Wednesday, March 14, 2018
The District of Columbia Board on Professional Responsibility has approved the consent disbarment of former Akin Gump partner Jeffrey Wertkin.
The consent goes to the Court of Appeals for final action.
The pressure finally got to Jeffrey Wertkin.
Before joining Akin Gump, Wertkin spent six years as a lawyer in the Justice Department’s False Claims unit, which handles whistle-blower cases alleging fraud in connection with government contracts. Wertkin specialized in health-care fraud.
The suits, known as qui tam complaints, are filed under seal and given to the Justice Department for review. Prosecutors can intervene if they believe a case is worth pursuing. Only judges can unseal the suits and companies often don’t know they’ve been sued until then.
Wertin said in the brief that his spiral began after a federal judge in Alabama threw out a 2016 jury verdict against AseraCare Inc. over a whistle-blower’s allegations that the hospice provider fraudulently billed Medicare for patients who weren’t terminally ill. Wertkin had spent the better part a year preparing and trying the case and the outcome left him “devastated,” his wife, Erin, said, according to the brief.
Wertkin admitted making off with piles of whistle-blower complaints, some of which he grabbed off his boss’s desk after hours and copied. The lawyer said he initially sought to use them to identify companies he could market himself to as a false-claims specialist after joining Akin Gump in 2016.
“I had never done anything like that in my entire life,’’ Wertkin said, according to the brief. “I knew it was wrong. But my judgment was clouded by stress.’’
Prosecutors said Wertkin called companies targeted in the suits and hinted “that problems could be lurking for them.” By doing so, the lawyer “blatantly and unilaterally’’ compromised anonymity protections promised to whistle-blowers, the government said.
By November 2016, Wertkin’s efforts to build a client list stalled and the lawyer panicked. “If I couldn’t succeed with this inside information then how could I ever expect to succeed without it?’’ he said in the filing.
Wertkin said he decided to see whether the pilfered whistle-blower cases could be monetized more directly. He used an old iPhone to leave a message for the general counsel of a Sunnyvale, California-based company named in a sealed suit. Identifying himself only as “Dan,’’ he offered to sell a copy of the complaint, he said.
Wertkin also called companies in Oregon, Alabama and New York to make the same offer. None of the companies are identified in court papers. He offered to provide a copy to the Alabama firm for $50,000, prosecutors said.
The in-house lawyer he contacted at the Silicon Valley firm had alerted the FBI to the call. Agents set up a sting in the hotel lobby. “My life is over,” Wertkin told them when he was arrested.
Still, the government contends Wertkin’s bizarre crime spree went on even after he got out on bail.
Wertkin flew from San Francisco to Washington and headed to his Akin Gump office, where he ditched copies of the purloined complaints and destroyed phone bills reflecting calls to companies, prosecutors said.
He also attempted to frame a former Justice Department colleague to make look as if he’d sent him two of the stolen whistle-blower cases, prosecutors said. Wertkin put the suits in an envelope bearing the government lawyer’s return address, hoping to mislead investigators about the source of the complaints, according to the defense brief. The FBI started an investigation of the False Claims unit in the wake of Wertkin’s arrest.
Even before Wertkin showed up to collect the $310,000 payoff, the cops were on his heels. As an Uber driver drove him to the California hotel, he got a call from a state official at Alabama’s Department of Justice inquiring about “Dan’s attempt to sell a qui tam complaint,” according to Wertkin’s brief.
For his part, Wertkin now acknowledges he betrayed the trust of his colleagues at the Justice Department and Akin Gump. “Looking back,” he said, “I’m shocked at not only how wrong my actions were, but how reckless.”
The case is U.S. v. Wertkin, 17-cr-0557, U.S. District Court, District of Northern California (San Francisco).
Law.com reported on his recent sentencing. (Mike Frisch)
The Delaware Supreme Court has found that an attorney's communications violated Rule 4.4(a) on multiple occasions and ordered him to complete a training course with a qualified Human Resources professional approved by the Office of Disciplinary Counsel within six months.
He also has been ordered to refrain from future inappropriate sexual and religious discussions in the course of practicing law.
The behavior - which he had self-dubbed as "Hurleygate" - included "demeaning remarks to and about a former client in three separate letters to the ODC."
He also communicated inappropriately (to put it mildly) with several female and a male Deputy Attorneys General.
He had been warned about his behavior toward female attorneys by a Special Prosecutor in 2007. He responded by a letter to 67 deputy AG's claiming that his "brand of humor" was not unethical and protected as free expression.
He freely expressed to a junior female deputy that "he used to expose himself to girls in a movie theatre and while holding it in his lap and having his thing surrounded by popcorn."
Another letter stated that a female deputy had "no brain wave activity."
A Jewish junior male deputy was called a "certified asshole," should be a "goat herder in Lebanon" and said if he got "anyone to accept his [crackpot ideas] as Torah then I will abide."
Another female deputy was "extraordinarily attractive" and "stir[red] drums of passion." He also called her "beautiful but arrogant."
Finally, he called another female deputy "Kurvacious" and "Kooky" with sufficient expertise only to teach yoga.
The Board of Professional Responsibility found he had no conscious awareness of the inappropriateness of his "ribald" humor and had acted negligently,
The attorney was admitted in 1970.
Sensitivity training may be insufficient here.
Delaware Online reported that he had served as defense counsel in the high-profile Thomas Capano criminal case.
Defense attorney Joseph A. Hurley vowed he'd take it to his grave.
But he didn't.
On Friday night, he shared for the first time exclusively with The News Journal why he quit Thomas J. Capano's legal team six months before the October 1998 murder trial began.
He said it was his moral conscience — not a Capano confession about murdering Anne Marie Fahey, as many had believed.
Hurley said he had a moment of self-reflection and clarity while attending a funeral Mass at St. Helena's Catholic Church in Penny Hill for public defender James F. McCloskey Jr. on April 6, 1998.
Hurley said he'd never asked Capano if he killed Fahey after their 1996 date in Philadelphia.
"I didn't want to ask him and hear the answer," said Hurley, who is highly regarded and has handled numerous high-profile cases since becoming a criminal defense attorney in 1974.
But on that April morning, sitting in a pew at his childhood church, Hurley said, he had a conversation with God.
"I think I was probably facing the reality [Capano] was, in fact, guilty of premeditated murder," Hurley said.
He left the church, went to see Capano in prison and quit.
No longer considering Capano a friend, Hurley said, he never saw him again.
"Killing a human being? No,” Hurley said. "That's the end of friendship."
Capano was convicted of murdering Fahey in January 1999. He died in 2011 at a prison near Smyrna where he was serving a life sentence.
"I said I'd take it to my grave,” Hurley explained, "and I would of had [Capano] not reached his before."
His career is chronicled in Super Lawyers. (Mike Frisch)
The New Jersey Supreme Court has suspended an attorney for three months.
He was admitted in 1975 and had been admonished and censured
Here the Disciplinary Review Board recommended the short suspension
On October 28, 2015, respondent sent a letter to the OAE, stating that he had retired from the practice of law and wished to resign from the New Jersey bar. Attached to the letter was an affidavit dated October 23, 2015, submitted pursuant to R. 1:20-22 (Resignation Without Prejudice), in which respondent certified that no disciplinary or criminal proceedings were pending against him. The certification was false, inasmuch as "there were pending disciplinary proceedings of which he was aware," doubtless a reference to the [pending] Roberts complaint.
He defaulted, ignoring the process but nonetheless
We find that the conduct falls between and appropriate discipline for respondent’s that imposed in McLauqhlin and Gross. McLaughlin had mitigation, but no prior discipline. Respondent has prior discipline but no mitigation. Respondent’s admonition and censure, however, are facially less serious than Gross’ two censures. Moreover, neither of respondent’s prior matters proceeded as a default. Based on these distinctions, had this matter not been before us as a default, we would have imposed a censure. Respondent, however, allowed this matter to proceed to us as a default. "A respondent’s default or failure to cooperate with the investigative authorities operates as an aggravating factor, which is sufficient to permit a penalty that would otherwise be appropriate to be further enhanced." In re Kivler, 193 N.J. 332, 342 (2008). For these reasons, we determined to impose a three-month suspension for respondent’s misconduct.
One board member favored another censure. (Mike Frisch)
Tuesday, March 13, 2018
An order dismissing a disciplinary matter from the Delaware Supreme Court
This 23rd day of February 2018, it appears to the Court that the Board on Professional Responsibility filed its Report in this matter under Rule 9(d)(5) of the Delaware Lawyers’ Rules of Disciplinary Procedure finding no ethical violations and thus recommending no sanction be imposed. Neither the Respondent nor the Office of Disciplinary Counsel has filed objections to the Board's Report. The Court has reviewed the matter carefully and concludes that the Board’s Report and Recommendation should be approved.
NOW, THEREFORE, IT IS ORDERED that the Report of the Board on Professional Responsibility docketed on December 6, 2017 is hereby APPROVED.
The matter is hereby CLOSED.
At Turner’s request, and without objection from the ODC, the Court has made this confidential order public. In all other respects, however, the proceedings and record of the Board shall remain confidential.
I do not view confidentiality in such circumstances to be sound policy. Credible self-regulation requires (in my view) public access to all bar proceedings even if dismissal is the correct outcome. (Mike Frisch)
The New Jersey Supreme Court has suspended an attorney for one year.
From the Disciplinary Review Board report
on October 24, 2013, the Kings County District Attorney’s Office filed a criminal complaint against respondent, which sets forth facts relating to her unauthorized practice of law. On November 15, 2013, the Honorable Gene R. Lopez, Criminal Court, City of New York, filed a complaint with the Committee on Professional Standards, Third Judicial Department, which also briefly outlined respondent’s misconduct. According to Judge Lopez’ letter, on October i0 and 17, 2013, respondent, as the defendant’s attorney, appeared before him in a criminal matter, New York v Alex Breytman, Supreme Court, Kings County. During respondent’s appearance, she informed the judge that she was admitted to practice law in New York and offered him a business card listing her New Jersey office address.
Shortly after her appearance, the "Admissions Attorney" provided the judge with written confirmation that respondent had been suspended since October 24, 2009.
Thereafter, on October 24, 2013, respondent again appeared before Judge Lopez. When the judge informed her that she had been suspended, based on her "failing to register," respondent maintained that she had been unaware of her suspension, and "stated that she had neglected to register as a result of moving to Florida." Judge Lopez learned that, when respondent left the courtroom, she was arrested and subsequently charged with grand larceny in the third degree and other related charges.
In the criminal case
According to the complaint, Svetlana Breytman had retained respondent to represent her son, Alex, in a criminal proceeding at the suggestion of a family friend. On October 17, 2013, Svetlana gave respondent a $5,000 check toward the $i0,000 fee. Svetlana maintained that she would not have retained respondent or tendered a fee had she known respondent was suspended at the time. Therefore, respondent did not have permission or authority to take or possess the $5,000...
On December 22, 2015, before the Honorable Daniel K. Chun, Kings County, Criminal Division, respondent entered a guilty plea to third degree grand larceny, N.Y.P.L. §155.35, in return for five years of probation and restitution. She admitted that, from about October 5 through October 17, 2013, she stole Svetlana Breytman’s property, valued at in excess of $3,000.
The Office of Attorney Ethics had sought disbarment
Under the circumstances present here, respondent’s guilty plea to grand larceny, which falls far short of the knowing misappropriation of client funds, does not warrant disbarment. Rather, based on the above precedent for practicing while suspended, we determine that a one-year suspension is appropriate for respondent’s violations of RPC 5.5(a), RPC 8.4(b), RPC 8.4(c), and RPC 8.4(d).
Monday, March 12, 2018
An attorney who was subject to an interim suspension has now consented to disbarment by the Pennsylvania Supreme Court.
She was admitted in 2010.
Our earlier coverage links to a PennLive story
An East Shore attorney who is the wife of a Dauphin County prosecutor has been charged with embezzling from her former law firm and then burglarizing its offices after she was fired.
Nichole A. Collins, 35, was arrested this week following a probe by the state attorney general's office. The county district attorney's office referred the case to state investigators because Collins is married to Deputy District Attorney Joel Hogentogler.
Collins, who was fired from the firm of Shaffer & Engle, couldn't immediately be reached for comment on the case Wednesday afternoon.
The charges filed with District Judge William Wenner include counts of burglary, forgery, theft, receiving stolen property, access device fraud and criminal mischief.
Special Agent Jessica L. Eger wrote in arrest papers that Jeff Engle, a partner in Shaffer & Engle, contacted Lower Paxton Township police about Collins in September. She had worked for the firm for about three years.
Engle reported to police that Collins had been stealing from the firm's cost account, which was meant to cover filing fees and court reporter expenses. Collins had admitted committing the thefts to Engle and fellow attorney Elisabeth Pasqualini, Eger wrote.
The agent said it was discovered that Collins had embezzled more than $8,000. She was fired in August and told to stay off the law firm's property.
On Dec. 7, Engle called Eger to report that files were missing from the office, including one on he had kept on Collins' alleged criminal acts and a file that contained passwords for his work and personal accounts.
Three weeks later, Pasqualini returned from a holiday break to find a small black and pink camo flashlight sitting on her desk, the agent said. Eger said Hogentogler told her during a later interview that such a flashlight had been in his and his wife's home.
Pasqualini also discovered that a purse containing her personal credit cards was missing from the office, Eger said.
An "unknown sticky substance" was found on the office's computer equipment, the agent wrote. It cost several thousand dollars to repair that damage, she said.
Pasqualini later found that her personal credit card had been used to order more than $300 worth of sex toys. That was just the first of a spree of purchases made with credit and debit cards stolen from the law office, Eger said. She said Collins also forged and cashed the personal checks of her co-workers.
Collins was photographed by surveillance cameras at some of the businesses where the alleged thousands of dollars' worth of financial crimes occurred, Eger wrote.
Collins remains free on $25,000 bail, court records show. A preliminary hearing on the case is scheduled for February.
The charging document indicates that she has paid approximatley $12,000 to her former firm.(Mike Frisch)
Up for argument this Thursday before the District of Columbia Court of Appeals
No. 16-CV-1208 LARRY KLAYMAN V. JUDICIAL WATCH, INC.
Larry Klayman, Pro Se
Richard W. Driscoll, Esquire
Panel: Chief Judge Blackburne-Rigsby; Associate Judges Fisher and Beckwith.
The Iowa Supreme Court Attorney Disciplinary Board has reprimanded an attorney for two incidents unrelated to the practice of law.
Both led to a criminal conviction.
The first incident took place on March 30, 2015. The attorney was stopped by police while driving from Des Moines to his home in Council Bluffs after celebrating his 50th birthday with friends.
He admitted drinking wine but denied he was intoxicated. He told the police "several times" that he was an attorney.
He was arrested and blew a .244% BAC. Two loaded handguns and an open bottle of vodka were found in his car.
According to the reprimand, the attorney was extended "many courtesies" not given to ordinary mortals, including multiple phone calls (one to a judge) and an offer to have an independent blood test. Contrary to protocol, he was left alone while that test was administered.
He told a trooper that the county attorney was a personal friend and the trooper's supervisor contacted him. Another police officer friend was allowed to pick up his car to avoided towing charges.
The conviction was for Operating While Intoxicated (First Offense) and the weapons charges were dismissed.
The second incident took place on St. Valentine's Day 2017.
The attorney had a second date with a woman he had met on a dating web site. When she arrived at his home, she found him "passed out" on a sofa.
She nonetheless got into a car with him driving. According to her, he drove erratically and called her derogatory names.
After dinner, he drove with her to attend a show in Omaha. They did get get there.
Rather, he continued to drive recklessly and to yell at her.
He pulled into a Shell Speedy Mart and told her to "get the f--- out of the car."
She ran into the store, told the clerk to call the police and locked herself in the bathroom. He pounded on the bathroom door before giving up and departing the premises.
The police came and took her to his home to retrieve her personal items. He "crudely" demanded that the police depart.
The conviction was for Disorderly Conduct in a Place of Business.
The board noted a "troubling pattern of being confrontational and uncooperative, bragging about [his] status as a lawyer and resorting to name dropping when convenient." (Mike Frisch)
Sunday, March 11, 2018
An opinion last week from the Georgia Supreme Court vacated a gag order in a pending criminal case
This is an appeal from a gag order, which restrains the lawyers in a murder case, the defendant and the lawyers in a related case, court personnel, and current and retired law enforcement personnel from making extrajudicial, public statements on certain subjects related to the murder case for so long as it remains pending. A gag order like this one may be constitutionally permissible in exceptional circumstances, but the record here does not reveal circumstances sufficiently exceptional to warrant such a restraint. For that reason, we vacate the gag order.
The victim had disappeared in 2005 and the defendant was arrested in 2017.
The gag order was entered five days later
The superior court issued this gag order without an evidentiary hearing, but it found that “this case is high profile and has generated extensive media coverage.” The court concluded that “there is a reasonable likelihood that [Duke]’s Sixth Amendment right to a fair trial by an impartial jury may be prejudiced by extrajudicial statements,” and for that reason, “an [o]rder restricting statements made outside the courtroom is necessary and proper.”
When the media objected, a hearing was held and the order modified. A media outlet appealed the modified order.
The court found the media had standing and addressed the merits
Nebraska Press and Gentile both differ from our case in yet another respect, one that the parties have not addressed in their briefing. In both Nebraska Press and Gentile, the restraint of expression was challenged by those to whom the restraint was directed — the media in Nebraska Press and the lawyer in Gentile. Here, however, the modified gag order is challenged by news organizations to which the gag order does not directly apply. Litigants ordinarily are not entitled to assert the constitutional rights of others, see Romer v. State, 293 Ga. 339 (745 SE2d 637) (2013), and although the gag order may amount to a prior restraint as to those to whom it applies, it does not restrain the speech of WXIA-TV or 13 WMAZ-TV in any way. Although they have standing to challenge the modified gag order, their standing is based on the extent to which it impairs their news gathering, not any impairment of their freedom to speak and publish...
The United States Supreme Court has never passed upon the constitutionality of a gag order that is directed to trial participants and potential trial participants, much less when such a gag order is challenged only by others, and there is significant uncertainty about the standard to be applied in such cases. Cf. E. Chemerinsky, Lawyers Have Free Speech Rights, Too: Why Gag Orders on Trial Participants Are Almost Always Unconstitutional, 17 Loy. L.A. L.J. 311, 313-314 & n.11 (1997) (“No Supreme Court case has addressed the constitutionality of gag orders on lawyers and parties,” and “lower courts are split as to the applicable standard.”). Some courts have treated gag orders against trial participants as typical prior restraints and have applied the sort of exacting scrutiny that was employed in Nebraska Press...
Here, although the record shows significant media interest in the case, it does not demonstrate any likelihood that the persons to whom the modified gag order is directed would make prejudicial statements. We have reviewed the exhibits offered by Duke at the hearing to illustrate the nature and extent of media coverage, and we find no reports attributing inflammatory statements or prejudicial information to sources covered by the modified gag order. Many of the reports purport to have been published after the entry of the original gag order, and they attribute no statements at all to the persons to whom that order applied. Others attribute statements to law enforcement sources that strike us as measured and highly unlikely to produce any prejudice. Most of the reports purport to share information gleaned from arrest warrants and other public and court records. The record certainly does not suggest that any lawyers, court personnel, or law enforcement personnel have disclosed sensitive or confidential information or have attempted to effectively put Duke on trial in a court of public opinion.
The gag order was vacated.
Saturday, March 10, 2018
The Louisiana Attorney Disciplinary Board proposes disbarment for an attorney's fraudulent efforts to secure ownership of three properties
In the charges, ODC alleges that the Respondent violated Rules of Professional Conduct 3.3(a) and (d) and 8.4(c) when he engaged in three transactions between 1999 and 2001 in which he sought to obtain the ownership of St. Tammany properties belonging to absentee owners without a credible factual or legal basis for doing so.
The hearing committee had found misconduct and proposed a deferred six-month suspension.
The legal setting
A brief review of certain tenants of Louisiana property law and a description of the procedures employed by Respondent is helpful in understanding the facts of and issues presented in this matter. The Louisiana Civil Code recognizes several methods for acquiring ownership of immovable property, including possession of property for either 10 or 30 years, depending on the circumstances. La. Civ. Code arts. 3473-3488. Respondent freely admits that he did not own the properties at issue and had no claim to title. Therefore, under La. Civ. Code art. 3486 et seq., he would be required to possess the property for 30 years before acquiring ownership of the property. Respondent, however, believes he has found a way, under an article of the Louisiana Code of Civil Procedure, to acquire property based on possession of only one year.
He filed declaratory judgment actions against the absentee owners
The quitclaim deeds each contained the forged signature of Respondent' s corporate partner, Timothy Dunaway, and were signed by the Respondent himself without Mr. Dunaway's prior knowledge and consent. Mr. Dunaway's putative signature was also accompanied by an attestation clause falsely certifying Mr. Dunaway's signature to be genuine and appropriately witnessed and notarized, none of which was true, as Respondent has admitted. By making false statements of fact to the court in his testimony in the Magee v. Nill and Magee v. Wantz matters concerning the quitclaim deeds, submitting the false quitclaim deed into the record in the Magee v. Nill matter, and filing the petitions for declaratory judgment which referenced the false quitclaim deeds into the records of the Magee v. Nill, Magee v. Wantz, and Magee v. Hymel and Turnbull matters, the Respondent violated Rules 3.3(a)(l) and (a)(3).
There was significant harm to the owners
Here, the Respondent has violated duties owed to the legal system, the public, and the profession. His actions were intentional. The amount of actual injury caused by the Respondent's misconduct was great. Lloyd and Nicole Martin (subsequent owners of one of the lots of the Nill property) suffered extensive financial harm and emotional anguish after a scheduled April 2008 closing on their Abita Springs home fell through. Unable to sell their home due to the title defect concerning their home and facing financial difficulties, they were forced into default of their existing mortgage and were unable to sell their home until 2015. This sale was a short sale, which required them to assume an additional $10,000 in indebtedness which they are currently paying down. The Martins sued their title insurer, who was able to locate the Nill heirs and obtain quitclaim deeds in favor of the Martins. Respondent was ordered to reimburse the title insurer for the cost of obtaining the quitclaim deeds which cleared the cloud on title. (See Exh. ODC 7 A, order denying Respondent's motion for summary judgment and recognizing that the quitclaim deed and two judgments created clouds on the title rendering the Martin's title unmerchantable; and Exh. ODC 7B, Judgment dismissing the Martins' claim because the title insurer cured the defect and ordering Respondent to reimburse the title insurer the expense of obtaining the quitclaim deeds).
Mr. and Mrs. Lampo's (subsequent owners ofthe Wantz property) efforts to refinance their home were delayed for three years because of the title defect associated with their home. Ms. Robinson (subsequent owner of another section of the Nill property) suffered harm when she, along with the Lampos and the Martins, were sued by the Respondent for defamation, an act of retaliation for their prior civil RICO suit brought against the Respondent for damages.
A bad attitude never helps
Later, the Respondent inflicted more indignity upon the complainants when he convened a meeting with these complainants at the Abita Brew Pub in 2015. At this meeting, he sought to persuade them to dismiss their disciplinary complaints brought against him in return for his dismissal of his defamation action. The Respondent behaved arrogantly, dismissive of the misfortunes the complainants had endured because of his misdeeds. He ridiculed the complainants as "losers" at the meeting, making a "L" sign on his forehead with his thumb and forefinger. Ultimately, the Respondent's attempt to obtain a dismissal of the disciplinary complaints was unsuccessful. Respondent's conduct was publicized through news articles in the newspaper and online in ways that reflected negatively on the profession.
Here, Respondent filed false documents into the public records of St. Tammany Parish. He also submitted false documents and testimony to the courts when he filed or referenced the quitclaims at issue in the declaratory judgment proceedings discussed in this matter. Further, Respondent's testimony concerning these quitclaims was misleading. He also brought a harassing defamation action against the complainants in this matter after they filed a civil RICO lawsuit against him. Such misconduct is similar to that found in Harris, Pinkston and Simpson and falls squarely within ABA Standard 6.11. As such, this misconduct warrants a sanction ranging from disbarment to permanent disbarment. Because of the mitigating factors present, particularly the lack of prior discipline, the Board recommends that the Respondent be disbarred.
Friday, March 9, 2018
The claims are described by the court in a 2015 opinion
Following the termination of her employment as a senior attorney in defendant's Moscow office, plaintiff commenced this action asserting causes of action for, among other things, sexual harassment, retaliatory discharge, and intentional infliction of emotional distress. She alleges that defendant caused her to suffer "extreme mental and physical anguish" and "severe anxiety," and seeks to recover $15 million for emotional distress damages. Although plaintiff denies that defendant's actions caused any diagnosed psychiatric condition and does not anticipate presenting an expert in support of her emotional distress claims, she testified at her deposition that her emotional distress has included experiencing eczema all over her body, hair pulling, anxiety, depression and suicidal feelings. Under these circumstances, the court providently exercised its discretion in determining that defendant had demonstrated that plaintiff had placed her mental condition "in controversy" by alleging unusually severe emotional distress, so that a mental examination by a psychiatrist is warranted to enable defendant to rebut her emotional distress claims.
She had failed to submit to an independent medical examination justifying dismissal and been sanctioned for posting on social media
Contrary to plaintiff's contention, she failed to comply with a court order that she undergo an independent medical examination (IME order). Plaintiff appealed from the IME order, and this Court affirmed (see Clark v Allen & Overy, LLP, 125 AD3d 497 [1st Dept 2015], lv dismissed 25 NY3d 1015 , cert denied ___ US ___, 136 S Ct 553 ). Nevertheless, plaintiff continued to refuse to schedule or sit for the IME. At a compliance conference held on September 29, 2015, the court ordered plaintiff to undergo an audiotaped IME on November 11, 2015, or face sanctions, including the dismissal of the complaint. On November 11, 2105, plaintiff appeared at the examiner's office. However, she refused to take the microphone to be audiotaped, and she informed the examiner that she would go to the police and charge him with false imprisonment and assault if he proceeded with the examination without her consent. The examiner stopped the examination. Under the circumstances, the court properly dismissed the complaint for noncompliance pursuant to CPLR 3126 (see generally Muboyayi v Quintero, 136 AD3d 497 [1st Dept 2016], lv dismissed in part, denied in part 27 NY3d 1046 ).
The court properly imposed financial sanctions on plaintiff for frivolous conduct pursuant to 22 NYCRR 130-1.1. Defendant submitted evidence that plaintiff violated the court's sealing orders by posting about the case to her social media networks in an effort to "harass or maliciously injure [defendant]" (22 NYCRR 130-1.1[c]). Moreover, in her opposition to defendant's motion to strike the note of issue, plaintiff falsely represented that she had not refused to sit for the IME and that discovery had been waived (see 22 NYCRR 130-1[c]).
Abovethelaw had reported on the litigation. (Mike Frisch)
The New York Appellate Division for the First Judicial Department has imposed disbarment for an attorney's acts of domestic violence and other serious misconduct in his domestic and bar matters.
Supreme Court's 100-page decision and order had granted respondent's wife sole custody of the couple's then two-year-old son and found that respondent, a pro se litigant: had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses; had, beginning in April 2014, engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia, flouting the judicial directives of three judges (a judge of the District of Columbia Superior Court, the original matrimonial judge and the matrimonial judge who made these findings [matrimonial judge]), setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness. Additionally, Supreme Court found that respondent had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child. Based on Supreme Court's decision, applying the doctrine of collateral estoppel, this Court found that respondent had violated New York Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation); rule 8.4(d) (conduct prejudicial to the administration of justice); rule 3.1 (frivolous litigation); rule 3.3(a)(1) (knowingly make a false statement of fact or law to a tribunal); rule 3.3(a)(3) (knowingly use or offer false evidence); rule 3.3(f)(2) (undignified or discourteous conduct before a tribunal); and rule 8.4(h) (other conduct adversely reflecting on fitness as a lawyer), and directed that a sanction hearing be held.
The referee considered the evidence
Before the Referee, the Committee read into the record a February 19, 2016 deposition it conducted of respondent in which he admitted that in January 2014 he filed a report with the D.C. police accusing his former wife of perpetrating acts of domestic violence against him, which accusations Justice Cooper found to be entirely unfounded. As mitigation evidence, respondent introduced a limited portion of his deposition testimony in which he made reference to the fact that he was in counseling during his senior year in college and again sporadically while in law school, that he took antidepressants while in college, and in high school, he volunteered with the homeless. He also introduced a letter from his therapist, in which she stated that she had sporadically treated respondent over the course of two years but starting in April 2016 he consistently attended therapy on a biweekly basis. He also introduced four letters from character witnesses, and maintained that any misconduct on his part occurred solely in the context of his custody dispute.
The Referee rejected respondent's mitigation evidence, finding incredible respondent's accusations of domestic violence by his then-former wife, noting their rejection by both the D.C. police and the courts in D.C. and New York; that respondent's deposition testimony as to the sporadic counseling he received in law school and his occasionally taking antidepressants while in college did not constitute mitigation; that his charitable work was insignificant; and that his therapist's letter and the similarly worded letters of four character witnesses provided no basis for mitigation. The Referee opined that while respondent's good conduct during the sanction hearing supported his contention that his disruptive courtroom behavior was confined to the custody litigation, nonetheless, such good behavior is required of lawyers at all times and, thus, did not mitigate his prior misconduct.
The court on sanction
This record in this case is replete with numerous egregious and outrageous acts of misconduct perpetrated by respondent over the course of a four-year period, including his repeated acts of domestic violence toward his wife; his false testimony at the custody trial; his introduction of falsified evidence in the form of altered text messages; his presentation of misleading testimony through his expert witnesses; his flouting the directives of three judges; his setting up of a fake website about the attorney for the child in the custody action and posting derogatory messages about her on it; his baseless filing of a disciplinary complaint against a court-appointed psychiatric expert; his threatening text messages directed to his wife; his cell phone calls to his then three-month-old son baselessly accusing his father-in-law of being a child sexual abuser who could harm him; his engagement in frivolous litigation against his wife, her parents, and her attorneys; his attempted defamation of the attorney for the child; and his filing of a police report falsely accusing his wife of committing acts of domestic violence. Notwithstanding the repeated acts of egregious misconduct respondent has committed over the course of several years, he has neither demonstrated any remorse nor any acceptance of responsibility for his intolerable actions. This long list of aggravating factors, and the lack of mitigating factors weighing in respondent's favor, fully support the Referee's recommendation that respondent be disbarred.
Law360 reported that he is a former Mintz Levin attorney and that he falsely accused a judge of spitting on him.
JD Journal also reported on the divorce case.
Zappin graduated from Columbia Law School in 2010 before he landed a job at New York’s Latham & Watkins, a Manhattan mega firm. Then he moved on to Quinn Emanuel Urquhart & Sullivan, another mega firm. He was known as a legal pit bull for his aggressive nature in getting cases done.
But while a certain amount of ruthlessness will get you far in the legal world, Zappin’s aggression proved to be too much. He was fired by Quinn Emanuel Urquhart & Sullivan, and then he allegedly created an account on the spousal cheating website, Ashley Madison, in his boss’ name to embarrass him.
Adding more to his monster-like behavior, Zappin allegedly beat his pregnant wife, Claire Comfort, a lawyer with Weil, Gotshal & Manges.The court shrink testified that Comfort said Zappin slapped her, hit her glasses, hit her head, and hit her stomach with car keys when he was angry.
Comfort said she was abused until she left him when their son was eight weeks old. Zappin countered that he was not abusive and in fact, she was the crazy one. As proof, he read a text that he sent to her where he said that she “bit my dick.”
Because the two accused each other of being crazy, Ravitz ordered psych evaluations on both parties. He found that the two of them were in a classic abusive relationship dynamic. Zappin was “narcissistic, obsessive-compulsive and histrionic” and Comfort had “an automatic need to obey others who assert authority” and low self-esteem.
Comfort is fighting for custody of their son, who is now two. She and Zappin both attended Columbia.
ABA Journal had the story of sanctions imposed in the divorce litigation and his departure from Mintz Levin. (Mike Frisch)
The Nebraska Supreme Court has held that a law professor applicant meets the requirements for admission without examination
William M. McDonnell is a physician and health law specialist seeking admission to the Nebraska bar. He filed an application with the Nebraska State Bar Commission (Commission) seeking admission without examination as a Class 1-B applicant. The Commission denied McDonnell’s application on the basis that he failed to show he was “substantially engaged in the practice of law” for 3 of the 5 years preceding his application. The Commission granted McDonnell’s request for a hearing, reviewed the evidence, and again denied his application. McDonnell appeals.
Based on our de novo review of the record, we find McDonnell has carried his burden to establish that he was “substantially engaged in the practice of law” preceding his application, as required under § 3-119(B)(1). We therefore grant McDonnell’s Class 1-B application.
The applicant's career path
McDonnell graduated from the University of Virginia School of Law in 1987. After completing a judicial clerkship with the U.S. District Court for the Eastern District of Virginia in 1988, he was admitted to the Virginia State Bar by examination. In 1989, McDonnell was admitted by motion to the District of Columbia bar and began practicing at a private law firm in Washington, D.C. From 1989 to 1994, McDonnell held various legal positions, including positions with the U.S. Securities and Exchange Commission and the U.S. Department of Treasury. In 1995, McDonnell commenced medical school at the University of Arkansas, and in 1999, he began employment as a physician. From 1999 through 2006, McDonnell worked as a resident physician, emergency department physician, and pediatric emergency medicine fellow physician.
In 2006, McDonnell began employment with the University of Utah, with dual appointments in the university’s S.J. Quinney College of Law and the school of medicine. McDonnell worked as an adjunct professor of law as well as a pediatric emergency department physician. He held these positions through May 2014.
While employed at the University of Utah, McDonnell devoted 25 percent of his time and activities to his appointment at the college of law and 75 percent of his time to his appointment at the school of medicine. McDonnell’s position as an attending physician required him to work between 18 and 21 hours each week in the emergency department at the university’s primary children’s medical center. McDonnell asserted that he worked an average of 60 hours per week in his dual position, and devoted 15 hours per week to working as a law professor.
As a law professor, McDonnell served as a course director, developed curricula for health law courses, conducted scholarly research, published writings on health law and policy topics, and provided continuing education lectures to medical professionals and attorneys. McDonnell taught one 3-credit hour law school course for one semester each academic year. His relevant course work included preparing and presenting 104 class lectures of approximately 90 minutes in length. McDonnell attended faculty research meetings and met with student interest groups throughout the year. Additionally, he served as a faculty research supervisor for a law student conducting independent health law research.
In 2014, McDonnell relocated to Omaha, Nebraska, where he accepted a position as chief of the division of pediatric emergency medicine and medical director of the children’s emergency department at the University of Nebraska Medical Center and Children’s Hospital and Medical Center. In March 2016, McDonnell applied for admission to the Nebraska bar. McDonnell maintained an active membership in the Washington, D.C., bar at the time of his application.
The State Bar Commission erred in applying the rules
The undisputed evidence before us indicates that at the time of his Nebraska application, McDonnell possessed an active law license in the District of Columbia and was in good standing. As a result, McDonnell meets the requirement of being licensed, active, and in good standing in another state, territory, or district of the United States.
The evidence also indicates that from March 2011 through May 2014, McDonnell was employed as a law professor at the S.J. Quinney College of Law, University of Utah. McDonnell completed regular and routine duties as a law professor, including lecturing, researching, and publishing. At oral argument in this matter, the Commission agreed that McDonnell had shown he was “actively” engaged in the practice of law as a law professor in Utah. As a result, we conclude that McDonnell met the “practice of law” requirement, because he was employed as a law professor, and that his employer, the S.J. Quinney College of Law, is accredited by the American Bar Association.
Therefore, the only disputed issue in considering McDonnell’s Class 1-B application is whether McDonnell was “substantially engaged in the practice of law” as a law professor at the S.J. Quinney College of Law.
Based upon McDonnell’s education, character, fitness, and employment history, we find that he maintains the competency, skill, and fitness required to practice law. As a result, McDonnell carried his burden of proving that he was “substantially engaged” in his employment as a law professor for an appropriate amount of time preceding his application.
Our admission rules do not define the “substantially engaged in the practice of law” requirement, and we need not endorse a particular definition to decide this case. Rather, our admission rules dictate a qualitative analysis as opposed to a quantitative analysis. This decision should not be viewed as setting a threshold requirement for Class 1-B applications.
The case is In re Application of McDonnell and can be accessed here. (Mike Frisch)
A disciplinary matter argued this week before the Kansas Supreme Court involved a situation characterized by the Deputy Disciplinary Administrator as one that has "never been presented in the history of our office."
Deputy Administrator Kimberly Knoll advised the court that the respondent had appeared for his bar hearing and was asked by the panel when he had last consumed alcohol. He responded that it had been during the Super Bowl four days before the hearing.
The panel was concerned that he was impaired and had him transported for testing. Two tests were administered resulting in a 1.85 and (second test) 2.00 blood alcohol content.
The disciplinary counsel here seeks an temporary suspension pending the ongoing proceedings and that he be tested for impairment at the reset hearing date.
Respondent appeared and argued against a temporary suspension.
He conceded that he drove himself to the bar hearing and that he had lied about when he had last had a drink to the hearing panel.
He also raised the results of a drug test administered on February 15 in which he tested positive for morphine. He attributed the result to poppy seeds that he had eaten while alone on Valentine's Day.
When asked by the court about his way of treating his drinking, he responded "abstinence."
In rebuttal, Deputy Administrator Knoll noted that she had googled the poppy seed explanation and that it was reported to her that he smelled of alcohol at this proceeding.
I am always favorably impressed by the high quality of advocacy of Ms. Knoll and her colleagues with the Kansas Disciplinary Administrator's Office. (Mike Frisch)
The Hawai'i Supreme Court has ordered a one-year suspension of an attorney
In Case No. 14-001-9144, the record establishes that, from 2010 through September 30, 2013, Respondent Jo-Ann Adams failed to maintain a separate business account, in violation of Rule 1.15(a)(2) of the Hawai'i Rules of Professional Conduct (HRCP 1994) She used counter deposit slips to deposit funds into her client trust account and her business account, and used counter checks to disburse funds from her client trust account, constituting multiple violations of HRPC Rule 1.15(b). Respondent Adams commingled her own funds – including funds earned in her legal practice, earned for non-legal work, and obtained through an inherited interest in a judgment – with client funds from 2010 through September 30, 2013, in violation of HRPC Rule 1.15(c). By willfully and knowingly retaining her earnings in her client trust account, she placed the client funds in her account at substantial risk of injury
Respondent Adams paid personal and non-client business expenses from her client trust account, and withdrew funds from the account by means of checks made to “cash,” each instance of such conduct constituting a violation of HRPC Rule 1.15(e). She failed to label checks and to maintain contemporaneous financial records with the accuracy and consistency necessary to protect the integrity of her clients’ funds by responsibly overseeing the receipt, maintenance, and disbursement of those funds, as required by HRPC Rule 1.15(g)(2).
We further conclude that Respondent Adams failed to file her 2010, 2011, and 2012 federal and state tax returns until August 23, 2013, and her 2010 second semester and 2011 and 2012 general excise tax returns until June 20, 2014. We further conclude failing to file her returns by the appropriate deadlines injured the public and the legal profession.
However, we also conclude, following a thorough and complete de novo review of the record, that the Office of Disciplinary Counsel (ODC) did not succeed in carrying its burden
of establishing, by clear and convincing evidence, that Respondent Adams had the intent to conspire with her client in this case to sequester the client’s inherited funds in her client trust account in order to avoid the payment by her client of appropriate taxes on those funds...
In Case No. 14-067-9210, we conclude Respondent Adams misappropriated client funds, in violation of HRPC Rules 1.15(c) and 1.15(d), and injured that client when, on December 30, 2013, she disbursed monies from her client trust account using a counter check, overdrawing the account, at a time when she, by her own admission, held funds for a client in that account.
In Case No. 15-018-9237, the record establishes by clear and convincing evidence that, on May 17, 2015, Respondent Adams wrote a check to herself for $459.80 from her client trust account against insufficient funds and, in making the disbursement to herself, relied in part on $25.00 belonging to a client. Based upon the plain language of HRPC Rule 1.15(c) (2014), the withdrawal of the $25.00 of client money from her client trust account violated that Rule and injured the client in question.
Adams’s grossly negligent recordkeeping also establishes, by clear and convincing evidence, that her financial recordkeeping was so inadequate, the violation of her duties under HRPC Rule 1.15(g) so severe, that she placed the funds of her clients in substantial danger of serious injury. This conclusion, viewed together with our conclusions regarding her failure to file tax returns and her comingling of personal funds in her client trust account, provides clear grounds for a substantial period of suspension.
In mitigation the attorney
has a clean disciplinary record, has an excellent reputation in the community and has performed significant pro bono work, fully and freely cooperated with ODC in its investigation (including taking the initiative to report a subsequent overdraft of her account), and expressed sincere remorse for the mishandling of her financial affairs and client funds in particular.
The Massachusetts Supreme Judicial Court denied reinstatement to a petitioner admitted in 1981 and disbarred in 2001.
He had resigned in the face of charges
The petition for discipline attached to the affidavit, the allegations of which the petitioner agreed could be proved by a preponderance of the evidence, describes a wide and deep pattern of misconduct in eleven counts charging, among other things, conversion, intentional misrepresentations to clients, neglect, failure to disclose a prior administrative suspension to clients or the court, and an adjudication of contempt for practicing law while suspended.
The Hearing Panel gave him credit for his post-disbarment employment
We recognize that it was humbling and difficult to become a paper boy at age forty-six, working the 2:00 A.M. to 6:00 A.M. shift (Ex. 4 (WCM 148-149); Tr. 2-129 (Petitioner)), and we give the petitioner credit for his work ethic and industriousness. We acknowledge and respect that the petitioner rebuilt his life after hitting bottom, working his way up from an unskilled position to a series of responsible, well-paying managerial roles where he can again provide for his family.
He has a long way to go to reimburse the Clients' Security Board
The petitioner has paid the CSB $100 a month beginning October 7, 2010, and we acknowledge that he has paid every month since then, at least through early June 2017. Ex. 16 (WCM400); Tr. 2-177 (Petitioner). However, the petitioner has never increased his monthly payments, and he still owes the CSB $109,000. Tr. 2-198, 2-260 (Petitioner). At that rate of payment, it will take over ninety years to make complete restitution.
He had declared bankruptcy in 2005
We do not agree that the petitioner's debt to the CSB was dischargeable in bankruptcy, or that it was discharged. And in any event, the petitioner testified before us that although his debt to the CSB may have been legally discharged, he has a moral obligation to pay it. Tr. 2-175-2- 176 (Petitioner). He stated, "I owe them money. I am going to pay them money or die first, and that's what is going to happen." Tr. 2-199 (Petitioner).
However, we conclude that the petitioner's conduct belies any suggestion that he acknowledges a moral obligation to correct the harm he caused his former clients and the resulting costs he imposed on the CSB and the bar. His choice to make only minimal reimbursement to the CSB, when he could clearly have afforded to pay more, and his failure to make any restitution at all to the other clients whose funds he took, preclude a finding of moral fitness.
Charity begins at home
The preceding table reflects that in the years 2010 to 2016, the petitioner and his wife made cash gifts to charity of$17,275. During the same period, he paid the CSB only $7,600. Ex . 16 (WCM402-403). Looked at another way, the petitioner would have to pay the CSB for 14 .4 years, at his $100/month rate, to reach $17,275...
The sincerity of the petitioner's stated intent to compensate his clients and the CSB is undermined by his efforts to distance himself from income and marital assets that were actually available to satisfy those obligations. By his testimony concerning his income and charitable donations, the petitioner demonstrated two ethical shortcomings: a lack of sincere concern for those harmed by his misconduct, and a willingness to present less-than-candid testimony in support of his petition for reinstatement.
Also as to assets
The petitioner tried to make the same "his and hers" distinction as to gambling winnings. There was testimony that both he and his wife gambled. Tr. 2-96, 2-101 (D. McPhee); Tr. 3-45 (Petitioner). Their respective winnings are reflected in W-2G forms filed with their tax returns; many of those forms are in the petitioner's name. Ex . 20 (WCM508, 509); Ex. 21 (WCM545); Ex . 22 (WCM582); Ex. 23 (WCM625-629). Both the petitioner and his wife tried to convince us that she was the only gambler, and that he just went along for companionship. E.g., Tr. 2-101-2- 102 (D. McPhee); Tr. 3-40 (Petitioner). However, the evidence is clear that on those occasions when the petitioner received a W-2G, it was because he had won money. Tr. 2-98, 2- l 08-2-109, 2-114-2-117 (D. McPhee). We cannot agree that he did not risk and earn money in this pursuit. We reject his testimony that none of the gambling winnings represented income to him. That false testimony appears to us to have been an excuse for not paying more to the CSB, an excuse we do not accept. It confirms the conclusion stated above; namely, that the petitioner has demonstrated a lack of concern for those harmed by his misconduct, and has sought to conceal or excuse that lack of concern by inaccurate testimony about his income.
There were other issues with his questionnaire answers
We do not agree that the reinstatement process is "iterative" (Petitioner's PFCs at 17-18, 56); that implies a collaborative process or that bar counsel has some duty to urge or aid a petitioner to be honest, accurate and complete. That is a serious misconception of the process and the applicable burden of proof. We reject any suggestion that a disbarred lawyer, in applying for reinstatement, need not be accurate or truthful in his first, second or third responses to the required reinstatement questionnaire and that if he is not, it falls to bar counsel to insist upon a fully correct response on the fourth try.
He had produced an impressive array of favorable character testimony but in the end
In light of the scope and seriousness of the petitioner's misconduct, he bears a heavy burden to prove that reinstatement is warranted. He has not carried it. We rely for this conclusion on many factors: his failure to repay his large debts to the CSB and his former clients; his disingenuous testimony about his tax returns and gambling winnings; his carelessness in preparing successive versions of his responses to the reinstatement questionnaire; and his failure to understand, or to explain, the causes of his misconduct. We acknowledge his recent strong work ethic and the letters and testimony from his witnesses, but we conclude that reinstatement would be detrimental to the integrity and standing of the bar, the administration of justice and the public interest.
Thursday, March 8, 2018
An agreed-upon reprimand with probation has been imposed by the Arizona Presiding Disciplinary Judge.
The misconduct involved a dissolution of marriage matter where the attorney had identified himself as counsel to the petitioner/wife Julia Kay Jessop when in fact he had been consulted by the husband Brigham Zitting Jeffs.
Husband and wife were members of the Fundamentalist Latter-Day Saints church and husband did not want to be identified as the petitioner.
The attorney met with both husband and wife and the result was an agreement that "highly favored" the husband. The agreement was approved by the judge because he thought the wife had counsel.
A year and a half later, wife moved to vacate the agreement. The judge reviewed the attorney's intake form that listed the wife as the opposing party.
The consent agreement was vacated.
The stipulations note that the attorney met with the husband whi, days later, "called with 'an abrupt change of plans' and explained that because of his affiliation with the FLDS church, he did not want to be identified as the party initiating the divorce (petitioner)."
Husband told the attorney that this was acceptable to wife. After meeting with wife alone, the attorney discussed the issues and the parties subsequently executed the (unfavorable to wife) consent.
At the time, the attorney had been in practice less than two years and had "limited experience in family matters." (Mike Frisch)
The Florida Supreme Court has adopted new rules regarding lawyer referral services
Having considered the Bar’s proposals, the comments filed, the Bar’s response, and having had the benefit of oral argument, the Court adopts the amendments to the Rules Regulating the Florida Bar as proposed by the Bar. These amendments, though not consistent with our directive in In re Amendments to Rule Regulating the Florida Bar 4-7.22—Lawyer Referral Services, are necessary to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest. These amendments do not, however, resolve our concern with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident. The findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm. We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.
Accordingly, the Rules Regulating the Florida Bar are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments shall become effective on April 30, 2018, at 12:01 a.m.
The District of Columbia Court of Appeals - over a dissent - affirmed a voyeurism conviction
Viewed in the light most favorable to the verdict, the evidence established that shortly after midnight on January 6, 2015, Shirley Cartwright and her niece visited Epicurean and Company, a restaurant on the campus of the Georgetown University Medical Center. The restaurant was not busy; only four employees (two cashiers, appellant, and a supervisor) and about five customers were on the premises, besides Ms. Cartwright and her niece. After paying for her food, Ms. Cartwright asked a cashier for directions to the rest room. The cashier guided her to a hallway and pointed out the ladies‘ rest room at the end of the hall on the left. As Cartwright passed the door to the men‘s rest room, appellant was leaving the room with a dustpan and a broom. Cartwright heard appellant speak briefly with the cashier who had given Cartwright directions. A still-image taken from a hallway video surveillance camera showed appellant looking back at Cartwright just before she entered the ladies‘ rest room.
Cartwright went into the rest room, which was unoccupied, and entered the last stall. The stalls were separated from each other by floor-to-ceiling walls, and the stall doors extended nearly to the floor, leaving a space of 12 to 14 inches at the bottom. Cartwright did not hear anyone knock or make other noises. While sitting on the toilet, she "got this really eerie feeling . . . and felt really weird and crazy." She looked down and saw "this man down, way down to the ground looking under my stall." The man‘s face was sideways, but she could not see the rest of his body; judging from the position of his head, Cartwright believed that his body was "down on the ground." Appellant was looking directly at her. Cartwright screamed and cursed at appellant, telling him to get out. Appellant said nothing, got up, and ran out of the rest room. Cartwright recognized him in the bathroom, and testified accordingly, as the restaurant employee she had seen in the hallway.
Appellant testified that he had entered the ladies‘ room and remained there only to clean it, thinking it was vacant. Noticing that the door to the third stall was closed, he looked underneath it and was surprised to see Cartwright in the stall. On cross-examination, he was shown surveillance footage from the hallway in which he is seen approaching the door to the ladies‘ room about thirty seconds after Cartwright entered it. Appellant acknowledged that he turned back before entering, walked to the men‘s room, looked briefly inside, and then returned to the ladies‘ room and entered it.
The trial court found the victim credible.
On the law, this was a "hidden observation post."
Appellant did not merely "st[and] in the middle of a public rest room," and the judge, as trier of fact, could fairly conclude that appellant staged his behavior so as to maximize the likelihood that he would be able to observe Cartwright in the stall while unseen. Specifically, according to evidence the judge credited, appellant first checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated to not draw attention. He thus occupied a "hidden observation post" by any common-sense understanding of the phrase.
appellant did not just ―engage"in simple viewing," post at 13-14, as though seated on a park bench viewing passersby, but employed his own artifice and precautions to observe, unseen, a person whose privacy the statute is expressly meant to protect. Moreover, by any reckoning, he attempted to practice such voyeurism, which is what the charging document alleged.
Associate Judge Easterly dissented
Peering at another person under a bathroom stall door and watching while that person sits on a toilet is clearly creepy and an invasion of that person‘s privacy. A legislature could decide that it should be a crime to act in such a manner. But if the criminal code is silent, this court cannot fill the gap.
There is no crime in the District of Columbia Code that prohibits the simple act of viewing another person in a manner that violates that person‘s privacy. Our disorderly conduct statute used to broadly (but vaguely) prohibit "breaches of the peace," including all manner of invasive viewing...
Because I think the majority opinion both misinterprets what it means "to occupy a hidden observation post" and exceeds our judicial role, I respectfully dissent.
Intentional misappropriation and a host of other Rule 1.15 violations have led to an attorney's disbarment by the District of Columbia Court of Appeals.
Respondent‘s conduct giving rise to the violations stemmed from her personal injury law practice and transactions that followed a common pattern, namely: respondent‘s clients received medical treatment from a chiropractor and signed (along with respondent) the medical provider‘s authorization and assignment form creating liens on the proceeds of any settlement amounts received by the client-patients from insurers. Respondent then negotiated a settlement with the involved insurance carrier, normally including also a reduction of the medical bills by the treatment providers. During the time period at issue, respondent referred her personal injury clients to two different chiropractors or chiropractor clinics, Dr. Mohammed Yousefi and Medical Support Services (MSS). Respondent‘s failure to hold in trust and timely disburse funds received pursuant to these settlements and owed these providers formed the basis of the violations found by the Hearing Committee and the Board.
The court rejected attacks on the proofs
Disciplinary Counsel offered convincing evidence that, although respondent owed the providers an aggregate of at least $40,893 for some nineteen selected cases as of August 1, 2012, by the alleged misappropriation dates of October 5–8 and 16, she had in the trust account less than $37,000, when no disbursements for those cases had yet been made to the providers.
Her pattern of disputing the medical bills post hac also did not negate the findings
As the Hearing Committee explained, respondent‘s duty to pay the providers once the insurers had settled ―far outweighed her own interests in evaluating the accuracy and integrity of medical bills for which she had already received a settlement check.‖ And, if respondent had any remaining dispute with a provider as to the correct amount to be disbursed for treatments, the proper course of action was for her to escrow the funds until the dispute was resolved, District of Columbia Rule of Professional Conduct 1.15 (d), which she failed to do...
In sum, the Board unanimously determined by clear and convincing evidence that respondent‘s misappropriation, ―part of a pattern of misconduct — including 34 discrete financially-based Rules violations — that transpired over the course of more than a year,‖ when combined with her "fail[ure] to explain why [the] misappropriation took place"
and "utterly meritless excuses for her failures promptly to pay her clients‘ medical providers," rose to the level of intentional misappropriation requiring disbarment. See In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). The Board‘s report meticulously substantiates that conclusion, and we agree with it. Even if we were to conclude that respondent‘s indifference toward her obligations to the providers was reckless rather than intentional, the result would be the same. In re Anderson, 778 A.2d at 338.
Associate Judge Thompson
concurring in part and concurring in the order of discipline: I readily agree with my colleagues and with the conclusion of the Hearing Committee and the Board on Professional Responsibility (the Board) that there is clear and convincing evidence that respondent committed numerous violations of Rule 1.15 (c) (failure promptly to deliver funds) and 1.15 (d) (failure to distribute funds). I have had a great deal more trouble agreeing that Disciplinary Counsel proved by clear and convincing evidence that respondent misappropriated client funds (and, under our case law, must be disbarred). Ultimately, I am persuaded that the record evidence supports the conclusion that respondent‘s trust account was out of trust on the dates Disciplinary Counsel alleged, but I write separately to explain why I have reached this conclusion. Along the way, I explain why I am not entirely satisfied with the reasoning on which the Board relied.
But in the end
In the end, I conclude that the record evidence as a whole is clear and convincing that respondent‘s escrow account was out of trust on the dates in question, and thus that a finding of misappropriation is warranted.18 Because I do not take issue with the Board‘s finding that the misappropriation was intentional or at least reckless, I concur in the judgment disbarring respondent.
Associate Judge Beckwith and Senior Judge Farrell were on the per curiam opinion. (Mike Frisch)