Friday, December 8, 2017

"Gross Speculations"

The plaintiff in a legal malpractice complaint was free to amend the allegations but the case was "nevertheless" properly dismissed

Nevertheless, the amended complaint must be dismissed, because plaintiff's claim that, but for defendants' negligence, he would have recovered the full $3 million that he was owed during the bankruptcy filed by nonparty Majestic Capital, Ltd., consists of "gross speculations on future events" (Sherwood Group v Dornbush, Mensch, Mandelstam & Silverman, 191 AD2d [*2]292, 294 [1st Dept 1993]; see also Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428 [1st Dept 2015], lv denied 27 NY3d 904 [2016]; Turk v Angel, 293 AD2d 284 [1st Dept 2002], lv denied 100 NY2d 510 [2003]).

The New York Appellate Division for the First Judicial Department decision is linked here.  (Mike Frisch)

December 8, 2017 in Clients | Permalink | Comments (0)

Brief Lapses Lead To Suspension, Probation

There have been a number of cases involving appointed counsel's failure to file briefs before the District of Columbia Court of Appeals.

As a result, a body of sanctions case law is emerging.

In cases involving multiple case lapses, some period of suspension is imposed (see here and here)

Yesterday the court decided such a matter

In this case, the Board on Professional Responsibility has adopted the Ad Hoc Hearing Committee’s uncontested findings that respondent Jejomar Untalan ignored multiple orders of this court to file a brief in each of seven separate criminal or juvenile matters in which he had been appointed as counsel pursuant to the Criminal Justice Act (CJA). The Board has also accepted the Ad Hoc Hearing Committee’s consideration of certain mitigating evidence: Mr. Untalan’s stress related to marital difficulties; his lack of prior disciplinary issues; and his steps to voluntarily close his practice, transfer his remaining cases, and assist in the transfer of client records.

In light of this record, the Board recommends that this court determine that Mr. Untalan violated District of Columbia Rules of Professional Conduct 1.1 (a), 1.1 (b), 1.3 (a), 1.3 (b)(1), 1.3 (c), 3.4 (c), and 8.4 (d). The Board further recommends that Mr. Untalan be suspended for a period of six months, all but sixty days stayed in favor of a one-year period of probation subject to the following conditions: Mr. Untalan shall (1) notify Disciplinary Counsel and the Board at least ninety days prior to resuming the practice of law;  2) consult with the D.C. Bar’s Lawyer Assistance Program at least once during the probationary period and waive confidentiality to allow Disciplinary Counsel to confirm compliance; (3) undergo an assessment by the D.C. Bar’s Director for the Practice Management Advisory Service, or his designee, implement any recommendations, and sign a limited waiver permitting the program to confirm compliance with this condition and cooperation with the assessment process; (4) not commit any additional Rule violations during the period of probation; and (5) report to a practice monitor and waive confidentiality to permit Disciplinary Counsel to confirm his compliance with the monitoring condition if he resumes the practice of law during the period of probation. 

The court adopted the recommended sanction. 

When the court that imposes discipline refers a matter to Disciplinary Counsel, bad things happen to the attorney. (Mike Frisch)

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

Six Months For Real

An attorney with a prior stayed six-month suspension has been sanctioned by the Ohio Supreme Court

In 2002, we found that he had failed to fully disclose to his clients his financial interest in investment recommendations that he made while acting as both their lawyer and their financial planner and we sanctioned him with a conditionally stayed six-month suspension.

Here

In 2016, relator, Stark County Bar Association, charged him with making false statements relating to his clients’ financial information while representing them in the Medicaid application process. Buttacavoli stipulated to some of the charges against him. After a hearing, the Board of Professional Conduct issued a report finding that he had engaged in some of the charged misconduct and recommending that we impose a two-year suspension with 18 months conditionally stayed and require him to make restitution to two of his former clients before seeking reinstatement. Neither party has objected to the board’s report and recommendation.

The particulars

a significant portion of Buttacavoli’s practice is providing financial-planning advice to elderly clients, with the purpose of ensuring their eligibility to receive long-term-care benefits under Medicaid. The board found that he had engaged in professional misconduct with regard to two such client matters.

First, in 2013 and 2014, Buttacavoli assisted Marquerite A. Marchant in transferring assets to family members, including gifting her life-estate interest in real property to her children, gifting the ownership of life-insurance policies to her daughter, and transferring stock ownership to her daughter effective upon Marchant’s death. In May 2014, Buttacavoli applied for Medicaid assistance on Marchant’s behalf, and the following month, the Stark County Department of Job and Family Services interviewed him as her representative. During that interview, he falsely stated that Marchant had not transferred, sold, or given away any resources within the previous five years. He also signed a statement attesting that the representations he made during the interview were truthful. During his disciplinary proceedings, Buttacavoli admitted that his representations to the agency were false, that he was required by law to disclose all prior transfers, and that he had made the misrepresentations for the purpose of inducing the agency to find that his client qualified for Medicaid benefits. 

After an investigation

In September 2015, Buttacavoli pled guilty to a first-degree misdemeanor charge of falsification under R.C. 2921.13(A)(4), which prohibits a person from knowingly making a false statement with the purpose of securing a benefit administered by a governmental agency. The Stark County Court of Common Pleas ordered him to serve a 180-day suspended sentence and pay a $500 fine and court costs.

He had engaged in similar misconduct in a second client matter.

The attorney also engaged in misconduct by charging a "non-refundable" fee without required disclosures.

The court accepted the proposed sanction. (Mike Frisch)

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

Thursday, December 7, 2017

Bar Investigations And The Fifth Amendment

The Nevada Supreme Court has ruled on a Fifth Amendment assertion made in the course of a bar investigation

In this original petition for a writ of mandamus or prohibition we are asked to consider whether an attorney can assert his Fifth Amendment right against self-incrimination to quash subpoenas issued by the State Bar that seek production of client accounting records and tax records. With regard to the requested client accounting records, we adopt the three-prong test under Grosso v. United States, 390 U.S. 62 (1968), to conclude that the right against self-incrimination does not protect petitioner from disclosure. However, with regard to the requested tax records, we conclude that the Southern Nevada Disciplinary Board must hold a hearing to determine how the subpoenaed tax records are relevant and material to the State Bar's allegations that petitioner mismanaged his client trust account and whether there is a compelling need for those records. Accordingly, we deny the petition in part and grant it in part.

The case is Agwara v. Nevada State Bar and Southern Nevada Disciplinary Board

In April 2014, petitioner Liborious I. Agwara, Esq., testified at his personal bankruptcy proceedings that he had not implemented a reliable or identifiable system of accounting for his client trust account. Counsel for petitioner's bankruptcy proceedings and the presiding bankruptcy judge advised respondent State Bar of Nevada of petitioner's potential ethical violations. As a result, the State Bar opened a grievance file to investigate petitioner's trust account management. Moreover, the bankruptcy court froze petitioner's Nevada State Bank trust account.

The State Bar then obtained petitioner's trust account records from Nevada State Bank, which indicated that he transacted client monies through a Wells Fargo Bank operating account while his Nevada State Bank trust account was frozen. The State Bar also obtained records from Wells Fargo Bank which revealed that petitioner commingled his client, personal, and law practice funds through his operating account.

Approximately one month after the bankruptcy court lifted the freeze on petitioner's Nevada State Bank trust account, petitioner opened a Wells Fargo Bank trust account. Wells Fargo Bank records established that petitioner routinely failed to fully distribute client funds deposited into this trust account. In response to the bank records obtained from Nevada State Bank and Wells Fargo Bank, coupled with petitioner's testimony from his bankruptcy proceedings, the State Bar served petitioner with two subpoenas duces tecum.

The court holds that trust records are required and no 5th Amendment privilege exists; but it is unclear whether the subpoena for tax records is justified

it is unclear whether the circumstances warrant production of tax records, and it is additionally unclear whether such a broad request is justified.' Accordingly, we cannot determine whether production of the tax records is clearly appropriate or if the tax records are reasonably relevant and material to the issue at hand See id. at 520, 874 P.2d at 765-66. Further, we cannot determine whether there is a compelling need for the tax records or if respondents are merely asking for the tax records. See id. at 520, 874 P.2d at 766. Therefore, we direct the Southern Nevada Disciplinary Board to hold a hearing to determine how the tax records are relevant and material to the State Bar's allegations that petitioner mismanaged his client trust account and to assess whether there is a compelling need for the records. Based on the foregoing, we deny petitioner's petition for writ relief with regard to the requested client accounting records; however, we grant his petition for writ relief with regard to the requested tax records and direct the clerk of this court to issue a writ of prohibition directing the Southern Nevada Disciplinary Board to vacate its order to the extent it required petitioner to comply with the first subpoena that sought disclosure of tax records and to hold a hearing, consistent with this opinion.

(Mike Frisch)

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Domestic Violence Bar Charges In Illinois

The Illinois Administrator has filed a complaint alleging misconduct involving domestic violence

 On the evening of June 25, 2016, Respondent and his spouse were discussing various household chores, including his spouse's request that Respondent change light bulbs at their home in northwest suburban Inverness. At 9:30 in the evening, Respondent began to change light bulbs that had burnt out in the kitchen, but did not complete the task that evening.

On the evening of June 26, 2016, Respondent sat down in a chair after dinner to watch television. Respondent and his spouse continued their discussion about Respondent completing the job of changing the light bulbs that he had begun the evening before. The discussion continued about other topics as Respondent was on a stepladder finishing changing the burned-out light bulbs in the kitchen.

During the discussion, Respondent came down from the stepladder, pushed his spouse and put his hand on her neck. Respondent removed his hand from his spouse's neck when she indicated to him that she could not breathe. His spouse then ran to another room crying. Respondent's hand left visible red marks on his spouse's neck.

 That same night, Respondent's spouse contacted the Palatine Police Department to file a police report against Respondent for his actions...

Respondent pled guilty to Battery, a Class A misdemeanor. On that date, Judge Samuel J. Betar entered an order sentencing Respondent to twelve months of court supervision, requiring him to complete a drug and alcohol evaluation and adhere to any corresponding treatment recommendations, and to complete a domestic violence program.

The respondent is a high-profile class action plaintiff attorney whose firm is mentioned prominently in this 2016 Reuters story. (Mike Frisch)

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand And Helpful Advice On Fee Agreements

From the web page of the Pennsylvania Disciplinary Board

A Philadelphia attorney received a public reprimand from the Disciplinary Board for failing to follow her own fee agreement when distributing proceeds to her client. The Disciplinary Board found that Venus Foster executed a fee agreement with her client that provided for reimbursement of her expenses plus a contingent fee of 33.3% of the amount recovered. The fee agreement failed to specify whether the contingent fee would be calculated on the gross recovery or the net recovery after expenses. Upon conclusion of the case, she issued to the client a settlement statement asserting a contingent fee of 40% of the gross recovery, and billed the client for an overpayment based on sums advanced.

The Disciplinary Board found that the fee agreement failed to comply with Rule 1.5(c) of the Rules of Professional Conduct, based on the failure to clarify whether the contingent fee was calculated on gross or net proceeds. In addition, the Board concluded that Foster charged an excessive fee in violation of Rule 1.5(a), and failed to explain the nature of the fee agreement to the extent necessary to allow the client to make an informed decision, in violation of Rule 1.4(b). The Board also found other violations relating to the advancement of expenses and the way Foster handled the funds.

The case provides a valuable reminder to lawyers on several points:

  • The lawyer must draft the fee agreement with care, to assure that it provides guidance for both lawyer and client as to how reasonably foreseeable situations, such as the incurring of expenses, will be handled in the calculation of the fee;
  • The lawyer should not simply put the fee agreement in front of the client, but must explain the fee agreement to the client in understandable terms, to be sure the client will not be surprised by the way the fee is calculated at the conclusion of the case; and
  • Finally, the lawyer needs to review the fee agreement at the time when calculation of the fee takes place, to assure that the distribution of funds occurs consistent with what the fee agreement provides, and not what the lawyer recalls

(Mike Frisch)

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

The Dangers Of Delegation

A six-month suspension without automatic reinstatement has been imposed by the Indiana Supreme Court in a failure to supervise case.

Since 2008, Respondent’s practice has been dedicated almost exclusively to consumer debt resolution. During that time, Respondent has been affiliated with Lexxiom, Inc., a Nevada corporation with headquarters in California. Functions performed by Lexxiom for Respondent have included marketing, client intake, bookkeeping, administration of banking transactions, and communications with clients and debt collectors.

Nonlawyer personnel at Lexxiom would interview potential clients and then forward the information to Respondent, who could accept or reject the client. Under Respondent’s standard engagement contract with clients, Respondent would provide non-litigation legal services and litigation consultation for an initial flat fee (usually 8-10% of the amount of debt the client was seeking to resolve) plus monthly maintenance and settlement accumulation fees. Clients also had the option to engage Respondent separately to provide litigation services. After the client and Respondent executed an engagement contract, Lexxiom would notify creditors of Respondent’s representation and would undertake communication to negotiate settlements with the creditors.

For those clients not domiciled in Indiana who had a legal claim or defense, Respondent employed attorneys in other states to provide as-needed, state-specific legal counsel to Respondent’s clients. Respondent paid those attorneys, who were not associated with Respondent’s firm, a monthly retainer.

In connection with his relationship with Lexxiom, Respondent opened a trust account in California. Respondent failed to certify this trust account with the Clerk of the Indiana Supreme Court. Respondent was not a signatory on the account; rather, the only signatories were two nonlawyer corporate executives of Lexxiom. Clients authorized Lexxiom to withdraw agreed attorney fees from their funds held in trust and also to withdraw settlement accumulation fees once sufficient savings had accumulated to negotiate debts. Because of the large number of clients with funds in the trust account and the high volume of daily transactions, withdrawals from and deposits into the trust account were made by Lexxiom on a "batch" basis whereby a single transaction into and out of the trust account would involve multiple clients.

 As a result of errors by Lexxiom personnel, Respondent’s trust account was overdrawn on at least three occasions in December 2015. Due to the batching system used by Lexxiom and his own lack of oversight, Respondent did not immediately realize that his trust account had gone out of balance. After Respondent was alerted to the problem, he engaged an independent accounting firm to reconcile the balance and replenished the funds that mistakenly had been withdrawn from the trust account by Lexxiom.

Respondent did not adequately supervise the client intake, debt settlement, or trust account administration services performed by nonlawyer personnel at Lexxiom.

Warning

While the particular facts and rule violations in each case differ slightly, ultimately these cases all derive from the same essential problem; namely, the respondent lending his or her imprimatur as an attorney to legal functions performed in large part by a corporation’s nonlawyer personnel, without the requisite degrees of direct involvement and oversight mandated by our rules governing attorney conduct.

In Fratini, Joyce, and Dilk, we suspended the respondent attorneys for six months without automatic reinstatement. We agree with the Commission and Respondent that the same sanction is warranted in this case, and we therefore approve the parties’ proposed discipline.

(Mike Frisch)

 

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Failure Of Diligence and To Supervise Partner-Thief

The District of Columbia Court of Appeals adopted the proposed sanctions of its Board on Professional Responsibility that a thieving partner of a law firm be disbarred and that the more senior partner who had failed to supervise him be suspended for six months.

Senior Judge Reid authored the opinion, joined by Associate Judges Glickman and Fisher.

This attorney disciplinary case involves the main partner in a small law firm, respondent Deborah Luxenberg, and an attorney, respondent Dorrance Dickens, who started at the firm as a law clerk but became an associate and eventually a partner. Disciplinary Counsel charged Ms. Luxenberg with several violations of the District of Columbia Rules of Professional Conduct after Mr. Dickens allegedly stole at least $1,434,298.50 from three estates, including that of Ms. Luxenberg‘s client, Michelle Seltzer. Following his theft, Mr. Dickens fled to an island outside of the United States.

The Board on Professional Responsibility ("the Board") has recommended that Mr. Dickens be disbarred from the practice of law due to his violation of multiple rules of professional conduct, including Rule 1.15 (a) and (c), commingling and misappropriation, and Rule 8.4 (c), conduct involving dishonesty, fraud, deceit, or misrepresentation. The Board also has recommended that Ms. Luxenberg be suspended from the practice of law for six months due to her violation of Rules 1.3 (a), 5.1 (a), and 5.1 (c)(2), relating to the responsibility of partners in law firms to ensure competency and ethical behavior by attorneys in the firm.

The respondents

The findings of fact contained in the voluminous Report and Recommendation of the Board‘s Hearing Committee Number 12, and supporting record evidentiary documents, reveal the following factual context. Ms. Luxenberg commenced her practice of law as a member of the District of Columbia Bar in 1975. Eventually she was joined in practice by her husband, Stephen Johnson. While Mr. Dickens was completing his legal studies, he became a law clerk at the firm; he was hired in October 1995 because of his computer skills. His status changed to that of an associate in the firm in October 1996 when he became a member of the District of Columbia Bar.

In 1998, the firm incorporated in Maryland as Luxenberg and Johnson, and in 2003, when Mr. Dickens became a partner, the firm changed its name to Luxenberg, Johnson and Dickens. The firm had no partnership agreement but Ms. Luxenberg always retained a 52% interest in the firm. Ms. Luxenberg‘s practice has been devoted to family matters such as divorce and custody. Although she has never been the managing partner of the firm, she decided which clients the firm would represent and who would handle the client matters. Mr. Johnson also had a family law practice, and he took on cases in other areas of the law.

The victim was a longstanding client who Dickens stole from as her attorney

The record reveals Ms. Luxenberg‘s failure to recognize, at least by July 2009 that her longstanding trust in Mr. Dickens was not warranted, especially in the face of Ms. Seltzer‘s declining health and anxiousness to complete work on the documents reflecting her wishes to protect and provide for her adult children.

Although Ms. Luxenberg had become a seasoned lawyer with an admirable track record of service to her clients and the legal profession, her actions and omissions manifested a consistent failure to carry out her obligation of diligence to Ms. Seltzer. Ms. Luxenberg ignored clear warning signs that the trust and confidence Ms. Seltzer had placed in her and Mr. Dickens was no longer justified. The warning signs included (a) Mr. Dickens‘ long delay in addressing Ms. Seltzer‘s 2009 request for additional modifications of her trust and estate documents; (b) Mr. Dickens‘ frequent travels abroad while work on Ms. Seltzer‘s matter was pending, and his notice to the Luxenberg firm that he would be moving to Italy; (c) Mr. Dickens‘ failure to honor Ms. Luxenberg‘s September 2009 request that he submit copies of the Seltzer trusts and estate documents to the firm‘s central files; (d) Mr. Dickens‘ failure to notify Ms. Luxenberg about Ms. Seltzer‘s November 2009 visit to the Luxenberg firm‘s Maryland office to sign the Seltzer Family Trust agreement; (e) the delay in Mr. Dickens‘ transmittal of the redraft of the Seltzer will to the client; (f) Mr. Dickens‘ failure to meet Ms. Seltzer at the bank on December 23, 2009, as planned and Ms. Luxenberg‘s confusion as to the reason for his failure; and (g) Mr. Dickens‘ lack of notice to Ms. Luxenberg, a co-trustee of the 1990 amended trust, that he would seek Ms. Seltzer‘s signature, on February 23, 2010, on a letter of instruction regarding the transfer of assets from the 1990 amended trust to the Seltzer Family Trust created by Mr. Dickens.

The court plows ground on the duty to supervise

Here, as of 2007, not only was Mr. Dickens in a new office in a jurisdiction where he was not licensed to practice law, Virginia, but he also decreased his attendance at meetings in the firm‘s Maryland office, a jurisdiction in which he was also not licensed to practice law. He was no longer in the same office with his mentors and partners. Particularly when warning signs appeared that things definitely were not in order with respect to Mr. Dickens‘ work on the Seltzer trusts and estates matter, as a partner with managerial authority over the Seltzer matter, Ms. Luxenberg should have instituted periodic reviews and intervened to make certain that Mr. Dickens was doing the Seltzer work in a timely manner and was conforming to the Rules of Professional Conduct in his handling of the Seltzer trust assets...

We emphasize that there is no record evidence that Ms. Luxenberg participated in Mr. Dickens‘ acts of misconduct or had actual knowledge of Mr. Dickens‘ misappropriation/theft of the Seltzer assets, before his misconduct was discovered—after the fact—by Ms. Shaw and the attorneys for Mr. Seltzer and Ms. Falk. However, Ms. Luxenberg was the main, majority partner in a very small firm with, as of 2007, a central office in Maryland and satellite offices in Virginia and the District of Columbia. The Hearing Committee found that Ms. Luxenberg brought most of the business to the firm, and Ms. Seltzer not only was Ms. Luxenberg‘s client but Ms. Luxenberg also was the co-trustee of Ms. Seltzer‘s 1990 trust, as amended in 2004. While Ms. Luxenberg‘s contacts with Mr. Dickens were frequent when the firm‘s main office was in the District of Columbia and Mr. Dickens worked out of that office, the contacts were increasingly less frequent after Ms. Luxenberg and Mr. Johnson moved their offices to Maryland and Mr. Dickens chose to work out of the Virginia office. Under these circumstances – and at the first signs that Mr. Dickens was not adhering to firm policies (including attendance at firm meetings), failed to complete the work on the Seltzer matter in a reasonable time period, failed to send the Seltzer documents to the firm‘s central files, missed a meeting with Ms. Seltzer, failed to inform Ms. Luxenberg of the new 2009 trust document which implicated the 1990 amended trust of which Ms. Luxenberg was a co-trustee, and failed to inform Ms. Luxenberg of the date of the execution of the 2009 trust or the nature of the letter of instruction that Ms. Luxenberg was asked to witness – Ms. Luxenberg should
have become more vigilant in monitoring Mr. Dickens‘ adherence to the Rules of Professional Conduct. At these warning signs, and others discussed above in our consideration of Ms. Luxenberg‘s violation of Rule 1.3 (a), ―[w]e believe a lawyer of reasonable prudence and competence would have made the inquiry necessary to determine‖ whether Mr. Dickens was properly handling Ms. Seltzer‘s trusts and estates matter in a timely fashion.

A key part of the case - relied on by Disciplinary Counsel - involved the signing of the document that facilitated Dickens's thefts. It was witnessed by Luxenberg during a visit with the dying client in hospice care.  Luxenberg claimed that she did not read the document that she witnessed.

The BPR and Court accepted this explanation as a lack of diligence.

The events surrounding the letter of instruction substantiated Ms. Luxenberg‘s consistent failure to carry out her obligation of diligence to her client, Ms. Seltzer. Notwithstanding Ms. Luxenberg‘s friendship with Ms. Seltzer, Ms. Luxenberg had an attorney-client, and hence, a fiduciary relationship with Ms. Seltzer. That relationship not only covered the legal work that Ms. Seltzer had requested in 2009 which had been unduly delayed, but also Ms. Luxenberg‘s fiduciary role as co-trustee of Ms. Seltzer‘s 1990 trust. Yet, Ms. Luxenberg had little idea about the content of the document – the letter of instruction – that Ms. Seltzer asked her to witness on February 23. Nevertheless, Ms. Luxenberg understood that the document concerned "marshall[ing] assets for the trust for [Ms.] Seltzer that were left in the PNC Bank." Even with this limited understanding, Ms. Luxenberg as co-trustee of Ms. Seltzer‘s 1990 trust did not bother to read the one sentence instruction to the officers of the PNC Bank, "[p]lease cash-in or liquidate all of the Certificates of Deposit that I have in your bank, including, but not limited to all those listed on the attached two sheets and give the proceeds to Dorrance D. Dickens, who is my attorney." Because she did not read the one-sentence instruction, she of course did not realize that nothing was attached to the letter of instruction, and did not comprehend the significance of the missing schedule of Ms. Seltzer‘s assets. Ms. Luxenberg‘s failure to carry out her obligation of diligence to Ms. Seltzer under Rule 1.3 (a) left a clear path not only for Mr. Dickens to go to the PNC Bank on February 26 to transfer some of Ms. Seltzer‘s PNC assets to an account over which he had control, but also paved the way for Mr. Dickens to return to the bank in April and July 2010, with Ms. Luxenberg, to transfer assets from the amended 1990 trust to the 2009 trust, assets that Mr. Dickens began to transfer into his personal account.

The court followed the strong presumption in favor of the BPR recommendation.

Note that Maryland took a different tack as reported by the Attorney Grievance Commission in its 2013 report

LUXENBERG, Deborah Y. – Commission Reprimand for failing to make reasonable efforts to ensure the firm had in effect measures giving reasonable assurance that all lawyers in the firm conform to the Maryland Lawyers’ Rules of Professional Conduct.  Such failures permitted a substantial loss of trust/estate assets.

(Mike Frisch)

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (1)

New York Raises Sanction In Reciprocal Discipline Matter For Domestic Violence Conviction

A New Jersey public censure for a criminal conviction got ratcheted up to reciprocal discipline of a six-month suspension by the New York Appellate Division for the Second Judicial Department

In determining an appropriate sanction, the [New Jersey] DRB considered the “gravity of the attack” on the respondent’s victim as established by color photographs of the pictures of the bruising on the victim’s back, wrist, arm, and leg, which were submitted to the Judge prior to sentencing, without objection. Additionally, the DRB noted that the Judge at sentencing remarked that “he had ‘looked at the obviously horrendous situation as it relates to the beating, essentially, that . . . the victim took.’” In mitigation, the DRB gave great weight to the passage of five years between the incident, which occurred on January 26, 2011, and the motion for final discipline filed by the OAE on December 23, 2015, as well as the four years since the respondent’s plea of guilty on November 17, 2011, that he promptly self-reported his conviction to the New Jersey authorities, his lack of prior ethics or criminal history, his successful completion of anger management treatment, and that he had not engaged in any additional acts of domestic violence. Based upon the foregoing, by a vote of 4 to 3, the DRB recommended a public censure.

But he had failed to advise New York of the conviction

In considering this matter, we note that the offense of “simple assault” in New Jersey is essentially similar to the New York class A misdemeanor of assault in the third degree, under Penal Law § 120.00(2), for which this Court has previously imposed discipline. We also note that the respondent promptly notified the New Jersey authorities of his conviction, which was a factor considered in mitigation in the New Jersey proceeding. However, the respondent failed to notify this Court of his conviction in 2011, as required by Judiciary Law § 90(4)(c), which we find is an aggravating factor in determining the appropriate measure of discipline. Based upon the misconduct underlying the order of the Supreme Court of New Jersey dated March 29, 2017, we find that the imposition of reciprocal discipline is warranted.

Notwithstanding the respondent’s request to limit any public discipline imposed to a censure, we conclude that the nature of his criminal conduct warrants his suspension from the practice of law for a period of six months.

(Mike Frisch)

December 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Horrific Cautionary Tale

I came across a terrible story told in a decision  of the Montana Supreme Court affirming an order allowing a criminal defendant to withdraw his guilty plea.

The case involved highly-charged allegations of child sex abuse

David and Sunnshine Welton are both dentists and owned Montana Family Dentistry in Lewistown, Montana. They have two children: a girl, L.W. and a boy, M.W. Dana and Jason Terronez are nurses and worked at Central Montana Medical Center in Lewistown. They have four children: three girls and one boy. Dana and Terronez were patients at the Weltons’ dental clinic and the families became close friends—sharing meals, weekend gatherings, and holidays.

Sunnshine was sexually abused as a child, which made her apprehensive about letting her children participate in sleepovers with other families. She described herself as a “paranoid” mom who is hypersensitive about sexual abuse issues. As a precaution, Sunnshine educated her children about “good touch” and “bad touch” and initiated such conversations with them every six months. However, she trusted Terronez and Dana, and had permitted her daughter, five-year-old L.W., to sleep over at the Terronez household prior to the incident in question. On March 7, 2015, she again allowed L.W. to sleep over at the Terronez residence. L.W. watched a movie with Terronez and his three girls, including Terronez’ oldest daughter, nine-year-old A.T. Dana was in and out of the living room while the others watched the movie, during which Terronez was seated next to L.W. After the movie, Dana asked L.W. if she wanted to go home, and L.W. said she wanted to stay at the Terronez household.

The alleged abuse took place that night.

The case was a great burden for the young defense attorney

Terronez was initially represented by attorney Craig Buehler, but on April 6, a notice of substitution of counsel was filed indicating that Jeffry Foster had assumed representation of Terronez. Foster filed a motion for change of venue, arguing a reasonable apprehension existed that Terronez could not receive a fair trial in Fergus County because of: (1) the small size of the Fergus County jury pool; (2) the heinous nature of the crime; (3) both families’ relationships and standing in the community; (4) statements about the case made by the Weltons to others in person and on social media; and (5) concerns expressed by court staff and law enforcement about Terronez’ safety. The District Court denied the motion, but stated the matter would be reconsidered if concerns arose during voir dire.

Foster suffered a verbal "tongue lashing" from Sunnshine and things got worse

On Friday, September 25, at another in-chambers conference with the same parties, Officer Jenness reported to the court that, sometime during the previous evening, a large chunk of concrete had been thrown through the windshield of Foster’s vehicle while it was parked outside the Terronez household.

And worse

 On Monday, September 28, the court held a conference in-chambers with Terronez, Foster, Adams, County Attorney Thomas Meissner (substituting for Boettger), Undersheriff Vaughn, Officer Jenness, and Sheriff Troy Eades. The purpose of the conference was for law enforcement to provide an update on security measures and concerns. Eades commented on the concrete block thrown through Foster’s windshield, indicating in his years securing “several trials in this county,” he had not seen anything like this and noted that tensions were “relatively high.” He suggested Terronez and Foster wear bulletproof vests, and advised the parties they would be required to submit to a metal-detector wand inspection prior to entering the courtroom. Sheriff Eades also updated the court on security measures at the Terronez household. The court cautioned everyone to be “vigilant,” and to pay attention to “the people that are coming and going.” That evening, although Foster had checked into the Yogo Hotel and rented a new vehicle to avoid detection from the Weltons, the Weltons encountered Foster in the hotel’s restaurant.

The defendant then took the plea in this atmosphere and

Prior to the change of plea hearing, Deputies and Lewistown Police officers cleared the courthouse and were posted in plainclothes and in uniform throughout the building. During the hearing, the court informed Terronez of the rights he was giving up and Terronez confirmed verbally and in writing that he was giving a knowing, voluntary, and intelligent plea. Terronez apologized to L.W. in accordance with the plea agreement and the proceeding concluded. Foster drove back to the Yogo Hotel with a police escort. Tragically, in the early hours of the next morning, Foster committed suicide in his hotel room.

The defendant with new counsel sought to withdraw the plea and the motion was granted

Although the District Court primarily based its decision on ineffective assistance of counsel, it also based its decision on a “pervasive air of fear” surrounding the trial that had impacted the proceedings and Foster’s performance, highlighting the incident of the concrete block thrown though Foster’s windshield, as well as several alleged incidents of the Weltons’ threats, stalking, and confrontations. The court observed that these events “objectively appeared to have a serious deleterious effect on [Foster],” who appeared “disheveled” and “overly anxious” (sweating profusely, running his fingers through his hair stammering, pacing, repeating himself, etc.). This behavior was, from the court’s perspective, “very uncharacteristic of counsel,” and led the court to have “serious doubts about his effectiveness at trial and up to and including the Defendant’s guilty plea.” Similarly, the court noted Foster was uncharacteristically deficient in cross-examination, and did not mitigate the harmful effects of witness testimony. The court also noted that Foster appeared indecisive on strategy decisions, and described his demeanor after the concrete block incident and before the plea agreement was reached:

[C]ounsel appeared visibly distraught and fearful for himself as well as the Defendant and the Defendant’s family. His behavior became somewhat erratic. For example, the defense had made it known early on that they would be presenting a full defense including evidence of the Defendant’s good character and would be calling numerous character witnesses in that regard. The defense also notified the Court and counsel that it would be calling the Defendant’s wife and children to testify regarding the alleged assault. Then, suddenly and rather unexpectedly and in the midst of trial, former counsel flatly told the Court and counsel that the defense was abandoning its good character defense and would not be calling the Terronez children to testify. A short while later, counsel returned from lunch and promptly announced once again that the defense would be presenting a full defense including evidence of the Defendant’s good character. Mere moments later, the parties notified the Court that they had reached a plea agreement.

Based on ineffective assistance and the threatening atmosphere surrounding the proceedings, the court concluded that “good cause” was established for allowing Terronez to withdraw his plea. The State appeals.

The court did not find ineffective assistance but

...we affirm the District Court’s finding that good cause existed for withdrawal of Terronez’ plea on alternative grounds discussed in the District Court’s order, based on the extreme events that occurred during the proceeding.

The District Court, referencing Sherwood’s affidavit, summarized the facts supporting its determination that there existed a “pervasive air of fear” in the proceeding, including, but not limited to: (1) David’s confrontation with Judge Oldenburg; (2) David’s threat of suicide, and discharge of a weapon; (3) David tailgating Terronez; (4) Dana asking for a protective order against the Weltons; (5) Foster stating he feared for his safety to a mental health counselor; (6) Foster’s attempt to avoid the Weltons by checking into a hotel and switching vehicles, only to encounter the Weltons at that hotel; (7) the Weltons’ attempt to video record Terronez’ arrest; and (8) Officers being posted inside and outside the courtroom and conducting meetings on safety measures. These occurrences were in addition to the events reported during the trial, including the concrete block thrown through Foster’s windshield. The District Court observed the stressful impact of these events upon Foster.

Result

The District Court made the factual determination that Foster was personally impacted and his performance was affected by the threatening behaviors from the outset of this case. These findings were not clearly erroneous. Through Foster, Terronez was impacted and his plea was at least partially induced by these events. “If any doubt exists on the basis of the evidence presented regarding whether a guilty plea was voluntarily and intelligently made, the doubt must be resolved in favor of the defendant.”

Great Falls Tribune had the story of  the attorney's death. (Mike Frisch)

December 7, 2017 | Permalink | Comments (0)

Wednesday, December 6, 2017

Suspension For Accusations Against Judge And Ex-Wife

The Louisiana Supreme Court sanctioned an attorney by consent

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent filed two judicial complaints against a judge, as well as a petition for damages against the judge and respondent’s former wife, and that none of these filings had a factual basis. Following the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline in which respondent admitted that his conduct violated Rules 3.1, 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct.

The Times-Picayune had the story

New Orleans Municipal Judge Paul Sens was sleeping with the wife of a man who was facing domestic battery charges in Sens' court, a civil lawsuit filed Friday claims.

Attorney Phil C. Nugent filed a lawsuit seeking damages from his ex-wife, Rachel Bertrand Nugent and Sens, claiming that Rachel Nugent had been carrying on an affair with the married judge for months when the Nugents appeared in Sens's courtroom in a domestic battery case in April 2014.

The lawsuit says the case landed in Sens' court because another judge assigned to hear the case recused himself. Sens' clerk granted a continuance in the case, according to the lawsuit. Nugent claims his civil rights were violated because the judge was in an intimate relationship with Rachel Nugent.

Phil Nugent pleaded guilty to domestic battery charges in May 2014 in Judge Sean Early's court.

Rachel Nugent said Friday that she filed to divorce Philip Nugent in 2012, and didn't meet Sens until July 2014-- after both she and Sens had divorced their spouses-- and that Sens never presided over the the domestic battery case.

In a press release announcing the lawsuit, Phil Nugent dates the start of the affair as October 2013, but says the relationship was "first discovered" when Rachel Nugent received a bottle of perfume and an "elegant birthday card" in April 2014.

 "I've never been in Judge Sens' court on any matter, ever, in my life," she said. "I hope that (Nugent) is prepared to answer for all that he's saying, because I'm not going to tolerate any more foolishness."

The lawsuit draws Sens' name into another messy divorce story. The judge's estranged wife, Ann Sens, faces battery charges for allegedly hitting and biting her husband last May, the day after he filed to divorce her. Ann Sens has subsequently claimed that Sens physically and verbally abused her as well.

Nugent also claims Sens later used his political clout to talk New Orleans Police officers out of arresting Rachel Nugent in December 2014, when Phil Nugent called police to report his ex-wife had left the couple's three children unattended.

Rachel Nugent said her husband called police to report she had left the children alone often in the months after the couple separated, but she notes her estranged husband was living of the basement of their home, and that her 17-year-old daughter was watching her younger siblings.

It's not clear from the filing whether at the time of the hearing Nugent was aware Rachel Nugent was involved with Sens. The lawsuit states the telltale card was delivered to Rachel Nugent in April 2014.

 Rachel Nugent's birthday is April 16. A photograph of a card attached to the lawsuit is belated birthday card, signed "Inconsiderate Tard." Nugent's lawsuit said handwriting on the card has been identified as Sens' by "reliable sources."

In deposition testimony in his own divorce case, Sens said he had not had sex with anyone other than his wife prior to April 20, 2014, the lawsuit states. The Nugents' hearing was on April 23.

Sens did not immediately return calls from NOLA.com | The Times-Picayune.

The New Orleans Advocate had the story of domestic violence charges against the judge's ex-wife.

Louisiana Attorney General Jeff Landry’s office last month dropped all charges against the ex-wife of Orleans Parish Municipal Court Judge Paul Sens, who was accused of biting him on his arm during a fight the day after she filed for divorce in 2014.

Prosecutors had charged Ann Sens, 57, with domestic abuse battery and disturbing the peace after the May 2, 2014, scuffle inside the couple’s Lakeview home.

But after two years of legal twists and turns, including the recusal of Orleans Parish District Attorney Leon Cannizzaro, the case ended with a June 30 letter from the Attorney General’s Office dismissing the charges.

More from the Advocate here. Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Email To Commanding General Draws Reprimand

An attorney with the last name of Bridegroom has agreed to a reprimand for an email sent during the course of his pro bono representation of a relative of his significant other.

The Arizona Presiding Disciplinary Judge approved the result.

The parties agree Standard 6.23, Abuse of the Legal System applies to Mr. Bridegrooms’ violation of ER 4.4 and provides that reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding. 

The case involved a bitter interstate custody dispute in which the attorney represented the husband. The wife had made serious accusations against the client. 

The wife was in the military. The misconduct involved an email sent to her commanding general and copied to her counsel.

As stipulated, Mr. Bridegroom negligently violated his duty to the legal system causing actual injury to the client and potential interference with a legal proceeding. His conduct in emailing the opposing party’s commanding officer interfered with the legal system.

The email made "serious allegations about Mother's integrity and honesty."

The bar did not contest that the email was sent in a good faith belief that the substantive contentions were accurate. (Mike Frisch)

 

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Denied For Debt Payment Issues

A series of Whereas clauses explain why the Maryland Court of Appeals has denied reinstatement to an attorney who was indefinitely suspended in 2014.

WHEREAS, Petitioner has existing financial obligations, i.e., debt in form of amounts owed to the Internal Revenue Service (IRS), the State of Maryland, and the United States Department of Education totaling in excess of $1 million;

WHEREAS, Petitioner has entered into payment plans with the IRS and the Comptroller of Maryland requiring monthly installment payments;

WHEREAS, Petitioner has an account with the United States Department of Education which is in default and has been placed with Coast Professional, Inc., a debt collection agency;

WHEREAS, as evidenced at oral argument, Petitioner has made only two payments of $2,500 to the IRS on February 10, 2017 and May 16, 2017, respectively, and one payment of $250 on May 18, 2017 to the United States Department of Education;

WHEREAS, Petitioner has advised the Court of Appeals of Maryland without further explanation that, with respect to employment, during the period of suspension, he considered various entrepreneurial activities;

WHEREAS, since the suspension on August 17, 2014, thirty (30) days after issuance of the Court of Appeals of Maryland's opinion, to the present, Petitioner has not sought and maintained consistent employment;

WHEREAS, the Court determines that Petitioner has not demonstrated the requisite character and competence to practice law for reinstatement...

Denied. (Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Concession Of Premeditation Was Ineffective Assistance

The Minnesota Supreme Court has reversed a first-degree murder conviction on a finding of ineffective assistance of counsel

Appellant Thomas Michael Luby was convicted of first-degree premeditated murder, Minn. Stat. § 609.185(a)(l) (2016), and second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2016), in connection with the stabbing death of his girlfriend, K.A. Luby appeals, arguing that he is entitled to a new trial because his defense counsel provided ineffective assistance by conceding the only disputed elements of the charged offenses—premeditation and intent—without his consent. We reverse both of Luby’s convictions and remand this case to the district court for a new trial.

 The case

At trial, Luby admitted to stabbing K.A. to death with a knife while intoxicated. According to Luby, he and K.A. both suffered from alcoholism. On August 6, 2015, they had been drinking for 8 days straight. That evening, they drank nearly all of a 1.75-liter bottle of vodka without eating. Luby claimed that he consumed the majority of the bottle— approximately 40 ounces—but that K.A. was more intoxicated than he was because “she couldn’t drink very much without losing control” due to gastric bypass surgery. Luby took the vodka away from K.A., but she kept begging him for more alcohol.

Luby claimed that he went in and out of consciousness during the remainder of the evening, and that he had an incomplete memory of what happened. At some point, he awoke to K.A. holding a butcher knife to his throat. Luby took the knife from K.A. and cut her stomach. Later that night, Luby again awoke to K.A. holding the knife to his throat. He disarmed her and eventually stabbed her with the knife, which caused her death.

After some time, Luby called 911 and reported to police that he had killed K.A. Police found empty vodka bottles throughout the apartment and smelled alcohol on Luby. Officers did not test Luby’s blood-alcohol-content level, but determined that K.A.’s blood had an alcohol-content level of .45.

Luby’s strategy at trial was to concede that he had caused K.A.’s death, but to argue that his intoxication prevented him from forming the intent to kill her. In his opening statement, defense counsel told the jury that “we really don’t have much dispute as to what the evidence will show.” But he asked the jury to “consider the most serious of the elements” of the charged offenses, and to specifically focus on the word “intent,” which he said “is what really will be in dispute here.” Luby testified at trial that he “never had an intent to kill” K.A.

Prior to closing arguments, the district court instructed the jury on premeditation, stating that “some amount of time must pass between the formation of the intent and the carrying out of the act,” and that “an unconsidered or rash impulse, even though it includes an intent to kill, is not premeditated.”

Defense counsel in closing argument said

First degree murder requires premeditation and the intent to kill. The instruction will be given to you in writing so you can go over it. We’re not really disputing the premeditation part. I would submit to you that intent  element is the one that’s in question here. For the second degree, same as first degree, but without premeditation.

The prosecutor underscored the concession on rebuttal.

The court

Here, Luby argues that defense counsel expressly conceded his guilt when, during his closing argument, he told the jury that he was “not really disputing the premeditation part” of first-degree murder, but that the “intent element [was] the one” in question.  Luby argues that this statement expressly conceded premeditation, which necessarily conceded intent. We agree...

Because Luby’s counsel conceded guilt, Luby is entitled to a new trial unless he consented to the concession. Id. When, as here, there is no evidence of express consent, we “look at the entire record to determine if the defendant acquiesced in his counsel’s strategy.” Id. Acquiescence may be implied in certain circumstances, such as (1) when defense counsel uses the concession strategy throughout trial without objection from the defendant, or (2) when the concession was an “understandable” strategy and the defendant was present, understood a concession was being made, but failed to object. State v. Jorgensen, 660 N.W.2d 127, 132–33 (Minn. 2003). “When the record is unclear as to whether the defendant acquiesced in his counsel’s concession,” we have remanded the issue for an evidentiary hearing. Prtine, 784 N.W.2d at 318.

Luby argues that the record clearly establishes that he did not acquiesce in defense counsel’s concession because counsel did not concede Luby’s guilt until closing arguments, and conceding guilt was not an understandable strategy in this case. The State agrees that the record is devoid of evidence of Luby’s consent or acquiescence, but requests that we remand this issue for an evidentiary hearing.

We agree with Luby that the record clearly establishes that he did not acquiesce in defense counsel’s concession. First, defense counsel did not concede the element of premeditation until closing arguments, as Luby observes, after defense counsel had been consistently silent on this element, making it difficult to conclude that Luby somehow acquiesced in a strategy that manifested itself only at the end of trial. See Torres, 688 N.W.2d at 573 (stating that “silence on a particular element of a crime is not the same as a concession”). Second, because intent is a prerequisite to premeditation, Moore, 481 N.W.2d at 360, counsel’s concession was inconsistent with the trial strategy of arguing that Luby was unable to form the requisite intent to kill due to voluntary intoxication. Indeed, counsel’s concession was not an understandable trial strategy because it admitted Luby’s guilt to the only disputed elements of both of the charged offenses, the greater of which carried a mandatory life sentence. Accordingly, we conclude that Luby did not acquiesce in his counsel’s concession.

Justice Chutish dissented

Because the record shows that defense counsel did not concede every element of the charged offenses, leaving nothing left in dispute, the majority’s reliance on the per se rule of ineffective assistance of counsel is misplaced.  Accordingly, I respectfully dissent.

...because defense counsel’s isolated comment about premeditation during his 28-page closing argument did not concede every element of the charged offenses, leaving nothing left in dispute, and because Luby has failed to establish a reasonable probability that, but for defense counsel’s single statement about premeditation, the result of the proceeding would have been different, I would affirm Luby’s convictions for first- and second-degree murder.

Chief Justice Gildea joined the dissent. (Mike Frisch)

December 6, 2017 | Permalink | Comments (0)

Three Suspended In Ohio

Three bar discipline decisiond issued by the Ohio Supreme Court are summarized by Dan Trevas

Three Ohio attorneys received partially stayed suspensions from the Ohio Supreme Court today that suspend their law practice for six months.

In three separate per curiam opinions, the Supreme Court suspended:

  • Thomas P. Maney Jr. of Columbus for one year with six months stayed.
  • Andrew R. Schuman of Bowling Green for one year with six months stayed.
  • Samuel R. Smith II of Cleveland for 18 months with 12 months stayed.

Maney Falsified Documents
In October 2013, Patrick Baker hired Maney to represent him in a collections proceeding. Maney answered the complaint and attended a pretrial hearing. However, he did not respond to the debt collector’s request for discovery or a subsequent motion for summary judgment. He also did not forward the documents to Baker. Having received no response to the motion, the trial court granted summary judgment for the creditor and issued a $3,062 judgment against Baker.

The trial court, not Maney, informed Baker of the decision. Baker was able to obtain a stay of the judgment and later filed for bankruptcy. Baker filed a grievance against Maney with the Office of Disciplinary Counsel.

Maney responded to a letter from the disciplinary counsel stating that he sent letters to Baker informing him of the status of the case, and claimed he had complied with the discovery requests. He also said he asked Baker on numerous occasions to provide information to respond to the discovery requests, and he provided the disciplinary counsel with five letters he claimed to have sent Baker.

In July 2015, the disciplinary counsel confronted Maney about his claims, noting that Baker was adamant his case had been neglected and the letters were addressed to a residence where Baker did not reside at during the time of his representation. At that point, Maney stated: “You got me.” He admitted he falsified the documents and lied during the investigation.

In April 2016, Maney testified that he realized he bungled Baker’s case by putting Baker’s file on a shelf and forgetting about it.

Parties Agree to Multiple Violations
The parties stipulated to the Board of Professional Conduct that Maney violated several rules governing the conduct of Ohio attorneys, including engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; failing to act with reasonable diligence on a client matter; failing to keep a client reasonably informed about the status of a case; and making a false statement in connection with a disciplinary matter. The board recommended to the Supreme Court that Maney be suspended for one year with six months stayed with conditions.

When imposing a sanction, the Court considers several factors including aggravating circumstances that could enhance a penalty and mitigating factors that could lead to a less-severe punishment.

The board found Maney acted with a dishonest or selfish motive and that he submitted false statements and evidence during the disciplinary process. It also found that Maney did not have any prior discipline, cooperated with the disciplinary process once a formal complaint was filed, and submitted a number of letters demonstrating his good character and competence as a lawyer.

Maney testified he had been drinking “way too much” and that his drinking contributed to the lies he told the disciplinary counsel. Two days after his disciplinary deposition in April 2016, which took place nearly nine months after he confessed to fabricating the letters, he sought help from the Ohio Lawyers Assistance Program (OLAP). He entered into a two-year OLAP contract.

Maney objected to the board’s proposed sanction and argued that the panel had improperly excluded a report from a treatment professional that may have qualified his substance-use disorder as a mitigating factor that would warrant a fully stayed suspension.  Therefore, he argued that the case should be remanded to the board for consideration of the excluded evidence.

The Court rejected his argument, finding that the panel had properly excluded the challenged evidence.

“Having reviewed the record evidence, we are not persuaded that the outcome of this case would be any different if Maney successfully demonstrated that his substance-use disorder qualified as an independent mitigating factor. In fact, we have previously imposed a one-year suspension with six months stayed on conditions on an attorney who filed several fraudulent documents in court—despite proof of that attorney’s recently diagnosed mitigating mental disorder,” the Court stated.

The Court imposed the suspension with six months stayed with the conditions that he remain in compliance with his OLAP contract, commit no further misconduct, and pay for the cost of the proceedings.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion.

Justice William M. O’Neill dissented without an opinion.

2016-1494Disciplinary Counsel v. ManeySlip Opinion No. 2017-Ohio-8799.

Video camera icon View oral argument video of this case.

Schuman Collects Excessive Fee

In 2010, the Hancock County Juvenile Court appointed Schuman as a guardian ad litem (GAL) for a minor in a custody case. When he completed his service, he submitted a bill for $3,416 based on a rate of $80 per hour. The court ordered each parent to pay half the bill. The child’s father paid $150 of the deposit the court required, and the mother paid $350.

In 2013, the father had only paid $200 toward his remaining half of the fee, and the mother had paid nothing. Schuman filed an action in Findlay Municipal Court to collect his fee. In his complaint he sought “joint-and-several-liability” from the parents, meaning he could opt to seek the entire amount from just one of the parents. He also calculated his fee to be $6,405, which he reached by using a $150 rate for his GAL fee. His complaint did not mention the juvenile court had approved an $80-per-hour rate; that he already received $700 from the parents; and that the court ordered each to pay half.

The parents failed to respond to his complaint, and the court approved a default judgment in his favor. Part of the evidence he provided to support his case was an itemized bill that he had filed with the juvenile court demonstrating his GAL work, but he altered it in his municipal court submission by removing the line indicating the approved hourly rate was $80 and the total was $3,416.

Schuman initiated garnishment proceedings for a total of $7,273, which represented the judgment plus interest and costs. Because the mother was not employed, he garnished only the father’s wages and, by the end of 2014, he collected $7,217 from the father. The father lost his job, and Schuman attempted to garnish his bank account for the remaining amount, but there was not sufficient funds to garnish.

Lawyer Admits to Violations
The father filed a grievance against Schuman with the disciplinary counsel. During the disciplinary proceedings Schuman admitted that he used the judicial system to collect an illegal or clearly excessive fee. He also admitted that despite having multiple opportunities to notify the municipal court of the accurate juvenile court order, he continued to perpetrate a fraud on the court by claiming the father owed him additional money.

In June 2016, the disciplinary counsel charged him with misconduct, and the parties stipulated to the professional conduct board that Schuman charged an excessive fee, made a false statement to the a court, engaged in conduct that adversely reflects on a lawyer’s fitness to practice, and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The board recommended the one-year suspension with six months stayed. The board found Schuman acted with a selfish motive, committed multiple offenses, and harmed a vulnerable individual. The board also noted that Schuman had no prior disciplinary record; made full disclosure to the board; displayed a cooperative attitude during the disciplinary proceedings; and submitted evidence of his good character, skills as an attorney, and leadership in his community.

The board also found Schuman paid restitution to the father for the difference he charged above the approved rate as well as the interest and court costs.

Schuman objected to the recommended sanction, arguing that his suspension should be fully stayed because of the significant mitigating factors in the case, especially his character and reputation.

The Court rejected his argument, stating that when an attorney’s conduct involves dishonesty it usually warrants an actual suspension, and is “especially true when an attorney makes repeated and material false statements to a court.”

“Beyond Schuman’s lack of candor to the municipal court, he also abused the judicial system in order to bilk more money from a person than he was entitled to receive. Even considering his mitigating evidence, an actual suspension is appropriate for his ethical violations,” the opinion stated.

Justices O’Donnell, Kennedy, French, Fischer, and DeWine joined the opinion.

Chief Justice O’Connor and Justice O’Neill dissented, stating they would not stay any portion of the suspension.

2016-1834Disciplinary Counsel v. SchumanSlip Opinion No. 2017-Ohio-8800.

Video camera icon View oral argument video of this case.

Attorney Misses Criminal Case Appeal Deadline

In a unanimous opinion, the Court found Smith violated several attorney conduct rules based on his representation of Horace K. Vinson Jr.

Smith was hired by Vinson’s stepmother, Darlene Beesley, to file a petition for postconviction relief. After the petition was denied, Smith was contacted by Vinson’s mother, Terri Lamb, about appealing the decision. Lamb paid Smith $1,800 in January 2015 for the full amount of a flat fee Smith requested. He deposited the check in his personal bank account.

Smith did not file the appeal by the Feb. 2, 2015 deadline, and on Feb. 12, he asked the court if he could file a delayed appeal. He falsely told the court that he had been hired on Feb. 2. The court denied the motion and dismissed the appeal.

Smith told Lamb he would filed another postconviction relief petition. After many months of Smith not taking action on Vinson’s case, Vinson filed a grievance with the disciplinary counsel.

When the disciplinary counsel asked Smith about Vinson’s case, he provided a copy of a draft appellate briefthat he claimed he intended to file and a copy of a motion he had prepared for a new trial for Vinson. He also included an itemized billing statement, which indicated he researched and drafted the brief in the month before the Feb. 2 deadline, and that he drafted the motion for the new trial in October 2015.

Further inspection of the documents revealed they were created in May 2016, the day prior to Smith sending his written response to the disciplinary counsel. Smith then admitted he produced the documents to submit with his response.

The professional conduct board was presented a “consent-to-discipline” agreement between the parties, and Smith stipulated to most of the facts. He agreed that he violated several rules, including not acting with reasonable diligence in the representation of his client; knowingly making a false statement to a court; knowingly making a false statement in connection with a disciplinary matter; and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.

The parties stipulated that Smith acted with a dishonest or selfish motive, committed multiple offenses, submitted false evidence, made false statements, and engaged in deceptive practices during the disciplinary process. The board also found Smith had no prior disciplinary record, made a good faith effort to make restitution, displayed a cooperative attitude during the disciplinary proceedings, and provided evidence of good character and reputation.

The opinion noted that in a prior disciplinary case where an attorney neglected legal matters and fabricated materials during the disciplinary investigation, the Court had imposed an 18-month suspension with 12 months stayed.

The Court stayed the last 12 months of Smith’s suspension on the condition that he not commit further misconduct.

2017-0487Disciplinary Counsel v. SmithSlip Opinion No. 2017-Ohio-8821.

Ohio - nobody does it better when it comes to explaining and informing the public about bar discipline. (Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Uncharitable

The Oklahoma Supreme Court accepted the resignation of an attorney facing bar charges of three counts of conversion.

NewsOK reported

The former director of immigration and legal services of Catholic Charities of Oklahoma City has been accused of stealing money meant for clients' immigration fees.

Margarita I. Solis, 46, of Norman, was charged Wednesday with three felony counts of embezzlement.

Oklahoma County prosecutors allege Solis, while employed as an attorney by Catholic Charities, was in charge of assisting clients in obtaining permanent residency status and citizenship in the United States.

After receiving money orders from clients to pay immigration fees, Solis would make the orders payable to her and cash them, according to prosecutors.

She stole a total of $2,830 from clients in 2015 and 2016, prosecutors alleged.

In an interview about the allegations against Solis, Patrick Raglow, executive director of Catholic Charities of Oklahoma City, said he could not discuss Solis by name because of human resources obligations and rules. He said the employee was the subject of an internal investigation and no longer works at Catholic Charities, an affiliate of the Catholic Archdiocese of Oklahoma City.

“Like any other organization, we sometimes have persons in positions of trust and confidence who violate policies and who violate the trust and confidence of the agency. It happens, but our policies and procedures caught it relatively early. We flagged it,” Raglow said.

Raglow said clients pay federal immigration fees to Catholic Charities and that money is transferred to the federal government. In this instance, he said, those monetary payments were diverted.

Raglow said the agency's clients who were affected by the policy violations received prompt attention and were provided services. He also said the financial impact to the agency was minimal due to insurance.

“We reported it to the police, not out of any malice towards the individual, but out of respect for the donor dollars that we are privileged to receive,” Raglow said.

Solis could not be reached by phone Thursday. She hasn't been arrested, jailers said Thursday evening.

(Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Warrant Does Not Prevent Police Officer Liability

The United States Court of Appeals for the Fourth Circuit held that some claims against the estate of a police officer  who executed a warrant that required a photograph of the defendant's erect penis survive dismissal on the pleadings

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that 17-year-old Trey Sims used his cellular telephone to send sexually explicit photographs and video recordings of himself to his 15-year-old girlfriend. During the course of the investigation, Abbott obtained a search warrant authorizing photographs of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. The civil action before us is based on these alleged events.

Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate under Virginia Code § 64.2-454 (the Administrator). Sims asserted claims for damages under 42 U.S.C. § 1983, alleging that the search of his person violated his Fourth Amendment right of privacy or, alternatively, his right of substantive due process under the Fourteenth Amendment. Sims also brought a claim under 18 U.S.C. § 2255(a) alleging that, as a result of the search, he was the victim of manufactured child pornography. The district court determined that the Administrator was entitled to qualified immunity on the Section 1983 claims, and accordingly dismissed that portion of Sims’ action. The court also dismissed the remainder of Sims’ complaint.

Upon our review, we reverse the district court’s judgment with respect to the Section 1983 claim alleging a Fourth Amendment violation. Construing the facts in the light most favorable to Sims, a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment. We therefore remand Sims’ Section 1983 claim alleging a Fourth Amendment violation to the district court for further proceedings. We affirm the district court’s dismissal of Sims’ remaining claims, including his claim for damages under 18 U.S.C. § 2255(a) as an alleged victim of child pornography.

Circuit Judge King dissented

I write separately to dissent from the majority’s denial of Detective Abbott’s qualified immunity claim. With great respect for my good colleagues, their decision fails to recognize the controlling facts that undermine the § 1983 claim of plaintiff Sims. That is, Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order. In my view, Abbott’s actions were entirely consistent with applicable law and the Fourth Amendment. To explain my position more fully, this dissenting opinion contains three short segments. First, I emphasize the sanctity and importance of court orders. Second, I review the controlling facts and some guiding legal principles. Finally, I explain that Detective Abbott did not contravene any constitutional right and that he is entitled to qualified immunity. Put simply, I would affirm the district court.

The warrant authorized seizure of the following

Photographs of the genitals, hands, and other parts of the body of Trey Sims that will be used as comparisons in recovered forensic evidence from the victim and suspect’s electronic devices. This includes a photograph of the suspect’s erect penis.

Thus

Put simply, the search warrant at issue here was properly and legally issued, it was complied with, and Detective Abbott is entitled to qualified immunity.

The Washington Post reported on the death of the officer, who committed suicide when police came to his home to arrest him on sexual misconduct charges.

A Manassas City police detective, who was the lead investigator in a controversial teen “sexting” case last year, shot and killed himself outside his home Tuesday morning as police tried to arrest him for allegedly molesting two boys he met while coaching youth hockey in Prince William County.

David E. Abbott Jr., 39, was a member of the Northern Virginia-Washington D.C. Internet Crimes Against Children Task Force and had been an officer on the Manassas City force for 14 years. In his spare time he coached 13- and 14-year-old boys in travel hockey for the Potomac Patriots program at the Prince William Ice Center in Woodbridge, club officials said. When Prince William police learned Monday of the allegations of improper contact by Abbott over a period of years, they moved quickly.

Police said they learned that Abbott had sent inappropriate text messages and emails to a 13-year-old boy he met through the hockey program. By phone and social media, Abbott had been asking the boy for sex acts for more than two years, county police said.

Detectives then learned of a second potential victim, a boy who was 13 and was also part of the Patriots hockey club in 2008 when Abbott began sending him inappropriate messages, police said. Early Tuesday, Prince William police obtained a search warrant for Abbott’s townhouse on Senea Drive in Gainesville, where he lived with his mother. Police also obtained four felony arrest warrants — two counts of indecent liberties by a custodian and two counts of use of a communication device to solicit a sexual offense.

Police arrived at the townhouse about 2:30 a.m. Tuesday, Prince William Sgt. Jonathan Perok said. Abbott refused to surrender. Aware that the detective probably had weapons, the police then evacuated some nearby townhouses as a precaution, Perok said.

(Mike Frisch)

December 6, 2017 in Current Affairs | Permalink | Comments (0)

Disregard Of Bar Duties No Reason To Impose Fitness Requirement

An attorney's near total disregard for the disciplinary process - after he was on clear notice of the bar complaint - was insufficient to warrant a fitness requirement, according to a District of Columbia Hearing Committee's recommendation of a 30 day suspension.

After a raft of efforts by Disciplinary Counsel to secure a response to the client's complaint

On March 4, 2016, Respondent sent an e-mail to Disciplinary Counsel attaching a letter of the same date. Mayfield Aff. ¶¶ 19-20; DX 11; DX 12. In the letter, Respondent admitted receiving $2,850 from his client—$2,400 for his legal services and $450 to cover the filing fee. DX 12 at 4. Respondent stated that he had sent the client a certified check for $3,091.78, which he described as “$2,850 + interest.” DX 12 at 5. Although Respondent stated he was attaching a copy of the check to his letter, he failed to do so. Mayfield Aff. ¶ 20-21; DX 12. Respondent did not provide his client file, his financial records, or any other documents responsive to the subpoena duces tecum...

On approximately March 30, 2016, Disciplinary Counsel called and spoke with Respondent by telephone. See DX 15. Respondent stated he would respond to the subpoena. Id. He did not do so, even after receiving a follow-up email from Disciplinary Counsel on April 6, 2016.

Thereafter, nothing.

He defaulted on the allegations and failed to participate at all.

As to fitness

Here, Respondent’s failure of cooperation has been limited to a single matter, namely Disciplinary Counsel’s investigation into the Robertson matter. Respondent’s failure to properly respond to that investigation causes the Committee concern. But the Committee cannot say that it has a serious doubt concerning Respondent’s fitness to practice law based on his failure to properly respond in this one matter. The Committee may well have had a different recommendation if Respondent had failed to properly respond in more than one matter or if there was otherwise evidence of a broader pattern of misconduct...

We see no evidence of deception by Respondent in this case. At most, there is evidence that he promised Disciplinary Counsel that he would provide additional responses that he did not actually fulfill. He offered excuses for his failure to answer the letters and subpoena. Whatever the merit of those excuses or lack thereof, we read them as efforts to explain why he had not complied. We do not read them as evidence of any belief that he was not required to respond or as evidence of an intent to deceive Disciplinary Counsel going forward.

We find that his failure to respond to Disciplinary Counsel’s investigation has not been sufficiently repetitive as to raise a serious doubt about his fitness to practice law.

The Committee believes that the underlying misconduct is serious. But rather than imposing a fitness requirement, the Committee recommends that Respondent be directed to complete CLE courses on law-practice management (three hours) and on professional responsibility/ethics (three hours) before he can be reinstated following his suspension.

This public protection-unfriendly result is the product of an unfortunate aspect of the decision of the Court of Appeals in In re Cater.

Many jurisdictions (New York, for instance) actually treat the flagrant disregard for the obligation to cooperate in a bar investigation as a disbarrable offense. 

In D.C. , it's a legitimate hearing strategy.

The case is In re Leslie Thompson. (Mike Frisch)

December 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, December 5, 2017

Missouri Rejects A Right To Farm Marijuana

The Missouri Supreme Court rejected this defense

Mark Shanklin appeals from a judgment convicting him of producing more than five grams of marijuana, possession of more than five grams of marijuana with intent to distribute, and possession of drug paraphernalia. Shanklin argues the statutes prohibiting marijuana cultivation and possession are unconstitutional as applied to him because article I, section 35 of the Missouri Constitution protects "the right of farmers and ranchers to engage in farming and ranching practices." Article I, section 35 protects the right to engage in lawful farming and ranching practices. It does not create a new constitutional right to engage in the illegal drug trade. The circuit court's judgment is affirmed.

St. Louis City police detectives went to Shanklin's residence after a "utility inquiry" showed excessive electricity use consistent with marijuana cultivation. Shanklin answered the door and consented to a search. Police discovered more than 300 live marijuana plants. Police also discovered several hundred grams of packaged marijuana, a mesh dryer, and a digital scale commonly used to prepare and package marijuana for distribution. Shanklin told police he was growing marijuana to help pay off his stepchildren's debts and for his own use.

As to the Right to Farm

The operative clause of article I, section 35 provides "the right of farmers and ranchers to engage in farming and ranching practices shall forever be guaranteed" in order "[t]o protect this vital sector of Missouri's economy," subject to local government regulation as authorized by article VI of the Missouri Constitution. When a constitutional provision includes prefatory and operative language, "[l]ogic demands that there be a link between the stated purpose and the command." District of Columbia v. Heller, 554 U.S. 570, 577 (2008). The scope of constitutionally protected farming and ranching practices is, therefore, informed by the prefatory clause of article I, section 35, as including those practices that are part of the agricultural sector of Missouri's economy. The amendment includes no language suggesting Missouri voters intended to nullify or curtail longstanding laws regulating or prohibiting possession, cultivation, and harvest of controlled substances. See United States v. White Plume, 447 F.3d 1067, 1074 (8th Cir. 2006). Further, because the amendment expressly recognizes farming and ranching practices are subject to local government regulation, it would be absurd to conclude Missouri voters intended to implicitly nullify or curtail state and federal regulatory authority over the illegal drug trade. The plain, ordinary, and natural meaning of article I, section 35 demonstrates no purpose to sub silentio repeal laws criminalizing the cultivation or possession of controlled substances.

When the General Assembly passed a joint resolution proposing article I, section 35, and Missouri voters adopted it, marijuana cultivation, possession, and distribution had been illegal in Missouri for decades. It necessarily follows that Shanklin's marijuana cultivation operation was not a farming practice to be protected by article I, section 35. Therefore, Shanklin failed to meet his burden of proving §§ 195.211 and 195.017 were clearly and undoubtedly unconstitutional on their face or as applied to him.

(Mike Frisch)

December 5, 2017 | Permalink | Comments (0)

Finding Zemo: "Stare Decisis Does Not Consist Of Plucking A Lyric Phrase Here Or There From The Low-Hanging Fruit"

If and when Judge Charles E. Moylan, Jr. ever retires, the Maryland Court of Special Appeals will lose one of the most lyrical and entertaining writers of judicial opinions in the country. 

One can recognize a Moylan opinion before reading the author's name, as in this criminal conviction for theft by deception  affirmed today.

The defendant purchased tires by identity theft.

On the Otis Redding question - how did the defendant come to sit in the dock?

How do the police routinely discover an unknown criminal’s identity? Or his whereabouts? With Elizabeth Barrett Browning, let us count the ways. Perhaps a police “hotline” receives a tip, anonymous or otherwise, from a good citizen. Perhaps the police, by cash or other inducement, pay for a tip from a snitch, to wit, a confidential informant. Perhaps the crime victim randomly spots the culprit on a crowded street or in Times Square on New Year’s Eve. Perhaps the fugitive becomes an instant celebrity by winning the lottery. Perhaps it is the prescience of a Gypsy fortune-teller or the wisdom of the tea leaves. Perhaps it is just dumb luck. Or perhaps law enforcement has available to it, as does Maryland in the present case, latter-day facial profiling technology. Like Shakespeare’s Cleopatra, Dame Fortune is possessed of “infinite variety” in how she points her finger at the avatar of guilt. The point is that the modus operandi just doesn’t matter. Even if reading the entrails of birds is a questionable technique for identifying a suspect, a suspect thus identified most assuredly does not go free.

He had entrails on the mind in eviscerating counsel for principal reliance on an earlier Moylan opinion

This brings us to Zemo v. State, 101 Md. App. 303, 646 A.2d 1050 (1994), and the appellant’s heavy reliance on it. The appellant objects to Detective Kelly’s testimony at two different levels, and we will respond with respect to each. At the initial admissibility level, the appellant objected to the admissibility of the search made of the North Carolina database that revealed that the driver’s license used by the appellant to perpetrate his theft by deception had been a fake. In addition to contending that the search of the database had been conducted by the clerk of the Charles County Sheriff’s Office acting alone and not in conjunction with Detective Kelly, the appellant, in reply brief, argues strenuously that the search violated the Rule Against Hearsay...

The only similarity is that both cases involved police testimony summarizing the investigation

In reply brief, the appellant took special umbrage at the fact that “the State never acknowledge[d] Zemo in its brief.” The appellant wants his case to be a clone of Zemo.

The vexing problem the appellant has with Zemo, however, is that Zemo does not stand for the proposition for which the appellant cites it. There is, to be sure, one peripheral similarity between the two cases. The appellant has constructed his thesis based on that one peripheral similarity. The appellant’s focus in this case is on the testimony of Detective Kelly describing his investigation. This Court’s focus in Zemo, leading to a reversal of a conviction, was on the testimony of Detective Augerinos describing his investigation. At that point, however, all similarity between the two cases has come to an end. Our focus must shift from the periphery to the core. The actual focus in Zemo was not on the detective’s testimony describing his investigation per se. It was on the fact, rather, that the detective, by virtue of unduly extensive and, in that case, totally irrelevant testimony about his investigative procedures, introduced into the case two highly prejudicial pieces of information against the defendant...

The present case and Zemo are diametrically different in that the invocation of the right to silence in Zemo and the detailed corroboration of information from the confidential informant in Zemo were both completely inadmissible and highly prejudicial. In this case, by stark contrast, 1) the information that the North Carolina license presented to the theft victim was a fake and 2) the identification of the anonymous thief as the appellant were both highly relevant matters as to which evidence would have been admissible. What Detective Augerinos introduced in Zemo, by contrast, was irrelevant and inadmissible. What Detective Kelly introduced was properly in the present case. The contrast between the two cases is one of 180°.

The dissimilarity between this case and Zemo does not end there. An even more significant difference between this case and Zemo is one that engages the very ABCs of “How To Read An Appellate Opinion 101.” Stare decisis does not consist of plucking a lyric phrase here or there from the low-hanging fruit. Nor does it consist even of taking a succulent looking sentence out of its constraining context. The auditor must make a genuine search for the central thrust of a decision because therein lies the only locus of precedential authority.

The coup de grace

In relying, as he does, almost exclusively on Zemo, the appellant cites Zemo for a message that Zemo affirmatively disavowed. It would ill behoove the appellant, moreover, to tell the Court that wrote Zemo what it was that Zemo meant to say. We affirm the conviction.

Ouch. (Mike Frisch)

December 5, 2017 | Permalink | Comments (0)