Wednesday, October 22, 2014

No Show Lawyer Gets Disbarred

A recent disciplinary decision from the Maryland Court of Appeals

This attorney discipline matter concerns an attorney who accepted $2,500 from a client as a retainer for a divorce case, had no further communication with her client, performed no work on the matter, and apparently abandoned her Maryland law practice. The attorney, who did not maintain a separate trust account, deposited the client’s payment into a general account and never returned the unearned fee to the client. The attorney did not cooperate with Bar Counsel’s disciplinary investigation, failed to respond to the disciplinary charges later filed against her, and did not participate in the proceedings before the hearing judge or our Court. As a result, we have no information that would mitigate the sanction for her misconduct. We hold that she violated multiple provisions of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) as well as related rules and statutes and, based on those violations, disbar her.

I only hope that this attorney is not admitted in D.C. as I would hate to read a decision that imposed censure as reciprocal discipline for this misconduct. (Mike Frisch)

October 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Conflict Of Interest: Sex With Incarcerated Client's Wife

A sexual relationship with the client's wife has resulted in the suspension of an Ohio attorney.

The relationship took place during and after the criminal trial in which the client was accused of murdering his own parents.

As reported by Kathleen Maloney

The Supreme Court today suspended  Columbus attorney James D. Owen for having a sexual relationship with the wife  of a client. The court noted in its decision that the professional conduct  rules do not address this issue nor had there been any case law about this type  of situation.

In a 6-1 vote, the court imposed  a two-year suspension, with the second year stayed on conditions, for Owen’s  misconduct.

In 1997, Owen began representing  Robert Caulley, who had been accused of murdering his parents three years  earlier. Owen was originally hired to research a false confession defense in  the capital case. Given his work on part of the case, a trial judge removed  Caulley’s court-appointed lawyers and put Owen in their place.

The accused’s wife relocated from  Texas to Ohio in summer 1997 and helped Owen with case-related tasks. Several  days before Caulley’s trial began that September, Owen and Caulley’s wife  started a sexual relationship, which continued until August or September of  1998. The jury found Caulley guilty of two lesser offenses, not punishable by  death, and he was sent to prison.

Caulley found out about the  affair years later, and the Ohio Public Defender contacted Owen in 2011 to tell  him it was asking the court for a new trial because of his relationship with  Caulley’s wife. Owen admitted his actions and cooperated in the efforts to gain  a new trial, which was granted. He also reported his misconduct to the  Disciplinary Counsel about a month later and entered into a five-year contract  with the Ohio Lawyers Assistance Program (OLAP) in early 2012. He sought  treatment for anxiety, depression, and severe attention deficit disorder.

In a per curiam opinion, the court found that a sexual  relationship with the spouse of a current client creates a conflict of interest  that compromises the trust and confidence between the client and attorney.

The court has disapproved of  lawyers engaging in sexual conduct with clients, and it today upheld the same  principle for sexual relationships with a client’s spouse because “the  vulnerability of the client and the betrayal of trust are the same.”

Owen’s suspension with one year  stayed is contingent on him complying with his OLAP contract and committing no  further misconduct.

In the court’s majority were  Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, Sharon L.  Kennedy, Judith L. French, and William M. O’Neill.

Chief Justice Maureen  O’Connor dissented. She would have imposed an indefinite suspension.

2013-1981. Disciplinary  Counsel v. Owen, Slip  Opinion No. 2014-Ohio-4597.

The court

We understand the effects that mental illness, alcoholism, psychological impairments, and dysfunctional upbringings can have on a practicing attorney, not to mention the stresses attorneys endure in their day-today lives, both professional and personal. As debilitating as these can be to practitioners, however, there are consequences when they lead to misconduct, and attorneys will be held accountable. Owen has accepted full responsibility for his misconduct. He acknowledges that he had ample time and opportunity to disclose the affair to Caulley and later to Caulley’s appellate attorneys, yet he failed to do so. He is deeply remorseful for his betrayal of his family, his client, and his profession.

The Daily Mail has details about the case. Ohio.com reports that the client was granted a new trial as a result. (Mike Frisch)

October 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A "Crazy Mistake" Or A Broken System Of Regulation?

The pathetic state of lawyer regulation in New Jersey is on display in a reprimand for negligent misappropropriation just issued by the Disciplinary Review Board and accepted by the Supreme Court.

The disciplinary matter came to light during a random audit.

The attorney conceded that he was deficient in his recordkeeping and that he had commingled his trust and business accounts.

The attorney was charged with two counts of knowing misappropriation, for which the sanction is disbarment.

The special master found the violations; both findings were overturned by the DRB. 

The count that appears to clearly involve knowing misappropriation involved the handling of a $35,000 settlement check in a slip-and-fall case.

The attorney prepared the deposit ticket and deposited the funds in his business account. The account had a balance of slightly over $1,100.

He then used escrow funds (i.e. other people's money) to pay the client her share. He  used the funds deposited in the business account to pay business and personal expenses. He wrote eighteen checks for such purposes and invaded entrusted funds to the tune of over $9,000.

A workers' compensation lien owed to a state agency for over $11,000 went unpaid for a year and was satisfied by a loan from the attorney's father.

The DRB described the special master's findings

In the Howard matter (count one), the special master concluded that respondent’s deposit into the business account was "knowing and purposeful." The special master noted that the deposit slip bore the business account number placed by respondent, after the account name, that respondent checked off boxes to both "business" and "checking," and that he wrote "(bus)" on the deposit slip. The special master remarked that, without this deposit, the business account would have contained insufficient funds to cover the eighteen checks written by respondent between August 9 and 27, 2010.

In concluding that respondent knowingly misappropriated trust funds, the special master found, consistent with [chief auditor] Waldman’s testimony, that respondent paid Howard with trust account funds belonging to other clients. Compounding respondent learned that he was out of that offense, once trust, he took no immediate action, waiting until he received a notice of the OAE’s random audit, before borrowing funds from his father. Thereafter, he waited five months, before satisfying the workers' compensation lien.

Notwithstanding these rather damning facts and the special master's conclusion, the DRB finds a way to absolve this behavior

Respondent went on to say that, from roughly March 2011, when he discovered his "crazy mistake," until late August 2011, he thought that he could replenish the account by using legal fees, as they came in. However, he said, the OAE’s audit notice had "forced his hand," in late August 2011. He then immediately borrowed funds from his father and replaced the amount of the check issued to Howard ($11,494.80) in the trust account. Even with that loan, however, respondent failed to satisfy the workers’ compensation lien for another six months, accomplishing that task in late February 2012. He did not do so sooner, he claimed, because he did not have sufficient funds at the time.

This case presented us with a difficult scenario. On the one hand, respondent seemed forthright, but careless and forgetful. He claimed to have had little reason to use the settlement funds as he did. One may also wonder why, if respondent was so desperate for funds that he was willing to risk his law license, he would not have asked his father for a loan, much sooner than he did. Could it be because he was unaware of his mistake? It should be noted, too, that respondent presented character witnesses and has a stainless disciplinary record of thirty years.

On the other hand, respondent acted in a way that both Waldman and the special master found to be consistent with the actions of other attorneys who have knowingly misappropriated trust funds. In particular, respondent’s actions regarding the handwritten notations on the deposit slip present serious problems...

...the record does not identify the owner of the funds that were allegedly invaded or the extent of the invasion. It does not show how much respondent should have been holding in trust at the time, to whom those funds in the trust account belonged, how much remained after the alleged invasion, and the amount of the alleged invasion.

We, therefore, dismiss the charge that respondent knowingly misappropriated client funds, when he issued the check for Howard’s portion of the settlement proceeds. We also dismiss the charge  funds was intentional in nature. The record does not allow a finding, by clear and convincing evidence, that respondent’s use of the $11,000 lien was anything more than inadvertent, a "crazy mistake, as respondent put it.

Ah, yes. The old "why would he do it?" defense.

Possible answer: it was an easy solution to a financial problem that did not involve charity from his father.

If the record was not sufficient to get to the bottom of this then the public interest demands a remand for further findings. These facts do not lead to absolution.

No disciplinary regime that wishes to instruct its bar and assure the public about the sanctity of entrusted funds would tolerate this result or reprimand on these facts. (Mike Frisch)

October 22, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2014

Legal Malpractice And Intervening Cause

The New Mexico Court of Appeals has reversed a favorable ruling to the defendant in a legal malpractice case

Roland Lucero and his company, R & L Straightline Tile, (collectively, Plaintiff) appeal from a judgment entered in favor of Defendant Richard Sutten following a bench trial on the issue of legal malpractice. The district court found that Defendant negligently failed to apprise Plaintiff of the dangers of providing an unsecured $300,000 loan to a Las Vegas development company. However, the district court applied the doctrine of independent intervening cause, a defense that had not been previously raised in Defendant’s proposed findings prior to trial, and concluded that the real estate market collapse of the mid-to-late 2000s severed the connection between Defendant’s professional negligence and Plaintiff’s damages claimed therefrom. On appeal, Plaintiff argues that the district court erred in applying the doctrine of independent intervening cause to these facts. We agree. We reverse and remand for consideration of damages in light of this Opinion.

The court

The district court should not have dismissed this case but, instead, it should have determined whether Defendant’s negligence was the proximate cause of Plaintiff’s loss and, if applicable, employed a standard comparative fault analysis.

(Mike Frisch)

October 21, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Eli's Coming

A former Eli Lilly attorney was suspended for 90 days by the Indiana Supreme Court for taking confidential materials with him when he left.

 Respondent has been an attorney since 1993 and was admitted as a patent attorney by the United States Patent and Trademark Office in 2000. Respondent was employed by Eli Lilly and Company ("Lilly") from 1999 through 2009. Respondent had a duty to protect Lilly's intellectual property and preserve Lilly's confidences. In 2009, as Respondent prepared to leave his employment with Lilly, he copied documents and forms onto a disk. A Lilly administrative assistant made a copy of the disc and gave both discs to Respondent. The information on the discs ("CD Data") was property of Lilly and was considered by Lilly to be confidential. Respondent took the CD Data from Lilly's premises and retained it, knowing that he was not authorized to possess or control the CD Data after he left Lilly.

 As to sanction

 The parties cite the following fact in aggravation: Respondent was aware that the duty of a patent lawyer is to protect the intellectual property of the client. The parties cite the following facts in mitigation: (1) Respondent has no disciplinary history; (2) Respondent was cooperative with both Lilly and the Commission in their investigations; (3) Respondent had no intent to harm the client; (4) he returned the CD Data to Lilly upon request and did not intend to share it with third parties; (5) Respondent believes that the information regarding Lilly's products on the discs was either already in the public domain or would become public in the near future; (6) Respondent has expressed that the breach of his employment agreement was not intentional, yet he takes full responsibility for and regrets his actions; and (7) Respondent's misconduct resulted in the revocation of a substantial severance payment from Lilly.

(Mike Frisch)

October 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Minor In A Tavern Charge Not Reported On Bar Application

An attorney who had failed to fully disclose his reportable conduct on his bar application and was convicted of a DUI after admission was suspended for six months with all but 120 days stayed and probation for three years by the Indiana Supreme Court.

 Respondent was admitted to practice in Indiana in May 2004. The bar application asked for full disclosure of both criminal convictions and accusations of violations of the law. In 2000, he had been convicted of operating a vehicle with a BAC equivalent between 0.08 and 0.25, a class C misdemeanor. He reported this conviction on his 2003 bar application. He had also been charged in 1996 with Minor in a Tavern, a class C misdemeanor, which was resolved through a pre-trial diversion agreement. Respondent did not report this charge in his initial 2003 application nor in a renewed application.

In 2010, Respondent pled guilty to operating a vehicle while intoxicated ("OWI") endangering a person, a class A misdemeanor, for which he received an agreed public reprimand. See Matter of Massillamany, 946 N.E.2d 581 (Ind. 2011). Based on an incident on or about July 11, 2013, Respondent was charged with OWI with a prior conviction within five years, a class D felony. He self-reported this incident to the Commission on July 17, 2013. He pled guilty on April 9, 2014, and promptly notified the Commission of this conviction.

The probation requires him to abstain from alcohol and "mind altering" drugs. (Mike Frisch)

October 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Coach May Be Sued For Defamation

  The New York Court of Appeals reversed the dismissal of defamation claims against Syracuse basketball coach Jim Boeheim.

Plaintiffs Robert Davis and his step-brother Michael Lang sued defendants Syracuse University and James Boeheim, the University's head basketball coach, for defamation based on statements by Boeheim made in response to Davis and Lang's allegations of sexual molestation by Bernie Fine, Boeheim's longtime friend and the team's associate coach. Plaintiffs claimed that Fine used his position and authority within the University's basketball program to gain access to and control over Davis and Lang for purposes of sexually molesting them.

The Appellate Division had dismissed the case but the court found the comment at issue actioable

could view his statements as supported by undisclosed facts despite these denials.

Here, Boeheim stated that Davis and Lang lied and did so for monetary gain, and that Davis had done so in the past. Boeheim's assertions that Davis previously made the same claims, for the same purpose, communicated that Boeheim was relying on undisclosed facts that would justify Boeheim's statements that Davis and Lang were neither credible nor victims of sexual abuse. That, as defendants argue, Boeheim denied knowledge of facts, or prefaced some statements by saying "I believe", is insufficient to transform his statements into nonactionable pure opinion, because in context, a reasonable reader.

 

The context further suggests to the reader that Boeheim spoke with authority, and that his statements were based on facts. Boeheim was a well respected, exalted member of the University and the Syracuse community-at-large, and as head coach of the team appeared well placed to have information about the charges.

 

Game on. (Mike Frisch)

October 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2014

Mitigation Avoids Disbarment

A three year suspension was imposed by the Louisiana Supreme Court on a lawyer on these findings

The record in this consolidated matter supports the hearing committees’ factual findings, as modified by the disciplinary board. Respondent neglected a legal matter, failed to communicate with a client, charged an unreasonable fee, failed to refund unearned fees, converted client funds, made false statements to the ODC, shared legal fees with a nonlawyer, facilitated the unauthorized practice of law by a nonlawyer, shared fees with a corporation not licensed to practice law, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. This conduct violated the Rules of Professional Conduct as found by the disciplinary board.

There was mitigation

The board also found that respondent suffered from various illnesses during the time of her misconduct, that she worked primarily as a solo practitioner since 2001 without the benefit of professional mentoring relationships, and that she devoted a substantial portion of her practice to representations in the public interest in under-served areas of the community.

The court this found that a lesser than than disbarment was appropriate. (Mike Frisch)

October 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, October 18, 2014

In And Out

The Louisiana Supreme Court decided a number of bar admission matters last week.

The court granted admission to an applicant who had a prior history as a civilian and in the military.

The Committee on Bar Admissions ("Committee") opposed petitioner’s application to sit for the Louisiana Bar Examination based on character and fitness concerns relating to his prior criminal history and his military disciplinary history. In addition, the Committee cited a finding by the Texas Board of Bar Examiners that petitioner had failed to fully and accurately disclose his criminal and military disciplinary history on his law school application and on his bar application in Texas. We subsequently granted petitioner permission to sit for the bar exam, with the condition that upon his successful completion of the exam, he apply to the court for the appointment of a commissioner to take character and fitness evidence.

There was a dissent from Justice Clark

I voted to deny petitioner’s request to sit for the bar exam, I voted to deny petitioner’s application for the appointment of a commissioner, and, for the same reasons, I would deny admission.

Petitioner has a record of both civilian criminal conduct and military criminal conduct. Further, and perhaps more seriously, petitioner shown a pattern of dishonesty by failing to report his complete criminal history and/or his employment history on his law school admission, his application for admission to the Texas Bar, and his application for admission to the Louisiana Bar.

A license to practice law in Louisiana is a privilege, not a right, and petitioner has shown by his illegal and dishonest conduct that he is not entitled to that privilege. By admitting petitioner to the Louisiana Bar, the Court is lowering the standards demanded of members of the Bar.

Justice Clark also dissented from an order admitting another applicant who was not forthcoming with his law school and the bar concerning his criminal history

Petitioner has a record of criminal conduct, and perhaps more seriously, petitioner has shown a pattern of dishonesty by failing to report his complete criminal history on his law school admission and on his application for admission to the Louisiana Bar.

This applicant was denied admission.

These issues included petitioner’s involvement in a hit and run accident in which alcohol was allegedly a factor, a pattern of financial irresponsibility on the part of petitioner, and a lack of candor by petitioner in connection with his application for admission to the Louisiana Bar.

The applicant must wait two years to reapply. (Mike Frisch)

October 18, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, October 17, 2014

Credible Self-Regulation

Any credible disciplinary system requires that a complained-about attorney provide substantive and meaningful cooperation with the bar investigation.

Failure to cooperate is treated as conduct prejudicial to the administration of justice.

New York provides real teeth to the duty to cooperate, as demonstrated by a recent interim suspension ordered by the Appellate Division for the First Judicial Department.

The circumstances

Respondent's client filed a complaint with the Committee, alleging that respondent neglected her landlord-tenant case. The client further alleged that, after she paid respondent $1,000 to work on a bankruptcy case, respondent informed her that he could not handle the case because he was not a bankruptcy lawyer. She requested a refund of the $1,000, but respondent never returned the funds.

After the Committee initially contacted respondent, respondent submitted an answer generally denying his client's allegations. The Committee then requested respondent provide a chronology of the work he performed on behalf of the client along with any documents in support. When no response was received, the Committee made numerous attempts to contact respondent, including serving a subpoena requiring respondent's appearance for a deposition. Respondent failed to appear, and did not contact the Committee.

The law

Pursuant to 22 NYCRR 603.4(e)(1)(i), this Court may temporarily suspend from the practice of law an attorney who is the subject of an investigation by the Committee, pending consideration of charges, upon a finding that the respondent is guilty of professional misconduct that immediately threatens the public interest. Such a finding may be made based upon the attorney's failure "to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation. . . ."

Although respondent submitted an answer to the complaint, he has not cooperated with the Committee in its ongoing investigation, and failed to appear for a deposition as ordered by a judicial subpoena. In addition, he has defaulted on this motion. Such conduct demonstrates a willful noncompliance with the Committee's investigation and warrants his immediate suspension.

I'd simply note that the District of Columbia Board on Professional Responsibility has opined that a general denial of allegations is a sufficient response. Further, D.C. Bar Counsel does not have the authority to depose an accused attorney.

Illinois gives discovery and deposition authority to its disciplinary counsel.

The Administrator, the Inquiry Board and the Hearing Board are empowered to take evidence of respondents, petitioners and any other attorneys or persons who may have knowledge of the pertinent facts concerning any matter which is the subject of an investigation or hearing.

The deposition is an invaluable tool to establish the facts both undisputed and at issue. Disagreements come into focus, charges can be brought with particularity and the entire process is streamlined as a result.

God forbid D.C. would ever grant such authority to its Bar Counsel.

Just a couple of things to add to the list of deficiencies in a system that no one seems remotely interested in correcting or improving. (Mike Frisch)

October 17, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Thursday, October 16, 2014

Computergate Conviction Leads To Consent Disbarment

The Pennsylvania Supreme Court has accepted the consent disbarment of an attorney convicted in the so-called Computergate matter.

Matt Miller of pennlive reported on the conviction and appeal in September 2013

The state Superior Court refused on Wednesday to overturn the criminal convictions and 4- to 12-year prison sentence of former state Rep. Brett O. Feese in the so-called Computergate scandal.

In a 53-page ruling, a court majority rejected Feese's claims that prosecutors from the state Attorney General's Office committed misconduct and prejudiced his case by destroying raw notes of witness interviews and that they had failed to prove that he had broken the law.

The 59-year-old Feese, who was also the former director of the House Republican Campaign Committee and chief counsel for the House Republican Caucus, was one of only two of nine Computergate defendants to go to trial in Dauphin County Court. The others entered guilty pleas.

Feese was convicted of 40 charges, including theft, obstruction of the administration of law and conspiracy, after a 23-day trial in October 2011. Besides his prison term, he was ordered to pay $1 million in restitution and a $25,000 fine.

Feese, who once represented Lycoming County, and the other Computergate defendants were charged with using state-paid computer resources and employees to abet GOP political campaigns from 2000 to 2007.

Other Republicans who pleaded guilty to Computergate charges included former House Speaker John Perzel, who received a 2 1/2 to 5-year prison term and the same restitution order as Feese.

In denying Feese's appeal, the Superior Court found "too speculative" his accusations that prosecutors had acted in bad faith and skewed the outcome of the case by destroying the raw witness interview notes.

Prosecutors denied the allegations, saying the notes were destroyed under a long-standing policy of the attorney general's office and that the witness statements from those notes were transcribed in reports to which Feese's lawyer, Joshua Lock, had access.

Feese's argument about the note destruction did gain some traction with Superior Court Senior Judge James J. Fitzgerald III. In a dissenting opinion, Fitzgerald concluded that a hearing should have been held regarding the allegation that prosecutors had violated their own guidelines for destroying notes.

Lock is making the same arguments regarding the note destruction in a federal lawsuit he is pursuing on Feese's behalf against the Computergate prosecutors and Gov. Tom Corbett.

Meanwhile, Feese is serving his sentence in the state prison at Waymart.

(Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Long Shot, Not Slap Shot

Reuters has this report on a candidate for the Washington State Supreme Court

 A disbarred lawyer and former driver of an ice-smoothing machine at Seattle hockey games is waging a long-shot bid for the Washington state Supreme Court, targeting the seat of a justice who stripped him of his license.

John "Zamboni" Scannell, whose nickname will appear on November's ballot, was disbarred in 2010 after the state Supreme Court ruled he obstructed a multi-year Washington State Bar Association investigation into alleged violations.

The violations included aiding a lawyer with a suspended license who performed legal work using Scannell's name, in preparation for a lawsuit in Virginia.

In upholding the disbarment, Justice Debra Stephens, who now faces Scannell in her re-election bid, wrote in the opinion that Scannell's obstruction "poses a serious threat to lawyer self-regulation."

"He continues to assert that his conduct is upright and characterizes the entire disciplinary process as 'fascist'," the opinion said.

Scannell would likely be unable to serve if elected because justices are required under the state's constitution to be admitted to practice law.

David Ammons, spokesman for the Secretary of State, said it does not check whether a person has been disbarred before letting a potential candidate enter the statewide Supreme Court race in Washington state.

"When people file, we don't investigate their background or do anything other than make sure they are a registered voter in Washington," Ammons said.

Should Scannell win the election, the state's Supreme Court would decide whether or not he is allowed to take the oath of office and be seated, Katie Blinn, director of legislative policy for the Secretary of State, said. If he is ineligible,Governor Jay Inslee would appoint a new justice.

Justice Stephens, a Spokane native appointed to the court effective Jan. 1, 2008, according to a profile on the court's website, did not immediately respond a request for comment, nor did Scannell.

The long-bearded, ponytail-wearing former lawyer was for years a Zamboni driver at Seattle-area hockey games, local media have said.

"If elected, I will serve," Scannell told The Stranger, a local weekly newspaper.

(Mike Frisch)

October 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Password Unprotected

The New York Appellate Division for the First Judicial Department has imposed a reciprocal  public censure of an attorney sanctioned in federal court.

The misconduct

the Southern District publicly censured respondent for permitting a nonattorney to use his username and/or password to electronically file involuntary bankruptcy petitions in violation of New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 5.5(b) (aiding a nonlawyer in the unauthorized practice of law) and rule 8.4(d) (conduct prejudicial to the administration of justice).

In the original matter

In his response to the order to show cause, respondent explained that the filings at issue were made on behalf of the creditors, Goldsmith and Minko, by Benjamin Herbst, a nonattorney and Executive Director of the Council for Community Preservation, Inc. (CCPI), a community organization which had an affiliation with a paralegal training program. In providing legal services to the community, respondent had previously used Herbst and paralegal students in preparing legal documents. Respondent had permitted Herbst to use his ECF username and password when filing bankruptcy cases in which respondent was retained as counsel. However, in the case of the Lipschitz filings, for which respondent was not retained as the attorney, Herbst used respondent's ECF password without informing him that he was doing so, and without his permission.

Respondent subsequently discovered that Herbst and his paralegal students had used his ECF password on other occasions without his knowledge or consent. Respondent emphasized that: he terminated his relationship with Herbst and CCPI; he no longer accepts referrals from them; and he was extricating himself from representing clients referred to him through CCPI.

On April 3, 2012, the bankruptcy court held the sanction hearing at which respondent and Herbst appeared. Herbst, who corroborated respondent's version of events, explained that he had been under the misapprehension that it was permissible for CCPI to file pro se bankruptcy petitions through respondent's ECF account. It appears that Herbst may have filed the involuntary petitions to assist Lipschitz, the debtor. As a result of the bankruptcy filings, an eviction proceeding commenced against Lipschitz by his landlord was automatically stayed. Notably, the landlord testified before the bankruptcy court that Herbst had appeared before the housing court and claimed to be respondent.

During the hearing, respondent acknowledged that he failed to properly monitor the use of his ECF password, but emphasized that he did not directly participate in filing the petitions at issue. Respondent further acknowledged that he had previously represented the debtor, Lipschitz, in a landlord-tenant proceeding, and that the proceedings before the bankruptcy court presented a conflict of interest. Respondent emphasized, however, that he had become unknowingly involved in the conflict. As to his failure to appear at the prior hearings, respondent explained, inter alia, that he "may have" received the court's prior orders to show cause, but he was not sure because for a period of time, the court had been using an incorrect address to contact him. Nonetheless, respondent acknowledged that he may have had one or two conversations with the judge's law clerks in regards to the orders. In addition, respondent emphasized that he had acted under the incorrect belief that, as he was not the attorney for the petitioning creditor, he was not obligated to appear.

There were mitigating factors involving health issues of the attorney's spouse. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Misdemeanor

The Florida Supreme Court has reprimanded a circuit court judge for issues relating to her on-bench demeanor and testimony on behalf of her arrested sister.

As to demeanor

From a review of the audio recordings of those cases, it is apparent that Judge Kautz was frustrated by the use of the court system by some as a solution to the many prob[l]ems inherent in those cases. It is clear that Judge Kautz was intending to engender a more self-reliant spirit in those appearing in court. However in doing so, she at times demeaned those who appeared seeking injunctions or family members seeking assistance from the Court.

For her sister

Judge Kautz appeared at a First Appearance hearing before Judge Ritterhoff Williams, on behalf of her sister, Rhonda Kautz. At that hearing Judge Kautz first vouched for her as a character witness. She also argued on her sister’s behalf about the circumstances surrounding the allegations contained in the probable cause affidavit. Finally she requested that the Judge order law enforcement to assist her sister by accompanying her to the house to retrieve personal items.

She did not identify herself as a judge in her testimony and now concedes that the appearence violated judicial canons.

On sanction

Judge Kautz has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. Judge Kautz now recognizes that this understanding was incorrect and has undertaken steps to prevent their reoccurrence.

The Judicial Qualifications Commission has concluded that while the judge’s conduct was misguided, it was not ill intentioned. Accordingly, the Commission therefore finds and recommends that in the interests of justice, the public welfare and sound [judicial] administration will be well served by a public reprimand of Judge Kautz.

(Mike Frisch)

October 16, 2014 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

The Second Time Around

An attorney who was disbarred in 1986 and reinstated in 1994 has again been disbarred by the Pennsylvania Supreme Court.

The attorney was convicted of wire fraud as a result of a scheme to use entrusted funds for personal expenses.

The first disbarment involved conversion of funds held in connection with a real estate transaction.

His direct appeal and subsequent collateral attack on the conviction did not succeed. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Writ Denied In Clash Between West Virginia Attorney General And Disciplinary Counsel

The West Virginia Supreme Court of Appeals has denied a writ sought by the state Attorney General against the Office of Disciplinary Counsel.

This matter was brought under the original jurisdiction of this Court by Patrick Morrisey, Attorney General of West Virginia. The Attorney General seeks a writ of prohibition against the Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board (collectively "ODC") to prevent ODC from enforcing an informal advisory opinion that it issued.  The informal advisory opinion determined that the Attorney General did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted by W. Va. Code § 5-3-2 (1987) (Repl. Vol. 2013). The ODC also indicated in the informal advisory opinion that Rule 8.4(d) of the Rules of Professional Conduct would be violated if the Attorney General prosecuted criminal cases outside the scope of that which was provided by statute. The ODC further also concluded that Rule 1.7(b) of those rules could potentially be violated.

The court

we have determined that the Attorney General lacked standing to have this Court determine the enforceability of an informal advisory opinion issued by ODC. We also have determined that this Court could not address the merits of the informal advisory opinion because to do so would result in this Court issuing an advisory opinion. As a result of a collateral issue being raised in this proceeding, regarding the authority of the Attorney General to prosecute criminal offenses, we took the extraordinary measure of addressing this issue in this opinion because of its widespread implication to our criminal justice system. In this regard, we have determined that county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney General as a special prosecutor. We further conclude that under West Virginia Constitution article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal prosecutorial authority of the Attorney General was abolished. After resolving the collateral issue raised in this opinion, the writ of prohibition prayed for is denied.

The issue arose upon the Attorney General's inquiry into whether a member of the office must resign in order to serve as Mingo County prosecutor.

Justice Benjamin concurred and dissented, reserving the right to file an opinion. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Relationship Led To Reprimand

The New Jersey Supreme Court has reprimanded an attorney who engaged in a consensual sexual relationship with a client  in domestic abuse and divorce matters.

The client had initially been sent to him for pro bono representation by the New Jersey Battered Women's Shelter in charges of domestic violence made by and against the client.

He was then retained and paid for the divorce.

He expressed romantic feelings toward the client after researching ethics rules and concluding that she was not "vulnerable," thus all was smooth sailing. The client testified that she felt pressured to respond to his overture due to her dire financial situation and that she viewed the attorney as an "authority figure" .

They lived together for a time and planned to buy a house.

The attorney continued to represent the client after the romantic relationship had ended. He engaged in an ex parte communication with the judge about terminating the representation after the client threatened a bar complaint.

The Disciplinary Review Board

One of the essential factors in this case is that, although the relationship was consensual, as in Warren, [the client]...was an assigned client, when the representation began. She and respondent were not on an equal playing field and, therefore...the client was not in a position to freely consent to the relationship. Moreover, it was because of their relationship that respondent was representing her at a reduced (or no) fee. [The client] had limited financial resources. As seen from her communications with [associate attorney] Vallejo, she was concerned about whether she was being charged for the representation, if respondent was not handling her case. Clearly, their financial arrangement, which came about because of their personal relationship, was of great importance to [the client].

In addition, respondent became sexually involved with [the client], knowing that she had fled an abusive relationship. He had to know that she was emotionally vulnerable to his advances. It was respondent who professed his feelings for her, a confession that left her utterly surprised and confused.

There was a dissent that would not find the conflict and would dismiss the the ex parte communication as de minimis

This case concerns a love affair gone bad, but apparently a true love affair, in which both parties expressed deep feelings for each other. There is no dispute that all the conduct at issue between the respondent and his female client...was purely consensual and began a considerable time after they first met...

within a few weeks of their moving in together, [the client] suddenly and unpredictably had a change of heart, moved out, and accused respondent of "initiating an inappropriate relationship" with her, while at the same time telling him, "all I ever did was love you." That same email, sent on March 8, 2009, demanded that respondent refund her retainer, claiming he had promised to represent her for nothing, and told him to communicate with her only in writing or by voice mail, while at the same time demanding that he continue to represent her and suggesting that, if he did not represent her for nothing, she would file an ethics complaint against him.

The record shows that respondent was emotionally devastated by this sudden turn of events. He also correctly realized that, under these emotionally charged circumstances and with her threatening to file ethics charges, he could not continue the representation. Indeed, she did file an ethics grievance against him two days later, on March i0, 2009.

 The DRB found both violations and recommended a censure.

The DRB notes that the client engaged in and complained about a sexual relationship with her next attorney.

Respondent’s counsel referred to [the client] as a "predator," pointed to her "pattern of conduct," and elicited testimony that her marriage to [her then-husband] Nonio had lasted only two-and-a-half months. None of this has any bearing on the allegations against respondent.

The next attorney was reprimanded.

The client also sued the attorney for malpractice. (Mike Frisch)

October 16, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Still A Candidate

An Idaho attorney has been sanctioned for ethics violations in two matters. He was given credit for time served on interim suspension.

The web page of the Idaho State Bar notes

The  Disciplinary Order further provides that Bar Counsel agrees not to file any  formal charges relating to four other pending disciplinary investigations until  a pending federal criminal case against Mr. Bujak is completed at the trial  level, either by trial or entry of a plea to any criminal charge in that  case.  Mr. Bujak agrees that if he is  convicted of any criminal charge in the federal criminal case, he will resign  his license to practice law in Idaho in lieu of disciplinary proceedings, which  will encompass the four other pending disciplinary investigations.  If that occurs, Mr. Bujak will receive credit  for the remaining time he served on interim suspension. 

Some information from the Idaho Press Tribune

Former Canyon County Prosecuting Attorney John Bujak violated four rules of the Idaho State Bar's Rules of Professional Conduct between 2004 and 2011, the Idaho Supreme Court ruled in a disciplinary order filed Sept. 24.

Idaho's highest court further ruled that a one-year suspension of Bujak's law license is an appropriate sanction for these violations, but since he underwent a 19-month interim suspension when the complaint was filed three years ago, the terms of the penalty are already satisfied.

That means Bujak still has seven months of suspension banked, and Idaho State Bar counsel Brad Andrews said there are additional matters still under investigation.

“It's kind of an anomaly of how suspensions work,” Andrews said.

Bujak described it as “last chapter” of the story that began when he was charged with grand theft by unauthorized control in 3rd District Court. He agreed to give up his law license pending the resolution of that case, he said, and got it back after his acquittal.

The Idaho State Bar's investigation and subsequent review by the Idaho Supreme Court took a bit longer to resolve, he said.

“It's been sitting at the Supreme Court since March, presumably under review — I don't know what took them so long review it — but this is (its) final decision accepting the stipulation between bar counsel and me,” Bujak said. “It doesn't affect my ability to practice law. It's just the case finally winding through the other leg of the process.”

The Idaho Supreme Court's disciplinary order, filed with the Idaho State Bar on Sept. 24, ruled that Bujak violated ethical rules involving communication, safekeeping of property, conduct prejudicial to the amendment of justice and conflict of interest involving current clients.

The original 14-page complaint was filed against Bujak in October 2011, alleging that he'd failed to properly deposit checks intended for a client's estate in 2008.

A second count alleged that Bujak convinced an elderly client to name himself and his assistant as beneficiaries to the client's will. Another attorney, hired by the same elderly woman in 2011, voided the will. In her affidavit, the woman stated that Bujak convinced her that he and his assistant should be listed as beneficiaries for her protection, but that could be changed later.

Bujak was found not guilty of the associated criminal charges in January 2013.

Bujak is the Libertarian candidate for governor in the Nov. 4 general election.

(Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Niagara Fails

A justice of the Niagara Falls City Court has been admonished by New York Commission on Judicial Conduct for mistreatment of a pro se litigant

Respondent asked Mr. Santana some basic informational questions about, inter alia, his employment, falnily and birthplace. Mr. Santana gave the name of his employer, but then said something in Spanish and indicated he could not understand respondent's inquiry regarding the nature of his work. When respondent asked, "Where were you born?" Mr. Santana asked, "Como est' Ms. Vasquez said, "Pardon me?" Respondent repeated the question, and Ms. Vasquez answered, "Puerto Rico." Mr. Santana then stated, "Puerto Rico, yeah."

Respondent thereupon stated: Okay. Go ahead, Mr. Koryl. I think he understands English. The last time I heard, I think Puerto Rico was bilingual.

Respondent did not inform Mr. Santana and Ms. Vasquez that no interpreter would be appointed and that the proceeding would not be adjourned.

 From the news release of the commission

 In 2013, Judge Merino presided over a summary eviction proceeding involving a Spanish-speaking native of Puerto Rico, who had limited proficiency in English. At the outset of the proceeding the judge stated that he would adjourn the proceeding so that an interpreter could be provided. However, after asking the tenant some basic questions, to which the tenant had trouble responding, the judge decided to move forward without an interpreter and ultimately issued a warrant of eviction.

The judge agreed to the sanction. (Mike Frisch)

October 15, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Money Gone Missing

The Knoxville News Sentinel has this report on a recent disbarment in Tennesee

A veteran East Tennessee lawyer has been disbarred after more than $183,000 in clients' money went missing.

The Tennessee Supreme Court last week stripped Carl Robert Ogle Jr. of his license to practice law. The move came after a state Board of Professional Responsibility probe by board investigator Eileen Burkhalter Smith and a disciplinary petition by board attorney Alan Johnson.

Ogle has practiced law in Sevier and Jefferson Counties for nearly four decades.

The News Sentinel requested and received Tuesday the board's disciplinary file on Ogle. It shows Ogle blamed the missing money on his wife's gambling addiction but, at the same time, sought to protect her from prosecution.

His woes began in August 2013 when he told a judge in Jefferson County all monies owed the estate had been paid to the beneficiaries, Susie White and Garrett Tweed. Part of the estate included a lawsuit settlement check for more than $161,000.

In October 2013, Ogle told White the money from that check was gone from his client trust account and that his wife, who served as his bookkeeper, had "gambled the money away," records show.

Two months later, Ogle wrote to the board, which polices attorneys, after White's new attorney filed a complaint. Ogle said he learned in January 2013 monies were missing from three bank accounts, including the client trust account. While he stopped short of saying his wife stole the money, Ogle wrote his wife "began to search for treatment options for gambling addiction."

He denied telling White his wife took the money, and he never mentioned in that letter that two other clients' money also was missing.

Investigator Smith then asked Ogle to supply her with his banking records and "let me know whether you filed a police report about your knowledge of the theft of client funds."

A month later, he disclosed in a second letter two more thieveries he had not reported to the board.

Ogle admitted in that second letter he knew more than $3,600 awarded to client Thomas Martin also had gone missing. He paid that back in April 2013, the BPR file showed. He conceded he tried to fend off client Daniel Mays — owed more than $8,500 — by promising to repay him once another client who owed Ogle money sold "a piece of property." That never happened.

The order is linked here. (Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)