Tuesday, September 11, 2018

"Without A Clear Understanding Of The Underlying Facts"

A petition for voluntary discipline was rejected by the Georgia Supreme Court

we do not accept a Review Panel reprimand as a sufficient sanction for a putative Rule 8.4 (a) (4) violation without a full understanding of the underlying facts.

The attorney pleaded to a charge that he had affixed a client's name to a document in a forfeiture matter

According to the petition, Dorer signed a verification for his client and had his assistant notarize the verification. If the signature purported to have been affixed by the client himself, that certainly could amount to deceit or a misrepresentation. The signature, however, did not purport to have been affixed by the client. To the contrary, the signature was followed immediately by the notation “WEP DD,” which any reasonable lawyer would understand to be a disclosure that the signature was affixed by “DD”—presumably Dorer—with the express permission of his client. When a lawyer signs a document for a client, with the express permission of the client and disclosing to those to whom the document is directed that the signature was affixed by the lawyer for the client, the lawyer has committed no ethical violation. To the contrary, that is something lawyers routinely do.

Chief Justice Melton dissented

In line with this precedent, Dorer has asked for this appropriate discipline, and the State Bar has agreed to this resolution. Under these clear-cut circumstances in which the petitioner admits to the crime, agrees that he has violated the applicable rule, and requests the appropriate punishment, we should accept the petition for voluntary discipline. To do otherwise, as the majority does, simply frustrates the efficiency of the disciplinary process, both from the perspective of protecting the integrity of the State Bar and allowing the disciplined petitioner to reach the resolution of his case.

(Mike Frisch)

September 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 10, 2018

Less Than Disbarment

The Georgia Supreme Court accepted a petition for voluntary discipline of an 18 month suspension of an attorney who pleaded guilty to a felony Peeping Tom charge

The indictment charged him with unlawfully going upon a residential premises of a named individual for the purpose of becoming a peeping tom, at which time he peeped through the windows of the residence and invaded the individual’s privacy. Dale was sentenced, as a first offender, to four years to be served on probation, provided that he complies with the terms of his probation, which include that he pay restitution to the victim in the amount of $1,200, that he perform 40 hours of community service, and that he serve four weekends in jail. The State Bar acknowledges that these three conditions have already been satisfied, and also that Dale has paid a fine and surcharges to the court, and that he pays monthly probation and Georgia Crime Victims Emergency Fund fees of $32. Dale also remains subject to producing specimens as requested to be tested for the presence of drugs and alcohol, and to protective and no-contact orders with respect to the victim and her family, as well as a waiver of his Fourth Amendment rights.

Mitigating factors justified a sanction less than disbarment

The record includes numerous letters from individuals who have known Dale for a significant period of time in various roles and settings. Each of the letters expresses the writer’s opinion that Dale’s conduct represents an aberration in an otherwise commendable life. Some of the writers indicate they have personal knowledge that the criminal conduct arose at a time when Dale was facing a challenging time in his personal and professional life. And some of the writers vouch for the fact that Dale has expressed deep remorse for his conduct and that they believe he has been rehabilitated. The State Bar agrees that the voluntary discipline sought by Dale is an appropriate level of discipline under the circumstances and in light of the applicable mitigating factors.

(Mike Frisch)

September 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Georgia Remands Denial Of Military Spouse's Waiver Petition

The Georgia Supreme Court has vacated a ruling denying a military spouse's waiver request

Harriet O’Neal filed a waiver petition with the Board of Bar Examiners on November 30, 2017, asking that she be allowed to practice law in Georgia without sitting for the Georgia bar exam and without meeting the usual requirements for admission without examination. Specifically, O’Neal based her request for a waiver on her status as the spouse of an active member of the military who had been transferred here. The Board denied O’Neal’s request, and she now appeals this ruling. For the reasons set below, we vacate the Board’s decision and remand with direction...

The record shows that O’Neal sent information to the Board in an attempt to comply with the military spouse waiver policy. In response, as noted above, the Board provided no specific reasons to O’Neal supporting the decision to deny her request for a waiver. Instead, the Board sent O’Neal a letter stating that “there was insufficient evidence of good cause for a waiver.” ” In its briefs to this Court, however, the Board listed, for the first time, specific reasons for denying O’Neal’s request for a waiver: (1) O’Neal had previously taken only the Louisiana Bar Examination, which covers state civil law and not common law, and does not have a performance test comparable to the Multistate Performance Test; (2) O’Neal has limited experience in the practice of law because she was only admitted to practice in 2014, and she has “worked three different legal jobs in Louisiana in the past three years;” and (3) O’Neal had low grades in law school. This reasoning appears to incorporate elements of both the military spouse waiver policy.,,, and other general waiver guidelines, as more fully discussed below. 

Holding

...pursuant to this Court’s inherent power in matters of attorney discipline and bar admissions, we vacate the Board’s decision and remand this case to the Board to clearly apply the military waiver policy and explain why O’Neal has or has not met the waiver requirements. 

AJC reported at length on her situation in June

Harriet O’Neal knew her life as the wife of a U.S. Army infantry captain could be frequently uprooted. Such was the case last year when her husband was transferred to Fort Benning from a posting in rural Louisiana.

O’Neal, a lawyer, took solace in the fact Georgia is one of 29 states in the country that gives military spouses the chance to practice law without having to take the grueling state bar exam after moving here. So O’Neal applied for the waiver, only to be rejected.

The 29-year-old lawyer is appealing that denial to the Georgia Supreme Court. Although she is representing herself, her case has picked up support from top Georgia attorneys, the American Bar Association and various legal organizations. They are asking the court to grant O’Neal the waiver, which is intended to ease the financial stresses on military families that accompany relocations.

An arm of the state Office of Bar Admissions adopted Georgia’s military spouse waiver program for attorneys in 2016. In December, O’Neal became the first person to request such a waiver, said John Sammon, the office’s director. When the office rejected her request in January, it disparaged her academic record and said the bar exam she passed in Louisiana isn’t as tough as Georgia’s.

Atlanta lawyer Linda Klein, past president of the American Bar Association, said the denial sets a terrible precedent.

“Military spouses don’t relocate from one state to another by choice,” Klein said. “They relocate under orders of the U.S. military. They are sacrificing a lot for our country, so let’s meet them halfway and support our all-volunteer military.”

Klein, former associate U.S. attorney general Joe Whitley and Sloane Perras, chief legal officer of the Krystal Co., are among a group of attorneys asking the Supreme Court to grant O’Neal her waiver. The state “should make it clear that we mean what we say when it comes to unsurpassed support for our service personnel and their families,” they wrote.

Perras wishes such waivers were available when her former husband was an Air Force pilot. Because of relocations, she worked eight different jobs between 2003 and 2009 and had to pass five different bar exams within three years after graduating from law school.

“It was impossible,” she said. “(The waiver) is critical to help keep military families together and allow for a smoother transition of life.”

According to court filings, military spouses are 10 times more likely to have moved across state lines in the past year as compared to their civilian counterparts. Also, the unemployment rate for spouses of active duty service members is four times greater than for their civilian counterparts.

“The unique challenges faced by military spouse attorneys have real and lasting consequences for both individual families and the U.S. military,” said a brief filed by a national military spouse legal network, a Norcross attorney and state and national associations for women attorneys.

Because of their nomadic lifestyle, many military spouses forego their chosen careers, or their spouses leave the military, causing the armed forces “to lose talented, extensively trained and highly skilled service members,” the brief said.

O’Neal, who grew up in Louisiana, has wanted to be a lawyer since she was in the eighth grade.

“I always wanted to do something important and make a difference,” she said in recent interview. “I knew I could do that in the legal field.”

She obtained her undergraduate and law degrees from LSU and passed the Louisiana bar exam in 2014. She met her husband-to-be, Capt. Nolan O’Neal, on the dating site Tinder a year later. They married last September, a month before he received orders to move to Fort Benning for training that began in January.

At the time, Harriet O’Neal worked as a law clerk for two judges in Louisiana. Previously, she worked as a labor lawyer and as an advocate for abused and neglected children in foster care.

With a six-figure student loan debt, O’Neal was eager to find work in Georgia. She wanted to be a prosecutor or public defender because they are the attorneys most likely to be in a courtroom.

“In real life, I’m an introvert, but not when I get in court,” she said.

O’Neal said she was shocked when the Office of Bar Admissions rejected her waiver request.

“I was also confused because they didn’t give me any explanation, until I appealed,” she said. “That hit me hard, because they pretty much tore into me.”

In a filing with the Supreme Court, state attorneys said the admissions office wants to support members of the military and their spouses. But O’Neal’s transcripts show she was consistently in the bottom quarter of her class and she has worked three different legal jobs during the three years she has practiced law, the filing said.

The Louisiana bar exam does not have as comprehensive an exam as the one used in Georgia, the state added. These concerns, among others, were enough for the board to think O’Neal needs to pass the Georgia bar exam before being permitted to practice law here, the filing said.

O’Neal said there’s a reason she struggled academically. Her father was ill when she entered law school and died while she was there.

“It was a rough time,” she said.

Klein, the former ABA president, said if the Office of Bar Admissions had followed its own stated criteria when deciding O’Neal’s request, it would have granted it. O’Neal already passed the bar exam in Louisiana and is a lawyer in good standing, Klein noted.

As for the office’s swipe at O’Neal’s grades, Klein said: “What do you call the person who graduates last in his or her class and passes the bar exam? A lawyer.”

After being denied the waiver, O’Neal said she felt desperate to bring in some income. She now does contract work for a firm specializing in copyright and trademark law.

O’Neal said her husband could have stayed in Georgia for up to three years. But because of the bar office’s rejection, Capt. Nolan O’Neal put in for a transfer, and the couple will move to a post in Germany either late this year or early next year.

Even so, O’Neal will continue to pursue her appeal.

“If this was only for me, I wouldn’t have continued to fight it,” she said. “This is now for whoever comes after me."

The American Bar Association filed an amicus brief in support of the applicant. (Mike Frisch)

September 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, September 9, 2018

Tennessee Twosome

A bar discipline oral argument day for the Tennessee Supreme Court last week

Thursday, September 6, 2018

  • Nathan E. Brooks v. Board of Professional Responsibility.Nathan E. Brooks, a suspended Tennessee attorney, appeals from a decision dismissing his petition for reinstatement of his law license.  The hearing panel dismissed Attorney Brooks’ petition due to his failure to pay a $2,000.00 advance cost deposit as required by Tennessee Supreme Court Rule 9 section 30.4(d)(9).  Mr. Brooks argues that Tennessee Code Annotated section 20-12-127, the Pauper’s Oath, is applicable and excuses him from paying the advanced cost deposit because of his indigent status.  In the alternative, Mr. Brooks argues that if section 20-12-127 is not applicable, he will be denied his procedural due process rights because he will be denied the opportunity to litigate his claims in the only forum available.  The BPR argues that the Pauper’s Oath does not apply to reinstatement proceedings and that, because the license to practice law is a privilege and not a right, the required payment of an advanced cost deposit does not amount to a procedural due process violation.
  • Thomas F. Mabry v. Board of Professional Responsibility. – In this case, Mr. Mabry, a licensed Tennessee attorney, is challenging the denial of his request to be placed on disability inactive status under Tennessee Supreme Court Rule 9, section 27.4.  The hearing panel determined that Mr. Mabry had failed to establish by a preponderance of the evidence that he had a qualifying disability.  The Chancery Court for Knox County affirmed the hearing panel’s decision.  On appeal to this Court, Mr. Mabry argues that the hearing panel used the incorrect standard of proof for determining whether he had a disability preventing him from responding to or defending against pending disciplinary proceedings.  Mr. Mabry also questions the accuracy of the chancery court’s taking of judicial notice of certain facts.

Interesting cases. (Mike Frisch)

September 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Stay (Just A Little Bit Longer)

The Law Society of Upper Canada Appeal Division declined to stay sanction imposed on a paralegal pending appeal

This is a motion by Roland Spiegel for a stay of the order revoking his P1 licence pending appeal of the Hearing Panel’s Decision on Finding dated September 15, 2017 (2017 ONLSTH 188 (CanLII)). The Hearing Panel found that Mr. Spiegel had engaged in multiple particulars of professional misconduct, including breaches of the duty to be honest. 

The motion for a stay of the revocation order is dismissed...

The division concluded that he failed to raise a "serious issue" 

Mr. Spiegel vehemently insists that he has committed no misconduct whatsoever. Despite this, based on his submissions, it is difficult to discern a serious or arguable issue raised by this appeal.

He raised 21 appeal grounds to no avail in obtaining a stay

  With respect to the alleged errors of fact and respecting the credibility of witnesses, the reasons of the Hearing Panel demonstrate that it was alive to Mr. Spiegel’s position and that it carefully considered the evidence and the defenses raised by Mr. Spiegel. The Hearing Panel committed no obvious errors in this regard.

No irreparable harm

Mr. Spiegel’s inability to work in his chosen field does not give rise to irreparable harm as it can be cured if he is ultimately successful in his appeal.

Thus

 the interests of justice do not justify granting a stay and therefore the motion is dismissed. 

(Mike Frisch)

September 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 8, 2018

First Amendment Does Not Protect Threats Against Judge

A criminal conviction for threatening a judge has been affirmed by the Connecticut Supreme Court, which rejected a First Amendment defense to the charges

In the spring of 2014, Judge Bozzuto, who was responsible for managing the docket of the family court in Hartford, became involved in the defendant’s dissolution proceeding. Judge Bozzuto assumed sole responsibility for the management of the case in order to ensure that it would be adjudicated in a timely manner.

During the contentious divorce and custody matter the defendant 

in response to e-mails that he had received from Stevenson, Nowacki, and Jennifer Verraneault regarding the court motions, the defendant sent an e-mail containing threatening statements toward Judge Bozzuto to Stevenson, Nowacki, Susan Skipp, Sunny Kelley, Paul Boyne, and Verraneault, all of whom had been engaged with the defendant for some time in efforts to reform the family court system. Specifically, the defendant’s e-mail contained the following statements: (1) ‘‘[t]hey can steal my kids from my cold dead bleeding cordite filled fists . . . as my [sixty] round [magazine] falls to the floor and [I’m] dying as I change out to the next [thirty rounds]’’; (2) ‘‘[Bo]zzuto lives in [W]atertown with her boys and [n]anny . . . there [are] 245 [yards] between her master bedroom and a cemetery that provides cover and concealment’’; and (3) ‘‘a [.308 caliber rifle] at 250 [yards] with a double pane drops [one-half inch] per foot beyond the glass and loses [7 percent] of [foot pounds] of force [at] 250 [yards]—nonarmor piercing ball ammunition.

In response to the defendant’s e-mail, on the morning of August 23, 2014, Nowacki sent an e-mail to the defendant stating: ‘‘Ted, [t]here are disturbing comments made in this [e-mail]. You will be well served to NOT send such communications to anyone.’’ The defendant then sent another e-mail to Nowacki and Boyne in which he again suggested that he was contemplating violence against Judge Bozzuto and her family. 

Then

Verraneault sent a screenshot of the contents of the e-mail to an acquaintance who was an attorney, Linda Allard. After discussing the matter with Verraneault, Allard informed Judicial Branch officials and the state police about the e-mail and they, in turn, informed Judge Bozzuto.

Victim impact on the judge, who was recently profiled in the Connecticut Law Tribune. 

Judge Bozzuto testified at trial that, after she learned about the e-mail, ‘‘every night when I [got] home . . . as soon as . . . I pull[ed] up to the driveway and pull[ed] in . . . every time I [got] out of that car I look[ed] up on the hill in the back where all the brush and trees are and [thought] of only [the defendant]. . . . [T]hose bumps in the night, it’s when the dogs start[ed] barking in the middle of the night and the first thing that [came] to my mind [was the defendant].’’ As a result of the e-mail, she ‘‘did a massive upgrade of security at the house, installing cameras and lights.’’ Judge Bozzuto also provided her children’s school with a mug shot of the defendant and put school officials on alert. State police surveilled her house for a week or two after Judge Bozzuto learned about the e-mail, and judicial marshals escorted her from her office to her car in the evening. Judge Bozzuto also contacted a sister whose daughter was taking care of Judge Bozzuto’s dogs, and told her not to let her daughter go to Judge Bozzuto’s residence without a police escort.

He was arrested and sought dismissal of the threats in the first degree charges that ensued

The trial court found the defendant guilty of threatening in the first degree, two counts of disorderly conduct, and breach of the peace in the second degree. In its memorandum of decision, the trial court considered separately the questions of whether (1) the language of the defendant’s e-mail constituted a true threat that constitutionally could be punished, and (2) the defendant had knowingly disregarded the risk that the e-mail would cause Judge Bozzuto to be terrorized.

The court here rejected a contention that his subjective intent was dispositive and affirmed

We conclude...that § 53a-61aa (a) (3) is constitutional under the first amendment as applied to threatening speech directed at a private individual.

...we conclude that § 53a-61aa (a) (3) does not violate the free speech provisions of the state constitution because those provisions protect a broader range of threatening speech than does the first amendment.

No special speech protection for threats against a judge or other public official

We next address the defendant’s claim that threatening speech that is directed at a public official is subject to a higher standard than speech directed at a private individual under the free speech provisions of both the federal and state constitutions. We disagree with both claims.

...we conclude that the constitutional framers did not intend to protect the right to seek redress from a public official by way of a ‘‘remonstrance’’ when the speaker was aware that there was a substantial and unjustifiable risk that the public official would interpret the ‘‘remonstrance’’ as a serious threat of violence. We conclude, therefore, that § 53a-61aa (a) (3) is constitutional under the state constitution as it is applied to threatening speech directed at public officials.

The court also rejected evidentiary and sufficiency of evidence claims.

The defendant has defenders as reflected by this blog post and several posts linked here. 

The Hartford Courant reported on the conviction and on more recent charges

According to the arrest warrant affidavit for Taupier's arrest, alarming posts to Facebook were brought to the attention of staff at the Middletown courthouse in January. State police were notified and obtained information from Facebook about what Taupier allegedly posted.

Another post read, "Kill court employees and save the country," and others threatened police and threatened the judge who Taupier was convicted of threatening at his 2015 trial, according to the affidavit.

A Facebook page promotes his candidacy for Governor of Connecticut. (Mike Frisch)

September 8, 2018 | Permalink | Comments (0)

Friday, September 7, 2018

Client Autonomy And Concessions Of Guilt

The Louisiana Supreme Court has reversed a murder conviction, finding that defense counsel's concession of guilt over the defendant's objection amounted to ineffective assistance of counsel

During the trial, defense counsel conceded defendant killed [12 year old victim] Justin. However, defense counsel argued that the jury could not find defendant guilty of first-degree murder because the state failed to prove defendant had specific intent to kill and failed to prove defendant was engaged in an aggravated kidnapping or a second degree kidnapping when Justin died. The defense rested in the culpability phase of the trial without calling any witnesses.

A unanimous jury found defendant guilty of first-degree murder and determined defendant should be sentenced to death.

The court cited the recent United States Supreme Court decision  in McCoy v. Louisiana, -- U.S. --, 138 S. Ct. 1500 (2018). 

In this case, Mr. Horn argues his Sixth Amendment right to counsel was violated when his attorney conceded his guilt over his explicit objection. The record demonstrates that defendant’s attorney admitted that defendant killed Justin and also suggested to the jury that the evidence supported a finding that he molested, or attempted to molest Justin. Counsel specifically told the jury he was not asking them to find defendant “not guilty,” and further stated that the facts fit second-degree murder or manslaughter. The record further demonstrates that Mr. Horn disagreed with his counsel’s decision to concede guilt as part of the defense strategy and that defendant made the district court aware of the disagreement both before and during the trial...

In this court, defendant asserts the Supreme Court’s decision in McCoy is dispositive and requires a reversal of his conviction. By contrast, the state suggests McCoy is not controlling in this case because defendant did not claim outright innocence and instructed his attorneys to make an argument for accidental killing under the negligent homicide statute. After review of the record and considering the Court’s decision in McCoy, we reject the state’s argument and decline to restrict application of the holding in McCoy solely to those cases where a defendant maintains his absolute innocence to any crime. McCoy is broadly written and focuses on a defendant’s autonomy to choose the objective of his defense. Although Mr. McCoy’s objective was to pursue a defense of innocence by presenting an alibi defense, Mr. Horn’s objective was to assert a defense of innocence to the crime charged and the lesser-included offenses, i.e. asserting his innocence to any degree of murder. Mr. Horn was charged with first-degree murder. The only verdicts the jury was permitted to enter were “guilty,” “guilty of second degree murder,” “guilty of manslaughter,” or “not guilty.” See La. C.C.P. art. 814. The jury would not have been permitted to enter a plea relative to negligent homicide. The fact that defendant instructed his attorney to admit guilt to this different crime as part of his defense objective did not give defense counsel the authority to admit guilt to the crime charged or the lesser-included crimes, and does not cause us to disregard the holding of McCoy. While defense counsel may use his professional judgment to develop defense theories and trial strategies based on his assessment of the evidence, he cannot usurp the fundamental choices provided directly to a criminal defendant under the Constitution.

Chief Justice Johnson authored the opinion. Justice Weimer concurred and wrote on the sufficiency of evidence for first degree murder. (Mike Frisch)

September 7, 2018 in Clients | Permalink | Comments (0)

Age Of Consent (Disbarment)

The Arizona Presiding Disciplinary Judge has accepted an attorney's consent to disbarment.

Sonoran News reported on criminal charges

Former Cave Creek Attorney Noel Hebets, 66, was arrested on Aug. 3 and charged with five counts of sexual exploitation of a minor under the age of 15, a class 2 felony dangerous crime against children.

Acting on a tip provided by the National Center for Missing and Exploited Children (NCMEC), detectives from the Arizona Internet Crimes Against Children Task Force of the Phoenix Police Department served a search warrant at the home of Attorney Noel Hebets on north 48th Street in Phoenix.

The search warrant was part of an ongoing investigation that led to Hebets’ residence based on the IP address of his internet account.

Numerous images were reported to NCMEC and forwarded to Phoenix police detectives depicting children being sexually abused and exploited being uploaded from Hebets’ IP address.

According to the probable cause statement, several of the images depicted young, prepubescent female children either posing in the nude in an exploitative position or being sexually abused and/or assaulted by adult males.

The Internet service provider was served with a subpoena for the subscriber’s information, which revealed Hebets’ residence on 48th Street.

Numerous computers were located during the early morning raid and a forensic preview was conducted on the computers at the scene.

The forensic preview located several image files depicting the sexual exploitation of prepubescent females.

One of the photos described in the probable cause statement was a full-color image of an adult male engaging in anal intercourse with a prepubescent female child, with no breast development or pubic hair, who appeared to be in significant distress.

Numerous other images were located during the forensic preview.

Additional forensic analysis will be completed to locate all images and videos on all the various media sources and computers.

During the search of the residence, numerous documents were located with the same email address and user names initially reported.

The same software programs that were reported as being utilized to send images of children being sexually exploited were located on Hebets’ computer and images depicting the sexual exploitation of minors were located in folders associated with the software programs.

Multiple bondage items were found during a search of the residence along with small dolls and children’s clothing.

When Hebets was interviewed, he admitted to using a variety of programs found on his computer during the preview.

The probable cause statement called Hebets, whom it said has access to children living in the area and images depicting young children being sexually assaulted, a danger to the community and requested bond be set at no less than $100,000.

However, the court ordered Hebets released with an appearance bond of $5,000 but with the caveat he must have an electronic monitoring device installed before he could be released.

The court also determined Hebets is not indigent and is financially able to pay for a lawyer. So far there has not been a notice of appearance by any defense counsel.

Hebets’ financial information provided to Pretrial Services Agency reveales he owes delinquent back taxes to the IRS.

Recorded documents reveal he owes over $120,000 in back taxes to the IRS.

Hebets last appeared before Cave Creek Town Council in January 2016 representing Jim O’Toole and the Roadhouse, in an attempt to resurrect the patio the Roadhouse constructed in the town’s right-of-way without permits or permission and was forced to remove.

Hebets annoyed members of council when he repeatedly referred to the illegal construction as a “trial period” and said they just wanted permission to put it back exactly the way it was during the “trial period.”

Irritated, Councilman Dick Esser finally said, “What happened here was not a ‘trial period.’”

Hebets responded, “I think ‘trial period’ was a name I gave it.”

Sexual exploitation of a minor carries a prison term of 10 to 24 years.

(Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

From Taylorville To Shelbyville

A former candidate for judicial office has been charged with misconduct in a recent complaint filed by the Illinois Administrator

 Under Illinois law, the Resident Circuit Judge for a particular county and any candidate for election to that office must reside within that county. Under Illinois election law, a residence must be a permanent abode; and the elements of residency require (1) physical presence and (2) the intention to remain in that place as a permanent home.

At all times alleged in this complaint, Respondent owned a home in neighboring Christian County, Illinois, in Taylorville; Respondent had a physical presence and resided in the Taylorville home with his wife and their two young sons; Respondent received mail at the Taylorville home; and Respondent used his Taylorville home address for his personal banking, financial and tax purposes. Until at least December 6, 2017, Respondent’s Illinois driver’s license address and his Illinois voter registration address were his Taylorville home address.

At all times alleged in this complaint, Respondent’s home in Taylorville was his residence and permanent abode. Respondent intended to keep the Taylorville home as his residence and permanent abode unless and until he would win the Republican nomination for Resident Circuit Judge for Shelby County and acquire a family home in Shelby County.

Michael Locke and his wife Kristee Lee Locke ("the Lockes") were acquaintances of Respondent. In 2017, the Lockes and their two children lived in a large one-room loft apartment which they rented at 601 S. Vine Street, Shelbyville, Illinois, in Shelby County.

On or shortly before December 6, 2017, Respondent asked the Lockes for permission to use their address in order for him to run for election to the office of Shelby County Resident Circuit Judge. Specifically, Respondent wanted the Lockes’ permission to state their address as his address on documents and for campaign purposes. The Lockes agreed. Respondent and the Lockes understood that Respondent would not move in, reside, or have a physical presence at their address.

On December 6, 2017, Respondent and Kristee Locke signed a "lease agreement" that Respondent had drafted. The agreement provided that Respondent would pay the Lockes $50 per month as rent, and that Respondent would pay $200 for four months’ rent in advance.

Also on December 6, 2017, Respondent submitted an application to the Shelby County Clerk to change his voting address to 601 S. Vine Street, Shelbyville. Respondent placed his signature on the application beneath a statement declaring that he "lived" in the election precinct for that address "at least 30 days from the date of the next election" and that the information he provided was "true to the best of my knowledge under penalty of perjury."

Also on December 6, 2017, Respondent submitted a notice of change of address to the Illinois Secretary of State in which he gave the Lockes’ address as his new address. As a result, the Secretary of State issued a temporary driver’s license to Respondent that stated that his address was 601 S. Vine Street, Shelbyville.

At no time in 2017 and through the date of the primary election on March 20, 2018, was 601 S. Vine Street, Shelbyville, or anyplace in Shelby County, Respondent’s residence or permanent abode. At no time did Respondent reside or live at 601 S. Vine Street, Shelbyville.

Respondent’s representations in the application for change of voting address which he submitted to the Shelby County Clerk and in the notice of change of address which he submitted to the Illinois Secretary of State were false, because Respondent did not live or reside at 601 S. State Street, Shelbyville, or in the election precinct for that address.

Effingham Daily News reported that he withdrew from the race. (Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

My Big Fat Greek Divorce

A decision yesterday from the Delaware Supreme Court

This is an interlocutory appeal in a Family Court divorce proceeding. The petitioner in the Family Court is the wife, Gretchen Knowles (“the wife”). The respondent/husband, Gene Daskin (“the husband”), is a Greek citizen residing in Greece. The appeal comes from the husband. He raises two claims: (1) the Family Court erred in finding it had subject matter jurisdiction over the wife’s divorce petition because she was not a Delaware resident for six consecutive months prior to the filing of the petition; and (2) the Family Court erred in finding that service of process upon him was sufficient without requiring that service be properly made under the Hague Service Convention.

The story

The wife is a dual citizen of the United States and Greece. She was born in Wilmington and resided with her mother at her mother’s Wilmington home prior to the parties’ marriage. They married in Wilmington in 1990, and from then until November 2015, resided together in Greece.

Throughout the marriage, the wife traveled frequently between the United States and Greece. In November 2015, she traveled to Delaware for what she states in an affidavit was a permanent move back to this state because of marital difficulties between she and her husband. She moved into her mother’s house and still resides there. Her mother is now deceased. She states that her mother’s house is to be sold and she has bought another house in Wilmington to live in once her mother’s house is sold. She states that she returned to Greece from December 2016 to January 2017 to celebrate the Christmas holiday with her children and friends. She then returned to Delaware. On March 19, 2017 she returned to Greece to attend the funeral of her husband’s mother. She explains that in the Greek Orthodox Church, the mourning process includes the funeral and then a memorial service held 40 days after the funeral. She returned to Delaware May 16, 2017. She has health insurance in Delaware and a vehicle which is registered in Delaware. She is a Delaware taxpayer, maintains a Delaware driver’s license, and is registered to vote in Delaware. 

The husband contends that the time the wife has spent in Delaware since 2015 is temporary and for limited purposes. He contends she was not a resident of Delaware for the six months preceding the filing of her divorce petition. In his affidavit, the husband states that the wife pays taxes in Greece, has a Greek social security number, has a Greek identity card and has accounts in Greek banks. He also states that the wife continues to maintain a private marketing business out of their home in Greece. He states her trip to the United States on May 16, 2017 was to see their son graduate from an American University. He also states that the wife’s presence in Delaware was for the temporary purpose of caring for her mother and visiting their sons, both of whom attended American universities. The wife owns several properties in Greece. The husband’s position is that she is a resident of Greece, not Delaware.

She filed for divorce in late May 2017.

On subject matter jurisdiction

The Family Court did not simply deny the husband’s motion to dismiss for lack of jurisdiction on this ground. It went further and determined that the wife had in fact met the statutory requirement. We do not understand this ruling because at best the record below on the point was contested. In fact, the wife admits that she spent more days outside of Delaware in the six-month period before she filed for divorce that she did within Delaware, that a majority of those days were spent in Greece, and that she shared the same bedroom with her husband in their longstanding marital home in Greece for over a month during this period. In fact, that period ended on the very date the wife says that the parties separated. Given this record, the husband makes a colorable argument that his motion to dismiss should have been granted. After all, the plain language of 13 Del. C. § 1504 requires that the wife have lived in Delaware continuously for 6 months before filing for divorce, and someone who lived more than half of that period outside Delaware would not seem to qualify. Even if we do not give the traditional weight to the statute’s plain language and suppose that the wife may have created enough of a basis to avoid a motion to dismiss if one focuses solely on her alleged side of the story, it is plain to us that a material issue of fact existed and that there was no basis for the Family Court to resolve this issue conclusively without an evidentiary hearing. We therefore vacate this ruling...

On service

The Family Court has not obtained jurisdiction over the husband because service of process was insufficient. The Family Court’s denial of his motion to dismiss on the grounds of insufficiency of service of process was error.

(Mike Frisch)

September 7, 2018 | Permalink | Comments (0)

Web Of Lies, House Of Cards

A three-month suspension has been imposed by the New Jersey Supreme Court in a matter described in the report of the Disciplinary Review Board

This matter stems grievant Jazaar Redding, from respondent’s representation of through the Office of the Public Defender (OPD) as a pool attorney. Respondent did not notify Redding about a hearing on his petition for post-conviction relief (PCR) before appearing on his behalf and then engaged in a web of lies and misrepresentations to the judge, to the OPD, and to the DEC with regard to his conduct.

He had failed to notify the client of a hearing and signed the client's name to a waiver of appeal rights with a tiny "poa" notation.

The presenter argued further that respondent’s excuses spanned the original representation, the PCR hearing, the investigation, and the DEC hearing itself. As the presenter noted, "excuses can carry a lawyer only so far. Ultimately excuses become so numerous that, like a house of cards,they collapse on their own weight."

Further

At the outset, we note that neither respondent’s nor Redding’s testimony was entirely credible. Nevertheless, the DEC properly found respondent guilty of all of the above violations. It is undeniable that respondent took actions contrary to his client’s wishes by that Redding did not wish to appeal the court’s determination. Prior thereto, he failed to notify Redding of his upcoming hearing. Afterwords, he failed to inform him of the outcome. During the course of the representation, respondent made misrepresentations to the court and to the OPD. He lied to the court about his efforts to contact Redding, which ultimately negatively impacted Redding’s ability to pursue an appeal...

A parsing of respondent’s testimony leads to the inescapable conclusion that, when called upon to explain his misconduct, he offered one contradictory explanation after another.

As per usual, the DRB cites to the depressingly lenient history of New Jersey sanctions for webs of lies and houses of cards. (Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Parts Now Known

A Louisiana Hearing Committee proposes the permanent disbarment of an already suspended attorney for theft from his employer.

He was working as an accountant.

He defaulted on bar charges of theft and embezzlement, involving two unauthorized checks written on his employer's business account totalling $4,000. The checks were made payable to his girlfriend.

When confronted by the employer, he denied the crime but "fled to parts unknown." He was arrested in Miami and extradicted to Mississippi.

He now faces the criminal charges in Mississippi. (Mike Frisch)

September 7, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, September 6, 2018

"I Can Do That" Is Not Only A Chorus Line Song

The Florida Supreme Court has removed a circuit court judge from office

Judge DuPont was elected to the Seventh Circuit bench in 2010. At the time, he was thirty-eight years old and had six years of legal experience.

Case related misconduct

In April 2011, approximately four months into his first term, Judge DuPont presided over a hearing involving support of a minor child. When Judge DuPont questioned the absence of a certificate for successful completion of a parenting class, the husband explained that he did not take the class because he lacked the necessary funds. Judge DuPont then ordered his bailiff to search the husband for money. The search yielded $180, which the man claimed he was holding for someone else. Judge DuPont immediately turned the $180 over to the wife, ordering it credited to outstanding child support.

The court-ordered search was reported by law enforcement officers to Judge Terrill J. LaRue, then administrative judge for the Seventh Circuit. Judge LaRue thought that Judge DuPont had simply made a rookie mistake. He explained to Judge DuPont that he had employed “a very poor procedure” which should not be used again. Judge LaRue was taken aback when Judge DuPont insisted, “I can do that” and “we do that all the time in St. Johns County.”

He hired an opposition research team to trash his 2016 opponent

DuPont’s campaign website listed “imposter information,” suggesting Anthony was using “aliases.” It connected Anthony’s name change to “HideYourPast.com,” insinuating that Anthony had secrets in his past that he sought to conceal. It indicated that Anthony had received three parking tickets for parking in a handicapped zone, with associated “booking dates,” suggesting arrests when there were none. As “Possible Matching Arrest Records for Family/Known Associate,” the website listed three arrest records for Andrea Anthony and twenty one arrest records for Elizabeth Anthony, the candidate’s then-twenty-one-year-old daughter. Neither had ever been arrested. Elizabeth is a second lieutenant serving with the Army Corps Reserves, and, at the time the information was posted on Judge DuPont’s campaign website, was enrolled in veterinary school in Gainesville, Florida.

Conclusion

Judge DuPont committed egregious misconduct during his campaign to attain his office. Under these circumstances, we cannot allow Judge DuPont to serve the term of his judgeship. Based on the misrepresentations Judge DuPont made during his campaign to attain his office as well as the other instances of misconduct during his time in office, we conclude that Judge DuPont has demonstrated a present unfitness to hold office and approve the recommended discipline of removal from office.

(Mike Frisch)

September 6, 2018 in Judicial Ethics and the Courts | Permalink | Comments (0)

Elder Law Attorney Consents To Disbarment

The New Jersey Supreme Court has accepted an attorney's consent to disbarment.

JSHN reported

Attorney General Christopher S. Porrino announced that prominent Ocean County attorney Robert Novy, who hosted a radio show and taught seminars on elder law, was arrested today on charges that he stole more than $1.2 million from elderly clients. The victims in some cases did not have close relatives to guard their interests or suffered from dementia. Detectives of the Division of Criminal Justice arrested Novy, 65, of Brick, N.J., on charges of first-degree money laundering, second-degree theft by unlawful taking, and second-degree misapplication of entrusted property. Novy will be lodged in the Ocean County Jail with bail set at $500,000.

In addition to arresting Novy, detectives this morning executed a search warrant at the offices of Novy & Associates, LLC, on Ridgeway Avenue in Manchester, seizing billing records and other evidence. The Attorney General’s Office obtained a court order freezing over $3.5 million in assets held in various bank accounts of Novy and his law firm. Attorneys from the Division of Criminal Justice also applied for a Superior Court judge to appoint a trustee to oversee the business operations of the law firm.

The charges are the result of an ongoing investigation by the Division of Criminal Justice Financial & Computer Crimes Bureau, assisted by the New Jersey Division of Taxation Office of Criminal Investigation. The case was referred to the Division of Criminal Justice by Ocean County Surrogate Jeffrey W. Moran. Novy also was investigated by the New Jersey Office of Attorney Ethics, which issued an ethics complaint against him on Jan. 26, 2016, and assisted the Division of Criminal Justice.

From 2010 through 2015, Novy allegedly stole more than $1.2 million from four clients. He allegedly laundered most of the funds through his attorney trust accounts and/or attorney business accounts. The Division of Criminal Justice, as part of its ongoing investigation, is looking at other large suspicious financial transactions involving numerous other clients of Novy. Novy has participated in educational seminars on topics of elder law and hosted a bi-monthly radio program “Inside the Law,” which focused on topics of concern to senior citizens.

“While Novy held himself out as a leading legal advocate for the elderly, we allege that he corruptly used his reputation and his law license to prey on vulnerable seniors, taking control of their finances and stealing more than $1 million from their life savings.” said Attorney General Porrino. “In his greed, Novy not only betrayed his oath as a lawyer to uphold the law, he betrayed all standards of decency.”

“When senior citizens hire a lawyer to put their financial affairs in order, they should be able to trust that they will be treated honestly and with respect. Instead, Novy is charged with deviously draining his clients’ estates,” said Director Elie Honig of the Division of Criminal Justice. “We urge anyone with information about such thefts by Novy to contact our office.”

Attorney General Porrino and Director Honig urged anyone with information about alleged misappropriation of client funds or other suspicious transactions involving Novy to contact the Division of Criminal Justice’s toll-free tipline 1-866-TIPS-4CJ to report the information confidentially.

In conducting the investigation, the Division of Criminal Justice obtained and reviewed voluminous bank records and conducted an extensive financial analysis. The investigation revealed that Novy allegedly stole funds from elderly and deceased clients who, in some cases, did not have a close relative to claim their estate or challenge Novy’s actions. Novy gained control through wills, powers of attorney, and trust documents, making himself the sole financial decision-maker for these clients.

Typically, Novy transferred funds from the personal bank accounts of the clients to his lawyer trust accounts. It is alleged that he then excessively billed the clients without any supporting invoices, withdrew funds from the trust accounts, and deposited funds into his personal bank account or the law firm’s operating account. In some instances, Novy allegedly withdrew funds from his clients’ personal bank accounts and deposited the funds directly into his personal bank account or law firm’s operating account. When clients had sizeable assets in the form of an annuity or life insurance policy, Novy allegedly directed insurance companies to redeem the policies and send the money directly to him.

It is alleged that Novy engaged in the following thefts from clients:

He allegedly stole $78,000 from an 88-year-old woman who suffered from dementia, billing the woman and her estate a total of $78,000 that was not supported by any invoice or records showing justification.

He allegedly stole more than $176,000 from an 85-year-old woman who suffered from Alzheimer’s. Among other things, he allegedly withdrew funds directly from her personal account totaling nearly $60,000, converting them into cashier’s checks and depositing the checks directly into his personal account. In addition, he allegedly used his power of attorney to cash out an annuity the woman held, depositing over $122,000 into his attorney trust account and then issuing checks from that account to his law firm totaling $117,000, claiming they were “power of attorney fees.”

He allegedly stole at least $459,000 from an 87-year-old woman. Among other things, he deposited proceeds totaling roughly $387,000 from two annuities into his attorney trust account, and subsequently transferred those funds into his law firm’s business accounts. He claimed part of the money was for attorneys’ fees and power of attorney fees, but he did not justify those huge fees.

He allegedly stole nearly $550,000 from another elderly woman. He allegedly transferred nearly $300,000 that he held for her in his attorney trust account into the firm’s business accounts without any invoices or evidence that legal services were provided. On another occasion, Novy allegedly wrote himself a check for $250,000 from the woman’s personal bank account and deposited it into his own personal bank account.
In some cases, when challenged by trustees or relatives about particular funds that had been withdrawn from client accounts, Novy claimed they were “administrative errors” and repaid the funds. The Division of Criminal Justice is continuing to investigate suspicious transactions related to more than a dozen additional clients of Novy.

Deputy Attorneys General Peter Gallagher and William Conlow are assigned to prosecute Novy. They investigated the case for the Division of Criminal Justice Financial & Computer Crimes Bureau with Detective Anne Hayes, who was lead detective, Detective Jordan Thompson, Analyst Terri Drumm, and Civil Investigator Wayne Cummings, under the supervision of Deputy Bureau Chief Mark Kurzawa and Bureau Chief Michael Monahan. Deputy Attorney General Derek Miller and Investigator Debra Maiorano are handling the state’s forfeiture action.

Attorney General Porrino thanked the Ocean County Surrogate, the New Jersey Office of Attorney Ethics and the Division of Taxation Office of Criminal Investigation for their valuable assistance in the investigation. Special Agents Mike Mullane and Will Makar investigated for the Division of Taxation Office of Criminal Investigation.

First-degree money laundering carries a sentence of 10 to 20 years in state prison, including a mandatory period of parole ineligibility equal to one-third to one-half of the sentence imposed, and a fine of up to $500,000. Second-degree crimes carry a sentence of five to 10 years in state prison and a fine of up to $150,000.

The charges are merely accusations and the defendant is presumed innocent until proven guilty. Because the charges are indictable offenses, they will be presented to a grand jury for potential indictment.

(Mike Frisch)

September 6, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, September 4, 2018

Stealing Origination Credit Alleged

A recent complaint filed by the Illinois Administrator

From November 1, 2007 to April 23, 2018, Respondent practiced law at Kovitz Shifrin Nesbit ("KSN") , a Chicago law firm that concentrates its practice on condominium law. While employed at KSN, Respondent held the positions of associate and, later, non-equity principal.

During the time Respondent was associated with KSN, the firm had used LexisNexis’ Juris program as its practice management software, and all KSN employees are assigned a Juris profile. Among other functions, KSN had used Juris to manage their client accounts and client billing, including the attorney(s) from whom a client originated, and which attorney(s) had worked on a particular matter for a client.

During Respondent’s employment with KSN, Respondent knew that the firm’s administrative staff was solely responsible for inputting client information into Juris whenever a new client is opened at the firm. That information is based on a client intake form which was circulated amongst KSN attorneys, and which included the client’s name, property management information, the name of the property manager, and the originating attorney.

At all times alleged in this complaint, an originating attorney at KSN was the attorney responsible for bringing a particular client to the firm. Originating attorneys were eligible to receive origination credit, which were legal fees a client paid to the firm, and which counted towards the originating attorney’s book of business. Origination credit may sometimes be shared and split evenly between two or more attorneys.

In January of 2014, Respondent was promoted to the position of non-equity principal at KSN. As a non-equity principal, Respondent’s income was comprised of a base salary plus extra compensation derived from a percentage of origination credit ("origination compensation") and compensation derived from working credit, which was a percentage of what Respondent bills a client when he worked on a client matter ("working compensation"). Respondent received origination compensation regardless of whether he worked on any matters, so long as he was the originating attorney for that particular client; he received working compensation regardless of whether he was the originating attorney, so long as he worked on a matter and billed the client.

For 2014, Respondent’s origination compensation was 10%; for 2015 to 2016, his origination compensation was 15%; for 2017, 16%, and for 2018, 17%. From 2014 to April of 2018, Respondent’s working compensation was 8.333% of what he billed for the matters on which he worked.

During the entire period Respondent was associated with KSN, the right to assign and change originating attorneys to clients and client matters was restricted to KSN’s administrative department and other clerical staff. Disputes over who should receive origination credits were a frequent source of conflict at KSN, and it was KSN’s policy that no attorney at the firm would have the right to change origination credits. Once the information was entered into Juris, no origination credit could be changed from one attorney to another without the express written permission of the attorney(s) to whom the origination credit was assigned.

Sometime prior to May of 2014, Respondent inadvertently discovered that his Juris profile had the ability to make changes to origination credits, and that he could do so from his work computer.

From May 2014 to April 18, 2018, Respondent made over 200 unauthorized changes in Juris in which he either removed other attorneys with whom he was sharing origination credit, or assigned himself as the originating attorney on matters in which he was not entitled to receive origination credit.

The changes Respondent made resulted in an increase of $202,881.47 to his origination credit during the period referenced in paragraph 9, above. As a result of this increase, Respondent received at least $30,000 in additional origination compensation between May 2014 and April 2018, at the cost of other KSN attorneys.

At no time did Respondent have authority to make any of changeshe made in Juris, referenced...above.

Respondent knew that he did not have authority to make changes to the assignment of origination attorneys at the time he made them.

On April 18, 2018, a KSN attorney noticed that his origination credits had been changed without authorization and notified KSN’s managing principal, Robert Kogen ("Kogen"). Kogen subsequently conducted an investigation and discovered that Respondent had been making changes to origination credits for the previous four-plus years.

On April 23, 2018, Respondent appeared at KSN’s Mundelein office where he was questioned by Kogen and Matthew Moodhe, a member of KSN’s Executive Committee. On that same day, KSN terminated Respondent’s employment.

(Mike Frisch)

September 4, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 3, 2018

There Were Giants In Those Days

An article in The Atlantic notes the role of my mentor Sam Dash in teasing out the truth in the Watergate scandal

Once upon a time, Congress ceded the questioning at epic, televised hearings to adept questioners. In 1973, Sam Dash was enlisted from the Georgetown law faculty to be chief counsel for the Senate Watergate Committee. He was a model cross-examiner: methodical, measured and meticulous, scripting out the proceeding, as he recalled it, “like a detective story.” It was Dash who drew out Alexander Butterfield, a presidential aide, to acknowledge that President Nixon knew about the audiotaping system in the Oval Office.

Editor's note: the taping system was revealed in response to questions posed by minority counsel Donald Sanders. The questions were suggested by John Dean's testimony that he thought he was being taped in the Oval Office.

Minority Counsel Fred Thompson examined Mr. Butterfield in the public session. 

Part of Dash’s repertoire was an embrace of technology. He and his aides summarized every relevant document they could find—correspondence, government report, newspaper article—and put the summaries on a mainframe computer at the Library of Congress that was searchable by word. They had created a forebear to Google. When Dash was cross-examining former Attorney General John Mitchell, he kept getting “Well, I don’t remember” as an answer. So Dash, in real-time, called the computer people, who found the evidence Mitchell knew more. Within 10 minutes, they’d brought a printout to Dash in the hearing room.

"Show it to the witness," Dash commanded.

"Oh, well, yes, yes, I do remember," the witness admitted.

I have described my own support role in the above events in Zelig and Wallowing in Watergate

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.

Here it is 2018. John Dean is still an important player on the national stage and still speaking truth to power.
 I am proud to call him my friend.  (Mike Frisch) 

September 3, 2018 | Permalink | Comments (0)

Sunday, September 2, 2018

Neither A Lawyer Nor A Burglar Be

Recent discipline summaries from the California Bar Journal

Shell Kaminsky [#284216], 38, of Brentwood, was summarily disbarred effective August 22, 2018, ordered to notify clients of the discipline and perform other obligations under rule 9.20 of the California Rules of Court. Kaminsky pleaded no contest to a felony count of second degree burglary. Burglary is a crime involving moral turpitude. Kaminsky did not participate in the State Bar proceedings and did not provide any mitigation evidence. Kaminsky had no prior record of disciplinary matters.

Peter D. King [#282249], 41, of Livermore, was summarily disbarred effective August 22, 2018, ordered to notify clients of the discipline and perform other obligations under rule 9.20 of the California Rules of Court. King pleaded guilty to a felony charge of second degree burglary. Burglary is a crime involving moral turpitude. King did not participate in the State Bar proceedings and did not provide any mitigation evidence. King had no prior record of disciplinary matters.

The King Review Department report is linked here. 

He was admitted on March 20, 2012 and has been administratively suspended as of July 1, 2016 for non-payment of dues. An interim disciplinary suspension has been in effect as of December 26, 2017. 

The Kaminsky Review Department report may be found here. 

She was admitted on August 13, 2012, administratively suspended on July 1, 2015 and suspended for the crime on March 12, 2018.

Two very short careers at the Bar.

The Press Democrat had the story of an earlier arrest of Ms. Kaminsky

An East Bay lawyer charged with possessing methamphetamine and prescription pills when she tried to enter the Sonoma County courthouse claims she is the victim of an illegal search.

Shell Kaminsky, 31, of Brentwood is seeking to suppress evidence obtained during her July 17 arrest on grounds that she was not present when deputies looked in her briefcase.

In court papers, Kaminsky admits grabbing her phone and running after security guards went through her belongings and found nearly a gram of the illegal stimulant. She was arrested minutes later in a nearby parking lot.

But she said the briefcase wasn't in her possession later when deputies retrieved it from the court entrance where she left it. They conducted another search and turned up dextroamphetamine pills.

Because the briefcase was not under her immediate control, a suppression motion filed in her defense claims that anything found in it was taken illegally and cannot be used as evidence against her.

"Ms. Kaminsky asserts the search of her briefcase was without warrant and without other legal means to justify the search," said her lawyer, Jason Tucker, in the motion.

In their legal papers Tuesday, prosecutors argued that Kaminsky's belongings were abandoned by her and that she no longer had a reasonable expectation of privacy.

 Chief Deputy District Attorney Diana Gomez said rules regarding searches are clearly posted at the entrance to the court. Kaminsky saw them when she submitted her briefcase and wallet for inspection and later fled despite a command from a security guard to stop, Gomez said.

"The subsequent search of the property she abandoned at the station is lawful," Gomez wrote.

Kaminsky is charged with two felonies, possession of methamphetamine and possession of pills without a prescription. She's also charged with failing to subject herself to a search upon entering a courthouse, a misdemeanor.

The later charge makes her ineligible for court-ordered drug treatment programs, Tucker said.

A preliminary hearing is set for Nov. 19. The suppression issue will be decided by Judge Robert LaForge.

Any sanctions from the State Bar of California would follow a separate path. A conviction could result in a suspension of her license to practice but would not lead to automatic disbarment.

A Bar spokeswoman didn't return a call Tuesday seeking comment.

 

Kaminsky, who received her license about a year ago, was representing a client in a multi-defendant assault case when she was arrested.

Prosecutors said she was walking through the north entrance to the courthouse when security guards spotted the clear plastic bag in her belongings.

Kaminsky grabbed her phone and ran. A security guard and two deputies followed her as she walked at a "faster than normal" pace across Ventura Avenue just north of Administration Drive.

She ducked behind some cars and took off her suit jacket before Deputy Michael Whiteside shouted to her, according to court papers.

He recognized her from the courthouse when she turned around. He asked her how she came to have drugs other than the prescription pills and she responded she "could imagine how it got there" but she refused to say anything else, according to court papers.

Whiteside then asked why she was walking away and she said "she didn't want to have to deal with it in front of people," the papers said.

(Mike Frisch)

September 2, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, September 1, 2018

Three Strikes And Out In California

The California State Bar Court Review Department recommends disbarment of an attorney

Dennis Patrick O’Connell, a criminal defense attorney, is charged with 19 counts of misconduct in four client matters. Those charges include four counts each of failure to perform with competence, refund unearned fees, render appropriate accounts to clients, and obtain consent from incarcerated clients before accepting attorney fees from their family members. He was also charged with improper division of a fee for legal services and failure to promptly release a client’s file. This misconduct is similar to O’Connell’s wrongdoing in two prior disciplinary matters.

The hearing judge found O’Connell culpable of 16 of the 19 charges and recommended that he be actually suspended for two years and until he provides satisfactory proof to this court of his rehabilitation, fitness to practice, and present learning and ability in the general law. The Office of Chief Trial Counsel of the State Bar (OCTC) appeals the hearing judge’s discipline recommendation and asserts that disbarment is appropriate. O’Connell also appeals, maintaining that he is not culpable as charged.

After independently reviewing the record (Cal. Rules of Court, rule 9.12), we affirm most of the judge’s findings of fact and culpability determinations. However, as this is O’Connell’s  third discipline case, disbarment is appropriate under standard 1.8(b). In not recommending disbarment, the hearing judge incorrectly found that it was not warranted because O’Connell’s misconduct did not show a “habitual course of conduct.” But this showing is not required where an attorney has two prior disciplines and standard 1.8(b) applies. We do not find sufficient justification to depart from standard 1.8(b), particularly since O’Connell has committed nearly identical misconduct in his prior cases. We recommend the standard’s presumptive discipline of disbarment as necessary to protect the public, the profession, and the administration of justice.

Sanction analysis

We find no reason to depart from the presumptive discipline of disbarment under standard 1.8(b). The State Bar Court has had to intervene three times to ensure that O’Connell adheres to the professional standards required of those who are licensed to practice law in California. He has failed to meet his professional obligations since 1999 and did not present compelling mitigation. We conclude that further probation and suspension would be inadequate to prevent him from committing future misconduct that would endanger the public and the profession. (In the Matter of Moriarty (Review Dept. 2017) 5 Cal. State Bar Ct. Rptr. 511, 528 [disbarment appropriate under standard 1.8(b) for third disciplinary matter where aggravation outweighed mitigation, no compelling mitigating circumstances, and multiple instances of similar wrongdoing in disciplinary record].) The standards and decisional law support our conclusion that the public and the profession are best protected if O’Connell is disbarred.

(Mike Frisch)

September 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred In The Heartland

An attorney left no stone unturned in his effort to avoid discipline in a case that began as a referral from the Securities and Exchange Commission and ended in disbarment by the Nebraska Supreme Court.

In a letter dated March 11, 2016, the enforcement division of the U.S. Securities and Exchange Commission (SEC) notified the Counsel for Discipline of “possible professional misconduct” by Nimmer. The SEC had subpoenaed records from Nimmer’s client trust account in connection with an unrelated investigation and reported that its “review of Nimmer’s trust account transactions revealed that he wrote numerous checks for personal expenses, ranging from rent and child support to dog boarding and landscaping fees.” On March 18, the Counsel for Discipline notified Nimmer that he was the subject of an investigation and provided him a copy of the grievance.

Counsel for Discipline subpoenaed the trust account records and filed charges

On February 1, 2017, the Counsel for Discipline filed formal charges against Nimmer. It alleged that between January 2006 and February 2016, Nimmer wrote personal checks on his client trust account to 29 different businesses, individuals, and organizations. Additionally, it alleged that on December 20, 2007, Nimmer deposited a $10,000 check from his mother issued to him with the notation “loan” into his client trust account. The formal charges alleged that by using his client trust account in this fashion, Nimmer commingled his personal funds with client funds and thereby violated his oath of office as an attorney...

The attorney move to dismiss and to recuse the prosecutor but the referee found misconduct

Nimmer’s written exceptions [to the court] challenge nearly every aspect of the referee’s report. Consolidated and summarized, Nimmer takes exception to the referee’s (1) evidentiary rulings, including admitting the subpoenaed records of Nimmer’s client trust account; (2) finding clear and convincing evidence of disciplinary violations; (3) rejecting Nimmer’s affirmative defenses; and (4) recommending a 1-year suspension.

As the court reviews bar discipline de novo, the court did not consider the exceptions and found trust account violations

...we cite a few representative examples.

From 2005 through 2009, Nimmer wrote 19 checks on his client trust account to the Omaha Public Power District. He testified these checks were “more likely than not” his utility payments, but claimed that without his pre-2011 subsidiary trust account records, he could not be certain.

From 2006 through 2009, Nimmer wrote 27 checks on his client trust account to “Cox Communications.” Nimmer testified that Cox Communications was his current Internet service provider and was not a client of his, but he could not remember whether he had the same provider at the time the checks were written and did not want to “venture a guess.”

Nimmer wrote a check to his ex-wife on the client trust account with the notation “Jan./Feb. health ins.” Nimmer testified this check “may have” been a payment to his ex-wife for his daughter’s health insurance, but he did not “remember for sure.” Additionally, Nimmer wrote at least 22 other checks to his ex-wife, many with notations such as “camp,” “daycamp,” “Rachel’s camp,” “travel,” and “cookies.” Nimmer admitted these checks were not related to any client representation, but when asked if the checks represented personal payments on behalf of his daughter, Nimmer replied, “I’m not going to characterize them that way.” Nimmer himself offered several exhibits documenting payments he made from his client trust account in 2011, 2013, 2014, and 2016 for his daughter’s summer camp.

Nimmer wrote approximately 15 checks from his client trust account to “Cricket.” Nimmer testified, “I think Cricket is a cell phone provider,” but he did not recall why he had written the checks.

In 2007, Nimmer wrote a check from his client trust account to the Nebraska State Bar Association in the amount of $320. When asked whether he was paying his bar dues out of his client trust account, Nimmer replied, “There is no notation that allows me to say for sure.”

A host of affirmative defenses fell on deaf ears, e.g.

Simply put, neither good faith nor ignorance of the rules prohibiting commingling client and personal funds provides a defense to a disciplinary charge that an attorney violated the rules against commingling.

On sanction, attitude matters

Nimmer has challenged this court’s authority to discipline him and repeatedly tried to prevent consideration and review of his client trust account records. While lawyers facing disciplinary charges should not be discouraged in any way from mounting a vigorous defense, some of the legal positions advanced by Nimmer in this proceeding border on the frivolous and reflect an attitude which bears negatively on his willingness to conform his conduct to the Nebraska Rules of Professional Conduct...

Absent mitigating circumstances, this court has repeatedly held that disbarment is the appropriate discipline in cases of misappropriation or commingling of client funds. Mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases where they are extraordinary and substantially outweigh any aggravating circumstances.  In this case, we do not find any such mitigating factors...

Nimmer has been disciplined for misconduct previously, and his prolonged and persistent violation of the rule against commingling reflects a general failure, or unwillingness, to fully comprehend the serious nature of his conduct. After balancing the relevant factors in comparison to other cases, and considering the need to protect the public, the need to deter others, the reputation of the bar as a whole, Nimmer’s fitness to practice law, and the aggravating circumstances, we conclude the only appropriate sanction here is disbarment.

He had previously been publicly reprimanded. 

State ex re l. Counsel for Discipline v. Nimmer can be found at this link. (Mike Frisch)

September 1, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, August 31, 2018

New Jersey Has "No Dearth Of Competent, Civic-Minded Attorneys"

A case summary of the New Jersey Appellate Division

The court holds that if an attorney charges clients in LAD and other fee-shifting cases a fee based in whole or in part on an hourly rate, the attorney is ethically obligated to: disclose that the hourly rate-based fee could approach or exceed the client's recovery; provide examples of hourly rate-based fees in similar types of cases; and inform the client that other competent counsel represent clients in similar cases solely on a contingent fee basis.

Similarly, counsel who require clients to advance costs are ethically obligated to provide information about litigation costs such as deposition and expert fees, and provide examples of what costs have totaled in similar types of cases. An attorney is also ethically obligated to inform the client that other competent counsel who represent clients in similar cases advance litigation costs.

Details from the decision

Defendant, Brian M. Cige, an attorney, appeals from two Law Division orders. The orders declared unenforceable and void his retainer agreement (the "Agreement") with plaintiff, Lisa Balducci, a client he represented in a claim seeking damages under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. The orders also dismissed his counterclaim for fees and costs. The trial court permitted defendant to recover for his services based on the doctrine of quantum meruit.

The trial court found defendant violated his professional responsibility to explain the Agreement's material terms to plaintiff so that she could make an informed decision about retaining him. The trial court's factual and credibility findings have ample support on the plenary hearing record. Defendant did not explain the effect his "greater three fee agreement" would have on any recovery, inform plaintiff of alternatives to such an agreement, or give plaintiff any indication of the tens of thousands of dollars in expenses she would have to pay as the case progressed. Hence we affirm.

The court quoted the lengthy agreement in full

The parties disputed the circumstances under which plaintiff signed the Agreement. According to plaintiff, defendant did not explain the terms of the Agreement. Rather, he told her, "[t]his is a standard agreement for a case like [this]." Plaintiff, who had worked for attorneys and who now operated her own business, "quickly glanced at it and . . . had a concern." She said to defendant, "Brian, this says that I am going to be responsible at the end if we lose the case." He said she would not. He told her the language concerning his hourly rate was standard for a LAD case like this. He said: "We are friends. I was at your wedding. I would never do this to you. Ignore that. Don't worry about it. It is standard information." Plaintiff signed it, because she trusted him, he was a friend, and she believed him.

The attorney recalled the circumstances quite differently while the client's child corroborated her testimony.

After the client discharged him, he asserted a lien that impaired a consent resolution of the underlying matter.

The court

There is no dearth of competent, civic-minded attorneys willing to litigate LAD and other statutory fee-shifting cases under fee agreements that do not include an hourly component. The number of such cases litigated in our trial courts and reported in the case law evidence this, as does — at least as to numbers — advertising on television and radio, in telephone books and newspapers, and on billboards and other media. Indeed, the firm currently representing plaintiff in the LAD action has a fee agreement without an hourly component.

Ethically then, must an attorney whose fee for undertaking a LAD case that includes an hourly rate component explain both the consequences on a recovery and the availability of other competent counsel likely willing to undertake the same representation based on a fee without an hourly component? We conclude the answer is yes.

...We do not find the Agreement in this case unenforceable because of the problematic nature of the three fee provisions. We do find the Agreement unenforceable because, as the trial court found, defendant did not adequately inform plaintiff about the ramifications. 

Holding

In summary, we conclude that if an attorney's fee in a LAD or statutory fee-shifting case is based in whole or in part on an hourly rate, then the attorney is ethically obligated to inform the client of the ramifications. The attorney must inform the client that if the case becomes complex and protracted, the hourly rate-based fee the client is responsible to pay can approach or even exceed his or her recovery. Further, the attorney must inform the client other competent counsel represent clients in similar cases solely on a contingent fee basis, without an hourly component, and might also advance costs. The attorney should provide examples of how much hourly fees have totaled in similar cases, or if the attorney has no such experience with similar cases — in which case consideration should be given to referring the case to a certified civil trial attorney — how much hourly fees have totaled in the same types of cases found in case law.

Similarly, if the client is required to advance costs, the  attorney must provide the client with approximate costs resulting from things such as depositions and expert fees, and must give examples of such costs in similar cases. The attorney must disclose other competent counsel who represent clients in similar cases advance litigation costs...

The fee agreement in this case is ambiguous and to some extent illusory. Defendant failed to discharge his ethical obligation to explain the terms of the agreement, their implications, and alternatives to the agreement, so the client could make an informed decision regarding his representation. The trial court did not err by so finding.

(Mike Frisch)

August 31, 2018 in Billable Hours | Permalink | Comments (0)