Friday, December 2, 2016

Two Plus Two Equals Indefinite Suspension

The full Massachusetts Supreme Judicial Court affirmed the sanction imposed by a single justice for crimes and other misdeeds

Had the respondent's criminal misconduct been the only basis for discipline (although, as set forth below, it was not), we would be satisfied that a two-year suspension would be comparable to other cases involving similar criminal convictions...

Although the respondent's criminal convictions concerned kickbacks and unearned fees in some of the same transactions described in count one of the petition, the misconduct that is the subject of the remaining counts was different and warrants additional discipline. The hearing committee's findings, adopted by the board, establish that the respondent violated multiple rules of professional conduct, directly or through an associate attorney, by purchasing homes from financially distressed homeowners, leasing the homes back to the homeowners under oppressive terms, and intentionally misrepresenting the terms of the transactions on HUD-1 forms. The board additionally found that the respondent prepared or caused to be prepared fraudulent documents four separate times, and caused an associate attorney to make false certifications three times. On account of this misconduct, the board recommended a two-year suspension in addition to the two-year suspension for the criminal misconduct.

 Thus

Not only did the respondent use his professional training and experience to take advantage of vulnerable homeowners in precarious financial positions, but he also violated Federal law, concealed the nature of the transactions from his lenders and his firm's clients out of a self-interested motive, and engaged in repeated conflicts of interest.definite suspension is the appropriate sanction...The order of the single justice indefinitely suspending the respondent from the practice of law is affirmed. The respondent may apply for reinstatement nineteen months before he would otherwise be entitled to do so.

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Mortgage Scam Caused Great Public Harm

A California Hearing Department has ordered an attorney be placed on involuntary inactive enrollment 

 This matter involves a nationwide loan modification scheme that garnered respondent and his nonattorney partner approximately $9.7 million in a little over two years and which, ultimately, resulted in the Consumer Protection Financial Bureau (CFPB) obtaining a temporary restraining order (TRO) freezing respondent’s assets and having a receiver appointed to operate the practice. Despite the TRO, it appears that respondent has relocated and continues to solicit clients at an unknown physical location.

After reviewing and considering this matter, the court finds that respondent’s conduct poses a substantial threat of harm to his clients or the public and respondent is ordered involuntarily enrolled as an inactive member of the State Bar pursuant to section 6007...

Evidence of great harm

 The evidence amply supports the conclusion that respondent’s misconduct has caused substantial harm to his clients and the public. Respondent’s scheme preyed on distressed homeowners, promising relief from unaffordable mortgages and foreclosures. He acted for his personal benefit, reaping thousands of dollars, with little concern for his clients’ welfare or the adverse consequences of his actions. Homeowners lost their homes and their hopes because of respondent’s selfish, predatory tactics.

Respondent’s conduct also harmed the public by wasting scarce court resources, filing inappropriate cases and inadequately handling others.

Finally, respondent’s misconduct has also harmed the legal profession. Respondent’s unwillingness or inability to follow the laws of this state has tarnished the reputation of other attorneys and the legal community as a whole.

Accordingly, the court finds that the State Bar has established, by clear and convincing evidence, that respondent has caused substantial harm to his clients and the public.

(Mike Frisch)

December 2, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, December 1, 2016

A Gamble With Trust Funds

The December 2016 California Bar Journal has its usual array of bar discipline summaries

WILLIAM ANDRAI ACOSTA [#207377], 44, of Glendora, was suspended from the practice of law for 60 days and ordered to take the MPRE. He was also placed on two years’ probation and faces a two-year suspension if he fails to comply with the terms of his disciplinary probation. The order took effect July 23, 2016.

A State Bar Court judge found Acosta culpable of failing to maintain client funds in his trust account and misappropriating client funds which resulted from his gambling hobby. Acosta, who frequently goes to Las Vegas and stays at The Mirage, set up a marker account at the hotel and casino. A marker represents a player’s legal obligation to pay for chips. Although Acosta’s casino account was initially linked to his personal bank accounts, at some point it was deactivated because the bank accounts were no longer valid. Acosta then gave the casino three new bank accounts to link, one of which was his client trust account.

When he gambled at The Mirage in November and December 2013 Acosta obtained $10,000 worth of chips, but did not pay the markers before leaving. Unable to reach him, the casino tried multiple times to have the money deducted from his client trust account but there were insufficient funds. The casino successfully collected the money after Acosta deposited a client’s settlement check into the account. As a result, the amount in his client trust account fell to $1,028.82, which was significantly less than the $5,267 that he was supposed to hold in trust for his client and her medical provider.

Unaware the casino deducted the money, Acosta wrote a $3,000 check to the client from his trust account, which was not paid due to insufficient funds. When he learned what had occurred, he wrote the client a new check, which was paid.

Acosta had no prior record of discipline, presented 20 witnesses who testified to his good character and cooperated with the State Bar.

Thank you for the comment that alerted us to a recent stipulation in a disciplinary case that involved drunk driving and this

On the night of September 29, 2012, respondent was driving home with his wife, Ms. X, when the couple got into an argument. At some point during the argument, Ms. X called 911, reporting that respondent had hit her and that he had been drinking.

Los Angeles County Sheriff’s Deputies responded to respondent’s residence. Upon arrival, they found respondent outside the house. The deputies observed scratches to respondent’s cheek and forearm, from being struck by Ms. X, and that respondent’s breath smelled of alcohol. Respondent declined to speak with the deputies and declined medical attention. The deputies detained respondent, placing him the back seat of a patrol car, while they conducted their investigation.

Ms. X was also outside, and was crying. The deputies observed some swelling and small lacerations to her lips, and that her breath smelled of alcohol. She refused medical attention and declined to obtain an Emergency Protective Order against respondent. She then refused to cooperate any further with the deputies.

While respondent was handcuffed and seated in the back of a patrol car, he began to complain of difficulty breathing. A Fire Department medical unit was summoned to attend to respondent. While a fire fighter was attending respondent, respondent spat in the fire fighter’s face without any warning or provocation.

The stipulation is for a suspension with all but 120 days stayed. (Mike Frisch)

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (1)

Attorney Discipline Scam Alert

The Texas State Bar is warning its members about an email scam

We are writing to inform you that an email scam that uses false notifications of disciplinary actions is targeting members of the State Bar of Texas.

Several members have reported receiving an email claiming a grievance had been filed against them and that they had 10 days to respond. The email invites them to “click here” for more information.

The email is not from the State Bar of Texas or the Office of Chief Disciplinary Counsel. (Neither of these entities sends out disciplinary notices via email.)

Attorneys in other states have reported receiving similar email notices purporting to be from their state bars. In those cases, the lawyer was instructed to click on a link to view the complaint, which loaded a malicious software called ransomware that blocks computer access until a sum of money is paid.

If you receive this type of email, delete it immediately.

I have little doubt that we will soon seen bar discipline cases where the defense to a charge of failure to respond to a complaint will be "But I thought it was a scam!" (Mike Frisch)

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

DUI Leads To Automatic Disbarment

Felony drunk driving leads to automatic disbarment while felony wire fraud does not, according to a decision of the New York Appellate Division for the Third Judicial Department

As relevant herein, "[a]n attorney convicted of a felony in [a foreign jurisdiction that is] essentially similar to a New York felony is automatically disbarred" (Matter of Park, 95 AD3d 1648, 1648 [2012]; see Judiciary Law § 90 [4] [a], [e]). While we do not find that respondent's federal felony convictions of wire fraud and conspiracy to commit wire fraud meet this standard under the circumstances herein (see Matter of Mueller, 129 AD3d 1293, 1294 [2015]), we are persuaded that respondent's 2011 felony DWI conviction in Connecticut is essentially similar to the New York felony of DWI in violation of Vehicle and Traffic Law § 1192 (2) and (3) and § 1193 (1) (c). Similar to those New York statutes, the elements of Connecticut General Statutes § 14- 227a include the requirements of operating a motor vehicle while under the influence of alcohol with a blood alcohol content of .08% or more by weight of alcohol. Moreover, Connecticut and New York law both elevate such a conviction to a felony where there has been a previous DWI conviction within the past 10 years.

(Mike Frisch)

 

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Maine Second Chance

A stayed two-year suspension with numerous conditions has been imposed by the Maine Supreme Judicial Court based on a proposed consent in a matter in which a judge had expressed competence concerns

 In late 2014, Judge Maria Woodman filed a grievance complaint concerning her and other jurists' observations of Attorney Carey's repeated incompetence in court matters. Both in the complaint and later during the testimonial evidence presented at the proceeding before the Board's Grievance Commission under M. Bar R. 13(e), four jurists recounted their experiences, observations, and concerns about Attorney Carey's lack of core competence.

Throughout the complaint investigation and the subsequent disciplinary proceeding, Attorney Carey has been adamant that the jurists' accounts were inaccurate and that they had colluded in a conspiracy against him. Although he may continue to disagree with the jurists' testimony, Attorney Carey wishes to move forward in his legal career. He has determined to set aside his disagreements and accept that multiple jurists have found his skills to be inadequate. Attorney Carey agrees that the testimony of the four jurists at the preliminary hearing before the Grievance Commission comprises sufficient evidence for this Court to find that he has demonstrated a lack of core competence in the handling of his clients' respective litigation matters. Based upon that admission, the Court finds that Attorney Carey has at times failed to follow applicable rules, procedures and directives issued by the trial courts referenced above.

The court noted prior discipline for similar problems.

 The Court urges Attorney Carey to use the two-year period of suspended suspension with monitoring to seek guidance and accept direction from his monitoring colleagues on issues of office management, client and court communication, and litigation strategy, and to discuss with MAP and his monitors how to appropriately engage with the Maine bench and bar so that he may effectively represent his clients

There are a number of conditions. (Mike Frisch)

December 1, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, November 30, 2016

Taxman

Tax offenses drew a six-month suspension by the New York Appellate Division for the First Judicial Department.

The material facts are undisputed. Respondent, who is 49 years old and focuses his practice on Family Court matters, testified that, inter alia, he has always had a fascination with issues related to money and taxation. In or about 2002, after extensive research into nonconventional theories regarding taxation and the monetary system, he decided not to file tax returns or pay taxes based on, among other things, what he now realizes was the misguided belief that monies he earned in connection with the practice of law were not subject to taxation. Between 2002 and 2011, respondent wrote more than 100 letters to New York State and federal tax officials, and also telephoned them, to advise them that their files pertaining to him purportedly contained incorrect Individual Master Files (IMF) codes which affected his tax liability; and that, in his view, he was not obligated to file returns or pay taxes until the issue was addressed.

Respondent admitted that he had spoken with tax attorneys over the years, none of whom agreed with his position. While respondent filed an administrative claim against the IRS for alleged unlawful collection activities, which he understood to be the precursor to a federal lawsuit, he never actually pursued a lawsuit because New York City did not honor an IRS levy on payments to him.

In 2011, shortly after the birth of his son, respondent was approached by New York State tax agents and told that if he did not resolve his outstanding tax liability civilly, it would become a criminal matter. Respondent stated that the birth of his son caused him to reassess his views regarding his tax obligations, and he advised the tax agents, through counsel, that he would file his returns and pay his taxes but he first wanted an agreement that he would not be criminally prosecuted. Such an agreement was not forthcoming, and, as noted, respondent was prosecuted and ultimately pled guilty to a misdemeanor.

Between February and April 2012, prior to his conviction, respondent filed his New York State tax returns for the tax years 2005 through 2010; and, in November 2013, he entered into an installment payment plan with New York State tax authorities pursuant to which he pays $200 per month toward his outstanding tax liability for the tax years 2004 through 2006, and 2011, which exceeds $60,000. Between 2012 and 2013 he filed his federal tax returns for the tax years 2002 through 2012. His federal tax liability is now in excess of $300,000, including interest and estimated penalties. Respondent is awaiting a payment agreement with the IRS and, in the interim, he has been paying the IRS $500 per month.

Respondent admitted that during the 10-year period at issue he saved approximately $200,000 as a result of not paying taxes. He averred that this money was to provide for the future, not to finance a lavish lifestyle, as evinced by, among other things, the fact that he has lived in the same studio apartment for 18 years, has never owned a car, and has not really traveled.

Respondent stated that he has paid approximately $100,000, half of his savings, to satisfy his tax liability to New York State; and his remaining savings were used for legal expenses in connection with the criminal and disciplinary proceedings, a Family Court proceeding involving his now three-year-old son, and to financially support his son. As a result of his tax conviction, respondent was removed from the Family Court, Queens County 18b Assigned Counsel Plan from which he had derived a significant part of his income and which provided him with work that he loved. Respondent expressed remorse for his conduct and averred that his actions were not motivated by greed or self- interest, and that someone of his education level and professional background would not have engaged in such self- destructive behavior absent some sort of mental stress or emotional affliction. Respondent stated that there was an extensive history of depression on his father's side, and while he saw a therapist and psychiatrist for approximately one year, he stopped doing so because his condition stabilized.

Respondent stated that, in retrospect, he was antisocial and was so obsessed with his views on taxation that he failed to recognize his self-destructive behavior. In addition, he explained that he was in close proximity to the September 11, 2001 terrorist attacks on the World Trade Center and, as a result, his depression returned but he did not seek professional help. Instead, he dealt with his feelings by immersing himself in his law practice and his study of money and taxation.

Respondent recently started seeing a psychiatrist; however, he did not offer any expert testimony or report evincing that he was diagnosed with a mental illness which contributed to his protracted failure to meet his tax obligations.

Sanction

It is obvious that the issue of sanctions for tax related misconduct is very fact dependent. The facts in this case appear most similar to those in Matter of Racht, and thus, under all the circumstances presented herein, including the mitigating factors presented by respondent, we find that the deterrent effect of a six-month suspension as recommended by the Referee is an appropriate penalty.

Accordingly, the Committee's petition is granted to the extent of confirming the Hearing Panel's findings of fact and conclusions of law, but is denied as to the recommendation as to sanction, and respondent is suspended from the practice of law for a period of six months as recommended by the Referee, and until further order of this Court.

Any application for reinstatement should include documentary proof that respondent has entered into agreements with the IRS and New York State tax authorities for payment of any outstanding tax debts.

(Mike Frisch)

November 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred For Insurance Fraud

The Rhode Island Supreme Court has disbarred a convicted attorney

The respondent was a member of the bar of this state. On November 17, 2011 he was charged in a sixty-six count indictment filed in the United States District Court for the District of Rhode Island which alleged that the respondent had engaged in an investment scheme to defraud insurance carriers by securing the identities of terminally ill people by making direct material misrepresentations and omissions of fact to them, and then purchasing variable annuities and corporate bonds with death-benefit features that utilized these ill patients as the measuring life. On November 19, 2012, four days into what was anticipated to be a three-month trial the respondent entered a plea of guilty to one felony count of wire fraud, in violation of 18 U.S.C. § 1343, and one felony count of conspiracy, in violation of 18 U.S.C. § 371. The government dismissed the remaining counts of the indictment.

 On February 28, 2013, subsequent to the entry of his guilty plea but prior to the imposition of sentence, the respondent filed a motion to vacate his plea. On August 1, 2013, after a four-day hearing, the District Court denied the motion. On December 16, 2013, the respondent was sentenced to a term of imprisonment of seventy-two months on the charge of  wire fraud, and sixty months, to be served concurrently, on the charge of conspiracy. He is presently serving that sentence. Restitution has been ordered in the amount of $46,000,000. The respondent filed an appeal of the denial of his motion to vacate his plea with the United States Court of Appeals for the First Circuit. On January 16, 2014, Disciplinary Counsel filed a petition with this court in accordance with the provisions of Article III, Rule 12 of the Supreme Court Rules of Disciplinary Procedure, requesting that the respondent be suspended from the practice of law pending the outcome of his appeal. The respondent notified this Court through counsel that he had no objection to the petition. Accordingly, on February 20, 2014 this Court entered an order suspending the respondent from the practice of law pending the outcome of his appeal and until further order of the Court.

On December 7, 2015, the United States Court of Appeals issued its opinion affirming the District Court’s denial of the respondent’s motion to vacate his plea. The respondent thereafter filed a petition for writ of certiorari with the Supreme Court of the United States seeking review of the decision of the First Circuit. That petition was denied on May 23, 2016.

The respondent now has exhausted all avenues of appeal, and Disciplinary Counsel’s motion to disbar may therefore be granted.

The New York Times reported on the crimes 

Joseph Caramadre contends he was a philanthropist and a clever lawyer, offering $2,000 payments to people who were dying. The United States attorney contends that he was a scam artist, preying on the very ill and getting rich by defrauding insurance companies.

In the face of overwhelming evidence, Mr. Caramadre pleaded guilty last year, and on Monday, a federal judge here sent him to prison for six years.

Mr. Caramadre, an estate planner and a prominent member of the state’s Roman Catholic establishment, said he was merely exploiting a gap in insurance companies’ writing of the rules governing their products, and doing nothing illegal. Instead, he said, he was giving thousands of dollars to struggling families. His largess is well known; the court received dozens of letters praising Mr. Caramadre, including one from the bishop of Providence and one from a former Boston mayor...

During the hearing, Mr. Caramadre apologized to the families of the terminally ill patients for the distress his actions caused, but stopped short of admitting he had actually cheated any of them.

“I cannot tell you I am sorry that these terminally ill people got defrauded,” said Mr. Caramadre, who explained he would be lying if he did so. “I just wanted to share wealth.”

(Mike Frisch)

November 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Ethics Of Marijuana Advice In Pennsylvania

From the web page of the Pennsylvania Disciplinary Board

In May we reported on the proposed “marijuana law” amendment to Rule 1.2 of the Rules of Professional Conduct, dealing with whether a lawyer can counsel a client on conduct that is legal under some law and illegal under other law. The issue arose with the adoption of law allowing medical marijuana in Pennsylvania and other states, while the substance remains illegal under Federal law.

On October 26, 2016, in a rulemaking published at 46 Pa.B. 7164 (November 12, 2016), the Supreme Court of Pennsylvania adopted an amendment to Rule 1.2, which addresses the subject. The rule adopted adds a new subsection (e) to Rule 1.2, which states:

A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct.

The rule adopted differs slightly from the proposed rule change published in May. The proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

The revised rule took effect November 25, 2016.

(Mike Frisch)

November 30, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Courtesy Call

The Louisiana Supreme Court denied a writ application with a concurrence

CRICHTON, J., additionally concurs and assigns reasons.

I agree with the decision to deny this writ application. I write separately to note my observation that Relator, Louis Koerner—an attorney and member of the Louisiana Bar acting here on behalf of himself—makes insulting and casually demeaning comments regarding both the trial and appellate courts that presided over these matters. In my view, his statements come close to violating La. S. Ct. R.VII, § 7. (“The language used in any brief or document filed in this court must be courteous, and free from insulting criticism of any person, individually or officially, or of any class or association of persons, or of any court of justice, or other institution. . . .”). All attorneys should conduct themselves with the utmost integrity in their interactions with the courts in accordance with our Professionalism Guidelines. See La. Sup. Ct. R, Part G, § 11 (“We will speak and write civilly and respectfully in all communications with the court.”)

(Mike Frisch)

November 30, 2016 | Permalink | Comments (0)

Tuesday, November 29, 2016

A Ringing Defense Of The Right To Act Stupidly On One's Own Property

A dissent posted today by Justice Benjamin of the West Virginia Supreme Court of Appeals questions whether the state may make it a crime to drive an ATV drunk on your own property.

The most solemn duty of an American court lies in its pledge to protect the rights and liberties of private citizens from encroachment by the State. Here, the Majority not only badly misread applicable statutory law, it also sanctioned the infringement of two of our most basic natural rights: the right to do what one wants to do in the privacy of one’s estate so long as another is not harmed and the right to be left alone. As trustees of the wisdom and vision of our founders, this Court failed mightily.

It is unquestioned that Joshua Beckett’s use of his property was a matter of his own free choice. That it may be said that operating an all-terrain vehicle (“ATV”) exclusively on one’s private property, i.e., the family farm, after having consumed alcohol was a “stupid” use of the property misses the point. So long as Mr. Beckett did not infringe upon the rights of others or put others at risk, it was his choice to act “stupidly.”

As to case law

To support its expansive creativity, the Majority asserts that its research, listed in a footnoted string citation, shows that “nearly two dozen jurisdictions” support its logic. A careful review, however, reveals that none of the cited cases, save one, supports the Majority’s conclusions that the private use of an ATV by an individual on his private property while intoxicated is criminal conduct.

Irony

By no measure does the Majority opinion find legitimacy in constitutional, statutory, or common law. While the rights with which we are endowed are scarcely a topic of measured circumspection in our fast moving society, it falls to our courts to be vigilant that such natural rights are protected. This includes, as here, the importance of protecting the right to the private use and enjoyment of one’s private property.

In 1816, Jefferson wrote to his friend, Samuel Kercheval, a Virginia writer: “The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management.” Letter of Thomas Jefferson to Samuel Kercheval, June 12, 1816, Writings, v. 10, p. 39. This quotation crowns the courtroom of the Supreme Court of Appeals of West Virginia. How ironic.

The majority opinion is linked here. Mike Frisch)

November 29, 2016 in Current Affairs | Permalink | Comments (0)

A Mother's Love; A Court's Tolerance

A mother's advocacy on behalf of her son has resulted in a public reprimand by the Wisconsin Supreme Court.

This court is familiar with the underlying facts giving rise to this case. It stems from Attorney Bach's efforts to advocate on behalf of her adult son, A.B., who is disabled. A.B. has a rare medical condition that renders him a danger to himself and others. Since approximately 2006, when A.B. turned 18, Attorney Bach has engaged in extensive litigation regarding his placement, level and quality of care, payment for that care, and guardianship. 

She was already deeply involved in litigation when admitted to practice in 2011. She initiated a series of cases in state and federal court.

In a June 2013 order, the Wisconsin Court of Appeals warned Attorney Bach that "[b]eing [A.B.'s] mother does not endow her with the right to sidestep, manipulate or disregard the rules by which all litigants must play." Margaret B. v. County of Milwaukee, No. 2012AP1176, unpublished slip op., ¶7 (Wis. Ct. App. Jun. 12, 2013)...

On May 22, 2014, the Seventh Circuit Court of Appeals affirmed Judge Joseph's decision, ruling that Attorney Bach had "abused the judicial process by filing multiple frivolous suits, many of which, like this one, could not succeed unless the court were prepared to ignore the outcome of her earlier suits." The court also noted that Attorney Bach frequently named judges and courts as defendants, despite their absolute immunity. The court ordered Attorney Bach to show cause within 14 days why the court should not impose sanctions for a frivolous appeal.

 On June 12, 2014, the Seventh Circuit Court of Appeals deemed Attorney Bach's appeal frivolous and fined her $2,000.

The Office of Lawyer Regulation brought charges of frivolous litigation that were rejected

The referee expressed frustration with the OLR's amended complaint, noting that "OLR wants me to 'infer' Attorney Bach's knowledge (of frivolousness, unwarranted claims, and intent to harass adverse parties)." However, while the OLR's pre-hearing brief argues that "she knew the claims she was advancing were unwarranted" there is no such factual allegation in the amended complaint. Merely alleging that Attorney Bach filed the various actions is not sufficient. The OLR failed to allege further that she, subjectively, knew that these actions were filed in a frivolous manner, were without merit, that Attorney Bach was trying to advance an unwarranted claim, or that she sought to harass or maliciously injure another. The referee states: "The amended complaint refers to many cases and appeals and it is not my job to guess at what particular conduct OLR claims violates a particular Supreme Court rule."

... the referee did not agree with the OLR's assessment of Attorney Bach's intent. The referee characterized Attorney Bach as a new and very inexperienced lawyer with overzealous goals, who plunged herself, unprepared, into filing federal court actions and subsequent appeals. Her filings were not competent; indeed they are often frustratingly inept, but the referee correctly notes that the OLR did not allege that she violated ethical rules requiring competence. However misguided her filings were, the referee concluded that the evidence did not support a finding that Attorney Bach filed the various actions with the intent of being frivolous or to harass the defendants. Accordingly, the referee concluded that the OLR failed to prove by clear, satisfactory, and convincing evidence that Attorney Bach committed the misconduct alleged in counts one through three.

However, the attorney had knowingly disobeyed an injunction

The referee remained mindful that Attorney Bach's misconduct all relates to her efforts on behalf of her child. Indeed, the referee deemed Attorney Bach's "actions as the biological and loving mother" a mitigating factor in assessing appropriate discipline.

The referee did not condone Attorney Bach's conduct. Nor do we. Attorney Bach's deliberate violation of court orders is serious professional misconduct that requires a public reprimand. Indeed, we take this opportunity to caution Attorney Bach. Although, we affirm the referee's conclusion that the OLR failed to prove she violated SCR 20:3.1(a)(1), (2), and (3) as alleged in counts one, two, and three of the amended complaint, this conclusion reflects a failure in the pleadings, rather than an exoneration of her conduct. We are very familiar with Attorney Bach's filings. We recognize that her fervent advocacy stems from concern for her child. However, we must caution Attorney Bach that this court's tolerance for her persistent refusal to respect and follow rules of court procedure is wearing thin.

The attorney was ordered to pay costs of nearly $15,000. (Mike Frisch)

November 29, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Monday, November 28, 2016

Ethics And F-Bombs

A stayed two-year suspension with conditions was imposed by the North Carolina Disciplinary Hearing Commission on an attorney for foul language in representing Occupy Asheville protesters including herself

After Magistrate Fisher reported to Foster that there was not an outstanding warrant for Foster, Foster exclaimed, "[w]hat the fuck is going on around here?"

Magistrate Fisher warned Foster that her vulgarity was the second time she had used inappropriate language in the magistrate's courtroom area, and that Magistrate Fisher was "going to have to ask [Foster] to leave."

Foster did not immediately exit the magistrate's courtroom area, but repeated the vulgar expletive three or four more times, including "[t]his is fucking ridiculous."

The magistrate held the attorney in contempt and the feeling apparently was mutual

Foster then walked toward the exit door and Magistrate Fisher instructed her to stop, but Foster exited the magistrate's courtroom area, stating as she left, "[w]hat the fuck is going on?" and "[t]his is a bunch of bullshit.

 She was held for about 48 hours on the contempt and on release

In a social media posting about her contempt conviction prior to her de novo appeal in Buncombe County Superior Court, Foster wrote, "[Funny thing is that, pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I didn't even do in this case ... innocent I tell you!"

In another social media posting about her contempt conviction prior to her de novo appeal in Buncombe County Superior Court, Foster also admitted to cursing out of "extreme frustration" and "generally raising hell" in the magistrate's courtroom area before Magistrate Fisher.

The contempt was reversed by the North Carolina Court of Appeals but the court noted

We are, however, very troubled by defendant's use of profanity in the magistrate's office while conducting court-related business despite warnings by the magistrate about the inappropriate language. Such disrespect, particularly by an attorney familiar with proper courtroom practices, is wholly inappropriate. In addition, we are disturbed by defendant's Facebook posts following the incident which evidence her failure to acknowledge the wrongfulness of her conduct - - indeed the posts indicate a very cavalier attitude.

Defendant went so far as to create a Facebook post regarding the incident that stated: "Funny thing is that pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I did not even do in this case. Innocent, I tell you, struck by lightning tn this arbitrary system we call American justice." Given defendant is a lawyer, practicing in our State's courts, we find defendant's attitude. offensive and incomprehensible.

Under the circumstances, the "F bomb" violated two rules

By using profanity before Magistrate Fisher in the magistrate's courtroom area, and by continuing to do so after being warned by Magistrate Fisher about her inappropriate language, Defendant engaged in undignified or discourteous conduct that was degrading to a tribunal in violation of Rule 3.5(a)(4)(B), and also engaged in conduct that was prejudicial to the administration of justice in violation of Rule 8A( d). 

The opinion notes that the attorney is an honors graduate of the University of North Carolina at Chapel Hill Law School. She is admitted in three states with no prior discipline. 

She had been administratively suspended in 2013 and had raised PTSB in the reinstatement.

Also

In correspondence with the State Bar's opposing counsel, Foster accused opposing counsel of prosecuting this action against her for political reasons and because of her cannabis activism, of suborning perjury by presenting the testimony of Magistrate Fisher, and threatened further legal action against both opposing counsel and Magistrate Fisher.

At the hearing, Foster acknowledged that she had no supporting evidence that this action was politically motivated against her, cited her PTSD as the reason for her accusations, and apologized to opposing counsel...

Foster used at least one vulgarity in her e-mail communications with the State Bar's opposing counsel, and at the hearing apologized to opposing counsel for doing so.

We had previously posted the outcome of the matter but without the details. (Mike Frisch)

November 28, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, November 26, 2016

Private Admonition For Self-Reported Sex With Client

A recent private admonition from Delaware

DISCIPLINARY ACTION PRIVATE ADMONITION.

ODC File No. 112894-B

Effective Date: September 12, 2016

A Delaware lawyer was privately admonished for violation of Rule 1.8(j) of the Delaware Lawyers’ Rules of Professional Conduct (engaging in sexual relations with a client). The lawyer agreed to represent a client in a civil matter. Approximately nine months after the representation began, the lawyer and client resumed an intimate personal relationship from twenty years prior and had consensual sexual relations. The sexual relationship and lawyer-client relationship continued for two months until the lawyer terminated the representation and self-reported to ODC.

The Delaware rule on sex with a client

(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Apparently there is no "old flame" exception to the Rule.  (Mike Frisch)

November 26, 2016 in Bar Discipline & Process | Permalink | Comments (1)

A Key Component Of Transparency

When disciplinary counsel determines to file ethics charges against an attorney, the complaint (and response, if any) is a public document in most jurisdictions.

A transparent disciplinary system makes these documents public.

A consumer -friendly system makes charges readily available on line.

Bravo Michigan Attorney Grievance Commission, which does provide such access.

The web page gives one a good sense of the level of activity of the Michigan disciplinary system, By my count, thirty four charging documents have been filed in 2016. 

The most recently-posted complaint alleges that two attorneys from Paw Paw and a former judge engaged in discourteous and disrespectful treatment of opposing counsel in civil litigation.

The two accused attorneys attended a chambers conference in person. Opposing counsel was on the telephone.

The conversation was at least partially recorded and later transcribed.

The Court: Alright, thank you, What a fucking dickhead.

Attorney Stewart: Now you understand why his son is such a fucking dick.

WWMT.com had reported on related (and dismissed) civil litigation in federal court.

A series of  video reports  (also here and here) from WWMT 3 TV also raise the issue whether the "post-d***head" substantive discussion of the case (recited in the charges) were inadvertently overheard ex parte communications.

The 2013 reports note the judge's recusal from the case and later retirement.

I do not read the charges to make the allegation of improper ex parte communication.

High on my D.C. Bar wish list is for the online posting of public charges. 

Jacob Gershman in  The Wall Street Journal reported in 2015 on efforts to open up the New York disciplinary system.

Responding to the importunings for needed reform by Professor Stephen Gillers

In nearly 40 states, according to Mr. Gillers, disciplinary charges against attorneys are automatically made public upon a finding of probable cause. That’s when there’s reasonable grounds to believe that an attorney has committed an ethical violation.

Commission members who objected to more disclosure said it would risk damaging the reputation of an attorney who is accused of wrongdoing but later exonerated. The risk of harm — potentially leading to, in the words of the commission’s report, “career-damaging publicity which, in the era of social media, could never be fully retracted — outweighed whatever extra confidence and trust in the disciplinary system that more openness would bring, the critics said, according to the report.

The report didn’t say how often attorneys who face complaints are exonerated. “We were told that there were very few,” Mr. Gillers told Law Blog on Tuesday.

Declining to respond to the professor’s criticisms, New York court system spokesman David Bookstaver told Law Blog the court system’s leadership appreciates Mr. Gillers’s input. “He brought to light an issue that certainly hasn’t been addressed over the years, and the chief judge thought it was important to address his concerns,” Mr. Bookstaver said.

Law360 (Andrew Strickler) also reported on New York's hostility to transparency and notes that the commission's report to perpetuate secret hearings is entitled Fostering Efficiency And Transparency.  (Mike Frisch)

November 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Trial Court May Not Provide Prosecutor's Reasons In Batson Challenge

The trial court's mishandling of a Batson issue led the Louisiana Supreme Court to grant a new trial in a first degree murder death penalty case involving the death of the defendant's child.

Defendant was subsequently brought to trial. At the conclusion of the jury selection process, defendant moved to quash the petit jury venire on the basis of systematic and intentional underrepresentation of African Americans on the venire panel, specifically African-American males. Additionally, considering the state’s exercise of seven peremptory challenges, five of which were used to exclude African-American venire persons, defendant urged that there is “a prima facie case for a Batson violation” and requested the trial court “require the State to state race neutral reasons” for its peremptory challenges.

In response to defendant’s urging, the trial court stated, “for the record its finding in there’s been a prima facie showing” by defendant of a Batson violation. The trial court then went through each of the state’s peremptory challenges, articulating reasons for the state’s strikes. Subsequently, the trial court concluded “there is no prima facie showing at all as to systematic exclusion on the basis of race by the State’s exercise of its peremptory challenges,” that is, no Batson violation occurred.

The result

The record in the instant case hinders our ability to discern a clearly defined three-step Batson analysis. From all that appears, this court is left to conclude that the trial court conflated the three steps. After finding that the defense had established a prima facie case, the trial court later declared there was no prima facie showing. A finding of a prima facie case is not only a threshold for reaching the other Batson steps, but also serves to frame the issue for the parties and the trial court.  Furthermore, contravening the Elie court’s admonishment relative to the second step in the Batson inquiry, rather than asking the prosecution for actual reasons for its peremptory strikes, the trial court speculated as to what race-neutral reasons might exist. In sum, without consistently identifying for itself whether or not a prima facie case had been established at step one, and without ascertaining the prosecution’s actual reasons at step two, the trial court provided insufficient assurance that, when it came to step three, the court had framed the issue such that it could sufficiently evaluate the “weight and credibility to be given to the ... racially-neutral explanations.” See Elie, 05-1569 at 12, 936 So.2d at 800. Moreover, as this court previously explained, the first two steps may be combined when a party “offered race neutral reasons” in response to a Batson challenge. Nelson, 10-1724, 10-1726 at 10, 85 So.3d at 29. Even then, however, a distinct “third step of weighing [the challenger’s] proof and the “race-neutral reasons” is “critical.” 

...Post-trial remedies include reversal of defendant’s conviction, with a remand for a new trial, or remanding for an evidentiary hearing to have the prosecutor offer race-neutral explanations for the state’s strikes. Under the facts of this case, it is doubtful that an evidentiary hearing would serve to rectify the constitutional violations that resulted from the trial court’s failure to order the prosecutor in this case to articulate race-neutral reasons for his strikes, as required after the trial court made a prima facie finding. A meaningful hearing on this issue is all but impossible because the state can simply reiterate the same reasons already crafted by the trial court. The inadequacy of such a remedy in this case is magnified by the fact that the prosecutor in this case is no longer with the district attorney’s office and there is a new district attorney. Therefore, defendant’s conviction and sentence are vacated, and this matter is remanded for a new trial.

(Mike Frisch)

November 26, 2016 | Permalink | Comments (0)

Illinois Supremes Sanctions Attorneys

The Illinois Supreme Court has ordered discipline in a number of cases and has summarized the actions on the ARDC web page.

Among the actions

Mr. Cahnman, who was licensed in 1978, was suspended for ninety days. While serving as an alderman for the City of Springfield, he represented a client in cases in which Springfield police officers arrested or issued citations to the client. He also participated in four closed City Council meetings during which the City Council discussed a police records destruction lawsuit and a civil rights lawsuit that his client had filed against the City through separate counsel. During these meetings, Mr. Cahnman was appearing on his client’s behalf in the very same traffic case that gave rise to the civil rights lawsuit. He did not disclose his representation to the City Council. The suspension is effective on December 9, 2016.

(Mike Frisch)

November 26, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Former IRS Attorney Seeks Unemployment Benefits After Discharge For Tax Filing Issues

A remand has been ordered by the District of Columbia Court of Appeals in a case involving an attorney's entitlement to unemployment benefits

Until her termination, Petitioner worked as an attorney with the Internal Revenue Service (“IRS”). She represented the government before the United States Tax Court, including in cases involving penalties for failure to pay taxes and failure to file tax returns. In 2011 her supervisors became aware that Petitioner had filed her 2006 and 2008 tax returns late, and it appeared that she had not filed her 2009 tax return at all.

The IRS considered removing Petitioner, but it ultimately entered into a Last Chance Agreement with her on November 4, 2011. Petitioner agreed to acknowledge her past wrongdoing and agreed to a ten-day suspension. She also agreed to continue her employment on a “trial basis” until the IRS “receive[d] affirmative proof that her 2013 federal personal tax return period [sic] ha[d] been timely filed.” The Agreement also required Petitioner to timely pay her taxes for each tax year from 2010 to 2013 and to notify her supervisors that she had filed those returns within five days of each filing. Petitioner agreed that a breach of either requirement would justify her removal. 

In 2014 the IRS discovered that Petitioner had not paid all of the taxes she owed for 2013. Moreover, she had not notified her supervisors within five days that she had successfully filed the 2013 return—Petitioner notified her supervisors one day late. The IRS found that each violation breached her Last Chance Agreement, and it terminated Petitioner’s employment. The IRS noted that either violation by itself would have constituted sufficient grounds for termination.

The remand deals with the timeliness of the appeal from the denial of unemployment benefits and whether the attorney's dismissal was for "gross misconduct"

 We have repeatedly held that we cannot affirm a determination of gross misconduct unless the ALJ makes explicit findings that the former employee acted deliberately or willfully...

If the OAH determines on remand that it does have jurisdiction of Petitioner’s appeal, it should more fully address the gross misconduct issue, making explicit findings regarding whether Petitioner acted deliberately or willfully when she failed to pay all of her taxes in 2013 and when she failed to timely notify her employer that she had filed her 2013 return. We note that the ALJ may consider only these two alleged instances of misconduct—and not Petitioner’s allegedly late or missing filings in 2006, 2008, and 2009—because the failures to pay all of her taxes in 2013 and to timely notify her employer of the 2013 filing were the two reasons that the IRS gave for discharging Petitioner.

The opinion is authored by Associate Judge Fisher. (Mike Frisch)

November 26, 2016 | Permalink | Comments (0)

Friday, November 25, 2016

Suspension For Domestic Violence

An act of domestic violence that took place in 2008 and was promptly reported to disciplinary authorities has led to a three-month suspension by the New Jersey Supreme Court.

The story is told in the report and recommendation of the Disciplinary Review Board, noting an earlier sanction

Respondent was admitted to the New Jersey bar in 1990. He maintains a law office in Union Township, New Jersey. In 2007, respondent, a former municipal court judge, was censured as a result of charges brought against him by the Advisory Committee on Judicial Conduct (ACJC) for committing an act of domestic violence and causing a motor vehicle accident while driving in an intoxicated condition. In re Paraqano, 189 N.J. 208 (2007)

The matter at issue involved another act of domestic violence

On September 2, 2008, a Morris County grand jury returned an indictment against respondent, charging him with second degree aggravated assault and third degree aggravated assault, in violation of N.J.S.A. 2C:12-ib(i) and (7). Thereafter, on September 29, 2009, before the Honorable John B. Dangler, J.S.C., respondent entered a guilty plea to the amended offense of simple assault, a disorderly persons offense.

During his plea allocution, respondent admitted that, on December 4, 2007, he had an argument with his then wife, D.P., which resulted in his "recklessly" pushing and having physical contact with her, from which she suffered a bruise on her knee.

Why did it take so long to impose a sanction?

Respondent..argued that the passage of time between the incident and the OAE’s prosecution of the case warranted dismissal or, in the alternative, punishment less than a suspension. Respondent pointed out that, in 2008, he had made the [Office of Attorney Ethics]  aware of the criminal charges pending against him and that, in 2009, he had informed the OAE of the disposition of the case. Finally, in 2010, the OAE had been made aware of the disposition of the appeal...

Respondent argued that the OAE had waited a full six years to initiate disciplinary proceedings against him. During that time, he acquired a mortgage and invested in his legal practice, believing that, with the passage of time, he was free to move on with his life. He asserted that a suspension at this point could cause him to lose his home and would have a devastating impact on his law practice and, therefore, his ability to earn a living.

The DRB's rejected the delay as a reason to forego suspension

Although respondent makes a compelling argument about the passage of time, his reliance on In re Verdiramo, supra, 96 N.J. 183, is somewhat misplaced. Verdiramo, who pled guilty to obstruction of justice by influencing a witness, was before the Court on events that occurred more than eight years earlier. The Court remarked that the public interest in proper and prompt discipline was "necessarily and irretrievably diluted by the passage of time" and that disbarment would have been more vindictive than just. Under the "special circumstances" of the case, (Verdiramo already had been temporarily suspended for approximately seven years, an amount of time that greatly exceeded the maximum period of suspension reserved for the most serious offenses that do not warrant disbarment) the Court did not impose additional discipline. Unlike Verdiramo, respondent has not yet suffered any disciplinary consequences from his guilty plea.

Here, respondent incorrectly and improperly assumed that no disciplinary action would result because of the passage of time following his criminal acts. From his faulty assumption, he maintained that, if he is suspended, he will suffer dire financial consequences (inability to pay his mortgage and loss of the investment in his law practice). We note that many attorneys who are suspended from the practice of law face similar adverse financial consequences. Although the OAE’s filing of this motion was not timely, respondent received no assurances that he would not be held accountable for his conduct. Thus, we do not factor in our determination of discipline respondent’s erroneous assumption that no disciplinary proceedings would be filed...

We have weighed the other mitigating (Court ordered community service, glowing character references, participation in anger management) and aggravating factors (the nature of respondent’s misconduct in this matter, as well as his disciplinary history for similar conduct, and his misrepresentation to us regarding his alleged reliance on the OAE’s delay in seeking discipline in the purchase of his home). We also have considered that, in contrast to Jacoby (II), respondent was not incarcerated for a felony and that a significant amount of time, indeed, has passed since respondent’s misconduct.

Under the totality of the circumstances, we determine that a three-month suspension is warranted.

When it takes eight years to process a criminal conviction, perhaps it would be useful to acknowledge a failure of self-regulation even if it does not significantly impact on the ultimate sanction. (Mike Frisch)

November 25, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, November 24, 2016

The Passing Of A Truly Great Man

The District of Columbia legal ethics community has lost one of its few giants with the passing of my beloved mentor and friend Len Becker.

I first met Len when he was appointed  as Bar Counsel in late 1991. He came from a distinguished career at Arnold & Porter after clerking for Judge Edward Weinfeld and Associate Justice Potter Stewart. 

When we learned of his appointment, those of us at Bar Counsel were quite concerned about having a boss with the intellectual firepower that Len brought and with good reason. He demanded excellence and would settle for nothing less. When my work did not meet his exacting standards it was always rejected with the same comment

This disposition is not ready for prime time.

He was the most incisive and hard-working lawyer I have ever known.

He was a man of rigorous honesty and integrity.

He left the Bar Counsel job in deep frustration with a system that did not want or seek quality lawyering in the prosecution of wayward attorneys.

No other person had the lasting professional impact on me of Len. He made me a better thinker, better writer and better lawyer. He led by his example of hard work and dedication to excellence.

From my tribute last July 

He made the lawyers who cared to learn better lawyers themselves. He dramatically improved the quality of my own writing, a hard task since I thought I already knew it all. 

Of utmost importance, he was willing and able to take on the Board on Professional Responsibility when the need arose.

And he left (this is my opinion) because of the intractable problems that bar politics injected (and continues to inject) into the D.C. system. 

His seven years represent the high point of the Office of Bar Counsel in terms of the quality of the work done and the professionalism of the office.

My own debt to him will never be repaid. 

One of his first acts as Bar Counsel was to hire Julia Porter as an Assistant Bar Counsel. For that hire alone I would be eternally grateful.

If a person is judged by their personal integrity and positive impact on others, Len lived a righteous life and has more than earned his eternal rest. 

Thank you and God's speed. 

With love, gratitude and respect,

Mike Frisch

November 24, 2016 in Bar Discipline & Process | Permalink | Comments (0)