Monday, March 12, 2018

Disbarred On Consent

An attorney who was subject to an interim suspension has now consented to disbarment by the Pennsylvania Supreme Court. 

She was admitted in 2010. 

Our earlier coverage links to a PennLive story

An East Shore attorney who is the wife of a Dauphin County prosecutor has been charged with embezzling from her former law firm and then burglarizing its offices after she was fired.

Nichole A. Collins, 35, was arrested this week following a probe by the state attorney general's office. The county district attorney's office referred the case to state investigators because Collins is married to Deputy District Attorney Joel Hogentogler.

Collins, who was fired from the firm of Shaffer & Engle, couldn't immediately be reached for comment on the case Wednesday afternoon.

The charges filed with District Judge William Wenner include counts of burglary, forgery, theft, receiving stolen property, access device fraud and criminal mischief.

Special Agent Jessica L. Eger wrote in arrest papers that Jeff Engle, a partner in Shaffer & Engle, contacted Lower Paxton Township police about Collins in September. She had worked for the firm for about three years.

Engle reported to police that Collins had been stealing from the firm's cost account, which was meant to cover filing fees and court reporter expenses. Collins had admitted committing the thefts to Engle and fellow attorney Elisabeth Pasqualini, Eger wrote.

The agent said it was discovered that Collins had embezzled more than $8,000. She was fired in August and told to stay off the law firm's property.

On Dec. 7, Engle called Eger to report that files were missing from the office, including one on he had kept on Collins' alleged criminal acts and a file that contained passwords for his work and personal accounts.

Three weeks later, Pasqualini returned from a holiday break to find a small black and pink camo flashlight sitting on her desk, the agent said. Eger said Hogentogler told her during a later interview that such a flashlight had been in his and his wife's home.

Pasqualini also discovered that a purse containing her personal credit cards was missing from the office, Eger said.

An "unknown sticky substance" was found on the office's computer equipment, the agent wrote. It cost several thousand dollars to repair that damage, she said.

Pasqualini later found that her personal credit card had been used to order more than $300 worth of sex toys. That was just the first of a spree of purchases made with credit and debit cards stolen from the law office, Eger said. She said Collins also forged and cashed the personal checks of her co-workers.

Collins was photographed by surveillance cameras at some of the businesses where the alleged thousands of dollars' worth of financial crimes occurred, Eger wrote.

Collins remains free on $25,000 bail, court records show. A preliminary hearing on the case is scheduled for February.

The charging document indicates that she has paid approximatley $12,000 to her former  firm.(Mike Frisch)

March 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

"A Troubling Pattern"

The Iowa Supreme Court Attorney Disciplinary Board has reprimanded an attorney for two incidents unrelated to the practice of law.

Both led to a criminal conviction.

The first incident took place on March 30, 2015. The attorney was stopped by police while driving from Des Moines to his home in Council Bluffs after celebrating his 50th birthday with friends. 

He admitted drinking wine but denied he was intoxicated. He told the police "several times" that he was an attorney. 

He was arrested and blew a .244% BAC. Two loaded handguns and an open bottle of vodka were found in his car.

According to the reprimand, the attorney was extended "many courtesies" not given to ordinary mortals, including multiple phone calls (one to a judge) and an offer to have an independent blood test. Contrary to protocol, he was left alone while that test was administered.

He told a trooper that the county attorney was a personal friend and the trooper's supervisor contacted him. Another police officer friend was allowed to pick up his car to avoided towing charges.

The conviction was for Operating While Intoxicated (First Offense) and the weapons charges were dismissed.

The second incident took place on St. Valentine's Day 2017. 

The attorney had a second date with a woman he had met on a dating web site. When she arrived at his home, she found him "passed out" on a sofa.

She nonetheless got into a car with him driving. According to her, he drove erratically and called her derogatory names. 

After dinner, he drove with her to attend a show in Omaha. They did get get there.

Rather, he continued to drive recklessly and to yell at her.

He pulled into a Shell Speedy Mart and told her to "get the f--- out of the car." 

She ran into the store, told the clerk to call the police and locked herself in the bathroom. He pounded on the bathroom door before giving up and departing the premises.

The police came and took her to his home to retrieve her personal items. He "crudely" demanded that the police depart.

The conviction was for Disorderly Conduct in a Place of Business.

 The board noted a "troubling pattern of being confrontational and uncooperative, bragging about [his] status as a lawyer and resorting to name dropping when convenient." (Mike Frisch)

March 12, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, March 10, 2018

Who Is The Loser?

The Louisiana Attorney Disciplinary Board proposes disbarment for an attorney's fraudulent efforts to secure ownership of three properties

 In the charges, ODC alleges that the Respondent violated Rules of Professional Conduct 3.3(a) and (d) and 8.4(c) when he engaged in three transactions between 1999 and 2001 in which he sought to obtain the ownership of St. Tammany properties belonging to absentee owners without a credible factual or legal basis for doing so.

The hearing committee had found misconduct and proposed a deferred six-month suspension.

The legal setting

A brief review of certain tenants of Louisiana property law and a description of the procedures employed by Respondent is helpful in understanding the facts of and issues presented in this matter. The Louisiana Civil Code recognizes several methods for acquiring ownership of immovable property, including possession of property for either 10 or 30 years, depending on the circumstances. La. Civ. Code arts. 3473-3488. Respondent freely admits that he did not own the properties at issue and had no claim to title. Therefore, under La. Civ. Code art. 3486 et seq., he would be required to possess the property for 30 years before acquiring ownership of the property. Respondent, however, believes he has found a way, under an article of the Louisiana Code of Civil Procedure, to acquire property based on possession of only one year.

He filed declaratory judgment actions against the absentee owners

The quitclaim deeds each contained the forged signature of Respondent' s corporate partner, Timothy Dunaway, and were signed by the Respondent himself without Mr. Dunaway's prior knowledge and consent. Mr. Dunaway's putative signature was also accompanied by an attestation clause falsely certifying Mr. Dunaway's signature to be genuine and appropriately witnessed and notarized, none of which was true, as Respondent has admitted. By making false statements of fact to the court in his testimony in the Magee v. Nill and Magee v. Wantz matters concerning the quitclaim deeds, submitting the false quitclaim deed into the record in the Magee v. Nill matter, and filing the petitions for declaratory judgment which referenced the false quitclaim deeds into the records of the Magee v. Nill, Magee v. Wantz, and Magee v. Hymel and Turnbull matters, the Respondent violated Rules 3.3(a)(l) and (a)(3).

There was significant harm to the owners

Here, the Respondent has violated duties owed to the legal system, the public, and the profession. His actions were intentional. The amount of actual injury caused by the Respondent's misconduct was great. Lloyd and Nicole Martin (subsequent owners of one of the lots of the Nill property) suffered extensive financial harm and emotional anguish after a scheduled April 2008 closing on their Abita Springs home fell through. Unable to sell their home due to the title defect concerning their home and facing financial difficulties, they were forced into default of their existing mortgage and were unable to sell their home until 2015. This sale was a short sale, which required them to assume an additional $10,000 in indebtedness which they are currently paying down. The Martins sued their title insurer, who was able to locate the Nill heirs and obtain quitclaim deeds in favor of the Martins. Respondent was ordered to reimburse the title insurer for the cost of obtaining the quitclaim deeds which cleared the cloud on title. (See Exh. ODC 7 A, order denying Respondent's motion for summary judgment and recognizing that the quitclaim deed and two judgments created clouds on the title rendering the Martin's title unmerchantable; and Exh. ODC 7B, Judgment dismissing the Martins' claim because the title insurer cured the defect and ordering Respondent to reimburse the title insurer the expense of obtaining the quitclaim deeds).

Mr. and Mrs. Lampo's (subsequent owners ofthe Wantz property) efforts to refinance their home were delayed for three years because of the title defect associated with their home. Ms. Robinson (subsequent owner of another section of the Nill property) suffered harm when she, along with the Lampos and the Martins, were sued by the Respondent for defamation, an act of retaliation for their prior civil RICO suit brought against the Respondent for damages.

 A bad attitude never helps

Later, the Respondent inflicted more indignity upon the complainants when he convened a meeting with these complainants at the Abita Brew Pub in 2015. At this meeting, he sought to persuade them to dismiss their disciplinary complaints brought against him in return for his dismissal of his defamation action. The Respondent behaved arrogantly, dismissive of the misfortunes the complainants had endured because of his misdeeds. He ridiculed the complainants as "losers" at the meeting, making a "L" sign on his forehead with his thumb and forefinger. Ultimately, the Respondent's attempt to obtain a dismissal of the disciplinary complaints was unsuccessful. Respondent's conduct was publicized through news articles in the newspaper and online in ways that reflected negatively on the profession.


Here, Respondent filed false documents into the public records of St. Tammany Parish. He also submitted false documents and testimony to the courts when he filed or referenced the quitclaims at issue in the declaratory judgment proceedings discussed in this matter. Further, Respondent's testimony concerning these quitclaims was misleading. He also brought a harassing defamation action against the complainants in this matter after they filed a civil RICO lawsuit against him. Such misconduct is similar to that found in Harris, Pinkston and Simpson and falls squarely within ABA Standard 6.11. As such, this misconduct warrants a sanction ranging from disbarment to permanent disbarment. Because of the mitigating factors present, particularly the lack of prior discipline, the Board recommends that the Respondent be disbarred.

(Mike Frisch)

March 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, March 9, 2018

Outrageous Misconduct

 The New York Appellate Division for the First Judicial Department has imposed disbarment for an attorney's acts of domestic violence and other serious misconduct in his domestic and bar matters.

Supreme Court's 100-page decision and order had granted respondent's wife sole custody of the couple's then two-year-old son and found that respondent, a pro se litigant: had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had, beginning in April 2014, engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges (a judge of the District of Columbia Superior Court, the original matrimonial judge and the matrimonial judge who made these findings [matrimonial judge]), setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, Supreme Court found that respondent had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child. Based on Supreme Court's decision, applying the doctrine of collateral estoppel, this Court found that respondent had violated New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); rule 8.4(d) (conduct prejudicial to the administration of justice); rule 3.1 (frivolous litigation); rule 3.3(a)(1) (knowingly make a false statement of fact or law to a tribunal); rule 3.3(a)(3) (knowingly use or offer false evidence); rule 3.3(f)(2) (undignified or discourteous conduct before a tribunal); and rule 8.4(h) (other conduct adversely reflecting on fitness as a lawyer), and directed that a sanction hearing be held.

The referee considered the evidence

Before the Referee, the Committee read into the record a February 19, 2016 deposition it conducted of respondent in which he admitted that in January 2014 he filed a report with the D.C. police accusing his former wife of perpetrating acts of domestic violence against him, which accusations Justice Cooper found to be entirely unfounded. As mitigation evidence, respondent introduced a limited portion of his deposition testimony in which he made reference to the fact that he was in counseling during his senior year in college and again sporadically while in law school, that he took antidepressants while in college, and in high school, he volunteered with the homeless. He also introduced a letter from his therapist, in which she stated that she had sporadically treated respondent over the course of two years but starting in April 2016 he consistently attended therapy on a biweekly basis. He also introduced four letters from character witnesses, and maintained that any misconduct on his part occurred solely in the context of his custody dispute.

The Referee rejected respondent's mitigation evidence, finding incredible respondent's accusations of domestic violence by his then-former wife, noting their rejection by both the D.C. police and the courts in D.C. and New York; that respondent's deposition testimony as to the sporadic counseling he received in law school and his occasionally taking antidepressants while in college did not constitute mitigation; that his charitable work was insignificant; and that his therapist's letter and the similarly worded letters of four character witnesses provided no basis for mitigation. The Referee opined that while respondent's good conduct during the sanction hearing supported his contention that his disruptive courtroom behavior was confined to the custody litigation, nonetheless, such good behavior is required of lawyers at all times and, thus, did not mitigate his prior misconduct.

The court on sanction

This record in this case is replete with numerous egregious and outrageous acts of misconduct perpetrated by respondent over the course of a four-year period, including his repeated acts of domestic violence toward his wife; his false testimony at the custody trial; his introduction of falsified evidence in the form of altered text messages; his presentation of misleading testimony through his expert witnesses; his flouting the directives of three judges; his setting up of a fake website about the attorney for the child in the custody action and posting derogatory messages about her on it; his baseless filing of a disciplinary complaint against a court-appointed psychiatric expert; his threatening text messages directed to his wife; his cell phone calls to his then three-month-old son baselessly accusing his father-in-law of being a child sexual abuser who could harm him; his engagement in frivolous litigation against his wife, her parents, and her attorneys; his attempted defamation of the attorney for the child; and his filing of a police report falsely accusing his wife of committing acts of domestic violence. Notwithstanding the repeated acts of egregious misconduct respondent has committed over the course of several years, he has neither demonstrated any remorse nor any acceptance of responsibility for his intolerable actions. This long list of aggravating factors, and the lack of mitigating factors weighing in respondent's favor, fully support the Referee's recommendation that respondent be disbarred.

Law360 reported that he is a former Mintz Levin attorney and that he falsely accused a judge of spitting on him.

JD Journal also reported on the divorce case. 

Zappin graduated from Columbia Law School in 2010 before he landed a job at New York’s Latham & Watkins, a Manhattan mega firm. Then he moved on to Quinn Emanuel Urquhart & Sullivan, another mega firm. He was known as a legal pit bull for his aggressive nature in getting cases done.

But while a certain amount of ruthlessness will get you far in the legal world, Zappin’s aggression proved to be too much. He was fired by Quinn Emanuel Urquhart & Sullivan, and then he allegedly created an account on the spousal cheating website, Ashley Madison, in his boss’ name to embarrass him.

Adding more to his monster-like behavior, Zappin allegedly beat his pregnant wife, Claire Comfort, a lawyer with Weil, Gotshal & Manges.The court shrink testified that Comfort said Zappin slapped her, hit her glasses, hit her head, and hit her stomach with car keys when he was angry.

Comfort said she was abused until she left him when their son was eight weeks old. Zappin countered that he was not abusive and in fact, she was the crazy one. As proof, he read a text that he sent to her where he said that she “bit my dick.”

Because the two accused each other of being crazy, Ravitz ordered psych evaluations on both parties. He found that the two of them were in a classic abusive relationship dynamic. Zappin was “narcissistic, obsessive-compulsive and histrionic” and Comfort had “an automatic need to obey others who assert authority” and low self-esteem.

Comfort is fighting for custody of their son, who is now two. She and Zappin both attended Columbia.

ABA Journal had the story of sanctions imposed in the divorce litigation and his departure from Mintz Levin. (Mike Frisch)

March 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Nebraska Admits Law Professor As "Substantially Engaged In Practice"

The Nebraska Supreme Court has held that a law professor applicant meets the requirements for admission without examination

William M. McDonnell is a physician and health law specialist seeking admission to the Nebraska bar. He filed an application with the Nebraska State Bar Commission (Commission) seeking admission without examination as a Class 1-B applicant. The Commission denied McDonnell’s application on the basis that he failed to show he was “substantially engaged in the practice of law” for 3 of the 5 years preceding his application. The Commission granted McDonnell’s request for a hearing, reviewed the evidence, and again denied his application. McDonnell appeals.

Based on our de novo review of the record, we find McDonnell has carried his burden to establish that he was “substantially engaged in the practice of law” preceding his application, as required under § 3-119(B)(1). We therefore grant McDonnell’s Class 1-B application.

The applicant's career path

McDonnell graduated from the University of Virginia School of Law in 1987. After completing a judicial clerkship with the U.S. District Court for the Eastern District of Virginia in 1988, he was admitted to the Virginia State Bar by examination. In 1989, McDonnell was admitted by motion to the District of Columbia bar and began practicing at a private law firm in Washington, D.C. From 1989 to 1994, McDonnell held various legal positions, including positions with the U.S. Securities and Exchange Commission and the U.S. Department of Treasury. In 1995, McDonnell commenced medical school at the University of Arkansas, and in 1999, he began employment as a physician. From 1999 through 2006, McDonnell worked as a resident physician, emergency department physician, and pediatric emergency medicine fellow physician.

In 2006, McDonnell began employment with the University of Utah, with dual appointments in the university’s S.J. Quinney College of Law and the school of medicine. McDonnell worked as an adjunct professor of law as well as a pediatric emergency department physician. He held these positions through May 2014.

While employed at the University of Utah, McDonnell devoted 25 percent of his time and activities to his appointment at the college of law and 75 percent of his time to his appointment at the school of medicine. McDonnell’s position as an attending physician required him to work between 18 and 21 hours each week in the emergency department at the university’s primary children’s medical center. McDonnell asserted that he worked an average of 60 hours per week in his dual position, and devoted 15 hours per week to working as a law professor.

As a law professor, McDonnell served as a course director, developed curricula for health law courses, conducted scholarly research, published writings on health law and policy topics, and provided continuing education lectures to medical professionals and attorneys. McDonnell taught one 3-credit hour law school course for one semester each academic year. His relevant course work included preparing and presenting 104 class lectures of approximately 90 minutes in length. McDonnell attended faculty research meetings and met with student interest groups throughout the year. Additionally, he served as a faculty research supervisor for a law student conducting independent health law research.

In 2014, McDonnell relocated to Omaha, Nebraska, where he accepted a position as chief of the division of pediatric emergency medicine and medical director of the children’s emergency department at the University of Nebraska Medical Center and Children’s Hospital and Medical Center. In March 2016, McDonnell applied for admission to the Nebraska bar. McDonnell maintained an active membership in the Washington, D.C., bar at the time of his application.

The State Bar Commission erred in applying the rules

The undisputed evidence before us indicates that at the time of his Nebraska application, McDonnell possessed an active law license in the District of Columbia and was in good standing. As a result, McDonnell meets the requirement of being licensed, active, and in good standing in another state, territory, or district of the United States.

The evidence also indicates that from March 2011 through May 2014, McDonnell was employed as a law professor at the S.J. Quinney College of Law, University of Utah. McDonnell completed regular and routine duties as a law professor, including lecturing, researching, and publishing. At oral argument in this matter, the Commission agreed that McDonnell had shown he was “actively” engaged in the practice of law as a law professor in Utah. As a result, we conclude that McDonnell met the “practice of law” requirement, because he was employed as a law professor, and that his employer, the S.J. Quinney College of Law, is accredited by the American Bar Association.

Therefore, the only disputed issue in considering McDonnell’s Class 1-B application is whether McDonnell was “substantially engaged in the practice of law” as a law professor at the S.J. Quinney College of Law.

The court

Based upon McDonnell’s education, character, fitness, and employment history, we find that he maintains the competency, skill, and fitness required to practice law. As a result, McDonnell carried his burden of proving that he was “substantially engaged” in his employment as a law professor for an appropriate amount of time preceding his application.

Our admission rules do not define the “substantially engaged in the practice of law” requirement, and we need not endorse a particular definition to decide this case. Rather, our admission rules dictate a qualitative analysis as opposed to a quantitative analysis. This decision should not be viewed as setting a threshold requirement for Class 1-B applications.

The case is In re Application of McDonnell and can be accessed here. (Mike Frisch)

March 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Kansas Seeks Temporary Suspension Of Attorney Who Appeared For Bar Hearing While Intoxicated

A disciplinary matter argued this week before the Kansas Supreme Court involved a situation characterized by the Deputy Disciplinary Administrator as one that has "never been presented in the history of our office."

Deputy Administrator Kimberly Knoll advised the court that the respondent had appeared for his bar hearing and was asked by the panel when he had last consumed alcohol. He responded that it had been during the Super Bowl four days before the hearing.

The panel was concerned that he was impaired and had him transported for testing. Two tests were administered resulting in a 1.85 and (second test) 2.00 blood alcohol content.

The disciplinary counsel here seeks an temporary suspension pending the ongoing proceedings and that he be tested for impairment at the reset hearing date.

Respondent appeared and argued against a temporary suspension.

He conceded that he drove himself to the bar hearing and that he had lied about when he had last had a drink to the hearing panel.

He also raised the results of a drug test administered on February 15 in which he tested positive for morphine. He attributed the result to poppy seeds that he had eaten while alone on Valentine's Day. 

When asked by the court about his way of treating his drinking, he responded "abstinence." 

In rebuttal, Deputy Administrator Knoll noted that she had googled the poppy seed explanation and that it was reported to her that he smelled of alcohol at this proceeding.

I am always favorably impressed by the high quality of advocacy of Ms. Knoll and her colleagues with the Kansas Disciplinary Administrator's Office.  (Mike Frisch)

March 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Trust Account, Tax Issues Lead To Suspension

The Hawai'i Supreme Court has ordered a one-year suspension of an attorney

In Case No. 14-001-9144, the record establishes that, from 2010 through September 30, 2013, Respondent Jo-Ann Adams failed to maintain a separate business account, in violation of Rule 1.15(a)(2) of the Hawai'i Rules of Professional Conduct (HRCP 1994) She used counter deposit slips to deposit funds into her client trust account and her business account, and used counter checks to disburse funds from her client trust account, constituting multiple violations of HRPC Rule 1.15(b). Respondent Adams commingled her own funds – including funds earned in her legal practice, earned for non-legal work, and obtained through an inherited interest in a judgment – with client funds from 2010 through September 30, 2013, in violation of HRPC Rule 1.15(c). By willfully and knowingly retaining her earnings in her client trust account, she placed the client funds in her account at substantial risk of injury

Respondent Adams paid personal and non-client business expenses from her client trust account, and withdrew funds from the account by means of checks made to “cash,” each instance of such conduct constituting a violation of HRPC Rule 1.15(e). She failed to label checks and to maintain contemporaneous financial records with the accuracy and consistency necessary to protect the integrity of her clients’ funds by responsibly overseeing the receipt, maintenance, and disbursement of those funds, as required by HRPC Rule 1.15(g)(2).

We further conclude that Respondent Adams failed to file her 2010, 2011, and 2012 federal and state tax returns until August 23, 2013, and her 2010 second semester and 2011 and 2012 general excise tax returns until June 20, 2014. We further conclude failing to file her returns by the appropriate deadlines injured the public and the legal profession.

However, we also conclude, following a thorough and complete de novo review of the record, that the Office of Disciplinary Counsel (ODC) did not succeed in carrying its burden
of establishing, by clear and convincing evidence, that Respondent Adams had the intent to conspire with her client in this case to sequester the client’s inherited funds in her client trust account in order to avoid the payment by her client of appropriate taxes on those funds...

In Case No. 14-067-9210, we conclude Respondent Adams misappropriated client funds, in violation of HRPC Rules 1.15(c) and 1.15(d), and injured that client when, on December 30, 2013, she disbursed monies from her client trust account using a counter check, overdrawing the account, at a time when she, by her own admission, held funds for a client in that account.

In Case No. 15-018-9237, the record establishes by clear and convincing evidence that, on May 17, 2015, Respondent Adams wrote a check to herself for $459.80 from her client trust account against insufficient funds and, in making the disbursement to herself, relied in part on $25.00 belonging to a client. Based upon the plain language of HRPC Rule 1.15(c) (2014), the withdrawal of the $25.00 of client money from her client trust account violated that Rule and injured the client in question.

Adams’s grossly negligent recordkeeping also establishes, by clear and convincing evidence, that her financial recordkeeping was so inadequate, the violation of her duties under HRPC Rule 1.15(g) so severe, that she placed the funds of her clients in substantial danger of serious injury. This conclusion, viewed together with our conclusions regarding her failure to file tax returns and her comingling of personal funds in her client trust account, provides clear grounds for a substantial period of suspension.

In mitigation the attorney

has a clean disciplinary record, has an excellent reputation in the community and has performed significant pro bono work, fully and freely cooperated with ODC in its investigation (including taking the initiative to report a subsequent overdraft of her account), and expressed sincere remorse for the mishandling of her financial affairs and client funds in particular.

(Mike Frisch)

March 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Restitution And Candor Issues Doom Reinstatement Effort

The Massachusetts Supreme Judicial Court denied reinstatement to a petitioner admitted in 1981 and disbarred in 2001.

He had resigned in the face of charges

The petition for discipline attached to the affidavit, the allegations of which the petitioner agreed could be proved by a preponderance of the evidence, describes a wide and deep pattern of misconduct in eleven counts charging, among other things, conversion, intentional misrepresentations to clients, neglect, failure to disclose a prior administrative suspension to clients or the court, and an adjudication of contempt for practicing law while suspended.

The Hearing Panel gave him credit for his post-disbarment employment

We recognize that it was humbling and difficult to become a paper boy at age forty-six, working the 2:00 A.M. to 6:00 A.M. shift (Ex. 4 (WCM 148-149); Tr. 2-129 (Petitioner)), and we give the petitioner credit for his work ethic and industriousness. We acknowledge and respect that the petitioner rebuilt his life after hitting bottom, working his way up from an unskilled position to a series of responsible, well-paying managerial roles where he can again provide for his family.

He has a long way to go to reimburse the Clients' Security Board

The petitioner has paid the CSB $100 a month beginning October 7, 2010, and we acknowledge that he has paid every month since then, at least through early June 2017. Ex. 16 (WCM400); Tr. 2-177 (Petitioner). However, the petitioner has never increased his monthly payments, and he still owes the CSB $109,000. Tr. 2-198, 2-260 (Petitioner). At that rate of payment, it will take over ninety years to make complete restitution.

He had declared bankruptcy in 2005

We do not agree that the petitioner's debt to the CSB was dischargeable in bankruptcy, or that it was discharged. And in any event, the petitioner testified before us that although his debt to the CSB may have been legally discharged, he has a moral obligation to pay it. Tr. 2-175-2- 176 (Petitioner). He stated, "I owe them money. I am going to pay them money or die first, and that's what is going to happen." Tr. 2-199 (Petitioner).

However, we conclude that the petitioner's conduct belies any suggestion that he acknowledges a moral obligation to correct the harm he caused his former clients and the resulting costs he imposed on the CSB and the bar. His choice to make only minimal reimbursement to the CSB, when he could clearly have afforded to pay more, and his failure to make any restitution at all to the other clients whose funds he took, preclude a finding of moral fitness.

Charity begins at home

The preceding table reflects that in the years 2010 to 2016, the petitioner and his wife made cash gifts to charity of$17,275. During the same period, he paid the CSB only $7,600. Ex . 16 (WCM402-403). Looked at another way, the petitioner would have to pay the CSB for 14 .4 years, at his $100/month rate, to reach $17,275...

The sincerity of the petitioner's stated intent to compensate his clients and the CSB is undermined by his efforts to distance himself from income and marital assets that were actually available to satisfy those obligations. By his testimony concerning his income and charitable donations, the petitioner demonstrated two ethical shortcomings: a lack of sincere concern for those harmed by his misconduct, and a willingness to present less-than-candid testimony in support of his petition for reinstatement.

Also as to assets

The petitioner tried to make the same "his and hers" distinction as to gambling winnings. There was testimony that both he and his wife gambled. Tr. 2-96, 2-101 (D. McPhee); Tr. 3-45 (Petitioner). Their respective winnings are reflected in W-2G forms filed with their tax returns; many of those forms are in the petitioner's name. Ex . 20 (WCM508, 509); Ex. 21 (WCM545); Ex . 22 (WCM582); Ex. 23 (WCM625-629). Both the petitioner and his wife tried to convince us that she was the only gambler, and that he just went along for companionship. E.g., Tr. 2-101-2- 102 (D. McPhee); Tr. 3-40 (Petitioner). However, the evidence is clear that on those occasions when the petitioner received a W-2G, it was because he had won money. Tr. 2-98, 2- l 08-2-109, 2-114-2-117 (D. McPhee). We cannot agree that he did not risk and earn money in this pursuit. We reject his testimony that none of the gambling winnings represented income to him. That false testimony appears to us to have been an excuse for not paying more to the CSB, an excuse we do not accept. It confirms the conclusion stated above; namely, that the petitioner has demonstrated a lack of concern for those harmed by his misconduct, and has sought to conceal or excuse that lack of concern by inaccurate testimony about his income.

There were other issues with his questionnaire answers

We do not agree that the reinstatement process is "iterative" (Petitioner's PFCs at 17-18,  56); that implies a collaborative process or that bar counsel has some duty to urge or aid a petitioner to be honest, accurate and complete. That is a serious misconception of the process and the applicable burden of proof. We reject any suggestion that a disbarred lawyer, in applying for reinstatement, need not be accurate or truthful in his first, second or third responses to the required reinstatement questionnaire and that if he is not, it falls to bar counsel to insist upon a fully correct response on the fourth try.

He had produced an impressive array of favorable character testimony but in the end

In light of the scope and seriousness of the petitioner's misconduct, he bears a heavy burden to prove that reinstatement is warranted. He has not carried it. We rely for this conclusion on many factors: his failure to repay his large debts to the CSB and his former clients; his disingenuous testimony about his tax returns and gambling winnings; his carelessness in preparing successive versions of his responses to the reinstatement questionnaire; and his failure to understand, or to explain, the causes of his misconduct. We acknowledge his recent strong work ethic and the letters and testimony from his witnesses, but we conclude that reinstatement would be detrimental to the integrity and standing of the bar, the administration of justice and the public interest.

(Mike Frisch)

March 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, March 8, 2018

Divorce FLDS Style

An agreed-upon reprimand with probation has been imposed by the Arizona Presiding Disciplinary Judge.

The misconduct involved a dissolution of marriage matter where the attorney had identified himself as counsel to the petitioner/wife Julia Kay Jessop when in fact he had been consulted by the husband Brigham Zitting Jeffs.

Husband and wife were members of the Fundamentalist Latter-Day Saints church and husband did not want to be identified as the petitioner.

The attorney met with both husband and wife and the result was an agreement that "highly favored" the husband. The agreement was approved by the judge because he thought the wife had counsel.

A year and a half later, wife moved to vacate the agreement. The judge reviewed the attorney's intake form that listed the wife as the opposing party.

The consent agreement was vacated.

The stipulations note that the attorney met with the husband whi, days later, "called with 'an abrupt change of plans' and explained that because of his affiliation with the FLDS church, he did not want to be identified as the party initiating the divorce (petitioner)."

Husband told the attorney that this was acceptable to wife. After meeting with wife alone, the attorney discussed the issues and the parties subsequently executed the (unfavorable to wife) consent.

At the time, the attorney had been in practice less than two years and had "limited experience in family matters." (Mike Frisch)

March 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Florida Revises Lawyer Referral Rules

The Florida Supreme Court has adopted new rules regarding lawyer referral services

Having considered the Bar’s proposals, the comments filed, the Bar’s response, and having had the benefit of oral argument, the Court adopts the amendments to the Rules Regulating the Florida Bar as proposed by the Bar. These amendments, though not consistent with our directive in In re Amendments to Rule Regulating the Florida Bar 4-7.22—Lawyer Referral Services, are necessary to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest. These amendments do not, however, resolve our concern with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident. The findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm. We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.

Accordingly, the Rules Regulating the Florida Bar are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments shall become effective on April 30, 2018, at 12:01 a.m.

(Mike Frisch)

March 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Stiffing Chiropractor Gets Attorney Disbarred

Intentional misappropriation and a host of other Rule 1.15 violations have led to an attorney's disbarment by the District of Columbia Court of Appeals.

Respondent‘s conduct giving rise to the violations stemmed from her personal injury law practice and transactions that followed a common pattern, namely: respondent‘s clients received medical treatment from a chiropractor and signed (along with respondent) the medical provider‘s authorization and assignment form creating liens on the proceeds of any settlement amounts received by the client-patients from insurers. Respondent then negotiated a settlement with the involved insurance carrier, normally including also a reduction of the medical bills by the treatment providers. During the time period at issue, respondent referred her personal injury clients to two different chiropractors or chiropractor clinics, Dr. Mohammed Yousefi and Medical Support Services (MSS). Respondent‘s failure to hold in trust and timely disburse funds received pursuant to these settlements and owed these providers formed the basis of the violations found by the Hearing Committee and the Board.

The court rejected attacks on the proofs

Disciplinary Counsel offered convincing evidence that, although respondent owed the providers an aggregate of at least $40,893 for some nineteen selected cases as of August 1, 2012, by the alleged misappropriation dates of October 5–8 and 16, she had in the trust account less than $37,000, when no disbursements for those cases had yet been made to the providers.

Her pattern of disputing the medical bills post hac also did not negate the findings

As the Hearing Committee explained, respondent‘s duty to pay the providers once the insurers had settled ―far outweighed her own interests in evaluating the accuracy and integrity of medical bills for which she had already received a settlement check.‖ And, if respondent had any remaining dispute with a provider as to the correct amount to be disbursed for treatments, the proper course of action was for her to escrow the funds until the dispute was resolved, District of Columbia Rule of Professional Conduct 1.15 (d), which she failed to do...

In sum, the Board unanimously determined by clear and convincing evidence that respondent‘s misappropriation, ―part of a pattern of misconduct — including 34 discrete financially-based Rules violations — that transpired over the course of more than a year,‖ when combined with her "fail[ure] to explain why [the] misappropriation took place"
and "utterly meritless excuses for her failures promptly to pay her clients‘ medical providers," rose to the level of intentional misappropriation requiring disbarment. See In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). The Board‘s report meticulously substantiates that conclusion, and we agree with it. Even if we were to conclude that respondent‘s indifference toward her obligations to the providers was reckless rather than intentional, the result would be the same. In re Anderson, 778 A.2d at 338.

Associate Judge Thompson

concurring in part and concurring in the order of discipline: I readily agree with my colleagues and with the conclusion of the Hearing Committee and the Board on Professional Responsibility (the Board) that there is clear and convincing evidence that respondent committed numerous violations of Rule 1.15 (c) (failure promptly to deliver funds) and 1.15 (d) (failure to distribute funds). I have had a great deal more trouble agreeing that Disciplinary Counsel proved by clear and convincing evidence that respondent misappropriated client funds (and, under our case law, must be disbarred). Ultimately, I am persuaded that the record evidence supports the conclusion that respondent‘s trust account was out of trust on the dates Disciplinary Counsel alleged, but I write separately to explain why I have reached this conclusion. Along the way, I explain why I am not entirely satisfied with the reasoning on which the Board relied.

But in the end

In the end, I conclude that the record evidence as a whole is clear and convincing that respondent‘s escrow account was out of trust on the dates in question, and thus that a finding of misappropriation is warranted.18 Because I do not take issue with the Board‘s finding that the misappropriation was intentional or at least reckless, I concur in the judgment disbarring respondent.

Associate Judge Beckwith and Senior Judge Farrell were on the per curiam opinion. (Mike Frisch)

March 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, March 7, 2018

Suspended In Ohio; Disbarred In New York

An Ohio criminal conviction led to summary disbarment by the New York Appellate Division for the Second Judicial Department

On October 31, 2014, following a jury trial before the Honorable Kimberly Brown in the Court of Common Pleas, Franklin County, Ohio, the respondent was found guilty of sexual battery, in violation of Ohio Revised Code § 2907.03, a felony in the third degree.


Ohio Revised Code § 2907.03 defines “sexual battery” as, among other things, sexual conduct with another when “(2) [t]he offender knows that the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired,” or “(3) [t]he offender knows that the other person submits because the other person is unaware that the act is being committed.” “Sexual conduct” is defined under Ohio Revised Code § 2907.01(A) as “vaginal intercourse between a male and female, anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.”

The Ohio offense of sexual battery is essentially similar to Penal Law § 130.65, sexual abuse in the first degree, a class D felony, which provides that “[a] person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact: 1. By forcible compulsion; or 2. When the other person is incapable of consent by reason of being physically helpless.” The “physically helpless” element of the offense of sexual abuse in the first degree, which is defined under Penal Law § 130.00(7) to describe “a person [who] is unconscious or for any other reason is physically unable to communicate unwillingness to an act,” is essentially similar to the elements of the Ohio offense, either the requirement that “the other person’s ability to appraise the nature of or control the other person’s own conduct is substantially impaired” (Ohio Revised Code 2907.03[A][2]), or that “the other person is unaware that the act is being committed” (Ohio Revised Code § 2907.03[A][3]). The “sexual contact” element of the offense of sexual abuse in the first degree, which is defined under Penal Law § 130.00(3) as “any touching of the sexual or other intimate parts of a person for the purpose of gratifying [the] sexual desire of either party,” is essentially similar to the “sexual conduct” element of the Ohio offense.

Dan Trevas reported on the Ohio Supreme Court's disposition.

The Ohio Supreme Court today suspended a central Ohio attorney for two years after he was convicted of sexual battery in March 2015.

The Court voted 5-2 to suspend Kenneth J. Warren of Dublin and to deny him any credit for the time he served under an interim suspension that started the month of his conviction. The per curiam opinion noted that Warren and the Office of Disciplinary Counsel entered a “consent-to-discipline agreement,” which granted no credit for time already served.

Warren Had Sexual Contact with Friend

In the discipline agreement, the parties stipulated that in 2013 a female friend joined Warren for dinner at his home with plans to stay overnight. After dinner, the woman lay down to sleep because she had taken some pain medication. Unaware that she had taken medication, Warren gave her a sleeping pill.

At some point in the night, Warren removed the woman’s pajamas, and she awoke to him having sexual contact with her. She told him to stop, but due to the medication, she fell back asleep and was unaware whether further sexual contact occurred. In 2014, a jury found Warren guilty of sexual battery, but acquitted him of rape. He was sentenced in 2015 to 30 months of community control and ordered to stay away from the victim, to complete a sex-offender treatment program, and to pay a $2,500 fine plus court costs.

(Mike Frisch)

March 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Modules Of Saskatchewan

The Massachusetts Supreme Judicial Court imposed a six-month suspension for misconduct summarized on the web page of the Board of Bar Overseers as reciprocal discipline for sanctions imposed in New York

In 2009, the respondent had commenced the process of getting admitted to the practice of law in Saskatchewan, Canada. The process involved the completion and submission of several Online Modules, which evaluated competency in a variety of legal areas. In submitting the completed Online Module, the applicant had to certify that it was his or her own original work and that he or she had complied with the Professional Integrity Policy. The Professional Integrity Policy prohibited collaboration on the modules with other applicants.

The respondent and another applicant collaborated in completing two of the Online Modules. On February 3, 2009, the collaboration came to the attention of the director of the Canadian Center for Professional Legal Education (“CPLED”) program. CPLED launched an investigation of the collaboration and suspended the respondent’s participation, pending completion of the investigation and hearing before the Admissions and Education Committee for the Law Society of Saskatchewan.

On September 8, 2009, the Committee issued a decision finding that that respondent had violated “the spirit and the letter of the Professional Integrity Policy.” The Committee thus required the respondent to re-take the Online Modules and competency tests, pay a fine and costs, and wait not less than three months after successfully completing the modules before he applied for admission.

On December 6, 2009, the respondent filed an Application for Admission questionnaire in connection for his application to the bar of New York. In response to a question about the disposition of any application for admission to the bar of other jurisdictions, the respondent failed to disclose the Saskatchewan investigation into his collaboration with another applicant or the decision of the Committee.

The respondent was admitted to the bar of New York on January 12, 2010. However, in January 2017, the New York disciplinary authorities filed a petition against the respondent alleging that he violated New York Rule of Professional Conduct 8.1(a) due to his lack of candor in the disciplinary process. On October 19, 2017, the New York Grievance Committee for the Third Judicial Department revoked the respondent’s admission to the New York bar without prejudice to his submission of a new application for admission.

By failing to disclose on his New York bar application, in response to a specific question about the disposition of his application to the bar of other jurisdictions, that the Saskatchewan Law Society had determined that he had violated “the spirit and the letter of the Professional Integrity Policy” by collaborating on the Online Modules, the respondent violated Mass. R. Prof. C. 8.1(b) and 8.4(c) and (d).

The decision of the Admissions and Education Committee of the Law Society of Saskatchewan may be accessed here. 

The decision of the Saskatchewan Court of Appeals is linked here. (Mike Frisch)

March 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, March 6, 2018

Law Society Wrestles With Transparency v. Protected Information In Bar Proceeding

The Tribunal Hearing Division of the Upper Canada Law Society granted a motion of the Law Society to accept evidence without public disclosure

The open court principle is fundamental to our legal system. Adjudicative transparency is particularly important in the context of self-governing professions. Transparency assures members of the public that they may have confidence in the impartial and fair resolution of issues before the Tribunal.

The protection of solicitor-client privileged information is also fundamental to our legal system. It must remain as close to absolute as possible. Although solicitor-client information must be available in Law Society investigations and Tribunal proceedings, it should not be compromised in holding lawyers accountable.

The matter

In this conduct application, the Law Society alleges that Mr. McLean engaged in professional misconduct by failing to serve one client: in preparing for her litigation; responding to her in respect of preparation; because of the manner in which he got off the record in that litigation; by withdrawing trust funds to pay an account when those funds had been earmarked for another purpose; and by failing to advance two civil actions.

 The Law Society seeks to protect information belonging to the client, Ms. Johansen. Mr. McLean acted for her in defending tax evasion charges and consequent assessments by the Canada Revenue Agency (“CRA”). With Mr. McLean’s assistance, Ms. Johansen settled her dispute with the CRA. The settlement involved a guilty plea and the payment of monies.

The Law Society presented affidavits and a Consolidated Request to Admit and Response that it asked be made non-public, as well as redacted versions of those same documents that it asked be made public. The bulk of the redacted information is communications between Ms. Johansen and her lawyers about her dispute with CRA. There are also a number of redactions of settlement discussions with CRA and in two documents that set out detailed financial information about Ms. Johansen’s business and expenses. The basis for seeking the non-public order is that the redacted information is subject to solicitor-client privilege, settlement privilege or is highly personal financial information that is not germane to the subject of the allegations.

Where the panel determines that an order must be made, it must be the type of order that affects openness the least while, at the same time, protecting the information. The Law Society advised that the practice of replacing names in affidavits to obscure the affiant or person’s identity was insufficient in this case because the client whose information is sought to be protected, Ms. Johansen, is a business woman who runs daycares in North Bay, a smaller community in Northern Ontario. There are already public documents that make it clear that Mr. McLean was her lawyer from time to time in relation to the matters before the Tribunal. We accept that initials are not sufficient to protect the privacy and privilege interests in this case.

As to solicitor-client privilege

The solicitor-client privileged communications will be protected by accepting the non-public affidavits and Consolidated Request to Admit and Response and allowing the filing of public versions in which the information has been redacted. There are no highly unusual circumstances to justify a departure from the near absolute protection for solicitor-client communication in a Tribunal proceeding. The information is clearly subject to the privilege, which has not been waived.[11]

The solicitor-client privileged communications will also be protected by an order that the proceeding will be held, as necessary or completely, in the absence of the public for the portions of the testimony of any witness who is speaking to documents and conversations which are privileged.

And the settlement privilege

The Law Society identified information in the affidavits and Consolidated Request to Admit and Response that were in the nature of settlement negotiations which it argued were subject to settlement privilege. It relates to communications between Mr. McLean or Ms. Johansen and CRA officials about the terms under which Ms. Johansen would settle her outstanding dispute with the CRA and plead guilty to charges.

The information discloses the negotiations and compromises made by the parties to the settlement. It is therefore properly subject to settlement privilege. The privilege has not been waived for the same reasons set out above. There is no indication that the information contained in these communications goes to the heart of the complaints before us. The privilege belongs to Ms. Johansen and the CRA, not to Mr. McLean. Mr. McLean did not identify any public interest in disclosure that outweighed the public interest in encouraging settlement and keeping the negotiations confidential. 

We ordered that the settlement-privileged information and any portions of testimony speaking to those documents will be not public.

Finally the issue of personal financial information

The Law Society asked that two documents containing detailed financial information of Ms. Johansen’s business be protected under Rule 18.02(c). Mr. McLean argued that the information was publicly available through normal business filings. He did not provide any evidence to that effect nor did he argue that that the documents were important to the case. Ms. Johansen is a witness, not a party, in these proceedings. We have no evidence or reason to believe that Ms. Johansen’s two documents are already in the public realm or go to the heart of the matter before us. In these circumstances, protecting this sensitive information of a non-party witness outweighs the public interest in open proceedings. We ordered that the documents and any testimony addressing them will be non-public.

(Mike Frisch)

March 6, 2018 in Bar Discipline & Process | Permalink | Comments (1)

Better Late Than Never

An attorney who had consented to disbarment in the District of Columbia away back in 2006 failed to notify the Pennsylvania Bar.

Somehow the authorities learned of the failure to report and he was disbarred as reciprocal discipline today in Pennsylvania.

A sharp-eyed reader notes that he gets no credit for time served. (Mike Frisch)

March 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Meth Conviction Draws Suspension

The Oklahoma Supreme Court sanctioned a convicted attorney

This case is a summary disciplinary proceeding against Respondent, John Knox Bounds, pursuant to Rule 7.1, 5 O.S. 2011, Ch. 1, App. 1-A. Respondent was convicted in Choctaw County of felony unlawful possession of a controlled substance, methamphetamine, and a misdemeanor of unlawful possession of drug paraphernalia. On November 21, 2017, Respondent received a two-year deferred sentence with probation on the felony conviction; and he was sentenced to imprisonment for 30 days on the misdemeanor conviction.

On December 11, 2017, we issued an Order of Interim Suspension directing Respondent to file a response no later than December 22, 2017 to show cause, if any, why this interim suspension should be set aside. Respondent did not file a timely response and he did not request a hearing. He thus waived his right to contest the interim suspension. There was no hearing before the Professional Responsibility Tribunal.

The Bar Association requested this Court to impose an order suspending Respondent for a period of two years and one day. Respondent sought leave to file a response out of time. He apologized to this Court for his untimely failure to respond and advised this Court that after his release from jail in early December, 2017, he was acutely ill for six weeks. Respondent agreed to a suspension that would continue until after the expiration of his deferred criminal sentence in November, 2019.


Respondent does not dispute the Bar Association's recommendation for a suspension period of two years and one day. Although Respondent has not had any prior incidents before this Court, we find his criminal convictions for possession of methamphetamine and possession of drug paraphernalia of considerable concern. We adopt the recommendation of the Bar Association for a suspension of a period of two years and one day from the date this opinion becomes final. State ex rel. Oklahoma Bar Ass'n. v. Soderstrom2013 OK 101, ¶ 8, 321 P.3d 159, 160.

In the event Respondent seeks reinstatement, it will be conditioned upon his continued sobriety, as it is essential to his rehabilitation and to the successful completion of his probation.

Vice Chief Judge Gurich would run the two year suspension from the date of the interim suspension.

10KTEN ABC reported on the arrest.

Choctaw County deputies say a baby was brought into the hospital "high," and now five people, including her mother, and a longtime local attorney are under arrest.

The sheriff in Hugo says this isn't the first similar case. They've had two kids bring meth into elementary school in Fort Towson and Hugo in the past month, but this time, he says it was worse and involved a baby.

Deputies say they found an 11-month-old girl at the hospital in Hugo acting strangely."She was really scratching at her face, at her ears, just very animated," says Sheriff's Office Chief Deputy Larry Hendrix.

The toddler tested positive for methamphetamine. "Whether she got it by them smoking the meth in a pipe and she may have ingested it, or if crawling about the floor she may have touched something and put it into her mouth," says Choctaw County Sheriff Terry Park.

"The doctor said that indeed she did have an allergic reaction and that it was a good thing that they brought her to the hospital because things could have turned out much worse," says Hendrix.

After further investigation, deputies served a warrant Saturday at a home in the 1300 block of South 2nd. "A majority of them were just there hanging out doing whatever they do at those houses," says Park.

Deputies say they found 57 grams of meth rolled up in a newspaper in the bedroom of defense attorney John Bounds, 64, who works juvenile cases and used to be a prosecutor.

NewsOK reported on the murder of the attorney's father in 1977. (Mike Frisch)

March 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Misconduct Uncovered

An Illinois Hearing Board has made the following findings and recommendation

Respondent was charged in a one-count complaint with misconduct arising out of his continued receipt of medical, dental and other insurance benefits through the employer of his former domestic partner, Donna Masterson. Although Respondent was previously living with Ms. Masterson and met the eligibility requirements to receive those benefits as her domestic partner, the couple's relationship ended in 2006 and Respondent was no longer eligible for coverage. Despite his written agreement to notify Ms. Masterson's employer of any such change in their relationship, Respondent failed to do so. Instead, he remained silent and continued to submit claims and receive insurance benefits until 2014, when her employer learned of the situation and terminated his coverage. Respondent was charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in constructive fraud, and committing the criminal offense of insurance fraud.

The Hearing Board found that Respondent engaged in conduct involving fraud and dishonesty and engaged in constructive fraud by failing to notify the employer of his former domestic partner that the couple's relationship had ended, and continuing to submit claims and accept health and other insurance benefits for eight years after he knew he was no longer eligible to receive those benefits. It also found that he committed the criminal offense of insurance fraud charged in the complaint during some, but not all, of this time.

After considering the nature of the misconduct and the aggravating and mitigating factors, the Hearing Board recommended that Respondent be suspended for six months.

The attorney was admitted in 1975 and had been without his own medical insurance

Between 1993 and 2004, Respondent's then-wife, Barbara Lewis (Barbara), was employed. Barbara's employer provided medical coverage for Barbara and Respondent through its group insurance plan. Respondent was eligible to receive this coverage because he was Barbara's spouse. (Jt. Stip. at par. 2; Tr. 190).

In 2002, Barbara filed a petition for dissolution of her marriage to Respondent. The couple's divorce was finalized several years later, on August 16, 2004. After that, Respondent was no longer eligible for medical insurance coverage through Barbara's insurance. (Jt. Stip. at par. 2; Tr. 190-91).

In 2002, while Barbara's petition for dissolution was pending, Respondent met and began a romantic relationship with Donna Masterson. In April 2003, Ms. Masterson and Respondent moved in together and began sharing a residence. They later moved into a home in Chicago, which was owned by Respondent. They continued to live together in Respondent's home until January of 2006. During that time, they were in a committed relationship similar to a marriage. (Jt. Stip. at par. 3; Tr. 186-87; Evid. Dep. at 13, 47-49).

In that relationship, the attorney was covered as Masterson's domestic partner but the relationship ended.


Between January 2006 and December 2014, IEA continued to cover Respondent for insurance purposes. Respondent had no other medical or dental insurance during this time, and he continued to submit claims, personally or through his providers. Respondent's use of IEA's insurance coverage during this period included submission of at least 92 claims for medical services, pharmacy services, and laboratory services on Respondent's behalf, which were paid by BCBS and totaled at least $16,000. Respondent also used IEA's insurance coverage for his dental insurance needs, resulting in the payment of an additional $3,597.40 in claims. (Jt. Stip. at pars. 8, 9; Tr. 109-10; Adm. Exs. 5, 5A, 6, 7).

Between January 2006 and December 2014, IEA incurred $112,514.76 in additional medical insurance premiums and the equivalent of $6,266.56 more in dental insurance premiums attributable to Respondent's coverage beyond what it would have incurred for a single plan for Ms. Masterson.3 The amount paid by IEA for dependent life insurance for Respondent during this time was $73.44. Respondent never paid any money towards IEA's group insurance premiums while he was covered under IEA's plan. (Jt. Stip. at par. 10; Tr. 108-111, 207-208; Adm. Ex. 7).

From 2006 to 2014, new insurance identification cards were mailed to Ms. Masterson in February 2011 and in December 2013. According to Ms. Knox, new insurance cards were sent out in December 2013 because the policy number changed after IEA implemented changes to the plan. During this time, all explanation of benefits statements (EOBs) were also sent to Ms. Masterson at the addresses she had on file with IEA. (Jt. Stip. at par. 8; Tr. 82-83, 262; Evid. Dep. at 18, 42-43, 73; Resp. Ex. 13).

Ms. Masterson admitted receiving new insurance cards after she and Respondent stopped living together, but denied giving any new cards to Respondent. She also acknowledged she received two cards each time, even though she had no other dependents. She further testified that she did not know if any EOBs for Respondent came to her new address after she moved out of Respondent's home. Because all the statements were addressed to her, she said she assumed they were hers and never opened any of them. (Evid. Dep. at 39, 73-75).

An investigation led to the termination of benefits.

Here, the attorney sought dismissal

Contrary to Respondent's position, Karavidas does not place the personal conduct of attorneys entirely outside the reach of the disciplinary process. Rather, it limits the imposition of profession discipline to such situations where the conduct at issue also violates one or more of the Rules. Therefore, while purely common law theories of wrongdoing are no longer viable as stand-alone charges, attorneys are still subject to discipline for personal misconduct which violates one or more of the Rules. Seee.g.In re Hamid, 2016PR00118, M.R. 28351 (Jan. 13, 2017) (attorney disbarred on consent following criminal conviction for mail fraud and currency structuring related to ownership of a rooftop baseball viewing business in violation of Rules 8.4(b) and 8.4(c)); In re Bless, 2013PR00122, M.R. 28275 (Nov. 21, 2016) (attorney suspended one year for dishonest conduct in connection with collection of disability benefits in violation of Rules 8.4(a)(4) (1990) and 8.4(c) (2010)); In re Crowley, 2016PR00063, M.R. 28285 (Nov. 21, 2016) (attorney disbarred on consent following criminal conviction for child pornography in violation of Rule 8.4(b)); In re Weiss, 08 CH 116, M.R. 27547 (Nov. 17, 2015) (attorney disbarred for sexual misconduct toward employees and incidents of public indecency and disorderly conduct in violation of Rule 8.4(a)(3) (1990) and 8.4(b) (2010)).

Unlike Karavidas, none of the disciplinary charges at issue here is based on purely common law theories of wrongdoing. Rather, consistent with the Court's direction in that case, each charge alleges a violation of a specific Rule of Professional Conduct. Therefore, Karavidas poses no bar to imposing discipline in this matter, as long as the Rule violations charged are established by clear and convincing evidence.

The committee found rule violations

Based upon the facts and circumstances in this case, we believe that a significant suspension is warranted, particularly in light of the magnitude of Respondent's misconduct and its lengthy duration. After considering applicable precedent along with the aggravating and mitigating factors established here, we conclude that a six-month suspension is appropriate and will serve the purposes of the disciplinary process in this case.

(Mike Frisch)

March 6, 2018 in Bar Discipline & Process | Permalink | Comments (1)

Monday, March 5, 2018

A Man's Best Friend

The Georgia Supreme Court disbarred an attorney for misconduct in three matters including his own divorce

The facts underlying SDBD No. 6891 stem from Levine’s actions in and related to his divorce case; Levine represented himself during most of the divorce proceedings. The divorce decree awarded various items of property, including the family dog, to Levine’s wife. Levine repeatedly refused to allow his ex-wife to retrieve these items and challenged the divorce decree in numerous collateral proceedings, most of which stemmed from Levine’s insistence that the dog was a therapy dog that he was entitled to have under the Americans with Disabilities Act. In pursuit of this unwavering belief, Levine filed meritless federal lawsuits against two judges who at different times presided over his divorce action; filed a discrimination complaint against one of the judges; sent a threatening letter to the two judges, with copies to numerous public figures, alleging that the judges had committed heinous crimes and were suffering from psychiatric disorders; filed meritless lawsuits and police complaints against his brother, whom Levine had asked to act on his behalf after Levine was incarcerated for contempt; filed meritless applications for criminal warrants against his ex-wife and others; and filed meritless applications for temporary protective orders and a separate civil action against his ex-wife. Levine was ultimately held in contempt in the divorce action and was incarcerated for three weeks when he continued to defy the court’s orders. To obtain his release, his lawyer negotiated a consent order, which included, at Levine’s mother’s request, a provision for a psychiatric examination.

Before the court

As we understand Levine’s position, he contends that the entry of the sanctions order was improper and that in the absence of a default, he is entitled to offer evidence to counter the factual allegations of the underlying grievances. We agree with the Review Panel, however, that the special master did not err in striking Levine’s pleadings and finding him in default for his willful failure to participate in discovery. Additionally, there was no requirement that the special master enter an order compelling Levine to respond to discovery prior to entering sanctions for his failure to engage in the discovery process...

In addition to the misconduct in the underlying matters, which amply supports disbarment, the record of the disciplinary proceedings and Levine’s filings in this Court strongly support the special master’s belief that Levine is not emotionally or mentally fit for the practice of law. Levine persistently ignored Bar Rules that provide an orderly process for contesting allegations of disciplinary violations and instead made multi-pronged, unauthorized attacks on the disciplinary process. For example, rather than responding to the Bar’s discovery, Levine filed Bar complaints against the Investigative Panel member assigned to investigate the grievances against him and against Bar counsel. After the special master issued the sanctions order finding Levine in default,  Levine filed a motion to stay discovery, a motion to dismiss the disciplinary proceedings, and a notice of appeal of the sanctions order, directed to the Georgia Court of Appeals because the appeal “stems from a trial court’s Order on a Motion.” After the special master issued his report and recommendation, Levine filed a motion to disqualify Bar counsel; a motion to recuse the special master based in large part on the special master’s prior service as a district attorney; and objections to the report and recommendation, attaching thousands of pages of exhibits that were never made a part of the disciplinary record. Before the Review Panel, Levine submitted voluminous pleadings, including a motion to dismiss and a motion to add his ex-wife, his brother, his mother, and one of the judges who presided over the divorce proceedings as parties in the disciplinary proceeding.

Disbarment was warranted for the attorney 's "extraordinary pattern of abuse" of the courts and the disciplinary process. (Mike Frisch)

March 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Domestic Violence Conviction Leads To Suspension

The Georgia Supreme Court imposed a suspension of at least two years of a former South Carolina legislator convicted of felony domestic violence.

In his petition, Corley admits that on December 26, 2016, he was arrested for domestic violence in Aiken County, South Carolina, where he, his wife, and their three children reside; he was subsequently indicted for domestic violence; and the indictment alleged that he caused physical harm or injury to his wife by beating her about the face, head, and body with a closed fist, while in the presence of a minor and holding a gun.

In mitigation, Corley contends that he has a documented history of mental health issues, which contributed in part to his out-of-character behavior in December 2016. He adds that his recognition and treatment of his mental health issues are mitigating factors. In particular, he states that in 2012, he was diagnosed with Attention Deficit Hyperactivity Disorder and depression and began receiving treatment; in January 2016, he began seeing a different doctor for issues related to his depression, which resulted in changes in his medication; and following the incident in December 2016, he sought help through the State Bar and was ultimately diagnosed as having Bipolar II disorder, resulting in a new daily prescription. He asserts that the doctor he sought treatment from through the State Bar informed him that the medication he was previously prescribed exacerbated the symptoms of his Bipolar II disorder and that, while certainly not an excuse for his conduct, his inability to have his mental health condition properly diagnosed and medicated was a contributing factor to his conduct in December 2016.

In addition, Corley asserts in mitigation that he is still married to and living with his wife, who was the victim of his domestic violence; they have known each other all of their lives, attending school and church together since a young age; his wife is a 38-year-old, stay-at-home mother of their three children; his oldest child is on the Autism Spectrum, with a form of Asperger’s Syndrome, and both parents spend a substantial amount of time taking care of him; and his wife and children rely solely upon him to make a living and
provide for their family. In addition, he asserts that his wife has forgiven him, that she is truly the innocent party in this case, and that she stands to continue to suffer financially as a result of his loss of income as a lawyer due to his conduct.

Corley further asserts in mitigation that prior to this incident, he had an unmarred public and professional reputation, including no prior disciplinary or criminal history, and that he served his community as a state legislator from 2014-2017 as the 84th District Representative in the South Carolina House of Representatives. He asserts that, although convicted of a felony with a potential sentence of incarceration for many years, he received a probated sentence; this isolated incident caused no harm to any of his clients, see In the Matter of Ortman, 289 Ga. 130, 131 (709 SE2d 784) (2011); he has made every effort to complete the terms and conditions of his probation, including paying all fines imposed, completing all community service, and currently being in the process of completing anger management courses; and based upon his compliance credits, he has been informed that he may have his probation terminated as early as August 16, 2020.


Although Corley was convicted of a serious and dangerous felony offense, having considered the petition for voluntary discipline and the additional pleadings by the parties, and in particular the mitigating factors discussed therein, we agree that a suspension for the greater of two years or the length of Corley’s probation is the appropriate sanction in this case. See Paine, 280 Ga. at 210. Accordingly, we hereby order that Christopher Aaron Corley is suspended from the practice of law in the State of Georgia for a period of time to end at the expiration of two years or at the termination of his criminal probation, whichever is longer, nunc pro tunc to the date of the filing of his petition for voluntary discipline on October 23, 2017. See Onipede, 288 Ga. at 157. Before being reinstated, Corley must demonstrate that he has completed his probation, that a board-certified and licensed mental health professional has certified that he is fit to return to the practice of law, and that he is continuing to receive mental health treatment by a board-certified and licensed mental health professional. When Corley believes that the conditions of his reinstatement have been met, he may submit a petition for reinstatement to the State Disciplinary Review Board, which will then issue a report and recommendation to this Court.

(Mike Frisch)

March 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Paradise For Bad Lawyers

The New Jersey Supreme Court imposed reciprocal - but lesser - discipline than the five-year Pennsylvania suspension of an attorney despite a trail of client-harming misconduct that would shock any decent lawyer.

The court here followed the recommendation of the Disciplinary Review Board and imposed a two-year suspension of an attorney who had badly mishandled a host of criminal and civil matters and evinced little understanding of his misconduct.

The DRB noted misconduct that in a child pornography case he defended

The Commonwealth stipulated to Psoras’ claim of ineffective assistance, citing respondent’s failure to provide notice of an alibi defense; his decision to play most of the consensual recordings (until the court stopped him; the Commonwealth had taken precautions with this evidence for fear that it was so prejudicial that it would cause a mistrial); and the numerous "in-chambers" discussions that the court was compelled to hold with respondent, during the trial, regarding his representation of Psoras. The Commonwealth "did not want to re-try the case."

On August 21, 2012, the trial court granted respondent’s petition for post-conviction relief, noting that Psoras'  petition "spoke for itself;" respondent had made so many errors at trial; the Commonwealth had stipulated to ineffective assistance of defense counsel; and a new plea agreement had already been negotiated between the Commonwealth and Psoras, whereby a maximum sentence of forty months’ incarceration (Psoras already had credit for twenty-two months) would be imposed.

As set forth above, if Psoras had accepted the plea offer the Commonwealth had extended on the date of jury selection, which he claimed respondent never presented to him, he would have received a time-served sentence of only nine months’ incarceration. Given the jury’s verdict, however, Psoras was exposed to a sentence of five to fifteen years’ incarceration, and lifetime Megan’s Law reporting requirements.

Another client was charged with molestation in two courts

Jury selection in the Mifflin County case occurred on July 2, 2012, and trial was scheduled to commence on July 17, 2012, at 8:30 a.m. On that date, respondent failed to appear for the trial. Instead, he contacted the District Attorney’s office, claiming that he had a flat tire near the Harrisburg exchange of the Pennsylvania Turnpike,I that he needed to rent a car, and that he would arrive in court in approximately two hours. The trial was temporarily recessed to accommodate respondent. At 11:19 a.m., when respondent had still not arrived, the trial court excused the jury and informed them that the trial would be rescheduled at the discretion of the Commonwealth.

There were numerous other cases that he had mishandled.

In the Pennsylvania bar case

The Supreme Court of Pennsylvania described respondent as "cavalier" and "indifferent" as to the disciplinary proceedings, noting that he "showed no remorse for the harm he brought upon his clients" and "failed to offer adequate explanation for his misconduct." In his answer to the Petition for Discipline filed by the PODC, respondent "admitted some factual allegations, but no rule violations." Richard Silverstein, respondent’s therapist, testified that he had been treating respondent for depression since March 2014, but offered "no opinion about [r]espondent’s depression causing or contributing to [his] misconduct."

The Supreme Court of Pennsylvania determined that respondent was guilty of violating the equivalents of the New Jersey RPCs cited above. The Court found that respondent’s violations "depict a pattern of misconduct beginning in March 2010 and continuing through 2014 . . . with multiple instances to sustain" each violation. The Court described respondent’s misconduct as "an extreme example incompetence by an attorney . . .of client neglect and [including] shoddy work product, lack of preparation and lack of professionalism."

The DRB found the misconduct in the criminal cases was "serious and pervasive." In another case, the attorney was "incompetent from the very inception of the representation." He was "wholly incompetent" in another matter.


In Boreman, respondent again displayed an utter lack of any understanding of his obligations. He undertook the representation of a  legally blind woman with hearing difficulties, and then proceeded to do nothing to advance her cause, despite having been paid a fee and despite multiple calls from his client and her parents. Rather, when respondent was finally backed into a corner by Boreman’s complaint to disciplinary and fee authorities, he blamed her for the delays in advancing her case, falsely stating that she had not paid the filing fees and had not responded to earlier letters.

Respondent, however, had been attempting to communicate with her at a wrong address, further evidence of his shoddiness. Moreover, respondent did not even attend the fee hearing that Boreman had traveled to at her parents’ expense, instead claiming that he had already mailed her a fee refund and, later, misrepresenting to the PODC that he had performed a substantial amount of work on her case.

There then follows the usual litany of New Jersey discipline cases that somehow lead the DRB to reject identical discipline in favor of a three-year reduction of the Pennsylvania sanction.

The inevitable conclusion is simply that New Jersey is far more tolerant of pervasive misconduct than its neighbor to the west. 

I fought a similar battle with the D.C. Board on Professional Responsibility that had sought to reduce a Florida disbarment to a suspension.

The court rejected the proposed reduction. 

In this reciprocal discipline matter from Florida, the Board on Professional Responsibility ("Board") recommends the court impose a two-year suspension on Respondent, with a requirement that he demonstrate fitness to practice as a condition of reinstatement, rather than disbarment, as was imposed by the Supreme Court of Florida. The Board argues that Respondent's misconduct in Florida, if committed here, would not subject him to disbarment in the District of Columbia, and, thus, the "substantially different discipline" exception to imposing identical discipline applies. Bar Counsel disagrees, urging the court to impose reciprocal disbarment. We agree with Bar Counsel that imposition of identical discipline is appropriate.

The attorney in Spann did not seek a reduced sanction while the attorney here did with the support of the Office of Attorney Ethics. (Mike Frisch)

March 5, 2018 in Bar Discipline & Process | Permalink | Comments (0)