Thursday, December 7, 2017

New York Raises Sanction In Reciprocal Discipline Matter For Domestic Violence Conviction

A New Jersey public censure for a criminal conviction got ratcheted up to reciprocal discipline of a six-month suspension by the New York Appellate Division for the Second Judicial Department

In determining an appropriate sanction, the [New Jersey] DRB considered the “gravity of the attack” on the respondent’s victim as established by color photographs of the pictures of the bruising on the victim’s back, wrist, arm, and leg, which were submitted to the Judge prior to sentencing, without objection. Additionally, the DRB noted that the Judge at sentencing remarked that “he had ‘looked at the obviously horrendous situation as it relates to the beating, essentially, that . . . the victim took.’” In mitigation, the DRB gave great weight to the passage of five years between the incident, which occurred on January 26, 2011, and the motion for final discipline filed by the OAE on December 23, 2015, as well as the four years since the respondent’s plea of guilty on November 17, 2011, that he promptly self-reported his conviction to the New Jersey authorities, his lack of prior ethics or criminal history, his successful completion of anger management treatment, and that he had not engaged in any additional acts of domestic violence. Based upon the foregoing, by a vote of 4 to 3, the DRB recommended a public censure.

But he had failed to advise New York of the conviction

In considering this matter, we note that the offense of “simple assault” in New Jersey is essentially similar to the New York class A misdemeanor of assault in the third degree, under Penal Law § 120.00(2), for which this Court has previously imposed discipline. We also note that the respondent promptly notified the New Jersey authorities of his conviction, which was a factor considered in mitigation in the New Jersey proceeding. However, the respondent failed to notify this Court of his conviction in 2011, as required by Judiciary Law § 90(4)(c), which we find is an aggravating factor in determining the appropriate measure of discipline. Based upon the misconduct underlying the order of the Supreme Court of New Jersey dated March 29, 2017, we find that the imposition of reciprocal discipline is warranted.

Notwithstanding the respondent’s request to limit any public discipline imposed to a censure, we conclude that the nature of his criminal conduct warrants his suspension from the practice of law for a period of six months.

(Mike Frisch)

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 6, 2017

Suspension For Accusations Against Judge And Ex-Wife

The Louisiana Supreme Court sanctioned an attorney by consent

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent filed two judicial complaints against a judge, as well as a petition for damages against the judge and respondent’s former wife, and that none of these filings had a factual basis. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 3.1, 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

The Times-Picayune had the story

New Orleans Municipal Judge Paul Sens was sleeping with the wife of a man who was facing domestic battery charges in Sens' court, a civil lawsuit filed Friday claims.

Attorney Phil C. Nugent filed a lawsuit seeking damages from his ex-wife, Rachel Bertrand Nugent and Sens, claiming that Rachel Nugent had been carrying on an affair with the married judge for months when the Nugents appeared in Sens's courtroom in a domestic battery case in April 2014.

The lawsuit says the case landed in Sens' court because another judge assigned to hear the case recused himself. Sens' clerk granted a continuance in the case, according to the lawsuit. Nugent claims his civil rights were violated because the judge was in an intimate relationship with Rachel Nugent.

Phil Nugent pleaded guilty to domestic battery charges in May 2014 in Judge Sean Early's court.

Rachel Nugent said Friday that she filed to divorce Philip Nugent in 2012, and didn't meet Sens until July 2014-- after both she and Sens had divorced their spouses-- and that Sens never presided over the the domestic battery case.

In a press release announcing the lawsuit, Phil Nugent dates the start of the affair as October 2013, but says the relationship was "first discovered" when Rachel Nugent received a bottle of perfume and an "elegant birthday card" in April 2014.

 "I've never been in Judge Sens' court on any matter, ever, in my life," she said. "I hope that (Nugent) is prepared to answer for all that he's saying, because I'm not going to tolerate any more foolishness."

The lawsuit draws Sens' name into another messy divorce story. The judge's estranged wife, Ann Sens, faces battery charges for allegedly hitting and biting her husband last May, the day after he filed to divorce her. Ann Sens has subsequently claimed that Sens physically and verbally abused her as well.

Nugent also claims Sens later used his political clout to talk New Orleans Police officers out of arresting Rachel Nugent in December 2014, when Phil Nugent called police to report his ex-wife had left the couple's three children unattended.

Rachel Nugent said her husband called police to report she had left the children alone often in the months after the couple separated, but she notes her estranged husband was living of the basement of their home, and that her 17-year-old daughter was watching her younger siblings.

It's not clear from the filing whether at the time of the hearing Nugent was aware Rachel Nugent was involved with Sens. The lawsuit states the telltale card was delivered to Rachel Nugent in April 2014.

 Rachel Nugent's birthday is April 16. A photograph of a card attached to the lawsuit is belated birthday card, signed "Inconsiderate Tard." Nugent's lawsuit said handwriting on the card has been identified as Sens' by "reliable sources."

In deposition testimony in his own divorce case, Sens said he had not had sex with anyone other than his wife prior to April 20, 2014, the lawsuit states. The Nugents' hearing was on April 23.

Sens did not immediately return calls from NOLA.com | The Times-Picayune.

The New Orleans Advocate had the story of domestic violence charges against the judge's ex-wife.

Louisiana Attorney General Jeff Landry’s office last month dropped all charges against the ex-wife of Orleans Parish Municipal Court Judge Paul Sens, who was accused of biting him on his arm during a fight the day after she filed for divorce in 2014.

Prosecutors had charged Ann Sens, 57, with domestic abuse battery and disturbing the peace after the May 2, 2014, scuffle inside the couple’s Lakeview home.

But after two years of legal twists and turns, including the recusal of Orleans Parish District Attorney Leon Cannizzaro, the case ended with a June 30 letter from the Attorney General’s Office dismissing the charges.

More from the Advocate here. Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Email To Commanding General Draws Reprimand

An attorney with the last name of Bridegroom has agreed to a reprimand for an email sent during the course of his pro bono representation of a relative of his significant other.

The Arizona Presiding Disciplinary Judge approved the result.

The parties agree Standard 6.23, Abuse of the Legal System applies to Mr. Bridegrooms’ violation of ER 4.4 and provides that reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. 

The case involved a bitter interstate custody dispute in which the attorney represented the husband. The wife had made serious accusations against the client. 

The wife was in the military. The misconduct involved an email sent to her commanding general and copied to her counsel.

As stipulated, Mr. Bridegroom negligently violated his duty to the legal system causing actual injury to the client and potential interference with a legal proceeding. His conduct in emailing the opposing party’s commanding officer interfered with the legal system.

The email made "serious allegations about Mother's integrity and honesty."

The bar did not contest that the email was sent in a good faith belief that the substantive contentions were accurate. (Mike Frisch)

 

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Denied For Debt Payment Issues

A series of Whereas clauses explain why the Maryland Court of Appeals has denied reinstatement to an attorney who was indefinitely suspended in 2014.

WHEREAS, Petitioner has existing financial obligations, i.e., debt in form of amounts owed to the Internal Revenue Service (IRS), the State of Maryland, and the United States Department of Education totaling in excess of $1 million;

WHEREAS, Petitioner has entered into payment plans with the IRS and the Comptroller of Maryland requiring monthly installment payments;

WHEREAS, Petitioner has an account with the United States Department of Education which is in default and has been placed with Coast Professional, Inc., a debt collection agency;

WHEREAS, as evidenced at oral argument, Petitioner has made only two payments of $2,500 to the IRS on February 10, 2017 and May 16, 2017, respectively, and one payment of $250 on May 18, 2017 to the United States Department of Education;

WHEREAS, Petitioner has advised the Court of Appeals of Maryland without further explanation that, with respect to employment, during the period of suspension, he considered various entrepreneurial activities;

WHEREAS, since the suspension on August 17, 2014, thirty (30) days after issuance of the Court of Appeals of Maryland's opinion, to the present, Petitioner has not sought and maintained consistent employment;

WHEREAS, the Court determines that Petitioner has not demonstrated the requisite character and competence to practice law for reinstatement...

Denied. (Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Three Suspended In Ohio

Three bar discipline decisiond issued by the Ohio Supreme Court are summarized by Dan Trevas

Three Ohio attorneys received partially stayed suspensions from the Ohio Supreme Court today that suspend their law practice for six months.

In three separate per curiam opinions, the Supreme Court suspended:

  • Thomas P. Maney Jr. of Columbus for one year with six months stayed.
  • Andrew R. Schuman of Bowling Green for one year with six months stayed.
  • Samuel R. Smith II of Cleveland for 18 months with 12 months stayed.

Maney Falsified Documents
In October 2013, Patrick Baker hired Maney to represent him in a collections proceeding. Maney answered the complaint and attended a pretrial hearing. However, he did not respond to the debt collector’s request for discovery or a subsequent motion for summary judgment. He also did not forward the documents to Baker. Having received no response to the motion, the trial court granted summary judgment for the creditor and issued a $3,062 judgment against Baker.

The trial court, not Maney, informed Baker of the decision. Baker was able to obtain a stay of the judgment and later filed for bankruptcy. Baker filed a grievance against Maney with the Office of Disciplinary Counsel.

Maney responded to a letter from the disciplinary counsel stating that he sent letters to Baker informing him of the status of the case, and claimed he had complied with the discovery requests. He also said he asked Baker on numerous occasions to provide information to respond to the discovery requests, and he provided the disciplinary counsel with five letters he claimed to have sent Baker.

In July 2015, the disciplinary counsel confronted Maney about his claims, noting that Baker was adamant his case had been neglected and the letters were addressed to a residence where Baker did not reside at during the time of his representation. At that point, Maney stated: “You got me.” He admitted he falsified the documents and lied during the investigation.

In April 2016, Maney testified that he realized he bungled Baker’s case by putting Baker’s file on a shelf and forgetting about it.

Parties Agree to Multiple Violations
The parties stipulated to the Board of Professional Conduct that Maney violated several rules governing the conduct of Ohio attorneys, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; failing to act with reasonable diligence on a client matter; failing to keep a client reasonably informed about the status of a case; and making a false statement in connection with a disciplinary matter. The board recommended to the Supreme Court that Maney be suspended for one year with six months stayed with conditions.

When imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The board found Maney acted with a dishonest or selfish motive and that he submitted false statements and evidence during the disciplinary process. It also found that Maney did not have any prior discipline, cooperated with the disciplinary process once a formal complaint was filed, and submitted a number of letters demonstrating his good character and competence as a lawyer.

Maney testified he had been drinking “way too much” and that his drinking contributed to the lies he told the disciplinary counsel. Two days after his disciplinary deposition in April 2016, which took place nearly nine months after he confessed to fabricating the letters, he sought help from the Ohio Lawyers Assistance Program (OLAP). He entered into a two-year OLAP contract.

Maney objected to the board’s proposed sanction and argued that the panel had improperly excluded a report from a treatment professional that may have qualified his substance-use disorder as a mitigating factor that would warrant a fully stayed suspension.  Therefore, he argued that the case should be remanded to the board for consideration of the excluded evidence.

The Court rejected his argument, finding that the panel had properly excluded the challenged evidence.

“Having reviewed the record evidence, we are not persuaded that the outcome of this case would be any different if Maney successfully demonstrated that his substance-use disorder qualified as an independent mitigating factor. In fact, we have previously imposed a one-year suspension with six months stayed on conditions on an attorney who filed several fraudulent documents in court—despite proof of that attorney’s recently diagnosed mitigating mental disorder,” the Court stated.

The Court imposed the suspension with six months stayed with the conditions that he remain in compliance with his OLAP contract, commit no further misconduct, and pay for the cost of the proceedings.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Justice William M. O’Neill dissented without an opinion.

2016-1494Disciplinary Counsel v. ManeySlip Opinion No. 2017-Ohio-8799.

Video camera icon View oral argument video of this case.

Schuman Collects Excessive Fee

In 2010, the Hancock County Juvenile Court appointed Schuman as a guardian ad litem (GAL) for a minor in a custody case. When he completed his service, he submitted a bill for $3,416 based on a rate of $80 per hour. The court ordered each parent to pay half the bill. The child’s father paid $150 of the deposit the court required, and the mother paid $350.

In 2013, the father had only paid $200 toward his remaining half of the fee, and the mother had paid nothing. Schuman filed an action in Findlay Municipal Court to collect his fee. In his complaint he sought “joint-and-several-liability” from the parents, meaning he could opt to seek the entire amount from just one of the parents. He also calculated his fee to be $6,405, which he reached by using a $150 rate for his GAL fee. His complaint did not mention the juvenile court had approved an $80-per-hour rate; that he already received $700 from the parents; and that the court ordered each to pay half.

The parents failed to respond to his complaint, and the court approved a default judgment in his favor. Part of the evidence he provided to support his case was an itemized bill that he had filed with the juvenile court demonstrating his GAL work, but he altered it in his municipal court submission by removing the line indicating the approved hourly rate was $80 and the total was $3,416.

Schuman initiated garnishment proceedings for a total of $7,273, which represented the judgment plus interest and costs. Because the mother was not employed, he garnished only the father’s wages and, by the end of 2014, he collected $7,217 from the father. The father lost his job, and Schuman attempted to garnish his bank account for the remaining amount, but there was not sufficient funds to garnish.

Lawyer Admits to Violations
The father filed a grievance against Schuman with the disciplinary counsel. During the disciplinary proceedings Schuman admitted that he used the judicial system to collect an illegal or clearly excessive fee. He also admitted that despite having multiple opportunities to notify the municipal court of the accurate juvenile court order, he continued to perpetrate a fraud on the court by claiming the father owed him additional money.

In June 2016, the disciplinary counsel charged him with misconduct, and the parties stipulated to the professional conduct board that Schuman charged an excessive fee, made a false statement to the a court, engaged in conduct that adversely reflects on a lawyer’s fitness to practice, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board recommended the one-year suspension with six months stayed. The board found Schuman acted with a selfish motive, committed multiple offenses, and harmed a vulnerable individual. The board also noted that Schuman had no prior disciplinary record; made full disclosure to the board; displayed a cooperative attitude during the disciplinary proceedings; and submitted evidence of his good character, skills as an attorney, and leadership in his community.

The board also found Schuman paid restitution to the father for the difference he charged above the approved rate as well as the interest and court costs.

Schuman objected to the recommended sanction, arguing that his suspension should be fully stayed because of the significant mitigating factors in the case, especially his character and reputation.

The Court rejected his argument, stating that when an attorney’s conduct involves dishonesty it usually warrants an actual suspension, and is “especially true when an attorney makes repeated and material false statements to a court.”

“Beyond Schuman’s lack of candor to the municipal court, he also abused the judicial system in order to bilk more money from a person than he was entitled to receive. Even considering his mitigating evidence, an actual suspension is appropriate for his ethical violations,” the opinion stated.

Justices O’Donnell, Kennedy, French, Fischer, and DeWine joined the opinion.

Chief Justice O’Connor and Justice O’Neill dissented, stating they would not stay any portion of the suspension.

2016-1834Disciplinary Counsel v. SchumanSlip Opinion No. 2017-Ohio-8800.

Video camera icon View oral argument video of this case.

Attorney Misses Criminal Case Appeal Deadline

In a unanimous opinion, the Court found Smith violated several attorney conduct rules based on his representation of Horace K. Vinson Jr.

Smith was hired by Vinson’s stepmother, Darlene Beesley, to file a petition for postconviction relief. After the petition was denied, Smith was contacted by Vinson’s mother, Terri Lamb, about appealing the decision. Lamb paid Smith $1,800 in January 2015 for the full amount of a flat fee Smith requested. He deposited the check in his personal bank account.

Smith did not file the appeal by the Feb. 2, 2015 deadline, and on Feb. 12, he asked the court if he could file a delayed appeal. He falsely told the court that he had been hired on Feb. 2. The court denied the motion and dismissed the appeal.

Smith told Lamb he would filed another postconviction relief petition. After many months of Smith not taking action on Vinson’s case, Vinson filed a grievance with the disciplinary counsel.

When the disciplinary counsel asked Smith about Vinson’s case, he provided a copy of a draft appellate briefthat he claimed he intended to file and a copy of a motion he had prepared for a new trial for Vinson. He also included an itemized billing statement, which indicated he researched and drafted the brief in the month before the Feb. 2 deadline, and that he drafted the motion for the new trial in October 2015.

Further inspection of the documents revealed they were created in May 2016, the day prior to Smith sending his written response to the disciplinary counsel. Smith then admitted he produced the documents to submit with his response.

The professional conduct board was presented a “consent-to-discipline” agreement between the parties, and Smith stipulated to most of the facts. He agreed that he violated several rules, including not acting with reasonable diligence in the representation of his client; knowingly making a false statement to a court; knowingly making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The parties stipulated that Smith acted with a dishonest or selfish motive, committed multiple offenses, submitted false evidence, made false statements, and engaged in deceptive practices during the disciplinary process. The board also found Smith had no prior disciplinary record, made a good faith effort to make restitution, displayed a cooperative attitude during the disciplinary proceedings, and provided evidence of good character and reputation.

The opinion noted that in a prior disciplinary case where an attorney neglected legal matters and fabricated materials during the disciplinary investigation, the Court had imposed an 18-month suspension with 12 months stayed.

The Court stayed the last 12 months of Smith’s suspension on the condition that he not commit further misconduct.

2017-0487Disciplinary Counsel v. SmithSlip Opinion No. 2017-Ohio-8821.

Ohio - nobody does it better when it comes to explaining and informing the public about bar discipline. (Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Uncharitable

The Oklahoma Supreme Court accepted the resignation of an attorney facing bar charges of three counts of conversion.

NewsOK reported

The former director of immigration and legal services of Catholic Charities of Oklahoma City has been accused of stealing money meant for clients' immigration fees.

Margarita I. Solis, 46, of Norman, was charged Wednesday with three felony counts of embezzlement.

Oklahoma County prosecutors allege Solis, while employed as an attorney by Catholic Charities, was in charge of assisting clients in obtaining permanent residency status and citizenship in the United States.

After receiving money orders from clients to pay immigration fees, Solis would make the orders payable to her and cash them, according to prosecutors.

She stole a total of $2,830 from clients in 2015 and 2016, prosecutors alleged.

In an interview about the allegations against Solis, Patrick Raglow, executive director of Catholic Charities of Oklahoma City, said he could not discuss Solis by name because of human resources obligations and rules. He said the employee was the subject of an internal investigation and no longer works at Catholic Charities, an affiliate of the Catholic Archdiocese of Oklahoma City.

“Like any other organization, we sometimes have persons in positions of trust and confidence who violate policies and who violate the trust and confidence of the agency. It happens, but our policies and procedures caught it relatively early. We flagged it,” Raglow said.

Raglow said clients pay federal immigration fees to Catholic Charities and that money is transferred to the federal government. In this instance, he said, those monetary payments were diverted.

Raglow said the agency's clients who were affected by the policy violations received prompt attention and were provided services. He also said the financial impact to the agency was minimal due to insurance.

“We reported it to the police, not out of any malice towards the individual, but out of respect for the donor dollars that we are privileged to receive,” Raglow said.

Solis could not be reached by phone Thursday. She hasn't been arrested, jailers said Thursday evening.

(Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Disregard Of Bar Duties No Reason To Impose Fitness Requirement

An attorney's near total disregard for the disciplinary process - after he was on clear notice of the bar complaint - was insufficient to warrant a fitness requirement, according to a District of Columbia Hearing Committee's recommendation of a 30 day suspension.

After a raft of efforts by Disciplinary Counsel to secure a response to the client's complaint

On March 4, 2016, Respondent sent an e-mail to Disciplinary Counsel attaching a letter of the same date. Mayfield Aff. ¶¶ 19-20; DX 11; DX 12. In the letter, Respondent admitted receiving $2,850 from his client—$2,400 for his legal services and $450 to cover the filing fee. DX 12 at 4. Respondent stated that he had sent the client a certified check for $3,091.78, which he described as “$2,850 + interest.” DX 12 at 5. Although Respondent stated he was attaching a copy of the check to his letter, he failed to do so. Mayfield Aff. ¶ 20-21; DX 12. Respondent did not provide his client file, his financial records, or any other documents responsive to the subpoena duces tecum...

On approximately March 30, 2016, Disciplinary Counsel called and spoke with Respondent by telephone. See DX 15. Respondent stated he would respond to the subpoena. Id. He did not do so, even after receiving a follow-up email from Disciplinary Counsel on April 6, 2016.

Thereafter, nothing.

He defaulted on the allegations and failed to participate at all.

As to fitness

Here, Respondent’s failure of cooperation has been limited to a single matter, namely Disciplinary Counsel’s investigation into the Robertson matter. Respondent’s failure to properly respond to that investigation causes the Committee concern. But the Committee cannot say that it has a serious doubt concerning Respondent’s fitness to practice law based on his failure to properly respond in this one matter. The Committee may well have had a different recommendation if Respondent had failed to properly respond in more than one matter or if there was otherwise evidence of a broader pattern of misconduct...

We see no evidence of deception by Respondent in this case. At most, there is evidence that he promised Disciplinary Counsel that he would provide additional responses that he did not actually fulfill. He offered excuses for his failure to answer the letters and subpoena. Whatever the merit of those excuses or lack thereof, we read them as efforts to explain why he had not complied. We do not read them as evidence of any belief that he was not required to respond or as evidence of an intent to deceive Disciplinary Counsel going forward.

We find that his failure to respond to Disciplinary Counsel’s investigation has not been sufficiently repetitive as to raise a serious doubt about his fitness to practice law.

The Committee believes that the underlying misconduct is serious. But rather than imposing a fitness requirement, the Committee recommends that Respondent be directed to complete CLE courses on law-practice management (three hours) and on professional responsibility/ethics (three hours) before he can be reinstated following his suspension.

This public protection-unfriendly result is the product of an unfortunate aspect of the decision of the Court of Appeals in In re Cater.

Many jurisdictions (New York, for instance) actually treat the flagrant disregard for the obligation to cooperate in a bar investigation as a disbarrable offense. 

In D.C. , it's a legitimate hearing strategy.

The case is In re Leslie Thompson. (Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 5, 2017

No Misconduct Found In Defense Counsel's Handling Of Evidence

A Louisiana Hearing Committee has rejected all charges brought against a criminal defense counsel in connection with the handling of a video that had captured the alleged assault that formed the basis of the case against his client.

The committee thus recommends that the matter be dismissed.

The client owned a store named Cash and Flash and had gotten into a fight with a customer. The police responded. 

It appeared to the responding police that there might be a video of the crime caught on the store's cameras. The client told them the equipment did not work.

The police got a warrant. They found nothing.

There was in fact such a tape and it did not help the client. Defense counsel saw the video and instructed the client to turn it over to the police and on the law of obstruction of justice. 

The attorney did not initially take possession of the evidence but later made a copy and provided it in discovery to the prosecutors. 

The client had failed to heed the advice and got charged and convicted of obstruction of justice. The video was used as evidence at the trial. 

The committee noted that the video had not been altered or destroyed. Further, there was no active warrant when counsel first learned of the existence of the video. (Mike Frisch)

December 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Stay (Just A Little Bit Longer)

A busy discipline day for the Ohio Supreme Court with a matter involving an attorney previously sanctioned

In 2012, we suspended him for one year for misconduct relating to a report from the United States Air Force Office of Special Investigations. That report found that while McNeal served in the Air Force Reserve Judge Advocate General Corps, he submitted false pay forms and used his military LexisNexis account for reasons related to his private law practice.

He admitted misconduct in a client matter

McNeal is a general practitioner and represents clients in a range of areas, including criminal defense, bankruptcy, domestic relations, and civil matters. In August 2014, Warren Lanier Sr. and Gwendolyn Lanier retained McNeal to investigate a water-drainage problem in their backyard, which the Laniers claimed continued even after the builder of their home, Maronda Homes, Inc., made repairs to the underground drainage system. The Laniers agreed to pay McNeal a $400 retainer over several installments, and he advised them that he would contact Maronda Homes...

During the disciplinary proceedings, McNeal stipulated that although he was aware that the Laniers had a home warranty and homeowners’ insurance, he did not contact those companies or attempt to determine whether any repairs would be covered under those policies. He further admitted that he never made contact with anyone at Maronda Homes with authority to discuss the Laniers’ problem, he never confirmed who was actually responsible for the drainage issue, and he never filed any complaint on the Laniers’ behalf. Prior to his disciplinary hearing, he refunded the $400 retainer to the Laniers.

Sanction

Earl Darren McNeal is suspended from the practice of law for one year, fully stayed on the conditions that he (1) complete six hours of continuing legal education on law-office management in each of the next three years, commencing with the date of this court’s disciplinary order, (2) pay the costs of these proceedings, and (3) engage in no further misconduct. If McNeal fails to comply with the conditions of the stay, the stay will be lifted, and he will serve the full one-year suspension.

Chief Justice O'Connor dissented and would stay six months of the suspension.

And a stayed suspension was imposed in an unrelated matter involving an attorney with prior discipline

In 1987, this court suspended him on an interim basis after receiving notice that a federal court had convicted him of perjury for falsely testifying at a bankruptcy hearing. In 1990, we suspended him for two years for the conduct that led to his conviction but granted him credit for time served under his interim suspension.

The misconduct involved a custody case.

In 2015, relator, disciplinary counsel, charged him with mishandling a client’s custody matter and making false statements during the disciplinary process. Derryberry entered into factual stipulations with relator but initially maintained that his conduct did not violate any of the professional-conduct rules. After a hearing, the Board of Professional Conduct found that Derryberry engaged in most of the charged misconduct and recommended that we suspend him for one year, with six months conditionally stayed. Derryberry objects to the board’s findings, arguing for a fully stayed suspension or public reprimand.

The court stated that his false statements in responding to the bar complaint were "troubling." (Mike Frisch)

December 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"This Law Does Not Apply To Me"

An Ohio Supreme Court case summary from Dan Trevas

The Ohio Supreme Court today decided that a Sidney man engaged in the unauthorized practice of law when he told a debt collector for the Ohio attorney general that he was the “authorized representative” of another person and demanded the collector pay his client $100,000.

A unanimous Supreme Court found Ned K. Schroeder engaged in the unauthorized practice of law, and fined him $2,500. The Court also imposed an injunction on Schroeder, warning him not to perform legal services unless he becomes authorized to practice law in Ohio.

The Court’s per curiam opinion noted that Schroeder did not respond to a complaint filed against him by the Office of Disciplinary Counsel, but instead sent the document back to the office with each page bearing the words “rejected,” and “this law does not apply to me.”

Schroeder Responds to Debt Collector
The opinion noted that Schroeder has never been admitted to practice law in Ohio and is not authorized by any other means to practice law in the state. In March 2015, the Revenue Group, a debt collection agency acting on behalf of the attorney general’s office, sent a letter to James Freytag attempting to collect $24,175 that Freytag allegedly owed.

Schroeder responded in writing to the Revenue Group as Freytag’s authorized representative in the dispute and requested validation of the debt. Schroeder not only made legal arguments in his letter, but also demanded additional documentation from the company about its operations. He also attached an invoice from Aaron Lee Hess Private Consulting Group, which shares his address, seeking $100,400 for the Revenue Group’s use of the name James Freytag.

The disciplinary counsel submitted its complaint to the Board on the Unauthorized Practice of Law. Schroeder did not respond to the complaint or to a motion by the disciplinary counsel for a default judgment. The board found Schroeder engaged in the unauthorized practice of law and recommended the Supreme Court block him from performing further legal services and fine him $2,500.

Court Agrees Conduct Was Unauthorized Practice
The Supreme Court, which regulates the practice of law in Ohio, stated its authority to “protect the public against incompetence, divided loyalties, and other attendant evils that are often associated with unskilled representation.”

The opinion noted that a non-attorney who attempts to negotiate legal claims on behalf of another or advises others of their legal rights and the terms and conditions for settling a claim is engaged in the unauthorized practice of law. Even if the individual is not compensated for the efforts, it is still a violation of the law.

The Court found the disciplinary counsel provided sufficient evidence to show Schroeder engaged in the unauthorized practice of law in his representation of Freytag.

Court Imposes Sanction
When imposing a sanction for someone engaged in the unauthorized practice of law, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The Court found that Schroeder’s refusal to answer the complaint and to participate in a scheduled prehearing telephone conference were aggravating factors along with his refusal to acknowledge that he provided legal services to Freytag.

“Although the record does not demonstrate that Schroeder’s conduct caused any financial harm to Freytag, the board found that his conduct served to undermine public confidence in the judicial system and risked delaying the resolution of Freytag’s case,” the opinion stated.

The board noted that Schroeder was warned that his conduct was the unauthorized practice of law, but the Court did not consider it an aggravating factor because he was warned after he was found to be assisting Freytag. The Court noted that failure to heed a warning is an aggravating factor if the warning is sent before a person engages in the illegal conduct.

The Court found no mitigating factors that would warrant reducing Schroeder’s penalty, and imposed the injunction and fine.

2017-0540Disciplinary Counsel v. SchroederSlip Opinion No. 2017-Ohio-8790.

December 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Disbarment For Misappropriation

Dan Trevas reports on the web page of the Ohio Supreme Court

The recently retired Niles city law director was suspended for two years, with one year stayed, by the Ohio Supreme Court today for professional misconduct associated with the private law practice he maintained in conjunction with his public office.

A unanimous Supreme Court found J. Terrence Dull violated several rules governing the conduct of Ohio attorneys, including misappropriating $37,000 in client funds that he was instructed to invest. The per curiam opinion noted that the presumed sanction for an attorney who misappropriates client funds is disbarment, but several mitigating factors weighed in favor of a suspension, including Dull making full restitution and paying interest on the funds to his former client. Dull retired from his law director post in early 2017.

Investment Money Diverted on Office Space
In 1996, Dull created an investment trust for his client, Joseph S. Scaglione, and Dull became the trustee of Scaglione’s trust. In 2011, Scaglione gave Dull two checks totaling $45,000 and instructed him to invest the money in a Vanguard fund. Instead of investing the money, Dull placed it in his client trust account.

Scaglione discovered from Vanguard statements that Dull did not make the additional investment, but because of market fluctuations at the time, he instructed Dull to hold the investment until market conditions improved.

In 2012, Scaglione asked Dull to provide him $8,000 from the investment trust, which Dull did by writing a check from the client trust account. In 2015 Scaglione requested $27,000 from the trust to buy a new car, but Dull informed him he no longer had any of Scaglione’s money. Dull told Scaglione that he used the remaining $37,000 he had been holding in the investment trust.

Scaglione terminated Dull as the trustee and filed a grievance against him with the Trumbull County Bar Association.

At a disciplinary proceeding, Dull indicated that he had moved into new office space in 2010 and the operating costs were more than he anticipated. He admitted that between 2011 and 2013, he periodically withdrew Scaglione’s money to cover his expenses, hoping that he would make enough money to refund the client trust account before Scaglione requested more withdrawals.

Dull Admits Wrongdoing
In 2016, the bar association filed charges against Dull with the Board of Professional Conduct.

Dull admitted he failed to properly maintain client trust account records, and failed to make the required disclosure to clients that he lacked malpractice insurance.

Dull was able to collect the resources to refund Scaglione’s $37,000 and Dull paid him an additional $11,500, which was to make up for lost interest and opportunity from the failure to invest the money when Dull originally received it.

The board found Dull violated the rule that requires a lawyer to inform a client if the lawyer does not maintain malpractice insurance and to obtain the client’s written acknowledgment of that notice. He also was found to have engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; to have failed to keep client funds in an account separate from the lawyer’s own property; and to have failed to maintain proper records of client funds.

The board recommended the Supreme Court suspend Dull for one year, with six month stayed, with conditions.

Court Imposes Tougher Sanction
When imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The board found Dull had a dishonest or selfish motive and engaged in a pattern of misconduct. The board described Scaglione as Dull’s longtime, trusting friend, and that Dull’s misconduct was directed at a vulnerable victim.

The board also found that Dull had no prior disciplinary record during his 40-year legal career, made full restitution, cooperated with the disciplinary proceedings, and presented evidence of good character and reputation.

The board examined numerous cases of other attorneys disciplined for misappropriation and determined that the cases where attorneys were disbarred or indefinitely suspended generally involved more serious misconduct, including prior disciplinary records; failure to make restitution; and failure to cooperate in the disciplinary process.

The opinion stated that the board concluded an actual suspension was warranted for Dull because it would protect the public and give him time to be educated about the proper use of a client trust account.

While the board recommended the one-year suspension, the Court found his behavior warranted a longer time out from practice. The Court wrote that at the time of his disciplinary hearing, which was seven months after the bar association filed its complaint, Dull had not yet requested his clients sign the acknowledgments stating he lacked malpractice insurance. He also admitted at that time he had not started to retain the required trust account records.

“Under these circumstances, a two-year suspension with the second year conditionally stayed is more appropriate. This sanction takes into account the significant mitigating factors in this case, gives Dull the necessary time to become more knowledgeable about the professional-conduct rules relevant to private practice, and reinforces our long-held position that the continuing public confidence in the judicial system and the bar requires that strict discipline be imposed in misappropriation cases,” the opinion stated.

The second year of the suspension was stayed on the conditions that he complete a continuing legal education course regarding client trust accounts and that he commit no further misconduct.

2017-0490Trumbull Cty. Bar Assn. v. DullSlip Opinion No. 2017-Ohio-8774.

(Mike Frisch)

December 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Dowd Report

As a former but longtime disciplinary prosecutor in the District of Columbia, I am watching the calls for the disbarment of John Dowd with amusement.

I am no fan of Dowd, who I view as the perfect lawyer for Trump in style and temperament.

But anyone who seriously thinks that a 50 year member of the D.C. Bar with no prior record of discipline faces disbarment for breaching confidentiality or for authoring a tweet that ends up appearing to harm the client's interests (1) knows nothing about bar discipline; and (2) knows less than nothing about bar discipline in the District of Columbia.

Read this and weep from a case where the attorney had filed a motion to withdraw as counsel that grossly violated the duty of confidentiality 

The broad commitment of the lawyer to respect confidences reposed in him is his talisman.   Touching the very soul of lawyering, it rests upon a “privilege” which is that of the client, not that of the lawyer.   Inaccurately described as the “lawyer's privilege against testifying,” the privilege of clients to bind their lawyers to secrecy is universally honored and enforced as productive of social values more important than the search for truth.   Canon 4 is designed to preserve the trust of the client in his lawyer, without which the practice of law, whatever else it might become, would cease to be a profession...

 We have no doubt that Gonzalez revealed his client's secrets, and an appropriate (if relatively modest) sanction is called for.   Accordingly, Bar Counsel is hereby directed to issue an informal admonition to Gonzalez.

ESPN Baseball reported in 1999 on a bar complaint against Dowd filed by Major League Baseball

Dowd revealed that the commissioner's office filed a complaint against him with the District of Columbia bar about 1½ years ago in an attempt to keep him from speaking publicly about the Rose case.

"They said I was breaching confidences," Dowd said. "It was summarily dismissed. It's a rough crowd there these days in baseball."

Robert DuPuy, baseball's executive vice president of administration and chief legal officer, distanced the sport from Dowd's views.

"We do not solicit his comments nor do we endorse them," he said. "We would prefer that Mr. Dowd refrain from commenting on his representation of the office of the commissioner. He is no longer engaged by this office and he has completed his work. We don't look for his guidance in this whatsoever.

Another bar complaint against Dowd filed on behalf of George Steinbrenner was reported by the New York Times

Besides periodic comments from the owner that he was denied due process, that the commissioner's investigation was conducted unfairly and that the "truth will come out," the Steinbrenner forces have waged a legal assault and, major league officials believe, a whispering campaign against Vincent and John Dowd, the Washington lawyer who led the investigation of Steinbrenner.

Two of the Yankees' minority partners filed a lawsuit in Cleveland in August trying to block Steinbrenner's removal as managing partner, the Yankees' chief operating officer has sued Vincent and Dowd, and Steinbrenner has sued a court reporter for allegedly tampering with transcripts of the owner's deposition before Dowd. Furthermore, Paul Curran, Steinbrenner's lawyer, has filed a complaint against Dowd with the Washington bar association [sic].

The D.C. Bar web page shows that he was admitted in June 1967 (when admission was governed by the United States District Court) and has no record of discipline. (Mike Frisch)

December 5, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Monday, December 4, 2017

Accused Attorney Admits Videotaping Colleague "In States Of Undress"

An answer filed to a complaint of the Illinois Administrator admits that the accused attorney secretly videotaped a colleague that he had recruited to his firm

5. Between June and September 2016, on at least 20 different occasions, when Respondent knew that J.T. would be changing clothes in his office, Respondent placed a usb video flash drive in a hidden location in J.T.'s office withoutJ.T.'s knowledge or consent Using the usb flash drive, Respondent videotaped J.T. in various states of undress while J.T. was changing clothes. On each of these occasions, Respondent subsequently retrieved the device, and watched the videos for his own sexual and emotional gratification. Whenever Respondent knew J.T. had a reason to be changing clothes in his office,he would then replace the usb video flash drive into J.T.'s office.

ANSWER: Respondent admits the allegations contained in paragraph 5

Also admitted

On September 27, 2016, J.T. found the hidden camera USB video flash drive located in the inbox in his office behind his desk.

On September 27, 2016, J.T. placed the device in his computer to view its contents. The next day, J.T.located videos sequenced 11-28 on the usb video flash drive. The videos were typically a half-hour long showing J.T. in states of undress and changing his clothes.

When confronted, he resigned and pleaded guilty to a criminal charge

On May 4, 2017, Respondent pled guilty to one count of unauthorized videotaping, reduced from a felony charge to a misdemeanor.

(Mike Frisch)

December 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Moment Of Truth

A stayed six-month suspension is summarized on the web page of the Massachusetts Board of Bar Overseers.

After his 2004 Connecticut admission

In July 2004, the respondent took the Massachusetts’ bar examination and in November 2004, he was notified by the BBE that he had passed the examination.

He failed to disclose a alcohol-related driving arrest that occurred in Mashpee prior to his swearing in to Massachusetts.

Then

In December 2011, the respondent applied for admission to the Supreme Court of New York and as a result from an inquiry of the New York admissions office, disclosed the Mashpee arrest. On July 9, 2012, the respondent self-reported the above described Mashpee arrest and conviction in writing to the BBE and the Board of Bar Overseers and on July 12, 2012, the BBE referred the matter to bar counsel.

At some point, the respondent applied for admission to the New Jersey bar, disclosing the Mashpee arrest and the conviction and a lengthy and exhaustive vetting process ensued. The proceedings disclosed a long history of legal difficulties involving alcohol when the respondent was young. On March 12, 2014, a New Jersey panel on character and fitness recommended admission, subject to four enumerated conditions. The recommended conditions were then appealed in part by the respondent. On December 7, 2016 the Supreme Court of New Jersey adopted the recommendations of the panel and certified the respondent for admission, subject to conditions to be in effect for two years including abstinence, attendance at one AA or LCL meeting per month, continuing treatment with a therapist and a requirement that he not engage in solo practice without associating with experienced counsel.

 Agreed sanction

The parties also agreed that the respondent be suspended for six months, with the suspension stayed for two years, subject to the conditions for admission imposed by the New Jersey Supreme Court.

December 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

To Suspend Or Not to Suspend

An oral argument preview on the web page of the Ohio Supreme Court

Disciplinary Counsel v. Andrew Mahlon Engel, Case no. 2017-1087
Montgomery County

A Dayton area lawyer who has twice been sanctioned by the Ohio Supreme Court for violating the rules governing attorneys faces a two-year suspension, with 18 months stayed, for failing to respond to a client matter and other conduct violations.

The Board of Professional Conduct recommends the suspension of Andrew M. Engel of Centerville, who was publicly reprimanded by the Supreme Court in 2001, and suspended for two years, with six months stayed, in 2004. The board is recommending Engel now be forced to cease practicing law for six months with the possibility of having to sit out two years if he doesn’t meet certain conditions.

Engel counters that he provided the board sufficient evidence to show he was suffering from a mental health disability at the time of his misconduct and that he is successfully undergoing treatment for the condition. He argues that his behavior warrants a fully stayed two-year suspension as long as he meets the conditions recommended by the board.

Engel Neglects Client’s Debt Settlement Case
In April 2015 Dianne Shelton hired Engel to represent her in a consumer debt matter. She paid Engel a $500 retainer, and he obtained information from Shelton and two municipal courts in order to pursue a settlementwith Shelton’s creditor. Shelton had explained to Engel that the debt was preventing her and her husband from financing the purchase of a home.

About two weeks after the initial meeting, Engel sent a letter to the lawyer for the creditor. More than a month later, Shelton called Engel seeking information about the status of her case and was unable to reach him. In mid-June Engel promised to call the opposing attorney to follow up, and then sent a follow up letter to the creditor’s lawyer. Between June and mid-August, Shelton repeatedly tried to reach Engel about the status of her case, and Engel didn’t respond to phone calls or emails. By mid-August, Engel hadn’t spoken directly to the opposing attorney, and Shelton field a grievance against Engel with the Office of Disciplinary Counsel.

In September 2015, Engel responded to Shelton by email and sent another follow up letter to the opposing attorney. At the time he wasn’t aware of the grievance Shelton filed against him. In October, the disciplinary counsel sent a letter of inquiry to Engel, and Engel responded later that month. In November, he told the disciplinary counsel he would contact Shelton and ask if she wanted him to continue to represent her or return her fees.

But Engel didn’t respond to follow up contacts from Shelton or the disciplinary counsel until February 2016. She agreed to allow Engel to continue to represent her, but after not hearing from him for several weeks, she settled her debt herself in March 2016. After being informed of the settlement, Engel promised to refund Shelton the “balance” of her $500 retainer. In May 2016, Engel sent Shelton $50. The disciplinary counsel continued to request documentation from Engel who appeared for a June 2016 deposition. Weeks after the deposition, Engel sent a letter to Shelton apologizing for her failure to respond to her, and refunded the remaining $450 of her retainer.

A three-member panel of the board found Engel violated several rules of professional conduct while representing Shelton, including a requirement that he act with diligence to resolve her legal matter, and failing to keep her reasonably informed about the status of her case. The board also found that he failed to respond to information requests from the disciplinary counsel and violated his duty to cooperate with the disciplinary proceeding.

Board Considers Sanction
The board considers several issues before recommending a sanction, including aggravating circumstances that can increase a penalty and mitigating factors that can lessen it. The board noted that Engel has prior disciplinary offenses, committed multiple rules violations, and didn’t cooperate in the investigative stage of the disciplinary process.

It also found that he didn’t act with a dishonest or selfish motive, eventually made full disclosure to the board and cooperated in the proceedings, provided proof of good character and reputation, and presented proof of a disorder that affected his representation of Shelton.

The panel heard from several witnesses including psychologist Marsha K. Weston, who testified that Engel was depressed and anxious when he first started to see her in August 2016. Weston prescribed medication and said Engel responded well to it and can competently practice law.

Engel testified that he was insufficiently attentive to Shelton’s case and didn’t realize he was suffering from depression and anxiety that was affecting his practice. He admitted he should have been more responsive and that this type of misconduct will not happen again. He said he contracted with the Ohio Lawyers Assistance Program (OLAP) for treatment assistance and hired a new office associate to focus on client communications. He also entered into a mentoring relationship with attorney Jonathan Hollingsworth, the former Ohio State Bar Association president, who has advised Engel.

The disciplinary counsel recommended a two-year suspension with six months stayed. The board adopted the recommendation, stating it was consistent with sanctions imposed on lawyers with similar infractions. It recommended to the Supreme Court that the 18-month stay be conditioned on Engel continuing to receive counseling from Weston or another qualified health care provider; that he adhere to recommendations from his primary care physician, and stay in compliance with his OLAP contract. In addition, the board suggested that once Engel is reinstated to practicing law, he should be placed under two years of monitored probation.

Engel Seeks Fully Stayed Suspension
Engel notes the parties and the board stipulated to nearly all the facts as well as the aggravating and mitigating circumstances in the case, except for one. He argues the hearing panel did not “expressly” adopt the position that Engel’s mental disorder contributed to his misconduct or credit him for being sufficiently treated for the disorder. He also maintains the board didn’t consider his participation in OLAP, his attorney mentoring with Hollingsworth, or the changes to his legal practice as mitigating factors.

Engel cites several cases, including the Court’s recent 2017 Ashtabula County Bar Association v. Brown as examples where lawyers similarly situated to him have received fully stayed suspension on certain grounds. Engel noted that he had to part with his initial attorney handling his disciplinary matter after serious disagreements. He objects to the panel’s refusal to allow him to supplement his closing arguments with additional information, including the impact of the Brown case, which was decided after closing arguments were submitted. He maintains the failure to consider the cases he cited along without crediting him for his contributions to the profession by teaching for the Supreme Court’s Judicial College and representing a population that is underserved in Ohio led the board to erroneously suggest a sentence that prevents him from practicing law.

Disciplinary Counsel Says Suspension Warranted
The disciplinary counsel observes that this is the third time Engel has been found to have neglected a client and the second time he has failed to cooperate in a disciplinary matter, and insists that this behavior warrants an actual suspension from practicing law. The disciplinary counsel notes that Engel’s behavior caused a delay in Shelton’s ability to purchase a home and left her to settle her debt on her own.

The disciplinary counsel compares the mental disability claims of one of Engel’s past disciplinary matters with the current case. In Engel’s 2004 case, he didn’t receive mitigation credit for his mental disability because he didn’t present evidence that the depression contributed to his misconduct, the disciplinary counsel explains. The 2004 sanction specified his reinstatement was conditioned on providing a statement from a qualified mental health professional that he was could ethically and competently practice law, which he did provide.

Similarly to 2004, the disciplinary counsel contends in the Shelton matter, Engel presented evidence of a mental health disability, but no evidence that the disorder prevented him from following the professional conduct rules. The disciplinary counsel notes Engel didn’t seek treatment until after he received an official board complaint about his behavior.

The disciplinary counsel maintains that Weston, Engel’s treating psychologist, wouldn’t conclude whether Engel was competent to practice law when he sought treatment, and she could not explain why Engel neglected this client and apparently did not neglect other clients at the same time. Nevertheless, the disciplinary counsel argues the board did give Engel some mitigation credit for the disability.

Absent significant mitigation credit, Engel’s record and failure to cooperate would warrant an indefinite suspension, the disciplinary counsel argues. While the board may not have stated explicitly how it factored his mental health treatment into its finding, the recommended lower sanction of a two-year suspension, rather than an indefinite suspension, indicates Engel was given mitigation credit, the disciplinary counsel maintains.

The disciplinary counsel supports the proposed sanction recommended by the board, and argues that it’s consistent with prior sanctions handed down to attorneys displaying similar patterns of misconduct. The disciplinary counsel also rejects Engel’s arguments that he was unfairly prevented from providing supplemental material after closing arguments and suggests that Engel’s own inaction to promptly notify the board of his request for more time led to its exclusion.

 Dan Trevas

(Mike Frisch)

December 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, December 3, 2017

No Longer Licensed As Massage Therapist But Still A Lawyer

A bar discipline summary from the web page of the Massachusetts Board of Bar Overseers describes conduct that led to a stayed three-month suspension

On January 11, 2016, the respondent, Gary R. Edwards, who was admitted to the bar of the Commonwealth on December 15, 1998, admitted in the Plymouth District Court to sufficient facts to one count of indecent assault and battery on a person fourteen or over, a felony, in violation of M.G.L. c. 265, § 13H. The matter was continued without a finding until January 11, 2017, with probationary terms. The circumstances supporting the admission to sufficient facts were as follows.

The respondent was employed as a massage therapist. During a massage, he asked a female customer, age 34, if she wanted her chest massaged. When she said yes, the respondent massaged her breasts and touched her nipples. She immediately told him to stop, and he did. The customer allowed the massage to continue but reported the incident to the owner of the facility later that day.

In mitigation, the respondent’s criminal conduct did not involve the practice of law. The respondent ceased his indecent assault and apologized when the victim objected. The respondent complied with the terms of his probation, including a mental health evaluation and counseling, as a result of which the charge was dismissed at the end of the continuance period. The respondent has surrendered his license as a Massage Therapist Practitioner.

The sanction is stayed for 12 months. (Mike Frisch)

December 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Challenged

The California State Bar Court Hearing Department approved a stipulated sanction of a two-year suspension with all but 30 days stayed and probation for a Challenging Another to a Fight infraction

On August 8, 2016, the Los Angeles County District Attorney filed a criminal complaint in the Los Angeles County Superior Court, case no. 6CJ 12203, charging respondent with one count of violating Penal Code section 242 [Battery], a misdemeanor, one count of violating Penal Code section 415(1) [Challenging Another to a Fight], an infraction, one count of violating Penal Code section 415(2) [Causing Disturbance to Another by Loud and Unreasonable Noise], a misdemeanor and one count of violating Penal Code section 647(1) [Under Influence of Liquor in Public Place], a misdemeanor.

On April 13, 2017, respondent pled no contest to one count of violating Penal Code section 242 [Battery], a misdemeanor and one count of violating of Penal Code section 415(1) [Challenging Another to a Fight], an infraction. On that date, the court accepted respondent’s plea, found him guilty, and dismissed the remaining two counts.

On the night in question, police were called

When the officers arrived, they saw respondent and an adult male, (“victim”) lying on the street in front of a restaurant with respondent on top of the victim.

The victim told the officers that there was a dispute inside the restaurant and respondent was verbally attacking another waiter. Respondent was escorted out of the restaurant.

As respondent left the restaurant, he punched the victim in the face, which caused a small laceration and swelling to the victim’s face.

The attorney has a frecord of prior discipline for misconduct related to the practice of law. (Mike Frisch)

December 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 1, 2017

Murder Most Disbarrable

An attorney convicted of three murders should be disbarred, according to a recommendation of the California State Bar Court Hearing Department

On March 15, 1984, respondent was arrested on a warrant pursuant to a complaint filed by the Orange County District Attorney, in in Orange County Superior Court, case no. A4CF00251, which alleged that in or about May 1980 respondent killed Richard Rizzone, Rena Miley and Thomas Monahan in Westminster, California...

On January 3, 1990, a jury trial commenced, which ended in a mistrial on November 6, 1990.

On November 24, 1993, a second jury trial commenced, which concluded on March 15, 1994. At the conclusion of trial, the court issued jury instructions for first degree murder, and for second degree murder with express malice.

On March 25, 1994, a jury returned a verdict, finding respondent guilty of three counts of violating Penal Code section 187 [murder — second degree] for the killings of the Richard Rizzone, Rena Miley and Thomas Monahan.

On April 13, 1994, the Review Department of the State Bar Court issued an order finding that respondent had been convicted of a crime involving moral turpitude and placing respondent on an interim suspension while the instant discipline case is pending.

On June 29, 1994, the Orange County Superior Court sentenced respondent to a term of 46 years to life in state prison.

The conviction was affirmed and the matter was sent to the State Bar Hearing Department  in 2002.

Sanction

The killing of a human being with the presence of a manifest deliberate intention to unlawfully to take away life constitutes moral turpitude, as defined by Lesansky. Such actions are indisputably a serious breach duty owed to the victim, and society, and is a flagrant disrespect for the law and societal norms. Therefore, respondent's conviction, on its face, justifies disbarment. Moreover, the sanction of disbarment is necessary to fulfil the purposes of attorney discipline, including the maintenance of the highest professional standards and the preservation of the public’s confidence in the legal profession.

It took 15 years from the referral to this recommendation.

The Orange County Register reported in 2013.

Everyone in Orange County law enforcement during the 1970s and ’80s knew about Tom Maniscalco – and that was before he was charged with three counts of murder.

He was one of the founders of the Hessians motorcycle gang who rode Harleys by day and went to law school by night in the 1960s.

After he passed the bar exam, Maniscalco defended his biker buddies in Orange County courts by day while running a meth and counterfeiting ring by night, according to court records.

And then he became a suspect in the May 1980 deaths of two former motorcycle gang members and the 19-year-old girlfriend of one of the victims. His case became one of the 60 featured in “Notorious OC,” an e-book published in 2012 by the Register about the most notorious criminal cases in the county’s history.

The verdict was reported by the Los Angeles Times.

I prosecuted the bar discipline case stemming from Ruthann Aron's conviction for solicitation of the murder of her husband and an attorney.

After full briefing and argument before the D.C. Court of Appeals on the question of moral turpitude, she consented to disbarment.

Bethesda Magainzine Beat had a 2016 update on the Aron case. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Dangers Of Cigarettes

The Kansas Supreme Court imposed an indefinite suspension for a criminal conviction.

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Harry Louis Najim, of Wichita, an attorney admitted to the practice of law in Kansas in 1972. Pursuant to a plea agreement, respondent admitted that he provided legal services to an undercover agent who was engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. The undercover agent paid respondent $16,500 in cash. But respondent did not notify his law firm so it could report the payment to the Financial Crimes Enforcement Network despite his knowing a report of that amount was required by law.

The panel below proposed a three-year suspension

Respondent appeals the finding that he violated KRPC 8.4(b) and the recommended three-year suspension. We hold that respondent violated KRPC 8.4(b) and impose an indefinite suspension that is retroactive to his temporary suspension imposed on May 18, 2015...

Respondent disputes whether he committed a crime at all. But a record of the criminal judgment was admitted into evidence during the disciplinary hearing. And under Supreme Court Rule 202 (2017 Kan. S. Ct. R. 233), the criminal judgment is conclusive evidence in a disciplinary proceeding of the crime's commission.

Justice Stegell concurred but 

I take the unusual step of writing separately in a disciplinary matter because I am troubled by the hearing panel's apparent disregard of respondent's due process rights. See State v. Caenen, 235 Kan. 451, 458-59, 681 P.2d 639 (1984) (recognizing that due process protections apply in attorney discipline proceedings); In re Daugherty, 277 Kan. 257, 261, 83 P.3d 789 (2004) (same). During respondent's sentencing in the underlying criminal case, the court made a finding that "Mr. Najim did know the funds were from . . . unlawful activity." Panel Majority Report, at ¶ 13. The panel then relied on Supreme Court Rule 202 (2017 Kan. S. Ct. R. 233) to relieve the Disciplinary Administrator of his burden to demonstrate this fact and instead shifted the burden to respondent to "disprove the findings made by the sentencing court." Panel Majority Report, at ¶ 14.

But on its face Rule 202 plainly and clearly applies only to civil judgments. This finding was not a civil judgment, as everyone acknowledges. Instead, the panel reasoned that because the criminal sentencing court had made its findings under a "preponderance of the evidence" standard, Rule 202 could apply. But while this may make some sense as a matter of policy, it is not what the rule says. In fact, the panel chose to ignore the plain meaning of the rule so as to short-cut the disciplinary process—a process that requires the government to prove its allegations before it deprives an individual of a protected property interest. There is no justification for this when a respondent's license and livelihood hangs in the balance.

Moreover, the panel's creative application of our rule was unnecessary to its conclusions and recommendations. Even without this aggravating factor—which our decision assumes away—the evidence below supports our finding that respondent violated Rule 8.4; and the nature of his conduct justifies the discipline meted out. For this reason alone, I concur with and join fully the decision of the court.

Oral argument video linked here. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Mitigation Sufficient For Suspension Rather Than Revocation

The Iowa Supreme Court imposed a suspension rather than the proposed license revocation of the Attorney Disciplinary Board

Jason Springer was admitted to practice law in Iowa in 2002. He resides in Madrid and is well regarded by other lawyers in the profession. He is active in a number of community activities, including volunteering for the Madrid Fire Department and coaching youth basketball and baseball. He is also active in his church. He suffered from alcohol abuse prior to seeking treatment in 2015. Prior to this proceeding, Springer practiced real estate and personal injury law and had no disciplinary history. His license to practice law, however, was suspended on November 9, 2016, in a separate action based on the conduct giving rise to this proceeding.

The conduct responsible for this proceeding relates back to 2008 when Springer assisted two clients in organizing a business that negotiated the sale of homes for financially distressed owners in lieu of foreclosure. His clients would first negotiate a price for the house that the lender would accept in settlement of the outstanding balance of the mortgage. Once the sale price was fixed, the clients would purchase the home for the short sale amount. Then, often the same day or a few days later, the clients would sell the home to a prearranged third party for a profit.

Springer assisted his clients in the two-part transaction. First, Springer and his office staff would perform the work needed to close the sale of the house between the parties to the foreclosure and his clients. This work included completing a HUD–1 form, disbursing the funds, and collecting a fee. Second, Springer and his office staff would perform the services necessary to close the second sale of the home to the third party. Again, this work included completing a HUD–1 form, disbursing the funds, and collecting a fee. From 2009 to 2011, Springer assisted his clients in approximately forty such transactions.

In seven of the transactions, however, Springer’s clients were without sufficient funds to purchase the homes secured by the delinquent mortgages. During such transactions, to complete the first sale, Springer would falsely represent to the lender on the HUD–1 form that his clients paid cash at the short sale closing. The clients would present Springer with a check made payable to the lender for the purchase price, which Springer would hold to deposit until the second sale was closed. Springer would then disburse the sale proceeds from
the second sale to his clients by depositing the proceeds into their account. Once the funds were secured, he would deposit the check representing the sale price in the first transaction drawn on the account from his clients to the mortgage lender.

The false documents prepared by Springer and his staff in the course of the transaction concealed from the lender that Springer’s clients did not have sufficient funds to purchase the home. The documents further concealed that the clients used the proceeds from the second sale to finance the first sale.

In 2011, Springer learned while attending a continuing legal education seminar that the short sale transactions violated federal law. He stopped performing the services for his clients a short time later.

In 2015, Springer was convicted in federal court of seven counts of bank fraud for knowingly executing a scheme to defraud a financial institution in violation of 18 U.S.C. § 1344(1) (2012). He was ultimately sentenced to four months in prison, placed on probation for two years, and fined in the amount of $15,000. He served the sentence in 2016 and 2017.

Mitigation prevented revocation

Overall, the sanction in this case falls between the revocation imposed in Nelsen and Engelmann and the six-month suspension imposed in Bieber and Wheeler. While Springer’s conduct more resembles the conduct in Nelsen and Engelmann, it is apparent that Springer lacked the specific intent to convert funds. Considering all the circumstances, we conclude Springer’s license to practice law in Iowa should be suspended for a period of two years.

Note the improvement of the Iowa Supreme Court's web page that now provides access to briefs and oral argument, if held. (Mike Frisch)

December 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)