Friday, August 22, 2014

The Wrong Kind Of Pretrial Diversion

The Nebraska Supreme Court imposed an 18-month suspension of a former county attorney convicted of misconduct in office.

The same court had previously reversed the criminal conviction

As the Keith County Attorney, John Blake Edwards established a pretrial diversion program.   After an audit by Nebraska's state auditor and an investigation by the Nebraska State Patrol, Edwards was charged with three counts of theft by unlawful taking for checks written from diversion program funds.   Edwards was acquitted by a jury of two of the theft counts and convicted of the third, which was based on a check he wrote on a diversion program account to a local trapshooting team (trap team).   He was sentenced to probation.   Edwards appeals.   We find plain error in the jury instructions, and therefore, we reverse, and remand for a new trial.

The attorney pleaded guilty to a single count of official misconduct after the remand.

Because the attorney was suspended on an interim basis, he has fully served the suspension. The effect of the decision here is to automatically reinstate him to practice. (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Read The Text Message Later

A California attorney convicted of a property damage misdemeanor hit and run has been publicly reproved by the State Bar Court.

The facts

 On the evening of July 9, 2009, [the attorney] attended a reception, drank a beer, and later argued with his girlfriend. While driving from the reception on a section of the Pacific Coast Highway in Marina Del Rey, he took his eyes off the road to read a text message. As a result, he hit the right rear bumper of the car in front of him, which was stopped to allow several pedestrians to cross the street in a well-marked crosswalk. [He] did not stop, even though he felt the collision and noticed damage to his right side-view mirror. Instead, as observed by police in the vicinity, [he] drove away at high speed, making three turns on narrow residential streets before the officers who pursued him could stop him.

The attorney, who was driving a silver BMW, testified that he failed to stop because he could not find a parking space. He "vacillated" on this contention under cross examination. (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bigoted Statements Draw Reciprocal Suspension

The Wisconsin Supreme Court has imposed reciprocal discipline based on a sanction ordered by the Minnesota Supreme COurt.

Citypages blog had the story of the Minnesota action

Rebekah Nett, the Hastings-based attorney who wrote a bankruptcy filing we characterized as the craziest of all time back in 2011, has finally been suspended from practicing law.

Nett was raised as a member of a religious group called R.C. Samanta Roy Institute of Technology, and in the aforementioned filing, she talked a bunch of smack about Catholics.

From our December 2011 blog post:

In the brief, filed November 25, attorney Rebekah Nett accuses Judge Nancy Dreher of being a "Catholic Knight Witch Hunter," declares that the court system is "composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church," and even labels a bankruptcy trustee, Colin Kreuziger, "priest's boy."
Nett missed a hearing on November 17 because opposing counsel Nauni Manty had given her notice that it was set for 1:30 instead of 1. Nett and her client, Naomi Isaacson, took that to suggest a conspiracy by the judge and the other lawyers, who were "of the same race and religion.

Nett also made reference to "dirty Catholics," the Pioneer Press reports, adding that some of her more outrageous filings came in bankruptcy cases of entities related to SIST, a group that some former members allege is a cult.

Nett's anti-Catholic comments drew the attention of the Catholic League, which went on to file a complaint with the Minnesota Office of Lawyers Professional Responsibility Board. The Board recommended Nett be suspended for two years, but the state Supreme Court opted for a lighter nine month suspension, the PiPress reports. A referee previously recommended a suspension of at least six months. 

The reciprocal sanction is a one-year suspension.  (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unauthorized Practice Leads To Reciprocal Suspension

An attorney who was disciplined for the unauthorized practice of law in Delaware (where he had never been admitted) has been reciprocally suspended for one year by the Pennsylvania Supreme Court, which had admitted him to practice in 1965.

The attorney had represented Delaware residents in more than 100 matters over a seven year period. The cases involved motor vehicle accidents that occured in Delaware.

Some of the cases were referred to the attorney from a Wilimington doctor. The attorney met with some of the clients in the doctor's office. Other cases came from "television advertisements which targeted Delaware residents." The attorney met with some of these clients in the Delaware office of his law firm.

The Pennsylvania court accepted a joint petition for reciprocal discipline. (Mike Frisch)

August 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, August 21, 2014

Waiver Of Ineffective Assistance Claims As Part Of Plea Bargain Violates Ethics Rules

The Kentucky Supreme Court has affirmed a Bar Association Ethics Opinion that

...deals[s] with the ethical ramifications of one aspect of..."horse trading between prosecutor and defense counsel."

The United States Attorneys for the Eastern and Western Districts of Kentucky had sought review of Ethics Opinion E-435, which found that the use of prospective waivers of ineffective assistance of counsel claims as part of a plea bargain violated governing ethics rules.

The court confirmed that such waivers create a non-waivable conflict of interest between defense counsel and the client, improperly limited the defense attorney's liability for client malpractice and "induce[], by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was authored by Chief Justice Minton. (Mike Frisch)

August 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Free Lawyers For Accused Lawyers

The District of Columbia Board on Professional Responsibility has amended its policies for compensating lawyers who defend attorneys accused of ethics violations.

An attorney who seeks counsel under the new policy must establish "financial hardship" under standards established by the BPR by filing an ex parte affidavit. The accused attorney then may select counsel who will be paid at the rates established under the Criminal Justice Act with a $25,000 fee cap.

Reimbursement for the work of law clerks, paralegals and investigators is also available.

Unbelievably, free counsel can be obtained before any charges are filed.

Attorneys cannot get free counsel for a reinstatement proceeding or for a reciprocal discipline matter unless the reciprocal matter is joined with other charges.

So far as I am aware, the District of Columbia is the only jurisdiction where lawyers charged with disciplinary violations can get a defense attorney provided free of charge.

Indeed, many jurisdictions impose costs on an attorney found in violation of ethics rules. Heaven forbid D.C. would ever consider imposing costs.

By the way, the representation is not for free. It's paid by D.C. Bar dues.

Personally, I can think of more appropriate uses for mandatory bar dues.

For starters, we could increase payments under the Clients' Security Fund to victims of lawyer thefts.

This policy reflects something I've long been aware of -- the D.C. BPR cares as much (if not more) about protecting accused lawyers than it does about what is supposed to be its reason to exist - protecting the public from unfit lawyers.

Update: In response to a query from a reader of this blog, I wish to make something clear.

I am entirely in favor of an accused attorney having counsel. Indeed, competent defense counsel can play an essential role in assuring a fair process.

I just strongly object to the funding of defense counsel through mandatory bar dues. (Mike Frisch)

August 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 19, 2014

E-Mail Misconduct Draws Reprimand

A North Carolina attorney has been reprimanded  for misconduct in a "protracted and extremely contentious" domestic relations matter.

The misconduct involved ex parte e-mails to the judge and her law clerk.

While the attorney had contended that she was only reponding to e-mails submitted by the opposing party, the reprimand states that the attorney was "obligated to take the high road" and refrain from the ex parte contacts.

The Grievance Committee also expressed concern about an e-mail that the attorney sent to the opposing party (presumably not represented because there was no allegation that the communication violated Rule 4.2) that got "personal"

You're a terrible husband, father, lawyer and human being.

The committee expressed an expectation that the attorney would heed and remember the sanction. (Mike Frisch)

August 19, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 18, 2014

I Walk (Over) The Line

From the web page of theTennessee Supreme Court

The Tennessee Supreme Court has reinstated a Memphis attorney’s 60-day suspension from the practice of law for his behavior during a trial.

Attorney R. Sadler Bailey was representing a plaintiff in a medical malpractice case in 2008. On the opening day of trial, in a case that already had become volatile among the attorneys, Mr. Bailey became upset when it appeared that Circuit Court Judge Karen Williams was about to rule against his client. After vehement arguments between the attorneys for the parties, the defense began their opening statements and Mr. Bailey objected 12 times, most made in a manner that was in defiance of Judge Williams’ instructions.

The next day, Mr. Bailey criticized Judge Williams multiple times in court, and the defense sought a mistrial, which the judge initially denied. After continued complaints from Mr. Bailey, a mistrial was declared based on Mr. Bailey’s “contentious conduct toward the court.”

Both Judge Williams and defense counsel filed a complaint regarding Mr. Bailey with the Board of Professional Responsibility (BPR), which is responsible for investigating complaints and initiating disciplinary proceedings against attorneys in Tennessee.

A BPR hearing panel heard from four witnesses who described Mr. Bailey’s behavior as “disrespectful,” “frenetic,” and “harsh.” Mr. Bailey asserted that he was merely fulfilling his duty to zealously represent his client.

The Panel found that Mr. Bailey violated several Rules of Professional Conduct and that his extensive experience, misconduct during the course of the trial, and lack of remorse for his behavior supported imposing a 60-day suspension. Mr. Bailey appealed to the Chancery Court for Shelby County, which agreed that the violation of the Rules of Professional Conduct occurred, but decided that a 60-day suspension was not warranted. The BPR appealed to the Supreme Court.

The Supreme Court concluded that Mr. Bailey’s 60-day suspension is consistent with Tennessee cases involving similar violations of the Rules of Professional Conduct and noted that the 60-day suspension is well below the minimum of six months that national standards of the American Bar Association recommend. The court also rejected Mr. Bailey’s claim that his actions were necessary to properly represent his client.

“Attorneys who cross this line may not avoid punishment by claiming that their misconduct served the greater good or the interests of their clients, as such exceptions would overwhelm the rules,” wrote Justice Cornelia A. Clark in the unanimous Opinion.

Read the opinion in R. Sadler Bailey v. Board of Professional Responsibility, authored by Justice Clark.

(Mike Frisch)

August 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not For Personal Use

An attorney convicted in a drug distribution case has been disbarred by the Pennsylvania Supreme Court.

The attorney signed for and accepted four UPS packages that contained approximately 243 pounds of marijuana. The UPS agent was actually an undercover police officer.

The attorney was convicted at a bench trial and failed to report the conviction to the Bar.

And his attitude did not help

In keeping with Respondent's view that he did nothing wrong and simply signed for a package, it is clear that he failed to show remorse. Though he acknowledged his actions and testified that he was "very sorry to be in this position and the circumstances" that brought him bE)fore the Hearing Committee (N.T. p. 80), Respondent has not sincerely recognized the gravity of harm his convictions have brought to the reputation of the bar or the negative impact that his convictions have had on the public. There is no question that the refusal to acknowledge one's guilt and a lack of remorse are aggravating factors that must be taken into account.

He blamed the conviction on "overzealous prosecution." (Mike Frisch)

August 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, August 16, 2014

Good Grief, Chief Judge Charlie Brown

An attorney was censured and fined $100 by the District Court Division of the General Court of Justice (North Carolina) for "unprofessional behavior."

When asked in chambers whether she had complied with her obligation to "yield gracefully to the court's order," she stated:

I don't feel procedures and statutes have been followed and I'm just being honest with you.

After the question was repeated, she was unresponsive and then said:

I just don't agree.

Then, while waiting in court for the judge to complete the contempt paperwork in his chambers, she became impatient and said:

This is bullshit.

After a lieutenant told her to keep quiet, there was this:

This shit doesn't happen in Raleigh.

Told again to be quiet, the reply:

The court is not in session.

The attorney waved the $100 during the above exchanges.

The sanction was imposed by Chief Judge Charlie Brown of Rowan County. (Mike Frisch)

August 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Perdue Campaign Employee

The web page of the North Carolina State Bar reports

Asheville attorney Julia Leigh Sitton pled guilty to misdemeanor obstruction of justice. Sitton was an employee of the Bev Perdue campaign. Sitton agreed that a campaign contributor could pay her an extra $2,000 per month through a purported consulting contract under which Sitton did not actually provide any consulting services to the contributor. This arrangement allowed the contributor to exceed the limit on allowable campaign contributions under N.C. Gen. Stat. § 163-278.13 and allowed the campaign to avoid reporting the payments on campaign finance reports required by N.C. Gen. Stat. § 163-278.8 and § 163-278.11. The DHC suspended Sitton's law license for three years. After serving one year of the suspension, Sitton may apply for a stay of the balance upon compliance with enumerated conditions. Sitton received credit for the time she voluntarily abstained from the practice of law following her conviction.

WRAL.com reported on the guilty plea in the criminal case. (Mike Frisch)

August 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 15, 2014

Breaking News: Louisiana Settles With DOJ Over Mental Health Bar Application Issues

The Louisiana Supreme Court has entered into a settlement agreement with the United States Department of Justice with respect to concerns raised by DOJ in the mental health evaluations of bar applicants.

The substance of the agreement  is set forth in this announcement

The Justice Department announced today that it has entered into a settlement agreement with the Louisiana Supreme Court that will resolve the department’s investigation of the court’s policies, practices and procedures for evaluating bar applicants with mental health disabilities.  The department’s investigation found that during the Louisiana bar admissions process licensing entities based recommendations about bar admission on mental health diagnosis and treatment rather than conduct that would warrant denial of admission to the bar. 

 The settlement agreement ensures the right of qualified bar applicants with mental health disabilities to have equal access to the legal profession as required by the Americans with Disabilities Act (ADA).  It prohibits the court from asking unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment.  It also requires the court to refrain from imposing unnecessary and burdensome conditions on bar applicants with mental health disabilities, such as requests for medical records, compulsory medical examinations or onerous monitoring and reporting requirements.  Title II of the ADA prohibits public entities, including licensing entities, from imposing unnecessary eligibility criteria that tend to screen out individuals with disabilities, or imposing unnecessary burdens on individuals with disabilities that are not imposed on others. 

 The department found that diagnosis and treatment, without problematic conduct, did not effectively predict future misconduct as an attorney and did not justify restrictions on admission.  Yet the Louisiana bar admissions process imposed unnecessary burdens on applicants and attorneys based on their diagnosis and treatment, in violation of the ADA.  Questions about mental health diagnosis and treatment, such as those used by Louisiana, are counterproductive to licensing entities’ interest in attorney fitness because individuals who would benefit from mental health treatment may be deterred from obtaining it by the knowledge that they will have to disclose their treatment to licensing authorities.

 “Today’s agreement will ensure that qualified bar applicants with mental health disabilities are able to pursue their dream of becoming licensed attorneys, without discrimination based on diagnosis or treatment,” said Acting Assistant Attorney General Molly Moran for the Civil Rights Division.  “Qualified individuals with disabilities, including mental health disabilities, have valuable contributions to make to the legal profession and to their communities.  Their diagnosis should not hinder or prevent them from doing so.  Though bar licensing entities have the important responsibility of ensuring that all licensed attorneys are fit to practice law, licensing entities must discharge this responsibility in a manner that is consistent with civil rights laws.”

 “This agreement is a testament to the United States Department of Justice’s commitment to fighting discrimination against persons with disabilities and further ensures that qualified individuals will have the opportunity to pursue their career goals and make valuable contributions to our community,” said U.S. Attorney Kenneth Allen Polite Jr. for the Eastern District of Louisiana.  “The cooperation between the parties in reaching this agreement demonstrates a shared priority of protecting against discrimination.”

 Under the agreement, the court will, among other actions:

 

  • Revise its character and fitness screening questions so that they focus on applicants’ conduct or behavior, and ask about an applicant’s condition or impairment only when it currently affects the applicant’s ability to practice law in a competent, ethical and professional manner or is disclosed to explain conduct that may otherwise warrant denial of admission;

 

  • Refrain from imposing unnecessary burdens on applicants with mental health disabilities by placing onerous disability-based conditions on their admission, invading their privacy, or violating their confidentiality;

 

  • Re-evaluate prior and pending applications of applicants who disclosed mental health disabilities under the revised, non-discriminatory procedures set forth in the agreement; and

 

  • Pay $200,000 to compensate a number of affected bar applicants and attorneys.

 Since the department’s letter of findings concluding that the court was in violation of Title II of the ADA was issued in February, the court has worked cooperatively with the department to negotiate an agreement and to implement corrective measures. 

 The department has also raised issues about unnecessary bar application questions related to mental health disabilities with the states of Vermont and Connecticut and with the National Council of Bar Examiners (NCBE).  The NCBE revised two of its questions about mental health on February 24, 2014.

This will likely affect the bar admissions processes throughout the country. (Mike Frisch)

August 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension For Hospital Referral Payments

A suspension of four months was imposed by the New York Appellate Division for the First Judicial Department of an attorney convicted of criminal facilitation in the fourth degree.

The findings of misconduct were

based upon his plea allocution in which he acknowledged that "in 2007, in the Bronx, after an injured patient was accepted as a personal injury client, [I] paid an employee at Lincoln Hospital for [] disclosing the patient's information to [me]." Respondent, who is admitted in Connecticut and New Jersey, promptly notified all three jurisdictions of his conviction.

In the disciplinary matter

At the sanction hearing held on December 10, 2013, respondent testified in his own behalf and called three character witnesses. He also submitted character letters and expressed remorse for his conduct. The evidence adduced at the hearing disclosed that respondent graduated from Brooklyn Law School in 1989 and became associated with Dinkes & Morelli. In 2006, eight years after the dissolution of that firm, while working for the firm Dinkes & Schweitzer, respondent, at the behest of partner William Dinkes, became involved in a scheme of paying hospital employees $500 for referrals. Respondent made eight such payments, but ceased the practice in September 2007 when Dinkes died suddenly. Respondent indicated he did not continue the payments after Dinkes' death since he did not know the source of the funds.

Respondent has had an otherwise unblemished record during his 23 years of practice. He has paid the fine and sanctions and performed the community service through work with the Fortune Society.

(Mike Frisch)

August 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, August 14, 2014

Politics As Unusual

The New York Appellate Division for the Second Judicial Department has imposed disbarment for an attorney's felony conviction.

The attorney pleaded guilty in federal court to offenses relating to

...his participation in a scheme, from in or about November 2012 up through and including in or about April 2013, an object of which was to accept a bribe in exchange for authorizing a member of the Democratic Party to appear on the Republican Party primary ballot for New York City Mayor, in violation of New York Penal Law §§ 200.45 and 200.50 (hereinafter the 2013 NYC Mayor Bribery Scheme).

Disbarment was automatic for this felony conviction.

The New York Post reported that the attorney was the head of the Bronx Republican Party. (Mike Frisch)

August 14, 2014 in Associates, Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Heat Of The Moment

A misdemeanor criminal conviction has resulted in an attorney's public censure from the New York Appellate Division for the Second Judicial Department.

The facts

On or about May 21, 2011, the respondent was involved in an incident at Saratoga Spa State Park, which is located within the City of Saratoga Springs, New York, during which he allegedly tackled David P. Needham, throwing Mr. Needham to the ground and causing Mr. Needham to suffer injuries to his neck and shoulder as well as a head concussion. The respondent also was alleged to have applied pressure to Mr. Needham's throat and neck that impeded Mr. Needham's breathing and caused him to be dazed and shaken and to have memory loss. Based upon the subject alleged incident, the respondent was charged, on or about June 6, 2011, in the City Court for the City of Saratoga Springs, with assault in the third degree, a class A misdemeanor, in violation of Penal Law § 120.00(1), and strangulation in the second degree, a class D felony, in violation of Penal Law § 121.12. On September 12, 2011, with the prosecution's consent, the respondent entered an Alford plea (see North Carolina v Alford , 400 US 25) to the reduced charge of reckless endangerment in the second degree, a class A misdemeanor, in violation of Penal Law § 120.20, in full satisfaction of the charges.

As to the sanction

In determining an appropriate measure of discipline to impose, this Court has considered the Special Referee's determination that the respondent's conduct was spontaneous, "having occurred in the heat of the moment." Additionally, the conduct was unrelated to the practice of law. This Court also has considered the evidence in mitigation offered by the respondent, including character letters attesting to the respondent's outstanding reputation in the legal community and his record of pro bono activities. The respondent has no prior disciplinary history.

(Mike Frisch)

August 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Never Admitted, Permanently Disbarred

A Florida attorney who has never been admitted to practice in South Carolina has managed to get permanently disbarred by the South Carolina Supreme Court.

The attorney set up an office in the Palmetto State ostensibly to engage in a federal immigration practice.

Except for a two-week period in 2012, she had no South Carolina lawyers associated with the practice.

The court found that the attorney's web page and other professional listings failed to indicate her practice limitations and contained other material misrepresentations.

She advertised for clients in matters that required her to be a licensed South Carolina attorney.

Further, despite her initial cooperation, she made false statements and eventually defaulted in the bar investigation.

Although the court characterizes its sanction as permanent, it leave open the possibility that the attorney may seek to have it set aside in the future. (Mike Frisch)

August 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 12, 2014

Plane Meaning

The Illinois Review Board has recommended a censure of an attorney based on findings of misconduct arising from the representation of a person who survived an airplane crash.

The findings

As a result of the crash, [client] Gumus underwent back surgery and was hospitalized for several weeks. Following his release from the hospital, he went to his ex-wife's home in Rotterdam to recuperate. The first evening he arrived at his ex-wife's home, he suffered a heart attack. Sometime after the plane crash but prior to April 19, 2009, he retained a Netherlands law firm called SAP Advocaten ("SAP") to represent him in all claims relating to the crash.

Soon after the crash, Respondent sent representatives to the Netherlands to meet with victims of the crash. Surreya Yigitbasi ("Yigitbasi"), a lawyer in Turkey, worked for Respondent on an hourly basis. He referred clients to Respondent's firm and assisted Respondent with matters relating to the crash. Yigitbasi testified at the hearing in this matter that he received a phone call in April 2009 from Ali Atak ("Atak"), who identified himself as Gumus' uncle. Yigitbasi gave Gumus' phone number to a lawyer from Respondent's firm. On April 19, four individuals visited Gumus while he was bedridden. After a presentation lasting several hours, Gumus signed a document to retain Respondent's firm to represent him in the United States in claims against Boeing Company or any other persons or corporations that could be liable for his injuries arising out of the plane crash.

As of April 19, Gumus had already retained SAP and he had no intention of discharging SAP from representing him. He was in pain during the meeting and did not understand the purpose of the meeting. Within a day after the meeting, Gumus called SAP. He asked SAP to "certify that these are not my lawyers" and asked for assistance to prevent the four individuals from disturbing him any further. SAP lawyer Sander de Lang ("de Lang") explained at his evidence deposition that under Dutch law, a client may cancel any agreement within eight days after signing without incurring any costs. Mr. de Lang assisted Gumus in preparing a document entitled "Notice of Withdrawal of Attorney", withdrawing "the power of attorney for representation" by Respondent's firm. Mr. de Lang sent a letter and the Notice of Withdrawal to Respondent. Respondent admitted receiving the documents. However, Respondent believed that Gumus was simply confused as to why he had hired Respondent's firm. Respondent did not contact Gumus or de Lang after receipt of the letter and the Notice. Instead, she testified she contacted Yigitbasi, who in turn contacted Atak. Atak did not contact Gumus but told Yigitbasi in this same conversation that everything was "okay" and that Yigitbasi could continue. Yigitbasi relayed the content of the conversation with Atak to Respondent. Respondent testified she then proceeded to do work for Gumus and other victims of the crash in 2009 and early 2010.

Gumus was unaware that Respondent was still acting as his lawyer and he did not authorize Respondent to perform any services on his behalf. SAP worked during the same time period on behalf of Gumus. SAP also worked with an associate in the Kreindler & Kreindler law firm in New York named Orla Brady, and with the Chicago law firm of Powers, Roger & Smith.

On March 23, 2010, Respondent filed a lawsuit in the Circuit Court of Cook County on behalf of Gumus and others against Boeing. She did not communicate with Gumus prior to filing suit. Respondent testified she told Yigitbasi to contact Gumus to approve the filing of the complaint. Yigitbasi told Respondent that he was unable to reach Gumus but that Atak said to go ahead and file the complaint. There was no testimony that either Yigitbasi or Atak communicated with Gumus. Gumus testified he never authorized Respondent to represent him or to file a lawsuit on his behalf.

In early May 2010, Mr. de Lang learned from Turkish Airlines that Respondent was claiming to represent Gumus. He immediately sent an e-mail to Respondent stating that Gumus had discharged Respondent and attaching the April 2009 Notice. Respondent's partner, Mervin Mateo, a New York lawyer, responded to the e-mail advising de Lang of the lawsuit and stating that it would be detrimental to Gumus to dismiss the case. Mateo asserted that Respondent would contact the client. Respondent did not contact Gumus although she claimed an associate, Ray Welcher ("Welcher"), sent Gumus a letter dated May 6, advising him of the filing of the action against Boeing. Welcher denied writing or authorizing the letter. Gumus testified he never received a letter from Respondent's office.

After a flurry of e-mails between various lawyers, Kreindler & Kreindler and Powers, Roger & Smith moved to substitute as counsel in the lawsuit. Thereafter, at Respondent's direction, Welcher contacted Orla Brady of Kreindler & Kreindler and told Brady that Respondent's firm would not oppose the motion to substitute if Brady agreed to pay Respondent's firm 50% of any fees received. Brady refused the demand. Respondent did not appear at the hearing on the motion to substitute but sent Welcher to appear for the firm. At the hearing on the motion to substitute, Brady made an oral motion for sanctions against Respondent. The Court granted the motion to substitute but denied the oral motion for sanctions, stating, "Put it in writing and I will reconsider it." There was no testimony that Brady ever requested reconsideration; she reported Respondent's conduct to the ARDC.

The board agreed with the hearing board that the attorney violated Rule 1.16.  (Mike Frisch)

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Misconduct In Remark About Judge

The Louisiana Attorney Disciplinary Board has agreed with a hearing committee that a statement by the press spokesperson for the Orleans Parish District Attorney's Office did not violate ethics rules.

The basis of the bar charges was a remark made by the accused attorney after a judge had found the defendant in a high-profile case not guilty.

The newspaper report that led to the charges is linked here.

In reponse to a reporter's query, the spokesperson said

District Attorney Cannizzaro has fought hard to eliminate corruption, unfortunately [the judge] thwarted our efforts today.

Both the hearing committee and found found that the statement was not false and was not intended to impugn the integrity of the judge.

The board ordered the dismissal of the charges. (Mike Frisch)

 

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Grudging Acceptance" Of Guilt Not Enough To Obtain Reinstatement

The Wisconsin Supreme Court declined to reinstate a disbarred attorney notwithstanding the favorable referee report and the lack of opposition on appeal from the Office of Lawyer Regulation.

The OLR had opposed reinstatement at the hearing before the referee.

The attorney was convicted in 1984 of conspiracy to obstruct commerce by extortion. His father and brother were also convicted in the same case.

The court here found that the attorney and referee had minimized his role in the crime, in contrast to the conclusions of the United States Court of Appeals for the Seventh Circuit in affirming the conviction.

The court

The record reveals a pattern of a lack of acceptance of responsibility over the years that have passed since Attorney Balistrieri's conviction.  When the [Board on Attorneys Professional Responsibility] recommended against the reinstatement of his license in 1995, in large part based on its conclusion that he had not accepted responsibility for his criminal conduct, Attorney Balistrieri ultimately responded by claiming that BAPR was biased against him because of his Italian heritage.  He attacked the integrity of the reinstatement process with a completely unsupported charge of ethnic bias rather than demonstrate how his words and actions showed that he now understood that he needed to obey both the letter and the spirit of the law and the ethical rules governing attorneys.

Later, in a deposition in a civil case, he asserted that the charges against him were brought by "a homosexual child molester with a cocaine habit..."

In sum

We are not making a full and unconditional confession of one's crime a prerequisite to the reinstatement of a law license for everyone who has committed a crime.  What Attorney Balistrieri was obligated to prove by clear and convincing evidence, however, was that he has a good moral character, that he possesses a proper attitude toward the standards that are imposed upon members of the bar of this state, which includes both the general law and the Rules of Professional Conduct for Attorneys, and that he will act in conformity with them.  His grudging acceptance of the fact of his conviction after decades of besmirching the individuals who did their job in investigating and prosecuting him or who acted within their proper role in the lawyer regulation system is not enough to meet that standard.

The court also concluded that the referee had "downplayed" other issues relating to post-disbarment taxes and omissions on the reinstatement application.

Justice Bradley dissented and would reinstate in deference to the referee's credibility findings. (Mike Frisch)

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Guilty Plea Forecloses Innocence Claim In Bar Discipline Matters

An attorney who had been suspended for two years in New York received identical reciprocal discipline from the Vermont Supreme Court.

The attorney was charged with felony offenses in New York and pleaded guilty to misdemeanor identity theft.

Discipline was imposed in New York as a result of the conviction.

In the Vermont proceeding, the attorney denied that she had defrauded anyone. Rather, she contended that the guilty plea was offered because of her husband's health issues and the legal expenses of fighting the felony charges.

Vermont Disciplinary Counsel agreed and advocated in favor of a public reprimand, contending that the evidence showed that the attorney had "not defrauded anyone" and had entered a "plea of convenience."

The court strongly disagreed, concluding that the guilty plea foreclosed arguments favoring actual innocence.

According to the court, while Disciplinary Counsel plays a "crucial role" in bar discipline matters that entitle its views to the "strongest consideration," it is the court that is the ultimate decisionmaker in attorney misconduct matters.

There is a lesson here - when an attorney is convicted of a crime by plea or trial, courts imposing bardiscipline will not entertain a claim of innocence. (Mike Frisch)

August 12, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)