Friday, July 24, 2015

Grievance - Closing Discretion Upheld

The Alaska Supreme Court has held that a complainant unhappy with Bar Counsel's decision not to further investigate his complaint failed to establish a basis for review.

The court explained its review of the intake process

We now consider a complainant’s application for relief contending that Bar Counsel erred in closing the complainant’s grievance without a formal investigation. Resolving this matter requires explaining more fully how we review a grievance closure. First, we expect Bar Counsel will base a grievance closure on the facts of record, applicable law and policy, practicality, and professional experience and judgment; when Bar Counsel does so we will afford Bar Counsel broad discretion. Second, when reviewing a grievance-closing decision for abuse of discretion, we look to ensure that the decision is not arbitrary, capricious, or the result of a breakdown in the process. On that standard we see no abuse of discretion in Bar Counsel’s decision to close this complainant’s grievance without a formal investigation.

What Bar Counsel had done

The grievance-closing letter reflects that, in addition to [complainant] McGee’s submittals and arguments, Bar Counsel considered: (1) the ALJ decision and underlying record regarding the allegations of impropriety in OPA’s contracting process; (2) the Department of Administration’s report about OPA’s contracting process and McGee’s allegations of wrongdoing by OPA’s contract investigator and attorneys; and (3) the Department of Law’s response to McGee’s assertion that the Department of Administration’s investigative report was a “whitewash.” We conclude that Bar Counsel reasonably could determine that a formal investigation would not bring to light any new material facts relevant to McGee’s grievance.

The letter also reflects the application of experience and professional judgment based on the existing record and relevant considerations: Bar Counsel provided a reasonable explanation that the known facts did not suggest a connection between OPA’s use of the investigator and any possible ethical violation by the attorney involved in this matter, that a violation would have to be proved to an area hearing committee by clear and convincing evidence, and that there was no good reason to use Bar resources to present a case to volunteer area hearing committee members when there was very little likelihood of proving an ethical violation. The Discipline Liaison reviewed McGee’s grievance file and the grievance-closing decision, as requested by McGee, and concurred that a formal investigation was unwarranted. McGee has not suggested that either Bar Counsel or the Discipline Liaison was improperly motivated or influenced in the decision-making process, and it is clear that there was no breakdown in the grievance process.

In other words, Bar Counsel can exercise reasonable discretion at intake subject to court review, 

Works for me. (Mike Frisch)

July 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suspension, Not Disbarment, Proposed For Horrific Abuse Of Female Staff

The Illinois Review Board has filed its recommendation in a  matter in which the attorney had abused his female staff and exposed himself to a neighbor and another passerby.

The Review Board, over a single dissent, proposes a 30 month suspension with reinstatement by court order.

While the Hearing Board did a painstaking and we believe correct analysis of case law to support its 30 month suspension, it appears to have paid little attention to the overriding issue of whether this particular Respondent is likely to reoffend. We believe that, in this case, "what is past is prologue". Unless Respondent comes to grips with his problems and takes affirmative steps to understand and resolve them he is a very bad risk. We are also mindful that Respondent had done good work in his field of class action law and that the bulk of his misconduct occurred quite some time ago. For these reasons we think disbarment is not appropriate.

The conduct is set forth in graphic if summary detail in the report. Most of it took place in the 1999- 2003 period.

Why did it take until 2015 to get this far?

Some insight from the Hearing Board

Over the course of four and one-half years, the parties submitted and vigorously briefed numerous motions regarding the charges of the Complaint and procedures employed in bringing this matter to hearing. 

Our coverage of the Hearing Board report is linked here.

The Review Board synopsis

The Administrator filed a seven count complaint against Respondent. Counts I, II, III, IV and VII alleged that Respondent engaged in misconduct with respect to five female employees of Respondent's law firm and charged Respondent with engaging in criminal acts that reflect adversely on his fitness as a lawyer, namely assault and battery with respect to all five women, unlawful restraint with respect to three women, and telephone harassment with respect to three women. In Counts V and VI, Respondent was charged with engaging in the criminal acts of public indecency and disorderly conduct by exposing himself to a co-resident of his apartment building and to a woman walking on a public street.

The Hearing Board determined that the legal defenses asserted by Respondent were not a bar to any of the charges against Respondent. After assessing the credibility of the witnesses and reviewing the evidence, the Hearing Board found that Respondent engaged in misconduct with respect to four of his employees, his neighbor and the woman walking on a public street. The Hearing Board recommended that Respondent be suspended for thirty months.

Upon review, the Administrator asked that Respondent be disbarred. The Respondent argued the charges against him should be dismissed because the findings were against the manifest weight of the evidence; the requirements of 1990 Rule 8.4(a)(9)(B) were improperly circumvented; there could be no violations of 8.4(a)(3) because Respondent was not convicted; and that the use of information that was subject to expungement deprived him of due process.

The Review Board found Respondent's arguments to be without merit. The Review Board concluded that the findings of the Hearing Board were not against the manifest weight of the evidence. The Review Board affirmed the findings of misconduct of the Hearing Board. In determining a sanction recommendation, the Review Board considered that Respondent had been previously disciplined for engaging in inappropriate sexual misconduct. After considering the precedent, the factors in mitigation and aggravation, and the likelihood that Respondent would reoffend, a majority of the Review Board recommended that Respondent be suspended for thirty months and until further order of the Court. One Review Board member dissented with respect to the sanction recommendation and recommended that Respondent be disbarred.

The Review Board rejected the contention that a  criminal conviction is required to sanction the attorney's violation of present Rule 8.4(c). At the time of the misconduct, the provision was found at Illinois Rule of Professional Conduct 8.4(a)(3).

On sanction

The Hearing Board concluded the Respondent's conduct "resulted from his selfish motive of sexual gratification, there was a pattern of misconduct over time," and he "took advantage of vulnerable employees who were young, self-supporting and dependent upon him for their livelihood". Precedent, common sense, and regard for the public and the legal profession support a suspension of thirty months and until further order of the Court.

The Hearing Board correctly considered his prior discipline in aggravation. Factors in aggravation revealed that, in 1993, while 26 years old, Respondent attended a high school girls' volleyball game where he first saw a 17 year old girl he did not previously know. In November and December of 1993, Respondent made at least six obscene telephone calls to the girl, resulting in his arrest in February 1994 and conviction in March 1994 for telephone harassment. In addition, between November 1993 and April 1994, Respondent made six to eight obscene phone calls to another woman, a fellow associate working with him at a Chicago law firm. From December of 1994 to January 1995, while on supervision for the telephone harassment conviction, Respondent made at least four obscene phone calls to a woman who had been a paralegal at the firm where he worked. During March 1993, again in the Fall of 1993, and in September 1994, Respondent made a number of obscene phone calls to yet another woman.

Richard Green in lonely dissent

While I agree with my colleagues with respect to their agreement that the findings of the Hearing Board are not against the manifest weight and their analysis of the applicable law, I must disagree as to the recommended sanction. Respondent engaged in similar conduct in the 1990's, was disciplined and was to get treatment. Rather, he continued his bad behavior and in fact escalated it. Nothing in the record shows that he will not continue with the misconduct. Clearly this behavior leads the profession into disrepute. I would recommend that Respondent be disbarred.

Law360 had this story on more recent issues that he had faced in his class action lawyering and law firm breakup. 

The ABA Journal reported on the Seventh Circuit opinion by Judge Posner in a class action for which the attorney was counsel.

The impropriety of allowing Saltzman to serve as class representative as long as his son-in-law was lead class counsel was palpable...Weiss may have been desperate to obtain a large attorney’s fee in this case before his financial roof fell in on him [due to impending bar discipline]...

The settlement should have been disapproved on multiple grounds. To begin with, it was improper for the lead class counsel to be the son-in-law of the lead class representative. Class representatives are, as we noted earlier, fiduciaries of the class members, and fiduciaries are not allowed to have conflicts of interest without the informed consent of their beneficiaries, which was not sought in this case. Only a tiny number of class members would have known about the family relationship between the lead class representative and the lead class counsel—a relationship that created a grave conflict of interest; for the larger the fee award to class counsel, the better off Saltzman’s daughter and sonin-law would be financially—and (which sharpened the conflict of interest) by a lot. They may well have had an acute need for an infusion of money, in light not only of Weiss’s ethical embroilment, which cannot help his practice, but also of the litigation against him by his former law partners and his need for money to finance his new firm. The appellees (primarily Saltzman, who is still a named plaintiff, and Pella) point out that Saltzman was one of five class representatives, and the other four didn’t have a conflict of interest. But the four other original class representatives had opposed the settlement, whereupon they had been replaced by new named plaintiffs—selected by the conflicted lead class counsel.

As I said when the Hearing Board released its report

I suspect this will end in a disbarment.

The Illinois Supreme Court will have the final say. (Mike Frisch)

July 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Ambiguous Lips Reference No Conflict Of Interest But Attorney Nonetheless Disbarred

Misconduct in six client matters has resulted in the disbarment of an attorney admitted in 2007 by the Maryland Court of Appeals.

On May 30, 2007, this Court admitted Haley to the Bar of Maryland. Haley worked for various federal agencies. In 2010, Haley became a solo practitioner in Columbia, Maryland. Haley’s primary areas of practice included family law, criminal law, and labor law.

Before he performed any legal services, Haley received a flat fee from each of the six clients who ended up filing complaints against him with the Commission. In each case, without his client’s consent, Haley deposited the unearned fee into an operating account instead of an attorney trust account.

Haley’s professional relationship with each of the six clients followed a similar pattern. At the beginning of the representation, Haley communicated appropriately with the client. As the representation progressed, Haley became less responsive to the client’s inquiries. Haley’s final communications with the client usually involved an argument, during which Haley would exhibit hostility and blame the client for the breakdown of the attorney-client relationship.

One of the matters involved

In or about 2011, Haley met Kim Glaudé (“Glaudé”) through a dating website. Haley and Glaudé chatted online and met for dinner on one occasion; Haley and Glaudé planned, but ended up cancelling, a second date.

On February 8, 2012, Glaudé retained Haley to represent her in a matter concerning an Equal Employment Opportunity Commission (“EEOC”) complaint against her former employer. At that point, Glaudé and Haley had not communicated for approximately one year. Glaudé paid Haley a $4,500 flat fee. Without Glaudé’s consent, Haley deposited the fee into an operating account instead of an attorney trust account.

In March 2012, Haley and Glaudé met at Haley’s law office to discuss Glaudé’s case. Haley took Glaudé to a back room and kissed her. Glaudé immediately objected.

On March 23, 2012, Haley failed to appear at a conference with an EEOC investigator; Haley also failed to reschedule the conference.

On August 17, 2012, Glaudé telephoned Haley and left a voicemail to ask about her case’s status. Haley texted Glaudé to state: “I am sorry, I owe you some lips for that. [Yo]u decide where.”

In a letter dated October 18, 2012, Haley terminated the representation. Haley did not refund Glaudé any of the fee.

A footnote

At the hearing, neither Glaudé nor Haley elaborated on the meaning of Haley’s text message.

On these facts, the court rejected conflict of interest allegations

Here, we are not persuaded that clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.7(a) in representing Glaudé. Haley and Glaudé met through a dating website. Haley and Glaudé chatted online and went on one date; they planned, but ended up cancelling, a second date. Approximately one year later, Glaudé retained Haley. During a meeting, Haley kissed Glaudé; Glaudé objected. Later, Glaudé telephoned Haley and left a voicemail to ask about her case’s status. Haley texted Glaudé to state: “I am sorry, I owe you some lips for that. [Yo]u decide where.”

The record does not demonstrate by clear and convincing evidence that “there [wa]s a significant risk that the representation of [Glaudé] w[ould have] be[en] materially limited . . . by a personal interest of” Haley. MLRPC 1.7(a) (emphasis added). Although a lawyer’s personal relationship with a client may complicate an attorney-client relationship, we can identify no case in which this Court concluded that a lawyer’s merely social (as opposed to sexual) relationship with a client rose to the level of creating a significant risk that the representation would be materially limited by a personal interest of the lawyer.

The court concluded that the numerous violations in multiple matters warranted disbarment.

Video of the oral argument is linked here. (Mike Frisch

July 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Theft From Colon & Rectal Center

The Ohio Supreme Court has suspended a Grove City attorney as a result of a theft conviction.

WBNS - 10TV reported in 2013 on the charges

A woman is charged with grand theft for allegedly stealing from her employer.

Court documents stated that Angela M. Whitt is accused of stealing more than $10,000 from the Central Ohio Colon & Rectal Center between March 2011 and November 2012.

According to court records, Whitt used the Upper Arlington company's credit card to pay an orthopedic office, insurance and an electric bill, among other things.

Whitt served as the officer manager for the business.

(Mike Frisch)

July 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Witch Hunt Against Former Bar Employee

This disbarment of an attorney by a justice of the Massachusetts Supreme Judicial Court notes the nature of the allegations

bar counsel filed a petition for discipline against the respondent, asserting that, while acting as trustee and attorney-in-fact for his father, he had mishandled his father's funds, intentionally depriving his father and his father's estate of those funds for his own use.

There was an unusual claim of bias

After the board's recommendation was filed in the county court, the respondent filed a motion to show cause, 'alleging that the disciplinary proceeding itself was an "improper persecution" and a "witch hunt" based on "spurious and specious" lies and perjured testimony arising from the personal animosity of the respondent's sister, who filed the original complaint with bar counsel, knowingly and improperly introduced at the hearing by bar counsel. The respondent maintained also that the disciplinary proceeding was pursued in part due to bar counsel's personal bias and under a conflict of interest, in retaliation for a prior incident when the respondent and bar counsel both worked at the office of bar counsel in 1991.

The court

In addition, before me, as he did in hie motion to show cause, the respondent made various allegations concerning an improper motive of bar counsel in pursuing the investigation, based on an asserted bias from a previous employment relationship (what the respondent describes as a "personal vendetta" that resulted in a request that he resign from the office of bar counsel in 1991). As noted, I allowed bar counsel's motion to file a.response to this argument, made by the respondent for the first time in his show cause motion; that response included two affidavits, one from the then bar counsel, and one from the then director of the consumer and attorney assistance program. Both affiants assert that they have no knowledge of any complaint, problem, or friction between current assistant bar counsel and the respondent at the time of his employment there in the early 1990s, while he was a law student. The director of the consumer and attorney assistance program asserts that, at this point in time, she remembers only that the respondent had' worked briefly in that office and that he never mentioned any issue or concern relative to current assistant bar counsel; then bar counsel asserts that the respondent was asked to resign for reasons unrelated to assistant bar counsel. I decline the respondent's request that, due to bar counsel's purported personal animosity and bias, unsupported by anything in the record, the charges against him be dismissed and fines and sanctions be imposed against bar counsel.

The single justice found no mitigating and substantial aggravating factors. (Mike Frisch) 

July 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 23, 2015

Alligator Mouth And Hummingbird Ass

The Louisiana Attorney Disciplinary Board has recommended a year and a day suspension of an attorney for unauthorized practice while suspended.

Respondent became ineligible to practice law on September 10, 2010 for failing to pay annual Bar membership dues and disciplinary assessments. Respondent became further ineligible on June 7, 2011 for failing to satisfy his MCLE requirements, and on September 9, 2011 for failing to satisfy trust account registration requirements. Respondent remains ineligible to date.

He continued to represent a client in a succession matter.

When pressed by the client over delay, he responded

When Mr. Brogna requested another update on April 20, 2011, Respondent replied, "My assistant is catching me up. I am sorry I put you in this position but my alligator mouth over ran my hummingbird ass. I will have it done shortly or advise and I will help you obtain another full time attorney. Again I am truly sorry and embarrassed." Mr. Brogna ultimately corrected the affidavits himself and sent them to Respondent for review. On April 27, 2011, Respondent informed, "Scott, the affidavit meets the statutory requirements for Louisiana. I have already sent my address to the affiants to return same to me…”

The client complained to the bar and the prosecution proceeded from there. (Mike Frisch)

July 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

One Year For Structuring Bank Deposits To Avoid Reporting Requirements

An attorney has been suspended by the New York appellate Division for the Third Judicial Department for a federal conviction described by the New Jersey United States Attorney

Two lawyers with a Fairfield, N.J., law firm today admitted they structured $354,000 in client funds into their attorney accounts to avoid currency reporting requirements, U. S. Attorney Paul Fishman announced.

Goldie Sommer, 61, of Montville, and Edward Engelhart, 61, of Rockaway, attorneys with the firm of Sommer and Engelhart, pleaded guilty before U.S. Magistrate Judge Joseph A. Dickson in Newark federal court to conspiring to structure transactions to avoid reporting large amounts of currency. They had surrendered to IRS agents in Newark on Nov. 16, 2011.

According to documents filed in this case and statements made in court:

Between Aug. 13, 2010, and Sept. 22, 2010, Sommer and Engelhart made numerous deposits totaling $354,000 into their attorney trust account in large, even dollar amounts. None of these deposits were made in an amount greater than $10,000, the amount that would have triggered the filing of a currency transaction report (“CTR”) with the IRS.

The court imposed a one-year suspension as reciprocal discipline based on the same sanction in New Jersey.

In New York, disbarment is automatic where a federal felony conviction mirrors a state crime.

Where, as here, there is no such statute, the court retains the authority to impose a lesser sanction. (Mike Frisch)

July 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Facebook IPO Fraud Results In Consent Disbarment

The New Jersey Supreme Court accepted the consent disbarment of an attorney convicted of wire fraud.

Details from the United States Attorney's Office for the District of New Jersey

An Ocean County, New Jersey, attorney today admitted his role in a scheme that defrauded investors in connection with a Facebook IPO and several real estate deals, U.S. Attorney Paul J. Fishman announced.

Fred Todd, 61, of Lakewood, New Jersey, pleaded guilty before U.S. District Judge Joel A. Pisano in Trenton federal court to an information charging him with one count of conspiracy to commit wire fraud and one count of transacting in criminal proceeds.

According to documents filed in this case and statements made in court:

Todd is an attorney with offices in Seaside Heights, New Jersey, and Los Angeles, California. His two co-defendants, Eliyahu Weinstein, 39, of Lakewood, and Aaron Glucksman, 41, of Brooklyn, New York, have already pleaded guilty to charges related to their roles in the scheme.

Weinstein, already convicted and sentenced to 22 years in prison in a separate Ponzi scheme, pleaded guilty on Sept. 3, 2014, to three counts of an indictment pending against him: one count of conspiracy to commit wire fraud, one count of committing wire fraud while on pretrial release, and one count of money laundering. He is scheduled to be sentenced on those charges on Dec. 15, 2014.

Glucksman has also pleaded guilty and was sentenced by Judge Pisano on May 5, 2014, to 52 months in prison, three years of supervised release, and ordered him to forfeit $1.2 million. Judge Pisano ordered Glucksman’s sentence to run partially concurrently with a 36-month sentence recently imposed by U.S. District Judge Raymond J. Dearie of the Eastern District of New York in an unrelated case.

In February 2012, Todd and his conspirators offered a pair of investors (referred to in the information as the “Facebook victims”) the opportunity to purchase large blocks of Facebook shares prior to the company’s initial public offering, or IPO, in May 2012. The offer was particularly attractive because large blocks of the shares were extremely difficult to get and were expected to increase in value at the time of the IPO. Weinstein and his conspirators did not actually have access to the shares.

Based on misrepresentations by the conspirators, the Facebook victims wired millions of dollars between February and March of 2012 to an account Weinstein and a conspirator controlled. Weinstein and another conspirator provided investors with false documents showing companies owned by various conspirators held assets, which would secure the Facebook victims’ investment.

The conspirators did not use any of the Facebook victims’ money to purchase Facebook shares, instead misappropriating it for their own use.

Around the same time, Todd and his conspirators also persuaded victims to invest in the purported purchase of an apartment complex in Florida. They told the victims that Weinstein had the opportunity to purchase the notes on the condominiums at a discounted price and immediately flip it at a substantial profit. The victims wired money to complete the purchase, but Todd and his conspirators instead used the money for their own purposes.

The conspiracy count to which Todd pleaded guilty carries a maximum potential penalty of 20 years in prison; the transacting in criminal proceeds count carries a maximum potential penalty of 10 years in prison. Both are also punishable by a potential fine of $250,000 or twice the gross loss or gain from the scheme, whichever is greater.

U.S. Attorney Fishman credited special agents of the FBI, under the direction of Special Agent in Charge Aaron T. Ford in Newark, for the investigation leading to today’s guilty plea. He also thanked agents of IRS–Criminal Investigation, under the direction of Acting Special Agent in Charge Jonathan D. Larsen, for their role in the investigation.

(Mike Frisch)

July 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Excessive Fee And Dishonesty Draws Suspension

A one year suspension has been imposed by the New York Appellate Division for the Second Judicial Department

The respondent is a partner in the law firm of Cronin & Byczek, LLP (hereinafter the Firm), and is the partner in charge of the Firm's litigation practice. In or about early 2000, Jose Antonio Romero (hereinafter Romero), who was incarcerated at the Auburn Correctional Facility, contacted the respondent about bringing an action related to the death of his wife, Robin Denise Romero, who died sometime in 1999, shortly after giving birth to their child in a New York City hospital. Romero was serving an 18-year sentence of imprisonment following his conviction for manslaughter in the first degree.

Upon investigation, the Firm learned that Robin Denise Romero's mother, Redell Willis, had retained the law firm of Danker & Milstein, P.C. (hereinafter the Milstein Firm), to bring an action in the Supreme Court, New York County, on behalf of her daughter's estate, to recover damages for wrongful death (hereinafter the wrongful death action). On or about May 19, 2000, the Firm entered into a retainer agreement with Romero (hereinafter the retainer agreement), wherein it was agreed that the Firm would represent Romero's interests with respect to his rights as a distributee of his wife's estate. Pursuant to the retainer agreement, the Firm was entitled to receive one-third of any recovery it obtained on Romero's behalf.

In or about April 2003, the wrongful death action was settled for $1,350,000, and the settlement was approved by the Surrogate's Court, Bronx County, in a decree dated January 21, 2004 (hereinafter the Surrogate's decree). Pursuant to Surrogate's Court Procedure Act § 2222-a (hereinafter SCPA 2222-a), the Surrogate's decree directed that Romero's share of the settlement, which was $250,000, could not be distributed "until 30 days from the date of entry of [the] Decree." In accordance with SCPA 2222-a, on or about March 4, 2004, the Chief Clerk of the Surrogate's Court forwarded a copy of the Surrogate's decree to the New York State Crime Victims Board (hereinafter the CVB) via facsimile transmission.

On or about March 12, 2004, the Firm received a check from the Milstein Firm representing Romero's share of the settlement in the sum of $250,000 (hereinafter the settlement proceeds). At or about that time, the Firm deposited the $250,000 check into the Firm's escrow account at the First Bank of Long Island (hereinafter the escrow account). On March 16, 2004, the Firm reimbursed itself for disbursements in the amount of $172.92 by check #12531, and issued check #12532 to the Firm in the sum of $83,275.70 for its fees under the retainer agreement. After issuing these checks, $166,551.38 remained on deposit in the Firm's escrow account on behalf of Romero.

In April 2004, Eamonn Trainor, a senior attorney for the CVB, was contacted by a representative of the Firm and advised that the Firm was holding approximately $160,000 to $170,000 in settlement proceeds for Romero. After obtaining affidavits from Aida Quiles and Angela Gutierrez (hereinafter together the crime victims), Trainor contacted the Firm on April 27, 2004, to confirm that it was still holding the settlement proceeds, and to advise it that the CVB was getting an injunction to "start freezing that money." An associate at the Firm, Kari Caulfield, informed Trainor that the Firm was still in possession of approximately $160,000 to $170,000 of the settlement proceeds, and that the money would be held for an additional 21 days. Later that day, in a second call, Caulfield informed Trainor that the Firm had decided that the settlement proceeds would be released forthwith. Trainor then sent Caulfield a letter, by facsimile transmission, dated April 27, 2004, in which he noted that the Firm was required to provide written notice to the CVB prior to disbursing the settlement proceeds, and asked the Firm not to disburse any of the settlement proceeds to Romero in accordance with Executive Law § 632-a (hereinafter the Son of Sam law). That evening, at the Firm's weekly meeting of the litigation group, the Romero matter was discussed. The respondent, six of the Firm's other attorneys, and one paralegal attended the meeting. Romero was billed for five hours for each of the attendees.

The next day, by letter dated April 28, 2004, the Firm notified the CVB for the first time in writing of the Firm's receipt of the settlement proceeds. Also on that day, the respondent sent two attorneys from the Firm, James LeBow and Dominick Revellino, to the Auburn Correctional Facility to confer with Romero. At the conference, Romero signed a nondurable power of attorney and a retainer agreement (hereinafter the 2004 retainer agreement) with the Firm to represent him "regarding any and all motions, suits, actions, litigation and appeals to protect the corpus" of the settlement proceeds. Pursuant to the 2004 retainer agreement, the Firm was entitled to a $75,000 refundable deposit, and work would be billed at the rate of $350 per hour. Revellino did not discuss the terms of the 2004 retainer agreement with Romero before it was signed. Romero was billed 24 hours for this visit and conference, 12 hours for each attorney.

The funds were transferred after a Supreme Court order had restrained such a transfer.

The court sustained charges of dishonesty and excessive fees

As an experienced trial attorney and the partner in charge of the litigation practice for the Firm, the respondent was actively involved in directing the decisions made by the Firm in the communications with the CVB, the handling of the settlement proceeds, and in the Firm's affirmation in opposition to the CVB OTSC. The Special Referee properly determined that the timing of the events between April 27, 2004, and April 30, 2004, e.g., the telephone communications between the CVB and the Firm, the exchange of correspondence with the CVB, the five-hour Firm litigation meeting, the visit to Romero at the Auburn Correctional Center, the transfer of the settlement proceeds from the Firm's escrow account to the operating account, and the quick re-deposit of a portion of those funds into the escrow account, defies any claim that the respondent's actions and those of her litigation group were unrelated to the CVB. Rather, they evidence a concerted effort to circumvent the CVB TRO. Although the Firm had control of the settlement proceeds when it was served by the CVB with the OTSC, the affirmation in opposition submitted by the Firm in response to the CVB OTSC contained a false affirmation that the settlement proceeds had only been held until April 12, 2004, and had been released to Romero before the OTSC was served. It appears that the clear purpose of these misrepresentations was to defeat the OTSC, and to mislead the Supreme Court, Albany County, by failing to reveal that the Firm had transferred the settlement proceeds into another account on the day it was served with the TRO. Indeed, that court relied upon the Firm's misrepresentations in its denial of the application for a preliminarily injunction, as reflected in its decision and order dated September 15, 2004.

Concerning the fees charged to Romero, notwithstanding the respondent's claims that the petitioner failed to produce expert testimony, the Special Referee properly concluded that "it is clear from any standpoint that the fees . . . were excessive," in light of the Firm's billing in advance of being retained by Romero for the constitutional challenge to the Son of Sam law, and the total amount of fees charged Romero, which were virtually the entire settlement proceeds received by him.

Based on the evidence adduced, and the respondent's admissions, the Special Referee properly sustained the charges.

Sanction

In mitigation, the respondent asks this Court to consider the settlement of the contempt action and payment of $125,000 to the crime victims, the respondent's unblemished disciplinary history, including that she has not been the subject of any other disciplinary action in the nearly 11 years that have elapsed since the events that are the subject of this proceeding, as well as the evidence of her charitable endeavors, pro bono legal service, and good character. Nevertheless, the respondent has engaged in serious misconduct in her representation of Romero, involving, inter alia, dishonesty, fraud, deceit, and misrepresentation, which conduct is prejudicial to the administration of justice and adversely reflects on her fitness as a lawyer.

Under the totality of the circumstances, we find that the respondent's conduct warrants her suspension from the practice of law for a period of one year.

(Mike Frisch)

July 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Two Deaths, One Disbarment

The District of Columbia Court of Appeals has disbarred an attorney convicted of causing a deadly car crash while intoxicated.

Details here from NBC4

A once-prominent Tysons attorney is headed to prison for almost a decade after driving drunk and killing an Ashburn, Virginia, couple.

Mark Sgarlata, 53, pleaded guilty in August [2014]

Friday, after an emotional hearing, Sgarlata was sentenced to 20 years on each count of involuntary manslaughter with all but four years on each count suspended. He was given 12 months on the driving under the influence charge.

Sgarlata was driving his BMW Oct. 6, 2013, when he plowed into Ricky and Leia Wrenn, who were on their Harley Davidson motorcycle, just blocks from their Ashburn home.

 The Wrenns' son, Kyle, took the witness stand to provide a victim impact statement. He and several other Wrenn relatives urged the judge to deliver a sentence at the upper end of the 1-10 year range. They underscored the fact that Sgarlata had been arrested two years before for DUI, something they said should have served as a wake-up call.

"We can call it justice but at the end of the day my mom and dad are still gone," Kyle Wrenn said. "They were loved by so many people. Two individuals in the prime of their life were killed in an instant. It deserves the high end."

...Prosecutors also pushed for a longer sentence and they presented striking new evidence. They showed video taken from inside the squad car the night of the accident. It shows Sgarlata unable to stand on one foot or walk a straight line. His blood alcohol level was 0.23 at the scene of the accident on Ashburn Farm Parkway and 0.15 at the jail.

Prosecutors also played a recording of Sgarlata's conversation inside the police car as he was arrested. When the police car door is slammed shut, Sgarlata can be heard saying, "Oh my God, I'm dead. I messed up my life..." He later said to the officer, "My car is completely screwed up. What are they doing with that?" After that he asks, "Do you think those people are OK?"

It was the first time Wrenn family members had heard the post-accident conversation.

"It's appalling that the first thing you think about after killing two people is, How is my BMW?" said Kyle Wrenn. "That's just the selfishness of him."

But the packed courtroom was filled with many who went to support Sgarlata.

One of his closest friends and law partners, Chris Brasco, testified, telling the judge, "Mark is so much more than the tragic events of that evening. Mark is a wonderful man, giving and kind."

Sgarlata's ex-wife, Sandra Sgarlata, pleaded with the judge to give Sgarlata a work release sentence so he could see their teenage son.

"The burden he is carrying is unimaginable. That in and of itself is a lifetime sentence."

Just before the sentence was delivered, Sgarlata apologized to the victims' friends and family, telling the judge: "I made a terrible, terrible decision to drink and drive, but I'm not a terrible person."

While most of the Wrenns' family members hoped for an even longer sentence, Kyle Wrenn said one goal was accomplished.

"The number one thing was keeping Mark Sgarlata off the streets of northern Virginia," said Wrenn. "Keeping people like him from ever doing this to anyone again was my No. 1 priority."

Sgarlata has already begun serving his sentence. After he pleaded guilty in August, he turned himself in to the detention center.

The sanction was imposed as reciprocal discipline based on the revocation of his Virginia license. (Mike Frisch)

July 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 21, 2015

Disbarment, Not A Philosophical Debate

As we prepare for the fall semester of teaching ethics to law students, a useful reminder from the Utah Supreme Court

Intentionally misappropriating a client’s money is at or near the top of the list of things a lawyer should never do. But that is what Alvin Lundgren did when he took Janet Best’s money from his client trust account for his own purposes. Upon discovering the defalcation, Ms. Best reported Mr. Lundgren to the Utah State Bar Office of Professional Conduct (OPC).

Following an investigation, the OPC filed a complaint in district court against Mr. Lundgren. Based on his admitted misconduct, the district court granted the OPC’s motion for summary judgment and disbarred Mr. Lundgren. Mr. Lundgren timely appealed. We affirm his disbarment and state again that a Utah attorney who intentionally misappropriates client funds will be disbarred unless the attorney can show truly compelling mitigating circumstances.

The misappropriation involved funds withheld by the attorney to pay medical bills in a workers' compensation case.

The court 

Because intentional misappropriation of client funds is so deeply concerning and intolerable to our profession, an attorney who is guilty of it should be disbarred. The only exception to this rule occurs if an attorney can show “truly compelling mitigating circumstances.” In re Discipline of Ince, 957 P.2d 1233, 1237 (Utah 1998); Babilis, 951 P.2d at 217. We have never explicitly defined the phrase “truly compelling mitigating circumstances,” but we have said that the “mitigating factors must be significant,” Ince, 957 P.2d at 1237–38, and should be construed “relatively narrowly.” Grimes, 2012 UT 87, ¶ 40; see also Corey, 2012 UT 21, ¶ 37 n.17. Again, the standard for sanctioning such behavior is purposely strict in order to serve the public and the profession by maintaining the trust that is so critical to the attorney-client relationship...

The fact that no attorney in Utah to date has been able to show that he acted under truly compelling mitigating circumstances when he misappropriated client funds does not indicate that there is a problem with the standard, nor does it render the standard “illusory,” “vague,” or unenforceable. Nor do we agree with Mr. Lundgren that the standard is “worthless and of no material benefit.” To the contrary, we find our strict standard for imposing sanctions in cases of intentional misappropriation to be extremely explicit, worthy, and highly beneficial to the legal profession and the public.

And the mitigation was insufficiently compelling

It is true that Mr. Lundgren ultimately restored Ms. Best’s funds, but this factor is not mitigating where there is no evidence to show that remorse was his motivation for restoring the funds. Tellingly, Mr. Lundgren did not self-report his unethical conduct or restore the funds to Ms. Best until after she had lodged a complaint with the OPC. Thus, it seems likely that his restoration of the funds was merely an attempt to avoid punishment. Under rule 14-607(c)(1) of the Supreme Court Rules of Professional Practice, “compelled restitution” cannot be considered a mitigating factor.

And Mr. Lundgren misses the ethical point entirely when he attempts to minimize his misappropriation by asserting that it is “philosophically debatable if the client does not know of the removal of funds over which the client does not have control, whether there is actual injury.” It is not philosophically debatable whether stealing money is okay so long as the victim never finds out.

Utah attorneys be forewarned

Today we reaffirm that the sanction for intentional misappropriation of client funds is disbarment unless an attorney can show truly compelling mitigating circumstances. Mr. Lundgren intentionally misappropriated client funds and failed to show any truly compelling mitigation. We therefore affirm the district court’s order of disbarment.

The District of Columbia Court of Appeals has a similar approach to intentional misappropriation cases.

The D.C. court has a line of cases that treat recovery from substance abuse as a factor that justifies a lesser sanction than disbarment, The seminal Kersey case is one that I handled.

Outside of that line of cases, there is one where the court found truly compelling mitigation. I called that case (where I think some skewed fact finding drove the result) the Altruistic Theft. (Mike Frisch)

July 21, 2015 in Bar Discipline & Process | Permalink | Comments (2)

Stolen Refund Proceeds Draws Disbarment

Disbarment has been ordered by the Indiana Supreme Court of an attorney previously suspended for failure to cooperate

In January 2005, “Clients” retained Respondent to represent them in their Chapter 13 bankruptcy. In December 2010, the bankruptcy trustee issued a refund check for $8,725.35, payable to Clients. For almost two and one-half years, Respondent did not disclose the existence of this check to Clients. Instead, Respondent fraudulently endorsed and deposited the check into an account that was not his attorney trust account, and thereafter used the proceeds for his own personal purposes. When the trustee’s final report (issued in June 2013) revealed the issuance of the refund check, Clients confronted Respondent, and Respondent promised to repay the amount to Clients. Respondent later issued a check in the amount of $8,725.35, drawn on an account other than his attorney trust account, but Clients were unable to negotiate the check due to insufficient funds in the account. When Clients later retained successor counsel, Respondent refused to return Clients’ file.

Sanction

In recommending disbarment, the hearing officer cited Respondent’s conversion of client funds and the absence of any compelling mitigation. See American Bar Association’s Standards for Imposing Lawyer Sanctions 4.11 (“Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client”). We agree. “Misappropriation of client funds is a grave transgression. It demonstrates a conscious desire to accomplish an unlawful act, denotes a lack of virtually all personal characteristics we deem important to law practice, threatens to bring significant misfortune on the unsuspecting client and severely impugns the integrity of the profession.” Matter of Hill, 655 N.E.2d 343, 345 (Ind. 1995).

The attorney had disciplined on two prior occasions cited in the court 's opinion

Matter of Ouellette, 636 N.E.2d 1251 (Ind. 1994) (Respondent suspended for knowingly making false statements of material fact to a tribunal and failing to disclose such facts when disclosure was necessary); Matter of Ouellette, 857 N.E.2d 377 (Ind. 2006) (Respondent suspended for failing to act with reasonable diligence in representing a client, failing to keep the client adequately informed, and failing to timely respond to the Commission’s investigation)

(Mike Frisch)

July 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Not Kissing Cousins

An attorney who represented his deceased second cousin's son as personal representative of her estate was suspended for six months and a day for switching sides and bringing claims against the estate on behalf of the cousin's brother.

After June’s death, [brother] Paul renewed his claims and the respondent participated, as [son] Richard’s lawyer, in one or more discussions among the family members of Paul’s claims. On August 8, 2007, the respondent filed a notice of withdrawal of his appearance for Richard in the estate. 

Despite his prior representation of Richard, on November 9, 2007, the respondent filed a civil complaint in the superior court on behalf of Paul against Richard in Richard’s capacity as administrator of the estate. The complaint alleged a breach of contract based upon Paul’s claim that had Richard failed to perform an agreement to reimburse Paul a sum certain from June’s estate. This complaint was the same or substantially related to matters in which the respondent had previously represented Richard.

At no time did Richard consent to the respondent’s representation of Paul in commencing the litigation against him in his capacity as administrator of the estate. In fact, Richard and his brother and sister, through counsel, protested in writing to the respondent his advancing any of Paul’s claims for reimbursement by any “intervention” in the estate matters.

Not only that - the claims were deemed frivolous

On June 1, 2009, Richard filed a motion for attorneys’ fees in the superior court action. On September 28, 2010, the superior court found that the respondent had willfully violated Mass. R. Civ. P. 11(a) and acted in bad faith in commencing and pursuing meritless claims against June’s estate. The court further found that the respondent’s actions were a clear violation of Mass. R. Prof. C. 1.9(a). The court awarded sanctions against the respondent in the amount of $40,000.00 in attorney fees and $2,382.58 in costs. Undaunted, on October 27, 2010, the respondent filed a notice of appeal to the Appeals Court. The appeal was not perfected and in April, 2011, the superior court dismissed the appeal. On the same date, the respondent filed a notice of appeal concerning the dismissal of his appeal.

On June 2, 2011, the superior court granted an attachment on certain of the respondent’s real estate in the amount of $45,000.00.

He also failed to cooperate in the bar investigation. (Mike Frisch)

July 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Lying Then Or Lying Now?

An attorney who was initially admitted to practice in 1968 and never been disciplined in the past was censured by the New Jersey Supreme Court.

He engaged in a conflict of interest in a foreclosure matter and exacerbated the ethical problem by obstructive behavior in the ensuing malpractice litigation

this record demonstrates respondent’s pattern of false statements and half-truths. On multiple occasions during discovery, including in his answer to an interrogatory and during his testimony respondent misled [counsel] Hoberman. at his deposition, under oath, He first indicated that the name of his carrier was "unknown" to him. Then he testified that the name of the carrier began with an "A" and that he "probably" had notified his carrier of the malpractice claim. As to the latter statement, respondent told the DEC that he had made a conscious decision not to give notice of the suit to his carrier, because he considered it to be frivolous and he did not want his insurance premiums to increase. Also, at his deposition, he testified that he had represented DeFilippi at the closing, only to tell the DEC that his testimony had been untrue and that it had been prompted by his irritation at Hoberman’s repeated  questions about that topic. This conflicting statement demonstrates that respondent either lied at the deposition or lied to the DEC.

On the plus side

A significant mitigating factor here is respondent’s spotless disciplinary record in New York, where he was admitted forty-six years ago, and in New Jersey, where he was admitted twenty-six years ago, strongly suggesting that his conduct in this matter was aberrational or out-of-character.

The orders are linked here. (Mike Frisch)

July 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 20, 2015

"That's The Culture:" Ticket Fixing In New Jersey

A judge who fixed tickets for a fellow judge and his family was suspended for a year (retroactive) by the New Jersey Supreme Court.

Respondent was a municipal court judge in Jersey City until 2007. Sison was also a municipal court judge at the time.

On October 24, 2007, the New Jersey Office of the Attorney General (AG) notified the OAE of charges filed against respondent for "ticket-fixing" and later provided the OAE with a copy of the complaint, charging her with the second-degree crime of Official Misconduct, N.J.S.A. 2C:30-2(a).

On August 28, 2009, respondent was admitted into the PreTrial Intervention (PTI) program, which she successfully completed.

Count one of the complaint alleged that Sison presented respondent with three motor vehicle tickets "for adjudication." The tickets had been issued to him and to members of his family. Respondent did not adjudicate the Instead, she imposed judgment tickets on the record. without the defendants’ appearances or pleas and without considering their guilt or innocence. She either found the defendants guilty or dismissed their matters.

For Sison’s ticket for parking during street cleaning, respondent assessed $20 in court costs and waived the $42 fine.She conceded, during the AG’s investigation, that "there probably was no legitimate reason to waive the fine; that’s the culture."

A second ticket charged Sison or his wife with the same offense, for which respondent assessed $I0 in court costs and waived the $42 fine.

A third ticket, issued to Karl Sison, charged him with a moving violation for failure to observe a traffic control device, a two-point violation. Respondent amended the ticket to delaying traffic, a no-point violation, and imposed a $25 fine and $25 court costs. She advised Sison of the amended charge and fines.

Although Karl Sison had been standing in the hallway, while respondent adjudicated his ticket, she did not elicit a factual basis for the amended charge and did not give the municipal prosecutor or charging officer an opportunity to be heard about the charges. Respondent knew that her actions were not authorize.

The judge questioned the proceedings

By letter to Sweeney, dated October i, 2014, respondent, among other things, accused Disciplinary Review Board Member Gallipoli of "Javert-like madness," in ensuring her prosecution, and questioned why charges against Sison had not been pursued.

The report of the Disciplinary Review Board and the court order may be found here. (Mike Frisch)

July 20, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Therapy Did Not Work; Attorney Suspended

An attorney was suspended for 60 days by the Indiana Supreme Court

On or about March 7, 2011, Respondent and his now ex-wife had a confrontation at the conclusion of a therapy appointment for their minor child. Respondent was convicted after a bench trial of Domestic Battery, a Class A misdemeanor, on May 26, 2011. Respondent failed to report his conviction within 10 days to the Commission. Respondent’s conviction was affirmed by the Court of Appeals. Adewopo v. State, No. 41A05-1107-CR-380 (Ind. Ct. App. Feb. 13, 2012). The parties point to facts recited in that opinion indicating that Respondent pulled or pushed his now ex-wife to the ground, knocked her to the ground a second time, and then kicked her while she was on the ground.

He had no prior discipline and completed his criminal probation. (Mike Frisch)

July 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Kicking Back To Disbarment

An attorney's motion for consent to disbarment has been submitted to the Illinois Supreme Court.

A criminal conviction preceded the motion

On September 10, 2014, Movant was charged in a two-count Information with violating Title 18, U.S. Code, sec. 666(a)(2), Scheme to Commit Bribery/Theft From Programs Receiving Federal Funds (Count I) and violating Title 26, U.S. Code, sec. 7206(1), Filing a False Tax Return (Count II).

In Count I, the government alleged that beginning in 2006, Movant became a paid consultant to various entities that received federal grant and contract funds from the Illinois Department of Public Health ("IDPH"). Between 2006 and 2010, Movant received more than one million dollars in fees from grant and contract funds disbursed by the IDPH. As a condition of receiving the grant and contract funds, Movant agreed to kick back a portion of the funds to Quinshaunta Golden ("Golden"), then Chief of Staff for IDPH. The kickbacks to Golden totaled approximately $433,000.

In Count II, the government alleged that during the years 2006 through 2009, Movant knowingly and willfully filed false and fraudulent tax returns by failing to report her true income of $908,266.42, and by failing to pay $172,825 in federal taxes.

On September 23, 2014, Movant pled guilty to the offenses charged in Counts I and II of the Information described above.

On June 15, 2015, the Honorable Sue E. Myerscough accepted Movant’s guilty plea and entered judgment on the offenses enumerated in of Counts I and II of the Information.

Judge Myerscough sentenced Movant to 25 months imprisonment on each count, with the sentences to run concurrently, fined Movant $200 and ordered her to pay restitution to the Illinois Department of Public Health in the amount of $1,000,000 and restitution to the Internal Revenue Service in the amount of $172,825.

The Quincey Journal reported on the plea.

A former human resources director for the Illinois Department of Public Health, Roxanne Jackson, waived indictment and pled guilty today to an information that charges her with participating in a bribery and kickback scheme related to state grants and contracts and filing false income tax returns. The information was filed by the U.S. Attorney’s Office for the Central District of Illinois...

During today’s court hearing, Jackson admitted that from 2006 to 2010, she received more than $1,000,000 in grant funds originally awarded and disbursed to three Chicago not-for-profit organizations and in contract funds to a business identified as Security Firm A. As part of the scheme, at Golden’s direction, Jackson was hired as a paid consultant for the three not-for-profit entities and Security Firm A.   

From 2004 to 2010, IDPH awarded more than 30 non-competitive grants totaling more than $11 million to three not-for-profit organizations: Broadcast Ministers Alliance, Access Wellness and Racial Equity, and the Medical Health Association. The grants were for programs relating to breast, cervical and prostate cancer, HIV/AIDS, and emergency preparedness. From 2006 through 2010, Security Firm A was paid more than $2 million in contract funds to conduct background checks and interviews of Illinois nursing home residents related to the Identified Offender Program.

Jackson admitted that as a condition to receive grant funds, she was required to pay Golden one-half of whatever she received, less any funds to be withheld for payment of taxes, which were never paid. Jackson admitted that from about July 2007 to April 2008, she made cash withdrawals of grant funds from her bank accounts and made cash payments to Golden ranging from $5,000 to as much as $70,000. 

In agreement with Golden, Jackson further admitted that she was required to pay Golden kickbacks for each background investigation performed by Security Firm A. The payments ranged from $35 to $40 per investigation performed. From 2006 to 2009, Jackson received approximately $485,000 in funds from Security Firm A’s contracts with IDPH, and during 2007 and 2008, made kickback payments to Golden of approximately $109,500 in contract funds. 

As a result of the scheme, from about July 2007 and continuing to approximately October 2008, Jackson admitted she repeatedly made kickback payments to Golden of grant and contract funds for a total of approximately $433,000.  

As to Jackson’s filing false income tax returns for tax years 2006, 2007, 2008, and 2009, Jackson admitted she caused the filing of false and fraudulent federal income tax returns by failing to report a total of $908,266 in income, resulting in failure to pay $172,825 in taxes due.

(Mike Frisch) 

July 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Suspended; Failed To Resurface

An attorney who had been disbarred in 1993 was reinstated to practice in 2013 with conditions.

after a reinstatement hearing before a hearing panel of the board, the SJC ordered that the respondent be reinstated to the practice of law subject to conditions as enumerated in the report. The first condition required the respondent to enter into a written mentoring agreement with another named attorney for a term of two years on terms satisfactory to bar counsel. Another condition required the respondent to submit to a psychological evaluation from Lawyers Concerned for Lawyers (LCL), but did not set forth a time for compliance.

It did not go as hoped.

bar counsel filed a motion for reconsideration with the SJC asking that the SJC reconsider, and then deny or revoke, the respondent’s reinstatement immediately. The matter was heard before the single justice on April 1, 2014. The respondent did not appear, but his previous counsel appeared and was given leave to speak to assist the Court. Counsel asked the Court to give the respondent time to resurface. The respondent did not resurface and on July 23, 2014, the SJC entered an order temporarily suspending the respondent pending further proceedings before the board. The respondent was ordered, among other matters, to file compliance forms and to contact bar counsel on or before October 1, 2014. The respondent failed to comply with the order of temporary suspension, had not contacted bar counsel, had not filed compliance forms and is still of parts unknown.

As a result, the Massachusetts Supreme Judicial Court imposed a suspension of six months and a day.

July 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 17, 2015

"Troubling Quixotry" Gets Lawyer Suspended: Don Quixote In Colorado

A Colorado attorney was suspended for six months for his advice to a client

Beecher advised his client, a criminal defendant, not to attend a pretrial conference when he discovered that her ex-husband, whom he believed was dangerous and violent, would be attending the conference. Disregarding all available information to the contrary, Beecher assured his client that he would obtain a continuance and informed her that she need not appear. Although he failed to obtain a continuance, Beecher refused to attend the pretrial conference himself. As a result, a bench warrant issued for his client’s arrest. Beecher then delayed taking appropriate action to quash the warrant or resolve the situation, and he failed to secure his client’s appearance at a subsequent hearing.

The client had been charged with the theft of a laptop as an act of domestic violence. The attorney sought to persuade the prosecutor that the charges were groundless.

He sent an email making those arguments and

The day after this email correspondence, a gunman crept into a crowded movie theater in Aurora, Colorado, set off gas canisters, and then mowed the audience down in a mass shooting, killing many people and injuring countless others. Family friends of Respondent’s were killed. The lone suspect, James Holmes, was arrested at the scene. In the aftermath of the tragedy, Respondent spent time reading about James Holmes. He also reviewed Quispe’s divorce and medical records. Respondent testified that, like Holmes, there were “warning signs” relating to Julian; according to Respondent, Quispe’s records suggested that Julian was a dangerous man who had seriously injured Quispe in the past and who continued to pose a substantial threat to her safety.

The conduct occurred when the attorney and prosecutor clashed over the appearance of the "victim" of the alleged crime. Things got quite intense and involved court personnel.

The offending advice followed.

 More critically, Respondent failed to appreciate the distinction between stipulating to a continuance of the pretrial conference and waiving the appearance of a defendant on bond. Judge Bencze explained that even if the parties had agreed to a continuance, he would have required Quispe to appear so that he could order her to attend the next bond  returnable court date. And, as [prosecutor] Coyne testified, even though she promised not to oppose a continuance, she did not have the authority to grant the continuance or excuse Quispe’s appearance, which only the court could do. In fact, Coyne discussed this with Respondent in one of their email exchanges prior to the 1:30 p.m. docket—written before Quispe failed to appear—when Coyne made clear that although she would not oppose the motion to continue, Quispe still remained under court order to be present. To advise Quispe not to appear, and then to refuse to reevaluate this advice in the face of Coyne’s warning, was to provide Quispe deficient counsel concerning court procedures and rules.

We cannot endorse Respondent’s contention that his behavior was justified in order to keep Julian away from Quispe and thus to avoid violence. As the People observe, even a “noble motive does not warrant departure from the Rules of Professional Conduct.”But as a practical matter, Respondent need not have resorted to his chosen course of action: a panoply of options existed to ensure Quispe’s safety during the pretrial conference, yet Respondent neglected to pursue any of them. He neither accepted Coyne’s offer of courthouse security, nor specifically inquired of [judicial assistant] Wilson whether Judge Bencze could provide assistance, nor arranged for a private security detail, as he later did on August 2. Any of these remedies would have been very easy to execute, and the consequence for not doing so was extremely predictable. Although Respondent may have feared for Quispe’s safety, he appears to have been blinded by that concern, which interfered with his capacity to problem-solve and exercise good judgment.

The attorney was found to have engaged in incompetent representation and conduct prejudicial to the administration of justice but not to have counseled a client to engage in criminal conduct.

He had prior discipline for an "intimate, albeit non-sexual" relationship with a client that caused a conflict of interest.

Sanction

In this case, Respondent’s misconduct stemmed from his concern for Quispe’s safety, was of relatively short duration, caused Quispe no actual harm, and was remedied without difficulty when Respondent and Quispe finally appeared in court. But unlike the negligent conduct in Moskowitz, Respondent knowingly refused to appear at the pretrial conference, even though he easily could have done so. Further, like the lawyer in Davies, Respondent refused to acknowledge his misconduct and has a prior disciplinary history that includes a ninety-day suspension. As in Bauder, Huntzinger, and Roose, Respondent prejudiced the administration of justice by refusing to comply with explicit court orders—conduct that was compounded by the presence of several aggravating factors. Respondent’s behavior might be most akin to the misconduct described in Aron, where the lawyer failed to notify his client of the potential repercussions of his advice but acted without a dishonest or selfish motive. In contrast with that case, the harm here is minimal but, unlike that lawyer, Respondent knowingly prejudiced the administration of justice and has a serious prior disciplinary history.

Taking into consideration the nature of Respondent’s conduct, the one mitigating and three aggravating factors, and the relevant case law, we conclude Respondent should be suspended for six months, with the requirement that he petition for reinstatement. In so doing, we recognize that the lawyering tasks involved in Quispe’s case were neither complex nor unusual and that the rule violations at issue are relatively minor when measured by the injury they caused. Nevertheless, we impose this sanction to reflect Respondent’s ineptitude in Quispe’s misdemeanor matter, which he mishandled so as not only to expose Quispe to possible arrest, but also to offend Judge Bencze, his staff, and Coyne—all to no purpose.

In imposing this sanction, we are most swayed by Respondent’s prior disciplinary case, which, while it does not concern parallel rule violations to those at issue here, reflects a similar and troubling quixotry. In both this case and his earlier disciplinary matter, Respondent jettisoned his good judgment, fueled by what seem to be protective impulses toward his female clients. Rather than relying on his legal training to help resolve his clients’ issues, in both cases he abandoned his role as an officer of the court and legal counselor and instead reacted as a combatant, without due regard for the consequences. Further, although we do not rely on them to find rule violations, Respondent’s rash, emotional outbursts while communicating with Coyne and Wilson, as described in this opinion, illustrate our concern with what seems to be an emerging pattern: during the course of representing clients, Respondent has twice been blinded by his emotions in the heat of the moment. In this matter, Respondent’s hair-trigger reaction escalated what should have been a simple matter, culminating in a series of bizarre verbal exchanges with Wilson that left her visibly frightened. He also reflexively reported Coyne to the disciplinary authorities based on his self-described incorrect assumptions.

Such impetuous, irrational behavior, coupled with similar conduct in Respondent’s first disciplinary case, leads us to conclude that he should serve a meaningful suspension, followed by a process of petitioning for reinstatement. To impose a suspension shorter than his prior sanction—a served suspension of ninety days—would trivialize his misconduct and send the wrong message that similar future offenses, even those amplified by other significant aggravators, might not be met with mounting discipline. Requiring Respondent to petition for reinstatement recognizes the worrisome nature of his developing pattern and encourages him to explore, prior to resuming his law practice, how best to control his passions and make reasoned, logical decisions in the face of emotion, stress, and time pressure. For this reason, as a condition of his reinstatement we require Respondent to undergo an independent mental health evaluation and to initiate such treatment as recommended by the evaluator.

Reinstatement is not automatic after the six months. (Mike Frisch)

July 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 16, 2015

Targeted Lies Draw Informal Admonition

The District of Columbia Office of Bar Counsel ("OBC") has informally admonished an attorney for dishonesty

This matter was docketed for investigation based upon the ethical complaint filed against you by your former employer, C.C.F, Esquire (Ms. F). Based upon our investigation of this matter, we find that your conduct violates of Rule 8.4(c) of the District of Columbia Rules of Professional Conduct (the "Rules"). Ms. F hired you in October 2010 as a paralegal in her solo elder law practice.

You passed the District of Columbia Bar examination in October 2011, and Ms. F hired you as a Staff Attorney.

In December 2010, Ms. F was appointed the guardian and conservator for VFE ("Ms. E"). As the guardian/conservator, Ms. F was responsible for, inter alia, handling Ms. E" s financial affairs. Ms. E lived at her home with her adult son, VFE ("V"), and her grandson.

In or about November 2011, Ms. F requested that you purchase clothing and shoes for Ms. E. Thereafter, you purchased clothing and shoes at a Target Department Store ("Target") on behalf of Ms. E, totaling $287.12. Ms. F delivered the items to Ms. E on or about November 14, 2011. Thereafter, V returned four illfitting items of clothing and a pair of shoes. Ms. F asked you to return those items to Target.

In the spring of 2013, V accused Ms. F of theft, alleging that she had not delivered $287 .22 of clothing to Ms. E.  Ms. F sent V a copy of the receipts for the items. Thereafter, V requested that Ms. F provide him with a copy of the receipt for the returned items. Ms. F then asked you about the matter, and you told her that you had forgotten to return the items in November 2011, which were still in a bag in a filing cabinet drawer. Ms. F then asked you to return the items.

Thereafter, you falsely reported to Ms. F that you had returned the items. In fact, because the purchase had taken place two years earlier, Target would not accept the untimely return of the items. Consequently, you purchased a gift card in the amount of the previously purchased items. You gave Ms. F the gift card, with a value in an amount equal to the previously purchased items. Because V had requested the receipt for the allegedly returned items, Ms. F again asked you to contact Target and to obtain a receipt. In response, you falsely told Ms. F that you had contacted Target, but that it could not generate a new receipt. Ms. F repeated your false version of events to V.

In or about August 2014, V filed with the court a petition to remove Ms. F as the guardian/conservator for Ms. E. Among other things, V alleged that Ms. F had failed to provide him a receipt for the return of the previously purchased items. On August 19, 2013, Ms. F filed with the court a response to V's petition. Based upon your version of events, Ms. F represented to the court that "[t]hose five items were returned for a gift card in the amount of the items."

In light of V's continuing pressure for, inter alia, a copy of the receipt, Ms. F called Target in an attempt to get a receipt for the allegedly returned items.

In response to her inquiry, Target researched the issue and advised her that there had been no return of the previously purchased items, and that the gift card had been purchased rather than exchanged for the previously purchased items.

Ms. F confronted you about her communications with Target, and you immediately acknowledged to her that you had not returned the clothes. Instead, you told her, that you had purchased the gift card with your own funds and that you had donated the previously purchased clothing to a charity. In a subsequent pleading filed with the court, Ms. F disclosed your false statements regarding the true disposition of the allegedly returned items.

OBC concluded

In this matter, you falsely reported to Ms. F that you had returned to Target the previously purchased items that V had rejected. You also falsely reported to Ms. F that you had lost the receipt for the returned items and that Target could not reproduce the receipt. Such false statements were dishonest.

(Mike Frisch)

July 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)