Wednesday, October 15, 2014

Federal Campaign Laws Preempt State "Push Polling" Inquiry

The New Hampshire Supreme Court has affirmed a district court ruling that the State Attorney General cannot seek civil penalties for alleged misconduct in a federal election.

The court described the circumstances of the investigation into the campaign committee of former Rep. Bass

In September 2010, the AG’s Office received information regarding polling telephone calls made to New Hampshire residents that were described as containing negative content about United States congressional candidate Ann McLane Kuster. The AG investigated, and concluded that the Committee had engaged in "push-polling" as defined in RSA 664:2, XVII (2008) (amended 2014) without complying with the disclosure requirements set forth in RSA 664:16-a.

The court

we conclude that RSA 664:16-a imposes a disclosure requirement on campaign expenditures related to the election of a candidate for federal office. Accordingly, we hold that the FECA preempts RSA 664:16-a as applied to federal candidates and political committees.

 (Mike Frisch)

October 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Agreement Not To Sue Draws Reciprocal Censure

An attorney who was reprimanded in New Jersey for a Rule 5.6(b) violation was reciprocally censured by the New York Appellate Division for the First Judicial Department.

As part of a settlement in a landlord-tenant dispute

 respondent and counsel for Bloomfield negotiated a settlement of the Rubinstein litigation pursuant to which the plaintiffs received cash and rent credits totaling $150,000. Contemporaneously with the negotiation of the settlement, respondent entered into an agreement with counsel for Bloomfield and its principals, Stathis and Silverman, whereby respondent agreed to refrain from representing clients adverse to Bloomfield, Stathis and Silverman, or their affiliates (the Cardillo Agreement).

The court found that the misconduct violated New York ethics rules

...the conduct for which respondent was disciplined in New Jersey constitutes misconduct in New York. The provision under which respondent was censured in New Jersey, RPC 5.6(b), provides that a lawyer is prohibited from "offering or making ... an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties." That rule is essentially identical to the language of former New York Code of Professional Responsibility DR 2-108(b) (22 NYCRR 1200.13[b]), which states that "[i]n connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts the right of a lawyer to practice law."Such conduct is also sanctionable under rule 5.6(a)(2) of the current New York Rules of Professional Conduct (22 NYCRR 1200.0).

(Mike Frisch)

October 15, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Neither A Borrower Or Lender Be

The New York Appellate Division for the First Judicial Department has accepted the resignation of an attorney based on the following allegations

Specifically, it was alleged that respondent: (1) jointly represented two clients at the closing of the sale of their home; (2) held a portion of the sale proceeds in his escrow account, the disbursement of which was delayed because his clients were involved in divorce proceedings; (3) during the period of time in which the funds were held in escrow and without his clients consent, he  borrowed' $600,000 "to meet certain obligations in the face of the economic downturn and [his] consequent inability to borrow the money from regular institutional sources"; and (4) he provided accountings to counsel for one of his clients which did not reflect his misappropriation of funds from the escrow account. Respondent advised that "he fully described" his misappropriation to his client's counsel subsequent to providing the inaccurate accounting, and promised to restore the funds to his escrow account. When counsel requested disbursement of the proceeds, respondent paid over the funds in full, after certain proper payments and distributions, along with interest for the entire escrow period.

As a result, the attorney is struck from the rolls. (Mike Frisch)

October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Judge Complains, Prosecutor Fired

The Daily News Journal reports

A Rutherford County [Tennessee] assistant district attorney was fired earlier this week after a verbal altercation with a judge during a rape trial in September.

ADA Laural Hemenway said she was fired after Judge Keith Siskin filed an official complaint about her behavior in the courtroom.

Hemenway had been with the DA's office since 1999, first as a domestic-violence prosecutor and then as a crimes-against-children prosecutor. As lead prosecutor in child abuse-and child sexual-abuse cases, she had a 95 percent conviction rate over her career, according to DNJ archives.

Siskin has sat the bench for 10 years, first as a magistrate in Juvenile Court before being appointed to Circuit Court in 2012. Earlier this year he was re-elected unopposed to an eight-year term. In September he was selected as presiding judge of the Sixteenth Judicial District in Rutherford and Cannon Counties.

Requests for comment were made to District Attorney Jennings Jones and Siskin.

Siskin declined to comment, citing the rules of judicial conduct. Jones did not respond by press time.

The disagreement occurred Sept. 18 after Hemenway violated an order from Siskin that prompted the judge to call a mistrial, according to the complaint filed by Siskin with the Tennessee Board of Professional Responsibility.

The case involved Christopher Hernandez, who was standing trial for multiple counts of rape of a child, aggravated sexual battery and solicitation for rape of a child. Hernandez was indicted by the grand jury in 2013.

He was arrested April 4, 2013, in Nashville by the Rutherford County Sheriff's Office with help from the Metro Nashville Police Department.

According to Siskin's complaint, the judge and attorneys had agreed during a pre-lunch conference without the jury present that Hernandez's past arrest was off limits.

After lunch, Hemenway specifically asked Hernandez about the arrest in front of the jury, prompting Siskin to call a mistrial, according to Siskin's complaint.

When Siskin announced his decision, Hemenway accused him of sexism, he said in his complaint, adding that his courtroom was a "hostile environment for a female."

Siskin then filed the ethics complaint with the Tennessee Board of Professional Responsibility and took the issue to District Attorney Jones.

Jones then offered Hemenway the chance to resign, she said. She refused and was fired Tuesday.

In response to the complaint, Hemenway sent a letter to Jones accusing him of ignoring her requests for help during the trial and a pending workers' compensation claim.

"I do not believe that the reason you gave for firing me is valid," Hemenway said in the letter dated Oct. 7. "I believe I am being terminated because of my age, my health issues and because I expressed my feelings when asked by the judge about sexual discrimination."

On the same day Hemenway was fired, Rutherford County Circuit Court cases were reassigned. Judge Royce Taylor was assigned criminal cases while Siskin took over the civil case load. As a criminal prosecutor, Hemenway would have been moved out of Siskin's court.

On Wednesday, The DNJ filed a Freedom of Information Act request to the Rutherford County Human Resources Department for Hemenway's personnel record. It has yet to be filled.

Inquiries into the Board of Professional Responsibility and the Board of Judicial Conduct provided little information. Complaints against judges and attorneys are confidential in Tennessee; only disciplinary actions are public record.

James Vick with the BPR could only confirm Hemenway has never been disciplined by the board.

Likewise Timothy R. Discenza with the BJC confirmed Siskin had never been disciplined.

(Mike Frisch)

October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)


A random audit of an attorney trust account got an attorney admonished by the Vermont Professional Responsibility Board.

The attorney had not maintained necessary records, had placed estate funds in his IOLTA account rather than a separate account and had failed to perform monthly reconciliations.

He also left $157.57 of his own funds in the escrow account to cover bank charges.

Disciplinary counsel was of the view that any more than $50 was excessive. The board here found that the bar was not on notice of disciplinary counsel's views (with which it did not necessarily agree) and declined to find any violation based on the attorney's decision to keep that amount in the account. (Mike Frisch)

October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Permission To Violate Conditions Denied

An attorney who had been reinstated to practice on conditions admitted to violation of the conditions by handling criminal cases without supervision or malpractice insurance.

He then sought to amend the conditions to allow for what he had already done.

The Delaware Supreme Court denied the petition

The Court is troubled that the petitioner returned to private practice in a manner that violated the Court's Order in substantial, myriad ways without first seeking leave of the Court to modify the conditions of his reinstatement.

Any such modifications must be based on good cause for the request and an affidavit showing full compliance with the imposed conditions. (Mike Frisch)


October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Revoked For Pattern Of Deceit

The Wisconsin Supreme Court has accepted the revocation of an attorney's lawv license for misconduct in three matters.

The attorney was an associate in a Milwaukee law firm.

Notably, he engaged in serious misconduct during the course of representing a law firm partner in a real estate matter

Attorney Stubbins was to have filed the foreclosure complaints by October 2009.  He did not do so, however, until July 2011.  During the intervening nearly two years, Attorney Stubbins made multiple misrepresentations regarding the status of the matters, including falsely suggesting that certain actions, such as the service of a complaint, had been accomplished.  By his evasion of certain questions and his misrepresentations, Attorney Stubbins led E.W. to believe that foreclosure actions had been initiated and were proceeding.  Attorney Stubbins, however, filed the two foreclosure complaints in July 2011 only after E.W. had made numerous requests for information about the status of the foreclosure actions.  Shortly after the complaints were filed, E.W. terminated the law firm's representation on both foreclosure matters and retained other counsel.

As to sanction

As shown by the OLR's summary of its investigations, Attorney Stubbins's repeated misrepresentations to his clients, to his law firm, and to opposing counsel; his billing for work that he never performed; his lack of diligence; and his multiple decisions to take legally significant actions (e.g., filing an appeal, settling a lawsuit, etc.) on behalf of his clients without their knowledge or consent demonstrates that Attorney Stubbins does not possess the necessary character to hold a license to practice law in this state.  These were not one or two isolated instances, but rather a pattern of deceitful statements and unethical conduct.

(Mike Frisch)

October 14, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, October 13, 2014

Local Standard Of Care Must Be Established In Legal Malpractice Case

The Delaware Supreme Court affirmed the grant of summary judgment to the defendants in a legal malpractice case.

As often occurs, the malpractice was alleged in response to a claim of unpaid legal fees.

Notably, the court dealt with the problem of the out-of-state expert witness.

The plaintiff had used a New Jersey attorney as its expert.

The court held that use of such an expert is not a deal breaker. However, it must be established that the proferred expert is "well acquainted and conversant" in the local standard of care for attorneys.

A "bridging expert" (not an expert on bridges) can provide the necessary link, but was not provided by the plaintiffs here. (Mike Frisch)

October 13, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

"Bullying Threats And Nonsensical Insults" Fail To Persuade

The California State Bar Court Review Department has recommended disbarment of an attorney for frivolous litigation in the state and federal courts of Nevada.

The underlying litigation involved the attorney's purchase of a home in Nevada. His claims against the seller later blossomed into conspiracy and other claims against the judiciary.

He was sanctioned in state court and declared a vexatious litigator in federal court.

As often is the case, the disciplinary system became the eventual target.

The state bar court agreed with the Office of Chief Trial Counsel that the appeal in the bar case was frivolous, that his brief was a "diatribe of bullying threats and nonsensical insults" and that his arguments contained "wildly inappropriate invective that permeates all [the attorney's] submissions." (Mike Frisch)

October 10, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, October 9, 2014

Collectibility An Affirmative Defense In Legal Malpractice Claim

The Washington State Supreme Court has addressed two questions of first impression in the jurisdiction in legal malpractice cases.

First, the court held that the uncollectibility of the judgment in the underlying action is an affirmative defense that the defendant attorney must plead and prove. The court rejected the view that collectibility was an element of the tort for which the former client has the burden of proof.

Second, the court found that emotional distress damages were not available under the facts of the case.

The underlyng case was a slip-and-fall. The attorney had filed suit shortly before the statute of limitations ran but named the wrong defendant.

Subsequent efforts to revive the case failed. (Mke Frisch)

October 9, 2014 in Clients | Permalink | Comments (0) | TrackBack (0)

People Are Complicated And So Are Lawyers

Disbarment is the appropriate sanction for an attorney who "skimmed" over $14,000 in funds due to his law firm, according to a decision of the Michigan Attorney Discipline Board.

The board modified a 2-1 hearing panel report that had imposed a two-year suspension.

The attorney had produced a substantial amount of character evidence consisting of nine witnesses and approximately 50 letters of support. He had been president of the Muskegon County Bar Association and had "capably represented thousands of clients over the years."

The board was unmoved by his self-comparison to Jean Valjean

respondent was not stealing bread for his family; he was, as he admits, living beyond his means...

This is not the first case in which a "good lawyer," who is active in professional and community affairs, has made the decision to convert funds entrusted to him or her, and, after discovery, began to examine his or her decisions...

When a competent lawyer who is well-known and perhaps even well-liked, and who may lead an otherwise respectable life, makes the decision to steal when it looks like he can get away with it, this may prove that people are complicated and that some have the ability to compartmentalize. It does not constitute compelling mitigation.

The mitigation was "artfully assembled" but not sufficient to avoid disbarment. (Mike Frisch)

October 9, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sex Crime Suspension

A Tennessee attorney has been suspended as a result of his guilty plea to statutory rape charges. reported in August 2013 on the charges

A Harriman attorney is charged with three counts of statutory rape, and one count each of solicitation of a minor and especially aggravated sexual exploitation of a minor following his arrest Wednesday.

A Lenoir City woman also faces a charge of especially aggravated sexual exploitation of a minor in connection with the case.

Kent Booher, 58, was arrested at his home in Harriman after indictments were issued by a Loudon County grand jury.

Booher is being held in the Loudon County Jail on a $29,000 bond.

Malina Nanette Akin, 36, is being held in the Loudon County Jail on a $10,000 bond. She is also accused of violating parole.

The indictment accuses Booher and Akin of using a minor to participate in the production of material that includes sexual activity or simulated sexual activity.

Booher is charged with three counts involving the alleged rape of a girl under the age of 16. He is also accused of using electronic communication to solicit the engagement of sex with the teen.

According to the Tennessee Bar Association, Booher's practice includes criminal and juvenile law.

He received a public censure last year by the Board of Professional Responsibility of the Supreme Court of Tennessee after being accused of failing to properly represent a client. The board said Booher "failed to act with reasonable diligence in an estate matter, failed to maintain reasonable communication with his client, and failed to expedite litigation.

The Knoxville News Sentinel reported the conviction and jury deadlock in the case against Ms. Akin

According to court records, Booher repeatedly paid to have sex with the girl between December 2012 and May 2013. He videotaped the liaisons and also ordered the girl to send him nude photographs.

The suspension is interim pending final discipline. (Mike Frisch)

October 9, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Depression Not Cause Of Misconduct: Failure To "Kick-Start"

A two-year suspension was imposed by the New York Appellate Division for the Second Judicial Department for misconduct described by the court

 respondent admittedly failed to cooperate with the Grievance Committee in eight separate matters, neglected two legal matters entrusted to him, handled a matter which he knew, or should have known, he was not competent to handle, without associating with a lawyer who was competent to handle it, failed to turn over a client's file to new counsel, as requested, failed to comply with a memorandum and order of the United States District Court for the Eastern District of New York, and failed to comply with an information subpoena. Previously, the respondent was issued four letters of admonition and two letters of caution for similar misconduct. Although the Special Referee found the respondent to be credible, and attributed the respondent's misconduct to, inter alia, his diagnosed depression, the record amply reflects that the respondent's admitted misconduct was, by and large, the byproduct of entrenched patterns of conduct— avoidance and self-defeating behavior— rather than depression. In fact, the respondent's own expert conceded that the respondent's depression would not be the type to result in the misconduct charged. According to the respondent's expert, the respondent is "brighter than most," with "good insight into his behavior" and "[awareness] of the wrongfulness of his conduct." He "just [cannot] kick-start himself into gear."

The court declined to grant credit for time served on a previously-ordered interim suspension. (Mike Frisch)

October 9, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Good Night

The District of Columbia Court of Appeals has accepted the consent of Adrian Cronauer and entered an order of disbarment.

As we previously noted, his experience as a disc jockey were the basis for the movie Good Morining Vietnam. (Mike Frisch)

October 9, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Mother Suspended, Daughter Censured

A real-estate deal got an attorney suspended for one year by the New York Appellate Division for the Second Judicial Department.

The same transaction led to the public censure of the attorney's daughter by the same court.

As to the mother

After studying a real estate investment course, the respondent, an experienced attorney-at-law, entered into a business partnership with a nonlawyer, Mark Vandeventer (hereinafter Vandeventer), aimed at investing in distressed properties. While searching for a suitable investment, the respondent learned of a potential property, which was owned by her friends, Mr. and Mrs. Raleigh Trent (hereinafter the Trents), residents of Virginia. The subject property was the Trents' former residence, located at 32 Grove Street, Riverhead, New York (hereinafter the Riverhead property). The respondent had known the Trents almost all of her life, as they previously resided in the same Riverhead community, she attended school with the Trents' children, the respondent's mother worked with the Trents, and they worshiped at the same church. In contrast, Vandeventer was a relatively new acquaintance, whom the respondent met sometime in 2005.

In or about January 2006, the respondent and Vandeventer entered into negotiations with Mr. Trent to purchase the Riverhead property. At that time, the Riverhead property was not encumbered by any mortgage, but there were approximately $20,000 in tax arrears. No appraisal was conducted to determine the fair market value of the Riverhead property. Moreover, the Trents were not represented by counsel when the terms of the transaction were negotiated. The respondent acknowledges that Mr. Trent had limited experience in legal matters. Ultimately, the terms of the sale provided for a total purchase price of $82,500, consisting of a $5,000 down payment and a $77,500 seller-financed loan, evidenced by an unsecured promissory note. The purchasers were also required to pay the delinquent real estate taxes.

After the terms of the sale were negotiated, the Trents retained the respondent's daughter, Annette Marie Totten (hereinafter Ms. Totten), to represent them in the sale. Although Ms. Totten was the sellers' attorney, she did not draft the contract of sale (hereinafter the contract), which was forwarded to her by the purchasers. Ms. Totten neither proposed, nor made, any changes to the contract before forwarding it to her clients in Virginia. The Trents executed the contract as it was presented to them, without modification.

The Trents did not attend the closing. Rather, they authorized Ms. Totten to act as their attorney-in-fact, pursuant to power of attorney forms, which they executed. At the closing on February 14, 2006, the respondent and Vandeventer executed the aforementioned promissory note in favor of the Trents, evidencing the seller-financed purchase money loan of $77,500. Ms. Totten thereupon executed a deed conveying the Trents' Riverhead property to the respondent and Vandeventer. In accordance with the contract, no mortgage or other instrument securing repayment of the foregoing promissory note was executed, delivered, or recorded.

Within three months, on May 10, 2006, the respondent ended her business partnership with Vandeventer, deeded her interest in the Riverhead property to him, and received a personal check from him in the sum of $40,000. That same day, Vandeventer secured a loan in the amount of $156,000 from Wells Fargo Bank, NA, and a mortgage was given and recorded against the Riverhead property. The promissory note in favor of the Trents was not satisfied at that time.

On or about February 28, 2007, Vandeventer obtained a further loan in the amount of $260,000 from Fremont Investment and Loan, which was secured by another mortgage on the Riverhead property. At that time, the Wells Fargo loan was satisfied. However, the promissory note in favor of the Trents was not.

On or about October 31, 2008, Vandeventer filed for bankruptcy, listing the unsecured promissory note to the Trents as an obligation. Vandeventer's unsecured debt to the Trents was discharged in bankruptcy.

Notwithstanding the transfer of her interest in the Riverhead property to Vandeventer, the respondent admittedly remained responsible for the debt to the Trents. However, she has never honored her obligation under the unsecured promissory note, and the Trents have never received the consideration for their Riverhead property contemplated by the unsecured promissory note.

As to the violations

We find that the respondent's relationship with her longstanding friends, the Trents, created the essential element of trust necessary to consummate the sale. Indeed, the respondent, an experienced attorney, negotiated the terms of the sale with Mr. Trent, an individual with limited experience in legal matters, prior to his retention of legal counsel. In doing so, the respondent deceptively secured disproportionately favorable terms that enabled her to purchase the Riverhead property without any financial contribution, and without disclosing to Mr. Trent the significant risk of loss if the seller-financed loan went unpaid. Moreover, shortly after obtaining title to the Riverhead property, the respondent knowingly released her interest in that property, in exchange for $40,000, without ever satisfying the promissory note to the Trents. Despite having made no financial contribution towards this transaction, the respondent personally profited. Further, her actions enabled Vandeventer to secure multiple loans on the Riverhead property, and directly contributed to the substantial financial loss sustained by the Trents.

Attorneys are held to a higher standard than nonattorneys in connection with their personal dealings. " While a lawyer may engage in business, if he [or she] wishes to remain a member of the Bar he [or she] must conduct himself [or herself] in that business in accordance with the standards imposed on members of the Bar'" (Matter of Ushkow, 34 AD2d 159, 161, quoting Matter of Kaufman, 29 AD2d 298, 299). Indeed, an attorney's actions should not "be measured by the standards of the marketplace alone. His [or her] conduct, while in some instances not involving an attorney-client relationship, [reflects] on the reputation of the Bar" (Matter of Madera, 39 AD2d 202, 205).

We find that the respondent knowingly engaged in conduct involving dishonesty, deceit, fraud, or misrepresentation, by her participation in the business investment in the Trents' Riverhead property, which conduct adversely reflects on her fitness as a lawyer.

The daughter's story

We find that, when the respondent represented the Trents in the foregoing transaction, her professional experience was principally in criminal law, and she had limited experience in real estate transactions. Notwithstanding the respondent's knowledge of the Trents' limited reading proficiency, she did not insure that they understood what was at stake in the absence of security for the seller-financed loan. The Special Referee found, and we agree, that "the terms of sale were . . . seriously skewed" against the Trents, and that the respondent never explained the inherent risks of the transaction to them. Although the respondent's testimony indicates that she may not have fully understood the seller financing clause, the unusual and unfamiliar terms of this transaction should have signaled a need for the respondent to consult an attorney with greater experience in real estate transactions. The respondent's failure to appreciate the inherent risk in an unsecured, seller-financed transaction, or to seek assistance from a more experienced attorney, put her clients at risk for the substantial financial loss that ultimately occurred. Consequently, we find, based upon a preponderance of the evidence, that the respondent failed to provide competent legal representation to her clients, which conduct adversely reflects on her fitness as a lawyer.

In light of the respondent's familial relationship with Brown, one of the copurchasers of the Riverhead property, we further find that the respondent had a conflict of interest with respect to her representation of the Trents. Although the Trents may have known that the respondent was related to Brown, the respondent failed to establish: (1) that a disinterested lawyer would reasonably believe the conflict would not adversely affect the respondent's representation, and/or (2) that the Trents received full disclosure of the implications of the respondent's conflicting personal interests.

(Mike Frisch)

October 9, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 8, 2014

Agreement With Lender Liability Company Draws Suspension

The California State Bar Review Department has proposed a suspension of sixty days and with reinstatement conditioned on restitution to the injured clients of an experienced attorney with no prior discipline.

The story

 [The attorney] practiced law for over 30 years without discipline until he agreed to accept contingency fee cases from a company specializing in lender liability lawsuits, which he later learned was disreputable. His relationship with the company ended within a year and before the involvement of the authorities. Following contact from the Office of the Chief Trial Counsel of the State Bar (OCTC), [he] fully cooperated in the investigation and stipulated to his culpability to resolve the matter before disciplinary charges were filed. In particular, he stipulated to: (1) splitting fees with a non-lawyer entity; (2) failing to perform legal services with competence; (3) failing to refund unearned fees totaling $15,740; and (4) failing to provide the State Bar of California with notice that he employed a resigned attorney. The hearing judge recommended a 60-day actual suspension due to [his] extreme remorse, years of practice without discipline, and attempts to make amends.

The OCTC had sought a six-month suspension. (Mike Frisch)

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

No Discipline Where Attorney Had Limited Scope Agreement

The Minnesota Supreme Court has reversed and vacated an admonition issued by the Director of its Office of Lawyers Professional Responsibility.

The attorney had allegedly engaged in conduct prejudicial to the administration of justice as he had failed to appear at a series of court hearings in a divorce case and "because he did not inform the district court that he had a limited-scope agreement with his client that excluded court hearings."

The attorney and client reached a fee agreement to prepare paperwork and handle a single uncontested hearing. The agreement was for an hourly fee if there was further work to be done.

The district court granted the divorce but reserved decision on support and custody. The court entered a divorce decree that effectively concluded the attorney's representation.

Further hearings followed without the attorney being present. When the judge advised the parties that an amended divorce decree was necessary, the client again consulted the attorney. After "implictly returning to attorney of record status" at that juncture, the attorney missed a single court hearing.

The judge filed the bar complaint.

The court here reversed a panel decision finding that the attorney's non-appearence was prejudicial to the administration of justice.

At most, the record establishes that A.B. failed to attend only a single hearing: the one that occurred on June 20. As to each of the other hearings, the district court rescheduled them, or A.B. was not required to appear because he was no longer counsel of record. Because there were not "four consecutive hearings" at which A.B. failed to appear, we conclude that the panel’s determination that A.B. violated Minn. R. Prof. Conduct 8.4(d) rested on a clearly erroneous factual finding...

Based on the unique facts of this case, we further conclude that the panel erred when it determined that A.B.’s failure to attend the June 20 hearing violated Minn. R. Prof. Conduct 8.4(d). A.L. instructed A.B. not to attend the hearing pursuant to the terms of a limited-scope legal representation, the propriety of which the Director does not challenge. A.B. reasonably believed that A.L. would attend the hearing, at which point she could inform the court that she had instructed A.B. not to attend. Under these circumstances, we vacate the admonition because A.B.’s conduct was neither prejudicial to the administration of justice nor warranted discipline.

An important aspect of the opinion is its acknowledgement of the efficacy of the limited scope agreement. That is not often seen in the disciplinary context. (Mike Frisch) 

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

Theft In The Family

The Illinois Administrator has filed a complaint alleging that an attorney stole funds from a trust created by his parents for the benefit of his children.

After the complaint describes the establishment and funding of the trust, it is alleged that

 Respondent used the entire proceeds of check numbers 1358487 and 1358485 for his  own personal purposes, largely for personal travel and casino gambling.

The amounts allegedly stolen totalled over $230,000..

The attorney for the mother and children (named John F. Kennedy) made inquiries about the funds, to which the attorney allegedly made false responses. (Mike Frisch)

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

Tuesday, October 7, 2014

Loan Shark Lawyer Gets License Revoked

An attorney who engaged in business transactions with three financially-unsophisticated client couples has had his license revoked by the Wisconsin Supreme Court.

Attorney Trewin usually loaned the couples money, often at relatively high interest rates (12-14%), starting with fairly small amounts and increasing the amount of the loans over time as the couples needed additional funds.  The referee further found that because Attorney Trewin was not constrained by standard banking regulations, the clients did not receive many of the pieces of information and the warnings that they would have received when borrowing from traditional lenders.  Moreover, there were many errors in the documentation of the loans and the tracking of payments. 

In some instances, either there were no signed promissory notes and conflict waivers, or Attorney Trewin lost those documents since he was unable to produce them during this disciplinary proceeding.  In at least one other instance, the date on the conflict waiver was months apart from the date of the purportedly corresponding promissory note.  Also, when Attorney Trewin was able to produce a signed document purporting to be a conflict waiver, the description of the transaction in the conflict waiver was, at times, not even consistent with the loan terms set forth in the promissory note.  Further, the referee specifically found that the conflict waivers did not disclose all of the true facts regarding the transactions, did not provide any meaningful explanation of the disadvantages of entering into these transactions with the clients' lawyer, and did not include a discussion of the alternatives available to the clients. 

Attorney Trewin's haphazard manner of handling these transactions left the clients confused about which loans were outstanding, what payments they had made toward which loans, and the balances of their loans...

Ultimately, when the couples had difficulties making their payments to Attorney Trewin or to another creditor, he would persuade the couple to transfer their property over to him, with the promise that he would lease the property back to them and they could reacquire the property if they were current on their payments to him and could also pay a specified amount to him for their property.  The couples, however, were not in a financial condition where they could ever regain ownership of their property.  Nonetheless, because of Attorney Trewin's actions, some couples continued to hold the mistaken belief that they really did retain ownership or control of the property even after they had transferred ownership of it to Attorney Trewin.  In the end, Attorney Trewin ended up with the title to the clients' real property.

The court on sanction

We conclude that the revocation of Attorney Trewin's license to practice law in this state is appropriate and required.  Attorney Trewin was already put on notice of the perils of engaging in transactions with clients in the Trewin I disciplinary proceeding.  He nonetheless continued to engage in such transactions without meeting the very strict requirements that protect clients from overreaching by more sophisticated attorneys.  Moreover, he used the knowledge he had gained from handling the clients' legal matters to structure those transactions in a manner that ensured he would benefit and the clients would not.  Those transactions ultimately resulted in Attorney Trewin acquiring the clients' property and enriching himself at their expense.  It is clear that the public needs to be protected from this type of conduct and that, as the referee commented, Attorney Trewin is unfit to engage in the practice of law in this state.

(Mike Frisch)

October 7, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Death Be Public Or I, Flavius

The Indiana Supreme Court has held that certificates of death are public records, in response to the requests of a newspaper and an individual

In our society, death is an intimate and personal matter. We recognize that public disclosure of the details of a decedent’s death may cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our General Assembly has considered these competing interests and, insofar as we can determine, concluded that the public interest outweighs the private. Indeed, in recent history, it has rejected three bills that would have exempted death certificates from APRA. See H.B. 1067...Even if we wished to rebalance the scales, it is beyond our power to do so.

The court traced the history of death records in the state going back to the work of Senator Flavius J. Van Vorhis of Marion in 1881. (Mike Frisch)

October 7, 2014 in Law & Society | Permalink | Comments (0) | TrackBack (0)