Wednesday, June 25, 2014
The Legal Times is reporting that the Office of Bar Counsel and Mr. Klayman submitted a proposed consent disposition that will resolve conflicts of interest charges by a court-imposed public censure.
The petition (a public record but lamentably not available on line) alleged Rule 1.9 violations against his former client Judicial Watch.
The disposition was reached prior to the start of the hearing on Monday.
Be assured that this agreement is not necessarily the end of the story. The assigned hearing committee must review and may reject the consent disposition.
If the committee favors it, a report must then be filed with the Court of Appeals. The court may accept or reject the disposition and sometimes will ask for the views of the Board on Professional Responsibility.
In sum, stay tuned if you are interested. It likely will take a couple of years to complete the process. (Mike Frisch)
Tuesday, June 24, 2014
The attorney had engaged in misconduct in several matters. The court noted that his ethical problems were attributed to health issues
Within a week after the referee filed her report in this matter, the OLR received a letter from one of Attorney B.'s health care providers. The provider stated that he was writing at the request of and with the permission of Attorney B. The letter described health issues which were then affecting Attorney B. and which had led to symptoms that included problems with memory, concentration, and the ability to make decisions. The letter further stated that due to those health issues, Attorney B. was unable at that time to respond to complaints that had been filed with the OLR. It requested that the OLR temporarily suspend all administrative proceedings involving Attorney B.
The attorney nonetheless agreed to the suspension.
The court rejected the referee's proposal that monitoring by the bar's assistance program be a requirement of reinstatement
...we do not think it necessary to require Attorney B. to submit to an extended monitoring program administered by WisLAP. In order to ensure that Attorney B.'s health will be in a sufficient condition to allow him to resume the practice of law, however, we conclude that the reinstatement of his license to practice law in this state following his four-month suspension should be conditioned upon him obtaining a satisfactory mental health evaluation and providing that evaluation to the OLR. In order to be satisfactory, the evaluator must render an opinion, to a reasonable degree of professional certainty, that Attorney B. is presently capable of discharging the duties of a person licensed to practice law in this state. We further conclude that as an additional condition of reinstatement, Attorney B. must execute medical releases that authorize the OLR for a period of three years to review his medical and mental health records and to speak with his medical or mental health care providers. Once Attorney B. has complied with these conditions and the other conditions that are always required for reinstatement after a disciplinary suspension of less than six months, his license to practice law in this state can be reinstated.
Monday, June 23, 2014
The Rhode Island Supreme Court has ordered a public censure of an attorney who practiced while suspended for non-payment of annual dues.
Justice Goldberg dissented
When the respondent appeared before this Court it was disclosed—apparently for the first time—that throughout the period of time she has been removed from the Master Roll of Attorneys, including now, the respondent has been employed as staff counsel in the Office of Legislative Counsel at the Rhode Island General Assembly. Upon further inquiry, this Court was advised by Disciplinary Counsel of the following:
"Whether the title is staff counsel or legal counsel, there is certainly an implication that the person holding the position is an attorney. While there is no written job description, it can be presumed that only attorneys are hired for these part-time positions. Ms. Napolitano was duly licensed when first hired at Legislative Counsel, but it is not clear that maintaining active status is a prerequisite for holding such a position."
Because this position was not disclosed to Disciplinary Counsel or the Disciplinary Board, it is my belief that further inquiry into whether the respondent’s continued employment after she was removed from the rolls is warranted. A serious question remains as to whether the respondent continued to act as an attorney while she was no longer eligible to practice law in this state, and, whether her failure to disclose this employment constitutes another violation of the disciplinary rules.
Furthermore, the fact that there is no job description for the position of legal counsel is of no moment to whether this matter should be referred back to the Disciplinary Board for further inquiry. The position of legal counsel or staff counsel clearly signifies to this Justice and the public that the respondent has been employed in the capacity of an attorney throughout these proceedings, notwithstanding that she is not authorized to do so. Consequently, I dissent.
The California State Bar Court Review Department has recommended a partially-stayed two year suspension of an attorney who had misappropriated the proceeds of a settlement of a tort action on behalf of his parents.
The attorney had assigned his interest in the settlement to a New York company (Modeso) in exchange for a $10.000 payment.
When the case settled, he failed to pay and lied to the company representative.
At trial, [the attorney] testified that he lied to Modeso because he needed the money to pay his staff. He reasoned that he could not live with himself if he laid off his employees just before Christmas. [He] claimed that he intended to pay Modeso as soon as other cases settled, but they spiraled into protracted litigation. He described his remorse: "I am ashamed that I lied the way I did. What I should have done is told Modeso about my situation and been forthright with them and let them take the course of conduct that they chose to take in response."
He must serve a minimum of six months actuual suspension under the proposed sanction.
The California Supreme Court previously had rejected a stipulated 30 day suspension in the matter. (Mike Frisch)
This listing from the D.C. Bar web page reports that the disciplinary hearing in In re Larry Klayman is scheduled to start today
Hearings are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals located at 430 E Street NW, Washington, DC 20001.
Please contact the Office of the Executive Attorney at (202) 638-4290 to confirm the date, time, and location of hearings, as schedules are subject to change.
In re Larry Klayman, D.N. 048-08 June 23-24 & 26-27, 2014, 9:30 a.m. Courtroom II
The docket number means that the invesigation into this matter began in early 2008. Also, it is somewhat unusual for a hearing committee to hold hearings on four out of five consecutive days.
We previously reported on the allegations
The petition (which is not available on line) alleges three instances of violations of District of Columbia Rule of Professional Conduct 1.9 in representing interests materially adverse to Judicial Watch in the same or substantially related matters.
It states that Mr. Klayman was Chairman and General Counsel of Judicial Watch from July 1994 to September 2003.
Friday, June 20, 2014
The West Virginia Supreme Court of Appeals has acknowledged a petitioner's commendable progress in drug rehabilitation but nonetheless denied his application to be reinstated to practice.
The attorney's license had been annulled in West Virginia and Georgia as a result of a federal felony conviction for forgery. He also misappropriated entrusted funds.
The court noted that the attorney became involved with drugs as a teenager. He was sober for many years, completed his education and had gone to work at his father's law firm.
He resumed illegal drug use after being prescribed cough syrup that contained hydrocodone. He failed to advise the prescribing doctor of his drug history. He got hooked on the syrup and then moved on to oxycodone and crack cocaine.
The triggering event for the relapse was the death of his child's six-year-old friend in his swimming pool.
He went to federal prison as a result of the conviction and has been sober since 2007.
The court was concerned about his candor and acceptance of responsibility
More compelling are the falsehoods. These also indicate that Mr. DiTrapano’s inclinations regarding the truth have not been amended to an extent that would overcome the nature of his prior dishonest conduct. While he may no longer be under the influence of illegal drugs, we cannot overlook his failure to be thoroughly forthright with the [Lawyer Disciplinary Board] and this Court.
In view of the foregoing, we choose not to adopt the recommendation of the HPS, and we deny Mr. DiTrapano’s petition for reinstatement of his law license. Mr. DiTrapano has failed to carry his burden of showing this Court that he currently possesses the integrity and moral character necessary to resume the practice of law. We conclude that reinstatement would have a justifiable and substantial adverse effect on the public’s confidence in the administration of justice.
There was a concurring opinion linked here.
Justice Ketchum dissented
Sometimes we need to mix a little mercy with justice...
Mr. Ditrapano was in legal trouble for years because of his drug and alcohol addiction. However, he has been drug and alcohol free for over seven years and straightened up his life. In fact, he has more than met our five-factor test for rehabilitation in order to be readmitted to the practice of law.
The hearing Panel Subcommittee of the Lawyer Disciplinary Board heard the evidence, considered the extent of the rehabilitation, weighed the demeanor of the witnesses and Mr. Ditrapano, and made a thoughtful, measured recommendation. I would accept their recommendation to conditionally reinstate Mr. Ditrapano’s law license after the completion of his supervised release.
I disagree with my distinguished colleagues.
The Delaware Supreme Court has suspended a Pennsylvania attorney for one year and prohited his pro hac vice admission in any matter for three years based on findings of a pattern of unauthorized Delaware practice.
From 2006 to 2013, the attorney (never admitted in Delaware) "represented Delaware residents in over 100 matters arising out of motor vehicle accidents which occurred in Delaware and involved a policy of insurance issued for a vehicle registered in the State of Delaware."
Many of the matters were referrals from a Wilmington doctor. The attorney met with some clients in the doctor's office. Some of the clients came from television ads "which targeted Delaware residents." The attorney met with some of these clients in his firm's Wilmington office.
The attorney was admitted in Pennsylvania in 1965 and began practice in 1968. The Pennsylvania reciprocal discipline case could be interesting, as that jurisdiction takes a notably dim view of practicing while suspended. (Mike Frisch)
The Nebraska State Bar Association has sought to amend the comments to Rule 4.3 - respect for the rights of third persons - by adding the following language
The duty imposed by paragraph (a) of this Rule includes a lawyer’s assertion or inquiry about a third person’s immigration status when the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter. When a lawyer is representing a client in a civil matter, a lawyer’s communication to a party or a witness that the lawyer will report that person to immigration authorities, or a lawyer’s report of that person to immigration authorities, furthers no substantial purpose of the civil adjudicative system if the lawyer’s purpose is to intimidate, coerce, or obstruct that person from participating in a civil matter. See, also, Rules 8.4(b) (prohibiting criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects) and 8.4(d) (prohibiting conduct that is prejudicial to the administration of justice or adversely discriminatory toward litigants, witnesses, lawyers, judges, judicial officers, or court personnel on the basis of race, national origin, gender, religion, disability, age, sexual orientation, or socioeconomic status).
The comment period to comment on the proposed new comment ends on Septemeber 1, 2014. (Mike Frisch)
An attorney who had failed to file and pay New York City and State taxes was suspended for six months and until further order by the Appellate Division for the First Judicial Department.
The court noted
By a report dated February 10, 2014, the Panel recommended a six-month suspension as the appropriate sanction in light of certain mitigating factors. In particular, the Panel noted that (1) respondent acknowledged her wrongdoing; (2) she took "prompt corrective action to make necessary filings in dealing with taxing and criminal authorities, including retaining attorneys and accountants to organize and manage the process, and [put] in place safeguards to ensure ongoing compliance"; and (3) she has no prior disciplinary history in over 25 years of practice.
The Panel found only one aggravating factor, namely that during the period at issue, respondent annually earned between $101,380 and $187,212, and rather than pay her taxes, had traveled within the United States and abroad. Nevertheless, the Panel noted that respondent had not lived an unduly extravagant lifestyle, as evidenced by the fact that she did not own her own home or a car and still had $18,000 in law school debt more than 25 years after her graduation. The Panel concluded that while respondent's "lack of substantial outside expenses should have made payment of her taxes less onerous, ... it does not appear to be the case that [r]espondent failed to pay her taxes because of a profligate lifestyle. Rather, it appears that her lifestyle was moderate, her failure to pay was not venal and was instead due to a mental block with the task before her".
The New Jersey Supreme Court agreed with a dissenting opinion of the Disciplinary Review Board and disbarred a convicted sex offender.
The offense involved a minor child.
The DRB majority had proposed a two-year suspension.
From the dissent
How can clients then trust the sound advice that they seek from an attorney - in any area of the law - when they know that the attorney is morally deficient?
..,.we cannot help but wonder how members of the public would feel if, during the course of the representation, they learned that the attorney they had placed so much trust in was a registered Megan’s Law offender. How would they then feel, when they learned that we, as a profession, allowed that attorney to maintain a license? We doubt they would have much faith in any of us going forward, always wondering what the next attorney might be hiding about his or her character. We also doubt many members of the public would be able to understand why this attorney was not disbarred.
The dissent also notes that the attorney concealed the conviction from disciplinary authorities "for almost fifteen years, despite his legal duty to notify the [Office of Attorney Ethics] of his guilty plea."
The dissent was authored by Chair Bonnie Frost and member Jeanne Doremus. (Mike Frisch)
The New Jersey Supreme Court has imposed a three year suspension of an attorney convicted of conspiracy to defraud the United States.
The crimes involved income derived from a business that involve the repair and resell of amusement and gaming-machine components.
The crimes were committed in concert with two admitted attorneys, Bagdis and Klein. Bagdis employed Klein, who also was suspended for three years.
The criminal activity began before the attorney entered law school and continued into his legal career.
The Disciplinary Review Board noted
In respondent’s case, the sentencing judge found significant aggravating factors that led him to impose a harsher custodial sentence on respondent. Specifically, respondent had not assisted the federal authorities in their investigation of Bagdis. Moreover, respondent waited until two weeks before his trial to "come clean." Respondent also engaged in repeated criminal acts with every paycheck that he received, for years on end, while attending law school, during an internship in the Camden County Prosecutor’s office, when serving a judicial clerkship, and, finally, as a newly licensed, practicing attorney...
While both respondent and Klein engaged in criminal activity for more than eight years, we find respondent's actions to be more egregious, because his plan to deceive the government had already taken root and became an integral part of his life as he honed his attorney skills in law school, the internship with a prosecutor's office, and a judicial clerkship.
If an attorney is engaged in criminal activity throughout his entire career, I would think that would logically result in disbarment.
The Pennsylvania Supreme Court ordered a five-year suspension for the misconduct.
The court here agreed with the DRB that the attorney should not get credit for time served since his Pennsylvania suspension.
So far as I can tell, the disciplinary case was predicated solely on the conviction. I would think there must also have been concealment of the unfavorable character information in the admissions process. (Mike Frisch)
Thursday, June 19, 2014
The Wisconsin Supreme Court has revoked the license of an attorney with a record of prior discipline.
The court noted the referee's evaluation of the attorney's credibility
The referee vigorously rejected Attorney Grogan's defenses to the OLR's allegations. The referee variously described Attorney Grogan's defenses as "entirely incredible," "riddled with inconsistency," "baseless," and "advanced without a shred of supporting documentary evidence . . . , and in the face of a mountain of contemporaneous written evidence to the contrary." The referee wrote that one of Attorney Grogan's arguments during the six-day disciplinary hearing "literally destroyed any remaining credibility he possessed." The referee also commented that Attorney Grogan's noncooperation with the disciplinary process rose "to a level never before seen by this referee. [Attorney Grogan] has made engaging in basic communication with him a monumental struggle. The jobs of OLR investigators, Court clerks, and even this referee were needlessly magnified by his avoidance behavior."
As mentioned above, the referee ultimately recommended the revocation of Attorney Grogan's law license. The referee wrote that "[w]hile it is almost unfathomable to think that an attorney would risk censure over such trifling amounts as [Attorney Grogan] took in this case, it is the blatant nature of the violations, combined with a long pattern of unremorseful behavior, which tips the scale."
The attorney has been suspended since 2011. (Mike Frisch)
A District of Columbia Hearing Committee has recommended that two attorneys be suspended with proof of fitness for misconduct in a medical malpractice case. The committee proposes an 18-month suspension for one of the attorneys and a two-year suspension for the other.
The committe's analysis of the evidence and violations is generally solid. They find some charges proven by clear and convincing evidence and reject other alleged rule violations.
I do part company with them on their sanctions analysis.
The attorneys undertook the case in an area where they had no expertise and performed in an incompetent manner.
After they were discharged by the clients, they made numerous and extensive false representations to the clients and the court in an attempt to collect an unreasonable fee.
They refused to acknowledge any misconduct.
The hearing committee found that the Rule 3.3 and 8.4(c) violations involved seriously dishonest conduct.
Bar Counsel sought disbarment, a sanction the hearing committee found unwarranted
Bar Counsel has recommended disbarment. The Hearing Committee finds, however, that disbarment in this case would be out of line with the sanctions imposed in prior cases. Despite the seriousness of Respondents’ dishonest conduct, the Hearing Committee does not find that their conduct rises to the level of “flagrant” dishonesty.
Here's the rub.
One of the two attorneys has already been disbarred once (in 1984) and had secured reinstatement in 1994. Since his reinstatement, he was publicly censured by the Court of Appeals and placed on probation for post-reinstatement ethical violations.
Apparently, the hearing committee did not consider the fact that the attorney has already been disbarred as a significantly aggravating factor. To put it mildly, I think that fact is highly relevant to the disposition of this matter.
If you've been disbarred once and engage in serious dishonest conduct after being reinstated, you get disbarred again. And reinstatement should only be granted after careful and mature deliberation.
There is another interesting aspect to the case.
Bar Counsel charged that the formerly-disbarred attorney violated probation by failing to tell clients that he was on disciplinary probation. The hearing committee rejected those charges, finding that the probation order did not clearly require him to do so.
Here's the provision
Respondent shall promptly inform his clients that he has been placed on probation for failing to deposit client funds in an escrow account.
The clients retained the attorney after that condition was imposed. The hearing committee interprets the provision as requiring that he tell his present clients of the probation as of the date of the court's order but not future clients like the ones here.
I don't expect that interpretation to be upheld.
The case is In re Bettis (the once-disbarred) and McClure and can be accessed at this link. (Mike Frisch)
Wednesday, June 18, 2014
A public defender who accepted fees for representing non- qualified clients was suspended for 18 months by the South Carolina Supreme Court.
Respondent was employed as a full-time attorney with the Tenth Circuit Public Defender's Office. During her employment, respondent represented clients who were not financially qualified to receive a public defender. In addition, she accepted funds from some of the non-qualified clients whom she represented.
Respondent was arrested and charged with Misconduct in Office by a public official. She resigned from the Tenth Circuit Public Defender's Office on August 22, 2011. The Court placed respondent on interim suspension on August 24, 2011. Id.
On January 16, 2014, respondent pled guilty to Misconduct in Office by a public official. She was ordered to pay a $100.00 fine and various court costs. On the same day, respondent paid in full the fine and all court costs.
The sanction is effective as of the date of the interim suspension. (Mike Frisch)
The Ohio Supreme Court has imposed a stayed two year suspension of an attorney primarily for defects in his contingent fee agreements with multiple clients.
The agreements mentioned that an attorney named Freeman would participate in the matter but
The contingent-fee contracts failed to disclose that Freeman was not a member of Schiff’s firm and did not disclose Schiff’s intent to refer the case to an attorney (Freeman) outside of Schiff’s law firm. The contracts also did not disclose that the fees would be divided between Schiff and Freeman, nor did they identify how the fees would be divided. Accordingly, in each instance the client was not afforded an opportunity to give written consent to the division of fees between Schiff and Freeman or to the manner in which the fees would be divided.
The attorney had reported Freeman to the FBI and to disciplinary authorities.
Freeman was ultimately and permantly disbarred for other misconduct. The court found over 50 ethical violations after he defaulted on the charges. (Mike Frisch)
The Pennsylvania Supreme Court imposed a one-year suspension on consent of a magistratial district judge who dimissed three of her own parking tickets.
The tickets were issued for illegal parking in front of her own residence. The tickets were dismissed by the judge going into the computer system.
The conduct led to a misdemeanor conviction for tampering with public records.
Tuesday, June 17, 2014
An attorney who did not practice law by rather served as an investment advisor was disbarred by the New York Appellate Division for the First Judicial Department
Respondent does not practice law, but operates a tax preparation and consulting business in Florida. Buono, a retired government employee, and her husband sought financial advice from respondent, whom they had used as a tax preparer and financial adviser for the previous five years. Respondent advised Buono to invest in a hedge fund he had formed and managed, Green Oak Hedge Fund, Ltd. (Green Oak), assuring her that it was conservative and safe, and employed a trading strategy that was guaranteed not to lose money. However, according to Green Oak's offering materials and its limited liability partnership agreement, which were never provided to Buono, the fund utilized an options trading strategy and involved a high degree of risk, including the possibility that investors could lose part or all of their investment.
The attorney made numerous misrepresentations and Buono lost her investment
Although respondent has no prior disciplinary history, his misconduct was intentional and involved repeated, material misrepresentations to Buono and she lost most of her savings. There also is significant evidence of aggravation, namely that respondent testified falsely at his deposition before the Committee, that he engaged in similar misconduct with respect to other Florida investors and has not satisfied the two judgments they obtained against him, and he improperly transferred the funds of a deceased tax client into a joint brokerage account.
But no order of restitution
As to the Hearing's Panel additional recommendation that respondent's reinstatement be conditioned upon his making full restitution to Buono with interest, this Court cannot issue an order directing restitution pursuant to Judiciary Law § 90(6-a)(a). Respondent's fraudulent solicitation of investment funds from Buono occurred in his role as a financial adviser, not in connection with the practice of law as contemplated by the statute.
The Rhode Island Supreme Court has held that a former state Bar Association President who resigned while under disciplinary investigation must take and passthe MPRE as a condition of reinstatement
Monday, June 16, 2014
The Oklahoma Supreme Court has ordered the interim suspension of an attorney who is facing criminal charges.
KOKH Fox 25 reported on the criminal allegations
An Oklahoma City attorney is facing prison time after being arrested inside the Oklahoma County jail. The Sheriff's office says the investigation began a week ago when a female inmate told deputies the man she thought was her attorney was engaging in sexual acts during visitations.
Deputies arrested Frank Kirk, 70, on Monday after setting up a sting that caught him on audio tape with the inmate. Investigators say the inmate originally contacted Kirk in January about representing her, but it turns out he never filed to be her attorney of record.
"Kirk told the victim that since she didn't have the cash to pay for his services she could make it up to him by performing sexual acts instead," said Sheriff John Whetsel.
Sheriff Whetsel said the investigation revealed the Kirk only pretended to represent the woman who was in jail on drug charges. She discovered the ruse when the public defender's office contacted her about her case. That's when the woman talked to deputies and agreed to assist in the investigation.
Investigators say the woman met with Kirk inside the jail and he is heard on audio tape making advances towards her. The sheriff's office says the woman was told to use the phrase "my pants are too tight" to signal deputies to enter the room. "During his visit, Kirk furnished her with lubricating jelly and a sex toy and as this began our investigators opened the door and arrested Frank Kirk immediately."
According to court documents the female inmate told investigators that Kirk coerced her into performing sexual acts while he watched at least four times.
Deputies found a cell phone with Kirk after his arrest. Bringing a cell phone into the jail is a felony. Kirk is now facing charges of possession of contraband and multiple counts of offering to engage in an act of lewdness.
"The sex toys and lubricant and stuff like that I can't imagine in a million years any lawyer would do anything like that and hopefully there's been a misunderstanding but it doesn't seem that way to me," said defense attorney Scott Adams.
The court concluded that there was a sufficient basis to suspend the attorney in light of witness intimidation allegations
Complainant alleges Respondent has filed a formal entry of appearance in several client cases pending in Logan, Oklahoma, and Tulsa Counties, primarily in criminal and family law matters. Because it is alleged that Respondent used his law license to gain privileged access to an inmate by representing to be her lawyer to commit lewd acts, and that he again used his law license to gain privileged access to another inmate in order to confront and intimidate J.M. from giving testimony against him, this Court finds Respondent's continued practice poses an immediate threat of substantial and irreparable public harm based on the facts presented.
The Georgia Supreme Court accepted a petition for voluntary discipline of a convicted attorney.
The court previously had rejected a voluntary discipline petition and described the offense
Richbourg recites the facts leading to his conviction, which involved an early morning confrontation in the alleyway separating his residence from his neighbor's, after Richbourg had been drinking alcohol. A truck that appeared suspicious to Richbourg pulled into the alley and as two men (one being Richbourg's neighbor) got out of the truck, Richbourg pointed a gun at them and ordered them to the ground. The neighbor tried to tell Richbourg who he was but Richbourg would not listen. Eventually the other man got up and said Richbourg would just have to shoot him because he was going inside the house, and Richbourg withdrew to his property.
The attorney is indefinitely suspended for three years or until he completes obligations under the criminal sentence, whichever is longer. (Mike Frisch)