Thursday, July 16, 2015

Targeted Lies Draw Informal Admonition

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

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

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

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

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

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

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

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

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

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

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

OBC concluded

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

(Mike Frisch)

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

Conviction Reversed; Attorney Still Disbarred Based On Conviction

An attorney convicted of two counts of felony possession of a sexual performance of a child was automatically disbarred by the New York Appellate Division for the Third Judicial Department, notwithstanding the court's reversal of that conviction.

From the court's order reversing the criminal conviction and dismissing the indictment on grounds of delay

On January 28, 2009, defendant's computer was seized by the Town of Colonie Police Department (hereinafter TCPD) after a computer repair technician reported that he discovered the computer contained what he believed to be child pornography. The following day defendant was questioned by the TCPD and, in July 2009, it obtained a search warrant to analyze the content of defendant's computer. On December 4, 2013, defendant was indicted and charged with 26 counts of possessing a sexual performance by a child, a class E felony. Relevant to this appeal, defendant moved to dismiss the indictment contending that the nearly five-year delay in obtaining the indictment was unreasonable and violated his due process rights. Although defendant requested and the People consented to a Singer hearing (see People v Singer, 44 NY2d 241 [1978]), County Court summarily denied defendant's motion. Thereafter, reserving his right to appeal the Singer issue, defendant pleaded guilty to two counts of the indictment and, after an initial sentencing error, was resentenced to concurrent prison terms of 1 to 4 years, which County Court stayed pending disposition of the instant appeals...

The record, however, is shockingly sparse concerning the reason for the preindictment delay. In opposition to defendant's motion to dismiss, the People asserted that the Town of Colonie Police Department originally referred the matter to the office of the United States Attorney for the Northern District of New York and did not provide the People with defendant's file until November 2013. However, without explaining the source of their knowledge, they go on to summarize events that took place before they received the file, including unsuccessful preindictment negotiations between defense counsel and a federal prosecutor, defendant's firing of his attorney, the assignment of a new Assistant United States Attorney to the case and the decision of the United States Attorney not to prosecute defendant.

The People's proffered reasons raise more questions than they answer. For example, the People did not reveal when and how they first learned that the matter had been referred to the United States Attorney, nor did they offer any explanation as to why they did not prosecute defendant while he was subject to federal indictment. While the answers to these questions, and others, may not be readily available, I find it significant that the People consented to a Singer hearing, thereby suggesting that they possessed additional information that could illuminate the circumstances that precipitated the delay. That the statements made in the sparse, 1½-page affidavit submitted by the People are based merely upon a review of the files maintained by the Albany County District Attorney — and do not come from someone with personal knowledge of the circumstances — further supports this conclusion.

The reversal did not alter the result

This Court's recent reversal of Montague's conviction based upon preindictment delay (___ AD3d ___, 2015 NY Slip Op 05721 [July 2, 2015]) does not change the result since "[r]eversal of the conviction does not automatically restore the attorney to the [b]ar [and, t]o attain such relief, the attorney must make a motion for reinstatement" (Matter of Toro v Malcolm, 44 NY2d 146, 152 [1978] [citations omitted]).

(Mike Frisch)

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

Disbarment Times Four

A busy day for the New York Appellate Division for the Second Judicial Department - a total of four disbarments.

One involved a conviction for possession of a forged instrument.

Another a conviction for conspiracy to commit mail and wire fraud.

So did this case

The indictment alleged that the respondent and his codefendants, inter alia, fraudulently offered and sold investment interests in life insurance policies to the general public through a company named Mutual Benefits Corp. (hereinafter MBC). The respondent and his codefendants made, and caused others to make, numerous false and fraudulent representations concerning such matters as the management of MBC, the safety and reliability of investments sold through MBC, historical returns on investments sold through MBC, the life expectancy of individuals insured by the life insurance policies being sold, and the sufficiency of the funds set aside to make payments on those policies. MBC raised more than $1.25 billion from more than 30,000 investors worldwide, resulting in losses of approximately $837 million.

And this attorney went down on misappropriation (linked here ).

(Mike Frisch)

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

What's In A Name?

Last month, the District of Columbia Court of Appeals put out a notice seeking comment on a proposed name change for the Office of Bar Counsel.

This court is considering whether to adopt a proposal transmitted by the Board of Governors of the District of Columbia Bar to amend Rule XI of the District of Columbia Rules Governing the Bar, by changing the title of Bar Counsel to "Disciplinary Counsel;" and to make conforming changes to other rules.

I happen to think that this is a lousy idea. 

As I said when it was first floated

By letter to Chief Judge Washington dated May 14, 2014, the Board [of Governors] 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."


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.

I do not plan to comment beyond this post because there are so many more substantive problems with the D.C. bar disciplinary system that I no longer care about this particularly pointless change. (Mike Frisch)

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

Stayed Suspension For Misappropriation

A fully-stayed suspension of 18 months has been imposed by the Pennsylvania Supreme Court in a disciplinary matter that began with the report of a bounced escrow check.

The attorney cooperated and self-reported other escrow account issues including two instances of misappropriation.

He replenished the $11,000 that he had misused.

There was agreement that he met the standard for mitigation based on a diagnosis of major depression and other conditions. He also had financial and emotional stress as a result of his son's medical condition which resulted from a severe concussion. (Mike Frisch)

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

Knocked Off

A subcommittee of the Virginia State Bar imposed a public reprimand without terms as an agreed disposition.

The matter involved a search of the attorney's law office. The search had revealed several items with the Coach, Inc. brand name that had been ordered off the internet by the attorney 's wife.

The items were "knock-offs" that were not made by Coach, Inc.

The wife pleaded guilty to misdemeanor Trademark Infringement.

The attorney was not linked to the "knock-off" items.

The problem lay elsewhere.

After Coach sued he and his wife, he backdated three deeds transferring property and falsely denied doing so in a deposition.

Later in the deposition, he fessed up and corrected the testimony.

The disposition indicates that the dishonest conduct did not affect the resolution of the underlying matter. (Mike Frisch)

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

Wednesday, July 15, 2015

No Reinstatement For Convicted Former Attorney

An Illinois Hearing Committee recommends that reinstatement be denied to a disbarred former attorney.

He had consented to disbarment in 1986.

The committee's summary

In May 1985, Petitioner was found guilty in the  United States District Court for the Southern District of Illinois on 17 counts  of an indictment in U.S. v. Wheadon, No. 84-30029. The conduct resulting  in his convictions occurred in 1981 and 1982, while he was the Executive  Director of the East St. Louis Housing Authority and responsible for the  construction and renovation of low income housing projects financed by the U.S.  Department of Housing and Urban Development HUD. The crimes for which Petitioner  was convicted included conspiracy to defraud HUD; corruptly soliciting,  demanding, and receiving money from a person in return for Petitioner approving  payments of HUD funds to that person for work Petitioner knew had not been  performed; embezzling, stealing and knowingly converting to his own use $370,000  in HUD funds by receiving twenty separate payments over a one-year period; and  knowingly filing false tax returns for 1981 and 1982 by not reporting as income  the foregoing funds. Based upon his federal convictions, Petitioner filed a  motion to strike his name from the roll of attorneys licensed to practice law in  Illinois. The Supreme Court allowed the motion on December 5, 1986.

After discussing the factors set out in Supreme  Court Rule 767(f), the Hearing Board found that Petitioner failed to make a  sufficient showing that he should be reinstated to the practice of law, and  recommended that the Petition for Reinstatement be denied.

Petitioner failed to disclose in his reinstatement application tax liens, a civil case, a criminal conviction and the revocation of his professional engineers license. (Mike Frisch)

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

One Man's Frivolity

The Minnesota Supreme Court has suspended an attorney with no right to seek reinstatement for twelve months.

The court affirmed findings of instituting frivolous litigation

the St. Paul Urban League (“SPUL”) hired Selmer as president and chief executive officer. In February 2011 the SPUL suspended operations due to “severe fiscal and other mismanagement.” Subsequently, Selmer, the SPUL, and various SPUL constituents became involved in multiple lawsuits spanning a significant number of court files. The Director filed this petition for disciplinary action against Selmer in January 2014 for his conduct in that litigation...

Selmer offers no basis in law to support filing a separate action in Hennepin County, appealing matters not ripe for review, or filing his federal complaint. Our review of the record therefore supports the referee’s conclusion.

As to sanction

We begin with the four factors. Selmer’s misconduct was serious. His dispute with the SPUL spanned a significant number of court files at the state district, federal district, and state appellate levels, all of which were dismissed based either on the frivolity of Selmer’s arguments or because Selmer failed to comply with court rules...

Selmer’s rule violations occurred in multiple court cases from August 2011 through June 2013. Selmer’s misconduct was therefore not a "single, isolated incident," but included multiple instances of misconduct over several years.

His prior four instances of discipline were aggravating factors

we consider similar cases. Here, one of Selmer’s own previous discipline cases is instructive. We previously suspended Selmer for 12 months after he engaged in a pattern of harassing and frivolous litigation, including filing several frivolous claims and knowingly offering false and misleading evidence in response to discovery requests. In re Selmer, 568 N.W.2d 702, 704-05 (Minn. 1997). The pattern of frivolous claims, which we held was an "abuse of the litigation process," is similar to the pattern of frivolous claims at issue here. See id. at 705. And the discipline we imposed in that case is the same as the referee recommended here. See id.

In conclusion, we agree with the referee’s determination that a 12-month suspension is the appropriate discipline for Selmer.

(Mike Frisch)

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

Dr. Jekyll Returns To Practice

The Wisconsin Supreme Court has reinstated one attorney and denied reinstatement to another, both of whom were suspended from practice due to medical incapacity.

In the case where reinstatement was denied, the attorney had an substance abuse problem. 

The referee had found

The referee noted that Attorney Schlieve has not practiced law since 1998, and during that time she has not been employed outside the home.  She has primarily spent her time caring for her son, who has medical issues.  The referee noted that in addition to caring for her son, Attorney Schlieve has been active in her church, in dog rescue efforts, and in other community affairs.  In recent times, she has been working with a friend to establish two startup businesses, one offering tea party services and one offering wedding planning services. 

The referee noted that Attorney Schlieve has earned a significant number of continuing legal education (CLE) credits and has attended a significant amount of coursework, all online.  The referee noted that Attorney Schlieve provided a printout from the State Bar listing CLE attendance and dues payments from the early 1990s through January 2014.  The referee said it was impossible to determine precisely what courses Attorney Schlieve had actually attended, since all were online courses...

The referee said that Ms. Albert's testimony about Attorney Schlieve's participation in the WisLAP program raised a number of serious questions.  The referee said that after Attorney Schlieve's second positive test for codeine, and after Ms. Albert had informed Attorney Schlieve that WisLAP would continue with monitoring efforts through the reinstatement hearing but not thereafter, Attorney Schlieve contacted her doctor's office and withdrew the medical release in favor of WisLAP.  Because of the positive drug screen in February of 2014, WisLAP again requested a list of Attorney Schlieve's current medications and the dates they were first prescribed.  When the list was not forthcoming, WisLAP staff followed up with the doctor and was informed that there was no medical authorization from the patient.

 Judge Abrahamson dissented and would reinstate with conditions.

Reinstatement was granted in this matter in which the attorney has been suspended since 1989

Attorney Linehan's petition for voluntary revocation of his license to practice law stated that he was the subject of an investigation of possible misconduct with respect to his representation of a client "and is also the subject of an investigation involving possible misconduct and medical incapacity due to chronic substance abuse."  Attorney Linehan acknowledged that he could not successfully defend against the allegations of misconduct.  As additional background, he stated that he had been afflicted with a longstanding, chronic sickness or disease involving several forms of substance abuse, which sickness or disease was a factor which contributed to the conduct resulting in the misconduct allegations that were the subject of investigations by the Board of Attorneys Professional Responsibility (BAPR), the predecessor in interest to the Office of Lawyer Regulation (OLR).  The petition for voluntary revocation stated that, despite both inpatient and outpatient treatment, Attorney Linehan continued to be afflicted by chronic and significant problems involving substance abuse.  Attorney Linehan stated that he believed he was unable to obtain the long-term treatment needed to effectively recover from his medical condition and still practice law at the same time.  He stated that his desire to voluntarily surrender his license to practice law was based in part upon his belief that he had a medical incapacity, and that he desired to obtain further treatment for that condition.

The referee found

In reaching this [favorable] conclusion, the referee noted that "[t]his case presents the Jekyll/Hyde paradox in the life and times of Daniel W. Linehan, who has been 'characterized as sane when he is clean and sober and as insane when he is not.'"  The referee found that Attorney Linehan has been afflicted with chronic alcohol and substance abuse since approximately age 15.  In the 1980s, prior to his consensual license revocation, Attorney Linehan received both inpatient and outpatient treatment but exhibited a tendency for relapses of his chronic substance abuse.  The referee found that the chronic substance abuse substantially interfered with Attorney Linehan's ability to conduct his law practice.  The referee noted that after the revocation of his law license, Attorney Linehan spent time in the Dane County jail on a drunk driving conviction and his driver license was revoked. 

The referee further noted that in the 1990s, Attorney Linehan worked as a clerk for a law firm in Minnesota and as a paralegal with the Hennepin County Attorney's Office in Minneapolis.  The referee found that this employment was not deemed contrary to the Minnesota Rules of Professional Conduct.  While Attorney Linehan remained relatively clean and sober between 1992 and 1995, he suffered a relapse in 1995.  He was terminated from his job at the Hennepin County Attorney's Office in the spring of 1998 due to substance abuse issues.  Attorney Linehan filed petitions for the reinstatement of his Wisconsin law license in 1996 and 1998 but was not honest about the status of his substance abuse problems and decided to withdraw both petitions.  

In 1998, Attorney Linehan was charged with theft of a motor vehicle and aggravated drunk driving in Minnesota.  He was convicted and placed on probation.  Around 1998, Attorney Linehan began treating with Dr. Roger Johnson, a psychiatrist.  Dr. Johnson remained Attorney Linehan's main mental health treatment provider until the doctor retired in 2010.  Dr. Johnson diagnosed Attorney Linehan with major depression and treated him with medication.  With the doctor's support, Attorney Linehan applied for Social Security Disability benefits, which were awarded around 1998.

In December of 1998, Attorney Linehan was arrested for intoxication and being in possession of a stolen automobile.  The investigation revealed that he had burglarized his neighbor's residence, stole credit cards and their vehicle, and made charges with the credit cards without proper consent.  He was charged with eight criminal counts.  Because he was already on probation, he was incarcerated in the Sherburne County jail from December of 1998 until February of 1999.  In January of 1999, he was also charged with forgery involving a $3,000 check.  Attorney Linehan entered into a plea agreement on the charges in February of 1999 and was convicted and sent to prison. Around June 1, 1999, he was released on an ankle bracelet monitoring program.  He suffered a relapse and was arrested and sent back to prison for violating the terms of his release.  He was released from custody in July of 2000.

In 2003, Attorney Linehan was convicted of operating after revocation in Wisconsin.  In 2002 and 2003, he was sporadically drinking and using drugs.  He engaged in sporadic drinking and drug use again between 2006 and 2008.  In December of 2009, he was taken into custody for an emergency detention when a friend called police to report that Attorney Linehan was very intoxicated and was making threats to harm himself or others.  He was admitted to Mendota Mental Healthcare Center.  Following a detention hearing, the court found the least restrictive level of care was on an outpatient basis, although the court expressed concern over threats that had been made.  The court ordered daily breathalyzer sampling to ensure that Attorney Linehan remained sober and, if he could not, he would be taken into custody. 

The court

We agree with the referee that, although this court's cursory 1989 order revoking Attorney Linehan's license to practice law by consent did not explicitly state that the revocation was due to a medical incapacity, the petition for voluntary revocation clearly identified medical incapacity as the primary driving force behind Attorney Linehan's decision to relinquish his law license.  Accordingly, we deem it appropriate to treat his petition for reinstatement of his license as having been filed under SCR 22.36.  We further conclude that the referee's findings support a determination that Attorney Linehan has met his burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence that his medical incapacity is removed and that he is fit to resume the practice of law.  We agree that conditions on Attorney Linehan's license to practice law are necessary to ensure that he continues to receive appropriate treatment. Finally, we deem it appropriate to require Attorney Linehan to pay the full costs of this proceeding, $15,714.12.

(Mike Frisch)

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

"Abysmal" Cooperation With Bar Investigation

An attorney's misconduct in four client matters has resulted in a five-month suspension by the Wisconsin Supreme Court.

Attorney Kaupie was licensed to practice law in Wisconsin in 1999.  He resides in Wausau.  Attorney Kaupie's license has been administratively suspended since October 31, 2011, for his failure to pay mandatory State Bar dues and his failure to file a trust account certification, and since June 12, 2012, for failure to comply with continuing legal education requirements.  In addition, on March 15, 2012, this court temporarily suspended Attorney Kaupie's license for his willful failure to cooperate in Office of Lawyer Regulation (OLR) investigations concerning his conduct.  He has not previously been the subject of disciplinary proceedings.

On sanction

 As the referee observed, abandonment of clients, especially those who are vulnerable due to incarceration and indigency, is a serious matter and Attorney Kaupie's cooperation with the ensuing investigation was "abysmal."  The referee was mindful, however, that Attorney Kaupie had no prior disciplinary history and that Attorney Kaupie acknowledged complete culpability for his misconduct.

The stipulation discloses that in 2009, when this misconduct commenced, Attorney Kaupie was a sole practitioner with no office staff, practicing primarily in the area of criminal defense.  That year, Attorney Kaupie's mother, who suffered from Alzheimer's disease, experienced declining health.  Attorney Kaupie spent considerable time caring for his mother, whose condition increasingly needed constant supervision.  The stipulation discloses that Attorney Kaupie essentially stopped practicing law to care for his mother, who passed away in November 2014.

The court lifted the 2012 suspension for failure to cooperate in the bar's investigation. (Mike Frisch)

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

Attorney Censured For Neglect; Client Sought Divorce in 1994

Public censure was imposed on an attorney who had neglected a divorce client's matter for many years and despite repeated assurances that he would secure the relief sought.

The charges against respondent relate to his representation of a woman (AW) who retained his firm to file for a divorce in 1994. AW paid the firm a retainer fee of $3,750. Respondent initially performed substantial work on the matter, including the preparation of a summons and complaint, an omnibus motion for pendente lite relief, preparation of a net worth statement, and several drafts of a separation agreement. During the course of the representation, however, AW's husband discharged his counsel and repudiated a proposed stipulation of settlement to which his counsel had agreed. At that point, the matter ceased to move forward.

In 2001, AW filed her first complaint against respondent, alleging that he had neglected her matrimonial matter. In response to that complaint, respondent admitted to the Committee that he was to blame for AW's failure to obtain a divorce judgment up to that point, and the Committee issued a letter of admonition, dated September 10, 2002, finding that respondent had neglected a client matter. The letter directed respondent "to complete [AW's] divorce at the earliest opportunity at no additional charge." In 2003, the matter was still unresolved, and AW filed another complaint against respondent, to which he responded with the representation that he was working on completing it. Based on that representation, the Committee closed the investigation. The matter continued to languish, however, leading AW to file a third complaint in 2006, the investigation of which was again closed based on respondent's assurances that he would complete the divorce. Finally, in 2010, with the divorce still not final, AW filed the complaint from which the present motion stems.

As previously noted, respondent concedes that, as found by the Hearing Panel, he is guilty of neglect, failing to refund an unearned fee, conduct prejudicial to the administration of justice, and conduct reflecting adversely on his fitness as a lawyer. This leaves for decision only the question of the appropriate sanction. The Hearing Panel amended the Referee's recommendation of a 30-day suspension to one of 60 days. Respondent asks us to impose a public censure. As previously noted, the Committee asks only that this Court impose a sanction that we deem just and proper.

The New York Appellate Division for the First Judicial Department chose censure over suspension

We find that, on balance, the facts of this case favor public censure over a brief suspension. As this Court has observed, "public censure is a suitable sanction for neglect of client matters if an attorney has no history of misconduct warranting disciplinary action" (Matter of Johannes, 66 AD3d 39, 41 [1st Dept 2009]). Apart from this matter, respondent has an unblemished disciplinary record over a career of approximately 30 years. Further, a number of mitigating factors weigh in respondent's favor. As noted, his neglect was confined to a single matter and was not accompanied by any other egregious misconduct. During the period at issue, he experienced serious family and professional difficulties, including medical crises and deaths of people close to him. Respondent has fully cooperated with the Committee. He has admitted his misconduct and ultimately refunded his fee to AW. He has also taken steps to ensure that he will not neglect matters in the future, such as installing a better computer case-tracking system and increasing the frequency of his firm's comprehensive case progress meetings. Finally, we are persuaded of the sincerity of respondent's expression of remorse.

(Mike Frisch)

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

School Fund Thefts Lead To Resignation

An attorney under investigation for misuse of funds had his resignation accepted by the New York Appellate Division for the First Judicial Department.

Respondent is currently the subject of an investigation by the Committee arising from a January 2015 complaint filed by the president of a school. The complaint alleged that in February 2011, respondent was entrusted with $867,133 in escrow for the school, and then withdrew approximately $496,000 from escrow over the following four years without the school's consent, knowledge or authorization.

This Court has previously accepted the resignation of attorneys under investigation for misappropriation of client funds from escrow (see Matter of Johnson, 125 AD3d 123 [1st Dept 2015]; Matter of Scher, 123 AD3d 162 [1st Dept 2014]). Respondent's counsel has submitted an affirmation wherein he concurs in the relief sought by the Committee.

He had previously been censured for escrow violations by the Second Department

We note that the respondent was new to private practice at the time the subject misconduct occurred, having only been in private practice since 2009, and that he had no prior experience with an escrow account.   The subject real estate transaction was his first such transaction, as was his receipt of escrow funds.   The evidence reveals that the subject misconduct stemmed principally from the respondent's mismanagement of his accounts, and his improper escrow practices, for which he was separately cautioned.   Moreover, the respondent was suffering from serious health problems at the time, which distracted him from properly managing his accounts.

In light of these particular and unique circumstances, including the fact that the subject misconduct preceded the issuance of the Letter of Caution dated July 8, 2011, we conclude that a public censure is warranted.

Lesson not learned. (Mike Frisch)

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

False Statement Concealing Travel To Cuba Gets New York Attorney Disbarred

An attorney convicted of a false statement to conceal his travel to Cuba was disbarred by the New York Appellate Division for the First Judicial Department.

On October 29, 2013, respondent was convicted, upon his plea of guilty, in the United States District Court for the Southern District of New York, of one count of making a false statement on a United States Customs and Border Protection form (USCBP), in violation of 18 [*2]USC § 1001, a felony. On June 3, 2014, respondent was sentenced to two years of probation and a $100 assessment was imposed.

Respondent's conviction arose from his submission, on or about September 13, 2011, of a USCBP Form 6059B on which he falsely stated that the only country he had visited while outside the United States was Mexico, when in fact he had also traveled to Cuba.

The sanction was premised on the preclusive effect of the conviction

This Court has repeatedly held that a federal conviction under 18 USC § 1001 is analogous to the New York felony of offering a false instrument for filing in the first degree under Penal Law § 175.35, a class E felony based on facial similarity of the statutory language (see Matter of Collazo, 81 AD3d 220 [1st Dept 2011]; Matter of Ramirez, 7 AD3d 52 [1st Dept 2004]). Even if the statutes were not analogous, respondent's allocution, in which he admitted that he willfully concealed a material fact on his USCBP Form 6059B, taken in conjunction with the information, demonstrates "essential similarity" between the statutes sufficient to strike respondent's name from the rolls (see e.g. Matter of Adams, 114 AD3d 1 [1st Dept 2013]).

Accordingly, the Committee's petition is granted to the extent of striking respondent's name from the roll of attorneys and counselors-at-law in the State of New York pursuant to Judiciary Law § 90(4)(b), effective nunc pro tunc to October 29, 2013, the date of his conviction.

(Mike Frisch)

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

Tuesday, July 14, 2015

A Fine Mess

The Elyria Chronicle - Telegram online has this report on a pending Ohio discipline matter by Brad Dicken. 

Michael W. Fine, the Sheffield attorney accused of hypnotizing female clients for his own sexual gratification, has filed paperwork with the Ohio Supreme Court to resign from the practice of law.

Michael W. Fine

Michael W. Fine

Fine made the request in April, but it didn’t become public until late last month, according to the Supreme Court’s website.

If the resignation is approved, Fine would be barred from ever practicing law again.

Fine agreed to an emergency suspension of his law license last year after the Lorain County Bar Association brought allegations he had hypnotized two of his clients to the Supreme Court.

Fine also is the target of an ongoing criminal investigation and the subject of three lawsuits filed by former clients. Those familiar with the case have said there could be as many as two dozen alleged victims.

Robert Housel, Fine’s attorney, said his client’s decision not to fight possible disciplinary action from the Supreme Court was made with an eye toward moving forward with his life.

“It didn’t make sense to fight it,” Housel said. “It made more sense to try and deal with his problem, which he has been, and go on with his life.”

Chris Cook, the bar association attorney who led the ethics investigation into Fine, said the resignation is part of a deal that will allow his organization not to have to spend the resources on a legal effort to keep Fine from returning to being a lawyer.

“The end result is exactly the same,” Cook said.

Fine fell under scrutiny last year when one of his clients became concerned that she couldn’t remember parts of her conversations with Fine and felt as if she’d engaged in sexual behavior following meetings with him. She contacted Sheffield police, who suggested she not return to Fine’s office.

Instead, the woman recorded a conversation with Fine in which he allegedly put her into a trance and gave her sexual commands and brought it to the authorities.

Police and investigators from county Prosecutor Dennis Will’s office set up a sting in November and when they heard Fine put the woman, who was wearing a wire, into a trance, they raided his office, according to court files.

Since then, numerous other alleged victims have come forward to investigators, although no charges have been filed against Fine.

The Chronicle - Telegram had an article on his temporary suspension

Fine, who hasn’t been charged with a crime, remains the subject of a criminal investigation into the allegations he hypnotized clients to perform sexual acts. He first fell under scrutiny after a female client noticed she experienced time loss, a wet vaginal area and a disheveled bra after meeting with Fine or talking with him on the phone.

Although Sheffield police warned the woman not to return to Fine’s office when she first brought her concerns to them, she instead began secretly recording her conversations with Fine.

Two of those recordings, made in October, allegedly feature Fine putting the woman into a trance and then giving her sexual commands, according to documents filed by Bar Association attorney Chris Cook.

After the woman took the recordings to Sheffield police, officers brought in investigators from county Prosecutor Dennis Will’s office to assist them. Law enforcement then set up a sting in which the woman wore a wire and went to a Nov. 7 meeting at Fine’s office.

Once he put her into a trance, police moved into Fine’s office and began to conduct a search, according to the documents.

A second woman who had hired Fine to do legal work also reported that she thought he had tried to hypnotize her. Cook has said multiple other victims have come forward with concerns about their interactions with Fine.

(Mike Frisch)

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

Isn't That Special?

A District of Columbia Hearing Committee recently filed a report and recommendation for misconduct in two immigration matters.

The committee proposes a stayed 30-day suspension and probation for two years.

The lengthy and exhaustively detailed report raises a number of points worthy of mention.

First, the case was prosecuted by a Special Bar Counsel, a former member of the Board on Professional Responsibility.

While there have been prior instances of appointment of special bar counsel when the entire Bar Counsel office was recused, I believe this is first such case that actually got prosecuted.

Second, there was an extensive motions practice.

The charges alleged that the misconduct in one count pled in the alternative that either Maryland or D.C. rules applied. The special bar counsel was required to elect a single set of rules and chose Maryland.

I believe that this forced election brings an entirely unnecessary proceduralism to a bar discipline matter.

If either set of rules is violated, discipline follows. Sometimes the proper application of Rule 8.5 depends on the evidence. If you can plead in the alternative in civil practice, surely the more relaxed bar rules permit the practice.

Third, the Maryland disciplinary authorities had reprimanded the attorney for some of the conduct in one of the matters.

The hearing committee found that this action did not preclude findings of misconduct here.

Respondent agreed to be reprimanded by the AGCM for violating MLRPC 8.4(d) in the Minchala matter when the AGCM had under consideration only the basic facts relating to Respondent's lack of competence and diligence. The same facts were proved before the Hearing Committee by Special Bar Counsel, and the same conclusion follows: Respondent violated MLRPC 8.4(d). It only adds to the seriousness of Respondent's violation of MLRPC 8.4(d) that Special Bar Counsel has also provided clear and convincing evidence of Respondent's violation of MLRPC 1.15 in mishandling Mr. Minchala's advance fee payments, and Respondent's causing a waste of judicial resources by forcing Mr. Bloom to file a Lozada motion in order to obtain an extension of time to file Mr. Minchala's appeal with the BIA. (citations to record omitted)

As to the merits, the committee found that his response to a missed deadline was dishonest

 In considering Respondent's conduct in relation to the requirements of MLRPC 8.4(c), the Hearing Committee asked itself one very simple question: "What should an honest lawyer do upon realizing, as Respondent did on June 23, 2011, that the attorney missed an important court filing deadline?"  The answer is equally simple: an honest lawyer must promptly inform the client of the omission, and discuss with the client the means for dealing with the problem caused by the lawyer's error. Yet that is precisely what Respondent did not do in the case of Mr. Minchala. Instead, Respondent concocted a letter based on an unsubstantiated hope that somehow Mr. Minchala had hired a different attorney, and then did nothing further until Respondent was confronted with his dereliction by Mr. Minchala in February, 2012.

Special Bar Counsel had sought disbarment for misappropriation. The committee found only commingling and considered a number of mitigating factors.

If no mitigating factors were involved here, the combined seriousness of Respondent's ethics violations would warrant a six-month suspension, as they did in [the prior] Lopes [case]. However, because the Hearing Committee has found that Kersey mitigation is applicable to Respondent's misconduct in his representation of Ms. Seminiano, because of Respondent's many years of practicing law without any ethics violations other than the instant misconduct, and because of Respondent's record of professional involvement and pro bono service, the Hearing Committee is recommending only a 30-day suspension, stayed in favor of a two-year period of probation on conditions calculated to protect the public but which do not place an undue burden on Respondent.

The case is In re Laurence F. Johnson and can be found at this link. (Mike Frisch)

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

Treatment And Recovery Secures Return To Practice

The Massachusetts Supreme Judicial Court has reinstated an attorney suspended in 2008, concluding that he has dealt with the problems that caused his misconduct.

He has demonstrated the required competence and learning in the law. He has demonstrated moral reform, as well as a support system to assist in maintaining his recovery from the depression and substance abuse that was at  the root of his misconduct. He has provided ample evidence he 1~ again worthy of the public trust. Based on these findings and our conclusion that the petitioner's reinstatement will not be · detrimental to the public welfare, the standing of the bar, and the administration of justice, we recommend that the petition for allowed, on certain conditions.

The misconduct involved neglect of a personal injury matter, escrow violations and failure to cooperate with bar counsel.

He stipulated to a 2 1/2 year suspension.

The cause

The petitioner's wife was diagnosed with stage 4 breast cancer in the fall of 2003.  At the time, the wife was 36 years old.  The petitioner and his wife had a daughter who was then just under the age of two.  Around 2009, the cancer metastasized to her brain.  Because of this, the petitioner became depressed, which he recognized in 2005 or 2006. As a result, he was "~ticking his head in the sand" and not paying attention to the fact that he was not getting mail in his cases.  In 2006, the petitioner began using his wife's opiates, which continued until shortly after her death in 2013.  During that time, he tried several times to stop using drugs; each time was with the assistance of a physician and at least one occasion included an in-patient hospitalization. 

Shortly after his wife's death in September 2013, petitioner sought treatment for depression and drug addiction.

He has maintained sobriety and responded well to his treatment for depression.

As evidence that the petitioner was committed to overcoming his addiction and is unlikely to relapse, Dr. Cherney pointed to the following: when the petitioner's wife died, it would have been very easy for him to continue taking drugs. (petitioner; when his wife died, there was a "huge stockpile" of her drugs in the house). Likewise, when the petitioner's daughter was sent home with drugs after both of her surgeries, he did not use them. 

 Cites to the transcript have been omitted. (Mike Frisch)

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

Monday, July 13, 2015

Resigned To His Fate

The Ohio Supreme Court accepted the disciplinary resignation of an attorney convicted of insurance fraud.

The Blade had the story of the criminal case from 2008

A former Toledo lawyer convicted of conspiracy charges in a multimillion-dollar insurance scheme was sentenced yesterday in U.S. District Court in Toledo to 11 years, three months in prison.

Darrell Crosgrove, 47, of 5853 Cresthaven Lane, was found guilty by a jury June 3 on one count each of conspiracy to commit wire fraud and conspiracy to commit money laundering.

He was convicted of participating in a scheme to cheat real estate agents and appraisers by promising them malpractice insurance if they joined a trade organization.

Also found guilty for their roles in the scheme were former lawyer Douglas Ritson and the mastermind of the scheme, Mark Haukendahl.

Yesterday, Judge Jack Zouhary said the scheme the men devised lasted several years and bilked "hundreds, if not thousands, of real estate agents" nationwide.

He refuted Crosgrove's contention that his involvement in the plan - between 2001 and 2003 - was one of good faith.

As part of the sentence, Judge Zouhary ordered Crosgrove to pay $2,896,432 in restitution. Crosgrove previously forfeited $92,200 in a bank account in Monroe.

"The jury found you did act in bad faith," the judge said. "They found that not only did you make some bad choices, but you did some bad things."

Authorities said the conspirators created organizations called the Noble Group and American Real Estate Association to falsely sell insurance to as many as 4,500 real estate agents and appraisers. Throughout its existence from 1997 through 2004, the men bilked more than $11 million from their victims.

The real estate association operations were shut down in 2004 by a federal judge in New York presiding over a civil lawsuit brought by the U.S. Small Business Association. Charges were brought against the three men as part of a five-year investigation by the IRS and FBI.

Haukendahl, who pleaded guilty to money laundering, mail and wire fraud, and tax evasion charges in July, 2007, is serving a nine-year federal prison sentence and is responsible for the total restitution of $11.7 million.

Ritson pleaded guilty in December, 2006, to conspiracy to commit mail fraud and was sentenced Oct. 20 to one year in prison. He was convicted of serving as the organizations' attorney from 1997 to 2001.

Assistant U.S. Attorney Seth Uram said Ritson's cooperation with authorities led to a consideration at his sentence. He added that Ritson's cooperation likely caused Haukendahl to return from the Dominican Republic where he was living at the time charges were filed against him.

While working for the real estate organizations, Crosgrove falsely represented to the thousands of members that there was insurance coverage available to them if they were sued by a home buyer for negligence.

He then created a false identity of "John Thomas" and continued to act as counsel for the groups under the fictitious name.

Defense attorney Deborah Rump noted yesterday that Cosgrove did not live an extravagant lifestyle and said that his use of a fictitious name in some of his dealings was similar to the actions of IRS agents or debt collectors.

Judge Zouhary pointed to the use of a fictitious name as proof that Crosgrove "understood it was illegal."

Mr. Uram said the government will try to collect restitution from the men when they are released from prison.

He added that any money collected will not make whole the hundreds of real estate agents and appraisers who lost their reputations and businesses as a result of the scheme.

(Mike Frisch)

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

Consent Disbarment For Attorney Facing SEC Judgment

The District of Columbia Board on Professional Responsibility has approved and forwarded to the Court of Appeals a consent disbarment of an attorney

Law360 had this story on the attorney's problems with the SEC

A D.C. Circuit panel expressed skepticism Thursday over attorney Brynee Baylor’s claim she was a victim of the perpetrators of a $2.7 million investment fraud scheme she had participated in, but pushed the U.S. Securities and Exchange Commission to explain why the penalties levied against Baylor weren’t excessive. 

Baylor had been tricked by her client, Frank L. Pavlico III, and his accomplice Valner Johnson when she was hired as outside counsel for Pavlico’s firm, The Milan Group, her counsel Gina Dennis argued to the three-judge panel.

She had carried out “all necessary due diligence” before agreeing to work with Pavlico on the scheme, which had appeared to her to be legitimate, and had relied on the advice of Johnson, another attorney and a “sophisticated third party,” regarding the nature of the scheme, Dennis said. Her only error had been to trust the pair, but the SEC had wrongly treated Baylor as a “villain,” according to Dennis.

“Frank and Val were the puppet masters here … surrounding her in a sandwich of deception,” Dennis said.

But Judge Merrick B. Garland seemed unmoved, questioning Dennis on whether Baylor’s conduct should be considered at the least reckless, which would be sufficient to uphold the ruling against her.

In emails to potential investors and in statements to undercover FBI agents who had posed as potential investors — purportedly based on her own observation of other investor transactions — Baylor had flagged a range of outsized benefits for participation in the scheme, with no risk, which a reasonable person could view as reckless, Judge Garland noted.

“That doesn’t sound like simply trusting someone else,” the judge said. “That sounds like she knew similar trades had occurred.”

Judge Nina Pillard also pushed Dennis to explain Baylor’s role in escrow transactions used to hold investors’ money, noting that she had dispersed money put into an escrow account almost immediately, despite the escrow agreements — which she had drawn up — requiring the money to be held for 60 days, with Judge Garland noting that about two-thirds of investor money had been funneled back to Baylor and Pavlico.

The judgment was the subject of this Law360 story. (Mike Frisch)

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

Drummed Out

An Illinois Hearing Board has recommended disbarment of an attorney who had defaulted on allegations of misconduct

We have considered the Administrator's two-count Complaint, a copy of which is attached as Exhibit 1. We have also considered the Order entered on April 29, 2015 deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2.

We also considered the evidence the Administrator presented in aggravation, specifically the testimony of Schuyler Geller, Jack Kelly and James Burton and Administrator's Exhibits 1 - 3. In particular, Geller described behavior by Respondent, including making baseless claims against opposing counsel and filing baseless criminal charges against opposing counsel and police officers, which clearly exceeded any reasonable boundaries. In addition, in registering with the ARDC for 2015, Respondent provided address information which was false, as evident from the testimony of the Administrator's investigators. This shows a level of intent which provides further support for the sanction requested by the Administrator.

The Panel also considered in aggravation Respondent's lack of cooperation and failure to participate in the disciplinary proceedings. In mitigation, counsel for the Administrator stated on the record Respondent has not been previously disciplined. We did not afford this factor significant weight, given Respondent's serious misconduct and the significant aggravation.

The ABA Journal had reported on criminal charges relating to his creating a disturbance in a courthouse.

The charges were later dropped.

The Chicago Tribune had this story about the arrest and noted

According to his online biography, Fainman attended the University of Wisconsin and John Marshall Law School in Chicago. He cites experience as a pharmaceutical representative, a television producer and jazz drummer.

He apparently has a  "jazz, funk and acid jazz"  quartet. (Mike Frisch)

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

The Second Time Around

An attorney disbarred and reinstated has been recommended for a second disbarment by the California State Bar Court Review Department.

The offense was practicing after the first disbarment

Joseph Giovanazzi was admitted to practice in 1969, disbarred in 1990 after two prior disciplines, reinstated in 2003, and charged in 2012 with the unauthorized practice of law (UPL) and intentional deceit to a superior court that he was entitled to practice law when he knew that he was not. A State Bar Court hearing judge found Giovanazzi culpable of the charges and recommended disbarment, concluding that his prior discipline was an extremely aggravating circumstance not overcome by the minimal weight of mitigating circumstances.

...we affirm the hearing judge’s findings and uphold his recommendation.

The misconduct tool place after a 2011 suspension for non-payment of bar dues

In 2011, Giovanazzi represented a defendant, James Deck, in a multi-count felony jury trial in Riverside County Superior Court. The most serious charge against Deck — attempted murder of a peace officer — resulted in a mistrial and was set for a new trial setting on August 5, 2011. A hearing was also set for August 5, 2011 for Deck’s sentencing on the remaining counts of which the jury had found him guilty.

Between July 1 and August 10, 2011, Giovanazzi was suspended from the practice of law in California for failing to pay his State Bar member fees.

Despite the suspension, he appeared on August 5. The trial judge knew of his suspension.

His story

Giovanazzi testified below that he came to the August 5 hearing not to appear as Deck’s attorney of record, but to be “personally satisfied with an abundance of caution” that Deck’s rights were protected and that there would be a smooth transition to successor counsel. Giovanazzi claimed that he came to court with a motion in case the judge ordered Deck’s retrial to proceed and a continuance motion were needed, but denied that he lodged it with the Clerk or gave a copy of it to Garrett. He also denied indicating to the Court that he was entitled to practice law and he assumed from the nature of the sidebar conference that Judge Freer knew that he was suspended. Giovanazzi sought to explain to Judge Freer the circumstances of the suspension but testified that the judge cut him off.

The review department did not buy the explanation

We hold that Giovanazzi breached his duties as an attorney and committed an act of moral turpitude by engaging intentionally in the unauthorized practice of law, both by holding himself out on August 5, 2011, as entitled to practice, and appearing for his client, Deck. Giovanazzi testified below that he was a mere spectator in the courtroom, there to distantly observe the hearing. But the evidence showed that he was actively engaged first with opposing counsel Garrett and then with Garrett and Judge Freer at the sidebar conference about his status as attorney for Deck, never revealing to them that he was suspended when he knew that he was.

The review department rejected other attacks on the findings of fact below. (Mike Frisch)

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