Monday, January 12, 2015

Let Us Now Praise A Diligent D.C. Hearing Committee

A District of Columbia Hearing Committee has acted with highly unusual (if not unprecedented) diligence in a case where the hearing was conducted on September 11, 2014.

The committee issued a comprehensive 66-page report last week finding that the attorney had engaged in misappropriation and other misconduct.

The committee recommends disbarment and restitution.

As to the nature and seriousness of Respondent’s misconduct, the Court has recognized that violations involving intentional misappropriation, such as engaged in by Respondent, “strike at the core of the attorney-client relationship by undermining the public’s faith that attorneys will fulfill their duties as fiduciaries in handling funds entrusted to them by their clients.” In re Omwenga, 49 A.3d at 1238. As to instances of misrepresentation or dishonesty reflecting the moral fitness of Respondent, the record of Respondent’s misconduct in both the Anderson and Mills matters is replete with instances of dishonest and deceitful conduct, including: theft, misrepresentations to the court, his clients, and opposing counsel; false statements to the court; and misappropriation of Estate assets to pay his attorney’s fees and to pay personal expenses. As to Respondent’s attitude towards the underlying misconduct, his deliberate failure to participate in the instant disciplinary proceedings, reflects a complete disregard for the Rules and for the process under which he may be held accountable for violations of those rules

The accused attorney had failed to appear to contest the charges.

I've seen cases where the attorney failed to contest the charges but it nonetheless  took several years for the hearing committee to issue a report.

The case is In re Jerome E. Clair.

My heroes: Committee Chair Robert L. Walker, public member Kawin Wiliarat and attorney member Margaret Cassidy.

If the discipinary system worked like this on a regular basis, the disciplinary system would work. (Mike Frisch)

January 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Transparency For Thee But Not For Me

Back when the District of Columbia was considering a rule revision to permit Bar Counsel to negotiate consent dispositions in cases other than consents to disbarment, the bleating mantra of the Bar Insiders on the study committee (personified by former members of the Board on Professional Responsibility and their minions) was that the process needed to be transparent.

The study committee used its purported concern about transparency to craft  a proposed rule that (1) so tied the hands of Bar Counsel, and (2) was so laden with review and process,  to render consent dispositions as unpredictable, time-consuming and burdensome as a full-dress disciplinary proceeding.

They largely succeeded, although the Court of Appeals in its wisdom adopted a far more workable rule than that which the Exalted Poo-Bahs had proposed.

In fairness, the more sensible consent rule adopted by the court was due in large part to the then-BPR , which had registered disagreement with the committee's proposal.

My praise for that act of courage is linked here.

The BPR's real-world hostility (see here) toward consent dispositions post-rule change has, in my view, severely impeded the use of this necessary tool.

 Well, if you want some insight into how much the present BPR cares about transparency, go to the Bar's web page and click on the Scheduled Hearings link.

Here is all you will see:

Hearings are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals at 430 E Street, N.W., Washington.D.C. 2o001.

Please contact the Executive Attorney at (202) 638-4290 to confirm the date, time, and location of hearings, as schedules are subject to change.

In re Idus Daniels D.N. 400-13, July 14 [2014], 9:30 am, Courtroom II

That's it.

One notice of a hearing that was scheduled last July. It presumably took place six months ago.

Now, I happen to know that a boatload of Bar Counsel petitions were approved last August. I would have to presume that some of these matters now have scheduled hearings.

If not, the BPR is in violation of its own scheduing rules.

Why isn't this link regularly updated?

It is the sole source of information about disciplinary proceedings. These matters are open to the public for a reason -- to increase awareness and to allow an interested observer some opportunity to see "self-regulation" in action.

There is a hearing that is starting today.

It has never been listed on the web page.

Have other hearings already been held that were never listed?

The BPR's executive office is notoriously overstaffed, overpaid and underworked.

I would submit that there are sufficient resources to insure that the Bar web page is kept current information in the only place where the public gets notice about public disciplinary proceedings against D.C. attorneys.

It is a disgrace that the public never got any notice of today's proceeding.

And why have public charges against attorneys never been made available on the bar web page?

My answer: transparency hypocrisy. (Mike Frisch)

January 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2015

"Sometimes Things Happen In A Case"

The Indiana Supreme Court has imposed an emergency interim suspension of an attorney who was the subject of this story in the August 2011 online ABA Journal:

A prominent Southern Indiana criminal lawyer who formerly worked as a public defender and ran unsuccessfully for a seat on the bench several years ago has been arrested on drug charges along with her boyfriend.

Leah Fink, 47, is accused of having a meth lab in her home, which she and Jeremy Ripperdan, 40, allegedly used as a base for manufacturing and selling the drug, according to the Courier-Journal and WLKY.

The two were arrested following a raid on the home in Corydon early this morning by the Harrison County Sheriff’s office and state police following a two-month investigation.

At last report Fink was being held in the Harrison County Jail in lieu of $40,000 cash bond on charges of manufacturing meth and possession of meth and marijuana, among others.

“This just points out how powerful these drugs can be,” said Harrison County Sheriff Rod Seelye, describing Fink as someone from a well-regarded family who “has an addiction issue.”

The News and Tribune and WAVE also have stories.

The articles don’t include any comment from Fink, Ripperdan or their counsel. Her law office was closed today. Admitted in 1991, Fink is in good standing with no attorney disciplinary history.

The Indiana Lawyer recently reported

Former public defender Leah Fink was arrested more than three years ago after police in southern Indiana found the makings of a meth lab that they connected to her and a boyfriend with a lengthy criminal record.

While her Class B felony dealing methamphetamine charge and four other felonies were pending in Harrison County, Fink, 49, was arrested again in June with co-defendant Jeremy Ripperdan. She was charged in Clark County with dealing meth and two other felonies.

Fink’s first charges, as well as similar counts for Ripperdan, have been pending since August 2011.

“I’d say that’s unusual,” Clark County Prosecutor Steven D. Stewart said. “It’s unusual, but it’s not unheard of. Sometimes things happen in a case.”

What’s happened in Fink’s case caught the notice of the Indiana Supreme Court Disciplinary Commission. Last month, by a required vote of at least two-thirds, the commission asked justices to order an emergency suspension of Fink’s law license. Allowing Fink to continue to practice would pose a threat of harm to clients, potential clients, and the administration of justice, the commission says.

“The commission has monitored (Fink’s) case in Harrison County both in conversations with the prosecuting attorney of Harrison County and by regular review of the (chronological case summary),” the petition says. “The case has a lengthy history,” including numerous continuances by Fink and an interlocutory appeal to the Court of Appeals, the commission noted.

“Everything that could drag a case out has happened here,” said Harrison County Prosecutor Otto Schalk. “There certainly has been some chatter among the community – what’s going to happen and when is it going to happen. It’s a fair conversation.”

Schalk said Fink’s case “certainly garnered some interest due to her profession. … We treated it like any other defendant, thinking that’s what justice requires and people expect.”

At IL deadline, Fink had not responded to the disciplinary petition. Barnes & Thornburg LLP partner Donald Lundberg is representing Fink in the disciplinary proceeding and said he could not discuss a client’s pending matter. Contacted by phone, Fink declined to comment.

The reports notes that the attorney spent at least 185 days in jail and has acknowledged an addiction problem.

The attorney has an inactive Kentucky license and is employed as a legal assistant at a Kentucky firm. Indiana prohibits a suspended attorney from "maintaining a presence in a law office." She sought an order that would allow her to continue to work as a non-lawyer in Kentucky, which has no such prohibition.

The court denied the request.  (Mike Frisch)

January 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Ticket To Ride: Smolen Suspension Proposed

A one-year suspension with treatment conditions has been proposed by an Illinois Hearing Board for former Sidley Austin partner Lee Smolen.

Many of the facts related to Respondent's conduct are not in dispute. Respondent admits he falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take. He further admits he received reimbursement totaling $69,800 for the fabricated receipts.

Respondent's conduct was purposeful and intentional. We do not accept his explanation that he simply acted without thinking. Respondent made conscious decisions and took conscious action each time he created and submitted a false receipt. He charged the cab rides to the Wells Fargo unallocated account, which he controlled. There was no reason for Respondent to take the actions he took unless he intended to make the Sidley accounting department and management believe something that was not true, i.e., that he incurred valid cab ride expenses for which he was entitled to be reimbursed. See Edmonds, 2014 IL 117696 at par. 55.

We do not find credible Respondent's assertion that he did not realize he was doing anything wrong. An attorney of any level of experience should recognize the wrongfulness of fabricating expenses. Given Respondent's substantial legal experience and accounting background, his professed lack of awareness is implausible.

Respondent's purported use of the reimbursement funds for a legitimate purpose does not alter our finding of dishonesty. Other than Respondent's testimony, no evidence supports his claim that he used the funds for client development. Respondent's testimony on this issue was inconsistent and he has no records or receipts to corroborate his assertion. Respondent's wife testified that she withdrew cash from their checking account and gave it to Respondent, but she had no knowledge how Respondent spent the cash.

The hearing board noted that

In 2005, Respondent billed 3,576 hours, which included time billed to clients and time spent on services to the firm. He billed 3,483 hours in 2006 and 3,332 hours in 2007. (Tr. 192-93). Respondent typically spent 12-15 hours per day at work and did additional work after he came home and on weekends. (Tr. 262-63, 352). He slept three or four hours per night. (Tr. 359). Respondent's annual compensation at the time he left Sidley was $3.5 million. (Tr. 33). He was one of the most highly compensated partners in the firm. (Tr. 34).

Sidley partner Theodore Miller testified Respondent felt he should receive more compensation. (Tr. 149). According to Miller, the intensity with which Respondent sought additional compensation caused him to stand out from the vast majority of Sidley partners. (Tr. 184-85). Another Sidley partner, Carter Phillips, testified his impression was that Respondent was "a little underwhelmed by his compensation." (Tr. 123). Respondent and his wife, Susan, testified Respondent was satisfied with his compensation. (Tr. 261-64).

Smolen is now with DLA Piper

The parties stipulated to the testimony of attorneys Peter S. Pantaleo and Jay Epstien, both of whom are partners at DLA Piper. Pantaleo is general counsel to DLA Piper and was involved in deciding whether to invite Respondent to join the firm. Respondent appeared before DLA Piper's executive committee and acknowledged that he made a horrible mistake. After Respondent's appearance, the executive committee voted unanimously to recommend Respondent be allowed to join the firm. Pantaleo monitors Respondent's billing and has found it to be appropriate. He was initially concerned about Respondent joining DLA Piper but is now fully supportive of his membership in the firm.

Evidence of mitigation was offered and given some weight

We...consider the evidence pertaining to Respondent's mental health. Dr. Henry and Dr. Spira provided different assessments of the connection between Respondent's mental health issues and his misconduct. Dr. Henry opined there was a "loose association" between Respondent's personality disorder and his misconduct, in that Respondent was excessively devoted to work as a result of his obsessive-compulsive disorder. Dr. Spira found a stronger connection, opining that Respondent's depressive disorder and anxiety disorder led to "tremendous impairment of judgment," which in turn led to the misconduct. Considering both experts' testimony, we find that Respondent's mental health played at least a minor role in his misconduct. Accordingly, we give some weight to Respondent's mental health issues as a mitigating factor.

The proposed sanction would require twelve months of continuous psychiatric treatment.

Our coverage of the charges is linked here. (Mike Frisch)

January 8, 2015 in Bar Discipline & Process | Permalink | Comments (4) | TrackBack (0)

Indicted And Disbarred

The New York Appellate Division for the First Judicial Department has accepted the resignation and disbarred an attorney recently indicted for practice-related misconduct.

Specifically, respondent acknowledges that he received settlement funds from 24 separate clients and converted the funds, totaling $549,267.18, to his own personal use, without permission or authorization from any of the individual clients

The Westport News has details

A Westport man with a personal-injury law practice in New York City has been indicted on charges that he stole hundreds of thousands of dollars from more than a dozen of his firm's clients, including a man who died of cancer before collecting money he was owed and an injured 96-year-old woman.

Stephen R. Krawitz, 62, of Ludlow Road was charged Monday in New York with two counts of first-degree scheme to defraud, a class E felony; four counts of second-degree grand larceny, a class C felony, and 15 counts of third-degree grand larceny, a class D felony, according to Manhattan District Attorney Cyrus R. Vance Jr.

Krawitz was arrested by Westport police at his home last Friday. He was taken into custody after New York City detectives asked for local police assistance in locating Krawitz, who was the subject of an arrest warrant with their department, according to Westport police.

Officers found Krawitz at home, where he was taken into custody without incident, police said.

Vance said Krawitz stole more than $600,000 from settlements obtained for the benefit of more than a dozen of his legal clients.

"While these alleged crimes were taking place, one of Stephen Krawitz's clients died of cancer without ever receiving the full settlement money rightfully owed to him," Vance said in a statement announcing the indictment.

(Mike Frisch)

January 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Question Of The Day

As a follow up to our post yesterday on plea bargaining in attorney discipline matters, I pose the following question.

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction  is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

 Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred.

Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years  or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct.

That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so?

If your system does not permit a consent disposition under these circumstances, is there something wrong with your system?

We may have some present and former disciplinary counsel that occasionally read this blog. I'd be most interested in their reaction by comment or otherwise. (Mike Frisch)

January 8, 2015 in Bar Discipline & Process | Permalink | Comments (4) | TrackBack (0)

Wednesday, January 7, 2015

Bar Battery Leads To Bar Charges

A recent complaint filed by the Illinois Administrator

On December 24, 2012, while a patron at the Korner Keg & Kitchen in  Braidwood, Illinois ("Korner Keg"), Respondent struck another Korner Keg patron,  Caryn Lyn Miller, in the face with his hand.

Criminal charges ensued

the court found Respondent guilty of two counts of  aggravated battery. On August 14, 2014, the Hon. Edward A. Burmila, Jr.,  sentenced Respondent to 12 months of probation; ordered Respondent to consume no  alcohol; and ordered Respondent to perform 75 hours of community service.

The attorney's practice was previously the subject of litigation by the appointed receiver.

The court held that the receiver was not entitled to reinbursement from the Administrator.

We believe that [receiver] Kallan was motivated by a desire to help his friend and to protect the legal profession. However, the fact that Kallan acted with the best of intentions does not change the fact that Rule 776 does not authorize the trial court to order the ARDC to pay what amounts to the legal fees of Grnacek’s former clients.

The opinion notes that the attorney had practiced for 35 years as of 2009 with a focus on repeat DUI cases. (Mike Frisch) 

January 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Plea Bargaining In Bar Discipline

 A recent consent disposition approved by the Arizona Presiding Disciplinary Judge demonstrates the value of plea bargaining in bar discipline matters.

The case involved a wide array of charges and complainants. The State Bar and the attorney agreed to resolve the plethora of cases with a one-year suspension and reinstatement conditioned on proof of present fitness to practice law.

The attorney is required to make restitution to nine clients and arbitrate with 23 others.

Judge O'Neil eloquently explained why the disposition serves the interests of both the public and the attorney

In the 114 page consent agreement, thirty five separate counts outline a consistent pattern of misconduct. Mr. Bornmann admits he, or those under his supervision within his office, consistently failed to attend scheduled court hearings, failed to adhere to court orders, failed to respond to his clients, failed to do the work he was contracted to do, which often caused his clients injury, misled his clients, failed to include ER 1.5(d)(3) language in his fee agreements, failed to issue promised refunds to clients, failed to respond to the requests of substitute attorneys for information and frequently blamed others whom he supervised for these shortcomings.

The admissions here are conditioned on the acceptance of this agreement by this judge. Agreements resolve the controversy existent in each discipline matter. If true, the counts here call for a presumptive multi-year, lengthy period of suspension, if not disbarment. Left unsaid, but inherent in any such agreement, is Mr. Bornmann may well have defenses to one or all of the counts. The State Bar must prove its case in each count by clear and convincing evidence. There may be issues regarding the evidence available to the State Bar. There may be credibility issues or unavailability of witnesses. An agreement balances multiple opposing concerns, as this agreement has, by reducing the suspension while resolving all counts. Mr. Bornmanns failure to respond to the State Bar’s screening investigation letters or furnish to the State Bar a copy of his client files, if any existed, would likely be a significant aggravating factor for a hearing panel. That issue is also resolved by the Agreement.

All trials are uncertain. Hearing panels issue rulings based on the evidence brought before them, not what one believes or even hopes may be presented. A hearing panel could issue a significantly longer suspension. A hearing panel could dismiss one or more or all of the counts. Regardless, the one year suspension is not insignificant and resolves all charges. The agreement for one year suspension is not unreasonable.

So, we have certainty and a prompt resolution as a result. The fitness requirement and the other provisions to satisfy obligations to injured clients serve to protect the public interest. Bar Counsel can apply the saved resources to cases that need to be tried.

A win-win all around.

It is possible that plea bargaining can be abused as a disciplinary tool.

In my view, Virginia is a good example of the overuse of consent dispositions.

There the system is run by lawyers with a hands-off attitude by the Commonwealth's high court and that system is seriously underfunded. As a result, Bar Counsel often agrees to a public reprimand where (in my cursory review) it appears that a suspension may well have been appropriate.

I'm surprised that there has not been a greater outcry for reform of the Virginia disciplinary system.

Of course, for plea bargaining to work, you have to have adjudicators who (1) care about efficiency and (2) trust the Bar Counsel, with appropriate review, to do the right thing.

I guess that it why consent dispositions have fared so poorly in the District of Columbia.

My view: If your adjudicators don't care about efficiency, find some that do. If you don't trust your Bar Counsel, replace that person with someone you do trust. Then, give that person at least some authority to pursue consent dispositions that recognize the uncertainty of litigation and the value of prompt resolution of contested charges.

Just a thought. Not a sermon.  (Mike Frisch)

January 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Prosecutor Reprimanded For Taking Documents From Judge's Chambers

The Arizona Presiding Disciplinary Judge accepted a consent disposition of reprimand of a prosecutor for conduct in the prosecution of an aggravated DUI case.

The defense had submitted prescription medical records for in camera inspection by the judge. The prosecutor was to receive a redacted copy from chambers.

When she came by for her copy, neither the judge or the judicial assistant were there. The prosecutor nonetheless looked through and took documents on the assistant's desk. This was observed by the law clerk/baliff, who was uncomfortable with the prosecutor's actions.

The attorney did not read the documents.

When she returned to the office, the redacted records were there - already delivered. She realized her mistake and took prompt steps to notify the court and return the documents she had removed.

The criminal case was dismissed as a result. (Mike Frisch)

January 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Gallant Hours

The Illinois Administrator has filed a complaint alleging misconduct that resulted in the attorney's guilty plea in federal court to misprison of felony.

The alleged facts

Between August 2009 and August 2013, Gallant Pharma International, Inc., hereinafter "Gallant," was a company engaged in the illegal importation and sale of misbranded and non-FDA approved chemotherapy drugs and injectable cosmetic drugs and devices in the United States. Respondent's husband, Syed "Farhan" Huda, was the co-founder of Gallant which was initially headquartered at an apartment leased in Respondent's name in Arlington, Virginia.

Between fall of 2009 and August 2013, Respondent held various roles at Gallant including identifying prospective customers of Gallant's illegal, misbranded, non-FDA approved drugs, arranging for the importation and distribution of the illegal drugs and acting as Gallant's office manager. Respondent, and her coconspirators, purchased drugs, subsequently re-sold by Gallant, that were "cold-chain" drugs subject to strict temperature controls requiring drug shipment with dry ice packs to maintain efficacy of the drugs. Respondent was aware that on some occasions, ice packs were melted when shipments of the "cold-chain" drugs were received by Gallant from international shippers yet Gallant re-sold the "cold-chain" drugs to their customers. Finally, Respondent purchased Styrofoam boxes and ice packs for packaging and shipment of misbranded and non-FDA-approved "cold-chain" drugs to customers within the United States and was aware that ice packs were melted at the time the "cold-chain" drugs were received by Gallant customers.

Between August 2009 and January 2013, Respondent used her personal checking account at Capital One to conduct Gallant business in the United States, including wire transfers of funds to suppliers and trans-shippers of misbranded and non-FDA approved drugs and devices.

At her guilty plea

In her plea agreement, Respondent admitted that she held various roles at Gallant including office manager, identifying prospective customers for Gallant's misbranded, non-FDA approved drugs, and arranging for the importation and distribution of the drugs. Included as the imported drugs were injectable chemotherapeutic agents, injectable cosmetic fillers, injectable agents used to treat side effects of chemotherapy; many of which were subject to federally mandated strict temperature controls which were not complied with by Gallant.

The complaint states that the attorney was sentenced to a nine-month prison term. (Mike Frisch)

January 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

That's What Makes A Horse Race

An Illinois Hearing Board has recommended a 90-day suspension and probation for an attorney who

represented a client who trained racehorses after six of his horses tested positive for an unauthorized substance. After several months of litigation including the filing of a TRO and appeal, Respondent applied the client's costs credit to his outstanding balance for attorney's fees. The client maintained he never authorized this and asked for a refund of the unused costs.

The Administrator's one-count First Amended Complaint charged Respondent with failing to promptly deliver funds to a client, in violation of 1.15(d), and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of 8.4(c). The Hearing Panel found the Administrator failed to prove Respondent violated 8.4(c) and failed to prove Respondent failed to promptly deliver funds to the client. However, the Hearing Panel did find Respondent failed to provide a prompt and appropriate accounting to the client in violation of Rule 1.15(d). Given Respondent's disordered office management, particularly with respect to his financial accounts, and his poor client communication, the Hearing Panel recommended Respondent be suspended for ninety days, stayed in its entirety, by a one-year period of probation with conditions.

On the need for probation

In this matter, it is unclear if Respondent knows what funds should be kept in a client trust account or if he even maintains a client trust account. He does not keep a ledger for each client matter and does not reconcile his bank statements. Respondent withdraws funds based on his mental estimate of fees earned, but admitted he sometimes withdraws fees as funds are received even if they have not yet been earned. He also admitted he has taken out more than he made. Respondent's reliance on his phone log in this proceeding is illustrative of his mistaken belief he manages his professional communications effectively. As a result, Respondent's continued right to practice needs to be monitored. Conditional probation would best safeguard the public and provide assurance that his disordered office management and poor communication are addressed.

(Mike Frisch)

January 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Benefit Of Responding To A Bar Complaint

An attorney who was disbarred by the New York Appellate Division for the Second Judicial Department as a result of her default on the allegations sought the court's reconsideration after the disbarment was entered.

The respondent ultimately filed a written answer to the petition. However, she did so only after this Court vacated the respondent's disbarment on default, reinstated her, and directed her to submit an answer to the petition. In her answer, the respondent admitted the factual allegations underlying the charge of failure to cooperate with the Grievance Committee, but denied the charge.

In an unusual decision, the court reduced the sanction from disbarment to a public censure.

The respondent asks that the Court remit the matter back to the Grievance Committee for issuance of a private sanction in light of the substantial mitigation presented, consisting of the following factors: her expressions of deep remorse, which were found credible by the Special Referee; her medical problems, which the Special Referee also found credible; the departure of one of the partners in her firm during the period in question, which caused her to shoulder more responsibilities and added to her already stressful housing court practice; the steps that she has taken to reduce her workload; her pro bono work; the consequences that she has already suffered (loss of her former position, shame and humiliation of being disbarred, the two-month period of actual disbarment prior to her reinstatement); and her reputation as an exemplary attorney.

Under the totality of the circumstances, including the aforementioned mitigating factors and the respondent's prior disciplinary history, we find that a public censure is warranted.

The lesson here is that an attorney must participate in the disciplinary process. In New York, the consequences of non-paricipation are reasonably swift and sure. (Mike Frisch)

January 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

"She Did Not Object To His Withdrawal"

A conditional admission of misconduct led to a 60-day suspension ordered by the Colorado Presiding Disciplinary Judge

Stephenson represented a long-time friend pro bono in a criminal case between December 2012 and September 2013. In October 2013, the friend’s wife was charged with DUI and consulted with Stephenson for a second legal opinion regarding advice she received from her attorney. Around that same time, Stephenson and the wife began a sexual relationship. Stephenson then substituted as her counsel in the DUI case, which was resolved through a plea agreement in March 2014.
 
The husband discovered the sexual relationship between his wife and Stephenson in January 2014. At that time, the husband was subject to a probation revocation complaint in his criminal case. Stephenson agreed to represent the husband in the probation revocation matter while still engaged in a sexual relationship with the wife. Stephenson twice appeared for the husband in court before moving to withdraw in March 2014.
 
As a result of the wife’s DUI arrest, a complaint was filed to revoke her probation in a criminal case. Stephenson entered his appearance in this matter in January 2014.That matter was still pending when the wife ended her relationship with Stephenson in April 2014. The wife states that she delayed ending the relationship because she was concerned Stephenson would discontinue the representation. Shortly after she ended the relationship and told Stephenson to stop contacting her, Stephenson moved to withdraw from her case. He did not consult with her before filing the motion to withdraw, but she did not object to his withdrawal.
 
The attorney admitted violation of both the concurrent client conflict rule and sex with a client where the sexual relationship post-dated the representation. (Mike Frisch)

January 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension Excessive For False CLE Submission

An attorney who falsely (but through negligence rather than intent to deceive) certified that she had completed CLE obligations was publicly reproved by the California State Bar Court Review Department.

The misconduct was discovered through an audit. The attorney had filed compliance statements affirming that she had done the CLE without checking her own records.

The court

Requiring attorneys to submit accurate MCLE compliance affirmations is essential to maintaining public confidence in the legal profession. "The aim of continuing legal education is to provide continuing assurance to the public that all California attorneys, no matter how many years may have passed since their law school graduation and State Bar admission, have the knowledge and skills to provide their clients with high quality legal services." ( Warden v. State Bar (1999) 21 Cal.4th 628, 654 (dis. opn. of Kennard, J.).) Attorneys must accurately report compliance because the MCLE program is based on an honor system where random audits serve as the only enforcement check. In turn, the State Bar relies on self-reporting by attorneys to accurately represent to the public, the courts, and other members of the Bar that they are eligible to practice law.

The court found extensive mitigation and concluded that probation would be an excessive sanction under the circumstances.

A dissent would impose no discipline

 [The attorney] mistakenly recalled that she had completed the MCLE courses. When randomly audited by the State Bar, she admitted her mistake, corrected her error, and submitted proper proof of compliance. In other words, the process worked. To turn this matter into a discipline case, and worse yet, a case of moral turpitude, is a disservice to the attorney discipline system. Accordingly, I would dismiss this proceeding.

The Office of Chief Trial Counsel had sought a 30-day suspension. (Mike Frisch)

January 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Firm Theft, Firm Discipline

The South Carolina Supreme Court has disbarred an attorney who converted fees due to his law firm.

According to the court

In November 2009, respondent was admitted to the South Carolina Bar. In June 2011, respondent became employed with Law Firm as an associate with a salary of $24,000 per year. In August 2012, respondent's compensation structure changed to a "commission only" arrangement in which he received 50% of the fees he generated above a monthly amount for overhead.

Respondent worked alone in a satellite office and was permitted to accept cases and set fees with relative autonomy. Law Firm utilized an electronic practice management system in which respondent would create a memo for each new case that would be transmitted to a staff member who would, in turn, create an electronic client file. When respondent received fees from clients, he would physically deliver those payments to Law Firm's main office, where staff would process the deposits.

During 2012 and 2013, respondent converted approximately $4,000.00 in client fee payments to his own use by two methods. One method involved accepting fees from new clients (in the form of cash or a money order or check payable to respondent), then using those fees for personal use rather than delivering the fees to Law Firm. Respondent covered this diversion of fees from Law Firm by handling client cases without creating an opening memo or an electronic case file. The other method involved accepting cash payment from Law Firm clients and delivering part of the funds to the firm and converting the remainder to his own use. Respondent covered this diversion of fees by altering documents to reflect a fee of an amount less than what the client actually paid. Law Firm discovered respondent's misappropriation, terminated his employment, and filed a disciplinary complaint.

The attorney admitted the ethical violations. The court made the disbarment effective as of October 2013. (Mike Frisch)

January 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Happy New Year

The January 2015 edition of the Washington Lawyer features an interview with the current chair of the District of Columbia Board on Professional Responsibility.

There is the usual lip service paid to the protection of the public as a goal of the disciplinary system.

But the most interesting question posed is the following

How long, beginning to end, do the [disciplinary] proceedings usually last?

The response was, as we lawyers say, non-responsive

I would say there is really no typical length to the proceedings. There are so many factors that determine whether a proceeding takes a long or a short period of time. The length of procedings typically depends on the complexity of a case and of the legal issues presented, including the number of violations and the number of complainants - perhaps it is only a single person who is complaining, in other instances, we could have five or 10 complainants in a case.

There are many checks and balances in the system, and there is a lot of due process, and with that the possibility of delay. We want to make sure that every party involved is treated fairly, and the important thing is to get it right. Certainly, we always try to move cases along as quicky as possible, but sometimes they can take more time than we would like because of the nature of the process.

Yes, a big part of the problem is "the nature of the process."

What I've never seen from the BPR (or the Court of Appeals) is any inclination to improve that process.

Now, if the BPR issued an annual report, the public might get a sense of the real answer to the "long long does it take" question. And heads might roll.

My take: It is rare for a prosecuted case to conclude in less than five years. Often cases take a whole lot longer than that.

The situation has not been helped by the last good idea, the rule that permits consent dispositions.

The reason: The BPR has been deeply hostile to the rule since it was created. Bar Counsel has learned that it is a waste of time and resources to even try to resolve matters through consent dispositions.

In any event, I have a few follow up questions:

1. Are there any hearing committee reports that are nearly seven years overdue? (Hint: yes).

2. How many reports are more than a year overdue? Two years? Three years?

3. Why do Bar Counsel charges sit in the BPR office for up to a year without being reviewed by a contact member, creating inexplicable and unnecessary delay in addressing the merits?

4. How long do cases take when the accused attorney defaults or otherwise refuses to participate? (Hint: defaults are verboten)

5. How many Bar Counsel investigations in the last ten years have taken five or more years simply to determine whether or not to file charges?

I am personally aware of an investigation (never deferred) that took eight years to get dismissed. During those years, Bar Counsel conducted virtually no investigation as the case was passed from one attorney to another.

6. Is there a reason that no annual reports that would allow the public to evaluate efficiency has ever been issued in the District of Columbia?

I'll let you know if there are any responses forthcoming. (Mike Frisch)

January 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, January 3, 2015

Corporate And Volunteer Practice While Administratively Suspended Draws Sanction

A six-month consent suspension was accepted by the Pennsylvania Supreme Court.

The misconduct involved the unauthorized practice of law by an attorney who had been placed on inactive status as a result of non-compliance with yearly CLE obligations.

 The attorney was an Associate General Counsel and later Vice President and Associate General Counsel to GlaxoSmithKline in King of Prussia. The unauthorized practice spanned the period from 2009 to April 28, 2014.

In addition to her corporate legal practice, the attorney also violated ethics rules by volunteering legal services while suspended.

Her present duties at GSK do not involve practicing law. (Mike Frisch)

January 3, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, January 1, 2015

No Civil Conspiracy As Single Defendant Can't Act In Concert

The Tennessee Supreme Court has affirmed a 45-day suspension that had been imposed by a hearing panel and affirmed by the Board of Professiona Responsibility.

Both lawyer and complainant client had appealed the hearing panel decision; only the lawyer appealed the board's order.

The client had sought relief from outdoor concerts and other events on the defendant's property. A nuisance suit was followed by a suit claiming a civil conspiracy.

After the claims were dismissed, sanctions were imposed on the attorney for failure to dismiss civil conspiracy claims against the sole remaining defendant. He was fined $5,000.

The court rejected an array of procedural claims raised by the lawyer and affirmed conclusions that he violated Rules 1.3 and 8.4(a). (Mike Frisch)

January 1, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

From White House To Big House

The District of Columbia Board on Professional Responsibility has reached the rather unsurprising conclusion that a conviction for attempt to commit murder is a crime that inherently involves moral turpitude

Respondent was convicted of attempted murder, in violation of C.G.S. § 53a-49(a)(2)
(attempt) and § 53a-54a(a) (murder). The Court previously has held that murder for pecuniary gain, in violation of C.G.S. § 53a-54b (murder with special circumstances), is a crime of moral turpitude per se, because it requires proof of specific intent to cause the death of another person. In re Carpenter, 891 A.2d 223, 223 (D.C. 2006) (per curiam); see also Aron, Bar Docket No. 45-99 at 3-4 (solicitation to commit murder under Maryland law is a crime of moral turpitude per se,because it involves “deliberate, intentional taking of the life of another person”).

The attorney was former Bush Deputy White House Counsel  J. Michael Farren.

The attempt was against his former wife, who had been a Steptoe & Johnson associate.

In D.C., disbarment is required for a moral turpitude conviction.

Note: I prosecuted the bar discipline case involving Ruthann Aron.

I was disappointed that she consented to disbarment after the oral argument in the Court of Appeals on the moral turpitude issue, i.e. after all the work was done. In Aron, the offense was solicitation to commit murder. (Mike Frisch)

December 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2014

Third Party May Not Intervene In Bar Proceeding

A third party has no right to intervene in a bar discipline proceeding, according to a recent decision of the Massachusetts Supreme Judicial Court.

The attempt to intervene came from a former employee of an attorney accused of misconduct. The former employee claimed that the attorney and others (including assistant bar counsel) had engaged in a conspiracy to "vilify" him.

The full court affirmed the decision of a single justice that the disciplinary proceedings had concluded and that the appeal was moot.

The accused attorney (not named in this decision) received a suspension of six months and a day.

On the merits, the court held that civil procedure rules that allow for intervention do not apply in bar discipline matters. (Mike Frisch)

December 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)