Thursday, August 20, 2015

Stealing From The Dead Gets Lawyer Disbarred

The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of grand larceny.

The State Attorney General had a press release on the case

Attorney General Eric T. Schneiderman today announced the guilty plea of Westchester attorney Timothy Griffin, former acting president of United Hebrew Cemetery, on the charge of Grand Larceny in the First Degree. Griffin admitted to embezzling nearly $2 million from the not-for-profit, and he will be sentenced to 3 to 9 years in prison.

“This defendant not only stole from the clients of his law practice, but then stole millions from his charity in an attempt to disguise that theft,” said Attorney General Schneiderman. “My office has zero tolerance for anyone who abuses the public trust by taking advantage of a position at a nonprofit. If you use a charity as your own personal piggy bank, you will face serious consequences, including jail time.”

The Attorney General's investigation revealed that Griffin, a Bronxville real estate attorney, stole nearly $2 million from United Hebrew Cemetery in Staten Island. In late 2012, Griffin was asked to serve as Acting President of the Cemetery after the previous president and his wife were found guilty of embezzling approximately $850,000, as the result of a prior investigation conducted by the Attorney General’s office. In his capacity as Acting President, Griffin made six unauthorized wire transfers from the Cemetery’s account to his own attorney escrow account, totaling $1.9 million.

Griffin stole from United Hebrew Cemetery to cover up his theft of more than $1 million from his legal clients between April 2009 and February 2014. As a real estate attorney, Griffin’s clients gave him money to be held in escrow for pending transactions. Instead of keeping the money in escrow, as required by law, Griffin transferred it to his personal bank account and then used it to fund his lavish lifestyle, including membership at Westchester’s Waccabuc Country Club, a BMW, a Lexus, expensive jewelry and other personal expenses.

Today, Griffin pled guilty before the Honorable Stephen Rooney in Richmond County Supreme Court to one count of Grand Larceny in the First Degree, a Class B felony, in exchange for a sentence of 3 to 9 years in prison.  As part of his plea, Griffin also agreed to sign a confession of judgment in favor of United Hebrew Cemetery in the amount of $1,832,764.00.  

Griffin was separately charged by the Attorney General with multiple counts of Grand Larceny for the thefts from his clients, and he is expected to plead guilty to these counts on February 19, 2015 in Westchester County Court.  Last week, Griffin was sentenced in Connecticut federal court to six months in prison for tax evasion charges.

(Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Bad Alternative To Bankruptcy

The Indiana Supreme Court accepted the resignation of an attorney convicted of a Ponzi scheme.

IndyStar reported on the criminal matter

A Carmel man who bilked elderly investors out of their savings in what prosecutors called a Ponzi scheme will serve four years in prison, court records show.

Hamilton County prosecutors charged Charles Blackwelder, 70, with 20 felony counts in connection with what they called large-scale fraud perpetuated in connection with the now-insolvent Carmel investment firm CFS LLC.

Court documents say Blackwelder took investments from elderly clients to pay off debts from previous investments that tanked.

His daughter, Cara Grumme, 42, also faced 24 felony counts related to the fraud, in addition to two counts of perjury.

Hamilton Superior Court Judge Daniel Pfleging on Thursday sentenced Blackwelder to four years in prison and an additional eight years served either in home detention or a work release program.

The judge also ordered Blackwelder to pay $19 million in restitution.

Grumme received a three-year suspended sentence. Both entered into guilty pleas.

Blackwelder’s attorney, Robert Hammerle, said the man was an honest businessman for most of his career but he was in over his head when the economy took a dive in the early 2000s.

Hammerle said Blackwelder is a husband and father who was honored by the government for his service as a helicopter pilot in the Marines during the Vietnam War.

“It’s no excuse or justification,” Hammerle said. “In hindsight, he should have declared bankruptcy.”

But Hammerle said Blackwelder was desperate to keep his business afloat and not lose any money for his clients. Blackwelder thought he would eventually be able to get back on track and pay everyone in full, Hammerle said.

“Although it was never my intention for anyone to lose money, my clients were financially harmed by my wrongful decisions,” Blackwelder wrote in a statement to the judge. “The shame and guilt I hold at times seems almost unbearable.”

Hammerle said he expects the investors will receive 30 percent of their investment funds when properties related to the company are sold off.

The court order indicates that he is eligible for reinstatement in five years. (Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Probation Violation

A suspension of six months and a day was imposed by the Arizona Presiding Disciplinary Judge for an attorney's violation of conditions of earlier discipline.

Ms. Rogers conditionally admits she missed required MAP appoints with her MAP monitor beginning in September 2013. She further conditionally admits she began drinking alcohol in October 2013. In addition, Ms. Rogers admits she used illegal drugs between November 18, 2013 and December 2, 2013. On December 31, 2013, Ms. Rogers reported to her MAP monitor she had sustained a head injury which required medical treatment. Ms. Roger went on medical leave and was no longer practicing law. Ms. Rogers transferred to inactive membership status on February 4, 2014, and thereafter entered a voluntary rehabilitation program and successfully completed inpatient treatment from February 11, 2014 and May 8, 2014 at Pia’s Place. Effective October 30, 2014, Ms. Rogers voluntarily transferred to active membership status.

The judge accepted a consent sanction

The PDJ finds the proposed sanctions of a six month and one day suspension effective August 1, 2015 and two years of probation upon reinstatement, meets the objectives of discipline, therefore, the Agreement is accepted. A period of suspension of more than six months will require proof of rehabilitation and compliance with other requirements prior to being reinstated to the practice of law. Specific terms and conditions of probation shall be determined at the time of reinstatement.

(Mike Frisch)

August 20, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 19, 2015

Practice Pointer: Read The Discovery Materials

A public censure was imposed by the Wyoming Supreme Court who negotiated a guilty plea to DUI for a client.

The problem? 

Discovery showed the client's blood alcohol content at 0.0%.

The attorney arranged a change of plea but (from the report of the Board on Professional Responsibility)

Mr. Wixom and his parents secured discovery from the County Attorney’s office on March 19, 2014, which included the blood test results mentioned above. The presence of blood amphetamines was explained by the fact that Mr. Wixom was experiencing a hypoglycemic episode as a result of poorly controlled diabetes, which also explained his erratic behavior at the time of his arrest.

On April 8, 2014, the Wixoms wrote a letter terminating Respondent’s services, stating, “You have continuously lied to us. You never went after any case file paper work from the District attorney in Green River, Wyoming. You would not return our calls. You called us Myth [sicJ users. You never filed all the paper work needed in Wyoming. After 2 weeks you text at 5 A.M. to say you are calling now. We have done all the work for you and you still do nothing. So our bill is paid in full. We will never recommend you to anyone.”

Through new counsel, the client pleaded to reckless endangerment.

The attorney also made inaccurate statements in response to the bar complaint.

At the time of the events described above Respondent was undergoing severe stress in his personal life. Respondent developed a serious drinking problem that affected his personal and professional life in a very negative way. However, late in 2014 Respondent sought treatment for his alcohol problem, and reports that he has been sober since December 25, 2014. Respondent is extremely remorseful over the conduct above, and is committed to maintaining his sobriety and in serving his clients pursuant to his professional obligations in the future.

He has a record of prior discipline. (Mike Frisch)

August 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

State Bar Opposes Reinstatement Of Attorney Convicted Of Domestic Violence

A North Carolina attorney is seeking a stay of the second year of a two-year suspension and reinstatement. to practice. 

The State Bar responds that he has not complied with certain conditions and should remain suspended.

The Macon Daily News had reported on domestic assault charges. against him in February 2013

Last Thursday, William Shilling, 51, was arrested and charged with misdemeanor counts of simple physical assault and simple non-physical assault. Shilling is an attorney with the Macon County Department of Social Services.

According to documents on file at the Macon County Clerk's office, an arrest warrant signed by magistrate Miciah Leatherman states that there was probable cause to believe that Shilling inflicted physical injury to his child, who is less that 16 years old. “The physical injury inflicted caused a red mark on the victim's abdomen, and was inflicted by other than accidental means,” reads the warrant.

The complaint and motion on file states that Shilling assaulted the child after an altercation over the child's grades. According to his wife Cheryl's testimony, the child “got a ‘C’ last grading period in Algebra, Bill took a steak knife, punched it into the wall, jerked and removed it off the wall, removed all of [the child's] gaming systems devices, and told him if he didn't improve his grades, he would beat them into him and clear his room so it looked like a prison cell.”

The warrant continues to claim that Shilling allegedly threatened to physically harm his wife Cheryl Shilling and their son by saying, “I will kill you and I will burn the dogs alive and I will burn the house down.”

An additional warrant states charges of assault on a female after Leatherman found probable cause that Shilling forcefully used his chest to push the victim into a wall in the couples’ residence.

District Court Judge Donna Forga issued a Domestic Violence Protective Order forbidding Shilling from contacting his wife or minor son until Feb. 24.

Additional documents on file at the Clerk's Office signed by Judge Forga, report that in Cheryl Shilling’s request for the domestic violence protective order, on Feb. 9, William Shilling threatened to have Cheryl involuntarily committed and to remove their son's limbs to torture the child. Forga's report states that on Feb. 8, Cheryl claims that Shilling threatened to blow his own brains out and has threatened to drive their vehicle into a ravine making the child an orphan. It also states that Shilling has reportedly said that he wants to bludgeon the child. The document also states that the couple owns two handguns, one in their home and one in the law office.

Shilling was originally released on a $500 bond under orders not to have any contact with his wife or son due to a domestic violence protective order. On Feb. 15, he was once again arrested after sending an email to his wife, and leaving a letter addressed to the child, violating the protective order. Due to the violation, Shilling had to spend 48 hours in jail.

In response to the allegations against him, Shilling has filed a series of documents with the Clerk of Court’s office claiming that his wife's allegations are “baseless and wholly exaggerated.” He requested that the court release monies, personal items, his vehicle; grant visitation with the minor child and custody of his dog, and return office items.

Shilling is scheduled to appear in court on March 7.

He pled guilty to misdemeanor offenses. (Mike Frisch)

August 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

War Record Does Not Prevent Disbarment For Fraud Conviction

An attorney convicted of federal fraud offenses was disbarred by the New York Appellate Division for the First Judicial Department.

Respondent's conviction stemmed from his involvement with others in a scheme to defraud Electronic Data Systems, Inc. pursuant to a stock purchase. On November 20, 2006, respondent was sentenced to 48 months of incarceration; three years of supervised release after his release from prison, which included confinement in a half-way house; directed to pay $12,799,795 in restitution; and a $1,200 assessment was imposed.

He was suspended as a result of the conviction in 2006.

The United States Court of Appeals for the Second Circuit affirmed the conviction in 2008.

At the disciplinary hearing

... a sanction hearing was held before a Referee. Respondent testified on his own behalf and called a character witness. Although he acknowledged that the issue of his guilt was not before the Referee, he professed his innocence of the crimes he had been convicted of, specifically stating that he disagreed with the jury's verdict. Respondent also recounted his educational and professional history, including his leave of absence from law school in the late 1960's to serve in Vietnam, where he was wounded and received several decorations, including the Bronze Star. He was honorably discharged in 1970, and received his J.D. in 1972, an LLM in Taxation in 1979 and a Certified Public Accountant license in 1980.

Respondent testified that he is the father of two adult children, one of whom has a rare neurological disorder that severely affects his mobility and daily functioning, and which respondent believes is related to his own exposure to Agent Orange when he was in Vietnam. Respondent's son resides with his parents and is dependent upon them for care and support. Respondent further testified that he has established, and raised millions of dollars for, a fund to support medical research to discover a cure for his son's illness. Respondent also attributes his own health problems to Agent Orange exposure. Respondent also testified that during his incarceration his daughter suffered severe injuries in an automobile accident which required extensive surgery and rehabilitation.

The arguments below focused on sanction

The Referee issued a report recommending a five-year suspension retroactive to the date of respondent's interim suspension. A Hearing Panel convened to review the Referee's report. The Committee argued that the Referee's report should be disaffirmed insofar as it recommended a retroactive five-year suspension and that respondent should be disbarred retroactive to October 19, 2006 (the date of his interim suspension); respondent again urged a retroactive five-year suspension.

The Panel disaffirmed the Referee's recommended sanction of a retroactive five-year suspension and recommended that respondent be disbarred. The Panel noted that notwithstanding the mitigating circumstances, respondent's conduct was not a single, uncharacteristic lapse in judgment, but rather a deliberate and sustained participation in a conspiracy that lasted three years. It further pointed to the facts that respondent did not claim that family tragedy or financial pressure prompted him to misbehave, and, moreover, that he failed to acknowledge the basis for his conviction or express even a modicum of remorse.

The court ordered disbarment effective in 2006.

Wonder why this took nine years.

The Washington Post reported a lawsuit arising from dealings between the attorney and sons of Vice President Biden. (Mike Frisch)

August 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

90 Days For Unauthorized Practice

An attorney who had been administratively suspended for non-compliance with continuing legal education obligations was suspended for 90 days by the Wisconsin Supreme Court for the ensuing unauthorized practice.

Repeating the allegations of each separate matter here is not necessary.  Attorney Capistrant's conduct followed a common theme.  He practiced law with a suspended law license and without telling clients, courts, and opposing counsel about his license suspension.  He failed to diligently pursue certain cases, including matters that he allowed to languish after the circuit court or opposing counsel voiced concerns about his law license status.  He used letterhead that stated he was "admitted in the State of Wisconsin" when his Wisconsin law license was suspended. 

He failed to disclose information concerning the unauthorized practice when he sought reinstatement.

He also defaulted on the bar charges . (Mike Frisch)

August 19, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, August 18, 2015

Not Now, Not Ever

The Ohio Supreme Court has denied a bar applicant permission to sit for the bar examination and "forever precluded" his future application.

The 1999 University of Akron Law graduate had failed the bar on several occasions.

Harper has owned and operated a tax-preparation and accounting business, Byron L. Harper & Associates, Inc., for some time. In 2009, he was charged in federal district court by way of an information with aiding and assisting in the preparation of false federal income-tax returns in violation of 26 U.S.C. 7206(2)—a felony charge that the board deemed comparable to a fifth degree felony under Ohio law. He pleaded guilty to the information, admitting that he had prepared at least 57 false and fraudulent income-tax returns for no fewer than 19 clients by which they obtained unwarranted or inflated refunds totaling $112,130.

The Board of Commissioners on Character and Fitness found he had mischaracterized his dealings with the IRS.

And

The board found that Harper had filed for personal bankruptcy on at least seven occasions from 2006 through 2009 and was troubled by his failure to disclose those filings on his previous successive bar-exam applications. All of these bankruptcy cases were dismissed for procedural reasons prior to completion, and the board noted that some of the dismissals were due to Harper’s failure to comply with court orders. Moreover, the board found that while Harper insisted in his testimony that all his debts were current, the credit report that he submitted after the hearing showed several debts that were past due and in collections. Therefore, the board concluded that Harper either was not forthright with the panel or he did not have accurate knowledge of his own financial obligations.

The court

Here, the record amply supports the board’s findings that Harper has (1) been convicted of a felony for filing 57 fraudulent tax returns, (2) failed to provide complete and accurate information in multiple applications to take the Ohio bar exam about his debts and his bankruptcy filings, (3) made statements that were false and that omitted material facts, (4) engaged in acts involving dishonesty, fraud, deceit, or misrepresentation, (5) neglected his financial responsibilities, and (6) failed to comply with orders of the bankruptcy court.

The record also shows that Harper suffers from a combination of physical and mental conditions that he and his treating psychiatrist affirmatively declared (and the federal government found) have rendered him unable to work in any field—and that those conditions are expected to continue indefinitely. In an April 2014 report, Harper’s psychiatrist states that he is compliant with his current treatment regimen, that he is determined to fulfill his responsibilities as the head of his family, and that he strives to set a positive example for his children. Notably absent from that report, however, is any indication that Harper’s physical and mental limitations have improved to the point that he is presently—or will in the future be—capable of practicing law in a competent, ethical, and professional manner. Thus, nothing in the record contradicts the psychiatrist’s April 2010 certification that Harper’s mental and physical conditions will continue to render him totally and permanently disabled.

Justices French and O'Neill would permit him t o sit for the February 2020 exam. (Mike Frisch)

August 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 17, 2015

Dynamite Crack Gets Lawyer Suspended

The Pennsylvania Supreme Court suspended an attorney pending final discipline for a criminal conviction.

The Pittsburgh Post Gazette reported on  the criminal case

Upper St. Clair lawyer Guy Amatangelo admitted Friday that he is a crack cocaine user who hooked up with a Hill District drug gang supplied from New York, helping one of its members to obtain heroin and conspiring with him to buy crack to feed both their habits. 

Mr. Amatangelo, 42, pleaded guilty in U.S. District Court to a count of conspiracy to distribute crack and another count of possession of a gun by a drug user.

Federal prosecutors said Mr. Amatangelo at one point offered a .25-caliber pistol to trade for drugs.

Mr. Amatangelo was among 13 people indicted in January 2014 on drug trafficking charges related to an operation based in the Hill and supplied from Brooklyn.

Assistant U.S. Attorney Troy Rivetti characterized Mr. Amatangelo as a user more than a typical trafficker and said he was intercepted numerous times on a federal wiretap of a phone used by Dwight Hester of the Hill District, one of the 13 indicted.

Mr. Rivetti said Mr. Hester, along with two other local men, Fredrick Mack of Munhall and Allen Turner of the Hill District, traveled to Brooklyn to obtain drugs through a liaison there, Royance Lambert.

Wiretaps revealed that in the fall of 2013, someone named "LA" called Hester saying he was “in a rush” to buy crack. After an initial deal, the man described the crack he'd received as "dynamite" because it was so good.

Mr. Rivetti said agents determined that "LA" was Mr. Amatangelo and that he later tried to help Mr. Hester, who complained of being sick from withdrawal, obtain heroin and cocaine to soothe his own addiction. In October 2013, the two pooled their money for a deal to buy crack, Mr. Rivetti said. Mr. Amatangelo also indicated he could trade his gun for drugs if need be. 

Mr. Rivetti said the two spent $300 in cash for crack on Oct. 5, after which police arrested Mr. Amatangelo on state charges.

He was later indicted on federal drug conspiracy charges, and prosecutors also charged him directly with the gun offense. 

U.S. District Judge David Cercone set sentencing for Sept. 9.

(Mike Frisch)

August 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Suspension, Restitution Proposed For Excessive Fee

An Illinois Hearing Board has recommended that an attorney be suspended for four months and until she pays restitution in excess of $100,000

Respondent represented a client in a lawsuit involving a corporation owned by the client and two other persons. The lawsuit alleged the other owners misused corporate funds and deprived the client of her interest in the corporation. The fee agreement covered proceedings at the trial court level and provided for a one-third contingent fee, based on the recovery in the lawsuit. Judgment was entered for the client in the amount of $415,000. After the opposing party appealed, a second fee agreement was signed, which provided for a 40% contingent fee. The case settled for $315,000, and fees of 40% of the settlement amount were paid. After a discussion with the other attorney in Respondent's firm, the client also paid the firm $106,563.26, representing 40% of her portion of the proceeds from the sale of a corporate asset, plus costs.

The Hearing Board concluded the proceeds from the sale of the asset were not funds from which fees could be legitimately taken under Respondent's fee agreement with the client. Consequently, the Hearing Board found Respondent received an unreasonable fee. The Hearing Board concluded the Administrator did not prove Respondent engaged in any of the other misconduct charged. The second fee agreement was not improper, as it related to work not covered by the original agreement. The evidence did not establish Respondent made any misrepresentations or improperly failed to advise the client.

The Hearing Board found an excessive fee

In this case, a fee was collected which was clearly beyond the scope of the retainer agreement. The fee collected exceeded, by approximately $102,000, the amount to which Respondent's firm was entitled under its agreement with Davis. The amount was significant, in general and to our sanction recommendation. Respondent was very involved with Davis's case. She knew the terms of the retainer agreement with Davis. Respondent knew, very shortly after Cook received the check, this payment had been made. Respondent, one of only two shareholders in the firm, shared in the improperly collected fee.

On the other hand, we do not believe Respondent set out to cheat Davis or to do anything wrong. Respondent should have, but did not, recognize it was improper to take a fee based on the sale proceeds of the real estate. In the case as a whole, Respondent's firm performed significant work for Davis. The extent of Respondent's work and the good results obtained colored her perspective, and Respondent allowed herself to believe in a construction of the fee agreement even though it was clearly unreasonable. Davis paid the fees at issue, based on a misperception as to her liability for fees, but Cook, not Respondent, created that misperception and dealt with Davis regarding the fees.

The limited extent of Respondent's proven misconduct, her lack of evil motives, the extensive work Respondent performed and the favorable results obtained in the case in which she represented Davis distinguish this case from the cases on which the Administrator relies. Given these differences, this case does not warrant a lengthy suspension. On the other hand, this case requires more than censure or a very brief suspension. The fee collected improperly exceeded $100,000. It should have been clear to Respondent that the contract with Davis did not provide for a contingent fee based on the proceeds of the sale of corporate real estate and that a fee taken based on such proceeds was improper. We are mindful of the public's skepticism of fees charged by attorneys and the disciplinary system's goal of maintaining the integrity of the profession.

(Mike Frisch)

August 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Practice Indefinitely Foreclosed

The Maryland Court of Appeals has imposed an indefinite suspension by consent of an attorney sued by the State Attorney General for mortgage rescue fraud.

A press release from the Attorney General's office in June 2014

Attorney General Douglas F. Gansler today announced that his Consumer Protection Division filed lawsuits against two law firms for allegedly operating illegal loan modification schemes that charge consumers large upfront fees, but often do not help them avoid foreclosure or modify their loans. The lawsuits are part of a joint federal-state sweep by the Consumer Financial Protection Bureau, the Federal Trade Commission and 15 states targeting over 30 firms and programs that prey on struggling homeowners or those facing foreclosure.

"Although we've been able to secure more than $1.5 billion in relief for distressed Maryland homeowners through the National Mortgage Settlement and other legal victories, we still see bad actors trying to take advantage of consumers," said Attorney General Gansler. "Consumers should never pay upfront fees to companies that may leave them in worse shape than when they started. Local nonprofit housing counselors provide the same services at no cost."

The Consumer Protection Division charged Brooklyn, New York-based Litvin Law Firm, P.C., and its principal, Gennady Litvin, and the Law Office of Maria R. Flynn, L.L.C., and Ms. Flynn, based in Crofton, Maryland, with violating various Maryland statutes, including the Consumer Protection Act, the Maryland Credit Services Business Act, the Maryland Mortgage Assistance Relief Services Act and the Protection of Homeowners in Foreclosure Act.

Both companies use their status as law firms as a marketing tool to provide the appearance of legal representation and an air of trustworthiness, while providing little or no legal services, misrepresenting the success of the services that they do provide and charging illegal advance fees. After collecting upfront fees, these operations often fail to negotiate successful loan modifications, placing their victims at even greater risk of financial loss and foreclosure.

(Mike Frisch)

August 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Preference For Horses May Lead To Disbarment

An attorney should be disbarred for misappropriation, according to a recent report and recommendation of the California State Bar Court Review Department.

Over a three-year period, George Bernard Altenberg, Jr., misappropriated approximately $93,000 from eight clients to support his passionate hobby of breeding and maintenance of purebred Arabian horses. Though he has repaid most of the funds, he continues to owe $2,724 to one of his former clients. Altenberg also violated numerous conditions of a prior discipline, and violated rule 9.20 of the California Rules of Court by filing a false compliance declaration...

 Altenberg was admitted to practice law in California on June 13, 1985. For more than 20 years, he maintained a viable law practice focusing on personal injury matters. In addition to practicing law, Altenberg became, in his own words, obsessed with owning and breeding Polish Arabian horses, and raised as many as 90 horses on his farm in Sonoma County. In 1999, Altenberg added another venture when he bought a restaurant in Sebastopol. The restaurant was a financial failure, and he had incurred $1.7 million in debt by the time he sold it in 2006. To service the debt, he was forced to sell his farm and decided to relocate his stable of horses to Kentucky in hopes of lessening expenses. He traveled between Kentucky and California in an effort to maintain his California law practice. The relocation was a failure, resulting in the decline of his horses’ health, ongoing financial difficulties, and an undermining of the viability of his law practice. Because of his financial difficulties, in 2008, Altenberg began using client trust funds for the care and maintenance of his horses. In 2010, the State Bar began an investigation, which led to his three disciplinary proceedings.

On sanction

In a time of financial crisis, Altenberg chose to care for his horses at the expense of the duties he owed to his clients. Many attorneys experience comparable financial and emotional difficulties. “While these stresses are never easy, we must expect attorneys to cope with them without engaging in dishonest activities, as did respondent.” (In the Matter of Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511, 522.) “Misappropriation of a client’s funds simply cannot be excused or substantially mitigated because of an attorney’s needs, no matter how compelling.” (Hitchcock v. State Bar (1989) 48 Cal.3d 690, 709.) The severe sanction of disbarment is necessary here and is consistent with relevant case law.

He is presently on involuntary inactive status. (Mike Frisch)

August 17, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 14, 2015

Conviction Precludes Innocence Claim; Attorney Disbarred For Domestic Violence

A felony conviction for terroristic threats is disbarment-worthy, according to a decision issued today by the Nebraska Supreme Court.

Respondent was initially charged with second degree domestic assault and use of a weapon to commit a felony. She was accused of assaulting her husband with a knife. The State later amended the charges to first degree assault and use of a deadly weapon to commit a felony. Respondent has consistently denied causing her husband’s injuries and has maintained that she was asleep when the injuries occurred.

At some point, Respondent’s husband admitted to police that Respondent had cut him with a knife. He later recanted and explained his statement was made while he was sleep deprived, under the influence of drugs, and under pressure by the police. He also stated that he made the statement to hide the fact that he had acquired drugs illegally and was under the belief that he could simply refuse to press charges. He stated that he was eating cake in bed and was under the influence of pain medication. He claimed he fell asleep, rolled over on the knife, and was injured as a result.

Pursuant to a plea agreement, Respondent pled no contest to one count of making terroristic threats. She was convicted on March 9, 2012, and was sentenced to 1 to 3 years’ imprisonment with credit for 55 days served. She began her sentence July 3 and was released on parole in December. Her parole ended in July 2013.

The court

Respondent strenuously denied committing the crime of making terroristic threats, and her husband, the purported victim of the crime, also insisted that she did not commit a crime against him. He retracted all statements he had previously made to police and claimed that he originally made the statements while under the influence of drugs and sleep deprivation.

Respondent stated she took a plea deal because she feared a prolonged trial and a conviction of a far more serious crime that could result in years of incarceration. She wanted to avoid a lengthy trial because she had a 17-year-old daughter and a seriously ill husband who relied on her for support, and she wanted to avoid the bad publicity a trial would generate because she is an attorney. She claimed to have exculpatory evidence and intended to continue her pursuit to exonerate herself of the crime.

It is not uncommon for one who accepts a plea bargain to make similar claims after the fact. However, it is not our task in this case to determine the innocence or guilt of Respondent, but only the appropriate discipline to be imposed for the conviction.

There was extensive mitigation 

The referee also noted several letters and affidavits from attorneys and former clients in support of Respondent, including evidence of pro bono legal work that she did before being suspended. The referee stated that Respondent has exhibited extraordinary compassion and dedication in representing indigent persons and persons of limited means. 

The court nonetheless focused on its role in setting standards for the Bar

Because this is the first attorney discipline case in Nebraska involving a felony conviction for a crime of violence, it is necessary to convey the serious consequences that attach to such misconduct. Although no clients were harmed by Respondent’s misconduct, an attorney’s conviction of a felony for a crime of violence requires a severe sanction.

It is clear that the stress caused by the inability to practice law has produced much anxiety for Respondent. However, this does not excuse the seriousness of her misconduct. Although Respondent may not be a danger to others, her felony conviction for a crime of violence damages the reputation of the bar and threatens public confidence in the profession. There is a need for sanctions to deter crimes of violence by members of the bar.

1011 HD reported on the February 2011 arrest

A woman is behind bars after Lincoln Police say she stabbed her husband several times.

Officer Katie Flood with Lincoln Police says 40-year-old Kristin Walz was upset Friday night because her 49-year-old husband, Timothy, did not want go out.

Flood says Kristin then attacked Timothy with a Ka-bar knife that had a five-inch blade.

Timothy suffered a 1 1/2 inch cut to his forearm and right knee, a deep two-inch cut to his right elbow and a bite mark to his chest.

Flood says Timothy did not go to the hospital until Saturday. She said he initially claimed to be a sleep eater and must have cut himself while sleeping.

Flood said Timothy later admitted to the fight with Kristin.

(Mike Frisch)

August 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Messy Situation

The North Carolina State Bar has filed a disciplinary complaint alleging that a former attorney with Womble Carlyle Sandridge & Rice represented directly adverse interests in labor and employment matters.

The attorney allegedly advised a company deputy general counsel (Snider) concerning an employment discrimination claim against the company, also a client.

He is further alleged to have (i) disobeyed firm orders to cease the representation and (ii) deleted all relevant emails from the firm's system.

The emails were later retrieved by the firm.

He is charged with dishonesty '[b]y advising Snider that some scrubbing of their email might be good if they could figure out how to do it without making anything worse..."

There is a second count alleging misconduct in his own divorce. The allegations also involve Snider.

The attorney allegedly prepared and filed a false document.

The falsity

In 2003, Snider told me after a mutual sexual encounter that did not include intercourse (and which never did) that "if this is to continue" there "would be a cost." She explained that I need to provide funds to her in the form of regular payments totaling $120,000 per year (with a $10,000 floor) supplemented by gifts which were discretionary in amount but which did not result in credits to my obligations to her.

His wife sued Snider for criminal conversation, alienation of affection and negligent infliction of emotional distress. Snider sued him for intentional infliction of emotional distress for the false statements.

He defaulted in Snider's suit. (Mike Frisch)

August 14, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 13, 2015

Board Recommendations Rejected; Public Wins

The District of Columbia Court of Appeals suspended an immigration attorney who had engaged in persistent neglect and lied in bar proceedings for two years.

The court rejected the Board on Professional Responsibility's recommendation for automatic reinstatement

We are not persuaded by the Board’s reasons for declining to recommend a fitness requirement. First, we view Mr. Rodriguez-Quesada’s pattern of inexcusable neglect of his clients’ interests, his dishonesty to a judge and the Hearing Committee, and his lack of remorse as demonstrating “a pattern of misconduct or dishonest behavior that raises serious questions as to [Mr. Rodriguez-Quesada’s] integrity or character.” Second, the Board’s statement that Mr. Rodriguez-Quesada cooperated with Bar Counsel is contradicted by the Board’s conclusions that Mr. Rodriguez-Quesada testified falsely before the Hearing Committee, blamed his clients for his failings, and baselessly accused his clients of committing perjury. Third, we do not share the Board’s conclusion that Mr. Rodriguez-Quesada’s rule violations are at bottom attributable to having taken on too many cases. Mr. Rodriguez-Quesada’s rule violations are too serious and extensive to be viewed as the unavailing efforts of an overburdened attorney acting in good faith to protect his clients’ interests. Finally, although Mr. RodriguezQuesada has no prior disciplinary history and is no longer acting as an immigration attorney, those considerations are outweighed by the concerns created by the scope and gravity of Mr. Rodriguez-Quesada’s rule violations in these matters.

We recognize that we ordinarily owe deference to the Board’s recommendation as to the proper sanction to be imposed. On the issue of the need for a fitness requirement, however, we take a significantly different view from the Board as to the seriousness of Mr. Rodriguez-Quesada’s conduct, and we are convinced that a fitness requirement is warranted.

The court also ordered restitution, rejecting the board's views

The Board acknowledged that Mr. Rodriguez-Quesada was not entitled to retain the entire fee Mr. Abarca had paid. Nevertheless, the Board declined to order restitution, for three reasons: (1) Mr. Abarca had paid Mr. RodriguezQuesada $4,200 rather than the $5,000 due under the retainer agreement; (2) Mr. Rodriguez-Quesada had made some efforts on Mr. Abarca’s behalf; and (3) Mr. Abarca had unsuccessfully sued Mr. Rodriguez-Quesada in small-claims court in Virginia for return of fees, and Bar Counsel therefore bore “a somewhat greater burden than otherwise might be the case to show [that Mr. Rodriguez-Quesada] was not entitled to retain any portion of the fee.” The first two considerations are potentially relevant to the amount of restitution, but do not support an outright denial of restitution, at least barring a more detailed inquiry into the precise benefit to Mr. Abarca of Mr. Rodriguez-Quesada’s efforts. Moreover, Mr. Rodriguez Quesada made some efforts in the other three matters as well, and the Board nevertheless awarded those clients restitution. As to the unsuccessful action to recover fees in small-claims court, the Board took the view that Bar Counsel was not estopped by the result of that action, and Mr. Rodriguez-Quesada has not argued otherwise in this court. Given that undisputed premise, which we accept for present purposes, it is difficult to understand the basis for imposing an unspecified higher burden on Bar Counsel on the issue of restitution. Moreover, Bar Counsel in any event would not appropriately be required to show that Mr. Rodriguez-Quesada was not entitled to retain “any portion of the fee.” Rather, partial restitution could be warranted as long as Bar Counsel showed that at least some portion of the fee was unearned.

The amount of restitution can be addressed if he seeks reinstatement. (Mike Frisch)

August 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Bad Prosecutor

An attorney who engaged in multiple acts of prosecutorial misconduct as an assistant district attorney has been disbarred by the Pennsylvania Supreme Court.

In one of the matters

The convictions concerning "J.L." and "T.C" were reversed because of Respondent's misconduct in closing arguments, including "utilizing intemperate language and making an [obscene] hand gesture."

From the Disciplinary Board's report

Respondent was an Assistant District Attorney in Venango County during the time frame of the misconduct. In three separate cases, he engaged in various forms of prosecutorial misconduct. During the prosecution of Anderson, Respondent violated a court order by interviewing one of the alleged victims without the presence of a responsible person from the Polk Center. He then misrepresented to the court his contact with that alleged victim. Respondent utilized intemperate language and made a profane hand gesture during the closing argument in the second trial of Anderson, resulting in reversal of Anderson's conviction. Respondent's conduct was particularly harmful for the Commonwealth and for two alleged victims, as the charges against Anderson as to those alleged victims were dismissed on the basis of double jeopardy.

During the prosecution of Culver, Respondent made misrepresentations during his opening statement as to the evidence, including evidence that did not exist. During closing argument, Respondent mischaracterized the existence of expert witnesses. Respondent attempted to intimidate the defendant and his counsel by repeatedly yelling, menacing, and pointing in their faces.

In the Sundol prosecution, Respondent discussed Sundol's case with her, without the knowledge or consent of Sundol's counsel, resulting in the Court disqualifying Respondent as counsel for the matter.

Having concluded that Respondent violated the Rules, this matter is ripe for the determination of discipline. Office of Disciplinary Counsel and the Hearing Committee have recommended that Respondent be disbarred. After considering the nature and gravity of the misconduct as well as the presence of aggravating or mitigating factors, Office of Disciplinary Counsel v. Gwendolyn Harmon, 72 Pa. D. & C. 4th 115 (2004), we recommend that Respondent be disbarred.

Respondent's actions constitute serious misconduct. While there is no per se discipline in Pennsylvania, prior similar cases are instructive and are suggestive of the most severe sanction when, as here, an attorney engages in repeated dishonest conduct, misrepresentation to the court and lack of respect for the court in his capacity as a prosecutor.

He defaulted on the charges.

The Pittsburgh Post - Gazette reported that he was "involuntarily terminated" as an ADA in 2012. (Mike Frisch)

August 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 12, 2015

Get Out Of Jail Fee: Attorney Gets Oral Sex For Posting Client's Bond; Sex Addiction Mitigates Sanction

The Arizona Presiding Disciplinary Judge imposed a two-year suspension of an attorney by consent,

The attorney had self-reported that

While representing an indigent female criminal defendant (“T.P.”) under a contract with Gila County Superior Court, Mr. Standage and T.P. exchanged sexually explicit text messages, photographs and videos. While texting about an upcoming hearing he suggested “a nude erotic massage might help calm your nerves,” then described the way he would give the massage, and told T.P. he was sexually aroused by their texting. Similar texts followed. When T.P. requested Mr. Standage seek a continuance of her disposition hearing, she offered to “rock” his world, leading to the exchange of more explicit texts. The agreement states T.P. and Mr. Standage did not engage in any physical sexual contact. When Mr. Standage was unable to obtain the continuance T.P. reported his misconduct and delivered copies of their texts to the trial court.

While representing a female client (“A.G.”), in a dependency action, Mr. Standage conditionally admits that in 2013, at the client’s suggestion, he posted A.G.’s bond arising from a misdemeanor criminal warrant, in exchange for oral sex at a later time at a hotel.

Also in 2013, Mr. Standage conditionally admits he paid a child support contempt order for a former client’s girlfriend (K.C.) who promised to make it worth his while. After he paid off the contempt order, she performed a strip tease for him and had sex with him.

Mr. Standage further conditionally admits he has frequented massage parlors and engaged in sexual activity with the massage therapists for several years, until 2013. He also conditionally admitted he had paid prostitutes to engage in sexual activity for several years until 2013.

Mitigating evidence

To consider mitigating factor, 9.32(i) mental disability, the following four pronged criteria must also be met under that Standard: 1) medical evidence that the respondent is effected by a mental disability; 2) the mental disability caused the misconduct; 3) the respondent’s recovery from a mental disability has been demonstrated by a meaningful and sustained period of successful rehabilitation; and 4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.

The Agreement states Mr. Standage has been diagnosed with an Impulse Control Disorder NOS (Not Otherwise Specified) related to sex addiction and his addiction caused his misconduct. On March 2-7, 2014, he participated in an Intensive Outpatient Program for sex addiction at Psychological Counseling Services, LTD and has continued treatment with a psychologist since completing that program. Mr. Standage is engaged in a 12 step program with a sponsor and also sponsors others. He asserts he has been rehabilitated since January 21, 2014 without relapse. The parties agree that a two year suspension would allow Mr. Standage additional time to demonstrate a sustained period of recovery.

Among other sanctions were the loss of his indigent defense work and his excommunication from the Church of Jesus Christ of Latter Day Saints. There was also adverse publicity and a strain on his marital and family relations.

The agreement attached  to the consent has the explicit details. (Mike Frisch)

August 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

A Rejected Theory Draws Sanction For Frivolous Litigation

The Minnesota Supreme Court imposed discipline for frivolous litigation and related violations

the referee found that Butler pursued a pattern of frivolous litigation, fraudulently joined law firms and attorneys as defendants, refiled previously dismissed matters, and failed to pay sanctions imposed by the United States District Court for the District of Minnesota, in violation of Minn. R. Prof. Conduct 3.1, 3.2, and 3.4(c). The referee recommended that we indefinitely suspend Butler from the practice of law for a minimum of 2 years. We conclude that the referee did not clearly err in his findings of fact and conclusions that Butler violated the Minnesota Rules of Professional Conduct. We also agree with the referee’s recommended discipline. We, therefore, indefinitely suspend Butler from the practice of law with no right to petition for reinstatement for a minimum of 2 years.

The litigation

The referee found that Butler filed more than 40 lawsuits on behalf of homeowners, claiming that the foreclosures of their properties were invalid. A main theory of Butler’s mortgage litigation was that, in order to foreclose on a property, the mortgagee (frequently a bank or the Mortgage Electronic Registration System (MERS)) must hold both the mortgage, which allows the mortgagee to foreclose, and the underlying promissory note, which grants the mortgagee (or other payee) the right to receive payments from the mortgagor. The referee found that Butler’s theory is contrary to Minnesota law and was expressly rejected by our court in Jackson v. MERS, 770 N.W.2d 487, 501 (Minn. 2009), as well as by the Eighth Circuit and the federal district court.

On sanction

Butler brought frivolous lawsuits, fraudulently joined parties, or refiled dismissed cases in more than 40 matters. This misconduct occurred over approximately 3 years, until Butler’s suspension from practice before the Eighth Circuit and the District of Minnesota in 2013. We have held that such an abuse of the litigation process constitutes “serious” misconduct and warrants a suspension...

Butler also has failed to pay approximately $300,000 in court-ordered sanctions and attorney fees. Failure to pay court-ordered sanctions also warrants discipline...

The cumulative weight of Butler’s misconduct is substantial. Butler’s misconduct involved more than 40 matters and occurred over a 3-year period, despite the federal court’s deterrent efforts.

(Mike Frisch)

August 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Get Mad But Not Even

An attorney who made false statements to immigration authorities to get his former client deported has been suspended for one year by the New York Appellate Division for the First Judicial Department.

In 2009, HE, a lawful permanent resident of the United States, retained respondent to represent him at a deferred inspection by federal immigration authorities to determine whether HE was admissible to re-enter the United States after a trip abroad. Respondent sent the immigration authorities a notice of appearance on HE's behalf and a request for a 90-day adjournment of the inspection. Thereafter, before the scheduled date of the deferred inspection, while HE was on parole, HE's wife informed respondent by telephone that her husband had retained another lawyer and no longer wanted respondent to represent him. Upon hearing that HE was discharging him, respondent became belligerent and verbally abusive toward HE's wife and told her that he would phone the deferred inspection unit and give them HE's work and home address so that they could arrest him before the scheduled inspection. The same day, respondent had a telephone conversation with an officer of the deferred inspection unit, in which he told the officer that he was no longer HE's attorney, asked whether the officer knew that HE was deportable as a convicted felon, and asked whether the officer knew HE's home address and phone number. Thereafter, respondent sent the immigration authorities a letter withdrawing his notice of appearance on behalf of HE and stating, falsely, that HE's wife had told him that HE did not intend to appear for the scheduled deferred inspection...

Respondent's misconduct includes intentionally making prejudicial statements to immigration authorities which were intended to cause the arrest and deportation of a former client. In addition, respondent admits that he willfully failed to meet his tax obligations for six years and used the funds wrongfully withheld from the government to invest in real estate. Moreover, respondent's prior disciplinary record is not unblemished, as he has received two previous admonitions. Although respondent points to certain mitigating factors (health and personal issues he was experiencing at the times of the misconduct, his remorse, his admission of responsibility for failing to file tax returns, and the steps he has taken to address his tax debt), we do not find this mitigation sufficiently compelling to limit the sanction to a public censure, as respondent requests.

(Mike Frisch)

August 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Duty To Cooperate

A lawyer who failed to participate in disciplinary proceedings has ben disbarred by the New York Appellate Division for the First Judicial Department.

Despite the poor and unfortunate health condition of respondent, which this Court takes into consideration as a mitigating factor, this Court confirms the Hearing Panel's report in its entirety, including its recommendation of disbarment. Respondent has repeatedly demonstrated a disregard for the rules of the Court. The consistent nature of these acts of negligence and misconduct make respondent's actions, or rather, inactions, evident violations of rule 8.4(d) and rule 8.4(h) of the Rules of Professional Conduct. Therefore, respondent has both conducted himself in a manner prejudicial to the interest of justice and in a manner that adversely reflects upon his fitness as a lawyer.

This Court has disbarred attorneys who have failed to cooperate with the Committee, answer charges, and appear at hearings despite previous evidence of lack of capacity or health related limitations (see Matter of Stern, 118 AD3d 85 [1st Dept 2014]. Moreover, in the strikingly analogous Matter of Blank (110 AD3d 112 [1st Dept 2013], despite evidence of mental illness, the respondent was disbarred for, inter alia, neglect of two client matters, failure to return unearned fees, failure to satisfy default judgments obtained by affected clients, and failure to answer charges and appear in at least one disciplinary proceeding.

New York treats failure to cooperate as serious misconduct

This Court considers the actions of respondent serious breaches of ethical and professional conduct. The integrity of the legal profession is compromised when counselors are uncooperative with administrative authority and fail to discharge their professional obligations to their clients. In this matter, respondent's three named clients have suffered financial harm. This Court agrees with the Hearing Panel's assessment that respondent could have chosen to, "associate[] other counsel to assist him in performing work that he could not physically do himself . . . [or] if Respondent could no longer perform his professional duties, he had an obligation to return all or part of the retainer funds he had accepted."

Moreover, this Court has ruled that either failure to cooperate with the Committee or a default on charges, coupled with an evasion of hearings before a panel, independently serve as sufficient basis for disbarment.

He had previously been subject to interim suspension. (Mike Frisch)

August 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)