Monday, March 23, 2015

May State Bar Discipline A Judge?

We recently reported on disciplinary charges brought against a judge for alleged misconduct in his judicial capacity.

The judge has filed a motion to dismiss the allegations in which he contends that (1) the State Bar lacks jurisdiction over the matter as he was not engaged in the practice of law, (2) the prior inquiry by the Judicial Standards Commission creates an estoppel of the present charges and (3) he has been denied due process of law.

The News Observer reported on recent  legislative support for the judge, who was reprimanded by judicial authorities

A state senator is trying to help a Superior Court judge in his district escape sanctions from the N.C. State Bar, which regulates lawyers in North Carolina.

Sen. Bill Cook, a three-term Republican legislator from Beaufort County, says he thinks Superior Court Judge Jerry Tillett shouldn’t have to risk losing his license to practice law because he was already sanctioned by the state Judicial Standards Commission.

The State Bar is basing its disciplinary case against the judge on the same issues that led to a sanction from the Judicial Standards Commission. The judge received a “public reprimand” two years ago for misuse of power in a dispute with the Kill Devil Hills police chief and the county’s district attorney.

Cook said Friday that he filed a bill, Senate Bill 323, to protect Tillett and any judge who finds himself or herself in that situation. He filed the bill Wednesday, two days after the State Bar posted its March 6 complaint against Tillett on its website.

(Mike Frisch)

March 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Failure To Pay Sanctions, Notify Bar, Draws Proposed Suspension

The California State Bar Court Review Department agreed with a hearing judge that a 30-day actual suspension is the appropriate sanction for an attorney's failure to timely pay a civil sanction and report the sanction to the State Bar.

The court rejected the suggestion that the failure to pay did not violate ethical obligations

Where an attorney is aware that sanctions have been ordered, payment is required within a "reasonable time." ( In the Matter of Respondent Y (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 862, 867.) Anyiam stipulated that he had actual knowledge of the sanctions order on October 14, 2010, but did not pay any portion until October 28, 2013. His failure to pay $4,000 in fees and sanctions for more than three years establishes his culpability under section 6103. (See id. at p. 868 [failure to pay sanctions more than one year after order issued not reasonable and violated § 6103].) Similarly, Anyiam is culpable of failing to timely report the $1,000 judicial sanction because he knew about it when it was imposed, yet he waited more than two years to report it. (See id. at p. 867 [failure to report sanctions three months after respondent learned of order is violation of § 6068, subd. (o)(3)].)

The knowledge element

 Anyiam’s claim that he did not know the order’s due date is contradicted by Ibay’s credible testimony that: (1) the superior court judge announced the 30-day deadline in open court; (2) Ibay faxed Anyiam three demand letters when payment became overdue; (3) Ibay asked for payment of the overdue sanctions and fees during multiple conversations with Anyiam; and (4) Ibay served Anyiam with the OSCs, supporting declaration, and exhibits reciting the 30-day deadline. In addition, the portion of the OSC that Anyiam admits he received clearly states the November 13, 2010 payment deadline...

The court rejected the attorney's request for a reproval, citing his lack of candor. (Mike Frisch)


March 23, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Sunday, March 22, 2015

Getting Personal

The Louisiana Supreme Court has ordered a 30-day suspension of a Shreveport City judge who had abused her contempt power against a city prosecutor with whom she had an adversary relationship prior to assuming judicial office.

The prosecutor's office instructed its attorneys to interact with the judge through a designated person. The contempt came because the city prosecutor followed that directive.

Judge Sims’ actions resulted from her personal feelings towards Ms.Gilmer and her perception that Ms. Gilmer lacked respect for her. But Judge Sims’ actions cannot be viewed in a vacuum. We must give some consideration to the context of Judge Sims’ actions in light of her adversarial relationship with Ms. Gilmer, and in light of Ms. Gilmer’s actions. As a judge, it is certainly understandable that Judge Sims was frustrated regarding Ms. Gilmer’s failure to agree to a meeting. And, the record supports Judge Sims’ assertions that Ms. Gilmer failed to directly respond to some of her requests for a meeting. While Judge Sims’ conduct cannot be condoned, it is not unreasonable that Judge Sims felt ignored and disrespected.

The judge got mad and then got even

The Commission found that Judge Sims committed bad faith legal errors by holding Ms. Gilmer in contempt for conduct that was not contemptuous and for sua sponte dismissing the fifteen criminal cases without legal authority to do so. Based on Judge Sims’ bad faith legal errors, the Commission found by clear and convincing evidence that Judge Sims failed to personally observe a high standard of conduct so as to preserve the integrity and independence of the judiciary, in violation of Canon 1; failed to respect and comply with the law and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A; and failed to be faithful to the law and maintain professional competence in it, in violation of Canon 3A(1). We agree.

The court rejected the Judiciary Commission's proposed 90-day suspension.

Justice Guidry dissented on the sanction

I dissent in part from the majority’s imposition of a suspension of thirty days without pay. Because this was a relatively newly-elected judge faced with a somewhat unusual directive from the City Attorney that assistant city prosecutors could not meet with city court judges to discuss administrative matters except upon notice to the City Attorney, and because the judge has accepted responsibility and learned from her misconduct, I would simply censure the judge pursuant to La. Const. art. V, § 25(C), and order her to reimburse the Judiciary Commission’s costs. 

(Mike Frisch)

March 22, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Friday, March 20, 2015

No Purpose But To Harass

A one-year suspension has been imposed by the Wisconsin Supreme Court for an attorney's involvement in a pattern of bad faith litigation, dishonesty and failure to cooperate in the bar proceedings.

The attorney previously was suspended as a result of the non-cooperation.

The facts were unusual and complex

we note that Attorney Isaacson is not alleged to have acted as an attorney in this disciplinary proceeding.  Rather, she is a licensed Wisconsin attorney who engaged in misconduct while serving in the capacity as an officer or managing member of a corporate entity and its subsidiaries.  Specifically, Attorney Isaacson was the Chief Executive Officer of Dr. R. C. Samanta Roy Institute of Science and Technology, Inc., known as "SIST," together with its wholly owned subsidiaries and limited liability companies. The complaint identifies several somewhat interrelated litigation proceedings in which Attorney Isaacson participated.  She prepared and signed affidavits, declarations, or responses in these matters which were filed on her behalf.  The core of the complaint is that Attorney Isaacson's statements in these documents had no apparent purpose other than to harass judicial officers, public officials, opposing counsel, and others based on race, creed, and religion. 

As the referee observed, it is difficult to summarize the verbose and grandiose allegations leveled by Attorney Isaacson against the courts generally, specific judges, other counsel, appointed officers, and third parties.  The OLR's complaint contains over 70 paragraphs providing detailed context for and quoting from specific sworn and verified statements she made in court filings.  A few examples must suffice to convey the nature of Attorney Isaacson's statements...


"Shawano is Neo-Nazi territory where it is believed people of other races and religions have no right to life," and referred to the "underlying White Supremacist feelings and beliefs and Jim Crow mentality held by many persons in Shawano."  She declared that the "[d]efendant's experience of 'justice' in Shawano is comparable to the 'justice' Jews experienced under Hitler's regime."

"[t]rying a matter in Minnesota is like sending the Jews back to Germany during the Holocaust."

Attorney Isaacson made reference to trustees, variously, as a "dirty Catholic inquisitor," a "Jesuitess," and a "priest's boy," and referred to various judges as a "black-robed bigot," a "Jesuit judge," and a "Catholic Knight Witch Hunter."  She stated that court systems, "particularly the Bankruptcy Court in Minnesota, are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church."

The court

We agree that Attorney Isaacson's misconduct warrants a one-year suspension of her license to practice law in Wisconsin.  She repeatedly made frivolous and harassing personal attacks and discriminatory statements in numerous documents filed in various matters.  She continued to make false statements about members of the judiciary and others after being formally sanctioned for her conduct.  Based on the record presented, we are satisfied that a one-year suspension is sufficient in view of the seriousness of her professional misconduct and will serve to deter similar behavior and protect the public from similar misconduct in the future. had this coverage of the litigation. (Mike Frisch)

March 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"Nearly Ever Wrong Possible"

The Iowa Supreme Court has suspended an attorney for one year as a result of serious issues uncovered during an audit of his trust account.

The attorney is a solo practitioner admitted in 1973.

The audit revealed that his trust accounts were a mess.

The problem was exacerbated by the failure to pay taxes, several years in which he had falsely certified that his accounts were compliant with ethical obligations and failure to cooperate with the bar process.

Notably, the court rejected charges that he had improperly used a trade name.

The court

Here, Cross mismanaged the trust account, commingled client funds with his own, failed to deposit unearned fees and expenses into the trust account, withdrew fees and expenses before they were earned, failed to maintain proper records, and failed to provide clients with contemporaneous written notifications and accountings of withdrawals from the trust account. These violations persisted for over four years. As the auditor aptly put it in the audit report, "Cross completely lost control and accountability for client funds deposited in his trust account" and "committed nearly every wrong possible in handling client funds and managing an attorney’s trust account."

He must enter into agreements to pay off his tax obligations to secure reinstatement. (Mike Frisch)

March 20, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

Bar Complaint Not Unethical

An accomplished DUI defense was found to have violated three court orders in two DUI cases and should be suspended for 30 days, according to an unpublished recommendation of the California State Bar Court Review Department.

The attorney has practiced for 30 years without prior discipline.

Notable (and perhaps publication-worthy) was the court's findings of no misconduct in the attorney's filing a bar complaint against a prosecutor

No published case law interprets section 6043.5. As urged by OCTC, we conclude that it must show three things to prevail: (1) the complaint was false; (2) Genis knew it was false; and (3) he acted maliciously. We find OCTC has failed to demonstrate the first element — falsity. The facts stated in the State Bar complaint are true, in that the deputy provided discovery to new counsel before he was officially entitled to receive it. However, OCTC also argues Genis’s interpretation of the Penal Code section was "false" because the statute does not apply to prosecutors. In support of its position, OCTC offers a plain language reading of the statute, but concedes that no case law supports its interpretation. As a preliminary matter, we question how an interpretation of a statute can be construed as false because it is a legal question, not a question of fact. Further, OCTC’s statutory interpretation is not authority upon which we may rely. Finding OCTC has not established falsity of the State Bar complaint, we affirm the hearing judge and dismiss Count One with prejudice.

The court further concluded that the report to the bar was not an act of dishonesty.

The recommendation is for two years of probation after the suspension. (Mike Frisch)

March 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Bully Pulpit Torn Down

The California State Bar Court Review Department has recommended disbarment of a lawyer found culpable of maintaining vexatious litigation

 This matter concerns Charles Gadsden Kinney’s actions as a plaintiff and attorney in a series of lawsuits in Los Angeles and as an attorney in several lawsuits in El Dorado County. Described as a "relentless bully" by one superior court judge, Kinney was declared a vexatious litigant in 2008 by the Los Angeles County Superior Court. In a scathing, published opinion in 2011, the Court of Appeal, Second Appellate District, also declared him a vexatious litigant, warning "Kinney’s conduct must be stopped, immediately." (In re Kinney (2011) 201 Cal.App.4th 951, 960.) The Court of Appeal, Third Appellate District, described the El Dorado County lawsuits as baseless, deemed Kinney’s appeals frivolous, and awarded sanctions jointly and severally against Kinney and his client.

The trial judge's proposed three-year suspension was deemed insufficient

 we find that Kinney’s previously unblemished career simply does not mitigate his egregious, harmful misconduct, particularly since, by every indication, he appears likely to continue such misconduct in the future. We recommend Kinney’s disbarment as the only discipline adequate to protect the public, the courts, and the legal profession...

Kinney used his legal knowledge to repeatedly abuse the court system through his relentless lawsuits. His misconduct goes beyond vexatious litigation as it involves significant aggravation, including a lengthy pattern of wrongdoing, significant harm to others, disregard for the court process, and a total lack of insight into his harmful behavior. At the same time, Kinney has failed to establish any mitigation. Given these circumstances, we conclude that he should be disbarred.

 In sum

Seven years after Judge Grimes identified Kinney as a "relentless bully," six years after he was first declared a vexatious litigant, and almost four years after a Court of Appeal warned in a published opinion that Kinney "must be stopped immediately," he continues to clog the court system with his meritless claims and motions. We find that Kinney is unfit to practice, and we recommend his disbarment. Requiring Kinney to undergo a full reinstatement proceeding after he is disbarred is the only measure that can adequately protect the public, the courts, and the legal profession.

(Mike Frisch)

March 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Local Counsel Has Ethical Obligations

The District of Columbia Court of Appeals has approved the imposition of an informal admonition in a case in which the attorney disclaimed ethical obligations as local counsel to an out-of-state attorney.

The court rejected that suggestion, noting findings below

The [Hearing] Committee concluded that respondent had entered into an attorney-client relationship with Mr. Carter when he professionally accepted responsibility for Mr. Carter’s case by authorizing his signature and use of his bar number on the complaint. Comparing respondent’s participation in Mr. Carter’s case to that of local counsel in a case in which an attorney has been admitted pro hac vice, the Committee concluded that respondent assumed the responsibilities imposed by the Rules...

Because of respondent’s lack of disciplinary record, his good faith in trusting [counsel] Mr. Chasnoff to re-activate his bar membership and assume the responsibility of the case, the limited effect of respondent’s conduct on Mr. Carter’s case, and respondent’s reputation and professionalism, the Committee recommended that respondent be sanctioned with an informal admonition.

The court's view

Relying on the premise that he never entered into a representation agreement with the client, respondent has consistently asserted that no attorney-client relationship existed between them. We, therefore, begin our analysis of the question from a broader historic context. Members of the bar who practice law serve a variety of roles and have a range of professional responsibilities. Lawyers have duties and obligations to their clients, D.C. R. Prof’l Conduct 1, ethical responsibilities to other lawyers, D.C. R. Prof’l Conduct 3.4, and, historically, a fiduciary relationship to the court, by which they are licensed to practice law...

 Here, the Board considered substantial evidence to conclude that respondent formed an attorney-client relationship with Mr. Carter. It is critical that respondent authorized the filing of Mr. Carter’s complaint with his signature and bar number and later initiated and filed an additional pleading in which he identified himself as Mr. Carter’s attorney. As an officer and fiduciary, respondent represented to the court, through his filings, that an attorney-client relationship existed. Moreover, respondent was aware that he was the only counsel of record in Mr. Carter’s case who was licensed to practice law in the District; respondent knew that Mr. Chasnoff’s bar membership was inactive.

The court found that the most lenient available sanction was the appropriate one. It rejected a variety of due process claims by the attorney including an allegation of gross delay in the proceedings.

If you check the Bar Docket Number, you will note that the case only took thirteen years to resolve by informal admonition.

Delay? What delay? (Mike Frisch)

March 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Candor And Fitness

The Ohio Supreme Court accepted a recommendation of its Board of Commissioners on Character and Fitness  to deny a bar applicant permission to sit, with the possibility of allowing him to do so in February 2016.

Steinhelfer began attending the Chicago-Kent College of Law in Chicago, Illinois, in 2007 and filed his application to register as a candidate for admission to the Ohio bar in August 2010. In May 2011, the admissions committee of the Logan County Bar Association conducted a character-and fitness interview. Because the committee was later informed that Steinhelfer did not intend to take the bar examination, it did not create a report of its character and- fitness investigation.  Nonetheless, the committee had concerns about issues disclosed in Steinhelfer’s application and interview, including a prior arrest, credit-card debt, and uncertainty regarding his law-school graduation. Steinhelfer told the interviewers that he had not yet graduated because of a disagreement with a professor. Steinhelfer failed to mention, however, that he left Chicago-Kent College of Law in May 2010—a full year before the interview—and that he had not graduated because he failed to complete requirements in three courses, not simply because of a dispute with one professor.

After leaving law school in May 2010, Steinhelfer returned to Ohio, his state of residence. In June 2011, he was charged with operating a vehicle while under the influence of alcohol or drugs, leaving the scene of an accident, failure to control his vehicle, and other offenses after hitting another car. In an agreement with the prosecutor, he pled no contest to reckless operation, a fourth-degree misdemeanor. He was also sued in two cases relating to credit-card debt that he had accrued during law school, and he was terminated from an employment position. In May 2012, he was hospitalized and diagnosed with alcohol dependency and a severe mental disorder. He later commenced treatment for both conditions, including taking medication, attending counseling, attending a 12-step program, and abstaining from alcohol. By December 2012, he had completed his outstanding course work and graduated from Chicago-Kent.

A panel expressed concerns about the applicant's candor which were echoed by the board

the board questions whether sufficient treatment time has elapsed since stabilization of Steinhelfer’s mental disorder. The board concludes, however, that it is unnecessary to answer that question because the “more serious concern is his lack of candor and his failure to make full disclosure on several issues” throughout the application process. Specifically, the board found that Steinhelfer (1) failed to explain his law-school status at hisfirst character-and-fitness interview, (2) failed to previously disclose his termination from a judicial campaign for inappropriate behavior, (3) failed to previously disclose that he had been receiving disability benefits, and (4) failed to submit all of the documents that had been requested by the panel. The board also finds that his “willful non-compliance” with his OLAP contract demonstrates a “current lack of character.”

A full fitness review will occur if the applicant pursues admission. (Mike Frisch)

March 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

"We Take Petitioner At His Word"

The Illinois Review Board has rejected a hearing board recommendation to deny reinstatement to a suspended attorney and opines that reinstatement should be granted.

Upon review, the Review Board found that the  Hearing Board made findings that were against the manifest weight of the  evidence. The Review Board noted that Petitioner had held positions of trust and  responsibility as a teacher at Notre Dame High School. Although Petitioner has  not completed restitution, the Board concluded that Petitioner had made great  strides in his attempts to make restitution and could continue to make  restitution from his future income. While the Hearing Board expressed some  concerns about Petitioner's willingness to abstain from alcohol, the Review  Board found that these concerns could also be addressed through conditions  imposed upon Petitioner following his reinstatement. Accordingly, the Review  Board recommended that Petitioner be reinstated to the practice of law with  certain conditions imposed following his reinstatement and until Petitioner  makes complete restitution

 The misconduct

Respondent was licensed to practice law in 1990.  From 1995 through 1998, Respondent participated in a scheme to obtain mortgage  loans from certain lenders by means of materially false and fraudulent  pretenses. He struck his name from the Roll of Attorneys in 2003.

The good news

The Petitioner called six character witnesses,  including two judges. While the Hearing Board found that only one of the  witnesses knew Petitioner prior to his criminal conviction, this statement was  inaccurate and was against the manifest weight of the evidence. Two other  witnesses testified that they knew Petitioner prior to his conviction. More  importantly, the witnesses testified, without contradiction, that Respondent  recently recognized his misconduct and was a "different person" than the person  who engaged in the misconduct that led to his disbarment. Even Dr. Stafford  Henry, who evaluated Petitioner at the request of the ARDC, testified that when  he evaluated Petitioner in 2013, he saw a significantly different individual  than the man he had previously evaluated in 2008. While the Hearing Board found  that this change in attitude was fairly recent, the timing of the change is not  as important as the change itself. Petitioner states that he now takes  responsibility for his misconduct. While the Hearing Board dismissed  Petitioner's testimony, we take Petitioner at his word.

And prior alcohol problems are no problem

 we believe that any concerns  regarding Petitioner's sobriety can be addressed through conditions upon his  reinstatement. There was no evidence that Petitioner's misconduct which led to  his disbarment resulted from his alcohol dependence. Therefore, it would be  unfair to preclude his reinstatement because of his dependence. With conditions  requiring Petitioner to continue with treatment and periodic assessments and to  refrain from further alcohol consumption, we are confident that the public will  be adequately protected.

(Mike Frisch)

March 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ignorance No Excuse

An experienced attorney who collected unreasonable fees and mishandled multiple matters should be suspended for 90 days, according to a hearing board report from Illinois.

The attorney was admitted in 1978 and had no prior discipline.

One matter involved a contingent fee in a workers' compensation matter

We note that Respondent claimed he was not aware of  the requirement that all contingent fee agreements are to be in writing. (Tr.  572, 676). We find it difficult to believe that an attorney who has practiced  law since 1978 and whose practice has included hundreds of personal injury and  workers' compensation cases did not know that contingent fee agreements must be  in writing. Nevertheless, it is well established that an attorney's ignorance of  the ethical rules is not a defense in a disciplinary case. See In re  Gerard, 132 Ill. 2d 507, 537-38, 548 N.E.2d 1051 (1989); In re Cheronis,  114 Ill. 2d 527, 535, 502 N.E.2d 722 (1986). We point out that we are not  finding Respondent engaged in misconduct by violating Rule 1.5(c) because he was  not charged with a violation of that Rule. Rather, we find that Respondent  obtained an unreasonable contingent fee, in violation of Rule 1.5 (a) as charged  in the Second Amended Complaint, based upon the fact that there was no written  contingent fee agreement with Simpson as required by Rule 1.5(c).

As to sanction

The Respondent's misconduct is serious. He obtained  unreasonable fees from two clients (Counts I, V); he attempted to obtain an  unreasonable fee from another client (Count VI); he failed to adequately communicate with and keep  clients informed in three matters (Counts I, II, III); he acted with dishonesty  and deceit in three matters (Counts I, II, V); and he neglected the cases of two  clients (Counts II, III).

Respondent's misconduct is aggravated by the fact  that there was a pattern of misconduct, involving five clients and five  different matters, over the course of several years. Also, his misconduct was  harmful to his clients. His misconduct caused the lawsuits of two clients to be  dismissed and their claims to be time-barred. (Counts II, III). Further, he has  denied two clients the use of funds since 2008 and 2010, respectively, when he  obtained unreasonable fees from them (Counts I, V).

 There is also mitigation. Respondent has practiced  law since 1978 without having been previously disciplined. A character witness  testified as to the Respondent's favorable reputation for truth and veracity. It  also appears that Respondent was cooperative during his disciplinary  proceedings. We further find that the Respondent did not intentionally cheat his  clients by taking unreasonable fees. It appears he actually believed, although  mistakenly, that he was entitled to those fees based upon, what he thought, was  outstanding representation and service to his clients. Other misconduct was  causally connected to his large caseload. He forgot about the cases of two  clients and he seemed to be in the habit of simply assuring clients things were  going well without taking the time to look at their files. He also relied on his  memory as to what occurred or what he said when he spoke with clients, without  having any contemporaneous records. While the foregoing conduct, of course, is  not acceptable and cannot be tolerated in the attorney-client relationship, it  falls short of demonstrating a corrupt or evil motive.

We believe that a suspension coupled with the  payment of restitution is the appropriate sanction in this case. However, we  believe a suspension of one year would be excessive and have a substantial adverse impact on his law practice. A  suspension of 90 days is sufficient to impress upon Respondent the seriousness  of his misconduct and to emphasize that he must not engage in  further misconduct.

(Mike Frisch)

March 19, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 18, 2015

Argument Interruptus

From the web page of the Ohio Supreme Court

An attorney who knew his law  license was suspended in Ohio but still argued a case before a state appeals  court was given another suspension today.

In a 6-1 decision, the Ohio  Supreme Court suspended David C. Eisler of Seattle for two years with the  second year stayed if he meets certain conditions.

Eisler was barred from practicing  law in Ohio on Nov. 13, 2012, because he hadn’t met his continuing legal  education (CLE) requirements. He received notice of this suspension on Nov. 20,  a week before he was scheduled to argue before the Ninth District Court of  Appeals.

Eisler said he decided to travel  to the Ohio court to address the problem in person. However, he did not tell  the appellate court about his suspension and went ahead with presenting his oral argument. The opposing lawyer disclosed Eisler’s suspension to the court, which  prohibited him from making a rebuttal argument and reported the misconduct to the state disciplinary counsel.

The court's opinion is linked here. (Mike Frisch)

March 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

No Jurisdiction Over Teacher-Student Sex That Occurs Overseas

The New Jersey Supreme Court has dismissed the criminal charges brought against two teachers who were alleged to have had sexual relations with three of their charges while serving as chaperones for a trip to Germany.

In this appeal, the Court considers whether the State can prosecute offenses that occurred in Germany in a New Jersey courtroom.

In February 2011, a group of students from Paramus Catholic High School traveled to Europe as part of a school-sponsored trip. Defendants Michael Sumulikoski and Artur Sopel, who both worked at the school, served as the sole chaperones for a portion of the group that went to Germany. One week after the trip ended, a teacher reported that sexual misconduct had occurred between the chaperones and students during the trip. An investigation revealed that defendants had engaged in multiple acts of sexual misconduct with three seventeen-year-old female students while in Germany.

The court's lament

The Court recognizes that the outcome here may be unsettling. However, it is driven by existing statutory law, which requires that "conduct" that is an element of the offense occur in New Jersey. Although the Legislature may consider amending the law, nothing in the sexual assault or endangering statutes as currently written suggests that those laws were intended to apply to conduct by a teacher/chaperone, outside of this State, directed against a student in the person’s care, in a manner that comports with due process.

The court reversed the decision of the Appellate Division. (Mike Frisch)

March 18, 2015 | Permalink | Comments (0) | TrackBack (0)

Long Suspension For Pattern Of Neglect

An attorney charged with and found culpable of a host of ethical violations has been suspended for two years and six months by the Wisconsin Supreme Court.

The allegations of misconduct at issue are varied and numerous.  Attorney Dahle failed to commence actions prior to the expiration of statutes of limitations, failed to appear in court on several cases, and missed filing deadlines for briefs, discovery, and witness disclosures.  She essentially abandoned her law practice and her clients in 2012 when she closed her office without notice.  Her clients were left with cases in a state of neglect with no way to contact their attorney.  In addition, she borrowed or took some $400,000 from clients without regard to conflict of interest restrictions and requirements.  Attorney Dahle also repeatedly failed to respond to inquiries from the OLR, resulting in her temporary suspension from the practice of law...

The undisputed facts show a clear pattern of neglect by Attorney Dahle of her clients' needs and objectives and disregard of her obligations as an attorney.  We agree with the referee's observation that the recommended suspension of two years and six months both recognizes Attorney Dahle's eventual full cooperation with the disciplinary process and does not unduly depreciate the seriousness of her professional misconduct.

The court ordered that the attorney pay the full costs of the prosecution. (Mike Frisch)

March 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thefts Lead To License Revocation

License revocation was imposed by the Wisconsin Supreme Court of an attorney who pleaded no contest to felony theft charges

The criminal complaint alleged that between January 2010 and July 2012, Attorney Semancik stole $80,674.50 from the title company where she was a vice president and operations manager.  Attorney Semancik wrote several checks for her own benefit from company accounts and made false entries into records to disguise her acts.  On March 25, 2013, Attorney Semancik pled no contest to the charge and was convicted.  As part of her sentencing, the Milwaukee County Circuit Court ordered her to pay a total of $108,000 in restitution to Mayfair Title Company ($58,000) and Society Insurance Company ($50,000).

The attorney failed to participate in the disciplinary proceeding.

The court ordered restitution

We also accept the recommendation regarding restitution.  The belated nature of the OLR's request for restitution would be problematic if Attorney Semancik had participated in these proceedings, but in this case, she indicated she did not intend to participate in the disciplinary proceeding.  Attorney Semancik is already subject to the requested restitution, as it was imposed by the Milwaukee County Circuit Court in her underlying state court criminal proceeding.

(Mike Frisch)


March 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

From Prison To Practice

The Pennsylvania Supreme Court has reinstated an attorney suspended as a result of a 2005 incident in which, after drinking at a bar, he was "driving a sports car, which he wanted to show off  to a man he just met at the bar."

His showing off led to an accident and the death of a West Point cadet.

He pleaded guilty to felony homicide by vehicle and was sentenced to 6-12 years in prison. He was released in June 2012.

He also consented to disbarment in 2006.

Since his release, he has been employed as a legal assistant with an Allentown law firm.

The Disciplinary Board found he had rehabilitated himself from a longstanding alcohol problem and was genuinely remorseful. (Mike Frisch)

March 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ethical Obligations Of Local Counsel

The District of Columbia Board on Professional Responsibility affirmed findings of misconduct but rejected an ad hoc hearing committee's proposed board reprimand.

Rather, the board favors a stayed 30 day suspension with six months of unsupervised probation.

Respondent’s intentional neglect and failure to communicate with Ms. Norris are sufficiently serious to warrant a 30-day suspension. Respondent, in his disagreement with Mr. Stewart over the filing of an extension to oppose the renewed motion to dismiss, lost sight of his paramount obligation to his client. As a result, he allowed the deadline to pass without filing an opposition or a motion for an extension of time in which to do so. As the only attorney with knowledge that the deadline had passed, and without having taken any action to protect Ms. Norris, Respondent bore full responsibility for the subsequent dismissal of her complaint. Even then, Respondent failed to file a motion for reconsideration or to take any other action to protect his client...

Respondent’s utter lack of recognition of his duty to his client is further aggravated by his steadfast refusal in this disciplinary proceeding to acknowledge the wrongfulness of his conduct or the violation of his duty to Ms. Norris. Even during oral argument before the Board, Respondent persisted in denying any wrongdoing, asserting that Mr. Stewart alone was responsible for the dismissal of Ms. Norris’s complaint.

The attorney served as local counsel to a New Jersey attorney (the above-mentioned Mr. Stewart) in a federal district court action in the District of Columbia.

The board rejected the suggestion that his "local counsel" status absolved him of ethical obligations

an attorney’s ethical responsibilities are not limited when acting as local counsel, as Respondent contends. Respondent entered into an attorney-client relationship with Ms. Norris, and thus was obligated to comply fully with the Rules of Professional Conduct.

Notably, the attorney had argued that reprimand was unduly harsh and that the matter should be dismissed.

Bar Counsel had not excepted to the proposed reprimand but favored a public censure before the board.

In D.C., the board can reprimand but only the Court of Appeals can censure, suspend, disbar or order probation. 

The case is In re Ernest Francis. It can be accessed at this link.

Board member Jason Carter wrote a good report, particularly in the sanction analysis.

 I say that because he relies on a number of my old cases. (Mike Frisch)

March 18, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 17, 2015

Practice Imperfect

A suspended attorney who engaged in post-suspension law practice should be disbarred, according to a report and recommendation of the California State Bar Court Review Department.

He had sought advice but failed to heed it

Prior to his suspension in July 2010, Tishgart consulted with ethics counsel for "suspension planning." Counsel advised Tishgart that while suspended, he may not give legal advice; proceed under the firm name "The Law Offices of Kenneth B. Tishgart;" use stationery bearing that name; and use his likeness or voice in any capacity as an attorney. Ethics counsel also informed Tishgart that he could work in a law office, but only if it was operated by another licensed attorney and Tishgart’s non-attorney capacity was clearly indicated.

Nevertheless, as Tishgart stipulated, he paid for television advertisements while suspended that aired throughout 2011 to June 2012. These ads were broadcasted over 70 times, encouraging accident victims to call the "Tishgart Law Office" and referencing a telephone number with a recording of Tishgart’s voice message. That message confirmed to the caller that he or she had reached Tishgart, who would be returning the call. The telephone number was the same number previously used by "The Law Offices of Kenneth B. Tishgart." No disclaimer stated that Tishgart was suspended or not entitled to practice law. No other attorney with the name Tishgart worked at the "Tishgart Law Office" at the time. There was no mention of Zach Nethercot, who was the licensed attorney hired to operate the Tishgart Law Office while Tishgart was under suspension.

Tishgart also stipulated that he maintained a website with the address on the Internet from June 25, 2012 to March 5, 2013. Each of the website’s two pages had the caption "Ken Tishgart [¶] Attorney at Law." The first page described Tishgart as a skilled attorney with experience representing individuals injured in premises liability cases. The second page instructed: "Contact the office of Kenneth Tishgart at (800) 696-3396 or by email at [sic] to arrange for a consultation to determine the strength of your case." The bottom of the page stated: "©2010 Kenneth B. Tishgart Attorney at Law – California Personal Injury Lawyers – serving the communities of California . . . ." If you have been seriously injured as the result of a premises liability accident in California, it is important that you contact an experienced premises liability lawyer to protect your rights. Skilled California slip and fall accident attorney Kenneth Tishgart is dedicated to representing clients who have suffered bodily injuries as a result of negligence on the part of property owners. If you have been the victim of a premises liability injury in the state of California, contact Tishgart Law Office for a free consultation.


In addition, Tishgart agreed in January 2011 to represent a former client, Rebecca Anne Deleon Ambrosio, in a car accident case without informing her of his suspension or that the firm was being operated by Nethercot. Tishgart had her sign a Fee and Representation Agreement that also did not include either fact.

(Mike Frisch)


March 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Inner Demons On Outer Banks

Disciplinary charges have been filed by the North Carolina State Bar against a Superior Court judge with jurisdiction over Kill Devil Hills, made famous by the Wright brothers.

The judge's son and companions had an encounter with KDH police that did not lead to criminal charges.

 The judge allegedly summoned government officials to a chambers meeting after the son was detained, expressed anger over the detention,  told the official that he had the power to remove them from office, became "embroiled in the affairs of the KDH police department," accepted ex parte complaints, issued orders without any action or petition pending, and other improprieties.

The Daily Advance has details on the feud. noted a judicial reprimand imposed on the judge. (Mike Frisch)

March 17, 2015 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

ACLU Lawyer Charged With Ethics Violations

The North Carolina State Bar has filed a complaint alleging misconduct by a staff attorney for the American Civil Liberties Union Capital Punishment Project in a death penalty appeal.

The allegations relate to two affidavits signed by prospective jurors "peremptorily challenged by the prosecution."

In one instance, it is alleged that the affidavit "is inconsistent with the trial transcript" in the case.

In the other, it is alleged that the affidavit "contains an assertion that directly contradicts both [a] typed memorandum of his interview and the trial transcript."

The affidavits were used to support the testimony of Professor Bryan Stevenson as an expert in race relations in connection with a motion for appropriate relief. The accused attorney acknowledged that she misspoke in describing to the court  the method by which the affidavits were prepared.

The charges:

Failure to act with reasonable diligence by failing to follow up on the discrepancies between the interview and trial transcript and conduct prejudicial to the administration of justice "[b]y failing, prior to moving to introduce into evidence the affidavits... to ensure that the information contained in the affidavits that could be verified by referencing the trial transcript comported with the trial transcript."

Note that the allegations do not involve the knowing offering or use of false testimony. Nor is there a charge of misleading the tribunal. Finally, there is no allegation that the attorney presented legally frivolous arguments. 

The mere fact that there are inconsistencies between an affidavit and  rough notes does not, in my view, remotely establish an ethical violation. Nor does the fact that assertions put in an affidavit do not track the trial record.

In an adversary system, inconsistencies and arguable propositions exist in every case. The duty to diligently represent a client facing the death penalty - to push the envelope - requires the attorney to shed her life's blood for her client. 

I find these charges hard to understand.

I am a huge fan of the North Carolina State Bar, which has the very best, most transparent web page of any in the United States.

Tempering that admiration, North Carolina has not had a great reputation for prosecuting prosecutors. Nifong was the ultimate disciplinary outlier and not indicative of an inclination to discipline wayward prosecutors. 

I can only hope that this case was not brought for political reasons.

Unless I'm missing something, there is nothing to these charges. (Mike Frisch)

March 17, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)