May 07, 2013
Plethora Of Threats Get Attorney Suspended
The web page of the North Carolina state Bar reports on an interim suspension:
The chair of the DHC entered an interim suspension of the law license of Hickory lawyer David Shawn Clark. The chair found that Clark pled guilty in Catawba County Superior Court to two counts of misdemeanor communicating threats and one count of common law obstruction of justice; engaged in a sexual relationship with a client; asked the client to lie and deny the sexual relationship so Clark could defend against an alienation of affection lawsuit threatened by the client’s husband; when the client refused to lie, threatened her with losing custody of her children; threatened to kill his legal secretary after she refused to lie about her knowledge of the sexual relationship between Clark and his client; made false statements in the defamation lawsuit he filed against his client; revealed his client’s confidential information; and made false statements to the Grievance Committee.
New Rules Proposed In Pennsylvania
The Pennsylvania Disciplinary Board has proposed a number of amendments to the Rules of Professional Conduct:
The amendments focus on changes in detection of conflicts of interest, outsourcing,technology and client development, as well as technology and confidentiality. Comments on the proposed changes will be due May 16, 2013.
The [Notice of Proposed Rulemaking], running more than 12,000 words, is far too extensive to summarize in the scope of this newsletter. It is well worth the time of any practicing Pennsylvania attorney to look through the NPR and familiarize him or herself with the proposed changes, and to submit comments if appropriate.
May 06, 2013
A Louisiana Hearing Committee has recommended disbarment of an attorney who engaged in numerous acts of misconduct.
Among the many lapses was a comviction in federal court for aggravated identity theft from eleven clients or former employees. The attorney used financial information to fraudulently obtain credit cards in the name of a deceased client.
The committee cited several mitigating factors that persuaded them not to propose permanent disbarment.
One factor was that, three years after bar admission in 1995 and as a solo practicioner, the attorney "tried her first jury trial and won a large verdict of just over a million dollars in an age discrimination case...The verdict was appealed to the third circuit and confirmed. The case went up to the Supreme Court and was dismissed. Respondent was devastated by the result."
The attorney also gambled and used cocaine to deal with an extremely stressful family situation. (Mike Frisch)
High-Flying Attorney Disbarred
The tough-on-crime Maryland Court of Appeals has disbarred an attorney who misrepresented facts to a tribunal and administrative law judge "in order to secure a postponement" and failed to correct the misrepresentations at a later hearing in the matter.
He had implied that he was at the hospital for epilepsy treatment; in fact, he was attending the birth of his child.
The attorney also commingled personal and client money in two trust accounts and failed to properly supervise a non-lawyer employee (who also was the mother of the aforementioned child).
He had previously been reprimanded "for using marijuana on an airplane, for transporting drug paraphenalia on the flight, and for making statements that could be construed by others as a claim by him to be a police officer." (Mike Frisch)
The Right Path
A former Fulton County Commission Charman who was convicted in 2003 of a federal false statement charge was reinstated to practice by the Georgia Supreme Court.
The ptitioner was disbarred in 2005 as a result of the conviction.
Since the offense, the ptitioner owned his own business and worked as Director of Loss Prevention at Waffle House, Inc. His civil rights were restored in 2012.
The court concluded that "since his conviction [he] has shown remorse and strived to act with integrity and responsibility through his hard work, his devotion to his family, and as a volunteer in his community." (Mike Frisch)
Not For Pleasure Or Amusement
The Georgia Supreme Court has accepted a peition for voluntary discipline and imposed a twelve-month suspension of an attorney who misappropriated client funds.
The attorney had used entrusted funds to keep his firm operating in the face of financial troubles. He had hoped to restore the funds.
According to the court, the attorney "notes that his misappropriation was not for his own pleasure or amusement, but rather to pay amounts owed to the creditors and employees of his law firm."
The attorney had been treated for years for major depression and bipolar disorder. He had an otherwise unblemished professional and civic reputation.
His reinstatement is condition on certification of a mental health professional that he is fit to practice law. (Mike Frisch)
May 03, 2013
A Theft By Any Other Name
On review of a hearing panel order of a 45-day suspension, the Michigan Attorney Discipline Board found that the sanction was "insufficient" and imposed disbarment.
The attorney had converted $9,200.00 in fees paid by clients ans owed to his firm. Then, "[w]hen confronted about the first instance discovered by his employer, he lied and said it was an isolated incident. He reiterated this false statement a few days later amd ultimately admitted the truth only when the firm discovered additional instances of his conversion."
The board concluded that
The conduct here may be described as intentional misappropriation, knowing conversion, or simply as theft. However it is described, there is a great deal of consistency in the decisions of this Board with respect to the appropriate sanctions for this fumdamentally dishonest conduct. Whether the funds are client funds or third party funds, the presumptive sanction is disbarment.
The Iowa Supreme Court has imposed a suspension of three months of an attorney who, among other trust account problems, "paid himself numerous legal fees before they were earned and often transferred funds from the trust account into the operating account without notice to the client and without an accompanying accounting of the fee."
The attorney's trust account issues were reported by his bookkeeper. He was suspended on an interim basis for approximately seven months.
The court majority rejected reprimand as a sanction in light of the attorney's "utter disregard" for trust account obligations but found
[The attorney] recently implemented corrective measures and now operates his trust account in conformance with the required rules. He maintains confidence in his current staff and has not had problems with his trust account since his reinstatement. No client suffered harm from his actions, and no clients filed a complaint against him for his conduct. [He] is nearing retirement and has performed a significant amount of pro bono legal services...
Justice Wiggins concluded that the attorney converted client funds and should have his license revoked. (Mike Frisch)
Attorney Suspended For Failure To Comply With Earlier Court Order
The Wisconsin Supreme Court has suspended an attorney who had failed to comply with orders in a prior disciplinary case regarding his treatment for alcoholism.
Among other things, the attorney had refused to execute releases to provide access to medical records.
Attorney LeSieur has been convicted on three occasions of operating a motor vehicle while intoxicated and was arrested on suspicion of that offense on two other occasions that did not result in valid convictions. Attorney LeSieur's record indicates a potential problem with alcohol and other addictive or mood-altering medications. He claimed during the initial disciplinary proceeding that he has not consumed alcohol since 2006. If that is accurate, he is to be commended. His refraining from alcohol indicates some recognition that he has problems in this area that require affirmative steps. On the other hand, his actions since the release of LeSieur I indicate repeated attempts to thwart the monitoring of his condition by the OLR and its designee. One who is truly eager to overcome any problems with alcohol or mood-altering medications would welcome assistance, but Attorney LeSieur has frustrated the efforts of this court, the referee, and WisLAP to ensure that he remains on a productive path. This is a troubling pattern.
We simply cannot tolerate such disobedience of our orders. Accordingly, we will suspend Attorney LeSieur's license until he complies with the orders of this court. To leave no room for doubt or argument, we will clarify the nature of the release Attorney LeSieur must now sign and we will expressly require him to undergo an independent medical examination by Dr. Thomas Rowell or another addiction psychiatrist or other treatment provider \designated by the OLR. Given Attorney LeSieur's failure to comply thus far, the conditions that we imposed in LeSieur I and those we add in this opinion shall be extended to remain in effect for a period of two years from the date on which Attorney LeSieur's license is reinstated.
The attorney had contended that the release violated his HIPAA rights. (Mike Frisch)
May 02, 2013
Former Magisterial Judge Disbarred
The Pennsylvania Supreme Court has disbarred a former magisterial judge convicted of endangering a child's welfare and corruption of a minor.
The victim was the judge's 12 year old stepdaughter.
When her mother was away, she went into the judge's bedroom because she was "scared." He "rubbed her 'butt' and vaginal area on bare skin for about ten minutes."
The evidence at trial "included three secretly recorded telephone conversation between the Respondent and [the stepdaughter] wherein [he] apologized to [her] for inappropriate touching."
The judge had been on temporary suspension since March 2012.
Philly.com had this report on the trial. (Mike Frisch)
Lawyers Serving Lawyers
We reported on a March 28 decision of the District of Columbia Court of Appeals that held prospectively that, when an attorney promptly learns of a dispute over funds disbursed as legal fees, the attorney must return the funds to escrow pending resolution of the dispute.
Well, such a result is far too protective of client interests for the Board on Lawyer Absolution (oops, I meant the Board on Professional Responsibility) to tolerate.
The BPR now seeks rehearing a rehearing or rehearing en banc.
...the division's decision potentially holds legal fees legitimately disbursed from trust pursuant to a written retainer or other writing hostage to the after-the-fact frivolous objections of a disgruntled client, and gives the client unprecedented leverage to negotiate a discount - particularly if the lawyer believes he may be facing a charge of misappropriation for having spent the fee. Apart from the obvious unfairness in such a result, the ruling poses practical problems for the administration of a law office, and particularly for solo and small practicioners, who may need the funds to meet office or living expenses.
Read the court's opinion and you will see how little the board's "parade of horribles" relates to the actual facts and the division's holding:
We hold that substantial evidence supported the Hearing Committee's finding that [the attorney] was aware of a dispute prior to disbursing [the client's] settlement award...
We are unconvinced by the Board's reasoning that, once disbursed, funds can "no longer [be] client or protected funds." If disbursing funds from a client trust account automatically removed the funds from the protection of Rule 1.15, an attorney could easily circumvent the protections afforded by this rule by disbursing putatively earned fees without ever providing clients an opportunity to dispute the fee...We cannot accept an interpretation of the rule that would so easily allow an attorney to circumvent its protections.
It's hard to believe that the board has the audacity to attack this reasoning and result.
Also, please excuse my skepticism that the board really cares about solo and small firm lawyers.
Will these people ever think about protecting people when lawyers are entrusted with their funds?
I won't hold my breath. (Mike Frisch)
Who Let the Dog Die?
In the sixth disciplinary proceeding involving an attorney, the Wisconsin Supreme Court imposed a suspension of two years.
One case involved frivolous litigation over the euthanization of a dog. Dogs in Wisconsin are personal property and the canine at issue had been given to the ex-wife on divorce from the plaintiff:
T.H. had formerly been married to S.H., and they had owned a Labrador retriever during their marriage. After T.H. moved out of the family residence and while the divorce proceeding was pending, the dog resided with S.H. and the couple's son, but not with T.H. S.H. and T.H. entered into a marital settlement agreement (MSA), which was ultimately incorporated into the judgment of divorce. In the MSA, T.H. expressly agreed that S.H. would be awarded, inter alia, all "personal belongings and other personal property currently in her possession at the time of the final hearing," and that T.H. was divested of any right or legal interest in any of the property awarded to S.H. This MSA was never modified. The dog was therefore awarded to S.H. in the divorce judgment.
S.H. had the dog euthanized at a veterinary hospital in August 2000. T.H. learned of this fact a short time later. He then retained Attorney Eisenberg regarding a potential claim.
Despite his knowledge of the legal characterization of pet animals as personal property and of the terms of the MSA and the divorce judgment, which awarded all personal property in her possession to S.H., Attorney Eisenberg filed a large-claim civil action on T.H.'s behalf on the theory that T.H. was the lawful owner of the dog. Although the referee found that the initial belief in Attorney Eisenberg's office was that S.H. had been responsible, with or without her mother's assistance, for the euthanization of the dog, Attorney Eisenberg did not name S.H. as a defendant. Apparently for strategic reasons Attorney Eisenberg named B.S., who was S.H.'s mother and T.H.'s former mother-in-law, as the sole defendant.
The court noted the referee's finding:
The referee described his view of the way in which the lawsuit was structured as follows: "[Attorney] Eisenberg constructed a compelling narrative for the case: vicious, vindictive ex-mother-in-law has the perfectly healthy dog belonging to her ex-son-in-law euthanized. The only problem with the narrative was that it was untrue."
The other count involved fee-splitting allegations that the attorney had falsely denied. (Mike Frisch)
The web page of the Ohio Supreme Court reported yesterday:
The Supreme Court of Ohio today indefinitely suspended the law license of Dayton attorney Marc N. Greenberg for engaging in sexually explicit online conversations with undercover police agents whom he believed to be 12 and 13-year-old girls, and using his computer webcam to transmit obscene video and still photos to those persons.
Greenberg’s license has been under an interim suspension since November 2010, when the court received notice of his convictions on federal felony counts of possessing child pornography and transferring obscene material to minors.
In today’s 5-2 per curiam (not authored by a single justice) opinion, the court adopted findings by the Board of Commissioners on Grievances & Discipline that Greenberg’s conduct violated the state disciplinary rules that prohibit an attorney from engaging in illegal conduct that reflects adversely on his honesty or trustworthiness, and engaging in conduct that adversely reflects on the lawyer’s fitness to practice law.
In setting the appropriate sanction for his misconduct as an indefinite suspension from practice with no credit for the time served under interim suspension, the court noted the aggravating factors that Greenberg acted with a selfish motive, committed multiple offenses over a period of several months and intended to prey on vulnerable children. It also noted mitigating factors, including Greenberg’s cooperation with the disciplinary process and acknowledgement of the wrongfulness of his actions, his entry into ongoing therapy for the diagnosed mental disorder of paraphilia, the absence of a prior disciplinary record, and the severe sanctions and penalties imposed for his criminal violations, which have included financial ruin, public humiliation, and service of a 19-month federal prison term.
The court’s majority opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, and Judith L. French.
Justices Terrence O’Donnell and William M. O’Neill dissented. Justice O’Donnell indicated that he would disbar Greenberg. Justice O’Neill indicated that he would grant credit against today’s indefinite suspension for the time Greenberg’s license has been under an interim suspension.
Over a period of several months, the attorney made contact with three undercover police officers posing as underage girls. He "used his computer's webcam to stream to the agents video and pictures of his exposed penis and of himself masturbating."
The Dayton Daily News reports that the attorney had been a girl's basketball coach.
The court's opinion is linked here. (MIke Frisch)
May 01, 2013
Can Attorney Be Trusted With Female Clients?
A North Carolina attorney who was suspended for four years in February 2012 for having sex with clients has sought a stay that would permit him to resume practice pursuant to the order that allows him to seek a stay after one year.
In his petition, he states that he has been evaluated by two psychologists and "does not suffer from any condition creating a predisposition for inappropriate sexual behavior and...does not suffer from any mental, psychological, or emotional condition that significantly impairs his professional judgment, performance or competence in the representation of female clients."
The State Bar opposes the stay, pointing to aspects of the reports filed by the attorney that "belie" the conclusion that his representation of future female clients is not impaired. The State Bar also alleges that he did not properly wind down his practice after the suspension order.
Our earlier report on the charges is linked here. (Mike Frisch)
A Louisiana Hearing Committee has recommended dismissal of ethics charges brought against an attorney for representation of a client in a post-conviction proceeding.
The attorney made three court appearences on the client's behalf but was replaced as counsel prior to the denial of post-conviction relief.
The attorney's records were destroyed in Hurricane Katrina, so the committee relied upon testimony of her usual practices in finding that the charges of lack of diligence, failure to communicate and to return unearned fees were not proven by clear and convincing evidence.
Has any disaster ever been cited in as many disciplinary matters as Hurricane Katrina? (Mike Frisch)
April 30, 2013
Is An Addiction To Lying A Mitigating Factor?
The New York Appellate for the First Judicial Department has imposed a nine-month suspension for the following misconduct:
On September 1, 2009, respondent's client asked him to commence a civil action. At that time, respondent did not file the action. To persuade his client that everything was proceeding well, respondent created a fraudulent stipulation of settlement with a fictional index number, caption and settlement amount. Respondent also randomly chose an opposing counsel's name from an attorney directory and forged his signature at the bottom of the document. Respondent gave the false document to his client, misrepresenting that he had settled the matter. He did not file the document with the court. On November 21, 2009, before his client discovered the deception, respondent filed a valid complaint in Small Claims court.
The other attorney eventually learned that respondent had forged his name on the fraudulent stipulation. Once his dishonesty was discovered, respondent wrote letters to his client and the attorney. In the letter to his client, respondent claimed that he suffered from an "addiction [to] lying" that he analogized to an addiction to drugs or alcohol. In the letter to the attorney, he apologized for his actions, offering the explanation that he "did not know how to properly file an action on behalf of [his] client, and felt this would buy [him] time to properly file same." He also stated he had come to the conclusion that he had trouble telling the truth, "be it either personal or business." Further, as he later testified, although he has no other disciplinary history, respondent had previously received two letters of caution from the Second Department and had received sanctions for neglecting to file orders in three Family Court matters. The Presiding Justice of the Second Department had also decertified him from Nassau County's 18-b Panel.
As to sanction:
Here, where respondent not only neglected a legal matter and then created a fictitious document with a forged signature of an innocent attorney in order to conceal the neglect from his client, but also failed to mitigate his troubling history of sanctions, warnings and decertification, we find that a nine-month suspension is appropriate and strikes a balance with the case law...
The answer to the question posed in the title, mercifully, is "no." The attorney must pass the ethics portion of the bar exam and address his "pathological" behavior to get reinstated. (Mike Frisch)
Agreed Sanction Of Probation In Maricopa County Discipline Case
A deputy county attorney for Maricopa County, Arizona has agreed with Independent Bar Counsel John Gleason on a sanction of two-year of probation with conditions.
The misconduct related to the attorney's involvement in a RICO case filed in federal district court on behalf of Sheriff Joe Arpaio and others.
Three other members of his office are the subject of related charges.
The attorney did not become "meaningfully involved" in the RICO case until after it was filed. He recognized that the case was devoid of merit and urged his subordinate to investigate the matter further.
He admitted charges of pursuing meritless litigation and failure to supervise. (Mike Frisch)
With All Deliberate Sloth
The sharp-eyed reader may be aware that I have had occasion in the past to criticize the District of Columbia bar disciplinary system for its interminable delay in bringing charges of misconduct to resolution.
As one far wiser than I (former Bar Counsel Len Becker) observed, no participant in the system is free from blame.
But one of the worst cases of inexplicable delay is now wending its way through the system. The lion's share of blame can only be attributed to a hearing committee and the Board on Professional Responsibility's office for its abject failure to motivate the committee to action.
The case is In re Wayne Rohde, Bar Docket No. 2005- D347.
The attorney was convicted of felony leaving the scene of an accident in Virginia. The incident that took place on August 10, 2005.
On December 5, 2005, the D.C. Court of Appeals entered an order declining to suspend the attorney for the conviction, noting his claim that the incident was the result of an alcoholic blackout. The court referred the matter for investigation and prosecution.
Bar Counsel filed charges of moral turpitude and other misconduct. Three days hearings were held ending on January 15, 2008. Post-hearing briefing was completed on August 28, 2008.
The matter has now been pending before a hearing committee for over five years since the hearing was completed. Nothwithstanding a felony conviction, the attorney has not been subject to either sanction or vindication of the charges.
And if the hearing committee ever actually deigns to do its job, the report still has to be reviewed by the Board and the Court.
Wonder if anyone responsible for the operation of the D.C. bar disciplinary system cares. (Mike Frisch)
Second Sex Case Gets License Revoked
The Wisconsin Supreme Court has revoked the license of attorney based on two counts of misconduct.
One count involved the fact that he had no escrow account and gave a client's advanced fee to another attorney to hold. The fee was eventually returned.
The other count:
According to the criminal complaint filed against him, Attorney Engl engaged in e-mail communication with a female, who explicitly informed him that she was 15 years old. Their communications included discussions about meeting in person for the purpose of having sexual intercourse. On November 19, 2011, Attorney Engl drove to the girl's workplace and picked her up. Attorney Engl engaged in sexual contact with the girl and had her perform oral sex on him.
There was prior similar misconduct:
The misconduct at issue in that proceeding was Attorney Engl's conviction for one count of using a computer to facilitate a child sex crime. Specifically, while working at a law firm, Attorney Engl used his computer to enter an Internet chat room and to communicate his interest in having sexual intercourse with an individual he believed to be a 14-year-old girl, but who was actually a police detective posing as a teenage girl. When Attorney Engl subsequently went to the location where he had arranged to meet the girl, he was arrested by the police.
He was reprimanded in the earlier case. (Mike Frisch)
The Wisconsin Supreme Court has ordered a 30-month suspension with reinstatement on conditions in a case involving 14 criminal convictions from 2008 to 2011 and the attorney's failure to report them.
The convictions were on charges of driving under the influence (two misdemeanors and two felonies), resisting or obstructing an officer (three counts), misdemeanor hit and run (two counts), misdemeanor cocaine possession, bail jumping, disorderly conduct and operating while revoked, felony endangering safety, and retail theft.
The attorney failed to cooperate with the disciplinary investigation.
The court found the reckless endangerment conviction "particularly troublesome" and noted that the attorney "had a habitual disregard for the law and her obligations as an attorney."
The reinstatement conditions require recovery from substance abuse. (Mike Frisch)