Monday, March 20, 2017

Murder Mistrial Due To Administrative Suspension Ends In Disbarment

The Georgia Supreme Court removed from its rolls an attorney who tried a murder case while suspended for CLE non-compliance

Nevertheless, Harkleroad continued to represent a client in a criminal case in which the client was charged with murder in the Superior Court of Coffee County. The client’s trial began on October 25, 2015, with Harkleroad representing the client. Following that day’s proceedings, the prosecution learned that Harkleroad was not then a member in good standing and advised the court of its discovery outside the presence of the jury. According to the Notice of Discipline, Harkleroad told the court that he had recently sent a check to pay his Bar dues and that he acquired six hours of continuing legal education credit. The court allowed Harkleroad to leave the courtroom to check on his membership status. When Harkleroad returned, he told the court that he had spoken with a representative of the Bar and had been told that he needed eight hours of continuing legal education credit. The court declared a mistrial in the client’s murder case and filed a grievance against Harkleroad. At that time, Harkleroad needed 18 hours of continuing legal education credit and no check for payment of Bar dues from Harkleroad was ever received by the Bar. Moreover, Harkleroad did not cooperate with the Office of General Counsel’s investigation of this grievance and did not submit a response to the Notice of Investigation. 

(Mike Frisch)

March 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

A Reprimand Is Not Enough

The Georgia Supreme Court rejected  a petition for voluntary discipline of reprimand that was supported by the State Bar

In his petition, Palazzola, who has been a member of the Bar since 1999, admits that he promised his former associate attorneys and grievants in this matter as part of their compensation an IRA plan in which his firm would matchtheir contributions up to a certain percentage of salary; that he caused their
contributions to be withheld from their salaries; that for each pay period, he received from the payroll service he used for his firm a check that included the amount of the grievants’ IRA withholdings; that he did not establish an IRA plan during the grievants’ employment and did not pay the withheld earnings or
matching contributions to an IRA plan; that instead the withheld money was placed into a non-interest-bearing law firm account; that near the end of their employment, in or around October 2012, the grievants filed a complaint against him with the United States Department of Labor, which during the course of its investigation established the amount he owed to the grievants, including interest; and that in 2014, he paid each grievant the full respective amount owed to her, including interest. Palazzola admits that he violated Rule 8.4 (a) (4) through this conduct.

Next, Palazzola admits that he paid for weekly Spanish-language print advertisements for his firm in the publication Mundo Hispanico for various periods in 2011, 2012, and 2013; that each of the advertisements included the same photograph of five individuals, one of which was him; that he knew one or more of the individuals in the photograph was not a member of or employed by his firm; that the advertisements included, as translated into English, the statement, “More than 100 years of experience in the following legal areas:” followed by a listing of approximately seventeen areas of practice; that in 2012 he had approximately 13 years of experience as a licensed, practicing lawyer, one of his associates had approximately 1 year of experience, and the other associate had approximately 4 years of experience; that at the time the advertisements were published, he knew that his attorney employees and he had no more than 18 years of combined experience in any practice area and that the statement of 100 years of experience was false as to each practice area and all practice areas combined; and that one of the advertisements indicated that his law firm had offices in Atlanta, Miami, and Los Angeles when he did not have an office in Miami or Los Angeles but instead had an of-counsel relationship with a firm not named in the advertisement and that unnamed firm had of counsel relationships with a firm in each of those cities. He admits that he violated Rules 7.1 (a) (1) and (b) by causing advertising to be published that he knew at the time contained material misrepresentations of fact and/or omissions of fact necessary to make the statements considered as a whole not materially misleading; that he violated Rule 7.1 (a) (2) because the disparity between the advertised and actual experience of the lawyers in his firm was so extreme that the stated experience was likely to create an unjustified expectation about the results his firm could achieve; and that he violated Rule 8.4 (a) (4) because each instance of false and misleading advertising constituted professional conduct involving dishonesty, fraud, deceit, and misrepresentation.

Palazzola further admits that his attorney employees mailed written notifications of their departure to the clients they had been representing; that one such client did not receive the notification and contacted Palazzola’s office on more than one occasion asking to speak to one of Palazzola’s associate attorneys; that Palazzola’s staff initially did not tell the client that the associate attorney had left the firm; that when his staff did tell the client that the attorney had left, they told him that her new address and phone number could not be provided despite knowing that information; that the client later terminated Palazzola’s representation and returned to his former associate attorney for representation; that Palazzola and his staff knew that another client had chosen to continue representation with the associate attorney after her departure, and thereafter, although the associate attorney had notified United States Citizenship and Immigration Services (“USCIS”) of her change of address, USCIS sent official documents in one of the client’s cases to her at Palazzola’s office; and that Palazzola’s staff opened the envelope and returned the documents to the USCIS without notifying the client or attorney. Palazzola admits that he violated Rule 5.3 by failing to make reasonable efforts to ensure that his nonlawyer staff conducted themselves in a manner compatible with his professional obligations, resulting in the failure of his office to provide complete and accurate information about the former associate attorney to the client and resulting in official USCIS correspondence concerning the client being returned to USCIS instead of being forwarded to the client’s attorney. Moreover, he admits that in the case of the other client, he failed for a period of weeks to forward his file to his former associate attorney as she requested and thereby violated Rule 1.16.

Despite mitigation

we reject the petition for voluntary discipline and conclude that a reprimand is inadequate under these circumstances, particularly given the number of Rules violations.

(Mike Frisch)

March 20, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, March 19, 2017

Lipshaw's book on legal reasoning--and beyond--is now published

We are pleased to announce good news about our founding co-editor Jeff Lipshaw: Routledge has just published his book Beyond Legal Reasoning: A Critique of Pure Lawyering. It takes on the cramped view of lawyering and legal argumentation that is traditionally taught in law school, especially in 1L classes. The publisher writes:

This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal I15858v3-jeffrey-lipshaw-58a79753a19fetheory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

Keep an eye on his SSRN author page, as he will soon post the Preface as an excerpt. And from the press's bio page, we learn that his middle name is Marc. Congrats, Jeff! [Alan Childress]

March 19, 2017 in Abstracts Highlights - Academic Articles on the Legal Profession, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0)

Opiate-Addicted Attorney Who Stole From Firm Gets No Mitigation

The Louisiana Attorney Disciplinary Board has recommended disbarment of an attorney who admitted he stole nearly $40,000 from his law firm, rejecting his claimed and proven opiate addiction and subsequent recovery as mitigation.

The stipulated facts...stated that Respondent’s conduct violated Rules 8.4(a), (b), and (c). Respondent admitted to taking the funds from his law firm. None of the funds were taken from individual clients and Respondent has reimbursed the firm for all funds he converted. Respondent used the money to support his drug addiction. Respondent voluntarily enrolled in and successfully completed Palmetto Addition Recovery Center for a 90-day rehabilitation program and entered into a five-year contract with JLAP. The parties stipulated to the existence of two aggravating factors: a pattern of misconduct and multiple offenses. They also stipulated to five mitigating factors: absence of a prior disciplinary record, personal or emotional problems, timely good faith effort to make restitution or rectify the consequences of misconduct, full and free disclosure to the disciplinary board or cooperative attitude towards the proceedings, and remorse.

From the Hearing Committee

The evidence presented to the committee establishes that Respondent was addicted to opioid medication, has been sober since June 2015, and is well equipped with the tools needed to manage his sobriety moving forward. The committee was impressed by the friends and family members who testified on Respondent’s behalf, and is confident that Respondent has the support structure in place around him to help maintain his sobriety.

All of the evidence presented to this committee was that, prior to developing a severe opioid addiction in late 2012, at age 32, Respondent was respected for his character, integrity and professional skills. There was no evidence presented that, prior to developing the opioid addiction, Respondent had any previous substance abuse or addiction problems.

The fighting issue was whether the addiction caused the misconduct

The Respondent challenges the Committee’s conclusion that the evidence was not sufficient to prove a causal connection between Respondent’s misconduct and his addiction, which was based in part on the lack of expert testimony. In its brief to the Board, ODC acknowledged that expert evidence of a causal connection was presented. The Board accepts this stipulation, and finds that the Committee erred in finding there was no expert testimony regarding the causal connection between Respondent’s misconduct and his addiction. Whether the expert testimony combined with the testimony of friends and family constitutes sufficient evidence is addressed below in the context of the sanction recommendation...

The weight to be afforded this [causation] element depends on whether the addiction was the sole, principle, or substantial contributing cause of the misconduct. Unfortunately, the record testimony was not specific enough for that distinction to be made, and there was evidence of other financial issues that could have contributed and evidence that the first act of misconduct occurred before the addiction became full blown. But, even assuming “very great weight” should be given to the addiction as a mitigating factor, we agree with the Hearing Committee that the aggravating factors carry as much weight as the mitigating factors and a downward deviation from the baseline sanction of disbarment is not warranted...

Here, while Respondent’s misconduct appears most similar to that in Kelly, there are certain factors present in this matter that suggest a three-year suspension is unduly lenient. First, as in Kelly, the scale of Respondent’s theft from his firm was significant. He stole nearly $40,000 over a significant period of time until he was caught. Second, Respondent perpetrated the theft by sophisticated and deliberate means, including creating fraudulent invoices, which is similar to the misconduct in Bernstein. Third, Respondent delayed nine months in seeking treatment for his addiction. He was fired in August of 2014 and consented to interim suspension in October of 2014 but did not enter treatment at Palmetto until June of 2015. Respondent’s apparent reluctance to seek treatment for his addiction, at least initially, gives the Board concern and results in a shorter period of proven sobriety on which to rely. Fourth, and most significant, the first theft from the firm occurred in November of 2012. See ODC Exhibit 5, Bates 16. However, Respondent testified the pain pills did not have a different effect on him (i.e. pleasurable effect) until the end of December in 2012, suggesting the first act of misconduct predates full blown addiction. Hearing Transcript, pp. 221-222. Based upon these facts, the Board finds that a downward deviation from the baseline sanction of disbarment is not warranted.

Whether a condition "caused" misconduct such that recovery merits a lesser (often stayed) sanction is probably the most challenging issue in these disability/addiction mitigation cases.

Usually, the support of and testimony from the bar's lawyer counselling program establishes the causation element. This matter is unusual because the hearing committee and board found that support insufficient to avoid disbarment

ODC acknowledged that expert testimony was presented. J.E. “Buddy” Stockwell, III, the Executive Director of LAP testified to the seriousness of an opioid addition: “[L]ook, these drugs are serious. People will do things to get these drugs that you would not expect from anyone else. Trust me, that’s not who they are. It’s not who they want to be. It’s not a character issue … the person’s brain has just been highjacked.” Hearing Committee Transcript, p. 57. Additionally, Jay Weiss, M.D., the medical director at Palmetto Addiction Recovery Center where Respondent was treated, testified: “I understand there was some such behavior within the context [of] the law practice. I blame the drugs for that.” Hearing Committee Transcript, p. 90. Dr. Weiss further testified that “opiates can impair your judgment very badly. My thinking would be that was the case with [Respondent] because he was in the throws [sic] of the opiate addiction when [the misconduct] was happening.” Hearing Committee Transcript, p. 112. The Board finds that the expert testimony, along with the testimony of family and friends, constitutes sufficient evidence of causation to satisfy the second factor.

The weight to be afforded this element depends on whether the addiction was the sole, principle, or substantial contributing cause of the misconduct. Unfortunately, the record testimony was not specific enough for that distinction to be made, and there was evidence of other financial issues that could have contributed and evidence that the first act of misconduct occurred before the addiction became full blown. But, even assuming “very great weight” should be given to the addiction as a mitigating factor, we agree with the Hearing Committee that the aggravating factors carry as much weight as the mitigating factors and a downward deviation from the baseline sanction of disbarment is not warranted.

In D.C., the attorney seeking mitigation must establish that the condition is the "but for" cause of the misconduct.

My erstwhile colleague Julia Porter prevailed in defeating a mitigation claim based on the attorney's bipolar disorder where the attorney had executed a sophisticated scheme similar to that here that involved sums far in excess of those at issue here.

There the focus was on future danger

We are not without sympathy for Mr. Appler; at least for the time being, his bipolar condition will prevent him from continuing to practice law. But respondent is not being disbarred because he suffers from bipolar illness; he is being disbarred because that illness caused him to commit serious, damaging crimes in the past, and we are not convinced that it will not likely cause him to commit similar crimes in the future. Therefore, even though our purpose is not to punish, we, unfortunately, cannot put our sympathies for an attorney's medical condition above the interests of the public at large.

(Mike Frisch)

March 19, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, March 18, 2017

Interim Suspension For Murder Conviction

A notice of recent discipline from the web page of the Texas State Bar

On January 12, 2017, the Board of Disciplinary Appeals signed an agreed interlocutory order of suspension against Greenville attorney Royal Mullins [#14657750], 64. On May 4, 2016, Mullins was found guilty of murder, an intentional crime as defined in the Texas Rules of Disciplinary Procedure, in the case styled, The State of Texas v. Royal Lynn Mullins, Cause No. 30544 in the 196th Judicial District Court of Hunt County. Mullins was sentenced to 60 years in prison and ordered to pay a fine in the amount of $10,000 and court costs of $266.25. Mullins has appealed his criminal conviction. The board retains jurisdiction to enter a final judgment when the criminal appeal is final. BODA Cause No. 58339.

The Herald Banner reported on the crime in May 2016

A local attorney and former sheriff’s investigator and prosecutor was found guilty Tuesday of murder in connection with a 2014 shooting death in Greenville.

A jury in the 196th District Court deliberated for about an hour before returning with the guilty verdict against Royal Lynn Mullins, involving the death of Curtis “Topper” Gray. A sentencing hearing was recessed until Wednesday morning to allow the panel to continue deliberations on the punishment Mullins, 63, will receive.

 Mullins was returned to the custody of the Hunt County Detention Center following his conviction.

Tuesday began with both the prosecution and defense attorneys resting their cases. Closing arguments began at noon, with Visiting Judge Jane Roden presenting the jury with the charge that included language covering the conditions under which murder could be considered justified, such as in the self-defense of oneself or others.

Testimony during the trial revealed Mullins was called to a residence in the 3800 block of Spencer Street in Greenville early on the morning of July 30, 2014, where two women inside the home had indicated Gray had become belligerent refused to leave. After entering the home, Mullins shot Gray as many as 11 times with a 9mm pistol, including once in the top of the head.

Defense attorney Frank Long told the jury Mullins was acting to protect the two women and himself in firing the shots.

“Every murder is a tragedy, but in this case Royal Mullins had reason,” Long said. “You would have hoped someone had done it for you.”

Long said Mullins was justified in the shooting under the “castle doctrine” of the law.

“He acted responsibly, he acted correctly and he acted within the law,” Long said.

Rockwall County First Assistant District Attorney Damita Sangermano argued that Mullins was not acting to protect the two women, who were already out of the house before the shooting began.

Sangermano also rejected Mullins’ claims to investigators that Gray kept advancing toward him after being shot, noting seven of the 11 wounds reflected the shots were fired from above Gray.

“At some point, Curtis Gray Sr. ceased to be a threat,” she said.

Sangermano again referred to Mullins’ interview in which he said Gray was crawling toward him and then “jerking” before he stopped shooting.

“He’s just shot him in the spine,” Sangermano said. “He’s jerking and that’s when he shot him in the head.”

Sangermano said the previous night, Mullins had sought out Gray, carrying two loaded handguns, and according to a text message was planning to “deliver a 9mm protective order” to the victim.

 

“This man chose that night to be the judge, jury and executioner,” Sangermano said.

The jury received the case at 1:25 p.m. and returned from deliberations at around 2:30 p.m. Tuesday.

During the start of the punishment phase of the trial, Gray’s sister Deborah Gray said the shooting had impacted the entire family.

“Mentally, emotionally, it has been overwhelming,” she said. “He did not deserve to be murdered like he was.”

Long called Hunt County Court at Law No. 2 Judge F. Duncan Thomas, who said he had known Mullins for approximately 40 years, from when Thomas was an assistant county attorney and Mullins was a deputy and then an investigator for the Hunt County Sheriff’s Office.

When he was elected as Hunt County District Attorney, Thomas hired Mullins, who had just graduated law school, as an assistant district attorney.

Thomas said he had never known Mullins to be a violent person and always believed he tried to help people.

The jury received the case to begin considering the sentence in the case, which could range from five to 99 years to life in prison. If the sentence is less than 10 years, Mullins has requested probation as he has never before been convicted of a felony.

(Mike Frisch)

March 18, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, March 17, 2017

The Gold Medalist Gets Disbarred

The Law Society of Alberta Hearing Committee has disbarred an attorney for misconduct described in its earlier findings

 Mr. Beaver graduated from the University of Alberta Law School in 1993 as the gold medalist in his class.  He articled at a leading criminal law firm in Edmonton and then stayed to practice for approximately 10 years. He and some associates from that firm left to form their own firm. They took with them a paralegal, J.B., who figured prominently in the hearing.

Beaver continued to practice mostly criminal law at the highest level in Edmonton. In addition to his practice, he was a sessional lecturer at the University of Alberta Law School.

Associate lawyers came and went from Mr. Beaver’s firm and from time to time there were  approximately 6 junior and senior associates employed in the practice, plus clerical and paralegal staff.  The practice, according to Mr. Beaver and substantiated by accounting records, was financially and professionally successful. There were name changes, but in 2015 it was called Beaver Leebody and Associates. The Committee will refer to Mr. Beaver’s firm as “the firm” or “BLA” throughout this report.

But

The operation of the BLA practice was not modest in its financial expenditure.  The members of the firm would often have meals or drinks together at the firm’s expense and there was evidence of a firm-sponsored trip to an all-inclusive holiday resort.  While the expenditures could not be described as exorbitant, they certainly contributed to the financial outlays of the BLA practice which, as noted, were completely controlled and monitored by Mr. Beaver.

The accounting records of the firm show expenses for some luxury goods being passed through to the firm by way of firm credit cards (for example, trips, airfare, jewelry, personal furniture and other personal expenses). This may not be unusual or improper as long as it was properly accounted for, and credited appropriately to firm expense and personal draws. Most importantly, there must be actual profit from the firm to pay for such expenses, which there was not.

The Globe & Mail told the story of a fall from grace

By May of 2015, it seemed like he had it all. He was, at 46, an accomplished lawyer who headed his own busy firm in downtown Edmonton, a hip space with exposed brick walls and modern furniture. It was in Beaver House, a historic building that happened to share his name, and which, when the space came open, seemed almost like fate. He worked with an impressive cadre of lawyers who believed deeply in the work and were arguing important cases at all levels of court. He taught criminal-trial procedure, evidence, and advanced criminal evidence, a class he developed, at the University of Alberta. He was social and generous, and some friends and colleagues thought of him as a legal genius. But at the same time, what he had built was on the brink of collapse.

In fact, there had been growing concern about Mr. Beaver within his firm for some time.

He’d been around the office far less, coming in late and some days not at all. He’d left his common-law wife (who had been a lawyer at the firm until her stroke) for another woman the previous summer, and his new girlfriend had become a fixture at the office, and at university and legal events.

There were questions about his behaviour and judgment, fuelled by his relationship with the much younger woman who went by the nickname Sugar Lips, and by their gushing social-media posts and unabashed displays of public affection.

There had been sexual behaviour between them in the office that some of his colleagues felt was inappropriate, and the tattoos he got for her – a large portrait of her on his arm, a series of words inked onto his chest – became common knowledge. From lovers’ tiffs to lustful displays of affection, their romance played out openly at legal functions and on social media as the staid legal community looked on in wonder.

They married in April, 2015. A month later, their baby was born. There were serious complications at the end of the pregnancy, and with Mr. Beaver spending his days at the hospital, problems that had been simmering at the firm finally rose to a head.

On a Sunday in late May, 2015, the same day Mr. Beaver’s wife and newborn were discharged from hospital, two lawyers from the firm met with his assistant, Jackie Bawol, to talk about a possible intervention. The lawyers were increasingly concerned about Mr. Beaver’s behaviour and about the stress it appeared to be putting on Ms. Bawol, who was crying at work and seemed almost on the verge of a breakdown.

At a meeting in her backyard, Ms. Bawol revealed the problems were beyond what they imagined. Sobbing and nearly hysterical, she said cheques had been bouncing, and there wasn’t enough money to pay the firm’s wages and bills at the end of the month. She said Mr. Beaver had been taking money from the firm’s trust fund for months. There was no money left.

That night, three lawyers from the firm called Mr. Beaver to a meeting in the office boardroom and angrily confronted him with the allegations he had drained the trust fund. He didn’t deny it.

From the sanction order

The facts disclose a significant misappropriation, arguably amongst the most serious. The Committee found that:

  •    Mr. Beaver misappropriated from his clients’ funds, both within and outside of his firm’s trust accounts, a substantial amount of money, over $300,000.
  •    The misappropriations were more than a technical misappropriation as they included the use of funds for Mr. Beaver’s personal benefit.
  •    The misappropriations continued for a substantial period of time.
  •    The misappropriations were covered up in Mr. Beaver’s trust account by fictional accounting entries.
  •    The covering up, together with acknowledgements made to Mr. Beaver’s paralegal, indicated dishonest intent and the knowledge of the dishonesty.
  •    The targets of the misappropriations included clients of Mr. Beaver, his associates and staff.
  •    The targets of the misappropriations included particularly vulnerable people, including disabled people and children.
  •    Mr. Beaver only self-reported after being confronted by his associates.
  •    A failure to act with integrity was common throughout the combined citations...

The Committee does not accept that misappropriations of this magnitude are mitigated by an otherwise unblemished 20 year career.  Indeed a 20 year career of practicing at a high level could just as properly lead to a conclusion that Mr. Beaver, of all practitioners, ought to have known how far he had strayed.  The central importance of integrity in the profession, the necessity for propriety and an accurate set of books when dealing with other people’s money, and the requirement of compliance with trust accounting rules is no secret.  The concepts are routinely taught at law schools, form part of the bar admission process, and are central in every iteration of the evolving Code of Conduct. Lawyers who misappropriate are regularly disciplined and the results of those hearings and sanctions are publicly available.

The fact that the misconduct was confined to one year is not seen in this case to be mitigating either.  Any period of misappropriation ends with being caught, in this case by being forced into self-reporting by his associates.  Mr. Beaver’s declarations to his paralegal and his associates before the reporting lead to a conclusion that he would have continued the behaviour if he could have found a way to replenish the trust accounts sufficiently to make it another month or months.

The misappropriations did occur at a time of personal high stress for Mr. Beaver, a perfect storm of financial, personal and medical issues. The Committee members can be personally empathetic for this difficult time.  But the stressors of Mr. Beaver’s years of 2014 and 2015, downturns in the financial success of a practice, marital breakup and re-partnering, and the mortality of a loved family member are all part of the predictable demographic transitions of a modern long life.  These transitions must be managed by us all with a view to fulfilling our obligations of integrity, notwithstanding the sometimes difficult reality of a horrible year (“…to the ends of the earth…. “as per Bolton).

Beaver did make a self-report (albeit after his associates forced the issue), gave several long and detailed statements to Law Society investigators, admitted some responsibilities in the Agreed Statement and generally accepted facts and responsibility in his testimony before the Committee in a forthright and non-evasive way.  Further, Mr. Beaver gave a comprehensive statement of apology in the submission phase of the sanctioning hearing. 

 The Committee considers Mr. Beaver’s acceptance of underlying facts and responsibility as adequate under the circumstances, but certainly less than enthusiastic.  Mr. Beaver did make some admissions of fact and responsibility in the Agreed Statement but they were economical.  The Committee accepts without reservation that Mr. Beaver has the right to put the Law Society to the proof of its case and finds no particular fault with his handling of the investigation and hearing. In the end, the reporting and conduct of these matters is a neutral factor in the Committee’s considerations, neither aggravating nor mitigating.

 The offer for future restitution seemed on its face a genuine offer, although no restitution had been yet made.  The Committee finds the lack of present restitution and offer of potential future restitution to be similarly neutral.

A well written and thought out analysis of the situation.

My recent exposure to Canadian disciplinary cases persuades me that we in the U.S. could learn from the measured and professional approach of the hearing panels. (Mike Frisch)

March 17, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, March 16, 2017

Thieving Client Gets Attorney's License Revoked

The Hearing Division Tribunal of the Law Society of Upper Canada revoked an attorney's license for criminal conduct that facilitated her client's multi-million dollar thefts.

David A. Wright (for the panel):– The Lawyer, Meerai Cho, was entrusted with the deposit money of over 140 condominium purchasers for units in a new building. The law required her to hold that money and not to release it except in specific circumstances. Contrary to the law, she released $13 million of purchasers’ money to the developer, her client, who stole it and appears to have taken it out of the country. Construction on the building never started.

Ms. Cho pled guilty to the criminal offence of breach of trust and is now in jail, sentenced to three and half years in federal penitentiary. Her plea to this offence means she has admitted that she had intent: in other words, that she either knew, was reckless, or was wilfully blind to the fact that she was participating in a fraud.

Today is about the consequences for Ms. Cho’s legal career. We find that her actions were professional misconduct: she knowingly participated in fraud and did not meet the standard of a reasonably competent lawyer. We order that her licence be revoked, effective immediately. That is the only appropriate penalty. Our reasons follow.

We want to start by talking about the victims. With Ms. Cho’s help, the developer, Yo Sup (Joseph) Lee, stole deposits they had paid for units in a condominium building that was to be built on Yonge Street in Toronto. The amounts taken from individuals range from just under $20,000 to nearly $400,000. Most people lost between $50,000 and $100,000.

Who are these people? Most are immigrants, largely from the Asian-Canadian community. Some were buying homes for their families, others were investing. Some were starting lives in Canada, some were starting families. Some were trying to start businesses in commercial parts of the building. All lost their hard-earned money. Their victim impact statements describe the consequences of the fraud, including significant personal trauma, impacts on lives and finances, and on their confidence in Canadian institutions and the legal profession.

Many of them are here today. We want to say to them that we recognize the pain they have experienced and continue to experience, and also that we know their journey with the Law Society is not over yet as the question of payment from the Law Society’s compensation fund still needs to be considered by the relevant committee. We have had you foremost in mind as we considered the appropriate findings and penalty for Ms. Cho.

Sanction

We recognize that Ms. Cho did not benefit from the fraud personally. She sent the money to Mr. Lee. It appears that her misconduct stemmed from her naïveté and her belief that he would give the money back and she would help save the project. We also recognize that she has paid a heavy price: financially by trying to help repay the money and having her assets garnished, by going to jail and in terms of her health. We acknowledge her contributions to the community, her spirituality and that she has no discipline history as a lawyer. The character letters filed speak well of the rest of her career and her personal life.

We also recognize that she has co-operated in this process and in the criminal process. She pled guilty. Here, while she did not admit misconduct, she did not oppose a finding and she and her counsel helped this matter come forward very quickly after the criminal proceedings. This is all to her credit.

 She argues that she should get the second most serious penalty: termination of her licence through permission to surrender, rather than revocation. Despite Mr. Trudell’s strong submissions, in our, view revocation is absolutely necessary...

Lawyers and paralegals have a privilege that others do not have – that is the essence of being a regulated professional. We are required to uphold the public trust and have an obligation to do so at all costs. A transgression as serious as this – no matter what the person’s record, remorse, or standing in the community – generally leads to revocation of one’s licence. This is needed to maintain confidence in the profession and for the protection of the public.

And

Our Order will also provide that the Lawyer must repay the Compensation Fund for any amounts it pays up to the $9.7 million set out in the agreed statement of facts in the criminal matter. We recognize that it is unlikely Ms. Cho will be able to pay all this money. If the victims are compensated from this Fund, which is paid into by the Law Society’s licensees, Ms. Cho should be ordered to replenish it to the extent possible, given what could be a significant payout.

thestar.com reported on the criminal case. (Mike Frisch)

March 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Cross To Bear Disbarment

The District of Columbia Court of Appeals concluded that an attorney's video voyeurism was a crime of moral turpitude requiring disbarment.

Respondent Kelly A. Cross pleaded guilty in 2009 to one count of misdemeanor video voyeurism in violation of D.C. Code § 22-3531 (c) (2012 Repl.), after he secretly taped a man who was undressing in the locker room of a gym. The Board on Professional Responsibility (“the Board”) determined that Mr. Cross had committed a crime of moral turpitude on the facts. The Board also found that Mr. Cross had violated Rules 8.4 (b) and 8.4 (c) of the District of Columbia Rules of Professional Conduct. It recommends that Mr. Cross be disbarred pursuant to D.C. Code § 11-2503 (a) (2012 Repl.), which requires disbarment when a member of the Bar is convicted of a crime involving moral turpitude.

The attorney did not file exceptions to the report of the Board on Professional Responsibility that had recommended the finding and sanction.

We covered the hearing committee report's contrary conclusion.

The incident that led to the conviction occurred at a Washington sports club (named Washington Sports Club) on August 19, 2009. 

The attorney, who was employed with the Freshfields law firm, had recently returned from a two-year stint in Germany. He was two days away from a scheduled civil union with his longtime partner.

He testified before the committee that he went on Craigslist that morning to identify a gym where he might find a same-sex encounter.

He further testified that he responded to several people. including someone who described himself as "a well -endowed bear who was interested in showing off in the SSS [shower, sauna, stall]."

He brought a video camera with him that he concealed in a toiletries bag. 

He described his intent was to have a "last fling here at the gym and wouldn't it be nice to record some of [it]."

The ensuing encounter was with a person that the attorney  claimed to mistakenly have believed might be the aforesaid bear.

Rather, the victim/complainant was an attorney - a former Boston police officer and Assistant DA who was in private practice after a stint with the D.C. Attorney General 's Office.

He was looking to exercise and use the bathroom, nothing more. 

The attorney took surreptitious video of the victim's buttocks and genital area. He then attempted to take video from one bathroom stall of the victim in the adjacent stall and was discovered. 

Chaos and an arrest followed. 

The complainant and the attorney provided conflicting versions of what happened in the stalls.

The committee believed the complainant and found that (i) the Craigslist/bear story was false and (ii) he had assaulted the complainant in the chaos.

Finding that the crime did not rise to the level of moral turpitude

...in today's world, a camera can be expected to be anywhere, including gyms like WSC, which are forced to post signs stating that video cameras are prohibited in the locker room. While this technological reality does not excuse Respondent's conduct, it properly frames the [moral turpitude] question...

The  committee's sanction recommendation was heavily influenced by its finding that the attorney gave knowing false testimony in the disciplinary proceeding.

Note that the court decided the matter 10 days after it was submitted but that it still took the disciplinary system nearly eight years to resolve the case. (Mike Frisch)

March 16, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, March 15, 2017

Communications "Too Offensive To Repeat In This Opinion" Draw Permanent Disbarment In Louisiana

The Louisiana Supreme Court has permanently disbarred an attorney for misconduct in a host of matters including litigation related to Hurricane Katrina.

His conduct drew complaints from federal judges and criminal charges based on an email he sent to a bankruptcy court.

The criminal charges were dismissed.

When the bar investigated the complaints and federal court sanctions

On March 27, 2009, respondent sent an e-mail to DCAH [Disciplinary Counsel Ad Hoc] in which he had attached a copy of a civil rights lawsuit filed against Chief Disciplinary Counsel Charles Plattsmier, thereby threatening similar frivolous lawsuits against DCAH. This e-mail also contained racial slurs and other obscenities.

On March 30, 2009, respondent confirmed his receipt by mail of the court’s order of interim suspension by replying to the court’s Chief Deputy Clerk, and copying DCAH, that the Court was a “bunch of pigs” and “gutless dogs,” and referred to then-Chief Justice Kimball with a sexual and offensive nickname.

On April 8, 2009, respondent sent an e-mail to DCAH denying the use of racially disparaging terms, yet including such terms along with other offensive terms, in this e-mail. Later the same day, he notified DCAH that he was a “pimp,” a “puppet,” an “Uncle Tom,” and an “OREO.”

On April 14, 2009, respondent sent an e-mail to DCAH with only a subject line using the same objectionable terms. Later the same day, respondent notified DCAH by e-mail that “I Just Can’t Help Myself” and then launched into a string of racially offensive and obscene terms.

On April 15, 2009, respondent advised by e-mail sent to DCAH that he had developed yet another nickname for him. This nickname was intended to be equally offensive. Later that same day, respondent offered by e-mail to substitute a new offensive nickname for the prior offensive nickname. On April 26, 2009, respondent e-mailed DCAH and used a string of racially offensive and obscene terms to communicate his message.

On April 27, 2009, respondent threatened by e-mail a frivolous civil rights complaint against DCAH and suggested that counsel examine similar pleadings respondent had already filed. He also referred to opposing counsel in these other proceedings as “scum” and “vermin.”

On April 28, 2009, respondent threatened and advised DCAH via e-mail of the frivolous claims respondent would seek, including criminal sanctions for “misprision of a felony and accessory-after-the-fact.” This e-mail also contained racial and other derogatory terms for DCAH, Justice Kimball, and Mr. Plattsmier.

On July 9, 2009, respondent sent an e-mail to DCAH to advise that he had been thinking about him and about a “new one” for him. He then continued with a racially offensive and crude message.

The pattern continued from there.

The court

Instead of addressing what forms the basis of these formal charges – respondent’s conduct during the Katrina litigation and his conduct during the disciplinary proceeding at hand – respondent instead has focused primarily on what he believes to be a conspiracy theory surrounding his arrest on September 20, 2005 and the “secret representation of the State” by Calvin Fayard and others in the Katrina litigation for an undetermined period of time prior to August 27, 2007.

 Despite being disbarred from practicing in federal court and subsequently interimly suspended from the practice of law by the Louisiana Supreme Court, respondent failed to change his unprofessional behavior before the hearing committee...

As previously noted, leading up to, during, and since his disbarment from practice in federal court, respondent repeatedly ignored court orders and admonitions by filing unsupported and duplicative pleadings, using offensive and abusive language. He challenged the authority, competency, and integrity of the federal court, stating that the court’s actions were “disingenuous” and done for an “illicit” purpose. Respondent filed the previously mentioned “declaration” stating that an issue was “none of the court’s business.” He made unsupported and inflammatory allegations regarding the conduct of other attorneys, using terms such as “corrupt,” “anointed,” and “sleeping with the devil.” Indeed, he openly stated his contempt for the federal court and declared that he had no intention of ever complying with its order of suspension, and set about on a course of ever increasing defiance and lack of respect for the orderly administration of justice. Respondent continued to willfully violate the en banc order and the Rules of Professional Conduct by sending documents to the federal court without satisfying the conditions of the order. Then, on July 27, 2009, respondent hand delivered to the federal court the previously mentioned letter addressed to Judge Lemelle containing profanity and an outrageous racial slur, which led to the issuance of the order barring his access to the federal courthouse...

Respondent clearly engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation by his unrelenting misuse and abuse of the legal system, filing frivolous pleadings containing unsupported and inflammatory allegations, misrepresenting the conduct of opposing counsel, using offensive, racist, and vulgar language, and impugning the integrity of the judiciary and disciplinary authorities. Respondent acted with deceit when he sought to mislead the federal court by using his cousin’s name as a ploy so that he could continue to file pleadings after he had been disbarred from practice in the Eastern District and after he had been placed on interim suspension by this court. He hurled threats of civil, criminal, and disciplinary proceedings at judges, opposing counsel, and disciplinary authorities. 

The final word

Respondent’s shocking disregard for his obligations as a member of the bar of this state demonstrate why he must forfeit any right to ever return to practice. The record is replete with respondent’s vile and racially-derogatory communications (many of which are too offensive to repeat in this opinion) made to members of the judiciary and the bar. He has filed unsupported and duplicative pleadings, using offensive and abusive language, and has made baseless challenges to the authority, competency, and integrity of the federal court. Respondent has consistently refused to make any significant attempt to acknowledge the wrongful nature of his acts, and he continues to portray himself as the “victim” in these proceedings.

We have often pointed out we do not impose permanent disbarment lightly. See In re: Morphis, 01-2803 (La.12/4/02), 831 So. 2d 934. Rather, permanent disbarment is reserved for those cases where the attorney’s conduct convincingly demonstrates that he or she does not possess the requisite moral fitness to practice law in this state. In re: Petal, 10-0080 (La.3/26/10), 30 So. 3d 728; In re: Muhammad, 08-2769 (La.3/4/09), 3 So. 3d 458. Even a cursory glance at the record of these proceedings indicates respondent, through his own words and actions, has demonstrated with perfect clarity that he does not have the moral fitness to exercise the privilege of practicing law in this state. In order to protect the public and maintain the high standards of the legal profession in this state, respondent must be permanently disbarred.

(Mike Frisch)

March 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Unbundled CLE Falsehoods Get Lawyer Suspended Twice

A reciprocal suspension of one year has been imposed by the New York Appellate Division for the Second Judicial Department for misconduct found in Oregon

The underlying facts, as set forth in the Oregon Supreme Court's opinion and order, briefly summarized, are as follows: The respondent was required to complete 45 hours of continuing legal education (hereinafter CLE) courses, a mandatory requirement, for the 2009 to 2011 reporting period. On April 11, 2012, at approximately 10:51 a.m. PST, the respondent purchased a set of CLE courses ("Specialty Oregon Bundle") from Lawline, Inc. On April 13, 2012, at approximately 11:14 a.m. PST, the respondent submitted to the Oregon Bar an MCLE compliance report, in which he certified that he had completed his MCLE requirements. The compliance report listed all the courses the respondent purchased, and indicated that he completed them on the same date, April 12, 2012. On April 13, 2012, at 3:54 p.m. PST, the MCLE administrator for the Oregon Bar contacted the respondent and inquired how he watched/listened to 48 hours of CLE courses in one day, as indicated in his compliance report, asking him, "How did you do that?" The respondent responded to the inquiry by providing copies of his CLE completion certificates. As these certificates were printed within a 7-hour period, the administrator asked the respondent how he completed 48 hours of CLE courses in fewer than 7 hours. The respondent replied that he actually started viewing/listening on April 11, 2012.

The matter was referred to Chris Mullmann, the Assistant General Counsel of the Oregon Bar, who contacted the respondent and asked for an account of what occurred. The respondent responded that he actually began the courses on April 11, 2012, and finished them on April 12, 2012. Unsatisfied with the respondent's response, Martha Hicks, Assistant Disciplinary Counsel, wrote to the respondent and advised him that the compliance report he submitted raised concerns about his conduct and potentially implicated provisions of Oregon RPC 8.4(a)(3). The respondent was asked to provide additional information to corroborate his account. In an affidavit submitted to Hicks, the respondent stated that he completed the entire bundle of courses "either late on April 12, 2012 or at some point early on April 13, 2012." During a telephonic deposition, the respondent stated, "I did finish on the 12th, and I turned [the compliance report] in on the 13th. So that for sure is true." Subsequently during his deposition, the respondent backtracked and stated that he may have completed some courses on April 13, 2012.

A trial was held on January 22, 2015. The respondent testified that he took the courses on April 11, 2012, and April 12, 2012, although later in his testimony he stated, for the first time, that he may have begun taking the courses as early as April 10, 2012. When questioned why none of his prior statements mentioned that he began taking the courses on April 10, 2012, the respondent provided answers which the trial panel found to be "evasive, incomplete and/or untruthful."

The trial panel found the respondent's overall testimony lacking in credibility:

"His testimony was inconsistent with his prior writings, including an affidavit he prepared and signed under oath in 2012. The testimony he provided at the hearing was inconsistent with the testimony he previously provided at his deposition in this matter on September 3, 2014, which was also provided under oath. The [respondent] presented facts during his testimony that he had never presented before, notwithstanding having had multiple opportunities to have done so during the course of the [Oregon] Bar's investigation. Put simply, the panel finds that the [respondent's] testimony was untruthful. Lastly, the panel finds that the [respondent] made his misrepresentations knowingly and intentionally. The [respondent] was provided multiple opportunities to explain how he could have possibly fit 48 hours of work into a shorter (and potentially significantly shorter) period of time and each time he failed to do so. It is clear he changed the facts over time, [and] added explanations' when prior ones were not accepted, with each subsequent explanation less plausible than the prior."

The trial panel concluded that the respondent violated his duty to the public and to the legal profession when he intentionally and knowingly misrepresented to both Lawline and the Oregon Bar the fact that he had attended and successfully completed the CLE courses he had purchased.

In determining the sanction to be imposed, the trial panel noted the following aggravating factors: the respondent acted with a selfish motive, never acknowledged the wrongful nature of his conduct, was not candid during the proceedings, and repeatedly made misrepresentations to both Lawline and to the Oregon Bar. While noting that this was the respondent's first disciplinary offense, and the matter involved only misrepresentations about satisfying his CLE obligations, the trial panel found that there were no mitigating factors. Due to the respondent's "repeated pattern of dishonesty, raising extreme concern that the [respondent] would engage in similar conduct in the future," the trial panel imposed a one-year suspension from the practice of law.

The attorney did not oppose reciprocal discipline. (Mike Frisch)

March 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Stayed Suspension For "Fundamental" Misunderstanding Of Trust Account Purposes

An attorney who "fundamentally misunderstood" the purpose of an escrow account was sanctioned by the Ohio Supreme Court

During the second investigation, relator discovered that despite relator’s previous warning and Barbera’s membership on the local certified grievance committee, Barbera fundamentally misunderstood the purpose of a client trust account and therefore had misused his. Specifically, Barbera believed that all money coming into his law practice had to be “washed” through his client trust account, so he deposited all the money he received from clients into that account, even money that he had already earned, which resulted in his commingling his earned fees with client funds. In addition, Barbera later admitted that his accounting and recordkeeping practices were “poor and disorganized,” that he had not always performed the required monthly reconciliations of his client trust account, and that because of a computer problem, he had not maintained the records for his client trust account—including individual client ledgers, deposit receipts, canceled checks, and monthly reconciliation ledgers—that the disciplinary rules required him to retain. 

Dan Trevas summarizes the decision 

The Ohio Supreme Court today issued a one-year stayed suspension for a former part-time Medina city prosecutor and placed him on monitored probation.

Richard Barbera of Medina was sanctioned for violating professional conduct rules for Ohio attorneys because he mismanaged his client trust account and failed to cooperate with investigators from the Office of the Disciplinary Counsel. In a unanimous per curiam opinion, the Court found that Barbera did not misappropriate any client money or harm any client. However, he “fundamentally misunderstood” the purpose of client trust account and misused it.

In addition to serving as part-time city prosecutor, Barbera, now a solo attorney, is a former member of the Medina County Bar Association Certified Grievance Committee. The committee is charged with the responsibility of considering complaints about attorneys, according to the bar association.

Barbera Fails to Provide Investigators Information
In 2011, disciplinary counsel was notified by Barbera’s bank that his client trust account was overdrawn. The office notified Barbera of the matter, advised him to comply with the rules, and urged him to cooperate in any future investigation. In 2014, the office received a second notice from Barbera’s bank. Between April and July 2014, disciplinary counsel sent Barbera four letters requesting information about the second overdraft and he failed to respond. A month later, after another letter was sent, Barbera sent a one-page fax to disciplinary counsel indicating he would send his formal response later that evening, but he did not send it.

Disciplinary counsel subpoenaed Barbera for a September deposition, which was cancelled after Barbera said he would promptly provide all requested information. He did not send the information, and nine months later, disciplinary counsel sent another letter to Barbera seeking more documentation. Barbera responded by phone claiming to have “computer issues” and asked to set up a meeting. However, he failed to comply with repeated requests to schedule a meeting.

A deposition was scheduled for September 2015, which was rescheduled to October at Barbera’s request. At the deposition he admitted to mismanaging the account, but did not produce any trust-account records requested by disciplinary counsel.

Disciplinary counsel concluded that despite Barbera’s serving on the certified grievance committee, he did not understand the purpose of the client trust account, which led to him commingling his earned fees from clients with those he had to hold until earned. Barbera later admitted his accounting and recordkeeping were “poor and disorganized,” and he did not retain the financial records that the professional conduct rules require.

The Ohio Board of Professional Conduct found Barbera violated various provisions in the rule regarding the appropriate holding of client property and maintaining financial records. The parties also stipulated that Barbera violated the rules requiring him to cooperate with a disciplinary investigation.

Board Considers Sanction
In developing a recommended sanction, the board considered aggravating circumstances, including Barbera’s engagement in a pattern of misconduct, the multiple offenses, and failure to cooperate. It also considered mitigating factors, including a lack of a selfish or dishonest motive, no prior discipline, and acknowledgment of wrongful nature of his conduct.

The parties also stipulated that Barbera was diagnosed with depression and anxiety-related disorders, but the board noted that he did not see a physician about the conditions until three months before his disciplinary hearing in 2016. He also entered into a contract with the Ohio Lawyers Assistance Program (OLAP) in 2014, but did not attempt to implement treatment recommendations until years later.  The board therefore declined to recognize his mental disorders as a mitigating factor. 

Stayed Suspensions Issued in Similar Cases
In its consideration of the board’s recommendation of a one-year stayed suspension, the Court stated that similar suspensions were issued to three other attorneys who failed to adequately operate their client trust accounts and did not fully cooperate with the investigations. The Court stayed the suspension on the condition that Barbera comply with his OLAP contract, continue therapy, comply with all therapy recommendations, complete three hours of continuing legal education on client trust accounting practices, abide by the trust account rules, submit to one year of monitored probation, and commit no further misconduct.

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

Justice Patrick F. Fischer did not participate.

2016-1159. Disciplinary Counsel v. Barbera, Slip Opinion No. 2017-Ohio-882.

(Mike Frisch)

March 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No "Friends" Exception To Business Transaction Rule

A censure was imposed by the New Jersey Supreme Court for ethical violations in the course of an attorney's dealings with a lifelong friend (Harvey) and his various business ventures.

The story is told in the report of the Disciplinary Review Board.

The attorney made two loans to Harvey but failed to disclose the transactions (and, significantly, the repayment out of proceeds in which another client had an interest) to that client Young.

The attorney represented an entity client Optimal (co-owned equally by Harvey and Young) that was the plaintiff in a lawsuit. He had brought another law firm in to handle the litigation.

The loans were made in the course of the litigation and secured in part by litigation proceeds.

When the litigation settled (for considerably less than expected), the attorney was repaid out of the proceeds. Unbeknownst to the attorney, Harvey sent Young a falsified settlement sheet that concealed purpose of the repayment.

After years of effort to unravel the situation, Young retained a Tennessee lawyer (Canas) who provided the attorney with the false document. 

The loans and fraud by Harvey were thus revealed to Young.

Young filed a civil suit and a bar complaint.

The attorney  denied that the two loans were prohibited business transactions because it was a friendly arrangement with Harvey

At the [District Ethics Committee] hearing, respondent’s counsel argued that the law does not require people to engage in acts that are futile and that, presumably, compliance with the requirements of RPC 1.8 would have been futile because Harvey needed funds to complete his business transactions within three days and would have lost the deal if he sought out another lawyer. Counsel argued further that RPC 1.8 did not specifically refer to loans and that the loans respondent made, therefore, were not prohibited transactions. There was no conflict of interest, no exploitation, and no adversity.

And

Counsel denied that respondent had made misrepresentations to Canas. He contended that respondent’s good character, as reported by his character witnesses, should be considered and should exonerate respondent of any wrongdoing. Counsel further argued that the law permitted an adverse interest to be drawn from Canas’ failure to appear at the DEC hearing.

The DEC found a prohibited business transaction but no violation of Rule 4.1 in the dealings with Canas.

Before the Board

In his brief to us, respondent’s counsel argued that the loans respondent made to Harvey were not within the purview of RPC 1.8 because: (i) the loans were made to a high school friend for whom he performed only isolated and occasional legal services; (2) respondent was not acting as an attorney in matters that related to the loans; (3) there was no real or actual conflict between respondent and Harvey/OI; (4) Harvey solicited the loans and was the borrower, not the lender; (5) the loans were of significant benefit to Harvey/OI and their creditors; (6) there was no adverse or potentially adverse consequence or impact to any client or anyone else; (7) Harvey was a sophisticated businessman; (8) Harvey understood and was familiar with loan transactions; (9) the loans were exigent and, if not consummated, could have resulted in the collapse of OI; (10) Harvey was not the grievant; (Ii) respondent would presumptively have had a greater understanding of the loans and the terms of the notes than a newly engaged attorney; (12) Harvey would not have had sufficient time to seek and consult with a new attorney; and (13) the cost, fees, and expenditures of time for retaining new counsel would have presented an undue burden for Harvey and his business...

In sum, counsel argued that the complaint should be dismissed in its entirety because there are no known cases prohibiting a loan from an attorney to a client; at the time of the loans, respondent was not acting as the attorney for Harvey, who was a personal friend; the borrower was not the grievant; and the loans were beneficial, not adverse.

The arguments were rejected

At the time the loans were made, and as the promissory notes memorialize, the HON litigation was still ongoing. Respondent’s own testimony and the documentation in this case support a finding that he was actively involved in his clients’ representation in that litigation. Not only did he represent Harvey, but he also represented Optimal, in which Harvey and Young were equal partners. Clearly, respondent used his knowledge about the litigation to the disadvantage of his clients when he drafted the promissory notes. He knew that a recovery was anticipated from the litigation and gave himself priority over the distribution of the proceeds...

The note made Young and Optimal, who were not parties to the loans, obligors by requiring that respondent be paid first once the HON litigation was resolved. Respondent, therefore, engaged in multiple conflicts of interest with Harvey, Young, and Optimal.

Agreed. Not sure why there was no Rule 1.7 charge here.

As to the second loan

The second promissory note might be viewed as paving the way for the fraud Harvey perpetrated on Young. Because of Harvey’s obligation under the note, he altered the settlement distribution sheet to give the appearance that the loan he repaid to respondent represented litigation expenses relative to the HON lawsuit. He then reduced the net distribution sum by the amount of that phony litigation expense, which actually represented the amount he had taken to repay the loan. Harvey then convinced Young to allow him to keep the remainder of the settlement proceeds. Young, ignorant of the fact that Harvey had already used $107,000 for his own purposes, acquiesced to Harvey’s entreaties. There is no evidence, however, that respondent was an accomplice to this fraud.

The board found the Rule 4.1 violation as well

Respondent did, however, perpetuate his client’s fraud by his subsequent failure to disclose the actual amount of the HON settlement and by confirming to Canas the accuracy of the description of the line item Harvey inserted as advanced litigation expenses. Respondent’s testimony at the DEC hearing, that Young was "fully aware" of the amount of the actual settlement and that Harvey’s alteration of the document "was the commencement of a negotiation between the two of them [Harvey and Young]," is nothing less than disingenuous. Rather, the statement appears to be either an attempt to mask his client’s fraudulent conduct, or to hide respondent’s own cover-up of that conduct. By his conduct in this respect, respondent clearly violated RPC 4.1(a).

Aptly

Young was the real loser in all of this.

Bottom line

We consider the mitigating factors in this case: respondent’s unblemished ethics history in his twenty years of practicing law and the glowing character testimony and letters from his friends, colleagues, and wife. We also consider the aggravating factors: respondent’s lack of remorse, contrition, or understanding of his violation of the RPCs, and his less than forthright testimony relating to his client’s alteration of the settlement distribution sheet in the HON litigation. Thus, under the totality of the circumstances, we determine that a censure is warranted.

(Mike Frisch)

March 15, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, March 14, 2017

Client Gets No Refund When Attorney Withdraws For Cause

The Tennessee Court of Appeals held that a former client was not entitled to a partial fee refund, reversing the holding of the trial court and allowing the law firm to keep the full retainer.

Xingkui Guo signed a contract, structured as an engagement letter, with the Law Offices of Woods & Woods (“the Firm”), on June 15, 2014, for the Firm to represent him in an ongoing lawsuit against two of his former employees. Allen Woods, an attorney with the Firm, had primary responsibility for Mr. Guo’s case.

The client paid a flat fee of $7,000 and agreed to an additional fee of 1/3 of any amounts recovered in the litigation minus the retainer.

The agreement further provided

The contract further states: “[The Firm] may terminate this representation at any time, for good cause . . . .” Upon signing the engagement letter, Mr. Guo paid the Firm $7,000, and the Firm began its representation of Mr. Guo.

Then

A disagreement arose between Mr. Woods and Mr. Guo beginning in early October 2014. After Mr. Woods conducted phone interviews with two third-party witnesses, he strongly advised Mr. Guo against taking their depositions because he thought their testimony would hurt Mr. Guo’s case and because he thought it would be unethical to depose the witnesses under the circumstances. When Mr. Guo insisted that Mr. Woods depose these two witnesses, Mr. Woods withdrew as Mr. Guo’s attorney

Mr. Guo sued for breach of contract.

The trial court

 Defendant admits that it refused to take the depositions of these witnesses, but states that it refused to take the depositions because to do so would violate Rule of Professional Conduct 1.2(d) and would further the Plaintiff’s ulterior motive to take those depositions for a fraudulent purpose not related to the litigation. The Defendant requests that the Court rule it is entitled to the entirety of the $7,000.00 fee the Plaintiff previously paid it. In support of its argument, the Defendant offers evidence that its attorneys performed 20.4 hours of work on the Plaintiff’s lawsuit. Plaintiff requests $22,000.00 in damages for this alleged breach of contract. Based on the evidence presented at trial, the Court makes the following findings of fact: 

The Defendant had justifiable reasons to refuse to take the depositions of the third party witnesses because the Defendant reasonably believed that to do so would violate Rules of Professional Conduct; and 

The 20.4 hours of work the Defendant performed on the Plaintiff’s case is overblown.

Based on these findings of fact, the Court hereby rules that the Plaintiff is entitled to a judgment of $3,500 against the Defendant.

The court here

We next consider the Firm’s argument that the trial court erred in entering judgment in favor of Mr. Guo because it did not find that the Firm breached the contract. We agree. The trial court expressly found that Mr. Woods “had justifiable reasons to refuse to take the depositions of the third party witnesses because [Mr. Woods] reasonably believed that to do so would violate Rules of Professional Conduct.” The trial court’s order does not include a statement that the Firm breached the contract. Instead, the trial court’s finding that Mr. Woods had “justifiable reasons” for refusing to take the depositions suggests that the Firm did not breach the contract. Thus, the trial court erred in entering judgment in favor of Mr. Guo.

Rather, the winner is the law firm

We find that the evidence preponderates against the trial court’s finding that Mr. Woods’s hours spent on the case were “overblown.” Mr. Woods’s written summary and testimony support the hours he claims to have spent on the case. His set fee was reasonable in light of his qualifications and experience, Mr. Guo’s concerns about paying an hourly rate, the time and labor required, the likelihood of collecting on the judgment, and the fees typically charged in the local legal market for similar services.

We conclude that the trial court erred in awarding Mr. Guo $3,500 because he was not entitled to the return of any of the $7,000 he paid to the Firm.

(Mike Frisch)

March 14, 2017 in Clients | Permalink | Comments (0)

No Standing

The United States Court of Appeals for the District of Columbia Circuit affirmed dismissal of a claim brought by an attorney against the Department of State.

The plaintiff is a law firm that advises clients on U.S. law that regulates the international arms trade. Concerned that the State Department might enforce arms-control regulations against it in a way that would force disclosure of confidential client information, the law firm seeks declaratory and injunctive relief. The district court dismissed the action for lack of standing and ripeness. We affirm on the ground that the plaintiff lacks standing to bring a preenforcement challenge because it faces no credible threat of enforcement.

Background

Matthew A. Goldstein is the principal attorney in a law firm that bears his name and specializes in providing legal advice to clients involved in transactions subject to the [International Traffic in Arms Regulation Act] . Goldstein attests that his firm “regularly represents clients in the preparation of the terms and conditions of sale, user agreements, vendor certifications, and other legal documents” for ITAR-related transactions. J.A. 51-52. According to Goldstein, his firm’s clients often have not identified the foreign parties that will be involved in prospective transactions at the time the firm provides its legal advice.

Soon after the State Department promulgated its 2013 regulation explicitly excluding legal services from the ITAR’s definition of brokering activities, Goldstein sought an advisory opinion from the Department pursuant to 22 C.F.R. § 126.9(a), asking whether six categories of services his firm provides were regulated or exempt. These services include advising clients on how to structure sales of defense articles, preparing sales contracts for these items, drafting technical-assistance agreements, advising on the availability of financing, advising on and preparing sales proposals, and corresponding and meeting with U.S. government officials. However, Goldstein offered the State Department no details about any past or contemplated transactions.

Goldstein asserts that, nearly a year after he requested an advisory opinion, the head of compliance at the State Department called him to say that the services described in his request would not be subject to Part 129 so long as his clients did not pay his firm a contingency fee or a commission. Relying on this advice, Goldstein withdrew his request. The State Department responded with a letter, advising Goldstein that his initial request and the phone conversation “lacked sufficient detail for the Department to make an official determination as to whether the activities discussed constituted brokering activities.” J.A. 36 (emphasis added). The letter also referred him to the Frequently Asked Questions page on the State Department’s website.

The attorney's subsequent suit was dismissed on standing grounds.

Here

The question before us is whether the law firm has standing to seek to enjoin the State Department from enforcing its regulations governing arms brokering. The firm has failed, however, to demonstrate its standing to seek pre-enforcement relief: it has not “suffered an ‘injury in fact[]’ that is (a) concrete and particularized and (b) actual or imminent . . . .” Sabre, Inc. v. U.S. Dep’t of Transp., 429 F.3d 1113, 1117 (D.C. Cir. 2005) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000)). It is true that a plaintiff is not required “to expose himself to liability before bringing suit to challenge the basis” for an enforcement action by the government...

But here, we have no facts from which to conclude that the law firm risks incurring any liability by failing to register with the State Department. Indeed, Goldstein offers only vague and general descriptions of legal activities that the firm intends to undertake, none of which the State Department views as brokering, as the Department has made abundantly clear on its website and, more particularly, at oral argument before this court. Unsurprisingly, then, the State Department has shown no intention of enforcing the brokering regulations against Goldstein’s law firm...

As long as the firm merely provides the legal services Goldstein describes, it faces no material risk of enforcement from the State Department. His firm therefore need not fear that it will have to disclose confidential client information or otherwise take steps to register.

Circuit Judge Griffith authored the opinion. (Mike Frisch)

March 14, 2017 in Current Affairs | Permalink | Comments (0)

D.C. Federal Rules For Local Admission Upheld

A decision today from the United States Court of Appeals for the District of Columbia Circuit rejected an attack on the local district court practice admission rule.

The National Association for the Advancement of Multijurisdiction Practice (“NAAMJP”) has conducted a thirty-year campaign to overturn local rules of practice limiting those who may appear before a particular state or federal court...

In the present case, NAAMJP and two of its members allege bar admission conditions for the United States District Court for the District of Columbia, established in the identical text of Local Civil Rule 83.8 and Local Criminal Rule 57.21 (collectively, the “Local Rule”), violate statutory and constitutional legal standards...

Defendants—Judges of the United States District Court for the District of Columbia (the “District Court”) and former Attorney General Loretta Lynch—moved to dismiss NAAMJP’s complaint; the district court granted the motion in a thorough and thoughtful opinion.  Nonetheless, NAAMJP argues on appeal that the Local Rule (1) violates the Rules Enabling Act, 28 U.S.C. §§ 2071 and 2072; (2) runs afoul of the Supreme Court’s decision in Frazier v. Heebe, 482 U.S. 641 (1987); (3) improperly applies rational basis review; and (4) violates 28 U.S.C. § 1738, admission requirements of other federal courts and administrative agencies, and the First Amendment to the U.S. Constitution. Because each of these arguments lack merit, we affirm.

The matter was heard below by a Massachusetts District Court Judge. 

The standing issue

As an initial matter, the district court properly concluded it lacked subject-matter jurisdiction to adjudicate (1) all claims brought by Patent Lawyer Doe (“Doe”) and (2) all claims asserted against the Attorney General. Both the Amended Complaint and Doe’s Declaration fail to articulate any actual and imminent injury, which is necessary to establish Article III standing in this case...

Doe does not describe where he practices law or otherwise suggest the Local Rule’s Principal Office Provision has inhibited his legal practice. Conclusory assertions of harm, or reference to Doe’s practice at a “Big Law firm in San Diego” in briefing on appeal, see NAAMJP Br. 7, do not remedy this deficiency.

Additionally, NAAMJP has failed to identify any role whatsoever of the Attorney General—or any member of the executive branch, for that matter—in promulgating or enforcing the District Court’s local rules. Accordingly, the district court properly dismissed Doe and the Attorney General.

And the merits

Here, the Principal Office Provision ensures attorneys who practice before the District Court—but who avoid supervision by the D.C. Bar Association—are subject to supervision by the state to which their practice is most geographically proximate. The Principal Office Provision embodies a reasonable assumption: local licensing control is better positioned to facilitate training sessions, conduct monitoring programs, and field complaints from the public— all rational bases for the Local Rule. Indeed, much more restrictive district court rules have passed rational basis review in other circuits.

The court rejected several other contentions but gave the appellant a nice send off

The Court does not doubt the sincerity of NAAMJP’s convictions or its eagerness to reduce barriers to legal practice in the various state and federal courts across the country. Indeed, there may be good policy reasons for the outcomes NAAMJP urges. But, as has been amply demonstrated in dozens of legal opinions penned by judges across the country, NAAMJP has identified no legal basis upon which to compel federal or state courts to adopt the rules it desires.

The opinion is authored by Circuit Judge Brown joined by Circuit Judge Pillard and Senior Judge Edwards. (Mike Frisch)

March 14, 2017 | Permalink | Comments (0)

Husband, Associate Charged With Aiding Disbarred Attorney's Unauthorized Practice

The Illinois Administrator has filed an amended complaint alleging that two attorney assisted a suspended {and later disbarred) attorney in engaging in unauthorized practice and related misconduct

In January 2013, Respondent Allegra became an associate at Niew Legal Partners, P.C., which was located at 1000 Jorie Boulevard, Suite 206 in Oakbrook. Respondent Niew and Ms. Niew were partners at Niew Legal Partners, and Respondent Allegra and attorney Ryan Liska ("Liska") were associates at Niew Legal Partners. Heather Tichy ("Tichy") was a paralegal at Niew Legal Partners and Bernadette Ibaska ("Ibaska") was the secretary at Niew Legal Partners. In March 2013, Liska left Niew Legal Partners.

Ms. Niew was disbarred in 2013 "as a result of her mishandling of her client’s $2.34 million."

The allegations as to Mr. Niew

Between November 20, 2013, the date that the Court entered an order disbarring Ms. Niew, through late May or early June 2014, Respondent Niew allowed Ms. Niew to maintain a presence at his law office located at 1000 Jorie Boulevard, Suite 206 in Oakbrook.

Between November 20, 2013 and about early June 2014, Ms. Niew maintained an office in the Jorie Boulevard suite, and she was physically present in the office four to five times per week. During that same period of time Respondent Niew observed Ms. Niew talking on the office telephone, writing letters on the office computer, and conducting meetings. Although Respondent Niew knew that his wife had been disbarred, he encouraged her to deposit money into the firm’s client funds account that he knew or should have known was client money for legal services.

And as to Mr. Allegra

Between November 2013 through May 2014, Respondent Allegra, an affiliated attorney at the Law Offices of Stanley Niew, participated in meetings between Ms. Niew and at least six legal clients, including Harry Haralampopolous, Maciej Wilhelm, Peter Vhalos, Julia and Michael Maloney, and John Hryn. Respondent Allegra accepted instructions from Ms. Niew regarding legal work to be completed by Respondent Allegra on behalf of at least one client, Arno Reichel.

On or about November 19, 2013, while Ms. Niew was suspended on an interim basis until further order of the Court, Peter Vlahos sent a facsimile to Ms. Niew via the law firm facsimile machine. The facsimile consisted of Peter Vlahos’ handwritten cover letter addressed to Kathleen Niew, and a copy of a letter to John Vlahos dated October 4, 2013 from the Volunteer Coordinator at the DuPage County Circuit Court related to In re the Estate of Penelope Vlahos, a disabled person, case number 2011P1089. The October 4, 2013 letter stated that John Vlahos was the court appointed guardian of Penelope Vlahos, and that his annual accounting and report on the condition of the Penelope Vlahos had been scheduled for hearing on January 2, 2014.

Mr. Niew's answer to the allegations is linked here.  Mr Allegra's answer is linked here.

The Chicago Tribune covered Ms. Niew's disbarment and noted

This is not the first time the court has sanctioned Niew. In 2001, justices suspended her license for nine months based on allegations she forged clients' signatures. In 1989 the state disciplined her for falsely stating that she was single when she married her current husband, attorney Stanley Niew.

The Tribune reported on her conviction and almost six-year sentence.

Prosecutors had sought a 10-year prison term for Niew, who had pleaded guilty to 10 counts of fraud last June. Before her indictment, she was a self-styled real estate and probate law guru known for her Saturday morning call-in radio show on WIND-AM 560.

The judge said Niew's betrayal of her clients played a part in his decision to sentence her to five years and 10 months in prison. He also ordered her to pay restitution of $2.34 million, but it was unclear if Niew would be able to come up with any of the money.

"Something has to be done when a case like this comes up," he said.

Leinenweber also found Niew responsible for defrauding another client out of $500,000. Niew had led the client to believe she needed the money for her upcoming divorce proceedings, but prosecutors said that the divorce was a fiction and that Niew blew the money in the same way.

(Mike Frisch)

March 14, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, March 13, 2017

Threatening Letters Get Attorney Reprimanded

An attorney has been reprimanded with terms by the Fifth District Subcommittee of the Virginia State Bar for threatening to institute civil and criminal charges solely to obtain an advantage on behalf of his client.

Virginia Rule 3.4(i) prohibits the conduct.

The attorney represented a doctor and her clinic in a suit brought against a former patient who had posted an unfavorable Yelp review.

The complainant also posted an unfavorable review and testified on behalf of the sued reviewer. He testified that his wife was billed for medical services despite never being treated there.

Two days later, the attorney wrote to the complainant threatening to pursue perjury charges and a civil defamation claim and offering to discuss a settlement.

The complainant instead went to the Bar.

At the disciplinary hearing, the attorney testified that such threats were part of his regular practice. He produced "more than 30" such letters.

The term is probation for two years (and, presumably, a cessation of such letters). (Mike Frisch)

March 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Probation For Sloppy Billing

A stayed four month suspension with conditions has been imposed by the the Maine Supreme Judicial Court for billing misconduct.

The victim

On July 10, 2015, John D. Pelletier, Esq. Executive Director of the Maine Commission On Indigent Legal Services (MCILS) filed a grievance complaint against Attorney Fethke. The complaint followed Attorney Fethke's suspension from the MCILS Roster of Eligible Attorneys for receiving new assignments due to "billing misconduct.” MCILS allowed Attorney Fethke to complete his existing cases, and assigned additional cases involving existing clients to him. Although Attorney Fethke's period of suspension has run, he has not reapplied for appointment to the MCILS Roster...

Attorney Pelletier alleged that during that time period Attorney Fethke had submitted payment vouchers to MCILS that did not accurately reflect the dates on which he performed the work detailed in the vouchers; that he entered time into the billing system in advance for work which had not yet been performed by him; and that his billings generally reflected disregard of his obligation to accurately document his work and a cavalier, attitude about the need to accurately respond to MClLS inquiries about that work.

In response to Attorney Pelletier's complaint Attorney Fethke admitted that his "timekeeping and billing practices were sloppy," and that he "did not appreciate the need to consistently and accurately reflect the work actually being done in terms of dates and time of billing." Attorney Fethke recognized that his practices needed to "change and improve," but denied that his billing errors were intentional.

Findings

Attorney Fethke fully acknowledges that as a result of his unorthodox and inappropriate billing practices in relation to MCILS, the resulting bills contained knowing misstatements regarding the dates and times that he performed services for his clients. While he acknowledges that his inaccurate record keeping resulted in material misrepresentations of facts to MCILS, Attorney Fethke believes that his bills nonetheless accurately reflected the actual number of hours that he spent on the specific cases to which he was assigned, and that his misrepresentations did not result in overbilling of MCILS.

The complainant and the Board agree that while the evidence does establish that Attorney Fethke's billing practices resulted in material misrepresentations of fact to MCILS, the evidence does not establish that those misrepresentations were the result of deliberate or intentional attempts on the part of Attorney Fethke to overbill MCILS for the services he performed for those clients.

The Complainant and the Board agree that there is no evidence that the services for which Attorney Fethke billed were not in fact provided, or that Attorney Fethke's representation of his clients through MCILS was substandard.

Attorney Fethke has testified that his attempts to run a high volume practice with minimal staff resulted in his being overwhelmed by attempting to balance the administrative tasks inherent in such a practice with the professional obligations of meeting his clients' legal needs and providing high quality representation. He further testified that the filing of this complaint, and the issues raised within it, have caused him to dramatically re-think his approach to his practice and to re-evaluate his work-life balance. In particular, Attorney Fethke testified that he has revised his entire office operation. He has hired additional staff, arranged for more full time staff coverage, and adjusted his work load such that the administrative requirements inherent in his practice are met.

Attorney Fethke further testified that he has consulted with other attorneys in similar practices, reviewed materials available with regard to law office practice, taken practice-related CLE, and worked to recognize office practices and procedures that will streamline his billing and insure its accuracy. Attorney Fethke testified that he sets aside time at the end of each day to make sure that all of his time is recorded. In the event that he is out of town and unable to record his time, he makes entries via computer and then makes sure that those entries are appropriately inputted the following day prior to beginning any further work. Attorney Fethke testified that he has his office staff check on his billing so that he is accountable not only to himself and his billing software, but also to a personal check by his staff. Attorney Fethke clarified that although his staff checked his billing on a daily basis following the filing of the grievance complaint, that practice is now performed monthly.

Mr. Fethke completed all of his pending cases with MCILS, and his billings after this matter arose were accepted and were paid by MCILS. MCILS has not discovered any further difficulties with regard to Mr. Fethke's billing in the completion of his existing cases, or in subsequent appointments by the court as counsel for indigent clients with the permission of MCILS. In those matters, his billings have been reviewed and no further issues have been noted by MCILS.

Mr. Fethke expressed his deep remorse and embarrassment as a result of the conduct giving rise to the complaint. He apologized to MCILS and to the Court for the difficulties, confusion and time expended by others as a result of his mistakes.

His practice will be monitored for one year. (Mike Frisch)

March 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)

D.C. On Breakup Ethics

A new opinion of the District of Columbia Bar Legal Ethics Committee is summarized in the headnote

Numerous ethical obligations attach to both a law firm and its members in connection with the process of the dissolution of the firm. These obligations include, without limitation, the obligation to continue to competently, zealously and diligently represent and communicate with clients during the dissolution process; the obligation of the members of the firm, after consultation, to notify clients of the dissolution and provide clients with options under such notice; the obligation to facilitate the choice of new counsel by clients of the dissolving firm; and, the obligation to properly dispose of client files, funds and other property. As used in this Opinion, the term "dissolution" means the process of terminating the law firm's existence as a legal entity. Since dissolution of a law firm is a process and not a single event, the term is not limited to the legal or technical action which is required to terminate the existence of the firm as a legal entity under corporate, partnership, bankruptcy or other applicable law. Certain ethical obligations may apply at various points during the dissolution process itself and other ethical obligations may continue to apply after the firm has been dissolved. These ethical obligations may attach either when dissolution of the firm has been agreed to by its members or, absent such agreement, is nonetheless reasonably foreseeable. This Opinion does not address the departure of members of the firm in and of itself, even in significant numbers, absent an expectation that the firm itself will at some reasonably foreseeable time in the future be dissolved. 

The committee concludes

A lawyer has numerous ethical obligations in connection with the dissolution of his law practice or a law firm of which he is a member. A lawyer must consider the obligations to continue to diligently represent and communicate with clients during the dissolution period, to notify clients of the dissolution, to facilitate the clients' choice of counsel, and to properly dispose of client files, funds or other property. There are additional considerations for the dissolution of Rule 5.4(b) firms and solo practices.

D.C. Rule 5.4(b) permits association with non-lawyers 

(b) A lawyer may practice law in a partnership or other form of organization in which a financial interest is held or managerial authority is exercised by an individual nonlawyer who performs professional services which assist the organization in providing legal services to clients [subject to enumerated conditions].

 (Mike Frisch)

March 13, 2017 in Law Firms | Permalink | Comments (0)

Disbarred Lawyer Impersonates "Client" And Goes To Prison For Identity Theft

Sometimes a disbarred attorney recognizes the errors that led to the imposition of the ultimate sanction. 

In most jurisdictions, reinstatement may be granted where the petitioning attorney demonstrates reformation of character and/or competence such that a second chance at practice is deemed in the public interest.

Sometimes not.

In the "likely not" category is a former attorney who used her supposed law license to ratchet up the volume from disbarment to the penitentiary.

Last week the United States Court of Appeals for the Fourth Circuit affirmed her conviction for a fraudulent scheme to steal the assets of her "client" through identity theft and impersonating the Internal Revenue Service.

Christal Millner suffered a severe stroke leaving her unable to walk, talk, or drive for the remainder of her life. Pamela Hiler, Millner’s cousin, took responsibility for Millner’s care. In March 2010, hospital staff advised Hiler to seek guardianship of Millner in order to make health care and other decisions on Millner’s behalf. Hiler, a counselor, reached out to [defendant] White for assistance. White and Hiler had attended the same church for many years and Hiler recalled that White was an attorney.

Unfortunately (to put it mildly) Ms. Hiler did not check readily available sources for the status of disciplinary proceedings against White. 

White had been suspended in the District of Columbia since 2009.

Almost immediately after Hiler retained White, White began a scheme to defraud Hiler and Millner. In April 2010, White impersonated Millner to apply for a duplicate license in Millner’s name at a Maryland Motor Vehicle Administration (“MVA”) location. White used Millner’s birth certificate and forged Millner’s signature on the application. Because White did not look like the prior photographs of Millner in the MVA database, the MVA confiscated the license. Undeterred, White obtained a counterfeit university identification with White’s picture and Millner’s name.

In June 2010, White created a Maryland entity called Intel Realty Financial Services (“IRFS”). White opened a bank account for IRFS at Wachovia Bank, listing Millner as IRFS’s CEO, owner, and president. The registered address of the bank account was a P.O. Box that White had previously opened. Using the fake university identification and Millner’s vehicle registration, White then rented another P.O. Box in Millner’s name from UPS. White authorized Millner and IRFS to receive mail from the UPS box.

Shortly thereafter, Millner received the first of many tax deficiency notices. Because Millner was bedridden in a medical facility, Hiler routinely went to Millner’s condo to retrieve the mail. In June 2010, Hiler opened a letter addressed to Millner and Millner’s mother purportedly from the “IRS, Department of Treasury, Internal Revenue Service.” J.A. 1163. The letter referred to an “Offer Compromised Agreement” between Millner and the IRS and requested remittance of $158,500 to IRFS. J.A. 1165. It warned that the office would “file an immediate lien on any and all of” Millner’s assets unless the agency received “full and complete payment” by June 19, 2010. J.A. 1165. Hiler asked White, her attorney, to call the number on the notice to ascertain whether it was legitimate and to confirm that Millner actually owed the money. After assuring Hiler that she had looked into the matter and Millner did owe the money, White told Hiler to send the checks on Millner’s behalf. Hiler purchased cashier’s checks drawn on Millner’s account and sent them to IRFS. From June 2010 until early 2013, Millner continued to receive similar tax notices and Hiler continued to send IRFS money from Millner’s accounts. Even after Millner died in January 2011, the tax notices continued.

By the end of 2012, the IRFS payments had depleted Millner’s assets. Hiler then received a notice addressed to her stating that she, as Millner’s personal representative, was responsible for paying the taxes. In addition, Hiler received a voicemail from an unidentified caller purporting to be “an official collector for” the IRS and the “State of Maryland Department of Revenue.”1 J.A. 2354. The caller instructed Hiler or her attorney to contact the office that day and left a return number. When Hiler consulted White as to these notices, White confirmed that Hiler was responsible for paying the taxes and advised that she borrow money to do so. Having sent IRFS approximately $800,000 at this point, Hiler became suspicious. She consulted another attorney, Craig Ellis, who told Hiler that the notices were “absolutely crazy” because an estate representative generally is not liable for the debts of the estate. J.A. 1360. Ellis, now also suspicious, did a quick internet search of White. He found out that, unbeknown to Hiler, White had been disbarred in Washington, D.C. and Maryland since 2011 and was not currently licensed to practice law.

White was released on bond on the ensuing criminal charges but

On October 14, 2014, the government filed a motion seeking White’s pretrial detention, alleging that White violated the terms of her pretrial release by defrauding another victim and opening another bank account without prior approval. Accordingly, the court ordered White detained pending trial, which began in July 2015.

The court affirmed both the conviction and well-deserved sentence of 108 months. 

White had been prosecuted in two separate matters by District of Columbia Disciplinary {then-Bar) Counsel that resulted in public findings of misconduct and sanctions prior to this criminal fraud. 

She was suspended in November 2009 when the Board on Professional Responsibility recommended a suspension of six months with fitness for a Rule 1.11 revolving door violation.

From the D.C. Bar web page

The D.C. Court of Appeals disbarred White based on two matters that were consolidated. In the first matter, White accepted employment on behalf of a client in a matter on which White had been personally and substantially involved as an employee of the District of Columbia Office of Human Rights. Rules 1.11 and 8.4(d). In the second matter, White submitted fabricated evidence and false testimony in a matter before the Council of the District of Columbia, as well as presented false evidence and made misrepresentations that pervaded her defense in the disciplinary hearing. Rules 3.4(a), 3.4(b), 8.1(a), 8.4(b),

 The January 2011 opinion of the Court of Appeals imposing disbarment is linked here.

The conduct in question is indeed serious: the record reflects that respondent made false accusations to the Council of the District of Columbia, fabricated evidence to support those accusations, and falsely recounted events that never occurred. Moreover, respondent has not presented a substantive defense to these allegations. The two separate cases of misconduct in question here demonstrate that respondent “lacks the moral fitness to remain a member of the legal profession.” Id. at 1200-01. Therefore, disbarment is the proper sanction in this instance in order to protect the public and the courts, to maintain the integrity of the profession, and to serve as a deterrent.

Maryland imposed reciprocal disbarment in September 2011.

Texas followed suit in disbarring her in July 2015 under the name Lucille Parrish.  (Mike Frisch)

March 13, 2017 in Bar Discipline & Process | Permalink | Comments (0)