Monday, September 8, 2014

Going Home

The California State Bar Court Review Department has recommended a partially stayed two-year suspension with 90-days of active suspension and probation for two years of an attorney who had failed to appear for a scheduled civil trial.

The attorney had left his law firm to help care for his father. The misconduct took place in the wake of his father's death.

On December 22, 2011, about a month after his father died, Lazo attended a Case Management Conference. Neither party objected to the court setting a trial date of April 2, 2012. But a month later, on January 19, 2012, Lazo purchased refundable plane tickets to travel with his mother to Europe and the Middle East from March 30 (three days before the scheduled trial) through April 28, 2012. The trip was planned to coincide with a ceremony to honor the dead on April 15 in Lazo’s ancestral village in Lebanon, and included stops in Rome, Paris, and Beirut. Originally, Lazo hoped his brother would accompany his mother, but he decided to go himself when his uncle died unexpectedly on February 18, 2012.

Lazo unsuccessfully attempted to continue the Girgis trial. On February 27, 2012, he asked [opposing counsel] Ayers to agree to a continuance and emailed him his travel itinerary, which showed the  January 19, 2012 reservation date. Ayers refused Lazo’s request. Weeks later, on March 19, 2012, Lazo filed a "Notice of Non-Availability," informing the court that he would be out of the country from March 30 through April 28, 2012. On March 21, 2012, the court rejected it, confirming the April 2, 2012 trial date.

After a series of unsucessful ex parte attempts to secure a continuance, the attorney nonetheless went to Lebanon.

He sent another attorney in his stead who was not prepared to try the case, which was continued.

The state bar court found that his requests for continuance were not honest and forthright. Further, he had failed to pay sanctions imposed for his failure to appear. (Mike Frisch)

September 8, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"This Is The Lifestyle I've Chosen"

The New Jersey Supreme Court has imposed a three month suspension of an attorney who, among other things, make "sarcastic and sophomoric" statements to opposing counsel in litigation.

The attorney was defending an insurance company in a case involving a residential fire.

He sent a number of offensive emails and a fax to opposing counsel sampled below

"This will acknowledge receopt of your numerous Emails, faxes and letters...In response thereto, Bla Bla Bla Bla Bla Bla Bla."

"Did you get beat up in school a lot?, because you whine like a little girl."

"Why don't you grow a pair?"

"What's that girlie email you have, Hotbox.com or something?"

After a chambers conference, the attorney warned opposing counsel never to again threaten him with an ethical complaint. There was some physical contact between the two. When opposing counsel said "Don't touch me," the response:

"Why would I touch a fag like you?"

At the ethics hearing before the District Ethics Committee (DEC), the attorney conceded the impropriety of the above exchanges.

The fighting issue was whether he made a false statement to the tribunal in the fire litigation.

He denied making a knowingly false statement to the judge, claiming at the hearing that his attention was elsewhere:

I neglected my files. I played too much golf, I went to Punta Cana with my family all within two months. Was it wrong? I don't know. This is the lifestyle I've chosen, the practice I've chosen because I worked at [a law firm] for 15 years in a cubical [sic] rising to managing director. I didn't want that anymore. I want to play golf. I do insurance work. I missed it. I screwed up. I had no motivation to lie to the judge about this particular thing...

Am I going to get lazy again and play more golf? I hope so. But I certainly did not intentionally lie to Judge Kassel or intentionally lie to [opposing counsel].

The DEC bought the explanation.

However, the Disciplinary Review Board (DRB) disagreed and found that the evidence established that the attorney made a knowing false statement.

The court adopted the DRB report.

Plenty of time to play golf now. (Mike Frisch)

September 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 7, 2014

Galanter's famous "Why the Haves Come Out Ahead" essay is reprinted as a book

The role of the legal profession and procedural-systemic advantages to repeat players and corporations are both at the heart of Marc Galanter's 1974 article "Why the 'Haves' Come Out AheCover Galanter interior for Qad." He wanted to make it available to classes and the like in a short-ish, cheap book, so I worked with him and we did that. Here's the 40th-anniversary paperback at Amazon, and in a week or two we'll add ebooks and a hardcover version. For now, though, it may be that profs who teach from the article and assign a photocopy may prefer this new incarnation by Galanter (Wisconsin) and his new introduction. It also adds new commentary by Shauhin Talesh (UC-Irvine) and Robert Gordon (Stanford). Obviously I have an interest in it, as series editor and publisher, so take this FWIW, but I did think teachers would want to know it's out now in this form. I was happy to work with Marc to release it this way. [Alan Childress]

September 7, 2014 in Books, Childress, Law & Society | Permalink | Comments (0) | TrackBack (0)

Friday, September 5, 2014

Sixty Year Career Ends in License Revocation

A 75-year-old attorney who was admitted to practice in 1962 has had his career end in license revocation by the Iowa Supreme Court.

The attorney had no prior discipline.

The problem involved handling of client funds

...we find by a convincing preponderance of evidence that Kelsen’s trust account violations included the conversion of $7500 worth of client funds without a colorable future claim to those funds. Kelsen’s claim of an oral loan agreement is not credible, and we also reject his contention that, even without a loan agreement, he would have a colorable future claim to the funds based on an expected contingent case settlement. "This conduct alone is enough to support revocation, and it is unnecessary for us to further consider the impact of his other unethical conduct."

The attorney received fees in connection with a client's discharge from employment. The attorney's wife  suffered from health problems, he lost and could not replace his secretary and had firm funds stolen from him by his stepson.

Nonetheless

While stating that it understood Mr. Kelsen’s personal situation, the [Grievance] commission noted that personal difficulties do not excuse trust account violations. Still, as a mitigating factor, the commission took into account Kelsen’s lack of prior ethical violations. It also presumed that Kelsen had been through several successful trust account audits in the past. The commission ultimately recommended a public reprimand as a sanction.

The court vigorously rejected reprimand as a sanction for misuse of entrusted, unearned fees.

This case is noteworthy as a reminder of the stunning disconnect between the profession (here the Grievance Commission) and the court regarding the seriousness of and sanction for mishandling entrusted funds.

A proposed reprimand becomes a revocation. An attorney with no prior discipline who was admitted to practice prior to my 1963 bar mitzvah has his career end in infamy.

A cautionary tale. (Mike Frisch)

September 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Cease And Desist

A California attorney has been ordered to cease and desist in Iowa practice within 60 days by the Iowa Supreme Court.

The Iowa Supreme Court Attorney Disciplinary Board brought a complaint against Richard Clay Mendez, charging numerous violations of Iowa’s disciplinary rules. Mendez is not licensed to practice law in Iowa but acquired a Des Moines-based immigration practice and represented Iowa residents in federal immigration proceedings. A division of the Grievance Commission of the Supreme Court of Iowa determined Mendez violated certain rules governing trust accounts, fees, referrals, conflicts of interest, and neglect. The commission, with one member not participating in its deliberations, recommended we order Mendez to cease and desist from the practice of law in Iowa for a period of not less than sixty days, the period recommended by the Board. On our de novo review, we find Mendez violated our rules and order him to cease and desist from practicing law in Iowa for sixty days.

While Iowa rules allow for the federal practice, the problems involved substantive ethics violations

We conclude the numerous violations committed by Mendez require more than a public reprimand. His violations span a wide variety of rules. He disregarded our trust account rules, impermissibly contracted for nonrefundable fees, charged an unreasonable fee, improperly divided fees, neglected a client’s appeal, failed to promptly turn over a client’s file, failed to return funds promptly, failed to keep disputed funds in trust, failed to communicate with a client, and failed to disclose a conflict of interest.

The court considered mitigating and aggravating factors in imposing the sanction. One factor stood out

We find it remarkable that even by the late date of his disciplinary hearing, Mendez still had not yet read the Iowa rules he was charged with violating.

(Mike Frisch)

September 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

A Friend Named Aristotle

From the Ohio Supreme Court web page

George  Z. Pappas of Urbana will serve a two-year suspension for multiple rules  violations after a federal felony conviction for making false statements to  federal authorities. The Ohio Supreme Court ruled in a 6-1 per curiam decision  to accept the recommendation of the Board of Commissioners on Grievances  and Discipline of a two-year suspension. Contrary to the board’s  recommendation, the court declined to grant Pappas any credit for the time he  has already served under his interim felony suspension, which the court imposed  on August 22, 2012.

In 2004, Pappas agreed to falsely  claim ownership of the Columbus law firm owned by his law school classmate and  best friend, Aristotle Matsa, who wanted to prevent his wife from getting the  firm’s records during a divorce. What Pappas did not realize was that Matsa was  involved in a tax-fraud scheme that became part of an investigation by the Internal  Revenue Service and the U.S. Department of Justice. During the investigation  and under oath to a federal grand jury, Pappas repeatedly stated that he was  the owner of Matsa’s law firm. Pappas eventually cooperated with the federal  government’s investigation into Matsa and agreed to a plea deal for making  false statements. Pappas was sentenced in June 2012 by a federal judge to  probation for a year, including four months of home confinement.

Due to mitigating circumstances, including that  Pappas did not financially benefit from misrepresenting his ownership of the  law firm and that he eventually made “a good-faith effort to rectify the  consequences of his misconduct,” the Supreme Court agreed to the two-year  suspension but decided against granting Pappas any credit for the time he has  already served under his interim felony suspension.

Joining the majority were Chief  Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon  L. Kennedy, Judith L. French, and William M. O’Neill.

Justice  Terrence O’Donnell filed a dissenting opinion stating that Pappas should be  disbarred.

“The  egregious conduct Pappas engaged in, particularly with respect to IRS agents,  and his testimony before a grand jury and representations to the Department of  Justice adversely affect the administration of justice,” Justice O’Donnell  wrote. “In my view, a two-year suspension with no credit for time served under  the interim felony suspension is not an appropriate sanction.”

Pappas  had also been sanctioned and suspended before for failing to comply with  continuing legal education requirement and failing to register.

2013-1625. Disciplinary Counsel v. Pappas, Slip  Opinion No. 2014-Ohio-3676.

(Mike Frisch)

September 5, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

In The Footsteps Of Lincoln

The Illinois Administrator has filed a complaint alleging ethical violation by an Springfield City alderman:

As an alderman, Respondent became one of 10  aldermen who, along with the mayor, formed the legislative branch of the city  government and exercised the powers and duties of that branch of government.  Those powers and duties included, among other powers and duties, the approval of  line-item budgets for city departments, including the police department; the  passage or amendment of ordinances that govern the structure and operations of  city departments, including the police department; the approval of appointments  to certain positions, boards and commissions, including the position of Chief of  Police, and including the Springfield Civil Service Commission, which had  authority in the hiring of police officers; the approval of collective  bargaining agreements with employees' unions, including the Police Benevolent  and Protective Association ("PBPA"), which represented police officers,  detectives and sergeants; and the approval of all expenditures by the city in  excess of $100,000.

Thr gravamen of the complaint is that the attorney represented private clients in conflict with his duties as an alderman. (Mike Frisch)

September 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suit For Legal Fees Subject To Mandatory Arbitration In D.C.

The District of Columbia Court of Appeals has held that a suit initiated by a law firm for unpaid fees must be sent to the Bar's arbitration program on the former client's demand.

Judge Fisher noted that

BTP, a biotechnology firm, retained [Ludwig & Robinson] as counsel in March 2011 to help resolve a trade secret dispute. The dispute was settled in May 2012, L&R having billed BTP on a monthly basis during the course of its representation. By June 2012 L&R claimed that BTP owed approximately $1.7 million in outstanding legal fees, disbursements, and expenses. In January 2013 L&R brought suit to collect its fees.

Several weeks later, BTP responded to the complaint by filing a motion to stay the trial court proceedings and compel arbitration. In addition to claiming that L&R had expressly agreed to arbitrate the fee dispute, BTP argued that a binding agreement to arbitrate had been formed by operation of law. BTP cited Rule 8 of the D.C. Bar‟s Attorney/Client Arbitration Board ("ACAB"), which states that "if a client files a petition to arbitrate a fee dispute with a lawyer, the lawyer is deemed to have agreed to arbitrate."

Significantly, the court upheld the Bar's mandatory arbitration regime

L&R contends that this court lacked authority to promulgate Bar Rule XIII. Quite to the contrary, this court possesses broad authority to regulate the practice of law, deriving much of this power from the District of Columbia Court Reorganization Act of 1970. A portion of that Act, passed by Congress, provides that "[t]he District of Columbia Court of Appeals shall make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion." D.C. Code § 11-2501 (a) (2012 Repl.). Beyond this broad statutory grant of authority, the court possesses significant inherent authority as well. In Sitcov v. District of Columbia Bar, we relied upon the "almost universally accepted" proposition "that the highest court in the jurisdiction is imbued with the inherent authority to define, regulate, and control the practice of law in that jurisdiction." 885 A.2d 289, 297 (D.C. 2005) (quoting Brookens v. Comm. on Unauthorized Practice of Law, 538 A.2d 1120, 1125 (D.C. 1988)).

The court rejected the contention that arbitration violated the law firm's Seventh Amendment jury trial rights.

The trial court had erred in declining to enforce the valid arbitration agreement. (Mike Frisch)

September 4, 2014 in Billable Hours | Permalink | Comments (0) | TrackBack (0)

"A Bully And Clown"

The Tennessee Supreme Court has upheld a 30-day suspension of an attorney who called a bankruptcy judge "a bully and clown" in an email sent several months after his fee petition had been denied.

The court

A federal bankruptcy court entered judgment denying a Nashville attorney’s application for approximately $372,000 in attorney’s fees and expenses. Nine months later, the attorney emailed the bankruptcy judge who denied his fee application, calling the judge a “bully and clown” and demanding that he provide a written apology for denying the fee application.

The Board of Professional Responsibility instituted a disciplinary action against the attorney, and a hearing panel of the Board found that the attorney violated several Rules of Professional Conduct by sending the email and recommended that the attorney be suspended from the practice of law for thirty days. The chancery court modified the hearing panel’s judgment to include additional violations for misconduct associated with the attorney’s briefs filed in the district court but affirmed the remainder of the hearing panel’s judgment. The attorney timely appealed to this Court. We affirm the hearing panel’s conclusion that the attorney’s email violated the rule against ex parte communications and was also sanctionable as “conduct intended to disrupt a tribunal.” We conclude, however, that the hearing panel erred by finding the attorney in violation of the ethical rule that prohibits attorneys from making false statements about the qualifications or integrity of a judge. We also reverse the chancery court’s modification of the hearing panel’s judgment. We affirm the attorney’s thirty-day suspension from the practice of law.

Justice Clark concurred. She would ground the sanction in a Rule 8.2 violation.

Justice Wade also issued a concurring opinion.

Both concurring opinions raise interesting issues as to what rule pigeonhole is the correct one for disrepectful language to a judge. The complicating factor was that the proceeding had ended several months prior to the email (Mike Frisch)

September 4, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 3, 2014

Gambling Man Disbarred

From the web page of the Ohio Supreme Court (per Kathleen Maloney)

Stephen  L. Becker of Lima was disbarred by the court for misappropriating funds  entrusted to him as guardian for his nephew, caretaker for his aunt, and  executor of his aunt’s estate following her death, as well as in several other  client matters. Becker’s misconduct primarily fueled a gambling addiction, the  court stated in its decision.

In  1983, Becker was appointed as guardian of the estate of his nephew, who was  then a minor and suffers from severe developmental disabilities. Becker made  various “loans” from the guardian account to friends, his daughter, and  himself. The loans were not disclosed, as required, to the probate court.

Becker  also cared for an elderly aunt for more than 20 years. He was named her power  of attorney, and they shared a joint bank account. In July and August 2005,  Becker wrote $37,000 in checks to four casinos. Between October and December,  he withdrew $9,500 in cash from the account, wrote three checks to casinos  totaling $22,000, and took $25,000 from the account to repay money he had  improperly taken from his nephew. The court noted other misappropriations in  2007, 2008, and 2010.

After  his aunt died, Becker, as executor of her estate, also inappropriately used  funds and intentionally filed false and misleading reports about how the money  was used and distributed to his aunt’s beneficiaries.

In the  court’s unanimous decision, Justice Paul E. Pfeifer wrote that it is clear  Becker has a gambling addiction given the substantial amount of money he paid  to casinos from these accounts. While a gambling problem could be mitigating in some cases, Justice  Pfeifer noted that “Becker’s failure to pursue any kind of consistent help for  his problem eliminates this factor as possible mitigation.”

He  concluded, “[W]e have consistently stated that ‘the primary purpose of the  disciplinary process is not to punish the offender but to protect the public  from lawyers who are unworthy of the trust and confidence essential to the  attorney-client relationship.’ … In this case, it is obvious that an extreme sanction  is necessary to protect the public. … Given the extent and duration of the  various misappropriations and the helplessness of some of the victims  (including a disabled nephew and an elderly aunt), we are confident that  disbarment is the appropriate sanction.”

2013-1257. Disciplinary  Counsel v. Becker, Slip  Opinion No. 2014-Ohio-3665.

(Mike Frisch)

September 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bribed Prosecutor Resigns From Bar

The Indiana Supreme Court accepted the resignation of an attorney convicted of bribery.

IndyStar had this report on the conviction

Former deputy prosecutor David Wyser's after-the-fact acceptance of a $2,500 reward for approving the early release of a convicted killer was a "wobble" in an otherwise unblemished career of public service, federal Judge Sarah Evans Barker said Monday as she sentenced Wyser to three years of probation.

The sentence, which will begin in January with six months of house arrest at Wyser's home in Nevada, was significantly less than the 15 to 21 months in prison sought by federal prosecutors.

And from the Herald Bulletin

The Indiana Supreme Court has accepted the resignation of former Marion County Deputy Prosecutor David Wyser from the practice of law in Indiana.                                                                                

Wyser was placed on an indefinite suspension in February after pleading guilty to bribery charges. Rather than try and fight the suspension, he chose to resign from the Indiana Bar which the court accepted last week.

In 2009, while working in the Marion County prosecutor's office, he accepted a bribe of $2,500 from the father of a convicted murderer Wyser was representing. The bribe was made as a political donation when Wyser was running for Marion County prosecutor. In exchange, Wyser was able to get his client's sentence reduced from 110 years to 70 years to time served after the contributions.

Wyser is now banned from practicing law in Indiana for at least five years when he may apply for reinstatement if he chooses. 

He had worked in Madison County as a deputy prosecutor from January 2012 to May 2013, but resigned after the allegations of bribery. The case was not connected to his work in Madison County, Prosecutor Rodney Cummings said in previous news stories.

(Mike Frisch)

September 3, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 2, 2014

Mother's Day

A case highlight from the September 2014 edition of the California Bar Journal

A San Francisco Bay Area attorney has lost her license to practice law for using the legal system to try to control her adult son and for misappropriating his settlement funds. ELIZABETH M. BARNSON KARNAZES [#118922], 59, of Foster City, was disbarred June 13, 2014 and ordered to make restitution and comply with rule 9.20 of the California Rules of Court.

Karnazes was initially reviewed on evidence of nine counts of misconduct, but the Review Department of the State Bar Court ultimately found her culpable of seven of those charges, including failing to maintain records of client funds or maintain client funds in her client trust account and of misappropriation and commingling. The three-judge panel wrote that Karnazes was so focused on controlling her son, Zachary, that she lost sight of her ethical obligations.

“Ignoring his desperate need for his funds, Karnazes utilized her position as Zachary’s attorney to escalate the pressure she applied on him over a three-year period when she continued to refuse payment, and ultimately attempted to take control by becoming conservator of his estate,” Joann M. Remke, then the State Bar Court’s presiding judge, wrote on behalf of the panel.

“This conduct illustrates the danger of an attorney, trained in persuasion and in a superior position to exert influence, who uses such skills and circumstances to force a client – in this case, her son – to bow to her wishes,” Remke wrote.

In January 2005, Karnazes signed a fee agreement to provide legal services for her son, who was 18 at the time, and ultimately represented him in at least three different lawsuits. One was for injuries Zachary allegedly suffered in a drug treatment program; another for injuries allegedly suffered when a school administrator abused him on a camping trip; and a third for injuries he allegedly suffered due to physical abuse.

Karnazes settled the first two lawsuits in 2009 for $40,000 and $60,000 respectively, depositing the money in her client trust account. After attorney fees and $7,500 Karnazes had given him as an advance were deducted, Zachary was entitled to $33,739.45. Despite numerous requests in person and by telephone, Karnazes did not give him the money, leading him to send her five written requests in October and November. At the time, her son had been unemployed since May 2008 and was living on disability payments.

“He had to travel by bus to and from medical appointments, could not afford his own telephone and ate free meals at a soup kitchen,” Remke wrote. “Despite Zachary’s requests for payment, Karnazes did not distribute his funds. Instead, she accused him of hating her and abandoning her when she needed him most.”

In August 2009, Karnazes deposited a check for $97,750, money she drew against her home equity account, into her client trust account, immediately withdrawing $50,000. A few months later, she deposited another $22,500 of her own funds into the account and gradually withdrew it over time.

Zachary filed a complaint with the State Bar the following summer over his mother’s refusal to give him his settlement money. Several months later, Karnazes filed a petition in San Mateo County Superior Court seeking to be appointed conservator of Zachary’s estate. At the time she was still representing him in the third lawsuit she filed on his behalf and claimed he was 100 percent disabled for mental health reasons. The court ultimately denied Karnazes’ petition with prejudice, concluding Zachary was capable of making his own decisions. The court of appeal affirmed the decision and the California Supreme Court denied Karnazes’ petition for review.

Meanwhile, in 2010 Karnazes obtained a default judgment in her son’s third lawsuit and deposited $56,995 she received from the defendant’s insurance company in her client trust account. At that point, after deducting her fees and costs, Karnazes owed her son at least $57,496.15. On March 29, 2011, she offered to give Zachary a cashier’s check for $63,000 on condition that he release his right to any disputed funds from the settlements and not discuss the terms of their agreement. Zachary refused the offer.

On June 21, 2012, four days before the start of her disciplinary trial, Karnazes gave Zachary a check for $53,507.97 and an accounting that omitted multiple withdrawals from the client trust account, failed to account for the whole time she was holding his funds and overstated her attorney fees. Assuming the costs she was claiming were accurate, Karnazes should have paid him $3,988.18 more than she gave him. She was ordered to pay that amount plus interest in restitution.

Karnazes had one prior record of discipline, a January 2010 public reproval that followed her misdemeanor conviction for trespassing. Karnazes was initially charged with grand theft and theft from a merchant for stealing items from two stores, but pleaded not guilty by reason of insanity. Two court-appointed doctors examined her and concluded she was sane at the time of the thefts. The district attorney amended the charges to include a misdemeanor trespass violation and Karnazes pleaded no contest to that charge.

(Mike Frisch)

September 2, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Attorney Reprimanded, Conviction Of Client Reversed

The Arkansas Professional Conduct Committee - Panel A - has reprimanded an attorney who engaged in a conflict of interest by representing both husband and wife in a case involving felony sexual abuse allegations made by the wife's daughter

The conduct of Max M. Horner, Jr. violated AR Rule 1.7(a) in that (1) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest; and his representation of Mrs. Rackley was directly adverse to Horner’s stated trial defense strategy for her husband. (2) Horner jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter, and Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mr. Rackley would be materially limited by the lawyer's responsibilities to Horner’s other joint client, Mrs. Rackley. (3) Horner attempted to jointly represented both Marcus Rackley and his wife Cynthia Rackley in serious criminal charges arising from the same matter; Horner represented Marcus Rackley at a jury trial in which he received a thirty-seven year prison sentence, where Horner had a concurrent conflict of interest, and there was a significant risk that the representation of Mrs. Rackley would be materially limited by the lawyer's responsibilities to another client, Mr. Rackley; and at Mr. Rackley’s trial, Horner had Mrs. Rackley take the Fifth Amendment to attempt to keep her testimony from Mr. Rackley’s jury, when her testimony clearly might have been favorable to Mr. Rackley, especially to counter or explain adverse testimony by State witnesses Luebke and Thessing about their conversations with Mrs. Rackley. Arkansas Rule 1.7(a) requires that, except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.

The husband's conviction was reversed as a result by the Arkansas Supreme Court

Because Mr. Horner was required under his ethical obligation to adequately represent both clients’ interests, even if conflicting, he was not free to explore all avenues in developing his trial strategy to present the best possible defense for appellant at trial. In developing his impeded trial strategy, Mr. Horner ethically could not ignore the fact that Mrs. Walters’ testimony, whether favorable to appellant or not, could further implicate her as well. Therefore, even though he testified that he believed that her interests were “united” with appellant’s, he was faced with the ethical dilemma of representing two clients simultaneously who had conflicting interests.

(Mike Frisch)

September 2, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Theft From Elderly Client Draws Prison, Disbarment

A Virginia attorney has consented to disbarment in the wake of a criminal conviction.

The Washington Post reported on the offense

A Fairfax County attorney was sentenced to six years in prison Thursday for embezzling nearly $500,000 while he was entrusted to care for an elderly woman and her estate, according to the Virginia attorney general’s office.

James G. Kincheloe, Jr., 67, who lives in Fauquier County, was convicted of a single count of embezzlement in the case in Fairfax County Circuit court in July. Kincheloe entered an Alford plea, meaning he did not admit guilt but acknowledged that prosecutors had enough evidence for a conviction.

Fairfax County Judge Jane M. Roush ruled that Kincheloe will have to repay more than $483,000 to the estate of Pearl Buckley, a Fairfax City resident who died in 2009 at the age of 90. A separate civil suit by the family claimed almost $900,000 was taken from Buckley.

(Mike Frisch)

September 2, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fan Barred From UNC For Harassing Student Athletes

The University of North Carolina did not violate the First Amendment rights of a former student and "dedicated fan" by permanently barring him from athletic events, according to a decision of the North Carolina Court of Appeals.

The 1970 graduate served as an usher at games and acted as described below

Petitioner made sexually suggestive comments to female UNC Athletics staff members, traveled to UNC women’s soccer matches and appeared at the hotel where the players were staying and harassed the players, and alienated fans by openly criticizing players in front of their family members during the game while serving as an usher and representative of UNC Athletics. Petitioner also harassed staff members by repeatedly calling various UNC Athletics offices up to 13 times per day.

The events that led to the lifetime ban arise from an incident that occurred in December 2012 at the Women’s Soccer College Cup tournament in San Diego. Petitioner had previously attempted to communicate with several female soccer players both in person and via Facebook. At the Soccer College Cup, petitioner found out which hotel the players were staying, allegedly “because he won an autographed soccer ball and couldn’t locate the head coach’s signature on the ball.” Petitioner claims that he wanted to find the head coach so he could locate his signature on the ball. The parents of the players felt uncomfortable with petitioner ’s uninvited presence at the hotel, especially given his previous attempts to communicate with several female players. Petitioner was asked to leave, and did so.

The court concluded that the University acted appropriately to prevent harassment of its students.

Lesser sanctions had not curbed the offensive behavior. (Mike Frisch)

September 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Rocky Mountain Bye

There has been a fair amount of discussion about the ethical issues that attorneys may face in representing clients in the medical (and legal in some states) marijuana business.

Colorado leads the way and has what may be a first -- an attorney disbarred for misconduct in the representation of a medical marijuana business.

Howver, the reasons for the sanction are not on the cutting edge of client representation

Respondent presented fabricated documents and false statements to the People during a disciplinary investigation, which prevented the disciplinary system from functioning as the Colorado Supreme Court intended that it should. He produced those same documents in the GreenVisionTek litigation and testified to their authenticity at trial. Because his falsifications and misrepresentations reflect such a complete deviation from the appropriate ethical standards for members of the legal profession, the Hearing Board concludes that Respondent must be disbarred.

The attorney's client was the seller of the business. He fabricated emails to insert the suggestion that he had so advised the potential buyer.

The false emails initially were produced in response to bar investigation resulting from opposing counsel's complaint over the attorney's handling of his secrow account. The emails were then produced in civil litigation. (Mike Frisch)

September 2, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2014

Hello You Must Be Going

An Oklahoma attorney found to have engaged in unauthorized Colorado practice has been disbarred in Colorado.

The attorney had purchased two Colorado accounting firms in partnership with a Colorado accountant. Over a three-year period, he set up multiple law offices in Colorado and held himself out a licensed to practice out of those offices.

He applied for Colorado bar admission but abandoned the effort after failing to provide information sought in connection with the application.

Another example (there are many others) of losing a license that never was granted. (Mike Frisch)

August 29, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Life Without Parole For Juveniles Prohibition Given Retroactive Effect

The New Hampshire Supreme Court has held that decision of the United States Supreme Court prohibiting mandatory life sentences without the possibility of parole for juvenile offenders must be applied retroactively to persons convicted prior to the high court's decision.

The decision here applies to, among others, a defendant in the high profile Dartmouth College murder case.

Also benefitting from the court's holding is a defendant who murdered both of his parents. (Mike Frisch)

August 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Clear And Convincing Evidence Required For Revocation Of Disciplinary Probation

The standard of proof for a violation of disciplinary probation is clear and convincing evidence, according to a recent decision of the North Dakota Supreme Court.

The court found that the attorney-probationer had charged excessive fees and failed to supervise non-lawyer staff

 the billing records provided by [the attorney] reflect that she double-billed, she billed for overhead items, and she billed at the wrong hourly rate...

[She] argues her fee is reasonable even though it contains minor billing errors because, she claims, a bill containing de minimus billing errors has never resulted in discipline in North Dakota. She also argues she performed a substantial amount of legal work which was not billed and which was substantially greater than the total amount of billing errors. Despite these contentions, [her] improper billing previously discussed is sufficient to establish that her fee is unreasonable...

There is a dissent as to sanction

Upon revocation, we must determine the appropriate length of suspension. The majority does not answer this directly; instead suspending [the attorney] for 30 days in a combination of imposing new discipline and revoking the stayed suspension. I respectfully disagree with the adequacy of that action as it relates to revocation of the stayed suspension. I made plain in the 2011 proceeding that I thought a 90-day suspension was appropriate and that staying the suspension was ill-advised. See Kellington, 2011 ND 241, ¶ 19, 809 N.W.2d 298 (Crothers, J., dissenting). I continue to believe principles of graduated and proportional discipline require revocation of the stay and imposition of suspension for the full original 90 days. That is especially true when viewed in the context of this disciplinary proceeding, which is [her] eighth since 1996. See id. at ¶ 16 (Crothers, J., dissenting).

(Mike Frisch)

August 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

The Colbert Report

An attorney convicted of a tax offense has been suspended for two years by the New York Appellate Division for the Second Judicial Department.

The court noted

In determining the appropriate measure of discipline to impose, the respondent asks that the Court consider the following mitigating factors: his excellent reputation—both personally and professionally—for honesty, integrity, and conscientious adherence to standards of professional ethics; the aberrational nature of his misconduct; his full and complete acceptance of responsibility for his misconduct; his genuine remorse and contrition; his prompt and full restitution to the Internal Revenue Service; the unrelated nature of the misconduct to the practice of law; the lack of harm to any client; his two decades of practice with an unblemished disciplinary record; the price he has already paid professionally (leaving a law partnership he helped to create); time already spent under interim suspension; his community and volunteer activities; his devotion to his family; and the crucial role the respondent plays in the ongoing psychological rehabilitation of his son.

Notwithstanding the aforementioned mitigating factors, the respondent knowingly filed false returns for several years, taking deductions and reporting losses to which he was not entitled, and thereafter engaged in conduct to cover up his criminal conduct. The respondent earned substantial income during the years in question, and when audited, could easily have paid the back taxes, penalties, and interest, but chose instead to lie to the Internal Revenue Service, engaging in deceitful and obstructive conduct. He conceded that he had no justification for his misconduct, other than the fact that he had chosen a lifestyle above his means.

The court gave credit for time served on interim suspension for the conviction. (Mike Frisch)

August 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)