Friday, November 25, 2016

Suspension For Domestic Violence

An act of domestic violence that took place in 2008 and was promptly reported to disciplinary authorities has led to a three-month suspension by the New Jersey Supreme Court.

The story is told in the report and recommendation of the Disciplinary Review Board, noting an earlier sanction

Respondent was admitted to the New Jersey bar in 1990. He maintains a law office in Union Township, New Jersey. In 2007, respondent, a former municipal court judge, was censured as a result of charges brought against him by the Advisory Committee on Judicial Conduct (ACJC) for committing an act of domestic violence and causing a motor vehicle accident while driving in an intoxicated condition. In re Paraqano, 189 N.J. 208 (2007)

The matter at issue involved another act of domestic violence

On September 2, 2008, a Morris County grand jury returned an indictment against respondent, charging him with second degree aggravated assault and third degree aggravated assault, in violation of N.J.S.A. 2C:12-ib(i) and (7). Thereafter, on September 29, 2009, before the Honorable John B. Dangler, J.S.C., respondent entered a guilty plea to the amended offense of simple assault, a disorderly persons offense.

During his plea allocution, respondent admitted that, on December 4, 2007, he had an argument with his then wife, D.P., which resulted in his "recklessly" pushing and having physical contact with her, from which she suffered a bruise on her knee.

Why did it take so long to impose a sanction?

Respondent..argued that the passage of time between the incident and the OAE’s prosecution of the case warranted dismissal or, in the alternative, punishment less than a suspension. Respondent pointed out that, in 2008, he had made the [Office of Attorney Ethics]  aware of the criminal charges pending against him and that, in 2009, he had informed the OAE of the disposition of the case. Finally, in 2010, the OAE had been made aware of the disposition of the appeal...

Respondent argued that the OAE had waited a full six years to initiate disciplinary proceedings against him. During that time, he acquired a mortgage and invested in his legal practice, believing that, with the passage of time, he was free to move on with his life. He asserted that a suspension at this point could cause him to lose his home and would have a devastating impact on his law practice and, therefore, his ability to earn a living.

The DRB's rejected the delay as a reason to forego suspension

Although respondent makes a compelling argument about the passage of time, his reliance on In re Verdiramo, supra, 96 N.J. 183, is somewhat misplaced. Verdiramo, who pled guilty to obstruction of justice by influencing a witness, was before the Court on events that occurred more than eight years earlier. The Court remarked that the public interest in proper and prompt discipline was "necessarily and irretrievably diluted by the passage of time" and that disbarment would have been more vindictive than just. Under the "special circumstances" of the case, (Verdiramo already had been temporarily suspended for approximately seven years, an amount of time that greatly exceeded the maximum period of suspension reserved for the most serious offenses that do not warrant disbarment) the Court did not impose additional discipline. Unlike Verdiramo, respondent has not yet suffered any disciplinary consequences from his guilty plea.

Here, respondent incorrectly and improperly assumed that no disciplinary action would result because of the passage of time following his criminal acts. From his faulty assumption, he maintained that, if he is suspended, he will suffer dire financial consequences (inability to pay his mortgage and loss of the investment in his law practice). We note that many attorneys who are suspended from the practice of law face similar adverse financial consequences. Although the OAE’s filing of this motion was not timely, respondent received no assurances that he would not be held accountable for his conduct. Thus, we do not factor in our determination of discipline respondent’s erroneous assumption that no disciplinary proceedings would be filed...

We have weighed the other mitigating (Court ordered community service, glowing character references, participation in anger management) and aggravating factors (the nature of respondent’s misconduct in this matter, as well as his disciplinary history for similar conduct, and his misrepresentation to us regarding his alleged reliance on the OAE’s delay in seeking discipline in the purchase of his home). We also have considered that, in contrast to Jacoby (II), respondent was not incarcerated for a felony and that a significant amount of time, indeed, has passed since respondent’s misconduct.

Under the totality of the circumstances, we determine that a three-month suspension is warranted.

When it takes eight years to process a criminal conviction, perhaps it would be useful to acknowledge a failure of self-regulation even if it does not significantly impact on the ultimate sanction. (Mike Frisch)

November 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 24, 2016

The Passing Of A Truly Great Man

The District of Columbia legal ethics community has lost one of its few giants with the passing of my beloved mentor and friend Len Becker.

I first met Len when he was appointed  as Bar Counsel in late 1991. He came from a distinguished career at Arnold & Porter after clerking for Judge Edward Weinfeld and Associate Justice Potter Stewart. 

When we learned of his appointment, those of us at Bar Counsel were quite concerned about having a boss with the intellectual firepower that Len brought and with good reason. He demanded excellence and would settle for nothing less. When my work did not meet his exacting standards it was always rejected with the same comment

This disposition is not ready for prime time.

He was the most incisive and hard-working lawyer I have ever known.

He was a man of rigorous honesty and integrity.

He left the Bar Counsel job in deep frustration with a system that did not want or seek quality lawyering in the prosecution of wayward attorneys.

No other person had the lasting professional impact on me of Len. He made me a better thinker, better writer and better lawyer. He led by his example of hard work and dedication to excellence.

From my tribute last July 

He made the lawyers who cared to learn better lawyers themselves. He dramatically improved the quality of my own writing, a hard task since I thought I already knew it all. 

Of utmost importance, he was willing and able to take on the Board on Professional Responsibility when the need arose.

And he left (this is my opinion) because of the intractable problems that bar politics injected (and continues to inject) into the D.C. system. 

His seven years represent the high point of the Office of Bar Counsel in terms of the quality of the work done and the professionalism of the office.

My own debt to him will never be repaid. 

One of his first acts as Bar Counsel was to hire Julia Porter as an Assistant Bar Counsel. For that hire alone I would be eternally grateful.

If a person is judged by their personal integrity and positive impact on others, Len lived a righteous life and has more than earned his eternal rest. 

Thank you and God's speed. 

With love, gratitude and respect,

Mike Frisch

November 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Investigative Reporting Leads To Bar Charges

A State Bar investigation that was triggered by a July 2012 article in the Phoenix New Times by Paul Rubin led to ethics charges against two attorneys who represent death penalty defendants. 

A hearing panel ordered that charges of billing misconduct against one of the two be dismissed for insufficient evidence.

The panel did not explain its reasoning.

The dismissal does not address the allegations against the other attorney.

The charges against the other attorney involve allegations of billing dishonesty but also allege that he violated client confidentiality in his descriptions of service in documents subject to FOIA disclosure.

The Phoenix New Times

Bills submitted to public agencies are public record, but Carr oddly chose a stream-of-consciousness approach in many invoices, even when referring to his own death-penalty-eligible clients.

A small sampling involving client Naranjo

This is the worst one, but this client in the craziest one that I have.

Looking at new video of our client from the past. He looks like a killer, not a retard.

had to listen to the confession [tape] - not good.

Jury will hate us.

From the Phoenix New Times story

Nate Carr remains the king of Maricopa County's contract criminal-defense attorneys when it comes to collecting money, even though he hasn't been assigned a new capital case since 2009.

As of June 21, according to a county spreadsheet, Carr had been paid $2.4 million since the start of 2006 for representing accused murderers.

That amounts to about $370,000 per year, a sum that compares favorably to the $123,000 that County Attorney Bill Montgomery earns yearly, the $100,000 that deputy county attorney Eric Basta (chief prosecutor in Naranjo) makes, and the $145,000 that Judge Roland Steinle (who presided at Naranjo's trial) is paid.

Jim Logan of the Office of Public Defender Services makes $164,000 a year...

[Client] Naranjo was facing death row in the March 2007 stabbing death in Phoenix of his pregnant 38-year-old girlfriend, Delia Rivera. Evidence of his guilt included the victim's three children as eyewitnesses and a confession. Carr and his defense team had to try to persuade jurors to spare their client's life after they inevitably convicted him of murder...

The Naranjo billings reveal that the pair billed for dozens of "team meetings" with Taylor Fox — 58 in Johnson's case and 38 in Carr's — that [co-counsel] Fox never submitted invoices for and says he never attended.

"If I attended a team meeting, I would have wanted to get paid for it," Fox said. "If I wasn't there, I wasn't there, and I wouldn't say I was. I don't over-bill or under-bill."

It gets worse.

A review of more than 64 invoices submitted separately for payment by Fox and Carr for work they allegedly did complete together (these so-called "team meetings," court hearings and one-on-one discussions) reveals this:

On average, Nate Carr billed almost three times more hours than co-counsel Fox for identical services supposedly rendered.

The big picture background

Maricopa County's lucrative criminal-defense niche began to explode in 2005, within months after Andrew Thomas became county attorney.

Death-penalty filings increased exponentially during Thomas' controversial reign, which ended when he resigned in 2010 to unsuccessfully run for Arizona attorney general.

By 2008, Maricopa County had become the nation's unofficial capital-punishment capital, with about 150 death-penalty cases pending — up by two-thirds from three years earlier. It didn't help that the landmark U.S. Supreme Court ruling in Ring v. Arizona mandated retrials for several convicted murderers (now they would be sentenced by juries, not judges).

Death-penalty cases are among the most expensive, time-consuming, and rigorous in the justice system. One reason is that most murder defendants are unable to afford lawyers, and the courts must appoint counsel to represent them — at great cost to taxpayers.

It is (unfortunately) unusual for a bar investigation to benefit from the type of investigative reporting done here.

The Death Penalty Information Center critiqued the work of Mr. Carr. 

An earlier inaccurate post regarding the dismissed charges has been deleted. (Mike Frisch)

November 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Conflict Of Interest In Divorce/Bankruptcy Representation

An attorney who engaged in a conflict of interest consented to a reprimand with conditions by the Arizona Presiding Disciplinary Judge.

In Count One, Mr. Hineman represented both Robert and Janice Beckhorn in an uncontested divorce and a bankruptcy matter. He advised the Beckhorns to first proceed with the bankruptcy before filing for divorce.

On July 20, 2015, Mr. Hineman filed a chapter 7 bankruptcy petition on behalf of both Robert and Janice. His fee agreement in the bankruptcy matter however, was deficient in that it did not contain language required by ER 1.5(d)(3).

On September 2, 2015, Mr. Hineman filed a petition for dissolution of marriage and listed only Robert as a client. The fee agreement in the dissolution proceeding also listed only Robert and not Janice as a client. On October 22, 2015, Mr. Hineman filed an application and affidavit for default in the dissolution proceedings on behalf of Robert only. On November 3, 2015, the Court entered a discharge in the bankruptcy matter. Mr. Hineman’s representation in the bankruptcy matter continued until May 23, 2016 as an objection was filed by the bankruptcy trustee. He filed a default degree of dissolution of marriage on behalf of Robert only on December 11, 2015, which was entered that day.

Overall, Mr. Hineman engaged in a conflict of interest by representing both the husband and wife in a bankruptcy proceeding and subsequently, a divorce proceeding. Although an ethical violation, the clients were satisfied with the results Mr. Hineman achieved.

Count Two involved a failure to adhere to rules regarding fees. (Mike Frisch)

November 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Across The Potomac

A Virginia attorney has been suspended for nine months as a result of a felony conviction for leaving the scene of an accident involving injury or death.

He is subject to an additional two years of suspension if he fails to comply with the requirements of the Lawyers Helping Lawyers program.

The attorney was convicted on his guilty plea  on April 19 of this year and was sentenced in June. Thus, the soup-to-nuts bar discipline process took about five months. 

Notably, a Washington, D.C. attorney was convicted of the same offense in Virginia in 2005 and the matter is now pending before the Court of Appeals with a recommendation for no suspension.

The case has now taken over eleven years to resolve.

The felon-at-issue has yet to serve a day of suspension.

Our prior coverage of the delay in the D.C. case is linked here and here.  (Mike Frisch)

November 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 23, 2016

Three Judges And The Comparative Sanction Method Applied to Ticket-Fixing In New Jersey

Ticket fixing merits a suspension of three months, according to a report and recommendation adopted by the New Jersey Supreme Court.

The Disciplinary Review Board

Respondent stipulated to facts relating to his involvement in "ticket-fixing" and, therefore, his violation of RPC 8.4(d). Thus, the only issues for determination are whether respondent, as a former municipal judge, breached RPC 8.4(b) by violating N.J.S.A. 2C:30-2(a) and the proper quantum of discipline for his misconduct.

By way of background, respondent was born in the Philippines, where he obtained an undergraduate degree. Later, he lived in Rome, from approximately 1962 to 1972. In 1967, he was ordained as a priest and, thereafter, obtained a doctorate degree in Theology. He subsequently returned to the Philippines where, from 1974 to 1986, he was a professor and dean of Theology.

In 1986, respondent tendered his resignation from the priesthood and later married. Thereafter, he settled in the United States and taught Theology at the Covenant Station School in Elizabeth, New Jersey. From 1988 to 1992, he attended Rutgers School of Law in Newark, on a part-time basis, while working full-time at the New York Transit Authority.

Respondent was a part-time municipal judge from 2004 until 2007 and, therefore, was a public servant. On October 3, 2007, he took a voluntary leave of absence from that position.

The fix news broke days later

The crux of respondent’s wrongdoing is as follows. In 2005, he received a ticket from the Jersey City Housing Authority for debris and other materials left behind by a contractor who had completed work at his Jersey City Law office. Knowing that he could not adjudicate his own ticket, respondent took it to his superior, Municipal Court Judge Wanda Molina. According to respondent, the perception in the Jersey City Municipal Court was that judges could not dismiss their own tickets, but could give them to another judge.

Molina adjudicated the ticket in chambers; respondent paid a $50 fine and $20 court costs. He considered the adjudication as a "test run," and assumed that other tickets could be handled similarly.

Three other tickets

Respondent also presented three tickets to Municipal Court Judge Pauline Sica: (i) an April 29, 2004 ticket issued to respondent’s son, Karl Sison, for failure to observe a traffic control device, a moving violation; (2) a ticket issued to a vehicle registered in his name for violation of a municipal parking ordinance; and (3) another ticket issued to a vehicle registered to respondent and/or Irene Sison, his wife.

The tickets were not adjudicated on the record. Sica imposed judgment without regard to the actual guilt, innocence, guilty plea, hearing, or presence of the defendants. In their absence, Sica found them guilty.

While there was extensive mitigation

Respondent’s testimony and the stipulated facts established that, as a municipal court judge, he was a public servant. Respondent’s assertion that he was not seeking a benefit when he asked Sica to adjudicate his tickets is belied by the stipulated facts and his conduct: he stipulated that the perception in the Jersey City Municipal Court was that one could not dismiss one’s own ticket, but could give it to another judge; that the first ticket he gave to a municipal court judge was a "test run" and he assumed that other tickets could be handle similarly; and that he, thereafter, presented three additional tickets for adjudication.

Respondent’s testimony regarding the routing of his tickets to Judge Sica was both contradictory and incredible. During the AG’s, the court’s and the OAE’s investigation, respondent stated that he had .given the tickets to Sica. It was not until the DEC hearing that he attempted to blame his law clerk or the court clerk for directing the tickets to Sica for disposition. Only after a break at the DEC hearing, however, did respondent unequivocally admit that he had given the tickets to Sica himself, that he shared office space with her, that he paid her to perform services on his behalf, and that she was listed as "of-counsel" on his letterhead.

Notably, the DRB cited the sanctions imposed on Judges Molina and Sica

Unlike some of the other cases, neither Molina nor Sica embroiled others in their ticket-fixing schemes. Nevertheless, unlike Molina, Sica advanced no mitigating circumstances. In addition, she showed no contrition or remorse for her acts. During the criminal proceedings, she stated that, although there was no legitimate reason to waive the fine, "that’s the culture." Furthermore, her letter to the OAE did not acknowledge any wrongdoing on her part, but implied that she had been pursued unfairly, since no action had been taken against respondent.

Respondent’s case does not include the aggravating factors found in Sica, other than his inconsistent testimony during the DEC hearing. Thus, his misconduct warrants comparison to Molina’s: (i) Molina was the chief judge in the vicinage, while respondent was a relatively new judge at the time of the misconduct; (2) Molina adjudicated nine parking tickets for her significant other, respondent had only four tickets adjudicated for himself and family members; (3) Molina tampered with public records by falsifying information on the tickets, respondent did not do so; (4) both presented compelling mitigating circumstances; (5) both were regretful and contrite for their conduct (6) neither had an ethics history; and (7) Molina was one of the first attorneys prosecuted as a result of the Jersey City investigation, while there has been a significant passage of time since respondent engaged in the improper conduct and was charged with ethics violations.

(Mike Frisch)

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

Divorce And Fight Over Escrow Account Leads To Ethics Lapse

An Illinois Hearing Board summarized its conclusions

Based on the evidence presented and the credibility determinations made, the Hearing Board found Respondent failed to properly handle client funds by not keeping the funds separate from his own funds but that his actions in doing so were not dishonest, and that he did not knowingly and dishonestly violate a court order by using funds in his firm's operating account. In consideration of the evidence in aggravation, which included his failure to appear in-person at his disciplinary hearing, the fact that he allowed the difficulties in his personal life to affect his judgment in practicing law, his failure to recognize the wrongfulness of his actions, and his failure to pay restitution, the Hearing Board recommended Respondent be suspended from the practice of law for six months. The Hearing Board declined to recommend Respondent's suspension be subject to until further order of Court as requested by the Administrator since the evidence was insufficient to show his misconduct was related to his mental health disorder and that such a severe sanction was necessary to protect the public.

The personal difficulties were rooted in a combined marriage and law partnership

Between January 2008 and August 2011, Respondent and Cynthia Koroll were married and practiced law together as partners under the name of Szymanski Koroll Litigation Group (SKLG). SKLG maintained both an operating account and a trust account. During this time, SKLG represented Tressie Loveland and Paul and Susan Hoskinson in personal injury cases and expended costs with respect to these matters. 

In late 2011, Ms. Koroll and Respondent began the process of getting a divorce and ceased practicing law together. However, SKLG's operating and trust accounts remained open for some time, and both Respondent and Ms. Koroll had access to account information and were able to conduct transactions with respect to these accounts. 

Around this time, Ms. Koroll began practicing law under the name Koroll Litigation Group (KLG), and continued to represent Ms. Loveland. Nathan Reyes, a former associate of SKLG, went to work for Ms. Koroll at KLG. 

In early 2012, Ms. Koroll, on her own behalf, filed for bankruptcy. James Stevens was the appointed bankruptcy trustee, and as trustee, interacted with Respondent in determining the attorney fees earned by Ms. Koroll both before and after the filing of her bankruptcy. 

On June 13, 2012, the bankruptcy court ordered the assets of the SKLG client trust and operating accounts be frozen and that the funds could not be distributed without the permission of the trustee or the court. Respondent received notice of the court's order shortly after it was entered and understood it. Mr. Stevens had sought the entry of this order because both Ms. Koroll and Respondent were constantly in disagreement regarding the funds they were entitled to and accusing each other of wrongfully taking funds. According to the evidence presented at hearing, the relationship between Respondent and Ms. Koroll was and still is highly acrimonious. 

As to entrusted funds

On August 6, 2012, Respondent drew $6,473.50 from the SKLG client trust account. He claimed he drew these funds from the Loveland settlement proceeds, which had previously been deposited into the trust account, in order to compensate SKLG for funds Ms. Koroll wrongfully took as reimbursement for costs in the Hoskinson matter. Yet, at the time Respondent drew these funds, only $5,458.53 remained in the trust account for reimbursement of costs with respect to both the Hoskinson and Loveland matters. This was because Ms. Koroll already had withdrawn $7,500.99 of the $12,192.52 allocated by court order for costs reimbursement in the Hoskinson matter, and Respondent had withdrawn $3,326.14 of the $4,093.14 allocated by the court for costs reimbursement in the Loveland matter. Accordingly, Respondent withdrew $1,014.97 from the Loveland settlement that was not allocated by the court for costs reimbursement. Respondent's act of withdrawing these funds was not in the best interest of the client, who, as he knew or easily could have determined, had not yet received her share of the settlement proceeds, and his failure to safeguard and segregate these funds for her benefit was in violation of Rule 1.15(a).

We acknowledge Respondent's argument that he drew these funds from the SKLG client trust account to compensate SKLG for funds he believed Ms. Koroll wrongfully took from the Hoskinson settlement and that these funds were not client funds, but funds belonging to KLG for fees earned in the Loveland matter. Yet, we are still not convinced his actions were justified. In both the Loveland matter and Ms. Koroll's bankruptcy matter, court orders existed stating KLG was entitled to $14,583.33 for fees in the Loveland matter. Respondent did not have authority to unilaterally decide KLG was entitled to less than this court ordered amount and to then withdraw more from the Loveland settlement proceeds than he and SKLG were entitled to in that matter. Moreover, Respondent's first communication with Ms. Koroll regarding his withdrawal came by fax, which she  received after she had withdrawn the funds she was authorized to pursuant to court order. As a result, Respondent's actions resulted in there being insufficient funds in the SKLG client trust account to cover Ms. Loveland's share of the settlement proceeds, which supports our conclusion that Respondent violated Rule 1.15(a).

The hearing board rejected dishonesty and other charges relating to 28 checks.

As to sanction

At the Administrator's request, Dr. Stafford Henry performed a psychiatric evaluation of Respondent on November 13 and 24, 2015. According to Dr. Henry, Respondent suffers from a recurrent major depressive disorder, which is largely attributed to a number of situational stressors in his life, such as the death of his son and five broken marriages. He also suffers from a cognitive disorder, resulting in memory impairment. He has had eight head injuries, the most recent of which was in 2008, and has diabetes. Dr. Henry opined that Respondent is a good candidate for treatment and outlined treatment recommendations. Respondent, however, is neither on medication nor receiving other forms of treatment for these disorders, which he acknowledges preclude him from practicing law. Dr. Henry opined that there is no nexus, connection or association between the misconduct Respondent is alleged to have engaged in and his depressive and cognitive disorders. Both at hearing and during his evaluation by Dr. Henry, Respondent unequivocally denied doing anything wrong and does not believe his mental illness contributed in any way to the alleged misconduct. 

Dr. Henry further opined that given the deficits in Respondent's memory, he would not be consistently able to practice law in accordance with the Rules of Professional Conduct. Respondent agreed with Dr. Henry's conclusion that he should not practice law and stated that he no longer wants to practice law.

...In consideration of the nature of Respondent's misconduct, the foregoing legal precedent, and the significant aggravating evidence, specifically his failure to appear in-person at his disciplinary hearing, his willingness to allow the difficulties in his personal life to affect his law practice, his failure to recognize the wrongfulness of his actions, and his failure to pay restitution, we believe a suspension of six months is warranted. We are confident this sanction is appropriate in light of the purpose of the disciplinary system, namely to protect the public and maintain the integrity of the legal profession. 

Unrelated ethics charges against the former spouse/partner are linked here with the answer linked here.

Our prior coverage of the charges against the former spouse linked here under the title quoting an alleged email

Your Slimey Israeli Punk Client [Will] Wish He Had Never Thought of Hiring a White, Brilliant Gentile."

Citations to record omitted throughout. (Mike Frisch)

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

Stairway To Suspension

We don't often link to stories in the Hollywood Reporter but note that the Pennsylvania Supreme Court imposed reciprocal discipline of three months and a day suspension on an attorney and that we were scooped

The attorney who flouted courtroom protocol during the "Stairway to Heaven" copyright trial has been suspended from practicing law.  

Francis Malofiy's behavior as an attorney has been the subject of repeated judicial scrutiny, and a Thursday ruling means he won't be doing any lawyering until the fall.

An appellate panel upheld a previously recommended suspension of three months and one day, finding Malofiy violated "various rules of conduct" during a copyright infringement lawsuit over Usher's "Bad Girl."

In 2015, a three-judge district court panel found Malofiy tricked unrepresented co-defendant William Guice into signing an affidavit without consulting a lawyer by hiding that their relationship was adversarial in nature.

The prior year, Judge Paul Diamond issued sanctions and ordered Malofiy to pay $28,000 in court costs.

Malofiy had argued that he didn't break the rules and, even if he did, the punishment was too harsh.

The district court was troubled by the attorney's failure to take responsibility for his actions and his other unprofessional and uncivil conduct during the course of the litigation. 

On Thursday, the appellate panel agreed and upheld the suspension.

His reputation as a rule-breaker preceded him when he took on the recent Led Zeppelin case. In a story previewing the trial, Bloomberg painted a vivid portrait of Malofiy as a "bar-brawling lawyer."

During the six-day "Stairway" trial, Malofiy racked up more than a hundred sustained objections and multiple admonishments from Judge R. Gary Klausner.

After the jury ruled in Led Zeppelin's favor, Malifoy said he lost on a technicality and hinted at an appeal. If Michael Skidmore, the man who sued on behalf of late songwriter Randy Wolfe, wants to appeal soon, Malofiy could be out of a job. 

While Malofiy's suspension is in Pennsylvania, being admitted pro hac vice in California is dependent on being an attorney in good standing in another jurisdiction. Skidmore still has a lawyer, though. Glen Kulik served as local co-counsel and could take the reins on the case. 

The Bloomberg article linked above is worth a read. 

ABA Journal had the story of the initial sanction affirmed by the United States Court of Appeals for the Third Circuit.  (Mike Frisch)

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

A Lesser Sanction For Litigation Misconduct

The District of Columbia Court of Appeals has imposed reciprocal (but reduced) discipline against a former Dorsey & Whitney partner based on a sanction imposed by the United States District Court for the Southern District of New York.

On April 10, 2013, after finding that respondent Kristan Peters had violated several professional rules, the Committee on Grievances of the United States District Court for the Southern District of New York (SDNY Committee) suspended Ms. Peters from the practice of law for seven years. The District of Columbia Office of Disciplinary Counsel now recommends that we impose reciprocal discipline and suspend Ms. Peters for five years, with reinstatement conditioned upon proof of fitness to practice law. Although D.C. Bar R. XI, § 11 (e) generally requires this court to impose reciprocal discipline, Ms. Peters argues that all five enumerated exceptions to this rule apply in her case. Concluding that only one exception applies—namely, that Ms. Peters would be subject to substantially different discipline in this jurisdiction—we suspend Ms. Peters from the practice of law in the District of Columbia for a period of three years, nunc pro tunc to July 2, 2015,  with reinstatement predicated on a finding of fitness.

One sobering lesson of the story is the reverberations that ensue from a single finding of misconduct and sanction.

Because the attorney was admitted in four state and several federal courts, the ensuing disciplinary proceedings have played out like slow torture. 

The violations

The magistrate’s report canvasses the record and supports the conclusion that Ms. Peters: (1) copied and ordered additional deposition transcripts in violation of court orders for use in the new but related action in Massachusetts and thus knowingly violated a confidentiality order entered by the presiding judge in the first case; and (2) instructed a first-year associate at Dorsey to add markings to deposition transcripts in an attempt to bring them under the protection of the attorney work-product privilege and exempt them from the presiding judge’s order that all discovery be returned, and thereafter misled the court about what she had done.

A lesser sanction was appropriate under the "substantially different discipline" exception but none of the other exceptions applied

Although the misconduct in this case was serious, we conclude, in light of the absence of lasting harm and Ms. Peters’s otherwise unblemished twenty eight year career, that the relevant actions here are appropriately remedied by a three year suspension.

The attorney had failed to promptly notify D.C. but nonetheless sought nunc pro tunc treatment of the sanction

Ms. Peters contends that she “kept the courts and bars where [she] actually practice[s]—the Connecticut Bar and the New York Bar—fully apprised and promptly notified at every juncture of this matter.” Disciplinary Counsel in the District of Columbia was not notified, however, until April 10, 2015, seven years after the interim suspension first issued in the Southern District of New York. Ms. Peters suggests that because other courts—more promptly notified—stayed their proceedings pending the outcome of the SDNY Committee’s decision and subsequent appeals, and because she had not recently practiced in the District of Columbia, she did not need to notify Disciplinary Counsel until her petition for writ of certiorari was denied by the Supreme Court on November 3, 2014. Even under this interpretation, Ms. Peters’s notification was delayed five months, and in any event, no reading of D.C. Bar R. XI, § 11 (b), the D.C. Bar rule governing notice, permitted Ms. Peters to forgo promptly notifying Disciplinary Counsel once she was “subjected to professional disciplinary action” in the Southern District of New York.

Maryland imposed reciprocal discipline earlier this year. Three judges dissented in an opinion authored by Judge McDonald

The Respondent in this case has practiced law as a litigator for the federal government and in private practice for almost 30 years. She apparently has not been the subject of any other complaints of misconduct or sanctions except for the incident that resulted in this case. That incident occurred during a discovery dispute in a hotly contested commercial case in the United States District Court for the Southern District of New York nearly a decade ago. According to the Respondent, that complaint was made by the judge assigned to that case after she complained, to the chief judge of the court, about derogatory remarks made to her by the assigned judge.

Of course, this is a reciprocal disciplinary action and it is not our role to retry the case. And we would not want to. The evidentiary hearing in this case in the Southern District of New York took 11 days and resulted in a detailed 118-page report by the Magistrate Judge who presided at that hearing. Ultimately, the United States District Court for the Southern District of New York imposed a suspension, which triggered reciprocal disciplinary proceedings in numerous other jurisdictions. Not only does our Court reach a different result, but it is a result out of step with every other jurisdiction, including the jurisdiction in which the complaint was made and those in which hearings were conducted...

The Maryland dissent summarizes the various sanctions imposed in state and federal courts and notes

In Connecticut, where Respondent has her practice, the court declined to impose any discipline. After conducting its own three-day hearing, the Connecticut court concluded that “even a retroactive suspension would serve no useful purpose.” The court did require Respondent to report any future allegations of misconduct.

The New York First Department's reciprocal order (five-year suspension) is linked here. (Mike Frisch)

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

Tuesday, November 22, 2016

Censure For "Foolishness To The Point Of Recklessness"

The failure to properly supervise a non-lawyer assistant (who also was a convicted felon) has led to an attorney's public censure by the Rhode Island Supreme Court.

 The relevant facts as determined by the board at a hearing on April 19, 2016, arise from the respondent’s association with Hassan Majid Hussein, a non-attorney who offered to provide assistance to members of the public who, as a result of financial need, were seeking to modify existing mortgage loans to reduce their debt burdens. Mr. Hussein, who had previously served a sentence in federal prison for criminal charges involving mortgage fraud, was under  investigation by the Department of Attorney General based upon consumer complaints relating to his activities. In April 2013, the respondent represented Hussein at a meeting at the Attorney General’s office at which Hussein was advised that he could only continue to offer loan modification services if he worked under the direct supervision of a duly licensed attorney. The respondent and Hussein agreed that the respondent would act as that supervising attorney.

Not a great idea, as it turns out.

By allowing Hussein to meet with and receive payments from clients and by giving him free access to his law office account, the respondent created the opportunity for Hussein, a previously convicted felon, to victimize Antonelli and potentially other clients as well. The respondent failed in his obligation to safeguard Antonelli’s money.

The board found, and we agree, that McNelis did not benefit from and indeed was not even aware of Hussein’s actions relating to Antonelli. While he did not receive any of the funds taken by Hussein, he has repaid to date $9,100 of his own funds to compensate Antonelli for her losses. He has severed his connections to Hussein, and he has advised the board and this Court that he and his family have also been victimized by actions of Hussein.

However, McNelis’s belated remedial acts do not relieve him from his responsibilities under the Rules of Professional Conduct. His conduct as demonstrated in this matter constitutes foolishness to the point of recklessness. We note that this is not the respondent’s first brush with discipline, having previously received a public censure in a reciprocal matter arising from his suspension by the United States District Court for the District of Rhode Island. See In re McNelis, 103 A.3d 145 (R.I. 2014). In that matter, we concluded that his relative youth and  inexperience (he was admitted to practice in 2010) warranted the imposition of less than a suspension.

(Mike Frisch)

November 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: Do Not Represent Your Dealer On Drug Charges

A complaint posted today by the North Carolina State Bar alleges that an attorney had engaged in conduct prejudicial to the administration of justice by failing to appear in court on behalf of two clients facing criminal charges.

Count Two is more interesting. It alleges that the attorney represented a client "with a long history of drug-related charges and convictions, on charges of possession of cocaine."

The client's cell phone was thereafter "seized and examined by law enforcement in connection with another drug-related investigation."

There were text messages in which (it is alleged) the attorney "made inquiries about purchasing heroin, marijuana, and 'pills' " from his client.

The complaint alleges that representing a client who is supplying the attorney with illegal drugs is a conflict of interest.

It is also alleged that the attorney made false denials to the State Bar. The alleged false statements blamed his ex-finacee for borrowing his cell phone and sending the texts. (Mike Frisch)

November 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

False Statement In Bar Application To D.C. Leads To Reciprocal Maryland Suspension

The Maryland Court of Appeals has imposed reciprocal discipline based on a suspension imposed in the District of Columbia.

From the court's headnote

 [A] Maryland attorney who knew that Maryland Bar Counsel was investigating complaints against her falsely stated on application form for the District of Columbia Bar that there were no outstanding complaints against her. After this misrepresentation was discovered, she was suspended from the District of Columbia Bar for one year with reinstatement conditioned on a showing of fitness. In this reciprocal disciplinary proceeding, the Court of Appeals imposes corresponding discipline in Maryland – an indefinite suspension with a right to reapply after one year. Maryland Rule 19-737.

At issue were four client complaints

On January 9, 2012, Ms. Thomas-Bellamy submitted an application for admission to the District of Columbia Bar. On that application, she indicated that she had never been the "subject of any charges, complaints, or grievances (formal or informal) concerning [her] conduct as an attorney, including any now pending," and attested that all information on the application was "true and complete." From the record before us, there is no indication that she knew about the Maryland client complaints, or the Commission’s investigation, at the time she completed that application. However, it was not long before she became aware of them.

...On November 15, 2012, the day before she was to be sworn into the District of Columbia Bar, Ms. Thomas-Bellamy completed a supplemental questionnaire in connection with her application for admission. In her response to an item on that questionnaire, she reiterated that there were no "charges or complaints now pending concerning [her] conduct as an attorney . . . ." As Ms. Thomas-Bellamy concedes, that was not true, and she knew it was not true when she completed the supplemental questionnaire. She was sworn into the District of Columbia Bar the next day.

There was substance to the Maryland complaints

On March 28, 2014, this Court accepted the Joint Petition and the agreed disposition, and suspended Ms. Thomas-Bellamy indefinitely from the practice of law in Maryland with the right to apply for reinstatement after six months. Attorney Grievance Comm’n v. Thomas-Bellamy, 437 Md. 606 (2014). Since that time Ms. Thomas-Bellamy has not petitioned for reinstatement and remains suspended from the practice of law in Maryland.

(Mike Frisch)

November 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Say Uncle

A partially-stayed two year suspension was imposed by the Ohio Supreme Court of an attorney who was convicted of theft from his deceased brother's estate.

The attorney agreed that the conviction formed a basis for discipline

In the agreement, Ames admitted that as executor of his brother’s estate, he misappropriated $8,140.39 from his two nieces’ shares of the estate proceeds. Ames also admitted that in a filing in probate court, he falsely represented that he had his nieces’ consent to distribute additional funds to himself. Based on that conduct, he pled guilty to theft by deception, and he agreed to waive his executor’s fee of $2,500 and make restitution in the amount of $5,640.39. The court sentenced him to a three-year period of community control and also ordered, among other things, that he pay $5,640.39 in restitution to the estate at the rate of $160 a month.

Sanction

we accept the parties’ consent-to-discipline agreement. Arthur Arould Ames is hereby suspended from the practice of law for two years with the final six months stayed. Ames’s stayed suspension and his reinstatement to the practice of law are conditioned on his compliance with the restitution order entered in his criminal case and on his committing no further misconduct. If Ames fails to comply with the conditions of the stay, the stay will be lifted and he will serve the entire two-year suspension. Ames shall also receive credit for time served under the interim felony suspension imposed on December 10, 2015.

Four justices dissented and would remand on the credit for time served issue. (Mike Frisch)

November 22, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Sanctioned Ohio Attorney Wants Praise Not Blame

An excellent summary of a bar discipline case decided today by the Ohio Supreme Court comes from Dan Trevas

The Ohio Supreme Court today suspended a Cincinnati-area attorney for providing assistance and poor advice to a man who violated a civil protection order and was sentenced to 90 days in jail.

The Supreme Court issued a two-year suspension to John W. Hauck of Milford with the second year stayed on conditions. The Court added a requirement that if he is reinstated to the practice of law, Hauck must serve a period of monitored probation. Hauck had challenged the allegation that he violated the rules governing Ohio attorneys claiming he helped the man as a friend and was not his lawyer.

In a per curiam opinion, the Court found that by allowing Richard Ellison to send Ellison’s parents a letter on Hauck’s attorney letterhead, Hauck not only assisted in violating a civil protection order obtained by Ellison’s parents, but also violated the attorney rules of conduct.

Client Has Troubled Family History
In 2004, Ellison entered the home of his mother and stepfather claiming he wanted to talk to them about longstanding family problems. He possessed duct tape, two pairs of handcuffs, a hammer, and a change of clothing when he confronted them. Ellison injured his stepfather as the man tried to leave the house. Ellison pleaded guilty to charges of aggravated burglary, kidnapping, and abduction and was sentenced to six years in prison.

In anticipation of her son’s early release, Ellison’s mother obtained a civil protection order (CPO) from Hamilton County Domestic Relations Court in 2010 that prohibited Ellison from having contact with his parents for five years. The CPO barred contact by several means, including communications “through another person.”

Hauck met and befriended Ellison in September 2012 and they began to discuss a letter that Ellison wanted to send to reconcile with his estranged parents.

Hauck Assists With Reconciliation Letter
After months of discussion with Hauck, Ellison began drafting a letter in late 2013 or early 2014 with the hope of reconciling with his parents. Hauck encouraged its writing, and he offered advice about the wording and content. Hauck also suggested that Ellison request that his parents ask the domestic court to terminate the CPO.

Ellison knew the CPO prevented him from directly contacting his parents and also was concerned they would not open a letter with his return address. He asked to use Hauck’s letterhead and signature so that it appeared to be from the attorney. Hauck was reluctant to use his regular office letterhead, and Ellison designed a letterhead with Hauck’s name and  title as an “attorney at law.” Hauck agreed to edit, print, and sign the letter. While identified as an attorney, Hauck added a disclaimer in the body of the letter stating that he was not acting as an attorney in the matter, but “strictly as a friend and a Christian who wants to help.”

Ellison mailed the letter in March 2014, unaware his stepfather had died in 2010, and days after it was sent, he was arrested and charged for violating the CPO. Unable to post bond, Ellison was jailed until the pending trial. Hauck used his attorney identification card to visit Ellison in jail and spoke to him by telephone. Hauck testified that the purpose of his communications were to determine if he could represent Ellison, but realized he could not because the prosecutor might call him as a witness. While the trial was pending, Hauck wrote three letters to the arresting officer on Ellison’s behalf, but he did not obtain approval from Ellison or Ellison’s court-appointed attorney to send them.

Potential Criminal Charge Against Hauck Dropped
An assistant county prosecutor assigned to Ellison’s case indicated that Hauck could have been charged with complicity for his role in Ellison’s CPO violation, and when Hauck invoked his Fifth Amendment right against self-incrimination, the trial court granted him immunity from criminal prosecution so that he could be compelled to testify against Ellison. Ellison then agreed to plead guilty to a lesser charge of attempt to violate a CPO and served about two months in jail.

The Cincinnati Bar Association filed a complaint against Hauck in 2014 based on the letter he sent on Ellison’s behalf. The bar association charged that Hauck violated several rules of professional conduct, including failing to provide competent representation, committing illegal acts, practicing while not in good standing, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

Hauk has faced prior disciplinary actions. In 2011, he was suspended from practicing law for 12 months, with six months stayed on conditions, for several violations of professional conduct rules. He was found in contempt for not abiding by the imposed conditions, and the Court required he serve the full one-year suspension. He was suspended later in 2011 for failing to renew his two-year registration, but was reinstated in November 2012.

Hauck objected to the bar association’s charges, claiming that Ellison was not his client and that his assistance with the letter did not form an attorney-client relationship.

Board Finds Hauck Provided Legal Assistance
During a Board of Professional Conduct panel hearing, Hauck testified that while he knew a CPO had been issued against Ellison at the time they discussed drafting a letter, he claimed he did not know and made no effort to ascertain the content of the letter. However, recorded conversations from a jailhouse phone call contradicted Hauck’s statement, and the board found Hauck had reviewed the order and still believed it was appropriate to send the letter. The board found Hauck’s holding himself out as an attorney imparted an air of credibility in the letter, and he acted as Ellison’s attorney by signing the letter as well as providing him with time, advice, and encouragement to send it.

The Court’s opinion noted the board expressed shock about Hauck’s poor advice and lack of judgment because Ellison had made him aware of his troubled relationship with his mother and that she had obtained a CPO against him. Ellison had also testified he believed Hauck was acting as his attorney, and that if Hauck advised him not to send the letter, he would have followed the advice.

The board concluded that Hauck failed to provide competent representation by not realizing the impact violating the CPO would have on Ellison, and that he committed an illegal act when he helped draft the letter. The attempt to deceive Ellison’s parents by signing the letter on Hauck’s letterhead violated the rule against engaging in deceitful conduct, the board concluded. And Hauck substituting his own judgment rather than abiding by the CPO violated the rule against prejudicing the administration of justice. Hauck also admitted that in 2013 and 2014 he had not registered as an Ohio attorney, and while not under formal suspension he admitted that his continued practice of law  while not in good standing violated professional regulations in this state.

Hauck Challenges Constitutionality of Findings
The Court affirmed the board’s rejection of Hauck’s claims that he was not acting as Ellison’s attorney when he helped him with the letter, and that he did not know the CPO prohibited the communication with Ellison’s parents.

Hauck also argued to the Court that the board’s findings violated the U.S. Constitution’s First Amendment and the due process clauses of the U.S. and Ohio constitutions. Hauck contended was he cannot be found to have violated professional rules if the violation is based on an unconstitutional order, and he said the CPO’s communication restrictions were unconstitutional.

The opinion stated that Hauck did not challenge the validity of the CPO at the time he assisted Ellison with violating the order, and rejected his right to challenge its constitutionality in a later disciplinary proceeding.

In considering a sanction against Hauck, the Court noted the board found he did not act with a dishonest or selfish motive, cooperated with the disciplinary proceeding, and presented evidence of his good character. The board also considered Hauck’s prior discipline, the multiple offenses committed, his refusal to admit the wrongful nature of his action, and the harm he caused to vulnerable people, including members of Ellison’s family and to Ellison, who spent 90 days in jail.

Court Troubled by Letter
The opinion noted the board’s hearing panel was troubled by the content of Ellison’s letter, describing it as “offensive and accusatory,” rather than conciliatory, and that Hauck failed to appreciate that it would be inappropriate to send even if a CPO did not prohibit it.

“While appreciating Hauck’s goal of reuniting Ellison with his mother, the panel believed that the letter they sent to his parents could be seen by a reasonable person only as making matters worse. And the panel expressed true dismay that Hauck could counsel his client to send that letter without any appreciation of how it would be perceived by the recipients,” the Court stated.

The board recommended that the Court indefinitely suspend Hauck with reinstatement subject to conditions. Hauck argued that an indefinite suspension is too punitive, and that he should be commended – not blamed – for following his Christian beliefs by trying to help the family.

The Court stayed the second year of his suspension on the condition that he submit to a mental-health evaluation conducted by the Ohio Lawyers Assistance Program and comply with any treatment recommendations resulting from it, pay Ellison $150 in restitution, serve one year of monitored probation if reinstated, and engage in no further misconduct.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, and William M. O’Neill concurred in the opinion. Justice Judith Ann Lanzinger concurred in judgment only.

2016-0260. Cincinnati Bar Assn. v Hauck, Slip Opinion No. 2016-Ohio-7826.

Video camera icon View oral argument video of this case.

The oral argument is worth watching if you have 36 minutes to spare. (Mike Frisch)

November 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 21, 2016

Rearmed With Law License

The Maryland Court of Appeals has ordered the reinstatement of an attorney who had been suspended for giving a firearm to a convicted felon.

Reprimanding Reno would not suffice to protect the public and deter other lawyers from similar misconduct. Reno potentially endangered the public by giving a deadly weapon to a convicted felon. Although the hearing judge found that Reno did not know that Stevens could not legally possess a regulated firearm, the hearing judge found that Reno should have known. Despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved Stevens's application to buy a handgun, Reno circumvented the law by intentionally giving the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. We cannot take lightly a lawyer's failure to obey the law that the lawyer swore to uphold. Nor can we ignore the potential for danger that Reno caused.

 (Mike Frisch)

November 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Benefits Of An Employee Dishonesty Insurance Program

The New Jersey Supreme Court adopted the proposed sanction of its Disciplinary Review Board and imposed a three-month suspension of an attorney who had twice given misplaced trust to an employee.

From the DRB report

In September 1985, respondent hired Roxanne Elliott as his legal secretary. Her responsibilities included opening bank statements for respondent’s review, preparing checks for him to sign, and preparing daily bank deposits. Respondent held various attorney trust accounts...

He failed to monitor her work and

Unbeknownst to respondent, between December 14, 2010 and June 23, 2011, Elliott issued five trust account checks payable to herself, forged respondent’s signature on them, and deposited them in her personal PNC account. Due to respondent’s failure to perform monthly three-way reconciliations of his trust accounts, Elliott was able to steal a total of $103,080. Elliott issued four of those checks between December 2010 and February 2011...

He discovered at least part of the situation sometime before April 2011 and made a loan to the employee

Following Elliott’s thefts, she continued to work for respondent. They agreed on a payment plan for the $8,837 loan, in the form of a $25 deduction from every paycheck, beginning May 5

He made false statements to the Bar about the loan and

Elliott continued to forge respondent’s signature on trust account checks even after respondent discovered her defalcations and his agreement to lend her more than $8,000.

She was able to steal over $100,000 but in the end

All of the misappropriated funds were replaced through a combination of bank credits, recovery of stolen funds from Elliott’s PNC bank account, respondent’s personal funds, and proceeds from an employee dishonesty insurance policy respondent had obtained, as part of his business insurance.

 As to sanction

Respondent received an admonition in 2010 and a reprimand in 2012. The common thread in both cases was respondent’s unilateral decisions, veiled in the cloak of strategy, not to take certain actions, which he failed to communicate to the clients. Respondent’s prior misconduct, when considered in the context of the facts of this matter, suggests that, for unknown reasons, he is not employing the requisite level of diligence in his practice of law, thus neglecting both his clients and the management of his law firm, thereby placing client funds at risk. The totality of his misconduct, thus, when considered in the light of his ethics history, mandates the imposition of a term of suspension.

NorthJersey.com reported on the conviction of the employee. (Mike Frisch)

November 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, November 19, 2016

Pressure Tactics Draw 30-Day Suspension

A 30-day consent suspension has been approved by the Arizona Presiding Disciplinary Judge

The parties agree that while representing a client, Mr. Strojnik used inappropriate means to compel a settlement. Representation of the client began in December 2014 and Mr. Strojnik filed a complaint in Federal Court on March 19, 2015 alleging sexual harassment of his client. In his demand to defendants, Mr. Strojnik threatened to use press releases to alert the public to the sexual allegations to facilitate settlement.

In a correspondence to the opposing party he announced he had created a website regarding the allegations and personally posted unprofessional comments. He assured the opposing party he would cause a “shame on” you banner to be placed in a public area of the businesses of the defendants. To force settlement, Mr. Strojnik also told the opposing party he scheduled meetings with police and the Department of Justice regarding the lawsuit alleging the hiring and harboring of undocumented workers, and asserted that through his efforts that CBS 5 Investigates was investigating the allegations to compel settlement. 

Mr. Strojnik was warned his conduct was actionable under Arizona law and violated his ethical obligations. For about five weeks Mr. Strojnik stopped. When “settlement efforts broke down he reverted to his previous conduct.” He reopened his website, posted content on that site and arranged to have flyers distributed at the business of defendants stating defendant was a “predator” with defendant’s picture. In response to a settlement offer Mr. Strojnik stated, “I do not engage in hyperbole. What I say is what I do.” Mr. Strojnik stated he intended to “destroy” the businesses of defendant.

The parties conditionally stipulate that at the insistence of Senior United States District Court Judge Neil V. Wake, Mr. Strojnik eliminated the need for a restraining order by agreeing to cease his inappropriate conduct. The parties stipulate “The Court made it very clear, however, that Respondent’s behavior was unprofessional.” It is stipulated Mr. Strojnik was warned his conduct was illegal and unprofessional. It is stipulated Mr. Strojnik returned to that behavior after the warning.

ABC15 KNXV-TV had a report on other lawsuits and bar complaints involving the attorney.

Phoenix Business Journal also had an August 2016 story on disability cases brought by the attorney

The Arizona Attorney General's Office has stepped in to the controversy surrounding Valley businesses and lawsuits concerning compliance with the Americans with Disabilities Act.

According to a statement, the AG's office has filed a motion to intervene on one of the cases in Maricopa County Superior Court, Advocates for Individuals with Disabilities, LLC vs. 1639 40th Street LLC.

Because more than 1,000 filings have been filed by AID and its attorney, Peter Strojnik, the AG's office said its intervention is a matter of public importance.

Though the plaintiff said the intention of the lawsuits is to make businesses compliant, the attorney general's office says AID and Strojnik are "apparently engaging in 'trolling' litigation tactics designed to induce defendants into quick pre-suit or post-complaint settlement that merely enriches the Plaintiff."

The AG's office is asking that the 1,000-plus lawsuits be consolidated into this action and dismissed.

Former AID Executive Director Jennifer Rogers resigned from her position yesterday as a result of the controversy.

(Mike Frisch)

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

D.C. Board Not Obligated To Defer To Disciplinary Counsel's Exercise Of Discretion

A recent report of the District of Columbia Board on Professional Responsibility highlights the distinct role that the volunteer system of adjudication plays in its interactions with Disciplinary Counsel.

In In re Douglas Evans, an attorney had neglected an appeal. He has a record of three prior informal admonitions.

Disciplinary Counsel and the attorney had stipulated to the violations and agreed on a sanction.

Both the Hearing Committee and Board found the stipulated sanction unduly harsh in light of the misconduct.

Disciplinary Counsel argued that its exercise of discretion should be deferred to by the Board.

Not

Throughout its Brief on Exception to the Report of the Hearing Committee (“Brief on Exception”), Disciplinary Counsel relies heavily on the fact that Respondent and Disciplinary Counsel stipulated to the Rule 8.4(d) violation and the sanction. Disciplinary Counsel argues that the Hearing Committee improperly “second-guessed the sanction that the parties believed would be appropriate and necessary to deter, would reflect consistency and be warranted in the particular circumstances of the case.” Instead, Disciplinary Counsel argues that the Board should defer to the “parties’ agreement, as long as it lies within the wide range of sanctions for the misconduct.”  Similarly, while acknowledging that the Hearing Committee did not find one of the violations to which Respondent and Disciplinary Counsel stipulated, which the Hearing Committee considered to be a justification for making “comprehensive findings, notwithstanding the respondent’s stipulations,” Disciplinary Counsel argues that the Hearing Committee should have “err[ed] on the side of efficiency” and issued a “simple one-page acceptance of [violations and sanctions] stipulations.” The fact that the parties may agree, however, is not the basis for finding any specific Rule violations, imposing a disciplinary sanction, or for the Board or the Hearing Committee to abdicate their responsibilities to determine the appropriate sanction consistent with applicable precedent. (citations to record omitted)

The Board agreed with Disciplinary Counsel that the conduct was prejudicial to the administration of justice.

Although these facts present a close question, and this case involves fewer Court orders and subsequent court actions than the cases previously considered by the Court, we have concluded that Disciplinary Counsel has met its burden of proving more than a de minimis interference with the administration of justice because his failure to comply with Court orders required the Court to (1) order Respondent to file the appendix omitted from his initial filing; (2) dismiss the appeal; (3) review the client’s letter seeking reinstatement; and (4) reinstate the appeal and appoint new counsel. Thus, we conclude that Respondent violated Rule 8.4(d) because his improper conduct tainted the judicial process in more than a de minimis way. See Hopkins, 677 A.2d at 57, 60-61. We note that whether or not we find that Respondent violated Rule 8.4(d), it would not affect our sanction recommendation.

And as to sanction

We...have concluded that the sanction to which the parties stipulated—a six-month suspension stayed in favor of probation, with a fitness requirement in the event of a probation violation—would be unduly harsh. First, a six-month suspension is consistent with more serious instances of neglect, reflecting the complete abandonment of the representation and often involving multiple clients and multiple matters over an extended period of time... Here, Respondent’s misconduct occurred during an approximately three-month period of time, after he initially fulfilled his duties to his client by filing the brief, but then failed to file the appendix, failed to notify his client that the appeal had been dismissed, and failed to file a Rule 35 motion for a reduction in sentence. Moreover, Respondent has acknowledged his misconduct and taken steps to remedy it and ensure that it will not happen in the future.

Automatic fitness if there is a probation violation?

We recognize that Disciplinary Counsel seeks a fitness requirement only if Respondent fails to satisfy the terms of probation, and that the Court has imposed conditional fitness requirements in a few limited circumstances. In those cases, the misconduct itself and/or a clearly identified concern about the respondent’s ability to practice ethically supported the conditional fitness showing.

...we disagree with Disciplinary Counsel’s categorical argument that “a lawyer who cannot or will not conform his behavior to the requirements of the probationary terms has demonstrated the need for a fitness requirement.” Brief on Exception at 6 (emphasis in original). Rather, Disciplinary Counsel should be required to demonstrate serious misconduct or a disciplinary history that raises a serious question of fitness if the respondent does not comply with probation, as in Bettis, Fox, and Edwards. Given that Respondent has acknowledged his wrongdoing, expressed remorse, refunded the fees, and taken steps to prevent future wrongdoing, we cannot find that failure to satisfy the terms of probation would meet the high bar set forth in Cater for imposing fitness: clear and convincing evidence of a serious doubt as to Respondent’s fitness to practice. The record thus does not support the imposition of a conditional fitness requirement.

The Board recommends  a 30-day stayed suspension with a one year period of unsupervised probation.

The Cater decision is an important and frequently cited one for sanction purposes. Unfortunately (in my view) the per curiam  court's holding misallocates burden of proof of fitness to err on the side allowing a suspension-worthy attorney to obtain automatic reinstatement.

I discuss Cater (which was before the court at the time of publication) in No Stone Left Unturned. 

While I favor granting greater discretion to Disciplinary Counsel as a matter of principle (assuming a competent and ethical Disciplinary Counsel), there is no question that the Board here is correct under the current Rule XI.

I find the "owes deference" argument made here surprising and with a predictable result. (Mike Frisch)

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

Friday, November 18, 2016

Worth The Gamble

A fully stayed year and a day suspension has been imposed by the Louisiana Supreme Court of an attorney who made three improper withdrawals from his firm's trust account

Respondent made these withdrawals to obtain cash so he could gamble at a Shreveport casino. The conversion resulted in a $9,300 overdraft of the client trust account on December 29, 2006.

Shortly thereafter

In early January 2007, respondent consulted with a gambling addiction therapist, Dr. Kent Dean. On the advice of Dr. Dean and a local representative of the Judges and Lawyers Assistance Program (“JLAP”), respondent contacted JLAP and was referred to CORE, a gambling addiction program. Thereafter, respondent self-reported his misconduct to the ODC. By January 11, 2007, the converted funds were restored to the client trust account by Mr. Hamauei. The following day, [his law partner] Mr. Hamauei was reimbursed by respondent’s father and respondent was admitted to the CORE program. Respondent was diagnosed with “Pathological Gambling D/O” and successfully completed the CORE program after thirty-six days of inpatient treatment.

Key findings by the hearing committee

  1. Respondent’s actions, which occurred more than nine years ago, were caused solely by his addiction to gambling. He immediately sought and successfully completed treatment with the CORE program. He also voluntarily excluded himself from all gambling establishments in Louisiana by placing himself on the Louisiana gambling exclusion lists in 2007.
  2.  On January 8, 2007, respondent self-reported his violations of the Rules of Professional Conduct in a telephone call to the ODC. He followed up with a self-reporting letter, which was faxed and mailed to the ODC on January 11, 2007.

The court

In this matter, respondent violated Rule 1.15 of the Rules of Professional Conduct when he converted client funds, which he then used to gamble at a casino. Although respondent acted knowingly and intentionally, no actual harm occurred because the converted funds were quickly replaced. Nevertheless, respondent’s dishonest and selfish motive caused the potential for serious harm.

The court followed the board's sanction because it was "not unreasonable"

The record supports the aggravating and mitigating factors found by the disciplinary board. Additionally, the mitigating factor of timely good faith efforts to make restitution or to rectify the consequences of the misconduct is present.

During his hearing testimony, respondent indicated he repaid his father for the funds his father gave Mr. Hamauei; therefore, even that harm has been rectified. The record also reflects respondent voluntarily left the practice of law between 2007 and 2014. The ODC was aware of respondent’s intention to not practice law during this time and, arguably, chose to stay the disciplinary proceedings instead of moving them along in a timely manner. As soon as respondent informed the ODC he wanted to return to the practice of law working for Mr. Cooper, the ODC filed formal charges against him. As such, the delay in the disciplinary proceedings should also be taken into account as a mitigating factor. Finally, respondent indicated he has been active in Gamblers Anonymous since leaving the CORE program, and his wife indicated he usually attends a Gamblers Anonymous meeting once a week.

This result seems entirely appropriate given the seven years of self-suspension and long track record of recovery. I speculate that Disciplinary Counsel withheld the charges until the attorney was ready to return to practice with the blessing of the bar's recovery program. 

The attorney will be on probation for at least two years. (Mike Frisch)

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

Where There's A (Lost) Will

A lost will led to a criminal conviction and disbarment by the New York Appellate Division for the First Judicial Department.

On April 13, 2016, respondent pleaded guilty in Supreme Court, New York County, in satisfaction of two separate indictments, to two counts of criminal possession of a forged instrument in the second degree in violation of Penal Law § 170.25, a class D felony, and one count of offering a false instrument for filing in the first degree in violation of Penal Law § 175.35, a class E felony. The charges arose out of respondent's efforts to conceal the fact that he had failed to perform legal work in two Surrogate's Court matters that he was handling.

On June 9, 2016, respondent was sentenced, concurrently on all three charges, to a three-year conditional discharge and 500 hours of community service. While not part of the plea conditions, respondent agreed to reimburse funds to two of the victims of his criminal acts.

The crimes to which respondent pleaded guilty are felonies under the laws of this State, and therefore upon his conviction thereof, he ceased to be an attorney by operation of law.

The ABA Journal had reported

A New York estate lawyer has been arraigned on charges that he forged a fake receipt to hide the fact that he had misplaced a dead man’s will.

James Robbins, 62, was arraigned Wednesday on one count of possessing a forged instrument and one count of offering a false instrument for filing, the New York Daily News reports. He pleaded not guilty.

Robbins is accused of stringing along a grieving family for more than a year after misplacing the dead man’s will. It’s not clear how Robbins misplaced the will, the Daily News reports. His lawyer, James Schiff, declined comment to the newspaper.

Robbins allegedly gave relatives a variety of excuses for the delay, including that the will he drafted might be published in the New York Law Journal, prosecutors said.

“For more than a year and a half, the defendant made one false statement after another to the decedent’s family,” Assistant District Attorney Jaime Hickey-Mendoza said.

Robbins did not profit from the ruse and never even billed the family for his services, prosecutors said.

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