Thursday, January 15, 2015

Medicaid Advice And Unauthorized Practice

The Florida Supreme Court has approved an ethics opinion dealing with whether providing medicaid advice violates prohibitions on the unauthorized practice of law

 the Florida Bar Elder Law Section’s Unlicensed Practice of Law Subcommittee petitioned the Florida Bar’s Standing Committee on the Unlicensed Practice of Law (Standing Committee) for an advisory opinion on whether it constitutes the unlicensed practice of law for a nonlawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: (1) drafting of personal service contracts; (2) preparation and execution of qualified income trusts; or (3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits.

The committee

It is the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to draft a personal service contract and to determine the need for, prepare, and execute a Qualified Income Trust including gathering the information necessary to complete the trust. Moreover, a nonlawyer should not be authorized to sell personal service or Qualified Income Trust forms or kits in the area of Medicaid planning.

 It is also the opinion of the Standing Committee that it constitutes the unlicensed practice of law for a nonlawyer to render legal advice regarding the implementation of Florida law to obtain Medicaid benefits. This includes advising an individual on the appropriate legal strategies available for spending down and restructuring assets and the need for a personal service contract or Qualified Income Trust.

 It is the position of the Standing Committee that a nonlawyer’s preparation of the Medicaid application itself would not constitute the unlicensed practice of law as it is authorized by federal law. As noted earlier, it is also not the unlicensed practice of law for DCF staff to tell Medicaid applicants about Medicaid trusts and other eligibility laws and policies governing the structuring of income and assets when relevant to the applicant’s facts and financial situation.

The court order states that the inquiry was a result of activities of the Forida Department of Children and Families.

The opinion has the force and effect of the court's orders. (Mike Frisch)

January 15, 2015 in Bar Discipline & Process, Current Affairs, Hot Topics, Law & Society | Permalink | Comments (0) | TrackBack (0)

Three Years Is Not Enough

The District of Columbia Court of Appeals disagreed with its Board on Professional Responsibility and disbarred an attorney found to have engaged in flagrant dishonesty.

Boiled down to essentials, the Board‟s findings are that Mr. Baber failed to competently represent his client; lied to the court; pressured his client to pay an excessive fee that she had not agreed to pay; improperly used confidential information from his client to make knowingly false accusations of fraud against his client in several pleadings; reiterated those false accusations during the disciplinary process; and failed to show remorse during the disciplinary process. Assessing that conduct in light of the pertinent factors, we are convinced that Mr. Baber should be disbarred...

Mr. Baber‟s repeated dishonesty is particularly disturbing because it came at the expense of his client‟s interests and was in large part driven by a desire for personal gain. When he lied to the court about why [his client] Ms. Gripper had not met certain deadlines, Mr. Baber "basically threw his client under the bus." Mr. Baber also made false statements to Ms. Gripper in an effort to obtain an unreasonable fee that Ms. Gripper had never agreed to pay. Mr. Baber subsequently betrayed client confidences and made knowingly false accusations that Ms. Gripper had engaged in fraudulent conduct.

The board had proposed a three-year suspension with fitness, concluding that such a sanction was "not that different" from disbarment.

It was different enough, according to the court

We recognize that we ordinarily owe deference to the Board‟s recommendation as to the proper sanction to be imposed. The Board viewed it as a close question whether Mr. Baber should be disbarred. We take a significantly different view of the seriousness of Mr. Baber‟s conduct, however, and we are convinced that disbarment is the proper sanction. In such circumstances, this court has not hesitated to reach its own conclusion.

Notably, the hearing committee had viewed disbarment as the proper sanction.

I applaud the decision. (Mike Frisch)

January 15, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Conviction For Murder Of Four Police Officers Reversed Due To Prosecutor's Misstatement Of Law

Prosecutorial misconduct has led to the reversal of a conviction for involvement in the murder of four police officers in an opinion issued today by the Washington State Supreme Court.

The defendant drove the shooter to and from the murder scene.

The prosecutor misstated the law in closing argument

The State was required to prove that Allen had actual knowledge that [shooter] Clemmons would commit the murders. During closing argument, the prosecuting attorney initially stated the correct definition of "knowledge" as it was used in the jury instruction. 29 VRP at 3544. He said, "[I]f a person has information that would lead a reasonable person in the same situation to believe that a fact exists, then the jury is permitted, but not required, to find that that person acted with knowledge." Id. However, immediately afterward, the prosecuting attorney stated that "[f]or shorthand we're going to call that 'should have known."' Id. at 3544-45. The prosecuting attorney went on to repeatedly and improperly use the phrase "should have known" when describing the definition of "knowledge." Id. at 3545-46, 3548-49, 3566, 3570.

 The prosecuting attorney also presented a slide show simultaneously with his closing argument. This slide show repeatedly referred to the "should have known" standard. Pl.'s Ex. 352, at 1, 5-7, 12, and 14. One slide even stated, "You are anaccomplice if: ... you know or should have known," with the words "should have known" in bold...

 The improper argument was repeated in the prosecutor's rebuttal closing argument.

The unanimous court found a substantial likelihood that the misconduct affected the jury verdict. (Mike Frisch)

January 15, 2015 | Permalink | Comments (0) | TrackBack (0)

That's Funny (And Relevant)

 A Delaware Superior Court has denied a plaintiff's motion in limine to exclude evidence of her sense of humor

By her Motion in Limine, Plaintiff now seeks to exclude two pieces of evidence, both relating to her sense of humor. The first consists of alleged email exchanges between herself and Ms. Schafer, in which she sent jokes similarly tasteless to the ones forming the basis of this lawsuit. In particular, Plaintiff points to an email, purported to have originated from her email account, recounting a barb involving a Catholic Priest and a Nun. The second category of evidence Plaintiff attempts to exclude, is any reference to the type of comedians she enjoys. Specifically, Plaintiff highlights an answer she gave in her deposition that she is a fan of the comedians Tracy Morgan and Chris Rock...

Defendants respond by vehemently asserting that Plaintiff’s sense of humor is, in fact, at the core of the case. The relevancy is said to be almost self-apparent. This is an appropriate characterization. Plaintiff formulates her suit as a disparate treatment and disparate impact claim. The significance of this is that disparate treatment claims require a showing of discriminatory intent. The bulk of Defendants’ counter argument is, that far from a discriminatory impetus, they did not act upon Plaintiff’s Complaint, because they felt that the two emailing pen-pals had resolved the matter on their own. Plaintiff’s sense of humor is directly relevant to this point. Defendants do not seek to admit this evidence to assail Plaintiff’s character, but rather to dispute that there was a conflict that required intervention. Furthermore, the existence of a discriminatory intent is a question to be resolved by the jury. Such evidence as the email containing the Catholic joke or Plaintiff’s taste in comedy are appropriate in order for the jury to make credibility determinations, regarding Defendants’ true motive for not taking remedial action. To exclude this evidence would leave the jurywith a one-sided perspective of the event. Rather than mislead the jury, this evidence will provide a more holistic view.

The court accepted the defense arguments. (Mike Frisch)

January 15, 2015 | Permalink | Comments (0) | TrackBack (0)

The Meaning Of Award

The word "award" is not ambiguous, according to a recent opinion of the New York Appellate Division for the Second Judicial Department in affirming a decision not to award a portion of settlement proceeds to a law firm.

The respondents, previously represented by the plaintiff, had commenced a lawsuit against the Town of Riverhead and Suffolk County, and thereafter settled the action. The plaintiff commenced this action to enforce the contingency provision of the parties' retainer agreement. The retainer agreement provided for a contingency fee to be paid to the plaintiff "not to exceed twenty percent . . . of any award . . . granted." The respondents contended that the contingency fee provision was not applicable because no award had been granted; rather, the action had been discontinued pursuant to the terms of the settlement.

The Supreme Court correctly found that, pursuant to the plain language of the parties' retainer agreement, no contingency fee was owed to the plaintiff, as no "award" had been given to the respondents (citation omitted) The term "award" is clear and unambiguous and, in common parlance, does not include proceeds paid to purchase real property, whether to settle a lawsuit or otherwise (see Black's Law Dictionary 164 [10th ed 2014]). Moreover, the plain meaning of "award" is consistent with another provision of the parties' retainer agreement which provided that, upon any settlement of the matter, the plaintiff was to be compensated on an hourly basis.

The attorneys may still prove up entitlement to fees on a hourly basis. (Mike Frisch)

January 15, 2015 in Clients | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

No Fixed Suspension Term For Absconding Lawyer

The Kentucky Supreme Court rejected the Bar Association's reqwuest for a 181-day suspension of an attorney faced felony receiving stolen property charges.

WKYT has details on the criminal charges.

Police first arrested [the attorney] in September, after an eyewitness tip lead officers to find two stolen statues worth $25,000 each inside of his apartment. The two bronze statues were reported stolen from the art gallery in Versailles near the end of July.

Benton was charged with receiving stolen property. He was released from jail about three hours after he was booked on September 23rd. He did show up to his arraignment the following day.

The court instead ordered an indefinite suspension.

While we respect the Board's recommendation for another 181-day suspension running consecutively to Respondent's current suspension, we decline to follow it. Given Respondent's prior disciplinary action and his current suspension, together with the seriousness of the felony offense underlying this disciplinary matter and his apparently flagrant disregard for the dignity of the court in which his criminal case is pending, the Kentucky Bar Association, and this Court, we decline at this time to fix a definite term for his suspension from the practice of law in Kentucky. Instead, we now determine that Respondent should be suspended from the practice of law indefinitely.

Actually, "facing charges" may be a bit of an overstatement.

The attorney failed to appear in the criminal case, apparently is on the lam and his present whereabouts are unknown. (Mike Frisch)

January 14, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 13, 2015

Judicial Complaints Not Disclosed

The West Virginia Supreme Court of Appeals has affirmed an order dismissing a civil action brought by a freelance news reporter for access to information concerning judicial ethics complaints.

In this matter, petitioner was not entitled to inspect or copy the complaints at issue. Taking petitioner’s complaint as true and construing it most favorably in his behalf, it is clear that petitioner’s September 7, 2012, and January 31, 2013, FOIA requests sought details of ethics complaints filed against individual West Virginia judges that were confidential under Rule 2.4. Petitioner states in his complaint that he requested the total number of judicial ethics complaints filed against individual West Virginia circuit and family court judges listed by name and categorized by year. In those requests, petitioner did not seek information regarding admonishments or hearings on formal charges before the Judicial Hearing Board, which would be public pursuant to Rules 2.7(c) and 4.3 and as otherwise permissible by law. Instead, petitioner sought information regarding "complaints filed"; such information expressly falls within that class protected by Rule 2.4.

The court upheld the consitutionality of Rule 2.4. (Mike Frisch)

January 13, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Indefinitely Suspended

An attorney who was the subject of this May 2013 story in the Baltimore Sun was indefinitely suspended by the Maryland Court of Appeals.

The family of Baltimore murder victim Isiah Callaway sued his former lawyer this week, saying he told a co-defendant of Callaway's that federal authorities wanted to speak to his client — information that the family says got him killed.

Pikesville-based attorney Larry J. Feldman faces a civil suit in Baltimore City Circuit Court that alleges he shared information about Callaway with Tavon Davis, who had been accused of running a rent-check fraud scheme in which Callaway participated.

Davis pleaded guilty last fall to federal murder conspiracy charges in Callaway's death. The fraud charges were dropped. Feldman has not been charged with a crime.

Steven Silverman, the Callaway family's attorney, said he hopes the suit will "admonish what appears to be the most egregious breach of trust imaginable."

"Isiah's family has been frustrated by the lack of what they perceive to be any justice brought in this case," Silverman said.

The plaintiffs are seeking more than $40 million in damages, according to the complaint filed Tuesday.

Authorities said Callaway worked with Davis in the scheme — stealing rent checks and depositing them into fake bank accounts — when he was arrested by Baltimore County police in December 2010.

Davis, who had been represented in court in the past by Feldman, referred Callaway to the attorney, the family's civil complaint said. Feldman allegedly told Davis that Callaway had been cooperating with U.S. authorities looking into the fraud accusations.

Feldman "immediately tipped Davis off about the federal investigation and never once spoke to Callaway about the matter," the document said.

"Feldman also warned Davis about numerous subsequent contacts he had received from federal authorities, claiming that they were putting 'enormous pressure' on him to get Callaway to cooperate in their investigation of Davis' scheme," the complaint said.

Feldman told The Baltimore Sun in a December 2011 interview that it was not his fault that Davis found out about Callaway's case.

"I know I spoke to Callaway about the government wanting to speak with him, and I'm sure [the co-conspirators] were all aware of that," he said. "I cannot imagine that he would not have spoken to Davis about that."

He referred comments Thursday to his attorney, R. Scott Krause, who did not return a request for comment.

At the time, federal prosecutors said, the evidence did not support criminal charges against Feldman.

According to court records in Davis' criminal case, Feldman told Davis he could face two decades in prison.

Concerned about the jail time, Davis agreed to pay a third man, Bruce Byrd, $2,000 to shoot Callaway, and the two spoke more than 60 times orchestrating Callaway's killing, prosecutors said.

The suspension was imposed by consent and acknowledged multiple ethics rule violations. (Mike Frisch)

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

Monday, January 12, 2015

Let Us Now Praise A Diligent D.C. Hearing Committee

A District of Columbia Hearing Committee has acted with highly unusual (if not unprecedented) diligence in a case where the hearing was conducted on September 11, 2014.

The committee issued a comprehensive 66-page report last week finding that the attorney had engaged in misappropriation and other misconduct.

The committee recommends disbarment and restitution.

As to the nature and seriousness of Respondent’s misconduct, the Court has recognized that violations involving intentional misappropriation, such as engaged in by Respondent, “strike at the core of the attorney-client relationship by undermining the public’s faith that attorneys will fulfill their duties as fiduciaries in handling funds entrusted to them by their clients.” In re Omwenga, 49 A.3d at 1238. As to instances of misrepresentation or dishonesty reflecting the moral fitness of Respondent, the record of Respondent’s misconduct in both the Anderson and Mills matters is replete with instances of dishonest and deceitful conduct, including: theft, misrepresentations to the court, his clients, and opposing counsel; false statements to the court; and misappropriation of Estate assets to pay his attorney’s fees and to pay personal expenses. As to Respondent’s attitude towards the underlying misconduct, his deliberate failure to participate in the instant disciplinary proceedings, reflects a complete disregard for the Rules and for the process under which he may be held accountable for violations of those rules

The accused attorney had failed to appear to contest the charges.

I've seen cases where the attorney failed to contest the charges but it nonetheless  took several years for the hearing committee to issue a report.

The case is In re Jerome E. Clair.

My heroes: Committee Chair Robert L. Walker, public member Kawin Wiliarat and attorney member Margaret Cassidy.

If the discipinary system worked like this on a regular basis, the disciplinary system would work. (Mike Frisch)

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

Cell Phone Production Order Reversed

An order of a Superior Court judge that compelled a law firm to produce a cellular telephone has been reversed by the Massachusetts Supreme Judiial Court.

The Commonwealth had contended that the cell phone was given to the firm by a client for the purpose of seeking legal advice and that it contained text messages that were evidence of the crime that was under investigation by the grand jury.

The full court disagreed with the trial court that the privilege of self-incrimination could be overcome by a showing of probable cause. (Mike Frisch)

January 12, 2015 in Clients | Permalink | Comments (0) | TrackBack (0)

Transparency For Thee But Not For Me

Back when the District of Columbia was considering a rule revision to permit Bar Counsel to negotiate consent dispositions in cases other than consents to disbarment, the bleating mantra of the Bar Insiders on the study committee (personified by former members of the Board on Professional Responsibility and their minions) was that the process needed to be transparent.

The study committee used its purported concern about transparency to craft  a proposed rule that (1) so tied the hands of Bar Counsel, and (2) was so laden with review and process,  to render consent dispositions as unpredictable, time-consuming and burdensome as a full-dress disciplinary proceeding.

They largely succeeded, although the Court of Appeals in its wisdom adopted a far more workable rule than that which the Exalted Poo-Bahs had proposed.

In fairness, the more sensible consent rule adopted by the court was due in large part to the then-BPR , which had registered disagreement with the committee's proposal.

My praise for that act of courage is linked here.

The BPR's real-world hostility (see here) toward consent dispositions post-rule change has, in my view, severely impeded the use of this necessary tool.

 Well, if you want some insight into how much the present BPR cares about transparency, go to the Bar's web page and click on the Scheduled Hearings link.

Here is all you will see:

Hearings are held in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals at 430 E Street, N.W., Washington.D.C. 2o001.

Please contact the Executive Attorney at (202) 638-4290 to confirm the date, time, and location of hearings, as schedules are subject to change.

In re Idus Daniels D.N. 400-13, July 14 [2014], 9:30 am, Courtroom II

That's it.

One notice of a hearing that was scheduled last July. It presumably took place six months ago.

Now, I happen to know that a boatload of Bar Counsel petitions were approved last August. I would have to presume that some of these matters now have scheduled hearings.

If not, the BPR is in violation of its own scheduing rules.

Why isn't this link regularly updated?

It is the sole source of information about disciplinary proceedings. These matters are open to the public for a reason -- to increase awareness and to allow an interested observer some opportunity to see "self-regulation" in action.

There is a hearing that is starting today.

It has never been listed on the web page.

Have other hearings already been held that were never listed?

The BPR's executive office is notoriously overstaffed, overpaid and underworked.

I would submit that there are sufficient resources to insure that the Bar web page is kept current information in the only place where the public gets notice about public disciplinary proceedings against D.C. attorneys.

It is a disgrace that the public never got any notice of today's proceeding.

And why have public charges against attorneys never been made available on the bar web page?

My answer: transparency hypocrisy. (Mike Frisch)

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

Sunday, January 11, 2015

"Sometimes Things Happen In A Case"

The Indiana Supreme Court has imposed an emergency interim suspension of an attorney who was the subject of this story in the August 2011 online ABA Journal:

A prominent Southern Indiana criminal lawyer who formerly worked as a public defender and ran unsuccessfully for a seat on the bench several years ago has been arrested on drug charges along with her boyfriend.

Leah Fink, 47, is accused of having a meth lab in her home, which she and Jeremy Ripperdan, 40, allegedly used as a base for manufacturing and selling the drug, according to the Courier-Journal and WLKY.

The two were arrested following a raid on the home in Corydon early this morning by the Harrison County Sheriff’s office and state police following a two-month investigation.

At last report Fink was being held in the Harrison County Jail in lieu of $40,000 cash bond on charges of manufacturing meth and possession of meth and marijuana, among others.

“This just points out how powerful these drugs can be,” said Harrison County Sheriff Rod Seelye, describing Fink as someone from a well-regarded family who “has an addiction issue.”

The News and Tribune and WAVE also have stories.

The articles don’t include any comment from Fink, Ripperdan or their counsel. Her law office was closed today. Admitted in 1991, Fink is in good standing with no attorney disciplinary history.

The Indiana Lawyer recently reported

Former public defender Leah Fink was arrested more than three years ago after police in southern Indiana found the makings of a meth lab that they connected to her and a boyfriend with a lengthy criminal record.

While her Class B felony dealing methamphetamine charge and four other felonies were pending in Harrison County, Fink, 49, was arrested again in June with co-defendant Jeremy Ripperdan. She was charged in Clark County with dealing meth and two other felonies.

Fink’s first charges, as well as similar counts for Ripperdan, have been pending since August 2011.

“I’d say that’s unusual,” Clark County Prosecutor Steven D. Stewart said. “It’s unusual, but it’s not unheard of. Sometimes things happen in a case.”

What’s happened in Fink’s case caught the notice of the Indiana Supreme Court Disciplinary Commission. Last month, by a required vote of at least two-thirds, the commission asked justices to order an emergency suspension of Fink’s law license. Allowing Fink to continue to practice would pose a threat of harm to clients, potential clients, and the administration of justice, the commission says.

“The commission has monitored (Fink’s) case in Harrison County both in conversations with the prosecuting attorney of Harrison County and by regular review of the (chronological case summary),” the petition says. “The case has a lengthy history,” including numerous continuances by Fink and an interlocutory appeal to the Court of Appeals, the commission noted.

“Everything that could drag a case out has happened here,” said Harrison County Prosecutor Otto Schalk. “There certainly has been some chatter among the community – what’s going to happen and when is it going to happen. It’s a fair conversation.”

Schalk said Fink’s case “certainly garnered some interest due to her profession. … We treated it like any other defendant, thinking that’s what justice requires and people expect.”

At IL deadline, Fink had not responded to the disciplinary petition. Barnes & Thornburg LLP partner Donald Lundberg is representing Fink in the disciplinary proceeding and said he could not discuss a client’s pending matter. Contacted by phone, Fink declined to comment.

The reports notes that the attorney spent at least 185 days in jail and has acknowledged an addiction problem.

The attorney has an inactive Kentucky license and is employed as a legal assistant at a Kentucky firm. Indiana prohibits a suspended attorney from "maintaining a presence in a law office." She sought an order that would allow her to continue to work as a non-lawyer in Kentucky, which has no such prohibition.

The court denied the request.  (Mike Frisch)

January 11, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, January 9, 2015

Locating The Puck

The Center for the Study of the Legal Profession at Georgetown Law - the brainchild of my colleagues Mitt Regan and Jeff Bauman - has just issued it 2015 report on the State of the Legal Market.

From the introduction

Hockey legend Wayne Gretzky once explained the secret to success in his sport by noting that "A good hockey player plays where the puck is. A great hockey player plays where the puck is going to be."

Gretzky's observation has often been cited for its obvious relevance to the process of business strategy, and it seems particularly apt for law firm leaders in the current environment. In the six and a half years since then onset of the Great Recession, the market for legal services has changed in fundamental -- and probably irreversible -- ways.  Perhaps of greatest significance has been the rapid shift from a sellers' to a buyers' market, one in which clients have assumed control of all of the fundamental decisions about how legal services are delivered and have insisted on increased efficiency, predictability, and cost effectiveness in the delivery of the services they purchase. This shift in the dynamics of the market, coupled with at best modest growth in the demand for legal services, the decision of many corporate clients to shift more legal work in-house, the growing willingness of clients to disaggregate services among many different service providers, and the growth in market share of non-traditional competitors, have all combined to produce a much more intensely competitive market for legal services than existed prior to 2008.

Over the past five years, law firms have responded to these market changes in a variety of ways. They have become more adept at responding to RFPs and participating in competitive selection processes; they have become more proficient indeveloping and working under project budgets and in responding to client demands for alternative fee arrangements and they have begun to develop project management capabilities as well as the skills needed to partner with other providers in disaggregated service settings. For the most part, however, these changes have been in response to specific client pressures. They have not generally resulted from law firms themselves taking a longer range view of the changes impacting the legal market and restructuring their services to meet likely client expectations in the future. In other words, to use the Wayne Gretzky metaphor, they represent playing where the puck is and not where it is going to be

Congrats to Mitt and Jeff and the center's staff for their thought-provoking work (Mike Frisch)

January 9, 2015 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Daughter Of The Clerk

The New York Commission on Judicial Conduct has admonished a town and acting village court justice.

This press release describes the conduct

 The New York State Commission on Judicial Conduct has determined that Richard L. Gumo, a Justice of the Delhi Town Court and an Acting Justice of the Walton Village Court, Delaware County, should be admonished for failing to disclose that a key witness in a case was the daughter of the court clerk, permitting the court clerk to perform clerical duties in connection with the case and to be in the courtroom during the trial, and sending an inappropriate letter to the County Court Judge hearing the appeal.

The Commission concluded that Judge Gumo engaged in "impermissible advocacy" by advising the County Court Judge of facts outside the record and making legal arguments when the defendant appealed. By sending a letter that was "ethically and procedurally improper," the judge "abandoned his role as a neutral arbiter and became an advocate." The Commission stated that the judge sent the letter "in a fit of pique" because the County Court Judge had criticized his decision not to disqualify himself and had granted the defendant’s application for a stay. Judge Gumo’s decision in the case was later upheld on appeal.

 The Commission also found that while it was not necessary for the judge to disqualify himself, Judge Gumo "should have disclosed the court clerk’s relationship to a potential witness in order to give the parties the opportunity to be heard on the issue before proceeding." Such disclosure, the Commission stated, was necessary "in order to dispel any appearance of impropriety and reaffirm the integrity and impartiality of the judiciary." The Commission also stated that the court clerk’s presence in the courtroom and the fact that she performed clerical duties in the case, "compounded the appearance of impropriety."

 There is a partial dissent

I cannot conclude, however, that the clerk's performance of her normal clerical duties in the case and her presence in the courtroom during part of the trial violated the ethical canons under the particular circumstances here.

Court Clerk Kristin Beers was the sole clerk of the Walton Village Court. Had she been completely insulated from the Groat case, the judge himself would have been required to handle mail, perform scheduling and tnake routine notations in the court records, such as noting dates that papers were received or sent, that would have otherwise been made by the court clerk. I cannot conclude that a reasonable application of the ethical rules requires such a result under the circumstances here or that the judge's failure to do so compounds his misconduct.

Kristin Beers was not a court attorney or the judge's law clerk.

The partial dissent came from member Richard Stoloff. (Mike Frisch)

January 9, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Ticket To Ride: Smolen Suspension Proposed

A one-year suspension with treatment conditions has been proposed by an Illinois Hearing Board for former Sidley Austin partner Lee Smolen.

Many of the facts related to Respondent's conduct are not in dispute. Respondent admits he falsified and submitted for reimbursement more than 800 receipts for cab rides he did not take. He further admits he received reimbursement totaling $69,800 for the fabricated receipts.

Respondent's conduct was purposeful and intentional. We do not accept his explanation that he simply acted without thinking. Respondent made conscious decisions and took conscious action each time he created and submitted a false receipt. He charged the cab rides to the Wells Fargo unallocated account, which he controlled. There was no reason for Respondent to take the actions he took unless he intended to make the Sidley accounting department and management believe something that was not true, i.e., that he incurred valid cab ride expenses for which he was entitled to be reimbursed. See Edmonds, 2014 IL 117696 at par. 55.

We do not find credible Respondent's assertion that he did not realize he was doing anything wrong. An attorney of any level of experience should recognize the wrongfulness of fabricating expenses. Given Respondent's substantial legal experience and accounting background, his professed lack of awareness is implausible.

Respondent's purported use of the reimbursement funds for a legitimate purpose does not alter our finding of dishonesty. Other than Respondent's testimony, no evidence supports his claim that he used the funds for client development. Respondent's testimony on this issue was inconsistent and he has no records or receipts to corroborate his assertion. Respondent's wife testified that she withdrew cash from their checking account and gave it to Respondent, but she had no knowledge how Respondent spent the cash.

The hearing board noted that

In 2005, Respondent billed 3,576 hours, which included time billed to clients and time spent on services to the firm. He billed 3,483 hours in 2006 and 3,332 hours in 2007. (Tr. 192-93). Respondent typically spent 12-15 hours per day at work and did additional work after he came home and on weekends. (Tr. 262-63, 352). He slept three or four hours per night. (Tr. 359). Respondent's annual compensation at the time he left Sidley was $3.5 million. (Tr. 33). He was one of the most highly compensated partners in the firm. (Tr. 34).

Sidley partner Theodore Miller testified Respondent felt he should receive more compensation. (Tr. 149). According to Miller, the intensity with which Respondent sought additional compensation caused him to stand out from the vast majority of Sidley partners. (Tr. 184-85). Another Sidley partner, Carter Phillips, testified his impression was that Respondent was "a little underwhelmed by his compensation." (Tr. 123). Respondent and his wife, Susan, testified Respondent was satisfied with his compensation. (Tr. 261-64).

Smolen is now with DLA Piper

The parties stipulated to the testimony of attorneys Peter S. Pantaleo and Jay Epstien, both of whom are partners at DLA Piper. Pantaleo is general counsel to DLA Piper and was involved in deciding whether to invite Respondent to join the firm. Respondent appeared before DLA Piper's executive committee and acknowledged that he made a horrible mistake. After Respondent's appearance, the executive committee voted unanimously to recommend Respondent be allowed to join the firm. Pantaleo monitors Respondent's billing and has found it to be appropriate. He was initially concerned about Respondent joining DLA Piper but is now fully supportive of his membership in the firm.

Evidence of mitigation was offered and given some weight

We...consider the evidence pertaining to Respondent's mental health. Dr. Henry and Dr. Spira provided different assessments of the connection between Respondent's mental health issues and his misconduct. Dr. Henry opined there was a "loose association" between Respondent's personality disorder and his misconduct, in that Respondent was excessively devoted to work as a result of his obsessive-compulsive disorder. Dr. Spira found a stronger connection, opining that Respondent's depressive disorder and anxiety disorder led to "tremendous impairment of judgment," which in turn led to the misconduct. Considering both experts' testimony, we find that Respondent's mental health played at least a minor role in his misconduct. Accordingly, we give some weight to Respondent's mental health issues as a mitigating factor.

The proposed sanction would require twelve months of continuous psychiatric treatment.

Our coverage of the charges is linked here. (Mike Frisch)

January 8, 2015 in Bar Discipline & Process | Permalink | Comments (4) | TrackBack (0)

Indicted And Disbarred

The New York Appellate Division for the First Judicial Department has accepted the resignation and disbarred an attorney recently indicted for practice-related misconduct.

Specifically, respondent acknowledges that he received settlement funds from 24 separate clients and converted the funds, totaling $549,267.18, to his own personal use, without permission or authorization from any of the individual clients

The Westport News has details

A Westport man with a personal-injury law practice in New York City has been indicted on charges that he stole hundreds of thousands of dollars from more than a dozen of his firm's clients, including a man who died of cancer before collecting money he was owed and an injured 96-year-old woman.

Stephen R. Krawitz, 62, of Ludlow Road was charged Monday in New York with two counts of first-degree scheme to defraud, a class E felony; four counts of second-degree grand larceny, a class C felony, and 15 counts of third-degree grand larceny, a class D felony, according to Manhattan District Attorney Cyrus R. Vance Jr.

Krawitz was arrested by Westport police at his home last Friday. He was taken into custody after New York City detectives asked for local police assistance in locating Krawitz, who was the subject of an arrest warrant with their department, according to Westport police.

Officers found Krawitz at home, where he was taken into custody without incident, police said.

Vance said Krawitz stole more than $600,000 from settlements obtained for the benefit of more than a dozen of his legal clients.

"While these alleged crimes were taking place, one of Stephen Krawitz's clients died of cancer without ever receiving the full settlement money rightfully owed to him," Vance said in a statement announcing the indictment.

(Mike Frisch)

January 8, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Question Of The Day

As a follow up to our post yesterday on plea bargaining in attorney discipline matters, I pose the following question.

You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.

The presumptive sanction for such misconduct in your jurisdiction  is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.

 Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred.

Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.

You know (1) that a fully litigated case might take five years  or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct.

That happy event is likely at least two to three years away.

So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.

Do you take the deal if your system gives you the authority and responsibility to do so?

If your system does not permit a consent disposition under these circumstances, is there something wrong with your system?

We may have some present and former disciplinary counsel that occasionally read this blog. I'd be most interested in their reaction by comment or otherwise. (Mike Frisch)

January 8, 2015 in Bar Discipline & Process | Permalink | Comments (4) | TrackBack (0)

Wednesday, January 7, 2015

Bar Battery Leads To Bar Charges

A recent complaint filed by the Illinois Administrator

On December 24, 2012, while a patron at the Korner Keg & Kitchen in  Braidwood, Illinois ("Korner Keg"), Respondent struck another Korner Keg patron,  Caryn Lyn Miller, in the face with his hand.

Criminal charges ensued

the court found Respondent guilty of two counts of  aggravated battery. On August 14, 2014, the Hon. Edward A. Burmila, Jr.,  sentenced Respondent to 12 months of probation; ordered Respondent to consume no  alcohol; and ordered Respondent to perform 75 hours of community service.

The attorney's practice was previously the subject of litigation by the appointed receiver.

The court held that the receiver was not entitled to reinbursement from the Administrator.

We believe that [receiver] Kallan was motivated by a desire to help his friend and to protect the legal profession. However, the fact that Kallan acted with the best of intentions does not change the fact that Rule 776 does not authorize the trial court to order the ARDC to pay what amounts to the legal fees of Grnacek’s former clients.

The opinion notes that the attorney had practiced for 35 years as of 2009 with a focus on repeat DUI cases. (Mike Frisch) 

January 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Not Married To The Law Firm

The New York Appellate Division for the First Judicial Department has dismissed the appeal of a third party law firm in a domestic relations action for lack of standing

The nonparty law firm lacks standing to appeal the denial of defendant husband's motion for interim counsel fees. Domestic Relations Law § 237(a) authorizes the court in its discretion to direct either spouse to pay counsel fees to the other spouse  "to enable that spouse to carry on or defend the action or proceeding." The law firm is not a "spouse" in the divorce action and therefore any counsel fees requested by it are not authorized by the Domestic Relations Law. The right to seek remedy for the court's allegedly improper denial of the motions for interim counsel fees belongs solely to defendant husband. While defendant husband initially appealed from both of the court's orders denying his requests for interim counsel fees, the order appealed from herein and an order entered January 24, 2013, he has since withdrawn his notices of appeal.

To the extent the law firm raises issues relating to the January 24, 2013 order, it failed to appeal from that order but had it done so, the appeal would likewise have been dismissed for lack of standing. We note that there are other remedies available to the law firm, one of which it has already pursued, i.e., a statutory charging lien in the amount of $227,517.91 granted by the motion court.

(Mike Frisch)

January 7, 2015 | Permalink | Comments (0) | TrackBack (0)

Plea Bargaining In Bar Discipline

 A recent consent disposition approved by the Arizona Presiding Disciplinary Judge demonstrates the value of plea bargaining in bar discipline matters.

The case involved a wide array of charges and complainants. The State Bar and the attorney agreed to resolve the plethora of cases with a one-year suspension and reinstatement conditioned on proof of present fitness to practice law.

The attorney is required to make restitution to nine clients and arbitrate with 23 others.

Judge O'Neil eloquently explained why the disposition serves the interests of both the public and the attorney

In the 114 page consent agreement, thirty five separate counts outline a consistent pattern of misconduct. Mr. Bornmann admits he, or those under his supervision within his office, consistently failed to attend scheduled court hearings, failed to adhere to court orders, failed to respond to his clients, failed to do the work he was contracted to do, which often caused his clients injury, misled his clients, failed to include ER 1.5(d)(3) language in his fee agreements, failed to issue promised refunds to clients, failed to respond to the requests of substitute attorneys for information and frequently blamed others whom he supervised for these shortcomings.

The admissions here are conditioned on the acceptance of this agreement by this judge. Agreements resolve the controversy existent in each discipline matter. If true, the counts here call for a presumptive multi-year, lengthy period of suspension, if not disbarment. Left unsaid, but inherent in any such agreement, is Mr. Bornmann may well have defenses to one or all of the counts. The State Bar must prove its case in each count by clear and convincing evidence. There may be issues regarding the evidence available to the State Bar. There may be credibility issues or unavailability of witnesses. An agreement balances multiple opposing concerns, as this agreement has, by reducing the suspension while resolving all counts. Mr. Bornmanns failure to respond to the State Bar’s screening investigation letters or furnish to the State Bar a copy of his client files, if any existed, would likely be a significant aggravating factor for a hearing panel. That issue is also resolved by the Agreement.

All trials are uncertain. Hearing panels issue rulings based on the evidence brought before them, not what one believes or even hopes may be presented. A hearing panel could issue a significantly longer suspension. A hearing panel could dismiss one or more or all of the counts. Regardless, the one year suspension is not insignificant and resolves all charges. The agreement for one year suspension is not unreasonable.

So, we have certainty and a prompt resolution as a result. The fitness requirement and the other provisions to satisfy obligations to injured clients serve to protect the public interest. Bar Counsel can apply the saved resources to cases that need to be tried.

A win-win all around.

It is possible that plea bargaining can be abused as a disciplinary tool.

In my view, Virginia is a good example of the overuse of consent dispositions.

There the system is run by lawyers with a hands-off attitude by the Commonwealth's high court and that system is seriously underfunded. As a result, Bar Counsel often agrees to a public reprimand where (in my cursory review) it appears that a suspension may well have been appropriate.

I'm surprised that there has not been a greater outcry for reform of the Virginia disciplinary system.

Of course, for plea bargaining to work, you have to have adjudicators who (1) care about efficiency and (2) trust the Bar Counsel, with appropriate review, to do the right thing.

I guess that it why consent dispositions have fared so poorly in the District of Columbia.

My view: If your adjudicators don't care about efficiency, find some that do. If you don't trust your Bar Counsel, replace that person with someone you do trust. Then, give that person at least some authority to pursue consent dispositions that recognize the uncertainty of litigation and the value of prompt resolution of contested charges.

Just a thought. Not a sermon.  (Mike Frisch)

January 7, 2015 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)