Friday, November 20, 2015

Reinstatement Denied With Leave To Reapply

The Louisiana Supreme Court denied reinstatement to a former attorney disbarred in 2007.

Justice Knoll concurred and dissented

I concur with the majority in denying respondent readmission to the bar. I join Justice Clark in his reasons for concurring and dissenting in part permanently denying respondent readmission to the bar.

Respondent has a long “fifteen year history of deceit and dishonesty” as noted by the majority upon respondent’s initial disbarment. Significantly, respondent did not feel guilty and self-report his criminal conduct. Instead, he was caught by the law firms who trusted him when, indeed, he was cheating his clients and the firms who employed him.

Respondent lacks the strength of character to represent his clients and his employers with trustworthiness. He has a flawed propensity for stealing and for dishonesty. While he may have performed well in his capacity as a C.P.A., his authorities, up until recently, were significantly curtailed and “structured” to guard against his dishonesties. The public and the legal profession cannot countenance respondent’s lack of fundamental moral character. In my view, as I stated in my dissent to the initial sanction of disbarment, respondent should have been permanently disbarred. Accordingly, I would permanently deny respondent readmission to this honorable bar and profession.

Justice Clark opines

In October of 2007, this Court disbarred the respondent due to his having misappropriated large sums of money from the law firms which employed him. Between 1987 and 1996, respondent misappropriated approximately $15,000 from the firm of Lowe, Stein, Hoffman, Allweiss & Hauver, which his clients had paid to him directly for legal services rendered. Respondent cashed these checks and did not turn over the money to the firm.

After leaving Lowe Stein, respondent did not take money belonging to his new firm, Sessions, Fishman & Nathan, for several years after he first began working in 1996. However, in 2001, respondent began sending clients billing statements on his personal letterhead stationery. The billing statements were not handled through the Sessions Fishman accounting department, and the firm had no knowledge that respondent had done any work for these clients because he did not enter his hours in the firm=s timekeeping system. Respondent would then receive the check from the client, cash it, and keep the money for himself. The total of the misappropriated funds in this instance was $15,000 to $20,000.

The majority will permit reapplication in two years. (Mike Frisch) 

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

With All Due Respect, Your Honor: You Are A "Certified Moron, Ethical Gnome, Knucklehead, Schmuck, Dimwit And Big Time Dumb Ass"

An Arkansas attorney has been cautioned by the Committee on Professional Conduct for assertions in a motion to recuse the judge while representing a defendant in an unlawful detainer action.

The initial problem came when the newly-assigned judge sought to contact her

After appointment, Judge Shirron contacted Mr. Streetman by telephone on October 1, 2012, and requested a copies of all of the plaintiff’s pleadings that had been filed in the matter. Judge Shirron attempted to contact Ms. Zimmerman by telephone, but got a message that she was “not accepting calls at the time”. Therefore on October 1, 2012, Judge Shirron sent Ms. Zimmerman a letter advising her that he had attempted to contact her by phone, and requesting that she send him copies of all pleadings filed by defendant and a telephone number where she could be reached or message left during normal business hours. Judge Shirron advised her that he would not waste his time in the future making multiple attempts to contact her at a time when she may be accepting calls.

The response was a recusal motion

In her motion, Ms. Zimmerman, alleged that Judge Shirron’s October 1, 2012, letter to her was “unprofessional, demeaning, sarcastic, and totally unprovoked”. She also alleged that Jude Shirron had “engaged in outrageous, unprofessional conduct in the past.

Ms. Zimmerman attaches and incorporates an article from The Committee to Expose Dishonest and Incompetent Judges, Attorneys and Public Officials as proof of Judge Shirron’s “outrageous and unprofessional” past conduct. In the article, Judge Shirron is referred to as a “certified moron”, “ethical gnome”, “knucklehead”, “schmuck”, “dimwit”, and “big time dumb ass”.

After recusal was denied, the war continued

In the petition, Ms. Zimmerman, continued to make accusations about Judge Shirron’s motives and professionalism in presiding over the case. Some of the accusations made by Ms. Zimmerman, included a statement that Judge Shirron was “girded for war”, that Judge Shirron became unreasonably angry in the October 1 letter he sent her when he was unable to reach her by telephone, and that Judge Shirron was “angry, hostile and abusive.”

The conduct violated several ethics rules including Rule 8.2.  (Mike Frisch)

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

Thursday, November 19, 2015

Collateral Estoppel Establishes Ethics Violations

The New York Appellate Division for the First Judicial Department has ordered a two-year suspension of an attorney for misconduct in her own family litigation.

The court noted

this Court granted the Departmental Disciplinary Committee's petition for an order giving collateral estoppel effect to five judicial decisions; four issued by Supreme Court, Kings County and one issued by the Second Department. This Court found, based on these decisions, that respondent had engaged in misconduct...

The story

Respondent's misconduct occurred during the course of protracted litigation involving two LLCs controlled by her immediate family. Respondent was a member of both LLCs and counsel of record. In 2002, when the litigation at issue commenced, respondent had limited legal experience. Specifically, respondent held only temporary or part-time positions as a law intern or clerk until she was employed in January 2005 as an Administrative Law Judge for the New York City Environmental Control Board, and later as an ALJ with the New York City Department of Health. Respondent was not employed as a practicing attorney prior to January 2013.

Respondent, her sister, Esther Nash, and mother, Dorothy Nash, were the principals of 501 Second Street, LLC (501 LLC) which owned a building located at 501 Second Street in Brooklyn. In October 2001, 501 LLC leased the building for 48 years to Gihon LLC (Gihon). In January 2002, Gihon commenced an action against 501 LLC in Supreme Court, Kings County for breach of contract, alleging, inter alia, that 501 LLC had failed to deliver possession of the premises, and for a declaratory judgment as to the rights and obligations of the parties under the lease.

Between April 2002 and November 2006, the court issued various adverse decisions against 501 LLC which included contempt judgments totaling approximately $116,000. In December 2003, in an effort to enforce one of its contempt judgments, Gihon delivered a property execution notice to the Sheriff and thereafter a sale of the 501 Second Street property was scheduled. On or about December 23, 2003, a deed, purportedly dated October 10, 2003, was filed with the New York City Register's Office which conveyed the Second Street property from 501 LLC to 501 Second Street Holding Corp. (501 Corp.). Respondent was the notary public who acknowledged her mother's signature on the deed.

In March 2004, respondent commenced an action in Supreme Court, Kings County on behalf of 501 Corp. to enjoin the Sheriff's Sale based on the fact that 501 LLC, the judgment debtor, no longer owned the property. Respondent also brought an order to show cause to stay the pending sale. By decision dated April 16, 2004, the court denied a stay, dismissed the underlying action, directed the Sheriff to proceed with the sale of the property, and sanctioned 501 Corp. $7,500 payable to the Sheriff. In its decision, the court suggested that the deed at issue was backdated by respondent and referred the matter to the District Attorney for investigation. In our collateral estoppel order this Court found respondent's actions to prevent the Sheriff's Sale amounted to misconduct, however, we declined to find disciplinary violations regarding the allegedly backdated deed since the court did not explicitly find such.

At the sanctions hearing before the Referee, respondent testified that the proceeding to stay the Sheriff's Sale was proper because personnel in the Sheriff's office advised her to initiate the proceeding, and 501 LLC was never served with the underlying contempt judgment, a restraining notice, or the property execution notice. The Referee noted that respondent made similar claims in her opposition to the Committee's collateral estoppel petition, which were already rejected by this Court.

Gihon sued 501 LLC to set aside the previously discussed deed of transfer. By decision of December 28, 2007, the court granted Gihon summary judgment, finding that the transfer was a fraudulent conveyance in violation of Debtor Creditor Law § 276. The court's findings underlying its decision granting Gihon summary judgment, which this Court affirmed on appeal, are part of the misconduct findings previously made by this Court (DR 1-102[a][4] and [5] [22 NYCRR 1200.3(a)(4) and (5)]).

In December 2010, Gihon entered a judgment against 501 LLC in the amount of $203,280. As part of its collection efforts, it subpoenaed respondent, in her individual capacity and as a member of the judgment debtor, to appear at a deposition and to produce documents. Respondent did not comply with the subpoenas, nor did she move to quash it, and by order of July 19, 2011 the court found respondent in contempt. Respondent purged the contempt by filing timely answers to the subpoenas. The court's contempt finding, even though it was purged, is part of this Court's prior misconduct findings (Rules of Professional Conduct rules 3.4[c] and 8.4[d]).

Respondent testified before the Referee that the deed transfer was not dishonest, fraudulent, nor intended to thwart Gihon's enforcement of its contempt judgment. She testified that the deed had been executed prior to entry of the contempt judgment, and that there was no wrongdoing on her part. Respondent further testified that she was aware of the court's March 13, 2003 order holding 501 LLC in contempt and imposing daily contempt fines but, in her view, it was "just an order... a warning", and not "a judgment." Respondent, as justification of her actions, stated that the court's contempt order failed to state that a set monetary sum was due, nor did it establish a payment deadline.

When asked to explain why she waited until December 2003 to record a deed which was purportedly executed on October 10, 2003, respondent could not provide any explanation, but she claimed that the delay in recording the deed was a non-issue. The Referee found that, given respondent had previously been employed at a real estate law firm, her response "stretch[ed] credibility." Respondent denied that the fraudulent conveyance harmed Gihon or that the resulting action to set aside the conveyance wasted court resources.

As to the July 2011 contempt finding against her, respondent testified that the subpoenas served by Gihon were an improper discovery tool and violated the directives of the court, which had previously ordered that all discovery requests be made through an appointed referee. Respondent further testified that various "protective orders" were in place which prohibited Gihon's counsel from compelling respondent to appear at their offices. As noted, although respondent purged the contempt, she was still found to have committed misconduct.

In June 2004, nearly one month after the dismissal of 501 LLC's action to stay the Sheriff's Sale, respondent's mother, Dorothy Nash, executed a $1 million credit line mortgage on behalf of 501 Corp. in favor of Norma Vigo, a private lender. 501 Corp. drew $675,000 against the credit line but then defaulted on the mortgage. In December 2006, Vigo commenced a foreclosure action against 501 Corp. Respondent, who appeared as 501 LLC and 501 Corp.'s counsel in the matter, moved to dismiss Vigo's complaint prior to serving an answer. The court denied the motion and directed her to serve an answer. Instead, respondent made four motions for reargument all of which were denied. By decision dated October 22, 2010, the court denied respondent's fourth reargument motion, finding it entirely without merit, and sanctioned respondent $1,500 for engaging in frivolous motion practice; $1,000 was to paid to Vigo as attorney's fees and $500 was to be paid to the Lawyers' Fund for Client Protection. Respondent unsuccessfully appealed the sanctions. The court's October 22, 2010 sanction order was the basis for this Court's finding respondent engaged in frivolous conduct.

At the sanction hearing, respondent continued to take the position that her repeated motions to reargue did not constitute frivolous motion practice. Respondent further testified that she had not paid the $1,000 sanction to Vigo's counsel because no sanction hearing had been held. In addition, respondent testified that, in her view, she was not required to pay the sanctions award to Vigo's counsel because, among other things, they failed to follow proper procedure by entering a judgment against respondent and then serving her with a notice of entry. Respondent testified that, while her appeal of the sanctions award was unsuccessful, Vigo's counsel never pursued collection of the sanctions. Respondent also testified that Vigo's counsel may have added the sanction award to the foreclosure judgment entered against her client.

On sanction

Here, respondent's misconduct was established based upon five prior court decisions, and included her participation in a fraudulent conveyance to defeat enforcement of a judgment, thereby flouting prior court orders; frivolous litigation and motions; disparaging comments regarding an adversary for which she was twice sanctioned; and a contempt finding for refusing to comply with two subpoenas (which she purged). It is submitted that respondent's misconduct is aggravated by her repeated and steadfast refusal to acknowledge any wrongdoing whatsoever and failure to express remorse.

The record is devoid of any meaningful mitigation evidence.

It is true that at the outset of the litigation which resulted in these proceedings respondent was a relatively inexperienced attorney. But as the Committee rightly argues, while respondent's missteps might have been attributed to inexperience when the litigation commenced, after more than a decade, such argument no longer is persuasive. As the Committee notes, as recently as May 30, 2013, more than 10 years after her admission, respondent was again sanctioned by the Second Department in connection with the litigation at issue. In addition, we agree with the Committee that, unlike here, the cases cited by respondent in support of a censure or shorter suspension involved compelling mitigation, not the least of which was acknowledgment of wrongdoing and remorse, or concerned nonvenal misconduct.

The New York City Bar Association has this profile of the judge/attorney. (Mike Frisch)

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

Retired Attorney Subject To Bar Discipline

A retired attorney convicted of a serious offense is subject to disbarment, according to a decision of the New York Appellate Division for the Third Judicial Department.

Although Dawson has self-certified as retired from the practice of law since 2012, his retired status precludes him from practicing law for a fee and entitles him to a waiver of the biennial registration fees, but does not preclude him from providing legal services pro bono (see Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [g]). His obligation to register as an attorney has continued unabated (see Judiciary Law § 468-a [4]; Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [a]-[c]) and, in fact, Dawson remains currently registered to date, having last registered in March 2014.

Retirement from practice and resignation from the bar are not synonymous concepts. Resignation from the bar, like admission to the bar, requires an order of this Court and may be accomplished only by sworn affidavit application. Once the application to resign has been granted, the former attorney's name is formally stricken from the roll of attorneys; he or she is thereafter prohibited from practicing law in any respect (compare Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [g]) and becomes subject to stringent notice, filing and record-keeping requirements (see Rules of App Div, 3d Dept [22 NYCRR] § 806.9; see also Judiciary Law §§ 478, 479, 484, 486). Inasmuch as Dawson has not undertaken the steps necessary to effectuate his resignation from the bar, his name remains on the roll of attorneys and he therefore remains subject to the disciplinary authority of this Court.

The offense was a felony DUI. (Mike Frisch)


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

Wednesday, November 18, 2015

Former Prosecutor's License Annulled

The West Virginia Supreme Court of Appeals has annulled a former prosecutor's license for job-related sexual misconduct, rejecting a Hearing Panel Subcommittee's proposed two-year suspension.

Mr. Clifton lives and works in Marlinton, Pocahontas County, West Virginia. Before he started law school in 2004, Mr. Clifton operated a bar/restaurant, was a police officer, and worked for Child Protective Services, all in Marlinton. Upon successful completion of law school and the bar examination, Mr. Clifton was admitted to the bar on November 5, 2007. Directly following his admission, Mr. Clifton served as an assistant prosecuting attorney for Pocahontas County from November 7, 2007, to January 15, 2011. Mr. Clifton began working for the prosecutor’s office part-time, ultimately shifting to full-time employment before leaving the office in 2011 for private practice.

In August 2012, a criminal investigation of a police officer in Marlinton led the State Police and the Federal Bureau of Investigation (“FBI”) to investigate Mr. Clifton. Mr. Clifton was indicted on two counts of sexual assault in the second degree and two counts of imposition of sexual intercourse on an incarcerated person in the Circuit Court of Pocahontas County.

The criminal charges were dismissed with prejudice but

The [Office of Disciplinary Counsel] obtained a copy of the files concerning the criminal investigation, and using that information, the ODC identified three women who, it determined, engaged in sexual conduct with Mr. Clifton in his office while he served as an assistant prosecuting attorney. The ODC contended that Mr. Clifton’s sexual involvement with these women was unethical, and the Investigative Panel of the [Lawyer Disciplinary Board] detailed the alleged unethical conduct in a statement of charges...

Which led to findings of misconduct 

First, with regard to T.S., the HPS found that T.S. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office and that she provided him with sexually explicit photos and videos he solicited while she was on probation and participating in day report [a court-ordered program]...Also with regard to Mr. Clifton’s relationship with T.S., the HPS found that Mr. Clifton provided false information to the ODC when he denied the conduct alleged in the indictment...

Second, the HPS found that Mr. Clifton attempted to require K.M. to perform oral sex on him when she went to his office at the prosecutor’s office about her son’s criminal case...

Third, the HPS found that L.B. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office after she approached him with an inquiry about a criminal matter while she was both a defendant and a victim.

T.S. was on probation and unhappy with the court-ordered program. He reached out to her

After T.S. began Day Report, Mr. Clifton sent her a message on Facebook, a social networking website, regarding a picture she had posted of herself. Mr. Clifton testified, “I told her I really liked this one photo of her backside toward a camera where she was wearing only panties and I said ‘Yeah, I really like that one.’ And she said ‘Well, it looks a lot better now.’ And I said, ‘You’ll have to show me.’” Both T.S. and Mr. Clifton stated that following the messages regarding the picture, the two began an ongoing correspondence. T.S. testified that she told Mr. Clifton that she was upset about having to take part in Day Report. She testified, “I didn’t want to be on day report and he told me that he could maybe help me.” According to T.S., in response to her displeasure with Day Report, Mr. Clifton told her “to stop by [his office at the courthouse] sometime.”

She did.  Several times.

The other victims had been in sexual relationships with him prior to his becoming an attorney; both were pressured to give him oral sex because of his position. 

The court found the violations and imposed annullment

It is apparent from the record before us that Mr. Clifton knowingly and intentionally violated a duty to his former client, the State. By engaging in sexual relationships with T.S., K.M., and L.B.—all of whom were, at some point during the time Mr. Clifton was an assistant prosecuting attorney, a victim, a defendant, or seeking help for another defendant—Mr. Clifton created a conflict of interest with his client. This same activity also violates his duty to the public and the legal system. As a public officer charged with the prosecution of criminal cases, abusing his position by engaging in sexual relationships with T.S., K.M., and L.B. impacted the fair administration of justice. Mr. Clifton acknowledged that his conduct, at least as far as the sexual banter and explicit photograph exchanges with T.S. are concerned, created “an inescapable negative reflection” on the legal profession. Finally, by providing false information to investigators regarding his relationship with T.S. and then by providing false information to the ODC regarding the recording of the sexual encounter between himself and K.M., Mr. Clifton violated a duty to the legal system and to the profession.

The amount of real injury in this case is great. As the HPS aptly surmised, it is not likely that the women who made the allegations against Mr. Clifton will be trusting of lawyers and the legal system in the future. By using his position as assistant prosecuting attorney to elicit sexual behavior from vulnerable women—women involved in criminal matters and/or seeking his help—he has damaged the prosecutor’s office in Pocahontas County and the legal profession on the whole.

The ODC charges are linked here. 

The West Virginia Record  had a report on the civil case filed by T.S. against the attorney and a police officer. (Mike Frisch)

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

Attorney Suspended For Gross Misdemeanor And Other Misconduct

The Minnesota Supreme Court imposed a 60-day suspension followed by two-years of probation for an attorney's conviction of a "gross misdemeanor" and other practice related misconduct. reported on 2011 criminal charges

A car was rocking side to side when officers responded to a report of a child being beaten in a car in St. Paul.

A 246-pound man was yelling, "I'm going to kill you!" and punching his 7-year-old son in the back of a Mercedes Benz, police saw. The boy was curled up on the floor, his arms covering his head.

Police tried to pull the man away, but the assault continued until they used a Taser on John N. Akwuba, according to a criminal complaint filed Tuesday and charging the 51-year-old with two felonies, domestic assault by strangulation and making terroristic threats.

Akwuba is a lawyer in St. Paul. Admitted to the Minnesota bar in 1997, he has no public discipline on record, according to the state's Lawyers Professional Responsibility Board. He also has no criminal record in the state.

The complaint gives this account:

Officers were called to the Battle Creek neighborhood about 11 p.m. Saturday "on a report of a child being very badly beaten in the backseat of a car, and ... there were two smaller children standing against a wall asking him to stop," the complaint said.

Police saw "two very scared-looking young children," ages 2 and 4, near a car parked in an open garage. They heard a man, identified as Akwuba, yelling obscenities and a child scream after they saw the man bring his fist down.

After officers ran to the car and got Akwuba away from the child, the man "resisted all attempts by officers to handcuff him," the complaint said.

Paramedics brought the boy and his younger siblings to Regions Hospital, where their mother met them.

The boy had a large lump near his eye and a horizontal red mark across his throat.

Akwuba's wife told police that he gets "angry and aggressive when he drinks alcohol," the complaint said. Akwuba's blood-alcohol concentration was 0.102 (the legal limit to drive in Minnesota is 0.08).

The boy reported his father hit him several times with his fists and an arm from a broken child safety seat. "He said his dad choked him and he was scared because he couldn't breathe," the complaint said.

A neighbor who called police told officers she saw Akwuba punch the child at least 30 times, it appeared he was striking the child in the head, and the child was screaming and crying while Akwuba yelled at him.

"Suddenly, she said, the child became quiet and she feared he might be dead," the complaint said. "She called 911."

Akwuba told police "they didn't understand, that his son hit a girl and he was disciplining his child and teaching him." He also said the boy "was a discipline problem who gets into fights."

The man denied choking or hitting his son, "saying he was very angry and was waving his hands and arms in an animated manner," the complaint said. He told police he'd had only two beers and was sorry he alarmed his neighbors with his yelling but believed it was the only way the boy would listen.

Akwuba, who was arrested at the time of the assault, was arrested again Tuesday on a warrant and booked into the Ramsey County jail. His wife could not be reached Tuesday for comment.

The court's opinion does not disclose whether the conviction involved the above-reported incident. (Mike Frisch)

November 18, 2015 | Permalink | Comments (0)

Novel Issues And Ineffective Assistance

A recent opinion of the Rhode Island Supreme Court rejects an ineffective assistance claim where the law was uncertain.

The applicant, Curley Snell, appealed from a judgment of the Superior Court denying his application for postconviction relief.  On appeal, Snell contended that the hearing justice erred by rejecting his claim of ineffective assistance of counsel.  Snell argued that his trial counsel was ineffective when he stipulated to two previous domestic assault convictions in the jury’s presence.

The Supreme Court held that Snell’s trial counsel was not ineffective.  The Court stated that it had yet to interpret the Domestic Violence Prevention Act, G.L. 1956 § 12-29-5, to determine whether the prior convictions required therein are deemed elements of the underlying offense or merely sentencing factors.  The Court emphasized that, because this was a novel legal issue, Snell’s trial counsel cannot have been ineffective for failing to raise it.  The Court also held that the trial counsel’s stipulation was not objectively unreasonable, as it may have been trial strategy.  The Court went on to note that, even if Snell were to establish that his trial counsel was ineffective, Snell would be unable to show that the stipulations were prejudicial.

(Mike Frisch)

November 18, 2015 | Permalink | Comments (0)

Dismissed Criminal Charges Can Form Basis For Ethical Violation

The web page of the Idaho State Bar reports on a sanction imposed for multiple DUIs

On July 19, 2013, the Idaho Supreme Court entered a Disciplinary Order suspending Mr. Kime for one year, with all one year withheld, based on Mr. Kime’s felony conviction for driving under the influence of alcohol (“DUI”). The Disciplinary Order placed Mr. Kime on disciplinary probation through April 3, 2015, and required that he comply with the conditions of his criminal probation, which prohibited any consumption of alcohol. Thereafter, Mr. Kime consumed alcohol in violation of the terms of his criminal and disciplinary probations. Consequently, on May 8, 2014, the Idaho Supreme Court entered a Disciplinary Order imposing the one-year suspension that was previously withheld.
           In November 2015, while still on criminal probation, Mr. Kime was stopped by law enforcement while driving his vehicle after consuming alcohol. He was charged in Kootenai County with felony DUI. The Court subsequently determined the traffic stop was illegal and the criminal charge was dismissed. As part of the resulting disciplinary case, Mr. Kime admitted that his conduct violated I.R.P.C. 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects).

The Disciplinary Order provides that twelve (12) months of Mr. Kime’s twenty-seven (27) month suspension is withheld subject to the terms of his two (2) year probation upon reinstatement, with terms including the following: avoidance of any alcohol or drug-related criminal acts or traffic violations; a program of random urinalysis, with provision that if Mr. Kime tests positive for alcohol or other tested substances or misses a random urinalysis test without prior approval, the entire withheld suspension shall be immediately imposed; and if Mr. Kime admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during his period of probation, the twelve (12) month withheld suspension shall be imposed. 

(Mike Frisch)

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

Across The Pacific

The New York Appellate Division for the First Judicial Department affirmed the dismissal of claims against Davis Polk & Wardwell

The motion court providently exercised its discretion and properly balanced the factors set forth in Islamic Republic of Iran v Pahlavi (62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]; Matter of Alla v American Univ. of Antigua, Coll. Of Medicine, 106 AD3d 570, 571 [1st Dept 2013]). As the motion court observed in evaluating the situs of the events at issue, plaintiff "reached across the Pacific" to recruit the partner he claims to have introduced to the defendant law firm, and all discussions occurred with that partner located in Hong Kong.

Plaintiff claims that Hong Kong is not an adequate forum on the basis that he would be unable to retain counsel on a contingency fee. Here, however, where the negotiations at issue were directed to Hong Kong, and key witnesses were located there, the motion to dismiss was properly granted (see Emslie v Recreative Indus., Inc., 105 AD3d 1335, 1336-1337 [4th Dept 2013]; cf. Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 327-328 [1st Dept 1991]).

Plaintiff further ignores the hardship to defendants whose key witnesses are located in Hong Kong, the noted admissibility problems with respect to electronic discovery, and the likely application of the law of Hong Kong. Since this action is almost entirely concerned with events and law in Hong Kong, it cannot be said that the action has a "substantial nexus" with New York (Tetra Fin. (HK) v Patry, 115 AD2d 408, 410 [1st Dept 1985]).

(Mike Frisch)

November 18, 2015 in Clients | Permalink | Comments (0)

Tuesday, November 17, 2015

Sex Crimes Get Illinois Attorneys Disbarred

The Illinois Supreme Court has ended the much-publicized disciplinary matter involving attorney Paul Weiss with an order of disbarment. 

We had this story on the April 2014 hearing board report.

The hearing [board] has proposed a 30-month suspension for a series of sexually harrassing acts against female employees,  a neighbor and a stranger.

Our earlier post links to and quotes the findings of behavior set forth in great detail that is truly horrific.

Given the nature and extent of the acts against subordinate lawyers, staff and even neighbors described in the hearing board report, I boldly predicted

I suspect this will end in a disbarment.

The Review Board had also recommended a lesser sanction of 30 months suspension over the dissent of Richard Green

While I agree with my colleagues with respect to their agreement that the findings of the Hearing Board are not against the manifest weight and their analysis of the applicable law, I must disagree as to the recommended sanction. Respondent engaged in similar conduct in the 1990's, was disciplined and was to get treatment. Rather, he continued his bad behavior and in fact escalated it. Nothing in the record shows that he will not continue with the misconduct. Clearly this behavior leads the profession into disrepute. I would recommend that Respondent be disbarred.

The prior misconduct was described by the Review Board

The Hearing Board correctly considered his prior discipline in aggravation. Factors in aggravation revealed that, in 1993, while 26 years old, Respondent attended a high school girls' volleyball game where he first saw a 17 year old girl he did not previously know. In November and December of 1993, Respondent made at least six obscene telephone calls to the girl, resulting in his arrest in February 1994 and conviction in March 1994 for telephone harassment. In addition, between November 1993 and April 1994, Respondent made six to eight obscene phone calls to another woman, a fellow associate working with him at a Chicago law firm. From December of 1994 to January 1995, while on supervision for the telephone harassment conviction, Respondent made at least four obscene phone calls to a woman who had been a paralegal at the firm where he worked. During March 1993, again in the Fall of 1993, and in September 1994, Respondent made a number of obscene phone calls to yet another woman.

The court sustained the Administrator's exception as to sanction.

The petitions by the Administrator of the Attorney Registration and Disciplinary Commission and respondent Paul M. Weiss for leave to file exceptions to the report and recommendation of the Review Board are allowed, and respondent Paul M. Weiss is disbarred.

CBSChicago noted that eBossWatch  named him one of 2014's Worst Bosses in America.

The Illinois State Bar Association has summaries of the disciplinary orders entered on November 17 including another sex offense disbarment

Mr. Hedges, who was licensed in 2005, was disbarred on consent. He pled guilty to a Michigan-based charge of attempted criminal sexual conduct. In his plea, he admitted that he attempted to engage in sexual conduct with an individual by using force or coercion, but failed in the perpetration of the sexual conduct. He was sentenced to a 30-day term of incarceration and a 24-month period of probation.

(Mike Frisch)

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

Business Development Plan Leads To Disbarment

An attorney has been disbarred by the New York Appellate Division for the First Judicial Department as a result of a criminal conviction

...conviction of any criminal offense classified as a felony under the laws of New York results in automatic disbarment by operation of law. On March 25, 2015, Respondent pleaded guilty in Supreme Court, New York County, to bribery in the third degree in violation of Penal Law § 200.00, a class D felony, and was sentenced to six months incarceration and five years probation. Respondent's conviction stems from his paying a New York City Criminal Justice Agency employee money to persuade criminal defendants to retain respondent as their attorney.

 From the New York Post

 One of three criminal-defense lawyers accused of paying a court employee thousands of dollars to funnel defendants their way has pleaded guilty.

Dwane Smith, 56, copped to bribery in Manhattan Supreme Court in exchange for six months in prison, authorities said.

Smith allegedly paid an employee of the Criminal Justice Agency, which interviews defendants before they’re arraigned, $10,000 to send him more than 50 clients.

The employee allegedly got a total of $40,000 from the three lawyers.

The cases against the other lawyers, Benjamin Yu and Jae Lee, are pending.

(Mike Frisch)

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

Former Cozen O'Connor Attorney Gets Three Years

A three-year suspension was imposed by the New York Appelate D ivision for the First Judicial Department nunc pro tunc to an earlier suspension.

LAW360 reported on the  suspension

A New York appeals court on Thursday suspended a former Cozen O'Connor attorney from practicing law after he admitted in January to charging a client of another law firm that he had previously worked at for his personal travel expenses.

John D. Horenstein, who told the Appellate Division of New York Supreme Court's disciplinary committee that he resigned from that firm for making the allegedly fraudulent billing to its client, had billed for more than $40,000 for six personal trips to Dallas, according to the committee.

The firm whose client he allegedly charged for the trips was Condon & Forsyth LLP, and Horenstein later worked for Cozen O'Connor in 2012, according to Reuters. Horenstein is no longer listed on Cozen O'Connor's website. The appeals court's slip opinion Thursday did not identify the law firms by name, and neither an attorney for Horenstein nor the law firms could be immediately be reached for confirmation Thursday.

“An attorney is guilty of professional misconduct immediately threatening the public interest such that suspension is warranted … when he or she converts or misappropriates client funds for personal or business expenses,” the court said Thursday. “Specifically, the committee's evidence, which [Horenstein] contends is substantially accurate, indicates that respondent converted and/or misappropriated client funds inasmuch as he billed his prior firm's client [ over $40,000] for legal fees not actually incurred by the client, which expenses respondent actually incurred for purely personal reasons.”

Horenstein admitted to billing the Condon & Forsyth client, who was not identified, after the client questioned the charges, which he billed between February to July 2011 when he took the trips, according to the opinion.

In March, Horenstein submitted the billing records to the disciplinary committee, which found also that Condon & Forsyth had begun its investigation after the client questioned the allegedly fraudulent charges, the opinion said.

“When the firm asked [Horenstein] for an explanation, he confirmed that he had in fact billed the firm's client for expenses not incurred by the client and which were instead purely personal,” the court said.

Horenstein in May confirmed to disciplinary committee the details of Condon & Forsyth's claims about his conduct and allegedly fraudulent charges to the client, according to the opinion.

Horenstein is represented by Richard M. Maltz.

The case is In the Matter of John D. Horenstein, case number M-3078, in the Supreme Court of the State of New York, Appellate Division, First Judicial Department.

(Mike Frisch)

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

Zacharias Prize Recipients Named

Samuel Levine of Touro Law Center has announced that the winners have  been selected for the sixth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Elizabeth Chamblee Burch, for her article Judging Multidistrict Litigation, 90 NYU L. Rev. 71 (2015), and Morris A. Ratner, for Class Counsel as Litigation Funders, 28 Geo. J. Legal Ethics 271 (2015). The Prize will be awarded at the AALS Annual Meeting in New York in January. Congrats! (Alan Childress)

November 17, 2015 in Judicial Ethics and the Courts, Law & Business, Professional Responsibility | Permalink | Comments (0)

Attorney Cannot Enforce Agreement Due To Failure To Comply With Rule 1.8(a)

A decision issued today by the North Carolina Court of Appeals

This case presents as an issue of first impression the question of whether an attorney who enters into a business transaction with a client as compensation for a legal representation can be barred from enforcing the terms of their agreement based on the attorney’s failure to comply with the explicit requirements of Rule 1.8(a) of the North Carolina Rules of Professional Conduct.

The attorney represented the client in a patent matter. After a period of time, he took an interest in the client's patent.

On 19 March 2010, shortly after the Notice of Allowance was issued, Priest and Coch met to discuss entering into an agreement (“the Agreement”) regarding how to generate revenue through licensing the patent. Given Coch’s concerns that he and IP were financially unable to pay the same rate Priest had charged to file the patent application, the two men also discussed how best to compensate [attorney] Priest for the work his firm had already performed without pay since 2009. Eventually, they agreed in principle that going forward, Priest and his law firm would continue to prosecute and maintain IP’s patent and pay 25% of the actual costs of doing so, with the remainder split evenly between Coch, Knight, and Smith, in return for Priest receiving 25% of the proceeds Priest helped to generate from the patent. Coch’s contemporaneous emails to Knight and Smith demonstrate that Coch believed the Agreement’s terms would make Priest “an equal partner in pushing the Patent forward” based on the rationale that “there is still work to be done, of which I don’t know anything and [Priest] is willing to do it for his equity portion.” At the end of the meeting, Priest agreed to draft the Agreement and send it to Coch for his input and signature. 

The attorney sued to enforce the eventual agreement.

The court

we agree with the trial court’s observation that the Rule itself reflects the special obligation the attorneys of this State have when dealing with their clients, and we share the trial court’s conclusion that, for the sake of maintaining the public’s trust, attorneys should be held to abide by Rule 1.8(a)’s explicit requirements as a condition of their own recovery when that recovery is based on business transactions with their clients. While this may be an issue of first impression in our State, we note that courts in other jurisdictions have reached the same conclusion as we reach here.

The court affirmed the lower court judgment refusing to enforce the agreement due to the ethical violation. The attorney also failed to recover on a quantum meruit theory. (Mike Frisch)

November 17, 2015 in Billable Hours | Permalink | Comments (0)

Monday, November 16, 2015

Disbarment Not Deferred

A failed effort to deal with the requirements of ethical practice has led to the disbarment of a South Carolina attorney.

In May 2014, a circuit court judge forwarded ODC a motion filed by respondent in a civil case in which he admitted he had neglected the case and had failed to keep his clients informed of the status of the proceedings. In response to the Notice of Investigation, respondent represented to ODC that his failing in the case resulted from depression, that he had been in touch with Lawyers Helping Lawyers, that he was getting the recommended treatment, and that his other cases were in order and unaffected by his condition.

Respondent proposed a deferred discipline agreement which was accepted by an Investigative Panel of the Commission on Lawyer Conduct (the Commission) on October 17, 2014. In the deferred discipline agreement, respondent admitted to violations of the Rules of Professional Conduct and agreed to comply with certain terms and conditions, including completing the South Carolina Bar's Legal Ethics and Practice Program (LEAPP) Ethics School and Law Office Management School within nine months, seeking treatment with a psychologist, contacting his Lawyers Helping Lawyers' monitor on a weekly basis, and filing quarterly reports to the Commission for a period of two years.

On March 2, 2015, respondent self-reported that he had not complied with the terms of his deferred discipline agreement. As a result of respondent's failure to comply with the terms of the deferred discipline agreement, the Investigative Panel terminated the agreement.

There were a number of matters that involved misconduct in addition to the failure to comply with the deferred discipline agreement. (Mike Frisch)

November 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thefts Draw Prison And Disbarment

The Georgia Supreme Court has disbarred an attorney convicted of mail fraud and aggravated identity theft.

The FBI Atlanta Division reported the conviction.

Wilson R. Smith, 63, a former attorney from Vidalia, Georgia, was sentenced earlier this week by Chief United States District Court Judge Lisa Godbey Wood to serve eight years in federal prison for a scheme to settle his clients’ cases without their knowledge and to steal the settlement proceeds. Smith pled guilty in May to mail fraud and aggravated identity theft charges.

According to evidence presented during the sentencing hearing, Smith settled two separate personal injury cases from 2013 to 2014, without his clients’ knowledge or authority, and then kept the $1.25 million in settlement proceeds for himself. Smith delayed detection of his scheme by providing his clients with phony case updates, including fictitious trial dates. One of Smith’s clients became concerned about supposed trial delays and contacted a court clerk. The client was told that the lawsuit had been settled and dismissed for over a year. Shortly thereafter, on January 14, 2015, Smith was arrested by the Georgia Bureau of Investigation (GBI). Later, Smith was indicted on federal fraud charges in February of 2015. Additional investigation determined that Smith schemed at least 10 victims out of settlement proceeds and other monies held in his attorney trust account.

United States Attorney Edward Tarver stated, “This former attorney chose greed over the interests of his clients. He caused great harm to the clients he swore to protect and to the entire legal system. Attorneys who lie, cheat and steal can expect that their lawyering days will soon be over and that they’ll find themselves in a federal prison cell.”

In addition to an eight-year prison sentence, Smith was ordered to pay $1,285,000 in restitution. After his released from prison, Smith will serve three years on supervised release.

The investigation of the Smith case was conducted by the GBI, the District Attorney’s Office of the Middle Judicial Circuit, and the FBI. First Assistant United States Attorney James D. Durham prosecuted the federal case on behalf of the United States.

He had been suspended pending this order. (Mike Frisch)

November 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reinstatement Granted

The Massachusetts Supreme Judicial Court granted reinstatement to an attorney who aided a client fraud under somewhat sympathetic circumstances.

The attorney represented the mother of a 17 year old daughter who lived with her father in a southern state, The daughter ("Sally") was hospitalized for a drug overdose while visiting the mother,


On Friday night September 14, 2007, Sally's mother managed to remove Sally from a DCF group activity. Ex. 4 (90); Tr. 13 (Petitioner). Worried that.DCF would look for Sally at her home, the mother left her near a dumpster in the rain, called the petitioner, told him she had 'taken Sally, infom1ed him where she had left her and asked him to. pick Sally up. Ex. 4 (90); Tr. 13 (Petitioner). The petitioner did so. He did not call the police or DCF, because Sally had just had bad experiences with both. Ex. 4 (90). He advised her to go back to DCF custody .. Id. When she refused, he arranged for friends (who were actually clients) to let her stay at their house for the night. Ex. 4 (90-91 ); Tr. 13, 31 (Petitioner). The petitioner felt like this was an emergency, and his primary concem was for Sally's safety. Ex. 4 (90); Tr. 13-14 (Petitioner).

The next day, the petitioner and his wife went to the friends'·house to speak with Sally. Ex. 4 (91 ); Tr. 14. He again encouraged her to go back to DCF; she again refused. I d.; Tr. 83-84 (Sandra Hession). Sally expressed an intention to retum to her father's home in a southern state, and said that she would hitchhike if necessary. Ex. 4 (91); Tr. 18-20 (Petitioner). The petitioner and his wife gave Sally clothing and $300 in cash for a bus ticket to return to her father's home. Ex. 4 (91). The mother was informed that Sally had left to go to her father's home and, after the petitioner learned she had safely arrived, the mother was so apprised. Ex. 4 (91-92).

Days later, at the hearing on· September 19, 2007, the petitioner appeared before the new judge and told him that Sally had "apparently" left DCF custody. Ex.' 4 (92). Asked by the judge if the mother had any idea where Sally was, the petitioner gave a vague description of Jane having received a call from Sally; explained that Jane had told him that Sally was "local"; and concluded that he didn't think Jane knew much more than that. Ex. 4 (93).

Counsel for DCF asked to examine Jane. Id. The petitioner asked for and was allowed a brief recess to speak with her. After she was put under oath, Jane took the stand and made numerous misrepresentations, among them that she believed Sally was somewhere in the New England area; that Sally had assured her she would appear in court that day; and that Jane would contact DCF in the event Sally were to return home. Ex. 4 (94).

The court here concluded that a "humanitarian impulse" motivated the misconduct.

We note that after he was suspended, the petitioner spent the first two months working around his farm, where he and his wife raise many sheep and goats. Tr. 11, 26-27 (Petitioner). He observed that he spent time thinking about what he had done, and noted that farm work is "really good" for that. Tr. 26-27 (Petitioner). He also got a job in a carpet store, where he worked until fairly recently. Tr. 26 (Petitioner). In terms of charitable endeavors and conimunity work, the petitioner wrote that he used to engage in a great deal of such work, prior to his suspension, but since the suspension and due to extreme time constraints, his only ·community activity is church involvement. Ex. 1 (8). He did not discuss charitable work at the hearing. However, there was testimony that he.generally attends church regularly, both Saturday night and Sunday morning. Tr. 92 (Lukens)...

We are satisfied that the petitioner now has a better grasp of the proper balance between zealous advocacy and candor to the tribunal, such as to make unlikely a future lapse.4.

The suspension was for a year and a day. (Mike Frissch)

November 16, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, November 13, 2015

Admitted: "I'm From The South Side"

An Illinois attorney accused of criminal misconduct arising out of a DUI arrest and other matters has filed his answer to the charges.

5. During the arrest, Respondent told the three officers repeatedly that they were "assholes." Respondent made the statement "I'm from the south side. I know people and we will find you." Sgt. Ketelsen asked Respondent if that was a threat and Respondent answered that it was "a fucking promise." Respondent informed Deputy Wernet that he was an attorney.

ANSWER: Respondent admits that he said that he was from the South Side, that he was an attorney, and that he knew people, by which he was referring to numerous attorneys, some of whom practiced criminal law. Respondent denies the remaining allegations of Paragraph 5, including the allegations that, during the arrest, he told the three officers repeatedly that they were "assholes," that he said that "we will find you," that Sgt. Ketelsen asked Respondent if that was a threat and Respondent answered that it was "a fucking promise." Further answering, Respondent states that, when the police officers were removing the Eagle Ridge room key from his pocket as he sat handcuffed in the back of the squad car, one of the officers remarked that they would drive Respondent's girlfriend back to the hotel where she would be "all alone" in the room, and that they would take care of her, which Respondent interpreted as lewd and threatening.

6. Deputy Wernet proceeded to transport Respondent to the Jo Davies County jail. During the transport, which was videotaped, Respondent repeatedly stated that there was no probable cause for his arrest and that it was unjust. Respondent again stated thathe was from the south side and above the law. Respondent stated "you hurt me, I will hurt you," and "If you want a war, we will go to war."

ANSWER: Respondent admits that Deputy Wernet proceeded to transport Respondent to the Jo Davies County jail, that during the transport, which was videotaped, Respondent repeatedly stated that there was no probable cause for his arrest and that it was unjust, that he stated that he was from the South Side, which was intended as a reference to the fact that he knew criminal defense attorneys who could represent him in defending against any criminal charges and in asserting possible civil claims, and that he stated "you hurt me, I will hurt you," and "If you want a war, we will go to war," which comments were intended to refer to his use of any and all legal means to defend himself and to bring any motions or civil actions that may be warranted and available to him under the law. Respondent denies the remaining allegations of Paragraph 6, including that he said that he was above the law.

Illinois has the most detailed charging documents and requires a line-by-line response. (Mike Frisch0

November 13, 2015 | Permalink | Comments (0)

Bill Of Particulars

The District of Columbia Court of Appeals has granted rehearing and issued a corrected opinion in a disbarment matter  to correct its discussion of Bar Counsel's purported failure to provide the attorney a bill of particulars.

Mr. Barber next argues that he received insufficient notice of the charges against him because the Specification was “nothing more than a ‘shotgun pleading’” that did not adequately explain which factual assertions were used to justify which rule violations. Mr. Barber’s claim, however, is not that a bill of particulars was erroneously denied—it is that his constitutional right to due process was violated. We find no merit to this contention. Even assuming that the Specification was in some way deficient, Bar Counsel, in its opposition to Mr. Barber’s motion to dismiss, identified the factual allegations in the Specification that supported the particular rule violations of which Mr. Barber claimed to be uncertain. Moreover, at the outset of the hearing, Bar Counsel briefly went through each charge and explained which facts in particular supported each charge. The Constitution requires nothing more .

The court's revised opinion reflects its rjection of a host of other procedural claims. (Mike Frisch)

November 13, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 12, 2015

A Vow For Better Future Conduct Falls On Deaf Ears

An attorney with a record of prior discipline has been suspended for two years and until further order by the New York Appellate Division for the Second Judicial Department.

The priors

The respondent has an extensive prior disciplinary history, consisting of: (1) a letter of caution in September 1996, for neglecting an immigration matter and for failing to timely apply for relief from deportation, resulting in the client's deportation; (2) an admonition in January 1998, for neglecting a matrimonial matter and failing to keep his client apprised of its status; (3) an admonition in October 2001, for failing to satisfy an outstanding default judgment against him arising out of his failure to pay rent on his law office; (4) an admonition in October 2001 for neglecting personal injury matters entrusted to him by two clients; (5) an admonition, personally delivered in December 2008, for neglecting four separate legal matters (for the same client) and for entering a business transaction with that client by improperly borrowing money from him; and (6) an admonition, personally delivered in November 2012, for neglecting a matrimonial matter and for failing to advise the client that he had moved his law office.

Here, the misconduct involved both neglect and a loan from a client.

Having admitted the charges, the respondent seeks mercy or leniency, and would like to see fairness done. In mitigation, he states:

"I acknowledge that my regrettable misconduct has brought shame on you as attorneys. I intend to do better in the future. I have tried my best to mitigate the damages by refunding all legal fees to Rafael Camaron in Charge One and by making full payment with interest to Anthony Rechais in Charge Two."

The respondent's neglect of client matters is longstanding, for which he was repeatedly admonished in the past. Although apologetic, the respondent has undertaken no meaningful steps or measures to remedy his neglectful conduct. Notwithstanding the respondent's remorse and vows to do better in the future, we find that a two-year suspension is warranted in view of the respondent's extensive disciplinary history, which we consider to be an aggravating factor.

November 12, 2015 in Bar Discipline & Process | Permalink | Comments (0)