Wednesday, November 26, 2014

Domestic Violence Suspension

The Oklahoma Supreme Court has imposed a suspension of two years and a day for an attorney's domestic violence conviction

On or about the evening of July 3, 2011, Respondent's wife and two children were sleeping in their car to avoid Respondent who was intoxicated. Respondent approached the car and accused the son, who was 14 years of age, of breaking a television set. Respondent's son exited the vehicle and soon thereafter a verbal and physical altercation ensued. During the incident Respondent punched his son in the mouth causing a small cut and swollen lip. This occurred in the presence of Respondent's wife and 7 year old daughter. Tulsa Police were called and Respondent was arrested.

While on probation for the offense there was a second incident of violence toward his son.

The court

Respondent has presented no defense for his actions and his brief states he readily accepts any discipline. He claims to have reconciled with his son and has completed 52 weeks of DVIS classes. The attached letter written by Mr. Brett states Respondent has matured and grown from his disbarment experience and is now "professionally prepared to resume his obligations as a practitioner of the law." This letter was dated August 11, 2014, less than a month after Respondent received his interim suspension. Although, we encourage Respondent to continue his reconciliation efforts and remain sober, not enough time has passed to convince this Court he is prepared to resume the practice of law. This point is emphasized by the fact he reported having a relapse the day following the filing of his brief, August 22, 2014. As in Soderstrom, we find a suspension period of two years and one day is appropriate.

The suspension is effective as of the date of the interim suspension. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Neither Doctor Or Lawyer

The South Carolina Supreme Court has imposed a two-year suspension of an attorney who also was an opthalmologist.

The attorney achieved some level of notoriety last year when the same court suspended her for not having a current email address.

The problem here was the attorney's litigation (found to be frivolous) for denial of her hospital privileges.

From the fourth dismissal of these claims

Judge Harrington was warranted in ordering sanctions in this case, especially because Appellant, a licensed attorney, made identical legal arguments in the 2005 litigation and did not prevail on the merits. Appellant has continuously and repeatedly challenged the Hospital's credentialing decisions without any legal basis to do so, and in the process, has cost the Hospital untold amounts of time and resources in defending these claims. Therefore, we further find that Judge Harrington was warranted in enjoining Appellant from filing any future claims in the circuit court without first posting bond.

The court here rejected the attorney's efforts to relitigate the merits of the underlying claims. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Accident Derails Career Of Ohio Bar Applicant

An applicant for admission to the Ohio Bar disclosed two alcohol-related incidents that had taken place in 2010.

One involved a reckless driving conviction that was pled down from driving under the influence; the other an open container of beer.

He was provisionally allowed to sit for the July 2013 exam.

But shortly before that event he was involved in another alcohol-related driving event in which he struck a parked car and left the scene. He had been drinking after a night of studying.

As a result, he was not allowed to sit for the 2013 exam.

The Ohio Supreme Court has now denied him permission to sit again.

The court noted concerns about his candor in connection with the pre-exam incident. His hearing testimony was inconsistent and an email to the Board of Commissioners on Character and Fitness had mischaracterized the circumstances.

The applicant was not found to have a chemical dependence and the bar's program did not propose that he enter into treatment.

He may reapply to sit in July 2015. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Stroke That Wasn't Leads To Increased Reciprocal Discipline

The Maryland Court of Appeals has ordered an indefinite suspension with possible reinstatement after one year as reciprocal discipline based on sanctions imposed in Delaware.

Notably, the sanction in Delaware was a public reprimand.

The attorney had failed to complete CLE requirements and had not responded to bar inquiries. 

He also made a false statement

Poverman failed to complete his 2013 Annual Registration Statement by the March 1, 2013 deadline. On March 12, 2013, the Delaware Supreme Court issued an order directing Poverman to appear before the court and show cause why he should not be suspended or sanctioned for such failure. ODC sent the show cause order to Poverman’s Baltimore office on March 19, 2013. On March 27, 2013, the date on which he was due to appear before the court to respond to the show cause order, Poverman called Cathy Howard, Clerk of the Supreme Court, and advised her that he would complete his registration statement online.

Based on their conversation, Howard believed that Poverman had suffered two strokes, which hindered his completion of the registration statement. On the same day, Howard sent an email to ODC relaying that Poverman had experienced two strokes and that he would complete the registration prior to his scheduled appearance before the Supreme Court. On April 9, 2013, Poverman repeated this assertion to the ODC in an email, stating that he had a “second stroke” in December 2012. Poverman, however, was never formally diagnosed as having suffered a stroke.

The court

...we conclude that indefinite suspension with a right to apply for reinstatement after no less than one year would not be “too harsh.” Although Poverman also has no prior disciplinary history, the other mitigating factors that applied to Kepple do not apply to him. Poverman was not “youthful and inexperienced” when he committed the misconduct, and the Board did not find he made a timely good faith effort to rectify the consequences of his misconduct. Furthermore, Poverman, unlike Kepple, repeatedly ignored communications from a disciplinary authority. We conclude that Poverman’s misconduct warrants an indefinite suspension with a right to apply for reinstatement in one year.

(Mike Frisch)

November 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Suspension Proposed For Blogging On Probate Matters

An Illinois Hearing Board has proposed a suspension of three years of an attorney who it found had

made false statements concerning the integrity of the judges, knowing  they were false or with reckless disregard for their truth or falsity, and  engaged in dishonest conduct and conduct prejudicial to the administration of  justice. The Hearing Board found, while Respondent had accused judges and other  attorneys of criminal conduct, there was not clear and convincing evidence that  she presented or threatened to present criminal charges, in order to obtain an  advantage in a civil matter.

As set forth below, the statements involved a guardianship matter and were made on a blog

Beginning in November 2011, Respondent wrote and  administered an Internet blog about the Sykes case. The blog consists of a  series of writings, by various persons, including Respondent. Respondent made  numerous blog posts over time. Some of those writings concern probate court and  the probate system in general. Other writings relate specifically to the Sykes  case and persons involved in it. The blog alleges corruption, in probate court  in general and the Sykes case in particular. For a time, there were  two blogs, one of which described itself as "(a)n attorney blog concerning  corruption and greed in the Probate Court of Cook County," because Respondent  used hosting sites which offered different features. (Tr. 318-19, 606-610,  820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate  them as the blog.

Respondent testified she produced the blog as a  private person not as an attorney. (Tr. 384). Respondent also testified her  knowledge and skill as an attorney was required to post and author the  statements on the blog. (Tr. 410). On the blog, Respondent stated she published  the blog primarily from a legal standpoint and it took an attorney to make the  comments appearing on the blog. (Tr. 411-12). When Respondent began keeping  track of time she spent on the blog, she calculated its value using her hourly  rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent's  Summary, the blog was open to the public. Respondent estimated, by the time of  the hearing, her blog had an audience of about 40,000. (Tr. 318).

The blog includes allegations of wrongdoing by  specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28).  These allegations are summarized in a "Table of Torts." While those persons are  referenced by initials, the Table identifies the persons to whom the initials  refer. Respondent prepared the Table of Torts. Because Respondent periodically  added material to the Table of Torts, more than one version is in evidence.  Respondent acknowledged the exhibits fairly represent snapshots of the Table of  Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).

On the blog, Respondent described the Table of  Torts as "TEN PAGES of questionable behavior, corruption, misfeasance,  malfeasance, perpetration of misdemeanors and felonies," occurring in the Sykes  case, (Adm. Ex. 24 at 16), and as a "Summary of the Case! - 90%+ of the wrongful  conduct all in one convenient place." (Adm. Ex. 21 at 10). We begin, therefore,  with the Table of Torts, for the purpose of providing an  overview of the blog and context for the statements with which Respondent is  charged.

The hearing board

Respondent was licensed to practice law in 1986,  nearly thirty years ago. She has no prior discipline.

While Respondent acted with reckless disregard for  the truth of her accusations, based on our impressions of Respondent, we do not  believe she was acting out of a deliberate purpose of harming the judges and  attorneys involved. Respondent genuinely, though unreasonably, believed  something was wrong with the proceedings in the Sykes case. Respondent knew Mary  and Gloria before the guardianship. While Respondent used decidedly misguided  means, we believe she was acting out of a sincere desire to help Mary. We were  also convinced Respondent truly believes there are abuses in the probate system  and the system needs to be changed, to protect persons who are the subject of  adult guardianship proceedings. From our perspective, it appears Respondent has  genuine concern for senior citizens and perceives the senior population as  vulnerable, especially to financial exploitation. This concern, as a general  matter, is a legitimate one, even though Respondent had no reasonable basis for  believing the judges or attorneys in Mary's case were corrupt.

We do not believe Respondent acted with a  self-serving motive. The evidence did not support a theory that Respondent was  reaping a significant financial benefit from her activities including operation  of the blog.

The proposed suspension will, if adopted, continue until reinstatement is ordered by the court.

As a blogger who frequently finds it necessary to criticize disciplinary processes in D.C. and elsewhere, I confess that I find this proposed sanction excessive given the absence of prior discipline and the conceded sincerity of the attorney's beliefs, even if unfounded.

Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.

In my view, that conduct should be, if not encouraged, at least allowed.

Once again, I applaud the District of Columbia Court of Appeals for declining to adopt Model Rule 8.2 (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Mixing Business And Personal Did Not Violate Rules (But With A Dissent)

The Maryland Court of Appeals has agreed with the trial judge that an attorney engaged in  no misconduct in his alleged solicitation and representation of a client.

The attorney first met the client in a courthouse where she was filling out papers for a protective order.

They became Facebook friends and subsequently entered into an attorney-client relationship. They then stopped being Facebook friends.

The court found that none of Bar Counsel's array of charges were proven.

As to the alleged solicitation of business

Although Respondent initiated a conversation with Ms. Coates, informed Ms. Coates that he was an attorney, handed her his business card, discussed her case, and the two exchanged telephone numbers, Petitioner has failed to show, clearly and convincingly, that Respondent’s motive in doing so was for pecuniary gain. Indeed, the hearing judge found that Respondent declined to represent Ms. Coates in October 2008, when the two first met. That Respondent sent Ms. Coates an email two months later in which he detailed a case strategy does not indicate clearly that he was attempting to solicit business from Ms. Coates when the two individuals met. Moreover, Respondent and Ms. Coates did not enter into a retainer agreement until fifteen months after meeting in-person. The hearing judge made no finding that the circumstances were overwhelming or unduly influential for Ms. Coates. Respondent’s conduct appears to have arisen from his desire to provide Ms. Coates with information, as opposed to a desire to represent her. Where an attorney refuses initially to represent the prospective client, does not insist that he be retained immediately, and the circumstances do not indicate that the prospective client felt undue pressure to seek representation, the facts do not support the conclusion that MLRPC 7.3(a) has been violated.

As to an allegedly improper romantic motive

To bolster the contention that Respondent sought to develop a romantic relationship with Ms. Coates, Petitioner relies on several alleged interactions between Respondent and Ms. Coates, specifically: (1) Facebook communications; (2) Respondent’s offers to have Ms. Coates use his rental property; (3) Respondent’s unexpected, late-night visit to Ms. Coates’s home; (4) Respondent’s request for a back massage; (5) Respondent’s comments about Ms. Coates’s attire; (6) Respondent’s offer to help Ms. Coates move out of her marital home; and (7) Respondent’s lying on Ms. Coates’s bed following the move–which Bar Counsel refers to as “the culmination of months of his subtle prodding to become closer to [Ms. Coates].” Petitioner avers that each of these instances are supported by evidence contained in the record below, however, many of the allegations upon which Bar Counsel relies were not established as true by the hearing judge. Moreover, many of the allegations Bar Counsel relied upon, both before this Court and before the hearing judge, were in dispute. With regard to the allegations not in dispute, Bar Counsel failed to demonstrate how those facts were indicative of Respondent’s attempt to develop an improper, romantic relationship with Ms. Coates.

In sum

...a lawyer has discretion to communicate with clients or prospective clients through social media. Likewise, assisting or offering to assist a client or prospective client in obtaining shelter or in moving from one residence to another is not per se violative of the Maryland Lawyers’ Rules of Professional Conduct. Whether or not the attorney violates the Rules of Professional Responsibility will depend upon the facts and circumstances of each case. When a lawyer, in the exercise of discretion, involves him or herself in conduct that is unnecessary to the attorney-client relationship or exceeds the bounds of the attorney-client relationship, however, he or she runs the risk that his or her exercise of professional judgment may be found to be both unreasonable and subject to the disciplinary process.

Judge Watts (joined by two colleagues) dissented and would find conduct prejudicial to the administration of justice

Specifically, evidence offered by Bar Counsel indicated that Merkle, among other things: (1) “commented on” Coates-Black’s attire while she was visiting him in his office, and later described Coates-Black’s attire as having a “plunging neckline” and being “quite revealing from the middle”; (2) sat on the same side of his desk as Coates-Black while she was visiting him in his office and asked her to rub his shoulders, prompting Coates-Black to decline and move to the opposite side of Merkle’s desk “to keep [him] away from” her; (3) attempted to visit Coates-Black at her apartment after 10:00 p.m.; and (4) offered, on multiple occasions, to let Coates-Black use an apartment in a building that he owned. Despite this evidence, and despite the serious allegations of improper conduct that Coates-Black raised at the hearing, the hearing judge inexplicably failed to make any findings of fact whatsoever concerning these matters. The allegations were well-detailed and described Merkle’s alleged improper and unseemly conduct toward Coates-Black, yet the hearing judge did not address or even mention them.

She further would find that the trial judge's conclusion that the client was not vulnerable was clearly erroneous.

The dissent also expressed concern about the attorney's characterization of himself as a "father figure" to the client. (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension And More Probation For Non-Compliance With Conditions Of Probation

A stayed two-year suspension with six months actual suspension and probation is the appropriate sanction for an attorney who had violated a previously-imposed probation, according to a recommendation of the California State Bar Review Department.

The original probation was as a result of threatening messages sent by the attorney after his removal as co-executor of his father's estate

 Thereafter, in 2004 and 2005, he left a total of 53 threatening and abusive voicemail messages for the successor administrator, the attorney for the administrator, and the ex officio judge of a North Carolina court.

The probation has not gone well and the attorney's explanations for his lapses did not persuade

Elkins has demonstrated that he fails to grasp the importance of strict compliance with probation conditions, despite reminders and warnings from Probation. Timely filing quarterly reports plays an important role in the rehabilitative process "because it requires the attorney, four times a year, to review and reflect upon his professional conduct . . . [and ] to review his conduct to ensure that he complies with all of the conditions of his disciplinary probation." (In the Matter of Wiener (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 759, 763.) Of equal importance is Elkins’s failure to timely attend and report completion of Ethics School. This information assures the State Bar that the attorney has reviewed and considered anew his professional responsibilities. Elkins’s failures constitute willful, repeated, and serious probation violations.

(Mike Frisch)

 

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ignorance No Defense

A disbarred attorney who persisted in notarizing documents after hid disbarment has been permanently disbarred by the Louisiana Supreme Court.

The court

The [Disciplinary B]oard also found respondent’s claim that he was unaware he could not act as a notary public following his disbarment was not credible. The board determined the hearing committee correctly applied the Rules of Professional Conduct. Additionally, the board noted that respondent violated La. R.S. 35:14 by continuing to act as a notary public following his disbarment.

The former attorney defaulted on the charges. (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fourth Time No Charm But No Suspension Either

A fourth brush with the disciplinary system drew a public censure from the New Jersey Supreme Court.

The attorney and his former client had a fee dispute that went to arbitration.

The attorney had not kept records of his time as reported by the Disciplinary Review Board

At the ethics hearing, respondent admitted that the invoices that he had compiled for the fee arbitration proceeding did not reflect contemporaneous time records and that he had no such records. He told the panel that he had re-created the time spent on the case by reviewing the file, as well as some documents and information on a laptop computer and on an "electronic calendar." He explained that he had no "supporting documents" or "records from the computer" because of a September 2011 computer crash. He added that, for certain periods between September 2006 through January 2009, he had been unable to recreate the time spent on the file, either because he had found nothing on the file to back it up or because, as a sole practitioner, he had had no time "to look hard enough."

The DRB

this is not the first time that he has run afoul of the recordkeeping rules. His 2007 reprimand stemmed from recordkeeping violations and were responsible for his negligent misappropriation of client’s funds. Having been disciplined for deficient accounting practices, respondent should have been especially attentive to the proper maintenance of his attorney records.

The attorney also failed to supervise non-lawyer assistants and pursued frivolous claims in seeking to challenge the arbitration award. (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

Law School Application Non-Disclosures Lead To Bar Admission Denial

The Ohio Supreme Court has denied an application to sit for the July 2014 bar examination but will permit the applicant to reapply at a later date.

The problem involved the applicant's law school admission non-disclosure of alcohol-related incidents in the applicant's application to DePaul Law and his original and transfer applications to the Ohio State University, Moritz College of Law.

The court noted that the Board of Commisioners on Character and Fitness was "troubled by his ongoing efforts to hedge his responsibility and minimize the importance of candor" in bar admissions.

The applicant was remorseful and had stated that his "drinking days were over." (Mike Frisch)

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

Thursday, November 20, 2014

Unconditionally Rejected

The Florida Supreme Court has denied admission to an applicant who received his law degree in April 2005 and passed the bar exam in February 2006.

The court rejected the recommendation of the Board of Bar Examiners to admit the applicant on a conditional basis.

The applicant reported that he had defrauded his former employer, Florida State University, to the tune of $54,046.

He served a jail sentence and had his civil rights restored shortly before graduation from law school.

He also filed for bankruptcy and discharged over $40,000 in debt.

The bar investigation revealed that he had failed to disclose to an employer, Axia College of the University of Phoenix, that he was a convicted felon.

The court here found that he was not rehabilitated

J.R.B. has demonstrated a lifetime of dealing in falsehoods. He lacks the ability to be truthful and his conduct over the years demonstrates that he has no respect for the law. J.R.B. engaged in embezzlement, stealing funds from his employer on numerous occasions. Further, the funds he stole included funds for a university debate team, so his misdeeds could have directly impacted students who were working to achieve important goals in their lives. J.R.B. was adjudicated guilty on five felony counts of Grand Theft and he pled no contest to forty-fivecounts of misdemeanor Petit Theft. This is a significant criminal history, which is based on untruthful conduct. In addition, J.R.B. had to resign from his position with the university in disgrace; people who have left one profession in disgrace cannot find a haven by seeking to become a member of The Florida Bar.

The bad news

... the underlying facts of the instant case impact so adversely on the character and fitness of J.R.B. that the misconduct mandates that he not be admitted to The Florida Bar now or at any time in the future.

(Mike Frisch)

 

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

When A Lawyer Defaults On Bar Charges

The Maryland Court of Appeals has disbarred an attorney for misconduct described in the headnote to the case

The Court of Appeals disbarred attorney who gave incorrect advice to a client in an immigration matter, told the client that he did not need to appear at an immigration hearing and then did not appear himself (with the result the client was ordered in absentia removed from the United States), accepted payment from the client, and then stopped responding to all inquiries from the client as to the status of the case. Respondent also did not respond to lawful inquiries from Bar Counsel for information concerning the complaint.

The case is particularly interesting in its discussion of the fact finding below.

The attorney had defaulted but the hearing judge was nonetheless unimpressed  by the evidence and the "casualness" of Bar Counsel's presentation.

Bar counsel, on appeal, contended that the trial judge had impeoperly made credibility findings that were contradicted by the default.

The court noted that the default was "neglected, but not ignored" and went on to find that the violations charged by Bar Counsel had been established by the default.

Judge McDonald concurred

This is one of those cases where no good deed goes unpunished. Bar Counsel attempts to put a face on a cold record of default and the defaulter prevails. The hearing judge conscientiously sifts the evidence provided, making the credibility determinations on which we normally rely, and that effort is found unnecessary. I concur in the Court’s disposition and write simply to make a suggestion.

The Majority opinion provides, in footnotes 17 and 26, some helpful advice to Bar Counsel and hearing judges on how to deal with situations, not uncommon, in which an attorney accused of misconduct fails to respond to the charges. Perhaps it is worth incorporating some of that good advice in our rules or in the standard referral order to hearing judges to make it more readily accessible than a Westlaw search

Footnote 26 suggests that the presentation of evidence may be problematic in a default situation and concludes

Although Bar Counsel may be correct that the evidentiary hearing may be important sometimes in putting a “face” on a complaint, as well as developing the effect of attorney misconduct on clients, such hearings may do more harm than good ultimately, as appears to have been the case here, by attempting to apply too many additional layers of gloss to already-established facts, so as to obscure and bring into doubt the clarity of the thorough and well-pleaded facts from a PDRA [charging document].

As we have noted in the past, one of the most significant peoblems  in the D.C. disciplinary system is its hostility to any concept of default.

Literally, an accused attorney can entirely fail to participate and reasonably hope that the BPR will find him his defense, excuse and/or justification for the misconduct. (Mike Frisch)

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

Wednesday, November 19, 2014

Lawyers, Guns And Suspension

An attorney who had provided a firearm to a convicted felon has been suspended for six months by the Maryland Court of Appeals.

The court had previously remanded the matter

On January 24, 2014, in Reno I...we held that Sandra Lynn Reno (“Reno”), Respondent, a member of the Bar of Maryland, violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice) and 8.4(a) (Violating the MLRPC) by circumventing the law and giving a handgun to a former client who, as Reno should have known, could not legally possess a regulated firearm, despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved the former client’s application to buy the same kind of handgun. Instead of determining an appropriate sanction on our own initiative, we g[a]ve Reno and the [Attorney Grievance] Commission [(“the Commission”), Petitioner,] the opportunity to recommend a sanction[.]” Reno I, 436 Md. at 512, 83 A.3d at 786.

As to sanction

Reprimanding Reno would not suffice to protect the public and deter other lawyers from similar misconduct. Reno potentially endangered the public by giving a deadly weapon to a convicted felon. Although the hearing judge found that Reno did not know that Stevens could not legally possess a regulated firearm, the hearing judge found that Reno should have known. Despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved Stevens’s application to buy a handgun, Reno circumvented the law by intentionally giving the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. We cannot take lightly a lawyer’s failure to obey the law that the lawyer swore to uphold. Nor can we ignore the potential for danger that Reno caused.

(Mike Frisch)

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

Wrong Path

The former prosecuting attorney for Washakie County has been suspended for 30 days by the Wyoming Supreme Court.

The ethics issues arose as a result of an earlier stipulated private reprimand for a violation of Rule 3.8(b)

The Board of Professional Responsibility issued a private reprimand to a prosecuting attorney who met with several minors and their parents following an incident in which law enforcement persoimel discovered the minors after hours on school property, mixing toilet bowl cleaner with balls of aluminum foil in plastic bottles, which led to a chemical reaction that caused the bottles to burst or explode, making a loud noise. The prosecutor told the minors and their parents that they could be charged with felonies or misdemeanors and perhaps federal charges and may be subject to incarceration. The minors cooperated fully with the prosecutor and freely admitted their involvement. School district officials were contacted but declined to pursue school district discipline actions...

The prosecutor agreed to pay an administrative fee of $500 and costs of $50 to the Wyoming State Bar, and to obtain an additional three hours of CLE in ethics.

The problem here was the $550 fee and costs.

She sought to have the county pay the assessment without disclosing that it involved a penalty against her. She failed to communicate with her client (the county), engaged in a conflict of interest and dishonesty.

Here, the attorney was remorseful and acknowledged the misconduct.

She must pay the $550 and attend a bar seminar called Pathways to Professional Conduct. (Mike Frisch)

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

Suspension For Assisting Unauthorized Practice

An attorney who allowed a suspended attorney to practice law has been suspended for one year by the Delaware Supreme Court.

The web of the matter is a somewhat tangled one.

The attorney suspended here was on disciplinary probation as a result of problems with tax obligations.

He also had served as practice monitor for the suspended attorney who engaged in the unauthorized practice.

After the two-year suspension of the attorney

Martin testified that, although he knew Feuerhake was suspended, he never read the Court’s suspension order. The record reflects that Feuerhake researched and drafted briefs in several of Martin’s employment cases. For those cases, Feuerhake would submit an invoice, and Martin would pay him an hourly rate as a paralegal. Feuerhake also continued to work as a paralegal on the Burns and the Barkes litigation, which he and Martin had been co-counsel on prior to his suspension. For those two matters, Feuerhake did not receive compensation on an hourly basis. According to an email Feuerhake sent to Martin in September 2011, the two men were continuing, with respect to those two cases, to operate in accordance with the fee agreement they had reached when Feuerhake was licensed to practice law, namely that Martin would receive 60% of the fee and Feuerhake would receive 40%. For the Burns litigation, the email reflected that David Facciolo would receive 20% of the fee because he had referred the Burns matter to Feuerhake. Therefore, Martin’s and Feuerhake’s percentages were to be reduced to 48% and 32%, respectively.

Feuerhake met with clients and participated in proceedings.

The court

In this case, there is substantial evidence in the record to support a finding of Martin’s knowing misconduct. First and foremost, Martin knew that Feuerhake was suspended, yet he willingly allowed Feuerhake to move into his office space and continue to work on cases for him as a paralegal without reading the Court’s suspension order and determining the restrictions on Feuerhake’s ability to work for Martin as a paralegal. A lawyer with Martin’s experience, especially one with Martin’s own recent disciplinary history, would have known that the Court’s suspension order was publicly available and should have consulted it, which is precisely what Martin did when he was asked to hire another suspended lawyer, Ron Poliquin, to work for him as a paralegal.

The court rejected the Office of Disciplinary Counsel's call for disbarment, concluding that the misconduct was insufficiently grievous to warrant that sanction. (Mike Frisch)

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

Air Of Contempt

The Oklahoma Supreme Court has suspended an attorney for two years and a day for convictions in a series of criminal matters.

He pled guilty to a felony and multiple misdemeanors.

One offense drew particular concern from the court

Hart's guilty pleas to multiple charges of violating a victim's  protective order reflects a willful indifference for judicial orders, and  therefore, a disregard for the rule of law. The remaining charges, although not  directly related to following a court order or Hart's professional practice,  nevertheless reflect an air of contempt for the rule of law.

(Mike Frisch)

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

Porn Addicted Attorney Indefinitely Suspended In Ohio

An attorney convicted of felony possession of child pornography has been indefinitely suspended by the Ohio Supreme Court without credit for time served since his 2007 interim suspension.

The court described the facts

Over the course of his legal career, Ballato was fired on three separate occasions for using office computers to view internet pornography. He voluntarily enrolled in a six-week residential treatment program for sexual addiction in 2002—although he did not believe that he had a problem at that time—in an effort to save his first marriage. After the marriage ended the following year, he struggled to cope with the divorce and his former wife’s efforts to curtail his visitation with their young son.

Although Ballato participated in some group counseling, he continued to view pornography and remained in denial of his addiction. In 2004, he responded to an online advertisement for “amateur pornography for sale,” and in the course of an e-mail exchange, the seller revealed that the offer was for child pornography. Ballato placed an order and mailed a partial payment for the magazines. Although he testified that he later decided not to complete the transaction, he did not cancel the order. On October 4, 2004, the magazines were delivered by an undercover postal inspector to Ballato’s home while he was at work. Shortly thereafter, federal officers arrived and conducted searches at both his home and office.

The officers found an abundance of adult pornography and three images of child pornography on Ballato’s office computer. At the panel hearing, Ballato testified that he had requested and received the images of child pornography online by instant message. He deleted them shortly after receiving them and reports that he did not use the images for sexual gratification. He reported that his sexual preference is adult women. Although he acknowledged that he developed a curiosity about teenage girls in pornography, he denied having any sexual interest in prepubescent children.

The attorney served 43 months for the ensuing conviction.

He is involved in a twelve step recovery pregram called Sex and Love Addicts Anonymous.

One dissenting justice would grant credit for time served; two would disbar. (Mike Frisch)

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

Tuesday, November 18, 2014

Zealousness Run Amok

A three-year suspension has been imposed by the Rhode Island Supreme Court for an attorney's serious misconduct in four family law matters.

The attorney was admitted in 1987, had no prior discipline and admitted the violations.

Among the violations was his obtaining an ex parte order to permit a client to remove items from a family home on the false representation that the opposing party agreed to the relief.

The court

We do find many aggravating factors. The respondent committed multiple acts of misconduct in four separate cases. There is a persistent pattern of deceiving judges before whom the respondent appeared, doing so without the knowledge of or notice to opposing parties and their attorneys, and obtaining orders to benefit his clients which they were not entitled to receive. The respondent did not just prejudice the administration of justice, he sabotaged it. By all accounts the respondent is an experienced member of the bar and a zealous advocate for his clients. However, in this matter we find that his substantial experience is an aggravating rather than a mitigating factor. The respondent is well-aware of the proper procedures to follow to represent the interests of his clients without violating the rules. He chose a course of action to win at all costs, and he repeatedly disregarded the procedural and ethical rules designed to provide fair hearings in our courts.

The court noted that the attorney offered no explanation for his ethical violations. (Mike Frisch)

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

Monday, November 17, 2014

Damage, Destruction, Division = Permanent Disbarment

A Louisiana Hearing Committee has recommended that former Congressman William J. Jefferson suffer permanent disbarment as a result of his criminal conviction.

He is presently serving a prison sentence for his crimes.

On the merits

The Committee does not dignify Respondent's contention that his conduct was undertaken in good faith with a response. The Jury Verdict is an adequate response of its own.

The committee on sanction

Respondent's long history as a member of the bar, his obvious intelligence, success as a practicing attorney, his election and re-election by his constituents twelve times, and his distinction as both an attorney and public servant was an unparralled success story for an African-American, all as noted by Respondent in mitigation point 7. His failure to adhere to his own personal accomplishments, maintain his reputation, the damage occasioned upon his constituents, as well as our profession, has resulted in immeasurable damage, destruction, and division among us all.

(Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

ADHD Mitigates Sanction

The Pennsylvania Supreme Court has imposed a two-year suspension nunc pro tunc to February 2013 and probation for two years on reinstatement of an attorney with a prior disciplinary record.

The Disciplinary Board found the prior and present misconduct was caused by Attention Deficit Hyperactivity Disorder

Without question the most disturbing aggravating factor in this case is Respondent's prior record of misconduct. Respondent received two informal admonitions in 1988, a private reprimand and probation for one year with a practice monitor in 2005 and most seriously, a Public Censure in 2009. All of Respondent's prior discipline resulted from acts of misconduct similar to those that are the subject of the instant case, including failure to file briefs, failure to communicate with clients and failure to diligently pursue client matters.

Unfortunately, the underlying psychiatric disorders that caused Respondent's urrent misconduct were first diagnosed long after his prior misconduct. In retrospect it s obvious that the disorganization and lack offocus that resulted in Respondent's prior cts of misconduct were caused by his then undetected ADHD and depression. In fact, Respondent testified that on prior occasions he was counseled to work harder and be more responsible. Of course, without proper medical treatment for his underlying psychiatric disorders, Respondent was basically incapable of changing his behavior. Even so, we cannot overlook Respondent's prior record, especially his censure by the Supreme Court, and consider it a substantial aggravating factor.

The board noted that an "army" of favorable witnesses tesrtified on the attorney's behalf. He must meet several conditions including treatment. (Mike Frisch)

November 17, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)