Monday, January 9, 2017

Attorney Admonished For Failure To Explore, Advise On Battered Woman Syndrome

District of Columbia Disciplinary Counsel has informally admonished an attorney for deficiencies in the representation of a criminal client

In 2014, you were defense counsel for a client who faced serious criminal charges in the United States District Court for the District of Columbia. After she was convicted, her successor attorney moved to vacate the conviction based upon your alleged ineffective assistance of counsel. The District Court found that you "abrogated" your professional responsibilities but that there was no prejudice to the client. The U.S. Court of Appeals found prejudice and remanded the case for a determination as to whether your assistance was constitutionally deficient. After remand, the government dismissed the entire case.

You testified in the District Court hearing that you considered hiring an expert on the issue of battered woman syndrome and its connection to a duress defense. However, you testified that your client did not wish to pay for one and you believed that she would not be eligible for CJA funds to cover the cost. You did not request CJA funds to cover this cost and you did not advise your client of this option. It also appears that you did not adequately discuss with your client the pros and cons of going forward without an expert.

We find that you violated Rules 1.l(a) and l.l(b) and l.4(b). Rule l.l(a) states that, "a lawyer shall provide competent representation to a client." Rule 1.1 (b) states that, "a lawyer shall serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters." By failing to explore the availability of CJA funds to cover the cost of an expert, you violated these two Rules. Rule 1.4(b) states that "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." You did not discuss with your client the difficulty of presenting a duress defense without the support of an expert to explain your client's actions and state of mind at the time of the criminal conduct. Therefore, your client made a decision about providing funds for an expert and the use of an expert without sufficient legal guidance from you.

The case is In re Iweanoge and can be found at this link. (Mike Frisch)

January 9, 2017 in Bar Discipline & Process | Permalink | Comments (0)

High Noon

An attorney admitted in December 2014 faces interim suspension based on these allegations by the Lorain County Bar Association

As will be more fully explored below, on June 20, 2016 Relator opened an investigation into the facts and circumstances underlying an alcohol—related traffic accident in which Respondent was involved with a. fellow attorney wherein the parties provided false statements to law enforcement officers in an attempt to impair and impede an official investigation.

In addition, Relator initiated a corollary investigation into Respondent’s criminal background which revealed that Respondent has a history of several other alcohol-related convictions which preceded her admission to the Bar and indicate a pattern of substance abuse issues.

On August 3, 2016 Relator filed a formal complaint against Respondent with the Board of Professional Conduct of the Supreme Court of Ohio alleging that Respondent engaged in professional misconduct as a result of her involvement in an alcohol—related traffic accident on June 9, 2016 in Elyria, Ohio wherein she gave a false police report to law enforcement officers in an effort to avoid an OVI arrest.

...it is Respondent’s history of alcohol-related offenses and dishonesty; her recent encounter with law enforcement, and her escalation into the abuse of heroin that is most prejudicial to the administration of justice and reflects adversely on her continued ability and fitness to practice law in the State of Ohio.

Accordingly, due to Respondent’s continued misconduct while disciplinary proceedings are pending against her and Relator’s serious concerns regarding Respondent’s abuse of alcohol and drugs, Relator respectfully submits that Respondent poses the potential for a substantial threat of serious harm to herself, her clients and the public and currently is or may be unfit to practice law.

Details

The gravamen of Relator’s Complaint is that on June 9, 2016 Respondent was involved in an alcohol—related traffic accident in Elyria, Ohio with a fellow attorney, Kenneth Lewis, wherein the parties gave false statements to law enforcement officers in an attempt to avoid a potential accident. Respondent and Lewis advised officers that neither attorney had driven the vehicle at issue, when, in fact, Respondent herself had driven the vehicle and caused the accident while she was intoxicated.

Specifically, Respondent affirmatively represented to an Elyria, Ohio police officer that she never drove the vehicle involved in the accident at issue after it was parked at a local bar. Respondent’s representations proved to be dishonest and deceitful, however, after officers viewed a video-recording from the bar that revealed that Respondent had indeed driven the vehicle away from the establishment while significantly impaired.

As a result of the incident, on November 10, 2016 Respondent was convicted of Obstruction of Official Business and an amended charge of Physical Control in the Elyria Municipal Court.

The attorney is ordered to respond by noon tomorrow. (Mike Frisch)

January 9, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Saturday, January 7, 2017

Between Scylla And Charybdis

The United States District Court for the District of Maryland Southern Division (Judge Paul Grimm) disqualified an attorney and his firm for both a former client conflict and a material limitation in the representation of the current client.

Attorney Jonathan Rose represented CytImmune with respect to employee non-compete agreements and other matters while at Katten Muchin. Now at Alston & Bird, he undertook to represent a former employee in litigation adverse CytImmune.

In March 2016, CytImmune filed its complaint against Dr. Paciotti in the Circuit Court for Montgomery County. Dr. Paciotti’s out-of-state attorney retained Rose as local counsel to handle the case. Shortly thereafter, CytImmune notified Rose of its belief that he had a conflict of interest in the case. Rose consulted his firm’s general counsel, who concluded that no conflict existed. 

Dr. Paciotti then removed the case to this Court, Notice of Removal, where CytImmune filed the instant Motion to Disqualify. (record cites deleted)

The court

I am left with the impression that Rose’s inability to recall the precise details of his prior work for CytImmune placed him squarely between the Scylla of MLRPC 1.9 and the Charybdis of MLRPC 1.7. And if Odysseus could not navigate such treacherous waters, then, respectfully, neither can Rose. And the Rules forbid any such attempt. In light of the apparent constraints that I have observed Defense counsel struggle with, I am persuaded that Rose cannot continue to represent Dr. Paciotti without a significant risk of a materially limited defense. Accordingly, I find that Rose has a conflict of interest in representing Dr. Paciotti. Additionally, MLRPC 1.10(a) imputes Rose’s conflict to all of the attorneys at Alston. Waiver of the conflict is possible, but only with the informed consent of “each affected client.” MLRPC 1.7(b); see also MLPRC 1.10(d) (allowing waiver of imputed conflicts according to the requirements enumerated at MLRPC 1.7(b)). CytImmune has made clear that it will not consent to Rose’s representation of Dr. Paciotti. Pl.’s Mem. Supp. Mot. Disqualify 17. Accordingly, both Rose and Alston are disqualified from representing Dr. Paciotti in the remainder of this litigation.

The court did not reach the Rule 3.7 (lawyer as witness) issue

Given the significant divergence between Rose’s recollection of the legal advice he provided concerning CytImmune’s NDA and Marder’s, I cannot discount the possibility that Rose will be called as a fact witness should the case proceed to trial. The Defense does not appear to disagree but argues that Rose need not be disqualified at this juncture because the conflict contemplated by the Rule is only triggered “at trial,” which has not yet been scheduled. Def.’s Opp’n Mot. Disqualify 18–20. The Defense cites no case law in support of its position. In any event, because I find Rose disqualified under MLRPC 1.7, I do not find it necessary to resolve the issue.

Bottom line

MLRPC 1.7 exists for the very purpose of ensuring that a litigant’s claims or defenses are not refracted through the multifaceted prism of an attorney’s conflicts. Dr. Paciotti is entitled to a lawyer whose ability to develop a theory of the case is unencumbered by his own uncertainty concerning his representation of a former client. I am persuaded based on how this case has evolved that Rose and the other lawyers at Alston are unable to provide such unfettered counsel.

CytImmune’s Motion to Disqualify is GRANTED.

(Mike Frisch)

January 7, 2017 in Clients | Permalink | Comments (0)

Friday, January 6, 2017

Google Minus: Attorney's Response To Unfavorable Posts Draws Suspension

A suspension for six months plus proof of fitness was ordered by a Colorado Hearing Board

In 2014, Respondent discovered two reviews of his legal services posted on Google+ (“Google Plus”) by two of his former clients.  The reviews were negative and disparaged his work as an attorney. Respondent posted responses to each of the reviews on Google Plus.

One review, posted by T.S., mentions fees paid to Respondent and claims that Respondent did not adequately represent him. The one-paragraph review opines that Respondent is the “worst attorney” in Denver, that he did not call the district attorney or present T.S.’s “side” to the prosecution, that Respondent took $3,500.00 and “did nothing,” that Respondent lost his temper and called T.S.’s wife names, and that Respondent should be forced to terminate his law practice.

Respondent responded to that review and addressed specific facts about that representation. He wrote:

[T.S.] actually retained me twice, on the same case, in which he was charged with felony theft. He had been referred, to me, by a colleague, who is a former judge, deputy district attorney, mediator and private practitioner. After terminating my services, the first time, because I was unable to force the prosecutor to do his bidding, he came to realize that no lawyer has a magic wand, and rehired me on the case. As he had, before my first withdrawal, [T.S.] became nothing but abusive, demanding, insulting and offensive, and I decided to terminate my representation, as the result of his conduct. In order to earn my $3,500.00 disposition fee, I telephoned the district attorney, on numerous occasions but, as is common, among many prosecutors, the deputies never actually answered my call, and almost never returned it. It was necessary to travel outside the Denver metropolitan area, multiple times, for hearings and other court proceedings. I litigated the motion that [T.S.] insisted that I file, i.e. to dismiss, for destruction of evidence, and prosecutorial misconduct. He was not even able to substantiate the alleged facts that he presented to me, in my struggle to prevail, upon the motion. As with all ethical lawyers, it is inherently inimical, to me, to engage in conduct so base as calling either my clients, or their spouses, “names.” As for the practice of losing one’s temper, I commend the reader to [T.S.’s] own “review,” which constitutes nothing but defamation.

A second review was ostensibly posted by a person with the first initial “D.,” who claimed to be Respondent’s former client. That review, also just one paragraph in length, called Respondent one of the “worst attorneys” and asserted that he was late and unprepared for hearings, that he walked out of court before a hearing was over, and that he never used evidence given to him. The review does not state the type of matter in which Respondent was representing D., nor does it mention the fees paid to him.

Respondent responded to this review and addressed specific facts about D.’s representation:

I never appeared late, for any court appearance, on behalf of [D.], and was always fully prepared, to conduct the business at hand. Logic and common sense dictate that, if I were to attempt to leave a hearing before the court had concluded it, the judge would, as it were, “have my head.” No such thing occurred. Likewise, it is nonsensical that a lawyer would refuse to use relevant evidence helpful to his client, especially if it is “handed to him.” [D.] cannot corroborate anything that she claims, because it did not happen. For all of the many hours that I spent, in vigorous defense of her, against felony assault, felony eluding of police, and driving under the influence of alcohol, [D.] paid me, with a $4,000.00 insufficient-funds check. She then committed two criminal offenses, by fabricating “affidavits,” which were, purportedly, executed by former (and current) relatives, forging their signatures to them, then “notarizing” the forged signatures, when she was no longer commissioned, as a notary public. [D.’s] dishonest, fraudulent and criminal conduct speak for themselves.

The T.S. representation

In 2013, T.S., an itinerant preacher hired by churches in Colorado and other states to deliver sermons, retained Respondent to help him in a criminal matter. The representation ended by the middle of that year, however. T.S. was dissatisfied and posted his negative review on Avvo.com. He also created his own website, www.lanceisaac.com, to air his grievances. T.S. testified that he put up his website and posted the review to “protect the citizens of Denver” and to “warn the community about [Respondent’s] behavior” because, in his estimation, Respondent is “not fit to be a lawyer.” T.S.’s review also appeared on other websites, like Google Plus, ripoffreport.com, and complaintsboard.com; T.S. said that he imagined—though he conceded he did not know for sure—that someone had replicated his review verbatim and transferred it to those other sites.

In the disciplinary hearing the attorney explained his response to the bad reviews

As regards his former clients, he remarked, “the universe brings these people to me. This isn’t my first rodeo when it comes to sociopaths and psychopaths. I’ve represented several of them in my career.” Concerning the People, he expressed outrage that they had initiated the investigation after going onto the web and finding his posts. He ruminated that it was “not just unseemly” that the People had done so, but in fact “very reminiscent of Stalinist Russia, it’s reminiscent of Nazi Germany. It’s where we go out looking: where can we find a Jew? where can we find a homosexual? where can we find somebody to do something to?” He also complained that “as a result of what has happened on the internet my business has plummeted.” “Once people start putting this kind of stuff out there about you it can end the whole game, and that’s basically what’s happened to me,” he said.

A key aggravating factor was the attorney's refusal to acknowledge the misconduct as well as extensive prior discipline. 

Lawyers’ disclosure of client confidences erodes the trust that undergirds the lawyer client relationship. That Respondent even now fails to recognize this basic truth is disquieting, and leads us to impose a sanction that provides some reassurance that, before practicing law again, he appreciates that such misconduct is inimical to a lawyer’s role of loyal advocate and defender. We therefore suspend Respondent for six months, with the requirement that he petition for reinstatement under C.R.C.P. 251.29(c) before resuming the practice of law.

(Mike Frisch)

January 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Practice Pointer: Don't Leave Your Briefcase In The Courtroom (If There Are Drugs Inside)

The Colorado Presiding Disciplinary Judge disbarred an attorney for misconduct in several matters

Throughout 2015, Respondent agreed to represent six clients, but he abandoned them all. In three of those cases, Respondent knowingly converted client funds and has failed to refund at least $7,000.00 in unearned fees. Respondent appeared in court with methamphetamine, and officers later discovered more methamphetamine at Respondent’s house. Despite circumstantial evidence that Respondent was experiencing a difficult family situation, this Court cannot extend credit in mitigation because Respondent has failed to participate in this disciplinary matter. Respondent has spurned his obligations as a lawyer and demonstrated general disrespect of the legal system. He should be disbarred...

Stefani Arndt, an Adams County law clerk, found a briefcase that had been left in Judge Wellings’s courtroom overnight on October 30, 2015. Arndt determined the briefcase owner’s identity by looking through it and finding documents that revealed the case belonged to Respondent. A vial of white powder and a syringe were also in the briefcase; a field test by courthouse deputies identified the powder as methamphetamine. Respondent retrieved the briefcase later that day and confirmed that it was his.  

Relatedly, on November 25, 2015, Aurora police officer David A. Johnson responded to a domestic violence call at Respondent’s residence. Respondent’s husband and partner of ten years, Tyler Smith, told Officer Johnson that he had found methamphetamine and syringes in the home, and that when confronted about this discovery, Respondent assaulted him.   Respondent was not arrested, but officers seized the methamphetamine from the home.  Respondent thereby violated C.R.S. section 18-18-403.5, unlawful possession of a controlled substance, a class-four felony.

The attorney was admitted in 2009. (Mike Frisch)

January 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

One Reprimand Is Enough

A judge who was reprimanded for improper conduct as a judge is not subject to bar discipline for the same conduct, according to a recent opinion of the North Carolina Supreme Court

The State Bar asserts that a judge is still a lawyer after taking office and therefore, must comply with both the Code of Judicial Conduct and the Rules of Professional Conduct as required by section 84-28.6 Therefore, the State Bar contends that the DHC may discipline a sitting judge because “[j]udicial discipline concerns the fitness of a judge to serve as a judge. Attorney discipline concerns the fitness of a lawyer to be a lawyer. The same conduct may implicate both fitness to be a judge and fitness to be a lawyer.” We agree that a judge’s conduct may affect his or her fitness to be a lawyer. In Badgett III the DHC disbarred the defendant once he was removed from judicial office; however, while a judge remains in office, only this Court or the JSC may impose discipline for his or her conduct as a judge.

In the present case defendant was a member of the General Court of Justice when he engaged in the misconduct set forth above. As a result, he was investigated and disciplined by the JSC pursuant to sections 7A-376 and 7A-377. Having accepted the JSC’s public reprimand, defendant remains a sitting member of the General Court of Justice. Based upon the history and language of Article 30 of Chapter 7A of the General Statutes, we conclude that jurisdiction to discipline sitting judges for their conduct while in office rests solely with the JSC and this Court, and not with the DHC.7 Consequently, we hold that the DHC does not have jurisdiction to discipline defendant as a sitting member of the General Court of Justice for his conduct while a member of the General Court of Justice. Accordingly, we reverse the DHC’s denial of defendant’s motion to dismiss the State Bar’s complaint against him and remand this case to the DHC with instructions to dismiss with prejudice the State Bar’s complaint.

The case involved dealings with the Kill Devil Hills police. 

Chief Justice Martin wrote a lengthy concurring opinion. Justice Ervin wrote and concurred in the result. 

Hat tip to the ABA Journal. (Mike Frisch)

January 6, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Attorney Suspended: Received Contraband While Incarcerated

An incarcerated Michigan attorney has been suspended automatically based on drug and probation violations. 

On December 20, 2016, respondent entered a plea of guilty to the charges of Prisoner Possessing Contraband, contrary to MCl 800.281 (4) and Habitual Offender (4th offense), contrary to MCl 769.12, in the matter of People v Susan Gail Graham, 57th Circuit Court Case No. 16-4425­ FH. Respondent also pled guilty to violating her probation in People v Susan Gail Graham, 57th Circuit Court Case No. 15-4271-FH. Upon acceptance of the plea by the court, respondent was convicted and, in accordance with MCR 9.120(8)(1), respondent's license to practice law in Michigan was automatically suspended.

The News Review reported on the attorney's earlier problems

A Harbor Springs woman whose license to practice law is suspended and who has a long history of drug abuse pleaded guilty recently to a felony charge of driving with marijuana in her system.

Earlier this month Susan Gail Graham, 45, pleaded guilty in Emmet County's 57th Circuit Court to one count of driving with the presence of a controlled substance in the bloodstream, third offense. The charge is punishable by 1-5 years in prison or probation with 30 days-12 months in jail.

The plea was part of a plea agreement with the Emmet County Prosecuting Attorney's Office. In exchange for her plea, a charge of driving while intoxicated, third offense, a habitual offender, third offense sentencing enhancement and a district court case of driving without a valid license will be dismissed. The habitual offender sentencing enhancement could have increased the maximum penalty for the underlying offense by 1.5 times.

 In the plea agreement, the prosecutor's office also agreed to take a position regarding Graham's sentencing and agreed not to seek forfeiture of the 2003 Ford Bronco she was driving at the time of the incident.

According to court documents, the conviction stems from an incident that took place in Harbor Springs in July 2015. According to a Harbor Springs Police Department affidavit filed in the case, officers pulled Graham's vehicle over on Main Street near Gardner Street after another driver called 9-1-1 reporting a vehicle matching the description of Graham's "driving all over the road" and nearly hitting the caller's vehicle from behind.

Police said when they stopped Graham she had watery, bloodshot eyes with fixed pupils and that she had balance problems when the officers conducted a field sobriety test. Police said Graham admitted having smoked marijuana before driving and that they found a glass smoking pipe and an empty syringe in the car she was driving.

Blood tests found the presence of THC (the active ingredient in marijuana) and amphetamine in Graham's system at the time of her arrest, according to the affidavit.

Graham has prior convictions for driving while intoxicated in 2002 and 2011 and convictions for attempted resisting and obstructing police, possession of marijuana and use of a controlled substance in 2011, all in Emmet County. She is also still on probation for a 2014 conviction of maintaining a drug house in 13th Circuit Court in Traverse City.

The case had been set for a three-day trial that would have started on March 16. Graham will be sentenced on the new conviction at 9 a.m. on Tuesday, April 19. Because of the newest conviction, she could also face a probation violation on the maintaining a drug house convicti

Graham's license to practice law is currently suspended because of her criminal convictions.

Petoskeynews.com had a story about a 2011 encounter with the law

 Emmet County prosecutor Jim Linderman previously told the Petoskey News-Review that Graham pleaded guilty to one count of attempted assaulting/resisting/obstructing a police officer, a misdemeanor offense with a maximum penalty of one year and/or a $1,000 fine; one count of controlled substance possession of marijuana, a misdemeanor offense with a maximum penalty of one year and/or a $2,000 fine; one count of operating while intoxicated, a misdemeanor offense with a maximum penalty of 93 days in jail and/or a $100 to $500 fine and/or 360 hours of community service; and two counts of controlled substance use, a misdemeanor offense with a maximum penalty of one year in jail and, or a $1,000 fine.

In 2002, Graham was convicted of operating while intoxicated, first offense, court records show.

There have been any number of cases where an attorney has been busted for bringing drugs into a secure facility. I do not recall any where the recipient was an already jailed lawyer. (Mike Frisch)

January 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Let The Lady Sing In A Personal Injury Claim

An effort by the Metropolitan Opera to invoke workers' compensation law in a matter involving a rather unique occupation led to a decision of the New York Appellate Division for the First Judicial Department

Defendant Metropolitan Opera Association, Inc. (the Met) operates the Metropolitan Opera House at Lincoln Center. Plaintiff, Wendy White, is a renowned opera singer who has been featured in more than 500 performances at the Met over the course of 23 years. This personal injury action arises from plaintiff's fall from an elevated platform while performing at the Met...

Plaintiff alleges that, on December 17, 2011, during her performance of the role of Marthe in the Met's production of the opera Faust, she fell and was seriously injured while walking from a backstage staircase to an on-stage elevated platform. She alleges that the accident was caused by a defect in the set's design or construction resulting from the Met's negligence. She further alleges that she performed at the opera house pursuant to a standard contractor's agreement between the Met and her corporation, Wendy White, Inc. (WW, Inc.), and that neither she nor WW, Inc. were the Met's "employees."

The Met moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7), arguing that documentary evidence conclusively established that plaintiff was an employee engaged in the performing arts, as defined by WCL § 2(4), or, alternatively, a special employee of defendant, since the Met controlled the manner in which she performed her work, and that therefore her claim was barred by the exclusive remedy provision of WCL § 11.

The star responds

Plaintiff submitted her own affidavit, in which she averred that she was not employed by the Met but, instead, by WW, Inc. She explained that she was always paid by WW, Inc., and that WW, Inc. only received 1099's, not W-2's, from the Met. She also did not receive any employment benefits from the Met, and was in fact told that she did not qualify for the Met's health insurance plan because she was not an employee.

Plaintiff asserted that she was a "star" and that, as such, she had "full artistic control" over her performance, including choosing "the timbre, the volume, the projection, and all of the artistry in the form of nuance, inflection and the acting." She claimed to have received no training, supervision, or direction from the Met with respect to how to perform her role, and explained that her voice lessons and coaching were paid for by WW, Inc. She admitted, however, that the Met provided her make-up, costumes, and wigs, told her "where and when to attend rehearsals and performances," and "blocked out the basic staging with entrances and exits" - although she purported to have veto power even with respect to staging decisions.

Additionally, plaintiff stated that she was not aware that the Met purchased workers' compensation insurance for her, and never consented to any claim being filed thereunder. She explained that she only found out later that certain medical bills had been paid by the Met's insurance carrier, and rejected any subsequent offers of payment. Instead, she filed a claim in New Jersey under WW, Inc.'s workers' compensation insurance policy.

Plaintiff also submitted statements by Assemblyman Roger J. Robach and New York State Senator James J. Lack, the sponsors of the 1986 amendment to the WCL that added section 2(4), addressing the employment status of performing artists. Robach explained in a letter to the Governor's Counsel that the amendment was intended to clarify that "the vast majority [of musicians and performers] who are not in the star' category" were employees entitled to workers' compensation benefits, without having to litigate their status. In an affirmation submitted with the motion, Lack explained that "[t]he bill was not intended to compel star' performers, who are independent professionals able to negotiate the terms of their engagements, to become employees' of the venues at which they perform."

The court agreed that Ms. White was not an employee covered by workers' compensation law. (Mike Frisch)

January 6, 2017 in Current Affairs | Permalink | Comments (0)

The Rothstein Effect

More fallout from the Scott Rothstein Ponzi scheme in a disbarment from the New York Appellate Division for the First Judicial Department

On October 23, 2014, respondent pleaded guilty in the United States District Court for the Southern District of Florida to conspiracy to commit wire fraud in violation of 18 USC § 371, a felony. Respondent's conviction arose out of his involvement in a Ponzi scheme orchestrated by disbarred Florida attorney Scott Rothstein, through his now defunct law firm, which respondent had been a non-equity shareholder of. Prior to 2009, Rothstein, through his law firm, devised a fraudulent scheme involving fictitious confidential settlements. In 2009, respondent and codefendant Richard L. Pearson, a broker, engaged in a conspiracy to broker the sale of Rothstein's purported confidential settlement agreements to investors. Rothstein paid Pearson a sales commission for each investment brokered, and Pearson in turn paid a portion of the commissions to respondent.

The conviction resulted in automatic disbarment.

Although the federal felony of conspiracy to commit wire fraud has no direct felony analogue under New York law, the Committee contends that respondent's plea admissions, read in conjunction with the information to which he pled guilty, satisfy the elements of Penal Law § 190.65(1)(b) because he admitted that over a period of time he and co-conspirator Pearson caused investors to transfer funds by interstate wire transfer to invest in approximately five confidential settlement agreements through material omissions and misrepresentations as to the sales commissions he and Pearson were to receive and thereby caused them to incur losses of more than $1 million but less than $2.5 million. In addition, the Committee relies on respondent's admission in his written plea agreement that investor losses exceeded $1 million.

As a result, we find respondent's admitted conduct satisfies the elements of the New York felony of scheme to defraud in the first degree (see Matter of Goldfarb, 141 AD3d 90 [1st Dept 2016]; Matter of Treffinger, 11 AD3d 185 [1st Dept 2004], lv denied 4 NY3d 703 [2005]).

Moreover, respondent's assertion that the 11th Circuit may expunge his conviction based on a motion he has yet to file is pure speculation, and respondent's request for a postponement of this proceeding should be denied because, possible postconviction challenges notwithstanding, he was disbarred by operation of law at the time of his conviction.

(Mike Frisch)

January 6, 2017 | Permalink | Comments (0)

Case Resolved But Not The Conflict In The Evidence

A 60-day suspension has been imposed by the Wisconsin Supreme Court for an attorney's misconduct in his own acrimonious divorce.

This matter came to the OLR's attention during Rice's acrimonious divorce proceeding. In 1996, Attorney Rice and Ms. Liesl M. Testwuide (Ms. Testwuide) were married. In 1992, when Ms. Testwuide was still unmarried and childless, Ms. Testwuide's parents created a trust for the benefit of Ms. Testwuide and her children. Ms. Testwuide was co-trustee of the trust along with Kenneth Kazmierczak, a business associate of Ms. Testwuide's father.

In 2010, Ms. Testwuide filed for divorce. In July 2011, while the divorce was pending, Ms. Testwuide filed a grievance with the OLR alleging that Attorney Rice had removed over $600,000 from the trust without proper authorization by forging Ms. Testwuide's signature and the signature of her cotrustee. Attorney Rice self-reported the same misconduct and, in October 2011, Attorney Rice submitted a lengthy written response to the grievance acknowledging that he signed documents without proper authorization but asserting Ms. Testwuide knew and tacitly approved his actions. Ms. Testwuide and Attorney Rice's divorce judgment was entered in October 2011; they continued to litigate custody, placement, and other issues.

On November 21, 2011, Ms. Testwuide filed a civil action against Attorney Rice and his former law firm, alleging fraud, conversion, and legal malpractice. Testwuide v. Rice, 2011CV1184, Sheboygan County. On December 18, 2012, the circuit court granted Rice's motion for summary judgment, ruling that several claims were barred by the statute of limitations. In May 2013, a stipulation and order dismissing the remaining claims against Rice was entered.

In the disciplinary case, the attorney stipulated to the forgery and sought a reprimand.

After itemizing a number of unauthorized trust transactions, the referee stated that she was not persuaded by Attorney Rice's claim that it was "impossible" to locate the cotrustee after the co-trustee relocated to Minneapolis, and found further that the "overwhelming information in this record supports the fact that [Rice's] misconduct in accessing Trust funds, without authorization was well in excess of any dollar amounts necessary to 'pay bills.'." However, the referee acknowledged the "personal nature of the issues leading [Rice] to engage in the misconduct that he admits to" and found credible Attorney Rice's assertion that he sincerely believed that he was acting as a "de facto" trustee.

Throughout these proceedings Attorney Rice has maintained that he engaged in the trust transactions, albeit unauthorized, but with the knowledge and consent of his wife, who was both a co-trustee and a beneficiary of the trust. He claims that she did not want to be involved in the marital finances. He maintains that the trust funds were used to support a marital lifestyle that exceeded their employment income, and paid for, among other things, property taxes, vacations, and the remodeling of a vacation home. He claims that Ms. Testwuide's grievance was both selective and incomplete in terms of the trust transactions it identified. The referee did not make specific findings in this regard, however, merely noting the "conflicting" evidence provided. There is no finding that Attorney Rice misused the trust funds.

The court majority ordered a 60-day suspension with payment of full costs.

Justice Abrahamson dissented, joined by Justice Ann Walsh Bradley

I cannot join this per curiam because the stipulation, the referee's report, and this per curiam do not make clear the nature and extent of Attorney Rice's conduct that is charged as a violation of SCR 20:8.4(c). Without knowing the nature and extent of the conduct I cannot determine whether a violation of the Code occurred and, if there was a violation, the appropriate discipline. Accordingly, I dissent.

(Mike Frisch)

January 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Law Of Pimping Criminal Liability Clarified

The Washington State Supreme Court has held that pimps are subject to multiple counts of promoting prostitution per the number of prostitutes in their employ

At issue in this case is whether a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved. We have not previously considered the unit of prosecution for second degree promoting prostitution. In light of the statute's plain language and prior decisions of this court, we affirm the Court of Appeals and hold that the legislature expressed its clear intent to authorize multiple convictions when one pimp exploits multiple individuals.

The facts

Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee "supervised" during 2010 were SE, BK, and CW.

SE met Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work "the track" (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She testified at trial that she was expected to make $1,000 a day or stay up at night until she met that quota. All of her earnings went to Barbee. Barbee required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in "escorting." During 2010, two of the women she recruited on Barbee's behalf were two 18-year-olds, BK and CW.

He claimed that multiple punishments for promoting BK and CW violated double jeopardy.

Divisions One and Two of the Court of Appeals have come to different conclusions regarding whether the statute evinces a clear legislative intent to impose multiple punishments when one individual employs two or more prostitutes in the same time frame.

Resolving the division split

...the text of the statute is clear. The legislature authorized charges premised on either operating a prostitution enterprise or promoting individual prostitutes. Although not necessary to resolve the issue, an examination of the statute's legislative history also confirms that a defendant may face multiple convictions when he or she "promotes" multiple prostitutes. The history of Washington's promoting prostitution statute indicates that the statute is "victim-centered" and focused on criminalizing the promotion of prostitution as it related to each individual exploited.

...while the plain language of the statute is unambiguous, the legislative history also clearly reflects that the legislature intended the crime to be, in part, a crime against individual persons.

In sum, in light of the plain language of the statute and consistent with our prior construction of similarly worded statutes, we hold that the legislature, by use of the language "a person," unambiguously authorized a unit of prosecution for each person promoted. When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.

(Mike Frisch)

January 6, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, January 5, 2017

Trust Overdraft For Phone Sex Charges Leads To Disbarment

The New Jersey Supreme Court disbarred an attorney for intentional misappropriation and other misconduct as described in the Disciplinary Review Board report.

The case reinforces the court's properly unsympathetic view of knowing misappropriation.

It started with overdrafts on a trust account for a purpose unrelated to legitimate client affairs.

On January 24, 2013, Kearny [Federal Savings Bank]  notified the [Office of Attorney Ethics] of a $96.63 overdraft in respondent’s trust account following three consecutive $36 electronic charges from UNI Information Inc. (UNI). UNI is a corporate entity located in California that provides adult entertainment in the form of "phone sex talk." Kearny honored the charges, but assessed an insufficient funds fee of $105 for the three overdraft charges, which increased the overdraft to $201.63...

According to respondent, he was charging the UNI calls directly to his trust account because he had personal funds in the account, at that time, and did not have a business account, but was in the process "of reestablishing one as soon as possible." He added that he began authorizing UNI charges to his trust account in April 2012. UNI charged the following rates: $18 for fifteen minutes; $36 for thirty minutes; $54 for forty-five minutes; and $80 for seventy-five minutes. Respondent maintained that he would never know when the UNI charges would "hit" his account. He stopped using the trust account for the UNI charges after he received the OAE’s January 28, 2013 letter.

But the overdraft led the OAE to investigate and learn of instances of misappropriation from clients.

The misconduct and potential mitigation

The complaint clearly and convincingly demonstrates that respondent continuously invaded client funds to support his alcohol, gambling, and phone sex proclivities. After he invaded client funds, he supplemented one client’s funds with either personal funds or engaged in "lapping" to satisfy the amounts he owed his clients. In other words, he used funds from one client to cover the amounts he owed another client. There is no question that respondent knew he was invading other client funds. This was no more evident than when, after he used Taylor’s funds to repay Bishop and McArdle, he purportedly obtained a loan from Taylor, to justify the shortage in his trust account to the OAE.

 Although respondent’s alcoholism, his compulsive gambling, and his depression, exacerbated by his mother’s illness and ultimate death evoke a sense of compassion, those circumstances do not and cannot excuse his knowing misappropriation of client funds. The Court consistently has rejected alcoholism as a defense to knowing misappropriation...

Gambling addiction, too, has not saved from disbarment attorneys who knowingly misappropriated clients’ monies to fund their habit...

Mental illness, too, has been insufficient to override the disbarment penalty required in knowing misappropriation cases. The Court rejected a defense of manic-depressive illness and underlying bipolar disorder in a case involving one instance of knowing misappropriation and three instances of forgery...

The attorney defaulted on the charges. and has been subject to an interim suspension since January 2015.

The matter thus reflects two of the most important tools in effective attorney discipline.

First, it shows the value of the mandatory overdraft notice to bar counsel.

Here, the notice served as a trigger to uncovering serious misconduct before a client complained. It can take a long time to catch the Rob Peter to Pay Paul (not Pal) type of escrow account thief.

Second, interim suspensions serve to protect the public while the long slog to suspension/disbarment plays out.

Here, in the face of default, the attorney has already been out of circulation for two years. (Mike Frisch)

January 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Sympathy

Readers may recall that I question New Jersey's commitment to attorney discipline from time to time.

Well, the Disciplinary Review Board proposed - and the Supreme Court accepted - reciprocal disbarment in a matter where Pennsylvania had imposed a suspension of a year and a day

...to establish knowing misappropriation, the [Office of Attorney Ethics] must prove, by clear and convincing evidence, that respondent deliberately took his client’s funds and used them, knowing that the client had not authorized him to do so. This, respondent has admitted. He attempted to mitigate his conduct, however, by offering details about his dire financial straits, the need to pay his child support, and his asserted mental health issues stemming from his father’s murder. Although these factors may engender some sympathy, "no amount of mitigation will save from disbarment an attorney who knowingly misappropriates trust funds." Id. at 160.

Respondent committed several other ethics violations that warrant discipline. These violations, however, are less severe in nature than the knowing misappropriation of client funds, and would result in less severe discipline had they occurred on their own. Hence, in light of our recommendation, we do not address the appropriate quantum of discipline for those other violations. Respondent has admitted that he took client funds from his trust account, without authorization, and used them for his own personal benefit. In New Jersey, that misconduct requires that respondent be disbarred. We so recommend.

(Mike Frisch)

January 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, January 4, 2017

All Over A Seatbelt Citation

From the January 2017 online California Bar Journal

ALLISON CHRISTINE WORDEN [#211104], 41, of San Diego, was suspended from the practice of law for 60 days and ordered to take the MPRE. She was also placed on two years’ probation and faces a one-year suspension if she fails to comply with the terms of her disciplinary probation. The order took effect Nov. 20, 2016.

On Feb. 13, 2013, a jury found Worden guilty of one count of conspiracy to obstruct justice and the due administration of law and two counts of alteration or destruction of a traffic citation, all misdemeanors.

In May 2011, Worden and her coworker, both deputy district attorneys for the San Diego County District Attorney’s Office, were pulled over and each received a citation for Worden’s failure to wear a seatbelt. Worden later phoned a family friend, a sergeant in the San Diego Police Department’s traffic division, who agreed to dismiss the citations without talking to the traffic officer. Worden then told her coworker to destroy her citation but the coworker refused to do so. Worden resigned from the district attorney’s office after the jury trial.

In aggravation, Worden’s conduct was damaging to the integrity and credibility of the criminal justice system and to the legal profession. In mitigation, she had no prior record of discipline, presented evidence of her good character, has done community service and entered into a pretrial stipulation with the State Bar.

The San Diego Union Tribune reported on the appeal of the criminal conviction. (Mike Frisch)

January 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Revolving Door Informal Admonition

The District of Columbia Disciplinary Counsel has issued an informal admonition for a former federal government attorney's revolving door ethical violation.

The attorney did not "switch sides."  Rather, the representation was adverse to the subject of her investigation as a public employee.

From the admonition

You were employed as Associate Chief Counsel for the Food and Drug Administration's Office of Chief Counsel between 2004 and 20 l 0. In late 2005, you were assigned to work on an investigation of Ranbaxy Laboratories, LTD., a generic drug manufacturer. You participated personally and substantially in that investigation from 2005 to 2008. One of your assignments was to assist in the drafting of an affidavit in support of a search warrant of Ranbaxy. The affidavit contained specific, detailed allegations from multiple informants concerning Ranbaxy's fraudulent conduct in manufacturing and testing generic drugs and filing falsified Abbreviated New Drug Applications (ANDAs) with FDA. You attended frequent meetings with law enforcement agents and government lawyers involved in the investigation.

The search warrant was executed in 2007, and you were involved in reviewing the seized documents, which amounted to more than 400 boxes. These documents confirmed information from informants that certain Ranbaxy facilities had falsified data in the submitted ADAs.

Then

In 2008, you were reassigned to other matters. In 2010, you left FDA, and in 2011, you joined the law firm, Hyman, Phelps & McNamara.

After your departure from FDA, the investigation of Ranbaxy was resolved with a Consent Decree of Permanent Injunction, a guilty plea, and the settlement of a False Claims Act civil complaint. You had no involvement in the resolution of the investigation. The Consent Decree was entered into in January 2012. It required Ranbaxy to withdraw certain ANDAs that were premised on false data and to relinquish market exclusivity, based upon first-to-file status, for the generic products that had been approved as a result of those ANDAs. The Consent Decree exempted certain AND As from this requirement, and the identity of these drugs were filed under seal and not otherwise made public. The exempted drugs included Varsartan, Esomeprazole Magnesium, and Valganciclovir Hydrochloride.

On May 5, 2014, you signed a Citizen Petition to FDA on behalf of an anonymous competitor of Ranbaxy. You participated in the drafting of this document, particularly the factual part, which set forth the facts and history of Ranbaxy's fraudulent conduct. The petition requested FDA to determine that Ranbaxy was not eligible for first-to-file market exclusivity and to revoke pending ANDAs for Valsartan, Esomeprazole Magnesium, and Valganciclovir Hydrochloride, three of the products that had been exempted, under seal, from the Consent Decree. The petition further asked FDA to approve ANDAs for these drugs from Ranbaxy's competitors. The basis for these requests was Ranbaxy's fraud, and the petition criticized the Consent Decree as inadequate. The petition asserted "upon information and belief' that Ranbaxy's ANDAs for these three drugs had relied on data from one of the facilities that was shown to have generated falsified data in FDA's investigation.

...We find that your participation in drafting the Citizen Petition was substantially related to your participation in the criminal investigation of Ranbaxy. 

 Disciplinary Counsel's analysis

You have said that because of the passage of time, you no longer remembered in 2014 any confidential information that you might have learned during the investigation of Ranbaxy, where your involvement ended in 2008. Moreover, you took the precaution of having a paralegal gather only publicly-available information about Ranbaxy and the investigation, and you wrote the factual part of the petition based only on that public information. (The statement in the petition based on information and belief as to the origin of data in support of certain ANDAs was not based on the readily available public information. You have told us, however, that your client and others in your firm ascertained this information and were the sources for its inclusion in the Citizen Petition.) You also evaluated and sought advice from others within your firm about whether your work on the Citizen Petition would be substantially related to your work on the criminal investigation at FDA and believed in good faith that it was not. We do not dispute your statements in this regard. Rule l. ll(a), however, is a prophylactic rule, intended to prevent any possibility that former government lawyers will use information they learned while representing the government to benefit private clients. It does not require a showing that you actually used confidential information learned during your government employment in private practice...

The case is In re Anne K. Walsh, Docket No. 2015-D248 and can be accessed through this link. (Mike Frisch)

January 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, January 3, 2017

Katten Muchin Prevails In Charging Lien Litigation

The Delaware Supreme Court has ruled in favor of the Katten Muchin law firm in a case involving application of the law of charging liens.

The case was a complex fight over the client's ouster from a family business

Martha reacted to her ouster by, among other things, litigating. She first retained plaintiff Katten Muchin Rosenman LLP to represent her in a § 220 books and records request of the Sutherland Lumber Companies.  Although Martha and Katten disagree over whether they entered into a written fee agreement, the parties agree that Katten was not providing its services on a contingency fee basis and was instead entitled to fees on an hourly rate basis and to reimbursement of its expenses.   Indeed, Katten sent Martha monthly invoices based on hourly billing, which Martha paid for several years.

In 2006, Martha, with Katten as her counsel, filed a derivative and double derivative action against Perry, Todd, and Mark alleging, among other things, that Perry‘s and Todd‘s employment agreements with the Sutherland Lumber Companies were a result of self dealing...

Some benefits were realized with respect to the employment agreements at issue but 

By 2011, [client] Martha accrued $766,166.75 in unpaid attorney‘s fees for services that Katten provided in this litigation between 2009 and 2011. In the spring of 2011, Katten withdrew as counsel. One of Martha‘s attorneys from Katten, Stewart Kusper, left the firm and continued to represent her.

After Martha‘s litigation concluded in 2012—without her securing any additional relief on behalf of the Sutherland Lumber Companies—she sought an award of attorney‘s fees from the Sutherland Lumber Companies for all of her fees arising from the § 220 action and from overcoming the special litigation committee‘s investigation and recommendation to terminate the litigation, plus $25,000 in fees for defending against the summary judgment argument aimed at the employment agreement claim. In total, Martha asked for $1.4 million in attorney‘s fees and, in doing so, she used Katten‘s invoices that detailed the services it provided to her and its expenses incurred on her behalf while it represented her as a reasonable basis for the fees she should be awarded.  Indeed, in Martha‘s petition for an award of attorney‘s fees, she argued that the $1.4 million in attorney‘s fees she incurred from Katten were "fair and reasonable."

...Relying on Katten‘s invoices, the Court of Chancery awarded Martha $275,000 in fees for the minor benefits that she obtained on behalf of the Sutherland Lumber Companies in 2007 when, as a result of Martha‘s and Katten‘s efforts, the Sutherland Lumber Companies amended Perry‘s and Todd‘s employment agreements.

The firm intervened and asserted a lien on the fee award.

The court here reversed the Court of Chancery

Although Delaware does not have a statute governing charging liens, Delaware has a long lineage of cases recognizing charging liens as a matter of common law.  Two recent Delaware cases address charging liens.   In Doroshow,  this Court confirmed that Delaware recognizes the long-standing common law right of charging liens. In Zutrau, the Court of Chancery adopted the definition provided by Corpis Juris Secundum that a charging lien is "an equitable right to have costs advanced and attorney‘s fees secured by the judgment entered in the suit wherein the costs were advanced and the fee earned." Today, we also endorse that definition of a charging lien.

Here, the modifications to Perry‘s and Todd‘s employment agreements— which are the basis for Court of Chancery‘s fee award—were adopted as a result of Martha‘s and Katten‘s efforts in the derivative and double-derivative action. Furthermore, Katten‘s unpaid fees arose from the same litigation that produced the benefits for the Sutherland Lumber Companies and which led to the Court of Chancery‘s award of attorney‘s fees. Therefore, based on our definition of a charging lien, Katten is entitled to a lien on the entire fee award of $275,000. The historical rationale for a charging lien—to promote justice and equity by compensating the attorney for her efforts and thus encouraging attorneys to provide legal services to clients—also supports this conclusion.

In its decision, the Court of Chancery seemed to read Doroshow as standing for a rule that an attorney may only seek a charging lien for fees the attorney incurred that were directly connected to her client‘s recovery. The Court of Chancery cited Doroshow‘s finding that, because the law firm in that case represented its client on a contingent fee basis, it was entitled to a charging lien because "the law firm had not been compensated before its work produced the funds." The Court of Chancery reasoned that because Katten had already been paid for the services that led to the benefits for the Sutherland Lumber Companies, it was not entitled to a charging lien. But, Doroshow dealt with a charging lien based on a contingency fee, and we held that the law firm was entitled to its agreed 40% contingent fee. Our decision in Doroshow did not limit the scope of charging liens in general. Rather, Doroshow demonstrates the application of this equitable right to a particular type of fee arrangement, and one fundamentally different than the one between Martha and Katten.

Here, Katten billed Martha regularly for its services based on the amount of time Katten‘s attorneys spent on the case and the attorneys‘ hourly rates. Katten billed Martha for approximately $3.5 million, of which Martha paid roughly $2.7 million. That Katten‘s services underlying the unpaid fees did not result in any benefit to the Sutherland Lumber Companies does not matter. In the case of hourly billing, unlike with a contingency fee, the total amount that the client is required to pay her lawyer is not based on the client‘s recovery. In Zutrau, the Court of Chancery considered the scope of a charging lien in the context of hourly billing and explained that "[i]t is no secret that litigation is expensive and that the costs of prosecution easily can exceed the recovery." The Court of Chancery found, "that the cost of prosecution conceivably could exceed the recovery does not excuse Zutrau from paying those fees." If, as here, an attorney has unpaid fees that are greater than the client‘s recovery, the attorney is entitled to a charging lien on the entire recovery. Moreover, the client remains obligated to pay her attorney any remaining unpaid fees. Martha was required to pay Katten its reasonable fees in accordance with their agreement whether she won or lost. Because Martha did not pay Katten for all of its services stemming from the litigation in which Katten produced the only benefits, Katten is entitled to the equitable right of a charging lien on the entire $275,000 fee award. Finding otherwise would lead to an inequitable result where attorneys with a claim for unpaid fees from litigation— where work had been billed on an hourly basis—could use the equitable right of a charging lien only to recover fees relating to the services that were directly connected to the litigation‘s beneficial results.

Like other contracts, contracts for the provision of legal services create incentives for parties, including clients. When a party, such as Martha, agrees to pay hourly fees to prosecute a complex case, she is assuring her counsel that it will not suffer the commercial damage of uncompensated services if it presses her claims as aggressively as she demands and as the law permits. To permit a client who is a party to such an agreement to escape a charging lien as if she made a strict contingency fee agreement limiting fees to a percentage of recovery is to judicially rewrite the contract at the expense of the attorney and to undermine the traditional purpose of a charging lien.

(Mike Frisch)

January 3, 2017 in Billable Hours, Clients, Current Affairs, Hot Topics | Permalink | Comments (0)

Connecticut Explains Misappropriation Sanction Standards

The Connecticut Supreme Court has issued an opinion of significance that affirmed a reprimand for a Rule 1.15 violation and rejected a harsh presumptive sanction for intentional misappropriation

This disciplinary action originates from a twelve year old fee dispute that resulted in several actions and various appeals...

The trial court found by clear and convincing evidence that the defendant violated rule 1.15 (f) of the Rules of Professional Conduct by failing to maintain the disputed fee in escrow and that his ‘‘belief that Yuille would be satisfied once Mooney was paid was erroneous and unreasonable given the totality of the circumstances.’’ Despite this violation, the trial court also found that the defendant did not knowingly misappropriate those funds. Specifically, the trial court found that the defendant’s ‘‘failure to escrow the funds . . . was not a reflection of any lack of integrity on his part and that he did not act wilfully or with intent to deceive Yuille.’’ Essentially, while the defendant appropriated the funds knowingly, he had ‘‘engaged in this conduct negligently,’’ without deceptive intent.

Bar Counsel had appealed to the Appellate Court, which affirmed, as did the court here

The plaintiff claims that Practice Book § 2-47A mandates disbarment when an attorney: (1) appropriates client funds; (2) does so knowingly; and (3) does so knowing no agreement or court order existed regarding the appropriation of the funds. In the plaintiff’s view, a finding regarding the defendant’s intent is unnecessary. We disagree.

As to sanction

On the basis of the trial court’s factual findings, as set forth in this opinion, the defendant’s transfer of funds constituted an appropriation that he undertook knowingly. The trial court found, however, that the long and tortuous procedural history of the parties’ fee dispute contributed to the defendant’s unreasonable but subjective belief that he was entitled to the disputed funds and no longer was required to maintain them in escrow.6 Put another way, the defendant appropriated client funds, did so knowingly, but did not do so with any intent to steal the escrowed funds or otherwise take them wrongfully, dishonestly, or illegally. The transfer did not constitute theft or larceny. Accordingly, because the defendant did not intend to steal from his client he did not act with the intent necessary to constitute a misappropriation and, therefore, is not subject to mandatory disbarment...

In holding that in order to be subject to mandatory disbarment pursuant to Practice Book § 2-47A, an attorney must knowingly and intentionally steal client funds, we reject the definition of ‘‘knowing misappropriation’’ from Wilson, which resembles strict liability, and the New Jersey case law that flows from it. In re Wilson, supra, 81 N.J. 455 n.1. In addition to being inharmonious with our statutory construction of ‘‘knowingly misappropriated,’’ such a standard would impose a severe punishment—that of mandatory disbarment for a minimum of twelve years—on attorneys for conduct that had been undertaken less than intentionally and, further, would create a rigid rule, robbing the trial court of its discretion to fashion sanctions properly suited to the offending attorney’s background, intent, and mitigating or aggravating circumstances.

(Mike Frisch) 

January 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Prosecutor Reprimand Proposed: Junior Status No Defense

A prosecutor's Rule 3.8(d) violation resulted in  a public reprimand by the Louisiana Attorney Disciplinary Board.

The prosecutor was involved in a second-degree murder trial and claimed that his subordinate status precluded a misconduct finding with respect to disclosure of the familiarity of the crucial witness with guns.

The totality of evidence underpinning the state's case consisted almost exclusively of the testimony of one key witness – and the only admitted participant – in the homicide: the victim's estranged wife, Kristyn Hoffpauir. Kristyn initially was charged as a co-defendant with Sizemore, but in May 2011 she entered a guilty plea agreeing to testify for the state at trial against her former co-defendant.

The board on the Rule 5.2 defense offered by the prosecutor

We disagree. A subordinate lawyer is only insulated by Rule 5.2(b) when the supervisory lawyer is faced with a reasonable resolution of an arguable question of professional duty. Here, we find that the supervising lawyer's resolution was neither reasonable nor arguable. His decision that such information should not be given to the defense does not logically follow from the premise that the information was hearsay. The defense could have called as witnesses the people identified by Mr. Thibeaux as possessing firsthand knowledge of the events in question, but not if it does not possess the information in the first place. Kristyn's gun familiarity was questioned in the first two trials, and one of those occasions was after the prosecutors learned that Kristyn not only may have had a gun, but may have threatened to kill her own mother.

We are not persuaded by the fact that this issue did not arise in the third trial. The issue is not what happened in the third trial, but before and during the second. We find that the Office of Disciplinary Counsel proved by clear and convincing evidence that Respondent violated Rule 3.8(d) in failing to disclose the information procured by Detective Ortiz. Respondent has substantial experience as a prosecutor, and neither he nor Mr. Westerchil was principally responsible for the case.

The board agreed that the prosecutor had withheld material evidence in violation of his disclosure obligations.

The board noted only a single prior Louisiana case involving a Rule 3.8(d) violation and considered the prosecutor's subordinate status in assessing the severity of the misconduct

The facts of this matter appear to be less egregious than those in Jordan. First, Mr. Jordan had sole discretion on what evidence was provided to the defense. Here, the facts are quite different. Mr. Skinner directed Detective Ortiz to interview Mr. Thibeaux, unbeknownst to Respondent and Mr. Westerchil. Mr. Skinner directed Detective Ortiz to leave the information regarding the prior gun possession out of his report, and then directed Mr. Westerchil to not disclose the report to the defense. Thus, Respondent was put in the difficult position of having to defy his supervisor’s handling of the information. Second, once the undisclosed evidence came to light during the second trial, Respondent and Mr. Westerchil promptly agreed to a mistrial. No such remedial action was taken in Jordan. Accordingly, the sanction recommended by the Committee – public reprimand – is appropriate and is adopted by the Board.

Mr. Skinner is the District Attorney. (Mike Frisch)

January 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

North Of Disbarment

The Louisiana Attorney Disciplinary Board has proposed permanent disbarment of an already disbarred attorney based on findings that the first sanction did not take hold.

From the charges

Judge Monique Barial, with the Orleans Parish Civil District Court, states that on May 11, 2015, you appeared in her court as counsel for Ivan Prevost, petitioner in a Petition for Protection from Abuse. The Court rendered a judgment, which you were to prepare. When Mr. Prevost was unable to reach you to obtain a copy of the judgment, he went to the Court's chambers to get a copy. The office staff told Mr. Prevost that it had not yet received the circulated Judgment with the Rule 9.5 Certificate. Approximately two days later, Mr. Prevost returned to the Court's chambers to get a copy of the Judgment in order to schedule the evaluations ordered by the Court. Mr. Prevost told the staff that he still had not heard from you, and had in fact learned that you had been disbarred.

Judge Barial then called the number that was listed on the draft of the judgment you had previously sent to the Court, and left a message asking that you call the Division. To date there has been no response to Judge Barial’s request. Judge Barial also did a search of the Court's Case Management System in order to identify whether or not you were listed as eligible. She noted that there was an Edward W. Hebert (LSBA #25086) who was listed as ineligible. The LSBA number you listed on the judgment that you submitted to the Court is #25412. You also listed your name as “E. Hebert” on the judgment. According to the Court's database, the bar roll number listed on your judgment belongs to an attorney by the name of Eric T. Hebert. Judge Barial called Eric Hebert, who confirmed that the bar roll number listed on your pleading was his, that he was not Edward Hebert, and there was no Edward Hebert at his firm.

You intentionally practiced law while suspended when you made a court appearance and prepared a judgment for Mr. Prevost. In addition, you intentionally misrepresented your name and Louisiana bar roll number to the Court, in order to conceal the fact you were ineligible to practice law.

According to Mr. Prevost, you never told him you were suspended from the practice of law. Mr. Prevost further confirmed he paid you $500 in cash to represent him in the underlying matter. You intentionally deceived Mr. Prevost and obtained $500 from him under false pretenses. As of this date, you have not refunded any of the funds given to you by Mr. Prevost.

The board agreed with the hearing committee on misconduct but not sanction

The Board adopts the factual findings and legal conclusions of the Committee. However, it does not adopt the Committee’s sanction recommendation. Instead, the Board recommends that Respondent be permanently disbarred under Guidelines 8 and 9. Additionally, the Board recommends that Respondent be assessed with the costs and expenses of this matter and be ordered to provide restitution to Mr. Prevost.

(Mike Frisch)

January 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, January 2, 2017

Suspension Proposed For Judge Who Sexually Harassed Employee: Drafted Recommendation Letter That Said She Was "Sexy As Hell"

The Michigan Judicial Tenure Commission has proposed a censure and suspension of 60 days without pay of a probate judge who had sexually harassed his judicial secretary over a three-year period from 2012 to 2015. 

The misconduct consisted of, among other things, a series of text messages where he complained about the state of his marriage and unaccepted invites to a Rihanna/Eminem concert and to travel to "exotic locations for court-related conferences" where they would share accomodations. 

He showed her a "sexually suggestive Youtube video of a high-priced lingerie website Agent Provocateur."

He also drafted a letter of recommendation on her behalf that advised potential employers that she was "sexy as hell." 

That language was deleted at the secretary's request. 

The judge self-reported the misconduct to the commission after reaching a civil settlement with the secretary.

Matt Durr at MichiganLive reported the story

Between 2012 and 2015, Iddings sent after-hours text messages to the woman about his marital problems and personal feelings, invited the woman to accompany him to court-related conferences where they would share a hotel room and shared a video with her about a lingerie website.

...the secretary filed a complaint against Iddings and in June a settlement was agreed upon and the secretary received an undisclosed amount of money. At that time Iddings then self-reported himself the judiciary committee for review.

The commission also recommends that the judge take a course in Texas called Maintaining Proper Boundaries.

Details from Lenconnect's David Panian.

The Peninsula had the story in October 2016 of the judge's reappointment by Governor Snyder to the Commission on Community Action and Economic Opportunity

The CCAEO is a 12-member commission created to reduce the causes, conditions and effects of statewide poverty in Michigan. The CCAEO also promotes social and economic opportunities in Michigan, and seeks to enable self-sufficiency for lower-income residents in the state.

“I thank Judge Iddings for his continued service on this commission and I am confident he will provide thoughtful input to assist low-income Michiganders,” Snyder said.

(Mike Frisch)

January 2, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)