Friday, June 19, 2015

Crimes And Misdemeanors

The Louisiana Supreme Court denied admission to an applicant on the following grounds

Petitioner successfully passed the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) notified petitioner that she would not be certified for admission to the bar on character and fitness grounds, citing the following criminal charges against her: (1) forgery, criminal use of personal identification information, fraud/making a false statement on a driver’s license application; (2) passing worthless checks (in two separate cases); (3) grand theft (a total of three counts in two separate cases); (4) forgery; (5) theft; and (6) a violation of probation. In addition, the Committee noted that petitioner had not fully disclosed her criminal history when she applied to law school. Petitioner then applied to this court.

The court

petitioner has failed to meet her burden of proving that she has “good moral character” to be admitted to the Louisiana State Bar Association.

(Mike Frisch)

June 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Not Rhodes Scholars

The Rhode Island Supreme Court has entered an order that refers to Massachusetts findings of unauthorized practice

After the investigational hearings, the Committee made findings of fact in its forty-six (46) page Committee Report dated April 15, 2015, and it submitted said Report to this Court on or about April 16, 2015. The Committee determined by a preponderance of the evidence before it that Carl J. S. Lovett and Samuel Lovett, neither of whom are licensed attorneys in the State of Rhode Island, had over the course of years engaged in a pattern of conduct which violated the statutes governing the unauthorized practice of law by practicing law in Rhode Island, receiving pay or compensation, directly or indirectly, for services of a legal nature usually done by attorneys at law in Rhode Island, agreeing to furnish legal advice, service, or counsel to Rhode Island clients or on Rhode Island cases, or to provide the services of an attorney licensed in Rhode Island, and representing themselves through their acts and deeds as Rhode Island attorneys or holding themselves out as persons competent, qualified, authorized, and entitled to practice law in this state.

More particularly, the Committee found that Carl J. S. Lovett and Samuel Lovett operated almost exclusively out of an office located in Rhode Island for over eighteen (18) years and that, in that time frame, they handled Rhode Island personal injury, criminal, and workers’ compensation clients and cases without meaningful or actual supervision or oversight from two Rhode Island attorneys who were also employed at Lovett & Lovett.

The attorneys performed all client services save for signing pleadings and appearing in court.

The court also referred the findings for possible criminal prosecution in Rhode Island.

The firm web page is linked here.

Lovett & Lovett is a law firm dedicated to helping people. The focus of our practice is on representing people in Rhode Island and Massachusetts who have been seriously injured due to someone else’s negligence. Lovett & Lovett puts experience, knowledge and personalized attention to work to get the results our clients deserve.

(Mike Frisch)

June 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Faber

An Illinois Hearing Board recommends

Faber used settlement funds owed to his clients and a lienholder to open an investment account and purchase stocks in Faber's name. He had advised the court he would pay the lien and hold the client funds in his trust account. Faber was experiencing financial difficulties at the time and never told his clients he used their funds for personal investments. After about two years, he paid the clients and lienholder the amounts they were owed.

The Hearing Board found Faber mishandled the settlement funds and acted dishonestly. It further found Faber did not properly document his contingent fee agreement with his clients.

The Hearing Board recommended that Faber be suspended for one year and until further order of the court, with the last ten months of suspension stayed by a ten-month period of probation. In making its recommendation, the Hearing Board considered Faber's prior discipline for similar misconduct, the risk of harm caused by his conduct, his financial difficulties, and the need for oversight in managing his practice.

There was mitigation

Respondent was 78 years of age at the time of the hearing and has been licensed to practice law in Illinois since 1964. (Tr. 40, 72). He is a sole practitioner with an office in West Dundee. (Tr. 40). At the time of the hearing, he was handling ten to fifteen cases. (Tr. 44).

Respondent's wife died of cancer in 1981, and his two sons later committed suicide. (Tr. 72). Respondent testified it is very hard to work and function every day. (Tr. 73). He feels he must continue to practice law "in order to survive." (Tr. 74-75).

The income Respondent receives from his practice is not sufficient to meet his financial obligations. (Tr. 46). The Internal Revenue Service has levied Respondent's Social Security income because Respondent owes $79,000 in back taxes. (Tr. 58). Respondent's residence is in foreclosure. As of December 2014, Respondent owed real estate taxes for 2012 and 2013 on his commercial property. (Tr. 59).

Respondent called the Honorable Jeffrey Lawrence of the Circuit Court of Cook County and attorney Clifford Lund as character witnesses. Judge Lawrence shared office space with Respondent from approximately 1972 until 1978 or 1979. (Tr. 102). He expressed his gratitude toward Respondent for helping him early in his legal career. In Judge Lawrence's experience, Respondent was always honorable. (Tr. 105). Judge Lawrence has not seen Respondent since 1992, nor has he maintained his acquaintance with Respondent over the years. (Tr. 102-103).

Lund has known Respondent since the mid-1980s, when he assisted Respondent with a large case. (Tr. 109). He knows lawyers and judges who know Respondent, and he believes Respondent has a good reputation for honesty and integrity. (Tr. 111). Lund has represented Respondent in his pending foreclosure action for the past four years. (Tr. 114).

He had previously been suspended for 60 days. (Mike Frisch)

June 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reciprocal Discipline Based On Sanction Where Attorney Never admitted

The Wisconsin Supreme Court imposed reciprocal discipline of an attorney sanctioned in Arizona, where he had never been admitted to practice.

In May 2013, Attorney Strizic was disciplined in a jurisdiction——Arizona——where he is not licensed to practice law.  After finding that Attorney Strizic had failed to answer or otherwise defend against a State Bar of Arizona disciplinary complaint, the Arizona Supreme Court found that:  (1) Attorney Strizic exerted undue influence over a client to obtain an unwarranted benefit for himself by preparing trust documents for the client and including himself as a beneficiary; (2) Attorney Strizic intentionally failed to comply with the Arizona disciplinary investigation; and (3) Attorney Strizic held himself out to the public as a licensed lawyer even though he did not have an Arizona law license. 

The court noted the "rather unusual posture" of the case and decided

Attorney Strizic admits to conduct in Arizona that, we conclude, constitutes violations of SCR 20:1.8(c) (soliciting a substantial gift from a client) and SCR 20:5.5(a)(1) (practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction).  Attorney Strizic also pled no contest in the stipulation to failing to notify the OLR of his Arizona discipline within 20 days of the effective date of that discipline, in violation of SCR 22.22(1).  We conclude that if the OLR had commenced a freestanding disciplinary action rather than proceeding under the reciprocal discipline rule, the admitted misconduct would warrant a 60-day suspension of Attorney Strizic's Wisconsin law license. 

He also is admitted in Illinois. (Mike Frisch)

June 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 17, 2015

Homeless Lawyer Disbarred

An attorney who had engaged in misconduct in 14 separate matters has been disbarred by the South Carolina Supreme Court. 

A sampling

Client hired Respondent to represent her in a divorce. On at least two occasions, Respondent showed up late at night, unannounced at her home. One of these times was the evening before the divorce hearing. He was not prepared to try the case the next day and pleaded with her to settle. Respondent refused to negotiate with the guardian ad litem and was unprepared when the hearing went forward. After the client requested her file several times from Respondent, he informed her the order had not yet been signed and he was still working on the case.

His story is a sad one

Respondent appeared pro se at the hearing before the Panel on October 17, 2014, and was allowed to present evidence in mitigation. Respondent testified he has been homeless since 2009, when he sold the house he had shared with his former wife. Since then he has been living with other people, in his office, or in his car. He stated he had no money to pay restitution and was on food stamps...Respondent testified his difficulty has always been financial and he has never engaged in drug use. He expressed his difficulty learning the practice of law—he could not find a job and had to go into practice on his own without really knowing what he was doing.

The Panel gave little weight to the attorney's difficulties.

The court

Considering the numerous instances of misconduct combined with Respondent's deception of both his clients and ODC, we agree with  the Panel's recommendation of disbarment. It is significant that Respondent failed to file an answer to the formal charges and has repeatedly failed to cooperate with ODC and the [Attorney to Protect Clients' Interests] in the investigation of these matters...While we acknowledge Respondent represented himself at oral argument before this Court and expressed his desire to one day again practice law, he himself admitted it would not be for at least several years and acknowledged he would likely be disbarred; he simply requested that he one day be able to reapply for admission. We therefore find disbarment the appropriate sanction.

(Mike Frisch)

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

Answer Filed In Water Bottle Ethics Charges Where Attorney Saved Innocent Client

A North Carolina death penalty defense attorney has answered charges that she violated ethics rules by failing to return a glass with possible DNA when she left the home of a suspect's sister .

The attorney admits that she took a disposable plastic water bottle from the sister's home believing it was her own and did not return it when she got to her car and realized the mistake (see paragraphs 29-31)

She denies that the conduct constitutes grounds for discipline and seeks costs against the State Bar.

Our prior coverage noted that the attorney's efforts led to her client's exoneration.

(Mike Frisch)

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

Permanent Disbarment For Practicing While On Disciplinary Suspension

Kathleen Maloney reports on the web page of the Ohio Supreme Court

Shawn J. Brown of Cleveland had been indefinitely suspended in October 2011 for misconduct, but continued to represent clients and appear in court. Today, in a unanimous decision, the Ohio Supreme Court permanently prohibited Brown from practicing law again in the state.

The court had ordered the indefinite suspension in 2011 because Brown had neglected cases for three different clients, did not properly communicate with the clients, and failed to give them money to which they were entitled. Yet, throughout much of the next year, Brown filed documents with various courts and appeared on behalf of clients during proceedings in four other cases.

In another matter, a woman paid Brown $550 to transfer real estate to her father. When Brown did not produce the new deed, the woman discovered on the Internet that he was suspended. Brown has neither transferred the property nor refunded the fee she paid.

The Cleveland Metropolitan Bar Association, which filed this complaint against Brown, tried to contact the attorney at least 14 times. One certified letter was signed for, and a package with all the materials about the disciplinary allegations was personally delivered to Brown. He never replied to the bar association’s request for a response.

Because Brown kept practicing law on multiple occasions during his suspension and because he did not cooperate as required with the disciplinary investigation, the court in a per curiam opinion concluded that disbarment was the appropriate sanction.

2013-1885Cleveland Metro. Bar Assn. v. BrownSlip Opinion No. 2015-Ohio-2344.

(Mike Frisch)

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

Disbarment Proposed For Probation Violations

An attorney who had failed to comply with the terms of probation in a prior disciplinary matter should be disbarred as a result, according to a recommendation of the California State Bar Court Review Department.

Haddix became a member of the California State Bar on March 20, 1989. He was first admitted to practice law in Michigan in 1965, and then in Illinois in 1966 or 1967. Throughout his lengthy career, he has litigated cases in various practice areas including family law, criminal defense, constitutional law, and civil rights.

He violated the terms of a five-year probationary period

Haddix insists he can comply with future probation terms because his attorney will oversee his reports and correct any errors. The hearing judge properly rejected this solution, reasoning that “hir[ing] an attorney to do the required probation reports is hardly the purpose of the probation conditions.” We agree that although another attorney’s assistance might enable Haddix to fulfill his probation terms, it does not protect the public from his inability to perform similarly simple, and certainly more complex, tasks for clients.

Mitigation factors argued by the attorney were rejected

Haddix argues he is entitled to mitigation because his physical difficulties exacted an emotional toll on him while caring for his ill wife. To support his claim, he points to the testimony of his wife, son, and former partner, who each stated that Haddix and his wife endured significant health problems between 2010 and 2012. Haddix testified that his own health had been slowly declining even before that. Further, he suffered debilitating symptoms of anemia, including fatigue and dizziness, which led to his hospitalization. He produced an October 2011 medical statement from his physician indicating he had limited physical capacity and stamina that prevented him from completing his daily responsibilities. As to his prognosis, the doctor opined that changes in Haddix’s work and medical care would “hopefully” allow him to work at a modified pace.

The record does not establish that Haddix’s difficulties caused his misconduct. He began experiencing physical symptoms, at the earliest, about October of 2009, -11- 9 and his wife’s symptoms began in the first half of 2010. Yet his systematic failures to comply with standard discipline conditions began years earlier, in 2006. This prior history of non-compliance casts doubt on Haddix’s assertion that health conditions and related stress caused the present misconduct.

And these difficulties remained unresolved.

In sum

Unfortunately, he cannot comply with even basic conditions of his probation, such as filing timely quarterly reports. Given his pattern of repeated violations, the risk is high that Haddix will commit future misconduct, which may endanger the public. We recommend the presumptive discipline of disbarment...

(Mike Frisch)

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

No ADA Defense In Reciprocal Discipline Matter

The California State Bar Court Review Department proposes a 30-day actual suspension as reciprocal discipline for sanctions imposed in Nevada.

In late January 2011, Boles was hospitalized for a day for an unspecified condition, and then followed his doctor’s advice to take an immediate medical leave. He traveled to Santa Barbara, California, where he maintains a residence. Because he was a solo practitioner, he placed most of his caseload with other attorneys, retaining approximately eight matters he either was unable to refer to other counsel or he felt some obligation to complete. Boles remained on active status with the Nevada State Bar. His misconduct stems from two matters he retained...

We agree with the hearing judge that Boles failed to prove that his professional misconduct in Nevada does not warrant discipline in California as a matter of law. To the contrary, we find that he failed to communicate and to perform in both the Miller and Petro matters.

The discipline did not violate the Americans with Disabilities Act

Boles has also failed to demonstrate the Nevada proceedings were constitutionally inadequate. His primary argument is that the Nevada Disciplinary Board violated his rights under the Americans with Disabilities Act (ADA) by disciplining him for his disability. His argument is vague, but we glean from his testimony that the Board offered him the choice of either voluntarily placing himself on disability inactive status for six months or facing trial. Boles maintains that he should have been given the option to reduce his caseload so that he could continue to work “while bearing the burden of his neurological condition” and avoid a disciplinary trial.

The review department recommends that he comply with numerous condition that included pass ing the MPRE, (Mike Frisch)

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

From Disciplinary Judge To Respondent Attorney

An attorney who had served as a hearing committee member in the District of Columbia bar disciplinary system now faces a possible six-month suspension as recommended by an Ad Hoc Hearing Committee for his mishandling of a personal injury matter that involved a skiing accident.

 The committee found that he had conducted no meaningful pre-suit investigation, failed to preserve evidence, mishandled the case and falsely told the client he had hired an investigator.

We see no reason—and Respondent did not give one—why a lawyer would not keep copies of an investigator’s reports in the client’s file. The absence of any documentary evidence of the investigator’s retention or any reports, and Respondent’s professed inability to recall the investigator’s name, persuades us that no investigator was retained. Moreover, Respondent’s demeanor during this part of his testimony, as it was at several points during examination by Bar Counsel, was dismissive, if not belligerent. We find that his testimony on this subject was deliberately false, which further confirms our finding that he failed to make adequate efforts to obtain evidence that might have supported his client’s claims.

The committee rejected mitigation evidence relating to a broken arm suffered by the attorney

We find that although Respondent suffered health problems as a result of his March 2004 accident, his testimony that he was unable to complete any work on the case until December 2005 was not credible. Neither of his medical providers testified to any cognitive impairment, and neither advised Respondent to stop practicing law as a result of his physical condition. His physical limitations did not prevent him from appearing in court on nine occasions in 2004. While we do not doubt that Respondent’s injuries were severe, the evidence shows that Respondent continued to practice despite the injury. We accordingly reject his claim that his health problems prevented him from representing his client at the level the rules require. In addition, had respondent’s injury truly prevented him from representing his client at the level the rules require, Respondent was obliged to seek substitute counsel for his client and transfer responsibility for the matter to him or her. As noted above, Respondent failed to do this, in defiance of an explicit order by the court.

As to sanction

We recognize that six months’ suspension is at the higher range of sanctions in similar cases. We find that it is justified by Respondent’s refusal to accept any responsibility for his actions. His failure to acknowledge any wrongdoing, his evasiveness and at times, belligerence and his dishonest testimony are significant aggravating factors that warrant a lengthy suspension.

The case is In re Nathaniel H. Speights. ( Mike Frisch)

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

Tuesday, June 16, 2015

True Attorney

A new idea in CLE  video - True Attorney - is featured on the web page of the Louisiana Attorney Disciplinary Board

Who says continuing legal education isn't entertaining? The Louisiana Attorney Disciplinary Board's new “True Attorney: Disciplinary Case Files” web series educates lawyers in an entertaining and engaging way. Ethical dilemmas, based on actual cases, are reenacted by lawyers and actors. The program's production values are comparable to popular television shows with dramatizations that illustrate the consequences of attorneys who violate the rules of professional conduct.

"The Disciplinary Board has always sought new and innovative ways to present continuing legal education to the lawyers in this state, particularly in the area of ethics," explained Charles B. Plattsmier, Chief Disciplinary Counsel. "The format of the True Attorney series is different from anything we've tried before. I was fascinated by the approach, informed by the content, and excited about the potential. I think lawyers will agree."

The Advocate featured an article "State board launches continuing ed Web series" in January of 2015. Click here to read it.

(Mike Frisch)

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

Monday, June 15, 2015

A Rose By Any Other Name

The District of Columbia Court of Appeals has reacted to a proposal made in May 2014 by the Bar's Board of Governors

Court of Appeals Seeks Comments on Proposed Title Change of Bar Counsel

June 15, 2015

The District of Columbia Court of Appeals is seeking comments on a proposal by the D.C. Bar to amend Rule XI of the D.C. Court of Appeals Rules Governing the Bar to change the title of Bar Counsel to Disciplinary Counsel and, in effect, to make conforming changes to other rules.

In its proposal, the Bar's Board of Governors said the new title would more accurately reflect the activities of the prosecutorial office of the D.C. attorney disciplinary system. If adopted, the Office of Bar Counsel would also be renamed the Office of Disciplinary Counsel.

The proposed amendment was first submitted to the Bar by the Board on Professional Responsibility in February 2014. In May of that year, the Board of Governors voted to support the proposal and to submit it to the court for its consideration.

In addition to the title change, the proposal seeks to amend relevant D.C. Rules of Professional Conduct and Comments; Rule II, Section 7, of the Rules Governing the Bar; and the Commentary to D.C. Court of Appeals Rule 49(e) to conform to the proposed new name of the disciplinary office. 

Interested parties must submit their written comments by August 10, 2015. Ten copies of any comments should be addressed to Clerk, D.C. Court of Appeals, 430 E Street NW, Washington, DC 20001.

View the full court notice or read additional information about the proposal.

I commented on this proposal last year

By letter to Chief Judge Washington dated May 14, 2014, the Board gave three reasons for changing the name that has been used in court opinions and known to the Bar and the public since 1972:

1. "To reflect more accurately the activities of the prosecutorial office of the disciplinary system; "

2. "To resolve the current confusion among the members of the Bar who believe that Bar Counsel is the office that they should contact to advise them about ethical questions; and"

3. "To avoid erroneous service of process on disciplinary authorities perceived to be counsel for the District of Columbia Bar in matters in which the Bar is sued."

Well.

If you want to avoid confusion, don't change the name that an Office has been known by for the past 42 years.

It is also well known and made clear to whoever calls Bar Counsel that the office  does not provide ethical advice. That has been so since the 1980s. Any calls are simply referred to the Bar's Ethics Counsel. Reason #2 is entirely specious. -- a solution without a problem.

But it is the third justification that really grabs me --they want to it make it easier to sue the Bar. That doesn't even pass a laugh test.

I'm not sure what is behind this truly awful idea, but it surely is not for the reasons given by the Board of Governors.

Also, if names of the disciplinary components need to "reflect more accurately" their functions, I can think of several new names that better describe the Board on Professional Responsibility.

I had hoped that the court had placed this proposal where it rightly belongs - the circular file. Another hope dashed.

The notice is linked here. (Mike Frisch)

June 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Home Shopping Gets Lawyer In Hot Water

An attorney who represented clients in a Chapter 13 bankruptcy has been charged with a conflict of interest in purchasing the clients' home in the foreclosure sale.

The Illinois Administrator filed a complaint alleging

At the sale proceeding on July 10, 2012, pursuant to his agreement with [bank vice president] Royal, Respondent bid $60,000 for the Baldwins’ home and issued a check in the amount of $6,000 as an earnest deposit and down payment. There were no other bidders, and Duvendack accepted Respondent’s bid. Respondent and Duvendack signed a "memorandum of agreement of purchase at foreclosure sale" that reflected the transaction.

Respondent’s purchase of the Baldwins’ home for the amount of $60,000 subjected the Baldwins to a deficiency judgment of at least $20,000, and Respondent knew of that fact at the time of his purchase.

In bidding for and agreeing to purchase the Baldwins’ home at the foreclosure sale, Respondent placed his own financial interests in direct conflict with the financial interests of his clients.

At no time before he bid for and agreed to purchase their home at the foreclosure sale did Respondent inform either of the Baldwins that he would attempt to purchase their home. At the time of the foreclosure sale, neither Heath Baldwin or Trina Baldwin was aware that Respondent would bid for and attempt to purchase their home at the sale.

On July 11, 2012, in case number 11-CH-64, Jacksonville Savings Bank filed a motion to approve the sale of the Baldwins’ home to Respondent, along with the Sheriff’s report of sale and other records. In the motion, the bank requested that the court issue a judge’s deed conveying the property to Respondent and enter a deficiency judgment against the Baldwins in the amount of $25,824.31. The motion to approve the sale was set for hearing on July 30, 2012. The bank served the above-described pleadings and notice of the July 30, 2012 hearing on Respondent as counsel for the Baldwins.

On July 11, 2012, Respondent informed the Baldwins that he had bid $60,000 for their home at the foreclosure sale and the bid was accepted. Respondent offered to sell the property back to the Baldwins for the same price, but he did not offer the Baldwins the same financing arrangement that he had obtained or any financing arrangement. The Baldwins declined to repurchase the home from Respondent.

At no time did Respondent advise Heath Baldwin or Trina Baldwin that, in relation to his pending acquisition of the home, his interests conflicted with their interests.

At no time did Respondent inform either of the Baldwins, in writing or otherwise, that they were entitled to seek the advice of independent legal counsel and have a reasonable opportunity to do so, in relation to his purchase of their home.

At no time did Respondent obtain the Baldwins’ informed consent, in a writing signed by the Baldwins, to the essential terms of the transaction by which he was purchasing their home and Respondent’s role in the transaction, including whether he was representing them in the transaction.

At no time did Respondent advise the Baldwins of their right to object to the bank’s motion to approve and confirm the foreclosure sale and for deficiency judgment.

At no time did Respondent withdraw or seek leave to withdraw as the Baldwins’ attorney in their foreclosure case number 11-CH-64. Respondent’s attorney-client relationship with the Baldwins endured at least through the completion of the foreclosure proceeding by entry of final judgment on July 30, 2012.

Respondent, as the Baldwins’ attorney, filed no objection to the bank’s motion to approve and confirm the foreclosure sale and for deficiency judgment against the Baldwins. On July 30, 2012, the court entered an order that approved and confirmed the foreclosure sale. The order included a deficiency judgment in the amount of $26,250.57 against the Baldwins and in favor of Jacksonville Savings Bank. (The judgment amount included interest that had accrued since the date on which the motion to confirm was filed.) Also on July 30, 2012, the court entered a judge’s deed that conveyed title to the Baldwins’ home from the Baldwins to Respondent.

The attorney  is charged with violations of Rule 1.7 and 1.8(a) and (i).

The State Journal-Register had noted a previous suspension of six months for misconduct in two criminal matters.

A hearing board meeting in October found that G. Ronald Kesinger revealed confidential information told to him by a client in 2009 concerning the client’s actions in a 2008 Rantoul murder, resulting in Kesinger’s client being convicted of felony murder.
Kesinger also breached his fiduciary duty to another Champaign County client in an attempt to obtain a larger fee for himself, then converted $4,000 of the client’s bond refund to himself.

(Mike Frisch)

June 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Client Abandoned: Attorney Disbarred

An attorney who defaulted on disciplinary charges was disbarred by the Georgia Supreme Court.

The court recounted the facts

a client paid Lovett $1,000 to represent her in being appointed as administrator of the estate of her sister, who died intestate. Lovett told the client that it would take at least a year to accomplish her goal and that she should contact him at the end of that time. When the client attempted to contact Lovett after a year, however, she found that his office was closed and that his phone had been disconnected. Following her efforts to locate Lovett, he called her and told her that he was no longer practicing law, but that his previous landlord would complete her case for no additional fee. The client contacted the landlord who denied any agreement to handle her case. Lovett failed to refund any of the fee the client paid or to return the client’s file to her, despite her requests to do so. Lovett failed to submit a response to the Investigative Panel in this matter.

(Mike Frisch)

June 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

"An Alarming Lack Of Familiarity With Fundamental Legal Procedure"

The Georgia Supreme Court has disbarred an attorney for lack of diligencein several matters

In one

the special master noted that at the hearing she “continued to display an alarming lack of familiarity with fundamental legal procedure.” She acknowledged that she did not file an answer because she did not take the Formal Complaint seriously, but blamed others for her lack of concern, did not file a formal motion to open default, and did not show any legal basis for opening default. In her motion for extension of time Starling stated that it was based on illness that had taken her out of the county since May 2013 before the filing of the Formal Complaint. But the Formal Complaint was filed in July 2012, she acknowledged service in August 2012, and her answer was due in September 2012.

DouglasNow.com reported on criminal charges against the attorney and noted

Starling has made statewide headlines recently as the attorney for Diana Jacobs, the former operator of the Rosewood Manor assisted living facility in Nicholls who was recently charged with concealing a death and financial transaction card fraud after the remains of a former resident of the center were found buried on the property last month.

Most recently, while representing Jacobs during a bond hearing last week, Starling appeared disoriented in court, referring to her client as a male on several occasions. Judge Gillis ultimately stopped the hearing due to her condition.

Starling's license to practice law in the State of Georgia was temporarily suspended in February of this year after she failed to respond to a notice of investigation by the State Bar. Her license was reinstated in March.

(Mike Frisch)

June 15, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 14, 2015

Self-Report Leads To Disbarment

An attorney who had self-reported eleven years of trust account violations was nonetheless disbarred by the South Carolina Supreme Court.

Respondent operated a law firm as the principal shareholder for twenty-four years, primarily handling plaintiff's personal injury cases on a contingency basis. For a period of approximately eleven years, Respondent used funds from his trust account for purposes for which those funds were not intended, including funding other clients' litigation, cash advances to clients, office operating expenses, payroll, and personal expenses.

Respondent instructed his nonlawyer staff with signatory authority on his trust account to issue checks from that account for purposes for which those funds were not intended.

Respondent failed to properly reconcile his trust account or otherwise maintain records required by Rule 417, SCACR. As a result of inadequate accounting practices, Respondent made numerous mistakes in client transactions resulting in overpayments of attorney's fees to the firm, overpayments to clients, and bank fees that were not covered by firm funds.

Periodically, Respondent attempted to restore misappropriated funds by leaving earned fees in his trust account, but no regular accounting of those credits was maintained.

As of August 31, 2011, Respondent had approximately $565,806.86 in negative client ledger balances. At the time of his interim suspension, the balance in Respondent's trust account was $439,042.30.

A Panel had recommended a three-year suspension

While the Panel recognized "disbarment would seem to be the most appropriate sanction," it recommended a three-year retroactive suspension based in part on the mitigating factors, and in part on its belief that a lesser sanction will provide an incentive for lawyers to self-report.

The court disagreed

Like the Panel, we are moved by the depth and sincerity of Respondent's remorse and impressed by the level of cooperation he has demonstrated since self-reporting his misconduct. We cannot, however, ignore that in addition to violating Rules 1.8 and 5.3(C)(1), RPC, Rule 407, SCACR, and Rule 417, SCACR, Respondent took money that was not his from his trust account over the course of eleven years. We find disbarment is the appropriate sanction, but order that it be retroactive to the date of Respondent's interim suspension, September 2, 2011.

(Mike Frisch)

June 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 12, 2015

The Duplex

An attorney was censured by the New York Appellate Division for the Fourth Judicial Department for failure to pay child support and

respondent admits that, in early 1990, he entered into a month-to-month verbal lease for one unit of a duplex apartment owned by a personal friend. Respondent admits that, between April 1990 and January 2012, he simultaneously represented the friend and certain of his own family members in several transactions whereby an ownership interest in the duplex apartment was transferred between the parties. Respondent admits, however, that he failed to advise the parties to seek independent legal counsel or to disclose to them the risks posed by his representation of their differing interests in the transactions. In addition, respondent admits that he had a business and personal interest in the transactions whereby his family members obtained an ownership interest in the duplex apartment inasmuch as he expected that, by virtue of those transactions, he could continue to live in the apartment regardless of the status of his relationship with the friend. Respondent further admits that he failed to advise the friend to seek independent counsel in relation to those transactions, and he did not obtain from her informed consent, confirmed in writing, regarding his inherent conflict of interest in the transactions. Respondent additionally admits that, in 2012, the friend commenced certain eviction proceedings against him and, in one of those proceedings, respondent represented a family member whose interests were adverse to those of the friend. Respondent further admits that, in a separate eviction proceeding, he appeared pro se to contest the eviction on the ground that he occupied the duplex apartment pursuant to a tenancy-in-common interest that was created by virtue of the aforementioned transfers of ownership to his family members.

The attorney had three prior admonitions and "several" letters of caution. (Mike Frisch)

June 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

More Than Just "Atrocious" Record Keeping

The Kansas Supreme Court disbarred an attorney admitted in 1999.

The misconduct involved a client he met through a real estate closing

Following that contact, the respondent and P.M. discovered that they had many things in common. During the period of time that followed, P.M. engaged the respondent as her attorney, they became friends, and they became business associates. On a number of occasions, the respondent and his family traveled on vacations with P.M. Respondent testified he grew to care more for P.M. than his own mother. [Footnote: P.M. testified at the hearing on the formal complaint. She was 82 years old at the time. P.M. suffered an injury in her home in August 2014, and was still in the process of recovering from the injury. The respondent objected to her testimony on the grounds of competency. The competency objection was overruled.

He became her attorney in 2007 and also had limited power of attorney. in addition, he was involved in a family farming business.

The misconduct involved excessive fees, conflicts of interest, violation of the business transactions with clients rule and

Lawyers must safeguard client's property. KRPC 1.15. In this case, the respondent failed to properly safeguard P.M.'s property—he was unable to account for at least $65,364 or as much as $169,653. Based upon the respondent's failure to properly account for P.M.'s funds, the hearing panel concludes that the respondent violated KRPC 1.15.

The key transaction

On October 7, 2009, the respondent formally established a limited liability company with P.M., called Madden Ventures, LLC. The respondent and P.M. were each 50% owners of Madden Ventures, LLC. Additionally, there is evidence and testimony that the parties formed a business relationship and acted as partners prior to this date. "

P.M. contributed all the capital to Madden Ventures, LLC, including the proceeds from an IRA. Additionally, the respondent effected the transfer of real property, located in Kansas and elsewhere, owned by P.M. to Madden Ventures, LLC. (The respondent stipulated that he violated KRPC 1.8 by transferring his client's property to an entity in which he was an owner.)

Despite the 50% ownership interest, the respondent did not contribute any capital to Madden Ventures, LLC. Likewise, the respondent did not transfer any of his real property into Madden Ventures, LLC. Respondent testified his contributions to Madden Ventures, LLC, were his management skills and his financial standing enabling him to guarantee loans for the LLC. Thus, with regard to the Donahey property, notwithstanding that respondent was the seller, settlement agent, and attorney for P.M., the respondent also acquired an ownership interest in the Donahey property as a buyer because of his 50% interest in Madden Ventures LLC.

The Rule 1.8(a) violations

The respondent stipulated that his conduct violated KRPC 1.8(a) in two respects. First, the respondent stipulated that he violated KRPC 1.8(a) by receiving a loan of $15,000, from P.M. Second, the respondent stipulated that he violated KRPC 1.8(a) by transferring P.M.'s property into Madden Ventures, LLC, in which he was an owner. This was not a business relationship where the respondent had contributed a substantial amount of assets to the LLC. He had contributed none. All the risk of loss was on P.M. The hearing panel accepts the respondent's stipulations and concludes that the respondent violated KRPC 1.8(a)

The court on sanction

After careful consideration, a majority of the court agrees with the office of Disciplinary Administrator that disbarment is the appropriate sanction. The facts, which are undisputed before this court, show a flagrant pattern of misrepresentation, conflict of interest, and exploitation of a vulnerable client over a number of years, all of which resulted in a substantial loss of the client's property. This is not simply a matter of "atrocious" record keeping, as the respondent characterized it. A minority of the court would follow the hearing panel's recommendation of indefinite suspension.

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

June 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Consent Dispositions Gaining Momentum In D.C.

There appears to be a recent trend toward the approval of consent dispositions in the District of Columbia.

The Court of Appeals approved a nine-month with fitness consent

Based upon the three incidents identified in the Specification of Charges, respondent admittedly violated numerous rules of the District of Columbia Rules of Professional Conduct, which led Bar Counsel and respondent to negotiate discipline in the form of a nine-month suspension, with a fitness requirement for reinstatement. Bar Counsel filed a petition to this effect and the Committee concluded, after the limited hearing on the petition, an in camera review of Bar Counsel’s investigative files and records, and its ex parte meeting with Bar Counsel, that respondent violated the numerous Rules of Professional Conduct and D.C. Bar Rule identified in the Specification of Charges.

We agree with the Committee’s recommendation because it properly applied D.C. Bar XI 12.1 (c) to arrive at this conclusion, and we find no error in the Committee’s determination. Furthermore, the Committee considered the aggravating factors and mitigating circumstances, including respondent belatedly taking full responsibility for his actions, his decision to voluntarily cease practicing law, payment of restitution to all clients, and, after his initial non-compliance, full cooperation with Bar Counsel.

As to sanction

Although this court has not previously exceeded the six month parameter for suspension, respondent’s pattern of misconduct over a four-year period, coupled with his consent to the sanction, affords the court discretion to impose a nine month suspension.

Consent dispositions do not have precedential value for sanction purposes.

I only hope this trend continues. (Mike Frisch)

June 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Truth Be Told

The Illinois Review Board has proposed a 30-day suspension of an attorney who made a false statement in litigation and unauthorized payments in two matters,

The lie

Respondent represented Tri-County Special Education in a workers' compensation claim brought by Michelle Wise. Wise was represented by Carbondale attorney R. James Giacone ("Giacone").

In December 2012, the Wise case was scheduled for arbitration. Respondent asked Giacone whether he would be willing to continue the Wise matter because Respondent had a personal matter to which he had to attend. Giacone told Respondent he would agree to a continuance but also stated that Wise was very interested in resolving the matter. Accordingly, they agreed they would arbitrate the matter at the next available docket date on March 12, 2013 in Herrin, Illinois.

Respondent had two other matters requiring his attention on March 12, 2013. One was a matter in Caruthersville, Missouri and the other was a matter in Springfield, Illinois. On March 11, Respondent told Giacone he could not get the Caruthersville matter continued. However, they agreed that Respondent would go to Caruthersville in the morning of March 12 and then would come to Herrin by that afternoon. Giacone agreed to explain the situation to the arbitrator and try to keep the arbitrator available for that afternoon.

Respondent testified that later in day on March 11, he resolved the Caruthersville case. However, he did not tell this to Giacone. Instead, he testified he decided to go to Springfield. On March 12, Respondent sent several text messages to Giacone falsely advising him he was in Caruthersville. When it appeared he might not make it to Herrin, they agreed to have a pre-trial conference by telephone. Respondent then repeated the lie to the arbitrator, again falsely stating he was in Caruthersville. The arbitrator continued the matter. The case ultimately settled.

The Hearing Board found that Respondent violated Rules 8.4(c) (conduct involving dishonesty, deceit, fraud or misrepresentation) by intentionally lying to the arbitrator and intentionally lying several times to Giacone and 8.4(d) (conduct prejudicial to the administration of justice) by causing unnecessary delay in the Wise matter.

On sanction

Respondent's misconduct was not confined to one matter but rather to several. There were a number of relatively harmless infractions of some very basic Rules. Pursuant to the Rules, lawyers are prohibited from lying to opposing counsel and to the decision-makers in their clients' cases. The effective administration of justice depends on lawyers behaving honestly even when a lie would be so much easier than telling the truth. Likewise, lawyers are required to communicate relevant information, including negative information, to their clients. Settling a client's matter without the client's knowledge, even if benefitting the client, removes the client's ability to make important decisions regarding the representation and thus distorts the fundamental relationship between lawyer and client. Each day, lawyers must decide whether or not to comply with the Rules or take a seemingly easy, harmless way out of an uncomfortable situation. In this matter, Respondent's repeated failure to make the right decisions to comply with the most fundamental rules governing our profession warrants a sanction greater than a censure.

In order to protect the integrity of the legal profession and deter other attorneys from engaging in similar acts, we believe that a thirty day suspension is warranted. We recommend that Respondent Thomas E. Margolis be suspended from the practice of law for a period of thirty (30) days.

The Hearing Board felt that the suspension should be for 60 days. (Mike Frisch)

June 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)