Wednesday, January 7, 2015

Plea Bargaining In Bar Discipline

 A recent consent disposition approved by the Arizona Presiding Disciplinary Judge demonstrates the value of plea bargaining in bar discipline matters.

The case involved a wide array of charges and complainants. The State Bar and the attorney agreed to resolve the plethora of cases with a one-year suspension and reinstatement conditioned on proof of present fitness to practice law.

The attorney is required to make restitution to nine clients and arbitrate with 23 others.

Judge O'Neil eloquently explained why the disposition serves the interests of both the public and the attorney

In the 114 page consent agreement, thirty five separate counts outline a consistent pattern of misconduct. Mr. Bornmann admits he, or those under his supervision within his office, consistently failed to attend scheduled court hearings, failed to adhere to court orders, failed to respond to his clients, failed to do the work he was contracted to do, which often caused his clients injury, misled his clients, failed to include ER 1.5(d)(3) language in his fee agreements, failed to issue promised refunds to clients, failed to respond to the requests of substitute attorneys for information and frequently blamed others whom he supervised for these shortcomings.

The admissions here are conditioned on the acceptance of this agreement by this judge. Agreements resolve the controversy existent in each discipline matter. If true, the counts here call for a presumptive multi-year, lengthy period of suspension, if not disbarment. Left unsaid, but inherent in any such agreement, is Mr. Bornmann may well have defenses to one or all of the counts. The State Bar must prove its case in each count by clear and convincing evidence. There may be issues regarding the evidence available to the State Bar. There may be credibility issues or unavailability of witnesses. An agreement balances multiple opposing concerns, as this agreement has, by reducing the suspension while resolving all counts. Mr. Bornmanns failure to respond to the State Bar’s screening investigation letters or furnish to the State Bar a copy of his client files, if any existed, would likely be a significant aggravating factor for a hearing panel. That issue is also resolved by the Agreement.

All trials are uncertain. Hearing panels issue rulings based on the evidence brought before them, not what one believes or even hopes may be presented. A hearing panel could issue a significantly longer suspension. A hearing panel could dismiss one or more or all of the counts. Regardless, the one year suspension is not insignificant and resolves all charges. The agreement for one year suspension is not unreasonable.

So, we have certainty and a prompt resolution as a result. The fitness requirement and the other provisions to satisfy obligations to injured clients serve to protect the public interest. Bar Counsel can apply the saved resources to cases that need to be tried.

A win-win all around.

It is possible that plea bargaining can be abused as a disciplinary tool.

In my view, Virginia is a good example of the overuse of consent dispositions.

There the system is run by lawyers with a hands-off attitude by the Commonwealth's high court and that system is seriously underfunded. As a result, Bar Counsel often agrees to a public reprimand where (in my cursory review) it appears that a suspension may well have been appropriate.

I'm surprised that there has not been a greater outcry for reform of the Virginia disciplinary system.

Of course, for plea bargaining to work, you have to have adjudicators who (1) care about efficiency and (2) trust the Bar Counsel, with appropriate review, to do the right thing.

I guess that it why consent dispositions have fared so poorly in the District of Columbia.

My view: If your adjudicators don't care about efficiency, find some that do. If you don't trust your Bar Counsel, replace that person with someone you do trust. Then, give that person at least some authority to pursue consent dispositions that recognize the uncertainty of litigation and the value of prompt resolution of contested charges.

Just a thought. Not a sermon.  (Mike Frisch)

January 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Prosecutor Reprimanded For Taking Documents From Judge's Chambers

The Arizona Presiding Disciplinary Judge accepted a consent disposition of reprimand of a prosecutor for conduct in the prosecution of an aggravated DUI case.

The defense had submitted prescription medical records for in camera inspection by the judge. The prosecutor was to receive a redacted copy from chambers.

When she came by for her copy, neither the judge or the judicial assistant were there. The prosecutor nonetheless looked through and took documents on the assistant's desk. This was observed by the law clerk/baliff, who was uncomfortable with the prosecutor's actions.

The attorney did not read the documents.

When she returned to the office, the redacted records were there - already delivered. She realized her mistake and took prompt steps to notify the court and return the documents she had removed.

The criminal case was dismissed as a result. (Mike Frisch)

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

The Gallant Hours

The Illinois Administrator has filed a complaint alleging misconduct that resulted in the attorney's guilty plea in federal court to misprison of felony.

The alleged facts

Between August 2009 and August 2013, Gallant Pharma International, Inc., hereinafter "Gallant," was a company engaged in the illegal importation and sale of misbranded and non-FDA approved chemotherapy drugs and injectable cosmetic drugs and devices in the United States. Respondent's husband, Syed "Farhan" Huda, was the co-founder of Gallant which was initially headquartered at an apartment leased in Respondent's name in Arlington, Virginia.

Between fall of 2009 and August 2013, Respondent held various roles at Gallant including identifying prospective customers of Gallant's illegal, misbranded, non-FDA approved drugs, arranging for the importation and distribution of the illegal drugs and acting as Gallant's office manager. Respondent, and her coconspirators, purchased drugs, subsequently re-sold by Gallant, that were "cold-chain" drugs subject to strict temperature controls requiring drug shipment with dry ice packs to maintain efficacy of the drugs. Respondent was aware that on some occasions, ice packs were melted when shipments of the "cold-chain" drugs were received by Gallant from international shippers yet Gallant re-sold the "cold-chain" drugs to their customers. Finally, Respondent purchased Styrofoam boxes and ice packs for packaging and shipment of misbranded and non-FDA-approved "cold-chain" drugs to customers within the United States and was aware that ice packs were melted at the time the "cold-chain" drugs were received by Gallant customers.

Between August 2009 and January 2013, Respondent used her personal checking account at Capital One to conduct Gallant business in the United States, including wire transfers of funds to suppliers and trans-shippers of misbranded and non-FDA approved drugs and devices.

At her guilty plea

In her plea agreement, Respondent admitted that she held various roles at Gallant including office manager, identifying prospective customers for Gallant's misbranded, non-FDA approved drugs, and arranging for the importation and distribution of the drugs. Included as the imported drugs were injectable chemotherapeutic agents, injectable cosmetic fillers, injectable agents used to treat side effects of chemotherapy; many of which were subject to federally mandated strict temperature controls which were not complied with by Gallant.

The complaint states that the attorney was sentenced to a nine-month prison term. (Mike Frisch)

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

That's What Makes A Horse Race

An Illinois Hearing Board has recommended a 90-day suspension and probation for an attorney who

represented a client who trained racehorses after six of his horses tested positive for an unauthorized substance. After several months of litigation including the filing of a TRO and appeal, Respondent applied the client's costs credit to his outstanding balance for attorney's fees. The client maintained he never authorized this and asked for a refund of the unused costs.

The Administrator's one-count First Amended Complaint charged Respondent with failing to promptly deliver funds to a client, in violation of 1.15(d), and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of 8.4(c). The Hearing Panel found the Administrator failed to prove Respondent violated 8.4(c) and failed to prove Respondent failed to promptly deliver funds to the client. However, the Hearing Panel did find Respondent failed to provide a prompt and appropriate accounting to the client in violation of Rule 1.15(d). Given Respondent's disordered office management, particularly with respect to his financial accounts, and his poor client communication, the Hearing Panel recommended Respondent be suspended for ninety days, stayed in its entirety, by a one-year period of probation with conditions.

On the need for probation

In this matter, it is unclear if Respondent knows what funds should be kept in a client trust account or if he even maintains a client trust account. He does not keep a ledger for each client matter and does not reconcile his bank statements. Respondent withdraws funds based on his mental estimate of fees earned, but admitted he sometimes withdraws fees as funds are received even if they have not yet been earned. He also admitted he has taken out more than he made. Respondent's reliance on his phone log in this proceeding is illustrative of his mistaken belief he manages his professional communications effectively. As a result, Respondent's continued right to practice needs to be monitored. Conditional probation would best safeguard the public and provide assurance that his disordered office management and poor communication are addressed.

(Mike Frisch)

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

The Benefit Of Responding To A Bar Complaint

An attorney who was disbarred by the New York Appellate Division for the Second Judicial Department as a result of her default on the allegations sought the court's reconsideration after the disbarment was entered.

The respondent ultimately filed a written answer to the petition. However, she did so only after this Court vacated the respondent's disbarment on default, reinstated her, and directed her to submit an answer to the petition. In her answer, the respondent admitted the factual allegations underlying the charge of failure to cooperate with the Grievance Committee, but denied the charge.

In an unusual decision, the court reduced the sanction from disbarment to a public censure.

The respondent asks that the Court remit the matter back to the Grievance Committee for issuance of a private sanction in light of the substantial mitigation presented, consisting of the following factors: her expressions of deep remorse, which were found credible by the Special Referee; her medical problems, which the Special Referee also found credible; the departure of one of the partners in her firm during the period in question, which caused her to shoulder more responsibilities and added to her already stressful housing court practice; the steps that she has taken to reduce her workload; her pro bono work; the consequences that she has already suffered (loss of her former position, shame and humiliation of being disbarred, the two-month period of actual disbarment prior to her reinstatement); and her reputation as an exemplary attorney.

Under the totality of the circumstances, including the aforementioned mitigating factors and the respondent's prior disciplinary history, we find that a public censure is warranted.

The lesson here is that an attorney must participate in the disciplinary process. In New York, the consequences of non-paricipation are reasonably swift and sure. (Mike Frisch)

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

Monday, January 5, 2015

"She Did Not Object To His Withdrawal"

A conditional admission of misconduct led to a 60-day suspension ordered by the Colorado Presiding Disciplinary Judge

Stephenson represented a long-time friend pro bono in a criminal case between December 2012 and September 2013. In October 2013, the friend’s wife was charged with DUI and consulted with Stephenson for a second legal opinion regarding advice she received from her attorney. Around that same time, Stephenson and the wife began a sexual relationship. Stephenson then substituted as her counsel in the DUI case, which was resolved through a plea agreement in March 2014.
 
The husband discovered the sexual relationship between his wife and Stephenson in January 2014. At that time, the husband was subject to a probation revocation complaint in his criminal case. Stephenson agreed to represent the husband in the probation revocation matter while still engaged in a sexual relationship with the wife. Stephenson twice appeared for the husband in court before moving to withdraw in March 2014.
 
As a result of the wife’s DUI arrest, a complaint was filed to revoke her probation in a criminal case. Stephenson entered his appearance in this matter in January 2014.That matter was still pending when the wife ended her relationship with Stephenson in April 2014. The wife states that she delayed ending the relationship because she was concerned Stephenson would discontinue the representation. Shortly after she ended the relationship and told Stephenson to stop contacting her, Stephenson moved to withdraw from her case. He did not consult with her before filing the motion to withdraw, but she did not object to his withdrawal.
 
The attorney admitted violation of both the concurrent client conflict rule and sex with a client where the sexual relationship post-dated the representation. (Mike Frisch)

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

Suspension Excessive For False CLE Submission

An attorney who falsely (but through negligence rather than intent to deceive) certified that she had completed CLE obligations was publicly reproved by the California State Bar Court Review Department.

The misconduct was discovered through an audit. The attorney had filed compliance statements affirming that she had done the CLE without checking her own records.

The court

Requiring attorneys to submit accurate MCLE compliance affirmations is essential to maintaining public confidence in the legal profession. "The aim of continuing legal education is to provide continuing assurance to the public that all California attorneys, no matter how many years may have passed since their law school graduation and State Bar admission, have the knowledge and skills to provide their clients with high quality legal services." ( Warden v. State Bar (1999) 21 Cal.4th 628, 654 (dis. opn. of Kennard, J.).) Attorneys must accurately report compliance because the MCLE program is based on an honor system where random audits serve as the only enforcement check. In turn, the State Bar relies on self-reporting by attorneys to accurately represent to the public, the courts, and other members of the Bar that they are eligible to practice law.

The court found extensive mitigation and concluded that probation would be an excessive sanction under the circumstances.

A dissent would impose no discipline

 [The attorney] mistakenly recalled that she had completed the MCLE courses. When randomly audited by the State Bar, she admitted her mistake, corrected her error, and submitted proper proof of compliance. In other words, the process worked. To turn this matter into a discipline case, and worse yet, a case of moral turpitude, is a disservice to the attorney discipline system. Accordingly, I would dismiss this proceeding.

The Office of Chief Trial Counsel had sought a 30-day suspension. (Mike Frisch)

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

Firm Theft, Firm Discipline

The South Carolina Supreme Court has disbarred an attorney who converted fees due to his law firm.

According to the court

In November 2009, respondent was admitted to the South Carolina Bar. In June 2011, respondent became employed with Law Firm as an associate with a salary of $24,000 per year. In August 2012, respondent's compensation structure changed to a "commission only" arrangement in which he received 50% of the fees he generated above a monthly amount for overhead.

Respondent worked alone in a satellite office and was permitted to accept cases and set fees with relative autonomy. Law Firm utilized an electronic practice management system in which respondent would create a memo for each new case that would be transmitted to a staff member who would, in turn, create an electronic client file. When respondent received fees from clients, he would physically deliver those payments to Law Firm's main office, where staff would process the deposits.

During 2012 and 2013, respondent converted approximately $4,000.00 in client fee payments to his own use by two methods. One method involved accepting fees from new clients (in the form of cash or a money order or check payable to respondent), then using those fees for personal use rather than delivering the fees to Law Firm. Respondent covered this diversion of fees from Law Firm by handling client cases without creating an opening memo or an electronic case file. The other method involved accepting cash payment from Law Firm clients and delivering part of the funds to the firm and converting the remainder to his own use. Respondent covered this diversion of fees by altering documents to reflect a fee of an amount less than what the client actually paid. Law Firm discovered respondent's misappropriation, terminated his employment, and filed a disciplinary complaint.

The attorney admitted the ethical violations. The court made the disbarment effective as of October 2013. (Mike Frisch)

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

Happy New Year

The January 2015 edition of the Washington Lawyer features an interview with the current chair of the District of Columbia Board on Professional Responsibility.

There is the usual lip service paid to the protection of the public as a goal of the disciplinary system.

But the most interesting question posed is the following

How long, beginning to end, do the [disciplinary] proceedings usually last?

The response was, as we lawyers say, non-responsive

I would say there is really no typical length to the proceedings. There are so many factors that determine whether a proceeding takes a long or a short period of time. The length of procedings typically depends on the complexity of a case and of the legal issues presented, including the number of violations and the number of complainants - perhaps it is only a single person who is complaining, in other instances, we could have five or 10 complainants in a case.

There are many checks and balances in the system, and there is a lot of due process, and with that the possibility of delay. We want to make sure that every party involved is treated fairly, and the important thing is to get it right. Certainly, we always try to move cases along as quicky as possible, but sometimes they can take more time than we would like because of the nature of the process.

Yes, a big part of the problem is "the nature of the process."

What I've never seen from the BPR (or the Court of Appeals) is any inclination to improve that process.

Now, if the BPR issued an annual report, the public might get a sense of the real answer to the "long long does it take" question. And heads might roll.

My take: It is rare for a prosecuted case to conclude in less than five years. Often cases take a whole lot longer than that.

The situation has not been helped by the last good idea, the rule that permits consent dispositions.

The reason: The BPR has been deeply hostile to the rule since it was created. Bar Counsel has learned that it is a waste of time and resources to even try to resolve matters through consent dispositions.

In any event, I have a few follow up questions:

1. Are there any hearing committee reports that are nearly seven years overdue? (Hint: yes).

2. How many reports are more than a year overdue? Two years? Three years?

3. Why do Bar Counsel charges sit in the BPR office for up to a year without being reviewed by a contact member, creating inexplicable and unnecessary delay in addressing the merits?

4. How long do cases take when the accused attorney defaults or otherwise refuses to participate? (Hint: defaults are verboten)

5. How many Bar Counsel investigations in the last ten years have taken five or more years simply to determine whether or not to file charges?

I am personally aware of an investigation (never deferred) that took eight years to get dismissed. During those years, Bar Counsel conducted virtually no investigation as the case was passed from one attorney to another.

6. Is there a reason that no annual reports that would allow the public to evaluate efficiency has ever been issued in the District of Columbia?

I'll let you know if there are any responses forthcoming. (Mike Frisch)

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

Saturday, January 3, 2015

Corporate And Volunteer Practice While Administratively Suspended Draws Sanction

A six-month consent suspension was accepted by the Pennsylvania Supreme Court.

The misconduct involved the unauthorized practice of law by an attorney who had been placed on inactive status as a result of non-compliance with yearly CLE obligations.

 The attorney was an Associate General Counsel and later Vice President and Associate General Counsel to GlaxoSmithKline in King of Prussia. The unauthorized practice spanned the period from 2009 to April 28, 2014.

In addition to her corporate legal practice, the attorney also violated ethics rules by volunteering legal services while suspended.

Her present duties at GSK do not involve practicing law. (Mike Frisch)

January 3, 2015 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, January 1, 2015

No Civil Conspiracy As Single Defendant Can't Act In Concert

The Tennessee Supreme Court has affirmed a 45-day suspension that had been imposed by a hearing panel and affirmed by the Board of Professiona Responsibility.

Both lawyer and complainant client had appealed the hearing panel decision; only the lawyer appealed the board's order.

The client had sought relief from outdoor concerts and other events on the defendant's property. A nuisance suit was followed by a suit claiming a civil conspiracy.

After the claims were dismissed, sanctions were imposed on the attorney for failure to dismiss civil conspiracy claims against the sole remaining defendant. He was fined $5,000.

The court rejected an array of procedural claims raised by the lawyer and affirmed conclusions that he violated Rules 1.3 and 8.4(a). (Mike Frisch)

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

Wednesday, December 31, 2014

From White House To Big House

The District of Columbia Board on Professional Responsibility has reached the rather unsurprising conclusion that a conviction for attempt to commit murder is a crime that inherently involves moral turpitude

Respondent was convicted of attempted murder, in violation of C.G.S. § 53a-49(a)(2)
(attempt) and § 53a-54a(a) (murder). The Court previously has held that murder for pecuniary gain, in violation of C.G.S. § 53a-54b (murder with special circumstances), is a crime of moral turpitude per se, because it requires proof of specific intent to cause the death of another person. In re Carpenter, 891 A.2d 223, 223 (D.C. 2006) (per curiam); see also Aron, Bar Docket No. 45-99 at 3-4 (solicitation to commit murder under Maryland law is a crime of moral turpitude per se,because it involves “deliberate, intentional taking of the life of another person”).

The attorney was former Bush Deputy White House Counsel  J. Michael Farren.

The attempt was against his former wife, who had been a Steptoe & Johnson associate.

In D.C., disbarment is required for a moral turpitude conviction.

Note: I prosecuted the bar discipline case involving Ruthann Aron.

I was disappointed that she consented to disbarment after the oral argument in the Court of Appeals on the moral turpitude issue, i.e. after all the work was done. In Aron, the offense was solicitation to commit murder. (Mike Frisch)

December 31, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2014

Third Party May Not Intervene In Bar Proceeding

A third party has no right to intervene in a bar discipline proceeding, according to a recent decision of the Massachusetts Supreme Judicial Court.

The attempt to intervene came from a former employee of an attorney accused of misconduct. The former employee claimed that the attorney and others (including assistant bar counsel) had engaged in a conspiracy to "vilify" him.

The full court affirmed the decision of a single justice that the disciplinary proceedings had concluded and that the appeal was moot.

The accused attorney (not named in this decision) received a suspension of six months and a day.

On the merits, the court held that civil procedure rules that allow for intervention do not apply in bar discipline matters. (Mike Frisch)

December 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, December 25, 2014

Usury Unfriendly

An Illinois attorney who operated a consumer lending business is the subject of a bar complaint alleging that he charged criminally usurious loans to his customers.

Between March 2011 and October 2012, Respondent, as sole owner and operator of Bell Funding, extended approximately 125 loans to consumers with interest rates ranging from 100% to 300%...

...the Division of Financial Institutions of the Illinois Department of Financial and Professional Regulation issued a cease and desist order to Bell Funding which required it to cease and desist offering, making, or arranging consumer loans because it had never obtained the required state license to make consumer loans under the Consumer Installment Loan Act

The Illinois Administrator charged the attorney with engaging in criminal conduct in violation of state usury law.

He also is charged with false statements to tribunals in 20 lawsuits against borrowers.

In or about February 2012, Respondent began including an arbitration clause in the Bell Funding loan documents, under which Bell Funding could request neutral binding arbitration if any borrower was in default, and if Bell Funding chose arbitration, the borrower gave up the right to a trial in court. Between March 2012 and October 2012, Bell Funding requested an arbitration hearing for approximately 20 Bell funding loans in which the borrowers had defaulted. In the requests for arbitration, Respondent designated the Bell Funding arbitration hearings to take place at the [his] office suite, and arranged for an arbitrator to be available to attend if any borrower appeared for the arbitration hearing. No borrowers appeared for any arbitration hearings, and Respondent prepared an arbitration award in favor of Bell Funding which Respondent then sent to the arbitrator and which the arbitrator then entered...

In each of the Bell Funding lawsuits, Respondent did not disclose to the court that no actual arbitration hearing ever took place. Each of the arbitration awards which Respondent sought to confirm in the Bell Funding lawsuits stated "after having duly heard the proofs and allegations of the parties" before an award in favor of Bell Funding was entered by the arbitrator...

In each of the 20 Bell Funding lawsuits, Respondent obtained a judgment on behalf of Bell Funding and initiated collection proceedings, including wage garnishment proceedings, as lawyer for Bell Funding.

Note that the charges do not indicate that the attorney was charged or convicted. A conviction is not required to sustain a Rule 8.4(b) violation. (Mike Frisch)

December 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 24, 2014

Neither New York Or Florida

A bar applicant who graduated from law school in 2008 and passed the bar examination in Florida and New York was denied admission by the New York Appellate Division for the Third Judicial Department.

He had previously been denied admission in Florida, where he resides.

The court's rather terse decision quotes findings of is Committee on Character and Fitness that the applicant demonstrated "disregard for applicable rules" and an "apparent tendency to use the courts as a tool for personal vindication and retribution" rather than for legitimate purposes. (Mike Frisch)

December 24, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Turn In Your Playbook

A 30-day suspension with fitness has been imposed by the District of Columbia Court of Appeals based on findings that the attorney violated Rules 3.1 and 8.4(d) through a pattern of baseless and frivolous litigation.

Because there was no harm to the client, the court rejected findings that the attorney had provided incompetent representation.

The attorney had represented the complaining witness in a criminal assault case. The defendant was acquitted at a bench trial.

The frivolous litigation came in the acquittal's wake.

He filed a post-verdict motion for mistrial on behalf of the complainant. He moved fpr reconsideration after the motion was denied. Throughout the litigation, he repeatedly sought recusal of the judge.

He appealed the verdict.

The Court of Appeals affirmed and referred both the attorney and defense counsel to Bar Counsel for investigation.

The same court here found that the litigation itself and the voluminous motions were frivolous in light of the Double Jeopardy clause.

The behavior violated the defendant's right "to be free of further legal entanglement with respect to the charged assault."

When the bar investgated on the court's referral, the pattern persisted.

The attorney sought to remove the disciplinary case to federal court. He sought recusal of Assistant Bar Counsel Hamilton "Phil" Fox.

After the Board on Professional Responsibility issued its report , he sued the BPR, its Executive Attorney, Assistant Bar Counsel Fox and the Clerk of the D.C. Court of Appeals in federal court seeking injunctive relief.

While the court did not consider the litigation brought against the disciplinary system as free-standing misconduct, it treated the pattern as highly significant to its determination to impose a fitness requirement.

The court noted that the attorney was "still using the same playbook" after receiving "considerable feedback" about his over-the-top litigation tactics. Fitness was required because the "ingrained pattern of [his] litigation tactics" had burdened local and federal courts.

A hearing committee had found no misconduct because the attorney was misguided but sincere in his beliefs. According to the attorneys on the hearing committee

In litigation, half of the lawyers are always wrong. In many cases, their arguments may even approach the laughable. By and large, lawyers simply are not sanctioned for being wrong, no matter how wrong they may be. As the quoted material above indicates, even being very wrong must be accompanied by something more, namely some malevolent purpose.

Notably, the non-attorney member of the hearing comittee got it right in dissent (my blog post linked here).

The BPR found violations and recommended a 90-day suspension with fitness.

The case is also notable with respect to the history of Phil Fox. It's the first decision he has gotten from the court in a disciplinary case.

Phil started at Bar Counsel in March 2011. He's an active and diligent litigator who promptly investigates and prosecutes his cases.

It is a sad reflection on the glacial pace of D.C. bar discipline that it took more than 3 1/2 years for him to move a single case from soup to nuts. (Mike Frisch)

December 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 23, 2014

Lawyer, Serve Thyself

The California State Bar Court Review Department has recommended disbarment of an attorney for fee-collection misconduct.

 The gravamen of the misconduct in this matter involves Felger’s dishonest acts in obtaining a fraudulent default judgment against his former client, Central Green Mutual Water Company (Central Green). He accomplished this by serving a lawsuit for his legal fees on himself on behalf of his former client, but without the client’s knowledge or consent.

The court

 Although Felger concedes he is culpable, he argues in his opening brief that his misconduct was just a "petty stunt meant to get Larry Freels’ attention, not an attempt to collect a surreptitious judgment." His argument is not persuasive. If Felger wished merely to get Freels’s attention, he could have served the lawsuit for his legal fees on Freels in the first instance. Instead, we find that Felger’s trial testimony exposed his true motive. When asked why he concealed the lawsuit from Freels, Felger testified: "I wanted to fix and -- liquidate the amount [of attorney fees] as promptly and with as little effort as possible. And I knew that [Freels] would not receive notice of it, and I knew that if he did want to fight me, that he would not then have that opportunity." Further, when asked why he did not remove himself as agent for service of process, he replied: "It was certainly the most expeditious way to obtain that judgment." Felger’s attempt to minimize his misconduct reveals he does not comprehend his ethical duty to be honest.

The State Bar Court found misappropriation in an unrelated matter and proposed disbarment despite the attorney's 25 years of discipline-free practice. Mike Frisch)

December 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Old Enough To Know Better

The Maryland Court of Appeals has denied admission to a graduate of Tulane Law School as a result of a "demonstrated consistent pattern of financial irresponsibility" and the fact that he had given false financial information on a car loan application.

He also had failed to disclose a public indecency conviction to the law school.

The failure to disclose to Tulane came to light when the applicant applied to the Florida Bar. An official from Tulane advised Florida that it would have admitted him even if the conviction had been disclosed.

The court rejected the notion that these lapses were "youthful indiscretions"

 Here, we are not examining a singular instance of failure to provide a full and candid disclosure that could potentially be rehabilitated through later disclosure; instead, we are confronted with Movant’s pattern of financial irresponsibility and his lack of candor on the car loan application. At the time of the events detailed above—when Movant declared bankruptcy, incurred additional debt, and applied for admission to the Bar of Florida and the Bar of Maryland—Movant was over the age of thirty. In other words, Movant’s misconduct cannot be written off as youthful indiscretions or attributed to juvenility. As the Board found, and we agree, Movant has shown a lack of “commitment to honesty and financial responsibility.”

The applicant had previously been denied admission in Florida. (Mike Frisch)

December 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"An Entrepreneur At Heart"

The Maryland Court of Appeals has disbarred an attorney who withdrew $270,000 from a deceased client's bank account to pay for services not yet performed and testified falsely in the ensuing bar investigation.

The court's opinion followed an order of disbarment entered after oral argument.

The court rejected the attorney's contention that the ethical rules did not apply to his conduct

we have determined that attorneys, acting in a non-legal role, are subject to the purview of the Rules when the hearing judge has found that the attorneys conduct was dishonest, fraudulent, deceitful or constituted a misrepresentation.

The court affirmed the finding that there was an attorney-client relationship here.

We agree with Judge Ballou-Watts that Respondent’s conduct in issuing unearned checks for $14,500.00 and $775.00 from Ms. Ominsky’s personal account for services that had not been rendered and his removal of $270,000.00 and $3,500.00 from the Trust account were acts of dishonesty. Hodes improperly removed funds from both Ms. Ominsky’s personal account and the Trust account and utilized those funds for his and his wife’s personal benefit. His conduct was dishonest and, thus, violated Rule 8.4(c).

The Baltimore Business Journal reported in May 2012 that the attorney had left the firm he had founded twenty-four years earlier

Hodes, who called himself “an entrepreneur at heart,” said he was looking to return to a smaller legal environment. He expects to grow his new firm to no more than five to seven lawyers.

“This is not about growth and getting big,” Hodes, 60, said in an interview Wednesday. “I’ve been there done that.”

Hodes said he is leaving his former firm on good terms.

“There is no acrimony whatsoever between me and the firm,” Hodes said. “I wish them well. They are my close and dear friends. This is me making a change in my life.”

Two other attorneys from Hodes, Pessin & Katz are joining Hodes at his new firm. M. Chad Malkus joins the firm as a partner. He was previously of counsel at Hodes, Pessin & Katz and managed the firm’s Cambridge office. Ryan McConnell, who joins as an associate, was an associate at Hodes, Pessin & Katz.

Hodes is one of the Baltimore area’s better-known elder care and estate lawyers. He teaches a course on elder law at the University of Baltimore’s law school and has hosted a radio program, “Financial Focus” on WCBM radio. Hodes said he is talking with WBAL Radio about hosting a program on estates, trusts and elder law.

The Maryland Daily Record reported here. (Mike Frisch)

December 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Private Attorney General Disbarred

The Maryland Court of Appeals has ordered disbarment of an attorney for tax crimes

Among other things, an attorney is an “officer of the legal system and a public citizen.” If this is a special role in a nation that prides itself on the rule of law, then it entails a special responsibility to abide by the law. It also means that, when acting as an advocate, a lawyer must advance only arguments that are good faith interpretations of existing law or good faith efforts to change existing law. Fraudulent conduct and frivolous argument to avoid a civic obligation are antithetical to the lawyer’s role.

Respondent Michael Craig Worsham carved out a practice that concentrated in the private enforcement of federal and state laws prohibiting unsolicited faxes and telephone a role specifically provided in those statutes that augments public enforcement efforts  and that is sometimes referred to as a “private attorney general." Mr. Worsham, however, proved to be less law-abiding in the conduct of his private affairs. As his practice grew more lucrative, he ceased to file income tax returns or pay income taxes. When detected, he attempted to justify his conduct with well-worn meritless arguments about the constitutionality and validity of the federal income tax – arguments that he repeated in his filings with us even after he had lost at every level in the federal courts and that, he ultimately conceded, had no bearing on his obligation to comply with State tax laws.

We hold that the willful failure to file income tax returns and pay income taxes, when done with fraudulent intent, merits disbarment.

The attorney was admitted in 1998 in Maryland.

He stopped paying state and federal taxes in 2005. When the IRS got on his trail, he engaged in concealment and raised frivolous claims in the courts. (Mike Frisch)

December 23, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)