Monday, March 16, 2015

A Brief But Unpersuasive Explanation

The District of Columbia Court of Appeals has ordered the interim suspension of a criminal defense attorney based on sanctions imposed by the United States Court of Appeals for the Fourth Circuit.

The attorney had failed to file a brief and joint appendix, explaining

[his] email message stated that he still intended to file the brief on Monday, July 28, 2014, and requested that any order be delayed until then. Allenbaugh also apologized for the constant delays but attributed them to constant changes in sentencing guidelines law and policy and stated that, in retrospect, he should have requested a continuance pending final action by the Sentencing Commission on amendments affecting the appeal. The Clerk responded that it was out of her hands. The brief and appendix were not filed.

The web page of the attorney notes

Mr. Allenbaugh is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002), and is also a recipient of the prestigious Bender Award while serving as Adjunct Professor of Business Ethics and Philosophy at George Washington University.

Prior to entering private practice, Mr. Allenbaugh served as Staff Attorney for the U.S. Sentencing Commission where he was assigned to the Economic Crimes Policy Team and the Terrorism Team. Mr. Allenbaugh has published numerous articles on sentencing policy and criminal justice, and is quoted frequently in the national press. Mr. Allenbaugh’s articles are frequently published on Writ and on CNN.COM.

The Fourth Circuit ordered a suspension for two years and a fine for the attorney's "persistent failure to represent his client and comply with orders of the Court, and his failure to respond to...orders to show cause..." in a criminal appeal.

The court's Standing Panel had struck his appointment as counsel in the case as well as his membership on the CJA panel.

Reciprocal state bar  cases deriving from federal court orders (where procedures tend to be far more summary in nature than state bar discipline matters) can be tricky.

The idea that D.C. would impose a two-year suspension for a single blown brief is beyond ludicrous.

For instance, there is this case summary from the web page of the D.C. Bar in the case of In Re James Robertson  (which I handled for Bar Counsel)

Date of Action: May 15, 1992 

Type of action: Court action

  1. Summary of Action: In this reciprocal matter, the court publicly censured Robertson based on his suspension from practice before the United States Court of Appeals for the Fourth Circuit for neglect of three appellate cases and his violation of the Fourth Circuit's internal operating procedures.

Since the Robertson decision, the court has amended its reciprocal procedures. If the attorney desires to have the sanction reduced, he must respond to the court's show cause order.

If he does so, it is quite likely that a non-suspensory sanction will result even though he will be interim suspended in D.C. unless the court modifies its order.  (Mike Frisch)

March 16, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, March 15, 2015

Wish Fulfilled

An attorney who responded to a disciplinary investigation by stating "So go ahead and disbar me" had that wish granted by the New York Appellate Division for the First Judicial Department.

The Committee commenced a sua sponte investigation into respondent's conduct after receiving a a Cease and Desist order and a copy of an SEC complaint against respondent concerning her role as a transaction manager within an investment banking entity that misled investors in a collateralized debt deal during the housing market crisis. Although respondent eventually made contact with the Disciplinary Committee during the investigation, she made affirmative statements that she would not answer the complaint as directed; she would not participate in its investigation; and she invited the Committee to suspend or disbar her.

The court's previously ordered interim suspension matured into disbarment for failure to respond.

New York has a very effective way of dealing with non-participating attorneys

Disbarment is warranted here because more than six months has elapsed since this Court's June 5, 2014 suspension order and respondent has not appeared nor applied in writing to the Committee or this Court for a hearing or reinstatement. 

(Mike Frisch)

March 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 13, 2015

Conditionally Admitted

Over two impassioned dissents, the Louisiana Supreme Court has conditionally admitted a  bar applicant subject to monitoring for two years. 

The majority order is far less revealing than the dissents.

This dissent from Justice Clark

This Court denied petitioner’s admission to the bar nearly two years ago. Then, the Court found that petitioner had “engaged in a pattern of conduct which is fundamentally inconsistent with a lawyer’s duties of truth and honesty.” This pattern of conduct included petitioner’s omitting a civil lawsuit from bankruptcy pleadings that she signed under penalty of perjury; giving false testimony under oath that all of her assets were listed in the bankruptcy petition; and, after having been granted a discharge in bankruptcy, agreeing to a settlement of the civil suit and then retaining the settlement funds for herself. This conduct constituted bankruptcy fraud and caused significant harm to petitioner’s creditors, as by the time the bankruptcy trustee learned of the settlement, petitioner had spent the money she received and the trustee had to abandon any claim on behalf of her creditors. These circumstances, the Court agreed, supported our conclusion that petitioner lacked the moral fitness for admission to the bar.

The burden of proving reform rests on the petitioner, and merely showing that she is now living and doing those things that she should have done throughout life does not prove rehabilitation. Neither is the passage of time alone sufficient to demonstrate a change in circumstances. Based on the information contained in her present filing, petitioner has made no showing of changed circumstances since this Court’s March 2012 action denying her admission. Her explanation of the bankruptcy matter was considered in the earlier proceeding and thus cannot possibly represent “changed circumstances.” She contends that she obtained religious and financial counseling, but she provides no evidence of such. She also claims to have sought counsel with a bankruptcy attorney to “discover” if restitution was an “option,” but she failed to take this important step until eight years had passed from her discharge in bankruptcy and restitution through the bankruptcy court was no longer available. Finally, petitioner’s attendance at a seven-hour CLE course in 2013 contributes nothing to the consideration of her good moral character...

By admitting petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.

And this from Justice Crichton

Petitioner’s long record of deceitful and dishonest conduct was the basis for the denial of her application for admission to the bar in 2012. She now reapplies for admission – but in my view, she has made a woefully inadequate showing of any circumstances relevant to her good moral character having changed since the prior application was denied. Therefore, I would not consider her application. See In re: Jordan, 00-3006 (La. 12/15/00), 775 So. 2d 1065. Even if I were inclined to consider this new application, the burden of proving rehabilitation rests squarely on petitioner, and she has utterly failed to meet her burden...

On what basis are we to conclude that petitioner is worthy of the trust and confidence clients should expect of their attorneys – or what the public should expect of this noble profession? On the meager showing made by petitioner, I would deny admission...

In Louisiana, the identity of a conditionally admitted attorney apparently is not a matter of public record.

The order does not even give the newly-admitted member's initials. (Mike Frisch)

March 13, 2015 in Bar Discipline & Process | Permalink | Comments (5) | TrackBack (0)

Death Be Disclosed

An attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year by the New York Appellate Division for the Second Judicial Department.

He had lost direct contact with the client and was communicating with his mother, who purportedly had power of attorney.

On April 14, 2008, the eve of trial, an agreement to settle the action for $10,000 was reached between the respondent and [defense counsel] Davis. The respondent does not recall the specific date when he learned of his client's death, but claims that it was after the settlement was reached. On or about April 14, 2008, the respondent sent a power of attorney form to "Marie Rose Andree Conserve," seeking her signature thereon and her authorization to sign Lorquet's name to the settlement check, and to deposit the check into the respondent's escrow account. The power of attorney was faxed to a number with a Florida area code, and to the attention of an individual named "Shirley," a person allegedly unknown to the respondent. Later that day, the respondent received, by return fax from Shirley, a signed power of attorney purportedly executed by Conserve.

Efforts to complete the settlement were extensive and eventually broke down. The attorney held the proceeds.

The court

The Special Referee properly found that there was no evidence to support the respondent's claim that his client authorized him to settle the employment litigation, or that he could do so based upon the alleged power of attorney in favor of Lorquet's mother. Moreover, once the respondent, an experienced litigator, learned of his client's death, he knew that he could not provide the requested settlement documents to Davis. While the respondent had no obligation to seek the appointment of a personal representative for the estate, the Special Referee properly concluded that the respondent had an obligation to inform Davis of Lorquet's death, thereby revealing that the settlement process could not be completed, and that further proceedings in the employment litigation were automatically stayed. We find that, despite Davis's repeated requests that the respondent provide him with the settlement documents, the respondent knowingly chose not to disclose his client's death, deceiving his adversary for more than one year (cf. Matter of Forrest, 265 AD2d 12). Further, the respondent's claimed authority to negotiate the settlement check was based on his transactions with a person unknown to him. He learned from Zarra, a person then unknown to him, that Conserve, a person purporting to be his client's mother, had executed a power of attorney, and he received a power of attorney purportedly signed by Conserve from a person named "Shirley," who also was unknown to the respondent. Based on this evidence, we find that, when the respondent negotiated the settlement check, he misrepresented to the bank that he had the authority to endorse it on behalf of Lorquet.

The attorney was ordered to release the proceeds to the Lawyers' Fund for Client Protection. (Mike Frisch)

March 13, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2015

Smolen Suspended

From the web page of the Illinois Attorney Discipline & Registration Commission comes news of the Illinois Supreme Court 's suspension of DLA Piper's Lee Smolen for falsifying expenses

Our earlier coverage is linked here. 

M.R.27199 - In re: Lee Mark Smolen.    (March 12, 2015)

Disciplinary Commission.

The motion by the Administrator of the Attorney Registration and Disciplinary Commission to approve and confirm the report and recommendation of the Hearing Board is allowed, and respondent Lee Mark Smolen is suspended from the practice of law for one (1) year and until he successfully completes at least twelve (12) months of continuous treatment with Dr. Neal Spina or another psychiatrist acceptable to the Administrator, with the continuous treatment starting from the June 30, 2014 date of the hearing in this matter.

The motion by respondent Lee Mark Smolen to expedite the effective date of discipline is allowed.

Suspension effective immediately.

Respondent Lee Mark Smolen shall reimburse the Client Protection Program Trust Fund for any Client Protection payments arising from his conduct prior to the termination of the period of suspension.

Orders entered by the Court.

(Mike Frisch)

March 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Rounding Up

An attorney who borrowed $99,999.70 from a client has consented to disbarment in South Carolina.

The court

Respondent submits he fully intended to repay Ms. Doe and did not expect to be suspended from the practice of law. Respondent admits the loan constituted a business transaction with a client and he did not comply with the safeguards outlined in Rule 1.8(a) of the Rules of Professional Conduct, Rule 407, SCACR. Specifically, the transaction and its terms were not communicated to Ms. Doe in writing, she was not advised of the desirability of consulting independent legal counsel, and she never signed any document agreeing to the terms of the loan. Respondent made some payments on the loan but ceased making payments in early 2008, around or after the time he was placed on interim suspension by consent.

He owes $93,999.70 of the principal amount and may not seek reinstatement until the client is paid in full.

Why not add 30 cents to the loan and make it an even $100,000? (Mike Frisch)

March 12, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

What's The Hurry?

In an unusual summary order, the District of Columbia Court of Appeals imposed a six-month suspension of an attorney for negligent misappropriation.

The per curiam order in full

The Board on Professional Responsibility concluded that respondent negligently misappropriated funds and recommends that the respondent be suspended from the practice of law in the District of Columbia for six months. Neither respondent nor Bar Counsel has excepted to that conclusion and recommendation. We therefore accept the Board’s recommendation. D.C. Bar R. 11, § 9 (h)(2). Accordingly, it is ORDERED that respondent Sherri Wyatt is suspended from the practice of law for a period of six months. For purposes of reinstatement, respondent's suspension will be deemed to run from the date respondent files an affidavit in compliance with D.C. Bar R. XI, § 14 (g).

Two points.

First, the court has rarely resolved bar discipline uncontested cases without any written opinion. It sometimes will issue a short opinion appending the BPR report in uncontested matters.

I am in favor of anything that moves cases to a swifter conclusion.

That plays into the second point. The Bar Docket Number of the case is 292-05.

That means it took the disciplinary system a full decade to resolve a case involving a single negligent misappropriation. 

Indeed, this case might lend itself to a study of how and why interminable delay is a feature of D.C. bar discipline rather than a bug.

That is opinion worthy. (Mike Frisch)

March 12, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 11, 2015

Permanent Disbarment Proposed for Convicted Former Congressman

Former Congressman William Jefferson deserves permanent disbarment, according to a recent report by the Louisiana Attorney Disciplinary Board.

The board quoted the hearing committee report

The Committee, after due consideration and review of the appropriate rules and jurisprudence, concludes that disbarment is the necessary sanction in this case. The question then presented is whether or not the upward deviation to permanent disbarment is also the appropriate sanction. Of particular importance in this determination is the application of Guideline 7 of Appendix E of Rule XIX. That guideline provides specifically that malfeasance in office which results in a felony conviction, and which involves fraud, warrants the upward deviation to permanent disbarment. It seems rather obvious that Respondent's activities leading to his multiple convictions, despite his pleas in the defense of the criminal complaints which assert otherwise, his activities were indeed carried out from or in his position as a United States Congressman. The Committee feels that permanent disbarment is the appropriate sanction.

The board agreed. (Mike Frisch)

March 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Communications with Juror Draws Rebuke

A public censure is the appropriate sanction for harassing conduct toward a jury foreperson who also was an attorney, according to a decision of the New York Appellate Division for the Second Judicial Department.

As you read the timeline from the mid-2008 trial to the offending April 2012 email, you get a strong sense of an attorney experiencing difficulty letting go of a loss.

In or about June 2008, the respondent represented Patricia D. Hartman, the plaintiff in a negligence action entitled Hartman v City of New York that was commenced in the Supreme Court, New York County, under Index No. 113683. Lauren Curry was the foreperson of the jury at the trial in the Hartman action. At or about that time, Ms. Curry was a first-year associate with the law firm of Debevoise & Plimpton.

On or about June 30, 2008, the jury returned a unanimous verdict in favor of the defendant in the Hartman action. At or about that time, the respondent spoke to Ms. Curry in an "unpleasant manner." He stated to Ms. Curry, in sum and substance, that "the verdict doesn't make any sense," and asked Ms. Curry, in sum and substance, how she arrived at the decision to find for the defendant.

Following the return of the verdict in the Hartman action, the respondent "had a hunch" that Ms. Curry "lied" during the voir dire of the jury panel. The respondent also believed that Ms. Curry had improperly influenced the jury in its deliberations.

On or about July 30, 2008, the respondent conducted an Internet search of Ms. Curry. At or about that time, the respondent also contacted Ms. Curry's employer, Debevoise & Plimpton, to investigate her background.

In or about April 2012, the respondent continued to believe that Ms. Curry had made misleading statements during the voir dire of the jury panel in the Hartman action, and that she had improperly influenced the jury in its deliberations. At or about that time, the respondent conducted a further Internet search of Ms. Curry. On or about April 9, 2012, the respondent sent Ms. Curry the following e-mail:

"From: Panettalaw@aol.com

Sent: Monday, April 09, 2012, 4:07 p.m.

To: Curry, Lauren E.

"SUBJECT: ALL THESE YEARS LATER I WILL NEVER FORGET LAUREN THE LIAR

"HARTMAN v NYC

"Lauren,

"After numerous multi-million dollar verdicts and success beyond anything you will ever attain in your lifetime, I will never forget you: the bloated Jury [Foreman] that I couldn't get rid of and that misled and hijacked my jury. You lied, said you had no involvement in defense—no biases. It was all bullshit. You deprived a very nice lady, [Patty] Hartman, from recovering in a smoking gun liability case. You either had no idea of what the concept of probable cause meant or you misled the jurors because you were defense oriented. You rooted for the underdog, a totally incompetent corporate counsel, outgunned and stupid. I will never forget the high-fives after the trial you tanked[,] between you and a clueless [corporation] counsel. "I feel attacked." Well you should get attacked you A-hole. Good Luck in Hell.

"Massimo & Panetta, PC

Frank C. Panetta, Esq."

The court

In determining an appropriate measure of discipline to impose, the Court has considered the isolated nature of the respondent's conduct, the stressors in the respondent's personal life about which he testified, the favorable testimony of the respondent's character witnesses, and the respondent's expressions of regret and remorse. However, the respondent's email to Ms. Curry was designed to harass her, and his conduct adversely reflects on his fitness as a lawyer. Under the totality of the circumstances, the respondent is publicly censured for his professional misconduct.

(Mike Frisch)

March 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failure To Stop Employee Thefts Lead To Conviction And Disbarment

A Virginia attorney agreed to license revocation in the wake of a federal criminal conviction.

This press release from the United States Attorney's Office for the Western District of Virginia

Joseph W. Rasnic, age 62, of Jonesville, Virginia, waived his right to be indicted and pled guilty this afternoon to a one count Information charging him with misprision of felony.

“Mr. Rasnic failed to protect the assets of an elderly woman for whom he had been appointed conservator of accounts and instead protected the criminal activity of his assistant,” Acting United States Attorney Anthony P. Giorno said today. “This is certainly a sad day for everyone involved in this case, including Mr. Rasnic and his family. Nevertheless, we will vigorously prosecute attorneys and others who fail to ensure that money entrusted to them is protected.”

According to evidence presented by Assistant United States Attorney Randy Ramseyer, Rasnic operated a law office in Jonesville, Virginia, where Mandie Marie Bishop worked as his secretary and assistant. Rasnic admitted today he became aware Bishop was committing bank fraud by forging signatures to facilitate her theft of money from various bank accounts held by an elderly woman for whom Rasnic had been appointed conservator of accounts. Bishop obtained funds by forging Rasnic’s signature on checks.

Rasnic admitted after becoming aware of Bishop’s thefts he failed to remove her access to the accounts, which allowed her to continue stealing from the victim. In addition, Rasnic withheld information from law enforcement about Bishop’s behavior and actively sought to hide the extent of her criminal activity.

When questioned by agents of the United States Secret Service, Rasnic failed to disclose his knowledge of the full extent of Bishop’s criminal activity and lied about the nature of his personal relationship with Bishop.

In July 2014, Rasnic resigned and was removed as the conservator of the victim’s accounts. Between May 2013 and August 2014, Rasnic paid back $104,990 into the victim’s accounts. As part of the plea agreement, Rasnic was required to pay back all of the money taken by Bishop as well as his guardian and conservator fees and unnecessary expenses caused by the mismanagement of the victim’s accounts. The total amount required to be repaid, including the amount already paid, was $183,726. Rasnic submitted the remaining $78,736 today. Accordingly, the victim will receive full restitution.

Rasnic was released on a $10,000 unsecured bond. At sentencing, scheduled for May 28, 2015, he faces a maximum possible penalty of up to three years in prison and a fine of up to $250,000. Mandie Marie Bishop previously pled guilty to bank fraud charges and, in December 2014, was sentenced to 24 months of federal incarceration. There is no parole in the federal system.

(Mike Frisch) 

March 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 10, 2015

Costs Not Imposed Where Attorney Admits Charges

An agreed upon 90 day suspension of an attorney was approved by the Wisconsin Supreme Court.

One count

The first client matter detailed in the complaint and stipulation involved Attorney Carson's representation of N.S.  In or around April of 2010, N.S. retained Attorney Carson to represent her in two operating while intoxicated cases and a forthcoming felony drug possession case.  Prior to commencement of the lawyer-client relationship, no consensual sexual relationship existed between N.S. and Attorney Carson.

N.S.'s initial court appearance in the drug possession case occurred in August of 2010.  N.S. and Attorney Carson both attended the court appearance.  The court set a signature bail bond which provided that N.S. was not to possess or consume any alcohol or drugs. The drug possession case was concluded in late May of 2011.  The terms of the August 2010 bail bond remained in effect.

In April of 2011, Attorney Carson and N.S. engaged in sexual relations on two occasions. 

The remaining counts of client-related misconduct were more of the neglect and frivolous litigation variety.

No costs were imposed because the attorney put up no resistance to the charges. (Mike Frisch)

March 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Call Him Sir

The North Carolina State Bar has filed a complaint alleging serious misconduct against an attorney admitted in 2009..

The accused attorney is named Sir-Christopher J. Anderson.

the charges involve, among other things, misuse of entrusted funds and false statements in the ensuing disciplinary investigation. (Mike Frisch)

March 10, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Did Wisconsin Bar Counsel Overprosecute An Attorney?

A five-month suspension has been ordered by the Wisconsin Supreme Court for client-related misconduct in several matters.

One in particular may be of interest

On June 13, 2011, Attorney McClure sent an electronic response via a "legalmatch" website to M.K., J.K.'s mother, saying that Attorney McClure was a respected former prosecutor with 20 years of private practice criminal defense experience and that Attorney McClure could help J.K.  Attorney McClure told M.K. that he offered "a free consultation, convenient evening and weekend appointments and a simple up front flat fee."  Attorney McClure went on to tell M.K., "The total fee that I would charge for this case is $2,500, pending more information from you.  The entire fee payment is due when I take your case.  Standard flat fee for domestic violence and felony child abuse charge."

On June 16, 2011, M.K. hired Attorney McClure to represent her son and paid Attorney McClure a flat fee of $2,500, which Attorney McClure deposited directly into his business account.  There is no documentary evidence of a written fee agreement between Attorney McClure and M.K. and/or J.K.  J.K. obtained successor counsel, whose appearance was entered on September 8, 2011.

There were violations involving another client solicited through "legalmatch."

After finding multiple violation, the referee made this unusual observation

But something is unusual.  Why are there so many separate Counts charged here?  It appears that Complainant decided to include in its Complaint every possible wrong it could find.  While that is its right, it still causes the Referee to wonder why this happened in a case where the attorney of over 33 years here in Wisconsin had never had any prior discipline and no client or medical provider lost any funds and OLR knew of the personal hardships which impacted that attorney during the period of misconduct.  OLR has not challenged Respondent's assertion of him having many, many serious personal issues affecting him during the time period of the misconduct.  It appears to the referee from the case record that the reason for Complainant bringing so many Counts was/is to create, for the Sanction portion of the proceeding, an impression that a great wrong has occurred because of the number of findings of misconduct and, therefore, a major and significant penalty should be imposed.

The danger with that approach is that the prosecutor then is forever encouraged to overcharge in cases where there is clear wrong-doing on one or a few Counts in order to argue for and obtain the imposition of ever more severe sanctions.  Here the Respondent acknowledged his wrongdoing as can be seen by the stipulation that was received into the case record.  But when all is said and done the Respondent still is seen to have committed acts of misconduct in the areas of his Trust Account, his fee agreement/communication document and dishonesty.  Saying the foregoing is in no way an effort to diminish the misconduct that occurred.  But did Respondent's conduct warrant a complaint with 21 separate Counts?  A schoolyard metaphor would be that piling on was occurring by youngsters during the recess.

. . . .

In this case it appears that the prosecutor has filed an unreasonable and excessive number of Counts, not because it could meet its burden, but in order to coerce and unfairly impact that portion of the proceedings that addresses sanctions.  The referee doesn't know what should be the exact number of Counts in this case, but 21 would appear clearly excessive and intended to influence the sanctions that should be imposed. 

Respondent is a very good, but not a perfect, man and attorney.  On balance in his 33-plus years as a lawyer he has labored hard and brought great credit to the legal profession.  . . .  That said, however, it is also clear that he has violated . . . the Supreme Court Rules that regulate all attorneys in this State.  The public must be protected from misconduct by an attorney that causes resources to be converted and diminishes respect for the rule of law.  While respondent's misconduct was real and over a substantial period of time, it is mitigated by his very positive and exemplary 33 year career as a practicing lawyer, his actions taken to correct the consequences of his misconduct, and by the great number of personal struggles that confronted and motivated him as he lost his moral compass during the very period when the misconduct occurred.  . . .  As a 59 year old man with no prior lawyer misconduct, he is seeking an opportunity to be sanctioned fairly and appropriately.

The court

With respect to the appropriate level of discipline, upon careful review of the matter, we conclude that a five-month suspension is appropriate.  As the referee pointed out, Attorney McClure's law practice now spans more than 34 years and he has no prior disciplinary history.  It is also significant to reiterate that no clients or medical providers lost any funds, and that Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all the facts alleged in the complaint.  We also find it significant that the referee, who was in the best position to judge witness credibility, found Attorney McClure to be genuinely remorseful.  In addition, the OLR does not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue in this case.

(Mike Frisch)

March 10, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Monday, March 9, 2015

Second Chance

An Illinois Hearing Board has recommended the reinstatement of an attorney admitted in 2003 who neglected matters undertaken as a solo practitioner

Petitioner was licensed in 2003 and began his legal  career at the Harrison Law Offices. He then moved to Inman & Fitzgibbons in 2004  where he handled primarily workers' compensation matters. After practicing with  Steven M. Pontikes & Associates from 2005 to 2007, he became a contract  attorney. Petitioner eventually started a solo practice in 2009. (Tr. 48-51;  Adm. Ex. 1).

Petitioner acknowledged it was too early in his  legal career to open a solo practice and that he was "a little over confident."  (Tr. 52). He did not realize how challenging it would be. (Tr. 52). When  Petitioner was handling Ms. Heavey's matter in 2008, his practice was not going  well and he was falling further and further behind. He was also handling a case  for his stepfather, which took up "the vast majority of his time." Petitioner  testified he took his stepfather's matter to trial and "ended up losing." The  result was difficult for him and "made things uncomfortable with the family." It  also pushed him further into "isolation mode." (Tr. 52-54).

After his suspension

Petitioner closed his practice immediately upon his  suspension and was unemployed for approximately ten months. He then took a job  as a driver's assistant with UPS and refereed volleyball games. In January 2012,  Petitioner was employed as an adjunct professor teaching criminal justice at  City Colleges of Chicago. (Tr. 59-62). Shortly after he was hired, he was also  assigned to the strategic planning and budgeting group. (Tr. 68).

Ellen Eason-Montgomery has worked for City Colleges  of Chicago since 1999. She was formerly the coordinator of the criminal justice  program and is now the coordinator of community connections. Ms.  Eason-Montgomery testified she knew Petitioner had a law degree and interviewed  him for a position as an adjunct professor During the interview, she referred to  Petitioner as "Attorney Sharping." According to Ms. Eason-Montgomery, Petitioner  was very forthcoming and immediately advised her that he should not be addressed  as such and explained he had been suspended. Ms. Eason-Montgomery explained that  she then "tabled" that topic and left the issue for the Department Chair and  Human Resources to explore further.

The good news

In this matter, Petitioner has demonstrated his  rehabilitation, good character, and fitness to practice law by clear and  convincing evidence. There is no reason on the record before us to believe that  Petitioner poses a risk of harming the public or committing further misconduct.  We are encouraged by Petitioner's statements that reinstatement would allow him  to assist in the City Colleges legal clinic. It shows he understands his past  mistakes and the pitfalls of opening a solo practice.

During these proceedings, we observed Petitioner to  be a mature, sincere, and dedicated professional. The compelling testimony  provided by his former students shows Petitioner used his period of suspension  as an opportunity to make a positive impact. He has not just made amends for his  misconduct. He has dedicated himself to inspiring his students and serving the  community. Therefore, based on the evidence presented and the lack of objection  by the Administrator, we conclude the Petitioner...has met his burden and recommend that he be re-instated to the  practice of law.

Love a good redemption story. (Mike Frisch)

March 9, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Stayed Suspension For Sending Suspended Lawyer To Court

The New Hampshire Professional Conduct Committee has imposed a six-month suspension stayed for one year in a case involving the following

The matter arose from two cases. The first involved a divorce in which there were allegations of domestic violence (the "Frazel Case"). The parties stipulated that Ms. Ashford pursued remedies on behalf of her client without a sufficient factual basis, in violation of Rule 3.1: Meritorious Claims and Contentions. In addition, the parties stipulated that Ms. Ashford failed to make the Court aware of all of the facts pertinent to the court's consideration of an ex parte request for a protective order, in violation of Rule 3.3(c): Duty of Candor to the Tribunal.

The second case involved Ms. Ashford's use of an office employee to represent her client at a hearing in court (the "Treadwell Case"). The employee, Paul Coddington, was an attorney suspended from the practice of law. The parties stipulated that Ms. Ashford violated Rule 1.4(a)(2): Client Communications, by (1) allowing Mr. Coddington to represent Mr. Treadwell, (2) referring to Mr. Coddington as an "attorney" in correspondence with Mr. Treadwell, and (3) and failing to apprise Mr. Treadwell ofMr. Coddington's status. In addition, the parties stipulated that Attorney Ashford violated Rule 5.3: Responsibilities Regarding Non-lawyer Assistants, by failing to verify Mr. Coddington's status and allowing him act as Mr. Treadwell's counsel.

(Mike Frisch)

March 9, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Sunday, March 8, 2015

First Public Discipline In 50 Years Of Practice Is Suspension

The North Carolina State Bar Disciplinary Hearing Commission  ordered a two-year suspension with the possibility of reinstatement after six months of an attorney who has practiced since 1963, 

The attorney represented the client in a contingent fee matter. He accepted a settlement after the client had fired him and failed to cooperate with the client's newly retained lawyer, 

The settlement was enforced when a judge found that the attorney had apparent authority to enter into it.

The commission found that the client had not unambiguously discharged at the time of the settlement but subsequently did so. The attorney violated the ethical obligations owed to a client upon termination of representation.

Defendant's conduct caused significant harm to his client by impeding his client's ability to direct the course of his case, by impeding his client's ability to freely and promptly obtain new representation when desired, and by delaying his client's ability to promptly resolve the case in an effort to preserve his fee. Defendant elevated his interests above those of his client to the detriment of his client.

On sanction

Under other circumstances, the misconduct in this case would warrant more serious discipline. However, the hearing panel finds and concludes that the unique circumstances surrounding this case justify lesser discipline than would otherwise be appropriate. The factors that particularly warrant lesser discipline include: Defendant has received no public discipline over the course of his 50-year career as an attorney, thereby suggesting Defendant's conduct is truly an aberration of his typical character; Defendant significantly compensated his client for his wrongdoing; Defendant cooperated with the State Bar throughout this proceeding; Defendant has accepted personal responsibility for his actions; Defendant acknowledges the wrongfulness and seriousness of his misconduct; and Defendant is genuinely remorseful.

(Mike Frisch)

March 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2015

A Histrionic Man Recovers And Is Granted Probation

The Kansas Supreme Court has ordered probation for three years of an attorney

The respondent represented an active military service member in two cases: a protection from abuse action and a divorce action. Debra Snider represented the wife in the two cases. "

In January, 2013, outside a courtroom in the Leavenworth County District Courthouse, the respondent yelled at Ms. Snider. The respondent then explained that he was not upset with Ms. Snider, but was angry at another lawyer in a different case. The respondent explained to Ms. Snider that the moral of the story was 'don't fuck with me.' "

Things just went downhill from there.

After a hearing

During the conversation, Ms. Snider 'rolled her eyes' at something the respondent said. The respondent became angry and called Ms. Snider a liar. The respondent stated that there was only one other lawyer in Leavenworth County that was more dishonest than Ms. Snider. "

The respondent told Ms. Snider that she was nothing but a histrionic woman. During the conversation, the respondent raised his voice, he was very close to Ms. Snider, and he was jabbing at her with his finger. The respondent called Ms. Snider a 'newbie' as she has not been practicing very long in the Leavenworth area. "

Ms. Snider feared that the respondent might attack her. Judge Wiley's administrative assistant also feared that the respondent might attack Ms. Snider. As the incident progressed, the respondent leaned very close to Ms. Snider and stated, 'why don't you just grow a pair and punch me.' Ms. Snider told the respondent that he should consider self-reporting his behavior to the disciplinary administrator.

There were other issues in other matters

 On one occasion, after Judge Wiley announced a decision from the bench which was adverse to the respondent's client, the respondent followed the judge to his chambers and stated, 'It's a good thing that you are still wearing that robe.' When Judge Wiley asked the respondent what he meant by that the respondent said, 'Why don't you take it off and step out here and I'll show you?' The respondent's tone was hostile and angry and Judge Wiley perceived these words as a threat. "

On another occasion, the respondent confronted Clinton Lee, an attorney, in front of Judge Wiley's administrative assistant's desk. The respondent and Mr. Lee had a heated exchange about a case. The exchange ended when the respondent threatened to 'kick Mr. Lee's ass.' Judge Wiley's administrative assistant was frightened for her safety and the safety of Mr. Lee. "

At a pre-trial conference, the respondent told opposing counsel to 'go jump in a lake.' "

After receiving an adverse ruling in court, the respondent made the following statement to the judge, 'You are the poster child for judicial elections.' The statement was made at a time when there was a movement to alter the method by which judges are chosen in Leavenworth County."

This client communication did not comport with applicable standards of behavior

...K.B. called the respondent on the telephone. K.B. was upset that he was just finding out about the hearing scheduled for January 3, 2013. During the telephone conversation, the respondent 'went off' on K.B. The respondent told K.B. that K.B. would do what the respondent told him to do. The respondent called K.B. a 'son-of-a-bitch' and a 'motherfucker.' K.B. hung up on the respondent.

The underlying issue

Christy Blanchard, Ph.D., evaluated the respondent. She concluded that the respondent suffered from generalized anxiety disorder, depressive disorder not otherwise specified, attention deficit hyperactivity disorder not otherwise specified, and narcissistic personality disorder with obsessive compulsive personality disorder traits.

He sought inpatient treatment and has worked hard at addressing his behavior issues.

From a treating therapist

'Mr. Clothier is an example of how much difference a focused, intensive treatment program followed by a personalized aftercare plan can make in the life of a professional who is highly intelligent, motivated, and cooperative with his treaters. 'In the last 15 months, the "night and day" difference in his appearance, demeanor, and behavior is striking. He now listens. He accepts responsibility. He acknowledges risk. He is keen to observe the impact his behavior is having on others. Even his visage and mannerisms have changed, as he has become softer, more emotionally aware, more kindly, more empathic. Gone are the characteristic expressions of defiance, suspicion, dismissiveness, and accusatory anger. 'Mr. Clothier is a treatment success story, and the chances of his relapsing into behaviors like those that got him into difficulty appear to be minimal. With his aftercare supports in place, I believe he is fit to engage in the fulltime practice of law.'

The court surveyed the various incidents and efforts to deal with the problem

 In this case, the respondent developed a workable, substantial, and detailed plan of probation. The respondent put the proposed plan of probation into effect well in advance of the panel's hearing and has complied with its terms and conditions ever since. Further, the hearing panel concluded that the misconduct can be corrected by the proposed probation and that it is in the best interests of the legal profession and the citizens of Kansas to place the respondent on probation subject to the plan's strict terms and conditions. Finally, the Disciplinary Administrator, at oral argument before this court, recognized the extraordinary efforts made by the respondent in his recovery and fulfilling the requirements of probation by submitting a plan that provides for considerably more and stricter conditions than is required.

(Mike Frisch)

March 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Iowa Attorney Suspended For Preying On Female Clients

The Iowa Supreme Court has imposed a 30-month suspension of an attorney who the court described as follows

Moothart generally has a reputation in the Ames area as a very good defense and family-law attorney. He has developed forms and methods of practice that are used by other attorneys and has been a mentor to new attorneys. He has served as president and as a member of the board of directors of the Center for Creative Justice in Ames.

The problem was not incompetence but lay elsewhere

the Board filed a five-count complaint against Moothart. The complaint alleged Moothart engaged in sexual harassment in the practice of law with each of the five women in violation of Iowa Rule of Professional Conduct 32:8.4(g). In addition, for Jane Doe #2 and Jane Doe #3, the Board alleged Moothart engaged in sexual relations with a client, in violation of Iowa Rule of Professional Conduct 32:1.8(j). Lastly, with respect to Jane Doe #2, the Board additionally alleged a conflict of interest in violation of Iowa Rule of Professional Conduct 32:1.7(a)(2). 

The board found the misconduct and rejected the attorney's narrow view of what behavior amounted to sexual harassment.

One client was a college student charged with DUI. She met with the attorney the evening she completed her probation

As the evening progressed, the discussion changed to topics of a sexual nature. At some point, Moothart asked Jane Doe #1 to come around to his side of the table and show him her breasts. Although exactly how this occurred is somewhat disputed, it is undisputed that following Moothart’s request, Jane Doe #1’s breasts were fully exposed to Moothart. Jane Doe #1 was “extremely uncomfortable” when Moothart looked at her breasts. Shortly thereafter Moothart and Jane Doe #1 moved to a dark room where there was a couch. They sat on the couch in a sexually provocative manner.

Jane Doe #1 told her father, who took exception.

 He got another client (Jane Doe#2) in a similar situation.

With a third vulnerable client

During a subsequent meeting, Moothart complimented her appearance and asked her to “flash him.” In response, Jane Doe #3 showed Moothart her breasts, which generated a crude sexual compliment from Moothart. Jane Doe #3 was uncomfortable with his requests; however, she complied because, as she stated, “Well, he was my lawyer. I mean, and I was in a pretty tough situation. Going to lose my kids.”

In later attorney–client sessions, Moothart made additional crude sexual comments to Jane Doe #3.

They later engaged in oral sex.

 Jane Doe #5 was both a client and an employee

On another occasion while at work, Moothart asked Jane Doe #5 if she knew what a particular sex toy was. After responding she did not, Jane Doe #5 testified that he pulled up a picture on his computer and asked if he should order one so they could use it while having sex. She testified this made her “extremely uncomfortable.”

During a Saturday spent putting together new office furniture, Jane Doe #5 was sitting at her desk and Moothart was on the ground connecting wires. He looked up her skirt and commented on her underwear. Throughout Jane Doe #5’s employment, Moothart would regularly make comments about female clients’ breasts. She also testified that Moothart kept alcohol in the office and would offer it to certain clients.

On December 30, 2006, Jane Doe #5 met a client after hours to celebrate the client’s case being over. While out together, Jane Doe #5 recalled being informed by the client of a highly inappropriate proposal of a sexual nature from Moothart. Jane Doe #5 claimed that this was the final straw and quit her job a few days later, in early January 2007.

The court observed

We note it is one thing to make allegations or claims and another to provide evidence to meet the somewhat heightened burden of proof in an attorney disciplinary case. While we recognize that we live in an age in which there is often a rush to judgment on controversial questions, episodes such as the McMartin child abuse case and the Duke Lacrosse debacle show the fallacy of assuming guilt when sexual misconduct is alleged. On the other hand, we refuse to cast our eyes aside because of the uncomfortable nature of the allegations in cases concerning charges of sexual misconduct involving lawyers. It is our duty in this case, as it is in every case, to carefully sift through the evidence, examine it with a critical eye, and reach a fair and impartial result. We base our judgment solely on the facts of the case and the applicable law.

On sanction

The nature and extent of these ethical violations is very disturbing. Although we credit Moothart for his lack of prior disciplinary record, his voluntary work in connection with his daughter’s school and extracurricular activities, his contributions to the local bar and legal organizations, and his general reputation in the Ames legal community, we are alarmed by the nature and pattern of his ethical violations. All five women sought Moothart’s help with matters of personal importance. Preying upon their vulnerability, Moothart manipulated each woman for his own sexual gratification. We therefore think a lengthy suspension is warranted to provide adequate deterrence and to protect future potential clients and the reputation of the bar, particularly in light of the seriousness of the offenses.

The ABA Journal had this coverage from 2011. (Mike Frisch)

March 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Something To Ponder

The North Carolina State Bar has imposed a censure of an attorney who violated the duty of confidentiality.

From the order

Without either implied or express consent, you revealed the names of a child's adoptive parents to the child's biological mother and the child's former foster mother. This release of information constitutes a misdemeanor under NCGS § 48-10-105 that reflects on your trustworthiness as an attorney. You failed in your response to this grievance to recognize the real or potential harm of your conduct on the child and his adoptive family.

The censure is phrased in this manner

The Grievance Committee trusts that you will ponder this censure, recognize the error that you have made, and that you will never again allow yourself to depart from adherence to the high ethical standards of the legal profession. This censure should serve as a strong reminder and  inducement for you to weigh carefully in the future your responsibility to the public, your clients,your fellow attorneys and the courts, to the end that you demean yourself as a respected member of the legal profession whose conduct may be relied upon without question.

(Mike Frisch)

March 6, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2015

Easier To Pay The Late Fee

A reprimand was imposed by the North Carolina State Bar for this misconduct

You failed to timely submit your CLE Annual Report form to the Board of Continuing Legal Education, resulting in a late fee assessed against you. You requested a waiver of the late fee, and you were instructed by the State Bar to submit your original signed report form along with your waiver request. You subsequently submitted a form purporting to be the original when it was not. Your submission of a false Annual Report form constituted conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of Rule 8.4(c) of the Rules of Professional Conduct. Further, in response to inquiries from the State Bar, you knowingly mischaracterized the circumstances surrounding your submission of the false Annual Report form. Your known false statements of material fact made in connection with a disciplinary matter violated Rules 8.1 (a) and 8.4(c) of the Rules of Professional Conduct.

The Bar's Grievance Committee was "greatly concerned" about the behavior but noted the attorney inexperience. (Mike Frisch)

March 5, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)