Friday, July 24, 2015
This disbarment of an attorney by a justice of the Massachusetts Supreme Judicial Court notes the nature of the allegations
bar counsel filed a petition for discipline against the respondent, asserting that, while acting as trustee and attorney-in-fact for his father, he had mishandled his father's funds, intentionally depriving his father and his father's estate of those funds for his own use.
There was an unusual claim of bias
After the board's recommendation was filed in the county court, the respondent filed a motion to show cause, 'alleging that the disciplinary proceeding itself was an "improper persecution" and a "witch hunt" based on "spurious and specious" lies and perjured testimony arising from the personal animosity of the respondent's sister, who filed the original complaint with bar counsel, knowingly and improperly introduced at the hearing by bar counsel. The respondent maintained also that the disciplinary proceeding was pursued in part due to bar counsel's personal bias and under a conflict of interest, in retaliation for a prior incident when the respondent and bar counsel both worked at the office of bar counsel in 1991.
In addition, before me, as he did in hie motion to show cause, the respondent made various allegations concerning an improper motive of bar counsel in pursuing the investigation, based on an asserted bias from a previous employment relationship (what the respondent describes as a "personal vendetta" that resulted in a request that he resign from the office of bar counsel in 1991). As noted, I allowed bar counsel's motion to file a.response to this argument, made by the respondent for the first time in his show cause motion; that response included two affidavits, one from the then bar counsel, and one from the then director of the consumer and attorney assistance program. Both affiants assert that they have no knowledge of any complaint, problem, or friction between current assistant bar counsel and the respondent at the time of his employment there in the early 1990s, while he was a law student. The director of the consumer and attorney assistance program asserts that, at this point in time, she remembers only that the respondent had' worked briefly in that office and that he never mentioned any issue or concern relative to current assistant bar counsel; then bar counsel asserts that the respondent was asked to resign for reasons unrelated to assistant bar counsel. I decline the respondent's request that, due to bar counsel's purported personal animosity and bias, unsupported by anything in the record, the charges against him be dismissed and fines and sanctions be imposed against bar counsel.
The single justice found no mitigating and substantial aggravating factors. (Mike Frisch)
Thursday, July 23, 2015
The Louisiana Attorney Disciplinary Board has recommended a year and a day suspension of an attorney for unauthorized practice while suspended.
Respondent became ineligible to practice law on September 10, 2010 for failing to pay annual Bar membership dues and disciplinary assessments. Respondent became further ineligible on June 7, 2011 for failing to satisfy his MCLE requirements, and on September 9, 2011 for failing to satisfy trust account registration requirements. Respondent remains ineligible to date.
He continued to represent a client in a succession matter.
When pressed by the client over delay, he responded
When Mr. Brogna requested another update on April 20, 2011, Respondent replied, "My assistant is catching me up. I am sorry I put you in this position but my alligator mouth over ran my hummingbird ass. I will have it done shortly or advise and I will help you obtain another full time attorney. Again I am truly sorry and embarrassed." Mr. Brogna ultimately corrected the affidavits himself and sent them to Respondent for review. On April 27, 2011, Respondent informed, "Scott, the affidavit meets the statutory requirements for Louisiana. I have already sent my address to the affiants to return same to me…”
The client complained to the bar and the prosecution proceeded from there. (Mike Frisch)
An interesting decision of the United States Court of Appeals for the Second Circuit concludes that document review is not the practice of law under the facts of the case.
The litigation involves a contract attorney suing Skadden Arps and Tower Legal Staffing under the Federal Labor Standards Act
Lola, a North Carolina resident, alleges that beginning in April 2012, he worked for Defendants for fifteen months in North Carolina. He conducted document review for Skadden in connection with a multi‐district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either North Carolina or the Northern District of Ohio.
We agree with the district court that: (1) state, not federal, law informs FLSA’s definition of “practice of law;” and (2) North Carolina, as the place where Lola worked and lived, has the greatest interest in this litigation, and thus we look to North Carolina law to determine if Lola was practicing law within the meaning of FLSA. However, we disagree with the district court’s conclusion, on a motion to dismiss, that by undertaking the document review Lola allegedly was hired to conduct, Lola was necessarily “practicing law” within the meaning of North Carolina law.
The court explains
The district court erred in concluding that engaging in document review per se constitutes practicing law in North Carolina. The ethics opinion does not delve into precisely what type of document review falls within the practice of law, but does note that while “reviewing documents” may be within the practice of law, “[f]oreign assistants may not exercise independent 10 legal judgment in making decisions on behalf of a client.” N.C. State Bar Ethics 11 Committee, 2007 Formal Ethics Op. 12. The ethics opinion strongly suggests that inherent in the definition of “practice of law” in North Carolina is the exercise of at least a modicum of independent legal judgment...
The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided. The parties themselves agreed at oral argument that an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.
Thanks to a faithful reader for sending this opinion. (Mike Frisch)
The discipline of a licensed clinical social worker for violation of professional standards was upheld by the New York Appellate Division for the Third Judicial Department.
The court rejected the contention that the attorney for the social worker was improperly disqualified
Petitioner retained Michael Sussman, who was already representing JC in a separate civil rights action against her employer in federal court. [The Office of Professional Discipline] moved to disqualify Sussman from representing petitioner...
To represent petitioner, Sussman would have had to effectively cross-examine JC, who was a key witness in OPD's case against petitioner. His simultaneous representation of her in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination. Moreover, in this proceeding, Sussman would be attempting to diminish her credibility, whereas an opposite result would be pursued in the federal action. There was a sufficient conflict of interest to justify disqualifying Sussman.
The court found sufficient evidence that petitioner had crossed professional boundaries in his "couple therapy" treatment of DC and JC
OPD's expert, David Olsen, testified in detail regarding boundaries that a social worker must maintain, the training social workers receive about boundaries, and the reasons for the boundaries, which include protecting client confidentiality and making the client feel safe. He opined that petitioner had many boundary violations and that his actions deviated from the acceptable practices within the profession. Among other things, petitioner had, during the relevant time and while JC was a client, played golf with DC and JC's father and had eaten meals with JC and DC at their home. Petitioner attempted to explain his presence at JC's home as consistent with a counseling theory advanced by Salvator Minuchin advocating sessions in a client's home as facilitating the therapeutic process. However, petitioner acknowledged that there was no documentation in his notes that he was using Minuchin's techniques in counseling JC and DC. Olsen also testified regarding the many deficiencies in petitioner's records including, but not limited to, the lack of progress notes.
The license is suspended for two years. (Mike Frisch)
An attorney has been suspended by the New York appellate Division for the Third Judicial Department for a federal conviction described by the New Jersey United States Attorney
Two lawyers with a Fairfield, N.J., law firm today admitted they structured $354,000 in client funds into their attorney accounts to avoid currency reporting requirements, U. S. Attorney Paul Fishman announced.
Goldie Sommer, 61, of Montville, and Edward Engelhart, 61, of Rockaway, attorneys with the firm of Sommer and Engelhart, pleaded guilty before U.S. Magistrate Judge Joseph A. Dickson in Newark federal court to conspiring to structure transactions to avoid reporting large amounts of currency. They had surrendered to IRS agents in Newark on Nov. 16, 2011.
According to documents filed in this case and statements made in court:
Between Aug. 13, 2010, and Sept. 22, 2010, Sommer and Engelhart made numerous deposits totaling $354,000 into their attorney trust account in large, even dollar amounts. None of these deposits were made in an amount greater than $10,000, the amount that would have triggered the filing of a currency transaction report (“CTR”) with the IRS.
The court imposed a one-year suspension as reciprocal discipline based on the same sanction in New Jersey.
In New York, disbarment is automatic where a federal felony conviction mirrors a state crime.
Where, as here, there is no such statute, the court retains the authority to impose a lesser sanction. (Mike Frisch)
The New Jersey Supreme Court accepted the consent disbarment of an attorney convicted of wire fraud.
Details from the United States Attorney's Office for the District of New Jersey
An Ocean County, New Jersey, attorney today admitted his role in a scheme that defrauded investors in connection with a Facebook IPO and several real estate deals, U.S. Attorney Paul J. Fishman announced.
Fred Todd, 61, of Lakewood, New Jersey, pleaded guilty before U.S. District Judge Joel A. Pisano in Trenton federal court to an information charging him with one count of conspiracy to commit wire fraud and one count of transacting in criminal proceeds.
According to documents filed in this case and statements made in court:
Todd is an attorney with offices in Seaside Heights, New Jersey, and Los Angeles, California. His two co-defendants, Eliyahu Weinstein, 39, of Lakewood, and Aaron Glucksman, 41, of Brooklyn, New York, have already pleaded guilty to charges related to their roles in the scheme.
Weinstein, already convicted and sentenced to 22 years in prison in a separate Ponzi scheme, pleaded guilty on Sept. 3, 2014, to three counts of an indictment pending against him: one count of conspiracy to commit wire fraud, one count of committing wire fraud while on pretrial release, and one count of money laundering. He is scheduled to be sentenced on those charges on Dec. 15, 2014.
Glucksman has also pleaded guilty and was sentenced by Judge Pisano on May 5, 2014, to 52 months in prison, three years of supervised release, and ordered him to forfeit $1.2 million. Judge Pisano ordered Glucksman’s sentence to run partially concurrently with a 36-month sentence recently imposed by U.S. District Judge Raymond J. Dearie of the Eastern District of New York in an unrelated case.
In February 2012, Todd and his conspirators offered a pair of investors (referred to in the information as the “Facebook victims”) the opportunity to purchase large blocks of Facebook shares prior to the company’s initial public offering, or IPO, in May 2012. The offer was particularly attractive because large blocks of the shares were extremely difficult to get and were expected to increase in value at the time of the IPO. Weinstein and his conspirators did not actually have access to the shares.
Based on misrepresentations by the conspirators, the Facebook victims wired millions of dollars between February and March of 2012 to an account Weinstein and a conspirator controlled. Weinstein and another conspirator provided investors with false documents showing companies owned by various conspirators held assets, which would secure the Facebook victims’ investment.
The conspirators did not use any of the Facebook victims’ money to purchase Facebook shares, instead misappropriating it for their own use.
Around the same time, Todd and his conspirators also persuaded victims to invest in the purported purchase of an apartment complex in Florida. They told the victims that Weinstein had the opportunity to purchase the notes on the condominiums at a discounted price and immediately flip it at a substantial profit. The victims wired money to complete the purchase, but Todd and his conspirators instead used the money for their own purposes.
The conspiracy count to which Todd pleaded guilty carries a maximum potential penalty of 20 years in prison; the transacting in criminal proceeds count carries a maximum potential penalty of 10 years in prison. Both are also punishable by a potential fine of $250,000 or twice the gross loss or gain from the scheme, whichever is greater.
U.S. Attorney Fishman credited special agents of the FBI, under the direction of Special Agent in Charge Aaron T. Ford in Newark, for the investigation leading to today’s guilty plea. He also thanked agents of IRS–Criminal Investigation, under the direction of Acting Special Agent in Charge Jonathan D. Larsen, for their role in the investigation.
A one year suspension has been imposed by the New York Appellate Division for the Second Judicial Department
The respondent is a partner in the law firm of Cronin & Byczek, LLP (hereinafter the Firm), and is the partner in charge of the Firm's litigation practice. In or about early 2000, Jose Antonio Romero (hereinafter Romero), who was incarcerated at the Auburn Correctional Facility, contacted the respondent about bringing an action related to the death of his wife, Robin Denise Romero, who died sometime in 1999, shortly after giving birth to their child in a New York City hospital. Romero was serving an 18-year sentence of imprisonment following his conviction for manslaughter in the first degree.
Upon investigation, the Firm learned that Robin Denise Romero's mother, Redell Willis, had retained the law firm of Danker & Milstein, P.C. (hereinafter the Milstein Firm), to bring an action in the Supreme Court, New York County, on behalf of her daughter's estate, to recover damages for wrongful death (hereinafter the wrongful death action). On or about May 19, 2000, the Firm entered into a retainer agreement with Romero (hereinafter the retainer agreement), wherein it was agreed that the Firm would represent Romero's interests with respect to his rights as a distributee of his wife's estate. Pursuant to the retainer agreement, the Firm was entitled to receive one-third of any recovery it obtained on Romero's behalf.
In or about April 2003, the wrongful death action was settled for $1,350,000, and the settlement was approved by the Surrogate's Court, Bronx County, in a decree dated January 21, 2004 (hereinafter the Surrogate's decree). Pursuant to Surrogate's Court Procedure Act § 2222-a (hereinafter SCPA 2222-a), the Surrogate's decree directed that Romero's share of the settlement, which was $250,000, could not be distributed "until 30 days from the date of entry of [the] Decree." In accordance with SCPA 2222-a, on or about March 4, 2004, the Chief Clerk of the Surrogate's Court forwarded a copy of the Surrogate's decree to the New York State Crime Victims Board (hereinafter the CVB) via facsimile transmission.
On or about March 12, 2004, the Firm received a check from the Milstein Firm representing Romero's share of the settlement in the sum of $250,000 (hereinafter the settlement proceeds). At or about that time, the Firm deposited the $250,000 check into the Firm's escrow account at the First Bank of Long Island (hereinafter the escrow account). On March 16, 2004, the Firm reimbursed itself for disbursements in the amount of $172.92 by check #12531, and issued check #12532 to the Firm in the sum of $83,275.70 for its fees under the retainer agreement. After issuing these checks, $166,551.38 remained on deposit in the Firm's escrow account on behalf of Romero.
In April 2004, Eamonn Trainor, a senior attorney for the CVB, was contacted by a representative of the Firm and advised that the Firm was holding approximately $160,000 to $170,000 in settlement proceeds for Romero. After obtaining affidavits from Aida Quiles and Angela Gutierrez (hereinafter together the crime victims), Trainor contacted the Firm on April 27, 2004, to confirm that it was still holding the settlement proceeds, and to advise it that the CVB was getting an injunction to "start freezing that money." An associate at the Firm, Kari Caulfield, informed Trainor that the Firm was still in possession of approximately $160,000 to $170,000 of the settlement proceeds, and that the money would be held for an additional 21 days. Later that day, in a second call, Caulfield informed Trainor that the Firm had decided that the settlement proceeds would be released forthwith. Trainor then sent Caulfield a letter, by facsimile transmission, dated April 27, 2004, in which he noted that the Firm was required to provide written notice to the CVB prior to disbursing the settlement proceeds, and asked the Firm not to disburse any of the settlement proceeds to Romero in accordance with Executive Law § 632-a (hereinafter the Son of Sam law). That evening, at the Firm's weekly meeting of the litigation group, the Romero matter was discussed. The respondent, six of the Firm's other attorneys, and one paralegal attended the meeting. Romero was billed for five hours for each of the attendees.
The next day, by letter dated April 28, 2004, the Firm notified the CVB for the first time in writing of the Firm's receipt of the settlement proceeds. Also on that day, the respondent sent two attorneys from the Firm, James LeBow and Dominick Revellino, to the Auburn Correctional Facility to confer with Romero. At the conference, Romero signed a nondurable power of attorney and a retainer agreement (hereinafter the 2004 retainer agreement) with the Firm to represent him "regarding any and all motions, suits, actions, litigation and appeals to protect the corpus" of the settlement proceeds. Pursuant to the 2004 retainer agreement, the Firm was entitled to a $75,000 refundable deposit, and work would be billed at the rate of $350 per hour. Revellino did not discuss the terms of the 2004 retainer agreement with Romero before it was signed. Romero was billed 24 hours for this visit and conference, 12 hours for each attorney.
The funds were transferred after a Supreme Court order had restrained such a transfer.
The court sustained charges of dishonesty and excessive fees
As an experienced trial attorney and the partner in charge of the litigation practice for the Firm, the respondent was actively involved in directing the decisions made by the Firm in the communications with the CVB, the handling of the settlement proceeds, and in the Firm's affirmation in opposition to the CVB OTSC. The Special Referee properly determined that the timing of the events between April 27, 2004, and April 30, 2004, e.g., the telephone communications between the CVB and the Firm, the exchange of correspondence with the CVB, the five-hour Firm litigation meeting, the visit to Romero at the Auburn Correctional Center, the transfer of the settlement proceeds from the Firm's escrow account to the operating account, and the quick re-deposit of a portion of those funds into the escrow account, defies any claim that the respondent's actions and those of her litigation group were unrelated to the CVB. Rather, they evidence a concerted effort to circumvent the CVB TRO. Although the Firm had control of the settlement proceeds when it was served by the CVB with the OTSC, the affirmation in opposition submitted by the Firm in response to the CVB OTSC contained a false affirmation that the settlement proceeds had only been held until April 12, 2004, and had been released to Romero before the OTSC was served. It appears that the clear purpose of these misrepresentations was to defeat the OTSC, and to mislead the Supreme Court, Albany County, by failing to reveal that the Firm had transferred the settlement proceeds into another account on the day it was served with the TRO. Indeed, that court relied upon the Firm's misrepresentations in its denial of the application for a preliminarily injunction, as reflected in its decision and order dated September 15, 2004.
Concerning the fees charged to Romero, notwithstanding the respondent's claims that the petitioner failed to produce expert testimony, the Special Referee properly concluded that "it is clear from any standpoint that the fees . . . were excessive," in light of the Firm's billing in advance of being retained by Romero for the constitutional challenge to the Son of Sam law, and the total amount of fees charged Romero, which were virtually the entire settlement proceeds received by him.
Based on the evidence adduced, and the respondent's admissions, the Special Referee properly sustained the charges.
In mitigation, the respondent asks this Court to consider the settlement of the contempt action and payment of $125,000 to the crime victims, the respondent's unblemished disciplinary history, including that she has not been the subject of any other disciplinary action in the nearly 11 years that have elapsed since the events that are the subject of this proceeding, as well as the evidence of her charitable endeavors, pro bono legal service, and good character. Nevertheless, the respondent has engaged in serious misconduct in her representation of Romero, involving, inter alia, dishonesty, fraud, deceit, and misrepresentation, which conduct is prejudicial to the administration of justice and adversely reflects on her fitness as a lawyer.
Under the totality of the circumstances, we find that the respondent's conduct warrants her suspension from the practice of law for a period of one year.
The District of Columbia Court of Appeals has disbarred an attorney convicted of causing a deadly car crash while intoxicated.
Details here from NBC4
A once-prominent Tysons attorney is headed to prison for almost a decade after driving drunk and killing an Ashburn, Virginia, couple.
Mark Sgarlata, 53, pleaded guilty in August 
Friday, after an emotional hearing, Sgarlata was sentenced to 20 years on each count of involuntary manslaughter with all but four years on each count suspended. He was given 12 months on the driving under the influence charge.
Sgarlata was driving his BMW Oct. 6, 2013, when he plowed into Ricky and Leia Wrenn, who were on their Harley Davidson motorcycle, just blocks from their Ashburn home.
The Wrenns' son, Kyle, took the witness stand to provide a victim impact statement. He and several other Wrenn relatives urged the judge to deliver a sentence at the upper end of the 1-10 year range. They underscored the fact that Sgarlata had been arrested two years before for DUI, something they said should have served as a wake-up call.
"We can call it justice but at the end of the day my mom and dad are still gone," Kyle Wrenn said. "They were loved by so many people. Two individuals in the prime of their life were killed in an instant. It deserves the high end."
...Prosecutors also pushed for a longer sentence and they presented striking new evidence. They showed video taken from inside the squad car the night of the accident. It shows Sgarlata unable to stand on one foot or walk a straight line. His blood alcohol level was 0.23 at the scene of the accident on Ashburn Farm Parkway and 0.15 at the jail.
Prosecutors also played a recording of Sgarlata's conversation inside the police car as he was arrested. When the police car door is slammed shut, Sgarlata can be heard saying, "Oh my God, I'm dead. I messed up my life..." He later said to the officer, "My car is completely screwed up. What are they doing with that?" After that he asks, "Do you think those people are OK?"
It was the first time Wrenn family members had heard the post-accident conversation.
"It's appalling that the first thing you think about after killing two people is, How is my BMW?" said Kyle Wrenn. "That's just the selfishness of him."
But the packed courtroom was filled with many who went to support Sgarlata.
One of his closest friends and law partners, Chris Brasco, testified, telling the judge, "Mark is so much more than the tragic events of that evening. Mark is a wonderful man, giving and kind."
Sgarlata's ex-wife, Sandra Sgarlata, pleaded with the judge to give Sgarlata a work release sentence so he could see their teenage son.
"The burden he is carrying is unimaginable. That in and of itself is a lifetime sentence."
Just before the sentence was delivered, Sgarlata apologized to the victims' friends and family, telling the judge: "I made a terrible, terrible decision to drink and drive, but I'm not a terrible person."
While most of the Wrenns' family members hoped for an even longer sentence, Kyle Wrenn said one goal was accomplished.
"The number one thing was keeping Mark Sgarlata off the streets of northern Virginia," said Wrenn. "Keeping people like him from ever doing this to anyone again was my No. 1 priority."
Sgarlata has already begun serving his sentence. After he pleaded guilty in August, he turned himself in to the detention center.
The sanction was imposed as reciprocal discipline based on the revocation of his Virginia license. (Mike Frisch)
The New York Commission on Judicial Conduct has censured a town court justice who
created the appearance of impropriety and lent the prestige of his judicial office to advance his son's private interests by requesting leniency for his son from two law enforcement officers in two separate conversations concerning impending charges of Overdriving, Torturing and Injuring Animals, a misdemeanor, and Violating Prohibited Park Hours, a violation under the local law.
The justice was contacted by police concerning his 19 year old son
Officer McCully led respondent to the women's restroom where he had earlier found Joseph Sullivan with two small kittens. One of the kittens had been hog-tied with tape, and there was a lighter nearby. Officer McCully informed respondent that his son would be charged at a later time and would be allowed to go home with respondent that night. Respondent was given custody of the kittens to return them to the location where his son had obtained them. No charges were issued against respondent's son that night.
Early the next morning, Saturday, July 20, 2013, respondent telephoned Whitestown Chief of Police Donald Wolanin on the chief's cell phone to discuss the incident in the park the night before. Respondent told the chief that he hoped that the police would not "go piling on" charges or "overcharge" his son, or words to that effect.
at the conclusion of respondent's court session, Officer McCully entered the Whitestown Town Court and asked to speak with respondent. The two went outside the building, where Officer McCully said that he needed respondent's son to come to the police station where the officer would issue an appearance ticket for animal cruelty and being in the park after hours. Respondent stated, "Do you really have to arrest him?" or words to that effect. Respondent told Officer McCully that if his son was arrested it would ruin his chances of getting a job with the Oneida County sheriff.
By acting as his son's advocate in two conversations with law enforcement officials while seeking leniency with respect to impending charges, respondent lent the prestige of his judicial office to advance his son's private interests...
While it is understandable that respondent was concerned for his son and hoped for leniency in the officers' assessment of potential charges, his '"paternal instincts' do not justify a departure from the standards expected of the judiciary"
The justice is not an attorney. (Mike Frisch)
Wednesday, July 22, 2015
In the District of Columbia, a person charged with an offense that carries a jail sentence of 180 days or less is not entitled to a jury trial.
Lase week, the Court of Appeals held that, if the defendant is a non-citizen facing possible deportation, the right to trial by jury attached.
Associate Judge Thompson, with Senior Judge Ruiz concurring, concluded
This appeal requires us to decide whether a non-citizen facing a charge of misdemeanor sexual abuse of a child has a constitutional right to a jury trial because of the severe, "virtually inevitable," and "nearly . . . automatic" penalty of deportation that is triggered by a conviction for that offense, which constitutes an "aggravated felony" under the federal immigration laws. For the reasons that follow, we hold that the answer to that question is "yes."
From the concurring opinion
I agree with Judge Thompson that the deportation consequence that flows from a conviction of misdemeanor child sexual abuse, when considered with the exposure to 180 days of incarceration, makes it a "serious" offense under the Sixth Amendment that entitled appellant to a jury trial. I take no issue with Judge Thompson’s discussion that, because child sexual abuse is an "aggravated felony" under federal immigration law, appellant does not have recourse to relief from deportation or even an otherwise valid claim of asylum, which makes his situation particularly dire. That further explanation is not, however, necessary to the Supreme Court’s analysis under the Sixth Amendment which looks to the "severity of the maximum authorized penalty" in assessing whether an offense is serious and warrants the right to a jury trial.
A dissent from Associate Judge Fisher
According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the same offense does. Before I accept such a startling result, I would like to see more cogent proof that the prospect of removal (even the certainty of removal) is legally sufficient to overcome the presumption that the crime is not a "serious" offense to which the right of trial by jury attaches. Padilla v. Kentucky, 559 U.S. 356 (2010), clearly does not compel this conclusion because it says nothing about the right to a jury trial...
Apart from being unprecedented, the majority’s analysis enormously complicates the practice of criminal law. "Immigration law can be complex, and it is a legal specialty of its own. Padilla, 559 U.S. at 369. Under the majority’s precise holding, the determinative question is whether the conviction would be treated as an aggravated felony—it is the certainty of deportation, not exposure to the risk, that matters. And the reservation of judgment found in footnote 33 of the majority opinion signals that issues of immigration law will become the central focus of criminal litigation whenever a noncitizen has been charged with an offense that ordinarily does not require a trial by jury. Trial judges and practitioners of criminal law will have to acquire the expertise to make these judgments. I would not add this complexity unless convinced that the Supreme Court has required it.
There had been bad blood between the judge and petitioner's counsel such that, as a matter of tactics, another member of counsel's firm handled a second trial,
The alleged hostility arose in an unrelated Engle case wherein the judge issued a fifteen-page order granting a motion for new trial based largely on counsel’s courtroom behavior.
Within that order the judge detailed the attorney’s conduct characterizing it as misleading and a fraud on the court. The hostility between the two carried over into proceedings concerning the judge’s nomination for appointment to the federal bench. The judge furnished the nominating committee a copy of the order as a writing sample. Thereafter, the attorney sent the committee a letter challenging the facts contained in the order and questioning the judge’s suitability for appointment to the federal bench. Following the judge’s unsuccessful nomination, petitioner and other Engle plaintiffs represented by the attorney and his firm moved to disqualify the judge. The judge denied the motion, and we denied the prior prohibition petition.
But an issue arose when counsel attended closing arguments
The events surrounding this second motion arose after the attorney was present in the courtroom to observe a portion of a firm member’s closing arguments and after the jury returned its verdict. According to petitioner, she and her trial counsel approached the bench to thank the judge. Petitioner alleges that as the two were walking away from the bench, the judge commented that she had seen the attorney in the courtroom and that she would “never forgive him for what he did to me.” Petitioner alleged that it appeared to her that the judge was “highly emotional and on the verge of tears as she said this.”
Petitioner alleged that while she was previously aware of the issues between the judge and her attorney, she did not appreciate “the depth of the hostility or how deeply hurt the judge was by [counsel’s] active opposition to her quest for a federal judgeship.” Petitioner’s trial attorney, who was present at the bench with petitioner, furnished an affidavit echoing petitioner’s representation of the judge’s comments and adding that the judge said she “will never forget what he did. I will never forgive him and I took it personally. It was very hurtful and it made me cry.” Counsel added that the judge told him that he could communicate that sentiment to the attorney...
Accepting the allegations within the motion and affidavits as true, we conclude that the judge’s alleged inability to restrain either her utterances or her emotions in front of the petitioner would, if true, show that the experience profoundly affected her and made her future impartiality reasonably suspect. The source of this prejudice is personal and unrelated to petitioner’s case and trial counsel’s conduct therein. See, e.g., Lamendola v. Grossman, 439 So. 2d 960 (Fla. 3d DCA 1983). Though we previously concluded that any hostility arising from the events of the judicial nominating process did not warrant disqualification, the judge allegedly opened the door and displayed the depth of such hostility by failing to remain silent despite the passage of time.
Based on the foregoing, we conclude that a reasonably prudent person would be in fear of not receiving fair and impartial judicial review of the pending matters.
Tuesday, July 21, 2015
As we prepare for the fall semester of teaching ethics to law students, a useful reminder from the Utah Supreme Court
Intentionally misappropriating a client’s money is at or near the top of the list of things a lawyer should never do. But that is what Alvin Lundgren did when he took Janet Best’s money from his client trust account for his own purposes. Upon discovering the defalcation, Ms. Best reported Mr. Lundgren to the Utah State Bar Office of Professional Conduct (OPC).
Following an investigation, the OPC filed a complaint in district court against Mr. Lundgren. Based on his admitted misconduct, the district court granted the OPC’s motion for summary judgment and disbarred Mr. Lundgren. Mr. Lundgren timely appealed. We affirm his disbarment and state again that a Utah attorney who intentionally misappropriates client funds will be disbarred unless the attorney can show truly compelling mitigating circumstances.
The misappropriation involved funds withheld by the attorney to pay medical bills in a workers' compensation case.
Because intentional misappropriation of client funds is so deeply concerning and intolerable to our profession, an attorney who is guilty of it should be disbarred. The only exception to this rule occurs if an attorney can show “truly compelling mitigating circumstances.” In re Discipline of Ince, 957 P.2d 1233, 1237 (Utah 1998); Babilis, 951 P.2d at 217. We have never explicitly defined the phrase “truly compelling mitigating circumstances,” but we have said that the “mitigating factors must be significant,” Ince, 957 P.2d at 1237–38, and should be construed “relatively narrowly.” Grimes, 2012 UT 87, ¶ 40; see also Corey, 2012 UT 21, ¶ 37 n.17. Again, the standard for sanctioning such behavior is purposely strict in order to serve the public and the profession by maintaining the trust that is so critical to the attorney-client relationship...
The fact that no attorney in Utah to date has been able to show that he acted under truly compelling mitigating circumstances when he misappropriated client funds does not indicate that there is a problem with the standard, nor does it render the standard “illusory,” “vague,” or unenforceable. Nor do we agree with Mr. Lundgren that the standard is “worthless and of no material benefit.” To the contrary, we find our strict standard for imposing sanctions in cases of intentional misappropriation to be extremely explicit, worthy, and highly beneficial to the legal profession and the public.
And the mitigation was insufficiently compelling
It is true that Mr. Lundgren ultimately restored Ms. Best’s funds, but this factor is not mitigating where there is no evidence to show that remorse was his motivation for restoring the funds. Tellingly, Mr. Lundgren did not self-report his unethical conduct or restore the funds to Ms. Best until after she had lodged a complaint with the OPC. Thus, it seems likely that his restoration of the funds was merely an attempt to avoid punishment. Under rule 14-607(c)(1) of the Supreme Court Rules of Professional Practice, “compelled restitution” cannot be considered a mitigating factor.
And Mr. Lundgren misses the ethical point entirely when he attempts to minimize his misappropriation by asserting that it is “philosophically debatable if the client does not know of the removal of funds over which the client does not have control, whether there is actual injury.” It is not philosophically debatable whether stealing money is okay so long as the victim never finds out.
Utah attorneys be forewarned
Today we reaffirm that the sanction for intentional misappropriation of client funds is disbarment unless an attorney can show truly compelling mitigating circumstances. Mr. Lundgren intentionally misappropriated client funds and failed to show any truly compelling mitigation. We therefore affirm the district court’s order of disbarment.
The District of Columbia Court of Appeals has a similar approach to intentional misappropriation cases.
The D.C. court has a line of cases that treat recovery from substance abuse as a factor that justifies a lesser sanction than disbarment, The seminal Kersey case is one that I handled.
Outside of that line of cases, there is one where the court found truly compelling mitigation. I called that case (where I think some skewed fact finding drove the result) the Altruistic Theft. (Mike Frisch)
Disbarment has been ordered by the Indiana Supreme Court of an attorney previously suspended for failure to cooperate
In January 2005, “Clients” retained Respondent to represent them in their Chapter 13 bankruptcy. In December 2010, the bankruptcy trustee issued a refund check for $8,725.35, payable to Clients. For almost two and one-half years, Respondent did not disclose the existence of this check to Clients. Instead, Respondent fraudulently endorsed and deposited the check into an account that was not his attorney trust account, and thereafter used the proceeds for his own personal purposes. When the trustee’s final report (issued in June 2013) revealed the issuance of the refund check, Clients confronted Respondent, and Respondent promised to repay the amount to Clients. Respondent later issued a check in the amount of $8,725.35, drawn on an account other than his attorney trust account, but Clients were unable to negotiate the check due to insufficient funds in the account. When Clients later retained successor counsel, Respondent refused to return Clients’ file.
In recommending disbarment, the hearing officer cited Respondent’s conversion of client funds and the absence of any compelling mitigation. See American Bar Association’s Standards for Imposing Lawyer Sanctions 4.11 (“Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client”). We agree. “Misappropriation of client funds is a grave transgression. It demonstrates a conscious desire to accomplish an unlawful act, denotes a lack of virtually all personal characteristics we deem important to law practice, threatens to bring significant misfortune on the unsuspecting client and severely impugns the integrity of the profession.” Matter of Hill, 655 N.E.2d 343, 345 (Ind. 1995).
The attorney had disciplined on two prior occasions cited in the court 's opinion
Matter of Ouellette, 636 N.E.2d 1251 (Ind. 1994) (Respondent suspended for knowingly making false statements of material fact to a tribunal and failing to disclose such facts when disclosure was necessary); Matter of Ouellette, 857 N.E.2d 377 (Ind. 2006) (Respondent suspended for failing to act with reasonable diligence in representing a client, failing to keep the client adequately informed, and failing to timely respond to the Commission’s investigation)
A trial court erred in granting summary judgment and treating as moot a motion to disqualify counsel, according to an opinion of the United States Court of Appeals for the District of Columbia Circuit.
The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel’s conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates, the court should resolve a motion to disqualify counsel before it turns to the merits of any dispositive motion. That procedure was not followed here. We therefore vacate the district court’s grant of summary judgment and its denial of the motion to disqualify and remand this case for further proceedings. Because the district court will decide in the first instance whether there was a conflict of interest or an appearance of such a conflict in violation of applicable ethics rules and, if so, will determine the appropriate remedy, we offer only limited guidance on the remaining issues the parties briefed and leave to the district court to decide them in view of its ruling on the merits of the motion to disqualify.
The case involves a death at a notorious juvenile facility.
The court found the legal response to the death was less than a model of efficiency.
Our legal system is not at its finest when a mother’s case seeking redress for the sudden and violent death in government custody of her healthy teenaged son is lost in a muddle of scheduling inattention, miscommunication, and lack of follow-up. Oak Hill juvenile detention facility was for decades notorious for overcrowding, inhumane and unsafe conditions, and unresponsiveness to the needs of incarcerated youth. The District of Columbia faced class action litigation over its failings at Oak Hill, entered a consent decree requiring court-appointed monitors, and violated the decree so systematically for so long that it paid millions of dollars in court-ordered fines. Oak Hill was the subject of critical findings by the Inspector General, a mayoral Blue Ribbon Commission, a court-ordered monitor, witnesses before the D.C. Council and Congress, and was ultimately put under a court-ordered receivership. The District closed Oak Hill in 2009. That is the facility where Karl Grimes died...
...there is more reason here than in the typical case for concern that the facts have not been discovered. It is rare that a violent death occurs against a backdrop of seemingly relevant, severe, and systemic problems, yet—at least as the record reflects—so little is done to investigate.
As to the grounds to disqualify counsel for the District of Columbia
The district court erred in failing to consider Grimes’s motion to disqualify counsel for the District of Columbia before ruling on the government’s summary judgment motion. The basis of Grimes’s response to the government’s motion for summary judgment was that Peter Nickels, then the Attorney General for the District of Columbia, had a conflict of interest disqualifying him from appearing as counsel, even ex officio, on this case. As Attorney General, Nickels was the lead signatory on the government’s briefs in this case in the district court. Grimes’s assertions of conflict of interest arose when her counsel learned that, before he became Attorney General, Nickels had represented a class of plaintiffs that included plaintiff’s decedent Karl Grimes in a lawsuit claiming overcrowding and unsafe conditions, and seeking systemic reform at the Oak Hill juvenile detention facility where Grimes later died.
The court was required to deal with the conflicts issue once a "plausible claim" of a conflict was raised
Once a party moves to disqualify an adverse party’s counsel, the district court may not entertain a dispositive motion filed by the very counsel alleged to be conflicted until the court has first determined whether that counsel is disqualified.
And the conflict issue was not properly considered
Despite his name appearing on all the district court papers and his role as the chief legal officer for the District of Columbia, the government contends that Attorney General Nickels did “not serve as counsel.” Nothing in the factual record here rebuts the presumption that a lawyer whose name appears on a paper filed in court bears some responsibility for it. There is no evidence that, for example, the Attorney General’s Office instituted measures to insulate Nickels from supervisory or other participation in this litigation.
Judge Pillard wrote for the court. (Mike Frisch)
An attorney who represented his deceased second cousin's son as personal representative of her estate was suspended for six months and a day for switching sides and bringing claims against the estate on behalf of the cousin's brother.
After June’s death, [brother] Paul renewed his claims and the respondent participated, as [son] Richard’s lawyer, in one or more discussions among the family members of Paul’s claims. On August 8, 2007, the respondent filed a notice of withdrawal of his appearance for Richard in the estate.
Despite his prior representation of Richard, on November 9, 2007, the respondent filed a civil complaint in the superior court on behalf of Paul against Richard in Richard’s capacity as administrator of the estate. The complaint alleged a breach of contract based upon Paul’s claim that had Richard failed to perform an agreement to reimburse Paul a sum certain from June’s estate. This complaint was the same or substantially related to matters in which the respondent had previously represented Richard.
At no time did Richard consent to the respondent’s representation of Paul in commencing the litigation against him in his capacity as administrator of the estate. In fact, Richard and his brother and sister, through counsel, protested in writing to the respondent his advancing any of Paul’s claims for reimbursement by any “intervention” in the estate matters.
Not only that - the claims were deemed frivolous
On June 1, 2009, Richard filed a motion for attorneys’ fees in the superior court action. On September 28, 2010, the superior court found that the respondent had willfully violated Mass. R. Civ. P. 11(a) and acted in bad faith in commencing and pursuing meritless claims against June’s estate. The court further found that the respondent’s actions were a clear violation of Mass. R. Prof. C. 1.9(a). The court awarded sanctions against the respondent in the amount of $40,000.00 in attorney fees and $2,382.58 in costs. Undaunted, on October 27, 2010, the respondent filed a notice of appeal to the Appeals Court. The appeal was not perfected and in April, 2011, the superior court dismissed the appeal. On the same date, the respondent filed a notice of appeal concerning the dismissal of his appeal.
On June 2, 2011, the superior court granted an attachment on certain of the respondent’s real estate in the amount of $45,000.00.
He also failed to cooperate in the bar investigation. (Mike Frisch)
An attorney who was initially admitted to practice in 1968 and never been disciplined in the past was censured by the New Jersey Supreme Court.
He engaged in a conflict of interest in a foreclosure matter and exacerbated the ethical problem by obstructive behavior in the ensuing malpractice litigation
this record demonstrates respondent’s pattern of false statements and half-truths. On multiple occasions during discovery, including in his answer to an interrogatory and during his testimony respondent misled [counsel] Hoberman. at his deposition, under oath, He first indicated that the name of his carrier was "unknown" to him. Then he testified that the name of the carrier began with an "A" and that he "probably" had notified his carrier of the malpractice claim. As to the latter statement, respondent told the DEC that he had made a conscious decision not to give notice of the suit to his carrier, because he considered it to be frivolous and he did not want his insurance premiums to increase. Also, at his deposition, he testified that he had represented DeFilippi at the closing, only to tell the DEC that his testimony had been untrue and that it had been prompted by his irritation at Hoberman’s repeated questions about that topic. This conflicting statement demonstrates that respondent either lied at the deposition or lied to the DEC.
On the plus side
A significant mitigating factor here is respondent’s spotless disciplinary record in New York, where he was admitted forty-six years ago, and in New Jersey, where he was admitted twenty-six years ago, strongly suggesting that his conduct in this matter was aberrational or out-of-character.
The orders are linked here. (Mike Frisch)
Monday, July 20, 2015
A judge who fixed tickets for a fellow judge and his family was suspended for a year (retroactive) by the New Jersey Supreme Court.
Respondent was a municipal court judge in Jersey City until 2007. Sison was also a municipal court judge at the time.
On October 24, 2007, the New Jersey Office of the Attorney General (AG) notified the OAE of charges filed against respondent for "ticket-fixing" and later provided the OAE with a copy of the complaint, charging her with the second-degree crime of Official Misconduct, N.J.S.A. 2C:30-2(a).
On August 28, 2009, respondent was admitted into the PreTrial Intervention (PTI) program, which she successfully completed.
Count one of the complaint alleged that Sison presented respondent with three motor vehicle tickets "for adjudication." The tickets had been issued to him and to members of his family. Respondent did not adjudicate the Instead, she imposed judgment tickets on the record. without the defendants’ appearances or pleas and without considering their guilt or innocence. She either found the defendants guilty or dismissed their matters.
For Sison’s ticket for parking during street cleaning, respondent assessed $20 in court costs and waived the $42 fine.She conceded, during the AG’s investigation, that "there probably was no legitimate reason to waive the fine; that’s the culture."
A second ticket charged Sison or his wife with the same offense, for which respondent assessed $I0 in court costs and waived the $42 fine.
A third ticket, issued to Karl Sison, charged him with a moving violation for failure to observe a traffic control device, a two-point violation. Respondent amended the ticket to delaying traffic, a no-point violation, and imposed a $25 fine and $25 court costs. She advised Sison of the amended charge and fines.
Although Karl Sison had been standing in the hallway, while respondent adjudicated his ticket, she did not elicit a factual basis for the amended charge and did not give the municipal prosecutor or charging officer an opportunity to be heard about the charges. Respondent knew that her actions were not authorize.
The judge questioned the proceedings
By letter to Sweeney, dated October i, 2014, respondent, among other things, accused Disciplinary Review Board Member Gallipoli of "Javert-like madness," in ensuring her prosecution, and questioned why charges against Sison had not been pursued.
The report of the Disciplinary Review Board and the court order may be found here. (Mike Frisch)
An attorney was suspended for 60 days by the Indiana Supreme Court
On or about March 7, 2011, Respondent and his now ex-wife had a confrontation at the conclusion of a therapy appointment for their minor child. Respondent was convicted after a bench trial of Domestic Battery, a Class A misdemeanor, on May 26, 2011. Respondent failed to report his conviction within 10 days to the Commission. Respondent’s conviction was affirmed by the Court of Appeals. Adewopo v. State, No. 41A05-1107-CR-380 (Ind. Ct. App. Feb. 13, 2012). The parties point to facts recited in that opinion indicating that Respondent pulled or pushed his now ex-wife to the ground, knocked her to the ground a second time, and then kicked her while she was on the ground.
He had no prior discipline and completed his criminal probation. (Mike Frisch)
An attorney's motion for consent to disbarment has been submitted to the Illinois Supreme Court.
A criminal conviction preceded the motion
On September 10, 2014, Movant was charged in a two-count Information with violating Title 18, U.S. Code, sec. 666(a)(2), Scheme to Commit Bribery/Theft From Programs Receiving Federal Funds (Count I) and violating Title 26, U.S. Code, sec. 7206(1), Filing a False Tax Return (Count II).
In Count I, the government alleged that beginning in 2006, Movant became a paid consultant to various entities that received federal grant and contract funds from the Illinois Department of Public Health ("IDPH"). Between 2006 and 2010, Movant received more than one million dollars in fees from grant and contract funds disbursed by the IDPH. As a condition of receiving the grant and contract funds, Movant agreed to kick back a portion of the funds to Quinshaunta Golden ("Golden"), then Chief of Staff for IDPH. The kickbacks to Golden totaled approximately $433,000.
In Count II, the government alleged that during the years 2006 through 2009, Movant knowingly and willfully filed false and fraudulent tax returns by failing to report her true income of $908,266.42, and by failing to pay $172,825 in federal taxes.
On September 23, 2014, Movant pled guilty to the offenses charged in Counts I and II of the Information described above.
On June 15, 2015, the Honorable Sue E. Myerscough accepted Movant’s guilty plea and entered judgment on the offenses enumerated in of Counts I and II of the Information.
Judge Myerscough sentenced Movant to 25 months imprisonment on each count, with the sentences to run concurrently, fined Movant $200 and ordered her to pay restitution to the Illinois Department of Public Health in the amount of $1,000,000 and restitution to the Internal Revenue Service in the amount of $172,825.
The Quincey Journal reported on the plea.
A former human resources director for the Illinois Department of Public Health, Roxanne Jackson, waived indictment and pled guilty today to an information that charges her with participating in a bribery and kickback scheme related to state grants and contracts and filing false income tax returns. The information was filed by the U.S. Attorney’s Office for the Central District of Illinois...
During today’s court hearing, Jackson admitted that from 2006 to 2010, she received more than $1,000,000 in grant funds originally awarded and disbursed to three Chicago not-for-profit organizations and in contract funds to a business identified as Security Firm A. As part of the scheme, at Golden’s direction, Jackson was hired as a paid consultant for the three not-for-profit entities and Security Firm A.
From 2004 to 2010, IDPH awarded more than 30 non-competitive grants totaling more than $11 million to three not-for-profit organizations: Broadcast Ministers Alliance, Access Wellness and Racial Equity, and the Medical Health Association. The grants were for programs relating to breast, cervical and prostate cancer, HIV/AIDS, and emergency preparedness. From 2006 through 2010, Security Firm A was paid more than $2 million in contract funds to conduct background checks and interviews of Illinois nursing home residents related to the Identified Offender Program.
Jackson admitted that as a condition to receive grant funds, she was required to pay Golden one-half of whatever she received, less any funds to be withheld for payment of taxes, which were never paid. Jackson admitted that from about July 2007 to April 2008, she made cash withdrawals of grant funds from her bank accounts and made cash payments to Golden ranging from $5,000 to as much as $70,000.
In agreement with Golden, Jackson further admitted that she was required to pay Golden kickbacks for each background investigation performed by Security Firm A. The payments ranged from $35 to $40 per investigation performed. From 2006 to 2009, Jackson received approximately $485,000 in funds from Security Firm A’s contracts with IDPH, and during 2007 and 2008, made kickback payments to Golden of approximately $109,500 in contract funds.
As a result of the scheme, from about July 2007 and continuing to approximately October 2008, Jackson admitted she repeatedly made kickback payments to Golden of grant and contract funds for a total of approximately $433,000.
As to Jackson’s filing false income tax returns for tax years 2006, 2007, 2008, and 2009, Jackson admitted she caused the filing of false and fraudulent federal income tax returns by failing to report a total of $908,266 in income, resulting in failure to pay $172,825 in taxes due.
An attorney who had been disbarred in 1993 was reinstated to practice in 2013 with conditions.
after a reinstatement hearing before a hearing panel of the board, the SJC ordered that the respondent be reinstated to the practice of law subject to conditions as enumerated in the report. The first condition required the respondent to enter into a written mentoring agreement with another named attorney for a term of two years on terms satisfactory to bar counsel. Another condition required the respondent to submit to a psychological evaluation from Lawyers Concerned for Lawyers (LCL), but did not set forth a time for compliance.
It did not go as hoped.
bar counsel filed a motion for reconsideration with the SJC asking that the SJC reconsider, and then deny or revoke, the respondent’s reinstatement immediately. The matter was heard before the single justice on April 1, 2014. The respondent did not appear, but his previous counsel appeared and was given leave to speak to assist the Court. Counsel asked the Court to give the respondent time to resurface. The respondent did not resurface and on July 23, 2014, the SJC entered an order temporarily suspending the respondent pending further proceedings before the board. The respondent was ordered, among other matters, to file compliance forms and to contact bar counsel on or before October 1, 2014. The respondent failed to comply with the order of temporary suspension, had not contacted bar counsel, had not filed compliance forms and is still of parts unknown.
As a result, the Massachusetts Supreme Judicial Court imposed a suspension of six months and a day.