutor Keller Blackburn said.
Visiting Judge Rocky A. Coss sentenced Sarver on June 13 in Hocking County Common Pleas Court to 180 days in jail, suspended for two years on probation, after Sarver pleaded guilty to one charge of obstructing official business and three charges of criminal trespass, all misdemeanors.
More than a dozen felony charges in an indictment filed against Sarver this year were dismissed in exchange for his guilty pleas to the misdemeanors. Most of those charges, which included two counts of sexual battery, stemmed from Sarver engaging in a sexual affair with one of his court-appointed clients. Sarver admitted having the affair and said it was consensual.
The client was found to have "credibility issues," which factored into the decision to reach a plea deal rather than go to trial, Blackburn said.
A complaint against Sarver is pending before the Ohio Supreme Court's Office of Disciplinary Counsel, Blackburn said.
Before he withdrew, Sarver was running against Democrat Kyle Henderson, the acting prosecutor, in November. County Democratic Party leaders appointed Henderson acting prosecutor after the incumbent, Laina Fetherolf, stepped down on May 31 rather than serve out her term through the end of the year. She is not seeking re-election.
Wednesday, July 6, 2016
The District of Columbia Office of Bar (oops Disciplinary) Counsel has informally admonished an attorney for a violation of the duty of confidentiality.
The client had complained about the attorney's fees and abusive behavior that led to her terminate his services.
After the attorney-client relationship ended, the client posted comments about [the attorney] on a website in which she was highly critical of [him] and the representation [he] provided. [He] responded to her comments and, in doing so, revealed specific information about her case. her emotional state, and what transpired during [the] attorney-client relationship - although [he] did not identify the client by name.
The ODC did not find misconduct in the underlying representation but did find that the web response violated Rule 1.6. The response was not permitted under the exception that permits an attorney to use or reveal confidences or secrets to defend formal charges.
The internet is presumably less than formal.
ODC also found that the attorney violated Rule 8.4(c) "when [he] posted a further response on the website concerning Disciplinary Counsel's investigation of the client's allegations and Disciplinary Counsel's statements."
The post - that he had been 'cleared" of the charges in the complaint "was, at best, misleading..." and thus violated the rule.
Disciplinary Counsel does not post informal admonitions until the time to note a rejection (the attorney's right) has lapsed. Thus, this is final discipline. Also he must complete three hours of CLE in confidentiality obligations.
The case is In re John P. Mahoney, Bar Docket No. 2015-D141 and can be found here. (Mike Frisch)
Monday, July 4, 2016
An attorney has been suspended pending final discipline by the Ohio Supreme Court as a consequence of a felony conviction.
The attorney also has a pharmacist's license and it appears that the conviction involved that aspect of his activities.
Newsnet5Cleveland reported on the arrest
A Cleveland Clinic pharmacist caught on camera stealing prescription pills was indicted, according to Cuyahoga County Court of Common Pleas.
Cleveland Clinic police said on June 2, 2015, Agency Pharmacist James Lindon, working at the Cleveland Clinic Crile Pharmacy, removed five Hydrocodone tablets from a patient prescription bottle of 40 and placed them in his left pants pocket.
Police said Lindon's actions were caught on a security camera. When he was confronted by officers, Lindon quickly removed four of the pills and ate them.
Lindon, 52, of Avon, was indicted on one count of theft, one count of drug possession, and one count of tampering with evidence.
A google search reveals that the attorney has represented pharmacists accused of professional misconduct (see here ).
A video features the attorney explaining issues relating to drug testing at work and the dangers of a felony conviction. One might opine that he should have heeded his own advice.
He also was quoted last fall in Cleveland.com on the travails of Johnny Manziel. (Mike Frisch)
Sunday, July 3, 2016
An interesting Illinois Hearing Board report has a majority in favor of a suspension of a year and until further order
Respondent, an attorney admitted to practice law in Illinois and not admitted in any other state jurisdiction, was removed from the Illinois master roll in 2014 for failing to register. While not on the Illinois master roll, Respondent represented two clients with respect to their bankruptcy matters in the United States District Court for the Eastern District of Michigan (USDC-EDM). He failed to inform the Chief Judge of the USDC-EDM of the change in his Illinois registration status and misrepresented his registration status to the USDC-EDM. In addition, he neglected the two client matters and failed to properly communicate with the clients. His misconduct was aggravated by his lack of participation in his disciplinary proceedings. We recommend Respondent be suspended for one year and until further order of the Court...
Respondent's conduct is aggravated by his failure to participate in this disciplinary matter. Respondent evaded being personally served with the Complaint in this matter and then after having been served with the Complaint pursuant to Commission Rule 214(b), he failed to file an answer. He also did not appear at the disciplinary hearing. The Court has recognized that an attorney's failure to cooperate in his own disciplinary proceedings is indicative of indifference toward and even contempt for disciplinary procedures and demonstrates a complete want of professional responsibility. In re Brody, 65 Ill. 2d 152, 156, 357 N.E.2d 498 (1976). In mitigation, Respondent has not been previously disciplined. Yet, since he had only been admitted to practice law in Illinois for less than five years before engaging in some of the misconduct outlined in the Complaint, we give this factor little weight.
The Administrator recommends Respondent be suspended from the practice of law for one year and until further order of the Court. In support of this recommendation the Administrator cites the following cases. See In re Levinson, 71 Ill. 2d 486, 376 N.E.2d 998 (1978) (imposing a six-month suspension and until further order of court); In re Casbarian, 07 CH 56, M.R. 22534 (Sept. 17, 2008) (imposing a one-year suspension and until further order of court); In re Lucas, 00 CH 38, M.R. 18545 (Mar. 19, 2003) (imposing a three-month suspension); In re Bonner, 93 CH 442, M.R. 10536 (Nov. 30, 1994) (imposing a one-year suspension and until further order of court).
These cases involve similar misconduct to that which is present here. Similar to Respondent, the attorneys in Levinson, Bonner, and Casbarian neglected one or multiple client matter(s) and made misrepresentations. These attorneys also failed to fully cooperate in their disciplinary proceedings. Specifically, the attorneys in Levinson and Bonner did not appear at their hearings thereby warranting the imposition of a suspension to until further order of the Court. Also, very similar to the present matter, the attorney in Lucas engaged in the unauthorized practice of law in federal court and made misrepresentations to the court regarding whether she was authorized to practice there. However, the attorney in Lucas participated in her disciplinary proceedings and presented mitigating evidence, which is distinguishable from this matter and necessitates the imposition of a more significant sanction here.
The interesting part is the dissent of Champ W. Davis, Jr.
In this action the Administrator wants to suspend a non-resident attorney for one year and until further order of the Court notwithstanding that the attorney is not authorized to practice law in Illinois and was not authorized to practice in Illinois at the time of the misconduct. Moreover, the misconduct occurred entirely within the state of Michigan.
I dissent on the ground that I do not believe this matter is properly before the Illinois disciplinary authorities. The misconduct should be dealt with by the Michigan disciplinary authorities -- not the Illinois ARDC. Michigan Rule of Professional Conduct 8.5(a) provides in relevant part that "A lawyer not admitted in this jurisdiction (i.e., Michigan) is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction."
The misconduct alleged in this case arose solely from services which Respondent provided in Michigan. Respondent was disbarred from practice before the Federal District Court for the Eastern District of Michigan for that misconduct. I respectfully suggest that the present case be dismissed for lack of jurisdiction and that any further discipline of Respondent be left to the Michigan disciplinary authorities.
The majority on the jurisdictional issue
Respondent was admitted to the Illinois Bar and licensed to practice law in Illinois on November 5, 2009. Accordingly, the ARDC, through the power granted to it by the Illinois Supreme Court, has jurisdiction to conduct disciplinary proceedings against Respondent for conduct, even if the conduct occurred exclusively in Michigan.
I actually litigated this issue - can an attorney be sanctioned for conduct before a foreign tribunal that has not imposed discipline - in a pre-Rules (i.e. Rule 8.5) case.
The attorney W.E. Thompson had failed to appear in a Virginia case. No discipline was imposed in Virginia. He was charged with the misconduct in a multi-count bar case and made the jurisdictional argument of the dissent with respect to the Virginia failure to appear.
Wherever you may roam, be it far or be it home, the license goes with you. (Mike Frisch)