Tuesday, August 9, 2016

Another Good Day In D.C. As Consent Discipline In Misappropriation Case Submitted To Court

A District of Columbia Hearing Committee has approved a consent disposition of a two-year suspension with fitness of an attorney for negligent misappropriation and related misconduct.

The investigation, which began in 2012, was not the result of a client complaint; rather, it involved ac series of trust account overdrafts reported to Disciplinary Counsel.

The hearing committee report

Negotiated discipline in cases involving misappropriation must be rejected when a “serious question exists on the face of the record whether respondent acted negligently, or instead  recklessly . . . .” Harris-Lindsey, 19 A.3d at 784. We find no such question here. Although Respondent is an experienced attorney, her practice did not routinely call for holding client funds in trust. Her misappropriation resulted from a combination of accounting structures in place in her firm that were inadequate to safeguard entrusted funds and her failure to supervise new staff and to review client funds obtained from other firm lawyers. Respondent’s affidavit, the stipulated facts and our in camera review of the file all support a finding that Respondent was negligent in her duties with respect to entrusted funds and the supervision of staff. The brief duration of these actions – six months – the lack of any harm to her clients and her cooperation and correction of her failures once identified, do not raise a serious question that her actions rose to the level of recklessness.

Nor do we believe that the agreed upon sanction is unduly lenient for three instances of negligent misappropriation. While negligent misappropriation typically only results in a six month suspension, the combination of misappropriation and other violations warrants a lengthier suspension. When negligent misappropriation is added to other misconduct, the sanction is much harsher.

Further, the fitness requirement was found to be appropriate.

The proposed consent discipline now goes to the Court of Appeals to approve or reject.

The case is In re Kathy Bailey and can be accessed at this link. (Mike Frisch) 

August 9, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, August 7, 2016

I've Got A Secret

The web page of the Delaware Office of Disciplinary Counsel has a search function that permits the user to find the most recent (2016) sanctions.

One recent case summary caught my eye


Effective Date: April 6, 2016. A Delaware lawyer was placed on private probation for two years for violations of the Delaware Lawyers’ Rules of Professional Conduct (“Rules”) in connection with his failure to maintain his law practice’s books and records. The private sanction was offered by a Panel of the Preliminary Review Committee (“PRC”) and imposed with the consent of the lawyer. The lawyer admitted violations of Rule 1.15(d) and Rule 8.4(d). The Lawyers’ Fund for Client Protection conducted an audit in 2014 which revealed deficiencies in the books and records. The lawyer also made misrepresentations as to the status of the firm’s books and records to the Supreme Court on his 2014 Certificate of Compliance.

I am uncomfortable with the concept of "private" probation.

Also noteworthy is that Delaware retains the sanction of private admonition. (Mike Frisch)

August 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

An American Family

An Arizona attorney and his son-in-law employee were both sanctioned for a conflict of interest in civil litigation. 

The senior attorney (Warnock) was suspended for six months and a day; the junior attorney (Carman) accepted an admonishment.

The law firm represented a person who had caused injuries in a car accident. The injured plaintiff was Ms. Hargrove.

Carman had provided advice to the clients (the Orlandos) in the transition of their business to corporate status.

One of the Orlandos was driving a company car that was only insured for $15,000 damages. Separate from the accident litigation, the Orlandos sued their insurer (American Family) for failure to provide proper advice on insurance coverage. 

The story is told (in part) by the Arizona Court of Appeals Division One in a decision  affirming the firm's disqualification after the matters had taken a series of twists and turns

In September 2010, Hargrove’s personal injury claim proceeded to a jury trial. During trial, it was discovered that several jurors may have engaged in misconduct. To avoid a possible mistrial, the parties agreed to a settlement conditioned upon the following. If the jury returned a verdict in favor of Hargrove, judgment would be entered against the Orlandos, who would then assign all of their claims against their insurer in the American Family litigation to Hargrove. In exchange for the assignment, the Orlandos would not seek a mistrial and Hargrove would not execute on the judgment against the Orlandos. The superior court confirmed the agreement by all parties and counsel. Following a verdict in favor of Hargrove, the court entered judgment against the Orlandos in the amount of $655,776.12. The parties then formalized their agreement by executing an assignment and covenant not to execute (“the assignment and covenant”). The covenant provided in pertinent part that the Orlandos would “furnish full and complete communication, cooperation, documentation, and, as necessary, sworn testimony to support the assigned claims” against American Family and they would “execute such additional documents as may be necessary to carry out the intent” of the covenant.

Thus, Hargrove's attorney (Jensen) became the Orlandos de facto attorney in pursuing the insurance claim. It was a bumpy ride that led to a bar complaint by the Orlandos against Jensen and his withdrawal.

In November 2010, in response to American Family’s discovery requests, [law firm] WMC identified WMC partner Andre Carman as the attorney who advised the Orlandos regarding the transition of their small business from a sole proprietorship to a corporation. Shortly thereafter, pursuant to the assignment and covenant, Jensen and WMC filed a joint motion requesting that Jensen be substituted for WMC as counsel of record for plaintiff(s) (Hargrove and/or Orlandos, depending upon the outcome of a motion to substitute) in the American Family litigation. At the same time, and also as provided by the assignment and covenant, Hargrove and the Orlandos filed a joint motion to substitute Hargrove in place of the Orlandos as the sole plaintiff or, in the alternative, as an additional plaintiff. The superior court granted the motion to substitute counsel but denied the motion to substitute or add Hargrove as a plaintiff.

In August 2012, a protracted dispute arose regarding the Orlandos’ obligation to cooperate and furnish documents to Hargrove under the assignment and covenant. Jensen repeatedly inquired as to Carman’s status as a possible nonparty at fault and witness, and requested access to WMC’s legal files for both the personal injury litigation and the American Family litigation. Although Jensen insisted the assignment and covenant permitted him to inspect all legal files relevant to claims and defenses in the American Family litigation, the Orlandos ultimately refused to authorize a release of the files. Jensen also asserted that WMC had a conflict of interest that precluded it from representing the Orlandos in the American Family litigation given the circumstances surrounding Carman’s advice to the Orlandos regarding their business. Jensen further asserted that if the Orlandos failed to comply with his requests for documents such inaction would constitute a breach of the assignment and covenant.

After the Orlandos informed Jensen they would seek his disqualification, Jensen moved to withdraw from the American Family litigation. The superior court granted the motion in February 2013. Three days later, the Orlandos (represented by WMC) initiated the instant litigation by filing a complaint in Yavapai County Superior Court (“current litigation”) seeking a declaration that Hargrove breached the assignment and covenant. In March 2013, through new counsel Timothy Ducar, Hargrove filed a counterclaim asserting that the Orlandos had breached the assignment and covenant. The Orlandos then filed a third-party claim against Jensen, alleging he was responsible for the breach of the parties’ agreements.

As to disqualification

At the August 1, 2014 hearing on the cross-motions for disqualification, Carman acknowledged that he was both a named witness and nonparty at fault in the American Family litigation. Carman argued, however, that his status as a named witness and nonparty at fault was moot because Hargrove “abandoned” the American Family litigation. Nonetheless, when questioned by the superior court, Carman admitted that he would have “a conflict of interest in this case” if Hargrove did not, in fact, abandon the litigation and the stipulation to dismiss was entered without her approval. Carman also acknowledged that the settlement was negotiated between Brian Warnock and counsel for American Family and further admitted, when pressed by the superior court, that he and the firm received a “significant benefit” when the American Family litigation was dismissed with prejudice and he and his firm were no longer exposed to potential liability in that matter.

Both attorneys conditionally admitted the conflict and consented to the discipline. The senior attorney had practiced for 40 years without blemish. (Mike Frisch)

August 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Well-Deserved Disbarment

A convicted and imprisoned attorney consented to the revocation of his license and was disbarred by the Maine Supreme Judicial Court.

BDN Maine Midcoast had this March 2016 story on his conviction.

A Belfast lawyer was sentenced Friday to 30 months in prison for stealing nearly $500,000 from two elderly clients.

In one case, William L. Dawson Jr. placed an 85-year-old Belfast resident in a nursing home for four years while he looted her bank accounts, according to court records.

Dawson pleaded guilty Friday in Waldo County Superior Court to two counts of felony theft and three counts of failing to pay state income taxes. Justice Robert Murray sentenced Dawson to five years in prison with all but 2½ years suspended to be followed by three years of probation.

The theft was uncovered in March 2013 when a teller at Key Bank noticed Dawson was writing large checks to himself on at least a weekly basis from the account of Veronica Pendleton. She alerted her supervisor, and a review of the account was undertaken, as well as that of another customer, 97-year-old Doris Schmidt. In that case, Dawson also was writing large checks on her account, according to Assistant Maine Attorney General Leanne Robbin.

Murray ordered Dawson to pay restitution of $385,000 to Pendleton’s estate and $98,000 to Schmidt’s estate. Both women have since died.

The prosecutor said that after an investigation began, Dawson submitted bills he said explained the checks. But Robbin said the reasons Dawson gave for the billing were “breathtaking.” Even though his office was just a one-minute drive from Pendleton’s home, Dawson would bill her $250 per hour for six to seven hours to go check on the house, pick up her mail and take care of her bills while she was in the nursing home.

A probate court in 2013 removed Dawson’s power over their finances.

Attorney Susan Thiem, who represents the Pendleton estate, said Friday that Dawson had put Pendleton in the nursing home for a temporary medical condition but kept her there for four years until his theft of her money was uncovered. Thiem read a letter from Anne Cilley, who was a friend of Pendleton, in which she said that after the theft was uncovered, Pendleton was able to return home for three months before she died.

(Mike Frisch)

August 7, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 5, 2016

A Serendipitous Result: Jailhouse Lawyering Not Unauthorized Practice In Vermont

The Vermont Supreme Court rejected the contention that a "jailhouse lawyer" violated unauthorized practice restrictions

This case calls upon us to consider the applicability of the prohibition against the unauthorized practice of law to the activities of a “jailhouse lawyer.” In February 2016, the State filed an information in this Court against Serendipity Morales, an inmate at the Marble Valley Regional Correctional Center, alleging she engaged in the unauthorized practice of law by helping fellow inmates in their cases, including performing legal research and drafting motions. In this probable cause review, we consider whether there is probable cause to believe that defendant has committed the alleged offenses. We conclude that there is not and accordingly dismiss the State’s information without prejudice.

The evidence that led to criminal charges

In support of these charges, the State included an affidavit from Sergeant Lloyd Dean, an officer for the Bennington County Sheriff’s Department. In that affidavit, Sergeant Dean alleges that Morales prepared court filings for five fellow inmates. These inmates reported to Dean that: (1) they had heard Morales was familiar with the legal process; (2) they asked Morales for assistance in reviewing and preparing various legal filings on their behalf; (3) Morales assisted each of them, including drafting handwritten motions which the respective inmates reviewed and signed; and (4) Morales did not request or accept any payment for these services. Sergeant Dean further alleged that each of the five inmates was represented by counsel in the matters in question, and that Morales is not a licensed attorney in the State of Vermont. The State does not allege that Morales ever signed pleadings on behalf of the other inmates, held herself out as a licensed attorney, or received any payment for her services.

The court

This Court has historically defined the unauthorized practice of law broadly, to include not merely holding oneself out as an attorney, but also providing services that require legal knowledge or skill such as drafting legal documents and giving legal advice—at least when one charges a fee for those services. More recent social and legal developments reflect a trend toward a somewhat more purpose-driven approach to defining the scope of the unauthorized practice of law.

After a survey of relevant caselaw

Although the above caselaw articulates an expansive definition of the practice of law, as the Attorney General has argued in this case, “This decades-old definition does not reflect the reality of practice in Vermont and does not provide sufficient guidance to prosecutors, practitioners, and the public.” Notwithstanding the above broad definitions of the unauthorized practice, this Court has allowed nonlawyers to appear in court in certain specified circumstances, as have some administrative agencies. In its prosecutorial role, the Attorney General has likewise taken a narrower view of the unauthorized practice. These legal developments have tempered the breadth of the unauthorized practice prohibition, and reflect a recognition that the unauthorized practice prohibition should be applied consistent with its underlying purposes of public protection.

Jailhouse lawyering

we are guided in this case by two factors particular to the inmate context. First, “jailhouse lawyers” who give legal assistance to fellow inmates but are not themselves licensed or formally law trained, are a well-established fixture in the justice system. Second, incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns...

Vermont’s courts have not actively sought to discourage inmates from helping one another with legal issues. In fact, in this appeal, Morales provided us with a transcript of a hearing in which the trial court urged a defendant to seek the help of other inmates who have successfully filed motions on their own behalf while awaiting a decision from the Defender General as to whether counsel will be appointed.

In this context, although there may be some limits on the ways in which an inmate can give legal help to another, we are wary of adopting a definition of unauthorized practice of law that would subject individuals to a finding of criminal contempt for engaging in conduct that has been tolerated and arguably even supported by the State.

The second factor particular to the context of this case is that incarcerated inmates are especially disadvantaged in trying to get legal information and advice. The United States Supreme Court has recognized that “[j]ails and penitentiaries include among their inmates a high percentage of persons who are totally or functionally illiterate, whose educational attainments are slight, and whose intelligence is limited.” Johnson v. Avery, 393 U.S. 483, 487 (1969). A significant number of inmates do not have the wherewithal to determine their rights and advocate for themselves due to limited education and literacy, and in some cases language barriers. These constraints give rise to considerable policy concerns, and perhaps constitutional ones.

Given these considerations, the court found that Morales had not engaged in unauthorized practice. (Mike Frisch)

August 5, 2016 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Discipline Case Neglected For Nine Years In D.C. Draws Reciprocal Censure in New York

A stayed suspension and probation imposed by the District of Columbia Court of Appeals translated into a reciprocal public censure from the New York Appellate Division for the First Judicial Department.

The D.C. court found neglect of six matters from the period 2002-2006.

The parties stipulated that there was significant mitigation, namely: nine years had elapsed without further disciplinary complaints being made against respondent; he had no disciplinary record; he fully cooperated with the disciplinary investigation; there was no venality on respondent's part; he took responsibility and expressed remorse for his misconduct; during the period of misconduct he was suffering from Alcohol Dependence and Bipolar Disorder for which he later sought residential and outpatient treatment and, according to the medical evidence submitted, he is now in remission; the medical evidence supports a conclusion that alcohol dependence "substantially affected his misconduct"; he voluntarily ceased the practice of law in 2006 and became vice president of a real estate venture; upon resuming the practice of law in 2008, he joined a law firm in Charleston, West Virginia with a more supportive infrastructure where he was made a partner in 2010; although he had a two-day "slip" in September 2013, in which he abused alcohol, it did not affect his work, he has remained alcohol free ever since and, therefore, an independent medical examiner believes he should continue to function effectively as a lawyer; and that respondent poses no current risk to his clients and is not a recidivist risk while he continues with his treatment plan and with his work environment. No aggravating factors were recited.

The New York court

In matters involving the neglect of client matters, this Court has generally imposed the sanction of public censure where significant mitigation was presented and, in some cases, even where coupled with misrepresentations, which is not the case here...

Note that the D. C. Disciplinary Counsel had these matters under "investigation" for nine years before reaching a stipulated disposition. It only got done because Phil Fox took the case over after his 2011 hire at ODC.

Phil's triage of numerous such grossly neglected cases is the only reason many of the cases ever got done.

Does anyone question the quality of ODC leadership when case after decade-old case comes to light largely because of Phil's efforts?

For instance, it took these people seven years of investigation to figure out what to do with Judge Roy Pearson's pants litigation. If D.C. bar matters were subject to a statute of limitations, it would have long since run. 

There is no "speedy trial" right in D.C. disciplinary matters as a result of the case (argued by me) linked here. 

Any betrayal of the trust which the attorney is sworn to keep demands appropriate discipline; a delay in prosecution, without more, cannot override this necessity. The contrary conclusion would mean that, when licensing applicants, we would engage in a form of deceit: our endorsement of an unqualified attorney would belie our simultaneous assertion that attorneys possess the integrity and competence which they must constantly demonstrate in order to earn the privilege of practicing law in the District of Columbia. Speedy trial principles, which in criminal cases are a constitutionally required curb on the abuse of government power, in the disciplinary system take second place to other societal interests. We conclude, for these reasons, that an undue delay in prosecution is not in itself a proper ground for dismissal of charges of attorney misconduct.

I fear that one consequence of this result - which I continue to believe is absolutely correct - was to empower incompetence and neglect by the Office of Disciplinary Counsel. This "betrayal of trust" would never had occured in my 17 1/2 years there because there was always responsible leadership that would not permit it to happen.

That changed after I left.

D.C. Bar members: If you want to complain to the leadership of the Office of Disciplinary Counsel about their gross neglect of matters involving neglect, don't bother. They are all off partying on your mandatory dues in San Francisco with their fellow wizards . (Mike Frisch)

August 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Canada Accepts Florida And Illinois Findings In Reciprocal Discipline Matter

A Law Society of Upper Canada Hearing Division Panel has held that an attorney cannot challenge orders imposing professional discipline in Florida and Illinois.

Jussi Kustaa Kivisto is licensed to practise law in Ontario.  He was licensed to practise law in Florida and Illinois until he was disbarred in Florida and reciprocally disbarred in Illinois. The Law Society of Upper Canada seeks to rely on findings made in those discipline proceedings as part of its application for a finding that Mr. Kivisto engaged in conduct unbecoming a barrister and solicitor. The Law Society seeks to rely on six U.S. judgments from both Florida and Illinois (“the Foreign Decisions”). Those judgments are as follows:

(a)            Report of the Referee of the Supreme Court of Florida dated December 17, 2008;

(b)            Order of the Supreme Court of Florida dated September 28, 2010, Case No. SC07-2281;

(c)            Report of the Referee in the Supreme Court of Florida dated September 3, 2013, Case No. SC12-770;

(d)            Amended Order of the Supreme Court of Florida dated January 28, 2014, Case No. SC12-770;

(e)            Order of the United States Court of Appeals for the Seventh Circuit, Chicago Illinois, dated August 14, 2012;

(f)            Order of the Supreme Court of Illinois, dated September 20, 2011 collectively the “disbarment orders.”

The tribunal

This is the first time a panel of the Law Society Tribunal has considered the recognition of foreign judgments in support or in defence of a conduct application.  Both the Law Society and Mr. Kivisto request that the judgments that they seek to rely on be given preclusive effect before us.  To be clear, neither is saying that the judgments are to be enforced in Ontario, rather each asks that the findings of fact contained in those judgments be held to be preclusive of further dispute before this panel, once the judgments are recognized. 

In opposing recognition of the discipline judgments, Mr. Kivisto raises the defences of fraud, public policy and lack of natural justice in respect of all the judgments relied upon by the Law Society.  These defences will be explored in further detail below.  In the case of the judgments regarding the estates, the Law Society takes the position that there has been no proof that they are final and thus they cannot be recognized.

The rejected defenses

The defence of public policy requires that the foreign law be contrary to Canada’s view of basic morality.  The defence of public policy involves condemning the foreign law over which the judgment is based.  It is a remedy that is not issued lightly.  The fact that the law of the foreign court gives rise to a different or more harsh result, does not meet the public policy test in considering whether to recognize a foreign judgment.  In this case, Mr. Kivisto takes issue with the manner in which the judgments of Judge Moe and Judge Usan were drafted.  In accordance with Florida procedural law, Bar counsel prepared the initial draft of the Default Order and Final Report of Judge Moe.  There was no evidence regarding Judge Usan’s drafting of his report but given the practice in Florida, it may have been drafted by Bar Counsel.  Because Judge Moe and Judge Usan followed Florida procedural law, Mr. Kivisto’s argument also addresses public policy concerns.  The issue is considered below.

The third defence to the recognition of a foreign judgment is that the conduct in the foreign proceeding, or an element of the foreign proceeding, is contrary to Canadian notions of natural justice. The intention is not to replicate Canadian or Ontario procedure.  The domestic court must be satisfied that minimal standards of fairness have been applied to the parties.  The burden is on the party challenging the foreign judgment’s recognition to prove the unfairness in the foreign legal system.

The attorney's effort to use other court pleadings to attack the findings was rejected.

The Law Society motion for recognition and preclusion in respect of those orders and findings identified in Schedule “C” of its Factum (“the Foreign Decisions”) is allowed.  Mr. Kivisto is barred from relitigating those findings.  The motion of Mr. Kivisto for recognition and preclusion of the estate orders (“the Probate Court Orders”) is dismissed.

(Mike Frisch)

August 5, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 4, 2016

Rutgers Law Prof Admits Misappropriation, Resigns From Bar

A tenured member of the Rutgers Law faculty has resigned from the Bar of the New York Appellate Division for the First Judicial Department.

Respondent avers his resignation is voluntary, free from coercion and duress, and he is fully aware of the implications of submitting his resignation. Respondent acknowledges that he is the subject of an investigation into allegations of misconduct in connection with his attorney escrow account based upon a dishonored check drawn from his IOLA Trust Account. Admittedly, respondent misappropriated approximately $255,000 from his IOLA Account, in connection with real estate matters, in order to meet his personal and business expenses. Respondent later replenished the funds from an operating account.

Respondent admits that he would be unable to successfully defend himself on the merits if Committee brought charges based upon his misappropriation client funds.

The Committee advises this Court that there are no other outstanding complaints against respondent. Respondent has taken full responsibility for his actions, made full restitution and cooperated fully with the Committee to assure that the public is fully protected and no party further damaged. Finally, respondent contends that he has not engaged in the practice of law since his suspension.

Respondent's affidavit of resignation complies with the requirements of 22 NYCRR 603.11. Accordingly, the Committee's motion should be granted, respondent's resignation accepted and his name stricken from the roll of attorneys, effective nunc pro tunc to May 25, 2016.

Our earlier reporting here.

The court described the charges in an order of interim suspension

Respondent is a tenured professor at Rutgers School of Law, who also maintains a transactional law practice. In two instances, respondent withdrew IOLA funds that did not belong to him in order to meet his personal and business expenses. In one instance, in December 2013, respondent received a $220,000 contract deposit on behalf of his client, the seller in a real estate transaction, which he deposited into his IOLA account. Between January 2 and February 14, 2014, when the transaction closed, respondent repeatedly invaded the $220,000 contract deposit such that, as of February 11, 2014, his account balance had fallen to $500. Respondent replenished the funds he withdrew with funds from his two operating accounts.

In the second instance, on August 5, 2014, respondent deposited a $100,000 contract deposit he received from his clients, a married couple, whom he represented in connection with their purchase of a condominium; he deposited the funds into his IOLA account. At the time, respondent was holding $10,395.96 on behalf of another client in his IOLA account. Between August 5 and August 20, 2014, when the transaction closed, respondent invaded the IOLA funds by making transfers to his business and personal accounts such that, as of August 14, 2014, his account balance had fallen to $74,495.96.

On the same day as the closing, respondent replenished the funds he withdrew by transferring funds from his two operating accounts. Nonetheless, an IOLA check in the amount of $15,914.93, representing the payment of a flip tax, was dishonored due to insufficient funds; this is the dishonored check that precipitated the Committee's investigation. On September 23, 2014, respondent replaced this check with a bank cashier's check drawn against his IOLA account.

Respondent's documentary responses also reveal that he commingled client funds with his personal and business funds, failed to maintain required IOLA account records, and, on one occasion, made a cash withdrawal from his IOLA account for $1,500.

(Mike Frisch)

August 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Felony Sex Offense - Automatic Disbarment

A decision from the New York Appellate Division for the First Judicial Department

In 2004, respondent was charged in an indictment filed in County Court, Westchester County, with five counts of attempted disseminating indecent material to minors in the first degree in violation of Penal Law §§ 110.00 and 235.22. The charges alleged that respondent used a computer to transmit communications, which depicted sexual conduct and which were harmful to minors, to a person he believed to be a minor, and that he attempted by such communications to induce the minor to engage in sexual contact with him.

On May 11, 2005, following a nonjury trial before a Westchester County Court Judge, respondent was found guilty of all five counts of attempted disseminating indecent materials to minors in the first degree, which are class E felonies. On July 27, 2005, respondent was sentenced to five years probation, a $250 mandatory surcharge and was certified as a sex offender.

As night follows day

A conviction for any criminal offense classified as a felony under the laws of this State results in automatic disbarment by operation of law (Judiciary Law § 90[4][a], [e]). For purposes of disbarment, a conviction occurs at the time of the plea or verdict (Matter of Lurie, 207 AD2d 48, 49 [1st Dept 1995]). Respondent was convicted of five counts of the class E felony of attempted disseminating indecent material to minor in the first degree on May 11, 2005, which constitutes grounds for his automatic disbarment (see Matter of Heberling, 119 AD3d 90 [1st Dept 2014]; Matter of Stark, 309 AD2d 4 [1st Dept 2003]).

(Mike Frisch)

August 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Baby And A Hand Do Not Prevent Proposed Permanent Disbarment

A Louisiana Hearing Committee has recommended that an attorney be permanently disbarred and, in so doing, noted some rather unusual procedural aspects that took place after the matter had been remanded by the Disciplinary Board

Respondent appeared at the hearing on March 29, 2016, accompanied by her husband and infant child. She presented an oral motion for continuance on the basis that she was gathering funds to hire Dane Ciolino, Esq. as her attorney. She brought no exhibits, witness lists, or  anything else whatsoever to support her defense or request to delay the hearing. ODC objected, and it requested to be permitted to proceed, wishing to take Respondent as its first witness. The committee listened carefully to Respondent’s bases for a continuance, thoroughly considered them and found her arguments unpersuasive and lacking in merit. However, the committee allowed the hearing to commence with a number of protections for Respondent and any counsel who might subsequently enroll.


The committee went to great lengths to assure that the best interests of Respondent’s child were considered, and addressed while Respondent was attending the hearing. See Transcript Vol. 1, pp. 29-32, 70-72, 116-117.


Mr. Ciolino appeared at the scheduled hearing on May 6, 2016, and he reported about a bizarre series of text messages sent to him by Respondent’s phone earlier that morning. In those messages, Respondent complained of a medical problem and sent photographs of what appeared to be a human hand that was purportedly infected in some way. To be specific, other than the text messages reported by Mr. Ciolino, nothing whatsoever was or has been submitted by Respondent that would explain or excuse her absence from the May 6. 2016. Mr. Ciolino sought a continuance of the hearing, which ODC opposed. The request for continuance was denied. Because of the lack of cooperation and participation by Respondent, Mr. Ciolino sought to withdraw from representation of Respondent, which ODC did not oppose. The committee found  merit with his request, and Mr. Ciolino was permitted to withdraw as counsel for Respondent. The hearing was resumed and concluded on May 6. 2016.

The committee reaffirmed findings of a host of violations but reconsidered its earlier sanction proposal

We wish to amend our recommended sanction set forth in our original report. In our original report, a majority of our committee recommended that Respondent be disbarred. One committee member dissented only from that recommendation, believing instead that permanent disbarment was warranted. Having listened carefully to and considered the evidence presented, along with the Respondent’s post remand course of conduct in these proceedings, we now are unanimous in our recommendation that Respondent should be permanently disbarred.

(Mike Frisch)


August 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

More Than A Whisper

A reciprocal one-year and fitness suspension has been imposed by the District of Columbia Court of Appeals as a result of a Missouri suspension for unauthorized communication with a represented party.

Mr. Chaganti‟s indefinite suspension from the Missouri bar stemmed from actions he took in a civil suit he filed against Lafayne Manse. Mr. Chaganti sued Mr. Manse for breach of contract in relation to heating and cooling services Mr. Manse was supposed to provide to Whispering Oaks Residential Care Facility, a business Mr. Chaganti not only represented as an attorney but also managed and owned. At various times throughout three years of litigation, Mr. Chaganti asked to talk directly with Mr. Manse, but in each instance, Mr. Manse‟s counsel, Thomas DeVoto, refused to permit direct contact between his client and Mr. Chaganti. At one point, Mr. Manse tried to reach out to Mr. Chaganti directly, but Mr. Chaganti declined to speak with him and referred him to Mr. DeVoto. Whispering Oaks‟s complaint was ultimately dismissed for failure to prosecute. Immediately after the case was dismissed, while the parties were still at the courthouse, Mr. Chaganti indicated that he was certain he could resolve his dispute if only he and Mr. Manse could speak directly. Mr. DeVoto then reminded Mr. Chaganti that he still represented Mr. Manse in the matter, and that Mr. Chaganti still did not have permission to communicate with Mr. Manse. Mr. DeVoto also warned Mr. Chaganti that he would file a complaint with the Missouri Bar if Mr. Chaganti contacted Mr. Manse.

Mr. Chaganti ignored Mr. DeVoto‟s warning and, the following day, wrote a letter to Mr. Manse.  Mr. Chaganti informed Mr. Manse that he planned to refile the lawsuit and would add as a defendant Mr. Manse‟s employer, who apparently was unaware that Mr. Manse had independently contracted to do business with Whispering Oaks. Mr. Chaganti then advised Mr. Manse that he could avoid further litigation by discussing settlement, but he would have to “place a larger  sum of money to settle than [Mr. DeVoto] has offered.” Mr. Chaganti warned Mr. Manse that he “should think seriously whether it is in your best interests to go to court again or to close this matter at this time.”

The suspended attorney argued that several of the exceptions to reciprocal discipline applied. The court rejected each claim.

 As to the contention that D.C. would impose "substantially different" discipline

It appears that we have no cases discussing what discipline should be imposed, as an original matter, for contacting a represented party and making analogous intimidating and extortionary statements. But in In re Ras, 884 A.2d 44 (D.C. 2005), we imposed a one-year suspension as reciprocal discipline where another jurisdiction determined that the attorney had, inter alia, communicated with a represented party and threatened to pursue criminal charges to gain advantage in a civil matter.

(Mike Frisch)

August 4, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 3, 2016

"Well-Loved" Former Senator Resigns From Oklahoma Bar

A former state senator convicted of bribery has resigned from the Bar of the Oklahoma Supreme Court.


Respondent is unable to locate his OBA membership card but will forward it to the Office of the General Counsel should he find it.

NewsOK reported on the criminal case

Former state Senate leader Mike Morgan was sentenced Tuesday to probation on his bribery conviction after more than 400 supporters wrote letters to the judge urging leniency.

“You are well-loved in the community, in many communities,” U.S. District Judge Robin Cauthron said.

The longtime judge put Morgan on probation for five years.

She ordered him to complete 104 hours of community service and to pay a $100 special assessment to the federal government.

Morgan, 57, of Stillwater, was not fined but must forfeit $12,000 to the federal government. He had faced up to 10 years in federal prison.

The judge announced his punishment after a three-hour hearing at the Oklahoma City federal courthouse. “Yes!” whispered one Morgan supporter. Others wept.

A teary-eyed Morgan hugged several.

Outside the courthouse, a smiling Morgan thanked his family, friends and attorneys for sustaining him “through a nightmare that I wouldn't wish on any living person.”

“The last nine years of my life have been indescribable,” he told news reporters. “I'm looking forward today to the future for the first time in a long time.”

Jurors in March found Morgan, a Democrat, guilty of accepting $12,000 in bribes to influence legislation in 2007.

He was paid $1,000 a month for a year by an Edmond company that operated assisted-living centers. Prosecutors accused Morgan, an attorney, of disguising the bribes as monthly retainer fees.

Morgan at trial denied the payments were bribes. He said Tuesday he still may appeal.

“I didn't commit any crime. I am innocent of this crime, and I think someday, somehow, the truth will come out, and that will be proven,” he told reporters.

Federal prosecutors had sought a significant, lengthy prison term to deter other public officials “tempted by corruption.”

...Morgan was Senate president pro tem in 2005 and 2006. He was Senate co-president pro tem in 2007 and 2008.

He was indicted in 2011, along with a lobbyist and a prominent Oklahoma City attorney. Morgan originally faced 63 counts.

At his trial last year, prosecutors presented evidence Morgan took $12,000 in bribes from the assisted-living company, $250,000 in bribes from an energy company and $141,666 in bribes from a landfill company. He insisted he provided the companies legal services.

Prosecutors dropped a conspiracy count during the trial because of rulings by the judge.

Jurors convicted Morgan of only one felony count — bribery.

(Mike Frisch)

August 3, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 2, 2016

Looking For Hebert (In The Courthouse, Not The Woods)

A Louisiana Hearing Committee has proposed the disbarment of an attorney who accepted a $500 fee while suspended for disciplinary violations. He entered an appearance in a case and submitted a proposed judgment for his client.

The violation was detected by the judge in the case.

The attorney's name is Edward Hebert.

The judge searched the court's case management system and "noted that there was an Edward W. Hebert with a bar number of 25086 who was listed as ineligible to practice law."

But the suspended attorney had proposed a judgment in the case that listed his name as "E. Hebert" with a bar number of 25412.

That number was assigned to a non-suspended attorney named Eric T. Hebert, who confirmed that he and his firm were not involved in the case. (Mike Frisch)

August 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Suspended For Sexting

A Single Justice of the Maine Supreme Judicial Court has ordered the suspension of an attorney

The Rule 24 motion is based on information-which is undisputed-that over a period of time, Attorney Letourneau sent unwanted text messages, photographs, and video images of a graphically sexual nature to a client whom he represented in several criminal cases. The client ultimately sought legal advice from a different attorney, who then both assumed representation of her in at least some of the cases where Attorney Letourneau had been counsel of record, and, in June, reported the matter to the Board. I infer that the report, which led to Bar Counsel's investigation of the matter, has triggered an administrative disciplinary proceeding under Bar R. 13 and related provisions.

Attorney Letourneau, through counsel, admits most or all of the conduct that underlies the Board's motion and does not argue that his conduct falls short of constituting violations of the Maine Rules of Professional Conduct. The present record supports the conclusion that he has violated several Rules, including Rules 1.7, 1.16, and 8.4.

The attorney had been suspended for six months in 2010. (Mike Frisch)

August 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Mortgage Fraud Disbarment

A New Jersey attorney has consented to disbarment.

Mortgage Fraud Consultants had a story

 A Red Bank lawyer admitted Monday to conspiring with others to steal more than $1 million from lenders by filing fraudulent mortgage applications, diverting mortgage proceeds and falsifying settlement statements, officials said.

Maeble L. Hairston, 57, of Red Bank pleaded guilty to second-degree racketeering in Morris County, according to a prepared statement released by the state Attorney General’s Office.

The state will recommend Hairston be sentenced to five-to-seven years in prison under the plea agreement. Hairston’s sentencing is scheduled for Dec. 7, according to the statement. Hairston also must forfeit her license to practice law in New Jersey and any other state, according to the statement.

Hairston conspired with others in a scheme to falsify mortgage-loan applications for loans to unqualified straw purchasers for homes at grossly inflated values, according to the statement. The co-conspirators then would steal loan proceeds by diverting them at closing, according to the statement. A straw purchaser is a person who makes a purchase on behalf of another person.

While serving as a settlement agent for four real estate closings involving a total of $1,051,804 in loans, Hairston admitted she diverted proceeds to other members of the conspiracy and covered up the thefts by submitting fraudulent HUD settlement statements, according to the statement. The charge is the result of an ongoing investigation led by the Essex County Inspector General’s Office, according to the statement.

Written By-Anthony Panissidi

(Mike Frisch)

August 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 1, 2016

False CLE Certifications Draw Suspension, Probation

From the August 2016 California Bar Journal

WENDY B. GABRIELLA [#149179], 57, of Laguna Niguel, was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she does not comply with the terms of her disciplinary probation. The order took effect March 18, 2016.

Gabriella falsely reported to the State Bar she had complied with her MCLE requirements when she had taken none of the necessary courses. She completed the necessary courses after she was audited. 

In mitigation, she had no prior record of discipline and entered into a pretrial stipulation with the State Bar.

PATRICIA R. NOGUERA [#189040], 46, of Long Beach, was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she fails to comply with the terms of her disciplinary probation. The order took effect March 18, 2016.

Noguera reported under penalty of perjury to the State Bar she had met her MCLE requirements when she hadn’t. She only took the necessary hours to come into compliance after she was contacted for an MCLE audit.

In mitigation, she had no prior record of discipline and entered into a pretrial stipulation with the State Bar.

BOBAK ROSHAN [#259987], 33, of Santa Monica, was suspended from the practice of law for 60 days and ordered to take the MPRE. He was also placed on one year of probation and faces a one-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect March 18, 2016.

 Roshan falsely reported to the State Bar that he had met his MCLE requirements when he had not. He completed the necessary hours after the compliance period.

In mitigation, he entered into a prefiling stipulation with the State Bar, saving time and resources.

MARILYN DINA WEINSTEIN [#183748], 47, of Pleasanton, was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she does not comply with the terms of her disciplinary probation. The order took effect March 19, 2016.

In June 2014, Weinstein falsely reported to the State Bar that she was in compliance with her MCLE requirements. She later provided proof she had completed the necessary hours – but the hours were completed after the compliance period.

In mitigation, Weinstein had no prior record of discipline and admitted to her misconduct.

(Mike Frisch)

August 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, July 30, 2016

Video Voyeurism Was Moral Turpitude On The Facts: Sports Club Taping May Lead To Disbarment

The District of Columbia Board on Professional Responsibility has issued its long-awaited report in the Kelly Cross case.

The BPR disagreed with a hearing committee recommendation and concluded that the attorney's crime involved moral turpitude on the facts.

 The Board considers this to be a difficult case because of its novel facts and the absence of direct precedent and has concluded, contrary to the recommendation of the Hearing Committee, that Respondent’s crime involved moral turpitude on the facts. We thus recommend that Respondent be disbarred pursuant to the mandatory disbarment provision of D.C. Code § 11- 2503(a). We agree with the Hearing Committee’s determination that Respondent violated Rules  8.4(b) and 8.4(c), and in the event the Court disagrees with the Board’s moral turpitude finding, recommend that he be suspended for one year, with a requirement to prove fitness as a condition of reinstatement for these violations, as recommended by the Hearing Committee.

As recounted in detail in this prior post, the attorney was just back from a stint in Europe with the Freshfields firm, about to tie the knot with his longtime partner and looking for an encounter in the Washington Sports Club.

He videotaped a person who happened to be an attorney and former police officer without consent.

In the WSC locker room, Respondent encountered Complainant, another gym patron, who was changing from street clothes into workout clothes. FF 19; Tr. 37. Respondent positioned himself behind Complainant and used his video camera to record a 20-second video of Complainant undressing, including photographing Complainant’s buttocks and genitals. FF 6, 19, 45. Because Respondent’s camera was concealed within his bag, Complainant was not aware that he had been filmed. FF 19.

After Complainant finished dressing, he walked to the toilet area of the locker room, entered a middle toilet stall, and sat on the toilet. FF 20. The latch on that stall was defective, and the door did not close properly. Id. Respondent followed Complainant into the toilet area, and entered the neighboring stall. FF 21. Respondent slammed the door of his stall and placed the toiletry bag containing his camera on the floor between the two stalls, although the camera was not recording. Id. Respondent kept his hand on the toiletry bag, and slowly moved it toward Complainant. Id. Complainant noticed that a hole had been cut in the side of the bag and could see a camera lens pointing outward through the hole. Id. Complainant grabbed the toiletry bag, opened it, moved the toiletries in the bag, and discovered the camera. FF 22.

Crediting Complainant’s testimony, the Hearing Committee found that after Complainant grabbed the toiletry bag, Respondent went into Complainant’s toilet stall and demanded the bag back. FF 23. Complainant, still seated on the toilet, held on to the bag “like a football.” Id. Although Complainant perceived Respondent to be a smaller man, Complainant felt fearful because he believed Respondent was upset and “crazy or something.” Id. Complainant stood up to pull up his pants, still holding on to the bag, and Respondent “lunged” at him. FF 24. Complainant forced Respondent out of the stall, and toward the sink area. Id. Complainant held Respondent against the sinks and told another gym patron to call the police. FF 26. At some point during the scuffle, Complainant suffered a bruise to his right forearm. FF 25.

The attorney pled guilty to video voyeurism and was placed on probation

During the period of his probation, Respondent was prohibited from joining a gym, owning a camera or camcorder, or utilizing any social networking sites (such as Craigslist). Id. He was also ordered to stay away from Complainant.

The BPR's analysis of the moral turpitude issue

In the few moral turpitude cases involving sex-based offenses, the Court has held that a crime involves moral turpitude where “[t]he participant’s desire for . . . gratification [exceeded] his ability to demonstrate a public respect and appreciation of existing societal morals and values.” In re Wolff, 511 A.2d 1047 (D.C. 1986) (en banc) (adopting the opinion of In re Wolff, 490 A.2d 1118 (D.C. 1985) (citation omitted)). Thus, in Wolff, the Court found that the respondent’s conviction of distribution of child pornography involved moral turpitude, because the respondent sought out sexual gratification and attempted to profit by selling materials that exploit children. Id. at 1119-20. Similarly, in In re Bewig, 791 A.2d 908 (D.C. 2002) (per curiam), the Court found that the respondent’s conviction of misdemeanor sexual contact with a minor was a crime of moral turpitude on the facts. In In re Rehberger, 891 A.2d 249 (D.C. 2006), the Court found moral turpitude on the facts where a respondent was convicted of misdemeanor sexual battery and simple battery after he detained and physically abused a female client who had sought respondent’s advice in a divorce case. The Court explained that “misdemeanor sexual convictions” may involve moral turpitude where the victim is placed in a vulnerable position by being “subjected to [the respondent’s] forceful, unwelcome, sordid sexual conduct.” Id. at 252.

Thus, in cases where the Court has determined that a sex-based offense involves moral turpitude, it has found that the respondent knowingly exploited, intruded upon, or invaded the privacy of another person in the interest of his own sexual gratification. By contrast, the Court found no moral turpitude on the facts where a respondent was convicted of carnal knowledge, where there was not clear and convincing evidence that the respondent knew or should have known that the victim was not of the age of consent. In re Lovendusky, No. 84-1672 (D.C. April 4, 1986).

A trip down memory lane here for me.

I prosecuted the Bewig and Rehberger cases. Rehberger took so long (eight years) that I was gone by the time the court imposed the inevitable disbarment.

The Georgia Court of Appeals tells the unsavory story of Rehberger's conviction and disbarment. 

...Rehberger escorted [the 27-year-old divorce client] into his office, closed the door and the two stood in front of his desk discussing the papers. The victim was holding her umbrella, pocketbook and day-planner when Rehberger asked if she had the original of her husband's pay stub. She indicated it was in the planner and Rehberger took the book and tossed it on his desk. He grabbed her right arm and pulled her against him, holding her with his right arm. He rubbed his body against her while holding her so tightly she could feel he was aroused. He rubbed her backside with his hand, then took her hand and rubbed it up and down on his groin. The victim attempted to push away but he continued to grope her and pulled her skirt up high enough to reveal her underwear. At one point he said to her "What's the matter, you got a boyfriend? I'm sure you do. You're a beautiful girl."

Rehberger pulled her shirt open exposing her breast which he touched. The victim said, "Please don't; I need to go," and she clutched her shirt to her body. Rehberger said, "well, you can't fault me for trying" and put his mouth on hers. She continued to push him away and tell him, "Please don't," but when he let go and she turned to leave, he pulled her back. He began rubbing himself back and forth on her backside. He had one arm around her waist and with his other hand held her right arm over her head. She finally got free, grabbed her book and went out the door. When she got into her car she saw it was 3:19 p.m.

I told the story of the Bewig case - and did not offer plaudits to the BPR - in my article No Stone Left Unturned under the header A Tale of Two Associates.

He was an associate at a prominent law firm. He sexually abused a child entrusted to his care when the child was three years old.

He stopped the abuse for a period of time but as the BPR recounted

Sexual abuse resumed when the victim was six years old, again during a period when the victim was in Respondent’s care.

Over a period of three to four months, the pattern of sexual abuse included:

causing the victim to touch Respondent’s penis;

digital penetration of the victim’s anus; and

oral stimulation of the victim’s penis.

Respondent instructed the six-year-old not to tell anyone about their sexual interactions.

The victim disobeyed and Bewig pled to a misdemeanor sex offense.

The BPR had sympathy for this devil.

At the Board, Respondent represented himself. The Board can scarcely imagine how difficult it must be for a member of the Bar to appear before a panel of peers and members of the public to discuss such conduct. Respondent could not have handled the situation with greater decency and dignity. His sincere understanding of the harm he has caused – to the victim, to his own future, and to persons who care about him – is very clear to the Board. What happened here is tragic for all concerned.

I regard this as the single most abhorrent passage written in any matter that I litigated in my Bar Counsel career. 

Another potentially citable case here is In re Sharp, prosecuted by me, that was the subject of a story in the New York Times .

A former member of the Federal Communications Commission has been convicted of sexually assaulting a neighborhood boy in the early 1980's and twice engaging in sex acts with him.

The 44-year-old former official, still facing trial in two similar cases, is Stephen A. Sharp, who served 18 months on the F.C.C. after his appointment by President Ronald Reagan in 1982 and is now a member of a Washington law firm.

Mr. Sharp was convicted on Friday in Alexandria Circuit Court by jurors who then recommended that Judge Alfred D. Swersky sentence him to a year in prison on the assault count and to two years on each of two sodomy counts. Judge Swersky set sentencing for Oct. 8, revoked Mr. Sharp's bond and ordered him jailed immediately.

Mr. Sharp is a former official in Alexandria's youth soccer association. The victim of his assault, who is now a 22-year-old resident of Manassas, Va., testified that he had met Mr. Sharp through his interest in athletics and that the sex acts had occurred in Mr. Sharp's home.

Lovendusky was not mine but I well remember the case. His counsel was a pre-famous Greta Van Susteren.

I may have more to say about the Lovendusky case in the near future. Forewarned is forearmed. 

The damning facts cited in here by the BPR

First, Respondent’s surreptitious filming was premeditated; he did not merely take out his camera on the spur of the moment. Rather, before arriving at the gym, he securely affixed the camera to the inside of the bag using heavy duty tape and used a sharp blade to neatly cut a hole in the bag for the lens so that he could film without being detected.

Second, Respondent brought the bag and video camera into the locker room, in contravention of club policy and a clearly visible sign that prohibited video recording. We disagree with the Hearing Committee’s observation that the sign reflects a societal recognition that “a camera can be expected to be everywhere,” thus making the filming less culpable. H.C. Rpt. at 36. To the contrary, the sign put Respondent on notice of the club’s prohibition on filming, and provided gym patrons some level of assurance that they would not be filmed while using the locker room. Tr. at 244-45.

Third, Respondent filmed Complainant from behind, with the camera concealed, so there was virtually no way Complainant could have known there was a camera in his changing area.

Fourth, the seriousness of Respondent’s crime is aggravated by his subsequent actions. Respondent followed Complainant into the toilet area, entered the stall next to him, and started pushing his toiletry bag into Complainant’s stall. 7 After Complainant discovered the camera, Respondent assaulted Complainant in an attempt to avoid the consequences of his actions. Respondent pushed into Complainant’s bathroom stall, effectively cornering Complainant in a vulnerable position, in an attempt to retrieve the bag. During the scuffle, Complainant suffered a bruise on his arm. Then, after the scuffle, Respondent offered Complainant $1,000, in an attempt to buy his silence...

In short, Respondent filmed Complainant and essentially stalked him through the locker room and the bathroom in pursuit of his own sexual desires, despite the fact that he knew there was a good chance Complainant was simply there to use the gym. While Rehberger and Bewig involved sexual assaults, and this case did not, here Respondent violated the Complainant’s reasonable expectation of privacy by surreptitiously filming him changing clothes. As in Wolff, Rehberger, and Bewig, Respondent sought out sexual gratification at the expense of Complainant’s legitimate and reasonable privacy interest. Respondent compounded the seriousness of his intrusion upon Complainant by assaulting him in an attempt to get the toiletry bag back and then offering Complainant money in order to avoid police involvement. Based on the foregoing, and the criteria set forth by the Court in other cases involving sex-based offenses, the Board finds that Respondent’s crime involves moral turpitude within the meaning of D.C. Code § 11-2503(a).

The report is in In re Kelly Cross and was authored by Mary Lou Soller. The report can be found by clicking on disciplinary decisions and entering the attorney 's name at this link. 

I blogged on the undue length of the process here.

Correction: Elizabeth A. Herman tried the Rehberger case after I had moved to greener pastures.

If memory serves (an increasingly dubious proposition), I had argued that Rehberger was not entitled to a hearing but rather should have been disbarred as reciprocal discipline for his Georgia disbarment.

The BPR was uncomfortable because Rehberger was disbarred by order of the trial judge who presided at the criminal trial. That procedure was entirely lawful in Georgia and was affirmed by the Georgia Court of Appeals. I continue to believe that the BPR erred in granting him a hearing but could not appeal their order.

Betsy picked the case up by the time the heavy lifting was done. (Mike Frisch)

July 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, July 29, 2016

Fort Knox For Pot: Better Not Call Matt

The Michigan Attorney Discipline Board Hearing Panel has disbarred an attorney.

Fox 17 West Michigan had a report on the nature of his practice.

 A commercial property owner in Grand Rapids said attorney Matthew Herman vandalized and stole property from his building. Landlord Eric Butler said his contractor estimates $93,000 in damages and stolen property.

Herman, who has also been accused of ripping off his legal clients, ran a medical marijuana business inside Butler's property on Butterworth in Grand Rapids. Butler said Herman sublet space to pot growers.

"They were throwing numbers around, Matt was, that he was drawing $4,000 to $6,000 per pod, per month. That's a huge cash flow," Butler told FOX 17.

However, the landlord said Herman failed to keep up on rent and utilities. Butler said he learned through the city that Herman cut corners on doing upgrades.

"I started getting letters from the building code inspectors, and oh my God," Butler said.

"He built this whole place up... them not knowing anything. I mean, electrical, plumbing, heating, the whole gambit, all of this stuff was put up illegally," Butler said, adding that no permits were pulled as required.
The property owner said he filed a police report with the Grand Rapids Police Department for the vandalism and theft. Butler wants Herman charged criminally, but he said a detective told him it's a civil issue.
"I understand about civil issues. [I've] been renting to people for a lot of years. This is not your typical civil matter. This is a matter of larceny where they actually took big parts of the building out of here and removed it for their own gain. That's stealing," Butler said.
Herman also owned the law firm West Michigan Legal Group in Grand Rapids. To many of his clients' surprise, that office is now closed. The Problem Solvers reached out to Herman for an interview about the Grand Rapids property. He didn't respond.

The Problem Solvers retrieved court records showing Herman is also being sued by a company that owns a property in Portage. The suit states Herman owes more than $200,000 in unpaid rent, late fees and improvements.

The same source had this report that the attorney borrowed his marketing slogan from "Better Call Saul."

This story quotes the attorney as turning the warehouse into the "Fort Knox for Pot." (Mike Frisch)

July 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

"Best Lawyer" Suspended For 30 Months

The District of Columbia Court of Appeals has imposed a reciprocal 30 month suspension of an attorney based on discipline imposed by the Louisiana Supreme Court.

WAFB9 had the background

Baton Rouge police report the second man wanted in connection with the alleged rape of a 22-year-old man surrendered to them late Thursday night.

Samuel J. Moore, 25, was booked into the East Baton Rouge Parish Prison after turning himself in around 10 p.m. He was charged with aggravated rape. The alleged crime happened early Monday morning.

According to police, the victim was invited to the home of attorney James Michael Cutshaw, 59, on Sassy Lane by Moore. Sometime after arriving, the victim said he was given a drink, which he believes contained an incapacitating drug. The victim said he soon passed out and drifted in and out of consciousness.

The victim said he awoke several times to find his clothes had been removed. He had been placed into a sexual sling apparatus, bound, gagged and raped. Police report the victim eventually regained full consciousness and was able to gather his clothes and leave.

"The victim's story was graphic and disturbing. It was something that needed to be backed up with physical evidence," said Don Kelly with the Baton Rouge Police Department. "Many parts of the evening came fuzzy to him and he didn't really know the sequence of what happened."

Kelly said during a raid of Cutshaw's home, detectives found quite a bit of evidence inside to corroborate the victim's story. Among the evidence collected was what police believe are drugs. Reportedly, the evidence was sent to a lab for testing.

Cutshaw was arrested at his home Wednesday. He was booked into the East Baton Rouge Parish Prison on an aggravated rape charge. John Delgado, Cutshaw's attorney, issued a statement late Thursday.

"Mr. Cutshaw denies these spurious allegations and looks forward to clearing his good name at trial," Delgado said. "We are confident he will be fully exonerated."

"I don't want to believe that he would do something like that," said Danielle Clark, Moore's sister. "You just really never know. In my heart, I don't believe he did it."

Cutshaw practices law out of his home. In 1987, Cutshaw ran against Fox McKeithen for Louisiana Secretary of State and almost won the election, gaining 49% of the vote. He is a member of the choir at his church and has earned numerous honors through the years. He's published in the 2010 edition of "Best Lawyers in America." He also serves on various boards.

The Louisiana Supreme Court had imposed discipline by consent.

He must demonstrate his fitness to secure reinstatement in D.C. (Mike Frisch)

July 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unauthorized Practice Draws Fine, Injunction

Correction: I erroneously reported that the subject of this order was a Florida attorney. I am advised that she is not licensed to practice law.

A Florida resident engaged in unauthorized practice in Ohio and has been fined and enjoined for the misconduct by the Ohio Supreme Court.

The three-count complaint alleged that Catalfina, who is not licensed to practice law in Ohio, engaged in the unauthorized practice of law by holding herself out to three individuals as an Ohio attorney. Catalfina initially sought and was granted leave to retain counsel and file an answer. However, to date she has not filed an answer or retained counsel. Following numerous attempts to engage Catalfina, relator filed a motion for default judgment on July 1, 2014, but Catalfina again failed to respond...

Catalfina has never been licensed to practice law in Ohio. We have previously held that “one who purports to negotiate legal claims on behalf of another and advises persons of their legal rights * * * engages in the practice of law.” Cleveland Bar Assn. v. Henley, 95 Ohio St.3d 91, 92, 766 N.E.2d 130 (2002). Also, representing that one is authorized to practice law in Ohio without such authorization, by directly or indirectly creating the misimpression of that authority through manipulation of credentials and strategic silence, constitutes the unauthorized practice of law. Casey at ¶ 11, citing Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 261, 695 N.E.2d 244 (1998). Thus, by purporting to negotiate Social Security disability claims on behalf of Lisa Kellett, accepting money to do so, and holding herself out as an attorney to Kellett, Catalfina engaged in the unauthorized practice of law. And by holding herself out as an attorney to Jason Gall, indicating that she would represent him in his divorce and collecting $150 from him purportedly for filing fees, Catalfina engaged in the unauthorized practice of law.


Kelly Catalfina is enjoined from engaging in the unauthorized practice of law, including performing legal services or directly or indirectly holding herself out to be authorized to perform legal services in the state of Ohio. We also impose a civil penalty against Catalfina in the amount of $6,000—$3,000 for each of the Kellett and Gall matters. Costs are taxed to Catalfina.

(Mike Frisch)

July 29, 2016 in Bar Discipline & Process, Billable Hours | Permalink | Comments (0)