Wednesday, August 2, 2017

On Wisconsin

The Wisconsin Supreme Court has reinstated an attorney who had been suspended for two years in 2014

The referee commented that during the reinstatement hearing, Attorney Moss testified with sincerity regarding his previous disciplinary issues, took responsibility for his actions, and apologized on the record to his clients. The referee noted that Attorney Moss testified he had been diagnosed with a bi-polar disorder in March of 2014 and that he controls this condition under the supervision of a doctor with prescribed medication and regular sessions with a counselor. The referee said that while he understands the frustration of the former client who opposed Attorney Moss's reinstatement, all available evidence in the record indicates that Attorney Moss has changed from the individual the former client encountered and the record demonstrates that Attorney Moss, with the help of medication and under a doctor's supervision, now has the moral character to practice law.

Going forward

The referee noted that Attorney Moss has represented that if his license to practice law is reinstated, he would potentially seek employment in Seattle, Washington to practice
immigration law. One of the attorneys who testified on Attorney Moss's behalf at the reinstatement hearing said he would offer Attorney Moss such employment. In addition, the referee noted that Attorney Moss testified he may return to Wisconsin to practice law in Green Bay in the areas of water law, permitting, land use, immigration, and criminal law.

(Mike Frisch)

August 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 1, 2017

CLE Misrepresentation Plus Default Equals Disbarment

A proposed disbarment from the California State Bar Court Hearing Department

In this matter, respondent Zollie S. S. Stringer III (Respondent) was charged with one count of misconduct alleging his misrepresentation of minimum continuing legal education
(MCLE) requirements. Respondent failed to participate either in person or through counsel, and his default was entered. The Office of Chief Trial Counsel of the State Bar of California (State Bar) filed a petition for disbarment under rule 5.85 of the Rules of Procedure of the State Bar.

Default has consequences

Rule 5.85 provides the procedure to follow when an attorney fails to participate in a disciplinary proceeding after receiving adequate notice and opportunity. The rule provides that if an attorney’s default is entered for failing to respond to the notice of disciplinary charges (NDC), and the attorney fails to have the default set aside or vacated within 90 days, the State Bar will file a petition requesting the court to recommend the attorney’s disbarment.

Done. (Mike Frisch)

 

August 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

License Revoked For Fleeing Paralegal

A Tribunal Hearing Division of the Upper Canada Law Society revoked a paralegal's license

The evidence...establishes conclusively that the Paralegal engaged in professional misconduct. The misconduct is of a very serious nature involving at least 11 clients and affecting the lives of hundreds of individuals who placed their trust in him. The Paralegal misappropriated over $1 million, relied on fraudulent documents and failed to serve his clients. The Paralegal, who was not a registered immigration consultant offered and performed immigration services beyond the scope of his P1 licence with respect to Clients B, G, F, J, K and M.  He acted in matters where there was or was likely to be a conflict in interest with respect to Client’s N and O by offering financing through VIPA Financial and failing to disclose his ownership interest in that business. Finally, he failed to co-operate with the Law Society’s investigations into the complaints against him.

The Paralegal appears to be on the run from the law. His whereabouts have been unknown since the summer of 2014. Unfortunately, it is likely that this panel’s decision will have little impact upon the Paralegal. Nonetheless, it is important to the public’s confidence in the profession that we convey this Tribunal’s condemnation for the Paralegal’s reprehensible conduct by imposing the most severe sanction available to us – revocation of his licence to provide legal services. In addition, we ordered that he repay the Compensation Fund the sum of $33,680 paid in respect of these complaints and that he pay costs of $15,555.

 Canada Immigration Blog reported on his 2014 interlocutory suspension.

The Law Society of Upper Canada suspended the paralegal license of the person below, amid massive fraud allegations involving at least 180 applications for work permits and close to a million dollars in client funds. He apparently fled the country, according to the decision below.  The most bizarre thing in this case is that the person in question was a licensed paralegal by LSUC, who apparently had run afoul of the regulator, so one is left to wonder how things got out of hand so quickly before the brakes were put on this person, or even how he even got a license as a paralegal. That is not clear from the decision. This calls paralegal regulation into question, which is already a very controversial topic in the Bar.  

(Mike Frisch)

August 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Alleged Murderer Goes Free; Prosecutor Cautioned

A caution has been issued to an Arkansas deputy prosecutor by the Committee on Professional Conduct for  violation of Rule 8.4(d) (conduct prejudicial to the administration of justice).

The disciplinary case is somewhat unusual. The prosecutor's conduct had led to dismissal of the charges without trial on the merits. 

In a murder case, the prosecutor had failed to prevent the running of the defendant's speedy trial rights, resulting in dismissal of the charges.

KATV Little Rock reported

The man accused of killing a Des Arc man nearly four years ago walked free Wednesday without ever going trial after a Prairie County judge dismissed the case against him because he did not receive a speedy trial.

Arkansas law requires the defendant be brought to trial within 12 months, excluding certain time frames, but that was exceeded for Frederick Owens Jr., who was charged with murder in death of Donovan Buck, who was found stabbed to death in Sept. 2012.

 Owens was arrested in Sept. 2012. At the time, the defense was granted a continuance in the case until March 2013.

On Monday, Owens' defense attorney filed a motion to dismiss the case for lack of a speedy trial. This was almost four years after Owens' initial arrest.

This caused the judge to rule an absolute dismissal in the case, meaning it cannot be retried.

Buck's father says he believes the case fell through the cracks, even though he's tried to get answers for the last four years.

"I asked for a court date three or four times. My brother and I went down to the court and asked for a date and he [Deputy Prosecutor Keith Rhodes] come out really rude to me," said Buck.

Southeast Missourian had the story of the murder. (Mike Frisch)

August 1, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 31, 2017

The D.C. Bar's Wildest Ride Ever

What may be the longest and strangest tale in the long strange trip of the District of Columbia disciplinary system may be nearing an end with the release of the report of a fractured Board on Professional Responsibility in In re Quinne Harris-Lindsey.

Here's where we are in a case that began in 2002 with a complaint from a Superior Court judge concerning payments in a single probate matter

There is no majority position as to sanction. Mr. Carter, in a statement joined by Vice Chair Ms. Butler and Mr. Bundy, recommends an informal admonition for Respondent’s recordkeeping violation. Mr. Peirce, in a statement joined by Mr. Bernstein, finds that Respondent also violated Rule 8.4(d), and recommends a public censure. Chair Mr. Bernius, in a statement joined by Ms. Smith, agrees with the Hearing Committee that Respondent engaged in reckless misappropriation, and recommends disbarment.

While a majority of Board members has determined that Respondent did not violate Rule 1.15(a) (misappropriation) and a different majority has found no Rule 8.4(d) violation, we have no majority sanction recommendation despite the unanimous finding of a recordkeeping violation. The recommended sanctions in this case run the gamut. Mr. Bernius and Ms. Smith recommend disbarment, as they must because they find reckless misappropriation without any extraordinary mitigating factors. Mr. Peirce and Mr. Bernstein recommend public censure, as they find two rule violations with the additional Rule 8.4(d) charge. Vice Chair Ms. Butler, Mr. Bundy, and Mr. Carter recommend that Respondent be sanctioned with an informal admonition for the recordkeeping charge, which they believe is the only violation for which Disciplinary Counsel has met its burden of proof.

If you count only seven board members, it is because two board members are recused. One chaired the hearing committee; the other reviewed the proposed consent discipline.

The case was docketed for investigation in 2002 with charges filed some seven years later.

So far, nothing to see here.

The story from there

This case has proceeded since 2009 on the basis that Respondent allegedly misappropriated funds entrusted to her. Disciplinary Counsel charged the case as misappropriation. The parties attempted to resolve it through negotiated discipline as a negligent misappropriation case. The Court and the Board considered the circumstances in which misappropriation charges can properly be resolved through negotiated discipline, and the Court ordered this case to be referred to a Hearing Committee for a full evidentiary hearing. Disciplinary Counsel presented a revised Specification of Charges principally alleging misappropriation. After a full evidentiary hearing, both parties agreed that Respondent had committed negligent misappropriation and violated her recordkeeping obligations, and the Hearing Committee made recommended findings of fact and conclusions of law. Based on the parties’ agreement that some kind of misappropriation had occurred, the Hearing Committee assumed misappropriation and stated that the primary question to be decided was whether the misappropriation was negligent or reckless. The Hearing Committee’s principal conclusion was that Respondent committed reckless misappropriation on at least one occasion and therefore should be disbarred. 

Chair Robert Bernius agreed with the Hearing Committee on misconduct and sanction

I agree with the Hearing Committee’s conclusion that Respondent committed reckless misappropriation and failed to keep adequate records of entrusted funds, and that she must consequently be disbarred.

I disagree, however, with the majority’s detection, analysis, and resolution of issues that the parties intentionally did not raise or brief to the Board. The Board should not decide questions that the parties, for their own unexpressed and presumably sound reasons, have chosen to ignore.

A very interesting concurrence (joined by members Bundy and Butler) from Jason Carter

We recommend that that the Court impose a sanction of an informal admonition for the proven recordkeeping violation. We conclude that the Hearing Committee’s finding of reckless misappropriation is incorrect as a matter of law. In the alternative, if the Court declines to adopt the majority Board’s position, we believe Disciplinary Counsel has proven, at most, a negligent misappropriation so that Respondent should be sanctioned with a six-month suspension, but we recommend that the entire six months be stayed with the conditions that Respondent (1) attend a general continuing legal education class and provide proof of attendance to Disciplinary Counsel; and (2) consult with the D.C. Bar’s Practice Management Advisory Service in the event that she decides to enter private practice. See R Br. at 10. Even if the Court were to find a reckless misappropriation, we believe that the fact that the alleged misconduct occurred in 1999 and Respondent’s exemplary practice of law over the past more than fifteen years warrants due consideration in mitigation of sanction. See Schneider, 553 A.2d at 212; Miller, 553 A.2d at 206. Moreover, extenuating circumstances, as described supra, exist that warrant a lesser sanction than disbarment. See Addams, 579 A.2d at 193; see also Hewett, 11 A.3d at 290 (extraordinary mitigating circumstances). 

The Hewitt case is the only extraordinary circumstance found to avoid the Addams result. I call the case The Altruistic Theft. 

My commentary concerning the Harris-Lindsey Hearing Committee report is linked here.  

The hearing committee report reflects the undeniable fact that the case came to the Office of Disciplinary Counsel fourteen years and one name change ago. I do know that some of the delay is attributable to efforts (which I supported) in 2011 to resolve the case with a negligent misappropriation conclusion and a consent suspension.  When the court rejected a consent sanction in 2011,  I predicted the case would not get finally resolved until 2016. 

How naively optimistic was I. Look for final action in maybe 2018-19. 

Once again the D.C. system shows its system-wide dysfunction - a first-level report (subject to board review and Court final action) of an attorney fourteen years after the investigation  commenced.

Cases regularly take ten years to move from soup to nuts. This one has a shot at twenty.

A rather straightforward case involving a single probate matter where the facts were not in dispute - only the attorney's intent.

My prediction: This case may well lead to the overturning of the en banc holding of In re Addams that disbarment is required in virtually all cases of intentional or reckless misappropriation.  Disciplinary Counsel's delay may well play a role in the demise of that doctrine.

Given this disposition, count that prediction as dead wrong!

My comments on the consent discipline attempt may be found here.

I understand that implementation of the consent rule has been a bumpy ride to date. Perhaps all concerned (Board, Court and Bar Counsel) share some responsibility for the current mess. Perhaps part of it is a good faith disagreement about the best way to use the process. But, in the end, a rule that gives Bar Counsel no meaningful discretion to evaluate credibility is useless.

Given the glacial pace of D.C. bar discipline, consent dispositions are a necessary tool. I can only hope that the Court sees the light here and decides the case in a manner that will promote, not impair, fairness and efficiency. The Board's approach will gut the one tool given Bar Counsel to resolve cases by agreement and save limited resources for the cases that require a plenary hearing.

Now, after 15 years of back and forth, the board's wisdom

Now the Board is considering this case for the first time on a factual record developed in a contested hearing. After carefully considering and adopting the Hearing Committee’s proposed findings of fact, nearly all of which are supported by substantial evidence, and conducting the required de novo review of the proposed conclusions of law and recommended sanction, five members of the Board conclude that Disciplinary Counsel failed to meet its burden of proving, by clear and convincing evidence, that either the client or the Superior Court’s Probate Division (“Probate Court”) entrusted any funds to Respondent. The evidence shows that no estate funds could be spent or were paid to Respondent without the client’s signature and approval, and the Probate Court never appointed Respondent to any fiduciary role. Since neither the client nor the Probate Court entrusted any funds to Respondent, the charges of misappropriation must fail as a matter of law. Two Board members dissent from that conclusion and would affirm the Hearing Committee’s finding of reckless misappropriation. A different five-member majority affirms the Hearing Committee’s conclusion that Disciplinary Counsel (who conceded the issue in post-hearing briefing) failed to prove the charged violation of Rule 8.4(d) by clear and convincing evidence. Two Board members dissent from that determination and would conclude that Respondent’s conduct seriously interfered with the administration of justice in violation of Rule 8.4(d).

That clears things up.

 As to sanction

a plurality of Board members recommend an informal admonition, but there is no majority position with respect to the appropriate sanction.

The board was unanimous in finding a recordkeeping violation. 

The conduct at issue took place in the prior century. 

From negotiated disposition of a six-month suspension to disbarment and back now to the most lenient possible public sanction. 

I guess this ends in an informal admonition, the lowest sanction that commands a plurality.

The last time something like this happened was the en banc sanction in In re Abrams, a case (of mine) that is best remembered for its holding that a pardon did not preclude bar discipline.

As reflected in the concurring and dissenting opinions that follow, Judges Ferren, Schwelb, and Farrell are of the opinion that Abrams should be suspended from practice for six months.   Judge Ruiz would adopt the Board's recommendation that Abrams be suspended from practice for one year.   Judge King is of the opinion that Abrams should receive a public censure.   Chief Judge Wagner and Judges Terry, Steadman, and Reid believe that the presidential pardon precludes this court from imposing any sanction at all.

There is thus no specific sanction which commands the support of a majority of the court.   Public censure, however, is a less severe disposition than suspension from practice.   Under the unusual circumstances here presented, and solely in order to enable the court to dispose of the case, the four judges who believe that Abrams should be suspended from practice have agreed that the sanction proposed by Judge King should be imposed.   Accordingly, in conformity with D.C.Code § 11-2502 (1995), Elliott Abrams, Esq. is hereby publicly censured for professional misconduct.

If Disciplinary Counsel fights this, there is no board sanction recommendation for the court to grant deference (cognoscenti will recall that Addams itself was a 4-4 board report without a sanction majority); nor will the court be obligated to defer to the board's ultimate finding on intent, which is a question of law that the court would consider de novo. 

Final thought: If you are seeking clarity and guidance on an important real world issue that affects how law is ethically practiced, look elsewhere.

 Mr. Toad's got nothing on this. (Mike Frisch)

July 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

This Time Of The Year: West Virginia Suspends 25 For CLE Lapses

The West Virginia Supreme Court of Appeals has suspended 25 attorneys for CLE non-compliance

This is a proceeding instituted on February 27, 2017 by the West Virginia Mandatory Continuing Legal Education Commission ( Commission ) pursuant to Chapter VII, section 7.4 of the Rules and Regulations of The West Virginia State Bar, seeking the suspension of the license to practice law of seventy-seven active members of the West Virginia State Bar who failed to provide proof of compliance with the rules of this Court concerning mandatory continuing legal education, set forth in Chapter VII of the Rules and Regulations of the West Virginia State Bar. This Court issued a rule to show cause on March 2, 2017, returnable May 23, 2017, why each of the lawyers should not be suspended from the practice of law for such noncompliance.

Subsequent to the filing of the petition and issuance of the rule to show cause, fifty-two respondents provided satisfactory proof of compliance with mandatory continuing legal education requirements and were dismissed from the action. Accordingly, the following twenty-five respondents remain [the names of the suspended]

The duty

[By court order] all active members of The West Virginia State Bar were required to complete twenty-four credit hours of approved continuing legal education, with at least three of those credit hours in the topical areas of legal ethics, office management, substance abuse and/or elimination of bias in the legal profession, between July 1, 2014 and June 30, 2016. Active members of the West Virginia State Bar admitted between July 1, 2014 and June 30, 2015 were required to complete twelve approved credit hours, with at least three of those credit hours in the topical areas of legal ethics, office management, substance abuse and/or elimination of bias in the legal profession, prior to June 30, 2016. The Commission required all attorneys to report the completion of such requirements on or before July 31, 2016. Members were encouraged to report credits online through the state bar membership portal.

(Mike Frisch)

July 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Conscious Disregard

When it comes to sanctions for unauthorized use of entrusted funds, labels matter in the District of Columbia. 

In a recent case, the Board on Professional Responsibility concluded that misappropriation had been reckless rather than negligent

The Hearing Committee determined that if Respondent was being paid on an hourly basis, as Respondent herself claims, her own time records prove that she received unearned fees during May and June 2005, which she treated as her own before they were earned, and therefore misappropriated. HC Rpt. at 31-33. The Hearing Committee also determined that, in the alternative, if Respondent and Ms. Manago had agreed to a flat fee of $5,000, Respondent engaged in misappropriation when she accepted $6,300 of payments from Ms. Manago, $1,300 more than the flat fee agreement, which she treated as her own before they were earned. Id. at 34-35. We agree with the Hearing Committee that there is clear and convincing evidence that Respondent misappropriated unearned fees under either scenario, since Respondent admits that she always treated Ms. Manago’s funds as her own upon receipt. 

On the issue of Respondent’s intent, the Hearing Committee found that it was a close question, but that Disciplinary Counsel had not proven anything more than negligent misappropriation because the evidence showed only that Respondent engaged in misappropriation and commingling, and kept poor records. HC Rpt. at 35-38. Relying on In re Anderson, 778 A.2d 330, 339-342 (D.C. 2001), the Hearing Committee concluded that misappropriation, commingling, and poor record keeping was not enough to establish recklessness. HC Rpt. at 37. We disagree, because the evidence in this case shows more misconduct than in Anderson. Respondent admits that she treated Ms. Manago’s payment as her own property as soon as it was paid. FF 37. Significantly, the client paid at least $500 before Respondent did any substantial work on the case. FF 39. If, as Respondent contends, she was entitled to an hourly fee, she knew she had not earned the first $500 when it was received. Treating this unearned fee as Respondent’s own property would constitute intentional misappropriation...At a minimum, Respondent’s conduct reflects a conscious disregard for the safety of Ms. Manago’s funds, as she made no efforts to determine if she was entitled to treat Ms. Manago’s money as her own. See id. (“[R]ecklessness is a state of mind in which a person does not care about the consequences of his or her action.” (internal citations and quotation marks omitted)). This is more than sloppy record-keeping. Respondent used Ms. Manago’s funds as her own even though Respondent’s own records showed that she had not earned them. As we find that Respondent’s handling of Ms. Manago’s funds was, at a minimum, reckless, we recommend that she be disbarred because the record does not contain extraordinary circumstances that would permit departure from the presumptive sanction of disbarment pursuant to In re Addams, 579 A.2d 190, 191 (D.C. 1990).

The Hearing Committee had recommended disbarment on other grounds.

The case is In re Olekanma A. Ekekwe-Kauffman and can be found here. (Mike Frisch)

July 31, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, July 27, 2017

Lis Not Pendens

The Ohio Supreme Court publicly reprimanded an attorney for an advertising violation

According to the parties’ stipulations, Williamson sent a letter to David Chopcinski in Lorain, Ohio, informing him that (1) a notice of lis pendens had been filed in the Lorain County Recorder’s office, (2) if he failed to respond to the notice within 28 days, a default judgment could be entered against him and an expedited foreclosure sale could be conducted, and (3) if he failed to vacate his property at the time of the foreclosure sale, the new owner could immediately begin eviction proceedings under various Ohio statutes. Williamson’s letter further informed Chopcinski that her law firm could assist him in stopping the foreclosure process, keeping his home, and reducing his monthly mortgage payment.

Although the letter included the recital “Advertising Material,” Chopcinski did not realize that the letter was an advertisement, and he became concerned that he may lose his home. He showed the letter to his attorney, Zachary Simonoff, who reviewed the county recorder’s files and discovered that a notice of lis pendens had not, in fact, been filed regarding Chopcinski. Rather, Wells Fargohad filed a complaint for foreclosure against Chopcinski in the Lorain County Court of Common Pleas. Simonoff subsequently filed a grievance with relator alleging that Williamson sent a false and misleading advertisement to his client.

During the disciplinary process, Williamson stipulated that the advertisement included material misrepresentations of fact and law in an attempt to market her law firm’s services. Specifically, she acknowledged that a notice of lis pendens had not been filed with the Lorain County Recorder regarding Chopcinski  and that her advertisement cited sections of the Revised Code that were irrelevant to his circumstances. During her disciplinary hearing, she testified that although her law firm had created the advertisement, she had personally approved it—despite failing to verify that the information in the letter was accurate. Based on this conduct, Williamson stipulated and the board found that she had violated Prof.Cond.R. 7.1 (prohibiting a lawyer from making or using a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s services)

(Mike Frisch) 

July 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Noisy Withdrawal

The Ohio Supreme Court has imposed a stayed one-year suspension of an attorney who had violated the duty of confidentiality in a motion to withdraw

In 2008, Heben briefly represented Jennifer Cecchini during the initial stages of her divorce case. In September 2013, the divorce proceedings were still pending, and Cecchini again requested Heben’s legal assistance. Although Cecchini and Heben offered the panel different versions of what they had agreed would be the scope of his 2013 representation and how she would compensate him, the parties stipulated that (1) Cecchini paid Heben a $3,000 retainer on or about September 15, (2) he filed a notice of appearance in the divorce case on September 16, and (3) less than two weeks later, she terminated his legal services.

Heben subsequently moved to withdraw as Cecchini’s counsel, and with his motion, he submitted an affidavit purporting to state his reasons for seeking withdrawal. In the affidavit, he recounted communications he had had with Cecchini about the scope of his representation and his compensation, accused her of refusing to pay his agreed-upon fees “without cause,” and disclosed legal advice that he had given her. He also described Cecchini’s discharge of him as “retaliatory” and alleged that it had “occurred because of [his] advice to her concerning her objectionable and potentially illegal actions” relating to her ex-husband, which he characterized as “a problem similar to the one [he] experienced in [his] previous representation of her.” 

Upon Cecchini’s motion, the judge in her divorce case struck Heben’s affidavit from the record. In his testimony at the disciplinary hearing, the judge indicated that the contents of the affidavit—specifically, the disclosure of attorney-client communications—were inappropriate and not necessary for purposes of seeking withdrawal.

The court rejected as inapplicable the attorney's claimed reliance on exceptions to the rule.

The panel and board concluded, however, that Heben had “no legal or ethical justification for making the public disclosures” in his affidavit and that the statements about Cecchini “appear to have been motivated by a vengeful purpose owing to his displeasure at being dismissed as counsel without having been paid.” At the disciplinary hearing, the panel members heard from Heben, the judge in Cecchini’s divorce case, and Cecchini—who denied engaging in the allegedly fraudulent activity and denied discussing it with Heben.

While the court concluded that the attorney violated a "hallmark" duty, a stayed suspension was deemed appropriate. (Mike Frisch)

July 27, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, July 26, 2017

Public Censure For Returning Stolen Shoes To Nordstrom

A criminal conviction has led to a public censure by the New York Appellate Division for the Second Judicial Department

On December 8, 2015, the respondent pleaded guilty before the Honorable Richard Buchter, in Supreme Court, Queens County, to criminal possession of stolen property in the fifth degree, in violation of Penal Law § 165.40, a class A misdemeanor. In her plea allocution, the respondent admitted that: (1) in or about July 2010 and August 2010, she had a series of conversations with Travis Lootawan, one of 33 indicted codefendants; (2) during these conversations, she was informed by Lootawan that “his operation involved stealing people’s identities and making fraudulent credit cards,” and that after stealing identities, he “made credit cards and would go shopping and purchase high end” merchandise using the fake credit cards; (3) in November 2010, she received a pair of shoes from Lootawan, knowing that they were stolen, that Lootawan used a fraudulent credit card to purchase the shoes, and that the shoes were valued in excess of $1,000; (4) on or about November 12, 2010, she asked Lootawan for “guidance and direction” as to how to exchange the stolen shoes she had received from him in November 2010; (5) on or about November 12, 2010, she went into a Nordstrom department store with the stolen pair of shoes and exchanged them for three different pairs of shoes; and (6) she knew that the shoes she obtained from Nordstrom on or about November 12, 2010, “were still purchased with credit from somebody other than the true owner.”

But no suspension

At the disciplinary  hearing, the respondent did not contest the allegations, and offered testimony in mitigation of the charges. During her testimony, the respondent expressed deep remorse for her actions, and regret for the suffering she has caused her family from the public humiliation resulting from the conviction...

In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: that the respondent’s misconduct was limited and did not involve a client matter, her genuine remorse and acceptance of responsibility for her actions, as well as the character evidence presented, which described the respondent as someone with an excellent professional reputation, a person of high integrity, and a committed volunteer in her community with a history of good works.

Wired had a story on the crimes. (Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex With Client And Witness Who Was Another Client's Spouse Draws Minnesota Suspension

A minimum of three years suspension has been imposed by the Minnesota Supreme Court for misconduct "arising out of sexual relations [the attorney] had with a client and a witness in separate matters, both of which involved his representation of criminal defendants."

The court's order states that he had been privately admonished three times and that one involved sex with a witness.

The witness in the one matter was the client's wife and the sex was "apparently" intended to either reduce or waive the fee for the representation in a first-degree murder case.

the betrayal of both the client and the wife was compounded by the fact that it appears from the allegations in the petition that the sexual relations occurred under circumstances in which coercion might be suspected...

When the client learned of the sex after the trial, he sought postconviction relief.

He falsely denied the relationship to an assistant county attorney investigating the postconviction claims.

The defendant was charged with DUI.

The court rejected as insufficient a proposed 18-month suspension. (Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Minnesota Imposes Discipline Based On Patent And Trademark Office Sanction

The Minnesota Supreme Court has imposed  a sanction as reciprocal discipline for a sanction ordered by the PTO.

This case presents the question of whether we should impose reciprocal discipline on respondent Alan Richard Stewart. The U.S. Patent and Trademark Office (USPTO) imposed on Stewart what its regulations call “exclusion from practice” for misappropriating $8,000 in unearned fees, neglecting a client matter, failing to communicate with a client, engaging in the unauthorized practice of law, and failing to cooperate with the disciplinary proceedings. The Director of the Office of Lawyers Professional Responsibility (Director) petitioned to impose reciprocal discipline in Minnesota, arguing that the identical Minnesota discipline is disbarment.

We hold that, in a reciprocal discipline case, the identical discipline to “exclusion from practice” before the USPTO is an indefinite suspension from the practice of law with no right to petition for reinstatement for a minimum of 5 years. We further hold that the USPTO’s discipline procedures were fundamentally fair and that a 5-year suspension would not be unjust or substantially different from the discipline warranted in Minnesota. We therefore indefinitely suspend Stewart with no right to petition for reinstatement for a minimum of 5 years.

The original matter

In February 2016, the USPTO notified the Director that it had excluded Stewart from practice. According to the USPTO, Stewart engaged in multiple forms of professional misconduct in proceedings before that agency. First, the USPTO found that Stewart neglected the patent application of his client, F.W; failed to communicate with her; and misappropriated $8,000 in unearned fees. Stewart told F.W. that he would file her patent application within 2 or 3 weeks of receiving her paperwork. F.W. provided Stewart her notes and drawings and then checked on the status of her application 3 weeks later. Stewart told F.W. that he had not yet worked on her application, attributing the delay to family medical issues and injuries he had suffered from a bicycle accident. He never completed the patent application and stopped responding to F.W.’s communications. Nonetheless, Stewart cashed F.W.’s two advance-fee checks totaling $8,000 and failed to return these unearned fees even after F.W. terminated the representation and demanded a refund. Stewart cashed F.W.’s second check on the same day that F.W. terminated the representation.

Second, the USPTO found that Stewart engaged in the unauthorized practice of law. Stewart has been ineligible to handle USPTO matters since February 2015, when he was
no longer an active member of any state bar. But between March 2015 and June 2015, Stewart filed multiple trademark matters on behalf of clients as “attorney of record” and as a purported member of the Wisconsin bar. 

He also failed to cooperate in the PTO investigation.

One issue was the meaning of the PTO order "excluding" the attorney

We...hold that, in a reciprocal discipline case, the identical discipline in Minnesota to “exclusion from practice” before the USPTO is an indefinite suspension from the practice of law with no right to petition for reinstatement for a minimum of 5 years.

Bottom line

Finally, although the question is a close one, an indefinite suspension with no right to petition for reinstatement for a minimum of 5 years is not substantially different from the discipline warranted in Minnesota. The Director argues that disbarment is appropriate because we would have disbarred Stewart had his disciplinary action originated in Minnesota. But that is not the question before us in a reciprocal discipline case. Overboe, 867 N.W.2d at 487. Rather, we will impose the identical discipline if it is not “substantially different” from the discipline warranted in Minnesota. Rule 12(d), RLPR (emphasis added).

A dissent of Chief Justice Gildea

I respectfully dissent. The U.S. Patent and Trademark Office (“USPTO”) excluded respondent Alan R. Stewart from practice for misappropriating $8,000 in client funds, neglecting a client matter, failing to communicate with a client, engaging in the unauthorized practice of law, and failing to cooperate with the disciplinary proceedings. I agree with the majority that the discipline in Minnesota identical to exclusion before the USPTO is an indefinite suspension with no right to petition for reinstatement for 5 years (“5-year suspension”). I also agree with the majority that the discipline warranted in Minnesota for Stewart’s misconduct is disbarment. I disagree with the majority on whether a 5-year suspension is substantially different than disbarment. Because a 5-year suspension is substantially different than disbarment, I would not impose reciprocal discipline and instead would disbar Stewart.

Justice Hudson joined the dissent. (Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

One Is Not Enough

The Indiana Supreme Court, which had suspended an attorney for failure to cooperate in two bar complaints, vacated the order as to one but not the other

Pursuant to Indiana Admission and Discipline Rule 23(10.1)(c), this Court suspended Respondent from the practice of law in this State for failing to cooperate with the Indiana Supreme Court Disciplinary Commission concerning a grievance, No. 17-0859, filed against Respondent. On July 20, 2017, the Executive Director of the Commission filed a “Certificate of Compliance,” stating that Respondent has now cooperated with its investigation in this case. Pursuant to Admission and Discipline Rule 23(10.1)(c)(3), the suspension from the practice of law imposed in this case is terminated as of the date the certificate was filed. Respondent, however, is under another suspension order entered in Case No. 06S00-1703-DI-139, which remains in effect.

The Court therefore ORDERS that Respondent’s suspension from the practice of law in this case only be shown as terminated as of the date of this order. Respondent’s suspension ordered in DI-139 remains in effect, and Respondent shall not be shown as reinstated to the practice of law in this state until all causes for suspension are cured.

(Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Admission Granted In British Columbia: Applicant Can "Weather Ethical Storms"

A Hearing Panel of the Law Society of British Columbia has found that an applicant possesses the necessary good character for admission. 

 The issue is whether Mr. Sanandaji is of good character and repute and fit to become a barrister and a solicitor of the Supreme Court.  In particular, it must be determined whether Mr. Sanandaji has established on the balance of probabilities that he is of good character and repute and fit to become a barrister and solicitor given the charges enumerated in the Law Society’s Rule 2-91 notice (refusing to provide a breath sample, driving in the wrong direction and driving without reasonable consideration; excessive speeding; and assault), considered together with the manner in which he addressed these charges on his application for enrolment and subsequent communications with the Law Society.  It is the latter point, the manner in which he addressed these issues with the Law Society, that were the focus of the hearing. 

The assault

With regard to the assault, the agreed facts amount to an unfortunate bar fight after Mr. Sanandaji became intoxicated.  It is not part of a pattern of behaviour, and this one bar fight does not amount to a problem with character, repute or fitness.  Nor does this bar fight combined with driving the wrong way six years previously amount to a character, repute or fitness problem. 

The panel found he had been candid about past incidents

Mr. Sanandaji left his home country so he could make a better life for himself in a society not characterized by the type of injustices he witnessed in Iran.  He learned several languages and completed two degrees.  His pursuit of a career in law is driven by his desire to help people go through the immigration process he navigated on his own.  He not only volunteered in the [Thompson River University]  legal clinic, but collated the questions he was fielding from the international students and went to them with the offer of more assistance and help.  These are the qualities and actions of a person who can make hard decisions, accept the consequences, overcome obstacles, and put the interests of other persons before his own.  The letters of reference he received and the evidence of Maryam Sodagar demonstrate that he is highly regarded. 

The question is really whether his character is robust enough to weather ethical storms.  That is a question of fitness raised mainly by his dealings with the Law Society.  But, as noted above, character, repute and fitness are not really separable, and in this case, the incidents raised in the Rule 2-91 notice call into question character as well as fitness...

Mr. Sanandaji is of good character, repute and fit to be enrolled into the Law Society Admission Program, allowed to commence his articles and, in due course, to become a barrister and a solicitor of the Supreme Court. 

(Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"Nothing More Than Character Assassination"

Michael Howell of the Bitterroot Star reports on a recent Montana disciplinary hearing

On Thursday, July 22, in Missoula, after a series of hearings on three separate complaints that spanned about eleven hours, Jon Moog, state attorney for the Office of Disciplinary Counsel (ODC), stated that, based on the facts presented, Hamilton attorney Robert Myers should be disbarred. Each of the three complaints of professional misconduct have to do primarily with advertising that Myers placed during his campaign against incumbent Judge Jeffrey Langton in the last election. Moog claims that Myers ran ads with inflammatory allegations that he knew to be false at the time, and called it “nothing more than character assassination.”

The ads contained allegations about Langton purchasing drugs from a child, using cocaine, committing fraud upon the court, all of which Langton has denied. One of the ads had a jingle that repeated the lines “Liquor Langton,” referring to Langton’s past drinking problems which are a matter of record. Judge Langton has made a criminal complaint against Myers for placing the ads. That complaint is being investigated by the Missoula County Sheriff’s Office.

The complaints concerning professional misconduct by Myers were heard before an Adjudicatory Panel of the ODC. Myers did not show up at the first hearing to address the initial complaint. However, Judge Langton and his long-time law clerk Jan Duffin did testify.

Langton denied the allegations made in the advertisement which contained the voice of Dan Cox accusing Langton of illegal actions in a custody case that Cox was involved in before Langton’s court. He accuses Langton of ex parte communications with the opposing party’s attorney and perpetrating fraud upon the court. Myers tried to subpoena Langton and depose him on the issue. Langton quashed the subpoena and sanctioned Myers, fining him $10,000 in that case. His ruling was upheld by the Montana Supreme Court. He called Myers’ ads a “smear campaign” and said, “I could not believe this man would stoop this low.” Langton stated that he has been serving as Ravalli County District Court Judge since 1993, is the longest serving district court judge in the state, and has never sanctioned another attorney in all that time.

Jan Duffin, Langton’s law clerk of 17 years, also testified and said it was “very difficult to discern what Myers wanted” when he filed his briefs.

“I have never read a poorer briefing,” said Duffin. “His arguments were incomprehensible, his work was poor, full of misspellings and incomplete sentences that made no point.”

Moog called Myers’ claims outlandish, frivolous, offensive and defamatory and asked that he be placed on suspension immediately.

When Myers finally did appear at the second hearing, he admitted placing the ads and said that he stood by them.

“I don’t care what the Supreme Court of Montana says,” said Myers. “I certainly don’t care what Judge Langton says. I move to dismiss this and we get back to being Americans.” He said that he had a right to free speech and that his speech was protected by the Constitution. Referring to himself as a “private Attorney General,” Myers refused to answer some questions, claiming his Fifth Amendment right against self incrimination. He said that, due to the criminal case lodged against him by Langton, he and his witnesses were unable to testify in his defense at the misconduct hearings. He claims that the state laws being used against him are unconstitutional and that the Montana Supreme Court “should be ashamed” for supporting them.

Asked why he did not file criminal charges against Langton based on his witnesses and evidence, Myers stated that he had simply not yet done it, adding, “This is just the tip of the iceberg.”

Moog asked for a three-month suspension of Myers’ license to practice law for what he did in Cox’s child custody case. He asked for a two-year suspension for a couple of ads run in the primary campaign and finally asked the Adjudicatory Panel to recommend disbarment.

The Adjudicatory Panel will consider the testimony presented at the hearings and publish its findings of fact and possibly a recommendation for disciplinary action. Myers will then have thirty days to respond and the state will then have thirty days to respond to that. The final recommendation will be forwarded to the Montana Supreme Court where the court will make the final determination concerning the facts and any disciplinary actions to be taken.

Hat tip to Reddit Bad Lawyer. (Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Second Time Around

The North Carolina State Bar has filed disciplinary charges against a prominent Raleigh attorney. who had been reinstated after a federal conviction.

WRAL.com reported on the recent charges

Wake County District Attorney Lorrin Freeman has asked the State Bureau of Investigation to look into possible criminal conduct by a high-profile Raleigh defense attorney.

The North Carolina State Bar filed a complaint last month against Johnny Gaskins, alleging that he forged the signatures of his clients on a $23,000 settlement check in a 2015 traffic accident and deposited the money in his personal bank account. The complaint alleges that Gaskins never informed the clients of the settlement, instead telling them that it could take up to two years to settle their injury claims.

The complaint alleges Gaskins' actions violated several rules of professional conduct for attorneys, and the State Bar is seeking disciplinary action against him.

No criminal charges have been filed in the case, and no date has been set for a State Bar hearing on the matter.

Gaskins didn't return phone calls Thursday seeking comment.

Gaskins has represented such clients as Amanda Hayes, who was convicted three years ago of helping her husband kill his ex-wife, Laura Ackerson, and dispose of her dismembered body in Texas; Adam Sapikowski, who pleaded guilty in 2008 to killing his parents and leaving their bodies in the family's Chapel Hill home while he went to his high school prom; Tony Johnson, who was involved in a shooting at a 2004 tailgate party at a North Carolina State University football game that left two men dead; and Kawame Mays, who killed Raleigh police Officer Paul Hale in 1997.

The State Bar complaint isn't Gaskins' first legal problem. He was convicted in 2010 of trying to evade Internal Revenue Service rules by structuring bank deposits to avoid reporting requirements. He spent one day in jail, nine months in a halfway house and three years on probation in that case.

The same source had covered the attorney's 2010 conviction 

A Raleigh defense attorney who tried to hide bank deposits from the Internal Revenue Service will serve one day in prison and nine months in a halfway house.

Johnny Sherwood Gaskins, who was sentenced in federal court on Monday, will spend three years on probation.

Investigators said Gaskins structured deposits at several RBC Centura banks to avoid federal income reporting laws. A federal indictment said Gaskins made numerous deposits, each just shy of $10,000, totaling more than $350,000 over a two-year period.

Deposits of more than $10,000 must be accompanied by a currency transaction report, which alerts the government of high streams of income that do not have a clear source.

Gaskins gained fame defending high-profile clients like Adam Sapikowski, the Chapel Hill teenager convicted of fatally shooting his parents in 2006.

Those in the legal community also credit Gaskins' skills as an attorney for getting a life prison sentence for Kawame Mays, a man convicted of shooting and killing Raleigh police officer Paul Hale in 1997.

The attorney had been suspended for at least two years as a result of the conviction and reinstated in 2013.

Public member David L. Williams dissented on sanction

As the public member of the panel, I have no formal legal training and no experience in legal writing. Accordingly, my dissent may contain errors of a legal nature that are obvious to trained legal professionals, but errors of which I am oblivious.

When on a panel I try to be reasonable, fair, respectful and mindful that the purpose of professional discipline is to protect the public, the courts and the legal profession. In my opinion, the public, the courts and the legal professional have no need of protection from Mr. Johnny S. Gaskins, the defendant in this matter. I would impose no discipline in this matter.

(Mike Frisch)

July 26, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, July 25, 2017

Waiting For A Good Trustee: Bankruptcy Misconduct Draws Two-Year Suspension In Colorado

A mishandled bankruptcy led to a two-year suspension imposed by Colorado Presiding Disciplinary Judge.

Ted Taggart (“Respondent”) was hired to file a bankruptcy petition for a married couple. After filing the petition, he failed to submit the required financial documents, and the bankruptcy case was dismissed. He promised to refile the petition but he did not do so promptly, so the clients terminated his representation. He did not refund any of his fees. The clients filed a second bankruptcy petition pro se, yet later learned that Respondent had filed a third petition for them after he had been terminated. He then disregarded requests for information from the disciplinary authorities, and he defaulted in this proceeding.

The facts

Cora Gipson and her husband met with Respondent at a Starbucks cafe on November 17 or 18, 2014, to discuss filing for bankruptcy. At the time, Gipson was sixty-six years old and the couples’ finances were in dire straits. They paid Respondent $905.00 to file a Chapter 7 bankruptcy petition for them.  Gipson signed a fee agreement but never received a copy of the agreement from Respondent, even though she requested a copy on several occasions. Respondent cashed the check on receipt, using the funds for his personal needs before earning them. He did not maintain adequate records of the funds he received from the couple.

The couple told Respondent they wanted their bankruptcy filed promptly because of an upcoming court date. Respondent told the couple not to worry about the court date or paying creditors. He advised the couple to file under Chapter 13 rather than Chapter 7. Gipson was concerned about filing under Chapter 13 because of her age and the uncertainty  of the required monthly payment amount. Respondent decided to file a Chapter 7 petition for Gipson and a Chapter 13 petition for her husband. Gipson did not understand his reasoning. Respondent did not answer her questions about filing under Chapter 13.

When Respondent sent Gipson the draft of the Chapter 7 petition, it was riddled with errors, including misspelling Gipson’s name, checking a box indicating that Gipson lacked a social security number, and misstating her salary. Gipson gave Respondent a list of corrections yet he failed to implement them.

Respondent did not file the bankruptcy petitions until April 7, 2015.Respondent told Gipson that the filing was delayed because he was “waiting for a good trustee” and that the current trustee was “terrible.”  A meeting of creditors was set for May 5, 2015. Even though the couple twice sent Respondent their required bank statements, he did not send them to the trustee. As a result, Gipson’s petition was dismissed on May 29, 2015. Respondent did not tell Gipson that her petition had been dismissed.

On June 5, 2015, Gipson was notified by the court that her petition had been dismissed. Gipson called Respondent but received a recording that his voice mailbox was not activated. She then emailed Respondent and sent him a message through Facebook. Respondent did not respond.  Gipson called the court and was directed to file a letter with the judge. The couple wrote the letter but it was too late as a matter of law to reopen her Chapter 7 bankruptcy. Thereafter, Respondent emailed Gipson, stating that he would refile her Chapter 7 petition for no charge. He then sent her a new draft of the petition; again, it contained many errors. Respondent failed to answer Gipson’s questions about the refiling.

Respondent again delayed the filing of the second petition, claiming that he was waiting for a “good trustee.” Gipson realized that the credit counseling course that she and her husband completed had expired, which would have resulted in the dismissal of the second petition had Respondent filed it.

On July 20, 2015, Gipson emailed Respondent and terminated his representation, effective immediately. She requested that Respondent pay any filing fees associated with her pro se Chapter 7 filing. On August 3, 2015, Gipson filed a Chapter 7 petition pro se, attended the meeting of creditors on August 28, 2015, and later received a discharge of her debts. Gipson herself paid the additional filing fee of $335.00.

Gipson later discovered that Respondent had filed a third Chapter 7 petition for her on August 7, 2015—two weeks after he had been terminated. Gipson was shocked to learn
of this and immediately called Respondent. She received a recording that his number was no longer in service. Respondent never told Gipson he had filed another petition, nor did he give her his new address or phone number. Gipson’s credit report shows three bankruptcies as opposed to one.

The People sent Respondent numerous letters during their investigation. He failed to respond to any correspondence or to participate in this disciplinary proceeding.

Harm to the client

At the sanctions hearing, Gipson testified about how Respondent’s conduct caused her harm. Gipson explained that Respondent’s failure to act with diligence and his filing of a third bankruptcy petition after he had been terminated resulted in three bankruptcies, rather than just one, appearing on her credit report. As a result, she stated, her credit was tarnished and she was unable to qualify for a new apartment lease. She and her husband wanted to downsize from a two-bedroom apartment to a one-bedroom apartment to save money on rent, but they were unable to due to their credit report. Additionally, Gipson testified that she was engaged in payment negotiations with the Internal Revenue Service (“IRS”) concerning the couple’s tax debts. She explained that the IRS stopped negotiating with her after it discovered three bankruptcies on her credit history, and as a result, she was penalized in the amount of $3,000.00 in interest and penalties. Respondent’s conduct also caused Gipson unnecessary stress and anxiety because he did not inform her about the status of her case and because she had discovered that Respondent had filed a third petition without her authorization.

Sanction

Respondent’s misconduct, coupled with his disregard for these disciplinary proceeding, persuades the Court that the public cannot be protected unless Respondent is required to demonstrate his fitness to practice law before seeking to reinstate his law license. Thus, taking into account the presumptive sanction, the balance of aggravating and mitigating factors, and the relevant case law, the Court concludes suspension for two years is warranted here.

(Mike Frisch)

July 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

In Peru Without Internet

A sanction is summarized from the web page of the Colorado Presiding Disciplinary Judge

The Presiding Disciplinary Judge approved the parties’ conditional admission of misconduct and suspended J. Brent Garfield (attorney registration number 22382) for thirty days, all stayed subject to a three-year period of probation with conditions, effective June 23, 2017.

In 2016, Garfield was winding down his solo practice but agreed to represent a family friend in a divorce case. The client paid him a $2,000.00 flat fee. On July 28, 2016, Garfield learned that he was being called away for an eighteen-month mission to Peru. Garfield informed his client of the trip, but he did not withdraw from her case. His client was reluctant to hire new counsel. For six weeks after arriving in Peru, Garfield was unable to establish an internet connection or to attend to his client’s case. Garfield was out of touch with his client from October 15 to November 18, 2016.

On November 3, 2016, Garfield’s client hired new counsel, who discovered that a permanent orders hearing was set for November 17 and that Garfield had not participated in some prehearing matters, including disclosing witnesses. The client’s new counsel was able to reset the hearing. Garfield sent his client a letter of apology on November 18, 2016, and refunded to her $921.00, which the client believed to be fair in light of the work he completed. Garfield did not hold any of his client’s flat fee in trust during the representation.

In this matter, Garfield violated Colo. RPC 1.3 (a lawyer shall act with reasonable diligence and promptness when representing a client); Colo. RPC 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation); Colo. RPC 1.15A (a lawyer shall hold client property separate from the lawyer’s own
property); Colo. RPC 1.16(a)(1) (a lawyer shall withdraw from representation if the representation will result in ethical violations); and Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation).

(Mike Frisch)

July 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Real Disciplinary Transparency: Ohio Hits A Home Run

As readers of this blog well know, I am a huge fan of and advocate for transparency in bar discipline matters. 

When courts walk the walk (many just talk the talk), I applaud.

Ohio deserves a long and sustained standing ovation for its new online docket feature to matters pending before its Board of Professional Conduct.

As this example located in a single click demonstrates, the reader can get access to the case status, parties and counsel, charges and answer, identity of hearing panels and relevant orders and notices.

This laudable effort puts Ohio in competition with North Carolina as the most transparent disciplinary system in the United States.

An article in the Georgetown Journal of Legal Ethics by my former student Jacquelyn Desch provides an excellent analysis of disciplinary transparency in the United States. (Mike Frisch)

July 25, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, July 24, 2017

Lawyer Spanks and Is Spanked In Return

The Virginia State Bar Disciplinary Board web page notes

On July 10, 2017, the Virginia State Bar Disciplinary Board revoked Jud Andrew Fischel’s license to practice law based on his affidavit consenting to the revocation. By tendering his consent to revocation at a time when allegations of misconduct are pending, Fischel acknowledges that the material facts upon which the allegations of misconduct are pending are true.

Fauquier Now reported on his crime

A well-known Warrenton lawyer got sentenced Monday afternoon to 60 days in jail for sexually assaulting two female clients in his law office last year.

With good behavior, Jud A. Fischel will serve half that time.

After a nearly four-hour hearing in Fauquier County Circuit Court, Mr. Fischel immediately began his sentence.

The 68-year-old former substitute judge pleaded guilty in January to two misdemeanor charges of sexual battery.

A misdemeanor sexual battery conviction carries a penalty of up to 12 months in jail and a $2,500 fine.

Judge David H. Beck sentenced Mr. Fischel to six months for each count, suspending all but 30 days per offense.

Mr. Fischel also will remain under the supervision of Fauquier’s Adult Court Services Office until that agency determines the disgraced attorney has received proper treatment.

He entered “Alford pleas” during the January hearing in circuit court. Under such a plea, the defendant asserts innocence but acknowledges enough evidence to support a conviction. 

By pleading guilty, he avoided two jury trials that had been scheduled for March. 

Mr. Fischel’s victims — whose identities the court has sealed — still could file civil lawsuits.

Both testified during Monday’s hearing. The assaults — one in June, the other in February 2016 — took place at the lawyer’s 24 Ashby St. office, according to the women.

A Fauquier grand jury on Aug. 1 indicted Mr. Fischel on the first misdemeanor charge of sexual battery. Another grand jury on Nov. 28 indicted him on a second count.

One of the women Mr. Fischel represented got convicted for a minor offense.

The defense attorney had told her that she received insufficient punishment and therefore should be spanked, the victim said.

“He spanked me very hard. . . on my behind,” she testified Monday. “When that happened, I freaked out . . . . I couldn’t believe this happened.”

The experience has had a disturbing and lasting effect on her, the 55-year-old woman said.

“I just think about it all the time. . . . I just cry every day.”

Mr. Fischel represented the other victim in an auto collision case.

The 58-year-old sobbed as she recalled the assault.

Mr. Fischel had walked behind her and grabbed her breasts, she said.

Traumatized by the attack, “I just lost myself,” the victim said. “I felt like I was a dog.”

That experience also has strained her relationship with her boyfriend.

Intimacy with her boyfriend sometimes can be emotionally trying for her, she suggested.

“It’s a big problem between us,” she told the judge.

Citing medical tests, evaluations and the testimony of Mr. Fischel’s wife, Georgia, long-time friends and a former employee, defense attorney Blair D. Howard argued that dementia helps explain his client’s actions.

Mrs. Fischel spoke of periodic “attacks” in the last couple of years, during which her husband experienced memory loss and trembling hands. Among other things, he repeatedly suffered severe migraine headaches, collapsed and went to the emergency room.

Mrs. Fischel feared her husband had been developing dementia, noting that he several times got lost on his way to their Warrenton home.

Mr. Fischel closed his law practice in July. 

During 18 months before he shut the business, it had been in disarray, partly because Mr. Fischel seemed befuddled, his former secretary Kathy Welch testified.

He misfiled documents and scheduled repeat meetings with clients to discuss the same topics, leaving them confused, Ms. Welch said.

Warrenton neurologist Larry L. Stevenson has treated Mr. Fischel since the 1990s.

Dr. Stevenson spoke of events over the years that caused Mr. Fischel to lose his memory and footing. 

Mr. Fischel several months ago began using a cane to steady himself.

Under questioning by Mr. Howard, the doctor acknowledged that the effects of the attacks could have impaired Mr. Fischel’s judgment and contributed to his actions. 

In his closing comments, Mr. Howard spoke at length of his client’s long and distinguished career as a lawyer, substitute judge and community volunteer.

“He involved himself in many things.”

Mr. Howard made no excuses for his client’s actions.

“His mind — his mental health was not good when these events occurred,” he said.

While Mr. Fischel pleaded guilty to two misdemeanor sexual battery charges, “this isn’t reckless driving or disorderly conduct,” Senior Assistant Commonwealth’s Attorney Charles Peters told the judge in his closing comments. “These are extremely serious misdemeanors.

“These are such a horrible violation of both a personal and professional trust.”

Moments before he got sentenced, Mr. Fischel said he “couldn’t apologize enough” to his victims.

The defendant said he “felt horrible” about his actions. “I’m ashamed. I’m humiliated. I’ve lost my self-respect.”

And though he didn’t challenge his victims’ accounts, Mr. Fischel said he had “no recall” of the assaults.

Judge Beck referred to the defendant’s “exemplary” career. But, because Mr. Fischel had violated an important trust between a lawyer and his clients, “it is appropriate there be some jail time.”

Mr. Fischel will complete his sentence at the Northwestern Regional Adult Detention Center in Winchester.

He and his wife intend to retire to New Mexico.

Maryland indefinitely suspended an attorney for similar misconduct in 1993

Catharine Sweitzer retained Mr. Goldsborough to seek recovery for injuries she received in 1978 when she was accidentally shot by a trespassing deer hunter. In connection with his representation, Goldsborough visited Sweitzer at her home. At one point during the visit, Goldsborough told Sweitzer she was a "bad girl," pulled her over his knee, and lightly spanked her several times on her buttocks. A second incident occurred in Goldsborough's Easton office when Sweitzer visited to tell Goldsborough she had become engaged to be married. Goldsborough became upset with Sweitzer because he believed her engagement might make a jury less sympathetic to her injuries, thereby affecting her lawsuit. Again calling her a "bad girl," he pulled Ms. Sweitzer across his knee and, as before, spanked her lightly several times.

While investigating Sweitzer's complaint, the Commission's investigators learned of allegations that Goldsborough had behaved improperly toward at least one other female client, and had also repeatedly spanked a young woman who had been his personal secretary several years earlier. Ultimately, both of these women testified before the Commission's Inquiry Panel and before Judge Simpson. The client, Peggy Porter, had retained Goldsborough in the summer of 1984 to represent her in a divorce proceeding. At a meeting in Goldsborough's office in the fall of that year she became emotionally upset and, as she was leaving, Goldsborough put his arm around her and kissed her on the neck and cheek. She pulled back, said "I don't think you should be doing this," and left the office. Porter subsequently retained another attorney.

In January 1986, Sandy Schisler, then seventeen years old, applied to Goldsborough's office for a job as a secretary. She was interviewed once and then called back by Goldsborough for a second interview which took place in Goldsborough's office at which only she and Goldsborough were present. During this second interview, Goldsborough explained that he intended to teach Schisler to be a good secretary and would accomplish this by disciplining her with spankings. He demonstrated this by placing her over his knee and patting her on the buttocks. Schisler was offered a job and eventually became Goldsborough's personal secretary.1 Schisler testified that during her employment from January 1986 to November 1987, Goldsborough spanked her approximately once a week. By Schisler's account, on "more than just a handful" of occasions Goldsborough required her to bare her buttocks for the spankings. She testified that these disciplinary measures were provoked by typing errors she made in Goldsborough's documents and elementary mistakes that Goldsborough called "no brainers." Schisler testified that she did not want to be spanked, but felt that Goldsborough was trying to teach her to be a good secretary. When asked if she believed she could lose her job if she did not submit to the spankings, Schisler testified that she thought so, "because I wouldn't be learning, and I wouldn't be trying to correct my mistakes." In November 1987, Goldsborough's wife heard of the spankings and suggested that Schisler leave her job. Mrs. Goldsborough referred Schisler to counseling, for which Mrs. Goldsborough paid. Schisler also received over three times her gross weekly salary in severance pay.

The Baltimore Sun covered the Maryland decision.

The District of Columbia imposed a reciprocal sanction of suspension of at least two years in the Goldsborough case and noted

The Board [on Professional Responsibility] found more difficult the question whether Goldsborough's spanking and kissing of his clients and his spanking of his secretary violated the District's disciplinary rules. In the Board's view, the spanking and kissing did not, under District of Columbia law, constitute conduct that is "prejudicial to the administration of justice."

...Under these circumstances, we are satisfied that reciprocal discipline can and should be imposed without our having to resolve some difficult questions raised in the Board's comprehensive and scholarly opinion. Specifically, we decline, in the absence of the refinement of the issues, which would be provided by the adversarial process, to adopt any precedentially authoritative construction, as applied to the present context, of the phrase "prejudicial to the administration of justice," see Rule 8.4(d) of the Rules of Professional Conduct, or of the provision in former DR 7-101(A)(3) that a lawyer shall not "[p]rejudice or damage his client during the course of the professional relationship." We likewise need not decide whether, in a reciprocal discipline case in which the issue has been contested, the Board could permissibly invoke a disciplinary rule different from the one on which the court relied in the jurisdiction in which the initial discipline was administered. By defaulting, Goldsborough has, at least on these facts, admitted the existence of liability, and has thus conceded that the imposition of reciprocal discipline is warranted.

And footnoted

The Board was apparently of the opinion that Goldsborough's regular spanking of his young secretary over a substantial period of time did not violate any District of Columbia disciplinary rule then applicable to Goldsborough. Cf. Goldsborough I, 624 A.2d at 511 (misconduct was "relevant to law practice"); In re Adams, 428 N.E.2d 786787 (Ind.1981) (per curiam) (kissing female client and raising her blouse held to be conduct indicating moral turpitude and lack of fitness to practice law, but lenient negotiated discipline imposed).

In the present case, the Board pointed out that Goldsborough's misconduct predated the adoption, effective in 1991, of Rule 9.1 of our Rules of Professional Conduct, which provides in pertinent part that a lawyer "shall not discriminate against any individual in conditions of employment because of that individual's ... sex." See Meritor Savings Bank v. Vinson, 477 U.S. 57, 61-67, 106 S. Ct. 2399, 2402-06, 91 L. Ed. 2d 49 (1986) (explicating relationship between sexual harassment and discrimination in employment).

I well remember that debate and was amazed that the then-BPR rose to the attorney's defense.

But I was regularly amazed back in those days.

In this case, it took D.C. eight years to disclose an attorney convicted and imprisoned for sexually assaulting a vulnerable client notwithstanding his Georgia disbarment

We turn now to the question whether Mr. Rehberger's misdemeanor convictions of sexual battery and simple battery involved moral turpitude on the facts presented.   Mr. Rehberger argues that “[w]hat was done to [him] is a known political prank and fixed proceeding.”   The record disputes this characterization.   The Court of Appeals of Georgia described in graphic detail his sordid sexual contact with and abuse of a female client who sought his advice concerning divorce action taken by her husband.   See Rehberger II, 510 S.E.2d at 595-96.   Mr. Rehberger's criminal conduct not only “offend[ed] the generally accepted moral code of mankind,” but it also was base, vile, and depraved, as well as “contrary to ․ good morals.”  In re Colson, supra, 412 A.2d at 1168.

In addition, Mr. Rehberger's conduct toward his client was for his own personal gratification which “[exceeded] his ability to demonstrate a public respect and appreciation of existing societal morals and values.”  In re Wolff, 490 A.2d 1118, 1120 (D.C.1985) (alteration in original).   In the past, we have determined that an attorney's misdemeanor sexual contact conviction relating to a minor involved a crime of moral turpitude on the facts.   See In re Bewig, 791 A.2d 908, 909 (D.C.2002).   We agree with the Board that our designation of misdemeanor sexual convictions as crimes of moral turpitude on the facts should not be limited to “particularly vulnerable classes of persons” such as children.   Indeed, respondent's twenty-seven-year-old client and victim was quite vulnerable while being subjected to Mr. Rehberger's forceful, unwelcome, sordid sexual conduct.   We also agree that the Board's disposition would not foster inconsistent decisions for comparable conduct or otherwise be unwarranted.  D.C. Bar R. XI, § 9(g)(1).

The Rehberger case took so long (and was inherited by Betsy Herman after I departed) because the then-BPR improvidently granted him a hearing because the crime was a misdemeanor rather than impose reciprocal disbarment based on his (entirely legitimate) disbarment by the trial court who presided over the case. (Mike Frisch)

July 24, 2017 in Bar Discipline & Process | Permalink | Comments (0)