Wednesday, May 13, 2015

The Wrong Way To Deal with A Bar Complaint

The California State Bar Court Review Department has recommended a fully-stayed one year suspension and probation of an attorney who neglected the representation of a Texas client who had retained her to look into a theft of jewelry allegation that took place when the client lived with a family in San Diego.

The misconduct was exacerbated by the attorney's initial non-cooperation but more so by her threats to the client and her grandfather. She communicated primarily with grandpa.

Prevost berated [client]Walker for allowing her grandfather to terminate Prevost’s services. She again accused Walker of lying to the State Bar...

Two weeks later, Prevost sent another email, this time to [grandfather] Hannum, in which she stated that "people who use drugs and steal from their friends are rarely credible witnesses." She also accused Hannum of being "overbearing" and intimidating Walker into filing the complaint with the State Bar. Prevost warned Hannum of the consequences of pursuing the complaint: "[W]hatever your motivation, I would suggest you take a step back and understand that you have put Alyssa in a precarious position of lying to the State Bar of California in a public proceeding by requiring her to sign documents that you wrote, and that are patently false. She will be subject to cross examination of this. Your complaint is public record. This case is public record. I really don’t wish to put Alyssa in a position to have to defend herself – and people who use drugs and steal from their friends are rarely credible witnesses – but I will do the most to defend myself . . . ." In closing, she stated, "I go to State Bar Court next week. I seriously hope you consider your actions, the consequences, and the public nature of your allegations." Hannum considered her letter to be threatening to him and his granddaughter.

The attorney also failed to return unearned fees.

Turns out there never was a criminal complaint brought against the client. (Mike Frisch)

May 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2015

Misplaced Trust

A former colleague brought to my attention this footnote in a 2005 District of Columbia Court of Appeals opinion that had rejected an attorney's claims based on a three-year delay in the filing of the hearing committee report

Although we are satisfied that the Committee’s delay in issuing its report in this case did not result in a biased recommendation to the Board, we are nonetheless troubled by the length of time it took the Committee to complete its work in this case. We can foresee circumstances where such a long delay could result in the preparation of an inaccurate record and thus prejudice an attorney’s ability to defend him or herself against allegations of unethical conduct. While we are not unmindful that our disciplinary system relies on volunteers, especially at the Hearing Committee level, and that with any volunteer system some minimal delay can be expected, we trust that the Board is instituting appropriate measures to monitor and assist Committee members in the exercise of their responsibilities so as to minimize the possibility of such a significant delay occurring in the future.

A decade later, the hearing committee delays have only gotten worse.

And the problem of delay is not confined to the hearing committees. 

If the D.C. disciplinary system ever conducts a real study of systemic delay, the results would cost some people their jobs.

I guess that is why no public report on disciplinary activities will ever see the light of day in the District of Columbia.

The court's professed "trust " in its disciplinary system can only be described as misplaced wishful thinking.

I favor Trust, but verify. (Mike Frisch)

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

Monday, May 11, 2015

Attorney's Efforts Free Innocent Man; State Bar Files Ethics Charges Over Water Bottle

The North Carolina State Bar's war on criminal defense counsel continues with these charges filed against the Executive Director and legal counsel to the North Carolina Center for Actual Innocence in Durham.

The allegations involve efforts to establish the innocence of Joseph Sledge, convicted of a double second degree murder in 1978. No DNA evidence was available at the time of the conviction.

Sledge's efforts to obtain DNA testing led to the reopening of the investigation in 2009.

The charges relate to the attorney's efforts to secure DNA linked to other suspects.

She is alleged to have taken a water bottle from the home of the sister of two brothers suspected of the murders without permission to test for DNA and concealing that she had done so in subsequent conversations with the sister.

The allegation is that, after the sister refused to voluntarily give a DNA sample, the attorney left

Mumma took with her when she left [the sister's] home a half empty water bottle that Mumma knew at the time may not have belonged to Mumma.

When Mumma got to her car, she confirmed that the water bottle she had taken from the [sister's] residence did not belong to Mumma. Mumma had left her water bottle in her car. She did not bring it into the [sister's] residence.

When Mumma realized she had a cool, half-empty water bottle that might yield a DNA sample of Smith family DNA, she decided not to take it back into the home, but to take it with her to contemplate whether to submit it for DNA analysis.

Indy week reported that the attorney's efforts led to Sledge's exoneration

 He spent four decades in prison for a double murder he didn't commit. Mumma worked on Sledge's case for 10 years, and she was his attorney when last month, a three-judge panel exonerated the 70 year old based on DNA evidence.

The attorney is also a professor at UNC Chapel Hill teaching a course on wrongful convictions.

What is going on in North Carolina? (Mike Frisch)

May 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

License Foreclosure Imminent

The California State Bar Court Review Department has concluded that disbarment is the appropriate reciprocal sanction found to have engaged in fraud in federal bankruptcy court.

 Lynne Margery Romano was suspended indefinitely by the United States Bankruptcy Court for the Central District of California for professional misconduct after the court found she participated in a "series of abusive bankruptcy case filings for the sole purpose of delaying foreclosure." Indeed, over the course of three years, Romano filed 82 fraudulent bankruptcy petitions on behalf of sham petitioners in order to mislead the court and defraud creditors. Her scheme involved her paralegal, whom she aided in the unauthorized practice of law (UPL). The bankruptcy court admonished that her tactics were "not acceptable in [bankruptcy court] or any other court as a pattern of behavior for an attorney." (In re the Disciplinary Proceeding of Lynne Romano (Bankr. C.D. Cal. 2012) 2:12-mp-00104-TA.)

The court

 Romano intended to defraud creditors and the bankruptcy court. Her efforts involved an elaborate scheme whereby she utilized sham petitioners, primarily corporations that were non-existent or not in good standing, to hold a fractional interest in her clients’ real property in order to shield those clients from poor credit ratings. She did not intend to obtain bankruptcy discharges for her clients, only to delay foreclosures. Over the course of three years, Romano had the opportunity to consider the consequences of her behavior each time she filed another petition. And yet she continued unabated until the bankruptcy trustee took action.

 The court here found that the attorney engaged in a pattern of dishonest conduct. (Mike Frisch)

May 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2015

The Road To Bar Admission In Louisiana

The Louisiana Supreme Court has admitted an applicant who initially had been denied certification for the following non-disclosures

the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds relating to his failure to disclose the following information on his law school application: (1) a speeding ticket; (2) a seatbelt citation; (3) an open container citation; and (4) his arrest for driving with a suspended driver’s license.

After a remand, the committee recommended that the applicant be admitted.

The court agreed. 

The same path to admission for this candidate

the Committee on Bar Admissions (“Committee”) advised petitioner that it was unable to certify him for admission to the bar on character and fitness grounds relating to his failure to disclose the following information on his law school application: (1) a citation for possessing alcohol as a minor, and (2) a citation for reckless operation of a motor vehicle, hit and run, no driver’s license on person, expired driver’s license, and license plate required. 

The court also granted conditional admission to two applicants.

These Louisiana admissions cases would be much more instructive to applicants if the court explained its reasoning in greater (or indeed any) depth. (Mike Frisch)

May 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, May 8, 2015

Answers Filed In Prosecution Of Death Penalty Defense Attorneys

The two North Carolina death penalty defense attorneys charged with ethics violations have filed answers that deny the allegations of misconduct.

The answer of Cassandra Stubbs is linked here; Gretchen Engels's is here.

The attorneys are charged with Rule 1.3 (lack of diligence) and 8.4(d) (conduct prejudicial to the administration of justice).

These answers persuasively demonstrate how thin these charges are and confirm my earlier views  that these cases should not have been brought.

The essence of the answers are that minor mistakes in complex litigation do not equate with lack of diligence. If perfection was required, every lawyer in every case would be subject to discipline. 

Attached to the answers are court opinions in which the responsible judge specifically concluded that the inconsistencies at issue were immaterial and that the attorneys conduct was "not the product of intentional misconduct, willfulness or bad faith." 

Case closed, one might well think.

But, wait, there's more.

The underlying death penalty cases at issue involved allegations of  Batson violations by the prosecutors.

The court found the evidence demonstrated that the prosecutors engaged in a pattern of race-based decision making in death penalty cases.

The "words and deeds of the prosecutors involved...In the writings of prosecutors long buried in case files and brought to light for the first time in this hearing, the Court finds powerful evidence of race consciousness and race-based decision making" in the jury selection process.

Is the State Bar prosecuting those prosecutors?

My earlier posts are linked here and here. 

(Mike Frisch)

May 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sleeping In The Attic

An attorney has been disbarred in Maryland in the wake of his "Peeping Tom" conviction.

The case was argued in the Court of Appeals yesterday.

HuffPost had this story

A peeping Tom with a law degree and advanced degrees from Harvard and MIT has pleaded guilty to secretly taping his female tenants having sex. His spying was discovered, in part, thanks to Cosmopolitan Magazine.

Dennis Alan Van Dusen, 64, recorded three women who rented rooms in his house, in the tony D.C. suburb of Chevy Chase, Md., with cameras he installed in smoke detectors above their beds...

According to the ABA Journal, Van Dusen charged below-market rents of less than $600. The average rent surrounding the house on 6910 Ridgewood Ave. is $2,000. In October, 2007 the property was assessed at $1,133,092.

And from the Washington Post on his sentencing

A Chevy Chase landlord who hid tiny video cameras in his tenants’ bedrooms received no jail time Tuesday from a judge who said psychiatric treatment is called for more than time behind bars.

“We have a gentleman here who, I guess, I can only characterize as being disturbed or sick, and that’s been confirmed by many sources,” Montgomery County Circuit Court Judge Paul H. Weinstein said Tuesday.

Weinstein ordered the landlord, Dennis Van Dusen, 64, to continue psychotherapy, pay a $2,500 fine and serve five years of probation. The sentence came moments after Van Dusen — a lawyer with two master’s degrees from Harvard University — offered reasons for his bizarre behavior. The troubles can be traced to his childhood, according to his attorney, who said Van Dusen’s mother was such a hoarder that he had to sleep in the attic.

The court's order indicates that a full opinion will follow.

A civil suit resulted in a million dollar judgment, according to  (Mike Frisch)

May 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Uninsured

An attorney who had for years falsely represented that he had malpractice insurance consented to disbarment in North Carolina.

Between 2010 and 2014, McVey knowingly and intentionally falsified
documents purporting to show that he maintained liability coverage through Lawyers
Mutual, despite not having coverage for at least 15 years. McVey made these
misrepresentations and provided these falsified documents to at least one mortgage loan lender between 2010 and 2014 for the purpose of qualifying with the lender as an
attorney approved to handle real estate closing transactions involving loans made by the
lender. But for his misrepresentations, McVey would not have qualified with the lender
to serve as a closing attorney and would not have been entitled to receive a fee in
transactions involving loans made by the lender.

(Mike Frisch)

May 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2015

Second Time Secures Reinstatement

A second effort at reinstatement worked for an attorney suspended for inappropriate sexual comments, advances and relations involving several clients.

The original January 2012 order of suspension was for four years.

The earlier denial is linked here.

From the suspension order

Defendant's victims were vulnerable not just in terms of their legal status but also with respect to their economic status. Defendant was appointed by the court to represent Ms. J., Ms. E., and Mr. R, who did not have the financial means to fire him and retain another attorney. Defendant's other clients also had similar financial constraints. Defendant's behavior left these clients with few options regarding representation.

Defendant's conduct toward his clients was purposeful and was of a nature that it would be obvious to Defendant that the conduct was exploitive of his clients' trust and reliance upon him and from which a conflict of interest would inherently arise.

This took place with the wife of a client facing criminal charges

In or about early 2007, Defendant repeatedly contacted Mrs. R. During those conversations and/or meetings, Defendant resumed his advances toward Mrs. R., asking her to go away with him for the night to Cherokee, trying to convince her to have sex with him, and masturbating in her presence at his residence.

These findings led to his return to practice

By the terms of the Order, the burden of proof is on Kivett to show by clear and convincing evidence that he complied with the provisions set forth in the Order.

Kivett submitted to comprehensive psychiatric or psychological evaluations, at Kivett's sole expense, by two separate psychiatrists or psychologists (Dr. Anthony Sciara and Roger Wallace, M.A.) who specialize in treating sexual offenders in the professions and who were approved in advance by the Office of Counsel for the North Carolina State Bar.

Kivett submitted with his petition a re-evaluation report from Anthony D. Sciara, Ph.D., ABPP, CLCP. Dr. Sciara testified at the hearing in this matter.

Dr. Sciara is of the opinion that Kivett does not suffer from any condition that would cause him to be predisposed to engage in inappropriate sexual behavior or that he suffers from any mental, psychological or emotional condition that would significantly impair his ability to represent female clients.

Kivett submitted with his petition a Summary of Treatment Services and a verified statement from Roger Wallace, M.A. Kivett submitted into evidence at the hearing an affidavit signed by Mr. Wallace.

Kivett followed all the recommendations of Dr. Sciara and underwent the treatment recommended by Mr. Wallace.

 Mr. Wallace is of the opinion that Kivett does not now suffer from any condition creating a predisposition for inappropriate sexual behavior and that Kivett does not suffer from any mental, psychological or emotional condition that significantly impairs his professional judgment, performance, or competence in the representation of female clients.

It does not appear that continued treatment is a condition of reinstatement. (Mike Frisch)

May 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Prosecutor Gets Stayed Suspension For False Statement To Court

From the web page of the North Carolina State Bar

Paul Jackson, an assistant district attorney in Johnston County, falsely represented to the court that he had contacted the SBI Lab to obtain results of DNA testing. As a result, a criminal defendant did not receive timely disclosure of exculpatory evidence and spent over 500 days in custody before charges against him were dismissed. The DHC suspended Jackson for one year. The suspension is stayed for two years upon his compliance with enumerated conditions.

The criminal defendant was charged with, among other things, second degree rape of a mentally disabled person.

He would have still stayed in custody, according to the discipline order

Although Defendant's and his office's inaction resulted in De La Cruz unnecessarily spending over four months in 90nfinement on the pending criminal charges, De La Cruz nevertheless would have remained in custody under a deportation hold order by ICE.

The prosecutor had no prior discipline and cooperated in the bar investigation. (Mike Frisch)

May 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2015

Losing Bet

A North Carolina attorney who pledged trust funds to cover his casino bets has consented to disbarment.

From the order

On or about January 8, 2013, Defendant signed an authorization form thereby authorizing MGM Grand Hotel and Casino ("MGM") and Mirage Hotel and Casino ("Mirage"), and their affiliates, to obtain and verifY Defendant's balance information for Trust 1 and Trust 2.

 By signing the authorization form, Defendant agreed to sign credit instruments, also known as markers or checks, for the amount of chips, tokens, cash or other credit issued to Defendant by the casinos.

 The form Defendant signed authorized MGM/Mirage to insert on the credit instruments the account numbers and other banking or financial information for any account from which Defendant has the right to withdraw funds.

The authorization form Defendant signed had the effect of pledging the balances of all bank accounts for which Defendant was signatory, including Trust 1 and Trust 2, as security to satisfy any gambling debt of Defendant to the casinos or credit advanced to Defendant by the casinos.

Defendant did not exempt Trust 1 and Trust 2 from the accounts subject to the terms of the authorization referred to in the preceding paragraph. Defendant did not notify MGMlMirage that the funds contained in Trust 1 and Trust 2 were not funds to which Defendant was entitled.

He previously had been reprimanded for a false statement to a tribunal. (Mike Frisch)

May 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Comments To Reporter Did Not Violate Ethics Rules

The Ohio Supreme Court reprimanded an attorney but reduced costs because over half of the ethics charges brought against him were dismissed.

We adopt the board’s findings of fact and misconduct with respect to Counts I (professional liability insurance) and II (incompetence, neglect, and failure to communicate). We find, however, that Shenise’s statements to an Akron Beacon Journal reporter to the effect that he had not received notice of a contempt hearing or a telephone call from the court before a warrant was issued against his client were not degrading to the tribunal. Therefore, we sustain Shenise’s objections in part, dismiss the alleged violation of Prof.Cond.R. 3.5(a) (prohibiting a lawyer from engaging in undignified or discourteous conduct that is degrading to a tribunal), and agree that a public reprimand is the appropriate sanction for his misconduct.

The remarks to a reporter concerned the case of an elderly client

The board found that at the time of the interview, Shenise believed that he had not been notified of the hearing and expressed what he believed to be the true facts. It concluded that viewed in their entirety, Shenise’s comments implied that Judge Gallagher acted impetuously and in a heavy-handed manner in dealing with 80-year-old Leonard Little. Believing that the comments were degrading to Judge Gallagher and his staff, the board found that they violated Prof.Cond.R. 3.5(a)(6) (prohibiting a lawyer from engaging in undignified or discourteous conduct that is degrading to a tribunal).

Shenise objects, arguing that he never accused the court of failing to mail the relevant notices and that unlike other cases in which we have found violations of Prof.Cond.R. 3.5(a)(6) or the analogous provision of former DR 7-106(C)(6), his comments did not involve a direct attack on a judge’s integrity.

No violation

Shenise’s comments are little more than a statement that he did not receive notice of a hearing by mail or telephone and that if he had received such notice, he would have appeared.

On these facts, we cannot find that Shenise’s statements to the Akron Beacon Journal reporter were highly likely to obstruct or prejudice the administration of justice. Therefore, we sustain Shenise’s objection and dismiss the alleged violation of Prof.Cond.R. 3.5(a)(6).

Three justices dissented and would impose a two-year stayed suspension. (Mike Frisch)

May 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 5, 2015

The Landman's Betrayal

The North Dakota Supreme Court has imposed a 90-day suspension of an attorney who had betrayed the confidences of a prospective client.

Carpenter was admitted to practice law in North Dakota on October 5, 1981. From 1981 until 1987, Carpenter worked as an oil and gas landman in North Dakota. During this period, Carpenter became a business acquaintance with another landman, Martin Thompson. After 1987, Carpenter began practicing law and also eventually became a real estate broker in Bismarck. In the late 1990s, the Christian Science Church listed property it owned in Bismarck with Carpenter and Carpenter assisted the Church in having the property re-zoned to facilitate its sale. Through the years, Thompson and his mother also listed their Bismarck homes for sale with Carpenter. In 2008, Thompson approached Carpenter about a potential opportunity to obtain mineral interests in McLean County. Although they agreed to a "50/50" partnership arrangement in the matter, the deal never came to fruition.

The court affirmed findings that Thompson sought Carpenter's counsel and divulged substantial information that he had obtained through extensive research concerning the purchase.

Carpenter did not represent Thompson; rather, he used the information in representing the Church.

The court found Rule 1.18 and 1.7 violations

The record reflects that the information provided to Carpenter had already been divulged to the Church through Thompson's efforts with the Williston attorney. We recognize that most of the information was contained in public records, and generally "records that are already public . . . are not confidential and thus would not pose any significant harm." ...But it is quite another matter when a person devotes more than 300 hours searching public records for pieces of a puzzle in an attempt to locate a deceased's heirs. The information collected by Thompson was valuable to Thompson, and was sensitive information Carpenter would not have received in the ordinary course of due diligence. Thompson divulged this information of a potential claim to Carpenter, who had previous dealings with the Church, and Carpenter took advantage of this information. Carpenter took over Thompson's efforts to negotiate with the Church, and as a result, Thompson suffered harm from Carpenter's actions. But for Thompson giving the information to Carpenter, Carpenter would not have had the opportunity to represent the Church in obtaining the Mountrail County mineral interests and receiving a portion of those interests. 

 The court concluded that a period of suspension was appropriate

Carpenter violated duties owed to a potential client by knowingly using the information provided to him for his personal benefit, resulting in actual harm to the potential client through loss of any compensation for Thompson's many hours spent searching for heirs of the deceased. The mineral rights were valued at up to $3 million. 

(Mike Frisch)

May 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2015

Till Theft Us Do Part

A Florida felony conviction has resulted in disbarment by operation of law by the New York Appellate Division for the Fourth Judicial Department.

The ABA Journal had reported on the charges

A lawyer working as a paralegal at a small Fort Lauderdale law firm is facing over 80 felony counts in a case concerning her alleged embezzlement from Hermelee & Geffin and an attorney officed there.

Charged yesterday in Miami-Dade Circuit Court with crimes including grand theft and forgery, 53-year-old Brenda Wolcott-Kelly is being held in lieu of $116,000 bail. A New York lawyer, she was working as a paralegal at Hermelee & Geffin because she is not licensed in Florida, reports the Sun-Sentinel.

She is accused of stealing a six-figure sum and an investigation is continuing. However, her lawyer, Morgan Cronin points out that the law firm has also sued her civilly and says she is innocent, facing criminal charges he says were pursued in an effort to put pressure on the parties in the civil case.

Among other allegations, Wolcott-Kelly is accused of transferring over $82,000 from the firm to pay her husband’s credit card bills in 2008 and 2009.

Name partner Alan Geffin characterizes the situation as “heartbreaking,” the newspaper reports. He adds: “She was a valued member of the firm. She was treated like family. We attended her wedding.”

The attorney had been suspended after her August 2014 plea of guilty to a single count of second degree grand theft. (Mike Frisch)

May 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Pain In The Neck

The New York Appellate Division for the Fourth Judicial Department has censured an attorney for non-practice related misconduct

Respondent admits that, in April 2012, he was involved in a one-vehicle accident after taking the prescription drugs oxycodone and soma to treat neck pain. Respondent was charged with various violations of the Vehicle and Traffic Law and, in February 2014, he resolved all charges by entering a plea of guilty in Salina Town Court to driving while ability impaired (§ 1192 [1]) and failure to reduce speed (§ 1180 [e]). The court imposed a fine in the amount of $575.

Respondent additionally admits that, in July 2012, he was issued appearance tickets returnable in Camillus Town Court charging him with possession of a hypodermic needle and aggravated unlicensed operation of a motor vehicle. Respondent resolved those charges in May 2014 by entering a plea of guilty to disorderly conduct (Penal Law § 240.20), and he was sentenced to a conditional discharge.

The attorney had an otherwise unblemished record and has participated in treatment. (Mike Frisch)

May 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bribery Conviction Leads To Permanent Disbarment Of Former Congressman

The legal career of convicted former Congressman William J. Jefferson has ended with his  permanent disbarment by the Louisiana Supreme Court.

The court rejected the suggestion that a lesser sanction was appropriate

Here, respondent stands convicted of ten felony criminal offenses arising from his involvement in multiple bribery and fraud schemes committed during his service as a member of the United States Congress. These crimes clearly warrant serious discipline. Indeed, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offenses are so egregious that he should be permanently prohibited from applying for readmission to the bar.

We agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct which might warrant permanent disbarment. For purposes of the instant case, Guideline 7 is relevant. That guideline provides:

GUIDELINE 7. Malfeasance in office which results in a felony conviction, and which involves fraud.

In this case, respondent used his congressional office for fraudulent and illegal activities by soliciting bribes in exchange for his official acts. This conduct clearly implicates Guideline 7.

Based on this reasoning, we find permanent disbarment is the appropriate sanction in this case. Accordingly, we will accept the disciplinary board’s recommendation and permanently disbar respondent.

(Mike Frisch)

May 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarred For Mortgage Fraud

A New Jersey attorney has consented to disbarment as a result of her involvement in a mortgage fraud scheme.

Attorney Jacquelyn Todaro was admitted to practice in 1997.

Mortgage Fraud reports

Three attorneys and a former attorney have pleaded guilty to conspiring to commit wire fraud and bank fraud in connection with a $66 million mortgage fraud scheme, involving over 100 home mortgage loans for residential properties in the New York City area.

The four are attorneys Jacquelyn Todaro, Neal Sultzer and Kevin Hymes and former attorney Michael Schlussel.

“In helping to perpetrate this massive mortgage fraud scheme, these individuals exploited their trusted positions as attorneys,” Manhattan U.S. Attorney Preet Bharara said. “And Michael Schlussel went a step further, representing himself as an attorney in good standing, when in fact, he was not.

“With their guilty pleas, they now stand convicted for the roles they played in undermining the integrity of the mortgage industry and the legal profession.”

According to the indictment and public statements, First Class Equities a/k/a Thunder Funding a/k/a TAT Mutual Capital was a mortgage brokerage firm with offices located in Oceanside and Old Westbury, N.Y. Fourteen individuals were charged in August 2011 in connection with their roles in a massive mortgage fraud scheme, including the owner and president, loan officers, attorneys and one disbarred lawyer.

FCE arranged home sales between “straw buyers” – people who posed as home buyers, but who had no intention of living in, or paying for, the mortgaged properties – and homeowners who were often people in financial distress and willing to sell their homes. Loan officers at FCE recruited straw buyers – many of whom were paid – and obtained mortgage loans on their behalf by submitting fraudulent applications to banks and lenders that made false representations about the straw buyers’ net worth, employment, income, and plans to live in the properties.

After approving the loans, the lenders sent the mortgage proceeds to attorneys who were involved in these transactions. They would appear at real estate closings and distribute the loan proceeds. The attorneys submitted false statements to the lenders about how they were distributing the loan proceeds, and made illicit payments, typically totaling tens of thousands of dollars or more per transaction, from the loan proceeds to themselves and to other members of the conspiracy.

Todaro, 42, of Westbury, pleaded guilty to one count of conspiracy to commit wire fraud and bank fraud, and faces a maximum sentence of 30 years in prison. She also agreed to forfeit $6,554,842.

Sultzer, 61, of Plainview, pleaded guilty to one count of conspiracy to commit wire fraud and bank fraud, and faces a maximum sentence of 30 years in prison. He will forfeit $10,689,500.

Schlussel, 50, of Merrick, pleaded guilty to one count of conspiracy to commit wire fraud and bank fraud, and faces a maximum sentence of 30 years in prison. He forfeits $5,878,442.

Hymes, 39, of Armonk, pleaded guilty to one count of conspiracy to commit wire fraud and bank fraud, and faces a maximum sentence of 30 years in prison. He pays $7,606,500.

Five other defendants charged in the scheme — Canino, Pandora Bacon, Michael Charles, James Vignola, and Henry Richards — have also pled guilty and are awaiting sentencing.

She previously was disbarred in New York.(Mike Frisch)

May 4, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, May 3, 2015

False Testimony In Family Dispute Not Covered By Litigation Misconduct Rules

A disbarment recommendation was rejected in favor of a remand by the Alaska Supreme Court.

The Alaska Bar Association Disciplinary Board recommends disbarment of Deborah Ivy for making false statements as a party to litigation in violation of Alaska Rules of Professional Conduct 3.3, 3.4, and 8.4 and Alaska Bar Rule 15. We agree the record establishes that Ivy made false statements in violation of Professional Conduct Rule 8.4 and Bar Rule 15. But we conclude that Rules 3.3 and 3.4 do not apply because they are intended to govern attorneys acting as advocates and not in their personal capacities. We therefore remand this matter to the Board for reconsideration of its recommended sanction.

The disciplinary case has its origins in a particularly bitter family dispute between the attorney and her brother.

Relations between [brother] Kyzer and Ivy grew so acrimonious during the litigation that a no-contact order was issued in December 2007, prohibiting in-person or telephone contact between the parties without an attorney present and prohibiting each party from coming within 500 feet of the other’s residence.

The attorney claimed that the brother had stalked and assaulted her. The brother filed disciplinary complaints alleging that the attorney's testimony about the alleged incidents had been false.

The court here agreed that the attorney had knowingly testified falsely but concluded that some charged rules were inapplicable

In the language of the Preamble, the commentary to Rule 3.3 “explains” the “meaning” of the rule: the rule is limited to dishonest misconduct by a lawyer acting in a representational capacity before a tribunal. This meaning is supported by the inclusion of Rules 3.3 and 3.4 in the section titled “Advocate." The commentary to Rule 4.1 also suggests that a lawyer engaging in dishonest misconduct in a personal capacity may be disciplined under Rule 8.4.   Limiting Rules 3.3 and 3.4 to representational conduct thus prevents overlap with Rule 8.4 without rewarding attorneys who commit dishonesty as parties or witnesses.

We conclude that Rules 3.3 and 3.4 do not apply to Ivy’s misconduct because these rules are intended to govern attorneys when they are acting as advocates and not in their personal capacities.

The court rejected claims that the process was biased because the bar association collects attorneys fees when it prevails.

Ivy also claims her state and federal constitutional due process rights were violated in the disciplinary proceeding. She appears to argue the disciplinary process is inherently biased because a finding of misconduct allows the Board to order the payment of attorney’s fees, resulting in a financial benefit for the Bar Association. But we cannot conclude that the specter of attorney’s fees alone prevented members of either the Committee or the Board from serving as neutral and disinterested decision-makers.

Alaska Pride had this story on disciplinary sanctions imposed against Ivy's attorney in the matter.

My view of the key legal holding is that, in the end, it is irrelevant to the disposition of the case.

You don't sanction the attorney based on the category or number of ethical rules that the attorney is deemed to have violated. You sanction based on the misconduct in all its surrounding circumstances.

Here, an attorney was found to have lied to a court. That the lies were told in the context of a bitter family dispute may be a factor to consider as to sanction. But it is what it is.

The particular rules violated are less significant (in my view) than the need to protect the public and appropriately instruct the practicing bar about the court's expectations for ethical behavior.   (Mike Frisch)

May 3, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2015

Last Hope For Justice

The District of Columbia Court of Appeals will face a formidable task in reviewing the execrable Worst Report in its disciplinary history when it hears oral argument on June 3, 2015 in the case of In re Szymkovicz et al.

My review of the report of the Board on Professional Responsibility is linked here.

In sum

Regardless of the eventual outcome (and I have no optimism at this point) , the story of this case is Exhibit One to prove the failure of the volunteer disciplinary system in the District of Columbia.

In particular, this outcome serves as a warning to victims --don't bother to bring your concerns to the D.C.Bar, as you will only get attacked for your trouble.

To be fair, the hearing committee's gross and inexcusable failure to deal with the evidence put the BPR in a difficult position. One approach would have been to apply due diligence to study and learn the record; the other is the approach taken here --blow the whole thing off as a credibility contest and simply fail to deal with the evidence in a meaningful way.

These so-called guardians of the public trust should be thoroughly ashamed of themselves. In a just world, what happened to Fran Abbott (the complaining daughter) would happen to them.

I view this case as one of the most significant in the court's disciplinary history.  The case provides a last hope for justice for the victims of what I believe was proven attorney misconduct of a most heinous nature.

It tests whether the court - responsible for setting standards of ethics for its Bar - has the fortitude to reject this lawyer-protecting, evidence-ignoring whitewash and impose an appropriate sanction.

If attorneys "representing" an elderly "client" while serving the true interests of their real client, who wished to plunder her assets (while taking a heaping helping for themselves), can get away with the abuse that this record demonstrates, then it is a shameful thing to be a member of the District of Columbia Bar.

I am particularly disheartened by the fact that, although a large number of D.C. probate attorneys have expressed revulsion over this case to me, no one stepped up and told the court so with an amicus brief.

This case deserves far more widespread publicity than it has gotten so far. As someone once said, I've broken my pick trying to get that attention.

Bars get away with self-regulation in their own parochial interest because of an apathetic public and an uninterested press.

The only safeguard is a court that takes seriously its obligation to protect the public and uphold the integrity of the legal profession.

Three judges of the Court of Appeals can prevent this travesty of justice. There is no other hope. (Mike Frisch)

May 1, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Plead No More

The Ohio Supreme Court has enjoined further unauthorized law practice by a non-lawyer who signed a pleading on behalf of his girlfriend

VanLandingham has never been admitted to the practice of law in Ohio and is not otherwise authorized to practice law in this state. In his answer to relator’s complaint, VanLandingham admitted that he prepared a motion to set aside a plea agreement and to vacate the guilty plea of his codefendant, Meghan E. Link, but he claimed that he filed it on his own behalf and that because he had forgotten to sign it, he merely attempted to file it. The certified journal report of the case, submitted with relator’s motion for summary judgment, states that the motion was not signed and should not have been docketed.

The court

The unauthorized practice of law is the rendering of legal services for another by any person not admitted or otherwise certified to practice law in Ohio. Gov.Bar R. VII(2)(A). This includes the “preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and the courts.” Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 194 N.E. 650, paragraph one of the syllabus (1934).

The board found that by drafting and filing, or attempting to file, a motion to set aside a plea agreement and to vacate a guilty plea on behalf of Meghan Link in Toledo Municipal Court case No. CRB-12-04420, VanLandingham engaged in the unauthorized practice of law. We agree.

(Mike Frisch)

May 1, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)