Monday, January 25, 2016

Payback

The Illinois Review Board has recommended that a petition for reinstatement be denied.

He was disbarred as a consequence of a federal felony conviction

In 1985, Petitioner was convicted in federal court of conspiracy to defraud the United States Department of Housing and Urban Development of funds designated for the construction of a low income housing project in East St. Louis, Illinois. Petitioner was also convicted of soliciting bribes while acting in an official capacity, theft of funds and filing false income tax returns. He was sentenced to seven years imprisonment. In 1986, Petitioner was disbarred. In 1986, Petitioner was convicted in state court of theft by deception by taking funds belonging to a Park District Board. In 1992, the Court denied Petitioner's first petition to the practice of law.

One problem

Petitioner primarily contends that the Hearing Board erred in considering his lack of restitution as evidence of his lack of rehabilitation. Petitioner continues to contend that restitution is not appropriate because no courts have ordered him to pay restitution. As noted by the Hearing Boards in both of Petitioner's reinstatement proceedings, Petitioner misunderstands restitution in the context of a disciplinary reinstatement proceeding. An order of restitution by a court is not a prerequisite to the establishment of restitution in a reinstatement proceeding. In a reinstatement context, the question is whether there is either "an improper benefit to the disbarred attorney or a loss to some victim." In re Alexander, 128 Ill.2d 524, 536, 539 N.E.2d 1260 (1989). Disgorgement of an improper benefit and repayment of funds taken illegally or improperly are viewed as a factor indicating a petitioner's rehabilitation. Here, Petitioner clearly obtained an improper benefit by receiving illegal kickbacks and his conduct resulted in a loss of funds to HUD.

Thus

Petitioner's employment and his charitable activities following his disbarment have been commendable. However, as found by the Hearing Board, Petitioner failed to demonstrate on balance that reinstatement to the practice of law is warranted at this time. Petitioner has not yet presented sufficient evidence as to his understanding of his misconduct and as to his plans to avoid future misdeeds. To recommend reinstatement, we should be confident that Petitioner has recognized the causes of his misconduct, has made amends for his misdeeds by making restitution, has refrained from engaging in misconduct for a reasonable period of time, and has presented a realistic, detailed plan to face any future challenges.

(Mike Frisch)

January 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

The Fraud Of Self Regulation

Jane Ann Morrison in the Las Vegas Review-Journal has a report on the sorry state of the Nevada bar discipline system

The backlog of attorney discipline proceedings in Nevada reached a point of ridiculousness around four years ago.

Complaints alleging attorney misconduct languished for as long as three years, sometimes even five. Clients complained. Other attorneys complained. Even judges privately complained their referrals of certain lawyers to the State Bar of Nevada seemed to drop into Neverland.

There were two places where backlogs emerged — the State Bar and the Nevada Supreme Court, which made the final decisions.

The State Bar counsel lacked adequate staff to handle the growing number of complaints. The Supreme Court lacked time to make the final decisions about appropriate discipline.

Those two points of delay meant some lousy lawyers were allowed to keep practicing for years because no action was taken by the State Bar or Supreme Court. On the other hand, some good lawyers had disciplinary actions hovering over them unnecessarily.

In June 2014, the bar's board of governors decided to make reducing the backlog of attorney discipline grievances a priority.

I've written for years about complaints going nowhere. The answer I always received: not enough staff.

When Rob Bare headed the Office of State Bar Counsel between 1993 and 2011, he had 10 staffers, including three attorneys and four legal assistants. After he became a judge, David Clark took over and the backlog, which had grown under Bare, increased under Clark.

When State Bar President Laurence Digesti took office in 2015, the numbers were horrifying. As of July 1, 2014, there were 415 grievances pending that had been screened and were ready for hearings. Of those, 38 were more than six months old and involved a total of 114 attorneys — an unacceptable backlog.

However, as discipline cases are resolved, more are filed, so the bar added new staff to the Office of Bar Counsel.

New State Bar Counsel Stan Hunterton, hired in October, has hired a retired Internal Revenue Service financial expert. Another attorney has been hired. By the end of January, there will be eight lawyers and five paralegals among the total staff of 18 in Las Vegas and Reno.

"We've made significant progress in 2015, but we haven't reached our goal," Digesti said. "We are on schedule to complete 110 attorney discipline hearings in 2015, a 72 percent increase over 2014," he wrote in the bar's publication, Nevada Lawyer. Pending investigations were reduced from 441 to 240, a reduction of 46 percent.

While the bar hasn't met its goal of having no cases ready for hearing that are more than six months old, he's pleased with the progress.

The bar also proposed, and the Supreme Court approved, substantive changes that will make attorney discipline more open. No more private letters of reprimand, the lightest form of discipline. Those letters will be public. No more informal hearings. And if an attorney is disbarred, the most serious discipline, the disbarred attorney cannot apply for reinstatement.

Hearing panels will be cut to three people from five — two attorneys and a lay person — making it faster and easier to schedule disciplinary hearing panels together.

Supreme Court Justice James Hardesty credited the new Court of Appeals with giving the justices more time to reduce the discipline backlog. The appeals court has been assigned 816 cases since it began work last year, and it has resolved 712.

"We had 25 discipline cases pending as of Jan. 1, 2015," Hardesty said. Meanwhile, throughout 2015, 113 more discipline cases were filed. The court disposed of 126 discipline cases last year. Only six of the pending 25 are older than six months. "A lot of these cases went back three years," he said.

"There is no question these improvements by the State Bar and the court will better protect the public," Hardesty said, referring to reducing the backlog as well as process changes.

"For bar discipline to be effective, it has to be timely," the justice said.

Hardesty was one of the leading proponents of the appellate court, which flopped with voters in 1972, 1988 and 2010 before winning voter approval in 2014. "I am delighted with the performance of the Court of Appeals," Hardesty said.

Hardesty said the court started seeing the backlog at least four years ago. When he was first elected in 2004, about 30 to 35 bar cases were sent to the court. Then it increased to 70 a year. "This year alone we saw 113," Hardesty said.

When a lawyer is no good, people are harmed.

"We made a commitment to get this problem fixed," Digesti said. "I see some improvement, and it's not where I'd like it to be, but we're getting there. We owe it to the public."

Client complaints range from the attorney won't call them back to the attorney stole from their client trust funds. Maybe they lost their home because the lawyer didn't flle the right paperwork on time.

At times, I became aware that multiple complaints had been filed against a particular attorney. Bankruptcy attorney Randolph Goldberg comes to mind. Clients began filing grievances against him starting in 2007. Bankruptcy judges sanctioned him in 2009, 2010 and 2013. Two of his clients grew so frustrated, they went to the Internal Revenue Service, which moved faster than the bar had. He went to prison in 2013 for tax evasion and was suspended from practicing.

Goldberg was released from prison in May, if anyone cares.

A judge in Louisiana recommended in September 2013 the Nevada bar investigate personal injury attorney Glen Lerner in connection with alleged unethical behavior in the British Petroleum oil spill case. Lerner denies any wrongdoing.

At this time, no complaint has been filed against him, more than two years after a judge asked the bar to look at him.

Hunterton said speeding the process up to discipline attorneys is like "turning a battleship around. It's one thing to give the order to turn it around, but it takes time to turn that big boat."

The numbers at the end of 2016 will tell whether the efforts of the State Bar and the Supreme Court turn the battleship and succeed in protecting the public from unethical, even criminal, lawyers.

The math is telling. If 115 complaints against lawyers made it to the Supreme Court in 2015, and hundreds more were screened and dismissed as without merit, and there are about 11,500 attorneys, then there's a minuscule number of rotten attorneys in Nevada.

Still, the public needs to be protected from the bad lawyers who ruin people's lives.

Dillydallying is not acceptable.

In the District of Columbia system - supposedly a model to emulate - the problem of delay is even worse than that described here (although a hearing committee noted the issue). So far as I can determine, no one in a position of responsibility cares at all.

When will the public revulsion change the fraud that is lawyer self-regulation? It is painfully obvious that the foxes do a lousy job guarding the henhouse. (Mike Frisch) 

January 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Motive At Issue

From the web page of the Ohio Supreme Court

The Board of Professional Conduct recommends that Lorain lawyer Mark R. Provenza be suspended from practicing law for one year, with six months stayed, for mishandling cases for two clients, not carrying professional liability insurance, and neglecting to deposit funds into his trust account as required by professional conduct rules.

Two Clients File Grievances
Robin Maxwell-Smith hired Provenza in December 2013 to handle her divorce. According to the board’s report, Maxwell-Smith paid the lawyer $300 for court costs to initiate the divorce and $500 to retain his services. Provenza didn’t deposit the money into his trust account.

The board found that Provenza never filed the divorce complaint, told Maxwell-Smith to appear in court when he hadn’t submitted any paperwork, and refused to respond to multiple calls and texts from her. He also didn’t put their fee agreement in writing and failed to inform his client that he wasn’t covered by professional liability insurance.

In March 2014, Provenza was appointed by a juvenile court to represent Susan Hughes, who had been accused of contributing to truancy. Provenza didn’t respond to Hughes’ attempts to reach him, didn’t meet with her about her case except for one five-minute discussion before a court hearing, and didn’t research her case or review her materials. The board found that Provenza failed to properly and adequately communicate with his client and neglected to diligently represent her. He also failed to tell Hughes he had no professional liability insurance.

Board Proposes Actual Suspension
The Lorain County Bar Association, which filed the charges, and Provenza agreed to certain aggravating and mitigating factors in this disciplinary case. The board, however, added another aggravating factor – a dishonest and selfish motive – for his failure to refund Maxwell-Smith’s fees. The board stated that the lawyer’s “cavalier attitude” necessitates a sanction that protects the public. It concluded a one-year suspension with six months stayed with conditions, including that he pay back $800 to Maxwell-Smith within a specific timeframe, was appropriate.

Lawyer Objects to Additional Finding, Increased Sanction
Attorneys for Provenza have filed objections to the board’s report. While they emphasize their agreement with the factual findings and recommendations made by the bar association, they contest the board’s addition of the dishonest and selfish motive aggravating factor and the elevated sanction.

They note Provenza was experiencing some personal problems, centering on his fiancée’s medical issues, at the time he took on these two cases. The situation drained him both financially and emotionally, they assert. They argue that the financial burden explains Provenza’s inability at the time to repay Maxwell-Smith’s fees and to renew his professional liability insurance. The facts don’t support an intent to defraud or a dishonest motive, they maintain, adding that the bar association recommended only a six-month fully stayed suspension without this finding. They ask the Court to accept the agreement made with the bar association for a lesser sanction.

Bar Association Agrees with Attorney
Lawyers for the bar association first point out that the professional conduct rules require attorneys to place fees not yet earned into trust accounts so the money can be returned to the client if unearned. In that regard, the bar association’s counsel finds Provenza’s personal reasons for why he couldn’t refund Maxwell-Smith unconvincing.

However, they don’t believe Provenza’s actions stemmed from a dishonest or selfish motive. If the Court agrees that the addition of this aggravating factor isn’t supported by the evidence, then the bar association maintains the original, stipulated six-month stayed suspension should be imposed.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

(Mike Frisch)

January 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, January 24, 2016

Less Than Disbarment For Attorney Who Took Funds To "Satisfy Personal Desires"

The Illinois Review Board has proposed a one-year suspension of an attorney  who failed to safeguard funds.

A sanction less less than disbarment was appropriate because

We agree with the Hearing Board that Respondent's conduct is mitigated by certain factors. Respondent has not been previously disciplined. He has performed pro bono services and volunteer work, particularly in the Ukrainian and Latin American communities. He called one character witness who testified as to his good reputation. He expressed remorse and acknowledged his misconduct. He made full restitution of the funds he took. Given these factors, Respondent's misconduct warrants a suspension rather than disbarment.

Respondent also testified that he was experiencing stress when he took the funds. His cousin owned a building in Chicago that housed a bakery, Ann's Bakery. The building had a fire in June 2012, and Respondent helped his cousin and spent a significant amount of time seeing to the repairs and insurance claims. Respondent expected to be paid for his work but he testified that the payments to him were late. He also testified that his grandmother, who lived in California, died in 2013. Respondent's mother, who also lives in California with his father, experienced declining health in 2012.

However, Respondent offered no medical testimony tying his stress to the conversion of client funds. Respondent did not spend any of the converted funds on his family members or renovation of his cousin's building. We see no evidence that Respondent's stress contributed to his decision to take client funds totaling $23,000 and use them for frivolous purchases. Accordingly, we give this evidence little weight as mitigation.

In aggravation, the Hearing Board found that Respondent's former position as an Assistant States Attorney should have heightened his awareness of the wrongfulness of his conduct. See, e.g., In re Crisel, 101 Ill.2d 332, 343, 461 N.E.2d 994 (1984). In addition, Respondent's conduct was aggravated by his poor financial condition at the time of his misconduct, which makes his decisions to take the funds to maintain his lifestyle even more troubling. See, e.g., In re Uhler, 126 Ill.2d 532, 540, 535 N.E.2d 825 (1989).

...we believe that a one year suspension is also appropriate in this case. While Respondent has not been previously disciplined, his misconduct in deliberately taking settlement proceeds and using the proceeds for arguably frivolous personal expenses warrants a significant sanction. We also believe that a one year suspension meets the purposes of the disciplinary proceeding, will serve to protect the public and will hopefully deter other attorneys from deliberately taking client funds to satisfy their personal desires.

Disbarment is a more effective deterrent. (Mike Frisch)

January 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 22, 2016

Making The Victim Whole?

The Illinois Supreme Court has ordered a suspension of a year and a day of an attorney convicted of retail theft.

We had the story when the ethics charges were filed

 In the early afternoon of  February 22, 2013, Respondent was present at the Whole Foods supermarket in  River Forest, Illinois. She placed approximately seventeen articles of  merchandise, including food items and cosmetics, into her pockets and purse. The  items had a value of approximately $176.98. Thereafter, she walked past the cash  registers and attempted to leave the store without paying for the items. Loss  prevention agents detained Respondent outside the store. Respondent admitted to  taking the items, stating, "I don’t know why I did it." The loss prevention  agents contacted the River Forest Police Department, and an officer responded to  the scene.

She had previously been sanctioned for unauthorized practice and driving under the influence.

The bar charges are linked here. (Mike Frisch)

January 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not Wonder Woman

A disciplinary sanction imposed by the Colorado hearing board

Following a hearing, a hearing board suspended Lynda Elizabeth Carter (Attorney Registration Number 41106) for eighteen months. Carter’s suspension took effect on January 20, 2016. To be reinstated, Carter will bear the burden of proving by clear and convincing evidence that she has been rehabilitated, has complied with disciplinary orders and rules, and is fit to practice law.

Carter, a recent admittee to the bar who operated a solo practice in Pagosa Springs, represented a man charged with misdemeanor sexual assault. She inadequately communicated with him, failed to safeguard his funds, neglected to properly withdraw from his representation, and recklessly converted advance legal fees. She thereby violated Colo. RPC 1.4(a)(3) (a lawyer shall keep a client reasonably informed about the status of the matter); Colo. RPC 1.5(f) (a lawyer does not earn fees until a benefit is conferred on the client or the lawyer performs a legal service); Colo. RPC 1.15(a) (2008) (a lawyer shall hold client property separate from the lawyer’s own property); Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by giving reasonable notice to the client and refunding unearned fees); and Colo. RPC 8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

In a second representation, Carter agreed to help a client recover funds from the sale of logging machinery. She did not communicate with the client sufficiently and did not safeguard his retainer, again violating Colo. RPC 1.4(a)(3), 1.5(f) and 1.15(a) (2008).

In addition to this client-focused misconduct, Carter failed to pay a court reporter’s invoice for deposition transcripts. By doing so, she breached Colo. RPC 8.4(d) (a lawyer shall not engage in conduct prejudicial to the administration of justice).

The opinion is linked here. (Mike Frisch)

January 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Photo Finish

An attorney convicted of a tax crime has been disbarred by the New York Appellate Division for the First Judicial Department.

On April 14, 2015, respondent pled guilty in the United States District Court for the Southern District of New York to corruptly endeavoring to obstruct and impede the due administration of the Internal Revenue laws in violation of 26 USC § 7212(a), a felony. The facts underlying her plea are as follows: in an attempt to lower her tax burden and in response to an IRS audit, respondent, inter alia, created false tax documentation which indicated that two individuals, a photographer who performed services in connection with religious celebrations for members of respondent's family and a medical professional who had performed medical services for a member of respondent's family, had provided services to her law practice and had been paid fee income by respondent as a result. In fact, neither of these individuals had provided such services. Respondent presented the false documentation to the IRS during the course of an audit of her and her husband's joint tax returns in order to substantiate fake deductions and expenses.

On July 31, 2015, respondent was sentenced to incarceration for one year and one day, one year of supervised release upon her release from prison, and restitution in the amount of $99,546, representing the tax loss to the federal government. Respondent paid the restitution prior to sentencing. Due to child care issues, the court directed respondent to begin serving her prison sentence after her husband completed his 18-month prison sentence for similarly obstructing the IRS as well as for tax evasion.

Disbarment is automatic in New York for such an offense. (Mike Frisch)

January 22, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 21, 2016

The Finger

The New Jersey Supreme Court has disbarred an attorney convicted of a robbery offense.

The crimes committed by the attorney are described in the report of the Disciplinary Review Board

According to an April 2, 2009 indictment, on five occasions, between February and April 2008, respondent entered and robbed eating establishments. She was charged with two counts of second-degree robbery...three counts of first-degree armed robbery...and two counts of third-degree aggravated assault...

On April 19, 2010, respondent pleaded guilty to one count of the indictment, admitting that she had robbed McMillan’s Bakery on February 21, 2008... Respondent concealed her finger in a paper bag and told McMillan’s employees "something to the effect of give me the money and nobody gets hurt." The remaining counts of the indictment were dismissed.

The sentencing judge noted that the attorney suffers from physical and mental issues. She was sentenced to five years.

The DRB felt "some measure of sympathy" for the attorney but not enough to warrant a lesser sanction. She had been on disability inactive status since 2002. (Mike Frisch)

January 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Day Late

A District of Columbia Hearing Committee has recommended that a consented-to 30 day suspension with automatic reinstatement be approved for an attorney who had failed to disclose his client's death in a telephone call with the mediator of the day before a mediation in which the client was a plaintiff in an action against her landlord for a toxic tort.

The attorney did disclose the death to the mediator on the following day at the mediation.

The committee concluded that automatic reinstatement is appropriate as the attorney had no prior discipline.

The case is In re Kenneth Rosenau and can be found at this link.

Any approved consent is a cause for celebration in D.C. the case was docketed for investigation in 2013. (Mike Frisch)

January 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Patented Censure

A public censure was imposed on an attorney by the New York Appellate Division for the Second Judicial Department

The respondent resides in North Carolina and is a member of the North Carolina Bar. He is a registered patent agent and patent attorney. His practice focuses on patent and trademark matters.

In February 2007, the respondent agreed to represent a client, David Abels, in a patent matter, which included the drafting and filing of a United States nonprovisional application and/or a Patent Corporation Treaty (hereinafter PCT) international application claiming priority to a prior provisional application filed by the client. The subject application was intended to preserve priority rights and had to be filed by January 16, 2008. The respondent failed to file the type of application for which he had been retained, as he mistakenly concluded that the subject application would be of no benefit since it related to a prior version of the product. Without ever consulting his client, the respondent directed a paralegal at his firm to prepare and file a nonprovisional application and a PCT application that removed claims for priority. As a consequence of the respondent's mistake, his client did not have priority to the provisional application. The respondent and his client settled a civil lawsuit regarding the matter for $175,000.

The respondent understood that his conduct deviated from the ethical standards and disciplinary rules of the USPTO Code of Professional Responsibility. He was remorseful. He had no prior disciplinary history before the Office of Enrollment and Discipline.

He had accepted a reprimand by the USPTO. (Mike Frisch)

January 21, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 20, 2016

Outside City Limits

A night of drinking at the City Limits Saloon in Raleigh led to a disciplinary complaint filed against an attorney by the North Carolina State Bar.

It is alleged that he became disruptive when the establishment declined to serve him due to his intoxication and asked him to leave. When a Sheriff's Deputy tried to get him cab, he allegedly became belligerent and twice kicked him in the shin. He then informed the officer that he would "kick his ass."

It got worse from there.

He was spitting so much that he was fitted with a spit guard. Taken to the hospital, he threw the spit guard at an officer and urinated on the hospital floor. When given a receptacle to pee in, he did so but threw it at officers and some urine splashed on an ER nurse.

The incident resulted in a conviction on several charges. He was sentenced to 60 days followed by probation.

Fox News 8 reported on the incident and described him as a prominent criminal defense attorney.  (Mike Frisch)

January 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Long Time Coming

The web page of the Pennsylvania Disciplinary Board reported the suspension of a recently-convicted attorney.

Trib Live News had reported on allegations

When an Allegheny County grand jury recommended charges against former county Councilman and Solicitor Charles McCullough for allegedly taking money from an elderly woman's estate, the Steelers were Super Bowl champions, Barack Obama had recently become the first black president, and the iPhone 3 was relatively new.

In the five years since, the Steelers have not won a Super Bowl, Obama won a second term and the iPhone 6 is Apple's latest device. Meanwhile, the case against the Upper St. Clair Republican has been mired in continuances and appeals. Common Pleas Judge Donald E. Machen, who was presiding over the case, retired.

The case has muddled through two defense attorneys, two judges, six continuances, three status hearings, at least 15 motions and two appeals.

For the first time since McCullough's arrest Feb. 19, 2009, his lawyer believes the case is finally on track. Common Pleas Judge David R. Cashman, administrative judge for the court's criminal division, assigned the case to Judge Lester G. Nauhaus in November and scheduled a trial for April 13.

The trial will go forward unless something “completely unexpected” happens, said McCullough's lawyer, Jon Pushinsky.

“He always wanted his opportunity to vindicate himself and put the government's allegations to the test of evidence,” Pushinsky said. “We remain hopeful that what he is accused of was not a violation of the law.”

Prosecutors say McCullough, 59, abused his power of attorney to take about $200,000 from the $14.7 million estate of Shirley Jordan, an elderly dementia patient who died in 2010 at 93. They say McCullough used the money to enrich his family and political allies.

Pushinsky contends that an Orphans' Court judge approved his client's actions regarding Jordan's estate, and what he did was not illegal. McCullough, county solicitor for a year before serving as a county councilman from 2007 to 2011, faces two dozen counts, including nine counts of felony theft.

Mike Manko, a spokesman for the District Attorney's Office, declined to comment, as did McCullough.

Authorities say McCullough stole the money from Jordan's estate in 2006 and 2007 while acting as its co-trustee. The grand jury said he illegally paid himself and his sister, Kathleen McCullough, and donated $50,000 to Republican election campaigns and a charity run by his wife, Patricia A. McCullough, now a Commonwealth Court judge.

Jordan told a district attorney's detective during interviews in 2007 that Charles McCullough stole her money. “Yes, he handles everything now, and I did not give him permission.”

Kathleen McCullough, 52, of Collier is charged with theft and conspiracy in connection with the case. Her trial is scheduled for April 13 before Nauhaus. Neither she nor her court-appointed lawyer could be reached.

According to the grand jury, Charles McCullough arranged for his sister to get $60 an hour to be a companion for Jordan when Kathleen McCullough was fired from her job at Mackin Engineering amid accusations that she embezzled $1.25 million — a crime for which she was sentenced in August 2010 to two to four years in prison.

According to the grand jury, Charles McCullough's son was paid to cut grass at Jordan's home, and Catholic Charities received a check for $10,000 from Jordan's estate while his wife was the group's executive director. Patricia McCullough is not charged.

Jordan told investigators that she did not authorize the contribution, according to the criminal complaint.

“Oh, come on. Would I be crazy enough to give out a check for $10,000 to someone that I didn't know?” Jordan told investigators.

Several County Council members who served with Charles McCullough declined to comment.

Pushinsky said most of the continuances over the years were “part of the process” of a complex case involving more than 10,000 pages of documents. “This is not a routine case,” he said.

Pushinsky was responsible for an April 2012 continuance, and a delay occurred in September 2011 when McCullough fired his lawyer, Patrick Thomassey, over “irreconcilable differences.”

The case was continued again in July because of a death in Pushinsky's family.

(Mike Frisch)

January 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 19, 2016

Klayman Bar Hearing Next Week

Free entertainment is available in a disciplinary hearing scheduled next week in a District of Columbia bar matter.

According to the web page of the Board of Professional Responsibility, this case is up for hearing

In re Larry E. Klayman, DN. 2008-D048
January 26-28, 2016, 9:30 a.m.
Courtroom II

We had this coverage of a previously-scheduled hearing in the matter

The petition (which is not available on line) alleges three instances of violations of District of Columbia Rule of Professional Conduct 1.9 in representing  interests materially adverse to Judicial Watch in the same or substantially related matters.  

It states that Mr. Klayman was Chairman and General Counsel of Judicial Watch from July 1994 to September 2003.

H. Clay Smith is the disciplinary counsel prosecuting the case. (Mike Frisch)

January 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Probation Fail, System Works

suspended An attorney who was subject to a stayed year and a day suspension on conditions violated the conditions and is now suspended for a year and a day.

The Pennsylvania Supreme Court had ordered the stayed suspension last September. A probation violation hearing was held in December.

According to the Disciplinary Board report, the attorney "violated the terms and conditions of his court-ordered probation by using mind-altering chemicals, failing to reside in a sober-living facility, and failing to maintain contact with his sobriety monitor."

The revocation was handled with impressive dispatch - charges, hearing and a court order in less than six weeks.

Even though the violation was uncontested, such prompt action does suggest that in Pennsylvania public protection counts for something. (Mike Frisch)

January 19, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 18, 2016

Former Judicial Candidate Charged With Ethics Lapses

The North Carolina state Bar has filed a complaint alleging that an attorney engaged in misconduct in the domestic cases of herself and others.

The complaint alleges that she had failed to comply with a court-ordered mental health and substance abuse evaluation, filed a frivolous lawsuit and filed judicial ethics complaints with basis against judges involved in her divorce case.

The complaint seeks either a disability suspension or a suspension based on misconduct.

The Winston-Salem Journal reported in 2012 that the attorney -then a candidate for judicial office - had been accused of stalking.

A former boyfriend of Amy Allred, a Winston-Salem lawyer running for Forsyth district court judge, told city police in 2010 that Allred struck him in the head with a remote control. Then, he told police in 2011 that she stalked him after they broke up, according to police reports on the incidents.

David Arden Amundson, 50, the ex-boyfriend, refused to cooperate in prosecuting Allred, according to the police report, and Allred was never criminally charged. He never obtained a domestic-violence protective order against Allred.

Allred, 39, is running for an open judicial seat in Forsyth District Court against Assistant District Attorney David Sipprell. Allred, who runs her own law firm specializing in family law, unsuccessfully ran in 2008 against Forsyth District Judge Chester Davis, who is retiring.

Her response to the stalking allegations is linked here. (Mike Frisch)

 

January 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, January 15, 2016

Second Chance

The Louisiana Supreme Court has readmitted an attorney conditionally licensed in 2011 who violated the conditions

Petitioner disclosed two DWI arrests on his application to take the Louisiana bar examination. In addition, the reported findings of an evaluation by the Lawyers Assistance Program (“LAP”) indicated the need for an intensive outpatient treatment program and ongoing monitoring by LAP as a result of petitioner’s history of alcohol abuse. In 2011, we conditionally admitted petitioner to the practice of law, subject to a period of probation coinciding with the remainder of his LAP agreement, which he entered into on October 21, 2009. In re: Ranshi, 09-2722 (La. 03/25/11), 57 So. 3d 1019. On May 13, 2014, we revoked petitioner’s conditional admission after he violated the terms of his LAP contract by testing positive for alcohol use while under monitoring of that program. In re: Ranshi, 14-0767 (La. 5/13/14), 139 So. 3d 989...

After considering the record in its entirety, we will adopt the adjudicative committee chair’s recommendation and readmit petitioner to the practice of law. Petitioner voluntarily admitted himself to Palmetto Addiction Recovery Center for inpatient treatment from June 2, 2014 through August 18, 2014. He continues treatment through aftercare counseling with a social worker and through quarterly follow-up care at Palmetto. He is currently considered to be in sustained full remission from alcohol dependence and safe to practice law. Petitioner also signed a new five-year LAP agreement on September 9, 2014, and LAP’s executive director indicates petitioner has remained compliant with the terms and conditions of the agreement since that time.

The conditional readmission requires compliance for five years and also comes with a stern warning

In light of petitioner’s past conduct, we take this opportunity to caution him that, in the future, we will expect nothing less than scrupulous adherence to the requirements of his LAP agreement. The ODC shall monitor petitioner’s compliance with his LAP agreement and notify this court of any violation, which may be grounds for immediately transferring petitioner to disability inactive status, or placing him on interim suspension, as appropriate.

(Mike Frisch)

January 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Innocence Attorney Found In Violation Of Ethics Rules

A panel has found misconduct by an attorney who retained a water bottle to test for DNA after interviewing the sister of a suspect in the crime for which her client (in part through her efforts) was exonerated and saved form execution, according to this report from the Associated Press.

The North Carolina State Bar has ruled that a lawyer who advocated for the wrongly convicted committed an ethical violation while trying to prove the innocence of a client.

Multiple media outlets report a State Bar disciplinary panel ruled Thursday against Chris Mumma, director of the North Carolina Center on Actual Innocence. Mumma was accused of taking a water bottle from someone without permission and having it tested for DNA.

 Mumma was trying to prove the innocence of Joseph Sledge, who served almost 40 years for a double murder until he was proven innocent. He was released from prison a year ago.

 

Multiple media outlets reported that the panel dismissed claims that Mumma was dishonest or deceitful or acted in a way prejudicial to the administration of justice. The panel will now determine her punishment, which could range from reprimand to disbarment.

Fred Morelock, the chairman of the panel, said the phrase repeated in the deliberations of the three-member panel was “crossing the line.”

The charges against Mumma date to 2013, when she and an employee of the innocence center went to the home of the sister of two brothers who had been suspects.

Mumma failed to convince the woman, Marie Andrus, to provide a DNA sample that could be tested to include or exclude her brothers as suspects, Mumma picked up her note pad and other items and grabbed a water bottle.

She realized the bottle was not hers but decided to keep it and have it tested for DNA. The bottle did not have DNA that was connected with the crime scene. Sledge was freed based on other evidence.

Our prior coverage is linked here. and here. 

Hat Tip to ABA Journal. (Mike Frisch)

January 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

A Legal Fiction, A Real Suspension

An attorney whose law firm was a "legal fiction" was suspended for three months by the New Jersey Supreme Court.

The Disciplinary Review Board report has the story.

 Frederick Todd and Respondent established the law firm of Todd, Ferentz and Edelstein LLP (TFE). The firm dissolved on December 17, 2013, about two years later. Todd is a licensed attorney in California as was Ferentz. Ferentz was deceased prior to the creation of the firm.

At the time of the formation of the firm, respondent was an active duty captain in the United States Air Force and served as a chaplain. From December 2010 through July 2011, he was deployed to Afghanistan and Qatar. After his deployment, respondent was stationed at the Offutt Air Force base in Bellevue, Nebraska. On various occasions, he had also been stationed at Maxwell Air Force base in Montgomery, Alabama. Todd was respondent’s religious sponsor to the Department of Defense through an entity known as Pirchei Shosanim, Inc. On January I0, 2013, respondent received an honorable discharge from the Air Force. Respondent neither intended to practice nor actually practiced law with TFE and never received remuneration for his partnership. 

The violations

Respondent acknowledged to the OAE that his partnership with TFE was a legal fiction created in order to allow Todd to open and operate a law firm in New Jersey. As stated, he did not intend to be an active partner with TFE, but rather to lend his law license to TFE so that Todd could operate the firm. Respondent was willing to participate in this scheme out of fear that Todd would withdraw his sponsorship with the Air Force, threatening respondent’s ability to remain a chaplain. Nonetheless, respondent failed to ensure that the firm complied with the [Rules of Professional Conduct]. 

The Orthodox Union had a story on his work as a chaplain. (Mike Frisch)

January 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Immune Deficiency

Dan Trevas haa this story on the web page of the Ohio Supreme Court

Lee Claimed Immunity by Federal Law
In Disciplinary Counsel v. Lee, the Court noted that Lee has been suspended five times, four for failing to register as an attorney, and once for failure to comply with continuing legal education requirements. He has been suspended in Ohio continuously since December 2010.

Lee stated his primary practice is federal employment law on behalf of the Federal Educators Association (FEA) and its members.  The FEA is a public employee union representing educators working in the Department of Defense’s school system for the children of military members. Lee has claimed that federal labor law renders him immune from state attorney disciplinary proceedings. In a unanimous per curiamdecision, the Court noted the complaints against him arose from his representation of a former teacher at a military school in Fort Knox, Kentucky, and his failure to cooperate in state disciplinary investigations after the teacher filed a complaint about Lee’s representation.

Legal Representation Drew Complaints
Lee was on retainer to represent the FEA and more than 50 percent of its matters involved teacher discipline. Patricia Lee-Buhl, a teacher at the Fort Knox Community School notified the school that her husband had been transferred to the Marshall Islands and she sought a 90-day leave of absence. While on leave, she resigned her position in Fort Knox and contacted the FEA and Lee about filing a grievance in connection with a school district investigation of her. Lee advised Buhl that since she was no longer a member of the FEA, the school might be able to challenge the union’s right to bring a grievance on her behalf, and no grievance was filed. But in November 2007 Kentucky’s state teacher licensing board informed Buhl she was being accused of teacher misconduct and asked for her response. Buhl drafted a reply to the board and emailed the draft to Lee, who reviewed it and provided revisions that he recommended she submit. He indicated he and another FEA lawyer would prepare a “lawyer supplement” for Buhl to add to her reply. Lee faxed Buhl’s response to the licensing board, but didn’t submit any supplemental material.

In March 2008, the licensing board notified Buhl of a hearing regarding the misconduct complaint, and she emailed Lee and the FEA for advice. Lee told her he would review the charges and take action if any, but neither he nor the union responded to her further inquiries of the status of her case. In March 2010, a state prosecutor contacted Buhl and told her Lee never responded to any phone calls the prosecutor made regarding the complaint. The FEA was unaware of the prosecutor’s letter to Buhl and thought the matter was still under review when the formal complaint was filed with the licensing board. When the prosecutor finally reached Lee, he said he was not sure he still represented Buhl.

Lee did not respond further and the state moved for default judgment to permanently revoke Buhl’s license. That prompted Lee to eventually respond to the prosecutor telling her Buhl authorized him to represent her and that he would act to get admitted pro hac vice in Kentucky to do so, so he could seek a stay of the judgment against her. He promised to take actions to set aside the license revocation, but never did nor did he act to represent her in Kentucky. In November 2011, Buhl received a notice from Pennsylvania it also was seeking to revoke her teaching certification based on Kentucky’s action, and when she contacted Lee about it, he failed to respond. Buhl secured a new attorney who was able to negotiate a settlement limiting the sanctions, and she filed a complaint against Lee with Ohio’s Board of Professional Conduct.

A board probable cause panel found Lee abandoned Buhl and her legal matter, failed to act promptly, failed to keep her informed, ignored reasonable requests for information, failed to share information with her new attorney, and failed to tell her he could not represent her while allowing her to believe he was handling the matter.

Because the acts took place in Kentucky, the Ohio panel applied Kentucky’s Rules of Professional Conduct, which are nearly identical to Ohio’s, and found he violated a number of requirements to keep her informed and that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation. Lee countered that federal labor law granted him immunity from state disciplinary actions citing a list of federal case rulings that found attorneys are immune from civil lawsuits in connection with their representation of unions in federal matters.

Court Rules Lawyer Not Immune
The Court stated that Buhl’s complaint against Lee did not involve a federal employee or involve a federal matter, but rather was a state action regarding a former federal employee’s teaching license. It found that Lee could not cite any provision of the federal law he cited for immunity that would “preempt a state’s inherent interest in protecting the public from attorneys who are unethical, unscrupulous, or no longer competent to practice law.”

The board also found Lee failed to cooperate by ignoring letters and subpoenas sent to him by the Office of Disciplinary Counsel, and advised the Court to impose an indefinite suspension.

“Noting that we frequently impose indefinite suspensions on attorneys who neglect client matters and fail to cooperate in the ensuing disciplinary investigations, the board agreed that the sanction is appropriate in the case,” the Court wrote. “In light of Lee’s conduct, the significant aggravating factors present, and the sanctions we have imposed on comparable misconduct, we find that an indefinite suspension is warranted.”

2014-1744. Disciplinary Counsel v. Lee, Slip Opinion No. 2016-Ohio-85.

(Mike Frisch)

January 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, January 14, 2016

"If You F*** With Me..."

The Illinois Administrator has filed a complaint alleging misconduct in a criminal matter in which an attorney represented her boyfriend.

The boyfriend was charged with threats to opposing counsel in a civil matter and a deputy sheriff.

The alleged false statement were in connection with bond and

 On March 16, 2015, Respondent wrote to Assistant States Attorney Jeremiah Adams ("ASA Adams") about French’s case, and presented arguments as to why the State should consider dismissing the case against French, including statements about [alleged victim] Brandt’s purported animosity against French. In the letter, Respondent stated she was present with French after a trial in October 2014, where attorney Brandt, the alleged victim in Count One, was also present. Respondent stated that Brandt called her a "cunt" and "flipped me off." Respondent also stated in the letter that during the October incident Brandt said to French, "I am going to get you, you motherfucker." Respondent also stated that she asked the bailiff if the bailiff would ask Brandt to leave.

Respondent’s statements regarding what happened after the October 2014 hearing were false, in that Brandt did not call her a "cunt," did not "flip her off," and did not tell French "I am going to get you, you motherfucker"; and Respondent did not ask the bailiff to have Brandt leave.

She also is charged with misconduct toward  another victim-witness

During her conversation with King on February 5, 2015, Respondent repeatedly talked about the number of people she had sued on French’s behalf, and stated that she had considered suing King.

While discussing who she was suing, Respondent said "because my thought is, if you fuck with me I’m going to fucking destroy you. With Greasy [Venturelli] starting this shit with Dan over a card game in all this shit, and Jonathan Brandt starting this shit. Brandt is just mad because he was out-lawyered, too fucking bad, suck it up. But don’t take it out on fucking Dan. . . and the only reason that I think this came up about the phone harassment is because Jonathan Brandt was talking to Dan’s old lawyer, Louis Bertrand, who I may sue his fucking ass too… I mean, it won’t cost me a God damn thing, I’ll sue fucking everybody."

During the February 5, 2015 conversation, King told Respondent the Peru Police Department had sent him a statement to sign, and that he didn’t know what to do about it. Respondent told King: "no, I wouldn’t give it to them because if they wanted a statement from you, then they should have got it back in July [2014]." Respondent also advised King that if he sent back the statement ".. they’re going to try to bring you back to Illinois."

During the February 5, 2015 conversation Respondent also told King "so I mean here’s the thing Brett, with that statement, I mean my thought is whoever walks away and leaves Dan fucking alone, then I’m going to leave them fucking alone. If somebody wants to pursue it, they don’t want that fight with me."

During the February 5, 2015 conversation, King asked "if I don’t send the statement in that’s in front of me, I’m not going to get sued, right?" Respondent replied "well there’d be no reason to."

My Web Times reported that the attorney was named a Rising Star of illinois.(Mike Frisch)

January 14, 2016 in Bar Discipline & Process | Permalink | Comments (1)