Monday, June 19, 2017

Never, Ever

The Ohio Board on Professional Conduct proposes a reprimand of a common pleas court magistrate who advised police of her judicial position when stopped for a suspected DUI

Respondent testified that she had had a few drinks, waited three hours before driving, thought he was fine, had committed to be the designated driver and promised her friend a ride home. She thought she was fine to drive. She will never, ever do that again.

She had advised the police that she was a judge, that her son was a Secret Service officer, that she had not flunked the field sobriety test and "would not be driving drunk."

The magistrate pled guilty to misdemeanor reckless driving. (Mike Frisch)

June 19, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (1)

Unneighborly

The Idaho Supreme Court has affirmed the dismissal of a legal malpractice claim 

[Plaintiff] Greenfield hired Smith in September 2010 to represent her in a civil suit against her neighbors, Eric and Rosalynn Wurmlinger, for the alleged illegal operation of a bed and breakfast in their home. While the suit was pending, Greenfield was charged criminally with malicious injury to the Wurmlingers’ property. Greenfield retained Smith to represent her in the criminal matter as well.

Smith represented Greenfield for approximately eighteen months. During that time, Greenfield was acquitted of the criminal charges. The civil case was scheduled to go to trial in May 2012. In February 2012, Smith filed a motion to withdraw from representing Greenfield. Smith’s basis for the motion was that the attorney-client relationship had broken down to the point where he was no longer able to represent Greenfield. The district court granted the motion on March 8, 2012.

Following Smith’s withdrawal, the district court rescheduled the civil trial for November 26, 2012. Greenfield represented herself at trial, and the jury returned a verdict in favor of the neighbors on November 30, 2012. The jury awarded $52,000 in damages for negligent infliction of emotional distress and $17,000 in damages for timber trespass which were then trebled. The district court also awarded the neighbors’ attorney’s fees and costs. The total judgment entered by the district court was $168,755.37. Greenfield appealed to this Court, and we affirmed the judgment and awarded additional attorney’s fees and costs to the neighbors. Greenfield v. Wurmlinger, 158 Idaho 591, 349 P.3d 1182 (2015).

The legal malpractice suit was filed on December 1, 2014.

The court found that the lower court properly dismissed fraud claims that were not pled with sufficient particularity as well as claims not subject to the malpractice statute of limitations.

There is no dispute that Smith is a licensed attorney. All of Greenfield’s claims arise out of Smith’s alleged failure to perform services in connection with his representation of her. While Greenfield argues that this is really a breach of contract action, she has not pointed to any provision in her written agreement with Smith which he breached. We have reviewed the contract, and there are no provisions which guarantee the outcome of the representation or specify an elevated standard of care because we are unable to find a particular contractual provision that has been breached, we hold that the district court correctly treated all claims as being subject to the professional malpractice two-year statute of limitations.

Plaintiff just beat the statute

Based on the district court’s “some damage” finding, the statute of limitations would have run in this case on November 30, 2014—exactly two years from the date of the adverse verdict—except that it fell on a Sunday. The Idaho Code contains several provisions specifying how time is to be computed when construing statutes. Section 73-109 contains the well recognized rule that the time to perform a specific act is computed by excluding the first day, and including the last unless the last is a holiday...November 30, 2014 was a holiday so it was excluded from the two-year statute of limitations. This means that the last day for Greenfield to file a malpractice action for the civil claim matters was December 1, 2014. Thus, her complaint was timely, and the district court erred in finding otherwise. It is important to note that our conclusion does not apply to the criminal matter claims. Greenfield did not challenge the district court’s determination that the statute of limitations for the criminal matter claims started to run when she was acquitted on October 13, 2011. The district court correctly determined that the criminal matter claims were untimely.

But lost on the merits

These alleged deficiencies are not simple matters like an attorney allowing a statute of limitations to run. Take for example, the allegation that Smith’s performance was deficient because he did not file a motion for summary judgment on the neighbors’ counterclaims. Who controls the decision to file a motion for summary judgment? The attorney or the client? Under what circumstances is a motion for summary judgment appropriate? Would such a motion have been appropriate in Greenfield’s civil case? Did Greenfield have “some chance of success” of prevailing on such a motion? While Greenfield can certainly testify about the fact that Smith did not file a motion for summary judgment in the underlying civil case, she does not have the knowledge or expertise to answer the questions posed and neither does a jury. Greenfield needed an expert to address these types of questions in an affidavit when Smith filed his motion for summary judgment. Without expert testimony, Greenfield could not demonstrate that there were genuine issues of material fact as to whether Smith’s performance fell below the standard of care or proximately caused her damages. As such, the district court properly granted summary judgment in favor of Smith.

The Coeur d'Alene/Post Falls Press had the story of a dispute rooted in a tree-trimming issue. (Mike Frisch)

June 19, 2017 in Clients | Permalink | Comments (0)

Incredible But Not Dishonest

An unpublished opinion of the California State Bar Court Review Department concludes that an attorney accused of ethics violations cannot claim ineffective assistance of counsel

Fletcher argues that he was denied a fair trial because he received ineffective assistance of counsel. Specifically, he asserts that his counsel’s lack of understanding of State Bar hearing procedures prejudiced him. However, the Supreme Court has held that the right to effective assistance of counsel depends on a demonstrated right to counsel, which does not exist in disciplinary proceedings. (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) Thus, an assertion of ineffective assistance of counsel has no merit here. The Supreme Court has made clear that a respondent’s “only due process entitlement is to a fair hearing overall. [Citations.]” (Dahlman v. State Bar (1990) 50 Cal.3d 1088, 1094-1095.) The hearing judge provided Fletcher with a fair hearing, as required.

The attorney accepted fees from third parties to defend a client charged with murder and had failed to comply with the required formalities for such an arrangement

First, Fletcher asserts that he did not violate rule 3-310(F) because he represented Daniel on a pro bono basis. We affirm the hearing judge’s finding that this assertion is not credible. The fact that Fletcher never returned the funds given to him by Gonzales and C. Daniel is inconsistent with his assertion that his services were pro bono. Alternatively, Fletcher admits  that he did not comply with rule 3-310(F), but asserts that it was only a technical violation as Daniel testified that he knew that Gonzales and C. Daniel were paying his fees. However, Daniel’s awareness cannot substitute for the informed written consent required by the rule. Fletcher further states that any violation is not willful since he did not know that he had received funds for Daniel’s fees because his accountant and office staff handled his bank account. But he is not relieved of his nondelegable responsibility to comply with the rules regarding client funds because someone else manages his bank accounts.

One aggravating factor was prior discipline.

In the first case, no. 03-O-02625, Fletcher stipulated to culpability under section 6068, subdivision (b), for failing to maintain the respect due to courts and judicial officers based on nine acts of contempt in a criminal trial, including laughing at the judge and accusing him of racial bias. Fletcher was sentenced to two days in jail and fined $400 for these acts of contempt. In the second case, no. 05-O-04499, Fletcher stipulated to culpability under section 6068, subdivision (b), for arriving late to a trial, refusing to explain his tardiness, and accusing the judge of racial prejudice. The judge ordered sanctions of $1,000 for this behavior. 

Re the attorney's story

The hearing judge assigned “serious” aggravation for “hard to believe” testimony, based on language in Brockway v. State Bar (1991) 53 Cal.3d 51, which analyzed aggravation for lack of candor under former standard 1.2(b)(vi). The judge found that “almost all” of Fletcher’s testimony was inherently implausible. Unlike the candor finding in Brockway, this finding appears to focus on Fletcher’s lack of credibility, not his dishonesty. The hearing judge did not make an express finding that the testimony lacked candor or was dishonest. Absent such a finding, we decline to assign aggravation for lack of candor.

The court proposes a stayed one-year suspension with probation, rejecting the Hearing Department's recommended 45-day suspension. The OCTC supported suspension as well.  (Mike Frisch)

June 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 18, 2017

Virginia Revokes License Of Alleged Charity Embezzler

The Virginia State Bar Disciplinary Board has accepted the consent revocation of an attorney charged with embezzlement of charitable donations

The New York Daily News recently  reported

The head of the National Vietnam Veterans Foundation was charged with fraud and embezzling nearly $150,000 from the charity and spending it at clubs, hotels and restaurants in Maryland.

John Thomas Burch, a veteran who worked as an attorney for the Department of Veteran Affairs, is accused of skimming money from the charity between 2012 and 2016, according to a recently filed lawsuit.

He was able to easily access the funds as he had “unilateral control over the distribution of smaller grants,” typically between $100 and $300, for the foundation’s “Emergency Assistance Program.”

According to its tax filing, the Vietnam Veterans Foundation pulled in nearly $30 million in donations between 2010 and 2014 — but less than 2% was actually put toward veterans in need, CNN reported.

The 2014 tax returns indicate a series of expenses paid for by donations including $133,000 for travel, $21,000 for unnamed “awards,” $70,000 for “other expenses” and just more than $8,000 on parking. The majority of the remaining funds were given to professional fundraisers and telemarketers.

Overall, the charity in 2014 accounted for just $122,000 in donations out of more than $8.5 million.

Charity Navigator, a well-known watchdog organization, previously gave the National Vietnam Veterans Association a zero-star rating on a four-star scale.

The charity — which claimed to partake in noble ventures including feeding homeless and unemployed veterans and donating care kits to hospitalized veterans — permanently closed down in September 2016 following a CNN investigation.

Its supposed mission was “to provide help and support for American Veterans and their families through the generosity of the American people.”

The findings of the New York Attorney General are appended to the revocation order and includes the allegation that he used Foundation funds to

support his expensive lifestyle and tastes... ordering excessive and expensive food and drink at meals at the country's top restaurants and lavishing gifts (monetary and otherwise) on women that had either no or only a tangential relationship to a veteran. 

The AG found that he had spent $800 at a Baltimore nightclub and categorized the expense as "work on homelessness" and on veteran's issues.  (Mike Frisch)

June 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 17, 2017

New Jersey Holds SEC Sanction No Basis For Reciprocal Discipline

The New Jersey Supreme Court has declined to impose reciprocal discipline based on a sanction imposed by the Securities and Exchange Commission.

The court held that there was no jurisdiction to impose discipline based on the SEC order, described here in an SEC press release.

In March 2010, the SEC charged Richard Verdiramo, RECOV Energy Corp.’s former Chairman, CEO, President, and CFO, with, among other things, committing fraud and violating the securities registration requirements based on his issuances of RECOV stock for his and his father’s personal benefit. The SEC charged his father, Vincent Verdiramo, an attorney who facilitated the misconduct and who was a recipient of some of the RECOV stock, with aiding and abetting his son’s fraud and with violating the securities registration requirements. 

The Court previously ordered all of the injunctive relief sought by the Commission in its Complaint against both Richard and Vincent Verdiramo for all of their misconduct.  The Court had also previously ordered the defendants to pay full disgorgement for their violations of the securities registration requirements, including holding Richard Verdiramo jointly and severally liable with other defendants.  In November 2011, the SEC issued an order suspending Vincent Verdiramo from appearing or practicing before the SEC as an attorney.

The SEC complaint is linked here. 

The Disciplinary Review Board surveyed the law and concluded that the SEC order was not a basis to impose reciprocal sanctions. 

In our view, the reasoning of the Supreme Courts of Florida and Ohio is sound and, thus, we have concluded that we are without jurisdiction to impose reciprocal discipline on respondent based on the SEC’s order of suspension. First,  no SEC bar or rules of professional conduct exist that apply to lawyers who practice before it. Second, even though the SEC may discipline anyone for unethical or improper professional conduct, respondent was not suspended on this ground. Thus, the SEC order permanently suspending respondent from appearing before it cannot be considered a disciplinary order within the meaning of R. 1:20-4(e)(4). Accordingly, we lack jurisdiction to consider the motion for reciprocal discipline.

Background

This matter was before us on a motion for reciprocal discipline, pursuant to R. 1:20-14, filed by the Office of Attorney Ethics (OAE), following the entry of an order, in a public administrative proceeding instituted by the United States Securities and Exchange Commission (SEC), pursuant to Rule 102(e)(3) of the SEC’s Rules of Practice, temporarily suspending respondent from "appearing or practicing before the [SEC] as an attorney."

The attorney previously had been suspended as a result of a criminal conviction.

On May 31, 1984, the Court imposed on respondent what amounted to a seven-and-a-half-year (time-served) suspension as a result of his September 28, 1976 guilty plea to the charge of influencing a witness.

The conviction involved his representation of Rep. Henry Helstoski as documented in the court's suspension order.

In 1975, the respondent, who was primarily involved in criminal law matters, was acting as an Administrative Aide to Congressman Henry Helstoski. He was also a member of the Congressman's team of defense attorneys who represented Helstoski in a federal criminal matter. On April 17, 1976, the respondent, who had just returned from a trip to Atlanta, received a telephone message to call Helstoski. At Helstoski's request, the respondent drove directly to Helstoski's office. Helstoski introduced respondent to Joel Urdang, who was about to testify before a federal Grand Jury with regard to Helstoski's alleged failure to report certain income to the Internal Revenue Service. The respondent was aware that an individual named John Mazella, an employee of Helstoski, had previously testified before the Grand Jury and had made certain misstatements during his testimony. The respondent knew that Urdang's testimony could contradict that of Mazella. Thus, during this conversation with Urdang, the respondent stated "Look, do me a favor. Just don't hurt the old guy, will you?" The respondent testified at a hearing before the District VI Ethics Committee that he was trying to protect Mazella, who was old, was in questionable health, and had a nice family. Mazella was "a genuinely nice human being who screwed up what checks went into what account." [Reference to transcript omitted.] His conversation with Urdang lasted about one and one half minutes. At the time the respondent spoke to Urdang concerning Mazella he was aware that he was asking Urdang to lie before the Grand Jury. [Reference to transcript omitted.] On June 2, 1976, the respondent was charged in two counts of a twelve count indictment with obstruction of justice in violation of 18 U.S.C. § 371 and influencing a witness in violation of 18 U.S.C. § 1503. The respondent entered a guilty plea on September 28, 1976 to the charge of influencing a witness. On September 21, 1977, the respondent was sentenced to a term of five years imprisonment, with the suspension of all but 60 days of that term, and probation for the remaining four years and ten months. A fine of $2,500 was assessed as a condition of probation. Execution of sentence was stayed until October 11, 1977. The remaining Count of that indictment against the respondent was dismissed.

(Mike Frisch)

June 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 16, 2017

Default Is In Our Stars

The District of Columbia Board on Professional Responsibility adopted a hearing committee's findings and disbarment recommendation in a matter involving misappropriation of client funds.

The board noted the respondent attorney's failure to participate and post-charge delaying tactics.

Disciplinary (then Bar) Counsel received the complaints in 2007 and 2009. In 2013, charges were filed in those two matters. 

When the initial charges were filed

Disciplinary Counsel first charged Respondent with violations arising out of the Fortune and Silver matters. The Hearing Committee started a hearing in April 2014, but, due to an unfortunate accident suffered by Respondent's counsel, the hearing had to be continued. In July 2014, Respondent terminated her counsel and simply stopped meaningfully participating in the hearing process. Instead, she filed a number of requests to postpone or reschedule hearings. These filings were generally last-minute and untimely. Despite requests for some evidentiary support from the Hearing Committee, Respondent consistently chose not to substantiate her statements that she repeatedly needed to reschedule hearings at the last minute. Nonetheless, the Hearing Committee granted the extensions.

Her strategy of avoidance was effective if unorthodox, dragging out an open-and-shut disbarment for over three years.

This case has languished in the disciplinary system far longer than is ideal, particularly where the misconduct that warrants disbarment-misappropriation-was largely a matter of straightforward math under Edwards.

The Hearing Committee granted continuances as Respondent requested them. If a Respondent requests more than one continuance based on a factual representation about a conflicting obligation, a medical necessity, or something similar, it would be appropriate for the Hearing Committee to condition further extensions on an evidentiary showing.- Without such a practice, a lawyer could delay the imposition of discipline far longer than would be necessary to comport with due process. This is particularly true when a respondent has a pattern of using such delay tactics. There is a line between appropriately accommodating a respondent's schedule and allowing abuse. Where that line lies turns on questions of fact, hearing committees should not be shy about demanding evidence when they are asked to repeatedly reschedule hearings or other dates.

Disciplinary Counsel argues that one remedy for the delay in this case, at least at the Board level, is for this Board to find that a respondent waives any argument not made to a hearing committee. ODC Br. at 13-16. There is no clear authority that supports the proposition that a failure to raise an issue before a hearing committee waives a respondent's right to raise that issue before this Board. 

The point is well-taken.

In D.C., the concept of default in bar discipline is anathema. Most places have a policy that if the lawyer bolts, the consequences are swift, predictable and harsh. 

As it should be.

Because the point of the exercise is public protection, right?

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

June 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Lawyer Seeking Child Sex Slave Disbarred

The New  Jersey Supreme Court has disbarred an attorney convicted of offenses and serving a 12-year prison sentence.

The Disciplinary Review Board rejected his attempt to delay the matter

On June 27, 2016, respondent sent a letter to the Office of Board Counsel (OBC) seeking an adjournment until his release from federal prison. He argued that, as a federal prisoner, he has no access to New Jersey case law or to the internet. He contended that due process and simple notions of fairness
required a continuance of the matter. Respondent argued that his incarceration prevents him from practicing law and, therefore, no significant impact on the disciplinary process or on the public as a whole would result from the delay in proceeding with this matter. We denied respondent’s adjournment request on July 7, 2016.

The crime

 in May 2010, he began chatting over the internet with a person whom he believed, at the time, to be a thirty-two year-old mother of a nine-year-old girl living in the Atlanta, Georgia, area. Unbeknownst to him, however, he was communicating with an undercover law enforcement officer. Respondent made contact with the "mother" in an on-line chat room titled, "child sex slaves." In this chat room, respondent identified himself as "m50sperv." He and the mother discussed respondent having sex with both the mother and her nine-year-old daughter.

Over a three-week period, respondent sent photos of himself to the mother, and explained how she could access child pornography on the internet in order to acclimate her daughter to the notion of engaging in sex with him. He also described the sex acts in which he wanted to engage with the mother and daughter. At some point, respondent and the mother spoke on the phone to arrange a specific date for him to meet with her and her daughter.

Eventually, respondent purchased an airline ticket to travel from New Jersey to Atlanta. Respondent never made it to the airport, however, because, prior to his scheduled flight, he was arrested by law enforcement officers in New Jersey for soliciting a different putative mother/daughter pair for sex.

He also was convicted of state crimes.

The DRB

Unfortunately, we are confronted with yet another attorney who has behaved in a manner that reflects poorly on the profession. With each case involving the sexual exploitation of children, our hope is that it will be the last. Sadly, that has yet to be the case and it is unlikely that the instant matter will be the last.

In our view, the conduct in this case should result in disbarment.

The court agreed. (Mike Frisch)

June 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Iowa Holds Sex with Client Does Not "By Itself" Give Rise To A Legal Malpractice Claim

The Iowa Supreme Court affirmed a legal malpractice award that in part involved sex with the client and had resulted in bar discipline.

A plaintiff brought claims against her former attorney for legal malpractice, assault and battery, and punitive damages. At the close of the plaintiff’s case, the district court granted the defendant’s motion for directed verdict on two legal malpractice claims: one regarding the preparation of a will and the other for breach of fiduciary duty. The district court submitted to the jury two claims of alleged legal malpractice: representation of the plaintiff in her divorce and representation of the plaintiff in pursuing a claim for assault against her former spouse. The jury returned verdicts for the defendant on the two submitted legal malpractice claims and returned verdicts for the plaintiff on the assault and battery claim and on the punitive damages claim. The jury awarded the plaintiff combined damages of $498,562.44. The plaintiff appeals the district court’s order granting the motion for directed verdict on the two additional claims of legal malpractice. The plaintiff also appeals various evidentiary rulings made by the district court. The defendant cross-appeals on the issue of damages. For the reasons discussed below, we affirm the district court. While we find that the defendant’s cross-appeal was untimely, we reject on the merits the defendant’s challenge to the amount of the jury award.

While representing the client in a divorce

After the meeting, Blessum called Stender and asked if she wanted to meet and catch up. She agreed, and they met at a local restaurant. During this meeting, Blessum told Stender he was unhappy in his marriage. At the end of the evening, Blessum kissed Stender. After Stender got in her car but before she left the parking lot, Blessum sent her a text message asking if they could meet again. Over the next two weeks, Blessum and Stender continued to meet and talk about intimate topics such as Stender’s childhood trauma and her marital and sexual abuse. Within two or three weeks, they began a sexual relationship.

While this sexual relationship continued, Blessum performed several other legal services for Stender. On June 28, Stender executed the will that Blessum had prepared. On August 9, Blessum sent a demand letter to Phillip. In the letter, Blessum demanded that [husband] Phillip agree to three changes in the divorce decree in exchange for Stender’s refraining from filing a civil suit against him for the physical and sexual assault Phillip committed against her in 2009. Blessum was aware the assaults occurred in 2009, and either knew or should have known the statute of limitations had run by the time he sent the letter to Phillip.3 On August 23, Blessum filed the QDRO formalizing Melissa’s interest in Phillip’s retirement account. In January 2012, while the relationship was still ongoing, Blessum assisted Stender with another legal matter.

But things got out of hand

On June 10, Stender went to Blessum’s house to confront him about rumors he was seeing other women. When she arrived, she went into the kitchen where she noticed a bottle of wine with two glasses set on the counter and a frying pan with food on the stove. She picked up the pan from the stove and confronted Blessum by asking if he was cooking for another woman. While Stender was holding the pan, Blessum was standing in front of her. At some point, the pan spilled onto Stender’s shoulder and hot grease caused burns on her back. Because the grease went through her clothing, Blessum began taking off Stender’s shirt.

Stender became anxious from the confrontation and the grease burn. Blessum went outside to retrieve Stender’s purse from her vehicle that contained her anxiety medication. When Blessum came back inside with Stender’s purse, she told him she was done with the relationship and bent down to get the pills out of her purse. While Stender was bent over, but before she could take the pills, Blessum began hitting her arm, forearm, head, and neck. After Blessum hit her, Stender grabbed some of the pills that had spilled on the floor and swallowed them. Stender tried to run out of the house, but Blessum caught her and dragged her back inside. Blessum threw her into the corner and started calling her a “subservient slave.” He pulled her through the living room onto the couch and threatened to sexually assault her. Blessum told Stender if she thought the “other men have hurt [her], . . . just wait and see what [he] do[es] to [her].” He told her he was going to make her vomit her pills so she would remember the entire assault.

It gets even worse

Later in June, Blessum began sending letters to Stender. In the letters, he acknowledged that he had dated other women at the same time as Stender and that he gave her a sexually transmitted disease. The letters also acknowledged the assault and included an apology for all of his misdeeds. Stender also received anonymous items in the mail during this time. On September 19, Stender filed a petition for relief from domestic abuse against Blessum. The district court granted a temporary restraining order that same date.

The majority

We...choose to adopt the majority approach and hold that a violation of one of our Iowa Rules of Professional Conduct cannot be used to establish a per se claim for legal malpractice. A violation may, however, be used as some evidence of negligence as provided in our prior caselaw.See, e.g., Crookham, 584 N.W.2d at 266. But before a violation of our rules of professional conduct can be used—even as some evidence of negligence—there must be an underlying actionable claim against the attorney arising out of how the attorney mishandled a legal matter. To find differently would mean that a violation of the rules themselves provides plaintiffs with an independent cause of action. This result is one that both our rules and our cases have specifically rejected. 

Here, Blessum’s sexual relationship in violation of our rules of professional conduct does not by itself give rise to a legal malpractice claim. In order to succeed on her claim for legal malpractice, Stender would need to demonstrate a duty that was violated and not just the sexual relationship alone.

The court majority's lengthy opinion deals with a host of interesting issues including the testimony of Blessum's spouse

Jan testified that Stender’s version of events was in contrast to her own experience. The testimony was offered to rebut Stender’s testimony that she encouraged Blessum to get back together with Jan. Jan testified that she felt the sexual relationship between Stender and Blessum adversely affected her marriage. Jan testified that Stender harassed her with nasty text messages and emails. She testified about sexually graphic emails and text messages that Stender sent to her. Jan testified that this contact impacted her job and her health and that she lost thirty pounds. Jan moved four times in 2011 and 2012.

Jan also testified that she believed Stender broke into her home on February 14, 2012. Jan testified she and Blessum were attempting to reconcile again around that time. Because their engagement anniversary was February 13, Blessum came to her home and left flowers and a Valentine’s Day card. The next day when Jan returned home, she found a card from Blessum to Stender torn up on the counter next to her own
card with a sign that read “fuck you” next to it.

Jan testified her housekeeper found Stender in Jan’s house in June 2012. Jan was supposed to go to a concert with Blessum that week, but chose not to attend after Stender was found in her house. While Blessum was at the concert, Stender sent Jan text messages stating that Stender was in the shower with Blessum and that Jan did not know how to sexually please her husband and needed Stender to show her. Jan also testified that Stender would send her daughter Facebook messages. Jan testified that she attempted to obtain a restraining order against Stender because of the emails and text messages, but was unsuccessful.

The court held that Jan's testimony was not unduly prejudicial.

Justice Hecht dissented and would remand on Stender's claims for further relief.

I find merit in Stender’s appeal. I would reverse the directed verdict on both the negligence and fiduciary duty issues and remand for a new trial...

Put simply, sexual relationships between lawyers and their clients are fraught with risk of financial and emotional injuries to clients. Because the risk of such injuries to clients is so grave, the rules of professional conduct for lawyers do not merely recommend avoidance of sexual relationships with clients—the rules categorically prohibit the commencement of such relationships during a lawyer–client professional relationship. Blessum clearly breached his professional duty to avoid a sexual relationship with Stender...

Again viewing the record in the light most favorable to Stender, I credit the substantial evidence tending to establish that even before Stender was severely beaten by Blessum, the relationship between the parties was tumultuous and marked by great emotional turmoil. A reasonable jury could find on this record that Stender was exquisitely vulnerable to emotional injury because she had an unfortunate preexisting history of sexual abuse and posttraumatic stress—a history of which Blessum was aware when he commenced the sexual relationship. I find substantial evidence in the record tending to prove Blessum expressly used his knowledge of that history in asserting power over Stender during the assault and that Stender suffered substantial emotional distress as a consequence of the sexual relationship before and after the severe beating. Accordingly, under the applicable standards of review, I believe the district court erred in concluding Stender failed to engender a jury question on damages arising from
Blessum’s breach of duty...

Because a reasonable juror could find that Blessum used information he acquired within the scope of the lawyer–client relationship to Stender’s disadvantage during the assault and that Blessum  dishonestly reinitiated the lawyer–client relationship as a pretext for beginning a sexual relationship, the theory of liability based on a breach of a fiduciary duty should have been submitted to the jury.

Two justices joined the dissent.

The ABA Journal reported on the trial verdict

A former client won a jury award of nearly $500,000 on Wednesday in a malpractice and domestic assault lawsuit against the Iowa lawyer who represented her in a divorce case.

The award against Anthony Zane Blessum, a West Des Moines practitioner who formerly served for 11 years as the top prosecutor in Madison County, includes $100,000 in punitive damages, reports the Des Moines Register.

Blessum earlier pleaded guilty to misdemeanor assault in a related criminal case concerning the attack on Melissa Stender. He was sentenced to seven days in jail and ordered to pay Stender $7,000, the Associated Press reported at the time. He also had his law license suspended for 18 months.

The Iowa Supreme Court imposed the discipline in a legal ethics case, based on findings that Blessum had a sexual relationship with Stender; withdrew unearned funds from a $1,000 retainer she had paid him from a trust account; and physically attacked her, the Des Moines Register reported when the court made its determination earlier this year.

Justia provides a copy of the court’s March 27, 2015 opinion in the ethics case.

The opinion explains that Blessum began representing Stender (referred to as Jane Doe) in a divorce case in 2008 and, in 2011, agreed to help her draw up a will. At that time, a relationship began which lasted more than a year. However, it ended in 2012 after an argument at Blessum’s house erupted into a physical attack.

“Doe was angry Blessum appeared to be fixing a romantic dinner for someone else and she picked up and threw the cooking pan he had been using,” the opinion says.

During the argument, Blessum struck her in the face; hit her multiple times; tried to prevent her from taking anti-anxiety medication; and physically restrained her from leaving his home, the court wrote. She called 911 when he briefly left her alone in the room, then hid the phone.

“Both were unaware the call had gone through and was being monitored and recorded,” the opinion says. Treated at a hospital emergency room after police arrived, Doe suffered a black eye; bruising on her face, neck, arm and abdomen; and other facial injuries.

Blessum apologized and she initially resumed their relationship. Within a few months, however, the two parted for good and he was eventually criminally charged in the attack.

Attorney Roxanne Conlin represented Stender in the civil suit. Conlin said it had been important to her client to hold Blessum accountable for his conduct, the Register reports. “Certainly half-a-million dollars does that. For that part, she’s happy,” Conlin said.

A lawyer for Blessum said he was disappointed by the verdict but declined to discuss the merits of the case with a reporter for the newspaper.

(Mike Frisch) 

June 16, 2017 in Bar Discipline & Process, Clients | Permalink | Comments (0)

Attorney To Disciplinary Counsel: "I Just Can't Stand Your Office"

The West Virginia Supreme Court of Appeals imposed additional sanctions on an already-suspended attorney

This lawyer disciplinary proceeding arises from charges filed by the Petitioner, the Lawyer Disciplinary Board (“Board”) against the Respondent, Kevin C. Duffy (“Mr. Duffy”), a lawyer currently suspended, pursuant to two consolidated statements of charges. The charges relate to Mr. Duffy’s representation of clients in sexual assault and sexual abuse and child abuse and neglect proceedings, unprofessional  and inappropriate interaction with persons involved in his lengthy and contentious divorce proceedings, and misdemeanor theft and drunken driving charges in Ohio...

Upon consideration of the parties’ briefs and arguments, the submitted record and pertinent authorities, this Court finds that there is clear and convincing evidence to support the HPS’s recommendations regarding the violations of the West Virginia Rules of Professional Conduct. We concur with the recommended sanctions of 1) petition for reinstatement, 2) referral to the LAP and 3) payments of costs. However, for the reasons explained below, we suspend Mr. Duffy’s license to practice law for twelve months retroactively to June 2, 2016, the date of Mr. Duffy’s temporary suspension pursuant to this Court’s order in ODC v. Duffy, 237 W. Va. 295, 787 S.E.2d 566 (2016). 

In response to a client complaint to the Office of Disciplinary Counsel

When asked why he did not just file a verified response to the October 15, 2014, letter, Mr. Duffy answered under oath, “I just can’t stand your office and [I was] just being obnoxious to you. That’s my reason.” Mr. Duffy explained that he was angry that his malpractice insurance had increased because of other pending ethics complaints docketed by the ODC that he felt were frivolous. With respect to resolution of the complaint, Mr. Emerson later admitted that his current attorney had his case file and that, at one point, he had instructed Mr. Duffy not to send his case file to him in prison.

However, because of his repeated failure to respond to numerous lawful requests for information by the ODC, the Investigative Panel (“IP”) charged Mr. Duffy with violating Rule 8.1(b) of the West Virginia Rules of Professional Conduct.

In addition to client-related ethics violations

Mr. Duffy was arrested for theft and driving under the influence of alcohol or drugs in the state of Ohio on February 5, 2016. On that day, he attempted to purchase beer at a convenience store, but the clerk refused to let him make the purchase. Rather than leave, he took the beer and other merchandise and drove off. The convenience store employee called the police and reported the theft by an intoxicated man. The police stopped Mr. Duffy at a traffic light down the road and identified him as the person reported by the convenience store employee. The police took Mr. Duffy to the hospital and released him on his own recognizance for medical treatment. However, the police issued him a citation that included a summons to appear in municipal court for a hearing on February 9, 2016. The summons also included an order suspending Mr. Duffy’s right to drive. When Mr. Duffy failed to appear, a Capias with Bond Order was issued on February 11, 2016, commanding any police official or sheriff to immediately take Mr. Duffy to answer for the charges against him. The next day, Mr. Duffy voluntarily appeared in the municipal court. He pled guilty to the misdemeanor offenses of operating a vehicle while intoxicated and disorderly conduct. As a result, Mr. Duffy was fined, sentenced to one year of probation and assessed court costs.

The court

After a thorough review of the record, we find that Mr. Duffy’s conduct, considered under the Jordan factors, warrants a suspension of twelve months rather than three months as recommended by the HPS.

He must address addiction issues

Mr. Duffy will enter into a contractual agreement with the LAP detailing a plan for treatment and an accountability schedule as a means to reduce the risk of relapse. As part of this agreement, the ODC will periodically confirm with the LAP that Mr. Duffy is in compliance with his contractual agreement. Details relating to Mr. Duffy’s treatment plan and progress will remain confidential pursuant to Rule 7 of the Rules of the West Virginia Lawyer Assistance Program unless and until he petitions for reinstatement, at which time such information may be filed under seal for the sole purpose of considering his petition.

(Mike Frisch)

June 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 15, 2017

Mississippi Dismisses Ethics Charges Based On Judge's Use Of Social Media

The Mississippi Supreme Court dismissed ethics charges against a judge

    The record supplementation requested by the Court during oral argument should, and it hereby is, rescinded. The Court finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton, has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice. The Commission shall bear the costs. Not Participating: Coleman, Beam and Chamberlin, JJ. Order entered.

Notably, the charges appear to be related to the judge's use of social media that was the subject of an anonymous complaint.

The judge had stipulated to misconduct.

The argument - linked below - is really worth watching. The judges are tough on the attorneys for both sides .

Eugene Volokh filed an amicus brief on behalf of the judge.

The Commission seeks to discipline Judge Polk-Payton for speech that other judges routinely engage in: promoting a book and using social media. These common activities do not threaten the integrity of the judiciary. Rather, they are valuable to voters who can evaluate that speech and use it to make informed decisions.

The Commission believes Judge Polk-Payton’s use of the Twitter handle “@JudgeCutie” is “undignified and demeaning” to the judicial office, but the handle conveys the judge’s personality to the public, which is essential for an elected judge. The Commission also objects to a photo on the cover of the judge’s book, which shows her in ordinary clothes with her robe partially on; it is not clear whether she is putting on her robe or taking it off, but neither action demeans the judicial office.  “Undignified” is a subjective judgment, and if anyone should enforce it, it should be the voters: If they find Judge Polk-Payton’s speech unbecoming to a judge, they will make that known come election time.

Moreover, social media use by judges is relatively new. States have not provided much guidance on its use, other than to uniformly conclude that it is generally allowed. The Mississippi Judicial Canons, which require “high standards of conduct,” make no mention of social media. Neither the Commission nor this Court has offered any clarification. Given the vagueness of the Canons, Judge Polk-Payton had no way of knowing that her speech was impermissible.

Hattiesburg American reports

After an afternoon of hearing oral arguments Tuesday, the Mississippi Supreme Court ruled Thursday in favor of a Forrest County judge accused of unethical conduct.

The Mississippi Commission on Judicial Performance accused Justice Court Judge Gay Polk-Payton of using her position as a judge to promote sales of her book and to further her music career.

Polk-Payton could not be reached for comment Thursday, but her attorney Oliver Diaz said the complaint was frivolous and should never have been filed.

"I think the speed with which the judges responded speaks for itself," he said. "It usually takes three, four or five months after oral arguments to decide a case.

"This is unprecedented and speaks to how completely frivolous it is. (The Supreme Court justices) wanted the public to know Judge Polk-Payton did not do anything wrong."

The court issued a one-paragraph statement in which the judges said they could find no wrongdoing on Polk-Payton's part.

"The Court finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice," the court ruled.

On Tuesday the commission's senior attorney Rachel Michel said an anonymous tip was filed regarding Polk-Payton and a photo of her either putting on or taking off her judge's robe on the cover of her book. 

The commission filed the complaint with the state judicial system in 2014.

The complaint also said the use of Polk-Payton's judicial status on her social media accounts, including her former handle, "JudgeCutie," violated the state's code of conduct for judges.

Archived proceedings: Mississippi Supreme Court hears oral arguments regarding Judge Polk-Payton

During the oral arguments, some of the justices pointed out other judges who had worn their robes on the covers of their books. Justice Jess Dickinson, himself an author and musician, said there needed to be something more to the claim than just her wearing a judge's robe.

 "We both have difficult jobs," Dickinson told Michel during a live stream of court proceedings. "But I'm looking at the allegation that gives me concern in this case, and I'm looking at the canon that it is based upon and that canon requires us to find by clear and convincing evidence that Judge Polk-Payton lent the prestige of her office to advance her private interests.

"I don't believe anybody does that simply by saying, 'I'm a judge.'"

Justice James Kitchens said he was concerned about who filed the anonymous complaint with the commission and what his or her motive was.

"This could be some political enemy of the judge or somebody she had sentenced or someone who has an ax to grind with her," he said. "We know nothing of the credibility or the motives of the person making the complaint."

Dickinson added that Polk-Payton should be lauded for some of the things she has done as a judge.

"I commend her for talking about being a judge and being interested in justice and interested in fairness and fair play in the courts," he said. "Some of it should be on the front page of The Clarion-Ledger."

Attempts to reach Michel for comment were unsuccessful.

Justices Dawn Beam, Josiah Coleman and Robert Chamberlin did not participate.

The Commission on Judicial Performance was ordered to pay all costs associated with the case.

A video of a musical performance by the judge is linked here . (Mike Frisch)

June 15, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Zelig And Wallowing In Watergate

I tend to avoid personal stories outside my area of expertise but I hope that readers of this blog will indulge me a few reflections in light of a story in the Style section of today's Washington Post about young staffers who worked for the Senate Watergate Committee in the memorable summer of 1973.

I had just finished my second year at Georgetown Law and was turning in my last assignment for the American Criminal Law Review when I noticed a job posting that looked more interesting than my plan to be a camp counselor at Town & County Day School in Wheaton Maryland.

I applied for the job and found myself interviewing the next day with Rufus Edmiston, who hired me as a research assistant for the Senate Select Committee on Presidential Campaign Activities (popularly known as the "Watergate" or "Ervin" Committee).

The primary function that I and several others performed was to read deposition and public testimony, review documents and dictate into hand-held tape machines summaries of the reviewed materials.

Every night, a (huge) computer in the Library of Congress ran an updated and comprehensive printout of the summaries for use by the committee in cross-checking witness testimony and preparing for the examination of future witnesses.

The computer run took all night. It being 1973, the males were assigned to the all-night duty and the females were excused.

It was actually quite exciting traveling through tunnels from the bowels of the LOC to the Senate in the company of armed guards taking the printout back to the Committee.

The people that I worked with were mostly behind the scenes. We rarely got to attend the hearings and become reality stars of the day.

To my memory I attended the hearings on two occasions.

When John Dean's prepared statement was the world's most closely held secret, it was given in its entirety to me to summarize for the computer analysis. Being one of a handful of people who had the statement in advance was an incredible thrill.

And an early test of my ability to adhere to the duty of confidentiality.

As a reward, I was allowed to attend the hearing and sit behind the Committee during Mr. Dean's reading of the statement. If you look closely at photos taken when he is sworn in, I swear that one of the long-hairs in the back is me.

The second occasion I will never forget. After lunch one day, a colleague and I were approached by a staff attorney named Marc Lackritz. Marc told us that we had done good work and should take in the afternoon hearing.

July 13, 1973.

Alexander Butterfield.

The next day that colleague and I were taken off the computer-dictation gig and assigned to do the legal research in aid of the Committee's efforts to subpoena the Nixon tapes.

That rather interesting bit of real-world legal research - my first ever - consumed the rest of the summer.

The Watergate job got me my first employment with the Maryland Federal Public Defender. The connection to my Watergate boss and beloved mentor Sam Dash played a large role in my return to Georgetown Law as Ethics Counsel in 2001.

This Saturday is the 45th anniversary of the break in. (Mike Frisch)

June 15, 2017 | Permalink | Comments (0)

Hail To The Chief

It's not every day that a former student and present colleague of mine becomes a Bar President

Today attorney Matt Kaiser, founding partner of KaiserDillon, PLLC, was formally sworn in as President of the Bar of the District of Columbia (BADC), the oldest private voluntary association representing lawyers practicing in the nation’s capital.

“It is my honor to be elected as President of the Bar Association of the District of Columbia,” said Kaiser. “Washington, D.C. is a lawyers’ town. We have the nation’s highest density of courts, and the largest and most diverse body of practicing attorneys of any city in the world. I look forward to continuing my work with BADC’s officers, staff, and committees as we work to serve the needs of the lawyers in this city.”

Kaiser continued, “This year’s theme is ‘The Role of Lawyers in a Constitutional Democracy.’ We will recognize and celebrate that role, as we foster and promote relationships among members of the bar.”

In his private practice, Matt Kaiser focuses on white collar defense and legal ethics. He has represented companies and individuals in white-collar criminal matters, and in connection with claims against their prior lawyers, advised lawyers on how to comply with their ethical obligations, and litigated law firm dissolutions.

Kaiser also teaches legal ethics at Georgetown University Law Center as an adjunct professor. He serves on the Board on Professional Responsibility, a nine-member board appointed by the D.C. Court of Appeals that adjudicates cases of attorney misconduct and is responsible for administering D.C.’s disciplinary system for attorneys. Prior to being elected President of BADC, Kaiser served the organization in various capacities.

Founded in 1871, the Bar Association of the District of Columbia is one of the oldest bar associations in the nation. The BADC and its members have a proud history of working closely with the judiciary, courts, the D.C. Council, and the U.S. Congress on the administration of justice. As D.C.’s voluntary bar it lobbies on behalf of its members, provides the only lawyer referral service in D.C., and mentors young lawyers. This year marks the 146th year the BADC has promoted civility, justice, and collegiality among members of the legal profession in the capital through advocacy, education, and social events.

View source version on businesswire.com: http://www.businesswire.com/news/home/20170606006247/en/

KaiserDillon, PLLC
Media Contact:
Penny Paul, 973-687-4830
penny@knappmarketing.net

Congratulations Matt. (Mike Frisch)

June 15, 2017 in Current Affairs | Permalink | Comments (0)

Alo I Must Be Going

Dan Trevas reports on the web page of the Ohio Supreme Court

A Columbus attorney convicted in a felony bribery and kickback scheme at the Office of the Ohio Treasurer was permanently disbarred by the Ohio Supreme Court today.

Mohammed Noure Alo has been suspended several times by the Supreme Court and did not respond to or participate in attempts by the Office of the Disciplinary Counsel to disbar him. In a unanimous per curiam decision, the Court accepted the Board of Professional Conduct’s recommended sanction.

Federal Conviction Triggered Suspensions
Alo was charged with conspiring with Amer Ahmad, former chief financial officer and deputy state treasurer, and others to commit bribery, wire fraud and money laundering. The federal government alleged that between 2009 and 2011, Alo help devise and participated in a scheme to use Ahmad’s position to improperly secure lucrative public brokerage deals for Douglas Hampton, a personal friend of Ahmad’s. In return, Hampton paid kickbacks to Ahmad, Alo, and others from the commissions he earned from the state.

Alo was charged in 2013 and pleaded guilty that year to wire fraud and admitted that at Ahmad’s direction, Hampton paid Alo more than $123,000 for legal services he did not perform. He was sentenced to 48 months in prison, three years of supervised release, and was required to forfeit the $123,000.

Based on the conviction, the professional conduct board found Alo violated several rules governing Ohio attorneys, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The Court imposed an interim suspension once it learned of the conviction.

In January 2015, the Court levied a separate interim default suspension after Alo failed to respond to charges involving numerous client matters that were not part of the Ahmad kickback scheme. In August 2015, that suspension was converted into an indefinite suspension after Alo failed to respond to an order asking why he had not responded to the charges. And in November 2015, he was suspended for failing to register as an attorney for the 2015-2017 biennium. In light of Alo’s continued failures to answer to the charges, the disciplinary counsel in July 2016 sought permanent disbarment.

Alo’s Misbehavior Costly
The opinion noted that the board considers several issues before recommending a sanction including aggravating circumstances that can increase a penalty, and mitigating factors that can lessen it. The board determined that Alo acted with a dishonest and selfish motive, had a prior disciplinary record, engaged in a pattern of misconduct, committed multiple offenses, caused harm to clients, and failed to cooperate in the disciplinary process. The board found no mitigating factors.

The opinion noted that in his previous disciplinary case, Alo was charged with wide-ranging professional misconduct violations relating to 10 client matters, mostly immigration cases, where he accepted retainers but failed to perform the work or return the clients’ money. The Court stated that “Alo in effect stole money from the clients whose matters were at issue.”

“Indeed, the board noted that as of June 2016, the Lawyers’ Fund for Client Protection had paid over $90,000 to Alo’s former clients because of his dishonest conduct. And our records indicate that since then, the fund has paid out an additional $140,623.62 to Alo’s former clients because of his retention of unearned fees,” the opinion stated.

The Court wrote the purpose of the attorney discipline system is to protect the public through a process that allows the Court to determine whether a lawyer is unfit to practice law.

“Given the scope and magnitude of Alo’s misconduct at issue in his two recent disciplinary cases—including his felony conviction, his misappropriation of client funds, and his complete failure to cooperate or participate in the disciplinary process—we conclude that he is no longer fit to practice law in Ohio,” the Court concluded.

2015-2053. Disciplinary Counsel v. Alo, Slip Opinion No. 2017-Ohio-4270.

Title is for you, Ross Dicker and Paul Burgoyne. (Mike Frisch)

June 15, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Wednesday, June 14, 2017

"The Culmination of A Years-Long Effort To Game The System"

The Indiana Supreme Court disbarred an attorney for misconduct after suspension in the same matter that had led to the sanction.

Assisted by another attorney, T.G. obtained a settlement of a personal injury action. Because T.G. was in an abusive relationship and had a history of drug and alcohol abuse, that attorney, with T.G.’s consent, established a special needs trust in 2004 to hold the settlement proceeds and prevent rapid depletion by T.G. and others who may not be acting in her best interests. Later in 2004, T.G., accompanied by her abusive partner, consulted Respondent about getting access to the trust funds. Respondent agreed to take the case for a fee of one-third of the trust corpus. After expending only minimal work, Respondent became successor trustee and quickly disbursed from the trust about $30,000 to T.G. and about $15,000 to himself. For his conduct in collecting an unreasonable fee, we suspended Respondent from the practice of law for at least 120 days without automatic reinstatement, effective November 11, 2011. Matter of Powell, 953 N.E.2d 1060 (Ind. 2011). Meanwhile, T.G.’s share was quickly dissipated on drugs and expenditures to T.G.’s partner and his family, an outcome the special needs trust had been designed to avoid.

Thereafter Respondent sought and was denied reinstatement. Those proceedings included findings by a hearing officer that Respondent had, among other things, continued to practice law during his suspension, failed to appropriately maintain his trust account, forged the signatures of clients and another attorney, filed a false affidavit with this Court, and misappropriated $5,000 from another client. The hearing officer also found that Respondent had made no effort to make restitution to T.G. despite the financial ability to do so.

Only three days after we issued our order denying reinstatement, Respondent filed a second petition for reinstatement. Those proceedings included findings by the hearing officer that Respondent “has continued to engage in dishonesty, including filing two subsequent false or misleading affidavits with the Supreme Court, noticing a deposition without a court reporter in order to circumvent the hearing officer’s mandate, filing bankruptcy, failure to pay debts, yet retaining the use of the property for which the debt was owed, filing meritless pleadings,engaging in verbally aggressive attitude and behavior to advance his position, [and] being evasive and lacking candor when questioned during the hearing.” Comm’n Ex. 4 at 41. The hearing officer also found that Respondent still had made no efforts toward restitution to T.G. other than “last minute, token efforts, calculated to further his goal” of being reinstated. Id. at 32. We denied Respondent’s second reinstatement petition by order issued on March 6, 2014. In that order we identified several concerns we had regarding Respondent’s conduct during the reinstatement process, one of which was that Respondent “has only belatedly attempted to make even nominal restitution to T.G.” Comm’n Ex. 5 at 2. Respondent then filed a “Request for Clarification,” which we denied on July 11, 2014.

In this matter

On July 21, 2014, Respondent drove to Iowa to meet with T.G. at her workplace. Respondent told T.G. he needed her to sign a document stating that he had given her $15,000, but informed T.G. that he had only $1,500 to give her. T.G. agreed to sign the document, and Respondent assisted T.G. in executing, before a notary public, a document he had prepared falsely stating that T.G. had received $15,000. Respondent then gave T.G. $1,500. Respondent told T.G. she would not get in trouble for signing the document, but that if anyone from Indiana called her she should not say anything.

T.G. soon talked with friends and acquaintances, realized she had been taken advantage of, and contacted the Commission. Meanwhile, on August 26, 2014, Respondent (acting pro se) filed a third petition for reinstatement. Simultaneously, Respondent sent a letter and updated discovery to the Commission, falsely asserting in both that he had made full restitution of $15,000 and submitting the false document to this effect that he had induced T.G. to sign.

The court rejected various excuses

When we first disciplined Respondent in 2011 for collecting an unreasonable fee from T.G., we cited Respondent’s inexperience and lack of prior discipline as factors in mitigation. These factors derive much of their mitigating weight from the notion that in many instances an attorney will be chastened by discipline for a first offense, adequately remedy his or her professional shortcomings, and be unlikely to recidivate going forward. See generally Admission and Discipline Rule 23(18); see also American Bar Association’s Annotated Standards for Imposing Lawyer Sanctions 9.32(a), 9.32(f).3 Unfortunately, Respondent has chosen a different road. Respondent’s reinstatement proceedings have brought to light numerous additional uncharged instances of misconduct committed in the wake of our prior suspension order, including forged signatures and false affidavits, and Respondent’s conduct throughout his reinstatement proceedings has been marked by extraordinary degrees of evasiveness and dishonesty. The grounds for the instant charges – Respondent’s elaborate scheme to convince the Commission and this Court that he had made full restitution to T.G. when in fact he had not – are but the culmination of a years-long endeavor to game the system. That endeavor ends today.

(Mike Frisch)

June 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Inducing Panic Felony Draws Interim Suspension Of Ohio Attorney

The Ohio Supreme Court has suspended an attorney recently convicted of a felony offense.

Cleveland.com reported

The lawyer Aliza Sherman hired to represent her in a messy 2013 divorce admitted to lying to his client and to Cleveland police homicide investigators before and after the Beachwood nurse and mother of two was stabbed to death outside his downtown office.

Gregory J. Moore, 43, pleaded guilty Monday to two counts of inducing panic, which are low-level felony charges, and to a misdemeanor count of falsification. 

Moore faces a maximum of three years behind bars. Judge John D. Sutula will sentence Moore on May 23.

Moore was set to face trial Wednesday on tampering with evidence, falsification, obstructing official business, telecommunication fraud, forgery, inducing panic and making terroristic threats. Prosecutors dropped all the remaining charges against him in exchange for his plea.

The conviction comes more than four years after the March 24, 2013 killing that saw a hooded assailant stab Sherman 11 times on the sidewalk outside Moore's office in the 55 Erieview Plaza building. Police found no evidence that Sherman, a Cleveland Clinic nurse who lived in Beachwood, was robbed.  

Moore was representing Sherman in a protracted and contentious divorce from her husband, and was scheduled to meet her that afternoon at his office to finalize the arguments for their trial. 

Moore texted Sherman in the minutes before and after the stabbing to say he was waiting to meet her at his office inside the Erieview building, according to the indictment. 

But prosecutors examined phone records, electronic keycard data from the building and statements from witnesses and concluded that Moore had left his office an hour before the stabbing and did not return until more than an hour after police found Sherman bleeding heavily on the sidewalk, according to court records. 

The day after the killing, Moore told two Cleveland police homicide detectives that he was inside his office at the time of Sherman's death,  records say. 

The indictment also includes three counts of terroristic threats and six counts of inducing panic in connection with three bomb threats Moore is accused of calling in to courthouses in Cuyahoga, Geauga and Lake counties the year before Sherman's death. Moore was an attorney at Stafford and Stafford at the time.

Sherman's slaying sparked vigils, marches and calls for justice by her friends and family members. On each anniversary of the slaying, more than 100 people gathered outside Erieview building and marched to the Cuyahoga County Justice Center.

It also sparked a family rift. Sherman's daughter, Jennifer Sherman, filed a civil lawsuit claiming that Sanford Sherman, her father and Aliza Sherman's estranged husband, hid money in a bank account that he opened in his wife's name.

Jennifer Sherman dropped the lawsuit in February, according to court records.

Then-Cuyahoga County Prosecutor Timothy J. McGinty said after Moore was indicted in February 2016 that the charges took investigators closer to bringing Sherman's killer to justice.

But, more than a year later, prosecutors and Cleveland police have yet to identify a suspect in her killing.

The interim suspension will stay in place pending disciplinary proceedings. (Mike Frisch)

June 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Permanent Disbarment Proposed For Battering Former Judge

The Ohio Board on Professional Responsibility recommends permanent disbarment for former Judge Lance Mason.

Cleveland.com reported on the underlying crimes

Former Cuyahoga Common Pleas Judge Lance Mason was sentenced to 24 months in prison Wednesday for beating his wife last year while driving down Van Aken Boulevard with the couple's children in the backseat.

Before delivering her sentence, visiting Judge Patricia Cosgrove reviewed images of Aisha Mason's bruised and battered face, and read from a police report that detailed how Mason punched his wife 20 times with a closed fist, smashed her head against the car's center console five times, and continued to beat her, bite her, and threaten her after she got out of the car.

Cosgrove also read from a report that detailed how the couple had separated earlier that year, and that Aisha Mason had asked her husband to attend counseling before she considered getting back together with him.

"There is not one person in this courtroom that doesn't carry a burden with them," the judge said in a courtroom packed with Mason's family, friends and supporters. "But you don't take it out on another human being."

Mason, 48, pleaded guilty to attempted felonious assault and domestic violence on Aug. 13, and his plea deal agreement included that he would serve some time in prison. 

According to Mason's attorneys, he submitted his resignation as judge on Tuesday. The Ohio Supreme Court officially suspended Mason from the bar on Sept. 3 for being a convicted felon. He had been temporarily suspended with pay while his case was pending, and a visiting judge is overseeing his cases. Now that his felony suspension is official, Mason is no longer collecting his salary of $121,000.

As a convicted felon, Mason will not be able to serve as judge in the future, though he could still practice law, depending on the outcome of disciplinary action by the Ohio Supreme Court.

Aisha Mason needed reconstructive surgery on her face to recover from a broken orbital bone. She filed for divorce two days after the incident. She also filed a lawsuit against her husband on July 29 for having caused her mental pain and anguish. Both cases are still pending.

She did not attend the sentencing hearing, though she did send a letter to the judge that was not read in court.

Several people spoke on Mason's behalf during the sentencing hearing, including his sister, Lynn, all three of his attorneys, several local religious leaders and restaurateur Tony George. All portrayed Mason as a good person who made a mistake that he deeply regrets and won't repeat. They said Mason had been dealing with the death of a parent, a child with Down syndrome, and a failing marriage. 

Attorney Fernando Mack, who represented Mason free of charge and attended college with the former judge, told the court that Mason is at his best as a father to his two daughters. The crowd responded loudly with shouts of "Amen," while Mason wiped tears from his eyes.

Mason told the court he takes responsibility for what happened.

"I make no excuses, I mean I beat my wife in front of my kids," he said. "I mourn the harm I did to my family."

The judge noted that Mason can reduce his sentence if he attends counseling and classes while in prison.

As Mason was led out of the courtroom in handcuffs, he told the crowd that he loves them and his wife.

"I'm good, I'm strong," he said.

In a statement following the sentencing, Cuyahoga County Prosecutor Timothy J. McGinty said the conviction is "not a cause for celebration."

McGinty and Mason had served on the bench together as judges. Mason initially asked for a special prosecutor to hear his case because of that, but his request was denied.

"It's a sad day," McGinty said. "He was a good judge and a friend, but he owes society this time. I am confident he will leave prison rehabilitated and will again be an asset to our community."

The Ohio Supreme Court has the final word. (Mike Frisch)

June 14, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

iphone Misconduct: Bankruptcy Sanction Becomes Reciprocal Censure

A reciprocal public censure has been imposed by the New York Appellate Division for the First Judicial Department based on sanctions imposed by a the United States Bankruptcy Court for the Southern District of Texas.

On December 5, 2013, the witness, represented by respondent, appeared for her deposition via videoconference in Miami, Florida, where she lived. She testified that her iPhone 4s had suffered a data loss approximately three days earlier which resulted in erasure of all her text messages, but promised the trustee that she would attempt to recover the lost data. On December 10, 2013, the witness purportedly lost her iPhone 4s and, on December 13, 2013, the trustee filed an emergency motion to compel her to turn over the iPhone. Although the witness paid for respondent's plane ticket to Miami, respondent received no other remuneration for representing the witness.

On December 18, 2013, the bankruptcy court conducted a hearing on the trustee's emergency motion at which respondent appeared telephonically on behalf of the witness, who had informed him days earlier that she had lost her iPhone 4s. Respondent did not inform the court or the trustee that the witness had apparently lost her iPhone, but argued that requiring her to turn over her phone violated her Fourth Amendment rights. The court ordered the witness to produce her iPhone to the trustee on December 26, 2013.

On December 26, 2013, respondent gave the trustee's local counsel an iPhone 5s (as opposed to an iPhone 4s) that the witness had bought on December 10, 2013; this iPhone was not the one the court had directed to be produced. On December 27, 2013, upon motion of the trustee, the bankruptcy court issued an order directing respondent and the witness to show cause why they should not be sanctioned for contempt and spoliation of evidence.

Following a sanction hearing, the bankruptcy court found that respondent had engaged in the unauthorized practice of law and that he had made a materially false statement to the court by making arguments against the production of the witness's iPhone 4s and then agreeing to produce such when he knew it was lost, and that his conduct rose "to the level of a fraud on the Court" (In re Brown, 511 BR at 852). The court directed respondent to pay $54,421.03 in sanctions, representing the fees and expenses the trustee had incurred and that were directly attributable to his attempts to recover the lost iPhone 4S. Respondent timely paid this amount. The court also directed the trustee to forward a copy of the sanction decision to the Committee.

Before the Committee Hearing Panel (the Panel), respondent averred that when he produced the witness's iPhone 5s to the trustee's IT expert, he immediately disclosed that it was not the iPhone 4s that the trustee sought. He further averred that no one raised his non-admitted status until the sanction hearing before the bankruptcy court. Additionally, respondent noted, he fully cooperated with and apologized to the bankruptcy court and, to ameliorate his conduct, took 7.5 hours of CLE courses related to ethics and made a $2,500 donation to a pro bono organization in Houston. He also noted that he had promptly paid the $54,000 in sanctions, in [*3]addition to approximately $200,000 in legal fees to local counsel that represented him and the witness before the bankruptcy court. Respondent did acknowledge his misconduct, apologize, and express remorse. At the Texas sanction hearing, however, the trustee's local counsel and IT expert testified that respondent had not, in fact, immediately disclosed that the witness's iPhone 4s had been lost, and the bankruptcy court found that respondent's testimony on this issue was not credible (In re Brown, 511 BR at 853).

The Panel found that respondent's unauthorized practice of law before the Texas bankruptcy court was aggravated by the fact that he had been practicing law for 15 years at the time that he engaged in this misconduct. As to his misrepresentation to the court, the Panel was deeply troubled by respondent's initial failure to disclose to the bankruptcy court that the witness had lost her iPhone4s. Indeed, the Panel noted, respondent presented a vigorous Fourth Amendment argument against the production of the iPhone 4s during a subsequent motion to compel hearing. The Panel found this conduct "dishonest and deceitful." In addition, the Panel found that respondent's material misrepresentations to the court served to delay the bankruptcy process and wasted the resources of the trustee and the bankruptcy court.

Nonetheless, the Panel found mitigation, namely: (1) respondent had no prior disciplinary history; (2) he made good faith efforts to make restitution or rectify the consequences of his misconduct; (3) he incurred and paid monetary sanctions; (4) he expressed remorse; (5) he cooperated with the Committee; and (6) he presented evidence of good character. Thus, the Panel recommended that respondent be publicly censured.

Now, by motion in accordance with former Rules of the Appellate Division, First Department (22 NYCRR) §§ 603.4(d) and 605.15(e)(2), the Committee seeks an order confirming the Panel's findings of fact and conclusions of law and publicly censuring respondent.

The court

Public censure is appropriate here, as respondent's failure to promptly disclose the loss of the correct iPhone and his unauthorized practice of law before the Texas bankruptcy court were isolated instances of misconduct, and are mitigated by his previously unblemished disciplinary history, his prompt payment of significant monetary sanctions, and his admission of wrongdoing and remorse. We find that private discipline is not appropriate because respondent's misconduct involved both misrepresentation to a court and the unauthorized practice of law.

(Mike Frisch)

June 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Self-Medicating Doctor Denied Reinstatement

A doctor's effort to secure reinstatement was denied by the Massachusetts Supreme Judicial Court, affirming the order of the Board of Registration in Medicine.

Langan is a board-certified physician in geriatrics and internal medicine. In 2008, after he had tested positive for various controlled substances, he and the board entered into a letter of agreement, under which he agreed to certain conditions in order to continue practicing medicine, including refraining from the use of alcohol and controlled substances without a prescription and submitting to substance use monitoring by Massachusetts Physician Health Services (PHS).  The letter of agreement provided that violating its terms would "constitute sufficient grounds for the immediate suspension of [Langan's] license," and that Langan had a right to an adjudicatory hearing as to any violation found by the board.

There were then three positive tests that led to a second agreement

On February 1, 2012, Langan, represented by counsel, signed an addendum to his letter of agreement requiring, in particular, that he "participate in a minimum of three (3) 12-step meetings per week" and "submit proof of said participation to PHS." In October, 2012, PHS reported that Langan had misrepresented attending meetings. In November, 2012, Langan again tested positive for EtS and EtG. Langan entered into a voluntary agreement not to practice and was asked to produce documentation that he had attended all required meetings. He did not do so, and in February, 2013, the board determined, based on all the documentation before it, that Langan was in violation of his letter of agreement for the second time. The board therefore suspended his license.

He was not permitted to challenge the two agreements with the board.

Notably, the court rejected a First Amendment claim

Langan also argues that his rights under the establishment clause of the First Amendment to the United States Constitution were violated by the requirement that he attend twelve-step support group meetings. Even assuming that such support groups are religiously based, his argument fails for several reasons. Langan voluntarily agreed to attend meetings when he signed the 2012 addendum to the letter of agreement; the requirement was not unilaterally imposed by the board. Langan did not timely challenge the suspension. Moreover, the board's 2015 decision makes it clear that Langan would have been permitted to attend a secular support group if he had so requested. Finally, and most importantly, the 2015 decision, which is the only one properly before us, was not based on Langan's failure to attend meetings, but on his failure to fulfil the conditions of reinstatement.

(Mike Frisch)

June 14, 2017 in Comparative Professions | Permalink | Comments (0)

Tuesday, June 13, 2017

"Beyond Tenacity To Truculence" En Route To Disbarment

A recent disciplinary summary from California

A Southern California attorney who claimed State Bar disciplinary proceedings are unconstitutional was disbarred from the practice of law after he ignored and rejected an earlier suspension and probation for disobeying court orders.

Martin Barnett Reiner [#144024], 58, of Beverly Hills, was disbarred April 21, 2017, and ordered to comply with rule 9.20 of the California Rules of Court. In 2014, Reiner was suspended for six months and placed on probation for two years for disobeying three court orders issued by workers’ compensation administrative law judges. He was also required to pay certain sanctions, attorney fees and costs. He was further ordered to comply with Rule 9.20 and file a compliance affidavit attesting that he notified clients, co-counsel, and opposing counsel of his suspension. Reiner never submitted a compliance affidavit. Instead, he asserted that the State Bar disciplinary proceedings and subsequent Supreme Court suspension order were invalid and unconstitutional.

In proceedings leading to Reiner’s disbarment, the hearing judge found Reiner culpable of violating rule 9.20(c). The State Bar Court Review Department affirmed that finding and rejected Reiner’s constitutional arguments as unavailing and an unreasonable interpretation not made in good faith. The court found that Reiner’s repeated willful disobedience of the court order, along with his refusal to acknowledge his wrongdoing showed an inability or unwillingness to conform to ethical responsibilities and requirements. It determined that disbarment is the generally appropriate sanction for a willful rule 9.20 violation. 

In aggravation, the court considered the fact that Reiner had previously been subject to discipline and has shown indifference and lack of insight and remorse. Both are significant aggravating factors. Quoting from another case, the court found Reiner’s overall defiance and lack of respect for the discipline process underscored the need to remove him from the profession: “Put simply, [Reiner][has gone] beyond tenacity to truculence.”

June 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Aboriginal Arguments Draw Temporary Interlocutory Suspension

The standards for an interlocutory suspension are at issue in a recent decision of the Tribunal Hearing Commission of the Upper Canada Law Society

Mr. Bogue was called to the bar of Ontario in 1985. He was not in active practice status from 1987 until February of 2015. There are currently six investigations involving him, stemming from his actions as litigation counsel. It appears that many of his clients are Indigenous people.

On behalf of clients, Mr. Bogue has made submissions that, on their face, are of significant concern because they may hamper the administration of justice and harm his clients’ interests. For example, he has commenced problematic court proceedings against several judges, the Queen and the Prime Minister personally. In multiple proceedings, the documents suggest, the Lawyer has relied on theories that deny the authority of the Canadian federal and provincial governments. He has advised opposing counsel that they cannot act on a judgment from which leave was denied to the Supreme Court of Canada because it was being transferred to an Aboriginal tribunal. He pled in Federal Court that “[o]n July 17, 2013, the Pope issued a Motu Propria dissolving the Corporations of the world” and that Canada is a Crown Corporation “registered as #0000230098 in the corporate capital known as The United States of America Inc., operating in Washington, D.C.” There are numerous other examples.

Courts have expressed concerns about the nature of Mr. Bogue’s submissions. In Steinkey v. Canada, 2017 FC 124 (CanLII), Prothonotary Lafrenière of the Federal Court said at paras. 5 and 8-9:

Notwithstanding the Plaintiffs’ protestations to the opposite, they clearly fall within a class of individuals described in Meads v. Meads, 2012 ABQB 571 (CanLII), 2012 ABQB 571 (Meads) as “OPCA litigants”, who follow a well-known path of illogic, presumption and pseudo-legal rants. The pleading before me is a classic case of a vexatious party seeking to foist on the Crown a unilateral agreement and trust obligations based on nonsensical arguments…

Finally, I note that the Statement of Claim was signed by a lawyer, Glenn P. Bogue, and that Mr. Bogue also filed written representations in opposition to the motion before me. In Meads, Justice Rooke observed in paras. 643-645 that, as an officer of the court, each lawyer has certain duties not only to the client, but also to the justice system as a whole. In particular, it is a lawyer’s duty to not participate in or facilitate OPCA schemes.

I am very troubled to see that Mr. Bogue accepted a retainer to draft and file pleadings which ultimately assist in the implementation of a vexatious litigant strategy. I therefore direct that this Order and Reasons, along with a copy of the Statement of Claim and the parties’ motion materials, be delivered to the Law Society of Upper Canada for review, to determine whether any sanction is warranted against Mr. Bogue.

 In R. v. Anderson, 2016 BCSC 2170, a criminal case, Justice Brown stated at para. 155:

I was particularly concerned when counsel advised that he and his colleague intended to introduce at trial the matters raised in the Memorandum of Fact and Law, including ‘criminal equity.’ Those matters are immaterial to the case and will not be admissible. Counsel’s comment left an impression that counsel was motivated by opportunity to pursue the theories and matters he addressed in the memorandum, which, he advised the court, were authorized and guided by the Clan Grandmother, as opposed to meeting the Crown’s case. He will have to satisfy this court clearly in due course where his representational interests lie.

It was clear from Mr. Bogue’s submissions before us that he continues to actively work on files.

Disposition

  In our balancing of public protection and Mr. Bogue’s interest in having appropriate time to prepare, the following factors were key in tilting the balance in favour of an adjournment on terms:

•                     The allegations are serious and the Law Society’s evidence, considered alone, sets out a strong case for an interlocutory suspension. Based only on the Law Society’s submissions, we accept there is a significant risk of harm to the public and to the public interest in the administration of justice and that an order suspending Mr. Bogue on an interim interlocutory basis would reduce that risk. There is evidence, including comments from multiple judges, to suggest that Mr. Bogue is using litigation techniques that could harm the administration of justice and cause costs and delay to his clients and others.

•                     On the evidence now before us, the risks are significant and would continue during the period of the adjournment. Nothing short of a suspension could adequately address them, given the evidence we have seen. Mr. Bogue acknowledges he is actively representing clients on litigation files, and there is no indication he has stopped the types of approaches alleged here. The possible harm to the administration of justice of these types of tactics is well-recognized, including by this Tribunal: see, for example, Meads, above, Law Society of Upper Canada v. Hosein, 2014 ONLSTH 218 (CanLII) at paras. 17-18, and Law Society of Upper Canada v. Townley-Smith, 2010 ONLSHP 77 (CanLII), at paras. 34-38.

•                     The April 12 rescheduled date for the motion was agreed upon to accommodate Mr. Bogue’s vacation.

•                     The issues to be determined are primarily based on an analysis of the litigation materials Mr. Bogue prepared and do not appear to require complex financial or other analysis. He has been aware of the allegations for some time.

•                     The Law Society acted quickly as the number of complaints and comments by judges about Mr. Bogue mounted in a relatively short period.

•                     Mr. Bogue did not prepare any materials. He has not taken steps other than speaking with two lawyers and he proceeded with his vacation and work on his clients’ files. While there is a right to counsel in Tribunal proceedings, a licensee who wishes to exercise that right must quickly find counsel who is available on an urgent basis when a motion such as this is brought.

•                     The total time he requests to prepare is more than two months, which is too long when an urgent, ongoing risk to the public is alleged.

Considering both substantive and procedural issues, we concluded that the adjournment should be granted on the term that there be an interim interlocutory suspension.

(Mike Frisch)

June 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)