Monday, July 14, 2014
The Indiana Supreme Court ordered a suspension of six months with all but 60 days stayed on probation as a result of an attorney's driving offenses
In 1995, prior to his admission to the bar, Respondent was convicted on a guilty plea to Operating While Intoxicated ("OWI"), a class A misdemeanor. Respondent reported this conviction on his application for admission to the bar.
Since his admission to the bar in 1998, Respondent has been charged on seven occasions with traffic violations between April 2003 and November 2012. The first six occasions included a charge of OWI, two of which involved endangering a person. Other charges included exceeding the speed limit, unsafe lane movement, following too closely, and failure to yield. The seventh occasion resulted in a charge of a failure to stop after an accident with non-vehicle damage.
Respondent was convicted on a guilty plea to one count of reckless driving arising from the April 2003 incident. On December 3, 2013, he was convicted on a guilty plea to one count of operating with a B.A.C. of at least 0.15, a charge arising from an incident in July 2009. The remaining charges were all dismissed in conjunction with plea agreements, a pre-trial diversion agreement, or pursuant to Criminal Rule 4 (discharge for delay in criminal trials).
The probation will be supervised by the Judges and Lawyers Assistance Program. The attorney will be suspended without automatic reinstatement if he violates the conditions. (Mike Frisch)
Friday, July 11, 2014
A former assistant state's attorney for Cook County has been charged with ethics violations arising out of an incident described in allegations by the Illinois Administrator.
The complaint alleges that the attorney and a companion attended a Cubs game on September 22, 2012. They drank at the game and later at a bar and restaurant with family and friends.
The complaint recites that they went to an adult merchandise store called Taboo Tabou and caused a disturbance there. An employee called for help from the establishment next door, the Blue Hawaii.
David Boone, the employee from Blue Havana, arrived and repeatedly asked Respondent and [companion] Gould to leave, but they only became more belligerent. Respondent went into her purse again and presented her States Attorney's badge to Boone. Respondent swung at Boone. Boone tried to walk away from her, but Respondent fell. Respondent got up and then began running down the street, yelling that she had been "assaulted." At the same time, Gould began videotaping Boone with his cell phone which he positioned directly in front of Boone's face. The phone hit Boone and Boone hit the phone out of Gould's hand. Gould attempted to hit Boone, but Boone punched him and Gould hit his head on the metal window frame. Respondent then charged at Boone, fell to the ground, grabbed Boone's leg and bit him, breaking the skin and causing injury to Boone's knee. Several bystanders pulled Respondent off of and away from Boone.
The police arrived and placed Respondent in handcuffs and in a police SUV where she managed to get her hands out of the handcuffs. Respondent was taken out of the SUV by a female officer, re-handcuffed and put back in the vehicle. Respondent told the officer at least six times that she was an Assistant State's Attorney. Respondent called the officer "a cunt, slut, bitch whore, and dyke" and slapped at her. Respondent got out of the handcuffs again and was kneeling on the floor of the vehicle attempting to vomit. Respondent was taken out of the vehicle again and, while sitting on the curb, proceeded to try to make herself throw up while screaming obscenities.
After the police interviewed witnesses, Respondent and Gould were arrested. Respondent was ultimately charged with attempted official misconduct, battery, resisting arrest, criminal trespass to property, assault and disorderly conduct.
The attorney and the companion were acquitted of the criminal charges but she is no longer an assistant state's attorney. (Mike Frisch)
A disciplinary record in another jurisdiction is not a bar to admission on motion, according to an opinion granting admission to an applicant by the Nebraska Supreme Court.
The court admitted the attorney based on its de novo review of the adverse decision by the State Bar Commission.
The applicant is an honorably discharged Navy veteran.
She was admitted in Colorado in 2008 and Alabama in 2000. She has no disciplinary record in Colorado but was the subject of several disciplinary invesigations in Alabama.
She is in good standing in both jurisdictions.
Most of the Alabama complaints were "screened out" or dismissed. These were not disclosed in the Nebraska application, which the applicant stated was an oversight.
She disclosed two other actions --a private and a public reprimand.
There were also issues involving non-disclosure of a criminal record and her credit history.
While we do not condone these inaccuracies in [her] application, we are willing to accept [her] explanations and conclude that they are not indicative of reckless behavior which would preclude her admission in Nebraska.
Thursday, July 10, 2014
The Washington State Supreme Court has imposed a two-year suspension of an attorney for conflicts of interest and related violations in his creation and management of an elderly client's estate.
As to conflicts
The hearing officer held that Hall violated [conflicts] RPCs because he named himself as alternate trustee and health care representative, and gave himself power of attorney without fully explaining to the Keens the legal effects of these roles, including the ways in which these roles could conflict with his own interests and, in turn, adversely afiect their interests...
Being in control of Margaret's assets was in Hall's personal interest and thus there was a significant risk that his representation of the Keens could be limited by this interest. Further, there is substantial evidence that Hall did not obtain informed consent to his acquiring a pecuniary interest in Margaret's estate in the form of an $8,000 per year trustee's fee. Hall argues that the waiver provisions in his engagement letter and the will and Trust were sufficient to serve as informed consent. These waiver provisions, however, only purportedly waive the conflict created in Hall being able to hire himself for legal work for the Trust and/or the estate. They do not explain whether Hall was representing the Keens or himself in appointing himself to these roles, as is required by RPC 1.8(a)(3). There was also substantial evidence that Margaret had difficulty even reading the documents she signed and that Hall failed to read them out loud, word for word. Finally, informed consent also requires "adequate information and explanation about ... reasonably available alternatives to the proposed course of conduct." RPC 1.0( e). Here, expert witness Barbara Isenl10ur testified at the hearing that professional trust agencies are a much better option than attorneys because they are more knowledgeable and cheaper. There is no indication that Hall informed the Keens, in writing or otherwise, of such a reasonable alternative to appointing himself as future trustee.
The court affirmed findings that the attorney charged an excessive fee and failed to return original documents.
Finally, the attorney's visit to successor counsel (retained to revise the docum,ents he drew up) was prejudicial to the administration of justice.
Here's the story
On May 25, 2010, Hall made an unannounced evening visit to [attorney] Clausen's residence·---which also served as her place of business-where Clausen was with her husband and infant daughter. In a loud, angry voice, Hall called Clausen an idiot and told her that she had committed malpractice, that she was in "big trouble" and needed to "fix the problem," and that she was going to get disbarred. Verbatim Tr. of Proceedings (VTP) at 198. Clausen threatened to call the police, and Hall finally backed off, mentioning that Clausen "had a lot to lose ... a new baby and a young family and a big house" and that if he went down, she would go down. VTP at 200. Hall then sent a letter to Clausen containing random references to Communist Russia and Nazi Germany and threatening to file a lawsuit against her. Hall was removed as trustee of the Trust on May 28, 2010, but he still refused to return the original documents and continued to accuse Clausen of malpractice.
This violated the rule
...it is certainly against practice norms to show up unannounced at another attorney's home and threaten her and her family to withdraw a grievance she did not file. We affirm as to this count.
Wednesday, July 9, 2014
From the web page of the Ohio Supreme Court
The Ohio Supreme Court today publicly reprimanded a judge serving on the Akron Municipal Court for her conduct related to the 2012 arrest of a lawyer who practiced in her courtroom.
In the 5-2 decision, the court determined that Judge Joy Malek Oldfield violated two judicial conduct rules and one professional conduct rule, but rejected an argument from the Disciplinary Counsel that Oldfield violated an additional judicial conduct rule. The Disciplinary Counsel filed the complaint charging the judge.
In February 2012, Oldfield and her husband attended an evening event that lasted into the next morning. Oldfield’s husband asked Catherine Loya, the public defender assigned to the judge’s courtroom, to drive Oldfield home, and he left.
The judge and Loya left the party sometime after 1 a.m. and stopped in a shopping center parking lot. A police officer pulled up and asked them for identification. Two more police officers arrived soon after. When Loya refused to do field sobriety tests, she was arrested and taken to the police station. Oldfield asked one of the officers to take her to the station to be with Loya. During some of her interactions with the police, Oldfield mentioned that she was a judge.
At the station, Loya’s driving privileges were immediately suspended. An officer then drove both Loya and Oldfield to the judge’s house. Loya stayed at Oldfield’s house for three nights until she was permitted to drive again. For the next two weeks, Oldfield presided over 53 cases in which Loya represented clients.
In today’s majority opinion, Justice Sharon L. Kennedy wrote that the court agreed with the state disciplinary board that the judge violated two judicial rules stating that judges must act in ways that promote public confidence in the judiciary, avoid impropriety and the appearance of impropriety, and disqualify themselves from proceedings in which their impartiality might be questioned. The court also determined that the judge engaged in conduct prejudicial to the administration of justice.
Despite an objection from the Disciplinary Counsel, the court also agreed with the board’s recommendation to dismiss the alleged violation of Judicial Conduct Rule 1.3, which reads: “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”
“Our review of the record supports the findings of the panel and the board,” Justice Kennedy wrote. “[T]he [board’s] panel concluded that the evidence was contradictory and that the record, taken as a whole, did not produce ‘a firm conviction’ that Judge Oldfield used her judicial title to influence the officers to accord her or Loya special treatment or that her conduct gave the appearance that she was using her title for that purpose. We find that the panel reviewed the record using an objective standard to determine whether Judge Oldfield’s conduct created an appearance of impropriety, i.e., whether her behavior would create, in reasonable minds, a perception that she was improperly using her position to gain favor. We therefore overrule [the Disciplinary Counsel’s] objections ….”
In determining the appropriate sanction, the court considered Oldfield’s failure to disqualify herself from more than 50 cases in which Loya was representing defendants to be an aggravating factor. But the court also noted the judge’s lack of any prior disciplinary record, her open disclosure and cooperative attitude in the disciplinary hearings, and her good character and reputation. Based on these circumstances, Oldfield’s conduct, and court precedent, the majority ruled to publicly reprimand the judge.
Joining Justice Kennedy’s opinion were Justices Paul E. Pfeifer, Terrence O’Donnell, Judith L. French, and William M. O’Neill. Chief Justice Maureen O’Connor dissented in part in an opinion joined by Justice Judith Ann Lanzinger.
In her opinion, Chief Justice O’Connor agreed with the majority that Oldfield violated two judicial rules and one professional conduct rule and concurred in the sanction. However, the chief justice dissented from the dismissal of Jud.Cond.R. 1.3.
“Importantly, Judge Oldfield’s first mention of her status as a judge to the officers was gratuitous and, contrary to the majority’s characterization, more than a mere ‘remark,’” she wrote. “During the arrest, Officer Garner asked a ‘yes or no’ question — whether Judge Oldfield was a lawyer. Judge Oldfield testified that she responded, ‘Yeah, actually, I’ve been an attorney for some time and now I’m a judge.’ Judge Oldfield acknowledged that she could have responded truthfully in a number of alternative ways, including by offering simply that she was licensed to practice law. The specific mention of her judgeship in response was not solicited or required, nor should it have been offered. Indeed, it served only one purpose: to make sure that the officer knew that she was a judge.”
In addition, the judge continued to insert herself into Loya’s arrest and booking at the police station, Justice O’Connor noted.
“I find that the evidence as a whole establishes that a reasonable person would believe that Judge Oldfield abused the prestige of her office to advance her and Loya’s interests,” she concluded. “Therefore, I would sustain [the Disciplinary Counsel’s] objection to the board’s dismissal of the Jud.Cond.R. 1.3 allegation and would find that Judge Oldfield violated the rule.”
The Akron Beacon Journal had this earlier story, which reports that the police found the judge and public defender in the backseat of the car and that both were "partially clothed and smelled of alcohol."
Scene and Heard had this report. (Mike Frisch)
A recent judicial ethics opinion from South Carolina
ADVISORY COMMITTEE ON STANDARDS OF JUDICIAL CONDUCT
OPINION NO. 10 - 2014
RE: Propriety of an appellate court judge presiding over matters in which the judge’s law clerk’s parent is counsel of record or another attorney from the parent’s agency is attorney of record.
An appellate court judge has hired a law clerk whose parent is an attorney for an agency that frequently has cases before the court. The judge inquires as to whether the judge can preside over matters in which the clerk’s parent: 1) is an attorney of record but does not physically appear before the court and does not sign any filings for a particular case; 2) an attorney from the same office as the clerk’s parent signs all pleadings and makes a physical appearance but the clerk’s parent is not an attorney of record.
An appellate court judge may not preside over cases where the parent of the judge’s clerk is an attorney of record, appears on the pleadings, or makes any appearance in the case. Where another attorney from the parent’s agency is attorney of record, the judge’s law clerk is disqualified from any involvement in the case, but the judge is not disqualified.
Canon 3.E.(1)(d) states that a judge should disqualify himself or herself where the judge’s impartiality might reasonably be questioned. In addition, Canons 1 and 2 of the Code of Judicial Conduct require a judge to avoid the appearance of impropriety and act in a manner to promote the public’s confidence in the integrity and impartiality of the judiciary.
When the parent of a judge’s law clerk is an attorney of record and appears on the pleadings in the case, or makes any appearance in the case, the judge is disqualified. In matters in which another attorney from the same agency as the parent is the attorney of record and the parent makes no appearance, the law clerk is disqualified under Rule 506, SCACR, Canon 3E(4), which states that law clerk shall disqualify himself in matters in which he is related by blood or marriage to an attorney in a proceeding. Furthermore, the law clerk should be shielded from any part of the case by what is commonly known as a “Chinese Wall.” However, the disqualification of the law clerk does not extend to the judge. In addition, while the judge is not required to disclose that the judge’s law clerk has a parent who works for the same agency as attorney appearing as counsel of record, it would be wise to do so.
Tuesday, July 8, 2014
Nothing promotes de-cluttering one's office like a move or new furniture. A colleague is retiring; I bought his table and standup desk, and gave up the humungous thing they gave me when I showed up. It meant tossing lots and lots of stuff I never look at anymore (and goodbye hundreds of reprints - may you recycle into something far more valuable).
I found the notes from a talk I gave in Chicago to a 2004 meeting of the firm then called Piper Rudnick - a combination of Piper Marbury of Baltimore and Rudnick & Wolfe of Chicago soon to absorb Gray Cary, and thereafter to merge with Dibb Lupton of Great Britain to become the behemoth DLA Piper.
At the time I was the general counsel of Great Lakes Chemical Corporation. Piper had done a lot of our work under the various EPA-administered statutes that regulated household and other chemicals - TSCA, RFRA (the one dealing with rodenticides and fungicides, not the one dealing with religion), etc. It had succeeded in securing more work through a "Preferred Provider Program" our terrific Associate GC, Joanne Smith, organized. In Chicago, I was on a panel with the general counsel of AON, a senior lawyer from Boeing, and one other I can't recall now. I do remember it was a big room with a lot of people in the audience.
Ten years later, there isn't much here that I'd change - other than I wouldn't have notes on lined paper but would instead have used the Speeches app on my iPad. A reconstruction of the talk from my notes follows the break.
[Cross-posted at PrawfsBlawg and The Legal Whiteboard.]
A lawyer who had consented to disbarment in Pennsylvania received a public censure as reciprocal discipline in New Jersey.
While that might seem unusual, there were some rather unusual circumstances
The record in the matter now before us reveals that respondent’s paralegal, Bonnie Sweeten, had intercepted and concealed from respondent the petition for discipline, the equivalent of our formal ethics complaint, sent to respondent by the Pennsylvania ethics authorities. Sweeten explained her actions in an affidavit, the partial contents of which are contained in an August 25, 2009 Joint Stipulations of Fact and Law between respondent and the Pennsylvania disciplinary authorities...
The affidavit of the paralegal admited to concealing the disciplinary matter from the attorney.
However, the Pennsylvania Supreme Court later vacated the resulting suspension and remanded the matter.
Thereafter, the attorney consented to disbarment of her own accord.
The paralegal achieved a level of notoriety by a false abduction claim and embezzling her way to Disney World and then Club Fed, as reported by the Huffington Post.
But no suspension for the attorney in New Jersey based on the Pennsylvania consent for reasons the Disciplinary Review Board ("DRSB") explains
In conclusion, respondent is guilty of two separate offenses each of which would, on its own, warrant the imposition of a reprimand: practicing law while on inactive status and failing to supervise non-attorney staff. In addition, she failed to communicate with a client, used misleading letterhead and business account checks, engaged in conduct prejudicial to the administration of justice and failure to safeguard client funds. We conclude that a censure sufficiently addresses the totality of respondent’s misconduct.
The Office of Attorney Ethics ("OAE") had sought a suspension with reinstatement conditioned on reinstatement in Pennsylvania, which would be tantamount to disbarment. Remarkably, the attorney did not even see fit to participate in the New Jersey proceedings.
I can understand the position of the OAE, which would not impose disbarment because there is no possibility of reinstatement in New Jersey. OAE's proposed sanction is thus quite reasonable.
The DRB's recommendation makes no sense to me at all. And the court just rubber-stamped it.
It is my experience that an attorney (particularly if represented by counsel) does not consent to disbarment unless disciplinary counsel has the goods. The idea of reciprocal discipline is basically that other jurisdictions respect and enforce a consent unless there is some grave injustice or due process violation.
I don't see any such suggestion here.
I find it quite disheartening that the New Jersey authorities would take a consent disbarment and convert it into no suspension at all as reciprocal discipline.
Notice to all Pennsylvania attorneys who are thinking about engaging in misconduct: join the New Jersey Bar. (Mike Frisch)
An attorney who engaged in a sexual relationship with a client and lied about it to his firm and the Office of Lawyer Regulation has been publicly reprimanded by the Wisconsin Supreme Court.
The client retained the attorney to pursue a civil complaint against her former teacher and represent her in the former teacher's criminal trial. They had not had a previously intimate relationship.
In April of 2009, while the civil and criminal cases were still pending, Attorney Ruppelt and T.W. began a sexual relationship. In mid-April 2009, the Firm became aware that Attorney Ruppelt may have been engaging in a sexual relationship with T.W. while representing her. Attorney Ruppelt continued to represent T.W. until he and the Firm determined he could no longer do so, given the concerns surrounding the nature of his relationship with T.W.
On April 19, 2009, Attorney Ruppelt met with Attorney James Gatzke, and Paul Bucher, another senior attorney at the law firm, to discuss the Firm's concerns about Attorney Ruppelt's relationship with T.W. At the meeting, Attorney Ruppelt falsely represented to Attorneys Gatzke and Bucher that he had not received or exchanged any texts, e-mail, or voicemail messages of any kind with T.W. that were of a personal nature and unrelated to the law firm's representation of T.W. in her civil and criminal cases. In fact, Attorney Ruppelt had received an e-mail from T.W. on April 17, 2009, that was of a personal nature. At the April 19 meeting, Attorney Ruppelt falsely represented that he had not engaged in a sexual relationship with T.W. while representing her. Attorney Ruppelt agreed not to have contact with T.W. following the April 19 meeting. On several occasions after April 19, 2009, Attorney Ruppelt denied to Attorney Gatzke that he was involved in a romantic relationship with T.W.
In May or June of 2009, Attorney Ruppelt acknowledged to Attorney Gatzke that he was engaging in a sexual relationship with T.W. at that time.
The attorney and T.W. were married in 2010. The OLR had sought a 60-day suspension but did not appeal the referee's proposed reprimand sanction.
Justcie Bradley, joined by Chief Justice Abrahamson, dissented as the leniency of the sanction and decision of the majority not to impose full costs
I would impose full costs. SCR 22.24(1m) states the court's "general policy  that upon a finding of misconduct, it is appropriate to impose all costs." The rule then sets forth the factors to consider when determining whether to deviate from that general policy and reduce the costs.
Because the per curiam does not explain or evaluate how those factors apply in this case, there has been no showing that we should deviate from our general policy here.
The Ohio Supreme Court has imposed an interim suspension of a recently-convicted attorney.
The Columbus Dispatch reported on the criminal case
Javier Armengau, who spent the past 15 years trying to keep clients out of prison, is likely headed there after a Franklin County jury convicted him yesterday of multiple sex crimes.
The 52-year-old defense attorney shook his head and at one point wiped his eyes as guilty verdicts were read on nine of 18 counts — one of rape, one of kidnapping, four of sexual battery, two of gross sexual imposition and one of public indecency.
Common Pleas Judge David W. Fais immediately revoked Armengau’s bond. Deputies took Armengau into custody after he embraced his two attorneys as his girlfriend cried in the front row of the courtroom.
Fais scheduled sentencing for Aug. 12. The rape and kidnapping counts carry a presumption of prison. The maximum sentence for all of the convictions would be 41 years.
Jennifer Coriell, one of Armengau’s attorneys, called the verdicts “a miscarriage of justice in every way” and said an appeal will be filed. She said the accusers’ testimony included inconsistencies and the judge allowed jurors to hear “a lot of testimony that should have been kept out.”
Frederick Benton, his other attorney, said he was disappointed for Armengau.
The Ohio attorney general’s office released a statement on behalf of the prosecutors: “We believe this case is a significant victory for victims of sexual assault.” Assistant Attorneys General Daniel Breyer and Melissa Schiffel prosecuted Armengau at the request of county Prosecutor Ron O’Brien, who wanted to avoid a conflict of interest.
The charges were brought on behalf of five women, all of whom testified — three former clients and the mothers of two clients. Armengau was convicted of charges involving three of the women. None was in the courtroom for the verdicts.
Six of the nine guilty verdicts, including the most-serious offenses, involved one woman. Armengau was convicted of rape and kidnapping as well as four counts of sexual-battery of a 46-year-old Venezuelan immigrant who testified that he repeatedly forced her to perform oral sex after she hired him to handle her divorce in 1998. She said she complied with those demands as well as two times when he forced her to engage in intercourse because he threatened she could be deported and separated from her daughter.
The jury acquitted Armengau of four other rape counts involving the woman.
Armengau’s attorneys filed a motion for a mistrial on Thursday, arguing that the attorney general’s office had a duty to inform them that the woman had asked for its help with her immigration status so she could stay in the United States. In a response filed yesterday, the prosecutors said they were under no such obligation because “there was absolutely no agreement between the witness and the prosecution” to provide assistance in exchange for her testimony.
The judge hasn’t ruled on the motion.
The jury also convicted Armengau of one count each of gross sexual imposition and public indecency involving Catherine Collins, the 43-year-old mother of a client. She testified that Armengau grabbed one of her breasts and exposed himself to her on April 4, 2013, when they met at his Brewery District office to discuss her son’s murder case. He was found not guilty of kidnapping her during the assault by restraining her.
Her allegations and audio of secretly recorded phone calls and a restaurant meeting between her and Armengau led to his arrest last year. Although The Dispatch doesn’t usually identify victims of sexual assault, Collins told her story to the newspaper last year and agreed to be named.
The other guilty verdict was for a count of gross sexual imposition of a 33-year-old woman who testified that Armengau grabbed one of her breasts and masturbated in front of her when she visited his Marion office to discuss her criminal case in September 2008. She said she filed complaints with the Marion police and the Ohio Supreme Court, and a new attorney was appointed for her.
The Supreme Court disciplinary counsel was unable to substantiate the complaint, and a police report wasn’t introduced at trial.
The jurors acquitted Armengau of charges related to a 49-year-old woman, who testified that he forced her to perform oral sex in a courthouse conference room after her son was sentenced to prison in August 2008, and a 38-year-old woman, who said Armengau forced her to perform oral sex dozens of times during the years he represented her in cases and she worked part time in his office.
The 49-year-old woman also testified that Armengau tried to get her to perform oral sex on Judge Richard A. Frye, who was handling her son’s cases, at the lawyer’s office on the night before sentencing. That accusation did not result in a criminal charge, but Frye testified for the defense, saying he had never been to Armengau’s office and calling prosecutors “reckless” for including the allegation in their case.
The jury of eight women and four men deliberated for about 11 hours over parts of three days after hearing more than three weeks of testimony. The jurors left the courthouse shortly after their verdicts were announced, declining to speak to the attorneys or reporters.
Armengau testified for nearly 12 hours over three days, denying the allegations and insisting that he was the victim of a personal vendetta by prosecutors and police.
The felony convictions can be the basis of an interim suspension of his law license once the Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline receives a certified copy of the judgment entry, said Joseph Caligiuri, chief assistant disciplinary counsel.
The Columbus Bar Association filed a motion on June 20 asking the Supreme Court to immediately suspend Armengau’s license. The court hasn’t ruled on the request.
Monday, July 7, 2014
An attorney was suspended for not less than one year without automatic reinstatement by the Indiana Supreme Court.
Respondent maintained an account for client funds ("Trust Account"). At least as early as December 2005, Respondent had a negative balance in the Trust Account. The Commission sent him a request for an explanation on March 31, 2006. From that date through 2013, Respondent failed to respond to or made incomplete responses to 25 demands for information by the Commission. On three occasions, the Commission filed petitions to show cause why Respondent should not be suspended for noncooperation. In two cases, Respondent cooperated before entry of a suspension order. In the third case, the Court suspended him before he cooperated sufficiently with the Commission to be reinstated.
Respondent made disbursements from the Trust Account using a check-by-phone system. He made disbursements from the Trust Account for personal purposes; for example, paying for his child's private school tuition. From December 16, 2006, through March 3, 2010, Respondent made approximately 47 transfers from the Trust Account that were not based on written withdrawal authorization or that were made payable to "cash." He failed to create and maintain sufficient records and a contemporaneous ledger for his Trust Account. In addition, Respondent held money on behalf of clients in a PayPal account, which was not an IOLTA account.
An application for bar admission was rejected on character and fitness grounds by the New York Appellate Division for the Third Judicial Department
Applicant was a defendant in litigation arising from a business he began prior to attending law school. The litigation was settled and a consent decree entered. Thereafter, applicant violated the consent decree and was held in contempt and ordered to disgorge profits and pay counsel fees, totaling $73,352. The judgment has been paid, although the business has since failed. The Committee found not only that applicant violated the consent decree, but also that he lacked candor in his testimony about the matter and failed to accept responsibility for his conduct. The Committee also found irresponsible the manner in which applicant conducted certain financial matters as the business closed.
We conclude that the Committee carefully considered applicant's testimony and found it wanting, and reasonably concluded on all of the evidence that applicant does not presently possess the character and general fitness required of an attorney and counselor-at-law.
The applicant's name is not disclosed in the court's order. (Mike Frisch)
Tax shelter architect Paul M. Daugerdas has filed a motion to consent to disbarment in Illinois based on his criminal conviction
On June 23, 2009, a grand jury in the Southern District of New York returned a 27-count indictment against Movant and others (United States of America v. Paul M. Daugerdas, et al., docket number 09 CR. 581). Several superseding indictments were filed, the final one, consisting of 17 counts, on July 1, 2013. Count One of the final superseding indictment charged Movant with conspiracy to defraud the United States, in violation of Title 18, United States Code, Section 7201, and Title 18, United States Code, Section 1343. Counts Two through Eleven and Fourteen through Sixteen charged Movant with tax evasion, in violation of Title 26, United States Code, Section 7201, and Title 18, United States Code, Section 2. Count Thirteen charged Movant with corrupt endeavor to obstruct and impede the internal revenue laws, in violation of Title 26, United States Code, Section 7212(a). Count Seventeen indictment charged Movant with mail fraud, in violation of Title 18, United States Code, Sections 1341 and 2...
Count One of the superseding indictment charged Movant with participating in a scheme by which, between 1994 and 2004, he and others acted to defraud the Internal Revenue Service (hereinafter "IRS") by designing, marketing, implementing and defending fraudulent tax shelters using means and methods intended to deceive the IRS about the validity of those shelters, and about the circumstances under which the tax shelters had been marketed and implemented, in violation of Title 18, United States Code, Section 371...
On October 31, 2013, a jury in case number 09 Cr. 581 returned a verdict of guilty against Movant of the charges in Counts One, Five through Seven, Eleven, Thirteen and Seventeen, and acquitted him of the remaining charges. Movant was therefore acquitted of tax evasion charges involving several clients and Movant’s own tax obligations.
Movant is scheduled to be sentenced in case number 09 Cr. 581 on June 25, 2014, and a judgment of conviction will be entered at that time.
Sunday, July 6, 2014
An attorney who was convicted of misdemeanor conversion was suspended for at least a year without automatic reinstatement by the Indiana Supreme Court.
In Respondent's late, nonconforming answer, Respondent argues that he is not guilty of conversion, arguing that he was wrongly accused of taking a bag of mulch from a gas station without paying for it. He also recounts alleged irregularities in this trial, but, as noted, he has not appealed or otherwise challenged his conviction.Moreover, he has not filed a petition for review of the hearing officer's report.
The attorney is presently serving a suspension for failure to pay the costs of an earlier non-cooperation with a bar inquiry. (Mike Frisch)
Thursday, July 3, 2014
The New Jersey Supreme Court has reversed an opinion of the Advisory Committee on Professional Ethics that had ruled it an impermissible conflict of interest for pro bono participants in the Volunteer Lawyers for Justice program to provide legal services in bankruptcy matters where their firm (Lowenstein Sandler) represents creditors in unrelated matters.
VLJ’s pro bono bankruptcy program does not present a conflict of interest under RPC1.7. With appropriate safeguards, a volunteer attorney can represent a low-income debtor in a no-asset Chapter 7 bankruptcy matter even if the attorney’s firm represents one or more of the debtor’s creditors in unrelated matters.
The unanimous court found that the public policy in favor of pro bono services "informed" its decision. (Mike Frisch)
A public censure was imposed by the New York Appellate Division for the Second Judicial Department on an attorney who allowed a foreign legal consultant to engage in unauthorized practice beyond the permissible limits of his license.
We find no merit to the respondent's contention that Mr. Vasquez did not hold himself out as an attorney or did not practice law because Mr. Vasquez was in Peru during the relevant time period. The evidence demonstrated that Mr. Vasquez never disclosed his status as a foreign legal consultant on the firm's website, retainer agreement, or business card/flyer. Hence, the respondent engaged in conduct that was deceptive and misleading to the public and clients. We note that Mr. Vasquez resigned as a legal consultant, and in submitting his resignation to this Court, Mr. Vasquez acknowledged that he exceeded his scope of practice as a legal consultant.
The court found mitigation
In determining the appropriate measure of discipline to impose, the respondent asks the Court to consider, in mitigation, the following factors: the lack of intent on his part to deceive, the lack of a prior disciplinary history, his due diligence inasmuch as he did research the rules governing legal consultants in an effort to comply with the rules, and his cooperation with the Grievance Committee's investigation. Additionally, he asks that the Court consider his contributions to the military as a member of the National Guard, the commendation he received upon being honorably discharged, his hard work, the award he received as a distinguished student from the American Bar Association, and his current provision of legal services to low-income Spanish speaking clients.
The New York Appellate Division for the Second Judicial Department has accepted the resignation of an attorney and ordered his disbarment.
The attorney faced the following charges
...it is alleged that he: (1) failed to prevent or timely discover that Michael Schlussel, a disbarred lawyer, had established "an entirely separate and related law office" in the resignor's name, and used that bogus law office to engage in the unauthorized practice of law, as well as to commit one or more attorney conduct violations in connection with legal matters entrusted to the bogus law office; (2) failed to timely discover that his brother, Mark Savran, a nonlawyer who worked in the resignor's actual law office, had (a) permitted Ms. Eualee Guy-Lodge and Mr. Fausto De Los Santos to ostensibly retain the resignor's services, (b) received funds from these purported clients, and (c) thereafter ignored the legal matters he told these individuals had been entrusted to the resignor's office, without the resignor's knowledge or authority; (3) failed to take appropriate action to halt and/or remediate the foregoing conduct at a time when he could have done so; and (4) failed to cooperate with the efforts of the Grievance Committee for the Ninth Judicial District to investigate the Guy-Lodge and De Los Santos matters.
The Indiana Supreme Court has imposed a suspension of18 months without automatic reinstatement of an attorney for incompetence, conflicts of interest and frivolous litigation in connection with the proposed condemnation and demolition of a building owned by an elderly woman.
The attorney represented the interests of a convicteed murdered referred to as JH as well as the owner. JH was employed as a "contract paralegal" by the attorney. He was also found to have concealed his relationship with JH to disciplinary authorities for two years.
The attorney has a record of prior discipline for incompetence and instituting frivolous litigation. He also made frivolous claims in the disciplinary matter. (Mike Frisch)
Wednesday, July 2, 2014
The New Hampshire Supreme Court has held that a woman whose then-partner had a child through insemination of an anonymous sperm donor had adequately pleaded parentage of the child in guardianship and adoption proceedings.
Assuming the truth of Susan’s alleged facts, and construing all reasonable inferences in the light most favorable to her...we conclude that she adequately pleaded that she received Madelyn into her home and openly held Madelyn out as her child. She and Melissa planned to have and raise children together. They prepared Madelyn’s nursery together in the home they had jointly purchased because they "thought it would be a good place to raise a family." When Madelyn was born, Susan was in the delivery room. She alleges: "From the very beginning, Maddie, Melissa, and I were a family. Melissa was the ‘Mommy,’ and I was the ‘Momma.’ Together we were . . . Maddie’s parents, and Maddie was our daughter. I loved Maddie as my daughter, treated her as my daughter, and saw her as my daughter."
Susan’s allegations, taken as true, indicate that Melissa also regarded Susan as Madelyn’s parent as evidenced by, among other things, giving Susan a greeting card commemorating the "Birth of Our Baby," and including her as "Momma," and her parents as Madelyn’s grandparents, on Madelyn’s family tree. The allegations also indicate that Susan appeared "to the world" to be Madelyn’s parent. Madelyn shares Susan’s last name. Susan was named as a parent, along with Melissa, in birth announcements and in a church ceremony. Susan was named as a parent in Madelyn’s school and medical records, and was treated as a parent at Madelyn’s preschool.
The court concluded that the governing statutes apply equally to men and women and that the "lack of a biological connection" was not a bar to a parent-status claim. (Mike Frisch)
The Georgetown Law web page has this post on the new book by Tanina Rostain and Mitt Regan
In their new book Confidence Games: Lawyers, Accountants, and the Tax Shelter Industry (MIT Press, 2014), Professors Tanina Rostain and Milton C. Regan Jr. describe the rise and fall of the tax shelter industry, the professional misconduct that allowed it to flourish and the ultimately successful government efforts to subdue it.
Rostain and Regan set the stage for this development — the boom years at the turn of the 21st century and the raft of complex tax shelters developed by such accounting firms as KPMG and Ernst & Young — and the hobbled Internal Revenue Service that struggled to keep up with it. The authors acknowledge that individual wrongdoers were at fault, but they also probe the organizational causes and the responsibility of the tax adviser: “If the lawyer fosters the perception that other taxpayers lack a sense of civic obligation, she can lead the client to adopt a similar attitude in self-defense.”
“Confidence Games is a lively and deeply informed human story,” says Pulitzer Prize-winning tax journalist David Cay Johnston. “… Rostain and Regan give readers a solid primer, translating arcane principles of accounting. Then they add a human touch with telling details mined from a public record few others have explored.”
Claire Hill, Professor and James L. Krusemark Chair in Law at the University of Minnesota Law School, says, “This book manages what many might think impossible: it’s a page-turner about tax."