Friday, August 19, 2016

Adultery Or Not, Disbarment Proposed

The Louisiana Attorney Disciplinary Board has proposed disbarment of an attorney who, in her own divorce, offered false testimony that she had engaged in an adulterous relationship

Respondent's ever-changing story regarding the reported adulterous relationship with Mr. Pfleeger is troubling. Respondent responded to discovery and testified in court that she committed adultery with Mr. Pfleeger. She then told Mr. Molaison and now ODC that her testimony was false. However, ODC has confirmed the fact that Respondent did engage in a post-filing adulterous relationship with Mr. Pfleeger. Respondent engaged in professional misconduct. Respondent's conduct also violated Rule 8.4(a) (violated or attempted to violate the Rules of Professional Conduct).

The misconduct was reported by opposing counsel in the divorce, as was this

On or about June 19, 2005, in Honolulu, Hawaii, Respondent concealed or took possession of goods or merchandise, the value of which exceeded $300.00, said property belonging to Macy's West, Inc., a store or retail establishment, with intent to defraud, thereby committing the offense of Theft in the Second Degree, in violation of Section 708-831(1)(b) of the Hawaii Revised Statutes. Respondent was charged with said crime by Felony Information dated October 19, 2005. On May 14, 2008, Respondent entered a No Contest plea to Theft in the Second Degree, and moved to defer acceptance of the plea. On September 17, 2008, an Order was signed granting Respondent's Motion for Deferred Acceptance of No Contest Plea. During the five-year period of deferral, Respondent was placed on supervised probation with specific conditions. She has reportedly completed the terms of her probation.

After the respondent admitted the above violations

On December 19, 2012, the Respondent was operating a motor vehicle at approximately 12:15 a.m. on Homestead Avenue in Jefferson Parish Louisiana. While operating her silver BWM automobile, the Respondent swiped the side of a 2005 Toyota Avalon resulting in damage to that vehicle. Upon arrival of law enforcement personnel, the Respondent was found to be in an impaired state while operating a motor vehicle. The operation of a motor vehicle while under the influence of alcohol to the extent of intoxication is a criminal act and a violation of Rule 8.4(b)...

On March 22, 2013 the Respondent was operating a beige Infiniti automobile in an erratic fashion. Law enforcement performed a traffic stop and discovered a clear plastic bag with seven rocks of crack cocaine in her possession. The Respondent was arrested and charged with careless operation of a motor vehicle as well as possession of a Schedule II narcotic. Upon presentation the District Attorney of Tangipahoa Parish charged the Respondent with a violation of R.S. 40:967.C.(2) - Possession of Schedule II Controlled Dangerous Substance, to wit: Cocaine. On November 12, 2013 the Respondent entered a guilty plea to the charge of possession of a Schedule II Controlled Dangerous Substance and was sentenced under Article 893 [to] serve three years with the department of corrections. The jail term was deferred and Respondent was placed on supervised probation through the Probation and Parole Board. Although required to submit to felony monitoring, on August 7, 2014 the Respondent failed to appear for monitoring resulting in the issuance of a bench warrant for her arrest and a hold without bond. As of this date the Respondent remains a fugitive. The Respondent’s conduct reflects a violation of Rule 8.4(b) of the Rules of Professional Conduct.

The board

 when considering the totality of the misconduct in this matter, disbarment is the appropriate sanction. Respondent has engaged in a pattern of criminal conduct, a portion of which strongly suggests the presence of an unresolved substance abuse issue. In addition to this conduct, Respondent intentionally presented fabricated evidence to a tribunal. 

(Mike Frisch)

August 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"I'll Stay For Sentencing"

The Illinois Administrator has charged an attorney with practicing while on a six-month disciplinary suspension.

The complaint alleges

Beginning on June 6, 2014, and continuing through December 6, 2014, Respondent was not authorized to practice law, or to hold himself out as being authorized to practice law, in the state of Illinois.

On June 4, 2014, prior to the effective date of Respondent’s suspension, Respondent represented Geraldine Hudson ("Hudson") in the trial of a criminal matter docketed as People v. Geraldine Hudson, case number 13 MC 1190555, in the Circuit Court of Cook County. A jury found Hudson guilty of criminal trespass to property, and Hudson’s sentencing hearing was set for June 25, 2014.

When June 25 arrived

...Respondent appeared with Hudson before Judge Clarence Burch at the sentencing hearing...The Assistant State’s Attorney was Joel Bruckman. At that time, Respondent identified himself for the record as, "Marlin Kirby, on behalf of the defendant" and presented a motion to withdraw as counsel of record because he does not handle appeals. The following exchange then took place between Respondent, Judge Burch, and Mr. Bruckman:

Mr. Bruckman: Judge, this motion indicates that counsel is withdrawing for purposes of handling the appeal. But what about for sentencing and post-trial motions? We’re not there yet.

Judge Burch: We’re not at the appeal process yet.

Mr. Kirby: I was looking forward, but I’d like to withdraw now, if that’s okay.

Mr. Bruckman: Judge, I’d have an objection to that being that I believe the defendant is entitled to representation for purposes of sentencing. Since we have the 30 days that post-trial motions need to be - -

Judge Burch: You have a right to withdraw at any point. I just don’t want to leave your client unprotected.

Mr. Kirby: Sure. I understand that.

Judge Burch: If you have mutually agreed to terminate services - -

Mr. Kirby: Well, I can participate in the sentencing, but I don’t want to go further after that, if that’ll help. Will that be okay?

Judge Burch: It’s up to your client.

Ms. Hudson: It’s up to the attorney.

Mr. Bruckman: I also just want to make sure that the defendant is admonished and knows what’s going on here with the 30 days. If he withdraws today, I don’t want this to come back with ineffective assistance because she doesn’t know what’s going on.

Judge Burch: I understand what you’re saying, and I’m kind of concerned with that, too. We had a jury trial and today was set for sentencing. But I don’t want to force you to stay on the case if you want to withdraw. So as your counsel says, it’s between the two of you. What do you want to do?

Mr. Kirby: I’ll stay for sentencing, and then after that - -

Respondent proceeded to represent Hudson in the sentencing hearing, which included an examination of Hudson and argument on her behalf.

At no time did Respondent inform the court or opposing counsel that he was currently suspended and unauthorized to practice law.

Respondent’s representation to the court that he was authorized to represent Hudson and his failure to advise the court that he was suspended from the practice of law were dishonest, and Respondent’s representation of Hudson while suspended from the practice of law constituted a fraud on the court.

(Mike Frisch)

August 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 18, 2016

Applicant With Felony Conviction Denied Bar Admission

An application for bar admission was denied by the New York Appellate Division for the Third Judicial Department

Applicant resides and works in Florida. He graduated from college (in 2008) and law school (in 2013) in Florida. Applicant has disclosed a 2004 arrest for drinking in public, a 2008 arrest for driving under the influence and marihuana possession, a 2009 arrest for driving under the influence, and a 2011 arrest for driving under the influence, the latter resulting in applicant's felony conviction in Florida in May 2013. Applicant confirms that, as a result of his felony conviction, he is ineligible to apply for admission in Florida until his civil rights can be restored in that state, i.e., May 2019 (see Rules of the Supreme Court of Florida 2-13.3).

We conclude that applicant does not presently possess the character and general fitness requisite for an attorney and counselor-at-law and we therefore deny the application (see Judiciary Law § 90 [1] [a]).

The case caption does not disclose the identity of the applicant. (Mike Frisch)


August 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Return To Practice

The Pennsylvania Supreme Court has reinstated an attorney who was the subject of this Law360 story

Attorney Scott Sigman, the treasurer of the Lawyers' Club of Philadelphia and a former member of the board of directors of the Philadelphia Bar Association, received a 30-month suspension from the Pennsylvania Bar on Thursday for withholding referral fees while working as an associate at Bochetto & Lentz PC.

The Pennsylvania Supreme Court approved a joint petition between Sigman and the state’s Office of Disciplinary Council recommending the suspension.

Sigman, a founding partner at Philadelphia firm Sigman & Zimolong, admitted to holding onto approximately $25,000 in fees over a 24-month period.

According to the joint petition between Sigman and the Office of Disciplinary Council, Sigman, who worked at Bochetto & Lentz between 2005 and 2009, held onto referral and other fees due to the firm in five cases.

Sigman also admitted to providing false testimony during a deposition and providing login information for Bochetto & Lentz's Westlaw account to another attorney with whom he was acquainted. The attorney ultimately accrued more than $3,600 in fees on the account, which were charged to the firm. Her firm ultimately reimbursed Bochetto & Lentz for the charges.

According to the petition, Sigman has separately sued Bochetto & Lentz for referral fees in cases that he started at the firm and that remained there after his departure, and the firm has put these fees aside in an escrow account. Sigman has agreed to allow Bochetto & Lentz to remove $25,468.18 — the sum of fees that he improperly held onto, as determined by the Office of Disciplinary Council — from the account.

Sigman, a former Philadelphia assistant district attorney who won the Philadelphia courts’ Pro Bono Publico Award in 2012, succeeded in securing glowing recommendations from several Philadelphia luminaries.

A letter filed with the Office of Disciplinary Council by former District Attorney Lynne Abraham emphasized his good character in the six years that he worked in the district attorney’s office. JoAnne Epps, the dean of Temple University’s Beasley School of Law, spoke to his role on the executive committee of the law school’s alumni association and asked the court’s disciplinary board to be “merciful” in ruling on his future.

The joint petition emphasized that, had the matter moved forward to a disciplinary hearing, Sigman would have brought forth these letters and others from colleagues to demonstrate his character and civic involvement.

According to his website, Sigman’s practice encompasses complex civil and criminal litigation, catastrophic injuries, election law, defamation, fraud, civil racketeering cases, drug forfeiture, and white-collar criminal defense.

Sigman had been selected as a “Pennsylvania Rising Star Super Lawyer” by Philadelphia Magazine for 2005 through 2012. He has also served as the chair of the Philadelphia Bar Association’s Young Lawyers division.

Neither Sigman nor a representative from Bochetto & Lentz responded to a request for comment Monday.

The Disciplinary Board was unanimous in recommending reinstatement. (Mike Frisch)

August 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 17, 2016

Baseball Heir And Adjunct Professor Denied Reinstatement After Sexual Misconduct

Former law professor and heir to the Washington Senators/Minnesota Twins baseball franchise Clark Calvin Griffith has been denied reinstatement by the Minnesota Supreme Court.

His father sold the franchise and he went into the law

Griffith was admitted to practice law in Minnesota in 1986. In 2013 we suspended Griffith indefinitely with no right to petition for reinstatement for a minimum of 90 days due to his: (1) sexual harassment of a law student that he was supervising at William Mitchell College of Law (WMCL); and (2) attempts to pressure the law student into recanting her complaints against him. In re Griffith, 838 N.W.2d 792, 793 (Minn. 2013).

On January 24, 2012, Griffith, an adjunct professor, and the law student met at a restaurant in Saint Paul as part of an independent study clinic. As Griffith has stipulated, during the meeting, he "engaged in verbal and physical conduct and communications of a sexual nature that were not welcomed by [the student] and heightened her feelings of discomfort with [Griffith]." The meeting ended and Griffith walked the student to her car. As Griffith has further stipulated, he then "unzipped his pants, exposed his penis to [the student], and then took [the student’s] hand and forced her to touch his penis."

The next day the student reported the incident to WMCL. WMCL directed Griffith to have no contact with the student, but he continued to call, text, and send messages. These communications included multiple attempts by Griffith to convince the student to recant the complaints she made to authorities. WMCL was notified of the communications and sent Griffith a second notice to have no contact with the student. Griffith again disregarded the instruction and contacted the student to ask why she had filed a criminal complaint against him. The student told Griffith to stop contacting her. WMCL conducted an investigation into the incident and terminated Griffith’s employment. On June 12, 2012, Griffith entered an Alford plea and was found guilty of indecent exposure.

The court

Griffith makes three specific arguments, none of which has merit. First, Griffith contends that the panel erred in failing to fully consider evidence that his misconduct was the result of an adverse reaction to prescribed medication. Although the panel allowed Griffith to testify on the subject, and he stated that a medical condition "caused the problem," the panel denied his request to submit testimony by, or a report from, a neurologist. The panel did not err because Griffith’s disclosure of medical evidence was untimely...

Second, Griffith argues that the panel did not give proper weight to his witnesses’ testimony...

Finally, Griffith contends that he was not able to fully express himself regarding his understanding and appreciation of the harm the student experienced because she has sued him. He suggests that, because her civil attorneys were present at the panel hearing, he was inhibited from delivering candid testimony. If so, it was a problem of his own making. Griffith chose to petition for reinstatement while the student’s civil lawsuit against him was pending. He knew, or should have known, that the panel hearing was public...

  In summary, we are not left with a definite and firm conviction that the panel erred. Griffith is not entitled to reinstatement at this time because he failed to prove by clear and convincing evidence that he has recognized the wrongfulness of his conduct and has undergone the requisite moral change.

Strike one. (Mike Frisch)

August 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 16, 2016

Sanction Disagreement To Be Aired Before Ohio Supreme Court

A disciplinary case scheduled for oral argument today before the Ohio Supreme Court is summarized by Kathleen Maloney

The Board of Professional Conduct recommends a two-year suspension with 18 months stayed, on certain conditions, for Canfield attorney Benjamin Joltin. The board found the attorney misappropriated client funds, mismanaged his client trust account, and failed to fully cooperate with the disciplinary investigation.

Joltin and the Office of Disciplinary Counsel, which investigated the complaints against the attorney, agree about the professional conduct violations and basic facts related to the misconduct, but disagree about the appropriate sanction.

Attorney Pays Himself Before Doing Work
Joltin has been a solo practitioner since 2012 and handles criminal and family law cases. In September 2012, Lisa Torok hired Joltin to handle her divorce and paid him $18,000 to hold in trust. He deposited the money into his client trust account. Six days later, Joltin paid himself $4,000 from the account without having earned the fee or noted any expenses.

Torok and Joltin agreed to a $3,000 flat fee for the divorce, and Torok requested the return of $15,000 in early 2013. When Torok cashed the check months later, it bounced. Soon after, Joltin paid back more, but not all, of her money, and she fired him as her lawyer in February 2014. By April, Torok had refunded her all but $3,000, which he eventually paid nine days before a December 2015 disciplinary hearing.

In November 2012, Joltin also deposited $88,000 for work he did as executor of his grandparents’ estate into his client trust account, which the board notes improperly mixed his personal funds with his client account.

Personal Injury and Eviction Cases Mismanaged
In a second incident, Joltin represented Roger Johnson in a personal injury lawsuit. One of Johnson’s doctors contacted Joltin in 2009, requesting payment of a medical bill if the case was won or settled. Joltin agreed to pay the doctor, but then put the documents into the wrong file and forgot about them. A settlement was reached, but the doctor wasn’t paid his $3,400 fee until more than two years later, a few days before the December 2015 disciplinary hearing.

In the third grievance considered by the board, Joltin represented a landlord who lives in Florida and needed legal assistance to evict tenants from an Ohio property. The court rejected two filings Joltin made because of technical errors. When the landlord contacted Joltin by phone and email about the case status, Joltin didn’t talk to him, ignored his emails, and failed to keep him informed about the case. This client terminated Joltin’s representation in May 2014 and asked for a refund of the $205 paid. Joltin didn’t reply until he decided to refund the fee in December 2015.

Board Suggests Six-Month Actual Suspension
In its report to the Supreme Court, the board states that Joltin stopped keeping records for his client trust account from 2008 to 2013, the year the disciplinary counsel began an investigation. Joltin failed to maintain required ledgers for each client, overdrew his account, mixed his client and personal funds, and wrote checks for personal expenses at least 85 times in a 14-month period.

Joltin also didn’t respond to multiple inquiries from the disciplinary counsel and didn’t show up for scheduled depositions about these matters, the board notes. Once the disciplinary complaint was filed, though, Joltin cooperated with disciplinary counsel, tightened the scope of his practice, changed his office procedures to comply with attorney conduct rules regarding client trust accounts, found a mentor, and refunded money and apologized in writing to the three clients.

Joltin explained in the hearing that the misconduct took place during a time when he was experiencing personal difficulties, including physical and mental health issues. In December 2015, he began regular counseling and signed a contract with the Ohio Lawyers Assistance Program (OLAP). However, the board determined these weren’t factors that could lessen his disciplinary sanction because there wasn’t enough proof to show the difficulties caused his ethical violations.

Though the disciplinary counsel recommends an indefinite suspension, the board proposes a six-month actual suspension. Eighteen months of the two-year suspension would be stayed on the conditions that Joltin submits to monitored probation, completes coursework about maintaining client trust accounts, finishes his three-year OLAP contract and follows their direction regarding his treatment, and commits no more misconduct.

Investigator Pushes for Stronger Sanction
The disciplinary counsel has filed objections to the board’s recommended sanction. The disciplinary counsel disputes the board’s conclusion that none of the clients were harmed by Joltin’s actions. The divorcing mother needed her money for living and child-related expenses, the doctor waited two years to be paid for services he provided, and the landlord’s tenants extensively damaged the property during the delay in the eviction proceedings, the disciplinary counsel contends.

The disciplinary counsel adds that Joltin’s lack of cooperation with the disciplinary process was egregious and only changed after the complaint against him was formally filed. In the disciplinary counsel’s view, Joltin has shown he is unfit to practice law, and his conduct justifies an indefinite suspension, which prohibits him from applying for reinstatement for two years.

Attorney Satisfied with Board’s Recommendation
Joltin responds, rejecting the claim that he harmed these clients. He notes he successfully negotiated a separation agreement and shared parenting plan for Torok, and he argues no evidence was submitted to support the harm to the clients that has been alleged by the disciplinary counsel.

The attorney cites his good character and reputation throughout his 16 years of practice as demonstrated by 17 letters submitted on his behalf in this case. He stresses that he freely chose to repay his clients, seek counseling, and fix his law-office practices in December 2015 before the disciplinary hearing. Those steps were sincere attempts to correct the wrongs and prevent future misconduct, he asserts, asking the Supreme Court to accept the proposed two-year suspension with 18 months stayed.

Kathleen Maloney

The argument can be viewed by live stream and later in the court's online archives. (Mike Frisch)

August 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment Sought For Attorney's Crimes Against Native Americans

An Illinois attorney has consented to disbarment after a federal felony conviction.

The Sun reported on the crimes

The former general counsel for the Twentynine Palms Band of Mission Indians has been sentenced to 2 years in federal prison for his role in a kickback scheme that bilked the tribe out of hundreds of thousands of dollars from construction contracts and land purchases.

Gary Edward Kovall, 67, of Ely, Minnesota, will begin serving his sentence in June, likely at a prison facility in Duluth, Minnesota, where he can receive ongoing treatment for a medical condition, said Kovall’s attorney, Edward M. Robinson.

Under a plea agreement with federal prosecutors, Kovall pleaded guilty in February 2014 to one felony count of conspiracy to commit bribery. He was facing a maximum sentence of five years in federal prison, but on Feb. 24 in U.S. District Court in Los Angeles, Judge Michael W. Fitzgerald, sentenced Kovall to two years in prison, according to online court records.

Robinson said Kovall will serve about 85 percent of his sentence before he is eligible for release and home detention.

“I think Mr. Kovall accepted responsibility for what happened,” Robinson said. “And the judge recognized the circumstances of the case and who Mr. Kovall was, and he exercised his discretion based on what had occurred and who Mr. Kovall was.”

Kovall, his wife Peggy Anne Shambaugh, and two others: David Alan Heslop and Paul Phillip Bardos, were indicted on May 9, 2012. The four were accused of orchestrating a lucrative scheme in which construction projects were steered to contractor Bardos in exchange for kickbacks.

It all began when Kovall, according to the indictment, persuaded the tribe to create a limited liability company to purchase real estate and to hire his longtime friend, Heslop, as the company’s manager.

Kovall’s and Heslop’s friendship dates back to their involvement with Claremont McKenna College’s Rose Institute of State and Local Government, where Heslop was the founding director and Kovall a senior research associate at the time.

Kovall and Heslop persuaded the tribe to invest in real estate in which they had an ownership interest, and steered construction contracts, including several at the Spotlight 29 Casino in Coachella, to Bardos, who kicked back some of the profits to Kovall, Heslop and Shambaugh.

Heslop pleaded guilty in March 2014 to one felony count of conspiracy to commit bribery and was subsequently sentenced to 21 months in federal prison, but his plea came with a condition that he be allowed to appeal his conviction. He remains free on bail until his appeal is heard.

Heslop’s attorney, David Shapiro, said in an e-mail that Judge Fitzgerald still has to rule on what Heslop must pay in restitution before an appeal can be filed, and that will likely occur by the end of the month.

“Then, we will have about a month or two to get our brief filed,” Shapiro said.

Bardos also struck a plea agreement with prosecutors in February 2014, pleading guilty to one count of tax evasion and agreeing to file amended tax returns and pay any additional taxes, penalties and interest assessed by the Internal Revenue Service.

Shambaugh has until Dec. 2 to complete an 18-month pretrial diversion program, which allows federal defendants to undergo court supervision as an alternative to prosecution. If she successfully completes the program, the charges against her will be dismissed. If she doesn’t, she will face trial.

The motion for consent disbarment goes to the Illinois Supreme Court. (Mike Frisch)

August 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 13, 2016

PTA Theft And DUI Leads To Disbarment

An attorney convicted of stealing from the PTA was disbarred by a panel of the Michigan Attorney Discipline Board after two convictions.

Based upon respondent's convictions in the 30th Circuit Court on July 27,2015 and October 7,2015, it was established that respondent was convicted of embezzlement by an agent or trustee ($200 or more but less than $1,000), in violation of MCl 750.174(3)(a), and a third offense of operating while intoxicated, in violation of MCl 257.625(6)(0). Therefore, the panel found that respondent engaged in conduct that violated the criminal laws of the State of Michigan, in violation of MCR 9.104(5).

The panel concluded that respondent knowingly failed to respond to lawful demands for information from a disciplinary authority, in violation of MRPC 8.1 (a)(2); failed to answer two requests for investigation, in violation of MCR 9.104(7) and MCR 9.113(A) and (8)(2); in addition to violating MRPC 8.4(a); MCR 9.104(1); MCR 9.104(2); and MCR 9.104(3).

The panel ordered that respondent be disbarred from the practice law in Michigan. Costs were assessed in the amount of $1,834.48.

The Lansing State Journal had the story of the charges

An attorney who admitted stealing thousands from an East Lansing elementary school's parent-teacher group withdrew his guilty plea Wednesday after a judge imposed a jail term, which nullified the plea agreement.

At a sentence hearing in Ingham County Circuit Court, Judge Rosemarie Aquilina heard from two members of Pinecrest Elementary School's parent-teacher council, who said they had been betrayed by Robert Clayton Miller, the group's onetime treasurer.

"To steal money from a school that already has so little, it is heartless and selfish," Kimberly Henderson, a member of the Pinecrest group, told Aquilina.

The embezzlement happened between June 2012 and June 2013 while Miller was serving as treasurer. In 2013, police discovered that nearly $7,800 was missing from the parent-teacher council. About $6,500 was recovered and returned to the organization.

Henderson said that Miller ultimately had stolen from children who donated money from their "piggy banks" and their allowances.

"I think you need the impact of some jail," Aquilina told Miller. "I think you have negatively impacted the children...and the community.

"Sir, you need a negative impact."

She then sentenced Miller to serve 14 days in jail, in addition to two years of probation.

Miller, who according to his attorneys has been on leave from his state job, pleaded guilty last month to a misdemeanor embezzlement charge. As part of that plea, there was an agreement between Miller and prosecutors that he not serve any jail time.

After Aquilina imposed the jail term during Wednesday's hearing, Miller's attorney, Mike Nichols, said he was withdrawing his guilty plea.

The case now is expected to go to trial. No date has been set.

In an interview, Nichols said that if Miller was convicted by a jury, Aquilina most likely would not be able to sentence him to more than 14 days in jail. Under case law, he said, Aquilina can't impose a longer jail term just because a defendant chooses to go to trial.

"What could the judge hear at trial that would be any worse than what she heard (today) from" the parent-teacher group members, he said.

Miller, who lives in Holt, also is facing possible felony charges as a repeat drunken driver. He was arrested for drunken driving "several days after his plea," Ingham County Assistant Prosecutor Jonathan Roth said in court. Miller has three previous drunken driving convictions, Roth said.

At his plea hearing last month, Miller said he had turned over his treasurer duties to his wife, Kimberly. He said he knew she used the money for a mortgage payment on their East Lansing home. His wife and children now live in Texas. Miller, as a condition of his bond, cannot leave the state.

In 2013, Kimberly Miller pleaded no contest in 54B District Court to a larceny charge, records show. She was placed on probation and ordered to pay more than $2,800 in fines and costs.

(Mike Frisch)

August 13, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 12, 2016

Attorney Placed On Involuntary Inactive States For Unconscionable Bankruptcy Fees

An attorney who had charged "unconscionable" fees in a bankruptcy matter has been ordered on involuntary inactive status by the California State Bar Court Review Department

In 2005, a federal bankruptcy court found that Mansfield Collins collected $258,000 in fees to which he was not entitled and charged an additional $226,213.77, also in unwarranted fees. Arising from this judgment, in 2010, Collins stipulated in the State Bar Court to culpability for charging and collecting unconscionable fees and voluntarily agreed to a one-year stayed suspension and a three-year probation with conditions, including a three-month actual suspension and that he pay his former clients $258,000 in restitution plus interest accruing from 2005. Further, he agreed to pay restitution on a schedule: $100,000 by February 2012; another $100,000 by February 2013; and the remaining principal plus interest by January 2014.

 Collins received a modification to delay the first $100,000 payment deadline to February 2013. By that date, he had paid only $2,500, and by August 2013, he had made only five payments totaling $22,500 in restitution. Thus, the Office of Probation of the State Bar (Probation) moved to revoke his probation. Finding that Collins had violated his probation, a hearing judge granted the motion and recommended discipline, including that the stay of execution of the one-year suspension be lifted and that Collins should be actually suspended for six months and until he makes restitution.

 Collins seeks review and argues that the hearing judge abused his discretion and committed numerous errors of law. In particular, he contends the judge should have required Probation to prove that he had the ability to pay restitution. He requests that we reverse the judge’s order and conduct an independent review of his ability to pay restitution. Probation generally supports the judge’s recommendation and does not seek review, but asks us to impose the full one-year actual suspension that was earlier stayed.

We have independently reviewed the record (Cal. Rules of Court, rule 9.12), and conclude that the hearing judge properly granted the motion to revoke. We agree with Probation, however, that Collins should be actually suspended for the longest period available, one year. Collins agreed to timely pay the six-figure restitution that the bankruptcy court found due. Yet he failed to adhere to his agreement—all the while remaining eligible to practice law but for a three-month period in 2011. These facts warrant a full revocation and cause us to exercise our discretion and order Collins placed on involuntary inactive status effective three days after service of this opinion.

Also, in light of facts occurring after the evidentiary hearing, we find that Collins should not be required to make any further payment in restitution because he has since settled the debt owing to his former clients.

(Mike Frisch)


August 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 11, 2016

Not Reinstated But Revoked

A false omission in a bar application led the New York Appellate Division for the Third Judicial Department to revoke an attorney's license.

He had been suspended reciprocally based on a Missouri suspension and sought reinstatement

as the result of information revealed in the course of its investigation of respondent's most recent reinstatement application, petitioner filed a single charge of professional misconduct alleging that respondent violated the requirement that he demonstrate candor in the bar admission process as set forth in Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.1 (a). Specifically, in the May 18, 2016 petition of charges, petitioner alleged that respondent failed to disclose a felony criminal conviction in the application for admission which respondent had submitted to this Court in connection with his 2000 admission to the bar (see Judiciary Law § 90 [2]). In his answer, respondent admitted the charge. There being no factual issues, the parties were then invited to submit any factors in mitigation and aggravation...

we find respondent guilty of the charged misconduct and conclude that his admission to practice should be revoked.

In an unrelated matter, the court denied admission to an applicant.

Applicant, who resides in Florida, also passed the Florida and New Jersey bar exams after law school graduation. In October 2015, the Florida Board of Bar Examiners recommended that applicant be denied admission in Florida and that he be disqualified from reapplying for two years. Applicant's application for admission in New Jersey is pending. Applicant has a criminal record, including minor thefts and driving under the influence, and many traffic violations. He also exhibited a lack of candor on his law school applications with respect to his background, and the Florida Board enumerated multiple examples of false or misleading answers on the applications. He admitted that his lack of candor was caused in part by his concern that disclosure would cause denial of his law school applications.


(Mike Frisch)

August 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Too Late To Resign

An attorney's attempt to resign from the Bar while pending discipline was rejected by the District of Columbia Court of Appeals in a per curiam order of disbarment.

Mr. McClure’s resignation from the District of Columbia Bar does not preclude disbarment. Pursuant to D.C. Bar R. II, § 7, “a member of the District of Columbia Bar who is in good standing and not under investigation as provided in Rule XI § 7” may elect “to discontinue the practice of law in the District of Columbia, and to terminate his or her membership in the Bar.” Because Mr. McClure was suspended from the practice of law in the District of Columbia, effective March 24, 2016, pending the final disposition of this case, he is not a member in good standing. Moreover, we have stated previously that an attorney may not “avoid imminent disciplinary review by filing a voluntary resignation on the eve of the commencement of an investigation or disciplinary proceeding.” In re Phillips, 452 A.2d 345, 348 (D.C. 1982) (per curiam); see also In re Webster, 661 A.2d 144, 145 n.2 (D.C. 1995). Nor may an attorney avoid the Board’s recommended sanction by resigning during temporary suspension and prior to this court’s decision on the Board’s Report and Recommendation.


the Ad Hoc Committee made extensive factual findings on each of the charged violations and determined that Mr. McClure violated Rules 1.1 (a) and (b), 1.5 (a), 3.3 (a), 3.4 (c), and 8.4 (c) and (d). Based on its view that Mr. McClure’s dishonesty was not “flagrant,” the Ad Hoc Committee recommended suspending Mr. McClure for eighteen months with a requirement to prove fitness as a condition of reinstatement. Disciplinary Counsel took exception with respect to the recommended sanction, contending that Mr. McClure should be disbarred due to the totality of his misconduct. The Board agreed with Disciplinary Counsel...

Mr. McClure has been a member of the District of Columbia Bar since May 26, 1978. Prior to taking on the medical malpractice case involving Ms. Marbury, her minor daughter, and her granddaughter, Mr. McClure apparently had a successful career, mainly handling medical malpractice cases, but no case involving obstetrics or a minor child who gave birth. His disciplinary history consisted of an informal admonition in 2001 for a violation of Rule 8.4 (d). He does not challenge the substance of the Board’s Report and Recommendations, and he lodged no brief in this matter. However, he filed a pleading on July 12, 2016, summarizing his background, and resigning from the District of Columbia Bar, essentially because of his health (repeated hospitalizations related to heart disease and diabetes), age (76), and the death of Mr. Bettis after an extended hospitalization.

Bernard Bettis was disbarred on consent in 1984 and reinstated in 1994. He had been charged along with Mr. McClure. (Mike Frisch)

August 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Suspended For Denying He Is A South Carolina Lawyer

The South Carolina Supreme Court has imposed a one-year suspension retroactive to a previously-imposed interim suspension on an agreed set of facts

Respondent, who was admitted to the South Carolina Bar in 2009, was appointed in 2012 to represent an applicant in a postconviction relief matter. The Attorney General's Office mailed various pleadings and other correspondence to respondent at the address respondent provided in the Attorney Information System (AIS). None of the correspondence was returned, nor did respondent make any response. On April 14, 2014, the Attorney General's Office notified respondent that the applicant's case was on the roster for the upcoming term of court. Respondent informed the Attorney General's Office that he was not admitted to the South Carolina Bar and did not practice law. New counsel was appointed for the applicant.

He had been suspended on an interim basis for his failure to respond to the bar complaint. (Mike Frisch)

August 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Short Suspensions For Domestic Violence

A two-month suspension was ordered by the Massachusetts Supreme Judicial Court in two domestic violence matters.

On December 15, 1999, the respondent admitted to sufficient facts in the Plymouth District Court to one count of assault and battery in violation of G. L. c. 265, § 13A. The facts were that the respondent slapped his wife in the face during an argument. The matter was continued without a finding until June 15, 2000, on which date the matter was dismissed. The respondent failed to report the conviction to bar counsel within ten days, as required by S.J.C. Rule 4:01, § 12(8).

On August 29, 2013, the respondent admitted to sufficient facts in the Plymouth District Court to two counts of violation of an abuse prevention order in violation of G. L. c. 209A, § 7. The facts were that the respondent sent his ex-wife text messages that violated an abuse prevention order in that they went beyond arranging for visitation, disparaged the exwife and included a veiled threat of violence. The matter was continued without a finding until August 28, 2015, on condition that the respondent “abide by 209A.”

On September 10, 2013, the respondent was arrested for violation of the abuse prevention order. On October 11, 2013, he pleaded guilty in the Plymouth District Court to one count of violation of the abuse prevention order in violation of G. L. c. 209A, § 7. The basis of the plea was that the respondent sent the ex-wife a number of additional text messages disparaging the ex-wife and went to the ex-wife’s home to drop off their child’s pet. The respondent also admitted to a violation of probation in the prior matter. On both matters, he was placed on supervised probation until August 28, 2015, and ordered to undergo anger management counseling.


In mitigation, the respondent suffers from Attention Deficit Disorder and Obsessive Compulsive Disorder, which were exacerbated in the summer of 2013 by an ongoing dispute with his ex-wife over financial issues, thereby impairing his judgment. The dispute was subsequently resolved and the ex-wife allowed the abuse prevention order to lapse. The respondent complied with all probationary terms, including anger management counseling.

The discipline was imposed by consent.

In an unrelated matter

On August 13, 2014, the respondent admitted to sufficient facts in the Lynn District Court to assault and battery in violation of G. L. c. 265, § 13A(a). The facts were that during an argument with his wife at their home on the evening of April 8, 2014, after both had been drinking, the respondent became enraged. On four separate occasions, he placed his hands around her neck and applied pressure for between five and ten seconds. The confrontation ended when the wife locked herself in a bathroom and called 911...

In mitigation, the respondent complied with all probationary terms, including remaining alcohol-free, and is successfully addressing anger management issues in therapy. The respondent is and has been at all relevant times on inactive status and his misconduct does not involve violation of any court orders.

The Daily Item reported that he had initially been charged with attempted murder. (Mike Frisch)

August 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 10, 2016

The Prosecutor And The Prostitutes

The Michigan Attorney Discipline Board has suspended an attorney convicted of felony misprison of office.

From the Detroit Free Press

Rumors and allegations about Ingham County Prosecutor Stuart Dunnings III’s alleged involvement with prostitutes began at least 10 years ago and police had seen Dunnings in public with women who were not his wife long before Attorney General Bill Schuette announced 15 criminal charges against Dunnings on March 14, Sheriff Gene Wriggelsworth said in an interview Thursday.

But local investigators’ follow-up inquiries into past innuendos about Dunnings, the county’s elected prosecutor since 1997, never yielded any solid information, Wriggelsworth said. It wasn’t until about a year ago, when federal investigators working on a Lansing-area human trafficking case brought information to his department, that the Ingham County Sheriff’s Office could launch a full investigation into the prosecutor.

By the time Dunnings was arrested last month at a Lansing coffee shop and Schuette filed 14 misdemeanors and one felony charge against the 63-year-old, Dunnings had paid at least six different women for sex hundreds times over several years, the Sheriff’s Office alleges in court records.

The Lansing Journal had this report in May 2016

The name Dunnings already carried a lot of weight in Ingham County when a 43-year-old Stuart Dunnings III first sought the capital region’s top law enforcement post.

And around the same time he was embarking on what would become a long political career, the man whose criminal case would be linked to Dunnings' downfall stepped into the public eye in a Lansing courtroom.

It was in summer 1996, shortly after Dunnings declared his candidacy for county prosecutor and promised to build upon his father's nearly 50 years of community service in the region, that a 26-year-old Lansing man named Tyrone Smith was convicted of killing someone in an apparent case of mistaken identity.

Nearly two decades later, information obtained during a federal investigation into a sex-trafficking ring Smith ran would ultimately land Dunnings in jail, put there by one of his longtime political allies, and facing 15 prostitution-related criminal charges.

More from the Washington Post.

When it came to hiring prostitutes for sex, police say, Stuart Dunnings III preferred escort websites such as Escort Vault and

Most of the time, police say, Dunnings would meet the women at motels. Occasionally, they’d meet at a pimp’s house.

His was a ferocious habit, one that led the 63-year-old to shell out hundreds of dollars three or four times a week for a revolving cast of heroin-addled sex workers.

By the time he was arrested Monday outside a Lansing, Mich., coffee shop, Dunnings had racked up hundreds of illegal encounters in three Michigan counties between 2010 and 2015, according to an arrest affidavit.

(Mike Frisch)

August 10, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 9, 2016

An Absence Of Turpitude

The California State Bar Court Review Department has proposed a stayed suspension of one year

 Richard Alan Dongell sideswiped another vehicle while he was driving with a blood alcohol concentration level (BAC) of 0.222 percent—almost three times the legal limit. His two children were passengers, but no one was injured. As a consequence, he was arrested and convicted of misdemeanor violations of driving under the influence (DUI) and child endangerment.

The criminal matter was referred to this court for consideration of whether the convictions involved moral turpitude, and the discipline to be imposed, if any. The hearing judge below found the facts and circumstances surrounding the crime did not involve moral turpitude, but she nevertheless recommended discipline that included a one-year stayed suspension.

 The Office of the Chief Trial Counsel of the State Bar (OCTC) seeks review, asking that we find Dongell’s criminal misconduct involved moral turpitude and requesting a 30-day actual suspension. Dongell requests that we affirm the hearing judge’s decision.

Having independently reviewed the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s determinations that the circumstances surrounding Dongell’s misconduct did not involve moral turpitude and that discipline is warranted.

 The attorney was admitted in 1987 and has no prior discipline. He sideswiped a car while driving his two 13-year old children.

One of the officers questioned Dongell’s children at the scene. They stated that they had eaten lunch at a restaurant with Dongell, who drank wine with his meal. After the meal, they went to a beach where Dongell met a group of women at a beachfront café and shared some wine with them while the children played nearby. When Dongell was about to leave, he became upset upon seeing a parking ticket affixed to his windshield. His children observed his agitation and his inebriated condition and called their mother (Dongell’s soon to be ex-wife), who told them she would pick them up immediately. Not wanting to further upset their father, the children got in his car. The accident occurred while Dongell was driving to the hotel where he was staying.

 No moral turpitude for two misdemeanors (child endangerment and DUI) to which he pled no contest

Here, we do not have repeated alcohol-related misconduct over a number of years, but rather two incidents separated by 20 years. Nor do we have a lack of cooperation or lack of respect for the integrity of the legal system. Dongell did not attempt to exploit his position as an attorney at the time of his arrest and instead he cooperated with the police. Furthermore, after his initial failure to participate in the KCS program, Dongell has remained in full compliance with his probation, voluntarily enrolled in a residential treatment program, and is undergoing long-term therapy with a psychologist.

The attorney presented substantial evidence in mitigation. (Mike Frisch) 

August 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Another Good Day In D.C. As Consent Discipline In Misappropriation Case Submitted To Court

A District of Columbia Hearing Committee has approved a consent disposition of a two-year suspension with fitness of an attorney for negligent misappropriation and related misconduct.

The investigation, which began in 2012, was not the result of a client complaint; rather, it involved ac series of trust account overdrafts reported to Disciplinary Counsel.

The hearing committee report

Negotiated discipline in cases involving misappropriation must be rejected when a “serious question exists on the face of the record whether respondent acted negligently, or instead  recklessly . . . .” Harris-Lindsey, 19 A.3d at 784. We find no such question here. Although Respondent is an experienced attorney, her practice did not routinely call for holding client funds in trust. Her misappropriation resulted from a combination of accounting structures in place in her firm that were inadequate to safeguard entrusted funds and her failure to supervise new staff and to review client funds obtained from other firm lawyers. Respondent’s affidavit, the stipulated facts and our in camera review of the file all support a finding that Respondent was negligent in her duties with respect to entrusted funds and the supervision of staff. The brief duration of these actions – six months – the lack of any harm to her clients and her cooperation and correction of her failures once identified, do not raise a serious question that her actions rose to the level of recklessness.

Nor do we believe that the agreed upon sanction is unduly lenient for three instances of negligent misappropriation. While negligent misappropriation typically only results in a six month suspension, the combination of misappropriation and other violations warrants a lengthier suspension. When negligent misappropriation is added to other misconduct, the sanction is much harsher.

Further, the fitness requirement was found to be appropriate.

The proposed consent discipline now goes to the Court of Appeals to approve or reject.

The case is In re Kathy Bailey and can be accessed at this link. (Mike Frisch) 

August 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 7, 2016

I've Got A Secret

The web page of the Delaware Office of Disciplinary Counsel has a search function that permits the user to find the most recent (2016) sanctions.

One recent case summary caught my eye


Effective Date: April 6, 2016. A Delaware lawyer was placed on private probation for two years for violations of the Delaware Lawyers’ Rules of Professional Conduct (“Rules”) in connection with his failure to maintain his law practice’s books and records. The private sanction was offered by a Panel of the Preliminary Review Committee (“PRC”) and imposed with the consent of the lawyer. The lawyer admitted violations of Rule 1.15(d) and Rule 8.4(d). The Lawyers’ Fund for Client Protection conducted an audit in 2014 which revealed deficiencies in the books and records. The lawyer also made misrepresentations as to the status of the firm’s books and records to the Supreme Court on his 2014 Certificate of Compliance.

I am uncomfortable with the concept of "private" probation.

Also noteworthy is that Delaware retains the sanction of private admonition. (Mike Frisch)

August 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

An American Family

An Arizona attorney and his son-in-law employee were both sanctioned for a conflict of interest in civil litigation. 

The senior attorney (Warnock) was suspended for six months and a day; the junior attorney (Carman) accepted an admonishment.

The law firm represented a person who had caused injuries in a car accident. The injured plaintiff was Ms. Hargrove.

Carman had provided advice to the clients (the Orlandos) in the transition of their business to corporate status.

One of the Orlandos was driving a company car that was only insured for $15,000 damages. Separate from the accident litigation, the Orlandos sued their insurer (American Family) for failure to provide proper advice on insurance coverage. 

The story is told (in part) by the Arizona Court of Appeals Division One in a decision  affirming the firm's disqualification after the matters had taken a series of twists and turns

In September 2010, Hargrove’s personal injury claim proceeded to a jury trial. During trial, it was discovered that several jurors may have engaged in misconduct. To avoid a possible mistrial, the parties agreed to a settlement conditioned upon the following. If the jury returned a verdict in favor of Hargrove, judgment would be entered against the Orlandos, who would then assign all of their claims against their insurer in the American Family litigation to Hargrove. In exchange for the assignment, the Orlandos would not seek a mistrial and Hargrove would not execute on the judgment against the Orlandos. The superior court confirmed the agreement by all parties and counsel. Following a verdict in favor of Hargrove, the court entered judgment against the Orlandos in the amount of $655,776.12. The parties then formalized their agreement by executing an assignment and covenant not to execute (“the assignment and covenant”). The covenant provided in pertinent part that the Orlandos would “furnish full and complete communication, cooperation, documentation, and, as necessary, sworn testimony to support the assigned claims” against American Family and they would “execute such additional documents as may be necessary to carry out the intent” of the covenant.

Thus, Hargrove's attorney (Jensen) became the Orlandos de facto attorney in pursuing the insurance claim. It was a bumpy ride that led to a bar complaint by the Orlandos against Jensen and his withdrawal.

In November 2010, in response to American Family’s discovery requests, [law firm] WMC identified WMC partner Andre Carman as the attorney who advised the Orlandos regarding the transition of their small business from a sole proprietorship to a corporation. Shortly thereafter, pursuant to the assignment and covenant, Jensen and WMC filed a joint motion requesting that Jensen be substituted for WMC as counsel of record for plaintiff(s) (Hargrove and/or Orlandos, depending upon the outcome of a motion to substitute) in the American Family litigation. At the same time, and also as provided by the assignment and covenant, Hargrove and the Orlandos filed a joint motion to substitute Hargrove in place of the Orlandos as the sole plaintiff or, in the alternative, as an additional plaintiff. The superior court granted the motion to substitute counsel but denied the motion to substitute or add Hargrove as a plaintiff.

In August 2012, a protracted dispute arose regarding the Orlandos’ obligation to cooperate and furnish documents to Hargrove under the assignment and covenant. Jensen repeatedly inquired as to Carman’s status as a possible nonparty at fault and witness, and requested access to WMC’s legal files for both the personal injury litigation and the American Family litigation. Although Jensen insisted the assignment and covenant permitted him to inspect all legal files relevant to claims and defenses in the American Family litigation, the Orlandos ultimately refused to authorize a release of the files. Jensen also asserted that WMC had a conflict of interest that precluded it from representing the Orlandos in the American Family litigation given the circumstances surrounding Carman’s advice to the Orlandos regarding their business. Jensen further asserted that if the Orlandos failed to comply with his requests for documents such inaction would constitute a breach of the assignment and covenant.

After the Orlandos informed Jensen they would seek his disqualification, Jensen moved to withdraw from the American Family litigation. The superior court granted the motion in February 2013. Three days later, the Orlandos (represented by WMC) initiated the instant litigation by filing a complaint in Yavapai County Superior Court (“current litigation”) seeking a declaration that Hargrove breached the assignment and covenant. In March 2013, through new counsel Timothy Ducar, Hargrove filed a counterclaim asserting that the Orlandos had breached the assignment and covenant. The Orlandos then filed a third-party claim against Jensen, alleging he was responsible for the breach of the parties’ agreements.

As to disqualification

At the August 1, 2014 hearing on the cross-motions for disqualification, Carman acknowledged that he was both a named witness and nonparty at fault in the American Family litigation. Carman argued, however, that his status as a named witness and nonparty at fault was moot because Hargrove “abandoned” the American Family litigation. Nonetheless, when questioned by the superior court, Carman admitted that he would have “a conflict of interest in this case” if Hargrove did not, in fact, abandon the litigation and the stipulation to dismiss was entered without her approval. Carman also acknowledged that the settlement was negotiated between Brian Warnock and counsel for American Family and further admitted, when pressed by the superior court, that he and the firm received a “significant benefit” when the American Family litigation was dismissed with prejudice and he and his firm were no longer exposed to potential liability in that matter.

Both attorneys conditionally admitted the conflict and consented to the discipline. The senior attorney had practiced for 40 years without blemish. (Mike Frisch)

August 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Well-Deserved Disbarment

A convicted and imprisoned attorney consented to the revocation of his license and was disbarred by the Maine Supreme Judicial Court.

BDN Maine Midcoast had this March 2016 story on his conviction.

A Belfast lawyer was sentenced Friday to 30 months in prison for stealing nearly $500,000 from two elderly clients.

In one case, William L. Dawson Jr. placed an 85-year-old Belfast resident in a nursing home for four years while he looted her bank accounts, according to court records.

Dawson pleaded guilty Friday in Waldo County Superior Court to two counts of felony theft and three counts of failing to pay state income taxes. Justice Robert Murray sentenced Dawson to five years in prison with all but 2½ years suspended to be followed by three years of probation.

The theft was uncovered in March 2013 when a teller at Key Bank noticed Dawson was writing large checks to himself on at least a weekly basis from the account of Veronica Pendleton. She alerted her supervisor, and a review of the account was undertaken, as well as that of another customer, 97-year-old Doris Schmidt. In that case, Dawson also was writing large checks on her account, according to Assistant Maine Attorney General Leanne Robbin.

Murray ordered Dawson to pay restitution of $385,000 to Pendleton’s estate and $98,000 to Schmidt’s estate. Both women have since died.

The prosecutor said that after an investigation began, Dawson submitted bills he said explained the checks. But Robbin said the reasons Dawson gave for the billing were “breathtaking.” Even though his office was just a one-minute drive from Pendleton’s home, Dawson would bill her $250 per hour for six to seven hours to go check on the house, pick up her mail and take care of her bills while she was in the nursing home.

A probate court in 2013 removed Dawson’s power over their finances.

Attorney Susan Thiem, who represents the Pendleton estate, said Friday that Dawson had put Pendleton in the nursing home for a temporary medical condition but kept her there for four years until his theft of her money was uncovered. Thiem read a letter from Anne Cilley, who was a friend of Pendleton, in which she said that after the theft was uncovered, Pendleton was able to return home for three months before she died.

(Mike Frisch)

August 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 5, 2016

A Serendipitous Result: Jailhouse Lawyering Not Unauthorized Practice In Vermont

The Vermont Supreme Court rejected the contention that a "jailhouse lawyer" violated unauthorized practice restrictions

This case calls upon us to consider the applicability of the prohibition against the unauthorized practice of law to the activities of a “jailhouse lawyer.” In February 2016, the State filed an information in this Court against Serendipity Morales, an inmate at the Marble Valley Regional Correctional Center, alleging she engaged in the unauthorized practice of law by helping fellow inmates in their cases, including performing legal research and drafting motions. In this probable cause review, we consider whether there is probable cause to believe that defendant has committed the alleged offenses. We conclude that there is not and accordingly dismiss the State’s information without prejudice.

The evidence that led to criminal charges

In support of these charges, the State included an affidavit from Sergeant Lloyd Dean, an officer for the Bennington County Sheriff’s Department. In that affidavit, Sergeant Dean alleges that Morales prepared court filings for five fellow inmates. These inmates reported to Dean that: (1) they had heard Morales was familiar with the legal process; (2) they asked Morales for assistance in reviewing and preparing various legal filings on their behalf; (3) Morales assisted each of them, including drafting handwritten motions which the respective inmates reviewed and signed; and (4) Morales did not request or accept any payment for these services. Sergeant Dean further alleged that each of the five inmates was represented by counsel in the matters in question, and that Morales is not a licensed attorney in the State of Vermont. The State does not allege that Morales ever signed pleadings on behalf of the other inmates, held herself out as a licensed attorney, or received any payment for her services.

The court

This Court has historically defined the unauthorized practice of law broadly, to include not merely holding oneself out as an attorney, but also providing services that require legal knowledge or skill such as drafting legal documents and giving legal advice—at least when one charges a fee for those services. More recent social and legal developments reflect a trend toward a somewhat more purpose-driven approach to defining the scope of the unauthorized practice of law.

After a survey of relevant caselaw

Although the above caselaw articulates an expansive definition of the practice of law, as the Attorney General has argued in this case, “This decades-old definition does not reflect the reality of practice in Vermont and does not provide sufficient guidance to prosecutors, practitioners, and the public.” Notwithstanding the above broad definitions of the unauthorized practice, this Court has allowed nonlawyers to appear in court in certain specified circumstances, as have some administrative agencies. In its prosecutorial role, the Attorney General has likewise taken a narrower view of the unauthorized practice. These legal developments have tempered the breadth of the unauthorized practice prohibition, and reflect a recognition that the unauthorized practice prohibition should be applied consistent with its underlying purposes of public protection.

Jailhouse lawyering

we are guided in this case by two factors particular to the inmate context. First, “jailhouse lawyers” who give legal assistance to fellow inmates but are not themselves licensed or formally law trained, are a well-established fixture in the justice system. Second, incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns...

Vermont’s courts have not actively sought to discourage inmates from helping one another with legal issues. In fact, in this appeal, Morales provided us with a transcript of a hearing in which the trial court urged a defendant to seek the help of other inmates who have successfully filed motions on their own behalf while awaiting a decision from the Defender General as to whether counsel will be appointed.

In this context, although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the State.

The second factor particular to the context of this case is that incarcerated inmates are especially disadvantaged in trying to get legal information and advice. The United States Supreme Court has recognized that “[j]ails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.” Johnson v. Avery, 393 U.S. 483, 487 (1969). A significant number of inmates do not have the wherewithal to determine their rights and advocate for themselves due to limited education and literacy, and in some cases language barriers. These constraints give rise to considerable policy concerns, and perhaps constitutional ones.

Given these considerations, the court found that Morales had not engaged in unauthorized practice. (Mike Frisch)

August 5, 2016 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)