Thursday, August 27, 2015

Harsher Discipline By New York For New Jersey Reprimand

An attorney who was publicly reprimanded in New Jersey had the reciprocal sanction upped to a 90-day suspension by the New York Appellate Division for the Third Judicial Department.

we note the presence of aggravating circumstances herein, including, among other things, Morin's failure to respond to the subject motion and his failure to file a copy of the order of the Supreme Court of New Jersey with this Court, as required by Rules of the Appellate Division, Third Department (22 NYCRR) § 806.19 (b). Accordingly, under all the facts and circumstances presented, and especially noting Morin's underlying misconduct – depriving his client of legal recourse in certain land use litigation after he misrepresented to his client, for a period of approximately two years, that an appeal in the matter remained pending, despite his knowledge that said appeal had been previously dismissed for lack of prosecution – and his evident disregard for his fate as an attorney in this state, we conclude that he should be suspended from the practice of law for a period of 90 days.

(Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

No Bono

A fully-stayed suspension of six months has been imposed by the Ohio Supreme Court for an attorney's attempt to initiate a romantic relationship  with a client that he represented on a pro bono basis in a custody matter.

In the consent-to-discipline agreement, Hubbell stipulates to the facts alleged in relator’s complaint and agrees that his conduct violated Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed between them prior to the initiation of the client-lawyer relationship). The parties agree to the dismissal of the alleged violation of Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer’s fitness to practice law).

The allegations in the bar action are linked here. He allegedly sought a relationship over a period of months, plying her with beer on one occasion.

She rebuffed him once by telling him she was sick. Then

After [the client] rebuffed respondent, he sent a highly inappropriate and sexually suggestive email soliciting nude photographs and seeking to initiate a physical relationship with [her]. After receiving the email, [she] brought a family member with her when she met with Respondent.

At the end of April 2013, respondent contacted [her] and informed that he had left his wife and invited her over to his new residence. She declined.

The court's sole condition is that he not engage in further misconduct, which is every lawyer's obligation. (Mike Frisch)

August 27, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, August 26, 2015

Sex Without Adverse Impact Draws Public Censure

Sex with a divorce client merits a public reprimand, according to an opinion of the South Carolina Supreme Court.

Respondent admits he engaged in a sexual relationship with Client while representing her in a divorce proceeding. Respondent maintains, however, he gave Client competent and diligent representation and the relationship did not impact the representation. Respondent counseled Client as to her options and the possible consequences and risks associated with the options. Client was adamant in her demands that her husband only have restricted visitation with their child and that she wanted to be divorced from her husband.

The divorce action was filed on Client's behalf alleging husband's habitual drunkenness as grounds for the divorce. The divorce was granted to Client on those grounds. Husband was granted very restricted visitation with the child based on his continued alcohol abuse. Alimony was not sought by Client as she earned considerably more than her husband. Alimony was barred as to the husband as he could not deny his contribution to the breakup of the marriage.

Respondent and Client ended the physical aspects of their relationship not long after the final decree was issued in July 2011. Respondent and Client communicated after the physical relationship ended as respondent answered Client's questions regarding the wording or application of the final divorce decree.

Sometime later, Client, represented by new counsel, brought another action against her now ex-husband to terminate his parental rights based on his continued abuse of alcohol and the threat he posed to the child. Although he did not represent Client, respondent admittedly became involved in the case when Client was presented with a crisis1 and Client's new counsel was out of town and unavailable. Respondent's only involvement in this action consisted of counseling Client during the crisis.

ODC asserts respondent fully cooperated in its investigation of this matter, that he showed genuine remorse and fully admitted responsibility for his actions, and that his representation of Client was not adversely affected by his misconduct.

The attorney admitted that the conduct violated ethics rules. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Proposed Break For Escrow Violations

A relatively lenient sanction for misuse of client funds has been recommended by an Illinois Hearing Board.

Respondent represented eight clients in obtaining  reductions in their property tax assessments and property tax refunds. After  receiving property tax refunds on behalf of these clients and before paying  them, Respondent used all or a portion of the funds received for his own  purposes. In total, he used approximately $125,000 in client funds. While still  serious, we found Respondent's actions to be the result of poor accounting  practices and not dishonest motives. There were numerous facts that mitigated  his conduct. We recommend Respondent be suspended from the practice of law for  one year, with the last seven months stayed by an eighteen-month period of  probation with conditions.

The story

Respondent's clients never complained about him to the ARDC and never contacted him regarding the whereabouts of their money.  Respondent still represents some of clients listed in the Complaint.

The ARDC investigation into these matters first  began in September 2011 when Respondent's client trust account was overdrawn and  the bank notified both Respondent and the ARDC regarding the overdraft. His  client trust account was again overdrawn in October and December 2011 and for  the last time in December 2012, and his bank again notified both him and the ARDC regarding these overdrafts. The ARDC  contacted Respondent directly regarding each bank notification. Despite being  first notified about the ARDC investigation in 2011, Respondent did not perform  an audit of his client trust account in 2011 or 2012.

This was a good if somewhat late-blooming idea

In early 2013, Respondent read the Illinois Rules  of Professional Conduct relating to trust account procedures. In April 2015, he  completed a client trust account webinar. He accepts full responsibility for not  maintaining properly his client trust account and expressed remorse and regret  for his conduct.

The board found considerable compelling mitigation. (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Improper Access To Dating Partner Information

A public reprimand has been imposed by the Ohio Supreme Court for the following misconduct

On October 6, 2014, relator, disciplinary counsel, charged Rosen with professional misconduct for conduct that occurred between August 2007 and August 2008 while Rosen, then an Assistant Attorney General in the Ohio Attorney General’s Office, was serving as general counsel for the Ohio Law Enforcement Gateway (“OHLEG”). OHLEG allows criminal justice agencies and their personnel access to several data systems, some of which contain confidential information reserved for law-enforcement personnel only. Relator alleged that Rosen improperly accessed the OHLEG system to seek information about four individuals that either she or her friends were dating.

The discipline was imposed on the consent of the parties.

More on the story from (Mike Frisch)

August 26, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Tuesday, August 25, 2015

Father's Day

The Maryland Court of Special Appeals has held that a man is the father of and must support a child born via donated sperm

Appellant Stephen Sieglein (“Father”) and Appellee Laura Schmidt (“Mother”) were married in a religious ceremony in Havre de Grace, Maryland on April 12, 2008. Two years later, both parties enrolled in an “in vitro” fertilization plan and signed the contracts and documents necessary to participate. A child conceived via donated egg and donated sperm was born to the parties.

The parties separated shortly after the birth of the child, and Father contested legal parentage, seeking to eschew any rights or obligations regarding the minor child. On October 11, 2012, the Circuit Court for Harford County issued a Memorandum Opinion and Order establishing legal paternity and Father’s joint and several responsibility for support of the minor child...

Father now entreats this Court to declare, inter alia, that because the child is “not the natural child of the parties, nor is he the adopted child of the parties[ but] . . . was conceived in[]vitro. . . through the employment of [anonymously] donated eggs and donated sperm,” he is not a parent and bears no legal responsibility for the child under Maryland law.

Yes, he is and he does

Because Mother and Father, during their marriage, willingly and voluntarily agreed to conceive a child through assisted reproductive services using anonymously donated genetic material and that volitional action resulted in the birth of a child, we hold that Maryland Code (1974, 2011 Repl. Vol.), Estates and Trusts Article (“ET”) § 1-206(b) applies to establish that both spouses are the legal parents of the minor child. Therefore, both spouses are “jointly and severally responsible for the child's support, care, nurture, welfare, and education.” Maryland Code (1984, 2012 Repl. Vol.), Family Law Article (“FL”) § 5-203. Additionally, we conclude that the circuit court did not abuse its discretion in issuing an injunction against Father, or in finding Father to be voluntarily impoverished.

The parties had offspring from prior relationships. He had expressed his desire not to further procreate with surgery

the parties met through an online dating site. As Father emphasizes, his online dating profile stated: “[w]ant kids: No.” Notwithstanding, the parties began a relationship and were married in April of 2008.

Following their marriage, Mother expressed a desire to have another child. She was unable to conceive, however, and Father, after some discussion and evaluation, declined to have his vasectomy reversed. Mother and Father sought assisted reproductive services from Shady Grove Fertility Reproductive Science Center including: in vitro fertilization, intracytoplasmic sperm injection, assisted hatching, and embryo freezing.

On the parentage issue

In Maryland, the presumption of legal parentage established under ET § 1-206 may only be rebutted after a showing that proceedings to disestablish parentage are in the best interests of the child. See Evans, 382 Md. at 629. No argument has been made in this case that setting aside paternity is in the best interests of the child. Certainly, it defies sound public policy to create, through the strained application of a statute, a subset of children who—based on the specific physical method of their conception—“ha[ve] no natural parents because we d[o]n’t know who the anonymous donors are.” As legal parent of the minor child, born during his marriage, Father is “jointly and severally responsible for the child's support, care, nurture, welfare, and education” under FL § 5-203

(Mike Frisch)

August 25, 2015 | Permalink | Comments (0)

Attorney Suspended For Public Shaming Of Clients

The Colorado Presiding Disciplinary Judge imposed a suspension of 18 months consecutive to a prior suspension of an attorney who had reacted badly to web criticism

A married couple retained Underhill to help with the husband’s ongoing post-decree dispute with his former spouse. The clients signed a fee agreement outlining the charges for certain tasks. The clients could not pay all the fees up front. Underhill verbally agreed to monthly payments, with an initial $1,000.00 down payment, but he did not explain that he reserved the right to demand full payment at his sole discretion. He collected an additional $200.00 for a “filing fee,” though he took no action that required such a fee. Underhill failed to adequately communicate with the clients and did not inform them of opposing counsel’s objections to their discovery responses. Underhill later threatened to withdraw in two business days unless the clients made full payment of all fees. When the couple terminated the representation, Underhill declined to refund the $200.00 “filing fee.” Through this conduct, Underhill violated Colo. RPC 1.4(a) (a lawyer shall reasonably communicate with the client); Colo. RPC 1.4(b) (a lawyer shall explain a matter so as to permit the client to make informed decisions regarding the representation); Colo. RPC 1.5(a) (a lawyer shall not charge an unreasonable fee); Colo. RPC 1.5(b) (a lawyer shall communicate, in writing, the rate or basis of the fee and expenses within a reasonable time after commencing representation); and Colo. RPC 1.16(d) (a lawyer shall protect a client’s interests upon termination of the representation, including by refunding unearned fees). The couple then posted complaints about Underhill on two websites. He responded with internet postings that publicly shamed the couple by disclosing highly sensitive and confidential information gleaned from attorney-client discussions, in contravention of Colo. RPC 1.6(a) (a lawyer shall not reveal information relating to the representation of a client) and Colo. RPC 1.9(c)(2) (a lawyer shall not reveal information relating to the representation of a former client).

Underhill then sued the couple for defamation. Although he knew that the couple had retained counsel, Underhill communicated with them ex parte on several occasions, even though their counsel repeatedly implored him not to do so. Through this conduct, Underhill violated Colo. RPC 4.2 (a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by counsel in the matter, unless the lawyer has the consent of the opposing counsel). When the lawsuit was dismissed, Underhill brought a second defamation action in a different court, alleging without adequate factual basis that the couple had made other defamatory internet postings. Underhill thereby violated Colo. RPC 3.1 (a lawyer shall not bring a proceeding unless there is a basis in fact for doing so that is not frivolous) and Colo. RPC 8.4(d) (a lawyer shall not engage in conduct that prejudices the administration of justice).

In a second client matter, Underhill represented another couple in the renegotiation of a lease for their business. The couple eventually terminated Underhill’s services. Dissatisfied, they posted a complaint about Underhill on the Better Business Bureau website. Underhill publicly replied by publishing an attorney-client communication on the internet and making uncomplimentary observations about and accusations against the couple based on confidential information related to the representation. In so doing, Underhill violated Colo. RPC 1.6(a) or 1.9(c)(2).

The earlier suspension was for three months and a day, imposed after he had violated probation. (Mike Frisch)

August 25, 2015 in Bar Discipline & Process | Permalink | Comments (1)

From Fantasy To Disbarment

A former magistrate has been disbarred  in Colorado for sex crimes.

The Denver Post had reported on the criminal case

 A 59-year-old man who is a former Arapahoe County magistrate was sentenced Monday to 90 days of in-home confinement after pleading guilty earlier this year to sexual exploitation and attempted unlawful sexual contact.

Jeffrey Allan Lane, of Littleton, will serve the sentence as a condition of eight years of sex offender intensive supervised probation and five years of concurrent probation, prosecutors say. He pleaded guilty to the charges in February.

Lane was arrested last year after prosecutors say investigators found a Craigslist posting where Lane was soliciting sex from a 14-year-old boy who could meet him "after school."

Lane exchanged information with the boy, who was really a sheriff's office investigator, according to a news release from the 18th Judicial District Attorney's Office.

"(Lane) confessed that he was indeed the person who was soliciting sex from a minor on Craigslist," the release said. "(He) acknowledged exchanging sexual messages and a picture with the undercover detective he thought was 14, but stated the conversations were just 'fantasy.'"

(Mike Frisch)

August 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Prom Dresses And Bar Admission

The North Carolina Supreme Court has affirmed a recommendation of the Wake County Superior Court to deny a petition to sit for the bar examination

In May 2010, petitioner received her Juris Doctor degree from North Carolina Central University School of Law. After law school, petitioner initially applied for, and later received, a license to practice law in Washington, D.C. In October 2010, while her District of Columbia Bar application still was pending, petitioner applied to take the North Carolina Bar Examination. In her North Carolina Bar application, petitioner disclosed forty incidents between 1983 and 2004 in which she had been accused of criminal offenses including forgery, larceny, shoplifting, writing worthless checks, using a stolen credit card, possessing stolen property, and obtaining property by false pretenses. Petitioner acknowledged that many of these incidents had resulted in criminal convictions.

A hearing was held on the North Carolina application 

Petitioner testified at the hearing in support of her application and explained that, beginning in the 1980s, she committed a number of criminal offenses, which she characterized as being motivated by financial necessity. Yet she also stated that her life started to change after a particular incident of shoplifting that occurred in 2002. Petitioner testified that on this occasion, which occurred the day of her twin daughters’ prom, she had attempted to take prom dresses from a department store by concealing them in a bag. Petitioner stated that after she was caught and her daughters learned what she had done, the extent of her criminal conduct was “put in front of [her] face.” She testified that subsequently, she began going to counseling and started working for her father. She testified that she had not stolen anything since the incident in 2002. Petitioner stated that she had been truthful about her criminal history when applying to law school, the District of Columbia Bar, and the North Carolina Bar. Although petitioner acknowledged that she had “neglected” to include some of her criminal history in her law school application and her two bar applications, she testified that the omissions occurred because she “just forgot.” Petitioner stated that she had amended each application to correct the omissions.

There were discrepancies in the various explanations

the Board [of Law Examiners] entered an order denying petitioner’s application. In its order the Board noted that petitioner had committed a substantial number of criminal offenses throughout the 1980s and 1990s. The Board found that petitioner had failed to disclose six criminal convictions on her law school application and that she had received a letter of caution from the school “remind[ing]” her of her “obligation to provide full disclosure.” In addition, the Board stated that petitioner had omitted seven criminal charges on her District of Columbia Bar application and six charges of failure to appear on her North Carolina Bar application. The Board discussed how petitioner’s accounts of the 2002 shoplifting incident differed. The Board explained that in petitioner’s initial written account, she asserted that “she had taken the prom dresses (previously purchased) to a tailor to be hemmed,” and after unsuccessfully attempting to steal undergarments to go with the dresses, she eventually produced receipts for the dresses and had them returned to her. The Board noted that this written account differed from petitioner’s testimony describing the event and concluded that the differences “showed a lack of candor.”

...the Board concluded that petitioner had failed to carry her burden of demonstrating that she possesses the requisite character for admission, partly because of her past criminal conduct and partly because of numerous misstatements and omissions that were revealed by the evidence. The evidence establishes that petitioner submitted inaccurate accounts of the 2002 shoplifting incident to both the Board and the District of Columbia Bar Committee. Her initial narrative contained specific but inaccurate details, such as taking the prom dresses to be hemmed, being falsely accused of shoplifting the dresses, and having the dresses later returned to her. Subsequently, petitioner submitted to the District of Columbia Bar Committee a revised statement asserting that the incident occurred on the night before the prom and that she stole prom dresses and shoes, while in her North Carolina Bar application, petitioner stated that the incident happened a week before the prom. Petitioner acknowledged that she “should have re-amended” her North Carolina Bar application to reflect this revised statement. Finally, during her testimony before the Board, petitioner stated that the incident occurred both on the day of the prom and the night before. When she was asked “exactly” what she attempted to take, she responded, “It was the dresses,” and when asked whether she attempted to take “[a]nything else,” she said, “No.” These three accounts each differ significantly with respect to factual details such as when the incident occurred and what was taken. The Board did not err by considering petitioner’s testimony and other statements and concluding that she demonstrated “a lack of candor.”

The petitioner was profiled on the web page of her law school with a link to a story from the News & Observer.

One notable aspect of the opinion is that it points out how different bar admission can be from jurisdiction to jurisdiction. (Mike Frisch)

August 25, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, August 24, 2015

Patient Judge Not Recused

The Tennessee Court of Appeals  agreed with a trial judge that a comment made in a medical malpractice matter did not demonstrate bias requiring her recusal.

The comment

I can tell [a deponent]  how awfully I was treated in the emergency room recently, but that’s a whole other subject.

The court here

Appellants argue that the trial judge‘s negative characterization of the treatment she received at Methodist University creates an appearance of bias towards Methodist Healthcare and its employees. The judge made the comment at issue on the record during a discussion pertaining to the deposition of Methodist Healthcare CEO Gary Shorb in an unrelated case. In arguing against the deposition, one of the attorneys indicated that Mr. Shorb was not in his office being deposed each day, to which the trial judge responded as follows: "Well, I‘m sorry he‘s not. I can tell him how awfully I was treated in the emergency room recently, but that‘s a whole other subject." As she subsequently explained in a discussion off the record, the judge‘s statement was made in reference to her experience in the emergency department at Methodist University. If required to consider the trial judge‘s statement standing alone, a reasonable person might infer bias against Methodist Healthcare and its employees; however, "[a]ny comments made by the trial court must be construed in the context of all the facts and circumstances to determine whether a reasonable person would construe those remarks as indicating partiality on the merits of the case." Alley, 882 S.W.2d at 822 (citations omitted). Construed in its appropriate context, the judge‘s comment is not sufficient to require recusal...

...we cannot conclude that a reasonable person, knowing all of the facts known to the judge, would have any reasonable basis for questioning the judge‘s ability to act impartially as thirteenth juror in either of the cases before us. It appears the trial judge‘s comment was little more than a lighthearted reference to the unpleasantness that often accompanies emergency room visits. Though perhaps ill-advised, if only because of the time and expense it has taken to resolve the motions for recusal, the comment does not indicate partiality on the merits of the case when construed in the context of all the facts and circumstances.

(Mike Frisch)

August 24, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Sunday, August 23, 2015

She's A Rebel

There are not many places where an attorney can fail to cooperate in a bar investigation into escrow account overdrafts, default on bar charges and avoid suspension as final discipline.

One place where that scenario can play out is New Jersey.

The state Supreme Court  reprimanded an attorney based on a Disciplinary Review Board recommendation

 Although an admonition would ordinarily suffice for respondent's recordkeeping irregularities and failure to cooperate with the DEC investigator, we consider, as an aggravating factor, respondent’s default. In a default matter, the appropriate discipline is enhanced to reflect the attorney’s failure to cooperate with disciplinary authorities. "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). Because respondent allowed the matter to proceed to us by way of a default, we determine that the otherwise appropriate level of discipline for her conduct (admonition) should be enhanced to a reprimand.

Notably, however, she has been on interim suspension for the misconduct since May 2014.

It appears that the attorney may be the same person who gained fame as counsel to Phil Spector in his murder trial. (Mike Frisch) 

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Pain Pill Payment Proposal Gets Lawyer Suspended

An order of temporary suspension was imposed by the Kentucky Supreme Court.

The court acted on the request of its Inquiry Commission

The Commission attached the affidavit of Allen C. Trimble, Commonwealth Attorney for the 34th Judicial Circuit, to its petition. According to attorney Trimble, Angie Ballou, a probation and parole officer, reported to him that one of her supervisees, Hope Grundy, had retained Price to assist in a child custody matter. According to Ms. Grundy, Price had done nothing on her case, but he frequently sent text messages requesting more money. In one of those messages, Price stated that he needed that additional money to bribe prosecutors and judges in furtherance of Grundy's case.

After hearing this, Trimble contacted the office of Bar Counsel to report Price's alleged misconduct. Trimble also contacted the Williamsburg Chief of Police, Wayne Bird. Chief Bird then interviewed Ms. Grundy. During the course of the interview, Ms. Grundy received a text message from Price requesting more money. In a subsequent exchange of text messages, Price agreed to accept "15 pain pills" in lieu of a payment of $500.00 in attorney fees. Police officers monitored the subsequent transaction, arrested Price, and charged him with first degree trafficking in a controlled substance.

The court found a sufficient basis to suspend pending further proceedings

After reviewing the petition and attorney Trimble's affidavit, we believe the Commission has supplied us with a reasonable basis to believe that Price poses a substantial threat of harm to his clients or to the public. SCR 3.165(1)(b). Consequently, the Commission's petition for temporary suspension is granted.

(Mike Frisch)

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Failure To Pay Child Support Is Unethical

The Kentucky Supreme Court imposed a suspension of 90 days for an attorney's failure to pay court-ordered child support

The facts are not in dispute. Morgan had a court-ordered child support obligation in the amount of $3,475 per month. In December 2012, he was found in contempt of court for failing to comply with the order. He was given a thirty-day sentence, which was suspended on the condition that he make all his child-support payments. The matter was set for review in the following month. Morgan had not made a payment by that review, and on January 10, 2013, the trial court imposed the thirty-day contempt sentence. Morgan was on work release while in jail and was thus able to continue practicing law. Nevertheless, he had still not paid his child support when released from custody February 9, 2013. As of September 30, 2013, Morgan's child support arrearage was more than $23,000.

He denied that such conduct violated ethics rules

Morgan responded to the initial charge through counsel (his brother), admitting all the factual allegations but denying that they constituted violations of our ethical rules.

The brother withdrew from the case and the attorney "essentially disappeared." 

The court concluded 

We...agree with the trial commissioner that Morgan's failure to provide support for his two minor children "reflects adversely on [his] honesty, trustworthiness or fitness as a lawyer in other respects..." 

For these violations, the trial commissioner recommended Morgan be suspended from the practice of law for ninety days, pointing out that Morgan violated not only duties to his family, but to the legal system and profession as a whole. The Trial Commissioner also noted that all three violations stem from a singular course of conduct—Morgan's repeated failure to pay his child support obligations—rather than from myriad circumstances. The trial commissioner suggested that its recommended ninety-day suspension would not interfere with Morgan's long-term ability to provide for his family. We agree, particularly since neither party has asked this Court for further review.

While Morgan's violations are serious, Morgan does not have a long disciplinary history with the KBA. In fact, his only prior disciplinary matter concerned advertising and resulted in a private reprimand. He also appears to have been suspended recently for failure to pay his bar dues. We understand that all of the current violations are related to Morgan's child support obligations. We do not take this matter lightly, but agree with the trial commissioner that we should not (yet) deprive Morgan of his ability to earn funds with which to support his family through the practice of law for a lengthy time. However, we also point out to him that should he maintain his pattern of habitual nonpayment, the discipline will be much more severe in the event that another complaint on these grounds comes before this Court. 

(Mike Frisch)

August 23, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, August 22, 2015

May A Lawyer Post A Client's Bail?

Yes in "rare circumstances," according to a recent ethics opinion by the Alaska State Bar

Question Presented:

Under what circumstances, if any, may a lawyer post bail for a client?


Under rare circumstances a lawyer may post bail for a client, though the practice is discouraged.


An attorney asks whether it is ethically permissible to post bail for a client who is in custody.

Posting bail for a client raises several issues under the Alaska Rules of Professional Conduct, which help ensure that a lawyer can zealously represent a client without conflicting interests that could affect the quality of the representation. The Rules provide, for example, that a lawyer may not provide financial assistance to a client in connection with litigation or acquire a proprietary interest in the subject matter of litigation. Neither may a lawyer represent a client if the representation is adverse to a personal interest of the lawyer. 

Each of these prohibitions, however, has exceptions. So, while a lawyer is generally prohibited from providing financial assistance to a client in connection with pending or contemplated litigation, a lawyer may advance court costs and expenses. And if a lawyer believes that he or she will be able to provide competent and diligent representation to a client despite their adverse interests, the lawyer may proceed with that representation after obtaining informed consent from the client.

Posting bail for a client imposes on the lawyer both contractual and financial constraints which could give rise to a situation in which the lawyer’s interests are materially adverse to the client’s, particularly if the client fails to comply with his or her conditions of release. Despite these ethical implications, posting bail does not fit squarely within the “costs of litigation” exception contemplated by Rule 1.8(e) nor the concurrent conflict of interest analysis contemplated by Rule 1.7(a)(2). Some jurisdictions interpret bail as akin to a cost of litigation,  while the American Bar Association applies a concurrent conflict of interest analysis.  While the Rules do not expressly address bail, they do provide analytical guidance.

Rule 1.7(b) contemplates limited exceptions to a concurrent conflict of interest where a lawyer’s ability to zealously represent the client’s interest is not compromised and the client consents. Rule 1.8(e) anticipates that a lawyer may pay for certain, limited expenses on a client’s behalf within the scope of the representation. Drawing from these exceptions, a lawyer may post bail for a client where the amount of bail is insignificant enough to not create a material limitation on the lawyer’s ability to represent the client. To ensure that a client understands the unique relationship that is created when the lawyer posts bail, a lawyer must obtain written informed consent from the client, specifying the surety provided and the scope of the liability the bail agreement imposes on the lawyer.

These considerations allow lawyers to facilitate the occasional client’s return to the community, which may assist with the representation. By limiting the acceptable circumstances to rare events, lawyers will avoid facing any significant risk that their ability to provide legal representation will be materially limited by the financial obligations posting bail requires. Similarly, by limiting the amount of bail to sums unlikely to materially limit a lawyer’s ability to represent a client, a lawyer diminishes the risk that the client’s noncompliance with the conditions of release would affect his or her ability to provide competent and diligent ongoing representation.

Approved by the Alaska Bar Association Ethics Committee on May 7, 2015. 

Adopted by the Board of Governors on May 12, 2015.

(Mike Frisch)

August 22, 2015 in Clients | Permalink | Comments (0)

Reciprocal Suspension For Divorce Contempt

Idaho has reciprocally suspended an attorney based on a Washington State sanction imposed for misconduct in his own divorce

On August 10, 2015, the Idaho Supreme Court issued a Disciplinary Order suspending attorney David A. Goicoechea for one (1) year.  The Idaho Supreme Court’s Order followed a stipulated resolution of an Idaho State Bar reciprocal disciplinary proceeding.

 Mr. Goicoechea was admitted to practice law in Washington and Idaho and practiced law in Spokane, Washington.  On October 10, 2014, the Supreme Court of Washington entered an Order approving a stipulation to one (1) year suspension.  The Washington suspension was effective October 17, 2014.  In the Washington disciplinary case, Mr. Goicoechea stipulated to violations of the Washington Rules of Professional Conduct (RPC) 8.4(c), 3.4(c), 8.4(j) and 8.4(d).  With the exception of RPC 8.4(j), those Washington rules correspond to the same Idaho Rules of Professional Conduct.

 The Washington disciplinary case related to Mr. Goicoechea and his ex-wife’s divorce case.  Mr. Goicoechea was found in contempt numerous times of court orders in the divorce case relating to spousal maintenance payments and his reporting requirements to the court.  The Washington disciplinary case acknowledged as a mitigating factor that Mr. Goicoechea lacked sufficient funds to fully comply with his financial obligations.

 Other than these proceedings, Mr. Goicoechea has no disciplinary history in Idaho or Washington.

  Mr. Goicoechea voluntarily did not practice law in Idaho since the date of his Washington suspension and the Stipulation provided for and the Idaho Supreme Court ordered that Mr. Goicoechea’s suspension in Idaho would be retroactive to October 17, 2014 and will last until October 17, 2015.

(Mike Frisch)

August 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Judge Who Lost Election Is Judge No More

The New Mexico Supreme Court rejected the claim of a judge who lost a retention election that she was entitled to stay in office.

Under Article VI, Section 33 of the New Mexico Constitution, a district judge elected to that position in a partisan election is thereafter “subject to retention or rejection in like manner at the general election every sixth year.” Section 33 does not specify when this six-year term begins, particularly when the elected judge succeeds a predecessor who has not completed his or her full term in office. In that case, does the successor judge’s election mark the beginning of a new six-year term, or does the successor judge assume the six-year term of the predecessor judge? The answer determines when the successor judge must stand for nonpartisan retention election. For the reasons that follow, we hold that under the New Mexico Constitution a judge elected in a partisan election is subject to retention in the sixth year of the predecessor judge’s term. Our holding is consistent with the intent and purpose of our New Mexico Constitution.

The State Attorney General sought a writ 

We appropriately granted the State’s petition for a writ of quo warranto. Judge Raphaelson was properly up for retention in the 2014 general election pursuant to Article VI, Sections 33, 35, and 36 of the New Mexico Constitution. Judge Raphaelson’s failure to earn 57 percent of the votes in favor of retention in the 2014 general election resulted in her loss of the seat. Any effort to remain in office beyond December 31, 2014 contravened the  Constitution, justifying our writ of quo warranto.

The Albuquerque Journal reported on the Attorney General's position.

Abovethelaw had reported on the judge's post-defeat efforts to hang on. (Mike Frisch)

August 22, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Friday, August 21, 2015

Copyright Troll Ethics Charges

The Illinois Administrator has filed an amended complaint alleging misconduct in copyright infringement matters

In or about 2010, Respondent Steele created the law firm known as Steele Hansmeier, PLLC ("Steele Hansmeier"), with attorney Paul Hansmeier ("Hansmeier"), who was admitted to practice law in Minnesota in 2007. Between September 2010 and November 2011, Steele Hansmeier maintained an office at 161 N. Clark Street, Suite 3200, in Chicago, and concentrated its practice in copyright infringement matters filed on behalf of entities which purported to own exclusive copyrights to pornographic videos. At all times alleged in this complaint, Steele Hansmeier also maintained a registered business address at the Alpha Law Firm, 80 S. 8th Street, Suite 900, in Minneapolis.

In or about 2010, Hansmeier created the law firm known as Alpha Law Firm ("Alpha Law") which maintained an office in Minneapolis. Alpha Law was affiliated with Steele Hansmeier, and Respondent Steele appeared in certain matters as an attorney of Alpha Law. In matters which Alpha Law handled for certain pornographers, proceeds were paid and deposited into a bank account maintained by Prenda Law, an entity further described in paragraph 4 below.

In or about November 2011, Paul Duffy, an Illinois attorney licensed in 1992 who died on August 10, 2015, and Respondent Steele agreed that they would create a successor law firm to Steele Hansmeier that would operate under the name Prenda Law, Inc. ("Prenda Law"). Paul Duffy and Respondent Steele agreed that Prenda Law would take over Steele Hansmeier’s copyright infringement practice on behalf of pornographers. Respondent Steele and Paul Duffy further agreed that Respondent Steele would continue to perform the same work for Prenda Law that he had performed for Steele Hansmeier, including filing pleadings and communicating with opposing counsel, handling the financial aspects of the firm, and managing client relationships. Respondent Steele and Paul Duffy also agreed that Hansmeier would continue to practice with Prenda Law. At all times alleged in this complaint, Prenda Law maintained its office at 161 N. Clark Street, Suite 3200, in Chicago, having assumed the office space of Steele Hansmeier. In 2012 in a Florida litigation matter, Paul Duffy held himself out to the court as a principal of Prenda Law.

In 2013, in California litigation, Respondent Steele was identified by his client’s local counsel as a decision maker of Prenda Law.

In or about November 2012, Respondent Steele and Paul Duffy created a law firm known as The Anti-Piracy Group, LLC ("Anti-Piracy Group"), as a successor law firm to Prenda Law because Prenda Law’s litigation practice was receiving negative publicity. The Anti-Piracy Group took over the copyright infringement practice of Prenda Law, and assumed Prenda Law’s office suite in Chicago.

At all times alleged in this complaint, Respondent Steele and Paul Duffy’s law firms maintained a website at

Among the allegations

 Between 2010 and 2012, Respondent Steele and Paul Duffy represented business entities which produced pornographic movies and videos in copyright infringement matters. Beginning in or about 2012, Respondents also began representing limited liability companies organized in the Federation of St. Kitts and Nevis, West Indies. These companies purported to own the exclusive copyrights to adult entertainment videos through an assignment of copyright interests. At all times alleged in this complaint, St. Kitts and Nevis had laws preventing the recording or disclosure of corporate ownership information of any entity organized there. At various times, in litigation filed by Respondent Steele and Paul Duffy there were attempts to ascertain the ownership of the West Indian LLCs. Respondent Steele and Paul Duffy always resisted those attempts and to this date, the ownership of the LLCs is unknown to the courts.

Between September 2010 and February 2012, Respondent Steele and Paul Duffy filed 118 copyright infringement actions in various United States federal district courts on behalf of pornographers and against 15,878 John Doe defendants. As of February 2012, Respondent Steele and Paul Duffy had not served any of the John Doe defendants with service of process. During that time, Respondent Steele and Paul Duffy communicated with the John Doe defendants by letters and phone calls in which they attempted to exact monetary settlements related to allegations that the John Doe defendants had illegally downloaded pornography, and in exchange for the agreement to maintain the confidentiality of the Does’ identity by not naming them in threatened public litigation if settlement funds were received. Respondent Steele and Paul Duffy sent settlement demand letters that identified an entity that produced a pornographic work or owned a copyright to that work, the name of the movie or video, and the date of an alleged illegal download. Respondent’s settlement letters demanded an amount of money ranging from $2,500 to $4,000...

At the time Respondent Steele and Paul Duffy sent the settlement shakedown letters described in paragraph 10, above, while Respondent Steele had an IP address, he did not know the identity of the individual who had actually downloaded the pornographic work at issue, had not taken steps to determine who had "illegally" downloaded the copyrighted content, and did not have a reasonable basis to believe that the recipient of the letter was an actual "infringer."

As of October 2012, Respondent Steele and Paul Duffy had settled approximately 5,000 copyright infringement matters, and recovered millions of dollars in settlement funds.

There are a number of case-specific allegations of misconduct in the complaint.

ARS Technica reported on the recent death of Mr. Duffy. 

Earlier coverage from Abovethelaw. (Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Chat Room Crimes May Prevent Bar Admission

On October 13, the Ohio Supreme Court will hear oral argument on an application seeking permission to sit for the bar examination.

The Board of Commissioners on Character and Fitness has recommended that admission be denied.

In the present case, the Applicant has failed to satisfy his burden. He engaged in conduct that demonstrates a disregard for the law and, more importantly, a complete and utter disregard for the health, safety and welfare of others — namely, vulnerable, female children.

The Applicant was convicted of a number of felony offenses. Under the Felony Rule, we must also consider a number of other factors, including how approval of the Applicant would impact the public’s perception of, or confidence in, the legal profession. See Gov. Bar R. I (1 l)(D)(5)(a)(iv). Attorneys hold a position of trust. Many attorneys come in contact with vulnerable people on a daily basis, including children. Allowing a convicted sex offender to hold this position of trust would clearly undermine the public’s perception of and confidence in the legal profession.

The brief filed on behalf of the applicant notes

John David Tynes is a retired military officer whose life has been relatively uneventful apart from a six-month period in 1998. (Transcript of the Character and Fitness Hearing of John D. Tynes, January 27, 2015 (“Transcript”), 28). Seventeen years ago, during a tumultuous time in his personal life, Tynes made a series of bad decisions that changed the course of his entire life. His family life was turbulent - his four children were exhibiting behavioral problems - and Tynes chose to escape into the virtual world of the newly-available World Wide Web. Id. at 17. There, he entered adult chatrooms where he engaged what he thought were underage girls in sexual messaging. Id. When he attempted to meet one of those girls, he was arrested, charged with, and found guilty of multiple felonies. Id. at 18-20. He never had any sexual contact with a minor. Id. at 18. He served a year and seven months at a military prison and was registered as a sex offender in several states after his release. Id. at 21, 34-35. He is not now, nor is he required to be, registered as a sex offender in Ohio. Id. at 37...

To adopt the Board’s Findings of Fact and Recommendation and disallow Tynes from taking the Bar and from reapplying to take the Bar would go against the weight of this Court’s previous decisions related to similar misconduct. Tynes cooperated completely with the application process and testified with candor and remorse about the circumstances that led to his criminal convictions. While public perception is a factor to be considered when deciding whether an applicant should be allowed to apply for the Ohio Bar, it is not the only factor, nor is it exclusively a negative factor. As a former prisoner who wishes to help current prisoners, the public with whom the Applicant would be interacting in his future legal career may see his former circumstances and current rehabilitated state as an asset, and not a detriment - “If he can get his life together, so can I.”

Attorney Paul McCartney represents the board.  (Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Resignation Means Disbarment

The Kansas Supreme Court has disbarred an attorney who had surrendered his license while a bar complaint was pending 

At the time the respondent surrendered his license, a complaint had been docketed by the Office of the Disciplinary Administrator for investigation. The complaint alleged that the respondent violated Kansas Rules of Professional Conduct 1.7 (2014 Kan. Ct. R. Annot. 531) (conflict of interest) and 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct).

We reported on a prior disciplinary action involving the attorney's misconduct as a pro tem judge

The Kansas Supreme Court has suspended a judge pro tem for one year who engaged in sex-related misconduct toward court personnel. The misconduct involved inappropriate remarks and notes ("I want to lick your butt"and "You're hot"), exposing his genitals to one employee and rubbing them in front of another, and sending a digital photograph of his penis from his mobile phone to still another court employee.

Five employees were victims of the behavior. One reported to another judge that the respondent had assisted her with a ticket and asked her what she could do in return. The respondent self-reported to disciplinary counsel shortly before the other judge did so.

The court considered evidence regarding the respondent's mental state and expressed the view that his course of treatment for major depression would be pertinent to his reinstatement. 

The ABA Journal reported his claim that the earlier misconduct was attributable to testosterone medication.

There is no indication whether he is related to the famed attorney of the same name. (Mike Frisch)

August 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Attorney Wins, Former Client Loses

An attorney prevailed in both a suit for legal fees and in dismissal of counterclaims of the former client in an opinion of the New York Appellate Division for the Second Judicial Department.

Here, the plaintiffs established, prima facie, their entitlement to judgment as a matter of law on the cause of action alleging breach of contract by submitting certain email exchanges between the parties, which demonstrated, "[b]y the plain language employed," that the plaintiffs made an offer to represent Landmark in each matter for a certain fee, and that Landmark accepted that offer (Kasowitz, Benson, Torres & Friedman, LLP v Duane Reade, 98 AD3d at 405). In one matter, the parties agreed that the plaintiffs would represent Landmark at a rate of $350 per hour. The invoices documenting the number of hours worked and the amount of disbursements paid out demonstrated, prima facie, the plaintiffs' entitlement to legal fees in the sum of $4,760 in connection with the services rendered for that matter. In the second matter, the agreement was for an initial retainer fee of $5,000, plus a 25% contingency fee with respect to any sums that Landmark ultimately recovered in that matter. Since it is undisputed that, shortly after the commencement of an action in connection with the second matter, Landmark entered into a stipulation of settlement whereby Landmark recovered $40,000, the plaintiffs established, prima facie, entitlement to their full fee of $5,000 plus a contingency fee of 25% of $40,000.

In opposition, Landmark failed to raise a triable issue of fact.

Landmark's counterclaim, which alleged tortious interference with contract and tortious interference with prospective business relations, was premised upon the plaintiffs' alleged contact with the third party with whom Landmark had entered into the stipulation of settlement in connection with the second matter. Specifically, Landmark alleged that, contrary to the terms of the stipulation, the plaintiffs requested that certain of the agreed-upon payments be made directly to them as Landmark's counsel, rather than to Landmark. The ostensible purpose of this communication was to ensure that the plaintiffs would be able to deduct their legal fees from the settlement funds.

The Supreme Court properly granted that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the counterclaim as alleged tortious interference with contract. A necessary element of such cause of action is the intentional and improper procurement of a breach and damages (see White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426). Here, Landmark failed to adequately plead facts that would establish that the plaintiffs, in communicating with the third party to secure their attorney's fees, intentionally procured that party's breach of the stipulation of settlement (see Dune Deck Owners Corp. v Liggett, 85 AD3d 1093, 1095).

To the extent that the counterclaim sought recovery based on a theory of tortious interference with prospective business relations, the Supreme Court properly granted that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(7) to dismiss that portion of the counterclaim. A claim for tortious interference with prospective business relations does not require a breach of an existing contract, but the party asserting the claim must meet a "more culpable conduct" standard (NBT Bancorp. v Fleet/Norstar Fin. Group, 87 NY2d 614, 621). This standard is met where the interference with prospective business relations was accomplished by wrongful means or where the offending party acted for the sole purpose of harming the other party (see Carvel Corp. v Noonan, 3 NY3d 182, 190; Caprer v Nussbaum, 36 AD3d 176, 204). " Wrongful means' include physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure" (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191, quoting Restatement [Second] of Torts §§ 768, Comment e and 767, Comment c). As a general rule, the offending party's conduct must amount to a crime or an independent tort, as conduct that is neither criminal nor tortious will generally be "lawful" and thus insufficiently "culpable" to create liability for interference with prospective business relations (Carvel Corp. v Noonan, 3 NY3d at 190 [internal quotation marks omitted]). The mere violation of an attorney disciplinary rule will only create liability if actual damages are incurred as a result of the violating conduct (see Tabner v Drake, 9 AD3d 606, 610). In addition, where the offending party's actions are motivated by economic self-interest, they cannot be characterized as solely malicious (see Out of Box Promotions, LLC v Koschitzki, 55 AD3d 575, 577). Here, contrary to the conclusion of our dissenting colleague, the allegations in the counterclaim do not establish the elements of tortious interference with prospective business relations. The allegations that the plaintiffs contacted a settling party to protect [*2]their attorney's fees after having been discharged as Landmark's counsel, while arguably alleging a violation of a disciplinary rule, do not, without more, allege that the plaintiffs' acts constituted a crime, or an independent tort, or that the plaintiffs acted solely for the purpose of harming Landmark (see Worldcare Intl., Inc. v Kay, 119 AD3d 554, 556-557; Adler v 20/20 Cos., 82 AD3d 915, 918).

A dissent by Justice Duffy on the tortious interference with business relations count

Although I agree with the majority's position that the plaintiff attorney was motivated by his desire to ensure that he received the fees he contended that Landmark owed him and that, with such motives, the plaintiff attorney's actions cannot be considered "solely malicious," the majority appears to require that, absent facts alleging that the plaintiffs engaged in conduct with the sole purpose of harming Landmark, Landmark failed to state a cause of action for tortious interference with prospective business relations. To the extent that the majority requires that, in order to avoid dismissal of this claim, Landmark had to set forth facts alleging that the plaintiffs engaged in conduct with the sole purpose of harming Landmark and that they did so by means that were unlawful or improper, I disagree. Such an analysis is more rigorous than that applied by the Court of Appeals (citations omitted) in evaluating the sufficiency of a cause of action alleging tortious interference with prospective business relations. To make out a claim for tortious interference with business relations where, as here, the alleged interference was with prospective contractual relationships, rather than existing contracts, the proponent must show that the other party interfered with the proponent's business relationships either with the sole purpose of harming the movant or by means that were unlawful or improper...I submit that Landmark's allegation that the plaintiff attorney interfered with Landmark's business relationships by means that were unlawful or improper—to wit, that he held himself out as counsel for Landmark when he no longer represented it—was sufficient to withstand that branch of the motion which was to dismiss the counterclaim...

The Court of Appeals has enunciated a general rule that, to be sufficiently "culpable" to create liability for tortious interference with prospective business relations, the alleged conduct must amount to a crime or an independent tort (Carvel Corp. v Noonan, 3 NY3d at 190). However, the Court of Appeals did not preclude "other instances of conduct which, though not a crime or tort in itself," are so culpable that they could be the basis of such a claim (id.). Here, the facts alleged by Landmark, that the plaintiff attorney held himself out to be Landmark's counsel when he no longer represented Landmark, in order to obtain money the plaintiffs contend was owed to him by Landmark, if true, would constitute a breach of fiduciary duty as well as a violation of the ethical rules that govern the conduct of attorneys (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.8[f] ["A lawyer shall not accept compensation for representing a client, or anything of value related to the lawyer's representation of the client, from one other than the client unless: (1) the client gives informed consent"]; see generally Matter of Cooperman, 83 NY2d 465, 472).

I also disagree with the majority's assertion that, without a concomitant allegation of actual damages, an allegation that, if true, may constitute a violation of an attorney disciplinary rule cannot meet the culpable conduct element required to plead tortious interference with prospective business relations sufficient to defeat the motion to dismiss in this matter. The analysis adopted by the majority is one applied in the context of determining whether a cause of action for legal malpractice has been established (see Tabner v Drake, 9 AD3d at 610), but is not the analysis this Court already has applied in determining the culpable conduct necessary to establish a claim of tortious interference with prospective business relations. In Lyons v Menoudakos & Menoudakos, P.C. (63 AD3d at 802), this Court held that an attorney's violation of a disciplinary rule and his professional obligations was sufficient to demonstrate the culpable conduct required for a claim of tortious interference with prospective business relations so as to withstand a motion for summary judgment. In that case, this Court noted that, to constitute "culpable conduct," the conduct must amount to a crime or an independent tort, and may include " [w]rongful means'" defined as " physical violence, fraud or misrepresentations, civil suits and criminal prosecutions, and some degrees of economic pressure'" (id. at 802, quoting Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d at 191, and citing Carvel Corp. v Noonan, 3 NY3d at 190-193, and Smith v Meridian Tech., Inc., 52 AD3d 685, 687). In Lyons, this Court took note of the various ethical obligations of the defendant in that matter, who had been the attorney for the seller in a real estate transaction and allegedly wished to purchase the property for himself (see Lyons v Menoudakos & Menoudakos, P.C., 63 AD3d at 802). This Court held that "[e]vidence of a violation of a [*4]disciplinary rule is relevant to the question of tort liability," and concluded that the defendant had failed to eliminate all triable issues of fact as to whether his judgment was affected by his personal interest in the transaction and whether he furthered that interest by making misrepresentations to the seller about the creditworthiness of the plaintiff, thereby wrongfully interfering with the prospective transaction (id.). Here, as in Lyons, the allegations of the plaintiff attorney's violations of his ethical obligations, if true, would meet the culpable conduct element necessary to state a cause of action for tortious interference with prospective business relations.

(Mike Frisch)

August 21, 2015 in Billable Hours, Clients | Permalink | Comments (0)