Monday, October 10, 2016
The Indiana Supreme Court has imposed a one-year suspension with all but 90 days stayed
On September 8, 2014, Respondent, who practices in Jackson County, drove while intoxicated to the Shelby County Courthouse for a scheduled small claims hearing. Upon arriving at Superior Court 2, Respondent made repeated physical sexual advances on the court’s receptionist. The judge and a security officer were summoned, a breath test was administered to Respondent, and the results indicated an alcohol concentration equivalent (“ACE”) of 0.15. The judge immediately convened a contempt hearing, during which Respondent had to lean on the rail in front of the bench to steady himself. Respondent was found in direct contempt and ordered jailed until his ACE returned to zero. As a result of these events, the small claims hearing for which Respondent had appeared had to be continued for another date and all other hearings scheduled in the court that day were delayed at least an hour. Respondent was charged with several crimes in connection with this incident and eventually pled guilty to operating while intoxicated (“OWI”) as a class A misdemeanor.
The attorney will be on probation for "at least" two years after serving the active suspension.
The Shelbyville News reported on the situation.
A report from the Shelby County Sheriff's Department stated that [Judge] Riggins found Robertson in contempt of court and Riggins requested Robertson be tested for alcohol. The report stated Robertson also acted inappropriately with a staff member by touching her inappropriately three times.
Robertson tested a .154 blood alcohol content on a breath test and failed several field sobriety tests.
"Robertson advised that (he) had been drinking on Monday, Sept. 8, 2014. Robertson stated that he had started drinking vodka at approximately 9 a.m. and drank about a pint of it. Robertson said he stopped drinking at approximately 11 a.m. Robertson said that sometime between 11:30 and 12 p.m., he left to come to Shelbyville for a court hearing," the report states.
The Massachusetts Supreme Judicial Court has disbarred an attorney convicted of criminal offenses and disbarred in New Hampshire.
From the summary on the web page of the Board of Bar Overseers
On May 23, 2013, Lisa A. Biron, who was admitted to the bar of the Commonwealth on December 8, 2008, was found guilty by a jury in the United States District Court for the District of New Hampshire on one count of transportation with intent to engage in criminal sexual activity (18 U.S.C. §§2423(a), and 2427), six counts of sexual exploitation of children (18 U.S.C. §§2251(a) and 2256) and one count of possession of child pornography (18 U.S.C. §§2252A(a)(5)(B)). The conviction resulted from the respondent’s conduct in bringing a minor to Canada to engage in sexual activity for the production of child pornography and six instances of causing sexually explicit conduct by a minor for the purpose of producing a video depiction of the conduct. The respondent was sentenced to forty years of imprisonment, to be followed by supervised release for life.
On October 17, 2013, the respondent was temporarily suspended from the Massachusetts bar as a result of the New Hampshire conviction. She timely filed an affidavit of compliance. Further proceedings were stayed pending the conclusion of the respondent’s appeal of her conviction. In November of 2014, the respondent’s conviction was affirmed by the First Circuit, and in March of 2015, the respondent’s petition for certiorari was denied by the United States Supreme Court.
On May 28, 2015, the New Hampshire Supreme Court entered an order disbarring the respondent as a result of the conviction. On December 22, 2015, bar counsel filed a petition for reciprocal discipline with the Supreme Judicial Court for Suffolk County based upon the respondent’s disbarment in New Hampshire. After a telephone hearing, the Court (Botsford, J.) on June 10, 2016, entered a judgment of disbarment, retroactive to the date of the respondent’s temporary suspension, with the condition that the respondent’s reinstatement to the Massachusetts bar shall be conditioned upon her reinstatement in New Hampshire.
Salon reported on the criminal case
A New Hampshire lawyer who works with a virulently anti-gay Christian-right organization has been found guilty of child pornography charges after videotaping her own daughter having sex with two men on multiple occasions.
An attorney's third brush with bar discipline merits an 18-month suspension, according to a recent recommendation by the California State Bar Court Review Department.
The problems started in a personal bankruptcy
In December 2003, Hansen made misrepresentations to the United States Bankruptcy Court in a Chapter 7 bankruptcy petition that she and her husband jointly filed concerning the number and amount of encumbrances on her residence. In February 2004, Hansen also altered and then recorded a deed of trust so that it misstated the amount of the loan it secured. Inexplicably, OCTC did not file an NDC in Hansen I until October 28, 2010. On July 27, 2011, the Supreme Court ordered, inter alia, that Hansen be actually suspended for 30 days and placed on probation for two years as the result of a stipulation to one count of misconduct for gross negligence in committing acts of moral turpitude. No aggravating circumstances were involved. In mitigation, Hansen had no prior record of discipline, cooperated with the State Bar, and provided one good character letter and one letter describing her membership in a non-profit organization.
The probation did not go well
Between approximately September 2011 and May 2012, Hansen failed to comply with several probation conditions from Hansen I, including failing to participate in a scheduled telephonic Office of Probation meeting, provide proof of completion of six hours of MCLE-approved courses, and timely submit a quarterly report. In aggravation, Hansen had one prior record of discipline, engaged in multiple acts of misconduct, and failed to participate in the probation revocation proceeding. No mitigating factors were established. On September 25, 2012, the Supreme Court ordered Hansen’s probation revoked, and further ordered that she be actually suspended for one year and placed on probation for two years, subject to conditions.
Here the attorney made misleading statements to the Workers' Compensation Appeals Board
The WCAB imposed sanctions against Hansen and three other attorneys from her law firm after concluding that they had intentionally misled the Board, causing it to take unwarranted action...
We acknowledge that the 18-month actual suspension recommended by the hearing judge is at the severe end of the disciplinary continuum as developed in the decisional law, and it constitutes significant discipline. But we adopt her recommendation based on the totality of Hansen’s misconduct, which would justify an 18-month suspension had all of the misconduct been brought as one case. (In the Matter of Sklar, supra, 2 Cal. State Bar Ct. Rptr. at p. 619.) Indeed, Hansen’s misconduct in her three cases spans more than eight years and involves repeated probation violations and two instances of moral turpitude for making misrepresentations to separate judicial tribunals. Notably, Hansen made the misrepresentations to better her own personal position. And in the instant case, the deceptions to the WCAB occurred over many months, even after the Board warned Hansen that she was wading into deep ethical waters and facing possible sanctions. Yet she pressed on, essentially doubling down on her efforts to justify her conduct. Her presentation of half-truths and concealment of material facts significantly and adversely impacted the administration of justice. Furthermore, all of the misconduct was directly related to her practice of law before the WCAB.
Friday, October 7, 2016
Helping a friend with a couple of phone calls and letters was sanctionable as unauthorized practice of law for an attorney whose New Jersey license had been administratively suspended.
Respondent was admitted to the New Jersey and New York bars in 1991. She is currently engaged in the practice of law, as inhouse counsel to KPMG, in New York City. She has no disciplinary history in New Jersey.
In 1991, respondent was admitted to the New York and New Jersey bars and began her legal career as an associate at Cahill Gordon & Reindel LLP (Cahill), in New York City. In 1993 or 1994, respondent left Cahill for an in-house counsel position at Scholastic, Inc., also in New York City (Scholastic). In 1997, respondent left Scholastic for her current position, in-house counsel to KPMG, again, in New York City. Respondent does not maintain a private practice.
While employed by Cahill, respondent was unaware of the required annual assessment to the New Jersey Lawyers’ Fund for Client Protection (CPF). In 1993, respondent became ineligible to practice law for failure to pay the annual assessment to the CPF. Respondent claimed that, upon leaving Cahill for Scholastic, she received no information from either Cahill or the CPF regarding her annual assessment obligations. Respondent also asserted that, during her employment with Scholastic and KPMG, she received neither correspondence from the CPF nor information from her employers’ human resources departments about the annual assessment. She explained that, as a result, she remained unaware of her CPF obligation.
She was administratively suspended in 2005.
More than eight years later, on October 28, 2013, on behalf of her friend, who owned Esperanza Salon (Esperanza) in Summit, New Jersey, respondent drafted and sent a letter to Tara Galatt, the owner of a competitor salon "down the street" from Esperanza. The letter demanded that Galatt cease and desist from employing Stephanie Wright, a former employee of Esperanza, who, prior to her termination, had executed an employment contract that contained a one-year non-compete clause with an eight-mile radius. The letter stated that Galatt’s failure to end Wright’s employment "shall result in Esperanza Salon seeking a restraining order against Ms. Wright and your organization for breach of contract and seeking monetary damages."
Galatt's counsel discovered the problem
Upon learning that her license had been revoked, respondent contacted the owner of Esperanza and informed her that she could no longer assist her with her legal troubles. Respondent admitted that she had drafted and sent the two letters and had the two telephone conversations with Matthews, all on behalf of Esperanza. She filed no pleadings, made no court appearances, and charged no fee for her services.
In this case, the DEC found credible respondent’s testimony that she had no knowledge of the revocation of her license. Upon a review of the record, and in light of the panel’s opportunity to observe and question respondent during the hearing, we accept the DEC’s credibility determination on this issue. As set forth above, the DEC found multiple mitigating factors and determined that, under the reasoning of Torellas, a censure was the proper sanction to impose.
Although we accept the DEC’s credibility assessment, as well as its findings in mitigation, we are troubled that respondent made no effort, for over fourteen years, to ensure her compliance with CPF obligations, and no effort, for over twenty years, to verify her status as a New Jersey attorney. Nevertheless, respondent’s misconduct was limited to two letters and two telephone calls, and was motivated by her desire to help a friend. Moreover, respondent genuinely believed she was still a member of the New Jersey bar, as evidenced by her efforts to satisfy her CLE obligations. When respondent learned that her New Jersey law license had been administratively revoked, she immediately ceased her improper representation of Esperanz.
The court barred the attorney from future pro hac vice admission until further court order. (Mike Frisch)
Ohio Reinstates Attorney Convicted Of Tax Offenses: Failures To Report Involved (Inter Alia) "House Fees" For Exotic Dancers Working In His Strip Club
In the complaint, relator alleged that after a two-week criminal trial in the United States District Court for the Eastern District of Kentucky, a jury found that Lawrence had knowingly underreported income from various businesses that he owned in whole or in part for the 2004, 2005, and 2006 tax years. Some of the unreported income came from businesses that were tangentially related to his practice of law—including rental income that he received from other attorneys. Lawrence was convicted in July 2012 of three counts of filing false tax returns in violation of 26 U.S.C. 7206(1) and sentenced to 27 months of incarceration on each count to be served concurrently, followed by a one-year term of supervised release. Lawrence was also ordered to pay a special assessment of $300 and restitution of $128,253.26 plus interest, which he paid in full by December 17, 2012. Upon notification of his felony conviction, we suspended his license on an interim basis effective November 29, 2012. In re Lawrence, 133 Ohio St.3d 1496, 2012-Ohio- 5492, 978 N.E.2d 914.
Lawrence’s conviction and sentence were affirmed by the Sixth Circuit Court of Appeals, United States v. Lawrence, 557 Fed.Appx. 520 (6th Cir.2014), and the Supreme Court of the United States denied his petition for a writ of certiorari, Lawrence v. United States, ___ U.S. ___, 135 S.Ct. 223, 190 L.Ed.2d 133 (2014).
The court granted credit for time served on the interim suspension imposed after the conviction.
The parties stipulate that the mitigating factors include the absence of a prior disciplinary record, Lawrence’s timely, good-faith effort to make restitution or rectify the consequences of his misconduct, his cooperative attitude toward the proceedings, evidence of his good character and reputation apart from the charged misconduct, the imposition of other penalties, and the absence of harm to his clients. See Gov.Bar R. V(13)(C)(1), (3), (4), (5), and (6). The parties agree that just one aggravating factor is present—that Lawrence engaged in a pattern of misconduct...
We agree that Lawrence violated DR 1-102(A)(3) and (4) and that his misconduct warrants a two-year suspension. In light of the significant mitigating factors present, we also agree that Lawrence should receive credit for the time served under his interim felony suspension. Therefore, we adopt the parties’ consent-to-discipline agreement.
Defendant Meredith Lawrence was a personal injury lawyer who owned Racers, a strip club, held a number of residential and commercial office properties, which he leased, and lived on over 3,000 acres of land, which he farmed. He earned income from these businesses and operated them with the assistance of several employees, including bookkeepers. In 2003, Lawrence hired CPA Robert Ryan to prepare tax returns for all of the entities in which Lawrence was involved. Ryan also prepared and electronically filed Lawrence's personal tax returns for 2004, 2005, and 2006. Ryan included Lawrence's unique PIN (Personal Identification Number) on each return...
During a two-week jury trial, the government introduced proof that Lawrence failed to report income from five different sources: (1) "house fees" from the exotic dancers who worked at Racers; (2) withdrawals from his client trust accounts; (3) rental income from attorneys who leased office space from him; (4) reimbursements from those same attorneys for office expenses; and (5) rental income from residential tenants.
This is the second case in two days from Ohio that involve a lawyer and exotic dancers. (Mike Frisch)
A recent notice on the web page of the Virginia State Bar
September 30, 2016
Supreme Court of Virginia Approves Rule Changes and Legal Ethics Opinion 1884
The Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal, as well as Legal Ethics Opinion 1884.
Effective December 1, 2016, the Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal.
The amendments clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, and when the lawyer can withdraw from the representation before the client’s intended perjury occurs. The order may be found here.
Effective immediately, the Supreme Court of Virginia has approved Legal Ethics Opinion 1884: Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm.
The opinion addresses a situation where a lawyer who is a member of the Virginia General Assembly joins a consulting firm. The lawyer asks whether the lawyers and non-lawyers in the consulting firm would be barred from lobbying the General Assembly and whether that bar would extend to members of the law firm as well. In this opinion, the Committee concluded that both lawyers and non-lawyers in the consulting firm, as well as the lawyers in the law firm that own the consulting firm, would be barred from representing clients or otherwise lobbying before the General Assembly. The order may be found here.
The Indiana Lawyer has a story about disciplinary charges brought against an elected prosecutor
Johnson County judges, lawyers and the mother of a murdered teen traveled to a distant court Wednesday to come to the defense of their elected prosecutor.
A parade of character witnesses supported Bradley Cooper, who faces possible professional sanctions for press comments he made after a South Bend judge reduced a killer’s death sentence to life in prison without parole.
Cooper’s “reputation for truthfulness is unquestioned. It is stellar,” testified Johnson Superior Judge Lance D. Hamner. The former elected prosecutor, Hamner hired Johnson and said he was an exemplary deputy who often worked late into the evening on cases, rising quickly up the ranks. “I told him on several occasions he didn’t need to impress me; I was already impressed,” the judge said.
Witness after witness, including several criminal defense attorneys who try cases against Cooper, testified in glowing terms to his truthfulness and ethics during a half-day hearing 90 minutes from the courthouse in Franklin. Cooper’s discipline case was heard in the courtroom of hearing officer and Wayne Superior Judge Charles K. Todd in Richmond.
The Indiana Supreme Court Disciplinary Commission brought a formal complaint against Cooper for comments attributed to him in articles published by the Indianapolis Star and the Associated Press. Cooper affirmed the statement he made to The Star but said he didn’t recall a similar comment carried by AP. Both comments were in reaction to post-conviction relief granted to Michael Overstreet, who then-St. Joseph Superior Judge Jane Woodward Miller found in November 2014 was mentally incompetent to stand trial. Overstreet’s PCR case had been assigned to Miller after Johnson Superior Judge Cynthia Emkes recused herself for health reasons.
Cooper was deputy prosecutor but led the prosecution when Overstreet was convicted in 2000 of the rape and murder of 18-year-old Franklin College student Kelly Eckart. Her body was discovered in a ravine near Camp Atterbury in Brown County three years earlier.
After Miller found Overstreet incompetent to be executed, Cooper said a Star reporter who had followed the case over the years asked him for a statement. Cooper sent a text that read:
“I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn’t even afford to drive up for the hearing. The idea that this convicted murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal.”
The commission argues the statements violate Rule of Professional Conduct 8.2(a), which states in part, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.”
Cooper testified that after Miller filed a grievance against him with the commission, he sent her a sincere letter of apology. “It’s been something that I believe is proper and prudent,” Cooper said. “When you offend a judicial officer, you apologize for it. … It was not my intent to offend her.”
Over the years, Cooper stayed in contact with the victim’s mother, Connnie Sutton, who had vowed to attend every hearing concerning Overstreet until the jury’s punishment was carried out.
Commission staff attorney David E. Griffith Jr. called just one witness — Cooper — who he questioned for more than an hour about the statements, whether Cooper had read U.S. Supreme Court opinions forbidding the execution of murderers who are mentally retarded, and about his familiarity with Indiana Supreme Court decisions regarding Overstreet’s PCR petitions.
“I do believe I glanced at that order when it came in,” Cooper said of the state Supreme Court decision that permitted Overstreet to proceed with the PCR petition that Miller ultimately granted. Cooper said his professional involvement as prosecutor ended after Overstreet was convicted and sentenced.
Griffith pressed Cooper on the oath he took and whether he was required to keep up with court rulings and know the laws of the state, to which Cooper replied, “No.” He said he was unfamiliar with much of the Indiana Code that didn’t pertain to criminal law, for instance.
“Are you saying you’re just a figure-head?” Griffith asked. Cooper replied he wasn’t; that his oath required him to uphold the law, not to read them all.
Griffith later concluded his cross-examination of Cooper by asking if he knew the definition of “ridicule.” He asked Cooper whether a lawyer, and a prosecutor in particular, can publically ridicule a judge. Cooper said as long as there isn’t a knowingly false statement, “I do not see a prohibition of that.”
Cooper’s defense attorneys, Jennifer Lukemeyer and Jim Voyles, sought to portray his comment to The Star as factual. Voyles dissected the comment and Cooper said he was indeed angry that the proceeding had been moved to a court more than 180 miles from the victim’s mother’s home. He felt this deprived Sutton and the community the right to attend and follow the proceedings.
“That case absolutely moved a community,” Cooper said.
Sutton said she kept in contact with Cooper over the years and considered him a friend. She testified that after her divorce, she told him she was unable to afford to pay for travel, lodging and food to attend Overstreet’s PCR proceedings when they were moved to South Bend. She said Cooper got county funds allocated that allowed her to attend.
“He was always honest,” even when news wasn’t good, Sutton said. “He never held anything back.” Despite what she called Cooper’s tough exterior, Sutton said, “I saw that he had a heart, and a big one.”
Voyles also focused on difficulties in Cooper’s personal life that preceded his comment to The Star — his mother and a sister had died and he went through a divorce in the years prior. Those who testified said these things clearly took a personal toll on Cooper, as has the discipline case.
Johnson Circuit Judge K. Mark Loyd said Cooper may come across as hardened but “his personal side is significantly different.” He said Cooper feels badly that the discipline case has put the community through the Overstreet case again.
“Brad is extremely truthful, sometimes to a fault,” testified Franklin defense attorney Russell Johnson. “I am of the belief that Brad did not attack a judge.
“It’s been difficult for Brad,” Johnson said, because he feels the case has shone a bad light on the community and on prosecutors.
Stacy Uliana shared a personal story about Cooper’s intervention to slow down police who were rushing to charge her stepson with a crime he didn’t commit. She said Cooper followed through, even attending his expungement proceeding. “He stood up for my son,” she said, which “gave me more confidence in prosecutors than I generally have.”
“I’ve seen him dress down police officers for lying,” testified criminal defense attorney Andrew Baldwin. “He will just do what is right and the politics behind it be damned.”
John P. Wilson, a 42-year attorney in Johnson County, said the community has a reputation for “straight-up lawyers … and Mr. Cooper is no exception. … One thing Brad will do is give you an opinion.”
Wilson said he’s tried more cases against Cooper than anyone, and he called his ethics impeccable. He recalled one case in which Cooper pointed out mitigating circumstances for a defendant that Wilson said he had missed.
“He does the right thing,” Wilson said. “He does justice.”
Hearing officer Todd ordered a transcript of the hearing prepared within 30 days, after which attorneys on both sides will have 30 days to present proposed findings of facts. Todd then will draft a hearing officer’s report for the Supreme Court, which will decide what sanction, if any, should be imposed on Cooper.
A Louisiana Hearing Committee recommends that a previously-disbarred attorney be permanently disbarred for continuing to practice in a domestic relations hearing officer conference.
The attorney had responded to the initial complaint but did not answer to the bar charges. (Mike Frisch)
Thursday, October 6, 2016
The Florida Supreme Court has disbarred three attorneys who sold out clients for lucre
The referee found, and we agree, that the PIP lawyers’ secret settlement with Progressive, memorialized in the MOU and the AMOU, was a conflict of interest and an improper aggregate settlement, in violation of Bar Rules 4-1.7(b), 4-1.7(c), and 4-1.8(g). Under the terms of the MOU and AMOU, Progressive paid a lump sum to each of the PIP law firms. The settlement was an aggregate settlement, in that it encompassed both the PIP claims and the bad faith claims, as well as attorney fees and costs. The clients, both those named as plaintiffs in the Goldcoast case and those not named in the case, were required to release their PIP benefit claims and their pending or potential bad faith claims. Progressive offered the PIP law firms collectively $14.5 million. Under the AMOU, $1.75 million of this amount was designated to settle the Goldcoast case, $5.25 million would be paid to Kane & Kane, $4.38 million went to Marks & Fleischer, and a little more than $3 million would be paid to Watson & Lentner. Beyond these distributions, the MOU and AMOU offered no other guidance or restrictions as to how the money would be allocated. Thus, it was left entirely to the PIP lawyers to determine how much each client would receive and how much would be taken as attorney fees. This arrangement created significant conflicts between the PIP lawyers’ interests and those of their clients, and between the PIP lawyers and the bad faith attorneys. The PIP lawyers decided that their clients who were not named in the Goldcoast case, a majority of the clients against Progressive, would be reimbursed for their unpaid medical bills plus interest but would not receive any money for their bad faith claims, even though they were required to release those claims. As a result, the PIP law firms were able to take a substantial amount in attorney fees—Kane & Kane took $4,144,055 in fees and Watson & Lentner took $2,522,792. Only their greed—nothing in the MOU or AMOU—prevented the PIP lawyers from compensating clients for their bad faith claims. Indeed, the referee found: “Therein lies the ultimate conflict. The settlement pitted the lawyers’ interests against the interests of their own clients. The less the clients received, the more the PIP attorneys received.” We agree with the referee that the PIP lawyers’ most egregious violation occurred when they abandoned their clients’ bad faith claims in favor of a greater fee for themselves.
Two were father and son
In addition to their conduct during the Progressive settlement, Charles Kane and Harley Kane continued to engage in further dishonest acts. During the course of the unjust enrichment litigation, both Charles Kane and Harley Kane threatened to withhold compensation from their associates in order to force them to fabricate time records for use in the case. There is also evidence that Harley Kane later altered and inflated these time records. The inflated time sheets were provided to the bad faith attorneys and their counsel during discovery. Harley Kane admitted that the time records produced in discovery were “excessive.”
The referee proposed disbarment of the son and suspensions for the other two.
The referee in this case found that Charles Kane, Harley Kane, and Darin Lentner engaged in egregious misconduct: they secretly negotiated an aggregate settlement that created conflicts of interest between lawyers and clients, and left the bad faith attorneys with no compensation for their significant work in the Goldcoast case; in allocating the settlement funds, they abandoned their PIP clients’ bad faith claims in favor of a greater fee for themselves; and they withheld from clients nearly all the material information about the settlement, entirely to further their own interests. Given their actions, we agree with the referee that Harley Kane should be disbarred. We cannot agree, however, with the referee’s recommendation that Charles Kane and Darin Lentner receive a sanction any less severe. This considerable violation of respondents’ ethical responsibilities to their clients and the legal system, entirely for their own financial interests and at the expense of their clients, warrants disbarment.
The oral arguments are linked here.
A decision in related bankruptcy proceedings is linked here. (Mike Frisch)
The web page of the Ohio Supreme Court (Dan Trevas) notes a disciplinary decision issued today
The Ohio Supreme Court today disbarred a Cleveland attorney for professional misconduct including settling personal injury matters without the consent of his clients, failing to promptly deliver funds to a client, and engaging in a sexual relationship with another client.
The Supreme Court unanimously voted to disbar John B. Frenden. In a per curiam opinion, the Court stated the Board of Professional Conduct found “a significant deficiency in Frenden’s core ethical obligations of honesty, trustworthiness, diligence, and reliability.”
The Cleveland Metropolitan Bar Association had charged Frenden in 2015 with several violations of the rules governing attorneys that stemmed from four client matters.
Accident Settlement Mishandled
In 2011, Diane Dubois hired Frenden to represent her in a personal-injury matter in which she was injured by another driver. Frenden told her in January 2011 to see a chiropractor, but had no further contact with Dubois for the rest of the year. Frenden failed to gather adequate information to fully evaluate her claim, and when an adjustor for the at-fault driver’s insurance company tried to contact Frenden in 2012 he did not respond. The adjustor wrote to Frenden with an offer to settle Dubois’ claim for $28,000, asserting she had a preexisting injury.
Dubois testified that Frenden told her the settlement offer was for $83,000. But the insurer had not made such an offer, nor had Frenden demanded that amount. Dubois’ damages amounted to $41,000 and Frenden admitted his typical demand would have been for about four times the amount, approximately $164,000. He claimed DuBois agreed to settle for $35,000.
Frenden wrongly reported to the insurance company that Dubois was a Medicare recipient when she was a recipient of another government program. The insurer required Frenden to have Dubois sign a consent form to report the injuries to the federal government as required by Medicare. Frenden returned the $35,000 settlement check and sought to renegotiate the settlement.
The statute of limitations on Dubois, claim expired in January 2013, and Dubois was unable to reach Frenden until the following month. Frenden sent the insurer the required authorization form, which Dubois testified she did not sign and noted her name was misspelled. Frenden instructed Dubois to sign the $35,000 settlement check without showing her the amount of the settlement. Nearly one year after the settlement, and after Dubois filed a grievance with the bar association, Frenden released the funds. He sent Dubois about $20,800 and the rest to reimburse a government insurance program and medical providers for her treatment.
A three-member panel of the professional conduct board found Frenden violated several rules when representing Dubois, including failing to provide competent representation and failing to keep the client reasonably informed about the status of the matter. For forging Dubois’ signature, the panel found he violated the rule that prohibits lawyers from engaging in conduct that negatively reflects on the lawyer’s fitness to practice.
Case Dismissed Without Client’s Consent
In 2008, Frenden agreed to represent Diane Sigler in a personal-injury matter after she and her son were injured in an automobile accident. Frenden filed the lawsuit in 2010, erroneously naming Sigler’s husband, rather than son, as a plaintiff. The week before the trial was to begin in 2011, the opposing attorney complained that Frenden failed to file a required expert report regarding Sigler’s injuries.
Frenden voluntarily dismissed the case just days before the trial without Sigler’s knowledge or consent, and refiled the case again in 2012. Frenden settled the case for $5,000 even though Sigler’s damages were nearly $12,000, and Frenden admitted he would typically demand $46,000 to settle a case like Sigler’s. The opposing attorney sent Frenden the check but asked him not to deposit it until he returned a release form, but Frenden disregarded the request and also deposited the check without Sigler’s signature.
Frenden also represented Sigler in a divorce proceeding, and she paid him $1,500 in advance. Frenden did not comply with Sigler’s request to hire a forensic accountant to obtain information about her husband’s finances, and Frenden failed to keep appointments with her to discuss the case. Sigler provided Frenden with 725 pages of documents to provide to her husband’s lawyer during discovery. Frenden failed to document that he delivered the information, which the opposing lawyer stated he did not receive. Sigler personally delivered the documents to the opposing attorney just two days before the trial.
Frenden admitted he was not prepared for the trial. The parties negotiated a settlement, but Sigler wanted to indicate that she signed under duress. Frenden did not permit it. As they were leaving the courthouse, Frenden informed Sigler he had no malpractice insurance. Sigler sued Frenden for malpractice in 2015.
The panel found Frenden failed to competently represent Sigler in both matters, failed to keep her informed about the status of her legal matters, failed to obtain her consent to settle a case, failed to notify her in writing that he did not have malpractice insurance, and committed other violations of rules.
Representation of Exotic Dancer in Divorce and Custody Matters
Frenden agreed to represent a woman identified in court documents as A.S. in a divorce in 2013. He met A.S. at a club where she worked as an exotic dancer. Frenden filed an answer and counterclaim in the case, but waited three months to seek court-ordered support for A.S. and her three children.
A.S. estimated she paid Frenden about $3,000 for his representation and testified he asked for more money and for her to use her government food card to purchase groceries for him and to clean his house to offset her legal fees. Frenden did not maintain records of payments or submit any bills to A.S. to pay him.
Frenden sent a text to A.S. threatening to take her infant twins to the county’s child protective services if she did not pay him. He also took revealing pictures of her with plans to publish a calendar, claiming he would split the proceeds and apply his half to her attorney fees. She testified that she engaged in sexual relations with Frenden “because she felt it was the only way to get him to leave her alone.”
The professional conduct board found Frenden violated the rule that bars a lawyer from engaging in sex with a client unless it is a consensual relationship that existed prior to the client-lawyer relationship.
A.S. also allowed Frenden’s secretary to take physical custody of her twins in early 2014 with the understanding they would be returned in a few months, but the secretary retained an attorney and sought permanent custody of the children. Frenden continued to represent A.S. in matters, but did not advise her on how to regain physical custody of her children. The board found Frenden violated the rules against creating a conflict of interest.
In addition to the violations the board found for his representation of clients, at the time of his disciplinary hearing Frenden could not properly account for $18,000 in his client trust account, and admitted his account records were inaccurate and in disarray.
Frenden Claims Sadness Impacted Performance
When considering a sanction, the board noted that Frenden had no prior disciplinary record and that he experienced a stressful period of his life after discovering he was not the father of a child he believed to be his. He claimed his sadness made it difficult to perform as an attorney, but testified he had never been diagnosed with depression, that he was not under the care of a psychiatrist, and that he remained able to function.
The board found Frenden acted with a dishonest and selfish motive, had a pattern of misconduct involving multiple offenses, failed to cooperate in the disciplinary process, and made false statements to the bar association’s investigator. The three-member panel hearing Frenden’s case recommended he be indefinitely suspended with conditions to be reinstated.
“Noting the egregious nature of Frenden’s conduct, however, which according to the board involved theft and forgery but also harm to vulnerable clients, the board recommended that Frenden be permanently disbarred from the practice of law in Ohio,” the opinion stated.
The Court stated the record clearly and convincingly demonstrated Frenden violated the professional conduct rules, and disbarred him.
A case that illustrates the problem of both inexcusable delay and undue leniency in the District of Columbia disciplinary system will be argued before the Court of Appeals next Tuesday.
The panel consists of Associate Judges Thompson and McLeese and Senior Judge Ruiz.
From our prior coverage of the report of the primary culprit - the hearing committee assigned to the case
The most overdue District of Columbia hearing committee report (perhaps ever) has finally been filed.
Attorney Wayne R. Rohde was convicted of felony hit and run in Virginia way back in 2005.
After a night of heavy drinking at a D.C. bar called Rumors, he drove home to Virginia. En route, he caused a head on collision that seriously injured a woman, backed his car away from the collision and drove home.
His effort to avoid detection failed in part because he had left his car bumper (with license plate affixed) at the scene.
He managed to convince the Court of Appeals to not suspend him pending the disciplinary proceedings, a departure from the court's usual (indeed, nearly invariable) practice for felony convictions.
The hearing was competed on January 15, 2008.
The report was filed last Friday - seven years and a day after.
And it stinks.
According to the committee, the offense is not one of moral turpitude and was caused by his alcoholism. The committee bought his story that he was essentially morally blameless due to an "alcoholic blackout."
Notably, he denied an ongoing alcohol problem when it served his purposes in the criminal case. In the disciplinary case, the cause was demon rum. That little inconsistency was no problem for the hearing committee.
Nor were his four prior alcohol-related traffic accidents an issue.
The committee recommends a fully stayed suspension of two years and a day and probation.
Not one minute of suspension for severely injuring someone while driving drunk and fleeing the scene.
Hardly worth waiting for.
And, a decade after that near-fatal night, this matter is nowhere near resolution.
The Board on Professional Responsibility must review the report and make its own recommendation for final court action.
The board report essentially agreed that absolution was preferable to discipline
The board found that the conduct did not involve moral turpitude because the attorney was suffering from an "alcoholic blackout" when he committed these crimes...
So let me get this straight. An attorney practices at a major law firm and there is not a hint of evidence that he functions below par at work. His practice is to get loaded night after night near work and drive home drunk to Virginia. Like a random bullet from a gun, the inevitable happens. Fortunately, he causes major injury but not death. He flees the scene.
No real disciplinary consequences because he'a an alcoholic?
If it's a "close question," why not protect the public and uphold the integrity of the legal profession?
While the board found ethical violations, it was a treated as a mitigating factor that he was an alcoholic when he was driving drunk...
They note that the incident happened eleven years ago and never (unless I missed it) acknowledge that seven years of that time involved their own hearing committee's disgraceful delay.
And he doesn't need to tell his clients about it - it's double secret probation.
By coincidence, he's a big firm lawyer.
It's another day in the the world of the D.C. bar disciplinary system.
I will report on the argument next week. I hope and expect that the panel will explore the regulatory failure reflected in these proceedings. (Mike Frisch)
Wednesday, October 5, 2016
A story from Philly.com
Vincent A. Cirillo Jr., a longtime Montgomery County defense lawyer, on Tuesday admitted raping a 22-year-old unconscious client at her West Norriton apartment last year.
"I had to do this for my family," Cirillo said as he was led from the courtroom in handcuffs. "I didn't want to risk the maximum amount of exposure I was facing if convicted."
"In this case the defendant was her lawyer," Ryan said, "someone that she trusted."
Prosecutors said the woman hired Cirillo, 56, of Gladwyne, last year to represent her in a criminal matter. In August 2015, he went to her home for a meeting to discuss the case.
The woman told police that she thought Cirillo drugged her because he encouraged her to drink alcohol and she became too impaired to stand up. She said she did not remember what happened after a certain point in the evening and that someone later found her unconscious on her bed in only her underwear.
She went to the hospital for treatment and reported the incident to police.
Detectives then arranged surveillance as she met with Cirillo. He confirmed they had sex, according to a criminal complaint filed in the case, by saying he used a condom and telling the woman he had no venereal diseases.
Prosecutors also found photographs on Cirillo's phone that they planned to present at trial, showing the woman unconscious on her bed.
Since his arrest in August 2015, and even as jury selection began Tuesday morning, Cirillo had maintained his innocence. He entered the plea as his wife and daughter sat behind him in the front row of the courtroom.
His victim did not attend the proceeding.
Cirillo is the son of late Superior Court Judge Vincent A. Cirillo.
His lawyer, Nino Tinari, said he will argue at sentencing that his client had gone through a bad period in his life.
"It's devastating," Tinari said. "I've known the family for so long, it bothers me."
Cirillo also still faces trial on charges he impersonated his victim's lawyer in an attempt to obtain her confidential court records.
Ryan, the prosecutor, said Cirillo went to the county's domestic relations office last month and pretended to be the woman's attorney in an attempt to obtain her custody files. He now faces counts of identity theft, conspiracy, and forgery - charges that led the judge to revoke his bail last week.
No date was set Tuesday for Cirillo's sentencing.
Multiple instances of unauthorized practice of law has led to a proposed suspension of an attorney by the California State Bar Court Review Department.
In Marilyn Sue Scheer’s first disciplinary proceeding (Scheer I), we found her culpable of engaging in the unauthorized practice of law (UPL) in 26 client matters in 11 different states from October 2009 through January 2011, and of collecting illegal fees in those matters. For this misconduct, she received a two-year actual suspension to continue until she paid approximately $120,000 in restitution to her former clients. At this time, she remains on actual suspension for failure to pay this restitution.
In this consolidated review, Scheer appeals from Hearing Department decisions in her second and third disciplinary proceedings (Scheer II and Scheer III). In each, a hearing judge found Scheer culpable of misconduct that is substantially identical to the misconduct in Scheer I. Neither judge, however, recommended a new fixed period of actual suspension because the current misconduct occurred during the same time period as the misconduct in Scheer I. Rather, each judge recommended that Scheer should be actually suspended from the practice of law until she pays restitution to her former clients.
On review, Scheer challenges culpability and raises a series of legal challenges to the decisions, which largely duplicate the arguments she raised in Scheer I. The Office of the Chief Trial Counsel of the State Bar (OCTC) does not appeal and renews its request that Scheer remain actually suspended until she pays restitution.
Upon independent review of the record (Cal. Rules of Court, rule 9.12), we find Scheer culpable as charged. Like the hearing judges, we do not find that a new fixed period of actual suspension is appropriate. We recommend that Scheer be actually suspended until she makes restitution to her clients.
Tuesday, October 4, 2016
The District of Columbia Board on Professional Responsibility has amended its rules governing negotiated dispositions.
As there is near unanimous agreement amongst interested observers ( i.e. me) that the consent discipline process has been an abject and lamentable failure in a system characterized by a glacial pace of proceedings, I wonder whether the intent of the additional language to the pertinent board rules is to help or hinder the process.
I think I know the answer.
The BPR intends that there be more hoops to jump through and reasons to burden and discourage the process. As it was, so shall it be.
New language in Board Rule 17.3 in italics
The petition for negotiated discipline shall be prepared by Disciplinary Counsel and signed by Disciplinary Counsel, respondent and, if applicable, respondent’s counsel. It shall contain: (i) a statement of the nature of the matter that was brought to Disciplinary Counsel’s attention; (ii) a stipulation of facts and charges, including citation to the Rules of Professional Conduct that respondent has violated; (iii) a statement of any promises or inducements that have been made by Disciplinary Counsel to respondent, including, but not limited to, any agreement not to pursue specific charges or investigations of possible misconduct, whether in the present proceedings or in future proceedings, including an agreement not to present evidence of unadjudicated acts of misconduct under Board Rule 9.8(a) if the respondent seeks reinstatement; (iv) an agreed upon sanction, with an explanation of the basis for the proposed sanction, a statement of relevant precedent and any circumstances in aggravation or mitigation of sanction that the parties agree should be considered and any other factors that are relevant to whether the proposed sanction is justified; and (v) the justification for imposing a fitness requirement, if included in the agreed sanction.
The most significant portions of the new Board Rule 17.5 are also in italics
(iii) the agreed upon sanction is justified, and not unduly lenient, taking into consideration the record as a whole, including the nature of the misconduct, any charges or investigations that Disciplinary Counsel has agreed not to pursue, the strengths or weaknesses of Disciplinary Counsel’s evidence, any circumstances in aggravation and mitigation (including respondent’s cooperation with Disciplinary Counsel and acceptance of responsibility), and relevant precedent. A justified sanction does not have to comply with the sanction appropriate under the comparability standard set forth in D.C. Bar R. XI, § 9(h).
I have long said that in order for consent discipline to work, you have to trust your disciplinary counsel to exercise discretion in a responsible manner.
Lack of mutual trust and respect between the players in D.C. has led to most unfortunate consequences where use of negotiated discipline is concerned. (Mike Frisch)
A recent sanction of the Illinois Supreme Court
Mr. Win, who was licensed in 2012, was suspended for one year. While serving as an Assistant Illinois Attorney General, he made a false statement to a federal judge by claiming that he had notified a witness to appear for a hearing when, in fact, he had not sent notification to the witness. He then created and back-dated a letter to support his false claim, and he repeated the false statement to his supervisor. He later filed a false affidavit repeating the claim and made false statements to the ARDC by again claiming that he had notified the witness about the hearing. The suspension is effective on October 13, 2016.
From the motion for consent discipline
As an Assistant Attorney General, Respondent was assigned to represent two corrections officers at Pontiac Correctional Center who had been sued by an inmate. The Mintor case was assigned to the Honorable Joe Billy McDade, U.S. District Judge in the Central District of Illinois. On October 14, 2014, Judge McDade ordered the Warden of Pontiac Correctional Center to produce records in advance of the next scheduled hearing on November 12, 2014, or to appear at the hearing that day. Judge McDade ordered Respondent to notify the Warden about his order. Respondent did not forward the order to the Warden or anyone else at Pontiac Correctional Center, nor did Respondent notify the Warden or his office about the order.
At the November 12, 2014 hearing, Respondent falsely told Judge McDade that he had forwarded a copy of the order to the litigation coordinator at Pontiac Correctional Center. Following the hearing, Judge McDade directed the United States Attorney's Office to determine whether the Warden should be held in contempt of court for willfully disobeying a court order in the Mintor case.
C. Misrepresentation to a supervisor and creation of a false letter
After returning from federal court on November 12, 2014, Respondent created a letter on Attorney General stationary addressed to the litigation coordinator at Pontiac Correctional Center concerning the November 12, 2014 hearing in the Mintor case. Respondent back-dated the letter to October 22, 2014, to make it appear as though he created and sent the letter on that date. The following morning, Respondent showed the letter to his supervisor at the Attorney General's Office and falsely represented that he drafted and sent the letter in October.
D. False affidavit
On November 21, 2014, Respondent filed an affidavit in the Mintor case in response to a request from the U.S. Attorney's Office. In the affidavit, Respondent stated that he had prepared a letter to the litigation coordinator on October 22, 2014, concerning Judge McDade's order in the Mintor case; that he assumed the letter had been mailed on that date; and that he assumed the Warden had received notice of the November 12, 2014 hearing, by way of that letter. Respondent knew these statements were false because he didn't prepare the letter until November 12, 2014, and he knew that he had not notified the Warden of the November 12, 2014 hearing and he had no reason to believe anyone else had done so.
E. False statements to ARDC
On March 25, 2015, the Administrator docketed an investigation against Respondent after receiving a report about Respondent's conduct from the Attorney General's Office. On April 24, 2015, Respondent sent a letter to the Administrator which falsely stated that he had drafted and prepared the letter to the Warden in the Mintor case on October 22, 2014.
On August 4, 2015, Respondent appeared at the ARDC office and gave sworn testimony concerning his actions in the Mintor case. In the sworn statement, Respondent testified falsely that he had created and sent the letter to the Warden's office on October 22, 2014.
On August 31, 2015, Respondent submitted a "revised" response to the ARDC's report in which he admitted that his previous letter and sworn testimony contained intentionally false statements.
The order was posted on September 22. (Mike Frisch)
Some recurring themes in discipline matters recently reported in the California Bar Journal
CLIFFORD NELSON SCHUSTER [#152164], 52, of Anaheim, was suspended from the practice of law for 30 days and ordered to take the MPRE. He was also placed on one year of probation and faces a one-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect May 28, 2016.
Schuster falsely reported under penalty of perjury he had completed his required MCLE hours when he hadn’t. He ultimately completed the necessary hours but only after he was audited.
CAROL MARION SLATIN [#87748], 71, of Deerfield Beach, Fla., was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she does not comply with the terms of her disciplinary probation. The order took effect May 28, 2016.
Slatin falsely reported to the State Bar under the penalty of perjury she was in compliance with her MCLE requirements when she wasn’t. She completed the necessary hours after learning she was the subject of an MCLE audit.
RICHARD HENRY WAGNER [#127326], 61, of San Diego, was suspended from the practice of law for 30 days and ordered to take the MPRE. He was also placed on one year of probation and faces a one-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect May 28, 2016.
Wagner falsely reported to the State Bar he had completed 25 hours of MCLE during the compliance period when he had not. He took the necessary hours to bring himself into compliance after being contacted in connection with an MCLE audit.
A useful reminder for this time of year. (Mike Frisch)
Monday, October 3, 2016
The hits just keep on coming from the California Bar Journal
ANDREW WILLIAM QUINN [#209654], 53, of San Diego, was disbarred Aug. 14, 2016 and ordered to comply with rule 9.20 of the California Rules of Court.
Quinn appealed a State Bar Court hearing judge’s disbarment recommendation, arguing that his 2012 conviction for peeking into his 18-year-old stepson’s window and earlier misconduct in which he lied about setting up cameras to film another stepson only warranted a three-year suspension. A three-judge review panel affirmed the judge’s recommendation finding that Quinn “twice engaged in egregious misconduct for his sexual gratification,” was dishonest and displayed a lack of candor in his trial testimony.
In May 2012, Quinn was caught peeking through his stepson’s window, leading the stepson to file a police report and obtain a temporary restraining order. The following year, he pleaded no contest to one misdemeanor charge. In 2008, he hid cameras in his 15-year-old stepson’s shower and above his bed. He initially lied about placing the cameras.
Quinn had no prior record of discipline.
The October 2016 California Bar Journal reports a disbarment
JAMES MAZI PARSA [#153389], 51, of Tustin, was disbarred June 17, 2016 and ordered to comply with rule 9.20 of the California Rules of Court and make restitution.
In October 2009, Parsa became ineligible to practice law and shut down his thriving law practice due to convictions for unlawful sexual intercourse with a minor. Even though his suspension was imminent, he continued to accept new clients – many of whom were vulnerable and facing foreclosure and bankruptcy – and accept advanced fees. He did not notify any clients he was about to close his office before he did so or let any of his contract attorneys know. As a result, he was charged with misconduct in 43 client matters including failing to return more than $120,000 in unearned fees, improperly withdrawing from employment, failing to perform with competence and committing acts of moral turpitude.
Parsa ultimately submitted his resignation with charges pending and the State Bar assumed jurisdiction over his practice. Parsa also hired an attorney to help him properly comply with rule 9.20 and instructed his office manager to send out notices to all of his 4,500 clients with active files. Many of his clients, however, did not receive the letters.
Parsa was ordered to pay $120,464 plus interest in restitution.
The Los Angeles Times reported on the case.
And this unrelated matter
ARCHER BRYANT HUDSON JR. [#92402], 71, of Yucaipa, was disbarred June 18, 2016 and ordered to comply with rule 9.20 of the California Rules of Court.
Hudson’s disbarment stems from his four felony convictions for lewd acts on minors and solicitation to murder. In 1994, he was arrested based on allegations he had molested multiple boys. After the allegations came to light, he tried to prevent one of the boys from testifying against him by hiring a hit man. But the hit man went to police, who staged a photograph to look like the boy had been murdered and buried in a shallow grave in the desert.
In 1999, following an earlier mistrial, he was convicted of one felony count of solicitation of murder and one felony count of a lewd act on a child under 14. That year, a State Bar investigator visited him while he was incarcerated in San Bernardino to try to get him to resign based on his violation of what is now rule 9.20. He did not file a declaration of compliance until March 19, 2015, nearly 20 years after he was originally ordered to do so.
The web page of the Illinois Attorney Disciplinary & Registration Commission reports
[Attorney] Mr. Gold-Smith, who was licensed in 2003, was suspended on an interim basis and until further order of the Court. He was found guilty in the Circuit Court of Will County of solicitation of murder for hire and for solicitation, both Class X felonies. In addition, he is awaiting trial on state charges of aggravated domestic battery (a Class 2 felony), aggravated battery (a Class 3 felony) and unlawful violation of an order of protection (a Class A misdemeanor.
The Chicago Tribune reported
A Homer Glen man convicted of trying to hire someone to kill his ex-wife in 2012 maintained his innocence and described himself as a "stellar citizen" during a sentencing hearing Thursday.
Robert Gold-Smith, 54, faces 20-40 years in prison for the murder-for-hire scheme. Gold-Smith, a former attorney, is representing himself and made his arguments before Will County Judge Daniel Rozak. In March, he was found guilty of the murder-for-hire charges following a bench trial before Rozak.
"I did everything I'm supposed to do as a good citizen of this county," Gold-Smith said.
Gold-Smith landed in jail in 2010 after he punched his then-wife several times following a divorce proceeding in the Will County courthouse. It was during the time he was in the Will County jail in 2012 that Gold-Smith attempted to hire an inmate to kill his wife, prosecutors have said.
A Homer Glen lawyer convicted of trying to buy his wife’s murder from inside the Will County jail had harsh words Thursday for the judge who will sentence him.
Robert W. Gold-Smith, 54, repeated his assertions that a jail inmate fabricated a recording of Gold-Smith asking to have Victoria Smith killed and that Judge Daniel Rozak was biased against him. Gold-Smith, who represented himself in a bench trial earlier this year, faces 20 to 40 years in prison.
Gold-Smith and Victoria Smith were going through a contentious divorce when he allegedly punched her outside a courtroom in November 2010. That case still is pending, although Gold-Smith has admitted to the confrontation. Before court began Thursday, Gold-Smith spoke to Will County Assistant Public Defender Amy Christiansen, who is representing him on the domestic battery case.
“Twenty [years], 30, 40. It’s all the same to me,” Gold-Smith said. “It’s a life sentence. I get out of prison at 75, what good does that do me?”
During sentencing proceedings, Gold-Smith and prosecutor Adam Capelli noted he had no criminal history before the attack in the courthouse.
The same source noted his "Clark Gable" approach to courtroom behavior.
On Friday, Gold-Smith was seated in the jury box with other inmates when bailiff Cheryl Ferguson reminded him that talking before his case was called was a violation of the courtroom rules and he could be kicked out before his case was called.
"Throw me out, I don't give a damn," Gold-Smith told the bailiff.
Conversion of funds drew a five-year suspension rather than disbarment from the New York Appellate Division for the First Judicial Department.
The record reflects that there were numerous illnesses and deaths amongst members of respondent's close family over the span of three years that included the relevant time period, which led to family conflicts and caused respondent to get off track and "overwhelmed" her.
Respondent's 31 years of practice has included two years as an attorney for Administration for Children's Services, eight years as a law secretary for a Justice of the Supreme Court and 21 years in private practice, all without any blemish. Respondent has handled many estates as a guardian for incapacitated persons and every annual accounting was approved. Since respondent's misappropriation and intentional conversion of guardianship funds is undisputed, the issue presented is whether a sanction less than disbarment is warranted.
And "yes" is the answer.
While respondent in the case at bar converted more client funds, on more occasions over a seven-month period, her misconduct was isolated in its nature, and, is arguably less egregious than that in Molinini-Rivera, which involved more than one client matter, repeated false testimony before the Committee, and deceit before a court. As to respondent's lack of medical evidence in support of the "emotional storm that clouded her judgment and led to the extremely aberrational - though serious - misconduct," and, therefore, the absence of a causal link with the misconduct, respondent explained that she did not seek professional help for her depression and feelings of being overwhelmed because she did not believe in such, and because she did not need a professional to explain why she could not get out of bed for days. Indeed, respondent testified to the stress of her own and her family's illnesses and then deaths during the relevant time period, coupled with being called a "heartless murderer" by her grandmother and others for making the painful decision to discontinue her mother's feeding tube. As the Hearing Panel further concluded, "there is no serious doubt that [respondent] was suffering from extreme emotional duress at this time."
Additionally, as the record supports and the Hearing Panel determined, this was an isolated incident on the part of a lawyer with an otherwise unblemished practice history spanning more than 30 years, and there is virtually no likelihood of a repetition of these actions. Respondent fully cooperated with the Committee throughout these proceedings, she is repaying the money taken, and has expressed sincere remorse for her misconduct...
we agree with the Hearing Panel and the Committee that "this is one of those rare cases where exceptional circumstances have been demonstrated" (Molinini-Rivera, 24 AD3d at 40). We thus grant the Committee's motion to confirm the findings of fact and conclusions of law of the Hearing Panel and respondent is suspended from the practice of law for a period of five years.