Tuesday, June 6, 2017
The court had issued an order to show cause after the DRB proposed a censure. The attorney then agreed to the suspension.
Respondent was a partner in the law firm of Laddey, Clark and Ryan, LLP (LCR) in Sparta, New Jersey, from 2000 to 2014. In March 2014, CD, a former LCR employee who had worked at the law firm for a brief time in 2005, reported to the law firm that respondent had been stalking and harassing her.
LCR immediately opened an investigation into the allegations, the results of which are contained in an April i0, 2014 confidential report that is not a part of the record. As a result of its investigation, LCR directed respondent to cease all communications with CD and prohibited him from using LCR’s computers and e-mail system to communicate with her. Respondent agreed to these conditions.
LCR’s internal investigation further revealed that respondent also had sexually harassed another law firm employee WB, through a series of e-mails he had sent over the entire calendar year 2011. In those e-mails, respondent used derogatory names, such as "sweet cheeks," when referring to WB. When interviewed by the OAE, WB stated that, although she had not reported respondent’s conduct to anyone, she believed it inappropriate.
On March 21, 2014, prior to the issuance of the LCR report, respondent resigned from the firm and commenced employment with another law firm three days later.
He self-reported to the bar on the threat that LCR would report him if he failed to do so.
According to the stipulation, respondent and CD engaged in a brief consensual sexual relationship in 2005. CD was not employed by LCR at the time. Afterward, the two remained social friends until the end of 2009, when CD indicated to respondent that she no longer wanted him to communicate with her.
When she did so, he reacted
Despite CD’s July 13, 2011 e-mail admonition, respondent continued to send her unwanted and unsolicited correspondence. A number of the e-mails asked CD to go to lunch or for drinks after work. The e-mails were variously offensive, insulting, and demeaning. They were often sexual in nature, containing references to CD as a love doll, sex toy, love kitten, sweetie pie, lover, sweetheart, darling, sweet pea, sweet cheeks, love muffin, sweet meats, love cakes, sweetness, sexy, and sexy girl.
Respondent repeatedly expressed his purported love for CD, even asking her to marry him, but alternately referred to her as "Bitch" or "Asshole." He made offensive remarks about her supposed weight gain, and, in a December 21, 2012 e-mail stated, "All I want for Christmas is to [expletive] your brains out again."
Respondent stipulated that he sent hundreds of e-mails to CD from 2009 to 2015...
Respondent admitted to sexually harassing CD and WB, two female employees of LCR. He demeaned them, particularly CD, in e-mails in which he used misogynist language and extended crude invitations to drink, dine, vacation and engage in sex with him. None of respondent’s overtures, contained in "hundreds" of emails, were welcomed, and in CD’s case, continued for years after a brief 2005 relationship. Respondent continued to send the e-mails even after CD explicitly directed communicating with her. He disregarded his law firm’s contemporaneous directive. in July 2012, that he stop communicating with CD. He disregarded the Sparta police sergeant’s 2014 admonition to cease his communications with her. He even sent CD an e-mail in 2015 from his Sandyston Township municipal e-mail account, which was available to him for official court business as that township’s municipal attorney. Thus, respondent is guilty of sexual harassment...
He also lied in the bar case.
According to the DRB, the sanction should be a censure
Either aspect of respondent’s misconduct -- sexual harassment or lying to ethics authorities -- would merit the imposition of a reprimand. We consider, in aggravation, that respondent engaged in a years-long campaign of harassment toward CD. He recklessly disregarded opportunities to cease his misconduct, and continued after warnings to stop from the victim, the police, and his law firm.
I must say that I am gratified that the court believes that sexual harassment and lying to ethics authorities merits a sanction north of censure. (Mike Frisch)
An attorney has been censured for numerous acts of practice-related misconduct by the New Jersey Supreme Court.
Many of the violations were alcohol-related
From the letter report of the Disciplinary Review Board comes descriptions of the various incidents of misconduct, for example
In a conference room adjacent to the courtroom, he directed profanities to other attorneys gathered there, including "Who the f**k are you," and "Don’t f**k with me." In court before Judge Appleby, and while wearing sunglasses, respondent explained that he had "his lights knocked out" the previous evening. After the judge left the bench, respondent told the prosecutor that he was "going to the press" about his treatment that day, turning to the other attorneys in the courtroom and addressing them in a vulgar manner.
In another matter the misconduct involved a client
On July 5, 2014, while the motion was pending, respondent appeared at the client’s home, uninvited and intoxicated, and asked to be let in to use her bathroom. Once inside, distraught over an unrelated situation with his fiancee, respondent proceeded to cut his wrists, after which he was rushed to the hospital.
respondent appeared before the Honorable James F. Mulvihill, J.S.C. The stipulation reveals neither the client’s name nor the type of case. During that appearance, respondent told the judge, "This man has been in jail, civilly committed, for i0 years for no f**king reason," as well as, "But to give a man i0 years back of his life, f**king pi**es me off.
Given respondent’s obvious efforts to turn his life around after what appears to have been a fairly brief, six-month episode, as well as the lack of any prior discipline in seventeen years at the bar, the Board determined that a censure adequately protects the public. Furthermore, respondent stipulated, and the Board requires, that he submit proof of fitness to practice law by a qualified medical doctor, and proof of attendance in an alcohol cessation program such as Alcoholics Anonymous, for the later of two years or until released from the obligation by the Court.
Monday, June 5, 2017
An order entered today by the Louisiana Supreme Court permanently disbars one of the Danziger Bridge defendants
Respondent was convicted of deprivation of rights under color of law in violation of 18 U.S.C. § 242; conspiracy to obstruct justice in violation of 18 U.S.C. § 371; and obstruction of justice by engaging in misleading conduct in violation of 18 U.S.C. § 1512(b)(3). Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The Office of Disciplinary Counsel (“ODC”) has concurred in respondent’s petition.
Having considered the Petition for Permanent Resignation from the Practice of Law filed by Kenneth Robin Bowen, Louisiana Bar Roll number 29773, and the concurrence thereto filed by the ODC,
IT IS ORDERED that the request of Kenneth Robin Bowen for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.
IT IS FURTHER ORDERED that Kenneth Robin Bowen shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.
The order granting a new trial in the criminal case by the United States Court of Appeals for the Fifth Circuit describes the prosecutorial misconduct that led to that result.
The New York Times reported on the subsequent plea deal.
Note that the order prohibits future practice anywhere, not just in Louisiana. (Mike Frisch)
An 18-month suspension has been imposed by the Arizona Presiding Disciplinary Judge for vehicle-related misconduct in two bankruptcy matters.
...in September 2015, Mr. Guinn filed a bankruptcy for a client dying from terminal cancer who had liens on his vehicles. Mr. Guinn and his daughter appeared at his client’s home and personally drove away the vehicles of the client prior to Mr. Guinn filing the bankruptcy for his him [sic]. The client died in December 2015. In that same month, the lienholder received a notification from a company called Sperro Towing in Indiana, threatening that if the lender failed to pay towing and storage costs of $5,232.85 the client’s vehicles would be sold. When the lienholder arranged to pay those fees, lienholder was told the cars had already been sold.
When confronted by the lienholder with the fact that his daughter and he had personally taken the vehicles, Mr. Guinn was asked why the vehicles had been taken to Indiana. Mr. Guinn responded, “It was convenient.”
In the client bankruptcy matter, the U.S. Trustee moved for Denial of Prior Fees and Request for Disgorgement. In the motion it was stated Mr. Guinn was paid his fee by Fenner & Associates affiliated with Sperro Towing. The Trustee pointed out “the collusive scheme between Mr. Guinn and Mr. Fenner, whereby Mr. Fenner paid Mr. Guinn’s attorney’s fees, in exchange for Mr. Guinn facilitating the transfer of the vehicle to Mr. Fenner.” Mr. Guinn did not respond to the motion and failed to appear for a hearing on the motion. The Court ordered Mr. Guinn to appear.
At the hearing Mr. Guinn revealed he had no written agreement with Fenner explaining how he would receive his fees but he had advised his client to contract with Mr. Fenner and that Mr. Fenner paid Guinn $1,500. The Court ordered Mr. Guinn to list all the bankruptcy cases in which he received payment from Mr. Fenner or his entities. Mr. Guinn admitted he had a relationship with Mr. Fenner in 24 other cases. The Court ordered he disgorge himself of all fees collected through his involvement with Mr. Fenner. Mr. Guinn and the Trustee settled these matters.
In a second bankruptcy matter
Mr. Guinn represented a client in a bankruptcy matter in 2015. The client asked about attorney fees, and Mr. Guinn advised he could participate in his “vehicle surrender program” that would cover his $1,200 attorney fee. The client agreed to participate in the program, and Mr. Guinn arranged for a transfer of the client’s vehicle to Sperro Towing in Indiana. He assured the client he could file for bankruptcy in three weeks.
After the three weeks passed, his client repeatedly attempted to contact Mr. Guinn with no answer for over a month. The lien holder made demands on the client. When Mr. Guinn finally responded to his client, he told him he was filing the bankruptcy and to have the lienholder contact him directly. Mr. Guinn then told the lienholder his client had transferred the car out of state. Mr. Guinn told his client that the action taken was not illegal. When the lienholder told client he could face criminal prosecution under A.R.S. 13-1813, the vehicle was returned to the lienholder without client’s knowledge.
The sanction was imposed by consent.
The Indiana Lawyer had a story last November about litigation involving Sperro Towing. (Mike Frisch)
The Tennessee Board on Professional Responsibility produces a seasonal Board Notes publication that contains a wealth of useful information on matters involving attorney ethics.
The report does an excellent job of providing the public with a sense of the efficiency of the disciplinary system in the Volunteer State. It also provides insight into the sanctions imposed for ethics lapses.
Note below the wide range of misconduct that can draw a censure.
Also note the large number of interim suspensions for great public harm, which is a useful measure of a system that takes misconduct seriously.
Sanctions described in the most recent report include suspension for this conduct
On January 20, 2017, [an attorney] of Bristol, Tennessee, was suspended by the Tennessee Supreme Court from the practice of law. On December 9, 2016, the Tennessee Supreme Court issued a Show Cause Order, pursuant to Tennessee Supreme Court Rule 9, Section 37.4, ordering [the attorney] to show cause as to why her law license should not be suspended based on [her] default on a loan guaranteed or administered by Tennessee Student Assistance Corporation (TSAC). [The attorney] failed to show cause as to why her law license should not be suspended and was suspended by Order of the Supreme Court of Tennessee.
And among the censures
On March 21, 2017, John P. Fortuno of Cleveland, Tennessee, was Publicly Censured by order of the Tennessee Supreme Court. On August 22, 2016, the Board filed a Petition for Discipline against Mr. Fortuno, an assistant public defender, alleging that he committed ethical misconduct by exchanging a series of inappropriate text messages with a client he was appointed to represent creating a potential conflict of interest.
Mr. Fortuno entered into a conditional guilty plea admitting that his actions violated Rules of Professional Conduct 1.7(a)(2) (Conflicts of Interest) and 8.4(a) (Misconduct), and should be Publicly Censured for this violation.
A Public Censure is a rebuke and warning to the attorney, but it does not affect the attorney’s ability to practice law.
Another unusual situation that drew a censure
On February 7, 2017, John R. Hershberger of Memphis, Tennessee, was Publicly Censured by order of the Tennessee Supreme Court.
While representing a party in a case pending before the Tennessee Court of Appeals, Mr. Hershberger went to the home of a judge on the Court of Appeals in order to ask her a question pertaining to the case. The judge was not at home and Mr. Hershberger left without speaking with her. A Hearing Panel found that by attempting to engage in an ex parte communication with the judge, Mr. Hershberger violated Rule of Professional Conduct 8.4(a) (Misconduct) and should be Publicly Censured for this violation.
Mr. Hershberger appealed the decision to the Chancery Court for Shelby County, which affirmed the Hearing Panel’s decision.
The Chancery Court order is linked here.
Public censure for this
On November 14, 2016, James Kirby, an attorney licensed to practice law in Tennessee, received a Public Censure from the Board of Professional Responsibility of the Tennessee Supreme Court.
While acting as Executive Director of the Tennessee District Attorneys General Conference, Mr. Kirby engaged in an act of misconduct in connection with the hiring and supervision of a part time prosecutor pro tem.
By this act, James Kirby has violated Rule of Professional Conduct 8.4(c) (misconduct), and is hereby Publicly Censured for this violation.
On October 14, 2016, Robert Paul Starnes, an attorney licensed to practice law in Tennessee, received a Public Censure from the Board of Professional Responsibility of the Tennessee Supreme Court. Mr. Starnes repeatedly exposed himself to an employee at his law office. In April 2016, Mr. Starnes pleaded no contest to indecent exposure (Class B misdemeanor) for his conduct.
By these acts, Mr. Starnes is in violation of Rule 8.4 (b) (criminal conduct that reflects adversely on fitness to practice) of the Rules of Professional Conduct and is hereby publicly censured for this violation.
Kingsport Times News reported on the case.
When transparency is more than a hollow phrase in attorney regulation, applause follows as night follows day. (Mike Frisch)
A Tennessee attorney has been suspended due to a conviction for the crimes of subornation of aggravated perjury and criminal simulation.
WSMV Franklin reported on the charges
An attorney has been indicted in Williamson County for allegedly filing a fake petition.
Paul Van Burkleo lives in Texas, but in 2013, he found himself in a fight in Williamson County.
“Just after being married to a person for so long, you know somebody’s signature,” he said.
His ex-wife, Denise Van Burkleo, filed a restraining order that would have kept him from seeing their children. But when Paul Van Burkleo saw the paperwork, he said something seemed off.
“You can tell by the slant,” he said. “She writes with a left hand slant. This particular signature was a right hand slant.”
The Channel 4 I-Team obtained notarized oaths bearing the name of Denise Van Burkleo. Both were signed in the officer of her lawyer, Robert A. Doll III.
“If it hadn’t been discovered, I’d be sitting her today without any visitation with my children,” Paul Van Burkleo said.
This summer, a grand jury indicted Doll and his client. Doll is accused of filing the fake oath then “inducing” his client to lie about it on the stand.
Paul Van Burkleo said this is not something an attorney should be doing, even if he wants to win his case.
“That just opens the door for many problems for that attorney,” he said.
Doll has been under scrutiny before. The I-Team found in 2014, he received a public censure from the Board of Professional Responsibility.
Doll was disciplined for issues involving incompetence and diligence. He was also held in contempt.
Channel 4 reached out to Doll on Thursday, but did not hear back by deadline.
Two years later, it is unclear who signed the oath. But according to Paul Van Burkleo, justice will always sift right from wrong.
“You can’t have crooked things happening in the legal system and let people get away with it,” he said.
Judge Mark Fishburn will preside over a hearing in Williamson County Friday. A special judge was appointed after several others recused themselves.
Denise Van Burkleo was charged with aggravated perjury. The I-Team reached out to her and the district attorney, but did not hear back.
Records indicate the notary faces no charges.
Saturday, June 3, 2017
A very interesting oral argument last week before the Maryland Court of Appeals on a petition for reinstatement is linked here.
Most of the time is devoted to the arguments of petitioner's counsel, who makes a persuasive and compelling presentation on behalf of her client.
Bar Counsel consents to reinstatement.
One aspect of the argument involves the petitioner's concession that he should be reinstated subject to monitoring conditions and the court's concerns about that proposal. Bar Counsel acknowledged that Maryland has not previously reinstated a suspended/disbarred attorney with conditions.
A Baltimore County attorney who acknowledged having inadvertently disclosed information that led to a client's murder agreed to an indefinite suspension of his law license, records show.
Larry J. Feldman, an attorney for 17 years, will be suspended from practicing law as of Saturday after agreeing that he violated provisions of the Maryland Lawyer's Rules of Professional Conduct when he told Tavon Davis more than four years ago that prosecutors wanted to speak with his client, Isiah Callaway, in a criminal investigation.
Davis had hired Feldman in late 2010 to represent Callaway, 19, a suspect in a check fraud scheme. Documents related to the license suspension say the attorney did not know that Davis also was a suspect in the fraud scheme until after Callaway's murder.
After Feldman told Davis that federal prosecutors wanted to speak to Callaway, Davis hired a hit man to kill Callaway in East Baltimore.
Feldman told The Baltimore Sun in 2011 that, "In a million years, I never thought anything would lead to Isiah's death."
According to documents from the Attorney Grievance Commission, Callaway and Davis referred to each other as brothers and Callaway had insisted that Davis sit in on one meeting with Feldman.
But in federal criminal proceedings, Davis testified that Feldman joked about having Callaway killed, suggesting that Davis could "send him to Costa Rica or get rid of him the Sicilian way."
Callaway's family alleged in a lawsuit that Feldman had been fully informed of the check fraud scheme and that Davis had told him that he wanted to be insulated from criminal liability. The grievance commission documents show Feldman agreed to a "substantial confidential settlement" in that case.
Feldman's agreement with the commission states that he "wrongly and improperly concluded that he was authorized to speak with Davis" about Callaway's case.
Such sanctions against attorneys in Maryland are rare. The grievance commission receives about 1,900 complaints a year, and in fiscal year 2014 sanctioned 87 attorneys. That includes 26 who were disbarred, down from an all-time high of 47 in fiscal year 2012.
Feldman, who also acknowledged having accepted prostitution services from another client, had not been disciplined previously by the commission. He cooperated with federal investigators and was prepared to testify if needed in the Callaway murder case, and the commission noted that he had provided thousands of hours of free legal work.
Court filings show Davis told a friend that he was the "schmuck of the year" for ordering Callaway's death, realizing the penalty for the original check fraud scheme would have been much less than he faced for having someone killed. Davis was sentenced to 35 years in federal prison in the murder case.
Bruce Byrd, who was convicted of carrying out the shooting, received 40 years in prison. Another conspirator, Frank Marfo, received a life term. Federal authorities said there was no evidence to warrant charging Feldman.
Feldman and his attorney did not return calls seeking comment. A recording at his law office phone number says he is not accepting new clients.
Our earlier coverage (noting civil litigation brought by the deceased client's family) is linked here.
Update: Reinstatement granted today.
Within fifteen ( 15) days of the date of this Order, Petitioner shall enter into a monitor agreement pursuant to Maryland Rules 19-742( e)(2) and 19-752(i)(8), with a monitor acceptable to Bar Counsel, and that the monitor agreement shall remain in effect until further order of this Court...
A convicted attorney has filed a consent to disbarment in Illinois.
On December 3, 2014, Movant was formally charged by way of indictment in the Circuit Court of the 19th Judicial Circuit in Lake County with the offenses of home invasion, aggravated discharge of a firearm, reckless discharge of a firearm, aggravated unlawful use of a weapon and criminal trespass to residence in the matter of People of the State of Illinois v. Raymond Clutts, docket number 14 CF 3091. Count Two of that indictment charged Movant with home invasion, in violation of 720 ILCS 5/19-6(a)(3). Count Three of that indictment charged Movant with aggravated discharge of a firearm, in violation of 720 ILCS 5/24-1.2(a)(2).
On February 23, 2017, Movant entered into a voluntary plea of guilty to an amended Count Two, which charged him with attempt home invasion, in violation of 720 ILCS 5/8-4, and Count Three, aggravated discharge of a firearm. As part of the plea agreement, Movant stipulated that a trier of fact could find Movant guilty of attempt home invasion and aggravated discharge of a firearm, based on testimony from Movant’s daughter and former spouse that the women lived at a home in Hawthorne Woods, and that in the early evening hours of November 7, 2014, while both women were at home, Movant entered their home while armed with a firearm and threatened them with the imminent use of force while inside their home.
Movant further stipulated that if those witnesses were called, they would testify that while in the house he discharged a firearm in the direction of his former spouse.
On February 23, 2017, Judge Victoria Rossetti sentenced Movant to nine years and 11 months in the Illinois Department of Corrections on the amended Count Two, attempt home invasion, and 48 months of felony probation with standard conditions of probation on Count Three, aggravated discharge of a firearm, to be served consecutive to amended Count Two.
The Chicago Tribune covered the criminal case.
The incident leading to the charges against Clutts began when police received a 911 call reporting multiple gunshots fired at his ex-wife's Hawthorn Woods home.
According to authorities, Clutts fired a gun in the home several times when his wife and a child were present.
When police arrived, an officer discharged his weapon but did not strike Clutts, police said, and officers then took him into custody. A gun was recovered at the scene.
The occupants of the house had fled to a neighbor's residence after Clutts began firing the shots, police said. Officials said Clutts was able to enter the home through an unlocked door.
Friday, June 2, 2017
The New Jersey Supreme Court has reprimanded an attorney, adopting the sanction proposed by the Disciplinary Review Board.
The DRB letter notes that the attorney handled a divorce as well as an immigration matter for the client.
On October 23, 2003, [client] Ponti’s Final Judgment of Divorce was entered. Soon thereafter, respondent appeared with Ponti at her citizenship hearing. Her application was denied, however, because she was no longer married to a United States citizen and had not been a lawful permanent resident for at least five years. As a result, Ponti would be required to wait additional time before reapplying for citizenship.
On the day of the hearing, Ponti and respondent met at his office and drove together to the hearing in Newark, New Jersey. Because of the denial of her citizenship application, Ponti was emotionally distraught. After the hearing, Ponti and respondent went to a restaurant in New York. Afterward, they returned to respondent’s office after normal business hours. While they were alone in the office, respondent and Ponti engaged in sexual relations. Although respondent and Ponti disagree on the circumstances under which the initial sexual contact was made, both agree that they had sexual relations on the evening of the hearing.
Respondent admitted that, at a time of emotional turmoil for her, he began a sexual relationship with his client, Ponti. By all accounts, this relationship was consensual. Nonetheless, this conduct violated RPC 1.7(a)(2) because Ponti was emotionally vulnerable at the time. As her counsel, respondent should have exercised better judgment.
between April 26, 2005 and July 18, 2005, Ponti authorized four wire transfers in varying amounts, from her corporate business account, into respondent’s Buffalo Creek Ranch, Inc., checking account. In each instance, within a few days, and, on one occasion, on the same day, respondent repaid the loans by issuing a check either from his Buffalo Creek account or from a personal checking account he held jointly with his wife, and then signed Ponti’s name to the checks and deposited them into her corporate business account.
Respondent failed to provide Ponti with a writing fully disclosing the terms of the loans; failed to advise Ponti, in writing, of the desirability of seeking independent advice regarding the loans and their terms; and failed to obtain Ponti’s written, signed consent for the loans. Hence, he entered into a prohibited business transaction with his client by taking several small loans from her totaling $17,500; a violation of RPC 1.8(a).
The New Jersey law on sex with a client
Although it is not per se unethical for an attorney to enter into a sexual relationship with a client, the relative positions of the parties must be scrutinized to determine whether the relationship was prohibited...
Here, respondent did not engage in a sexual relationship with an appointed client; hence, unlike the attorneys in the above cases, he was not in a superior role vis-a-vis his client. Ponti, however, was in an emotionally vulnerable state in that her citizenship application had been denied, in part, because respondent’s firm made certain mistakes in handling the application in conjunction with her divorce. Thus, his conduct clearly violated RPC 1.7(a)(2).
In mitigation, respondent has expressed remorse for his conduct, which was aberrational. He readily admitted wrongdoing, stipulated to the facts, and consented to discipline. He also promptly repaid all loans he received from Ponti; thus, she incurred no economic injury. Finally, respondent has no history of discipline in thirty-seven years at the bar. On its own, in light of the mitigating factors, the discipline for respondent’s relationship with his client would likely be on the cusp between an admonition and a reprimand. Respondent, however, also entered into an improper business transaction with his client. Therefore, the Board determined that a reprimand was warranted.
The Wisconsin Supreme Court admitted an applicant who had engaged in plagiarism as a law student notwithstanding the adverse conclusion of its Board of Bar Examiners.
The Board's refusal to certify that Mr. Nichols satisfied the character and fitness requirements for admission to the Wisconsin bar was based primarily on Mr. Nichols' academic misconduct during his third year in law school and his failure to disclose certain matters on his bar application. After careful review, we reverse and remand the matter to the Board for further proceedings.
We appreciate the Board's concern regarding this applicant. We appreciate the thorough investigation the Board conducted into Mr. Nichols' background and past conduct. Mr. Nichols' application raised significant questions about his fitness to practice law. The duty to examine an applicant's qualifications for bar admission rests initially on the Board, and this court relies heavily on the Board's investigation and evaluation. In the final analysis, however, this court retains supervisory authority and has the ultimate responsibility for regulating admission to the Wisconsin bar. See In re Bar Admission of Rippl, 2002 WI 15, ¶3, 250 Wis. 2d 519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren, 2003 WI 37, ¶2, 261 Wis. 2d 150, 661 N.W.2d 27.
While we understand the Board's decision, we conclude that the incidents the Board relied upon, while troubling, are sufficiently offset by positive character evidence to warrant our conclusion that Mr. Nichols may be admitted to the practice of law in Wisconsin, albeit with conditions. Accordingly, we reverse.
The applicant had accepted an unpaid internship with the Office of the Lieutenant Governor and
During the fall of 2014, his third year in law school, Mr. Nichols struggled to manage his work, volunteer service, and academic coursework. He began to neglect his academic work, including a Law of Democracy course. The grade for the course was almost solely based on a thirty-page research paper due at the end of the semester. The syllabus for the course stated that plagiarism would result in a failing grade.
Mr. Nichols submitted a final paper. The professor used an anti-plagiarism software program to check student papers. The report revealed that Mr. Nichols' final paper contained extensive language copied verbatim or nearly verbatim from four published law review articles, without citations. The repetition and nature of the matches led the professor to conclude that this could not have been coincidental. Mr. Nichols did not credit, in any form, the four law review articles from which he obtained the passages. The professor concluded that large portions of Mr. Nichols' final paper were plagiarized.
He admitted the misconduct when confronted
As a sanction, Mr. Nichols received a failing grade on the paper and in the course. The UW-Madison Dean of Students' Office also reviewed the matter and imposed an additional sanction, requiring Mr. Nichols to take an on-line course on academic integrity and research methods. Mr. Nichols did so, and passed the exam.
In the spring of 2015, his final year, Mr. Nichols failed his required Professional Responsibility course because he failed to comply with the attendance policy; a student who received more than three unexcused absences would fail the course. Mr. Nichols retook the course and graduated from law school in December 2015.
He then sought admission based on diploma privilege but the Board
The Board serves the critically important role as a gatekeeper to admission to the bar. The Board was right to be deeply concerned by Mr. Nichols' record. Still, as in Jarrett, this court has reviewed this record and has opted to afford this applicant the benefit of the doubt. We conclude that Mr. Nichols can be admitted to the practice of law, subject to the imposition of certain conditions. In reaching this conclusion we are influenced by the fact that employers who work closely with Mr. Nichols speak highly of him as an individual, and of his work ethic. The omissions on his bar application were careless, but the items omitted do not, themselves, reflect poorly on Mr. Nichols' character. We are also influenced by the fact that the professor of the class in which Mr. Nichols committed academic misconduct supports his admission to the bar. The professor noted that Mr. Nichols had been "forthright in acknowledging his errors and accepting responsibility," and that he seems genuinely contrite. The professor noted further that Mr. Nichols "has paid a real price for his actions, with an F on his transcript and his misconduct made the admission process vastly more time consuming, expensive, and stressful."
we direct the Board to certify Mr. Nichols' admission to practice law in Wisconsin. Mr. Nichols' admission to the practice of law in Wisconsin is contingent on his compliance with certain requirements set forth in this decision as well as certain conditions on his license to practice law.
We direct the Office of Lawyer Regulation (OLR) to identify and appoint a practice monitor to serve as a mentor to Mr. Nichols and to supervise and oversee Mr. Nichols' practice of law and related professional activities for a period of two years following the practice monitor's appointment. The practice monitor shall be licensed to practice law in Wisconsin and be located in the region of Mr. Nichols' place of employment or residence.
The Wisconsin Supreme Court imposed a reciprocal six-month suspension based on a sanction imposed by the United States Patent & Trademark Office
We first observe that the USPTO, a federal agency with its own licensing and disciplinary proceedings, is appropriately considered "another jurisdiction" for purposes of our reciprocal discipline rule... Accordingly, we consider the following facts, which are taken from the OLR's complaint and from the certified documents attached to the OLR's complaint relating to the underlying disciplinary proceeding.
The attorney had defaulted on the PTO charges and failed to notify Wisconsin of the ensuing sanction.
Judge Ann Walsh Bradley concurred
I agree with the court's mandate but I write separately to state my disagreement with the court's statement in ¶14 of the opinion which states, "We agree that identical discipline is not an option in this case so a different sanction must be imposed." The United States Patent and Trademark Office (USPTO) excluded Attorney Carl J. Schwedler from practice. The Office of Lawyer Regulation (OLR) has advised this court that "exclusion from practice" before the USPTO effectively means disbarment for five years. Majority op., fn 1.
We could indeed impose identical discipline. We could revoke Attorney Schwedler's license to practice law in Wisconsin under SCR 21.16(1m)(a)...
Rather, in this case we exercise our discretion and opt to impose a lesser sanction in the form of a six-month suspension of Attorney Schwedler's law license. For the reasons set forth, I write separately.
I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this concurrence.
The West Virginia Supreme Court of Appeals has reprimanded a former prosecutor for domestic battery and violating a court order
This lawyer disciplinary proceeding is before the Court upon the written objection of the Office of Disciplinary Counsel (“ODC”) of the Lawyer Disciplinary Board (“LDB”) to the sanctions recommended by the Hearing Panel Subcommittee (“HPS”) of the LDB. The HPS found that Respondent Mark S. Plants violated three provisions of the West Virginia Rules of Professional Conduct and recommended that Mr. Plants be publicly reprimanded and pay the costs of these proceedings. Mr. Plants does not challenge the recommended sanctions.
The ODC asserts that the appropriate sanction in this case is a suspension of Mr. Plants’s license to practice law for three months based upon the seriousness of the violations involving domestic battery and the knowing violation of a court order by this former elected prosecuting attorney. The ODC also urges this Court to address the admissibility of expert testimony offered on the issue of violations of the West Virginia Rules of Professional Conduct.
...we adopt the sanctions recommended by the HPS.
The charges filed by the ODC against Mr. Plants arose out of two incidents that resulted in criminal complaints against him. First, on February 26, 2014, Allison Plants, Mr. Plants’s ex-wife (“Ms. Plants”), reported to the West Virginia State Police that Mr. Plants had injured their son by whipping him with a belt. The next day, Ms. Plants filed a Domestic Violence Petition seeking protection for herself and their two minor children. The magistrate/family court issued a Domestic Violence Emergency Protective Order (“Emergency Protective Order”) on February 27, 2014, concluding that Ms. Plants had proved “the allegations of domestic violence or abuse by clear and convincing evidence of immediate and present danger of abuse.”
...On March 17, 2014, while the Emergency Protective Order was in effect, Ms. Plants reported that in the parking lot at the Fruth Pharmacy in Charleston, West Virginia, Mr. Plants spoke to their two children at her vehicle and then spoke to her. During the hearing before the HPS, Mr. Plants admitted that he spoke with his children but denied that he communicated with Ms. Plants. Mr. Plants further acknowledged that he was aware of the terms of the Emergency Protective Order at the time of this incident. The evidence adduced during the hearing was that as Mr. Plants was exiting Fruth Pharmacy, Ms. Plants entered the same location. After exiting Fruth Pharmacy, Mr. Plants observed his children waving to him from inside Ms. Plants’s car in the parking lot and he walked over to speak with them. After Ms. Plants returned to her car, Mr. Plants walked away. The next day, the State Police filed a criminal complaint in magistrate court charging Mr. Plants with violating the Emergency Protective Order based upon this incident.
The ODC urges this Court to impose a harsher sanction than public reprimand in this lawyer disciplinary matter but takes no other issue with the findings of fact and conclusions of law of the HPS. According to the ODC, Mr. Plants’s conduct warrants a stronger sanction to send a clear message that when an elected prosecuting attorney engages in conduct that results in a conflict of interest and knowingly violates the terms of a court order, this Court will suspend that prosecutor’s license because such conduct violates the public trust in the very official elected to enforce the law. The ODC urges this Court to impose a three-month suspension of Mr. Plants’s law license...
In this case, the HPS found three mitigating factors: (1) Mr. Plants did not have a prior disciplinary record; (2) Mr. Plants had been removed from office as the elected Prosecuting Attorney of Kanawha County; and (3) the magistrate court dismissed the misdemeanor criminal complaints against Mr. Plants. The HPS also found one aggravating factor: Mr. Plants refused to acknowledge his wrongful conduct when he maintained that he did not commit a crime by speaking with his children in violation of the Emergency Protective Order. Taking into account these mitigating and aggravating factors, the HPS recommended that Mr. Plants be publicly reprimanded...
As the final arbiters of the discipline to be imposed in this case, we know we must keep in mind our prior decisions involving public officials generally and prosecuting attorneys specifically and take into account our responsibility to consider not only appropriate punishment on a case-by-case basis, but also our goals of achieving a deterrent effect and the restoration of public confidence in the ethical standards of the legal profession. Given the facts and circumstances of this case, we are not persuaded that suspending Mr. Plants would achieve the goal of holding him to a higher standard as a former prosecutor or would send a stronger message than a public reprimand...
The misdemeanor criminal charges against Mr. Plants were dismissed based upon his full compliance with the requirements of a pre-trial monitoring agreement. He accepted the ruling removing him from office as prosecuting attorney and did not extend those proceedings by filing an appeal. Finally, we note that he had no prior disciplinary record. We agree with the HPS, which observed that “despite the fact that [Mr. Plants] held public office at the time of the incidents in question and, as such, may be held to a higher standard in these proceedings, the sanctions imposed must be justified by the conduct of Respondent, rather than linked to any publicity the matter may have received.” The hearing record is replete with testimony regarding personal and political matters, the discussion of which would not serve our goals for this proceeding. We conclude that given Mr. Plants’s circumstances as a former prosecutor and current sole practitioner, suspension would not serve as a greater punishment to him or deterrent to others than removal from office has already served.
The court held that the issue of admission of expert testimony - the attorney's former counsel opined as a expert that he had violated no ethics rules - was moot.
During the course of discovery, Mr. Plants retained Robert H. Davis, Jr., who had previously served as his legal counsel, as an expert witness on the Rules of Professional Conduct. In an evidentiary deposition, Mr. Davis testified that Mr. Plants’s conduct did not violate the West Virginia Rules of Professional Conduct. The ODC filed a pre-hearing motion in limine to preclude the expert testimony. The HPS denied the motion, concluding that “having reviewed the transcript in its entirety, [the HPS] will give said testimony such weight as the Hearing Panel Subcommittee members determine appropriate when making the recommended disposition to the Supreme Court of Appeals of West Virginia, pursuant to Rule 3.10 of the Rules of Disciplinary Procedure.”
...In this case, while the HPS ruled in a pre-hearing motion that the deposition testimony could be offered into evidence at the disciplinary hearing, the HPS ultimately gave no weight whatsoever to Mr. Davis’s opinions in its report to this Court. Since we have adopted the HPS’s recommended sanction of public reprimand without modification in this proceeding, the HPS’s admission of the testimony of Robert M. Davis, Jr. is moot. Consideration of its admissibility at the hearing below would avail nothing in the determination of the appropriate sanction to be imposed upon Mr. Plants, which is the only issue before us.
The Kansas Supreme Court accepted the consent disbarment of a convicted attorney.
The Kansas City Star (Tony Rizzo) reported in February 2017
A Kansas City lawyer pleaded guilty Friday to conspiring with his former law partner to steal money from St. Luke’s Health System.
Mark J. Schultz pleaded guilty in U.S. District Court in Kansas City to a conspiracy charge.
His former law partner, Alan B. Gallas, pleaded guilty last April to mail fraud and and on Friday was sentenced to one year in federal prison.
Federal prosecutors said in court documents that Gallas had provided “substantial assistance” that led to Schultz being prosecuted.
As a result of his cooperation, prosecutors asked the judge Friday to give to give him a lesser sentence than what is called for in sentencing guidelines.
They had been partners since forming the law firm of Gallas & Schultz in 1992.
St. Luke’s Health Systems was one of the firm’s clients.
The firm was tasked with collecting money from patients who were behind on payments to the hospital system.
Money collected by the firm was placed in a trust account, and periodically the money was forwarded to St. Luke’s.
But according to court documents, between 2009 and 2015 Gallas directed that more than $1.2 million collected for St. Luke’s be transferred to the law firm’s operating account.
According to the documents: 62 payments totaling $89,495 were withheld in 2009; 439 payments totaling $132,167 in 2010; 613 payments totaling $79,776 in 2011; 601 payments totaling $211,391 in 2012; 699 payments totaling $266,696 in 2013; 625 payments totaling $227,892 in 2014; and through July 2015, there were 625 payments totaling $216,845.
In his plea agreement filed Friday, Schultz admitted to conspiring to withhold some of those payments from January 2014 to July 2015.
Prosecutors and defense attorneys do not agree on the amount of money involving Schultz, according to the plea agreement, and will argue that point at sentencing.
Gallas is a former president of the Kansas City Metropolitan Bar Foundation.
He voluntarily surrendered his law licenses in Kansas and Missouri and has been disbarred in both states.
Schultz’s law licenses are still active in Kansas and Missouri, court officials in both states said Friday.
A Hearing Panel of the British Columbia Law Society imposed a $5,000 fine and costs as a sanction based on the attorney's admission of misconduct in an in-court verbal exchange.
The Respondent’s professional conduct record includes a third conduct review in October 2013. The Respondent had contacted the Law Society for guidance the day after he realized he had acted wrongly in a matter, but he did not follow the guidance until almost one month later. At that time, he had moved to Smithers; was unable to obtain employment with a firm and was practising alone; had completed an acrimonious divorce; was regularly communicating with the Law Society for practice advice; had remarried with a woman who had three children; and he and his new wife had a child.
The attorney represented a mother facing an order excluding her from her child's life.
At issue was the client's drug use.
The Respondent interrupted to say reports had been provided to opposing counsel on “an ongoing basis.” This began a disagreement between opposing counsel and the Respondent during which opposing counsel spoke in a raised, antagonistic voice.
Opposing Counsel: No, they have not.
Mr. Hudson: They have so, I have --
Opposing Counsel: They have not been --
Mr. Hudson: -- the faxes
Opposing Counsel: -- provided.
[Father]: Am I being --
Mr. Hudson Okay. Your Honour --
[Father]: -- am I talking, or?
Mr. Hudson: -- we can just adjourn this, because it’s clear that somebody is not telling the truth. And I have confirmations showing those have been sent.
[Father]: There was two in June. I haven’t received any --
[Mother]: You just wanna go --
[Father]: -- since then.
[Mother]: -- to court.
Mr. Hudson: Shhh. Stop.
[Mother]: [Indiscernible/overlapping voices]
Mr. Hudson: Your Honour, this is -- all just needs -- let a judge hear it. Because it is clear that [Father] is not open to the evidence that’s actually been provided, and doesn’t wish to actually see any possibility that anybody can change. Even though she’s complied with the orders --
Opposing Counsel: If my friend is finished --
Mr. Hudson: -- and he --
Opposing Counsel: -- with his speech --
Mr. Hudson: -- and he also --
Opposing Counsel: -- I wonder if we might move on it --
Mr. Hudson: Could you shut up?
Opposing Counsel: You shut up yourself. You shut up.
Mr. Hudson: No.
Opposing Counsel: Don’t tell me to do anything back and forth like this.
The Court: Counsel.
Opposing Counsel: I won’t put up with this.
The Court: Counsel.
Opposing Counsel: Who the hell do you think you are anyway?
Mr. Hudson: Excuse me.
Opposing Counsel: Just --
The Court: Counsel. Counsel, what are you doing? What are you doing?
Opposing Counsel: I -- I’m -- Your Honour --
The Court: Please.
Opposing Counsel: -- I have been -- I have been -- listened to my friend make aspersions about [Father] on and on, and this -- this cannot continue.
The Court: Oh --
Mr. Hudson: There have been no --
The Court: -- counsel --
Mr. Hudson: -- aspersions, Your Honour.
The Court: -- please. Look, let me just cut it short.
It is clear from the video and audio recordings and what is set out in the Agreed Statement of Facts that, during this exchange opposing counsel rose to his feet and approached the Respondent. Initially the Respondent was seated, but rose to his feet after opposing counsel approached him while shouting at him and jabbing his finger in the Respondent’s face several times.
Judge Hoy intervened and expressed his disappointment in the conduct of counsel. He concluded the case conference, referred the parties to the judicial case manager and adjourned.
Ah, Canada. Where attorneys may refer to another as "my friend" while telling him to just shut up.
The attorney apologized for the incivility
There is no fixed range of discipline for incivility that constitutes professional misconduct. Recently, Law Society counsel provided a panel with a summary of penalties in panel decisions when members made discourteous or threatening remarks: the penalties ranged from reprimands to fines ($500 to $3,000) to suspensions (1 week to 6 months). (Law Society of BC v. Foo, 2014 LSBC 21 (CanLII), para. 41) On the facts in that case and the lawyer’s professional conduct record, the panel imposed a two week suspension. An application to review was dismissed (2015 LSBC 34 (CanLII)), and the BC Court of Appeal dismissed an appeal. (2017 BCCA 151 (CanLII))
We find the proposed disciplinary action of a $5,000 fine in this situation is balanced, proportionate and consistent with the principles applied in determining a fair and reasonable discipline in all the circumstances. Therefore, we accept the proposed disciplinary action.
Thursday, June 1, 2017
The Illinois Review Board recommends dismissal of dishonesty charges against an attorney "in his 60s" with no record of prior discipline.
There were allegations against him arising from a grocery store incident and an offensive email
The following facts are based on the testimony of Phillip Munoz, a store manager of the Hy-Vee grocery store in Peru, Illinois. On August 10, 2013, Mr. Munoz was walking through the store when he noticed Respondent pushing a cart of groceries and placing groceries into plastic grocery bags. Mr. Munoz thought Respondent's behavior seemed suspicious so he started watching him. Mr. Munoz testified that Respondent noticed that Mr. Munoz was watching him, and left the grocery cart in the back corner of the store and went to the cafe at the opposite end of the store.
Mr. Munoz, accompanied by another manager, went to the cafe and sat down at Respondent's table, where Respondent was eating by himself. Mr. Munoz asked Respondent what was going on with the grocery cart. Mr. Munoz testified that, at first, Respondent acted dumbfounded or shocked, and then became upset and told Mr. Munoz to be sure of the accusation he was making because he would have no problem suing Mr. Munoz.
Mr. Munoz asked for a receipt for the groceries. He testified that Respondent became belligerent and said he had already purchased the groceries, and that the receipt was in the grocery cart. Mr. Munoz told Respondent he would take a look in the cart. As Mr. Munoz started to walk away from the cafe, he turned and saw Respondent walk out the front door of the store and toward a car. A cashier told Mr. Munoz that Respondent had not paid for his meal. Mr. Munoz got the license plate of the car and called police. The cost of Respondent's meal was $5.99 plus tax. Mr. Munoz testified that he found no receipt in the grocery cart.
Respondent eventually was charged with retail theft, a misdemeanor, for allegedly taking the meal at Hy-Vee without paying for it. The prosecutor assigned to the case and Respondent negotiated a guilty plea to a lesser offense of disorderly conduct. The information charged Respondent with "knowingly creat[ing] a disturbance, while located at the Hy-Vee," in such an unreasonable manner as to alarm and disturb Phillip Munoz, and provoke a breach of the peace." (Adm. Ex. 1 at 2.) Respondent was sentenced to two months' supervision and ordered to pay $300 in fines and costs and $6.44 in restitution to Hy-Vee. He eventually paid those amounts in full, although he was late in doing so.
Prior to her death, Respondent's mother lived in a condominium in Chicago. The condominium development had a condominium association, of which Gerlyn Delaney was president and Alfredo Valasco was treasurer.
Over the course of a few days in January 2012, Respondent sent three e-mails to Ms. Delaney, complaining about a plumbing leak in his mother's condo unit, which appeared to be coming from the unit above. In all three e-mails, Respondent used derogatory language about the upstairs owners and condo association board members. In the second e-mail, he threatened to sue the upstairs owners as well as the condo association, and included "The Law Offices of Daniel G. Donovan" at the bottom of the e-mail. In the third e-mail, which he sent minutes after the second one, Respondent stated: "Further, if you really want me to solve this on my own, your asshole co-board member who you are protecting is going to get a crowbar over his head. Maybe in the legs because his head is too hard, he won't get the point." (Adm. Ex. 3, at 5.)
Ms. Delaney testified at Respondent's hearing that she felt scared and threatened by the third e-mail, not only for herself but mainly for Mr. Valasco, whom Respondent was referring to in the e-mail.
While the hearing board had found misconduct and proposed a censure
The only misconduct that the Hearing Board found Respondent committed was dishonesty. It found that Respondent's statement to Mr. Munoz that he had paid for the groceries in his shopping cart was false. That finding, in turn, was based primarily on Mr. Munoz' testimony that there was no receipt in the cart.
Crediting Mr. Munoz's testimony as true, we find it insufficient evidence on which to base a dishonesty finding, because it does not prove clearly and convincingly that Respondent did not pay for his groceries. It proves only that Mr. Munoz did not find a receipt in the cart, which could have been because the receipt fell out of the cart or because Respondent was mistaken about where he left it. Or it could have been because Respondent did not pay for his groceries. But the absence of the receipt, even combined with Mr. Munoz's observation that Respondent walked out of the store, are insufficient to meet the Administrator's burden of proof on the issue of whether or not Respondent made a false statement to Mr. Munoz.
Moreover, Respondent's guilty plea to disorderly conduct is not enough to support a finding of dishonesty. As we noted above, there is nothing whatsoever in the criminal information against Respondent to indicate that he engaged in dishonesty. The fact that Respondent "created a disturbance" in such an unreasonable manner as to alarm and disturb Philip Munoz, and provoke a breach of the peace" does not equate to clear and convincing evidence that he made a false statement to Mr. Munoz.
Other than Respondent's guilty plea to disorderly conduct, and Mr. Munoz' testimony that he did not find a receipt in the cart and that Respondent left the store, only inadmissible hearsay was presented to show that Respondent had not paid for either the groceries or the meal.
We thus believe it was a leap of logic for the Hearing Board to conclude, based on the evidence in the record, that Respondent made a false statement to Mr. Munoz.
The attorney did not participate in the proceedings (Mike Frisch)
More summaries from the most recent online California Bar Journal
FRANK RUSSELL WILSON [#185591], 48, of Roseville, was suspended March 31, 2017, for 90 days and placed on probation for three years. He must complete the State Bar ethics school and pass the Multistate Professional Responsibility Exam. He must abstain from use of alcohol, narcotics and controlled substances and must obey an array of substance abuse conditions.
Wilson stipulated that he was convicted by a Marin County jury of misdemeanors stemming from a day of binge drinking in 2014, during which he confronted two Farsi speaking individuals in a shopping center parking lot and demanded they speak English. He told them he was an immigration attorney who had the right to arrest them and “take [them] away.” He pushed one of the individuals on his chest with both hands. When one called 911, Wilson followed and harassed him and threatened to “beat the fucking shit out of [you].” When arrested by police, Wilson said, “Well, I guess you can’t kick another guy’s ass in Marin County anymore” and “I am an Immigration Attorney, and I am sick and tired of bailing these foreigners out of jail.” At the time, Wilson was on probation for a 2011 DUI conviction.
In aggravation, Wilson had a prior record of discipline, he committed multiple acts of wrongdoing, he caused significant harm to the public and he failed to comply with terms of his criminal DUI probation. As a practicing immigration law attorney, his conduct was egregious. In mitigation, Wilson acknowledged his misconduct.
PETER JOSSERAND XIII [#146182], 62, of Paso Robles, was placed on probation March 31, 2017, for one year with a one year stayed suspension. He must complete the State Bar ethics school and pass the Multistate Professional Responsibility Exam.
In 2016, the State Bar learned of Josserand’s misdemeanor sexual battery conviction and initiated disciplinary proceedings. Josserand stipulated that in 2004 he grabbed the breast of the operations manager of the janitorial service that cleaned his office, resulting in a court finding of his guilt of misdemeanor sexual battery and a requirement that he register as a sex offender. He also acknowledged touching the breast of a second victim, adding that he hoped that by doing so, she would be aroused and want to proceed sexually. That victim declined to testify.
In aggravation, both victims said that Josserand’s misconduct continues to cause them considerable distress. In mitigation, a psychologist reported that Josserand was in a dysfunctional marriage at the time of his misconduct and that he has “effected a satisfactory adjustment.” However, given the intentional nature of the misconduct, that factor was accorded minimal mitigation. Josserand had no prior discipline at the time of his misconduct toward the first victim. He obtained a termination of his sex registration requirement in 2016. He provided 10 reference letters from persons who attested to his honesty, integrity, trustworthiness, judgment, commitment and knowledge. His risk of repeating the behavior was considered to be low.
The June 2017 California Bar Journal reports on a recent disbarment
Kaplan appealed from a State Bar Court Hearing Judge’s decision that he be disbarred for failing to maintain client funds in a client trust account and intentionally misappropriating those funds, but the State Bar Court Review Department rejected his claim that he did not do so intentionally. Kaplan argued that he was grossly negligent in handling the funds during a time of personal and financial stress, but that he deserved only a two-year suspension. Placing the funds in a non-CTA account allowed his bank to seize the funds, leaving him unable to repay his client.
Both the judge and the Review Department found that Kaplan intentionally and dishonestly misappropriated client funds for his personal use and benefit. The disputed funds came from three clients who retained Kaplan to represent them in the sale of a movie script titled “Mucho Dinero" to a producer. The parties agreed on a sales price of $90,000. Kaplan placed the money in a Wells Fargo Bank checking account, not a CTA. He misrepresented to one of his clients that the money was not available for disbursement for several weeks, during which time Kaplan made more than 100 withdrawals for business and personal expenses including restaurant bills, airline tickets, credit care payments and a $15,000 payment to a resort. Kaplan made various excuses for his non-payment to the client for more than a year. The client’s sister, an attorney, demanded payment. Kaplan finally paid, three months after the State Bar filed a notice of charges against him. He testified that during this time he suffered from depressing, was getting a divorce and had significant financial and business problems. He admitted misappropriating the funds, but contended it was not intentional or dishonest and offered no plausible explanation for failing to pay the client what he was owed. In aggravation, he caused significant harm to his client, who had to liquidate stocks he had set aside for college funds and use his credit card to cover expenses while he waited for Kaplan to pay him.
Kaplan committed multiple acts of wrongdoing by making more than 100 withdrawals of the client’s funds for his own use. He showed a lack of candor and cooperation with his client. He did cooperate in the State Bar proceedings, attaining merit for entering into an extensive factual stipulation and for lack of prior discipline over 24 years in practice. He also submitted good character evidence. But he was accorded minimal mitigation for his claims of extreme emotional difficulties, because Kaplan did not show that his problems caused him to misappropriate the money. And he failed to prove that his difficulties no longer pose a risk of future misconduct.
A recent disciplinary sanction is summarized on the web page of the Idaho State Bar
On May 30, 2017, the Idaho Supreme Court issued a Disciplinary Order suspending Sandpoint attorney Jeremy P. Featherston from the practice of law for one (1) year, with all but ninety (90) days of that suspension withheld. The Disciplinary Order provides that upon reinstatement, Mr. Featherston will be placed on probation for one (1) year. Mr. Featherston’s ninety (90) day suspension will start June 16, 2017.
The Idaho Supreme Court found that Mr. Featherston violated I.R.P.C. 8.4(b) [Commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects] and I.R.P.C. 8.4(d) [Engaging in conduct that is prejudicial to the administration of justice]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.
In July 2014, Mr. Featherston’s former brother-in-law, S.B., was arrested in Alaska on drug charges. S.B. called Mr. Featherston’s wife from jail and instructed her to erase the data on his two cell phones. Mr. Featherston erased the data on S.B.’s two cell phones, which at that time were in the custody of Alaska law enforcement. The data erased from the cell phones was accessible on other electronic devices. In September 2016, Mr. Featherston pleaded guilty in Alaska to a misdemeanor charge of attempting to destroy or conceal evidence by erasing the data on S.B.’s cell phones. He was sentenced to 80 hours of community service, ordered to pay fines and costs, and placed on a one (1) year criminal probation.
Following reinstatement, Mr. Featherston will serve a one (1) year probation upon the terms of probation specified in the Disciplinary Order. Those terms include that Mr. Featherston will serve the nine (9) month withheld suspension if he admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for conduct occurring during the period of probation.
Respondent's misconduct is decidedly egregious and, though we have not yet sanctioned a prosecutor in like circumstances, it is a logical extension of our prior cases to find disbarment warranted over a lesser sanction. We are not dissuaded from our view that disbarment is the appropriate sanction, despite respondent's exceptions and request for a mitigated sanction, as there is clear and convincing evidence that respondent misused federal witness voucher funds, misled the court and defense counsel, and violated his duties as a prosecutor, resulting in substantial reductions in sentences for several convicted felons. Nor do we accept respondent's contention that his cooperation with Bar Counsel, the absence of prior discipline, the absence of personal financial gain, or the delay in the proceedings are mitigating factors which should preclude imposition of our most stringent sanction. Respondent's misconduct was significantly compounded by the protracted and extensive nature of the dishonesty involved. We conclude, for reason discussed below, that, on this record, disbarment is the appropriate sanction.
Senior Judge Nebeker dissented from the order granting reinstatement
Judge Nebeker would deny the motion to reinstate. Mr. Howes violated a most sacred code as an Assistant United States Attorney for which, in my view, there is no redemption. The gravamina of his misconduct should be held as an example to all AUSAs that what he did will, for his lifetime, be a bar to reinstatement. For a former AUSA this would not be excessive. It would be justice.
Disciplinary Counsel supported the petition for reinstatement. Associate Judges Glickman and Thompson voted in favor.
When Disciplinary Counsel supports reinstatement, the matter is submitted directly to the Court for consideration rather than traveling the path through a hearing committee and the Board on Professional Responsibility as provided in Rule XI, section 16
A petition for reinstatement by a disbarred attorney or a suspended attorney who is required to prove fitness to practice as a condition of reinstatement, which is uncontested by Disciplinary Counsel following a suitable investigation, may be considered by the Court on the available record and submissions of the parties. In every uncontested matter, Disciplinary Counsel shall submit to the Court a report stating why Disciplinary Counsel is satisfied that the attorney meets the criteria for reinstatement. The Court may grant the petition, deny it, or request a recommendation by the Board concerning reinstatement.
A six-month suspension has been ordered by the Wisconsin Supreme Court
The OLR filed a complaint against Attorney Schwitzer on April 6, 2015. On July 13, 2015 the OLR filed an amended complaint alleging five counts of misconduct. The complaint alleged that on February 4, 2014, Attorney Schwitzer was convicted in Brown County of unlawful phone use – threatens harm, in violation of Wis. Stat. § 947.012(1)(a), a Class B misdemeanor; Possession of THC, in violation of Wis. Stat. § 961.41(3g)(e), an unclassified misdemeanor; and Possession of Cocaine/Coca, in violation of Wis. Stat. § 961.41(3g)(c), an unclassified misdemeanor. Other charges relating to possession of drug paraphernalia, narcotics, and illegally obtained prescription drugs were dismissed but read in. The Brown County circuit court withheld sentence and placed Attorney Schwitzer on two years' probation, conditioned on thirty days in jail, to run concurrently on each of the three counts. Attorney Schwitzer was also ordered to comply with his healthcare provider's recommendations, continue psychological and medical treatment, take all prescription medications, surrender a firearm, and have no contact with anyone who uses, sells, or possesses illegal drugs.
On October 20, 2014, Attorney Schwitzer fell asleep or lost consciousness while driving his car, drifted out of his lane of travel, and sideswiped another driver's car. The police officer who interacted with Attorney Schwitzer at the scene observed that Attorney Schwitzer had an unsteady balance, was shaking and sweating, his pupils were dilated, and he was having a hard time forming sentences and was slurring his words.
When the officer asked Attorney Schwitzer to turn off his car, the officer noticed there was a female passenger in the car. The female passenger was not breathing. The officer performed CPR until Fire and Rescue arrived. Fire and Rescue administered Narcan to the passenger, at which time she regained consciousness. The female passenger told a firefighter transporting her to the hospital that she had snorted heroin in Attorney Schwitzer's car and had lost consciousness. Upon searching Attorney Schwitzer's car, officers found a plastic baggie containing cocaine and a rolled up $20 bill which tested positive for cocaine.
On April 3, 2015, in Washington County circuit court, Attorney Schwitzer pled guilty and was convicted of possession of cocaine, as a party to a crime, an unclassified misdemeanor, in violation of Wis. Stat. § 961.41(3g)(c). A second count for possession of drug paraphernalia was dismissed but read in. The Washington County circuit court sentenced Attorney Schwitzer to five months in jail.
After suspension, he continued to have a web site that held him out as an attorney and engaged in trust account violations
On August 20, 2013, while incarcerated in the Brown County Jail, Attorney Schwitzer used a fellow inmate's contraband cell phone to access the trust account and initiated a transfer of $2,000 from the trust account to a personal account belonging to Attorney Schwitzer. Attorney Simon and/or Attorney Feldhausen learned of Attorney Schwitzer's attempt to transfer trust account proceeds and caused BMO Harris Bank to reverse the transaction. In correspondence to the OLR, Attorney Schwitzer admitted attempting to transfer funds from the trust account to his personal account while incarcerated in the Brown County Jail. The OLR's investigation was unable to determine whether Attorney Schwitzer used another inmate's telephone to access the trust account by phone or whether he attempted to transfer funds by using the internet connection through the contraband phone. Pursuant to supreme court rules, disbursements from a trust account may not be made telephonically or by way of internet transactions.
The court concluded that a six-month suspension was the appropriate sanction and lifted its temporary suspension order.
In addition to obtaining reinstatement from the disciplinary suspension imposed by this order, before he is able to practice law in Wisconsin, Attorney Schwitzer will also be required to complete the procedures for reinstatement from the administrative suspensions currently in effect for failure to comply with the mandatory CLE reporting requirements, for failure to pay applicable bar dues and assessments, and for failure to file a trust account certificate.