Monday, November 3, 2014

Peeping Landlord Lawyer Hearing

The Maryland Daily Record has a report on a disciplinary hearing

A Montgomery County [Maryland]  judge is hearing evidence in the disciplinary case against a Chevy Chase lawyer who pleaded guilty last year to secretly videotaping female tenants staying at his house.

Dennis A. Van Dusen was sentenced in July 2013 to five years’ probation and ordered to pay a $2,500 fine after pleading guilty to three counts of visual surveillance with prurient intent.

Bar Counsel for the Attorney Grievance Commission filed its petition for disciplinary action against Van Dusen in April, according to court records. Judge Anne K. Albright is presiding over the three-day hearing, which began Thursday.

There is no timetable for Albright to issue her findings. Once she does, Van Dusen and Bar Counsel will each be given a chance to file exceptions with Maryland’s highest court, the Court of Appeals, which will ultimately decide whether to disbar Van Dusen, suspend him, impose a lesser sanction or no sanction at all.

Van Dusen’s acts did not involve his law practice, but the Court of Appeals has found in other cases that criminal acts can violate the Maryland Lawyers’ Rules of Professional Conduct.

Van Dusen has multiple master’s degrees from Harvard University and graduated from the University of the District of Columbia’s law school in 2009, according to a transcript posted on his personal website. The Maryland Court of Appeals admitted Van Dusen to this state bar Oct. 5, 2012, despite receiving an unfavorable report from the Character Committee that covers Montgomery County.

The case is Attorney Grievance Commission v. Dennis Alan Van Dusen, 29833M.

Van Dusen was arrested in October 2012 after a tenant noticed a pinhole in the smoke detector directly above her bed, where a camera was discovered. A police search of Van Dusen’s computers and hard drives found sexually explicit images of many tenants, although police believe Van Dusen did not share the images online.

A day after police came to his house, Van Dusen sent the tenant a text message, according to the tenant’s complaint.

“I am willing to discuss settlement before you make a claim but not afterward,” the text said. “Best to communicate by email or txt.”

In February, a civil jury found Van Dusen liable for more than $1 million in damages in a lawsuit brought by the former tenant and her former boyfriend. That same month, another tenant was awarded more than $820,000 in her civil lawsuit against Van Dusen, according to court records.

Huffington Post noted the guilty plea in the criminal case.(Mike Frisch)

November 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Over 800 Complaints

A story from the November 2014 online edition of the California Bar Journal

A Garden Grove attorney who was the subject of hundreds of complaints from distressed homeowners agreed to be disbarred last month for his misconduct in 14 of those cases.

Stephen Lyster Siringoringo [#264161], 33, admitted to taking illegal advanced fees from homeowners in loan modification cases, failing to provide those homeowners with an accounting and aiding in the unauthorized practice of law by allowing non-lawyers to meet with those clients, according to a stipulation filed Oct. 15 in State Bar Court.

Although he stipulated to 29 counts of misconduct in the 14 cases, the State Bar’s Office of Chief Trial Counsel said it has received 796 additional complaints about Siringoringo’s conduct.

The Siringoringo Law Firm would set up retainer agreements with its clients where loan modification work would be split into stages. In the first two stages, which involved completing the loan application, clients would be charged between $2,000 and $3,500. In the third stage, when the loan application was submitted and the firm purportedly negotiated with lenders, clients would be charged $495 every 30 days while awaiting the lender’s decision.

Siringoringo provided refunds ranging from $1,500 to $5,970 in the 14 cases outlined in the stipulation. Other former clients may be eligible for reimbursement from the Client Security Fund after Siringoringo’s discipline is finalized by the California Supreme Court.

Siringoringo was the subject of an earlier discipline case. In 2013, the State Bar Court recommended he receive an 18-month suspension for collecting advanced fees in 20 loan modification matters.

The current stipulation notes that Siringoringo’s similar misconduct in the prior case occurred only one or two years earlier.

“Significantly, Respondent was aware of the ethically suspect nature of his conduct in accepting advanced fees in loan modification cases before any of the 14 clients in the current matter retained him,” it read.

(Mike Frisch)

November 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fit To Be Tied

The story of the attorney who the District of Columbia Board on Professional Responsibility deemed to be fit to practice gets worse and worse.

I now learn that the attorney was recently prosecuted for ethical violations in two other matters by the Maryland Attorney Grievance Commission (Misc. Petition Nos. 29034, 29262) and failed to participate in the ensuing disciplinary proceedings.

According to a public report filed on January 24, 2014, Judge Cynthia Callahan of the Montgomery County Circuit Court found numerous ethics violations and noted

Respondent's disregard for the lawful disciplinary process established by the Court of Appeals, previously manifested in his failure to respond to Bar Counsel's letters, continued at this level of the disciplinary process when Respondent failed to appear in court for the scheduled pretrial conference on December 2, 2013 and for the judicial hearing on December 16, 2013.

Also noteworthy is that Judge Callahan got her report out (with intervening holidays) in just over a month.

Oral argument before the Maryland Court of Appeals will be held next week.

In the D.C. case, the hearing committee took about thirteen months to issue a report (actually not too bad given the delay in other cases). It then took the BPR another thirteen months to issue its report. Two years of discipline-free practice.

Now, the D.C. BPR report will likely get lost in the backwash of reciprocal discipline from Maryland.

That is a death it richly deserves. (Mike Frisch)

November 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Should Have Withdrawn

A public reprimand was imposed on an attorney by agreement for failure to communicate with a difficult client who had a difficult civil case.

The Georgia Supreme Court noted

Moncus admits that he could have done more to communicate with the client about the predictable length and processes of litigation; to convey the potentially grave negative effects of failing to respond to discovery, to convince the client to defend the summary judgment motion, and to convey the  seriousness of the potential consequences of not responding. He admits that he should have made a greater effort to contact the client by phone or other available methods. Alternatively, Moncus states that, in hindsight, it would have been better to withdraw as the client’s counsel.

On the plus side

The State Bar does not dispute the facts regarding the misconduct and confirms that Moncus was fully and promptly cooperative and forthcoming to the Bar’s numerous inquiries, including an independent forensic examination of Moncus’s computer systems in light of the client’s belief that Moncus recently created some of the letters he said he had sent the client during the initial representation. The State Bar states that the interests of the public and the Bar would be served by accepting the petition and imposing a public reprimand.

In Georgia, the attorney must appear in court to be reprimanded. (Mike Frisch)

November 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

Wild In Cody

A Cody attorney has been censured by the Wyoming Supreme Court for litigation misconduct.

The Missoulian has the details

 The Wyoming Supreme Court on Wednesday censured a Cody lawyer who represented a surgeon in a defamation lawsuit filed by another doctor.

The court ruled lawyer Laurence Stinson violated a professional rule prohibiting lawyers from making court filings without a good-faith basis and making filings intended only to embarrass the other party in litigation. It ordered him to pay over $15,000 to cover disciplinary proceedings.

Stinson's office said he was unavailable for comment Wednesday.

Stinson had represented Dr. John H. Schneider, a neurosurgeon who practiced in Cody. The Wyoming Board of Medicine revoked Schneider's license early this year.

Dr. Jimmie Biles of Cody sued Schneider in 2011 contending he was behind anonymous fliers disparaging Biles' medical practice. Biles also had sued Lisa Fallon, of Indiana, alleging she had distributed the fliers.

According to Biles' lawsuits, the flier was sent in 2010 to more than 14,000 residents of north-central Wyoming. The lawsuits alleged that Schneider hoped the mailing would result in his getting more neurosurgical patients. Schneider had denied he was behind the mailings.

The Supreme Court ruling states the following:

— Fallon had told Biles' lawyers that Schneider had given her money to produce the fliers and provided her with a mailing list.

— While the lawsuit was pending, workers at West Park Hospital in Cody discovered a computer flash drive in the hospital laundry. It showed communications between Schneider and Fallon in which he encouraged her not to talk to Biles' lawyers.

— Stinson was aware that Schneider had written the flash-drive communications to Fallon when Stinson wrote Schneider's response to Biles' complaint. In the response, Stinson alleged that Biles knew his allegations against Schneider were false because Fallon had said she alone was responsible for the fliers. The response then listed "affirmative defenses" disparaging Biles personally and professionally.

— Biles' lawyers found an email-exchange between Schneider and Fallon showing he encouraged her to say she was too sick to testify to Biles' lawyers at a deposition and promising her a "a 250K-plus payoff." Soon after that discovery, Schneider entered a confidential settlement with Biles, ending the lawsuit.

The Supreme Court ruling on Wednesday says Stinson has contested the conclusions by the Wyoming State Bar that he had violated professional standards. Stinson maintained that he had an obligation to his client to mount a vigorous defense to Biles' lawsuit.

Schneider's settlement of the Biles' lawsuit remains an issue in an ongoing civil case in U.S. District Court in Wyoming.

The Wyoming Board of Medicine early this year revoked Schneider's license following an investigation into his involvement in treating Russell Monaco, 47, of Billings, Montana. Monaco died from an overdose of painkillers the day after his release from West Park Hospital in late 2011.

Monaco's relatives filed a federal lawsuit last year claiming negligence by the hospital and medical personnel, including Schneider. Lawyers for Monaco now are seeking details of the settlement between Schneider, his corporate interests and Biles.

In July, U.S. District Judge Scott Skavdahl of Casper signed an order denying a request from Schneider for a protective order to prevent Monaco's lawyers from pursuing information about whether Schneider moved money around after Monaco's death to attempt to shield it from creditors.

Skavdahl stated in his ruling that Monaco's lawyers allege that after Monaco's death, Schneider borrowed $3 million from a limited family partnership, submitted a claim for indemnification from an insurance company he owned and then paid the claim, leaving the insurance company insolvent.

Casper lawyer Stephenson Emery represents Schneider in the Monaco suit and filed another brief earlier this month asking for a protective order to keep Schneider's financial records secret. "The fraudulent transfer alleged is the Biles lawsuit settlement," he wrote. "The settlement is confidential."

An attempt to reach Emery for comment on Wednesday was unsuccessful.

Lawyer Jon Moyers of Billings, Montana, represents the Monaco family. He declined comment on the case Wednesday.

(Mike Frisch)

October 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Short Stay

An attorney admitted in 2011 has had his career end with disbarment by the Nebraska Supreme Court.

The attorney had accepted retainers that he used as his own but had not been earned, mishandled cases and failed to respond to the disciplinary charges.

He also fabricated evidence submitted in response to one client bar complaint.

The court

Respondent did not communicate with his clients regarding their cases and did not properly appropriate his clients’ trust fund accounts. He did not properly withdraw from representation of any of his clients and still maintains their files to this day. Correspondingly, Respondent prejudiced several of his clients’ cases; in particular, he allowed Rodwell’s case to be dismissed completely for failure to update the court. The Respondent has not cooperated with the Counsel for Discipline in its efforts to investigate his case, and in fact, Respondent is evading service from the Counsel for Discipline and this court. Respondent failed to provide records necessary to audit his client trust account. In the one instance when Respondent did reply to the Counsel for Discipline, he fabricated evidence of alleged communication with his clients. Thus, Respondent has engaged in dishonesty, fraud, deceit, and misrepresentation.

It's (mercifully) not often that a career at law terminates in this fashion in less time that it takes to get through law school. (Mike Frisch)

October 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 29, 2014

In My Mind I'm Going To Carolina

An attorney admitted to practice in Utah and California has been permanently disbarred in south Carolina for solicitation of a South Carolina client and subsequent false statements to disciplinary authorities.

The attorney was associated with a company named Fulcram 360

Fulcrum 360 was owned and operated by non-lawyers. Fulcrum 360 prepared and distributed marketing materials for J Nolan Legal on behalf of respondent. The materials included a direct mail solicitation and a website. Fulcrum 360 represented to respondent that an attorney had reviewed the marketing materials for ethical compliance and that it had developed a referral network consisting of attorneys in each state to refer clients for foreclosure representation if necessary. In fact, neither respondent nor Fulcrum 360 had a referral relationship or association with an attorney licensed to practice law in South Carolina.

In or around February 2013, a South Carolina resident received a direct mail solicitation from respondent addressed to her at her home in Eastover, South Carolina. The solicitation stated it was issued after the prospective client made known to respondent a desire not to be solicited by virtue of her failure to respond to prior attempts to contact her. The direct mail solicitation contained material misrepresentations and omissions of facts necessary to make certain statements considered as a whole not materially misleading. Specifically, the solicitation did not  disclose the name under which respondent was licensed to practice law, contained the trade name J Nolan Legal which made it difficult for the prospective client to identify respondent, and did not specify that respondent is not licensed to practice law in South Carolina or otherwise indicate the jurisdictional limitations on his ability to practice law in this state. The direct mail solicitation: 1) listed a "virtual office" in California which respondent only used for the purpose of receiving mail while he actually worked from an office in Utah and 2) failed to include the various disclaimers required by Rule 7.3(d)(1), (2) and (3), Rule 407, SCACR. Further, respondent sent the solicitation in the form of a folded postcard that revealed the nature of the prospective client's legal problem on the outside and he failed to maintain a record of dissemination of his solicitations to South Carolina residents.

And

Respondent made false statements during the disciplinary investigation. In particular, respondent stated in his response to the initial notice of investigation, "I have a lawyer licensed to practice law in South Carolina as part of my network. This lawyer was responsible for all legal work for South Carolina residents and lives in South Carolina." At the interview, respondent admitted he did not have an attorney licensed or living in South Carolina in his network and that a representative of Fulcrum 360 prepared his response and he signed it.

As to sanction

We find it appropriate to permanently debar respondent from seeking any form of admission to practice law in this state (including pro hac vice admission) without first obtaining an order from this Court allowing him to seek admission. Further, we prohibit respondent from advertising or soliciting business in South Carolina without first obtaining an order from this Court allowing him to advertise or solicit business in this state. Before seeking an order from this Court to either allow him to seek admission or to advertise or solicit, respondent shall complete the South Carolina Bar's Legal Ethics and Practice Program Ethics School, Law Office Management School, and Advertising School.

(Mike Frisch)

October 29, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Protecting Lawyers Rather Than The Public

Ever mindful of its role as the protector of accused attorneys rather than the public, the District of Columbia Board on Professional Responsibility has proposed a 90 day suspension with automatic reinstatement of an attorney who engaged in serious neglect.

The board applied the so-called Cater standard to find that Bar Counsel had failed to prove by clear and convincing evidence that there was a "serious doubt" as to the attorney's fitness to practice law.

Thus reinstatement will be automatic if the D.C. Court of Appeals agrees.

The Cater case is a rather unusual decision.

The Court of Appeals hates to hurt the feelings of the volunteer lawyers on the board and, in Cater, a unanimous panel had soundly rejected the board's  interpretation of the supervisory duty of an attorney for non-lawyer employees.

The board had found no violation of the duty to supervise the work of an embezzling secretary where, over an extended period of time, the attorney had allowed the employee to steal and abscond with entrusted estate funds.

The court flatly rejected the board's elaborate effort to render the supervision obligations of Rule 5.3 non-existent from an enforcement point of view.

As a sop (I believe), the court accepted the lesser evil proposed by the board and adopted its wildly public-unfriendly standard for determining when a fitness showing should be imposed for attorney misconduct

..we grant the Board's request for clarification of the legal standard to be followed in deciding whether the so-called fitness requirement is warranted.   Resolving a disagreement between the Board and Bar Counsel, we approve the “clear standard” proposed by the Board:  to justify requiring a suspended attorney to prove fitness as a condition of reinstatement, the record in the disciplinary proceeding must contain clear and convincing evidence that casts a serious doubt upon the attorney's continuing fitness to practice law.

This ill-advised "clarification" has led to a number of instances of erring on the side of automatic reinstatement contrary to the public interest.

As I noted in this March 20, 2008 post titled The Public Speaks:

What is interesting is the hearing committee report itself. The two lawyers agree on sanction, finding that automatic reinstatement is in the public interest because Bar Counsel failed to show clear and convincing evidence of a serious doubt regarding fitness to practice. This is the so-called Cater standard, which I criticized in my article on the D.C. disciplinary system. This case shows how this laughably legalistic formulation can be used to frustrate the overarching goal of any disciplinary system, which is protecting the public from unfit lawyers. As I had predicted, it permits the system to justify leniency as a supposed failure of Bar Counsel to meet its burden of proof.

Notably, the non-lawyer is having none of this lawyerese mumbo jumbo and rightly complains about the leniency of the sanction: "Remorse does not, by itself, demonstrate [his] rehabilitation... only that he is aware he did wrong... Any recommended sanction should accurately reflect the seriousness of the offense. Eighteen months does not, in this case, achieve that goal." I suppose one needs to become a lawyer to unlearn such common sense.

Here, the attorney had failed to file a post-hearing brief and appear for oral argument before the board. No problem, in their eyes

We have considered Respondent’s failure to consistently respond to Bar Counsel’s inquiries during the course of its investigation and his lack of participation in proceedings before the Board in assessing the second Roundtree factor. However, we do not find that this lack of consistent participation in the disciplinary process detracts from Respondent’s forthright admissions and recognition of the seriousness of his misconduct in his testimony before the Hearing Committee.

Also unimportant was the attorney's reprimand in Maryland for similar misconduct.

The case is In re John Green and can be accessed at this link.

Update:

I have learned that Bar Counsel had filed additional charges against this attorney on September 25, 2013. The charges were not reviewed and approved until last week - thirteen months later.

I find it shocking that the BPR would issue this report knowing that its own deficient processes had delayed consideration of further charges while blithely assuring the public that the attorney is fit to practice.

If someone can explain to me why charges sit unreviewed for over a year while other charges against the same attorney are being litigated, I'd be pleased to hear that justification.

Until then, spare me the concern about the deficiency of Bar Counsel's proof of the attorney's unfitness to practice.  (Mike Frisch)

October 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2014

Duty To Court Trumps Client's Wishes

 

The Delaware Supreme Court has publicly reprimanded a Maryland lawyer who had been admitted pro hac vice by the Court of Chancery for violation of a court order.

The attorney had, at the behest of his client, filed an action in Maryland in violation of a court order in the Delaware matter.

The attorney admitted that the Maryland action violated the Delaware order and "testified credibly that he was under great pressure from his client to file the Maryland Action, that he knew that it violated the Seizure Order, but that he chose to carry out his client's wishes rather than respect the Seizure Order."

The Court of Chancery granted the attorney's motion to withdraw. (Mike Frisch)

October 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Readmission Impossible

An attorney convicted in a tax shelter scheme was permanently disbarred by the Louisiana Supreme Court.

The underlying facts of the Third Superseding Indictment are complex, but essentially, the Government alleged that respondent’s criminal conduct occurred as part of an effort to market, sell, and implement a tax shelter known as "Hedge Option Monetization of Economic Remainder," or HOMER, which respondent designed for high net worth clients of Bank One. Respondent, who is also a CPA, allegedly prepared fraudulent invoices to obtain referral fees from Bank One on the transactions relating to this tax shelter, although he was not entitled to receive the fees, and then concealed the receipt of the ill-gotten referral fees by failing to report them on his individual tax returns. Furthermore, the Government alleged that respondent embezzled at least $3 million dollars from a client’s trust account and willfully evaded taxes on approximately $6.5 million in income in 2001 and 2002.

On June 2, 2010, following a three-week trial, the jury found respondent guilty of all three counts of the Third Superseding Indictment. In response to a special interrogatory, the jury found that the Government had proven respondent’s guilt with respect to both alleged objects of the Count One conspiracy.

The conviction was affirmed and is presently under collateral attack.

As to sanction

The record reveals that respondent orchestrated a complex scheme in which he stole money from a client’s trust, then stole fees from Bank One that would not otherwise have gone to him, and finally avoided paying federal income taxes on the monies so obtained. See United States v. Ohle, 441 Fed. Appx. 798, 800, 2011 WL 4978442 (2nd Cir. 2011). Without a doubt, such conduct reveals a fundamental lack of honesty and integrity in respondent’s character which makes him unfit to hold a license to practice law in this state.

We do not impose permanent disbarment lightly. In re: Morphis, 01-2803 (La. 12/4/02), 831 So. 2d 934. However, in light of the undisputed facts of this case, we can conceive of no circumstances under which we would ever allow respondent to be readmitted to the practice of law in Louisiana. He must be permanently disbarred.

(Mike Frisch)

October 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Unpardonable Offense

 The Maryland Court of Appeals has disbarred an attorney for misappropriation and other misconduct.

The court offered a reminder of the sanctity of entrusted funds

The gravamen of Respondent’s misconduct is the misappropriation of funds he collected on his clients’ behalf. As discussed above, we have concluded that, because Respondent had insufficient funds to pay C. Jones and Mr. Potochney the money owed to them, and he failed to promptly pay Ms. Dress’s medical bill, Respondent misappropriated both client and third-party funds. Respondent, as the only name on both his operating and trust account, was solely responsible for the funds and had knowledge of all account activity.

We are consistent in holding that the “misappropriation of funds by an attorney is an act infected with deceit and dishonesty and ordinarily will result in disbarment in the absence of compelling extenuating circumstances justifying a lesser sanction.” (citation omitted)...

 here Respondent’s misconduct in misappropriating funds is exacerbated by multiple other violations, including his failure to provide competent representation to his clients, his failure to prosecute diligently his clients’ claims, and his failure to communicate adequately with his clients on their respective matters. These combined violations create an even stronger case for disbarment.

(Mike Frisch)

 

October 27, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

No Beauty Or Culture In These Arguments

An attorney who is not regularly engaged in the practice of law but rather serves as chief financial officer of the Charleston Academy of Beauty Culture ("CABC") was suspended for three months by the West Virginia Supreme Court of Appeals.

The misconduct involved arguments made on behalf of CABC in  an appeal brief that attacked an administrative law judge. 

The underlying case involved the allegations of two former students that CABC had engaged in race discrimination. The claims were filed with the state Human Rights Commission.

The ALJ was African-American.

The attorney asserted, among other things

[ALJ] Phyllis H. Carter failed to execute her duties as ALJ for the HRC in a fair an (sic) impartial manner by, and in direct conflict with the Code of Judicial Conduct, exhibiting clear bias and having personal knowledge of the matters appearing before her; refusing to disclose the same; and ruling against that which she personally knew to be false...

In an outlandish display of tyrannical inclination, ALJ Carter found that Respondents discriminated because they were unable to force other companies and trade groups to provide instruction and product knowledge at the Respondents’ school. . . . ALJ Carter basing her Decision upon the absence of such an outlandish forced coercion, as she obviously did, indicates not only that ALJ Carter is deluded into thinking that this is a Communist country where companies are forced to perform services for others, but is under the deluded impression that Respondents have the power and authority to compel others to do its bidding. For the foregoing reasons, Respondents recommend that ALJ Carter seek professional psychiatric help, or be required to attend a forced reeducation camp . . . oops . . . wrong country...

The court rejected a number of contentions, concluding that Rule 8.2 applies to statements about administrative law judges and that the statements were not protected by the First Amendment.

The court

 An attorney is obligated to present the most effective argument for his client within the Rules of Professional Conduct and to pursue his client’s interests in a lawful manner. Attorneys are encouraged to present zealous advocacy and pursue all available avenues of relief on the client’s behalf. Dissatisfaction with adverse rulings, however, does not justify unwarranted attacks upon the credibility and personal values of the adjudicatory officer. Such irresponsible behavior is injurious to the client’s interests and to the attorney’s obligation to the legal system.

The [Hearing Panel Subcommittee] also properly ruled upon the second factor under the Rule 3.16 [sanction] analysis. Mr. Hall acted intentionally and knowingly; his violations were made in writing after deliberation. Moreover, he presented his statements in two separate appeals and has remained steadfast in his assertion that his statements regarding ALJ Carter were justified.

The attorney also must take a CLE ethics course. (Mike Frisch)

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

Crimes Draw Suspension

Two incidents of criminal conduct have led to an attorney's 181 day suspension by the Kentucky Supreme Court.

The first involved a guilty plea to criminal endangerment

The charges relate to an altercation between Benton and his then girlfriend that occurred around 2:00 a.m. on May 14, 2011, near the corner of Short and Market Streets in Lexington. After Benton reportedly quickly and aggressively accelerated his car toward the victim, he exited his vehicle brandishing a semiautomatic handgun. According to witnesses, Benton then struck the victim in the head with either the pistol or a closed fist, knocking her unconscious.

He then tested positive for marijuana use while on probation. The probation was continued rather than revoked but he got two weekends in jail.

The second incident

Benton entered a guilty plea in Fayette Circuit Court to terroristic threatening, third-degree, which is a Class A misdemeanor. The charge arose from threatening text messages and voicemails Benton sent to an 18-year-old male high school student who had been bullying Benton's daughter. Benton was sentenced to sixty days imprisonment with credit for time served, and he has served his time.

The attorney must be assessed by the bar's treatment program and comply with any conditions imposed as a result. (Mike Frisch)

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

What It Takes To Get Disbarred In New Jersey

An attorney who had continued to represent clients while suspended (and did a poor job of it) has been disbarred by the New Jersey Supreme Court.

The Disciplinary Review Board

Respondent’s most serious ethics offense was practicing law while suspended. He represented at least six clients, starting on the day after his temporary suspension and for a period of eight months

He had previously defaulted on bar charges and defaulted in this one

The two present matters constitute his fourth and fifth brushes with the disciplinary system. They are also his fourth and fifth defaults. In our view, nothing short of disbarment is justified for respondent’s persistent refusal to abide by the rules of the profession and obvious disregard for the ethics system...

For his pattern of disrespect for disciplinary authorities, for the Court, and for the profession at  large respondent must be disbarred. We so recommend to the Court.

The court agreed. (Mike Frisch)

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

"So Either File A Complaint Or Get The Hell Off My Back"

An attorney who had failed to remove earned fees from his escrow account and was initially uncooperative with the bar investigation has been reprimanded by the Maryland Court of Appeals.

From the hearing judge's findings

To some extent, Respondent appeared to be the victim of the old adage, “no good deeds go unpunished.” He repeatedly provided free legal advice to Mr. Hulamm, who in turn appeared to believe that Respondent should provide him free services. Respondent was not faultless, however... Respondent Weiers’[s] failure to keep time sheets and to bill accordingly led to Mr. Hulamm’s insistence that he was due a refund although Respondent had earned his fee. Further, Respondent’s failure to timely pay himself for services rendered to Crescendo Realty, LLC, resulted Respondent Weiers’[s] failure to keep time sheets and to bill accordingly led to Mr. Hulamm’s insistence that he was due a refund although Respondent had earned his fee. Further, Respondent’s failure to timely pay himself for services rendered to Crescendo Realty, LLC, resulted in the commingling of earned and unearned funds in Respondent’s trust account for approximately one year.

The court was not impressed with the attorney's attitude as reflected by this communication to Bar Counsel

I do not know what misconduct you are investigating and I don’t think you do either. Your latest demand appears to be a desperate attempt to justify the time you have wasted so far. . . I don’t know if you are on a witch hunt, a personal vendetta, a fishing expedition, or if you just don’t have enough to do, but I’ve had my fill of you. So either file a complaint or get the hell off my back.

This attitude was also reflected in Respondent’s statements during oral arguments, asserting for instance that this entire situation was “Kafkaesque.” These statements reflect a disparagement of and lack of regard for the Attorney Grievance Commission. In our review of the record, we agree with the hearing judge that Mr. Weiers’s failure to cooperate readily with Bar Counsel constitutes a MLRPC 8.1(b) violation.

But in the end

Respondent’s conduct in this case caused no harm to his clients. Respondent has no history of prior disciplinary offenses, and there is no evidence that his conduct was motivated by a dishonest or selfish motive. Although Respondent failed to timely comply with Bar Counsel’s requests for information, Respondent ultimately responded to Bar Counsel and participated in the disciplinary process. Mindful of Respondent’s troubling attitude toward Bar Counsel and the investigative process, and having cautioned Respondent against such conduct in the future, we conclude that a reprimand is the appropriate sanction in this case.

(Mike Frisch)

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

Thursday, October 23, 2014

Suspension For Computer Child Porn

An attorney convicted of second degree endangerment of children has been suspended for an indeterminate period by the New Jersey Supreme Court.

He may seek reinstatement in five years from the date of his January 2011 interim suspension on a showing of fitness to practice.

From the court's summary

 The facts of this case are undisputed. In July 2008, printouts of pornographic images, some of which depicted young female victims, were found in a receptionist’s desk drawer at the district office of New Jersey’s Twentieth Legislative District. At the time, respondent was an assemblyman representing the Twentieth District. The discovery led to an investigation by the New Jersey State Police, which revealed that this was not the first time pornography was encountered at the office; staff had previously discovered sexually explicit images in the office during morning work hours or following a weekend. As a result, the Office of Legislative Services required passwords on the computers.

When confronted, respondent admitted to the State Police that he had visited pornographic sites and printed the sexually explicit pictures. He acknowledged that the sites he viewed and the printed images contained both adult and child pornography. He explained that he had accessed the receptionist’s state-issued computer with a password that he instructed another member of his staff to obtain. Interviews also revealed that staff members observed respondent viewing pornography on the receptionist’s computer on prior occasions. In total, the police recovered thirty-four images of child pornography that respondent accessed on computers at the district office and at respondent’s law office. The images retrieved from respondent’s law office depicted nineteen girls under sixteen years old.

Respondent resigned from his position in the Legislature on July 20, 2008.

The court called the sanction a "step short" of disbarment. (Mike Frisch)

October 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Faster Than A Speeding Bullet

From the web page of the Ohio Supreme Court comes this story of a prosecutor's third brush with the attorney discipline system.

He had previously been suspended for a year in two separate matters.

One matter involved allegations that he had insinuated to other counsel that he was in a sexual relationship with a judge; the other confidentiality violations relating to an Ohio State football investigation.

The Ohio Supreme Court has placed  Christopher T. Cicero of Columbus on an indefinite suspension from the practice  of law for altering the charge in his own speeding case.

After receiving a speeding ticket  in Columbus, Cicero obtained a blank but signed document from a Franklin County  judge that Cicero then had his assistant fill out, changing his speeding charge  to a headlight violation.

Cicero had previously amassed  about 50 speeding tickets and had his driver’s license suspended twice. The  lesser offense of an equipment violation carried no points against his license  and eliminated the possibility of another driver’s license suspension.

The alteration came to light when  Judge Scott VanDerKarr’s bailiff noticed that the judgment entry document that  was filed did not include a required notation for a finding of guilt. When the  court contacted Cicero, he refused to provide the name of the prosecutor who  agreed to allow the change to a lesser charge, and the judge issued an arrest warrant for Cicero for contempt of court.

Cicero subsequently identified a prosecutor, who was working his second to last day in  the office on the day of Cicero’s arraignment in March 2012. The prosecutor denied having  any conversation with Cicero about amending the speeding ticket.

Cicero would not explain to the  judge how the deal to amend his charge came about, and he was sent to jail for  five days. Afterward, Cicero withdrew his plea to the headlight violation and  pled no contest to the original speeding charge. The judge  cited him for contempt and sentenced him to time served.

Cicero has been before the  Supreme Court in two prior disciplinary cases – one in which he claimed he was  having sex with a judge presiding over one of his cases and another in which he  shared confidential information from a potential client with the head football  coach at the Ohio State University.

The panel that reviewed this case  for the Board of Commissioners on Grievances and Discipline noted Cicero’s  pattern of misconduct and refusal to accept responsibility for his actions,  among other aggravating factors, and recommended that he be indefinitely  suspended.

The full board, however,  recommended to the court that Cicero be prohibited permanently from practicing  law for his misconduct. While Cicero did not challenge the misconduct and rule  violations that the board found, he objected to the proposed sanction of  disbarment.

After reviewing a number of prior  disciplinary cases, the court determined that Cicero’s history of misconduct  involved three different matters and did not reflect a “longstanding pattern of  deceit.” In a 5-2 decision, written by Justice Judith L. French, the court  concluded that an indefinite suspension was appropriate for Cicero’s  misconduct, but noted that his repeated violations were “troubling.”

“By no means do we condone  Cicero’s dishonest, unprofessional, and censurable conduct, which was  prejudicial to the administration of justice and which adversely reflects on  Cicero’s fitness to practice law,” Justice French wrote. “Nevertheless, in  light of this court’s precedent and considering all of the circumstances,  including the aggravating factors and lack of significant mitigating factors,  we do not find that Cicero’s conduct, egregious though it may be, rises to the  level for which we reserve the sanction of permanent disbarment.”

Cicero can apply to return to the  practice of law in two years.

Joining the majority were  Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M.  O’Neill.

In a written dissent, unusual in  disciplinary cases, Chief Justice Maureen O’Connor would have disbarred Cicero.  Her opinion was joined by Justice Judith Ann Lanzinger.

In Chief Justice O’Connor’s view,  the majority “does not adequately recognize the insidiousness of Cicero’s  behavior.” Calling his conduct a “charade” and his long list of excuses  “outlandish,” Chief Justice O’Connor also emphasized Cicero’s refusal to take  responsibility for his actions and admit his wrongdoings.  “Cicero’s quiver of untruths is notable for  its depth, if nothing else,” she added.

She pointed out that the  prosecutor Cicero claimed had agreed to let him plea to a lesser charge did not  work on traffic or criminal matters and was not assigned to any arraignment  courtroom.

“Cicero’s spectacular talent for  deflecting blame and minimizing misbehavior reflects his inability to conduct  himself in an ethical manner,” the chief justice wrote. “That inability  portends great risk to his clients and endangers the public and the legal profession.”

She disagreed with the majority  perspective that Cicero be given a lesser sanction because his misconduct over  the years has involved distinct matters.

“It does not matter that Cicero’s  three disciplinary cases did not spring from a common source,” she wrote. “Cicero’s  pattern of dishonesty, blaming others, disrespect for the legal process and for  the courts, self-serving behavior, and feigned remorse is unrelenting. In fact,  it is his willingness to defraud and impugn the court system in a great variety  of unrelated circumstances that is  the most troubling of all.”

Cicero’s actions have  reinforced the worst stereotypes about the legal profession, and his misconduct  warrants disbarment, she concluded.

2013-1980. Disciplinary  Counsel v. Cicero, Slip  Opinion No. 2014-Ohio-4639.

Video camera icon View oral argument video of this case.

(Mike Frisch)

October 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Disbarred After Missing Oral Argument Before Court

The Maryland Court of Appeals has disbarred an attorney for misconduct in the course of representing a client in a child custody disputes and during the resulting bar investigation.

We conclude that the appropriate sanction for Barnett’s misconduct is disbarment. Barnett forged [client] Wooden’s signature on an Affidavit of Indigency without consulting her or obtaining her consent, and then submitted the false document to the circuit court. Barnett failed to notify Wooden of the Exceptions hearing dates, or otherwise communicate with her for at least ten months during the course of his representation. After Wooden filed with the Commission a complaint concerning Barnett’s lack of communication, Barnett intentionally misled Bar Counsel concerning his discussions with Wooden regarding the Exceptions hearing dates and overall attorney-client communications. Barnett’s misconduct culminated in his unauthorized withdrawal of the Exceptions (i.e., the Exceptions were not pursued even though Wooden retained Barnett for the sole purpose of filing and pursuing Exceptions), and negatively impacted the public’s perception of the legal profession. There are no mitigating factors and Barnett’s misconduct is aggravated by multiple violations of the MLRPC and refusal to acknowledge the wrongful nature of the misconduct.

The court had entered a sua sponte order of disbarment on October 3, the date of the scheduled oral argument. THe attorney had failed to appear. (Mike Frisch)

October 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Return Of The Fortune Cookie

How long must a disbarred attorney wait for reinstatement?

Sixteen years was the period of banishment for an attorney reinstated yesterday by the New York Appellate Division for the Second Judicial Department.

The attorney had been disbarred in 1998 as a result of a criminal fraud scheme described by the New York Times

Since 1990, Mitchell Rachlin has collected more than $626,000 in payments from an insurance policy, claiming that neck and back injuries from a car accident prevented him from working at his law practice.

Undercover investigators, however, say that Mr. Rachlin has been hard at work at his Hempstead law firm on Long Island -- with no sign of impairment. Videotapes from a hidden camera show him moving nimbly about the office, even cradling the phone with his supposedly injured neck.

Not only was he working at his office, investigators say, Mr. Rachlin was also helping clients concoct their own fraudulent insurance claims.

Today, Mr. Rachlin was among 20 people indicted in Nassau County on felony charges stemming from a two-year sting, called Operation Backbone, to uncover fraud in insurance cases involving automobile no-fault, disability and workers' compensation. The others were 3 lawyers, 12 chiropractors, an orthopedist, a medical supplier, a legal assistant and a chiropractor's receptionist.

From the disbarment order

The respondent admitted that on or about October 23, 1995, he knowingly submitted false lost wages documents to Cigna Insurance Company (hereinafter Cigna) in support of a no-fault lost wage claim and thereby obtained in excess of $3,000 from Cigna.   The respondent further admitted that between approximately March 1995 and August 1995, he engaged in a scheme constituting a systematic ongoing course of conduct whereby he intended to defraud Cigna Insurance Company and Zurich Insurance Company by referring “false, fraudulent statement[s]” to those companies regarding the disability claims of more than one person.   Those persons received in excess of $1,000.

The reinstatement order does not set forth the evidence adduced to demonstrate present fitness to practice but notes the favorable recommendation of the Committee on Character and Fitness.

The court had denied two previous petitions. (Mike Frisch)

October 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Coverups Worse Than Crimes

The New York Appellate Division for the Second Judicial Department has disbarred an attorney who, after having neglected the matters of several clients, lied and created false documents to conceal the neglect.

As noted in an earlier post, the case underscores the value of granting disciplinary counsel the power to depose as

The respondent does not contest the charges, notwithstanding earlier denials. He stated at the hearing: "My testimony [at my deposition] speaks for itself." At his deposition, the respondent not only admitted that he was "mistruthful," but he also admitted that he had fabricated orders, fabricated judges' signatures, and fabricated court stamps and index numbers on various orders, all in an effort to conceal his neglect.

On sanction

In mitigation, the respondent testified at his deposition that a close friend of his died of an aneurysm at his home, and that the respondent allegedly tried to save his friend's life, but was unsuccessful. According to the respondent, the trauma of that incident caused him to go into a deep depression. Unfortunately, he turned to alcohol, claiming at the same time that he was a recently recovered alcoholic. Although the Grievance Committee requested that the respondent produce medical reports substantiating his health problems, the respondent failed to provide any documentation in support thereof. The respondent recounted the same chain of events at the hearing, but offered no evidence whatsoever to support his claims. The Special Referee requested that the respondent provide some documentation, e.g., a medical report from his treating physician, which the respondent indicated could still be obtained. No such documentation was provided subsequent to the hearing.

The respondent's submissions in support of his purported mitigation consist of self-serving statements for which no evidence, documentary or otherwise, has been produced. Other than the respondent's bare claims, and despite separate requests by the Grievance Committee and the Special Referee for supporting documentation, no  evidence was presented to support his contentions that: (1) a close friend had died in his arms, (2) he suffered from depression and post-traumatic distress disorder, (3) he sought treatment, and (4) he abused alcohol, entered Alcoholics Anonymous, and is now sober. Given the utter lack of evidence to support any of the respondent's claims, we find these claims to be not credible.

(Mike Frisch)

October 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)