Tuesday, October 18, 2016
Respondent, who is originally from India, came to the United States in 1987. Although he had already completed a law degree in India, he earned a second law degree from Tulane University. He was admitted to the practice of law in Louisiana in 1988 and to the practice of law in Colorado in 1992.
Respondent legally remained in the United States under a work visa until December 1995, when his visa expired. He did not obtain a new work visa and, thus, was in the country illegally. Nevertheless, he continued to practice law in Colorado, representing clients in immigration matters. In 1999, respondent married a United States citizen.
It was not until June 2009, after immigration authorities discovered he was in the United States illegally, that respondent obtained official authorization to work. At that time, he also applied for permanent residency, but he did not receive permanent residency status until May 2012.
In the meantime, on July 21, 2009, the Supreme Court of Colorado suspended respondent from the practice of law for one year and one day for practicing law while unlawfully present in the United States. The Supreme Court of Colorado also banned him from applying for reinstatement until he obtained permanent lawful immigration status and employment authorization. This court imposed reciprocal discipline on December 18, 2009. In re: Kanwal, 09-2192 (La. 12/18/09), 24 So. 3d 189.
In 2011, while he was still suspended from the practice of law in Colorado, respondent assisted a previous client with an immigration matter; he failed to inform the client that he was suspended from the practice of law. Another attorney working for the client discovered respondent was under suspension and reported him to the Colorado attorney disciplinary authorities.
As it was in Colorado, so shall it be in Louisiana.
Our coverage of the initial suspension is linked here. (Mike Frisch)
An applicant for bar admission has been conditionally admitted to practice by the Louisiana Supreme Court
Petitioner successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) subsequently advised petitioner that he would not be certified for admission as a result of his failure to update his bar application to disclose that approximately one month earlier, he had been arrested and charged with second-offense DWI.1 The Committee also cited three other criminal charges against petitioner, all alcohol-related.
Petitioner then applied to this court for admission to the practice of law. We remanded the matter to the Committee on Bar Admissions Panel on Character and Fitness to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending petitioner be admitted to the practice of law. Neither petitioner nor the Committee objected to this recommendation.
The conditions are
Petitioner shall continue to comply with the terms of the recovery agreement he signed with the Judges and Lawyers Assistance Program (“JLAP”) on May 2, 2016.
The period of this conditional admission shall coincide with the period of petitioner’s JLAP agreement. However, petitioner’s conditional admission status shall not be terminated until this court so orders.
Petitioner shall authorize the Executive Director of JLAP to report any violations of the JLAP agreement to the Office of Disciplinary Counsel (“ODC”).
Upon the expiration of the term of petitioner’s JLAP agreement, the Executive Director of JLAP shall forward to the ODC (a) a final report of petitioner’s progress and participation in JLAP, and (b) a recommendation regarding the need for petitioner’s continued participation in JLAP.
Following receipt of the report from JLAP, the ODC shall file a report in this court in which it shall recommend whether the conditional admission shall be allowed to terminate or shall be extended.
Petitioner shall cooperate with JLAP and the ODC, and shall comply with any and all requirements imposed upon him by JLAP and the ODC.
Should petitioner fail to make a good faith effort to satisfy these conditions, or should he commit any misconduct during the period of probation, his conditional right to practice may be terminated or he may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement.
A Tri-County Hearing Panel of the Michigan Attorney Discipline Board has issued findings in the case brought against a former Assistant Attorney General concluding that some of the charged misconduct had been proven
In 2010, Christopher Armstrong was elected president of the student council at the University of Michigan in Ann Arbor. The student council does not make University policy, but it works with, reports to, and advises the University on a range of issues.
Respondent Andrew Shirvell, a 2002 graduate of the University, worked as an Assistant Attorney General for the State of Michigan. In early 2010, respondent learned via an online newspaper report of Armstrong's election and also learned that Armstrong was openly gay. Respondent began posting on his Facebook page about Armstrong, whom he had never met. Among other comments, respondent called Armstrong "dangerous" and a "radical homosexual activist" and a "major-league fanatic who is obsessed with imposing the radical homosexual agenda on the student body." Respondent also set up a Facebook "fan page," entitled "Michigan Alumni and Others Against Chris Armstrong's Radical MSA Agenda," which purported to "expos[e] the real Chris Armstrong." Respondent urged others, via Facebook and email, to join the "pro-family" group in order to "fight against Satan's representative." Respondent took to his personal Facebook page to express outrage when Facebook deleted his "fan page" about Armstrong. Respondent wrote: "I will not be SilENCED by the likes of Armstrong. You're going down fruity-pebbles." Respondent's self-proclaimed "outrage" continued from there: "I better not see Chris Armstrong at MY [church] parish in Charlotte -that's all I got to say." Respondent claimed that Armstrong was scared of him and-in commenting on another story involving gay students-"remember[edJ the good old days when 'guys' like this would get their asses kicked at school"
Not content with Facebook posting, respondent then established a blog entitled "Chris Armstrong Watch," which discussed Armstrong's "character and his agenda and other items." The blog purported to be a "watch site," providing "testimony" and "an expose of the REAL Chris Armstrong." The blog was accessible to the public from April 201 0 until September 30, 2010, when respondent removed it from public view. The blog featured a picture of Armstrong's face next to a swastika. The blog called Armstrong "a radical homosexual activist, racist, elitist, & liar" and attributed to Armstrong a "Nazi-like hatred of the First Amendment," explaining, "Much like Nazi Germany's leaders, many of whom were also homosexuals, Armstrong believes that any and all opposition must be suppressed by whatever means necessary." The blog further stated that Armstrong "mocks Christians," and called Armstrong an "anti-Christian bigot." One entry claimed that Armstrong attended an event "whose intent was to encourage underage drinking," and that Armstrong "spent most of this time [after the semester ended] engaging in underage binge-drinking." The blog made repeated references to Armstrong's participation in -and facilitation of -underage drinking. It alleged that Armstrong showed contempt toward law enforcement. Respondent -re-posting online conversations between Armstrong and another student at the University -claimed that these conversations revealed Armstrong's "tendency toward sexual promiscuity," and thus labeled Armstrong "a perverted homosexual exhibitionist." Respondent interpreted another online conversation as demonstrating that Armstrong had previously hosted an "orgy" in his college dormitory, at which "homosexual shenanigans" were rampant. Days after this entry, respondent authored another blog post proclaiming: "Armstrong engages in sexual escapades at 'churches & children's playgrounds.'" Respondent linked Armstrong to "possible involvement" in violent attacks against places of worship in the wake of California's passage of Proposition 8. Respondent alleged that Armstrong used his welcome to freshmen as "a thinly veiled attempt to cause sexually confused, and perhaps some impressionable, 17 -and-18-year-olds to experiment sexually with members of their own gender."
Respondent also reported on an alleged romantic relationship between Armstrong and another student. Respondent claimed that the other student was "not out of the closet," but that Armstrong "basically seduced" the student and quickly became obsessed with him. Explaining that the other student, "[t]hanks in large part to Armstrong's influence ... has indeed morphed into a proponent of the radical homosexual agenda," respondent called Armstrong "a very, very twisted sick individual who is manipulative and cunning in a most devilish way."
Respondent also appeared on television to rant about Armstrong. In September 2010, in an interview on local station WXYZ, respondent said that Armstrong held the presidential position in order "to promote special rights for homosexuals at the cost of ... heterosexual stUdents." Respondent later appeared in front of a national audience with CNN's Anderson Cooper. Standing by his blog and Facebook posts, respondent told Cooper that he had "gotten stuff from third-party sources," and argued that Armstrong was not giving interviews because "he can't defend what's on the blog." When Cooper suggested that respondent was a bigot, respondent retorted, "The real bigot here is Chris Armstrong." Two days later, back before a national audience on Comedy Central's The Daily Show, respondent said that Chris was "acting like a gay Nazi," and that this explained his decision to include a picture of Armstrong next to a swastika on the blog.
Findings of ethics violations
the panel finds, by reason of the conduct described above and set forth in the evidentiary record, respondent violated MCR 9.104 in contacting the police to complain about a party hosted by Armstrong while intending to film the subsequent police action for his public blog, respondent failed to treat all persons involved in the legal process with courtesy and respect in violation of MRPC 6.5...
Respondent's testimony, and the exhibits introduced at the April 26, 2016 hearing which, in their totality, result in a finding that respondent has failed to rebut prima facie evidence of engaging in "frivolous litigation" as defined under MCl 600.2591.3
The panel rejected conflict of interest allegations.
The panel has set the matter for a sanction hearing. (Mike Frisch)
The Virginia State Bar Disciplinary Board has posted the order of public reprimand of a former federal prosecutor in Georgia whose 'intermittent romantic relationship" with an agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives led to motions for new trials in two matters and resentencing in another case.
The Board applied Georgia ethics rules and found that the conduct related only to potential impeachment evidence.
The Virginia investigation did not reveal clear and convincing evidence of any other misconduct. (Mike Frisch)
A two-year suspension without credit for time served has been imposed by the Ohio Supreme Court
In the consent-to-discipline agreement, Warren stipulates that on August 8, 2013, a friend with whom he had a social—but not sexual—relationship joined him for dinner at his home and planned to stay overnight. After dinner, Warren’s friend lay down in his room to sleep because she had taken some pain medication and was not feeling well. Unaware that she had taken that medication, Warren gave her a sleeping pill to help her fall asleep. At some point during the night, Warren removed his friend’s pajamas and she awoke to his penetrating her vagina with his finger and tongue. She told him to stop and due to the medication she had taken, fell back asleep. She is unaware whether any other sexual contact occurred.
After a jury trial, Warren was found guilty of sexual battery but acquitted of rape on October 31, 2014. On March 5, 2015, he was sentenced to 30 months of community control and was ordered to stay away from the victim, complete a sex-offender treatment program, and pay a $2,500 fine plus court costs.
The parties stipulate that Warren’s conduct violated Prof.Cond.R. 8.4(b) (prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness).
The parties further stipulate that the applicable mitigating factors include the absence of prior discipline during Warren’s 39-year career, his full and free disclosure to the board and cooperative attitude toward the proceedings, evidence of his good character and reputation apart from the charged misconduct, his acknowledgement that his actions were improper, and the imposition of other penalties.
Two justices dissented. One would grant credit for time served on an interim suspension; the other would remand for further sanction consideration. (Mike Frisch)
Monday, October 17, 2016
The Louisiana Attorney Disciplinary Board found that an attorney's conduct in litigation and in the wake of an interim suspension merited an upward departure from the presumptive sanction of disbarment.
Among the communications at issue
On March 30, 2009, Respondent confirmed his receipt by mail of the Court's order of Interim Suspension by replying to the Court's administrator, and copying the Disciplinary Counsel Ad Hoc, that the Court was a "gutless" "bunch of pigs" and referred to Chief Justice Kimball with a sexual and offensive nickname.
On April 8, 2009, at 1:31 p.m., he sent another email to Disciplinary Counsel Ad Hoc denying the use of racially disparaging terms, yet including many such terms along with other offensive terms, in this email. Later the same day, at 4:34 p.m., he notified Disciplinary Counsel Ad Hoc that he was a "pimp", a "puppet", an "Uncle Tom", and an "OREO."
On April 14, 2009, at 6:34 p.m., Respondent sent an email to Disciplinary Counsel Ad Hoc with only a subject line using the same objectionable terms. Later, at 8:16 p.m., Respondent notified Disciplinary Counsel Ad Hoc by email that “I Just Can’t Help Myself” and then launched into a string of racially offensive and obscene terms.
It began with Hurricane Katrina litigation in federal court
Respondent made plain his intention to disobey an obligation under the rules of a tribunal when, in response to the November 7, 2008, En Banc Order of the federal court suspending him from practice, he filed his motion styled, “Ashton O’Dwyer’s 28 U.S.C. § 1746 Declaration of His Intentionally Contemptuous Non-Compliance with the Court’s Order of 11/07/08 Which is Directed to the Court En Banc.” 70 In the filing Respondent declared that “he has no intention of ever complying” with the order’s requirements that he pay all outstanding monetary sanctions against him and that he obtain stress and anger management treatment. He flippantly asserted that he would “agree to submit to . . . counseling/treatment, only upon the condition that each Member of the Court first complete ‘charm school.’” Respondent concluded by stating “the Court en banc is invited to disbar Respondent, forever.”
Despite the express terms of the November 7, 2008, En Banc Order which placed him on suspension, Respondent continued mailing, faxing and hand delivering documents to the Court and to individual judges without first paying his outstanding monetary sanctions, or obtaining permission from a member of the Court, in violation of the terms of the orders.71 On July 27, 2009, in open contempt of the March 4, 2009, Order of Disbarment, Respondent caused to be hand delivered to Judge Lemelle a handwritten note containing an outrageous racial slur directed at the judge, resulting in the Court’s issuance of an order barring Respondent from entering the federal courthouse.
Clearly, and as previously discussed, the record supports the Hearing Committee’s findings that Respondent violated numerous provisions of the Rules of Professional Conduct. He engaged in conduct involving dishonesty, fraud, deceit and misrepresentation by his unrelenting misuse and abuse of the legal system, filing frivolous pleadings containing unsupported and inflammatory allegations, misrepresenting the conduct of opposing counsel, using offensive, racist and vulgar language, and impugning the integrity of the judiciary, as well as the disciplinary authorities. Respondent acted with deceit when he sought to mislead the federal court by using his cousin’s name as a ploy so that he could continue to file pleadings after he had been disbarred from practice in the Eastern District and after he had been placed on interim suspension by the Louisiana Supreme Court. He hurled threats of civil, criminal and disciplinary proceedings at judges, opposing counsel and disciplinary authorities. Furthermore, as the Committee found, though the Respondent was notified of his obligations under Section 26 of Rule XIX, relative to his duties to notify clients, co-counsel and opposing counsel of his status and contact information, he failed to do so in violation of Rule 8.5(a).
The Times Picayune had a story on the litigation and its aftermath.
Our earlier coverage is linked here. (Mike Frisch)
The West Virginia Supreme Court of Appeals reprimanded an attorney not admitted in the state
A Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board has determined that the respondent, Kevin E. McCloskey, a lawyer who is not admitted to the West Virginia Bar, violated the West Virginia Rules of Professional Conduct by engaging in the unauthorized practice of law in this state, committing acts of professional misconduct in this state, and failing to respond to the Office of Disciplinary Counsel’s ("ODC") requests for information in response to an ethics complaint.
...we adopt the HPS’s findings of fact and conclusions of law. However, exercising our exclusive authority to determine the appropriate sanction in lawyer disciplinary matters, this Court imposes a different sanction than that recommended by the HPS. Our review compels this Court to impose a public reprimand; a five year prohibition on the respondent’s opportunity to apply for admission to practice law in West Virginia, including pro hac vice admission; a five year prohibition on the respondent’s appearance in any court in West Virginia; a requirement that if the respondent should ever seek admission to the West Virginia State Bar, he first obtain twelve hours of continuing legal education in the areas of law office management and/or legal ethics; and a requirement that he pay the costs of these disciplinary proceedings.
The attorney, who is admitted in Pennsylvania, entered an appearance in a West Virginia civil matter and falsely represented that he was admitted in West Virginia.
Justice Benjamin concurred and added that he would refer the case for a criminal investigation and to Pennsylvania disciplinary authorities. (Mike Frisch)
The New Jersey Supreme Court has disbarred an attorney with a record of prior discipline.
I was aware of one of the prior cases because I used it in my teaching materials - a case where the attorney was suspended for six months for a negligent misappropriation that had all the earmarks of intentionality but triggered a institutional desire to skew the findings to avoid disbarment.
The Disciplinary Review Board in the present matter
respondent is guilty of failing to communicate with his client, failing to memorialize a contingent fee agreement, failing to protect a client’s interests upon of the representation, and failing to cooperate with disciplinary authorities, violations of RPC 1.4(b), RPC 1.5(b) and (c), RPC 1.16(d), and RPC 8.1(b)...
Here, due to respondent’s default, a reprimand is the baseline sanction for his misconduct, were there no aggravating factors. There is, however, the presence of respondent’s extensive disciplinary history: a 1993 six-month suspension; a 1997 reprimand; a 2005 reprimand; a 2013 three-month suspension; and a 2015 one-year suspension for misconduct in two separate defaults.
This case marks respondent’s third consecutive default in the span of one year, and the third time he has failed to cooperate with disciplinary authorities, a requirement for all New Jersey attorneys. Moreover, he continues to commit some of the same misconduct for which he previously has been disciplined.
We conclude, thus, that he has both failed to learn from his prior mistakes prior mistakes and that, by his repeated failures to cooperate and multiple defaults, he places little value on the law.
The Maine Board of Bar Overseers has reprimanded an attorney who has had no other discipline since his admission to practice in 1955.
He did not have a written fee agreement with a longtime client and
Attorney Foley acknowledges that while he discussed the Financial Durable Power of Attorney with R.P. and provided her a copy, in hindsight he did not fully and completely describe the breadth of the powers granted to him, including the breadth of the powers that would allow him to self-gift. He agrees that his failure to do so constituted a per se violation of M. R. Prof. Conduct 1.8(c).
Attorney Foley has represented that he believes his actions, regardless of the terms of the Financial Durable POA, were governed by his fiduciary and ethical obligations under the Maine Rules of Professional Conduct as well as by 18-A M.R.S. � 5914(a) which limits the agent acting pursuant to a POA to serve as a fiduciary to the Grantor of the Power of Attorney and to act in good faith and in accordance with the Grantor’s reasonable expectations.
Attorney Foley acknowledges that he is bound by Rules 1.7 and 1.8, (conflicts of interests) and specifically the portions of those Rules dealing with his transactions that could implicate Attorney Foley’s own personal interests in a way that is adverse to those of R.P., his client. While Attorney Foley did not solicit a gift from his client or prepare an instrument giving the lawyer a substantial gift, nonetheless the POA could be construed to have allowed Attorney Foley the power to make such a gift once the POA became effective. In so doing, Attorney Foley did not fully disclose and transmit in writing to R.P. the powers and transactions that she was granting him in a manner that could be reasonably understood by her, nor did he advise her of the desirability or opportunity for her to seek independent legal counsel with regard to that transfer. Attorney Foley’s failure in that regard constituted a violation of M. R. Prof. Conduct 1.8(a).
Attorney Foley also concedes that he relied upon his practice of sending periodic bills reflecting his services to R.P., but that he did not explain, specifically orally or in writing to R.P., the entire scope of his representation and the basis for his fees and expenses, except to the extent reflected in his bills. More particularly, he did not specifically advise R.P. that he would be charging her for the professional services he provided her with regard to her investments at his regular hourly rate. Attorney Foley agrees that his failure to do so constituted a violation of M. R. Prof. Conduct 1.2(a), 1.4 and 1.5(a)(b).
Probably there are few attorneys whose first sanction comes after 61 years of practice. (Mike Frisch)
Sunday, October 16, 2016
Reciprocal disbarment has been imposed by the Hawai'i Supreme Court based on a like sanction from the Northern Mariana Islands Supreme Court
Upon consideration of the Office of Disciplinary Counsel’s petition for issuance of a reciprocal discipline notice to Respondent Stephen Carl Woodruff, the memorandum, affidavit, and exhibits appended thereto, the materials subsequently submitted by Respondent Woodruff, and the record as a whole, we note the Supreme Court of the Commonwealth of the Northern Mariana Islands (CNMI) affirmed Respondent Woodruff’s disbarment on December 9, 2015 and the matter has since become ripe for disposition by this court, pursuant to Rule 2.15 of the Rules of the Supreme Court of the State of Hawai'i (RSCH).
Upon a thorough review of the record in this matter, and a careful analysis of Respondent Woodruff’s arguments, we conclude that Respondent Woodruff did not establish any of the four grounds available under RSCH Rule 2.15(c)(1) – (4) to avoid reciprocal discipline in this jurisdiction. We further conclude that, had Respondent Woodruff engaged in this jurisdiction in the misconduct at issue in this matter, in nine separate client representations, said conduct would represent multiple violations of Rules 1.1, 1.3, 1.4(a), 1.4(b), 1.5, 3.1, 3.2, 3.3(a)(2), and 8.1(b) of the Hawai'i Rules of Professional Conduct (1994), conduct which would warrant disbarment in this jurisdiction...
Details from Marianas Weekly
Nine complaints were submitted regarding Woodruff’s conduct as an attorney between 2008 and 2012, alleging Woodruff’s failure to communicate with clients and complete work for which he was paid.
Based on these claims, disciplinary counsel filed a request with the high court for Woodruff’s interim suspension from practicing law pending resolution of a disciplinary proceeding. The high court granted the interim suspension, and disciplinary counsel subsequently filed a complaint against Woodruff in the trial court. Two weeks later, disciplinary counsel filed and served upon Woodruff an amended complaint, indicating the deadline for a response. When Woodruff failed to respond by the due date, disciplinary counsel filed for an entry of default, which the trial court granted. Woodruff then requested that the trial court set aside the entry of default, asserting he was unclear about when his response was due. The trial court denied the request, held a hearing on the default judgment, and disbarred him from the practice of law.
In the majority opinion, the court held the trial court did not err by applying the Rules of Civil Procedure to determine Woodruff’s response deadline. Although the NMI Rules of Attorney Discipline and Procedure do not expressly incorporate the Rules of Civil Procedure with regard to amended pleadings, the trial court appropriately referred to the Rules of Civil Procedure in light of gaps in the disciplinary rules.
As to whether the trial court erred by refusing to set aside the default, the high court noted Woodruff admitted his failure to respond was due to his own inattention. In paragraph 24 of the opinion, the high court commented: “[T]he basis for the disciplinary action involved multiple complaints that Woodruff failed to diligently pursue legal matters, including repeated allegations of his failure to adequately communicate with clients and to timely complete work. If he were a layperson, his conduct in this case might not rise to the level of an act that is willful, deliberate, or in bad faith that would qualify as intentional. But because Woodruff is an attorney, who should appreciate the legal consequence of default, we conclude his failure to respond was due to his culpable conduct.”
The minority agreed that the trial court did not err by entering default and refusing to set aside the entry of default. However, because disbarment is a severe consequence, the minority would have exercised the high court’s inherent authority to regulate attorney conduct in reversing and remanding for a disciplinary hearing.
Ultimately, the majority affirmed the trial court’s entry of default and default judgment order disbarring Woodruff from the practice of law.
Friday, October 14, 2016
The highly transparent Ohio Supreme Court web page has a link to the recent disciplinary cases submitted for the court's review
The Ohio Board of Professional Conduct today announced it has filed the following reports and recommendations for disciplinary cases involving attorneys and judges charged with professional misconduct with the Supreme Court of Ohio.
Except in consent-to-discipline cases, the parties will have an opportunity to file objections to the board’s report and recommendation with the Supreme Court. If objections are filed, the case will be scheduled for oral argument. Oral argument is not scheduled in reinstatement cases, except upon order of the Court. In cases in which the board recommends acceptance of a consent-to-discipline agreement, no objections are permitted, and the case is submitted to the Court for consideration.
Additional information about each case, including the report and recommendation, may be obtained by clicking on the hyperlink for each case. Questions regarding pending cases should be directed to the Office of Public Information at 614.387.9250.
Cases on Report of the Board
Disciplinary Counsel v. Gregory Lawrence Peck
Case No. 2016-1490
Recommended sanction: Six-month suspension, stayed
Disciplinary Counsel v. Scott Clifford Smith
Case No. 2014-0197 (on remand)
Recommended sanction: Indefinite suspension
Ohio State Bar Association v. Harry Joseph Jacob III
Case No. 2016-1488
Recommended Sanction: Two-year suspension, one year stayed
Cleveland Metropolitan Bar Association v. Edward Joseph Heben, Jr.
Case No. 2016-1495
Recommended Sanction: One-year suspension, six months stayed
Disciplinary Counsel v. Thomas Patrick Maney Jr.
Case No. 2016-1494
Recommended sanction: One-year suspension, six months stayed
Disciplinary Counsel v. Robert Hansford Hoskins
Case No. 2016-1496
Recommended sanction: Disbarment
Disciplinary Counsel v. Jeremiah Justin Denslow
Case No. 2016-1487
Recommended sanction: Six-month suspension, stayed
Wood County Bar Association v. Robert Eugene Searfoss III
Case No. 2016-1489
Recommended sanction: Two-year suspension, one year stayed
Mahoning County Bar Association v. William Charles Helbley Jr.
Case No. 2012-0200
Recommendation: Grant reinstatement
Dismissal Based on Finding of No Misconduct
Disciplinary Counsel v. Alan Jack Rapoport
Board Case No. 15-073
For those who may find it useful to compare the work load of one state system with another, note that the D.C. Board on Professional Responsibility has submitted five reports (one involving co-respondents) in the past ninety days.
A review of the calendars of the D.C. Court of Appeals reflect that one bar case was argued in October and one was submitted on the court's summary calendar. For November, there were no bar discipline cases either argued or submitted.
It is nice to know there is so little sanctionable attorney misconduct in the District of Columbia.
Or does the answer lie elsewhere? (Mike Frisch)
The web page of the Illinois ARDC reports a recent order of the state Supreme Court
Mr. Gold-Smith, who was licensed in 2003, was suspended on an interim basis and until further order of the Court. He was found guilty in the Circuit Court of Will County of solicitation of murder for hire and for solicitation, both Class X felonies. In addition, he is awaiting trial on state charges of aggravated domestic battery (a Class 2 felony), aggravated battery (a Class 3 felony) and unlawful violation of an order of protection (a Class A misdemeanor).
The Chicago Tribune had a story
A Will County judge Tuesday ruled that former Homer Glen attorney Robert Gold-Smith was guilty of trying to hire someone to kill his ex-wife in 2012.
"I've spent close to 30 hours of considering all the evidence," Judge Daniel Rozak told Gold-Smith in the courtroom. "The bottom line is I'm finding guilty."
Gold-Smith, who represented himself during the trial, had argued that it wasn't his voice recorded by inmate Brian McDaniel, who wore a wire in the Will County Jail during a conversation about the murder-for-hire plot on Oct. 3, 2012.
The defendant had been in jail in connection with a 2010 charge of aggravated domestic battery, when witnesses had said he followed his wife out of a Will County courtroom after a divorce hearing and punched her several times.
During his closing arguments last month, Gold-Smith said, "If the voice doesn't fit, you must acquit," using a line similar to one used by O.J. Simpson attorney Johnnie Cochran in referring to a bloody glove the former football player was alleged to have worn.
Rozak on Tuesday acknowledged that an expert could not definitively identify whose voice was on the 2012 recording, but he also considered video surveillance footage from a camera in the cell block which he said was located right above McDaniel's cell.
"The camera couldn't be better positioned," the judge said.
After the verdict, Rozak gave Gold-Smith the opportunity to request a public defender to handle his future options in the case, such as filing a motion for the judge to reconsider his finding.
Gold-Smith, who cast his head down and shook his head after the verdict, said he would now like a public defender.
Rozak told public defender Amy Christensen, who was in the courtroom, that she will likely need more than 30 days to review all the evidence, but set the next court hearing for April 1 for the potential filing of the motion for him to reconsider his verdict.
The judge suggested Gold-Smith "do yourself a big favor" and request a public defender for the pending 2010 aggravated domestic battery charge.
Gold-Smith also faces a charge of trying to bribe McDaniel in 2015 to change his testimony.
Assistant State's Attorney Adam Capelli said Gold-Smith faces 20 to 40 years in prison on all the charges, and must serve at least 85 percent of the sentence.
Frank Vaisvilas is a freelance reporter for the Daily Southtown.
Gold-Smith told Rozak his motions to introduce new evidence and reconsider the case will move faster than if an assistant public defender had to review everything.
"[Solicitation of murder] is a mandatory minimum of 20 years at 85 percent and you're worried about a couple of months?" Rozak asked. The judge then "apologized in advance" and offered a frank assessment of Gold-Smith's criminal defense as "not only ineffective, you're inept."
Before his arrest Gold-Smith worked as a bankruptcy attorney.
"If I told you I needed heart surgery, you'd refer me to a gynecologist. You'd say what's the difference, they're both doctors," Rozak said. "If you could sue yourself for ineffective assistance [of counsel] you'd have a dead-bang winner."
Rozak said Gold-Smith's decision to represent himself despite his lack of experience in criminal law was "the best thing the state had going for it" with a weak case.
"If you'd sat there, shut up and kept quiet, maybe – just maybe – my decision would've been different, but every hole that was in their case – you filled in," the judge concluded.
Gold-Smith said Rozak wants “to personally oversee this conviction to gratify [his] ego.”
The former bankruptcy attorney also believes the judge felt obligated to protect the reputations of investigators and prosecutors he believes were duped by McDaniel.
“It’s not only politics but your Machiavellian prejudices that convicted me the day I set foot in your courtroom. You knew that recording was fabricated,” Gold-Smith told the judge.
After the bench trial, Rozak estimated he spent 30 hours listening to the tapes submitted as evidence.
“Why have you railroaded me?” Gold-Smith asked. “Your sadistic determination to send people to prison, regardless of their innocence?”
“You, sir, are an anachronism. A throwback to the tyrannical kings, despots and dictators,” he said. “The Spanish Inquisition would’ve been more appropriate for your [distribution] of justice, or should I say, injustice.”
Gold-Smith continued his statement to the court by accusing Rozak of anti-Semitism because of his last name, although Gold-Smith is not Jewish.
Thursday, October 13, 2016
The Illinois Administrator has swiftly filed charges in a much-publicized matter for an attorney's alleged
(Dishonesty as a result of handling cases on a judge’s call while dressed in judicial robes and seated on the judge’s chair behind the bench)
Remarkably, the charges involved an incident took occurred that took place only two months ago. I'd venture there are few places where charges ever go forward so swiftly.
1. From August 2011 to August 2016, Respondent was employed as a Law Clerk/Staff Attorney for Office of the Chief Judge of the Circuit Court of Cook County. From August 2011 until May 2015, Respondent worked at the Daley Center Courthouse and was responsible for research and writing assignments given to her by Chief Judge Timothy Evans. In May 2015, Respondent was transferred to the Markham Courthouse in the Sixth Municipal District ("Markham"), where she maintained her position as Law Clerk/Staff Attorney and was responsible for research and writing assignments given to her by any of the judges at Markham. Judge Marjorie Laws ("Judge Laws"), the presiding judge in Markham, was Respondent’s supervisor at Markham.
2. At no time has Respondent held the office of Judge or Associate Judge in Illinois pursuant to Article VI of the 1970 Illinois Constitution. As a result, at no time was Respondent authorized to act as a Judge or Associate Judge in a Circuit Court of this State of Illinois.
3. In March 2016, Respondent won the primary election for the office of judge in the Circuit Court of Cook County, First Judicial Subcircuit. Respondent is currently unopposed on the general election ballot for November 2016. Subsequent to winning the primary election, Respondent began observing judges at Markham during their court calls in preparation for the likely possibility that she would be elected to the office of judge in November 2016.
4. On August 11, 2016, Judge Valarie Turner ("Judge Turner") was assigned to Courtroom 098 in Markham ("Courtroom 098") for court calls scheduled to begin at 9:00 a.m., 10:30 a.m., and 1:00 p.m. On August 11, each of the three court calls involved traffic tickets that had been issued in the Village of Dolton. The Village of Dolton prosecutor working in Courtroom 098 that day was Luciano Panici, Jr. ("Panici, Jr.").
5. On August 11, 2016, at approximately 9:00 a.m., Respondent was seated in the witness box to the left of the judge’s bench in Courtroom 098. Shortly thereafter, Judge Turner entered Courtroom 098 wearing her judicial robe, took the bench, and began the 9:00 a.m. call. Respondent remained seated in the witness box throughout the 9:00 a.m. and 10:30 a.m. calls, between which there was no recess.
6. At approximately 12:00 p.m., the court recessed for lunch. At that time, Judge Turner introduced Respondent to Panici, Jr. and asked, "Have you met Judge Crawford?" Respondent did not correct Judge Turner’s statement that she was a judge. Panici, Jr. introduced himself to Respondent and left Courtroom 098.
7. Judge Turner’s statement that Respondent was a judge in paragraph six, above, was false because Respondent was not a judge on August 11, 2016, nor has she ever been a judge.
8. Respondent knew that Judge Turner’s statement in paragraph six, above, was false because she knew she was not a judge. Respondent’s failure to correct Judge Turner’s statement in paragraph six, above, was dishonest and misleading.
9. At approximately 1:00 p.m., Panici, Jr. returned to Courtroom 098 for the afternoon call beginning at 1:00 p.m. At that time, Officer Derrell White also arrived at Courtroom 098 for the afternoon call. Officer White sat in a chair in a row of chairs located to the left of and slightly behind the witness box. Respondent again sat in the witness box to the left of the judge’s bench. Judge Turner began the afternoon call at approximately 1:00 p.m.
10. At some time near the end of the 1:00 p.m. call, Judge Turner announced to the people in Courtroom 098, "We’re going to switch judges" and gave her judicial robe to Respondent. Respondent did not correct Judge Turner’s reference to her as a judge and put on Judge Turner’s robe in plain view of the people in Courtroom 098.
11. Judge Turner’s reference to Respondent as a judge in paragraph ten, above, was false because Respondent was not a judge on August 11, 2016, nor has she ever been a judge.
12. At the time Judge Turner referred to Respondent as a judge in paragraph ten, above, Respondent knew Judge Turner’s statement was false because she knew she was not a judge. Respondent’s failure to correct Judge Turner’s reference to her as a judge in front of the people in Courtroom 098 was dishonest and misleading.
13. After putting on Judge Turner’s robe, Respondent sat down on the bench and began purporting to preside over at least three cases on the 1:00 p.m. call. Judge Turner stood behind Respondent.
14. As a result of Judge Turner’s previous introduction of Respondent, at the time Respondent put on Judge Turner’s robe and began purporting to preside over cases, Panici Jr. believed Respondent was a judge.
15. After Respondent had put on Judge Turner’s robe and sat on the bench, the court clerk called the case of defendant Maliq Giles ("Giles"), ticket YE-334-458. At Giles’ request, Respondent purported to continue the matter until October 26, 2016. Respondent reflected her purported decision by writing "MD 10-26-16" on the back of ticket YE-334-458.
16. After Giles’ matter, the court clerk called the case of defendant Angel LaSalle ("LaSalle"), ticket YE-334-458. When LaSalle stepped up to the bench, Respondent said to LaSalle, "Officer is not in court." Panici, Jr. then made a motion to continue the matter. Respondent turned to Judge Turner and asked, "Can I deny his motion?" Judge Turner replied, "Yes, you can deny the motion" and Respondent purported to deny the motion. Panici, Jr. then made a motion to non-suit the matter, which Respondent purported to grant. Respondent then reflected her purported decision by writing "ONIC" (Officer Not In Court) and "MCNS" (Motion City Non-Suit) on the back of ticket YE-334-458.
17. At some point while Respondent was wearing Judge Turner’s robe and seated on the bench, she called the case of defendant Kendrah Blackshear ("Blackshear"), ticket YE-250-620. Blackshear stepped up to the bench before Respondent and presented a valid driver’s license. Panici, Jr. made a motion to non-suit the matter and Respondent purported to grant the motion.
18. At the time Blackshear stepped up in front of Respondent, described in paragraph 17, above, Blackshear believed Respondent was a judge as a result of the facts that Respondent was wearing a judicial robe, sitting behind the bench in the Judge’s chair, and presiding over cases being called by the clerk.
19. After the 1:00 p.m. call concluded, Respondent returned Judge Turner’s judicial robe to her. At that time, Officer White approached Respondent to congratulate her on her judgeship. Officer White asked Respondent if she would be assigned to Markham and Respondent replied that she was in Markham now but would probably be assigned downtown.
20. Respondent’s statement to Officer White referenced in paragraph 19, above, was false and misleading because she was not a judge assigned to Markham on August 11, 2016.
21. Respondent knew that her statement to Officer White referenced in paragraph 19, above, was false and misleading because she knew she was not a judge assigned to Markham.
22. After being apprised of what had occurred, Judge Laws conducted an investigation of Respondent’s conduct. As a result of that investigation, Judge Laws placed all three tickets referred to in paragraphs 15-17, above, back on the court’s docket. On September 1, 2016, Judge Laws heard all three matters, tickets YE-334-458 (Giles), YE-334-458 (LaSalle), and YE-250-620 (Blackshear). Panici, Jr. was the prosecutor and motioned to non-suit each matter. Judge Laws granted the motions and dismissed the tickets nunc pro tunc to August 11, 2016.
The attorney also is charged with engaging in criminal conduct based on the above alleged facts and false statements in the investigation. (Mike Frisch)
The Wisconsin Supreme Court has ordered a 60-day suspension of an attorney who had defaulted in the bar disciplinary proceeding.
Judge Abrahamson concurred but raised a number of points, including
The third issue is one that I have raised numerous times. The OLR disciplinary system is about 15 years old. I repeat my numerous requests that the court review the lawyer disciplinary system and the Rules of Professional Conduct for Attorneys. The instant case presents issues that should be considered in such reviews. See, e.g., Rule Petition 14-06 (Abrahamson, J., concurring); and Rule Petition 15-01 (Abrahamson, J., dissenting); In re Disciplinary Proceedings Against Johns, 2014 WI 32, 353 Wis. 2d 746, 847 N.W.2d 179 (Abrahamson, C.J., dissenting); In re Disciplinary Proceedings Against Kratz, 2014 WI 31, 353 Wis. 2d 696, 851 N.W.2d 219 (Abrahamson, C.J., concurring; Prosser, J., concurring in part and dissenting in part).
Judge Ann Walsh Bradley dissented and would order the attorney to make restitution to a client. (Mike Frisch)
Wednesday, October 12, 2016
A former Buffalo judge has been disbarred as a result of a felony bribery conviction.
The Buffalo News reported on the conviction and the judge's background
For the first time in 21 years, no one rose to their feet when John A. Michalek walked into a courtroom on Wednesday.
For the first time since he began serving as a State Supreme Court judge in 1995, Michalek’s role in the courtroom was as an admitted criminal, one who pleaded guilty to felony crimes of bribe-receiving and offering a false instrument for filing in a court case. Both of the crimes involved Michalek’s dealings with longtime political power broker G. Steven Pigeon.
Looking thin, pale, tired, dejected and broken, the 65-year-old Michalek told the court that he was resigning from his $193,000-a-year judgeship, and agreeing to cooperate as a witness in the ongoing probe into Pigeon’s political activities. He faces a possible prison term of up to seven years when he is sentenced on Sept. 21.
As a convicted felon, the former judge also will lose his right to practice as an attorney. It’s a painful fall from grace for a man who was selected as the Outstanding Jurist in 2005 by the Erie County Bar Association’s Matrimonial and Family Law Committee. And many of the people who knew and worked with Michalek over the years seem genuinely surprised.
“Would I ever have expected Judge Michalek to get into any kind of trouble? Absolutely not,” said former Erie County District Attorney Frank J. Clark, who worked with Michalek from 1977 to 1985. “John was a very conservative, very reserved, very careful guy … a public servant. I was extremely surprised to hear he was in any kind of trouble. It just doesn’t add up.”
Until now, many people in legal circles would say Michalek lived a charmed life. A State Supreme Court judgeship is one of the most coveted jobs for any lawyer in New York State. It is a 14-year position that, in addition to a salary far beyond that made by most lawyers, provides a generous pension and other benefits.
Michalek never had to run in a contested election for his judgeship. A registered Democrat, he was selected by political party leaders to be “cross-endorsed” by both Democrats and Republicans in 1994 and again in 2008.
Every judge has his or her critics, but legal experts say most of the lawyers who practiced in front of Michalek considered him to be fair, honest and hardworking.
“I’ve practiced in front of him a number of times over a period of 20 years. Even when he’s ruled against me, I’ve never seen a decision from him that seemed to be tainted by politics or anything else,” said Amherst lawyer Steven M. Cohen.
It is sad, said Cohen and several other Buffalo attorneys, that Michalek has become the second brother in his family to wind up in serious trouble with the law.
Not like his brother
His older brother, the late James J. Michalek, was a flashy guy – an attorney and investment scam artist who lived in an extravagant home in Orchard Park, wore a full-length fur coat, drove an expensive sports car and went to prison in the 1990s for cheating banks out of millions of dollars and dozens of senior citizens out of their retirement savings.
To most people in Buffalo’s legal community, John Michalek seemed to be cut from a much different cloth. He earned a reputation as an earnest, quietly efficient attorney who served as a top prosecutor in the Erie County district attorney’s office before political party leaders chose him to become a State Supreme Court judge in 1994. He began serving in 1995.
“John was not only embarrassed by the actions of his brother, he felt terrible about it,” said a close family friend of Michalek. “Some of Jim’s victims were old family friends, old neighbors and retired steelworkers … John wanted people to know that he wasn’t like that.”
“John and his brother Jim were such different personalities. Jim was flamboyant, a riverboat gambler,” Clark said. “John seemed to be a much different guy.”
The former judge grew up in a well respected family in Lackawanna. His late father, Leo Sr., was a physician. His late mother, Louise, was a nurse widely involved in charity and volunteer activities. The couple raised five children – three lawyers, a physician and a psychiatrist.
“I’ve known this family going back to the 1950s, and they were one of the most respected families in Lackawanna,” said former Erie County DA Edward C. Cosgrove, still practicing law at age 81. “They were good, solid people, deeply religious, hardworking, very good students.”
John Michalek graduated from St. Francis High School, Canisius College and the University at Albany Law School before he was hired by the district attorney’s office in 1977. Cosgrove gave him his first job.
“John was a marvelous young man who worked very hard for us,” Cosgrove recalled.
A notorious client
In 1985, after serving four years as chief of the Justice Courts Bureau, Michalek left the DA’s office and established a Hamburg law firm with two partners, Daniel J. Henry and Robert M. Vallarini, who later would win election as an Erie County legislator. Michalek handled some criminal defense work with the law firm, and his most famous – or infamous – client was the late Richard W. Matt.
Michalek represented Matt in a number of criminal matters in the early 1990s. Matt jumped into the national headlines last summer when he and another inmate escaped from the Clinton Correctional Facility in Dannemora. After nearly three weeks on the run, Matt was shot and killed by police last June.
Michalek became active in Town of Hamburg politics, and he was named assistant town attorney in 1988. Hamburg political figures say Michalek was an invaluable aide to Vincent J. Sorrentino, who was the town attorney and also the chairman of the Erie County Democratic Party. After Hamburg’s town supervisor, Jack Quinn, was elected to Congress, Michalek was appointed to take his place as interim supervisor for the year of 1993.
In 1994 – with a big push from Sorrentino – Michalek was selected by party leaders to get both the Democratic and Republican Party endorsements for State Supreme Court judge. With no actual competition, he won election for his first 14-year term in November 1994.
He has not been a controversial figure as a judge, but has handled some high-profile cases. In a 2012 ruling, he awarded more than $2.7 million – or more than $230,000 each – to 12 white Buffalo firefighters who alleged they were passed over for promotions because of their race. City officials vehemently disagreed with the ruling, which was later overturned by an appeals court.
In April of this year, Michalek made a ruling that barred former Buffalo School Board James M. Sampson from the ballot for this year’s election. Michalek agreed with opponents of Sampson who said he did not have enough legitimate signatures on his nominating petition.
One local attorney, Arthur Giacalone, said he had a bad experience with Michalek and felt he treated him and his client unfairly during a 2014 trial. But most attorneys and court officials interviewed by The News in recent weeks said Michalek had a solid reputation.
Allegations shock peers
“I always considered him to be a decent guy, hardworking and diligent,” said one former colleague, Salvatore R. Martoche, a former state appellate judge now in private practice. “I honestly can’t say anything negative about him because I don’t know anything bad about him.”
“I practiced before him on several different lawsuits, and I thought he was fair and very careful,” said Cosgrove, Michalek’s former boss. “As far as I am concerned, his past and present reputations are marvelous. I don’t know of anything contrary to that. I’d have to understand every part of what happened before I made any judgments on him.”
Acting Erie County District Attorney Michael J. Flaherty Jr. was not involved in the Michalek probe, but he held a press conference after Wednesday’s court session to talk about the importance of prosecuting judges and other government officials who violate the public trust.
Flaherty called Michalek’s case “a sad and intolerable ... disheartening” situation.
The acting DA said he cannot recall another instance of a State Supreme Court judge in Western New York being accused or convicted of bribery-related charges.
A tall man who enjoyed playing pickup basketball with local attorneys, Michalek is described by friends as a devoted husband and father who has donated his time to St. Francis High School and other charitable and not-for-profit organizations.
One longtime Hamburg politician, who spoke on the condition that he or she would not be identified, expressed shock after learning of Michalek’s close relationship with a controversial political power broker like Pigeon.
“Knowing John as I do, I cannot fathom him doing anything illegal,” said the politician, a friend of Michalek’s for more than three decades. “I’ve known unsavory people in politics, but I can’t imagine John being one of them.”
When asked if he ever imagined that Michalek would take bribes or do anything else that was illegal, Cosgrove exclaimed: “Goodness, gracious no!”
The order was entered by the New York Appellate Division for the Fourth Judicial Department. (Mike Frisch)
The California State Bar Court Review Department has recommended disbarment in a case involving misappropriation
Three men—David Benullo, David Goldstein, and David Klawans—retained Kaplan to represent them as their attorney in the sale of a movie script entitled Mucho Dinero to Blake Freeman, a producer. Benullo initially contacted Kaplan about retaining him by sending an email with the subject line "lawyer for a deal." On December 29, 2011, Goldstein emailed Benullo, inquiring whether Kaplan was acting as a lawyer or manager in the sale of the script. Benullo replied: "[S]teve’s the lawyer who came in to deal with this for us." Kaplan was copied on this email. Shortly thereafter, on January 10, 2012, Benullo, Goldstein, and Klawans entered into a written Deal Memorandum with Kaplan that stated Kaplan would be paid for "professional services in negotiating and drafting the terms of the purchase of the Script by Producer [Freeman]."
In June 2012, the parties agreed on a sales price of $90,000 for the script. The three men agreed to split the proceeds as follows: 42.5 percent each to Benullo and Goldstein and 15 percent to Klawans. Freeman paid the sales proceeds to Kaplan in two installments: $65,000 on August 1, 2012, and $25,000 on September 6, 2012. Kaplan did not deposit the money in his CTA. Instead, he placed it in a Wells Fargo Bank checking account, which he used for his movie production company, Rainstorm Entertainment, Inc. (Rainstorm Account).
Under the Deal Memorandum, Kaplan would be paid 10 percent of Benullo’s share of the sales proceeds and 7.5 percent each of Goldstein’s and Klawans’s shares—$7,706.20 of the $90,000. When Kaplan received the $65,000 payment, he properly withheld $5,565.58 as his fee and paid Benullo, Goldstein, and Klawans their respective shares of the remaining $59,434.42, including $25,553 to Goldstein. When Kaplan received the $25,000 payment on September 6, 2012, he properly withheld $2,140.62 as his fee. He stipulated that he paid Benullo and Klawans their shares of the remaining $22,859.38 but failed to pay Goldstein his share, which was $9,828.25.
The $9,828.25 was misappropriated.
The Review Department rejected the contention that the conduct was not intentional.
The attorney has no record of prior discipline. (Mike Frisch)
Further proof of the systemic dysfunction of the District of Columbia bar disciplinary system is on display with the filing of a hearing committee report in the case of In re Michael Avery
Disciplinary Counsel charged Respondent, Michael L. Avery, with violating D.C. Rules of Professional Conduct (“Rules”) 1.1(a) (competence), 1.1(b) (skill and care), 1.2(a) (abiding by client’s decisions), 1.3(a) (diligence and zeal), 1.3(c) (duty of reasonable promptness), 1.4(a) (keeping client reasonably informed), 1.4(b) (explaining matters to a client), 1.4(c) (failure to promptly notify client of settlement offer), 1.5(c) (contingency fee requirements), 1.15(b) (failure to promptly notify client of receipt and to deliver settlement funds), and 8.4(d) (conduct that seriously interferes with the administration of justice). The charges stem from Respondent’s acceptance of a client representation in a personal injury matter, and delegation of responsibility for that matter to an unsupervised paralegal, who accepted a settlement offer without the client’s authorization.
The Hearing Committee finds clear and convincing evidence to support each of the alleged violations of the disciplinary rules, with the exception of Rules 1.5(c), 1.15(b), and 8.4(d). Based on these violations, and the factors in aggravation established by Disciplinary Counsel, we recommend the sanction of a 45-day suspension, and that, as a condition of reinstatement, Respondent must undergo an assessment by the D.C. Bar’s Assistant Director, Practice Management Advisory Services, or his designee, (and sign a limited waiver permitting that program to confirm compliance with this condition and cooperation with the assessment process), and must agree to implement the recommended changes to his office practices and procedures.
So far so good.
The date that the Office of Bar (now Disciplinary) Counsel received the client's complaint: September 25, 2006.
Charges filed: December 29, 2011.*
Given that date, I know well the end-of-the-year pressure to move this Golden Oldie.
Hearing held: March 28 and April 19, 2012.
Hearing Committee report filed: October 12, 2016.
So, five years to investigate and four and a half years to decide a absolutely routine client complaint.
And still no action until after Board on Professional Responsibility and Court of Appeals review.
Wish someone cared even a little bit. (Mike Frisch)
* I do not know this for a fact but the charges may well have sat unreviewed at the Board office for a period of time. That delay would be attributable to the Office of the Executive Attorney rather than Bar Counsel. Such delays of a year or more were not uncommon at the time.
The Law Society of Upper Canada case linked below (and here) has another aspect - the accused attorney contends that he was tortured!
Mr. Sumner says that Mr. Kochis engaged in torture when he used his position of authority to coerce or extort him into signing the Waiver of his rights to a civil remedy against his former roommate. Mr. Sumner argues that the communications he seeks to exclude were derivative to the torture under which he signed the Waiver and are covered by the principles on exclusion of evidence obtained by torture.
The Society opposed the granting of the motion on the basis that the evidence did not support the conclusion that Mr. Sumner was tortured or that the communications it seeks to rely on in this application were obtained as the result of torture or were derivative of the torture...
Mr. Sumner argues that Mr. Kochis, by virtue of his position as the assistant district attorney responsible for responding to Mr. Sumner’s application for a Declaration of Factual Innocence, was a person in a position of authority. Mr. Sumner argues that, by withholding his consent or non-opposition to the grant of the Declaration, Mr. Kochis used his position to coerce or extort Mr. Sumner into signing the Waiver. Mr. Sumner says he signed the Waiver out of fear that the state would otherwise oppose the grant of a Declaration of Factual Innocence and out of fear for damage to his reputation if it was not granted.
In order to find that there was torture at the hands of a public official, there must be evidence of intentional infliction of pain and suffering. There is no evidence on which we can find that Mr. Kochis intended harm to Mr. Sumner.
Mr. Sumner acknowledges that the Law Society is not seeking to rely on the Waiver but argues that the communications the Law Society seeks to admit are derivative to the torture that coerced his signature on the Waiver. In order for evidence to be derivative, there must be some plausible connection between the event deemed to be torture and the evidence.
The facts do not support such a connection. There is no temporal connection between the original incident and the communications that the Society wishes to introduce. The alleged torture occurred in 2009, while the communications by Mr. Sumner were made starting in 2012 and continuing to the present.
There is also no causal or other connection between the original incident and the communications. There is no evidence that Mr. Sumner was subsequently forced to write emails or make the phone calls or any of the communications as a result of signing the Waiver.
The Society seeks to introduce these communications as evidence that Mr. Sumner has engaged in conduct unbecoming a lawyer. There is no evidence that Mr. Sumner was coerced, extorted or forced to author these documents, so as to require them to be excluded.
Another failed argument
Mr. Sumner’s last motion was brought on the basis that the Society's motion for a partial electronic hearing made it an accessory to the behaviour of Mr. Kochis, such that the application should be stayed. The motion was dismissed.
Mr. Sumner argued that, in bringing its motion to have Mr. Kochis testify electronically, the Society is interfering with Mr. Sumner's legal right to arrest Mr. Kochis.
The Criminal Code defines an accessory as:
23 (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
Mr. Sumner's intent was to arrest Mr. Kochis in Toronto if he attended to give evidence in this proceeding. The Law Society has no obligation to facilitate that arrest nor does it have any legal right to require Mr. Kochis to attend to testify in person. There is no evidence that, in bringing its motion, the Law Society is “receiving, comforting or assisting” Mr. Kochis in escaping arrest.
There is also no evidence that any of the Society’s investigators, the Proceedings Authorization Committee, or the Society’s counsel have the required intent to enable Mr. Kochis to escape after having committed an offence.
Electronic Testimony Allowed In Canadian Bar Prosecution: Attorney Allegedly Threatened California Prosecutors
A Tribunal Hearing Division of the Law Society of Upper Canada has granted a motion to allow bar witnesses to testify by electronic means.
The Law Society brought a motion for an order permitting it to call the evidence of three witnesses, Mr. Kochis, Mr. Hernandez and Mr. Laing, by electronic means. All three reside in California and are recipients of communications that, in this application, the Law Society alleges are threatening and harassing. Mr. Kochis was the Chief Deputy District Attorney of San Bernardino County in California at the relevant time. Mr. Hernandez was the Deputy Trial Counsel, Office of the Chief Trial Counsel for the State Bar of California. Mr. Laing is an investigator with the San Bernardino County Sheriff's Office.
The Law Society's motion is granted. Allowing the California witnesses to testify electronically is efficient, convenient and cost-effective. There will be no negative impact on the fairness of the proceeding.
The order being sought is justified on the basis of convenience and cost and time-effectiveness. The Law Society will incur significant costs if it must organize and pay for flights and accommodations for three witnesses from California. Further, scheduling and attendance will be facilitated if the witnesses need only be available electronically for the duration of their testimony. There is no basis to conclude that their evidence, as we understand it, is unsuitable for presentation by electronic means. They will be identifying and providing context for the communications at issue.
The application against Mr. Sumner arises out of a series of events that took place in California where he was practising law. The events are summarized here but are described in greater detail in Law Society of Upper Canada v. Sumner, 2016 ONLSTH 66 (CanLII), in which a different panel granted the Law Society's motion for an order suspending Mr. Sumner on an interlocutory basis.
In late 2007, on the strength of his roommate's private arrest, the Montclair, California police department arrested Mr. Sumner for battery and vandalism. The charges were dismissed in early 2008. In late 2009, Mr. Sumner petitioned for a Declaration of Factual Innocence (the Declaration) from the Superior Court of the State of California. After Mr. Sumner signed a waiver of his civil rights against his former roommate (the Waiver) the District Attorney, Mr. Kochis, indicated the State did not oppose the granting of the Declaration.
At some later point, Mr. Sumner concluded that Mr. Kochis had filed the criminal charges against him without cause and had improperly required him to release his claim against his former roommate as a condition of not opposing the Declaration.
Mr. Sumner alleges that he has suffered significant harm as a result of being coerced into signing the Waiver. He says that Mr. Kochis has committed a number of criminal acts in the context of requiring the Waiver, including that he (Mr. Kochis) solicited a bribe, engaged in extortion, and conspired with others to do both. Mr. Sumner says that, as a result of these actions, he is entitled under California law to make a citizen's arrest of Mr. Kochis and to require others to assist him in so doing.
Mr. Sumner threatened to arrest Mr. Kochis and use all necessary force to do so. His threats were by verbal and written communications and were numerous and public. Mr. Sumner made these threats to Mr. Kochis, and to others in positions of authority including Mr. Laing and Mr. Hernandez.
When I go to California next I will arrest. If you [Chief Deputy District Attorney John Kochis] resist, I will kill you [in] accordance with the law!!! You are a criminal and a piece of shit!!!! You should DIE!!!!!
Because you are a supporter of tyranny, you have little to no right to life. I can use violence in the street to rid the world of a tyrant you fucking piece of shit!!
You are a tyrant and I encourage anybody to blow a hole through your head and rid this world of a gangster and a piece of garbage.
Hi I would like to file a complaint about a criminal enterprise.
… the San Bernardino District Attorney's Office engages in a pattern of threatening criminal defendants with prosecutions unless they pay money to a charity or other organization. They have probably done this [to] over 10,000 people they're probably one of the biggest criminal enterprises of United States of America. I have lots of evidence if you want it …
OK well then John Kochis, Chief of the San Bernardino District Attourney's [sic] office is under arrest and if he so much as moves a muscle I'll blow a fucking hole through his brain ok. That man is fucking guilty right he's under arrest, bang mother fucker, bang bang bang bang bang mother fucker.
he's fucking dead. That fucking ... [unintelligible] ... Fucking dead that fucking piece of shit mother fucker is under arrest, you understand me? He's fucking under arrest and you are too if you think ... [Unintelligible] ... you have to arrest that mother fucker he's a fucking gangster ... [unintelligible] ... he's under arrest.
Tuesday, October 11, 2016
An Illinois Hearing Board has recommended a five month suspension of an attorney for what it characterized as "dishonest conversion"
Respondent failed to hold the escrow funds separate from his own property and converted the funds to his own use by overdrawing his personal account and repeatedly allowing the balance to fall below the escrow amount. Respondent also engaged in dishonest conduct by knowingly using the tax escrow funds for his own purposes. The Hearing Board rejected Respondent's claim that he did not know the $2,500 he received at the real estate closing represented the real estate tax escrow funds and never agreed to hold the escrow.
Significant aggravation was established, including Respondent's extreme delay in paying restitution, his own precarious financial situation, his failure to accept responsibility or show remorse, and his failure to fully cooperate in the disciplinary proceedings. There was minimal mitigation. The Hearing Board recommended that Respondent be suspended for five months and be required to complete the ARDC Professionalism Seminar.
After reviewing relevant precedent and considering the facts in this case, we conclude that a suspension for five months is appropriate and will satisfy the purposes of the disciplinary process. This sanction is within the range of discipline imposed in the cases noted above involving the dishonest conversion of comparable sums. We also believe it takes into account the significant aggravation as well as the lack of any compelling mitigation. In addition, we believe based on the record Respondent would also benefit from additional instruction regarding his ethical obligations. Therefore, we recommend Respondent also be required to complete the ARDC Professionalism Seminar as part of his discipline.
I guess I am not sufficiently schooled in disciplinary sanctions in Illinois as I was unaware that a short suspension with automatic reinstatement was the normative sanction for dishonest conversion with significant aggravation. (Mike Frisch)