Monday, July 14, 2014

Alcoholism Warrants Interim Suspension

The Kentucky Supreme Court has ordered the interim suspension of an attorney who has had a series of criminal incidents involving domestic assault and public intoxication.

The court concluded that the arrests and convictions did not establish that the attorney poses a substantial harm to clients that would merit a suspension pending further proceedings. Nor did her failure to appear for court proceedings establish a basis for interim suspension

However, the court found the attorney's mental health issues did suppport a suspension

In her response, Respondent reveals that she has not accepted a client since November of 2013. Moreover, Respondent stated that she is not currently practicing law because she is focusing on her recovery.

Based on the fact that Respondent is residing in an in-patient treatment facility, coupled with her admission that she has abandoned her law practice, we find it clear that Respondent's alcoholism is a debilitating condition which has robbed her of the mental fitness needed to practice law. Consequently, we agree with the Inquiry Commission that Respondent's license to practice law should be temporarily suspended pending disciplinary proceedings...

(Mike Frisch)

July 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Driving Offenses Draw Suspension, Probation

The Indiana Supreme Court ordered a suspension of six months with all but 60 days stayed on probation as a result of an attorney's driving offenses

 In 1995, prior to his admission to the bar, Respondent was convicted on a guilty plea to Operating While Intoxicated ("OWI"), a class A misdemeanor. Respondent reported this conviction on his application for admission to the bar.

Since his admission to the bar in 1998, Respondent has been charged on seven occasions with traffic violations between April 2003 and November 2012. The first six occasions included a charge of OWI, two of which involved endangering a person. Other charges included exceeding the speed limit, unsafe lane movement, following too closely, and failure to yield. The seventh occasion resulted in a charge of a failure to stop after an accident with non-vehicle damage.

Respondent was convicted on a guilty plea to one count of reckless driving arising from the April 2003 incident. On December 3, 2013, he was convicted on a guilty plea to one count of operating with a B.A.C. of at least 0.15, a charge arising from an incident in July 2009. The remaining charges were all dismissed in conjunction with plea agreements, a pre-trial diversion agreement, or pursuant to Criminal Rule 4 (discharge for delay in criminal trials).

The probation will be supervised by the Judges and Lawyers Assistance Program. The attorney will be suspended without automatic reinstatement if he violates the conditions. (Mike Frisch)

July 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, July 11, 2014

At Taboo Tabou

A former assistant state's attorney for Cook County has been charged with ethics violations arising out of an incident described in allegations by the Illinois Administrator.

The complaint alleges that the attorney and a companion attended a Cubs game on September 22, 2012. They drank at the game and later at a bar and restaurant with family and friends.

The complaint recites that they went to an adult merchandise store called Taboo Tabou and caused a disturbance there. An employee called for help from the establishment next door, the Blue Hawaii.

Then

David Boone, the employee from Blue Havana, arrived and repeatedly asked Respondent and [companion] Gould to leave, but they only became more belligerent. Respondent went into her purse again and presented her States Attorney's badge to Boone. Respondent swung at Boone. Boone tried to walk away from her, but Respondent fell. Respondent got up and then began running down the street, yelling that she had been "assaulted." At the same time, Gould began videotaping Boone with his cell phone which he positioned directly in front of Boone's face. The phone hit Boone and Boone hit the phone out of Gould's hand. Gould attempted to hit Boone, but Boone punched him and Gould hit his head on the metal window frame. Respondent then charged at Boone, fell to the ground, grabbed Boone's leg and bit him, breaking the skin and causing injury to Boone's knee. Several bystanders pulled Respondent off of and away from Boone.

The police arrived and placed Respondent in handcuffs and in a police SUV where she managed to get her hands out of the handcuffs. Respondent was taken out of the SUV by a female officer, re-handcuffed and put back in the vehicle. Respondent told the officer at least six times that she was an Assistant State's Attorney. Respondent called the officer "a cunt, slut, bitch whore, and dyke" and slapped at her. Respondent got out of the handcuffs again and was kneeling on the floor of the vehicle attempting to vomit. Respondent was taken out of the vehicle again and, while sitting on the curb, proceeded to try to make herself throw up while screaming obscenities.

 After the police interviewed witnesses, Respondent and Gould were arrested. Respondent was ultimately charged with attempted official misconduct, battery, resisting arrest, criminal trespass to property, assault and disorderly conduct.

The attorney and the companion were  acquitted  of  the criminal charges but she is no longer an assistant state's attorney. (Mike Frisch)

July 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prior Record No Bar To Admission On Motion

A disciplinary record in another jurisdiction is not a bar to admission on motion, according to an opinion granting admission to an applicant by the Nebraska Supreme Court.

The court admitted the attorney based on its de novo review of the adverse decision by the State Bar Commission.

The applicant is an honorably discharged Navy veteran.

She was admitted in Colorado in 2008 and Alabama in 2000. She has no disciplinary record in Colorado but was the subject of several disciplinary invesigations in Alabama.

She is in good standing in both jurisdictions.

Most of the Alabama  complaints were "screened out" or dismissed. These were not disclosed in the Nebraska application, which the applicant stated was an oversight.

She disclosed two other actions --a private and a public reprimand.

There were also issues involving non-disclosure of a criminal record and her credit history.

The court

While we do not condone these inaccuracies in [her] application, we are willing to accept [her] explanations and conclude that they are not indicative of reckless behavior which would preclude her admission in Nebraska.

(Mike Frisch)

July 11, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, July 10, 2014

Attorney Sanctioned For Conflicts, Home Visit To Successor Counsel

The Washington State Supreme Court has imposed a two-year suspension of an attorney for conflicts of interest and related violations in his creation and management of an elderly client's estate.

As to conflicts

The hearing officer held that Hall violated [conflicts] RPCs because he named himself as alternate trustee and health care representative, and gave himself power of attorney without fully explaining to the Keens the legal effects of these roles, including the ways in which these roles could conflict with his own interests and, in turn, adversely afiect their interests...

Being in control of Margaret's assets was in Hall's personal interest and thus there was a significant risk that his representation of the Keens could be limited by this interest. Further, there is substantial evidence that Hall did not obtain informed consent to his acquiring a pecuniary interest in Margaret's estate in the form of an $8,000 per year trustee's fee. Hall argues that the waiver provisions in his engagement letter and the will and Trust were sufficient to serve as informed consent. These waiver provisions, however, only purportedly waive the conflict created in Hall being able to hire himself for legal work for the Trust and/or the estate. They do not explain whether Hall was representing the Keens or himself in appointing himself to these roles, as is required by RPC 1.8(a)(3). There was also substantial evidence that Margaret had difficulty even reading the documents she signed and that Hall failed to read them out loud, word for word. Finally, informed consent also requires "adequate information and explanation about ... reasonably available alternatives to the proposed course of conduct." RPC 1.0( e). Here, expert witness Barbara Isenl10ur testified at the hearing that professional trust agencies are a much better option than attorneys because they are more knowledgeable and cheaper. There is no indication that Hall informed the Keens, in writing or otherwise, of such a reasonable alternative to appointing himself as future trustee.

The court affirmed findings that the attorney charged an excessive fee and failed to return original documents.

Finally, the attorney's visit to successor counsel (retained to revise the docum,ents he drew up) was prejudicial to the administration of justice.

Here's the story

On May 25, 2010, Hall made an unannounced evening visit to [attorney] Clausen's residence·---which also served as her place of business-where Clausen was with her husband and infant daughter. In a loud, angry voice, Hall called Clausen an idiot and told her that she had committed malpractice, that she was in "big trouble" and needed to "fix the problem," and that she was going to get disbarred.  Verbatim Tr. of Proceedings (VTP) at 198. Clausen threatened to call the police, and Hall finally backed off, mentioning that Clausen "had a lot to lose ... a new baby and a young family and a big house" and that if he went down, she would go down. VTP at 200. Hall then sent a letter to Clausen containing random references to Communist Russia and Nazi Germany and threatening to file a lawsuit against her. Hall was removed as trustee of the Trust on May 28, 2010, but he still refused to return the original documents and continued to accuse Clausen of malpractice.

This violated the rule

...it is certainly against practice norms to show up unannounced at another attorney's home and threaten her and her family to withdraw a grievance she did not file. We affirm as to this count.

(Mike Frisch)

July 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

Consent Disbarment In Pennsylvania Becomes Censure In New Jersey

 A lawyer who had consented to disbarment in Pennsylvania received a public censure as reciprocal discipline in New Jersey.

While that might seem unusual, there were some rather unusual circumstances

The record in the matter now before us reveals that respondent’s paralegal, Bonnie Sweeten, had intercepted and concealed from respondent the petition for discipline, the equivalent of our formal ethics complaint, sent to respondent by the Pennsylvania ethics authorities. Sweeten explained her actions in an affidavit, the partial contents of which are contained in an August 25, 2009 Joint Stipulations of Fact and Law between respondent and the Pennsylvania disciplinary authorities...

The affidavit of the paralegal admited to concealing the disciplinary matter from the attorney.

However, the Pennsylvania Supreme Court later vacated the resulting suspension and remanded the matter.

Thereafter, the attorney consented to disbarment of her own accord.

The paralegal achieved a level of notoriety by a false abduction claim and embezzling her way to Disney World and then Club Fed, as reported by the Huffington Post.

But no suspension for the attorney in New Jersey based on the Pennsylvania consent for reasons the Disciplinary Review Board ("DRSB") explains

In conclusion, respondent is guilty of two separate offenses each of which would, on its own, warrant the imposition of a reprimand: practicing law while on inactive status and failing to supervise non-attorney staff. In addition, she failed to communicate with a client, used misleading letterhead and business account checks, engaged in conduct prejudicial to the administration of  justice and failure to safeguard client funds. We conclude that a censure sufficiently addresses the totality of respondent’s misconduct.

The Office of Attorney Ethics ("OAE") had sought a suspension with reinstatement conditioned on reinstatement in Pennsylvania, which would be tantamount to disbarment. Remarkably, the attorney did not even see fit to participate in the New Jersey proceedings.

I can understand the position of the OAE, which would not impose disbarment because there is no possibility of reinstatement in New Jersey. OAE's proposed sanction is thus quite reasonable.

The DRB's recommendation makes no sense to me at all. And the court just rubber-stamped it.

It is my experience that an attorney (particularly if represented by counsel) does not consent to disbarment unless disciplinary counsel has the goods. The idea of reciprocal discipline is basically that other jurisdictions respect and enforce a consent unless there is some grave injustice or due process violation.

I don't see any such suggestion here.

I find it quite disheartening that the New Jersey authorities would take a consent disbarment and convert it into no suspension at all as reciprocal discipline.

Notice to all Pennsylvania attorneys who are thinking about engaging in misconduct: join the New Jersey Bar. (Mike Frisch)

July 8, 2014 in Bar Discipline & Process, Billable Hours | Permalink | Comments (1) | TrackBack (0)

Sex And False Denials Lead To Reprimand

An attorney who engaged in a sexual relationship with a client and lied about it to his firm and the Office of Lawyer Regulation has been publicly reprimanded by the Wisconsin Supreme Court.

The client retained the attorney to pursue a civil complaint against her former teacher and represent her in the former teacher's criminal trial. They had not had a previously intimate relationship.

In April of 2009, while the civil and criminal cases were still pending, Attorney Ruppelt and T.W. began a sexual relationship.  In mid-April 2009, the Firm became aware that Attorney Ruppelt may have been engaging in a sexual relationship with T.W. while representing her.  Attorney Ruppelt continued to represent T.W. until he and the Firm determined he could no longer do so, given the concerns surrounding the nature of his relationship with T.W.

On April 19, 2009, Attorney Ruppelt met with Attorney James Gatzke, and Paul Bucher, another senior attorney at the law firm, to discuss the Firm's concerns about Attorney Ruppelt's relationship with T.W.  At the meeting, Attorney Ruppelt falsely represented to Attorneys Gatzke and Bucher that he had not received or exchanged any texts, e-mail, or voicemail messages of any kind with T.W. that were of a personal nature and unrelated to the law firm's representation of T.W. in her civil and criminal cases.  In fact, Attorney Ruppelt had received an e-mail from T.W. on April 17, 2009, that was of a personal nature.  At the April 19 meeting, Attorney Ruppelt falsely represented that he had not engaged in a sexual relationship with T.W. while representing her.  Attorney Ruppelt agreed not to have contact with T.W. following the April 19 meeting.  On several occasions after April 19, 2009, Attorney Ruppelt denied to Attorney Gatzke that he was involved in a romantic relationship with T.W.

In May or June of 2009, Attorney Ruppelt acknowledged to Attorney Gatzke that he was engaging in a sexual relationship with T.W. at that time. 

The attorney and T.W. were married in 2010. The OLR had sought a 60-day suspension but did not appeal the referee's proposed reprimand sanction.

Justcie Bradley, joined by Chief Justice Abrahamson, dissented as the leniency of the sanction and decision of the majority not to impose full costs

I would impose full costs.  SCR 22.24(1m) states the court's "general policy [] that upon a finding of misconduct, it is appropriate to impose all costs."  The rule then sets forth the factors to consider when determining whether to deviate from that general policy and reduce the costs.

Because the per curiam does not explain or evaluate how those factors apply in this case, there has been no showing that we should deviate from our general policy here.

(Mike Frisch)

July 8, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Interim Suspension For Sex-Crimes Conviction

The Ohio Supreme Court has imposed an interim suspension of a recently-convicted attorney.

The Columbus Dispatch reported on the criminal case

Javier Armengau, who spent the past 15 years trying to keep clients out of prison, is likely headed there after a Franklin County jury convicted him yesterday of multiple sex crimes.

The 52-year-old defense attorney shook his head and at one point wiped his eyes as guilty verdicts were read on nine of 18 counts — one of rape, one of kidnapping, four of sexual battery, two of gross sexual imposition and one of public indecency.

Common Pleas Judge David W. Fais immediately revoked Armengau’s bond. Deputies took Armengau into custody after he embraced his two attorneys as his girlfriend cried in the front row of the courtroom.

Fais scheduled sentencing for Aug. 12. The rape and kidnapping counts carry a presumption of prison. The maximum sentence for all of the convictions would be 41 years.

Jennifer Coriell, one of Armengau’s attorneys, called the verdicts “a miscarriage of justice in every way” and said an appeal will be filed. She said the accusers’ testimony included inconsistencies and the judge allowed jurors to hear “a lot of testimony that should have been kept out.”

Frederick Benton, his other attorney, said he was disappointed for Armengau.

The Ohio attorney general’s office released a statement on behalf of the prosecutors: “We believe this case is a significant victory for victims of sexual assault.” Assistant Attorneys General Daniel Breyer and Melissa Schiffel prosecuted Armengau at the request of county Prosecutor Ron O’Brien, who wanted to avoid a conflict of interest.

The charges were brought on behalf of five women, all of whom testified — three former clients and the mothers of two clients. Armengau was convicted of charges involving three of the women. None was in the courtroom for the verdicts.

Six of the nine guilty verdicts, including the most-serious offenses, involved one woman. Armengau was convicted of rape and kidnapping as well as four counts of sexual-battery of a 46-year-old Venezuelan immigrant who testified that he repeatedly forced her to perform oral sex after she hired him to handle her divorce in 1998. She said she complied with those demands as well as two times when he forced her to engage in intercourse because he threatened she could be deported and separated from her daughter.

The jury acquitted Armengau of four other rape counts involving the woman.

Armengau’s attorneys filed a motion for a mistrial on Thursday, arguing that the attorney general’s office had a duty to inform them that the woman had asked for its help with her immigration status so she could stay in the United States. In a response filed yesterday, the prosecutors said they were under no such obligation because “there was absolutely no agreement between the witness and the prosecution” to provide assistance in exchange for her testimony.

The judge hasn’t ruled on the motion.

The jury also convicted Armengau of one count each of gross sexual imposition and public indecency involving Catherine Collins, the 43-year-old mother of a client. She testified that Armengau grabbed one of her breasts and exposed himself to her on April 4, 2013, when they met at his Brewery District office to discuss her son’s murder case. He was found not guilty of kidnapping her during the assault by restraining her.

Her allegations and audio of secretly recorded phone calls and a restaurant meeting between her and Armengau led to his arrest last year. Although  The Dispatch doesn’t usually identify victims of sexual assault, Collins told her story to the newspaper last year and agreed to be named.

The other guilty verdict was for a count of gross sexual imposition of a 33-year-old woman who testified that Armengau grabbed one of her breasts and masturbated in front of her when she visited his Marion office to discuss her criminal case in September 2008. She said she filed complaints with the Marion police and the Ohio Supreme Court, and a new attorney was appointed for her.

The Supreme Court disciplinary counsel was unable to substantiate the complaint, and a police report wasn’t introduced at trial.

The jurors acquitted Armengau of charges related to a 49-year-old woman, who testified that he forced her to perform oral sex in a courthouse conference room after her son was sentenced to prison in August 2008, and a 38-year-old woman, who said Armengau forced her to perform oral sex dozens of times during the years he represented her in cases and she worked part time in his office.

The 49-year-old woman also testified that Armengau tried to get her to perform oral sex on Judge Richard A. Frye, who was handling her son’s cases, at the lawyer’s office on the night before sentencing. That accusation did not result in a criminal charge, but  Frye testified for the defense, saying he had never been to Armengau’s office and calling prosecutors “reckless” for including the allegation in their case.

The jury of eight women and four men deliberated for about 11 hours over parts of three days after hearing more than three weeks of testimony. The jurors left the courthouse shortly after their verdicts were announced, declining to speak to the attorneys or reporters.

Armengau testified for nearly 12 hours over three days,  denying the allegations and insisting that he was the victim of a personal vendetta by prosecutors and police.

The felony convictions can be the basis of an interim suspension of his law license once the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline receives a certified copy of the judgment entry, said Joseph Caligiuri, chief assistant disciplinary counsel.

The Columbus Bar Association filed a motion on June 20  asking the Supreme Court to immediately suspend Armengau’s license. The court hasn’t ruled on the request.

(Mike Frisch)

July 8, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

PayPal Not An IOLTA Account

An attorney was suspended for not less than one year without automatic reinstatement by the Indiana Supreme Court.

The misconduct

 Respondent maintained an account for client funds ("Trust Account"). At least as early as December 2005, Respondent had a negative balance in the Trust Account. The Commission sent him a request for an explanation on March 31, 2006. From that date through 2013, Respondent failed to respond to or made incomplete responses to 25 demands for information by the Commission. On three occasions, the Commission filed petitions to show cause why Respondent should not be suspended for noncooperation. In two cases, Respondent cooperated before entry of a suspension order. In the third case, the Court suspended him before he cooperated sufficiently with the Commission to be reinstated.

Respondent made disbursements from the Trust Account using a check-by-phone system. He made disbursements from the Trust Account for personal purposes; for example, paying for his child's private school tuition. From December 16, 2006, through March 3, 2010, Respondent made approximately 47 transfers from the Trust Account that were not based on written withdrawal authorization or that were made payable to "cash." He failed to create and maintain sufficient records and a contemporaneous ledger for his Trust Account. In addition, Respondent held money on behalf of clients in a PayPal account, which was not an IOLTA account.

(Mike Frisch)

July 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lack Of Candor, Consent Decree Violation, Leads To Admission Denial

An application for bar admission was rejected on character and fitness grounds by the New York Appellate Division for the Third Judicial Department

Applicant was a defendant in litigation arising from a business he began prior to attending law school. The litigation was settled and a consent decree entered. Thereafter, applicant violated the consent decree and was held in contempt and ordered to disgorge profits and pay counsel fees, totaling $73,352. The judgment has been paid, although the business has since failed. The Committee found not only that applicant violated the consent decree, but also that he lacked candor in his testimony about the matter and failed to accept responsibility for his conduct. The Committee also found irresponsible the manner in which applicant conducted certain financial matters as the business closed.

We conclude that the Committee carefully considered applicant's testimony and found it wanting, and reasonably concluded on all of the evidence that applicant does not presently possess the character and general fitness required of an attorney and counselor-at-law.

The applicant's name is not disclosed in the court's order. (Mike Frisch)

July 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Daugerdas Consents To Disbarment In Illinois

Tax shelter architect Paul M. Daugerdas has filed a motion to consent to disbarment in Illinois based on his criminal conviction

On June 23, 2009, a grand jury in the Southern  District of New York returned a 27-count indictment against Movant and others (United States of America v. Paul M. Daugerdas, et al., docket number 09 CR.  581). Several superseding indictments were filed, the final one, consisting of 17 counts, on July 1, 2013. Count One  of the final superseding indictment charged Movant with conspiracy to defraud  the United States, in violation of Title 18, United States Code, Section 7201,  and Title 18, United States Code, Section 1343. Counts Two through Eleven and  Fourteen through Sixteen charged Movant with tax evasion, in violation of Title  26, United States Code, Section 7201, and Title 18, United States Code, Section  2. Count Thirteen charged Movant with corrupt endeavor to obstruct and impede  the internal revenue laws, in violation of Title 26, United States Code, Section  7212(a). Count Seventeen indictment charged Movant with mail fraud, in violation  of Title 18, United States Code, Sections 1341 and 2...

Count One of the superseding indictment charged  Movant with participating in a scheme by which, between 1994 and 2004, he and  others acted to defraud the Internal Revenue Service (hereinafter "IRS") by designing, marketing, implementing and defending fraudulent tax shelters  using means and methods intended to deceive the IRS about the validity of those  shelters, and about the circumstances under which the tax shelters had been  marketed and implemented, in violation of Title 18, United States Code, Section  371...

 On October 31, 2013, a jury in case number 09  Cr. 581 returned a verdict of guilty against Movant of the charges in Counts  One, Five through Seven, Eleven, Thirteen and Seventeen, and acquitted him of  the remaining charges. Movant was therefore acquitted of tax evasion charges  involving several clients and Movant’s own tax obligations.

Movant is scheduled to be sentenced in case  number 09 Cr. 581 on June 25, 2014, and a judgment of conviction will be entered  at that time.

(Mike Frisch)

July 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, July 6, 2014

Mulch Ado

An attorney who was convicted of misdemeanor conversion was suspended for at least a year without automatic reinstatement by the Indiana Supreme Court.

In Respondent's late, nonconforming answer, Respondent argues that he is not guilty of conversion, arguing that he was wrongly accused of taking a bag of mulch from a gas station without paying for it. He also recounts alleged irregularities in this trial, but, as noted, he has not appealed or otherwise challenged his conviction.Moreover, he has not filed a petition for review of the hearing officer's report.

The attorney is presently serving a suspension for failure to pay the costs of an earlier non-cooperation with a bar inquiry. (Mike Frisch)

July 6, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

New Jersey Favors Pro Bono

The New Jersey Supreme Court has reversed an opinion of the Advisory Committee on Professional Ethics that had ruled it an impermissible conflict of interest for pro bono participants in the Volunteer Lawyers for Justice program to provide legal services in bankruptcy matters where their firm (Lowenstein Sandler) represents creditors in unrelated matters.

VLJ’s pro bono bankruptcy program does not present a conflict of interest under RPC1.7. With appropriate safeguards, a volunteer attorney can represent a low-income debtor in a no-asset Chapter 7 bankruptcy matter even if the attorney’s firm represents one or more of the debtor’s creditors in unrelated matters.

The unanimous court found that the public policy in favor of pro bono services "informed" its decision. (Mike Frisch)

July 3, 2014 in Bar Discipline & Process, Current Affairs, Pro Bono | Permalink | Comments (0) | TrackBack (0)

Relationship With Foreign Legal Consultant Draws Censure

A public censure was imposed by the New York Appellate Division for the Second Judicial Department on an attorney who allowed a foreign legal consultant to engage in unauthorized practice beyond the permissible limits of his license.

We find no merit to the respondent's contention that Mr. Vasquez did not hold himself out as an attorney or did not practice law because Mr. Vasquez was in Peru during the relevant time period. The evidence demonstrated that Mr. Vasquez never disclosed his status as a foreign legal consultant on the firm's website, retainer agreement, or business card/flyer. Hence, the respondent engaged in conduct that was deceptive and misleading to the public and clients. We note that Mr. Vasquez resigned as a legal consultant, and in submitting his resignation to this Court, Mr. Vasquez acknowledged that he exceeded his scope of practice as a legal consultant.

The court found mitigation

In determining the appropriate measure of discipline to impose, the respondent asks the Court to consider, in mitigation, the following factors: the lack of intent on his part to deceive, the lack of a prior disciplinary history, his due diligence inasmuch as he did research the rules governing legal consultants in an effort to comply with the rules, and his cooperation with the Grievance Committee's investigation. Additionally, he asks that the Court consider his contributions to the military as a member of the National Guard, the commendation he received upon being honorably discharged, his hard work, the award he received as a distinguished student from the American Bar Association, and his current provision of legal services to low-income Spanish speaking clients.

(Mike Frisch)

July 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failure To Prevent Bogus Law Office Leads To Resignation, Disbarment

The New York Appellate Division for the Second Judicial Department has accepted the resignation of an attorney and ordered his disbarment.

The attorney faced the following charges

...it is alleged that he: (1) failed to prevent or timely discover that Michael Schlussel, a disbarred lawyer, had established "an entirely separate and related law office" in the resignor's name, and used that bogus law office to engage in the unauthorized practice of law, as well as to commit one or more attorney conduct violations in connection with legal matters entrusted to the bogus law office; (2) failed to timely discover that his brother, Mark Savran, a nonlawyer who worked in the resignor's actual law office, had (a) permitted Ms. Eualee Guy-Lodge and Mr. Fausto De Los Santos to ostensibly retain the resignor's services, (b) received funds from these purported clients, and (c) thereafter ignored the legal matters he told these individuals had been entrusted to the resignor's office, without the resignor's knowledge or authority; (3) failed to take appropriate action to halt and/or remediate the foregoing conduct at a time when he could have done so; and (4) failed to cooperate with the efforts of the Grievance Committee for the Ninth Judicial District to investigate the Guy-Lodge and De Los Santos matters.

(Mike Frisch)

July 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Demolition Derby

The Indiana Supreme Court has imposed a suspension of18 months without automatic reinstatement of an attorney for incompetence, conflicts of interest and frivolous litigation in connection with the proposed condemnation and demolition of a building owned by an elderly woman.

The attorney represented the interests of a convicteed murdered referred to as JH as well as the owner. JH was employed as a "contract paralegal" by the attorney. He was also found to have concealed his relationship with JH to disciplinary authorities for two years.

The attorney has a record of prior discipline for incompetence and instituting frivolous litigation. He also made frivolous claims in the disciplinary matter. (Mike Frisch)

July 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Fifth Reprimand For "Inattention To Details"

An attorney who has been privately reprimanded three times and publicly reprimanded once in the past gets his second public reprimand from the Wisconsin Supreme Court.

The problem involved his representation of a corporation that owned a restaurant

Although the court of appeals ultimately reversed the circuit court since Attorney Hudec timely filed an amended answer that joined issue as to all causes of action, the court of appeals criticized statements made by Attorney Hudec at the motion hearing in circuit court.  The court of appeals referred to Attorney Hudec's "lack of attention to detail."  The court of appeals also said Attorney Hudec's conduct was "egregious."  The court of appeals further found that Attorney Hudec incorrectly stated the standard of review as being de novo, whereas the correct standard of review was whether the lower court's decision was an erroneous exercise of discretion.

The court of appeals also said Attorney Hudec's "mistake" in signing and filing an incomplete answer appeared "not to be an isolated incident but a pattern of gross and inexcusable inattention to details."  The court of appeals sanctioned Attorney Hudec for intentionally including materials not appropriate to the appeal, including an administrative decision which postdated the decision being appealed and for intentionally including materials the court deemed "salacious."  The court of appeals imposed a $500 penalty as a sanction.

The court of appeals also found that Attorney Hudec failed to serve a copy of the reply brief on the respondent as required by Wis. Stat. § 809.19(8).  The court of appeals also chastised Attorney Hudec for failing to proofread his submissions and said, "Frankly, we are at a loss to understand what is clearly Hudec's intentional disregard of the rules and the details, including his failure to proofread."

Chief Justice Abrahamson dissented

I would not adopt the stipulation that imposes a public reprimand.  The court of appeals characterized Attorney Hudec's conduct as demonstrating "a pattern of gross and inexcusable inattention to details."  Attorney Hudec has in the past been the subject of three private reprimands and one public reprimand.  A public reprimand in the present case does not comport with the violation of the Code or the concept of progressive discipline.

(Mike Frisch)

July 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Poorly Conceived Short Cut"

The Illinois Administrator has filed an amended complaint in the disciplinary matter involving former Sidley Austin partner Lee Smolen.

The charge

Between 2007 and 2012, Respondent was a partner  at Sidley Austin LLP, based in the firm's Chicago office. During that time, he  was the head partner in charge of the Chicago office's real estate practice  group, and was a global coordinator of the firm's real estate practice group. In  addition to the responsibilities listed above, after October of 2008, Respondent  served as a member of the firm's executive committee. Respondent was responsible  for, among other things, billing matters affecting real estate transactions  involving a major financial institution, one of the firm's largest clients. One  account relating to that client ("the unallocated account") contained funds that  had been paid by the client as fees, but against which additional charges could  be made for various matters, including post-closing fees. In the absence of such  charges, funds in the unallocated account belonged to the law firm.

Between 2007 and 2012, Respondent submitted more  than 800 requests that the firm reimburse him from the unallocated account for  cab rides that he knew he had not taken. In support of the false requests,  Respondent fabricated false taxi receipts, in amounts averaging approximately  $80 each, and the firm paid Respondent approximately $69,000 based on the false  submissions.

During the same period, Respondent also  submitted, or caused to be submitted, fabricated cab receipts totaling at least  $567 that were charged to other firm clients.

 By causing funds to be paid to himself from the  unallocated account, Respondent reduced the amount of money in that account that  would otherwise have been paid to the firm and, eventually, distributed to  Respondent and Respondent's partners.

The amended answer is linked here.

The amended answer states, in part

Respondent admits that, between 2007 and 2012, he submitted more than 800 requests that the firm reimburse him from the "unallocated account" for cab rides that he had not taken. Respondent also admits that he fabricated taxi receipts in amounts averaging approximately $80 each, and that the firm paid him approximately $69,000 based on his submissions, further stating that funds so obtained were utilized for purposes that he considered related to the firm. In further clarification, Respondent states that his submission of fabricated taxi receipts was a poorly conceived short cut around the firm's expense reporting procedures in order to secure more time to address his substantial and demanding commitments to the firm. While wrong, Respondent's conduct was not the result of any intent to profit personally. Respondent affirmatively states that he has reimbursed the firm for the approximately $69,000 at issue.

(Mike Frisch)

July 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Practice Pointer: No "Horsing Around"

The Georgia Supreme Court has disbarred an attorney admitted in 1964 for this conduct with a client who was in his office to pick up a settlement check.

When the client asked what she owed him in fees, he responded

With or without a blow job?

He came around the desk and said

Now it's time for the blow job.

He then exposed himself to her and touched her breasts. She pushed him away and as she was leaving, he said

You're not going to give me a blow job. You're no fun.

She called the cops. He said he was "horsing around" and was impotent due to prostate cancer. He thought the client knew he was "just kidding."

The court ordered disbarment as the appropriate sanction. (Mike Frisch)

June 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Plea For Transparency

A District of Columbia Hearing Committee has recommended that an attorney be disbarred for misappropriation and other serious misconduct.

However, the committee had some harsh words for the Office of Bar Counsel

Before we address Respondent’s violations of his ethical obligations, we turn to
Respondent’s motion to dismiss based on Bar Counsel’s delay in bringing these charges. First, the delay in bringing this case is significant. The events in question took place eight years before Bar Counsel filed its Specification of Charges. By the time the Board on Professional Responsibility and the Court of Appeals will have an opportunity to act on this case, more than a decade will have passed. Bar Counsel should not wait eight years to bring a Specification of Charges, particularly given the seriousness of the violations; this is simply too long.

The committee notes that the bar complaint was filed in April 2005 and that the last communication in the investigation was in 2007. Nothing happened further until the matter was assigned to a newly-hired assistant bar counsel in 2011.

The case is In re Saint-Louis and can be accessed here.

This lack of diligence by Bar Counsel has become, lamentably, all too common over the past several years.

Equally lamentable is the fact that the Board on Professional Responsibility  (which has its own serious delay problems) and the Court of Appeals seem disinclined to address the issue in any meaningful way.

Recently, the Court of Appeals gently noted Bar Counsel's concession that it had been "less than diligent" in its handling of the investigation into serious misconduct.

The court accepted a consent to discipline in the case, where Bar Counsel's investigation had begun in 2003 and was not resolved until 2014. An eight-year investigation in a case that eventually result in a one-year consent suspension, with the court agreeing to treat the delay as a mitigating factor.

Legal Times reported that the conduct occurred in 1999 and that

[Attorney] Saito agreed to the discipline. In an interview, he said that given the amount of time it took the Office of Bar Counsel to prosecute his case, his age (he’s 73) and the difficulties he anticipated in tracking down witnesses so long after the events at issue, he thought it best to reach an agreement.

“It just took too long and took too much of my life,” he said.

The Office of Bar Counsel docketed a complaint against Saito in 2003. Not much happened in the case until 2011, when it was reassigned to a new assistant bar counsel “in an effort to resolve old, pending cases,” according to documents filed in Saito’s disciplinary case.

When a lawyer does little or nothing to advance a case for eight to ten years, we call that neglect and the lawyer/law office where this occurs is subject to bar discipline.

Who investigates and prosecutes such neglect?

The Office of Bar Counsel.

I shudder to think what might have happened to these cases if Phil Fox (the aforementioned new hire) had retired rather than signed up to be an assistant bar counsel.

If it were up to me (and it is not), all components of the D.C. attorney discipline system would be required to report on how long complaints and petitions take to resolve -- investigations, dismissals, diversions, informal admonitions and prosecutions.

How expeditious are the hearing committees and the BPR after charges are filed?

Without annual reports (common in many jurisdictions but anathema to D.C.), no one can begin to know.

These statistics would give the public real insight into whether attorney self-regulation works in D.C.

And then, maybe, there would be some long-overdue accountability for a system entrusted with upholding the integrity of the legal profession. (Mike Frisch)

June 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)