Thursday, May 12, 2016

Heroes And Villains

Sometimes (but not with any frequency) some component part of the District of Columbia disciplinary system performs in a manner that  merits effusive praise.

Today is one of those days.

The case is In re Squire Padgett and can be found at  this link.

A hearing committee chaired by attorney Robert L. Walker issued an 104 page comprehensive opinion recommending disbarment. The report was filed approximately five months after the post-hearing briefing in the matter.

The four charges relate not only to Respondent’s alleged misconduct, but also to misconduct by another attorney named Lathal Ponder, Jr. (“Ponder”), who practiced law at Respondent’s law firm during the relevant time period. Mr. Ponder was disbarred in a separate proceeding in 2012. Respondent does not dispute most of the facts established by Disciplinary Counsel at the hearing of the instant matter, some of which involved Mr. Ponder’s egregious misconduct while employed at Respondent’s law firm. Instead of disputing the underlying facts, Respondent presents a legal dispute about Mr. Ponder’s status at Respondent’s law firm. Respondent argues that at various different times, Mr. Ponder was a subordinate employee of Respondent, then became a de facto partner, and finally a mere co-tenant who shared offices with Respondent. Respondent argues that he had no duty to supervise Mr. Ponder and that he owed no duties to Mr. Ponder’s clients, from the late-1990s onward, because he had no attorney client relationship with them. The thrust of Respondent’s defense is that Disciplinary Counsel’s charges inappropriately seek to hold Respondent vicariously liable for Mr. Ponder’s misconduct, and that a failure of proof dooms Disciplinary Counsel’s remaining specifications about Respondent’s mishandling of client funds and the remaining allegations of his misconduct.

The committee found intentional misappropriation and other misconduct

Disbarment is also the appropriate sanction for Respondent’s protracted, flagrant dishonesty, and his fraudulent conduct. Respondent participated in a scheme to convince the Blounts that they would receive $15 million from a fictitious settlement, he falsely told them that rogues from the Center were engaging in criminal conduct to avoid payment, that bank and law firm computers had been hacked in an effort to delay payment, and that the Blounts were in danger from the Center’s imaginary rogues, and should stay in hiding. While this story was a complete fiction, the damage it caused was not: Ms. Blount and her husband were forced to file for bankruptcy when they were unable to pay debts they had incurred in the false belief that a large settlement payment would soon be provided to Ms. Blount. Tr. 162-63, 197 (Blount). Moreover, Respondent reiterated and reinforced this fabrication even when the Blounts confronted him with contradictory evidence and when he knew that they were taking on debt in reliance on the false payout he promised. Respondent also defrauded American Storage when he paid back rent with checks he knew to be worthless...

A license to practice law is a privilege, not a right. Overall, Respondent’s conduct reflects a continuing and pervasive indifference to his obligations to clients, the judicial system, and the public. It is clear that Respondent should no longer have the privilege of practicing law.

Obviously, kudos also extend to the disciplinary prosecutor in the case.

But this nugget reflects discredit and dishonor on the Executive office of the Board on Professional Responsibility

Between June and September 2014, Disciplinary Counsel submitted to the Board Office proposed Specifications of Charges against Mr. Padgett in four separate matters...The charges were approved by a Contact Member in April 2015 and Disciplinary Counsel filed them with the Board on April 17, 2015. 

So, charges supported by what the hearing committee characterized as overwhelming evidence meriting disbarment sat unreviewed in the BPR offices for at least seven months waiting for nothing but routine review and approval. The attorney got this time to practice and throughout that period the disciplinary system risked loss of evidence and other complications to their proof. 

When I was at Bar (now Disciplinary) Counsel, no charges ever sat waiting review for more than a few weeks. Now delays for this review routinely extend to a year.

I served under five Bar Counsel during my tenure from 1984 to 2001. Every one of them would have raised holy hell about this pointless and dangerous delay. 

Times have changed.

This is truly a scandal and no one - including the District of Columbia Court of Appeals - seems to care at all. (Mike Frisch)

May 12, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, May 11, 2016

A Whole Lotta Misconduct

The perceived weakness of a client's case is no justification for mishandling it, according to a recent decision of the California State Bar Court Review Department.

The court recommends disbarment in light of an extensive record of prior discipline.

From the very outset of his retention by Smiley, [attorney] Lotta believed her case was weak. His doubts were confirmed after she was deposed by her former employer, Rite Aid, yet he neither withdrew nor took affirmative steps to protect her interests. Instead, Lotta pursued an unauthorized strategy of inaction, intentionally failing to respond to Rite Aid’s discovery requests or to oppose its motions to compel, for summary judgment, and for terminating sanctions. Ostensibly, his objective was to avoid revealing to Rite Aid the weakness of Smiley’s case.

Lotta did not effectively communicate his dire assessment of the case or his plan of inaction to Smiley, who continued to believe that her claims had merit and that he would pursue them. Not surprisingly, Lotta’s strategy led to the dismissal of Smiley’s case and the imposition of sanctions and costs against her. This outcome understandably dismayed and bewildered Smiley, who in her plainspoken testimony below, asked the very questions that are central to this matter: "So, if you ain’t got a case, then why did he take the case and send you through all this here . . . ? Why you accept the case? I would have went to another attorney to get me an attorney . . . ."

On sanction

 In assessing the proper discipline for Lotta’s misconduct, we consider two of his three prior discipline records, and find that standard 1.8(b) applies. Because his mitigation is not compelling and does not clearly predominate over his misconduct, we recommend that Lotta be disbarred, particularly in light of his lack of insight into the nature and seriousness of his present and prior misconduct, which has resulted in harm in at least 11 client matters.

The attorney had sought no further discipline in light of an earlier 90-day suspension. (Mike Frisch)

May 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not A Computer Glitch

The Illinois Administrator has charged an attorney with misconduct in matters relating to his divorce.

The complaint alleges that the attorney was ordered to produce tax returns for several years. This was complicated by the alleged fact that he had not filed the returns.

On February 11, 2015, Respondent filed a response to the Petition. In the response, Respondent stated:

Respondent Admits [sic], however, he has been unable to secure said transcripts as the IRS is experiencing technical problems with their transcript request system (see Respondent’s Exhibits A-C). Neither the IRS’ "Get Transcripts Online" or "Get Transcripts by Mail" systems appear to be functioning during the past two months.

Respondent’s statement in paragraph nine, above, was false, because Respondent never filed tax returns for 2010, 2011 and 2012 and he knew no transcripts of his returns existed.

Another alleged false statement to his wife's counsel

I mailed in the form to request tax transcripts following our February status hearing. I have not yet received anything back from the IRS. As you may have read in the media, the IRS incurred a significant computer breach, specifically targeted towards the transcript system (See enclosed article). It has been reported that they have shut that system down.

The complaint alleges that similar false statements were made in testimony. (Mike Frisch)

May 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Same Same

A reciprocal 60-day suspension was imposed by the Wisconsin Supreme Court based on the identical sanction in Minnesota.

the Minnesota Supreme Court issued a 60-day suspension of Attorney Kurzman's license based on two counts of misconduct alleging five rule violations for inappropriately questioning a witness during a deposition, failing to provide two different clients with their files within a reasonable period of time, failing to submit records to the court as directed, and providing confidential materials from multiple clients to another of his clients.

In (not On) Wisconsin

the parties filed a jointly executed stipulation whereby Attorney Kurzman agrees that by virtue of the Minnesota suspension, he is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22. He agrees that the factual allegations contained in the OLR's complaint are accurate and that he committed the professional misconduct charged in the complaint. The stipulation states that Attorney Kurzman does not claim any of the defenses set forth in SCR 22.22(3)(a)-(c). The stipulation states that Attorney Kurzman fully understands the nature of the misconduct allegations against him, his right to contest those allegations, and the ramifications that would follow from this court's imposition of the stipulated level of discipline. The stipulation indicates that Attorney Kurzman understands his right to counsel and verifies that he is entering into the stipulation knowingly and voluntarily and that his entry into the stipulation represents his decision not to contest this matter. He agrees that it would be appropriate for this court to suspend his license to practice law for a period of 60 days.

(Mike Frisch)

May 11, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, May 10, 2016

Pardon My French

The ABA Journal has the story of a contempt proceeding in the United States District Court for the Northern District of Ohio that led to the admonishment of an attorney.

The behavior had to do with remarks by defense counsel to a prosecutor in a criminal matter that were not overheard by the judge or court reporter

When asked for his recollection of the events, Assistant United States Attorney Michael Sullivan indicated that Attorney Weintraub’s first comment was to ask whether Sullivan was calling him a liar. AUSA Sullivan then heard him say "‘Unfucking believable.’ ‘Fuck you.’ And I recall specifically, ‘Fucking piece of shit.’" Id. at 7. When asked whether he made those comments, Attorney Weintraub first noted: "Now that he mentioned the Judge Polster comment, I did call him a liar. I do remember that." Id. Attorney Weintraub then denied making any other remarks to AUSA Sullivan.

The court conducted an evidentiary hearing with several witnesses and found

Initially, the Court would note that the overwhelming evidence proves that Attorney Weintraub misbehaved in the presence of the court. Every witness was consistent in stating that Attorney Weintraub directed profane statements to AUSA Sullivan while AUSA Sullivan was addressing the Court and immediately thereafter in the courthouse elevator. Moreover, there can be no question based on the record that Attorney Weintraub intentionally directed those comments to AUSA Sullivan. As such, the only element remaining for the Court’s consideration is whether those actions obstructed the administration of justice...

Given the totality of the circumstances herein, the Court believes that it must equitably tailor a punishment that is appropriate to the conduct herein. As detailed above, the Court believes that there is sufficient evidence to make a finding of criminal contempt. However, the Court also acknowledges that any obstruction of the proceedings resulting from Attorney Weintraub’s conduct was minimal. The undersigned did not hear the statements, nor were they loud enough to have been heard by the court reporter and added to the record. Additionally, AUSA Sullivan indicated that while he heard the statements, he was still able to make his full presentation without issue. As a result, the Court does not believe the conduct warrants creating a permanent criminal record for Attorney Weintraub.

Drum roll please 

After careful consideration, the Court believes that a public admonishment along with reporting to the appropriate disciplinary authority is the appropriate sanction herein. Accordingly, Attorney Craig Weintraub is hereby formally and publicly admonished for his conduct during and immediately following the sentencing hearing held on November 3, 2015. A copy of this opinion shall be forwarded to Ohio’s Office of Disciplinary Counsel to allow that office to determine whether any further sanction should flow from the conduct and the open issue of whether Attorney Weintraub was candid to the Court in his recollection of the events of November 3, 2015.

What a f***ing waste of time and resources. (Mike Frisch)

May 10, 2016 in Bar Discipline & Process | Permalink | Comments (1)

All Aboard For A Lenient And Late-Blooming Sanction

A District of Columbia Hearing Committee has recommended that an attorney be informally admonished

The charge is that Jenkins included in files to be produced to her employer’s Office of Inspector General (OIG), three engagement letters that had been backdated by outside counsel at her request, without disclosing to the OIG that the letters, and the date of her signature on each letter, were backdated...The fact of this backdating is not in dispute. Respondent argues that the backdating was immaterial.

The attorney has practiced for 39 years without prior discipline. She had moved from the Manatt Phelps law firm to serve as associate general counsel for litigation to Amtrak.

She had submitted backdated engagement letters between the law firm and Amtrak to Amtrak's OIG.

The engagement letters were not a ministerial matter to the OIG, as Jenkins believed. See Tr. 48 (“I believe that [obtaining the engagement letters] was a ministerial action that I was taking to make sure that the files were in good order, in accordance with what I believe the OIG wanted”); see also 40, 42, 88, 105, 109. The Legal Department either had the controls in place that the OIG wanted or it did not. As the OIG noted in its referral to Disciplinary Counsel, “[t]he backdating made it appear that the retainer letters were prepared and obtained when each engagement started, when in fact they were prepared later in response to the Amtrak OIG investigation.” Ex. 24, p.3.

The record clearly demonstrates that Jenkins intended to conceal from the OIG the fact that the engagement letters were not written at the time that she engaged Manatt on these matters. She knew that the Legal Department had recorded the date the letters were received. If the backdating  would cause confusion, the date stamped transmittal letter would show that. The best inference to be drawn from the record is that Jenkins intended to conceal the backdating from the OIG. Her efforts to avoid having the backdated letters date-stamped reinforces the inference that she intended that the record reflect what the OIG wanted. We find that the record contains clear and convincing evidence that Jenkins intended to mislead the OIG to conclude that she had obtained individual engagement letters for each of her matters at the beginning of the engagement. She knew the OIG wanted the Legal Department to obtain separate letters in each matter. She knew that such letters did not exist for each of her matters. Her belief that the backdating was a ministerial matter, Tr. 109, was a fundamental error. The backdated letters created a false picture of how the Legal Department and Respondent were managing outside counsel—precisely what the OIG inquiry was intended to assess. Her professed inexperience with public sector Inspectors General, Tr. 49, 97 (Jenkins), does not excuse the backdating.

 On sanction

Considering these factors, we find that the record includes a basis for mitigation of the sanction. First, this appears to be the only disciplinary proceeding in Jenkins’s 39-year legal career. This incident seems to be the only instance of backdating in that career. Second, California, the jurisdiction where Jenkins practices, chose to take no action against her. Third, Jenkins cooperated fully with Disciplinary Counsel in the presentation of this matter, including stipulating to all the essential facts. Fourth, the backdating involved no potential for financial gain for Jenkins. Fifth, no critical consequences resulted from Respondent’s backdating the documents, and her client, Amtrak, was not harmed materially by her single rule violation. Although Jenkins has not conceded that the backdating was wrong, she acknowledged that in retrospect the dates could have been handled in another way.

 The case is In re Marilyn Jenkins, Bar Docket No. 2010- D382. The report can be found at this link.

The docket number means that the case - where the facts were apparently not in dispute - has already been in the disciplinary system for six years.

The case was prosecuted by Hamilton P. Fox III, which (I assume) means that he inherited the case and that someone else at the Office of Disciplinary Counsel is responsible for the delay.

Zoe Tillman reported that the attorney had previously rejected an informal admonition. (Mike Frisch)

May 10, 2016 in Bar Discipline & Process | Permalink | Comments (2)

Monday, May 9, 2016

Redd Handed

The resignation of a law firm's managing member was accepted by the Oklahoma Supreme Court

Respondent's affidavit also acknowledges the ongoing investigation of grievance DC 16-39 by the Oklahoma Bar Association. Specifically, John R. Beasley, Respondent's colleague, filed a grievance alleging that Respondent, in his capacity as a managing member of Beasley, Shipley & Redd, PLLC in Arkansas, embezzled a substantial amount of money "likely in excess of $100,000.00" from the firm. At the time Respondent's affidavit was executed, the Bar Association had not completed its investigation and Respondent's time to respond to the allegation had not expired. Respondent, however, expressly waived his right to respond.

He had previously been disciplined in Arkansas as reported by KFSM News

The Arkansas Supreme Court's Committee on Professional Conduct has accepted the voluntary surrender of a Fort Smith attorney's law license after he admitted taking $100,000 from his firm for personal use.

The Supreme Court's order issued Thursday agrees to the surrender to allow former attorney Michael Redd to "avoid the expense, stress, and publicity of further addressing his misconduct." Redd wrote in a motion to the court that he joined the firm Robertson, Beasley, Shipley & Redd in 2014, and that he became responsible for the firm's finances.

Redd said in the filing that he had made restitution to the firm, but he believed the attorney discipline committee was likely to seek disbarment.

(Mike Frisch)

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

OWI And Bar Discipline

The Indiana Supreme Court has ordered a 90-day suspension without automatic reinstatement of an attorney convicted of a felony drunk driving offense.

On or about July 10, 2015, Respondent was convicted on a guilty plea to Operating a Motor Vehicle While Intoxicated (“OWI”), with a Prior Conviction within Five Years, a level 6 felony.

Respondent has prior discipline in Case No. 49S00-1310-DI-682 resulting from her prior OWI conviction. As a result of her 2015 felony conviction, Respondent’s disciplinary probation was revoked and her stayed suspension was ordered served without automatic reinstatement in DI-682, and an interim suspension also was ordered in the instant case. 

The sanction for such offenses varies widely from jurisdiction to jurisdiction. (Mike Frisch)

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

Sunday, May 8, 2016

Law Student Helps Disbar Lawyer

An Illinois Hearing Board has recommended the disbarment of an attorney who had misused entrusted funds.

We have considered the Administrator's one-count Complaint, a copy of which is attached as Exhibit 1. We have also considered the Order entered on February 24, 2016, deeming the allegations of the Complaint admitted, a copy of which is attached as Exhibit 2.

Based on the admitted allegations of the Complaint, over nearly two years, in matters in which he acted as an attorney and a title agent, Respondent transferred over $460,000 in real estate escrow money to the operating account of a company Respondent owned. These transfers were unrelated to the purposes of the escrow and exceeded any amounts legitimately due to Respondent or his company. While some funds were transferred back, over $180,000 was not returned.

This case warrants disbarment. In reaching that conclusion, the Panel has considered the seriousness of Respondent's misconduct, the significant aggravating factors and the case law cited by the Administrator. As demonstrated by the evidence presented at hearing, Respondent's misconduct has caused serious harm. Respondent's minimal participation in these proceedings also represents a significant aggravating factor. While Respondent has no prior discipline, that factor does not carry significant weight in mitigation in this case, given the seriousness of Respondent's misconduct and the aggravating factors present.

This result is rather unremarkable except for footnote one, which identifies counsel for the Administrator

Ms. [Laura L.] Smith, a third year law student, appeared pursuant to Supreme Court Rule 711, under the supervision of Mr. [Scott] Renfroe.

I suspect there are not many people who can say that they have disbarred an attorney before being barred themselves. Kudos. (Mike Frisch)

May 8, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, May 7, 2016

BMW Chaser Gets Disbarred

The Massachusetts Supreme Judicial Court disbarred an attorney for misconduct that is hard to believe

In late 2008, the respondent was a participant in a group drive of BMW enthusiasts during which the driver immediately ahead of him struck and killed a pedestrian. Within minutes of the accident, the respondent undertook to represent the driver on any ensuing criminal charges. The respondent had limited criminal experience and had never tried a motor vehicle homicide case. Moreover, he was a crucial witness for the driver — his client — and had exposure of his own due to his participation in the drive. The respondent never told the client that his own potential liability might affect his representation, never asked the client to choose between his roles as witness and counsel, and never obtained the client’s informed consent to the conflicts.

After the accident, the respondent left the area while the client was still at the scene and failed to advise the client to remain silent, instead encouraging the client to talk to the police. Unaccompanied by counsel, the client gave the police a videotaped statement under oath during which he made damaging admissions. The respondent subsequently gave his own statement in which he represented, among other things, that the client had been traveling at or near the posted speed limit of 40 miles per hour at the time of the accident.

Although he told the client that his services were pro bono, he accepted and misused advanced expenses.

Then

In early 2009, the client was arraigned on charges including motor vehicle homicide. The arraignment judge rejected the respondent’s appearance for the client on grounds that he was a potential witness for the Commonwealth or the defense. The respondent then arranged for another lawyer to act as the client’s counsel of record while the respondent continued to direct the defense in the background. The other lawyer also had no experience with motor vehicle homicide cases. The respondent intentionally misrepresented to the client that the other lawyer’s fee would be $25,000 for the representation. The client liquidated a retirement account and used the proceeds to pay another $16,700 to the respondent intended for the other lawyer’s supposed fee. The respondent paid a total of $6,750 to the other lawyer and intentionally misused the balance of the client’s funds with the intent to deprive the client of those funds.

At the trial

The client’s trial took place in February 2010. The defense expert was not informed of the trial date and was still working on his analysis. The respondent knew that the client needed a continuance for that reason but had failed to assure the timely filing of a continuance motion. At the start of the trial, the other defense lawyer moved orally for a continuance. The prosecutor was ready with witnesses and objected, and the motion was denied. Without consulting the client, the other lawyer then entered into damaging stipulations, including stipulations that the client had been speeding and that that his actions were the proximate cause of the pedestrian’s death. The other lawyer also asked for and received a sequestration order.

The respondent had decided step in as trial counsel if, as happened, the prosecutor declined to call him as a witness. He was not, however, wearing a jacket and tie. The court allowed a request for his appearance as co-counsel, but only if he were appropriately attired. The client’s father left to get a suit for the respondent. In the meantime the prosecutor put on witnesses including a bystander, who estimated the drivers’ speed at 70 m.p.h., and the police reconstructionist, who testified to a speed of about 62 m.p.h. at impact. After obtaining and donning the suit, the respondent took over the defense during the Commonwealth’s case.

In the lunch break, the respondent called the defense expert on the phone. Although the expert had initially calculated a higher speed, he told the respondent that further analysis had yielded a significantly lower speed of around 40-45 m.p.h. Backed by the respondent’s own speed observations, the expert’s testimony about these calculations would have strongly contradicted the prosecution’s narrative of speeding and reckless racing. Further, the expert would later provide a report opining that the client had been prevented by sun blindness from avoiding the pedestrian. At that point, however, the expert had not finished the analysis and was not available to testify.

During the trial, the respondent phoned two of the other drivers and arranged for them to come to court, but he had failed to assure their compliance with the sequestration order, and they were barred from testifying. At that point the respondent called the client as the only defense witness. The client had not been prepared, and his trial testimony differed significantly from his police statement. After a further request by the respondent for a continuance to bring in the expert, the defense rested. After resting the respondent tried unsuccessfully to admit an autopsy report that might have been useful to the defense. The court found the client guilty. The next day the client was sentenced to a jail term and taken into custody, where he remained for the next thirteen months.

Notwithstanding a potential ineffective assistance claim, the attorney took on and was paid for the appeal. 

In April 2010, the respondent moved for a new trial on behalf of the client with no mention of ineffective assistance. By then the respondent and the other drivers had been sued by the personal representative of the pedestrian’s estate. The motion was denied after hearing, and the respondent entered the client’s appeal in the Appeals Court in June 2010. Between July 2010 and January 2011, the respondent obtained four briefing extensions while the client remained incarcerated. He never filed or wrote an appellate brief. The respondent’s $10,000 appellate fees were clearly excessive. Because he should not have represented the client after the conviction, those fees were also illegal.

In the meantime, the client had learned in the fall of 2010 that the expert had been paid only $1,500 and that the other lawyer had neither sought nor received $25,000 as had been represented by the respondent. In addition, the respondent refused a request by the client to return the car for use by his girlfriend. The client asked the respondent for an accounting of his fees and car repair payments. In reply, the respondent intentionally misrepresented the fee arrangements and the terms of the car transactions, presented a false and inflated invoice, demanded another $5,000 payment, and threatened legal action if the client accused him of unprofessional conduct. He subsequently furnished a breakdown with fabricated time charges.

The car?

Through his wife, the respondent had arranged a $3,000 loan to the client before the trial. After the guilty verdict, the respondent offered to repair and lease or rent the client’s car for $300 per month with the monthly payments credited against the loan and repair costs. The respondent had the client sign an assignment of title and a bill of sale purporting to transfer the car to the respondent’s wife for $1.00. The client had not intended a permanent transfer and signed the papers at the respondent’s direction. The true terms of these transactions were never reduced to writing. The transactions, which effectively granted the respondent and his wife a security interest in the car, were not fair and reasonable to the client.

In the bar proceeding

The committee found no matters in mitigation but several factors in aggravation including the respondent’s inability to comprehend and acknowledge his professional obligations, his presentation of knowingly false testimony at the hearings, his numerous rule violations, his personal and financial interests, his failure to make restitution to the client, and his taking advantage of a distressed, trusting and vulnerable client. The committee recommended disbarment with a restitution order.

The Sentinel & Enterprise had the story of the accident and trial.

It may be a bit late in the semester to use this scenario as an exam question but it is a doozy. (Mike Frisch)

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

Friday, May 6, 2016

Felony Stalking Draws Disbarment

A conviction for stalking and related offenses has led to the disbarment of an attorney by the Council of the North Carolina State Bar

Based on the aftidavit, the Council finds that, on November 3, 2014, Karla W. Simon pled guilty to and was convicted on the felony charge of Stalking in Cambridge District Court, Cambridge, Massachusetts. On December 18,2014, based upon Karla W. Simon's admission to suflkient facts, Simon was found guilty on 29 counts of misdemeanor Violation of Harassment Prevention Order and nine counts felony Intimidate Witness/Juror/Police/Court OtIicial in Cambridge District Court, Cambridge Massachusetts. This conduct constitutes grounds for discipline in that Simon was convicted of a criminal offense showing professional unfitness as defined by Rule .0103(17) of the State Bar Discipline and Disability Rules and N.C. Gen. Stat. § 84-28 (b). An Order oflnterim Suspension was entered by the Chair of the Disciplinary Hearing Commission on January 8, 2016 based on these convictions.

The attorney has been suspended on an interim basis since November 2015 and had consented to the sanction.  (Mike Frisch)

May 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Mitigation Not "Extremely Unusual"

An attorney's proffered mitigation was not sufficient to allow a sanction less than disbarment for conversion of client funds and other misconduct, according to an opinion of the New York Appellate Division for the First Judicial Department.

The Referee observed that respondent "offer[ed]" no pertinent explanation and no justification whatsoever" for altering the money orders and converting her clients' funds for own use. Although respondent stated that she was in shock and in a daze upon learning that she had missed the petition deadline for a number of clients, she could not recall whether she altered the money orders before or after the mistake came to light.

In mitigation, at the hearing, respondent compellingly demonstrated the aberrational nature of her behavior, her extreme remorse and that she has an otherwise unblemished disciplinary history. Respondent also stated that it was her intent to restore the converted funds to her clients and she actually did so, in part. Respondent's claim of extremely unusual mitigating circumstances rests in large part on her history of providing pro bono legal services to undocumented immigrants and general service to the community. A chaplain of the New York City Fire Department, who has known respondent since 1997, confirmed respondent's benevolence, noting that she has volunteered her time at the parish of St. Francis of Assisi where she, among other things, helped found a library and provided pro bono legal services to "hundreds of immigrants" through its immigration clinic. Respondent has also taken remedial measures to prevent future misconduct, including closing her solo practice and working for the past six years under the supervision of an experienced attorney practicing law in the area of disability civil rights. The supervising attorney, who has known respondent since they both attended law school, vouched for respondent's overall honesty and trustworthiness.

In determining whether mitigation is "extremely unusual" this Court does not recognize remorse, the absence of a prior disciplinary record or cooperation with the DDC as a sufficient basis to avoid disbarment...

(Mike Frisch)

May 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Applicant's Failure To Participate In Character Review Dooms Admission For Now

The Ohio Supreme Court denied an application for bar admission on character and fitness grounds

Myers initially applied to take the February 2013 bar examination but failed to receive final approval of his character and fitness in time to take that test. He subsequently reapplied to take the July 2013 exam. The admissions committee of the Cincinnati Bar Association reviewed Myers’s application and interviewed him. Despite some concerns about his debts and his admission that he lied to a former employer about completing an assignment, the admissions committee found that he possessed the character, fitness, and moral qualifications required for admission to the practice law and recommended that his character and fitness be approved.

The board reviewed Myers’s application and determined, however, that his work history with the employer to whom he lied and his neglect of financial responsibility warranted further review of his character and fitness.

A panel was appointed to review the application but

The panel chair attempted to contact Myers several times by e-mail in an attempt to schedule a prehearing telephone conference but received no response. The chair eventually reached Myers and scheduled the conference for September 20, 2013. During the conference, the panel chair granted Myers’s request to continue the hearing so that he could have additional time to address certain issues relevant to his character and fitness. Another prehearing telephone conference was held on April 14, 2014, at which Myers again requested and was granted additional time. After a few months, in an attempt to schedule the hearing, the panel chair sent Myers two e-mails and a certified letter, which was signed for. Though the letter advised Myers that failure to respond could result in a recommendation from the panel that his character and fitness be disapproved, he did not respond. The director of bar admissions also attempted to contact Myers by telephone several times but was unsuccessful.

The applicant may reapply for admission on conditions set by the court. (Mike Frisch)

May 6, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, May 5, 2016

Misappropriation Draws Six-Month Suspension

An attorney who had misappropriated entrusted funds was suspended for six months by order of the New York Appellate Division for the Second Judicial Department.

The respondent deposited the settlement funds into his operating account, when he knew that such funds should have been deposited into his escrow account, and then proceeded to use the funds for his personal use, paying for income taxes, rent, and other business expenses. When the respondent had depleted the funds and the balance in his operating account went below zero in September 2012, he replenished his operating account, but he did not transfer any funds into his escrow account for safekeeping. With regard to the availability of personal funds, as proof of lack of financial motive, while the Special Referee did not admit the respondent's personal bank account statements, he did permit the respondent to testify that he had access to personal funds at the time. As for admission into evidence of the respondent's testimony at the investigative hearing, such testimony is routinely admitted and we find no error here in its admission.

In determining the appropriate measure of discipline to impose, this Court finds that the respondent engaged in serious misconduct by misappropriating client funds and delaying payment to an elderly client the funds that such client was entitled to receive. In mitigation, this Court has considered the respondent's expression of sincere remorse, the unlikelihood of his engaging in similar misconduct, his unblemished record, his full cooperation with the Grievance Committee in its investigation, the substantial evidence presented in support of his good character, his pro bono efforts as an active volunteer in foreclosure clinics administered by the Nassau County Bar Association, and the various charitable activities he participated in through his synagogue. Of note, the misappropriation was of an isolated nature.

There are plenty of jurisdictions that would impose far more substantial discipline for this type of misconduct. (Mike Frisch)

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

Unauthorized Practice Leads Ohio To Deny Bar Admission

Dan Trevas reports on the web page of the Ohio State Bar

The Ohio Supreme Court ruled today that a Cincinnati attorney who had been previously admitted in three other states engaged in the unauthorized practice of law when he began providing legal services while his application for admission to the Ohio bar was pending.

The Supreme Court voted 4-3 to deny Matthew A. Swendiman admission to the bar without passing the bar exam. The Cincinnati Bar Association had recommended his application be approved, but an independent investigation by the Board of Commissioners on Character and Fitness found that while Swendiman was offering investment advice to his clients, he also provided legal services while his admission application was pending. The court majority voted to allow Swendiman to reapply for admission without examination, while two justices would have required he take the exam to be admitted and one would have permanently denied admission.

Swendiman Focused Time on Investment Business
Swendiman had been admitted to practice law in Indiana in 2001, in Connecticut in 2003, and the District of Columbia in 2005. He has primarily engaged in the financial-investment business as a lawyer and financial advisor. He served as in-house counsel at a large bank and then left to be a corporate officer at another corporation. He left the post to start his own investment company, then joined the Cincinnati law firm Graydon, Head & Ritchey though a part-time “of counsel” relationship while continuing to operate his investment company.

About six months after joining the firm, Swendiman applied for admission to the Ohio bar without examination, and by late 2014 he closed his business and began working for Graydon fulltime. Swendiman admitted he had been practicing law at the firm and took the position with the firm because his clients were asking him to provide not only financial advice, but also legal services.

In a per curiam opinion, the Court explained that the unauthorized practice of law in Ohio is defined as rendering legal services for another by any person not admitted to practice in Ohio. A person not admitted in Ohio may render legal services in compliance with the requirements of the multijurisdictional practice of law, and Swendiman argued he is complying with the rules governing multijurisdictional practice.

Swendiman admitted he established an office in Ohio and practiced law in the state, but that his practice was authorized by the rule because he was admitted in another state, was in good standing in that state, and providing services “that the lawyer is authorized to provide by federal or Ohio law.” The Court stated Swendiman was arguing that because he was advising clients regarding federal law only and because he is licensed in the District of Columbia, where filings before the Securities Exchange Commission and other federal agencies are made, he was authorized to render service in Ohio.

A board panel hearing Swendiman’s case noted he did not cite any legal authority to support his “seemingly novel” argument and it found no other cases that addressed the issue.

“Moreover, the panel found that cases in which a lawyer’s practice of law has been deemed authorized by federal law occurred when the lawyer’s practice had been specifically authorized by a separate federal admissions authority,” the opinion stated.

The Court cited a 2013 case (Disciplinary Counsel v. Harris) where the attorney was not found to be in the unauthorized practice of law when representing a client in U.S. Bankruptcy Court in Ohio while not being a member of the Ohio bar. He had been admitted to the bankruptcy court, which has the power to regulate the practice of law in the cases before it. A federal appeals court extended that power further when it allowed an attorney licensed in Texas not only to appear in bankruptcy court in Michigan but also to advise clients on bankruptcy actions and proceedings because the bankruptcy court in Michigan authorized him to participate in cases.

Swendiman’s admission to practice in the District of Columbia is not the same as admission to a particular court, the Court concluded. It found Swendiman does not possess the character and fitness to practice law in Ohio. The Court ordered Swendiman to cease all practice of law in Ohio until he is licensed and stated he can reapply for admission without examination.

Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined the opinion.

Justices Judith Ann Lanzinger and William M. O’Neill dissented without a written opinion and would permanently deny Swendiman admission without examination. Chief Justice Maureen O’Connor dissented without a written opinion and would permanently deny admission.

2015-0540. In re Application of Swendiman, Slip Opinion No. 2016-Ohio-2813.

(Mike Frisch)

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

Sex Drugs And Disbarment

A disciplinary summary from the Florida Bar web page

Linda Dawn Hadad, P.O. Box 366, Daytona Beach, disbarred effective immediately, following a March 10 court order. (Admitted to practice: 2002) Hadad engaged in a pattern of misconduct that included illegal drug use and sexual relationships with clients. She had inappropriate intimate relationships with inmates at the Volusia County jail while she represented them, and engaged in inappropriate phone calls, which were routinely recorded by the jail. Hadad also failed to timely appear for court hearings, neglected the criminal cases of several clients, closed her office without informing her clients and failed to respond to Bar inquiries regarding these matters. (Case No. SC15-1241).

A story from the Daytona Beach News-Journal.

Hadad was arrested in August after she fled from Daytona Beach Police when they tried to stop her for an expired tag, a report said. The Sheriff's Office helicopter was called in to help find her and police used stop sticks to stop her. 

Hadad pleaded no contest to driving with a suspended/revoked license and to fleeing/attempting to elude with lights/sirens active. Circuit Judge J. David Walsh adjudicated her guilty on both counts and placed her on drug offender probation for five years.  She was also ordered to successfully complete a program at Palm Beach Behavioral Health in Palm Beach County, where she must remain for 90 days.

(Mike Frisch)

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

Wednesday, May 4, 2016

Third Time No Charm

The California State Bar Court Review Department has recommended disbarment of an attorney for unauthorized practice while suspended.

 This is Michael R. Carver’s third disciplinary matter since his 1999 admission to the State Bar of California. He received a public reproval with conditions in 2011, based on his misdemeanor convictions for driving without a valid license and resisting arrest (Carver I). In 2015, he was suspended from the practice of law for 90 days for failing to comply with the conditions of his reproval (Carver II).

In the present case, a hearing judge found Carver culpable of acting with moral turpitude by knowingly, or with gross negligence, engaging in the unauthorized practice of law (UPL) while on suspension. In recommending discipline, including a 90-day actual suspension, the judge considered Carver I in aggravation, but declined to consider Carver II because it was pending on review and not yet final.

The Office of the Chief Trial Counsel of the State Bar (OCTC) appeals. It argues that Carver knowingly committed UPL and that the hearing judge erred by not considering Carver II as an aggravating factor. OCTC contends that Carver’s two prior discipline records render disbarment appropriate under our disciplinary standards. Carver did not seek review or file a responsive brief in this appeal.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that Carver committed UPL amounting to moral turpitude, but clarify that he did so with willful blindness to his ineligible status, equivalent to knowledge, and not through gross negligence. We also find that the judge erred by not considering Carver II, as required by the State Bar Rules of Procedure directing that prior disciplinary records are admissible, whether final or not.

After reviewing both of Carver’s prior disciplines, we conclude that he should be disbarred. His misconduct over several years demonstrates that he is unable or unwilling to follow ethical rules. Further, he failed to prove compelling mitigation. We cannot discern from the record any reason to depart from the guiding disciplinary standards indicating that disbarment is the appropriate discipline.

On sanction

 The State Bar and this court have been required to intervene three times to ensure that Carver adheres to the professional standards required of those who are licensed to practice law in California. Probation and suspension would be inadequate to prevent him from committing future misconduct that would endanger the public and the profession. (See Barnum v. State Bar, supra, 52 Cal.3d at pp. 112-113 [disbarment imposed where attorney’s probation violations left court no reason to believe he would comply with lesser discipline].) Standard 1.8(b) and the decisional law support our conclusion that the public and the profession are best protected if Carver is disbarred.

(Mike Frisch)

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

Tuesday, May 3, 2016

Oklahoma Accepts Resignation Of Attorney Who Sexually Abused His Daughter

The Oklahoma Supreme Court accepted the resignation of a Tulsa attorney who admitted that he had sexually abused his daughter.

In the affidavit, Lewis acknowledges that the OBA has opened grievance DC 16-054 against him and that the grievance alleges that he committed criminal acts involving sexual abuse of his minor daughter and such acts reflect adversely on his honesty, trustworthiness or fitness as a lawyer. He states that he is aware, if proven, the acts constitute violations of Rule 8.4(b) of the Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, app. 3-A, and Rule 1.3 of the RGDP.

Resignation is "tantamount to disbarment."

Tulsa World had the daughter's story 

Her progression from scared child to confident advocate gave Lewis the resolve recently to open it for the world to see. The revelation that she was sexually assaulted from age 11 to 16 by her father, a well-known and respected Tulsa attorney, has stunned the legal community and motivated legislators to consider changing the law.

Lewis, 45, testified in February before the House Criminal Justice and Corrections Committee and put confessional-like letters from her father on a website, toprevail.org, which contains her story and the reasons she is seeking the expansion and eventual elimination of the statute of limitations on child molestation.

“It’s too late for me,” Lewis said. “But I can do something so no other victim will hit the same roadblocks I have. That when survivors get to a place of healing, they won’t be told, ‘Sorry, you are too late. Your time is up.’ ”

To explain her new-found advocacy requires telling her personal story, which has some twists and a mystery...

Her father, George Michael Lewis, became a senior partner at Doerner Saunders Daniel and Anderson. He was a donor and supporter of children’s causes and recipient of the James C. Lang Mentoring Award from the Tulsa County Bar Association in 2013. He is listed as aplaintiff’s attorney in a 2008 federal class-action lawsuit brought by foster children against the Oklahoma Department of Human Services alleging abuses in care, which led to the Pinnacle Plan reform.

After Lewis testified and launched her website, her father notified his firm, which placed him on “indefinite leave immediately,” according to a statement from the firm’s managing partner, Tom Q. Ferguson.

“First and foremost, we would like to express our heartfelt prayers and empathy to Ms. Lewis and commend her courage in telling her story and helping others who have dealt with sexual abuse,” the statement read.

“Upon learning more information, it was the decision of the firm to ask Mr. Lewis for his letter of resignation. He is no longer an employee of the firm. This news has come as a shock to our employees. We have been meeting with our employees collectively and individually and have made confidential counseling available to them through our Employee Assistance Program.”

After a letter was sent to the home address of George Michael Lewis seeking comment, the Tulsa World received a typed statement bearing his signature.

“No one can undo the past actions for which they are responsible,” the letter states. “I deeply regret the pain I have caused my daughter Ginger and my family. I support fully my daughter’s advocacy for a change in the law to provide more time for those who have violated the law to be adjudicated and held accountable, as I was many years ago.”

In response to the statement, Ginger Lewis said: “The notion that he was held accountable is insulting. His life continued as normal while I burdened myself with the shame he should have felt. The perpetrators of these crimes, as illustrated by my father’s statement, are shockingly devoid of any recognition of the damage they cause. Their lack of a moral compass sends their victims’ lives into a dizzying destructive spin that I hope my advocacy can help people overcome.”

(Mike Frisch)

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

Dressed Down

A disbarment reported in the May 2016 California Bar Journal

CHARLES GREG LESTER [#160084], 62, of Covina, was disbarred Jan. 15, 2016 and ordered to comply with rule 9.20 of the California Rules of Court and make restitution.

The State Bar Court found Lester culpable of six counts of misconduct in two client matters including committing acts of moral turpitude by misappropriation and failing to maintain respect due to the courts, report judicial sanctions to the State Bar, deposit client funds in a client trust account, maintain client funds in a client trust account or pay client funds promptly.

In 2013, Lester showed up for his client’s criminal trial more than five hours late. When questioned by the judge, he gave a number of excuses including that his father had threatened his life the night before and he had overslept and could not dress himself when he woke that day due to having had surgery a couple months before. Finding his excuses implausible, the court imposed $1,000 in sanctions, which Lester did not pay and did not report to the State Bar.

In a second matter, Lester requested a client pay him $1,000 to cover the cost of two depositions, then cashed the check and used it for his own purposes. After he settled the client’s case for $15,000, he misappropriated the client’s money. He did not repay any portion of the $11,071.60 settlement or the $1,000 in costs.

He was ordered to pay $12,071.60 plus interest in restitution.

He had two prior records of discipline. In 1998, he was suspended for misconduct that included misappropriation, issuing checks against insufficient funds, and failing to perform with competence, maintain complete records of all funds, securities, and other properties of a client coming into his possession or deposit client funds in his trust account. In 2001, he was suspended for convictions stemming from three separate criminal cases.

(Mike Frisch)

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

Secret Agent

A reciprocal three-year suspension was imposed in Massachusetts based on a sanction of disbarment imposed in Connecticut

On August 5, 2014, the Superior Court for the Judicial District of Hartford issued an order disbarring the respondent from the practice of law in Connecticut. The Connecticut court’s order was based on findings that the respondent falsely informed his clients that an expert hired by the clients on the respondent’s recommendation was affiliated with national intelligence agencies and had used part of the fees paid by the client to bribe a federal postal inspector; falsely informed a Connecticut Superior Court and the Statewide Grievance Committee that the expert was a covert federal operative; and attempted to cause the expert to testify in a manner contrary to the truth. The Court found that the respondent violated the Connecticut equivalents of Mass. R. Prof. C. 3.3(a)(1) and (3), 3.4(b) and 8.4(c) and (d).

The Connecticut order described the misconduct

On or about June 17, 2011 a meeting took place between Oliver and [client] Zaczynski at a McDonald's restaurant. The meeting place was chosen by Oliver. Zaczynski thought the meeting place odd and brought a recording device in order to record the conversation between them. While the recording is of poor quality, it is clear that Zaczynski was complaining about amount of the bills which both Oliver and  [purported expert] Michaud had been submitting.

During this meeting, Oliver apparently produced a copy of a book written by the popular author Robert Ludlum and he asked Zaczynski to review a particular chapter or section in which he claimed he was mentioned. At or around the same time during this meeting, Michaud called Oliver on his cellphone and spoke directly to Zaczynski. After her call, in a curiously surreptitious tone, Oliver explained to Zaczynski that Michaud was affiliated with several national intelligence agencies. He suggested that Michaud had been able to convince the federal authorities to " stand down" and ultimately indicated that there was a postal inspector named " Vega" who demanded a bribe in order to cease an investigation into Zaczynski, Tyler, and New England Pellets. Oliver told Zaczynski that part of the money which he had paid as legal fees had been used to pay off Vega. He suggested that Michaud's influence was being used to Zaczynski's advantage and further that she had prevented the pending investigation from spreading into activities of the company in New Jersey. Oliver emphasized the need to keep Michaud as a consultant and the importance of resolving the fee dispute with her.

From the Hartford Courant is this report

A Hartford attorney and an accountant who allegedly claimed to be a doctor are accused of scheming to defraud clients the lawyer represented in a federal lawsuit.

Attorney James Oliver and Cynthia Michaud were arrested by Simsbury police in late June. Oliver is charged with third-degree larceny and accessory to third-degree larceny. Michaud is charged with third-degree larceny, second-degree false statement and unauthorized use of the title doctor.

They were arraigned Thursday in Superior Court in Enfield, although they did not appear publicly before the judge. Their cases were continued to Aug. 7. Both are free after posting $10,000 bail.

According to warrants for Oliver and Michaud's arrest, Michaud falsely claimed in a variety of documents to be a doctor, a certified internal auditor and a certified forensic examiner. Oliver encouraged his clients to hire her, even though he knew she was lying about her qualifications, the warrant states.

Michaud said the allegations against her are untrue. Oliver and his attorney declined to comment on the case.

Stephen Zacynski and Jason Tynan, owners of New England Pellet LLC, told police that Oliver and Michaud misrepresented Michaud's education and qualifications to bill them for services that were not performed.

Although Zacynski and Tynan claimed that they were defrauded of more than $340,000, police charged Michaud only for misrepresenting herself as a doctor and billing $2,550 for "medical damages analysis." No other details about the medical services are explained in the warrant.

Michaud admitted to a Simsbury detective that she was not a doctor and had never been to medical school, the warrant states. She said claiming she was a certified auditor and forensic examiner would lend more credibility to her business, CJM Associates, and would make the forensic investigative side of the business more plausible, the warrant states.

Zaczynski told police that Michaud's credentials came into question during the civil case. She was called to provide a deposition attesting to her education and expertise, but Oliver kept him from attending the deposition, he told police.

Zaczynski said he learned from a transcript of the deposition that Michaud was not a doctor and did not have the certifications in accounting that she claimed to have, the warrant states.

Oliver was aware that Michaud's credentials were false because he represented her in April 2009 when she was terminated from an accounting firm for lying about her credentials in a job application, the warrant states.

New England Pellet was sued in federal court by its supplier, New England Wood Pellet of New Hampshire. The lawsuit claims New England Wood Pellet was not paid for nearly $400,000 in wood pellets it delivered to New England Pellet.

The same lawsuit also accuses New England Pellet of pre-selling a substantial amount of pellets to customers but failing to deliver. The case is has not been resolved.

New England Pellet also got into trouble with state Attorney General Richard Blumenthal and the state consumer protection commissioner after people who had paid New England Pellet in advance said they did not get the pellets they ordered. That case was settled in 2010 when New England Pellet agreed to pay at least $55,000 in restitution to 250 customers.

(Mike Frisch)

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