Thursday, September 24, 2015
The Illinois Administrator has filed a complaint alleging that an attorney used information obtained through discovery to illegally access a opposing party's credit history.
... through the course of pretrial discovery, Respondent obtained Jacek’s personal identifying information, including his social security number, as well as information concerning Jacek’s financial history.
On or about December 5, 2014, Respondent visited the website www.creditreport.com, an online consumer credit reporting site which allows consumers to access their own credit reports.
Pursuant to 15 U.S.C. § 1681q, any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined, imprisoned for not more than two years, or both.
On or about December 5, 2014, Respondent entered Jacek’s identifying information, including Jacek’s name, address, date of birth, and social security number, into the www.creditreport.com website for the purpose of obtaining Jacek’s credit report.
On or about December 5, 2014, Respondent obtained Jacek’s credit report from the www.creditreport.com website.
At no time did Respondent request or receive Jacek’s permission or authorization to obtain Jacek’s credit report.
On December 8, 2014, Respondent filed on behalf of Bozena four reply briefs in Cook County Circuit Case No. 2013 D 7670. The reply briefs related to petitions for Jacek to pay additional child support and contribute to various expenses. As an exhibit to each reply brief, Respondent attached a portion of Jacek’s credit report that Respondent obtained from www.creditreport.com.
On December 11, 2014, after discovering that Respondent had obtained Jacek’s credit report without permission or authority, Jacek’s attorney, Lucas Figiel, filed an emergency motion for an order prohibiting Respondent from using Jacek’s credit report.
On December 11, 2014, after a hearing on Figiel’s emergency motion, Judge John Thomas Carr entered an order prohibiting Respondent from using Jacek’s credit report.
The underlying case involves marriage dissolution. (Mike Frisch)
Wednesday, September 23, 2015
An attorney who blogged about probate court was suspended for three years and until further court order by the Illinois Supreme Court.
From the Review Board report
This case involves Respondent's statements on a blog impugning the integrity of certain judges, guardians ad litem ("GALs") and the lawyers involved in a case in the Probate Court of Cook County. The Hearing Board concluded that Respondent violated Rules 8.2(a) which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer"; 8.4(c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation"; and 8.4(d) which prohibits "conduct that is prejudicial to the administration of justice."
The Administrator's Complaint alleged that Respondent made statements in violation of the above rules when she blogged about an adult guardianship of Mary G. Sykes ("Mary") pending in the Probate Division of the Circuit Court of Cook County ("the Sykes case"). In December 2009, the probate court had disqualified Respondent from representing Gloria Sykes ("Gloria"), one of Mary's daughters, in the case. Thereafter, Respondent published blogs related to the Sykes case. The Administrator's Complaint set forth ten excerpts taken from Respondent's blogs and alleged that the statements in the excerpts were made in violation of the Rules. See, Administrator's Complaint, paragraph 9. The Hearing Board based its findings on these ten statements. See, Hearing Bd. Report, pp. 7-16, 24-31.
Respondent does not dispute that she made the ten statements in question. She contends that the Hearing Board's findings are against the manifest weight of the evidence because the statements are true. She also contends that her statements on the blog are protected by the First Amendment of the United States Constitution (First Amendment). We have read Respondent's brief and have the benefit of the parties' oral argument before this Board...we affirm the Hearing Board's findings of misconduct and conclude that her false statements are not protected by the First Amendment.
I posted my view that this suspension is far too severe when the Review Board filed its report. (Mike Frisch)
The Illinois Supreme Court has accepted a consent suspension of a former assistant state's attorney.
From the Administrator's complaint
From 2008 through April 10, 2013, Respondent was employed as an Assistant State's Attorney with the Office of the Cook County State's Attorney. Respondent resigned her position as an Assistant State's Attorney in April 2010. Respondent was assigned to a felony preliminary hearings courtroom at the time of her resignation.
In her position as an Assistant State's Attorney, Respondent was a minister of justice as a representative of the people of the state of Illinois, sworn to support the constitution of the United States and the constitution of the state of Illinois.
On September 22, 2012, Respondent and a male companion, Bradley Gould ("Gould"), attended a Chicago Cubs baseball game where they were drinking alcoholic beverages. They continued drinking after leaving the game at a local bar and then a restaurant with family and friends.
On September 22, 2012, after leaving the restaurant, and beginning at or around 7:30 p.m., Respondent was near an adult merchandise store located at 854 W. Belmont Avenue in Chicago called "Taboo Tabou."
Respondent entered Taboo Tabou with Gould. Shortly after entering Taboo Tabou, Respondent and Gould began creating a disturbance by stumbling and speaking in loud voices and were asked by the store manager, Dinah Pineda, to leave the store. Respondent pulled a badge from her purse and told Pineda "you can't do this to me I'm a State's Attorney."
After approximately 10 minutes of Ms. Pineda repeatedly asking Respondent and Gould to leave, they exited the store. However, after approximately another 10 minutes, Respondent opened the door to Taboo Tabou and poked her head through, while yelling "bitches" at Pineda and another employee. At the same time, Respondent and Gould were banging on the glass windows of the store while shouting and making obscene gestures.
Ms. Pineda then called the Blue Havana cigar store, which is next door to Taboo Tabou, and has the same owner, to ask for help from an employee of that store, to see if he could get Respondent and Gould to leave and generally to diffuse the situation. At the same time Pineda call "911" for assistance.
David Boone, the employee from Blue Havana, arrived and repeatedly asked Respondent and Gould to leave, but they only became more belligerent. Respondent went into her purse again and presented her States Attorney's badge to Boone. Respondent swung at Boone. Boone tried to walk away from her, but Respondent fell. Respondent got up and then began running down the street, yelling that she had been "assaulted." At the same time, Gould began videotaping Boone with his cell phone which he positioned directly in front of Boone's face. The phone hit Boone and Boone hit the phone out of Gould's hand. Gould attempted to hit Boone, but Boone punched him and Gould hit his head on the metal window frame. Respondent then charged at Boone, fell to the ground, grabbed Boone's leg and bit him, breaking the skin and causing injury to Boone's knee. Several bystanders pulled Respondent off of and away from Boone.
The police arrived and placed Respondent in handcuffs and in a police SUV where she managed to get her hands out of the handcuffs. Respondent was taken out of the SUV by a female officer, re-handcuffed and put back in the vehicle. Respondent told the officer at least six times that she was an Assistant State's Attorney. Respondent called the officer "a cunt, slut, bitch whore, and dyke" and slapped at her. Respondent got out of the handcuffs again and was kneeling on the floor of the vehicle attempting to vomit. Respondent was taken out of the vehicle again and, while sitting on the curb, proceeded to try to make herself throw up while screaming obscenities.
After the police interviewed witnesses, Respondent and Gould were arrested. Respondent was ultimately charged with attempted official misconduct, battery, resisting arrest, criminal trespass to property, assault and disorderly conduct. People v. Sarah Naughton, 12 MC 1260599. Following a bench trial, Judge Anthony John Calabrese found Respondent and Gould not guilty on all charges on April 5, 2013.
The acquittal did not prevent discipline for the underlying behavior.
This link takes the reader to Above the Law's earlier coverage.
This Chicago Sun-Times article reports on the aftermath of the incident.
The case drew a fair amount of attention because part of the incident was caught on video and posted on YouTube, where at last count there were more than 67,000 views and roughly 100 comments. Another video – from inside the squad car – surfaced later, during Naughton’s 2013 trial, at which a judge acquitted Naughton of every charge, including resisting a peace officer, attempted official misconduct and battery. She left the state’s attorney’s office shortly thereafter.
An advisory opinion from the Connecticut Statewide Grievance Committee concludes that a proposed logo violates advertising rules
The logo depicts a multi-point star enclosed in a circle. Underneath is the first listed partner name of the law firm followed by word "law." The proposed phrase is "we listen. we care. we win." Since this phrase will be used in various forms of undetermined future advertising material, the proposed phrase on its own does not contain the name of an attorney admitted in Connecticut responsible for its content as required by Rule 7 .2( d) of the Rules of Professional Conduct. This opinion assumes that the proposed phrase, when placed in the context of actual advertising material, will comply with that requirement when disseminated.
The proposed advertisement violates Rule 7 .1 of the Rules of Professional Conduct because the reference to the firm winning is likely to create an unjustified expectation as to success. Rule 7.1 prohibits communications that are false or misleading. It is misleading for a lawyer to make claims in an advertisement that cannot be substantiated. Id. In some instances, an appropriate disclaimer given equal weight could correct a statement that is likely to create unjustified expectations or otherwise mislead a consumer. Id.
By stating, "we win" the firm is creating unjustified expectations for prospective clients. The firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits. The statement is misleading. The firm could correct this misleading statement by including a disclaimer, explaining that results are based on the merits ofthe case and that success in the past does not guarantee success in the future.
Tuesday, September 22, 2015
From the Idaho State Bar
On September 17, 2015, the Idaho Supreme Court entered an Order accepting the resignation in lieu of discipline of Eagle attorney, John T. Bujak. The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to the following conduct.
During his tenure as the Canyon County Prosecutor in 2009-2010, by agreement of Canyon County and Nampa, funds for prosecutorial services for Nampa were received and deposited in Mr. Bujak’s trust account, with an expected reimbursement from the trust account to Canyon County at the end of each fiscal year. Mr. Bujak removed funds from his trust account for personal use. At the conclusion of fiscal year 2010, there were insufficient trust account funds to reimburse Canyon County for expenses related to the Nampa prosecutorial services. Mr. Bujak admitted that these circumstances violated I.R.P.C. 1.4(b) [Communication with Client], 1.7(a)(2) [Conflict of Interest: Current Clients], and 1.15(a), (b), (c) and (e) (effective 2009-2010) [Safekeeping Property].
In addition, during the criminal prosecution of Respondent on a felony charge of preparing false evidence and a computer crime, Respondent admitted one count of contempt for willfully failing to disclose expert materials pursuant to I.C.R. 16 by the deadline ordered by the court. Mr. Bujak admitted that these circumstances violated I.R.P.C. 3.3(a) [Candor Toward the Tribunal], 3.4(c) (d) [Fairness to Opposing Party and Counsel], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].
A report from Idaho Statesman
John Bujak’s resignation last week from the Idaho State Bar ending the legal career, at least temporarily, of one of Idaho’s most controversial lawyers.
Bujak, 46, who survived four felony jury trials and a federal bankruptcy court trial without a guilty verdict, said he decided to give up his law license rather than continue to fight efforts to disbar him. Idaho State Bar Counsel Bradley Andrews filed a complaint against Bujak July 9, seeking disbarment and unspecified restitution.
More information at this link from Boise Weekly that links to reports of the Press-Tribune. (Mike Frisch)
Disciplinary prosecutors have long been aware of the correlation between alcohol and drug issues and problems with bar discipline.
Ohio has for some time required education about this issue for both applicants for admission and as part of an admitted attorney's continuing legal education.
A recent video posted on the Supreme Court's web page tells the story of a judge whose drinking led to such problems and may be useful as an educational tool. (Mike Frisch)
An attorney who used his IOLTA account for personal expenses over an extended period of time consented to a three-year suspension by the Pennsylvania Supreme Court
From the report of the Disciplinary Board
Respondent, while knowing it was wrong to do, paid for hundreds of personal expenses out of his IOLTA, using it as a personal account for approximately one year and nine months. Respondent made an untimely distribution of settlement funds to a client. He caused many overdrafts in his IOLTA, and deposited his own money into his IOLTA to make his clients, including a minor, whole. Respondent did not have permission to use his client's funds. By doing this he commingled his own funds with client funds and misappropriated client funds, even if the misappropriation was in small amounts and only for a short time. Respondent has no prior history of discipline; expressed remorse; and admitted his wrongdoing, as evidenced by his agreement to enter into a joint petition for discipline on consent.
An attorney admitted to practice in 2007 has been disbarred by the Pennsylvania Supreme Court.
The report of the Disciplinary Board notes that the initial misconduct was relatively minor and involved his failure to appear to receive an informal admonition.
However, he failed to participate in the ensuing proceedings and thus displayed his indifference t o his responsibilities.
Had he shown a "scintilla of interest" in retaining his license by responding to the charges, disbarment would likely not have been proposed and imposed. (Mike Frisch)
Monday, September 21, 2015
A recent Hearing Board report and recommendation from Illinois
Respondent acted as trustee of a trust his mother established, to provide for her care during her lifetime and for distribution of any remaining trust assets equally between Respondent and his siblings after her death. Over a five-year period, which began while his mother was alive and continued after she died, Respondent took more than $360,000 from the trust, without authority. Respondent had not repaid any of this money, even though two of his siblings filed a lawsuit, to which Respondent initially did not respond, and obtained a judgment against Respondent.
In the other matter, Respondent allegedly failed to properly communicate with a client he represented in a civil lawsuit and pursue that case after trial. In his response to the ARDC's initial inquiry into that matter and in his sworn statement to the ARDC, Respondent made false statements.
The Hearing Board found Respondent acted dishonestly in taking the funds from the trust, conduct which warranted professional discipline. In relation to the lawsuit against Respondent, the Hearing Board found the Administrator did not prove misconduct, as the evidence did not show Respondent's behavior actually prejudiced the administration of justice and Respondent was acting solely as a party to the lawsuit.
The client Respondent represented in the civil lawsuit did not testify. Consequently, the Hearing Board did not find sufficient evidence to support any findings of misconduct as to that matter. The Hearing Board found, however, that Respondent's statements to the ARDC about that case were false and Respondent knew they were false.
The Hearing Board recommended that Respondent be suspended for two years and until he satisfied the judgment against him in the civil case brought by his siblings.
The board rejected a sanction imposed of suspension until further court order
From our perspective, the evidence presented as to Respondent's mental health condition did not warrant a suspension until further order. The personal losses Respondent experienced, while significant, occurred in 2010 to 2011. No mental health symptoms were reported before fall 2010. By that time, Respondent had been misappropriating funds from the Moran trust for well over three years. The evidence did not indicate any genuine causal relationship between Respondent's mental health condition and his misconduct; the evidence of any link at all was inconclusive, at best. Further, the evidence did not provide real grounds on which to believe Respondent's mental functioning was currently impaired. From Dr. Henry's observations, Respondent's memory and abstract reasoning were intact. Respondent reported he had returned to normal functioning by 2012 or 2013, after receiving treatment.
We recommend Respondent's suspension also continue until he makes restitution.
A recent admonition from Massachusetts
ADMONITION NO. 15-20
Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]
Improper Threat or Presentation of Criminal or Disciplinary Charges [Mass. R. Prof.
On September 16, 2013, a New Jersey lawyer filed a civil suit in New Jersey Superior Court on behalf of her corporate client (Company A). The lawsuit alleged that the defendants, a corporate entity and an individual doing business as Company B, had failed to pay Company A for services rendered. The respondent represented the interests of an investor and managing member of Company B as its outside general counsel.
In October 2013, the respondent contacted the lawyer for Company A in an attempt to resolve the civil dispute. The parties were unable to resolve the matter. On or about January 27, 2014, the New Jersey court entered a default judgment against the defendants in the civil lawsuit. The defendants did not contest the entry of the default judgment or move to vacate the default judgment or reopen the matter.
On September 2, 2014, the respondent sent an email to the plaintiff’s lawyer, in which he threatened to file a motion with the Supreme Court of the United States of America seeking her disbarment unless she removed the default judgment. The respondent stated that if he was forced to file any motions in the case, he would seek her disbarment and significant attorneys’ fees and costs. After the lawyer responded to the respondent’s initial email, he sent her a second email on September 2, 2014, again threatening to petition the Supreme Court of the United States of America for her disbarment unless she dismissed the civil action and removed the judgment secured in that case. The respondent set a deadline of 6:00 p.m. on the following Friday for her to remove the judgment, or he would seek her disbarment. Therespondent further stated, “Should you have any questions, please retain the service of a competent Supreme Court of the United States of America practitioner.” Mass. R. Prof. C. 3.4(h) prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter. To the extent that the defendants had a valid defense to the New Jersey civil action, the appropriate remedy would have been for the defendants to move to vacate or remove the default judgment and seek to present their defense. In addition, the respondent had no non-frivolous basis for filing a petition seeking the disbarment of the New Jersey lawyer with the Supreme Court of the United States. In these circumstances, the respondent’s conduct violated Mass. R. Prof. C. 3.1 (prohibiting lawyers from asserting frivolous claims) and 3.4(h) (threatening to file disciplinary charges solely to gain an advantage in a private civil matter).
The respondent, who was admitted to practice in 1989 and had no prior discipline, received an admonition for his conduct on the condition that he attend a continuing legal education class identified by bar counsel.
The Wisconsin Supreme Court has reinstated an attorney who consented to license revocation in the wake of a federal wire fraud aiding and abetting conviction
Attorney Hurtgen's petition for consensual license revocation stated that he could not successfully defend against pending charges of professional misconduct relating to a conviction, entered following a guilty plea entered in the Federal District Court for the Northern District of Illinois, to one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2, in connection with a long-running federal investigation of corruption in the administration of former Illinois Governor Rod Blagojevich.
The favorable evidence
The referee noted that letters supporting Attorney Hurtgen's petition were filed by numerous persons, including former Wisconsin Governor James E. Doyle, that each writer spoke very highly of Attorney Hurtgen, and that several mentioned their belief that Attorney Hurtgen never acted inappropriately. The referee noted that Attorney Hurtgen currently serves as a managing partner of a private investment company and as an operating director of a Chicago-based investment and merchant bank. At this time, he does not intend to use his law license, if reinstated, to practice as an attorney but instead will use the license in his own business affairs.
Huffpost Chicago reported on the guilty plea. (Mike Frisch)
Common sense also demonstrates the impropriety of Respondent's action. In the process of crafting a clever argument to prove that no conflict existed because the confidential information lost its confidential value, Respondent loses sight of a fundamental test by which these questions ought to be resolved. The Comment to MRPC 1.9 reads, in relevant part: “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” We are of the opinion that when Respondent filed a suit sounding in contract against a former client, an entity he created, over a business transaction he helped construct by creating the relevant documents now central to the contract suit, he effectively changed sides.
The fact that Respondent joined the side of his former client's former business partner (who he also represented in the disputed transaction) bodes worse, not better, for Respondent. Were we to accept Respondent's position on this question, we would be approving precisely the type of betrayal of confidence and fiduciary duty the Maryland Rules of Professional Conduct are designed to protect. See Hughes v. McDaniel, 202 Md. 626, 633, 98 A.2d 1, 4 (1953) (“[T]he confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client's necessities, credulity and liberality.”). It does not take too vivid an imagination to perceive a situation where an attorney represents two parties who become embroiled in a controversy over a business transaction with one another. Under Respondent's view of what constitutes a conflict of interest, the attorney would be permitted to choose to represent the party he or she, in his or her professional judgment, stood the best chance of prevailing. This type of fair-weather loyalty and former client poaching is forbidden; an attorney may not abandon the duty not to harm a former client when circumstances make it expedient and/or self-serving to do so. As the Comment to MRPC 1.9 says, in pertinent part: “Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client.”
The court agreed that the conflict had not been waived and that the petitioner had acted dishonestly
The hearing judge found no mitigating circumstances. With 59 years experience as a member of the Maryland Bar, Respondent should have appreciated the extent
Friday, September 18, 2015
The Louisiana Supreme Court has disbarred an attorney for misconduct in several matters.
One notable episode of client counseling
Attorney Jonathan Johnson represented the father in a child custody matter in which respondent represented the mother of the minor child. On April 12, 2012, Mr. Johnson notified respondent that he would be filing an emergency custody petition on behalf of his client based on allegations that respondent’s client was abusing illegal drugs. That afternoon, respondent went to a health store and purchased a product called Ultra Clean, a shampoo advertised as purifying buildup of medication from the hair and commonly used in attempts to avoid a positive hair follicle drug test. After purchasing the shampoo, respondent visited his client at her home.
The following day, Mr. Johnson presented the emergency custody petition, and the presiding judge conducted a pre-trial conference in chambers. During the pre-trial conference, respondent adamantly denied that his client was taking illegal drugs. The judge ordered respondent’s client to submit to drug screening, including cuticle and hair follicle testing. The hair follicle test was negative, but the cuticle test was presumed positive for marijuana, amphetamines, and methamphetamines.
On March 11, 2013, respondent pleaded guilty to one count of theft of utility service and one count of theft. He was fined $500 and sentenced to serve one hundred eighty days in jail on each count. The court suspended the sentences and placed respondent on supervised probation for one year.
By his knowing and intentional misconduct, respondent has demonstrated a lack of concern for the welfare of his clients, third persons, the administration of justice, and the viability of his law license. After further considering the aggravating factors present in this case – in particular respondent’s selfish motive and his indifference to making restitution to his clients – the sanction of disbarment is fully supported.
A New York attorney not admitted to practice in Virginia has been sanctioned for misconduct relation to her immigration law practice by the Virginia State Bar Disciplinary Board
Respondent practiced immigration law in the Commonwealth of Virginia. Specifically, Respondent practiced in or was associated with law offices located in Fredericksburg and Arlington County, Virginia. In October of 2011, Respondent opened her own law office in Falls Church, Virginia. From October of 2011 to March of 2012, Respondent represented a client in an immigration matter in Virginia.
She had failed to comply with the terms of a reprimand and did not respond in the bar case predicated on the non-compliance
The Chair opened the hearing by calling the case in the hearing room and causing the Assistant Clerk to call Respondent’s name three times in the adjacent hall. The Respondent did not answer or appear.
Result: six month suspension in a jurisdiction where the attorney never was admitted. (Mike Frisch)
The Vermont Supreme Court has ordered the interim suspension of an attorney convicted of felony hit-and-run.
Details from the Rutland Herald
Former city attorney Christopher Sullivan will serve at least four years behind bars in the hit-and-run death of Mary Jane Outslay.
Sullivan, 55, of Rutland, was sentenced this afternoon in Rutland criminal court. A jury convicted Sullivan in March of driving under the influence with death resulting and leaving the scene of an accident with death resulting.
Judge Theresa DiMauro sentenced Sullivan to four to 10 years in prison on each charge, with the sentences to be served concurrently.
And from Vermont Today in July 2013
New filings in the hit-and-run case against former Rutland City official Christopher Sullivan show that prosecutors conducted secret inquest hearings before charges were brought.
Three weeks passed between the April 10 crash that killed 71-year-old Jane Outslay and the arrest of the attorney who pleaded innocent to felony counts of leaving the scene of a fatal crash and driving under the influence with death resulting.
Investigators and prosecutors with the Vermont attorney general’s office have been mostly close-mouthed about the reason for the delay in charging Sullivan, 53, who came to the city police department the day after the fatal crash to identify himself as the driver.
The lengthy investigation outraged some in the community who believed Sullivan was receiving special treatment. But investigators said the delays were due to a thorough investigation that included numerous interviews and the analysis of autopsy and crash reconstruction evidence.
In a motion filed in Rutland criminal court this month, an attorney representing an insurance company providing coverage to Sullivan indicated that prosecutors also conducted inquest hearings: closed-door court proceedings in which a witness answers a prosecutor’s questions under oath and in the presence of a judge.
“The state proceeded with a criminal inquest,” Springfield attorney Brendan Donahue wrote in a motion filed with the court June 7, adding that Sullivan’s wife was compelled to testify along with other witnesses. “The state subsequently filed charges against Mr. Sullivan.”
The content of the inquest proceedings is unknown. Assistant Attorney General Cindy Maguire, who is handling the case, declined to comment this week, as did Donahue.
The revelation that inquests were conducted was contained in a motion from Donahue who is trying to block a subpoena from prosecutors trying to obtain an insurance claim filed by the Sullivans.
Donahue, who represents GEICO auto insurance, wrote that Sullivan’s wife reported an incident to the insurance company April 11 but no recorded statement was obtained.
The motion doesn’t indicate whether the damage to Sullivan’s 2004 Lexus sedan was reported before or after he told police he was the driver in the crash. The subpoena ordered by the attorney general’s office indicates that prosecutors don’t know the answer to that question, either, as the request seeks “the time the claim was reported, who reported the claim and any statements made by the policy holders.”
After the initial claim was filed, Donahue said GEICO was directed to conduct all further communications regarding the claim through Rutland attorney William O’Rourke.
O’Rourke couldn’t immediately be reached for comment Wednesday.
In his motion to quash the state’s subpoena, Donahue argues that the company shouldn’t be compelled to turn the claim over to prosecutors because the file is protected by a number of exemptions, including attorney-client privilege and insurer-insured privileges. He also asked that if the documents must be turned over that they be examined in a private hearing.
Donahue also argued that prosecutors didn’t need the insurance records because of the inquest hearing.
“The state cannot make any showing that it is in substantial need of the information it seeks or that it is unable to obtain the equivalent information without undue hardship,” Donahue wrote. “The state has the benefit of the police investigation as well as the inquest testimony it gathered from various witnesses, including Mrs. Sullivan.”
The attorney general’s office has not filed a response to the motion and no hearing date has been set to consider the request.
Prosecutors say Sullivan was impaired by alcohol when he struck and killed Outslay, of Mendon, who was crossing Strongs Avenue at about 5:10 p.m.
Investigators said the impact did considerable damage to the hood and windshield of Sullivan’s car — including a significant hole in the passenger side of the windshield — but Sullivan did not stop at the scene.
Instead, police say he drove to a parking lot in Rutland Town where he called his legal partner for advice before going home.
The court has set a trial ready date in Sullivan’s case for January 15.
Sullivan served in City Hall as the city attorney and assistant city attorney for 19 years until 2007.
The suspension will remain in effect while the circumstances are investigated. (Mike Frisch)
The District of Columbia Office of Bar Counsel informally admonished an attorney who commingled funds by failing to remove an earned fee from her escrow account
Because you failed to promptly remove your earned fees from your IOLTA account, you commingled your funds with entrusted funds from two client matters for a six-week period of time. Such commingling violated the Rule, in that you failed to segregate your funds from those held in trust for clients and/or third persons.
We have determined that an informal admonition, rather than a more substantial sanction, is warranted under the circumstances of this case. Specifically, during the pertinent period of time, you properly placed client funds in trust rather than in your operating or personal account, which would have placed your clients' funds at risk. Here, there was no apparent risk to the clients and you made prompt disbursement to the clients and third party providers from the settlements. We also take into consideration that you do not regularly handle entrusted funds in the course of your practice and that you no longer manage the IOLT A account, but rather, have delegated that duty to the managing partner of your firm.
In deciding to issue this Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you cooperated with our investigation, you have accepted responsibility for your actions, and you have no prior discipline although you have been practicing in this jurisdiction for 34 years. You also have agreed to take six hours of Continuing Legal Education (CLE) classes, pre-approved by this office, and on the subject of trust accounts. You agree to forward proof of attendance of the CLE classes within six months of the date of this Informal Admonition and you agree that if this proof of attendance is not submitted to Bar Counsel within six months of this Informal Admonition, then this Informal Admonition will be considered null and void and we will re-open this matter.
Access the informal admonition at this link by entering the name Patricia Barnes . (Mike Frisch)
The New Jersey Supreme Court approved a recommendation by its Disciplinary Review Board for a three-month suspension of an attorney.
From the board report
This matter was before us on a recommendation for a (strong) censure filed by the District VB Ethics Committee (DEC).... The Office of Attorney Ethics (OAE) urged the imposition of a one-year suspension. Respondent’s counsel, in turn, took the position that either a reprimand or a censure is appropriate. For the reasons expressed below, we determine to impose a three-month suspension.
The misconduct involved ethical violations in three real estate closings.
Respondent stipulated that she had not properly collected or disbursed the closing funds, despite having certified that the HUD-I contained an accurate accounting of her disbursements for the transaction. For example, even though the HUD-I showed $212,874 in total proc,eeds to the sellers, respondent disbursed only $15,000 to the Grahams. Also, she wired $93,074.46 directly to Jorge Abbud, even though he was not listed on the HUD-I.
Her counsel argued
In his summation, respondent’s counsel characterized respondent as not a venal person, but an "unwitting dupe," who trusted Abbud and the parties to the transactions. She thought that Abbud had the lenders’ authorization to direct her to act as she did.
Respondent agreed to represent three buyers in real estate transactions arranged by loan officer Jorge Abbud. In all three matters, which closed between April 2007 and March 2008, respondent served as the settlement agent and drafted the HUD-Is. Respondent gave the parties the use and occupancy agreements and other customary closing documents for their signature, including sellers’ and buyers’ affidavits of title. She prepared some of those documents, while others were prepared by the lender. Nevertheless, respondent witnessed the signing of various false affidavits and certifications for the closings. She also disbursed funds in a manner inconsistent with the HUD-Is in all of the transactions. Throughout the proceedings below, she admitted that to the extent that she disbursed to Abbud funds that did not appear at all on the HUD-Is and disbursed to the buyers and the seller’s funds in amounts that were at odds with the HUD-Is, she was guilty of conduct involving dishonesty, fraud, deceit, or misrepresentation, violations of RPC 8.4(c).
Respondent also admitted that RPC 1.5(b) required her to provide her buyer clients, whom she did not regularly represent, with a writing setting forth the rate or basis of her fee and that, by failing to do so, she violated that RPC. She denied, however, that she had violated that rule with regard to the sellers...
In furnishing affidavits of title or owner occupancy agreements to the buyers for their signatures and having them sign those documents with the above representations, respondent facilitated what is commonly known as occupancy fraud. That type of fraud takes place when, in order to obtain more favorable loan terms, the borrower (the buyer) misrepresents to the lender that the property will be owner-occupied. Lenders typically offer lower mortgage rates and higher loans for owner-occupied homes, because investment properties historically present a higher delinquency risk.
The board rejected conflicts allegations
That respondent represented both buyers and sellers in some aspects of these transactions is undisputed, however. But we cannot find a violation of RPC 1.7(a). Respondent testified that she had explained the conflict to all of the clients in the three transactions and had obtained written conflict waivers from them. Those waivers are both comprehensive and fully informative. There is no evidence to contradict respondent’s version of the events in this regard. Because the clients gave informed consent, confirmed in writing, after full disclosure, we determine to dismiss the RPC 1.7(a) charges in all three matters.
A strong censure was deemed an insufficient sanction. (Mike Frisch)
An Illinois Hearing Board recently recommended a two-year and until further order suspension of an attorney for misconduct
which included the failure to safeguard a legatee's property, dishonesty, commingling by depositing his own funds into his client trust account, and failing to comply with requests from the Administrator, [and] is extremely serious.
The board notes
We find the Respondent's behavior over the past five years to be very strange, in light of his previous 30 years of practice without being disciplined. We have no evidence as to the possible motivation or causes of the Respondent's strange behavior, but we are concerned that his misconduct, his failure to participate in these procceedings [sic], and his other recent behavior may be causally related to some mental health issue, addiction problem or other impairment. In light of what is before us, we are not convinced that disbarment is the appropriate sanction in this case. We believe that a suspension until further order of the Court would adequately protect the public and the legal profession. With such a suspension, Respondent would not be permitted to practice law until he proves, by clear and convincing evidence, to the Supreme Court, following his filing of a Petition for Reinstatement and a hearing before a Hearing Panel, that he is fit to practice. Thus, if Respondent's misconduct was related to some impairment, he would have the opportunity to address that issue in a Petition for Reinstatment [sic] without the stigma of disbarment and being required to wait five years to do so.
Thursday, September 17, 2015
The court sustained the Board of Professional Responsibility's rejection of dishonesty charges and remanded for further consideration of conflict of interest charges.
There are several aspects of this action that I find unfortunate in a case that was so poisoned by counter-factual fact findings.
First, the court accepts the hearing committee's findings that the elderly victim of the gross misconduct was legally competent.
We take as a given for these purposes the Board’s conclusions that Ms. Ackerman had the legal capacity to make the decisions at issue; wanted to transfer her assets to Dr. Ackerman’s control; wanted to provide for Dr. Ackerman, even to her financial detriment; did not want the trust to continue; did not want Mr. Abbott to continue as trustee; was willing to pursue litigation to achieve these objectives; and was aware of the risks and costs of litigation. Nevertheless, there was evidence (largely if not entirely undisputed) of numerous other circumstances indicating a risk of conflicting interests requiring informed consent to joint representation.
My review of the record inescapably leads to a contrary conclusion to the findings of a obviously rogue hearing committee.
Second, the court should never remand matters to the BPR when it clearly is on record that it believes no misconduct occurred.
Well, as a judge of the court once said, I have a vote and you (loyal blogger) do not.
The remand requires an exploration of informed consent
In the circumstances of this case, we conclude that the Szymkowiczes could not properly represent both Ms. Ackerman and Dr. Ackerman without obtaining informed consent to the joint representation. Because it concluded that informed consent was not required, the Board did not decide whether informed consent was obtained. The Hearing Committee did conclude that Mr. J.T. Szymkowicz obtained Ms. Ackerman’s informed consent. Nevertheless, “[r]ather than deciding [that] issue without the benefit of the Board’s judgment, we leave [the issue] for the Board to consider on remand . . . .” In re Hopkins, 677 A.2d 55, 63 n.17 (D.C. 1996). We do, however, note several issues that may merit the Board’s consideration: (1) whether, as Bar Counsel contends, respondents bear the burden of establishing that they obtained informed consent or whether instead Bar Counsel bears the burden in disciplinary proceedings of establishing the absence of informed consent; (2) whether, as the Hearing Committee appears to have assumed, the determination whether Ms. Ackerman gave informed consent should be made under the standard applicable to the determination whether a party had capacity to engage in a transaction; (3) whether Rule 1.7 (b)(2) is violated whenever the requisite informed consent is not in fact obtained, or whether instead it is a defense under the Rule that the attorney reasonably but mistakenly believed that informed consent had been obtained; (4) the implications of Rule 1.14, which addresses the obligations of a lawyer representing a client with diminished capacity, a topic we discuss infra with respect to the conflict-of-interest charges against Ms. Silverman and Mr. King; and (5) the date on which the Szymkowiczes ended their representation of Ms. Ackerman.
The court concludes that "Ms. Ackerman’s mental capacity was indisputably diminished to a degree" and asks that the implications of Rule 1.14 be addressed on remand.
I view this result as somewhat better than a Get Out of Jail Free Card but have little hope that the board will treat the matter with the seriousness it richly deserves. (Mike Frisch)
An attorney convicted of driving while under the influence of cocaine has been publicly censured for the offense by the New York Appellate Division for the Second Judicial Department.
On October 3, 2013, before the Honorable Derrick Robinson, District Court, County of Suffolk, First District, the respondent pleaded guilty to the charge of driving while ability impaired by drugs, under Vehicle and Traffic Law § 1192(4), an unclassified misdemeanor. In his plea allocution, the respondent admitted that he operated a motor vehicle in an impaired condition, after ingesting cocaine. The respondent was sentenced on February 19, 2014, to three years of probation, a $500 fine, a $395 surcharge, and revocation of his driver license for six months. Based upon the foregoing, charge two of the petition alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct.
No suspension because
In determining an appropriate measure of discipline to impose, this Court has considered the following factors in mitigation: the isolated nature of the misconduct, the respondent's voluntary efforts at rehabilitation, his sincere statements of remorse, the testimony of the character witnesses as to the respondent's integrity and reputation for excellence, and his unblemished disciplinary record.
What is notable here is the profound difference in disciplinary consequence between a felony and misdemeanor conviction in New York.
Lawyers are regularly disbarred for felony DUI but a misdemeanor gives the court discretion to impose a mild sanction, as here. (Mike Frisch)