Monday, August 14, 2017

Kids At Play; Meth At Work

The Indiana Supreme Court upheld the sentence enhancer for a meth lab operator because of the proximity of the lab and a public park.

Nestled against the Ohio River, tucked away in rolling hills and limestone bluffs, lies picturesque Madison, Indiana. For that historic river town, Thursday, August 21, 2014, began as “just your normal” peaceful summer morning. Schools were in session. The sun was low. The temperature was warm, not yet blistering.

But something had been cooking on West Second Street—and it wasn’t apple pie. Around 10:00 a.m., a team of police entered Corey McAlpin’s apartment and noticed a “horrible” odor, like that of “50 cats . . . with no litter box.” They soon learned why: the apartment was an active methamphetamine lab. Police found an abundance of meth-making supplies, including two active hydrochloric acid gas generators, a reaction vessel, a mangled plastic bottle, plastic tubing, drain cleaner, an empty box of pseudoephedrine, petroleum fuel, a cold pack, a razor blade, scales, syringes, a glass pipe, meth residue, and a mutilated lithium battery. McAlpin was arrested on the spot.

Two blocks from this meth operation sits Bicentennial Park. Pictured below, this city park features a wide-open green space surrounded by a residential neighborhood. It also has an outdoor amphitheater, restrooms, convenient parking, and sidewalks wrapping around and cutting within. The park does not, however, have benches, playgrounds, or trees

[aerial photo]

The State used Bicentennial Park’s proximity to McAlpin’s apartment to enhance his charges to Level 4 felony dealing in methamphetamine, Level 5 felony possession of precursors, and Level 5 felony possession of methamphetamine. To prove these drug-free-zone enhancements, the State needed to show that McAlpin committed the crimes “within five hundred (500) feet of a public park . . . while a person under eighteen (18) years of age was reasonably expected to be present.”

The enhancer evidence sufficed

Through aerial photos and testimony, the jury heard circumstantial evidence on the ordinary reasonable person’s expectations. The jury knew that Bicentennial Park is not buried in an exclusively industrial or commercial district, where homes and families are sparse. Instead, the park is surrounded by residences. And appropriate for a neighborhood park, it offers an outdoor amphitheater, restrooms, parking, and sidewalks. It also boasts the area’s largest wide-open green field. The jury could reasonably conclude that this field, especially on a pleasant summer morning, is an attractive place for minors to unwind—to run, walk, crawl, throw a frisbee, fly a kite, play catch, play tag, play Red-Rover, and indulge in countless other youthful pastimes.

Again, this may have been a close call for the jury. Schools were in session. The park had no playground. It had no benches for resting, no shade trees to block the August sun. But the jury was free—indeed, instructed—to weigh these facts using its “common sense.” See Halsema v. State, 823 N.E.2d 668, 673 (Ind. 2005). The jury could reason, for example, that not every child attends school or is school age, not every child needs a playground to have fun, and not every child needs shade at 10:00 a.m...

To protect Hoosier youth from methamphetamine, our General Assembly has enhanced the penalty for dealing the drug within 500 feet of a public park where a person under 18 was “reasonably expected” to be present. Here, after seeing and hearing the evidence, the jury found the “reasonably expected” element satisfied. Unable to second-guess that fact-sensitive decision, we affirm McAlpin’s enhanced conviction. 

The court reversed a divided Court of Appeals. (Mike Frisch)

August 14, 2017 | Permalink | Comments (0)

Bencher May Not Represent Attorney In Bar Investigation

Counsel for an accused attorney in a bar matter has been removed by the Tribunal Hearing Division of the Law Society of Upper Canada.

The investigation involves real estate transactions.

The Lawyer was called to the bar in 1988, and is a partner in a Toronto law firm where he has practised for over 20 years. The Lawyer first learned of the investigation that resulted in this proceeding in January 2014. On February 22, 2017, the Law Society served a Notice of Application on the Lawyer, alleging, among other things, that the Lawyer knowingly assisted in dishonesty or fraud in connection with three real estate transactions.

On February 28, 2017, the Lawyer retained Mr. MacKenzie to act as his counsel in this proceeding. Mr. MacKenzie is undoubtedly a recognized expert in professional responsibility and discipline, having authored a leading text on the subject and having acted for numerous lawyers involved in discipline proceedings, and for the Law Society, prior to his election as a bencher in 1995.

As a consequence

This is a motion brought by the Law Society for an order removing Gavin MacKenzie as counsel for Barry Mitchell Polisuk (the “Lawyer”). The basis for the motion is that Mr. MacKenzie is a former Treasurer of the Law Society and an ex officio bencher, and Convocation policy prohibits a bencher from representing a licensee in a discipline proceeding. In the alternative, the Law Society submits that Mr. MacKenzie’s representation of a licensee in this proceeding may be perceived as a conflict and as having an undue influence on the outcome of the proceeding. Counsel for the Lawyer submits that Mr. MacKenzie has now resigned from his position as ex officio bencher, and accordingly nothing precludes him from acting on behalf of the Lawyer. 

 We have decided to grant an order removing Mr. MacKenzie as counsel for the Lawyer. We agree with the Lawyer that Mr. MacKenzie is entitled to resign as an ex officio bencher. However, at the time he accepted the retainer in this matter he was in breach of the Law Society’s policy which prohibits a bencher from representing a licensee in a discipline proceeding. Although Mr. MacKenzie has now resigned, a reasonable cooling-off period following his resignation as bencher is required before he can resume acting on behalf of licensees in proceedings before the Law Society Tribunal. It is open to Convocation to consider what a reasonable cooling-off period should be. However, the short period of time that has passed since Mr. MacKenzie’s resignation on April 19, 2017 is not sufficient. In these circumstances, Mr. MacKenzie’s representation of the Lawyer is not compatible with the principles of self-regulation which require that the Law Society act in a fair and transparent manner, and be perceived by the public to be so doing.

Benchers are disqualified

Counsel for the Lawyer, submits that the 1995 Report was adopted at a time when discipline hearings were presided over exclusively by benchers, who sat on discipline committees and in Convocation. It is for this reason that Convocation prohibited benchers from appearing as counsel before “committees of benchers or Convocation.” Although the policy was never repealed, conduct hearings today do not take place before a committee of Convocation, but rather before the independent Law Society Tribunal. Accordingly, the Lawyer submits that the 1995 Report does not preclude benchers who are not adjudicators with the Law Society Tribunal from representing licensees before the Tribunal.

We do not agree. The language of the 1995 Report specifically refers to “discipline” proceedings. The 1995 Report was clear that “even the slightest perception of a conflict of interest in these proceedings much be scrupulously avoided at every stage of the proceeding.” The clear intent of the 1995 Report was to preclude benchers, including ex officio benchers, from representing licensees in discipline proceedings.

This position was made abundantly clear in April 2011 when Convocation considered and approved a proposed policy respecting the prohibition on representation of licensees. This policy was made on the recommendation of the Professional Regulation Committee. 


These concerns do not end on the day after a bencher leaves office whether by resignation or otherwise. The public’s perception of a bencher appearing as counsel for a licensee in a discipline proceeding the day after leaving office is no different than the day before they left office. This raises the same concerns about undue influence, and could serve to erode public confidence in self-regulation. It is generally recognized that a reasonable cooling‑off period is required before a former member of a board or tribunal can appear in proceedings before that board or tribunal. This is provided for in the Tribunal’s Adjudicator Code of Conduct, which specifically provides for a one-year cooling-off period. We conclude that, the Law Society Tribunal does have the discretion to preclude former benchers from acting for a licensee in a hearing, where there has not been a reasonable cooling-off period.

In the circumstances of this case, we are of the view that it is appropriate to exercise our discretion and preclude Mr. MacKenzie from representing the Lawyer in these proceedings. We do so for two reasons.

First, at the time Mr. MacKenzie entered into a retainer to represent the Lawyer in these proceedings, he was in breach of the Law Society’s policy with respect to conflict of interest. Although he was acting in good faith throughout, it was incumbent on Mr. MacKenzie to satisfy himself that he was not in a conflict of interest prior to entering into a retainer with the Lawyer.

Second, the fact that Mr. MacKenzie ultimately addressed the conflict by resigning from his position as an ex officio bencher, does not, in our view, cure the problem. As discussed above, a reasonable cooling-off period is required before a former bencher can resume representing licensees before the Tribunal.

(Mike Frisch)

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

No Reciprocal Sanction In Georgia For Federal Court Discipline

The Georgia Supreme Court rejected the imposition of reciprocal discipline based on a rather quirky federal court sanction

This disciplinary matter is before the Court on the Report and Recommendation of the Review Panel of the State Bar, recommending that respondent James Hugh Potts II (State Bar No. 585677) receive a public reprimand as substantially similar reciprocal discipline, due to his six-month “suspension” from the “Trial Bar” for the United States District Court for the Northern District of Illinois on November 4, 2016.

In the Illinois matter

The record shows that the discipline imposed against Potts by the Illinois federal court arose from his participation, along with co-counsel, in a 2013 qui tam lawsuit, filed pursuant to the federal False Claims Act. The judge overseeing those proceedings found that Potts had authorized and acquiesced in the filing of an affidavit in support of his co-counsel’s admission to practice before that court, which contained misstatements about the nature and length of Potts’s relationship with co-counsel. In the Illinois federal court, membership in the “General Bar” is necessary to file an appearance or participate in any proceeding, whereas membership in the “Trial Bar” is reserved for experienced attorneys who have met certain qualifications in order to appear as trial counsel without supervision. Pursuant to the judge’s recommendation, the Executive Committee for that court initiated disciplinary proceedings and subsequently suspended Potts from the Trial Bar for one year; the suspension was later reduced to a term of six months. Based on these facts, the State Bar sought the imposition of a public reprimand as “substantially similar discipline.” Rule 9.4 (b) (3). Potts excepted to this recommended sanction on various grounds. 

While the referee favored reprimand as the comparable sanction

We conclude, however, that the discipline imposed on Potts by the Illinois federal court does not qualify as a “suspension” within the meaning of our Rules of Professional Conduct. Because reciprocal discipline is appropriate only where a lawyer admitted to practice in Georgia “has been disbarred or suspended in another jurisdiction,” Rule 9.4 (b), such discipline is not proper here.


This Court’s rejection of reciprocal discipline here does not, however, foreclose the Bar from exercising its discretion, should it so elect, to pursue a disciplinary matter against Potts for violations of the Georgia Rules of Professional Conduct in connection with his misconduct in the Illinois federal court. See Rule 8.5 (a) (“[a] lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs”) (emphasis added).

(Mike Frisch)

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

Saturday, August 12, 2017

Hollow Gestures

The Virgin Islands Supreme Court  fined an attorney for conduct in an appeal

This matter comes before us due to the failure of Robert Leycock, Esq., court-appointed counsel to appellant Alan Nigel Archibald in the above-captioned case, to comply with numerous orders of this Court. For the reasons that follow, we find Leycock in civil contempt and refer his conduct to the Office of Disciplinary Counsel for further investigation...

Here, Leycock does not dispute that he failed to comply with the September 20, 2016, October 19, 2016, November 22, 2016, February 2, 2017, and March 8, 2017 orders, and as explained in greater detail above, all five orders were clear and unambiguous as to what was expected of him. Therefore, the only issue is whether Leycock diligently attempted to comply with those orders in a reasonable manner.

We conclude that he did not. At the June 13, 2017 show cause hearing, Leycock provided this Court with no explanation at all as to why he failed to comply with the September 20, 2016 and October 19, 2016 orders with respect to the filing of the TPO, or the February 2, 2017 and March 8, 2017 orders requiring him to file physical copies of the brief and the joint appendix. Moreover, his June 19, 2017 response also does not address those matters. Notably, these deadlines were not only found in those orders, but in the Rules of Appellate Procedure as well, see V.I. R. APP. P. 10(b)(1), 40.3(h), which Leycock, as part of the registration process for use of the VISCEFS, was required to certify his compliance with, see V.I. R. APP. P. 40.2(c)(5). And while Leycock ultimately filed the TPO on December 5, 2016, and filed physical copies of the brief and the joint appendix on April 11, 2017, all of these documents were filed months after the original due date, and only after this Court had to issue multiple orders to compel their filing. Moreover, Leycock’s primary explanation that he failed to show cause, in writing, as required by the November 22, 2016 and May 12, 2017 orders—that he figured this Court would at some point require him to show cause in person—is wholly unreasonable. Consequently, these acts—at best—represent only “hollow gestures” that “do not represent a diligent attempt at compliance.” McIntosh, 2013 WL 991250, at *4.

A fine and a referral

In addition to the resources expended by this Court in its attempts to get Leycock to comply with the pertinent rules and order—including those associated with holding the June 13, 2017 show cause hearing—we cannot ignore that the appeal process was delayed as a result of Leycock’s conduct,  and that the public was deprived of the opportunity to view a case file that otherwise would have been public had the required redactions been made. After weighing these factors, we conclude that a fine of $1,000, payable to the general fund of the Government of the Virgin Islands, represents the appropriate monetary sanction for Leycock’s civil contempt. Burke, 50 V.I. at 356.

Finally, we also find it appropriate to refer Leycock to the Office of Disciplinary Counsel for further investigation into his conduct. All judicial officers of the Virgin Islands are required to take appropriate action upon receiving information indicating a substantial likelihood that a lawyer has committed a violation of the Virgin Islands Rules of Professional Conduct. See V.I. CODE OF JUD. CONDUCT R. 2.15(D). Unfortunately, Leycock’s repeated failure to comply with this Court’s rules and orders potentially implicates several ethical rules.

(Mike Frisch)

August 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Excessive Fee: Attorney Censured For Charging $250 Per Hour To Talk To Plumber

A censure has been imposed by the New Jersey Supreme Court for misconduct described in a letter opinion of the Disciplinary Review Board

...respondent represented "X,’’ a ninety-two-year old nursing home resident, retired World War II naval officer, and retired Madison Avenue advertising executive. Although respondent had served as X’s counsel since 1997, the relevant period in this matter runs from February 15, 2010 to August 30, 2012. During that time, respondent billed X $92,122.50 in fees, of which $19,522.50 represented charges for non-legal services. X died in September 2015.

The attorney's spouse was the daughter of a close friend of X and was granted authority as attorney-in-fact.

At the time, X, a single person, had no friends or relatives able or willing to serve as attorney-in-fact. Thus, the POAs named respondent’s wife, Michelle, and their son, Matthew, as attorneys-in-fact. X had known Michelle, the daughter of X’s long-time friend, for many years -- much longer than X had known respondent...

The parties stipulated that, between February 2010 and August 2012, respondent billed X a total of $92,122.50 in fees. Of this amount, $19,522.50 represented fees charged for non-legal services. In determining that the fees charged, as a whole, were unreasonable, the Board attributed significance to several billings and invoices. First, during the two-week period between February 15, 2010, when X was admitted to HUMC, and February 28, 2010, when X executed the POAs, respondent billed $4,150, representing 16.6 hours at $250 per hour. The bill included numerous charges for non-legal work relating to X’s condominium, such as $1,375 (5.5 hours at $250 per hour) for a conference with a plumber, a neighbor, and a house cleaner at X’s residence, in anticipation of listing the condominium for sale, in addition to the review of documents there.

Second, respondent charged an excessive amount of fees after X had made the decision to apply for Medicaid, which required X to "spend down" his assets. Specifically, on March 8, 2010, respondent introduced X to Jacqueline Saltzman, MSW, C-ASWCM, an elder care services provider. From that date until July 2010, Saltzman served as X’s geriatric care manager. Saltzman was paid $1,800 from X’s accounts for her services.

The board rejected a number of stipulated violations but found the attorney had charged excessive fees

The Board rejected the stipulated violations of RPC 1.7(b), RPC 1.15(a), and RPC 8.4(c). Although the parties stipulated that respondent violated RPC 1.15(a) by dissipating X’s assets in the form of excessive fees, the Rule applies to funds already in the possession of an attorney, who, as a consequence, must see that the funds are safeguarded. Further, the Board did not view RPC 8.4(c) to apply, in light of the absence of any evidence that the bills submitted to X were fabricated or fraudulent. Finally, the Board considers RPC 1.7(b) as identifying the procedures with which an attorney must comply to avoid violation of RPC 1.7(a). The Board does not view subsection (b) to provide a separate basis of violation...

Respondent acknowledged that "most" of the work that he had done for X was for non-legal services, which he had billed at his hourly legal fee rate. Indeed, respondent was concerned that X was depleting his assets in ways that were not prudent or wise. Yet, respondent maintained, X felt that he had no control over his life and that no one was listening to him. Thus, X was willing to spend money to ensure that someone was "standing up and taking care of things that [X] would normally do." Despite what may have been respondent’s good intentions, the Board found that his fees, as a whole, were unreasonable, in violation of RPC 1.5(a).


Although the Board considered, in aggravation, that respondent’s conduct involved a vulnerable and elderly client, the extensive mitigation rendered the imposition of a term of suspension inappropriate. In this regard, the Board took into consideration respondent’s unblemished disciplinary record of forty-three years; his cooperation in the disciplinary investigation; his ready admission of wrongdoing; his contrition and remorse; his good character and reputation; and the likelihood that he will not repeat the misconduct. Moreover, the Board considered that respondent has implemented several changes to his practice to guard against similar misconduct: (i) he no longer represents clients in elder law matters or drafts POAs for clients who have no family or friends to serve as attorney-in-fact; (2) he obtains signed retainer agreements from clients; and (3) he no longer bills clients for non-legal services, even at the client’s request.

(Mike Frisch)

August 12, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 11, 2017

"We Are Hesitant...To Ground A Finding Of Professional Misconduct On A Post Hoc Parsing Of Semi-Spontaneous Oral Statements Made During The Heat Of Trial"

A majority of the Indiana Supreme Court has concluded that disciplinary charges against a prosecutor were not proven by clear and convincing evidence

At relevant times, Respondent served as a deputy prosecuting attorney in Marion County. In 2012, Respondent represented the State during the trial of Bruce Ryan on charges of sexual misconduct with a minor. In 2013, Respondent represented the State during the trial of Brandon Brummett on charges of child molesting and sexual misconduct with a  minor. Both trials resulted in convictions and, in the ensuing direct appeals, each defendant’s convictions were challenged on grounds of prosecutorial misconduct. Based on the appellate records that were before us, and applying the well-settled standards for reviewing such claims in a criminal setting, we concluded that prosecutorial misconduct indeed had occurred in each trial. We reversed Brummett’s convictions, summarily affirming the Court of Appeals’ conclusion that the cumulative effect of several of the challenged actions by Respondent and her co-counsel amounted to fundamental error. Brummett v. State, 10 N.E.3d 78 (Ind. Ct. App. 2014), aff’d on reh’g, 21 N.E.3d 840, summarily aff’d in relevant part on transfer, 24 N.E.3d 965 (Ind. 2015). We affirmed Ryan’s convictions after concluding the misconduct did not rise to the level of fundamental error. Ryan v. State, 9 N.E.3d 663 (Ind. 2014).

A referee appointed to hear the resulting bar charges found no misconduct had been proven. The Disciplinary Commission then sought review.

The hearing officer relied heavily on our decision in Matter of Smith, 60 N.E.3d 1034 (Ind. 2016), which we issued after the instant case was charged and tried but before the hearing officer issued his report. Like the instant case, Smith involved a deputy prosecutor charged with professional misconduct in the wake of an appellate reversal of a defendant’s conviction on grounds that included prosecutorial misconduct. Also like the instant case, the Commission’s prosecution of the disciplinary action in Smith was structured largely around the notion that a criminal appellate finding of prosecutorial misconduct was dispositive of the question of professional misconduct in disciplinary proceedings. We rejected this notion in Smith and we do so again here...

At issue in the instant disciplinary proceedings are one portion of Respondent’s closing argument during the Ryan trial and six portions of her closing argument in the Brummett trial. Most of these instances were addressed and held to have been prosecutorial misconduct in the respective criminal appeals. Similar to the respondent in Smith, Respondent has attempted in this disciplinary proceeding to provide additional context for the events at issue. And like Smith, the hearing officer ultimately found Respondent’s testimony credible.

The parties and the hearing officer have exhaustively dissected the segments of closing argument at issue, as framed by the additional context provided during these disciplinary proceedings. We find Respondent’s post hoc explanations as a whole to be somewhat less convincing than the extrinsic evidence adduced in Smith, but we also are hesitant on these facts to ground a finding of professional misconduct on a post hoc parsing of semi-spontaneous oral statements made during the heat of trial. Keeping in mind the Commission’s burden of proof and the emphasis we afford factual findings arising from the hearing officer’s opportunity to observe witnesses directly and adjudge their credibility, a majority of this Court accepts the hearing officer’s report and recommendation and concludes that the Commission’s allegations of professional misconduct against Respondent have not been clearly and convincingly proven.

A note of caution

We caution that by no means should our opinion today be read as an endorsement of Respondent’s actions. For the reasons outlined in Ryan and Brummett, we continue to disapprove of arguments that invite a conviction for reasons other than a defendant’s guilt, impugn the integrity of defense counsel, or otherwise create a “good guy / bad guy dichotomy” between the respective roles of the State and defense counsel. Arguments of this nature, whether intentionally or carelessly made, endanger the defendant’s right to a fair trial and the probability that any resulting conviction will survive appellate review. It is no small thing for a conviction to be reversed and a case retried, particularly in cases such as these involving allegations of sex offenses against children; it delays justice, places a strain on limited judicial resources, and forces victims and others to testify yet again. Respondent’s conduct in these cases caused one conviction to be lost, placed another at unnecessary risk of being lost, and placed herself at risk of professional discipline. Prosecutors would be well-advised to exercise better care in crafting their presentations to juries than Respondent did here.

Indystar reported on the Brummett case and links to the opinion of the Court of Appeals. 

It is hard of reconcile the result here with the findings and conclusion of that court as the conduct was apparently more than an isolated episode

Here, the prosecutor not only impugned the integrity of defense counsel but also suggested that the role of defense lawyers was to help guilty men go free. Id. We agree with Brummett that the prosecutor attempted to create a good guy/bad guy dichotomy that portrayed defense counsel as the “bad guy.”

...Here, as in Gaby, the credibility of the girls is the central issue in the case. Id. We find that the prosecutor’s statement that “these kids do not . . . they do not lie about the Defendant,” was not based on any evidence outside of the girls’ testimony and conclude that the statement constituted improper vouching.

...The attitude displayed by the prosecutor in the above exchange amounts to belligerence toward the defendant. We agree with Brummett that the questions were argumentative and inflammatory and amounted to prosecutorial misconduct.


We conclude that the prosecutor engaged in prosecutorial misconduct by improperly distinguishing between the role of the defense and the prosecution, by improperly vouching for the State’s witnesses, and by asking argumentative and inflammatory questions. The cumulative effect of this misconduct amounted to fundamental error, as it placed the defendant in grave peril and made a fair trial impossible. Consequently, the defendant is entitled to a new trial.

That is a fair amount of misconduct to excuse under ethics rules that govern the profession.

The Indiana Lawyer had the story of a prior reprimand.

DePrez, who began practicing in May 2007 and worked in the prosecutor’s office sex crimes division, was arrested in July 2009 for drunk driving in Broad Ripple. She faced charges of driving while intoxicated and leaving the scene of an accident, but a special prosecutor from Monroe County allowed her to plead guilty and avoid that drunken driving conviction. She pleaded guilty in November to reckless driving, and received 24 hours of community service and 90 days on nonreporting probation.

Spokeswoman Susan Decker with the prosecutor’s office wasn’t sure what DePrez has been doing since, but said she is being re-hired for the same position she held before the drunken driving incident. DePrez restarts in the sex crimes unit June 7, despite the public reprimand from the Indiana Supreme Court on Rule 8.4(b) and an order to pay for costs of the disciplinary proceedings.

(Mike Frisch)

August 11, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Couple Of Hatmakers

The Tennessee Supreme Court disbarred an attorney who had previously been disbarred for misappropriation. 

Lafollette Press noted his recent plea to theft charges.

The Knoxville News Sentinel had reported

A Campbell County attorney who also serves as a municipal judge for LaFollette, Tenn., has been suspended after admitting he stole more than $220,000 from clients, records show.

The Tennessee Supreme Court late last week ordered Wesley Hatmaker suspended from the practice of law amid an investigation of thefts from client trust accounts spanning years and a filing of disciplinary charges against him by the Tennessee Board of Professional Responsibility.

The BPR, which polices attorneys, asked for the immediate suspension of Hatmaker's license on Jan. 28. Disciplinary counsel William C. Moody wrote in the suspension petition Hatmaker "had misappropriated funds and poses a substantial harm to the public."

In documents provided by the board to the News Sentinel on Friday, a series of thefts are outlined, including one in which Hatmaker repeatedly lied over a period of years to the executor of an estate he was supposed to represent.

Hatmaker's attorney, Thomas S. Scott Jr., sent two separate letters to the board on Jan. 26 in which he said Hatmaker admitted the thefts alleged in a formal complaint filed by the estate executor, as well as lying to the executor, and disclosed two other thefts involving client estates.

In the first incident in which a complaint was filed with the board on Jan. 21, Kelly L. Ray of Ohio said she discovered Hatmaker had received a check in 2009 totaling $20,731 that was supposed to have gone to the estate of which she had been appointed as executor. Hatmaker "informed me that the estate needed to remain open for a set amount of time to allow TennCare to file a claim against the estate, should they choose to do so," Ray wrote.

He later told Ray that TennCare had filed a claim and, over the next five years, concocted various stories about why the hearing was delayed, including that a judge had died, another judge "didn't like" Hatmaker and a third judge had awarded TennCare half the money, records show. None of that was true, attorney Scott conceded in his letter on behalf of Hatmaker.

In the two remaining thefts, Hatmaker admitted to the board he stole at least $163,000 from a dead man's estate to cover what Scott said was a $160,000 embezzlement by Hatmaker's wife, Thalia M. Hatmaker, from a Knoxville country club, and another $39,000 from the estate of another dead man. Both thefts occurred in 2009, the letter stated.

Thalia Hatmaker is charged in Knox County with a tax-related financial conspiracy crime. The details were not provided in a Criminal Court file. Wesley Hatmaker has not been charged.

Hatmaker has been licensed to practice law since 1991 and served as traffic court judge for Lafollette.

(Mike Frisch)

August 11, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, August 10, 2017

Tennessee Reprimands But Did It Cite The Proper Rule Violation?

A decision issued today is summarized on the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has affirmed a public reprimand for Knoxville attorney Danny C. Garland, II, based on his professional misconduct. 
In 2014, the Tennessee Board of Professional Responsibility filed a petition for discipline against Mr. Garland. The petition alleged, in part, that while handling an adoption case, Mr. Garland failed to communicate appropriately with his clients, failed to exercise reasonable diligence in his representation, and committed professional misconduct. A hearing panel found that Mr. Garland had violated the Rules of Professional Conduct and recommended that he be publicly reprimanded. The hearing panel considered his misconduct in handling the adoption case, his prior disciplinary record, and his experience in the practice of law. Mr. Garland appealed to the Knox County Chancery Court, which affirmed the hearing panel’s decision. Mr. Garland appealed to the Supreme Court.
The Supreme Court affirmed the judgment of the trial court. In an opinion authored by Justice Sharon G. Lee, the Court held that Mr. Garland failed to keep his client reasonably informed about the status of the adoption case, failed to promptly comply with his client’s requests for information, and failed to act with diligence in his representation, thereby causing a lengthy delay in the resolution of the adoption. In particular, the Court found Mr. Garland’s firm policies, practices, and procedures for communicating with clients and monitoring case files to be ineffective. The Court upheld public censure as an appropriate sanction for Mr. Garland’s professional misconduct.
In a dissenting opinion, Justice Holly Kirby determined that the Board of Professional Responsibility should have proceeded against Mr. Garland under the rules governing a lawyer’s supervision of and responsibility for the conduct of his nonlawyer staff. Because the Board failed to do so, the hearing panel did not make the proper findings for review by the Supreme Court.
To read the majority opinion authored by Justice Sharon G. Lee and the dissenting opinion of Justice Holly Kirby in Danny C. Garland, II v. Board of Professional Responsibility, visit the Opinions section of
From the dissent
Rule 5.3 was tailor-made for situations such as the one presented in this case. Mr. Garland had delegated to his nonlawyer staff responsibilities for taking client inquiries by email and telephone while he was in court, in depositions, or in meetings, for keeping his clients informed regarding the status of their matters, and for making certain that important correspondence and developments that demanded action were brought to Mr. Garland’s attention. Mr. Garland’s staff failed in all of these regards. Their conduct, if engaged in by a lawyer, would have violated more than one Rule of Professional Conduct, including RPC 1.4 on communications with clients and RPC 1.3 on diligence...
There are countless lawyers in Tennessee with law practices similar to Mr. Garland’s high-volume practice, in which many daily tasks and interactions with clients are delegated to nonlawyer staff. Delegating such tasks to nonlawyer employees does not violate ethical rules, but failing to properly supervise nonlawyer employees does. It is important for practicing lawyers to understand what this Court expects from them in terms of supervising nonlawyer staff to whom mundane but important tasks are delegated. The majority opinion gives lawyers little useful information in that regard.
The majority says only that Mr. Garland “should have taken a more active role in keeping  Ms. McKeough advised,” that he “did not discover” things such as the consent order that his staff misfiled, and that his “procedures were ineffective.” The majority opinion gives lawyers no indication of what specifically Mr. Garland should have done differently. It tells them only that he fell short. I fault the Board primarily for the posture of this case. It is important for ethical charges against lawyers to be properly framed, so that the rules adopted to govern certain situations are applied to the intended situations. That was not done in this case. 
The dissent raises a very important issue that disciplinary prosecutors face every day.
 Of course the prosecutor needs to pick the right rule violation(s) to pursue.
 But beyond that there is a vigorous debate among present and former bar prosecutors as to whether to charge the disciplinary equivalent of the kitchen sink or to "go skinny" and charge the violations that identify the essence of the misconduct.
 I always favored the skinny approach if for no other reason than that I had fewer allegations to brief post-hearing. (Mike Frisch)

August 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Incompetently Represented Himself By Appearing Drunk In Court

A District Committee of the Virginia State Bar Disciplinary Board has ordered a public reprimand of an attorney for being drunk in public.

But (as Paul Harvey would say), there is a rest of the story.

The attorney appeared in court representing himself in a civil matter. Several police officers both in and out of the courtroom noticed he appeared to be intoxicated. He was asked to leave the courtroom and an officer noticed an odor of alcohol. He declined to take a breathalyser and was arrested for being drunk in public.

Those charges were not pursued when he withdrew the appeal of an earlier DUI.

In the bar case, he denied that he was intoxicated.

Notably, the cited violation was a lack of competence in representing himself!

He had not complied with the terms of a private admonition, leading to this reprimand. (Mike Frisch)

August 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Not Nyce

The web page of the Ohio Supreme Court links to a story from the Columbus Dispatch

A disciplinary board is asking the Ohio Supreme Court to permanently disbar a Columbus lawyer for improperly using his client trust account to launder more than $700,000 withdrawn from the assets of his elderly mother in the years before her death.

The Ohio Board of Professional Conduct also found that Kinsley Nyce concocted “a complete sham” to explain some of the transactions and dishonestly tried to conceal his conduct while displaying contempt for the disciplinary process and showing no remorse.

The charges against Nyce, 65, accuse him and his brother, Roger, of improperly using his office trust account and the dormant bank account of an estate to disperse money taken from their mother after she gave her sons the power of attorney over her affairs.

Barbara Nyce had more than $700,000 in assets prior to entering the first of two Vermont nursing homes in 2013, but owed the facilities about $205,000 by the time she died in 2015, the complaint states. Her sons also sold themselves their mother’s home for $10, the complaint says.

On one day in mid-2013, the Nyce brothers transferred $584,619 from their mother’s bank account, with $200,000 placed in the bank account of a closed estate, $200,000 placed in a certificate of deposit in Kinsley Nyce’s name and $177,172 used to buy a condominium in the name of Kinsley Nyce’s wife, the complaint says.

The nursing homes owed money for Mrs. Nyce’s care prior to her death are suing the Nyce brothers and their mother’s estate in federal court in Vermont in alleging the fraudulent transfer of her assets.

The board also accuses Nyce of failing to notify clients that he did not carry professional malpractice insurance.

Nyce will be permitted to make arguments with the Ohio Supreme Court arguing against the loss of his law license.

 Nyce owned the minor-league Columbus Xoggz professional soccer team in the mid-1990s and formerly served as lawyer for Central Ohio Crime Stoppers.

He also was village solicitor for the tiny town — and notorious speed trap — New Rome in western Franklin County in the early 2000s before he was fired. He became a critic of the town and its officials before the village with fewer than 150 residents was dissolved in 2004.

(Mike Frisch)

August 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

From Prosecutor To Prosecuted

The Idaho Supreme Court sanctioned a convicted former prosecutor

On April 13, 2017, the Idaho Supreme Court issued a Disciplinary Order suspending Boise attorney, Jolene C. Maloney, from the practice of law for a period of 24 months, with 18 months of that suspension withheld. The Disciplinary Order also provided that if reinstated following her suspension, Ms. Maloney will be placed on probation for a period of three ( 3) years. Ms. Maloney' s 6 -month suspension from practicing law in Idaho will be from March 10, 2017, when she closed her law practice in anticipation of being suspended, through September 10, 2017.

The Idaho Statesman reported

Jolene Maloney was serving as the top prosecutor for Boise County when she was charged with driving under the influence of intoxicants last April — a felony under Idaho law because it was her third DUI within a decade. She stepped down soon after.

Maloney pleaded guilty in January and was sentenced Friday at the Ada County Courthouse in Boise.

If she successfully completes serving 120 days in jail and seven years of supervised probation, she can petition the court to dismiss her conviction entirely under a withheld judgment. The alternative? “A prison sentence can be forthcoming if the defendant wants to take that risk,” 4th District Judge Jason Scott said.

The jail sentence is four times longer than the one recommended by the state in the plea deal reached with Maloney, and her probation will be two years longer than specified in the deal — which the judge was not legally bound to follow.

Maloney got credit for two days served in jail. Her probation officer will have 30 days of discretionary jail time that can be imposed if she’s not meeting expectations.

 She was led from the courtroom in handcuffs to begin serving the four-month sentence.

Earlier in the hearing, Maloney expressed remorse and apologized to Boise County, its Chief Deputy Prosecutor Jay Rosenthal, Idaho State Police and “those that I have put in jeopardy.” She thanked friends and colleagues for helping her get through the past year.

“This has been the hardest year of my life, publicly and privately,” she said. Her attorney said her time at an inpatient treatment facility in New Mexico may have saved her life.

Scott declined to consider any of Maloney’s stay at a treatment facility as credit for jail time served. He also denied her attorney’s request that she be put under house arrest rather than taken to the county jail, where she’d encounter people she’d prosecuted or represented.

Maloney’s attorney said the 41-year-old mother of two suffered a significant trauma and has PTSD — and that’s why she became a binge drinker. He said she’s been getting counseling for that underlying issue, and participating in support groups for both that and substance abuse.

At Maloney’s plea hearing in January, Scott said he would not be bound by the plea agreement because he didn’t want to be limited to a maximum of 30 days in jail. He said he wanted to read the sentencing investigation report before reaching any decision.

Friday, he went through a long list of mitigating and aggravating factors in the case.

In her favor: It is her first felony conviction. She’s considered a low risk to reoffend. She’s been a productive member of society. She has strong community support. She completed an inpatient treatment program. She was monitored for alcohol and had no violations.

And, Scott noted, Maloney has already been punished in many ways. She lost her job as Boise County prosecutor, was “publicly shamed” in news reports and social media, was sanctioned by the Idaho Bar Association.

But Maloney was the top law enforcement official in Boise County at the time of her offense, the judge said, and she prosecuted people for the very same crime she committed. He said that she put other people at risk by driving while intoxicated — and knew better.

Scott summarized the details of her prior misdemeanor convictions, including two DUIs, a collision with a motorcycle, and an incident where she went to a bar and left young children home alone. Her common threads, the judge said: high blood-alcohol content and an unwillingness to admit to it when confronted.

As part of her sentence, Maloney’s driver’s license will be suspended for one year, starting when she is released from jail. When she gets her license back, she won’t be allowed to drive without the permission of her probation officer and an interlock device on her vehicle.

Maloney was arrested in Garden City early on the morning of April 8 last year. Her blood alcohol level tested at .183 and .182, more than twice the legal limit of .08.

Maloney had four prior misdemeanor convictions, including DUIs in 2012 and 2013. Boise County commissioners said they were aware of Maloney’s history when they appointed her prosecutor in April 2015.

(Mike Frisch)

August 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Ethics Of Shower Gifts And Halls Of Fame

An opinion of the Connecticut Committee on Judicial Ethics addresses an important issue

A lawyer in a highly contested case is pregnant and members of the bar are hosting a baby shower in her honor. (1) May the Judicial Official, presiding over the contested case, attend the baby shower and give a gift? (2) May court staff, including the Judicial Official’s courtroom clerk and court reporter/monitor, attend the shower and give a gift?

And opines

...the Committee agreed that the rules for receipt of a gift by a Judicial Official should serve as a guide for gifts that a Judicial Official can give. The foregoing opinions generally indicate that when a person is before a Judicial Official, the Judicial Official may not accept a gift from that individual.

Based upon the foregoing, the Judicial Official was advised that he or she should not provide a gift to the attorney and should not attend the shower. The Judicial Official was further advised that, pursuant to Rule 2.12, the courtroom clerk and court reporter/monitor, assigned to work under his or her supervision on the contested case involving the pregnant attorney, should not attend or give a gift if the case is still pending while the shower takes place, but that other staff may attend. One Committee member noted that in some courthouses, judges have a different monitor in the courtroom every week or even daily. If this is the case in the Judicial Official’s situation, he or she should advise the monitor/reporter supervisor.

An opinion in a recent unrelated matter concludes

The Connecticut Women’s Hall of Fame has asked a Judicial Official to be an Honoree at its annual induction ceremony. Three individuals will be inducted and approximately 10 individuals will be recognized as Honorees. While the induction ceremony is a fundraiser, the program is designed to recognize the contributions of the women who are Inductees and Honorees. The Judicial Official has inquired if she may participate as an Honoree and, if so, if it is permissible for the Judicial Official to participate in a media interview regarding her experience that qualifies her to be an Honoree...

Based upon the facts provided, including that the event at which the Judicial Official would be recognized is designed for “Heroic Women: Honoring those who Protect and Serve”, and the major focus is on the three Inductees for their military and law enforcement service, the Committee unanimously determined that the event is not one that concerns the law, the legal system or the administration of justice within the meaning of Rule 3.7. The Committee noted that the Judicial Official could be an Honoree at a future program, based upon her service as a prosecutor and Judicial Official, if one of the major program themes concerns the law, the legal system or the administration of justice.

(Mike Frisch)

August 10, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Plot Against Client Gets Proposed Sanctions In Ohio

The Ohio Board of Professional Conduct has filed recommendations with the state Supreme Court  in two related matters that led to criminal convictions.

WFMJ. com reported

Two Youngstown attorneys will not see any prison time for violating federal law, but one of them is under house arrest.

A judge sitting in U.S. District Court in Cleveland sentenced attorneys Neal Atway of Youngstown and Scott Cochran of Austintown on Tuesday.

Forty-five-year old Cochran was fined $2,500 and placed on probation for two years after being convicted on a charge of misbehaving in court by failing to provide truthful testimony in a trial.

Atway, 49, was fined $2,000 and placed on probation for three years, with the first four months to be served on electronically monitored home confinement.

Atway was found guilty of conspiring against the rights of a client who had hired him to represent him in a federal criminal case.

Lawyers representing Cochran and Atway filed memorandums in federal court suggesting sentences for their clients.

In Atway’s sentencing memorandum, attorney Roger Synenberg suggested probation for his client, writing, “Mr. Atway is deeply remorseful, ashamed, and embarrassed by his conduct.”

Synenberg says Atway has been punished by having been found guilty of a felony and the trauma it has caused his family.

Lawyer Lynn Maro suggested that a fine be levied against attorney Cochran, saying he has already suffered significant punishment.

“While many of his clients were willing to stay with him, and many in the local legal community expressed continued support for him, the stress and his commitment to fighting the original charges against him devastated his (law) practice,” wrote Maro in the sentencing memorandum.

Atway and Cochran pleaded guilty to the less serious violations following a mistrial that was declared last March as a jury was considering evidence presented from an original six count indictment handed up against the two in February 2014.

Both attorneys and convenience store owner Mohd Rawhneh of Boardman were originally accused of taking part in a plot to extort money from another local convenience store operator.

The original charges against the attorneys included extortion, conspiracy to obstruct justice, and making false statements to investigators.


Atway had been hired by store owner Charles Muth who faced sentencing in federal court for his involvement in a drive-by shooting incident where a bullet was fired into the Boardman home occupied by the wife of Rawhneh, a rival convenience store owner.

Instead of representing Muth’s best interests, prosecutors say Attorney Atway conspired with Rawhneh to leverage money and property from Muth by leading him to believe that if he didn’t pay up, Rawhneh would appear at Muth’s sentencing hearing to urge that he receive more prison time.

Rawhneh operates the Tiger's Den Drive Thru in Howland, the Hanoverton One Stop in Hanoverton, the 7 & 30 Superette and Ohio Food Mart in East Liverpool, as well as two other stores in Ravenna and Kent.

At one point, Muth allegedly gave Rawhneh part ownership in one of his stores, and gave attorney Atway $18,000 dollars with the understanding that the cash would be given to Rawhneh, according to court documents.

Atway and Cochran pleaded guilty to the lesser charges after federal prosecutors said they would retry the case following the mistrial.

Attorney Cochran was charged with misbehavior in the presence of the court because during his March trial, Cochran testified under oath that he didn’t know before Muth’s sentencing that Rawhneh had told Atway that he would remain silent during sentencing if Rawhneh could come to an agreement with Muth.

However the U.S. Attorney says Cochran was party to a phone conversation prior to the sentencing where Atway told Muth that Rawhneh would agree to keep his mouth shut during Muth’s sentencing.

Rawhneh has already pleaded guilty to charges of aiding and abetting, conspiracy to commit wire fraud, and conspiracy to tamper with a witness, victim or an informant. He has yet to be sentenced.

The board proposes a two-year suspension for Atway  and a stayed one -year suspension for Cochran. (Mike Frisch)

August 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 9, 2017

"For Love Of Money"

The New York Appellate Division for the Second Judicial Department accepted the resignation of a convicted attorney and ordered disbarment.

A press release on the case from the Office of the United States Attorney for the Eastern District of New York

On June 24, 2016, following a five-day trial, a federal jury convicted Flom of money laundering. According to previous court filings and the testimony at trial, between December 2013 and April 2014, Flom accepted $141,300 into his bank account from investors whom he believed to be the victims of a securities fraud scheme. He then funneled those monies to a man he believed was orchestrating the fraud scheme, but who in fact was an undercover agent with the FBI—while keeping a 5% fee for himself. At trial, the jury heard that recorded conversations between Flom and the undercover agent in which Flom bragged that the letters of his name stood for “For Love of Money” and provided advice to the undercover agent about how they could use the guise of attorney-client privilege to conceal the fraud from law enforcement.

At trial and at sentencing, the government also presented evidence that between approximately February 2012 and August 2013, Flom knowingly laundered $756,168 in a nearly identical securities fraud scheme with Cecil Franklin Speight. In this scheme, investor-victims who believed they were making legitimate stock purchases were instructed to send money to bank accounts belonging to Flom, knowing he was a lawyer and believing that he was going to transfer funds to the issuers of the securities. In fact, Flom took the investor-victims’ money, kept a percentage for himself and sent the remainder to Speight. The investor-victims received only worthless counterfeit stock certificates.

On February 12, 2016, Speight was sentenced to 42 months’ imprisonment and ordered to pay $3.3 million dollars in restitution following his guilty plea to conspiracy to commit mail fraud and securities fraud.

The root of many but not all disbarments. (Mike Frisch)

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

Khalid Shaikh Mohammed Judge Removed

A decision from the United States Court of Appeals for the District of Columbia Circuit granted the recusal of a judge in the case arising from the September 11 attacks

 Petitioner Khalid Shaikh Mohammad is a detainee at Guantanamo Bay, Cuba, who is currently being tried by military commission on charges of planning and  bringing about the attacks of September 11, 2001. He asks this Court to issue a writ of mandamus directing that the Hon. Scott L. Silliman of the United States Court of Military Commission Review (CMCR) recuse himself from serving as a judge in Petitioner’s case on the basis of public statements made by Judge Silliman prior to and during his service on that court. Specifically, Petitioner identifies more than a dozen statements—from press interviews, speeches, and academic writing—that he says indicate Judge Silliman is biased against him. In addition, Petitioner asks us to vacate a June 29, 2017, opinion by a panel of the CMCR that included Judge Silliman.

Recusal is required in light of the judge's expressed views on the case

As Petitioner explains, Judge Silliman has done just that: expressed an opinion that Petitioner is guilty of the very crimes of which he is accused. Specifically, he points to an interview that then-professor Silliman gave to The World Today in 2010, prior to his appointment to the CMCR. Pet. App. 148–50. In that interview, which concerned the trial of Guantanamo Bay detainee Ahmed Khalfan Ghailani, Silliman stated that: “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others.” Id. at 149. Later in the interview, Silliman said that “[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.” Id. (emphasis added).

Those statements represent the “express[ion] [of] an opinion concerning the guilt or innocence” of Petitioner within the plain meaning of Rule 902(b)(3). While the Rule contains an exception for statements made “in the performance of duties as military judge in a previous trial of the same or a related case,” that has no application here, as Judge Silliman’s statements were not made “in the performance of duties as military judge” but before he was ever appointed to the CMCR. R.M.C. 902(b)(3). Because the Rule prescribes that a military judge who has expressed such an opinion “shall . . . disqualify himself,” R.M.C. 902(b)(3), and Judge Silliman failed to do so, Petitioner has adequately demonstrated that his “right to issuance of the writ is clear and indisputable.” Cheney, 542 U.S. at 381 (citation and internal quotation marks omitted).

The court rejected the Government's contentions that it mattered that the statements were made prior to the judicial appointment. The court further rejected the contention that the judge had not expressed his personal views concerning guilt.

Because Petitioner has satisfied all three conditions for its issuance, we grant the petition for a writ of mandamus recusing Judge Silliman and vacate the June 29, 2017, decision of the CMCR.

Judge Silliman's biography is linked here. 

Circuit Judges Rogers, Tatel and Griffith joined the per curiam opinion. (Mike Frisch)

August 9, 2017 in Judicial Ethics and the Courts | Permalink | Comments (0)

Reprimand For Post-Suspension Error

An Arizona Hearing Panel ordered a reprimand of an attorney based on misconduct findings in the wake of a suspension imposed by the state Supreme Court.

The original suspension was for criminal conduct unrelated to practice and may have been unexpected

The hearing panel erred in recommending diversion as the presumptive form of discipline appeared likely to be greater than a reprimand. On appeal, the Supreme Court ordered a three month suspension followed by one-and-one-half years of probation.

The panel here found that the attorney, once suspended, made substantial efforts to comply with the suspension order

Donna Kent, the Chief Operating Officer of Mr. Henderson’s law firm testified Mr. Henderson was “devastated” by this decision, but quickly “got down to work,” “dogged[ly]” working to ensure that he complied with the suspension Order. [Tr. 254:7-25.] He started by meeting with his lawyer, Scott Rhodes, to discuss a letter from the Bar which described the parameters of the suspension. [Tr. 334:3-15; Ex. 72. The Bar’s letter did not mention negotiations.

A negotiation matter led to the charges and findings but the panel squarely rejected the State Bar's view of the matter

Under Standard 6.1, the Bar also seeks disbarment. We fail to see how the actions of Mr. Henderson constituted “threats and intimidation” which “caused potentially serious interfere[ance] with the legal proceeding between the Robbs family and Loiselle.” After this unsupported conclusory allegation the State Bar specifies the actions of Mr. Henderson that caused the interference. “Specifically, the Loiselle matter resulted in a lawsuit filed by the Robbs against Loiselle.” [Id.]

The final concluding sentence of its Standard 6.1 argument is unsupported by the record and contains speculation that is contradictory. The State Bar concludes, “Had a licensed lawyer been involved in negotiations on the Robbs behalf, rather than a suspended lawyer engaging in unethical conduct, the lawsuit may have been avoided all together.” [Id. 18-19.] But under the Bar’s argument, Loiselle believed Henderson was a lawyer (although we find no occasion within the record where Mr. Henderson stated to Loiselle or others that he was) and did not settle. Mr. Henderson ultimately referred the Robbs to a licensed lawyer and the matter still did not settle.

Lawyers who are suspended or disbarred may not practice law or hold themselves out as eligible to practice. In Arizona, Rule 31 defines the practice of law. Mr. Henderson testified that he regretted sending the communications and in retrospect understood how a reasonable person might believe they came from a lawyer. [Tr. 360:4-22, 375:12-376:10.] However ill-advised those communications were, nothing about them indicates that Henderson intended, knew or believed they violated his suspension. 

To the contrary – Henderson’s open pattern of communications indicates that he did not believe he was violating his suspension. Henderson did not communicate in a secretive manner indicating consciousness of guilt. He sent numerous emails and letters, not only to Loiselle, See Exhibit 4 at Bates SBA102-134, Exhibits 29-34; but to third parties, including a real estate agent, Exhibit 17, and numerous officers of companies affiliated with Loiselle, Exhibit 27. Mr. Henderson did not take actions consistent with a person who was conscious that he was violating the Order and trying to “cover his tracks.” We find his actions were negligent.

While much testimony was presented seeming to raise new allegations, the complaint was not amended. We decline to consider allegations not alleged in the complaint. Nor are we convinced the unsupported conclusory opinion of the State Bar that Mr. Henderson was obligated to close his trust account is accurate.

(Mike Frisch)

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

The Designated Cashroom Partner

The Scottish Solicitors' Discipline Tribunal has ordered sanctions against an attorney as described in this summary

Edinburgh 11 May 2017.  The Tribunal having considered the Complaint dated 20 February 2017  at the instance of the Council of the Law Society of Scotland against Alison Hazel Margaret Greer, 5 Brady Crescent, Moodiesburn, Glasgow; Find the Respondent guilty of professional misconduct in respect of (a) her failure in her obligation to see that the firm, in which she was a partner with the added duties incumbent on her as Designated Cashroom Partner, complied with the Accounts Rules, in her duty to supervise the firm’s office manager and cashier, in her duty to take steps to satisfy herself that fees being charged to executries were properly so charged and that fee notes were properly rendered and to see that at all times the sums at credit of the client account exceeded the sums due to clients and (b) her continued drawing of funds from the firm while it was being financed by the overcharges to clients; Order that the name of the Respondent be Struck Off the Roll of Solicitors in Scotland; Find the Respondent liable in the expenses of the Complainers and of the Tribunal including expenses of the Clerk, chargeable on a time and line basis as the same may be taxed by the Auditor of the Court of Session on an agent and client, client paying basis in terms of Chapter Three of the last published Law Society’s Table of Fees for general business with a unit rate of £14.00; and Direct that publicity will be given to this decision and that this publicity should include the name of the Respondent but that this publicity shall not include the names of clients of the firm.

The full findings are linked here. (Mike Frisch)

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

Tuesday, August 8, 2017

North Dakota: Personal Representatives And Personal Conflicts

The North Dakota Supreme Court imposed a six-month suspension of an attorney who had engaged in a conflict of interest as attorney-in-fact and personal representative of his mother and her estate.

The will left the estate to the attorney's daughter. He fathered a son after his mother's death and wanted him to share

The hearing panel reasoned that Allen acted as the attorney for himself as the personal representative of the estate, thereby binding himself to the rules of professional responsibility, and that he had a duty "to advance the cause of the estate through his actions and counsel." The panel found that "[w]hen Allen's son was born in 2013, Allen's personal interests became adverse to the interests of the estate and contrary to his fiduciary duty because Allen wanted [his son] to receive a portion of the estate," and "[t]hese contrary interests created conflicts of interest" in violation of the rule "when Allen failed to withdraw as counsel for the personal representative." The panel reasoned, "Allen's role as personal representative and attorney for the personal representative prevented him from self-dealing with regard to the estate property" under N.D.C.C. § 30.1-18-13 (U.P.C. § 3-713), and "[b]y attempting to negotiate a proposal of which he was a direct beneficiary, Allen created . . . a conflict of interest by placing himself in a situation where he was unable to place his duty to his client before his personal interest." The panel found that "Allen's two adverse interests kept Allen from being able to consider, recommend, or carry out [a] course of action on behalf of his client" and that by continuing the representation despite the conflicts, Allen violated the rule.

But the court rejected this finding

The hearing panel found that when Allen filed the application for informal probate in April 2012, he made statements of material fact indicating the will was validly executed, he was unaware of any documents revoking the will, and the instrument submitted was Margaret Allen's last will. The panel found that sometime before his son's birth in July 2013, Allen decided the son "should be included within the distribution of the estate, even though [the son] could not take under the terms of Margaret's will." The panel found, "Allen's conclusion that [the son] became a potential heir was not shared with the court and Allen made no corrective filings to the informal probate documents, nor were any other actions taken by Allen to advance his position at that time." When Allen attempted to negotiate with Baker after the son's birth, "[n]o terms of Allen's proposals were contemplated by the will." The panel found that Allen resigned as personal representative in January 2014 and filed the petition for formal adjudication of intestacy in May 2014, claiming "for the first time . . . that Margaret's will was invalid, that [the son] took under the will, and that Allen himself was entitled to property as an intestate heir." The panel found this position was "factually inconsistent" with the April 2012 informal probate documents. The panel concluded the rule was violated because "Allen failed to correct a statement made to the court when he did not inform the court that the previously provided information, which had been the basis for the informal probate, was now believed to be incorrect after further consideration of Margaret Allen's will."

The court's decision to impose a moderate sanction was influenced by the unlikelihood that the misconduct would recur.

The hearing panel recommended that "a more severe sanction of disbarment is warranted" in this case, but determined "Allen's lack of a disciplinary record merits a downward departure." The panel further recommended that "Allen's conduct is egregious and he should be made to demonstrate to the Court that he has taken steps to ensure that such conduct will not occur in the future." In addition to Allen's lack of a disciplinary record, we are persuaded to depart downward because the circumstances that led to discipline here are unlikely to reoccur.

No mothers left presumably.

Justice Crothers concurred

Our decision today makes clear that lawyers acting in a non-lawyer representational capacity are exposed to disciplinary sanction for professional misconduct AND potentially limit their future ability to assert personal claims. I agree with the Court's order. I write separately to highlight what I believe is the impact of our ruling on the ability of a family member-lawyer to later assert any claim against a decedent's estate. Specifically, if a lawyer agrees to serve in a familial fiduciary capacity such as a personal representative, the lawyer likely is barred from using information obtained in that capacity (and by the inherent simultaneous representation by the lawyer under Rule 1.7) in any subsequent proceeding involving the estate...

Reading Rules 1.71.8 and 1.9 together leads to the conclusion that lawyers acting as family member-personal representatives are barred in the future from asserting any claims that may adversely affect the former client. This limitation applies whether the lawyer personally asserts a claim or later represents another party against a successor personal representative. The Rules presumably bar such claims whether a lawyer self-represents or hires counsel. The exception is when a personal representative (meaning the successor personal representative) expressly consents according to the particular requirements in Rules 1.7(d)and 1.8(b)See Majority, at ¶ 19.

 I write separately to highlight these constraints placed on lawyers and to point out that today's case will broadly impact a lawyer's ability to assert future claims. In light of our ruling, lawyers should advisedly and cautiously accept representational positions in family-related matters where they might have a personal interest that is or might be adverse to the estate.

(Mike Frisch)

August 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Ineffective Assistance In Failure To Pursue Fantasy Defense

The United States Court of Appeals for the District of Columbia Circuit granted a new trial on a showing of ineffective assistance of counsel in defending a case where the defendant wanted to offer expert testimony that he was engaged in online fantasy rather than an attempt to sexually entice a minor.

In particular, [expert] Dr. Berlin observed that online fantasizing can seem very real, but a layperson would not necessarily know that, and that a person could be aroused by talking about child sex without then proceeding to seek sex with children.

Dr. Berlin also rebutted certain quasi-expert assertions made at trial by Detective Palchak, such as that there are only three categories of chat participants who engage in child-sex fantasy: (1) those who masturbate while chatting online, (2) those who want to go offline for phone sex, and (3) those who actually want to meet and engage in sex with a child. If those three categories were exhaustive, Laureys would fall into the third, because he left his house and drove to the District of Columbia for a sexual encounter. But Dr. Berlin would have testified that Palchak’s list of categories was not exhaustive, and that significant numbers of chat participants are interested in meeting one another to have adult sex while fantasizing about children. And, whereas Palchak testified that people interested only in fantasy chat will reveal that right up front, Dr. Berlin would have testified that, in fact, it can be very difficult to distinguish chats in which adults are arranging for sex with children from chats in which adults are arranging to meet one another and pretending that a child will join them. Finally, Dr. Berlin testified that Laureys’ history of promiscuity with adult men, as well as a series of Laureys’ prior chat transcripts in which a discussion of child sex was followed by an invitation to meet the other adult male participant, led Dr. Berlin to conclude there was a high likelihood that Laureys was interested in having sex with Palchak while fantasizing about children. All of that testimony would have bolstered Laureys’ testimony that he sought to meet with Palchak to “engage in homosexual activity while indulging in [taboo] fantasies.”

The court

Here, trial counsel recognized from his very first meeting with Laureys that a mental health expert would be necessary to his defense, and rightly so. Laureys has steadfastly maintained his innocence, despite the existence of a chat transcript in which he discussed child sex in graphic detail, because he insists that he was only engaging in fantasy and that his actual intent was to engage in an adult sexual encounter while fantasizing about a child. Such a defense might seem unimaginable to the average juror absent a clinical presentation regarding, for instance, the prevalence of fantasy in internet chat rooms, or the use of fantasy chat as a coping mechanism to deal with inappropriate or unlawful sexual urges. Therefore, with trial counsel having correctly identified the need for a mental health expert, the question is whether his failure to provide that expert at trial “fell below an objective standard of reasonableness,”

...trial counsel’s error led to the complete failure to provide expert mental health testimony that trial counsel himself recognized was necessary, thereby depriving Laureys of an adequate defense. This was a slow-moving train wreck, one set in motion long before Dr. Berlin’s eventual exit; indeed, it played out as the trial judge had predicted seven months before trial. It was thus unreasonable for trial counsel, so warned, to have done so little to avert it...

Turning to prejudice, there is no question that Laureys’ defense, and his own testimony, would have been significantly bolstered by expert testimony regarding fantasy chat and, more specifically, the existence of a subculture of men who meet first online and then offline for sex with one another spurred on by child sex fantasies, such that a “reasonable probability” of a different outcome at trial exists.

Circuit Judge Rogers authored the opinion. (Mike Frisch)

August 8, 2017 | Permalink | Comments (0)

In the Pinck

A public censure has been imposed by the New York Appellate Division for the First Judicial Department for a comparable sanction imposed in New Jersey.

The professional misconduct arose from respondent's purchase of the law practice formerly known as Pinck & Pinck, LLP. In April 2013, Lawrence and Justin Pinck sold their law practice to respondent. Respondent failed to publish a notice of his purchase of the law practice, in violation of NJRPC 1.17(c)(3). Further, respondent stipulated that he accepted approximately 130 active files from the Pincks despite not sending, and knowing that the Pincks had not sent, 60-days' prior notice of the transfer to the clients, in violation of NJRPC 1.17(c)(2). Respondent charged 44 of those clients additional fees in violation of NJRPC 1.17(d). Respondent also violated NJRPC 8.4(a), which provides that it is professional misconduct for an attorney to "violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another."

In his affidavit of consent, respondent explained that this misconduct arose from his exercise of poor judgment in agreeing to take over cases from the Pincks. The transaction transpired quickly, without respondent performing due diligence, based upon his trust in Lawrence Pinck, a long-time colleague. Respondent had not been aware of the requirements set forth by NJRPC 1.17 regarding the sale of a law practice and expressed remorse for not adhering to the disciplinary rules.

While the obligations regarding practice purchase notification differs in the two jurisdictions

The remaining misconduct for which respondent was disciplined in New Jersey does constitute misconduct in this State. NJRPC 1.17(c)(2), which requires the seller of a law practice to provide clients with 60-days' prior notice of the sale, is analogous to RPC rule 1.17(c)(2), which requires the seller and buyer of a law practice to jointly provide each of the seller's clients with 90-days' prior notice. Further, NJRPC 1.17(d), which provides that "[t]he fees charged to clients shall not be increased by reason of the sale of the practice," is analogous to RPC rule 1.17(e), which provides that "[t]he fee charged a client by the buyer [of a law practice] shall not [*3]be increased by reason of the sale, unless permitted by a retainer agreement with the client or otherwise specifically agreed to by the client." Further, NJRPC 8.4(a) and RPC rule 8.4(a) contain identical language prohibiting lawyers from violating or attempting to violate the rules of professional conduct, knowingly assisting or inducing another to do so or doing so through the acts of another.

Respondent has already stipulated to the finding of misconduct. As respondent's admitted violations of NJRPC 1.17(c)(2) and (d) and 8.4(a) also constitute misconduct in this State, the imposition of reciprocal discipline is appropriate.

(Mike Frisch)

August 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)