Thursday, January 5, 2017

No Sympathy

Readers may recall that I question New Jersey's commitment to attorney discipline from time to time.

Well, the Disciplinary Review Board proposed - and the Supreme Court accepted - reciprocal disbarment in a matter where Pennsylvania had imposed a suspension of a year and a day

...to establish knowing misappropriation, the [Office of Attorney Ethics] must prove, by clear and convincing evidence, that respondent deliberately took his client’s funds and used them, knowing that the client had not authorized him to do so. This, respondent has admitted. He attempted to mitigate his conduct, however, by offering details about his dire financial straits, the need to pay his child support, and his asserted mental health issues stemming from his father’s murder. Although these factors may engender some sympathy, "no amount of mitigation will save from disbarment an attorney who knowingly misappropriates trust funds." Id. at 160.

Respondent committed several other ethics violations that warrant discipline. These violations, however, are less severe in nature than the knowing misappropriation of client funds, and would result in less severe discipline had they occurred on their own. Hence, in light of our recommendation, we do not address the appropriate quantum of discipline for those other violations. Respondent has admitted that he took client funds from his trust account, without authorization, and used them for his own personal benefit. In New Jersey, that misconduct requires that respondent be disbarred. We so recommend.

(Mike Frisch)

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

Wednesday, January 4, 2017

All Over A Seatbelt Citation

From the January 2017 online California Bar Journal

ALLISON CHRISTINE WORDEN [#211104], 41, of San Diego, was suspended from the practice of law for 60 days and ordered to take the MPRE. She was also placed on two years’ probation and faces a one-year suspension if she fails to comply with the terms of her disciplinary probation. The order took effect Nov. 20, 2016.

On Feb. 13, 2013, a jury found Worden guilty of one count of conspiracy to obstruct justice and the due administration of law and two counts of alteration or destruction of a traffic citation, all misdemeanors.

In May 2011, Worden and her coworker, both deputy district attorneys for the San Diego County District Attorney’s Office, were pulled over and each received a citation for Worden’s failure to wear a seatbelt. Worden later phoned a family friend, a sergeant in the San Diego Police Department’s traffic division, who agreed to dismiss the citations without talking to the traffic officer. Worden then told her coworker to destroy her citation but the coworker refused to do so. Worden resigned from the district attorney’s office after the jury trial.

In aggravation, Worden’s conduct was damaging to the integrity and credibility of the criminal justice system and to the legal profession. In mitigation, she had no prior record of discipline, presented evidence of her good character, has done community service and entered into a pretrial stipulation with the State Bar.

The San Diego Union Tribune reported on the appeal of the criminal conviction. (Mike Frisch)

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

Revolving Door Informal Admonition

The District of Columbia Disciplinary Counsel has issued an informal admonition for a former federal government attorney's revolving door ethical violation.

The attorney did not "switch sides."  Rather, the representation was adverse to the subject of her investigation as a public employee.

From the admonition

You were employed as Associate Chief Counsel for the Food and Drug Administration's Office of Chief Counsel between 2004 and 20 l 0. In late 2005, you were assigned to work on an investigation of Ranbaxy Laboratories, LTD., a generic drug manufacturer. You participated personally and substantially in that investigation from 2005 to 2008. One of your assignments was to assist in the drafting of an affidavit in support of a search warrant of Ranbaxy. The affidavit contained specific, detailed allegations from multiple informants concerning Ranbaxy's fraudulent conduct in manufacturing and testing generic drugs and filing falsified Abbreviated New Drug Applications (ANDAs) with FDA. You attended frequent meetings with law enforcement agents and government lawyers involved in the investigation.

The search warrant was executed in 2007, and you were involved in reviewing the seized documents, which amounted to more than 400 boxes. These documents confirmed information from informants that certain Ranbaxy facilities had falsified data in the submitted ADAs.

Then

In 2008, you were reassigned to other matters. In 2010, you left FDA, and in 2011, you joined the law firm, Hyman, Phelps & McNamara.

After your departure from FDA, the investigation of Ranbaxy was resolved with a Consent Decree of Permanent Injunction, a guilty plea, and the settlement of a False Claims Act civil complaint. You had no involvement in the resolution of the investigation. The Consent Decree was entered into in January 2012. It required Ranbaxy to withdraw certain ANDAs that were premised on false data and to relinquish market exclusivity, based upon first-to-file status, for the generic products that had been approved as a result of those ANDAs. The Consent Decree exempted certain AND As from this requirement, and the identity of these drugs were filed under seal and not otherwise made public. The exempted drugs included Varsartan, Esomeprazole Magnesium, and Valganciclovir Hydrochloride.

On May 5, 2014, you signed a Citizen Petition to FDA on behalf of an anonymous competitor of Ranbaxy. You participated in the drafting of this document, particularly the factual part, which set forth the facts and history of Ranbaxy's fraudulent conduct. The petition requested FDA to determine that Ranbaxy was not eligible for first-to-file market exclusivity and to revoke pending ANDAs for Valsartan, Esomeprazole Magnesium, and Valganciclovir Hydrochloride, three of the products that had been exempted, under seal, from the Consent Decree. The petition further asked FDA to approve ANDAs for these drugs from Ranbaxy's competitors. The basis for these requests was Ranbaxy's fraud, and the petition criticized the Consent Decree as inadequate. The petition asserted "upon information and belief' that Ranbaxy's ANDAs for these three drugs had relied on data from one of the facilities that was shown to have generated falsified data in FDA's investigation.

...We find that your participation in drafting the Citizen Petition was substantially related to your participation in the criminal investigation of Ranbaxy. 

 Disciplinary Counsel's analysis

You have said that because of the passage of time, you no longer remembered in 2014 any confidential information that you might have learned during the investigation of Ranbaxy, where your involvement ended in 2008. Moreover, you took the precaution of having a paralegal gather only publicly-available information about Ranbaxy and the investigation, and you wrote the factual part of the petition based only on that public information. (The statement in the petition based on information and belief as to the origin of data in support of certain ANDAs was not based on the readily available public information. You have told us, however, that your client and others in your firm ascertained this information and were the sources for its inclusion in the Citizen Petition.) You also evaluated and sought advice from others within your firm about whether your work on the Citizen Petition would be substantially related to your work on the criminal investigation at FDA and believed in good faith that it was not. We do not dispute your statements in this regard. Rule l. ll(a), however, is a prophylactic rule, intended to prevent any possibility that former government lawyers will use information they learned while representing the government to benefit private clients. It does not require a showing that you actually used confidential information learned during your government employment in private practice...

The case is In re Anne K. Walsh, Docket No. 2015-D248 and can be accessed through this link. (Mike Frisch)

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

Tuesday, January 3, 2017

Connecticut Explains Misappropriation Sanction Standards

The Connecticut Supreme Court has issued an opinion of significance that affirmed a reprimand for a Rule 1.15 violation and rejected a harsh presumptive sanction for intentional misappropriation

This disciplinary action originates from a twelve year old fee dispute that resulted in several actions and various appeals...

The trial court found by clear and convincing evidence that the defendant violated rule 1.15 (f) of the Rules of Professional Conduct by failing to maintain the disputed fee in escrow and that his ‘‘belief that Yuille would be satisfied once Mooney was paid was erroneous and unreasonable given the totality of the circumstances.’’ Despite this violation, the trial court also found that the defendant did not knowingly misappropriate those funds. Specifically, the trial court found that the defendant’s ‘‘failure to escrow the funds . . . was not a reflection of any lack of integrity on his part and that he did not act wilfully or with intent to deceive Yuille.’’ Essentially, while the defendant appropriated the funds knowingly, he had ‘‘engaged in this conduct negligently,’’ without deceptive intent.

Bar Counsel had appealed to the Appellate Court, which affirmed, as did the court here

The plaintiff claims that Practice Book § 2-47A mandates disbarment when an attorney: (1) appropriates client funds; (2) does so knowingly; and (3) does so knowing no agreement or court order existed regarding the appropriation of the funds. In the plaintiff’s view, a finding regarding the defendant’s intent is unnecessary. We disagree.

As to sanction

On the basis of the trial court’s factual findings, as set forth in this opinion, the defendant’s transfer of funds constituted an appropriation that he undertook knowingly. The trial court found, however, that the long and tortuous procedural history of the parties’ fee dispute contributed to the defendant’s unreasonable but subjective belief that he was entitled to the disputed funds and no longer was required to maintain them in escrow.6 Put another way, the defendant appropriated client funds, did so knowingly, but did not do so with any intent to steal the escrowed funds or otherwise take them wrongfully, dishonestly, or illegally. The transfer did not constitute theft or larceny. Accordingly, because the defendant did not intend to steal from his client he did not act with the intent necessary to constitute a misappropriation and, therefore, is not subject to mandatory disbarment...

In holding that in order to be subject to mandatory disbarment pursuant to Practice Book § 2-47A, an attorney must knowingly and intentionally steal client funds, we reject the definition of ‘‘knowing misappropriation’’ from Wilson, which resembles strict liability, and the New Jersey case law that flows from it. In re Wilson, supra, 81 N.J. 455 n.1. In addition to being inharmonious with our statutory construction of ‘‘knowingly misappropriated,’’ such a standard would impose a severe punishment—that of mandatory disbarment for a minimum of twelve years—on attorneys for conduct that had been undertaken less than intentionally and, further, would create a rigid rule, robbing the trial court of its discretion to fashion sanctions properly suited to the offending attorney’s background, intent, and mitigating or aggravating circumstances.

(Mike Frisch) 

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

Prosecutor Reprimand Proposed: Junior Status No Defense

A prosecutor's Rule 3.8(d) violation resulted in  a public reprimand by the Louisiana Attorney Disciplinary Board.

The prosecutor was involved in a second-degree murder trial and claimed that his subordinate status precluded a misconduct finding with respect to disclosure of the familiarity of the crucial witness with guns.

The totality of evidence underpinning the state's case consisted almost exclusively of the testimony of one key witness – and the only admitted participant – in the homicide: the victim's estranged wife, Kristyn Hoffpauir. Kristyn initially was charged as a co-defendant with Sizemore, but in May 2011 she entered a guilty plea agreeing to testify for the state at trial against her former co-defendant.

The board on the Rule 5.2 defense offered by the prosecutor

We disagree. A subordinate lawyer is only insulated by Rule 5.2(b) when the supervisory lawyer is faced with a reasonable resolution of an arguable question of professional duty. Here, we find that the supervising lawyer's resolution was neither reasonable nor arguable. His decision that such information should not be given to the defense does not logically follow from the premise that the information was hearsay. The defense could have called as witnesses the people identified by Mr. Thibeaux as possessing firsthand knowledge of the events in question, but not if it does not possess the information in the first place. Kristyn's gun familiarity was questioned in the first two trials, and one of those occasions was after the prosecutors learned that Kristyn not only may have had a gun, but may have threatened to kill her own mother.

We are not persuaded by the fact that this issue did not arise in the third trial. The issue is not what happened in the third trial, but before and during the second. We find that the Office of Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Rule 3.8(d) in failing to disclose the information procured by Detective Ortiz. Respondent has substantial experience as a prosecutor, and neither he nor Mr. Westerchil was principally responsible for the case.

The board agreed that the prosecutor had withheld material evidence in violation of his disclosure obligations.

The board noted only a single prior Louisiana case involving a Rule 3.8(d) violation and considered the prosecutor's subordinate status in assessing the severity of the misconduct

The facts of this matter appear to be less egregious than those in Jordan. First, Mr. Jordan had sole discretion on what evidence was provided to the defense. Here, the facts are quite different. Mr. Skinner directed Detective Ortiz to interview Mr. Thibeaux, unbeknownst to Respondent and Mr. Westerchil. Mr. Skinner directed Detective Ortiz to leave the information regarding the prior gun possession out of his report, and then directed Mr. Westerchil to not disclose the report to the defense. Thus, Respondent was put in the difficult position of having to defy his supervisor’s handling of the information. Second, once the undisclosed evidence came to light during the second trial, Respondent and Mr. Westerchil promptly agreed to a mistrial. No such remedial action was taken in Jordan. Accordingly, the sanction recommended by the Committee – public reprimand – is appropriate and is adopted by the Board.

Mr. Skinner is the District Attorney. (Mike Frisch)

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

North Of Disbarment

The Louisiana Attorney Disciplinary Board has proposed permanent disbarment of an already disbarred attorney based on findings that the first sanction did not take hold.

From the charges

Judge Monique Barial, with the Orleans Parish Civil District Court, states that on May 11, 2015, you appeared in her court as counsel for Ivan Prevost, petitioner in a Petition for Protection from Abuse. The Court rendered a judgment, which you were to prepare. When Mr. Prevost was unable to reach you to obtain a copy of the judgment, he went to the Court's chambers to get a copy. The office staff told Mr. Prevost that it had not yet received the circulated Judgment with the Rule 9.5 Certificate. Approximately two days later, Mr. Prevost returned to the Court's chambers to get a copy of the Judgment in order to schedule the evaluations ordered by the Court. Mr. Prevost told the staff that he still had not heard from you, and had in fact learned that you had been disbarred.

Judge Barial then called the number that was listed on the draft of the judgment you had previously sent to the Court, and left a message asking that you call the Division. To date there has been no response to Judge Barial’s request. Judge Barial also did a search of the Court's Case Management System in order to identify whether or not you were listed as eligible. She noted that there was an Edward W. Hebert (LSBA #25086) who was listed as ineligible. The LSBA number you listed on the judgment that you submitted to the Court is #25412. You also listed your name as “E. Hebert” on the judgment. According to the Court's database, the bar roll number listed on your judgment belongs to an attorney by the name of Eric T. Hebert. Judge Barial called Eric Hebert, who confirmed that the bar roll number listed on your pleading was his, that he was not Edward Hebert, and there was no Edward Hebert at his firm.

You intentionally practiced law while suspended when you made a court appearance and prepared a judgment for Mr. Prevost. In addition, you intentionally misrepresented your name and Louisiana bar roll number to the Court, in order to conceal the fact you were ineligible to practice law.

According to Mr. Prevost, you never told him you were suspended from the practice of law. Mr. Prevost further confirmed he paid you $500 in cash to represent him in the underlying matter. You intentionally deceived Mr. Prevost and obtained $500 from him under false pretenses. As of this date, you have not refunded any of the funds given to you by Mr. Prevost.

The board agreed with the hearing committee on misconduct but not sanction

The Board adopts the factual findings and legal conclusions of the Committee. However, it does not adopt the Committee’s sanction recommendation. Instead, the Board recommends that Respondent be permanently disbarred under Guidelines 8 and 9. Additionally, the Board recommends that Respondent be assessed with the costs and expenses of this matter and be ordered to provide restitution to Mr. Prevost.

(Mike Frisch)

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

Monday, January 2, 2017

The Most Important Year In D.C. Bar History

The year 2017 will be one of the most consequential in the history of the District of Columbia Bar with the retirement and replacement of the most influential actors in the regulation and administration of the legal profession. 

The ultimate responsibility for the regulation and direction of the D.C. Bar rests with the highest court of the jurisdiction - the Court of Appeals.

From the Court's Rule I creating the unified Bar

The purposes of the Bar shall be to aid the Court in carrying on and improving the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence in public service, and high standards of conduct; to safeguard the proper professional interest of the members of the Bar; to encourage the formation and activities of volunteer bar associations; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the Bar to the public, and to publish information relating thereto; to carry on a continuing program of legal research and education in the technical fields of substantive law, practice and procedure, and make reports and recommendations thereon; to the end that the public responsibility of the legal profession may be more effectively discharged.

Chief Judge Eric Washington will step down this March. 

The court not only administers the attorney discipline system but also must work with the organized Bar on a wide array of issues including budget, i.e., the spending of mandatory dues. 

The next Chief  Judge will play a key role in the uncertain future.

The Bar's longtime Chief Executive Officer is also retiring at the end of March and  "brings to a close a remarkable career that spans 34 years of continuous service to the D.C. Bar. "

With the new building in the works, it has never been more important to have an independent leader with a fresh approach and superb managerial skills who has no loyalty to any bar faction other than its membership in the broadest sense.

I do not know who hires the next Chief Executive Officer (I assume that the task falls to the Bar's Board of Governors) but the process should be as transparent as possible and give the largest possible voice to the membership.

 Finally, there will be a new Disciplinary Counsel this year, replacing one who has been in discipline for a like period as the Chief Executive Officer has been running the Bar.

The replacement will be chosen by the Board on Professional Responsibility. 

It has been widely (if not publicly) recognized that there is room for considerable improvement in the operation of every aspect of the attorney discipline process in D.C.

The choice of the new Disciplinary Counsel is the key decision that will determine the future of attorney regulation in the District of Columbia. 

The Executive Attorney of the Board on Professional Responsibility - also a bar careerist - retired and was replaced in 2016.

I am confident that the decisionmakers responsible for the public trust that the Bar offices embody will bring in fresh blood to invigorate  a Bar that for far too long has been an inside job.

As George Allen (the coach not the politician) once said:

The Future is Now!

(Mike Frisch)

January 2, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Saturday, December 31, 2016

Does Growing More Marijuana Plants Than Permitted For Lawful Medical Use Reflect Adversely On Fitness?

An attorney's role in growing more marijuana plants than the 24 permitted under Michigan's Medical Marijuana Act is at issue in an Illinois disciplinary proceeding. 

The attorney has filed an  answer to the complaint alleging a violation of Rule 8.4(c) which provides that it is professional misconduct to

commit[] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects

 The answer does not contest that

From approximately June 2012 to December 2013, Respondent and his then-girlfriend, Samantha Lumley ("Lumley"), maintained a rented home at 3590 138th Street in Hamilton, Allegan County, Michigan (the "Hamilton residence"). During this time, Respondent traveled between Hamilton, Michigan and Bolingbrook, Illinois, where he also maintained a residence (the "Bolingbrook residence").

In or around June 2012, Respondent and Lumley Permitted For obtained medical marijuana cards under the Michigan Medical Marihuana Act (the "Act"). Section 333.26424(a) of the Act allows a registered person, referred to as a qualifying patient, to legally possess 2.5 ounces of usable marijuana and grow up to 12 marijuana plants for medicinal purposes, unless that person has a designated primary caregiver who is assisting them with their medical use of marijuana. A primary caregiver is legally allowed to possess 2.5 ounces of usable marijuana and grow up to 12 marijuana plants for each qualifying patient they are assisting, up to five patients, pursuant to Section 333.26424(b) of the Act. Lumley was a primary caregiver with one patient, Respondent, and was therefore allowed to possess a total of five ounces of usable marijuana and grow up to 24 marijuana plants.

Between June 2012 and December 2013, Lumley grew more than 24 marijuana plants at one time in the garage of the Hamilton residence. Lumley also manufactured marijuana butter, marijuana oil capsules, and marijuana laced candy, and sold these products to third parties. Respondent had knowledge of Lumley's manufacture and sale of marijuana, and he provided informational and financial assistance to Lumley's operation.

On December 4, 2013, Lumley mailed a package from Michigan containing marijuana oil to Respondent's Bolingbrook residence. The West Michigan Enforcement Team ("WEMET"), a multi-jurisdictional drug enforcement task force, intercepted the package and traced it back to Lumley.

The attorney was present at the Hamilton residence when the enforcement team arrived.

He denies knowledge of Lumley's expanded activities prior to that time.

He initially pled guilty to conspiracy to manufacture marijuana and was placed on deferred probation.

After the probation was successfully completed, he pled to a high court misdemeanor charge of maintaining a drug house and the conspiracy charges were dismissed.

He was in custody for 27 days.

The answer neither admits or denies the legal conclusion that the conduct violated Rule 8.4(b). (Mike Frisch)

December 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

An Argument That Led To Double Disbarment

An attorney disbarred in North Carolina has filed a motion consenting to the same sanction in Illinois.

The criminal charges that formed the basis of the consent

On June 10, 2015, Movant was involved in an argument with his paramour while at Hudson’s Market at the Wild Dunes resort in Isle of Palms, Charleston County, South Carolina. During the argument, Movant pointed a black Ruger LCP .380 firearm at his paramour and others. Witnesses called the police, and officers arrested Movant outside Hudson’s Market. Upon arrest, officers found Movant to be in possession of less than one gram of cocaine.

On June 1, 2016, Movant entered pleas of guilty to one felony count of pointing and presenting a firearm at a person, one misdemeanor count of unlawful carrying of a pistol, and one misdemeanor count of possession of cocaine in Charleston County, South Carolina...and judgments of conviction were entered against him the same day. Movant was sentenced to a total of one year in the State Department of Corrections (with credit for time served) and five years of probation. Movant is currently on probation.

We had the story of his interim suspension in North Carolina linking to a report by WRAL.com

A 39-year-old Cary man, who has worked as a tax attorney in Raleigh, is accused of holding his ex-girlfriend hostage at a South Carolina grocery store.

The Isle of Palms Police Department has charged Robert Howell with attempted murder, kidnapping and first-degree burglary in the incident, which happened Wednesday.

Investigators said Robert Howell followed Autumn Yee, 29, of Cary, to Isle of Palms, where she was vacationing. Howell allegedly took Yee to Hudson's Market, where she alerted one of the clerks by silently mouthing "call police."

In a 911 recording, the woman can be heard speaking to an emergency operator about the situation.

 "I need you to come to Wild Dunes, please. There's a man with a gun and he's holding me hostage," she said. "I need you to get here quick."

Isle of Palms police Capt. Kimberly Usry said Yee tried to keep herself and her assailant in public places so someone could see them. At some point, she jumped over the counter to try to get away. Howell grabbed her, ran out of the store toward the beach and was arrested, Usry said.

Police said Yee, who suffered minor scratches in the incident, had gone to Isle of Palms to flee from Howell a day after he allegedly assaulted and threatened her in her Cary home.

"Officers responded and found that a subject and been harassing the victim there," Cary police Capt. Randall Rhyne said.

In a 911 call that day, Yee told dispatchers she arrived home and found him pacing back and forth in the road, staring at her. She said she was frightened and asked the call-taker to stay on the line until help arrived.

"I'm just afraid to get out of the car," she said in the recording released Monday. "I just want a cop to escort me to my door and ask him to leave."

Robert Howell and his estranged wife, Sarah Howell, are locked in a contentious custody battle over their three children. According to court documents, Sarah Howell had subpoenaed Yee in the custody case.

A day after Yee was held hostage, Sarah Howell sought a protective custody order against her husband, citing the kidnapping as proof that he posed a danger to her and her children.

Cary police said they are now working with South Carolina authorities to serve Robert Howell with additional warrants.

(Mike Frisch)

December 31, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, December 30, 2016

A Gift

The New Jersey Supreme Court recently reinstated an attorney after ordering his disbarment in May 2014 for intentional misappropriation.

The path post-disbarment was unusual as recounted in the court's order

and the Court thereafter on respondent’s motion for reconsideration, having remanded the matter to the special ethics master for a hearing at which respondent could present additional proofs of his defense that the funds at issue in the Cox matter were a gift to respondent, as well as evidence pertaining to respondent’s credibility;

And the special ethics master having conducted said hearing and having submitted to the Disciplinary Review Board his supplemental report with the findings of fact and conclusions of law based on the additional proofs;

And the Disciplinary Review Board thereafter having filed a supplemental decision with the Court (DRB 16-077), accepting the credibility determinations of the special ethics master and finding that in the aggregate the record lacks convincing evidence that respondent knowingly misappropriated client funds, and having recommended to the court that the formal ethics complaint be dismissed and that respondent be reinstated to the practice of law.;

And good cause appearing;

It is ORDERED that the disbarment Order filed May 12, 2014, is hereby vacated...

The charges were dismissed and the attorney was immediately reinstated.

NJ.com had reported on the 2014 order of disbarment

In the days before 91-year-old Doris Cox died in January 2008, her attorney, Michael Luciano, withdrew $100,000 from her bank accounts, court papers say.

Luciano has claimed the money was a “gift” that Cox had said she wanted to give him several months beforehand, court papers say. He later used the funds to purchase bonds for himself or his children, court papers say.

But state judiciary officials didn’t buy that argument about the gift, and last week the state Supreme Court disbarred the Livingston attorney for the knowing misappropriation of client funds.

The order of disbarment, approved on Monday, was effective immediately.

In its decision recommending disbarment, the court’s Disciplinary Review Board noted how Luciano had no written evidence to show he had permission to take the money as a gift.

The attorney also failed to report the $100,000 on tax returns, the decision states.

“Given respondent’s failure to maintain the funds in a manner that was consistent with his stories, the only possible explanation for his transfer of the funds to the trust account was so that they could be hidden from the government and Cox’s beneficiaries,” the decision states.

Luciano is planning to file a motion to reconsider the disbarment, said his attorney, David Glazer. Luciano was admitted to the bar in New Jersey in 1984.

“We think it’s…a miscarriage of justice,” Glazer said. “We don’t believe that Michael did anything wrong.”

Glazer said Luciano’s clients can testify to his honesty, decency and compassion. “I don’t think you’ll find a single client who will have a negative thing to say about Michael Luciano,” Glazer said.

Cox, a retired elementary school teacher who later worked as a veterinary technician, was referred to Luciano by a friend in order to have her will redrawn, according to the decision.

In December 2005, Cox designated Luciano as her power of attorney, and he later handled all of her financial affairs, the decision states. Cox had no family, the decision states.

Her friend testified at a hearing that Cox’s state of mind was “fine” until “the last month or so,” the decision states. At that time, Cox was incoherent and “she did not understand what day or time it was,” the decision states.

Eight days before Cox died on Jan. 11, 2008, Luciano prepared a $25,000 check payable to himself from one of her bank accounts, according to the complaint filed against him by the court’s Office of Attorney Ethics.

Luciano signed Cox’s name on the front of the check and deposited the funds into his attorney trust account, the complaint states.

On Jan. 9 – two days before Cox’s death – Luciano obtained a $75,000 check payable to Cox from another account, the complaint states. He signed Cox’s name on the back of the check and deposited it into his account, the complaint states.

Following Cox's death, Luciano used the funds to purchase bonds for himself or for his children, the complaint states.

The transfer of the $100,000 was discovered during a random audit of Luciano’s law firm by the Office of Attorney Ethics in August 2009, the decision states.

After Cox died, Luciano also received additional payments totaling more than $100,000 in attorney fees for handling the estate and a commission as the executor of her estate, the decision states.

During the ethics investigation, Luciano claimed that Cox had told him about the $100,000 gift during a July 30, 2007 meeting, the decision states. After receiving the ethics complaint, Luciano said he accepted the gift in lieu of attorney fees, according to his answer to the complaint.

“Ms. Cox emphatically stated that she wished to gift respondent $100,000.00,” according to Luciano’s answer. “Although Ms. Cox was not a blood relative her relationship with respondent was that of a relative or family member.”

But state judiciary officials concluded “there was no gift and that he availed himself of the $100,000 left in Cox’s account, which he knew she no longer needed,” the decision states.

The report of the Disciplinary Review Board proposing dismissal is linked here . 

It recounts the finding of the Special Master

although the evidence offered in support of respondent’s claim that Cox had gifted the $100,000 to him was "not overwhelming," it was "just enough to push the scales to defeat the OAE’s burden of proof below the required clear and convincing evidence standard." Consequently, the special master recommended respondent’s reinstatement to the practice of law.

The DRB majority concludes that misappropriation was not established by clear and convincing evidence with some misgivings but could no longer recommend disbarment "without hesitancy"

...some of respondent’s explanations for his actions remain contradictory, even irreconcilable, such as his failure to identify the gift on the inheritance tax return and his failure to declare the $100,000 as income. Yet, the ultimate question is, not what respondent did with the money or how he described the money or whether he should have paid taxes on the money. Rather, the ultimate issue is whether respondent knowingly misappropriated the funds in the first instance. Given the additional evidence presented on remand, it is no longer necessary to look at respondent’s subsequent actions to prove that he was not authorized to take the monies. In the face of the additional evidence that the monies were gifted to him, when considered in the aggregate with the OAE’s evidence, we are no longer able to come to a clear conviction, without hesitancy, that respondent knowingly misappropriated $100,000 from Cox.

And

Certainly, a person of honor is not immune from engaging in unethical behavior. Indeed, we do not go so far as to say that respondent has established, by clear and convincing evidence, that Cox had gifted $100,000 to him. We find, however, that, when considering all of the evidence, in the aggregate, the record lacks clear and convincing evidence that respondent knowingly misappropriated funds belonging to his client, Doris A. Cox. We recommend, therefore, that the complaint be dismissed, and that respondent be reinstated to the practice of law.

Finally, we take the opportunity to express a concern. The lack of a writing, demonstrating that Cox gifted the funds to respondent, disturbs us greatly.

Maybe not greatly enough, as indicated by the dissent of two DRB members

In our view, the corroboration of the "gift" by respondent’s family members, law partner, and former secretary is self-serving both to his interests and to theirs. That his client was generous to others does not convince us of her generosity toward him, for several reasons.

First, up until the time of the "gift," respondent billed Cox for the services he provided to her. Why, then, would she reward him with a six-figure "bonus?" This is particularly so, given that her rewards to others were in writing in the form of specific bequests in her will or the identification of beneficiaries to her annuity and pension.

Second, it is unfathomable to us that an attorney as experienced and meticulous as respondent would fail to obtain a writing confirming that Cox has gifted $100,000 to him.

Third, respondent’s failure to report such a substantial sum of money to any taxing authority, together with his admission that he did not want the beneficiaries to know about the gift, smacks of dishonesty so premeditated in scope as to trump all other evidence suggesting - and it only suggests -- a gift.

The dissenters also considered the age and infirmity of the client, which drew this response from the majority

Here, the dissenting members of this Board have based their determination, in part, on their view that Cox’s age and poor health rendered her vulnerable and that respondent took advantage of her. We note, however, that there was no evidence of her vulnerability; that age and health alone do not necessarily render one vulnerable; and that, compared to the record in [prior disciplinary cases], the record here lacks evidence that respondent took advantage of Cox. In our view, the strong character evidence produced at the rehearing undercuts such a conclusion.

I think there is at least a possibility that too much weight was given to the character evidence and too little to the proven facts.

Notably, Rule 1.8(c) of the New Jersey Rules of Professional Conduct provides

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent, or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.

(Mike Frisch)

December 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Second Time Around

A District of Columbia Hearing Committee has found intentional misappropriation and recommends disbarment of an attorney previously disbarred for that same misconduct in 1990 and subsequently reinstated to practice.

The complainant was not the client.

Rather, the matter involved a dispute with co-counsel over the allocation of fees in successful litigation.

The Specification of Charges alleges that following the conclusion of a successful suit in the courts of the Commonwealth of Virginia, Respondent, who was the sole custodian of the proceeds of that suit, undertook to distribute those proceeds. He made an appropriate and unchallenged distribution to the plaintiff/client, satisfying the client’s claims pursuant to the retainer.  He also made an appropriate and unchallenged distribution to the Virginia attorney who served as local counsel in the litigation.  The problem which brought this matter to the attention of Disciplinary Counsel arose in the course of making a distribution to the two District of Columbia attorneys who had first been engaged by the plaintiff and who were responsible for arranging for Respondent’s participation in the matter. Respondent, the two complainants, and Virginia local counsel were parties to the retainer agreement, but that agreement made no provision for the division of attorneys’ share among them. While local counsel was satisfied with his share, the three District of Columbia attorneys could not reach any agreement on the division of the fee.

Notably, then Bar (now Disciplinary) Counsel, had apparently not alleged misappropriation but rather charged a Rule 1.15 (d) (duty to hold disputed funds) violation.

The hearing committee nonetheless found that the attorney engaged in intentional misappropriation 

We take this view notwithstanding Disciplinary Counsel’s suggestion that we are bound by the Contact Member’s determination. There is nothing in the record available to us to suggest that the Contact Member did indeed consider the question, and even assuming the Contact Member did consider it, we respectfully disagree with his/her conclusion. Given the facts of the Specification as pled by Disciplinary Counsel and accepted by Respondent, and considering our Court’s express views on intentional misappropriation, we are merely following those to bring this matter into conformity with the law in the District of Columbia.

In considering this matter we note some anomalies. First, it is curious that Disciplinary Counsel remarks on the “punctiliousness” of Hearing Committees which, in the face of the Disciplinary Counsel’s consistent practice of pleading misappropriation cases in the alternative, that is, not specifying whether charged conduct was intentional, reckless, or negligent, here suggests that this Committee is in contradiction of that general practice of our sister Hearing Committees when we require that in this matter Disciplinary Counsel plead the “general” misappropriation charge when Disciplinary Counsel has pled the “specific” charge which addresses the conduct here. Disciplinary Counsel’s argument neglects the core problem in this and those matters, that is, the Court of Appeals has stated a strong preference for a particular sanction when misappropriation is intentional or reckless. That preference compels that a respondent be given sufficient notice of the potential for that sanction, and equal treatment requires  that any and all conduct which amounts to intentional or reckless misappropriation be treated as such.

Finally, this and every other matter before the Board deserves as prompt a resolution as possible, and such is required in fairness to the Respondent and the public we are charged to protect. Having notified the parties that we would do so and then considering the evidence as to a charge of reckless/negligent misappropriation as well as the charge of violating Rule 1.15(d) we have provided the Board and the Court with the fullest record upon which to act. By making clear herein how we would resolve this matter on the charge of Rule 1.15(d) and on the charge of Rule 1.15(a) and (c), if the Court or the Board disagrees with our view, they can address that question without need for a remand.

The above discussion refers to the process by which an attorney hearing committee member serves as "contact member" to review proposed petitions charging ethical misconduct pursuant to the court's Rule XI

A Contact Member designated under section 4(e)(5) of this rule shall have the power and duty to review and approve or suggest modifications of recommendations by Disciplinary Counsel for dismissals, informal admonitions, the institution of formal charges, and the deferral or abatement of disciplinary investigations pending the outcome of related criminal or civil litigation. In the event of a disagreement between Disciplinary Counsel and the Contact Member regarding the disposition recommended by Disciplinary Counsel, the matter shall be referred by the Executive Attorney to the Chairperson of a Hearing Committee other than that of the Contact Member for decision. The decision of the Hearing Committee Chairperson to whom the matter is referred shall be final.

I have been in a few of the "disagreements" referred to in the rule. Such interactions remain confidential, although as my late mentor Len Becker would say, the stories are occasionally juicy. 

As to handling of the disputed proceeds, the hearing committee found

Pursuant to the retainer agreement in this matter, after distributing $360,000 to [client] Ms. Bables, the attorneys’ portion of the recovery in Ms. Bables’ matter was $240,000. One of Respondent’s first distributions of that recovery was to pay Mr. Thompson, local Virginia counsel, $15,000. While Messrs. Long and Stovall have indicated they would have paid Mr. Thompson more, Mr. Thompson has never formally complained and thus is not a party to the fee dispute among the three District of Columbia lawyers which occasioned the instant proceeding. There was, as a result, a dispute over the division of the remaining $225,000. Disciplinary Counsel contends that Respondent violated Rule 1.15(d) when, despite the fact that he had been put on notice that there was a dispute concerning the division of fees between Respondent and co-counsel in the Bables matter, Leonard L. Long, Esquire, and W. Thomas Stovall, II, Esquire, over a period of months following his distribution to Ms. Bables and local counsel, Respondent distributed to himself virtually all of the remaining $225,000 of the settlement.

And as to reliance of advice from disciplinary counsel

 While in principle Respondent can be fairly said to be in compliance with Rule 1.5(e) throughout his dispute with Messrs. Long and Stovall, in fact he never claimed reliance on the Rule until he consulted with the Office of Disciplinary Counsel long after the dispute had arisen, and after he had been advised that Messrs. Long and Stovall believed the entire sum of $225,000 was in dispute. 

Key finding

As a matter of fact, we find that there was indeed a meeting of the minds on the question of the division of the fee. At least two things indicate that Messrs. Long and Stovall were correct when they testified that the understanding between the three counsel when the association began was that the fee would be divided among them in equal parts...

The Hearing Committee finds Respondent incredible in his claim that there was no agreement on the split at the beginning of the case, and Messrs. Long and Stovall testified truthfully when they said the original agreement was that the fee would be divided equally among the three. We find that Robinson’s protestations of unfairness not to the contrary, he well knew that he had an oral agreement with Messrs. Long and Stovall to split the fee evenly, and he was thus obligated to maintain $150,000 in his account as being in dispute. He clearly did not.

The case is In re Wendell Robinson.

The apparent disagreement between the hearing committee and disciplinary counsel is an interesting one. Disciplinary proceedings are not criminal in nature and the contact member is not in any sense a grand jury.

Rather, the approval process is informal and usually  (in my stale personal experience) rather perfunctory. Indeed, there are those who believe that the process should be discarded in its entirety.

Consistent with due process notice requirements, I have no doubt that an approved petition can be amended as evidence of misconduct develops without returning to the contact member for permission.

Any other approach would elevate mindless proceduralism over common sense. (Mike Frisch)

December 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 29, 2016

Massachusetts Suspends Former Duane Morris Partner

A year and a day suspension was imposed by a justice of the Massachusetts Supreme Judicial Court of a former Duane Morris attorney for negligent mishandling of the funds of a client, intentional misappropriation of funds due to the firm and improper billing of travel expenses to the firm.

Justice Hines agreed with the Board of Bar Overseers that purported mitigation based on preoccupation with family health issues exacerbated by substance abuse problems had not been established. 

The contention that the misconduct was proven through hearsay evidence also was rejected.

The attorney was admitted in 1971 and was a partner at the firm from 2004 to 2006 and again from February 2010 to October 2011. 

In the period between, he was counsel to the Las Vegas Sands Corporation.

According to the court's memorandum decision, he did so in part

because he expected that [the firm] would withhold his capital contribution...when he left the firm.

The mitigation that affected sanction in the attorney 's favor was prompt repayment of the funds at issue.

The Boston Business Journal reported his 2010 return to the firm and also noted the publication of his first novel. The Inquirer and Mirror had the story of the novel's publication. (Mike Frisch)

December 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Profit (Not) Sharing

The New York Appellate Division for the Second Judicial Department has accepted the consent disbarment of an attorney

The Asbury Park Press reported on recent criminal charges

A Rockland attorney has been charged with lying to a federal investigator looking into accusations the lawyer stole money from a profit-sharing plan set up for his former law practice.

Burton Dorfman, a well-known lawyer for decades in Rockland, made his first appearance on the criminal complaint Friday in U.S. District Court in White Plains. He has yet to enter a plea, but a representative of the U.S. Attorney's office said Dorfman is likely to plead guilty to the charge soon.

Judge Vincent Briccetti was unable to take a plea in the case because Dorfman's lawyer, Kerry Lawrence, is one of Briccetti's former law partners, according to the U.S. Attorney's Office in Manhattan.

Lawrence said Monday that Dorfman's case has been assigned to Judge Cathy Seibel, a former federal prosecutor. He said no date has been set for Dorfman to enter a plea.

"Mr. Dorfman and I have been aware of this investigation since 2008," Lawrence said. "We are looking forward to a resolution of the case in the near future."

Dorfman, 63, a lawyer in New York since 1979, is accused of making false statements to a U.S. Department of Labor investigator looking into allegations Dorfman stole from a profit-sharing plan that was set up for the law firm, with his former partners, Kevin Conway and Robert Knoebel, a Nyack justice, being victimized by the theft of funds.

Knoebel told The Journal News on Monday that Dorfman was a trustee for the account; Knoebel said he was only a beneficiary.

Dorfman, who has an office in Piermont, could pay restitution of more than $200,000 and a thousands of dollars in fines in the matter. The charge carries a statutory five years in prison, but Lawrence said he will seek a non-prison sentence for Dorfman.

FEDERAL CHARGE AGAINST BURTON DORFMAN

The criminal information against Dorfman says as a trustee in the plan he "falsely denied and failed to disclose to an investigator for the U.S. Department of Labor his undisclosed interests in a party with which he had caused the plan to enter into prohibited transactions."

The Rockland District Attorney's Office began investigating Dorfman a few years ago, initially over his investments in a Manhattan development. When the case expanded, the DA's office brought the FBI into the case.

Dorfman didn't return telephone messages seeking comment on Monday. The U.S. Attorney's Office declined comment until Dorfman enters a plea in the case.

Conway and Knoebel are no longer legal partners with Dorfman.

Dorfman is likely to lose his license to practice law if he's convicted. A graduate of SUNY-Buffalo Law School, Dorfman has no record of public discipline, according to the New York State Unified Court System website.

Dorfman has had an active practice in civil and criminal law in Rockland. He recently represented one of the companies seeking to purchase the county's Summit Park Hospital, a sale that never went through but involved legal actions between competing companies and later the county government. The county has closed down the hospital, which led to nearly 400 people losing their jobs and patients transferred to other facilities.

Dorfman also represented Brega Transport Corp. in Clarkstown during the company's legal fight to take over operations of Rockland County’s TOR and Tappan ZEExpress bus systems. Brega operates both lines.

(Mike Frisch)

December 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, December 28, 2016

Pennsylvania Proposal Tweaks ABA Anti-Discrimination Rule

The web page of the Pennsylvania Disciplinary Board notes

In a Notice of Proposed Rulemaking published December 3, 2016, at 46 Pa.B. 7519, the Disciplinary Board has proposed an amendment to Rule 8.4 of the Rules of Professional Conduct (Misconduct), adding a new subsection (g), which would make it professional misconduct and grounds for discipline for a lawyer to violate a federal, state or local antidiscrimination statute or ordinance. The Board has set a comment period running through February 3, 2017.

The full text of the proposed amendment adds the following language to the misconduct rule:

It is professional misconduct for a lawyer to …

  1. violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer. Whether a discriminatory act reflects adversely on a lawyer's fitness as a lawyer shall be determined after consideration of all the circumstances, including: the seriousness of the act; whether the lawyer knew that the act was prohibited by statute or ordinance; whether the act was part of a pattern of prohibited conduct; and whether the act was committed in connection with the lawyer's professional activities. If there is an alternative forum available to bring a complaint, no charge of professional misconduct may be brought pursuant to this paragraph until a court or administrative agency of competent jurisdiction has found that the lawyer has engaged in an unlawful discriminatory act, and the finding of the court or administrative agency has become final and enforceable and any right of judicial review has been exhausted.

A few points about the proposed language:

  • The rule does not create strict liability for any violation of an antidiscrimination provision. The language of the proposed rule also requires that the action reflect adversely on a lawyer’s fitness as a lawyer.
  • The language lists a number of criteria that bear on the question of whether the conduct reflects adversely. Factors that enter into the determination include:
    • the seriousness of the act;
    • whether the lawyer knew that the act was prohibited by statute or ordinance;
    • whether the act was part of a pattern of prohibited conduct; and
    • whether the act was committed in connection with the lawyer's professional activities.
  • Where an administrative or judicial forum exists which has the power to adjudicate whether the conduct constitutes an illegal act of discrimination, a finding in that forum that discriminatory acts occurred, and completion of all administrative and judicial review necessary for the decision to be final, are prerequisites to disciplinary action.

The proposed rule differs from Rule 8.4(g) of the ABA Model Rules of Professional Conduct in its requirement of an adjudication of illegal conduct. The ABA rule forbids a lawyer to “(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Under the ABA rule, the disciplinary agency itself makes the determination of whether the lawyer committed discriminatory conduct. Under the Pennsylvania proposal, that conduct must violate an applicable law, and if there is a forum to make the determination of whether the lawyer committed a violation, that process must take place first. Also, the Pennsylvania rule requires that the conduct adversely reflect on fitness, which is not true of the ABA rule.

The Disciplinary Board will consider all comments submitted by members of the public. Send comments to:

Office of the Secretary
The Disciplinary Board of the Supreme Court of Pennsylvania
601 Commonwealth Avenue, Suite 5600
PO Box 62625
Harrisburg, PA 17106-2625
Facsimile number (717-231-3382)
Email address Dboard.comments@pacourts.us

The Disciplinary Board is also seeking comments on a proposal published at 46 Pa.B. 7520 on December 3, 2016, making small changes relating to the taxation of expenses in disciplinary proceedings. Comments are due January 2, 2017.

(Mike Frisch)

December 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 27, 2016

Reflections Over 25 Years

One of my first forays into the public discourse on legal ethics and professional responsibility came way back in 1991 as the inaugural ethics columnist for the The Bencher, the publication of the American Inns of Court. 

My connection with the Inns of Court movement (and that gig) is one of the innumerable benefits of my longstanding friendship with my former professor and beloved colleague Sherman Cohn.

Sherm was founder and the first president of the national Inns of Court movement.

My first effort is actually recounted in this  2015 post by John P. Ratnaswamy

In recognition of the 35th anniversary of the American Inns of Court, in this issue I am looking back to the inception of the regular Ethics column in The Bencher.

Michael Frisch, now Ethics Counsel and Adjunct Professor of Law at the Georgetown University Law Center, inaugurated the regular Ethics column in the December 1991 issue of The Bencher. He set its direction by stating that his "goal here will be to address current ethical issues which affect both the role of lawyers in society and the conduct of lawyers in the performance of their duties."

He chose as the column's first subject the May 1991 draft of the "McKay Report". The American Bar Association's McKay Commission performed a comprehensive evaluation of the attorney disciplinary system in the United States and made a number of recommendations in its report, which was finalized in 1992.

As the 1991 column noted, a central focus of the McKay Report was greater transparency to the public of the handling of attorney discipline matters. The report recommended that attorney disciplinary agency records and proceedings should be open to the public absent a protective order governing specific documents or information.

The 1991 column noted that the report also recommended, among other things, that disciplinary officials should be independent; that disciplinary proceedings should be streamlined to promptly remove dishonest lawyers from practice; that complainants should have an avenue to appeal an adverse finding; and a variety of measures to help attorneys comply with ethical standards and for diversion of minor misconduct matters where the attorney had an addiction or mental illness problem.

The 1991 column also noted that the report was intended to bolster public confidence in the profession, amid calls by some for an end to lawyer self-regulation.

There is not sufficient room in this column to discuss in detail the status, a quarter century later, of each of the report's recommendations. I believe it is fair to say, however, that many of the recommendations have been adopted and become embedded in attorney discipline systems.

A large majority of American jurisdictions have made attorney discipline records and proceedings open to the public, in whole or in part, subject to protective orders and to considerations of timing.

Nearly all American jurisdictions now have professional, full-time disciplinary counsel.

Data may well exist, but in the course of preparing this column I did not find data, on whether there has or has not been a general net increase in the pace of lawyer discipline systems since the McKay Report. When I did Internet searches, I found stories from as recently as the last few months complaining about reported backlogs of discipline matters in at least a few states, and in some instances complaints that backlogs were being reduced by means that do not sufficiently protect the public.

My sense is that about half the states allow some form of appeals by complainants, in some circumstances. Quite a few states have no rule on the subject, which I infer means there is no path for such an appeal.

Disciplinary agencies in many jurisdictions have adopted CLE and other programs, of course, to assist lawyers to comply with their professional responsibilities.

Finally, many jurisdictions have adopted lawyer assistance programs to help lawyers with alcohol and substance abuse issues and mental impairments. I discussed the extent of the problem and the Illinois lawyer assistance program in this column in the September/October 2011 issue of The Bencher.

John P. Ratnaswamy, Esq. is a partner in the Chicago law firm of Rooney Rippie & Ratnaswamy LLP. He also serves as an Adjunct Professor of Legal Ethics at the Northwestern University School of Law. He is a former member of the American Bar Association's Standing Committee on Ethics and Professional Responsibility, co-chair of the ABA Solo, Small Firm, and General Practice Division's Committee on Ethics and Professional Responsibility, and one of the chairs of the Hearing Board of the Illinois Attorney Registration & Disciplinary Commission. This column should not be understood to represent the views of any of those entities or Ratnaswamy's or the firm's current or former clients.

I must say on reflection that I am less optimistic about the ability of the profession to credibly self-regulate than ever. (Mike Frisch)

December 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Prohibited Realm Of Providing Legal Advice

An attorney was admonished as a result of his dealings with the complaining witness in a domestic violence criminal case.

The Maine Grievance Commission ordered the sanction

This complaint was filed by Prosecutorial District Three District Attorney Andrew Robinson regarding the conduct of defense counsel Darrick Banda, a former criminal prosecutor in District Four (Augusta/Skowhegan).

DA Robinson complained concerning the manner in which Banda contacted and spoke with Savannah C, the victim in the then-pending domestic violence (DV) Assault charge against Banda’s client, Andrew S.

On December 18, 2015 Banda telephoned and spoke with Savannah shortly after she had just met with an Assistant District Attorney (ADA) in Robinson’s office to review that pending DV Assault case. Banda’s comments with Savannah included the different manners in which it might be resolved. Such a discussion was certainly proper and appropriate for Banda to engage in with Savannah, as the facts indicate she was willing to do so. In that telephone discussion with Savannah, Banda discussed and explained the results and ramifications of her not testifying for the State (the prosecutor) against Andrew, both under subpoena and without a subpoena. In that discussion, Banda provided Savannah with legal information concerning her appearance as a witness against his client, Andrew.

From that discussion, Savannah was also informed by Banda about the likely result with Andrews’ charges if she was not subpoenaed and did not appear at court, i.e. that the case would be dismissed because the State would not be able to proceed without her testimony.

In his initial response to Bar Counsel Davis’ investigative inquiry, Banda agreed that as part of his discussion with Savannah, he explained her Fifth Amendment rights under the facts of the case. Banda’s comments to Savannah included his clarification to her “that (because) she did not have a good faith basis to invoke her right to remain silent, she would have a legal obligation to appear and answer questions truthfully if she were in fact subpoenaed to testify.” In addition, Banda also agrees that he informed Savannah that from his analysis of the case he did not think she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.

Such comments constituted “legal advice” by Banda to an unrepresented person that had legal interests adverse to those of his client, Andrew. Although Banda may have intended to interview Savannah in preparation for defending the charge against Andrew, under the actual facts in this matter he crossed into the prohibited realm of providing “legal advice to an unrepresented person,” as prohibited by M. R. Prof. Conduct 4.3.

The parties stipulated to the findings

this was a minor violation; there was little or no injury caused to a client, the public, the legal system or the profession; and there is little likelihood of repetition by Banda. As a result, the Panel finds and agrees that an admonition serves those purposes.

(Mike Frisch)

December 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Firm Obligations When Dealing With Impaired Attorneys

An opinion on the ethical obligations of supervisory attorneys dealing with impaired colleagues was recently approved by the Virginia Supreme Court

In this advisory opinion, the Committee analyzes the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public.  The applicable Rule of Conduct is Rule 5.12 which requires partners or other lawyers in the firm with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Virginia Rules of Professional Conduct.   Lawyers in a firm may have an obligation under Rule 8.3 to report an impaired lawyer to the Virginia State Bar if the impaired lawyer has engaged in misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness to practice law. However, this opinion addresses the obligations of partners and supervisory attorneys to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public. This opinion relies upon ABA Committee on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003)[hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm. 

The committee notes the widespread nature of the problem and uses two hypotheticals to explore the duty and offer guidance

The law firm may be able to work around or accommodate some impairment situations. For example, the firm might be able to reduce the impaired lawyer’s workload, require supervision or monitoring, or remove the lawyer from time-sensitive projects. The impaired lawyer may not be capable of handling a jury trial but could serve in a supporting role performing research and drafting documents. Depending on the nature, severity, and permanence (or likelihood of periodic recurrence) of the lawyer’s impairment, the firm may have an obligation to supervise the work performed by the impaired lawyer or may have a duty to prevent the lawyer from rendering legal services to clients of the firm, until the lawyer has recovered from the impairment. The impaired lawyer’s role might be restricted solely to giving advice to and drafting legal documents only for other lawyers in the firm who in turn can evaluate whether the impaired lawyer’s work product can be used in furtherance of a client’s interests.

In order to protect its clients, the firm should have an enforceable policy that would require, and a partner or supervising lawyer should insist, that the impaired lawyer seek appropriate assistance, counseling, therapy, or treatment as a condition of continued employment with the firm. For example, the firm could recommend, encourage or direct that the impaired lawyer contact Lawyers Helping Lawyers for an evaluation and assessment of his or her condition and referral to appropriate medical or mental health care professionals for treatment and therapy. Alternatively, making a confidential report to Lawyers Helping Lawyers may be an appropriate step for the firm. The firm or its managing lawyers might instead find it necessary or appropriate to consult with a professional medical or health care provider for advice on how to deal with and manage an impaired lawyer, including considering options for an “intervention” or other means of encouraging the lawyer to seek treatment or therapy.

(Mike Frisch)

December 27, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, December 24, 2016

Attorney Censured: Called Panel Chair "Grossly Overweight Big Firm Banking Lawyer" And On Trust Funds "If It's A Small Amount, Who Cares?"

The New Jersey Supreme Court has censured an attorney for mishandling the proceeds of a settlement.

The District Ethics Committee had proposed a reprimand

For the totality of respondent’s conduct, the panel recommended no more than a reprimand, observing that, although respondent committed only two recordkeeping violations, his attitude toward his misconduct was cavalier and that he was unapologetic for his actions, at one point asking, "if it’s a small amount, who cares?"

From the report of the Disciplinary Review Board that recounted  the hearing but found additional violations

" [The attorney] conceded that he had not informed [client] Valme of the full amount of the fee he took, but contended that he was not required to give his clients such notice. Respondent asserted that he is entitled to one-third of the workers’ compensation lien; that if full disclosure were provided, a client might challenge the amount of the attorney’s fee; that this was the way he was "taught and that’s the way most lawyers do it;" that he relied on books written by the Honorable James Healy, J.S.C., that contain different exhibits in the back; and that he has been using that closing statement format "on comp cases for at least twenty years...

At the close of hearing, the DEC hearing panel asked respondent to submit (i) the authority on which he relied, including, but not limited to, a textbook allegedly written by Judge Healy in support of the manner in which he prepared his closing statement in the Valme matter, which included deducting from the settlement amount the full amount of the workers’ compensation lien, rather than the amount of the compromised lien, and making that deduction before calculating his attorney’s fee; (2) the authority that entitled respondent to disburse to himself $750 in costs that the workers’ compensation carrier permitted to be reduced from its lien, even if respondent’s costs did not amount to $750; and (3) the amount that remains due to Valme and the calculation thereof. Additionally, the panel asked respondent to review the transcripts of his interviews by the OAE and to notify the panel whether they are, to the best of his knowledge, an accurate transcription of his statements.

Respondent provided the requested submission and stated, contrary to his testimony at the hearing, that the Valme closing statement was accurate.

...respondent submitted a brief to us arguing that the additional $410 he took for costs in accordance with the statute related to costs incurred in the prosecution of the workers’ compensation case and that the $590 he itemized on the closing statement related specifically to the personal injury matter. Respondent also complained that he was denied a "jury of his peers" because the panel chair is a "big firm banking lawyer who knows nothing about personal injury." He added that the panel chair is a "grossly overweight big firm banking lawyer and he and I couldn’t be more different. He finds me cavalier."

Findings by the DRB

The record contains clear and convincing evidence that respondent violated RPC 1.15(a) by overpaying himself legal fees in the Valme matter. The third-party personal injury claim settled for $40,000. From those gross proceeds, respondent satisfied the workers’ compensation lien of $11,779.39. Respondent, however, failed to account properly for the disbursement of monies for the workers’ compensation lien. On the closing statement he provided to Valme, respondent listed the lien as $18,794, although it had been reduced to only $11,779.39. This amount ($18,794) is correct only in a technical sense because the compensation earned, when it provided that lien amount to respondent, included the thirty-three percent attorney fee respondent was entitled to receive in accordance with N.J.S.A. 34:15-40(c).4 Respondent was entitled to up to one third of the total lien as his fee, which he did not disclose to Valme. By not accurately reflecting the true amount of the lien, respondent overpaid his legal fee according to the terms of his retainer agreement with Valme, which, in turn, resulted in an underpayment to Valme.

Respondent also admitted that he took an additional $410 in costs from the third-party settlement proceeds without listing those costs on the Valme closing statement. He argued that, in accordance with that same workers’ compensation statute, he was entitled to an additional $750 in costs. The statute, however, allows an attorney to receive up to $750 in costs. It does not allow him to receive $750 in addition to his actual costs. Respondent argued that he did not receive the full $750 but only the $410. Respondent, however, itemized and deducted only $590 on the Valme closing statement and submitted no evidence of having incurred any other costs. Hence, respondent overpaid himself $410 from monies to which Valme was entitled.

The attorney was admitted in 1980 and has a prior reprimand

From the prior case

This case illustrates the unfortunate consequences that result from attorneys’ representation of their own interests, particularly in family matters. All of the ethics charges stem from respondent’s actions in connection with his own child support and custody matters.

Among other aspects of the prior case, the attorney had described a judge in the case as "short ugly and insecure." 

Here there were what might be called "attitude issues"

Respondent shows no remorse for his misconduct. In fact, his attitude regarding his handling of client funds and obligations is cavalier and exacerbated by his defiant admission that he intentionally omits details regarding his fee from his client’s closing statements to foreclose any challenge his clients might pose. Respondent clearly harbors a serious disregard for his ethics obligations as an attorney. Thus, in fashioning the appropriate discipline in this case, we are particularly mindful of the need to protect the public.

Additionally, respondent’s demeanor at the hearing is worth noting. He was disrespectful toward the presenter and the OAE investigator. The panel found respondent to lack credibility and to be cavalier. Respondent’s poor attitude is on full display in his brief to us as he tried to minimize the panel chair’s ability to deliberate on this matter, based on the panel chair’s physical characteristics. In light of respondent’s behavior resulting in his previous reprimand, it appears to us that he has not learned from his prior mistakes. He was rude and disrespectful, demeanor that does not comport with the standards of our profession.

Hence, based on respondent’s conduct, his cavalier and defiant attitude regarding that conduct, and a need to ensure that respondent will learn from his mistakes, as well as a need to protect the public from his continued behavior in this regard, we determine that the appropriate quantum of discipline is a censure.

Four DRB members would imposed a three-month suspension.

I will not further beat my dead horse on the state of attorney discipline in the Garden State. (Mike Frisch)

December 24, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Friday, December 23, 2016

Office Mate Disclosure Leads To End Of 48 Year Law Career

A 48-year career ended in disbarment for a Kansas attorney admitted to practice in 1968.

The Kansas Supreme Court

respondent drafted the power of attorney in this case, negating any claim that he did not know the conditions of his authority to act on behalf of N.H. The power of attorney document unequivocally provided that respondent's authority would commence upon the certification of N.H.'s incapacity by a physician and that it would terminate upon N.H.'s death. Yet the proffered evidence, consisting of canceled checks, bank statements, and respondent's business records, clearly and convincingly establish that respondent continued to draw checks on N.H.'s accounts after her death. Even more egregious, the unauthorized checks were made payable to the respondent. In short, respondent clearly misused the authority bestowed upon him by his client in the power of attorney, as well as betraying the trust inherent in that arrangement...

we agree with the hearing panel's determinations that respondent violated his duties to his clients, to the legal system, to the profession, and to the public; that he did so knowingly and intentionally; and that these violations caused actual injury to his clients, the legal system, and the profession. Further, this court unanimously holds that disbarment is the appropriate sanction and that, for the protection of respondent's other clients and of the public, the disbarment is made effective upon service of an order of disbarment upon the respondent.

The court rejected a number of contentions, one being the failure to grant a continuance in light's of his own counsel's illness

Respondent argues that the continuance was necessary because his attorney of choice was hospitalized and unable to represent him at the January 21, 2016, hearing. He asserts that he had only 10 days in which to procure substitute counsel, suggesting that circumstance impaired his ability to be heard before the hearing panel.

But respondent's depiction of the timeline is, at best, incomplete. Although the hearing panel's denial of the continuance was filed just 10 days before the disciplinary hearing, that was because respondent did not file the motion for continuance until 13 days before the hearing, on January 8, 2016. The record indicates that respondent was aware of his chosen attorney's hospitalization as early as December 1, 2015, a month and a half before the scheduled hearing. Moreover, respondent had received notice of the hearing date by November 17, 2015, and he was aware that the two complaints had been filed against him in January 2014, and September 2014, respectively. Respondent knew for more than 2 years that a complaint against him was pending and he had more than 2 months' notice of the panel hearing. If respondent was unable to obtain representation for the hearing, it was not because his continuance motion was denied. Pointedly, he not only appeared pro se at the disciplinary hearing, but he also appeared before this court without counsel, some 9 months later, suggesting that time was not the problem in obtaining counsel.

No written complaint is required

The Disciplinary Administrator first learned of the possible misconduct in case DA 12,163 through an informal conversation with respondent's office mate. The office mate did not submit a written complaint, and he died before the panel hearing.

Respondent contends that the office mate had an impure motive and the absence of a written formal complaint from the office mate was a due process violation. Respondent mistakenly suggests that all disciplinary proceedings must be commenced by a written complaint from a third party. Our rules contemplate that the Disciplinary Administrator may learn of misconduct through means other than a formal complaint and impose a duty on the Disciplinary Administrator to investigate all possible misconduct, "whether called to his or her attention by complaint or otherwise." Kansas Supreme Court Rule 205(c)(2) (2015 Kan. Ct. R. Annot. 324). Additionally, the failure of a complainant to sign a complaint does not automatically abate a disciplinary complaint. Kansas Supreme Court Rule 213 (2015 Kan. Ct. R. Annot. 384).

Most importantly, however, the absence of a written formal complaint from the office mate did not prejudice respondent in any manner. The Disciplinary Administrator developed the evidence against respondent through his office's own investigation. No statement or other direct evidence from the office mate was offered as proof of the violations at the disciplinary hearing.

The video of the oral argument is linked here.  

The only request the attorney made before the court was for 90 days to wind up his practice. He also makes reference to his "lovely and talented" office mate, now deceased.

The response

this court unanimously holds that disbarment is the appropriate sanction and that, for the protection of respondent's other clients and of the public, the disbarment is made effective upon service of an order of disbarment upon the respondent.

(Mike Frisch)

December 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Discipline For "Abusive" And "Offensive" (But Not "Silly") Emails

The Hearing Division Tribunal of the Law Society of Upper Canada has found misconduct in a series of emails to prior counsel and the counsel she retained in a dispute over a file transfer.

In January 2010 the clients – a husband, wife and two children – commenced a personal injury action arising from a motor vehicle accident. They were represented by about nine counsel in succession before they retained Sue Chen in May 2012. That relationship ended in September 2013 when the clients retained Mr. Robson. He asked Ms. Chen for her file and she responded that he should pay her the outstanding disbursements, as she and previous counsel had done upon transfer of the file.

Practice pointer: clients who change counsel like underwear are likely to be a challenge.

The e-mail correspondence between the Respondent and Ms. Chen rapidly descended into a hostile exchange. In the first e-mail filed, dated September 12, 2013, Mr. Robson begins: “Kindly make the [client] file available for collection tomorrow, failing which I am instructed to move in 801 asap”. Ms. Chen responds, in part, with the first of several e-mails that included accusations against Mr. Robson: “Please deal with the transfer of this file in a professional manner instead of making threats.” By the end of that day, Mr. Robson repeats his demand for the file “by 11 am tomorrow … or face the consequences.” He goes on to say: “By your own repeated admissions you are prejudicing my clients and have undermined your credibility as it relates to this matter.”

The charges

The Law Society asserted that the Lawyer sent eight e-mail communications between October 1 and November 3, 2013 to lawyers Sue Chen, Bois Wilson and/or Joel Dick that, viewed in the context of the ongoing action in which the four lawyers were involved, were abusive or offensive.

A sampling

I have found Ms. Chen to be utterly vulgar in my dealings with her. I will admit that has colored my dealings with her – and I have two kids who are half Chinese and have lived in Shanghai for many years so don’t go where you may have been thinking of going.

Halloween goblins must have been working against you all on Thursday and eaten things.

Is this your first motion?

There is a level of idiocy I will not stoop to. You have reached it.

Stop being annoying.

You must be drunk.

The Tribunal's analysis

Mr. Robson chose not to testify in his own defence. He did not tell us first hand why his e-mail correspondence should be taken as justifiable, or why the three lawyer witnesses for the Law Society were wrong in regarding many e-mails as offensive and abusive, or indeed what he intended by those e-mails other than what they say. We will state his defences – which we take from counsel’s cross-examination of the Law Society witnesses and opening and closing submissions – and then comment on their persuasiveness and impact in this case.

And conclusions

First, echoing a point made by Mr. Watson in his submissions, a significant touchstone is that six of the communications are criticisms of the person, not of the person's position. The "screw off" comment is a hybrid, since it constitutes a criticism of both Ms. Chen's position, and her manner of conveying it. Counsel have every right and often an obligation to take issue or voice strong objection in response to an opposing lawyer's position on behalf of his or her client. That is not what these e-mails say. They are all addressed to Ms. Chen or Mr. Wilson as individuals, gratuitously calling one or the other pejorative names ("vulgar," "annoying," "drunk," "idiocy") or casting insulting aspersions on their competence or ethics (not acting pursuant to client instructions, "is this your first motion?" "screw off"). 

Second, the words used exceed what licensees should expect to hear or read about themselves when they are carrying out their professional activities. We simply should not speak about counsel that way, however much we disagree with them. It is unnecessary in performing our work to subject others to degrading, vitriolic, nasty and rude commentary or epithets of the kind Mr. Robson used here.

Third, these kinds of personal attacks impede rather than advance the public interest in efficient, effective and accessible legal services. They have a snowballing effect in that one thing leads to another, and they distract from the professional issues at hand.

This was true in a general sense about the time and energy that was wasted over the weekend prior to the charging order motion. More specifically, the poisonous relationship between counsel resulted in many unnecessary exchanges about the phantom motion materials. Much of the e-mail traffic on the Saturday and Sunday – which only exacerbated the procedural challenges that counsel were attempting to navigate – could have been obviated if Mr. Robson had promptly sent a second sworn copy right away to both opposing counsel rather than perpetuating the nasty correspondence.

Fourth, from a broader perspective, degrading and hostile language between counsel is incompatible with their responsibility to the administration of justice and the reputation of the legal profession. The Court of Appeal in Groia (at paras. 166 to 171) rejected the Divisional Court's requirement that the behaviour harm the administration of justice, but approved the Appeal Division's holding that "mandating 'civility' protects and enhances the administration of justice." It adopted the Supreme Court's definition of incivility in Doré (at para. 61) as "potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy."

But one comment did not cross the line

With respect to the eighth communication listed in the chart, we regard the "Hallowe'en" e-mail of November 2, 2013 as silly, rather than abusive or offensive.

Next

The parties will attend a reconvened hearing for purposes of penalty. No less than one week before the scheduled hearing, both parties shall exchange and file any documents that they intend to introduce so that the material can be reviewed by the panel, without prejudice to its admissibility and weight, in advance of the penalty hearing.

(Mike Frisch)

December 23, 2016 in Bar Discipline & Process | Permalink | Comments (0)