Monday, February 24, 2014
A suspension of not less than two years without automatic reinstatement was imposed by the Indiana Supreme Court for ethics violations in several matters.
Here's one that may catch your eye
When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records.
He mishandled bankruptcy matters and had local judges who testified as to his practice deficiencies
Judges before whom Respondent practices gave detailed testimony regarding Respondent's deficiencies in 16 different cases. They testified that Respondent has consistently practiced far below the average level of performance for attorneys in Elkhart County, that he has failed to respond to attempts by the judges to help him improve his deficiencies, that he failed to follow through with an agreement to contact the Indiana Judges and Lawyers Assistance Program ("JLAP") for an assessment, that Respondent's deficiencies have created a tremendous amount of trouble for court staff, and that his conduct hurts his clients and the court system. One judge testified that Respondent shows "a complete lack of respect for diligence and represent clients, professionalism and . . . an utter disregard of court orders.
The Goshen News reported his reaction to the court's order.
The article notes that the attorney's issues started with trash talk
Lehman’s conduct first came into the public eye in April 2009, when the then-owner of Constant Spring, 219 S. Main St., which is next to Lehman’s office, found legal papers in the bar’s Dumpster. The owner, Jason Oswald, told The News that he complained to Lehman about him using his Dumpster and asked for $40 from Lehman for the cost of emptying the trash container. Lehman agreed to pay the fee. In that article Lehman said he was sorry for the incident and had disposed of the files, thinking they would be taken to a landfill. He was clearing old files while moving his office from Main Street to Clinton Street.
The Illinois Review Board has held that an attorney's conversion of entrusted funds was dishonest.
The facts in this matter are not in dispute and are set out in greater detail in the Hearing Board's Report. In summary, in 2010 Respondent represented the seller in a residential real estate transaction. In October 2010, Respondent received a $1,000 check from the potential buyer to be held in escrow as earnest money. Respondent took the check with the understanding that he was to keep the $1,000 in escrow for the benefit of the buyer and seller. Instead, he gave the check to his father and his father deposited the check into his father's personal bank account. Respondent did not maintain a checking account or a client fund account. His father spent the $1,000, by depositing the check and using the proceeds. Respondent testified that over time, his father gave Respondent the proceeds and Respondent used the money for his own business and personal purposes.
Given the undisputed facts, Respondent engaged in the conversion of the escrow funds. The conversion was knowing, not inadvertent. Respondent took no steps to segregate the escrow money; he gave the money to his father. Accordingly, this conversion can be distinguished from those cases cited by the Hearing Board where the attorneys converted client funds by depositing the money for safekeeping and later inadvertently, or through sloppy bookkeeping, used the funds. Cf., In re Timpone, 157 Ill.2d 178, 195, 623 N.E.2d 300 (1993); In re Mulroe, 2011 IL 111378 pars. 22-23. Here, Respondent knew he was not safekeeping the funds when he gave the check to his father. We find that, as a matter of law, Respondent's conversion was dishonest, and he violated Rule 8.4(c).
The board recommended as discipline a four-month suspension followed by probation for a year. If the probation is vuiolated, the board would recommend suspension until further court order. (Mike Frisch)
Friday, February 21, 2014
The Maryland Court of Appeals has ordered disbarment in a matter summarized in the court's headnote:
Court of Appeals disbarred former Deputy State's Attorney who, due to infatuation with a co-worker, used his position while in office to enter nole prosequi dispositions for five traffic citations as personal favors to the co-worker, facilitated the co-worker's taking leave to which she was not entitled, interfered with a criminal prosecution of the co-worker for embezzling funds from the State's Attorney's Office, and deleted protectively emails from the co-worker's work computer after her termination.
The attorney's misconduct took place while serving in Queen Anne's County. The co-worker was his office manager.
The court's 5o page opinion rejects a host of exceptions that the attorney had filed.
Among the allegations was a contention that the Assistant Bar Counsel had facilitated violation of a witness sequestration order. (Mike Frisch)
Thursday, February 20, 2014
A Casper, Wyoming attorney named Casper has been suspended from practice for 30 days.
CBS 5 reports on the case:
The Wyoming Supreme Court has suspended Casper attorney Stacy E. Casper from the practice of law for a period of 30 days commencing August 1, 2014.
The suspension arose from a complaint that was filed against Casper by the ex-spouse of one of Casper’s divorce clients, and was submitted to the Wyoming State Bar after Casper filed a lien against property the court had ordered sold in the decree of divorce. Casper had represented the wife in the divorce but had withdrawn from the case based upon her client’s failure to pay more than $18,000 in fees and costs incurred in the case. Casper’s client was left to finish the case without representation. After the divorce decree was issued, Casper filed a lien against the property in an attempt to collect her unpaid fees.
Upon investigation, it appeared that Casper had committed improper billing practices in the case, which resulted in formal disciplinary proceedings being brought against her for charging an unreasonable fee and for filing an improper lien. Casper was also charged with filing confidential documents – her fee agreement and detailed billing statement without the consent of her client – with the lien statement in violation of her obligation of confidentiality to her client.
Before the disciplinary case went to hearing before the Board of Professional Responsibility, Casper expressed genuine remorse and entered into a stipulation in which she conceded that her billing practices violated Rule 1.5 of the Wyoming Rules of Professional Conduct, which prohibits a lawyer from charging an unreasonable fee. Specifically, Casper admitted that she abused a provision of her written fee agreement which provided that all time would be billed in minimum increments of one-quarter hour, that in some instances she billed twice for the same activity, that she improperly billed her client for time spent in seeking a continuance that was the result of Casper’s personal scheduling conflicts, and that she did not keep accurate records of her time.
Casper also admitted that her conduct in filing the inaccurate lien statement violated Rule 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving misrepresentation. She further admitted that in recording with the county clerk her fee agreement along with her detailed billing statement without specific consent of her client, she violated Rule 1.9(c), which prohibits a lawyer from revealing confidential information relating to the representation of a former client except in certain situations not present in this case.
Casper agreed to a 30-day suspension of her right to practice law. A stipulated motion to that effect was approved by the Board of Professional Responsibility, after which a report and recommendation for such discipline was submitted by the Board to the Wyoming Supreme Court. The Court approved the report and recommendation and ordered Casper’s suspension for a period of 30 days commencing August 1, 2014. Casper was also ordered to pay an administrative fee of $500 and costs of the disciplinary proceeding to the Wyoming State Bar.
The court noted that the attorney seeded into her fee agreement a provision that allowed her to bill in not less than quarter hour increments. The court did not condemn this practice but found double-billing and unnecessary charges
In this case, Respondent had specifically contracted with her client to bill in minimum increments of fifteen minutes. This Court does not hold that such an agreement is unreasonable...Respondent in this case billed in fifteen-minute increments, in accordance with the contractual terms, times a reasonable rate. Howver, her practice of billing fifteen minutes for such tasks as signing subpoenas, stipulated orders, and one-page letters demonstrated a complete failure to exercise business judgment, which would have required her to write off unproductive, excessive, or redundant hours.
The opinion is linked here. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has denied an application for bar admission of an applicant who had a lengthy criminal record that culminated in a death.
This was the third application dating back to 1985.
The applicant's criminal record dating back to the 1970s shows someone who gravitated to society's underside before escalating to crimes that culminated in the brutal death of an elderly woman. Although this criminal history, now several decades old, would not itself be a dispositive consideration as we evaluate the present application, it nevertheless provides something of a template for our analysis of his character and moral fitness. A renewal applicant does not get to wipe the slate clean, so to speak, simply by the passage of time for purposes of our subsequent review. Regardless whether the crime was committed recently or years ago, the applicant was required to adequately address his criminal past.
In order to evaluate his present character for these purposes, it is important to look into why his initial application for admission to the bar was unsuccessful, and to use the record of that proceeding, which necessarily incorporated his criminal record, as a baseline for measuring his rehabilitation as well as his credibility and acknowledgment of responsibility with respect to the current application.
The court recounts the applicant's criminal history leading up to this
On December 12, 1975, 38 years ago, the applicant and a codefendant were arrested for murdering a 69-year-old woman whose apartment they burglarized. This arrest and the applicant's subsequent conviction will be further described below insofar as the applicant's explanation of his participation has a continuing bearing on our decision to reject his application. After separate trials, the codefendant was convicted of murder in the second degree and sentenced to 15 years to life, although his conviction was later reversed by the Court of Appeals on the basis that his statement had been unlawfully obtained. The codefendant pleaded guilty to robbery in the first degree and thereby avoided a retrial. Faced with a murder charge and his own inculpatory statement as to which suppression had been denied, the applicant pleaded guilty to burglary in the first degree and was sentenced to a maximum term of 20 years. The Second Department affirmed the judgment. He served five years of the sentence and was released to parole supervision in 1980, and received a final discharge from parole in 1986.
From that point, the applicant's personal history took a commendable turn for the better. Making beneficial use of his time after his release, he attended law school and received a J.D. degree in 1985. After passing the bar examination, however, his 1987 application for admission was rejected in substantial part because of his lack of candor and veracity in acknowledging his criminal past, especially about his drug sales and his actions during the burglary that led to the victim's death.
The court describes the path of the various application efforts and agrees with its Committee on Character and Fitness that admission is not appropriate
..,.the application founders principally on two factors. While the killing of a victim during the commission of a felony is an extremely serious crime, the factual circumstances surrounding this case make this crime more egregious. Here, a helpless and defenseless 69-year-old woman awoken from sleep in the sanctity of her home, bound and gagged, most likely dying in extreme terror of an agonizing death as she was slowly asphyxiated while her home was ransacked and property stolen, weighs heavily against conferring on the applicant the privileged legal status that he now seeks. We find the tragedy of the outcome in the present case to require a more exacting accountability.
Secondly, in explaining that death as well as other aspects of his criminal record, the applicant also has displayed a pattern of shifting the blame away from himself. Even if recently he seemed more inclined to accept responsibility, he seemed to do so almost as a matter of formal rote, for criminal conduct that he had freely undertaken. That pattern was most visibly on display for the earlier phase of his application history, and we necessarily look more particularly at his more recent testimony. Yet, we still cannot avoid the observation that the applicant continues to evade a candid and complete acknowledgment of his responsibility for the events that comprise his criminal history. That equivocation diminishes the candor necessary to support this application.
Justice Andrias dissented and would admit
Stripped of hyperbole and rhetoric, the majority is denying petitioner's application based on its belief that he has not been adequately punished for his past crimes, which include his participation in a burglary in which an elderly woman suffocated after she was gagged. However, that is not the test we applied in Wiesner, which focuses solely on whether the applicant currently possesses the character and fitness to practice law. Applying that test, although the nature and character of the crimes committed by petitioner raise serious concerns, petitioner's consistent behavioral pattern of responsibility and societal contributions over the past 32 years, and hisadmissions in his current application and before the subcommittee that he is responsible for his past criminal acts and for his lack of candor in his prior applications, clearly and convincingly demonstrate that petitioner's personal reform and rehabilitation are genuine and complete. Accordingly, because petitioner currently possesses the requisite character and fitness for admission to the bar, I dissent and would grant the application.
The New Jersey Supreme Court has imposed a censure of an attorney convicted of offenses arising from a road rage incident with two younger drivers.
...respondent was driving through the town of Clinton below the posted twenty-five mile per hour speed limit, when a car with two young men (ages nineteen and twenty) began to tailgate him. Respondent became upset with the driver of the vehicle and, when the speed limit increased to forty miles per hour, he continued to drive at a speed of twenty miles per hour. Respondent gestured with his middle finger at the other vehicle. Both individuals in the other vehicle returned the gesture. Respondent then slammed on his brakes, almost causing a collision. He pulled over to the side of the road, opened his car door, partially emerged from the vehicle, and brandished a knife. The two young men drove past respondent, at which time respondent got back into his vehicle and began to follow them through several towns for approximately nine to twelve miles. During the pursuit, the passengers could still see respondent brandishing the knife. One of the two young men called the police to report respondent’s aggressive driving and to complain that he was waving a knife. The dispatcher instructed the young men to drive to the Hunterdon Medical Center where the police were waiting. Initially, when the police questioned respondent at the scene, he denied that he had a knife but, later, admitted having one in his car. He falsely informed the police that a mechanic where his car had been serviced had given the knife to him to use to fix his vehicle. Respondent also told the police that the reason he followed the men was to annoy them.
The Disciplinary Review Board described the factors that led to the censure recommendation
...respondent had no physical contact with the driver and passenger of the other vehicle. His actions, however, were menacing. He followed them for several miles and waved a knife at them, prompting the young men to seek police intervention. In that regard, respondent’s conduct is more serious than Thakker’s (reprimand). However, his conduct is not as serious as that of the attorneys who received suspensions, where actual physical contact was involved. Furthermore, he is receiving treatment for his psychological and medical issues and is not an attorney from whom the public must be protected, given that he is not currently engaged in the practice of law. For these reasons, we determine to impose a censure, rather than the three-month suspension recommended by the OAE.
The attorney presented evidence of psychological issues that made him angry at being followed too closely by another vehicle.
He had no prior discipline. (Mike Frisch)
An attorney who just consented to disbarment by the New York Appellate Division for the Second Judicial Department made headlines last year for his advice to a grand jury witness.
The Daily News had this story:
It was sex, lies and a stunning audiotape Tuesday at the trial of a woman accused of lying to a grand jury investigating a drug-fueled sex romp involving a rich banana importer at an exclusive Manhattan hotel.
“I’m gonna suggest to you what you should say,” jurors heard lawyer Barry Balaban say to Nicole Zobkiw, 29, during a meeting recorded on the eve of her grand jury appearance in April 2011. “If you say this, the case will go away.”
On the tape, Balaban dismisses Zobkiw’s concerns that she’ll look bad: “If you say you were drunk and didn’t see anything, there’s nothing they can do.”
The grand jury was trying to determine if banana baron Thomas Hoey gave Kimberly Calo, 41, cocaine before she OD’d at the Kitano Hotel in 2009. Calo snorted coke and collapsed after she and Zobkiw had sex with Hoey in his room, prosecutors said. Zobkiw said she perjured herself at Balaban’s behest.
After the recording was played in Manhattan Federal Court, Zobkiw’s boyfriend John Murphy testified he made the tape because Balaban “seemed more like a scene from a movie than a lawyer” who was trying to help her. He said he gave it to authorities after Zobkiw was arrested last year.
Attorney Joseph Conway said Hoey “is not on trial and is not accused of any wrongdoing.
The consent conceded that he could not defernd charges of suborning perjury, obstruction of justice and witness tampering. (Mike Frisch)
Wednesday, February 19, 2014
The California State Bar Court Review Department has concluded that a criminal conviction involved moral turpitude and proposed disbarment on the following facts
Wyatt, an attorney since 1976, lives in Rossmoor, a gated senior community. On December 10, 2010, between 4:00 and 5:00 p.m., Wyatt drank vodka at home and then drove to a restaurant in a neighboring town where he ate dinner and drank one beer.
Meanwhile, Edward Phillips, an 85-year-old Rossmoor resident, was waiting near his home for a bus. It was his nightly routine to call for a Rossmoor shuttle bus to take him to P.F. Chang’s restaurant for dinner. At the time, Phillips was carrying his cane, which he occasionally used to assist him with walking.
Around 6:30 p.m., as Wyatt was driving home from the restaurant, he struck Phillips. Upon impact, Phillips smashed Wyatt’s windshield, was thrown between 38 and 52 feet, and landed with his head near the curb and his feet extending toward the middle of the road. Phillips was bleeding profusely from a severe head wound. Wyatt did not have a cellular phone. He got out of his car, found Phillips nonresponsive, returned to his vehicle, and drove one mile to the guard station at the front gate to get help, leaving Phillips alone. He reported the accident to the security guard, who told him to wait in the guard station. Wyatt drank coffee and water while he waited. The security guard called the paramedics and police.
The attorney claimed that the victim (who died 60 hours later) had "streaked" in front of his car. His story changed to a "hobbled gait" when he learned that the victim was 85. He also concealed the amount he had to drink before the incident.
The attorney is described as a leading environmental attorney and a dean of the environmental bar. (Mike Frisch)
An attorney who had consented to disbarment in the District of Columbia has managed to persuade New York to impose lesser reciprocal discipline.
Instead of disbarment, the New York Appellate Division for the Fourth Judicial Department ordered a suspension of two years and until further court order
We agree with respondent, however, that the imposition of the sanction of reciprocal disbarment would be unjust under the circumstances of this case, particularly considering the nature of the conduct that provided the basis for respondent’s consent to disbarment in the District of Columbia and his statement that his depression contributed to his decision to consent to disbarment.
I must say, as a matter of opinion, that if the attorney conceded that disbarment was appropriate in the place that was investigating and prosecuting him for misconduct, I have difficulty understanding the rationale here. (Mike Frisch)
An attorney who had participated in false certification on HUD-1 statements, failed to supervise the conduct of another attorney and paralegals that he employed and used his law firm's trust account to "fund all or part of the buyer's contribution reflected on certain HUS-1 Statements" was disbarred by the Delaware Supreme Court.
The court's order appends the report of its Board on Professional Responsibility, which stated
Respondent participated in a criminal act of an equity stripping scheme to defraud innocent people of their life savings and in doing so made misrepresentations to lenders causing them injury as well. Any lesser sanction would only serve to exacerbate the substantial loss those innocent people suffered.
The board noted that the attorney admitted conduct that violated federal law although he had not been convicted. His plea for a lesser sanction fell on deaf ears. (Mike Frisch)
The Ohio Supreme Court decided three cases yesterday involving the unauthorized practice of law.
Kevin Kidder has this summary from the court's web page
In three separate cases announced today, the Ohio Supreme Court ruled that a real-estate agent, a man who represented a debt-consolidation company, and another man who owned a divorce-assistance company, none of whom are attorneys, all engaged in the practice of law without having been admitted to the bar.
Company prepares faulty divorce petition Norm Hernick owns companies called “Law Online Inc.” and “A Divorce Fast.” In 2007, Andrea Colburn contacted A Divorce Fast when she was seeking a divorce from her husband, Derik Derousse.
She was advised by the company that she did not need legal advice or representation and, after paying $539, A Divorce Fast prepared a divorce complaint on the grounds of irreconcilable differences. Colburn told the company she wanted child custody and support, but the complaint did not include her request. When she tried to file the complaint in court, court personnel told her it was unacceptable and they helped her with the divorce paperwork. Ultimately, the divorce was granted on grounds of incompatibility and living separate and apart for more than one year, contrary to what A Divorce Fast had determined.
In today’s unanimous per curiam (not authored by a specific justice) decision, the court adopted the recommendation of the Board on the Unauthorized Practice of Law to approve a consent decree. In the decree, which is a judgment that all the parties agree to, Hernick admits he engaged in the unauthorized practice of law (UPL) when his company prepared Colburn’s complaint.
The decree requires that Hernick and any company he owns cannot engage in UPL, he must pay a $1,000 fine, and he must reimburse Colburn her $539.
Non-lawyer drafts legal documents for homeowners, represents his real-estate company in court In a second case, the Supreme Court unanimously held that former Mount Vernon arearesident Paul-Eugene Miller had provided legal services, filed paperwork in county recorder offices, and represented his company in court, despite not being an attorney, thus engaging in the unauthorized practice of law.
Miller was a managing partner in Diversified Benefits Group Ltd., a company in the business of purchasing homes. Miller, as an agent for the company, would enter into agreements with homeowners to sell their houses to Diversified, and prepare contracts, deeds, trust agreements, affidavits, powers of attorney, and promissory notes.
In 2007, in Howard, Ohio, Craig and Heidi Stevens hired Miller to prepare paperwork to sell their home to him. They paid him $3,000, and he had the couple sign a limited power of attorney, a trust agreement, a “land trust beneficial interest assignment,” and other documents. Miller agreed to take care of all of the property’s expenses once the papers had been signed.
Subsequently, the couple discovered that neither the company nor Miller were making the mortgage payments on the house. Because the couple could not reach Miller, they lost their house to foreclosure. At least five other homeowners reported similar circumstances involving Miller.
In today’s per curiam decision, the court adopted the Board on the Unauthorized Practice of Law’s report, which found that Miller had engaged in UPL seven times, six times in his dealings with homeowners and once by representing Diversified in court.
The court levied a penalty totaling $7,000 and ordered Miller to stop the unauthorized practice of law.
Company barred from representing debtors in collection matters In 2010, the Ohio Supreme Court approved a consent decree stating that Stuart Jansen and his company, American Mediation & Alternative Resolutions, had represented several clients who were in debt in their settlements with creditors, constituting UPL.
That decree required American Mediation to stop sending correspondence to creditors that disputed the debts of their clients, and to stop representing debtors in the resolution of their debts with creditors.
In today’s unanimous decision, the court adopted the Board on the Unauthorized Practice of Law’s report, which determined that Jansen and American Mediation had violated the 2010 consent decree by continuing to represent debtors in their settlements with creditors.
After the 2010 consent decree went into effect, American Mediation sent about 35,000 solicitation letters to potential clients and sent close to 459 proposed settlement letters to creditors on behalf of their clients, who paid between $250 and $295 per case.
A new consent decree, approved by the court today, noted that even though the company altered its letters to say that they were not attorneys, the business was not a mediation service, as they claimed.
“The one-sided nature of [their mediation] agreement, which also requires the debtor to pay respondents’ fees in full, reveals that while respondent’s forms may have changed, their underlying business practices – which constitute the unauthorized practice of law – have not,” the court’s per curiam opinion stated.
The court ordered Jansen and American Mediation to permanently stop engaging in “any arbitration, mediation, or alternative dispute resolution of any kind for profit.” It also stated that a minimum penalty of $50,000 will be imposed if either Jansen or American Mediation is found to engage in UPL again.
An attorney who represented clients in three municipal courts while suspended for non-payment of his annual client security fund assessment has been censured by the New Jersey Supreme Court.
The court followed the recommendation of its Disciplinary Review Board.
The DRB report noted that the attorney had appeared in court knowing that he had failed to pay the fund for five years and after being served with notice from disciplinary authorities.
He also had a prior reprimand for the same misconduct and failed to participate in the proceedings. These aggravating factors bumped the sanction up from a reprimand to a censure.
One DRB member would impose a three-month suspension.
There are other jurisdictions (Pennsylvania, for instance) where this misconduct would lead to a lengthy suspension. (Mike Frisch)
The web page of the District of Columbia Bar reports the following scheduled bar disciplinary hearing:
In re Larry E. Klayman, D.N. 048-08
April 7-8, 2014, 9:30 a.m.
Hearings are held in the District of Columbia Courthouse.
The petition (which is not available on line) alleges three instances of violations of District of Columbia Rule of Professional Conduct 1.9 in representing interests materially adverse to Judicial Watch in the same or substantially related matters.
It states that Mr. Klayman was Chairman and General Counsel of Judicial Watch from July 1994 to September 2003. (Mike Frisch)
Tuesday, February 18, 2014
A law firm partner and the firm itself have been publicly censured by the New York Appellate Division for the Second Judicial Department.
Cohen & Slamowitz, LLP (hereinafter C & S), is a law firm engaged in the practice of law with offices at 199 Crossways Park Drive, P.O. Box 9004, Woodbury, New York 11797-9004. David A. Cohen (hereinafter the individual respondent) is the senior partner of C & S. As senior partner, the individual respondent oversaw the legal activities of C & S's collection practice during the relevant period of time, and indirectly supervised approximately three hundred employees, including attorneys, paralegals, collection staff, and support staff. In April 2002, the individual respondent had an informal discussion with Grievance Committee counsel, and was advised to "exercise caution, try to be careful and supervise [his] staff adequately, make sure [he had] appropriate and reasonable procedures in place, and that [he monitored those] procedures." The individual respondent also was advised that he, his partner Mitchell G. Slamowitz, and the attorneys employed by C & S were responsible for the conduct of their staff.
The court found ethical misconduct in several matters where the firm pursued the wrong debtor
The individual respondent, David A. Cohen, did not testify. Rather, the respondents relied primarily upon the testimony of an expert witness, Ronald M. Abramson, Esq. A creditors' attorney and member of the Grievance Commission of Maryland, Abramson testified that the respondents' conduct was both reasonable and proper in the aforementioned matters. According to Abramson, the respondents could not assume that what was being told to them by the debtors was correct, and that the onus was not upon the respondents to establish the validity of the debtors' claims absent written notice from the debtors, within 30 days, following their presumed receipt of a validation letter pursuant to the Fair Debt Collection Practices Act (15 USC § 1692k; hereinafter FDCPA). Abramson testified, further, that in the absence of FDCPA violations, there could be no ethical violations. However, on cross-examination, Abramson conceded that there did not have to be a violation of the law for there to be professional misconduct.
Notwithstanding Abramson's testimony, we find that the respondents' conduct in the aforementioned matters was neither reasonable nor proper, particularly in the Mujtaba, Quader, and Kerschhagel matters, wherein the respondents had information at their disposal that they were pursuing the wrong debtor; continued to pursue a collection matter even after the matter was concluded; and restrained a debtor's bank account despite improper service and knowledge that the debt had previously been satisfied. Based upon their unreasonable and improper conduct in multiple debt collection matters, we find that the respondents engaged in a pattern and practice of failing to act appropriately, and that this pattern and practice was prejudicial to the administration of justice, in violation former Code of Professional Responsibility DR 1-102(A)(5) (22 NYCRR 1200[a]; cf. Matter of Sokoloff, 95 AD3d 254).
As to sanction
In determining an appropriate measure of discipline to impose, we note that the respondents have a voluminous history of similar misconduct. On or about June 29, 2012, the individual respondent received a Letter of Reprimand emanating from complaints filed between 2004 and 2008, which were similar in nature to those presently before the Court. Additionally, from 1996 through 2005, a total of seven Letters of Caution, two Admonitions, and three Personally Delivered Admonitions, were issued to either the individual respondent or C & S, and they all emanated from complaints similar to those involved in the instant petition, and arose from conduct including the failure to conduct adequate investigations prior to commencing debt collections or restraining bank accounts, the failure to adequately supervise non-legal staff, and the failure to adequately address inquiries and complaints from alleged debtors.
In mitigation, C & S's managing attorney, Leandre John, testified that the respondents have undertaken efforts to reform their collection practices by adding a compliance department and other safeguards to prevent future misconduct. John testified that he presently oversees C & S's legal procedures, supervises the attorneys and support staff in the legal department, and assists the individual respondent and his partner in addressing legal issues. He testified, further, that the respondents' compliance department reviews complaints from debtors and alleged debtors, as well as issues between managers and staff. The respondents' expert witness, Abramson, testified that staff training is better now than it was prior to 2008. Moreover, he was impressed by the respondents' compliance department.
The Louisiana Attorney Disciplinary Board has recommended permanent disbarment of a partner in an insurance defense firm who
repeatedly engaged in intentionally reckless expense reporting which resulted in hundreds of misrepresented travel expenses and tens of thousands of dollars in erroneous reimbursements for his sole benefit. Despite an earlier warning by the firm that such conduct was unacceptable, [he] perpetuated the pattern and caused substantial and potentially irreparable injury to Farm Bureau and [his law firm].
The Board rejected the attorney's claim that the evidence against him was hearsay and based on second-hand knowledge. The Board noted that strict rules of evidence do not apply and that the evidence was persuasive and reliable hearsay.
He had previously been suspended for a year and a day for failing to file federal income tax returns. (Mike Frisch)
The Louisiana Attorney Disciplinary Board has concluded that an attorney engaged in no ethical violations in connection with her efforts to assist a pro bono client with his financial affairs.
The charges arose from a petition for interdiction and to appoint a curator filed by an attorney, which is what we here in D.C. would call a guardianship proceeding.
While the Board found that the petition was "sloppy and confusing," it did not rise to the level of a Rule 1.1 violation.
The Board also rejected charges that the attorney had violated her duty of confidentiality in disclosures made during the process, noting that such disclosures were common in such proceedings.
The Board dismissed the charges. (Mike Frisch)
Monday, February 17, 2014
An attorney who wrote two checks on her escrow account with the ledger notation "Help Me" was given a stayed 60-day suspension with conditions by the Indiana Supreme Court.
The attorney was addicted to playing slot machines. The two checks were written to cover gambling losses when her operating account was down to $10.
One check for $1,100 was honored; the second check for $550 was not.
Since the mid-2012 misconduct, the attorney sought treatment for her addiction. Except for a single relapse in April 2013, she had been slot-free since November 2012.
The $1,100 was restored. (Mike Frisch)
The North Carolina State Bar filed charges on Valentine's Day alleging that an attorney who was admitted in 2009 and practiced domestic relations law engaged in improper sexual behavior towards three clients.
The allegations include charges that the attorney texted pictures of himself in the full-length nude and of his erect penis. He also is alleged to have kissed and touched clients in a sexual manner.
He allegedly told one client that he had had a vasectomy and could thus "ride bareback."
Finally, it is alleged that he "wrote off" bills to a client who was the subject of his attentions without advising his firm and lied to the State Bar in response to complaints against him. (Mike Frisch)
Sunday, February 16, 2014
The Louisiana Supreme Court has imposed discipline on two attorneys, only one of whom is admitted to practice in the jurisdiction.
The misconduct took place in a federal case involving a work-related diving accident.
The non-admitted attorney had participated in a deposition and been listed as counsel of record but not sought admission pro hac vice in the case. He thus had engaged in unauthorized practice.
The court held that it had plenary authority to regulate practice within its borders for the protection of its citizens. The sanction imposed prevents the attorney from seeking full or pro hac admission or three years.
Notably, the non-admitted attorney (licensed in Texas and Pennsylvania) was acquitted of ethical misconduct involving the same client by a Texas jury. There, the charges involved providing improper financial assistance and solicitation of professional employment.
The court here rejected the argument that it was obligated to accord full faith and credit to the Texas acquittal because the charges of unauthorized practice were not addressed in that action.
The other (admitted in Louisiana) attorney was disbarred.
Justice Knoll would disbar them both. (Mike Frisch)
Friday, February 14, 2014
The North Dakota Supreme Court has ordered a 30-day suspension of an attorney on these stipulated facts:
[Attorney] Shaft admitted the following facts and conclusions. From 1986 to 2012, Shaft practiced in Grand Forks as a member of Shaft, Reis & Shaft, Ltd. ("SRS"). Shaft was a fifty percent shareholder, director, and a corporate officer in SRS, holding the positions of Vice President and Secretary. SRS always operated such that all compensation for legal services performed by the employed attorneys was the property of SRS. The firm did not have written policies regarding matters such as pro bono work, representing family, developing and teaching continuing education courses or mediations. Eleven times during the years he practiced at SRS, Shaft directed payments for his services be paid directly to him at his residential address, instead of to SRS. Shaft generated bills for the eleven matters listing his residence address as the billing address instead of SRS. The matters included, but were not limited to, Shaft formulating and teaching continuing education courses, handling mediations, and a situation where Shaft represented family members. The total amount of the payments Shaft received for the matters was approximately $40,000.
In December 2012, Shaft withdrew from SRS and became the sole shareholder in Grant H. Shaft, PLLC doing business as Shaft Law Office. Shaft reimbursed SRS for the total amount of payments he received for the eleven matters and, upon reimbursement, was paid a sum equal to his fifty percent interest in the amounts reimbursed. By written agreement, SRS and Shaft have resolved any remaining issues regarding similar billings.