Saturday, September 26, 2015

Death Penalty Defense Attorney Admonished has the story of a misconduct finding in a disciplinary case brought against a career public interest attorney for lack of diligence in a case she won!

Rare that.

The story

A disciplinary panel of the North Carolina State Bar on Friday admonished a lawyer who participated in the first case to be heard under the Racial Justice Act.

 Cassandra Stubbs was part of a team of lawyers who represented Marcus Robinson, whose death sentence was commuted in 2012 after a judge determined race played a factor in how jurors were selected for Robinson's 1994 murder trial.
The State Bar responded to an anonymous complaint filed against Stubbs by charging her in March with providing inaccurate information to the judge in Robinson's hearing in violation of the rules of professional conduct for attorneys.
The Racial Justice Act, which state lawmakers repealed in 2013, allowed death row inmates to challenge their sentences by using statistical evidence to show racial bias during their trials. In Robinson's case, Stubbs and other attorneys gathered affidavits from blacks who were excluded from the jury, but the State Bar alleged that information contained in two affidavits didn't jibe with other evidence in the case and that Stubbs didn't try to correct them before submitting them as evidence.
The disciplinary panel recently determined that Stubbs had violated the rules of conduct, and the three members on Friday weighed the punishment she should receive.
In tearful testimony, Stubbs said "I respectfully disagree" with the State Bar's allegations and panel's ruling, noting that she was on maternity leave at the time the affidavits were drafted and simply reviewed them.
She said the charges against her have been "totally devastating," saying that she has built her legal career on hard work and integrity.

The charges go to "things that are at the heart of what I consider to be who I am as a person and who I am as a lawyer," she said. "This process has been really difficult for me because it's so antithetical to the kind of lawyer that I want to be and try hard to be."

 Superior Court Judge Greg Weeks said the questionable affidavits played no role in his decision to overturn Robinson's death sentence.
Weeks praised Stubbs' work in a letter to the disciplinary panel, as did dozens of other defense lawyers, some of whom attended Friday's hearing.

"Cassie is one of the most diligent attorneys I know," attorney Brian Stull said.

 "I consider her to be one of the best of the best. Her ethics are impeccable. She's an absolute beacon of integrity," attorney Jay Ferguson said.
"The first thing I thought of when I read those letters is how many letters would I get, and I can tell you I wouldn't get 59," said Donald Prentiss, chairman of the disciplinary panel.
After more than an hour of deliberation, the panel decided to hand out the lowest possible level of discipline by formally admonishing Stubbs for her actions.
Stubbs' lawyers had pushed for a simple warning to her and now must decide whether to appeal the discipline.
Gretchen Engle, another attorney for Robinson, faces similar allegations, but the State Bar hasn't heard her case yet.
The news report also links to a video of the sanction phase of the disciplinary hearing.
The testimony of the accused attorney takes approximately the first hour. After watching her testify, my view that this prosecution (based on an anonymous complaint) never should have been brought is strongly reinforced. 
The attorney was accused of "lack of diligence" because two inaccurate affidavits were filed in a case. The judge concluded that the affidavits were immaterial. There was never even a hint of suggestion that the attorney engaged in knowing misconduct.
If an attorney violated ethics rules every time an affidavit was deemed to be inaccurate, we would be a country full of admonished lawyers. 
WRAL also reported that charges against a second attorney were not sustained. And, in the video linked to that story, it  is noted that prosecutors in the underlying case also submitted inaccurate affidavits (the exact charges brought against the defense attorneys) but have not been prosecuted by the State Bar.
How interesting.


Our prior coverage is linked here and  here. (Mike Frisch)

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

Friday, September 25, 2015

Do Not Stand At My Grave and Weep

The Illinois Supreme Court has accepted the consent disbarment of an attorney who justified his lapse in responding to discovery by falsely claiming that his mother had died.

The motion by Keith Joseph Hays to strike his name from the roll of attorneys licensed to practice law in Illinois pursuant to Supreme Court Rule 762(a) is allowed, effective immediately.

From the complaint

On October 27, 2011, Respondent filed a response to  Jackson's motion for sanctions and for default which Respondent admitted that he "could have done a better job  responding to the discovery in this case," but requested that Jackson's motion  be denied. In that response, Respondent made the following statements:

" 11. As Plaintiff's counsel was told several  times, on September 9, 2011, the undersigned's single mother was killed in a  violent car accident in the state of Colorado.

12. The violence of the car accident was not what  killed her, instead it was the fire and smoke inhalation from the resulting  conflagration.

13. She died intestate with a lease, bills, car and  pets and no family in the state where she resided.

14. The undersigned was left scrambling between  Indiana, Colorado and Idaho for weeks trying to get his mother buried, her  estate resolved and her pets adopted."

Respondent's statements described...above were false, and Respondent knew they were false, because:

  1. Respondent's mother had not been killed in a car accident, nor had she been involved in a car accident at that time;

  2. Respondent's mother was alive; and

  3. Respondent was not "left scrambling between Indiana, Colorado and Idaho for weeks trying to get his mother buried, her estate resolved and her pets adopted."

I guess its marginally better than blaming your mother for misappropriation. (Mike Frisch)

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

Conviction Reversed Due to Prosecutor- Juror Ties

The Kentucky Supreme Court has reversed the wanton murder conviction of two defendants because the trial court allowed two jurors with ties to the prosecuting attorney to sit.

Appellants maintain that the trial court abused its discretion in this case by refusing to excuse potential jurors 27 and 75. Both of these jurors acknowledged during voir dire a significant relationship with Lee Tobbe, an attorney of long standing in Wayne County, it appears, and the assistant prosecutor for this case. Both jurors had been represented by attorney Tobbe in the past, and both had a more immediate connection with him. Juror 27, who owned and managed residential rental properties in Monticello, stated that attorney Tobbe was then representing his, Juror 27's, son. We discuss Juror 27 below, but begin with Juror 75 for obvious reasons.

The obvious reason was that the juror could not state that he could be impartial 

The prosecutor...asked whether Juror 75's relationship with attorney Tobbe would make it difficult for the juror to vote to acquit the defendants even if he felt the Commonwealth had failed to prove its case, and Juror 75 responded, "I really can't answer that. I'm trying to be honest with you." These exchanges occurred before the entire venire. At that point the prosecutor declared himself at a loss as to what else to ask Juror 75, said that he was sure defense counsel would have some questions for the juror and then moved on to other topics. Inexplicably, Appellants declined to question Juror 75 further regarding attorney Tobbe, so there the matter stood until the very end of voir dire.

Defense counsel did seek a peremptory challenge at the end of voir dire.

The other juror

 Unlike prospective Juror 75, prospective Juror 27 indicated that neither attorney Tobbe's prior representation of him, nor Tobbe's then current representation of Juror 27's son would have any bearing on the juror's ability to weigh the evidence. The cases cited above, however, make clear that the prosecutor's on-going representation of potential Juror 27's son gives that juror a close and presumptively disqualifying relationship with the prosecutor, a relationship so apt to produce bias that even confident assurances to the contrary by the juror cannot erase significant doubts about his impartiality.

Juror 27 also had ties to the case. (Mike Frisch)

September 25, 2015 in Hot Topics, The Practice | Permalink | Comments (0)

Thursday, September 24, 2015

Back To The Lawyer Referral Drawing Board

The Florida Supreme Court has rejected proposed amendments to its rules governing for-profit lawyer referral services

We have carefully reviewed the final report of the Special Committee and conclude that the public is at significant risk from for-profit lawyer referral services that also refer clients to other businesses. We recognize that the anecdotes presented in the final report do not represent every non-lawyer-owned, for-profit referral service; however, the potential harm is too great for us to approve the amendments proposed by The Florida Bar. These amendments would not cure the multiple concerns highlighted by the Special Committee, but would allow the troubling incidents discussed in the final report to continue. The dangers that nonlawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar.

Accordingly, we reject the current petition and instruct The Florida Bar to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required. While the action we take today may be viewed by some as severe, we conclude it is absolutely necessary to protect the public from referral services that improperly utilize lawyers to direct clients to undesired, unnecessary, or even harmful treatment or services. Our action today will also prevent conflicts of interest, such as where a lawyer feels compelled or pressured to refer a client to another business operated or controlled by the owner of the referral service so that the lawyer may continue to receive referrals from that service.

Justice Canady

I concur with the majority’s rejection of the proposal submitted by the Board of Governors. But I dissent from the majority’s direction that the Bar propose amendments “that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.” Majority op. at 6. Instead, I would direct that the Bar propose amendments incorporating the proposals recommended by the Special Committee on Lawyer Referral Services.

The Florida Bar is directed to file a new per ition by May 2016. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Never Mind

The Indiana Supreme Court withdrew a recently-ordered suspension for an attorney's failure to respond to an order to show cause in a disciplinary matter.

Turns out he did respond

On July 17, 2015, this Court ordered Respondent to show cause why he should not be immediately suspended from the practice of law for failure to cooperate with the Commission’s investigation of grievances. On September 18, 2015, this Court issued an order suspending Respondent from the practice of law for noncooperation with the Commission, effective immediately. That order noted that “Respondent has not submitted a response to the Court’s order to show cause.”

It has now come to the Court’s attention that Respondent in fact did tender to the Clerk a response to the show cause order, but that response was not filed by the Clerk, noted on the chronological case summary, or transmitted from the Clerk to the Court. See Clerk’s “Affidavit,” attached to this order.

Being duly advised, the Court hereby RESCINDS and WITHDRAWS the order of suspension issued in this cause on September 18, 2015. The Clerk is directed to make an appropriate nunc pro tunc entry on the Roll of Attorneys removing reference to Respondent’s being suspended on September 18, 2015.

(Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Unwitting Madoff Facilitator Disbarred

The New York Appellate Division for the Second Judicial Department has disbarred an attorney convicted of federal felony offenses

On June 23, 2014, in a criminal action entitled United States v Konigsberg, commenced in the United States District Court for the Southern District of New York under Docket No. 10 Cr. 228, the respondent entered a plea of guilty, before United States District Court Judge Laura Taylor Swain, to one count of conspiracy to falsify books and records of a broker-dealer and of an investment advisor, to obstruct or impede the lawful governmental functions of the Internal Revenue Service in the ascertainment, assessment, computation, and selection of income taxes in violation of 18 USC § 371; one count of falsifying books and records of a broker-dealer in violation of 15 USC §§ 78q(a) and 78ff, 17 CFR 240.17a-3, and 18 USC § 2; and one count of falsifying the books and records of an investment advisor in violation of 15 USC §§ 80b-4 and 80b-17, 17 CFR 275.204-2, and 18 USC § 2. As part of the plea agreement, the respondent agreed to forfeit the sum of $4,400,000 to the United States.

AP reported on the criminal case

A jubilant accounting firm executive who worked for some of Bernard Madoff's most important clients emerged from a courtroom hugging family and friends on Thursday after a judge spared him prison time and agreed not to require post-sentence supervision.

The leniency shown 79-year-old Paul Konigsberg means he can visit two of his grandchildren in Moscow as soon as he gets a new passport.

Konigsberg pleaded guilty last year to conspiracy and falsifying books and records, admitting that he unwittingly had a role in Madoff's multi-decade fraud by agreeing to let the Ponzi scheme's employees change trading records on some of his client's financial statements.

U.S. District Court Judge Laura Taylor Swain said what Konigsberg did was "seriously wrong" but agreed with prosecutors and Konigsberg that he did not know Madoff was defrauding thousands of investors of nearly $20 billion.

She said Konigsberg, through his cooperation, earned leniency from federal sentencing guidelines that called for at least eight years in prison. She also rejected a request by a court-appointed monitor recovering money for Madoff investors who had asked that Konigsberg be required to cooperate further with his office as part of his sentence.

Assistant U.S. Attorney David Abramowicz said Konigsberg's help included providing information that explained how Madoff and his workers dealt with his most favored investors.

Konigsberg never was employed by Madoff, though he did give him tax advice. Plagued by his association with Madoff, he sold his Manhattan accounting and consulting firm four years ago.

Konigsberg, who fought back tears as he addressed the judge before the sentence was announced, called Madoff "truly a monster."

"It is an extremely sad day in my life," he said in remarks that left his lawyer, Reed Brodsky, in tears.

But the announcement of the sentence left him giddy as he hugged many of the more than 60 family and friends who applauded after the court proceeding ended.

His supporters included Stephen Konigsberg, who came to the sentencing from Moscow, which his father hopes to visit soon to see two of his grandchildren, ages 6 and 9.

"It's a wonderful result and a just result," the son said outside court.

Paul Konigsberg declined to comment, except to chuckle at the impression his lawyer had left when he told the judge that his client is so charitable that he once told everyone on his plane to take off their clothes to give to people in Cuba before flying out of that country.

"We left with the shirts on our backs," he said with a smile.

The 77-year-old Madoff is serving a 150-year prison sentence after revealing the fraud in December 2008.

(Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Court Suspends Attorney Who Blamed Mother For Misconduct

The Illinois Supreme Court adopted the three-year suspension recommendation of its Review Board in a matter described in the Board's report

Respondent was licensed in 2003 when he was 50 years old. He has been a sole practitioner with a general practice in Carpentersville, Illinois. He is also a Certified Public Accountant.

In a five count Complaint, the Administrator charged Respondent with misconduct arising out his representation of clients who planned to open and operate a nightclub in Florida called Dixie Roadhouse (Counts I-IV) and of an individual in the purchase Shell gas station (Count V). In both client matters, the Administrator charged Respondent with misappropriating funds given to him to hold in escrow and with making false statements to others about his handling of the funds in an effort to cover up his misdeeds.

During the course of the Administrator's investigation, Respondent tendered to the Administrator falsified bank records purporting to show that he was properly holding the funds. When the fabrication was discovered, Respondent blamed his mother for the fabrication of the records. Respondent claimed his mother misappropriated the funds in question by transferring funds from his IOLTA account to his business account and then covered up the misuse of the funds in an elaborate scheme aided by a woman the mother met at an unspecified Kinko's copy shop.

The Hearing Board did not believe Respondent or his mother. In fact, the Hearing Board began its report by stating that they found "the testimony of Respondent and his mother, Selma Frazin, lacking in credibility and, in large part, untruthful," noting that "Respondent and Ms. Frazin have changed their stories so many times it is impossible to determine when, if ever, they are telling the truth." While Respondent claims that the Hearing Board erred in disbelieving him, we disagree. The Hearing Board was not required to accept Respondent's testimony. This Board gives deference to the Hearing Board's determinations of credibility. Moreover, the Hearing Board's findings are well supported by the record as set forth generally below and in greater detail in the Hearing Board's Report. (citations omitted)

Our earlier coverage is linked here. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Alleged Credit Report Access Leads To Bar Charges

The Illinois Administrator has filed a complaint alleging that an attorney used information obtained through discovery to illegally access a opposing party's credit history.

... through the course of pretrial discovery, Respondent obtained Jacek’s personal identifying information, including his social security number, as well as information concerning Jacek’s financial history.

On or about December 5, 2014, Respondent visited the website, an online consumer credit reporting site which allows consumers to access their own credit reports.

Pursuant to 15 U.S.C. § 1681q, any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined, imprisoned for not more than two years, or both.

On or about December 5, 2014, Respondent entered Jacek’s identifying information, including Jacek’s name, address, date of birth, and social security number, into the website for the purpose of obtaining Jacek’s credit report.

On or about December 5, 2014, Respondent obtained Jacek’s credit report from the website.

At no time did Respondent request or receive Jacek’s permission or authorization to obtain Jacek’s credit report.

On December 8, 2014, Respondent filed on behalf of Bozena four reply briefs in Cook County Circuit Case No. 2013 D 7670. The reply briefs related to petitions for Jacek to pay additional child support and contribute to various expenses. As an exhibit to each reply brief, Respondent attached a portion of Jacek’s credit report that Respondent obtained from

 On December 11, 2014, after discovering that Respondent had obtained Jacek’s credit report without permission or authority, Jacek’s attorney, Lucas Figiel, filed an emergency motion for an order prohibiting Respondent from using Jacek’s credit report.

On December 11, 2014, after a hearing on Figiel’s emergency motion, Judge John Thomas Carr entered an order prohibiting Respondent from using Jacek’s credit report.

The underlying case involves marriage dissolution. (Mike Frisch)

September 24, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, September 23, 2015

Blogger Suspended In Illinois

An attorney who blogged about probate court was suspended for three years and until further court order by the Illinois Supreme Court.

From the Review Board report

This case involves Respondent's statements on a blog impugning the integrity of certain judges, guardians ad litem ("GALs") and the lawyers involved in a case in the Probate Court of Cook County. The Hearing Board concluded that Respondent violated Rules 8.2(a) which provides that "a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer"; 8.4(c) which prohibits lawyers from engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation"; and 8.4(d) which prohibits "conduct that is prejudicial to the administration of justice."

The Administrator's Complaint alleged that Respondent made statements in violation of the above rules when she blogged about an adult guardianship of Mary G. Sykes ("Mary") pending in the Probate Division of the Circuit Court of Cook County ("the Sykes case"). In December 2009, the probate court had disqualified Respondent from representing Gloria Sykes ("Gloria"), one of Mary's daughters, in the case. Thereafter, Respondent published blogs related to the Sykes case. The Administrator's Complaint set forth ten excerpts taken from Respondent's blogs and alleged that the statements in the excerpts were made in violation of the Rules. See, Administrator's Complaint, paragraph 9. The Hearing Board based its findings on these ten statements. See, Hearing Bd. Report, pp. 7-16, 24-31.

Respondent does not dispute that she made the ten statements in question. She contends that the Hearing Board's findings are against the manifest weight of the evidence because the statements are true. She also contends that her statements on the blog are protected by the First Amendment of the United States Constitution (First Amendment). We have read Respondent's brief and have the benefit of the parties' oral argument before this Board...we affirm the Hearing Board's findings of misconduct and conclude that her false statements are not protected by the First Amendment.

I posted my view that this suspension is far too severe when the Review Board filed its report. (Mike Frisch)

September 23, 2015 in Bar Discipline & Process | Permalink | Comments (1)

Bad Night Leads To 30 Day Suspension

The Illinois Supreme Court has accepted a consent suspension of a former assistant state's attorney.

From the Administrator's complaint

From 2008 through April 10, 2013, Respondent was employed as an Assistant State's Attorney with the Office of the Cook County State's Attorney. Respondent resigned her position as an Assistant State's Attorney in April 2010. Respondent was assigned to a felony preliminary hearings courtroom at the time of her resignation.

In her position as an Assistant State's Attorney, Respondent was a minister of justice as a representative of the people of the state of Illinois, sworn to support the constitution of the United States and the constitution of the state of Illinois.

On September 22, 2012, Respondent and a male companion, Bradley Gould ("Gould"), attended a Chicago Cubs baseball game where they were drinking alcoholic beverages. They continued drinking after leaving the game at a local bar and then a restaurant with family and friends.

On September 22, 2012, after leaving the restaurant, and beginning at or around 7:30 p.m., Respondent was near an adult merchandise store located at 854 W. Belmont Avenue in Chicago called "Taboo Tabou."

Respondent entered Taboo Tabou with Gould. Shortly after entering Taboo Tabou, Respondent and Gould began creating a disturbance by stumbling and speaking in loud voices and were asked by the store manager, Dinah Pineda, to leave the store. Respondent pulled a badge from her purse and told Pineda "you can't do this to me I'm a State's Attorney."

After approximately 10 minutes of Ms. Pineda repeatedly asking Respondent and Gould to leave, they exited the store. However, after approximately another 10 minutes, Respondent opened the door to Taboo Tabou and poked her head through, while yelling "bitches" at Pineda and another employee. At the same time, Respondent and Gould were banging on the glass windows of the store while shouting and making obscene gestures.

Ms. Pineda then called the Blue Havana cigar store, which is next door to Taboo Tabou, and has the same owner, to ask for help from an employee of that store, to see if he could get Respondent and Gould to leave and generally to diffuse the situation. At the same time Pineda call "911" for assistance.

David Boone, the employee from Blue Havana, arrived and repeatedly asked Respondent and Gould to leave, but they only became more belligerent. Respondent went into her purse again and presented her States Attorney's badge to Boone. Respondent swung at Boone. Boone tried to walk away from her, but Respondent fell. Respondent got up and then began running down the street, yelling that she had been "assaulted." At the same time, Gould began videotaping Boone with his cell phone which he positioned directly in front of Boone's face. The phone hit Boone and Boone hit the phone out of Gould's hand. Gould attempted to hit Boone, but Boone punched him and Gould hit his head on the metal window frame. Respondent then charged at Boone, fell to the ground, grabbed Boone's leg and bit him, breaking the skin and causing injury to Boone's knee. Several bystanders pulled Respondent off of and away from Boone.

The police arrived and placed Respondent in handcuffs and in a police SUV where she managed to get her hands out of the handcuffs. Respondent was taken out of the SUV by a female officer, re-handcuffed and put back in the vehicle. Respondent told the officer at least six times that she was an Assistant State's Attorney. Respondent called the officer "a cunt, slut, bitch whore, and dyke" and slapped at her. Respondent got out of the handcuffs again and was kneeling on the floor of the vehicle attempting to vomit. Respondent was taken out of the vehicle again and, while sitting on the curb, proceeded to try to make herself throw up while screaming obscenities.

After the police interviewed witnesses, Respondent and Gould were arrested. Respondent was ultimately charged with attempted official misconduct, battery, resisting arrest, criminal trespass to property, assault and disorderly conduct. People v. Sarah Naughton, 12 MC 1260599. Following a bench trial, Judge Anthony John Calabrese found Respondent and Gould not guilty on all charges on April 5, 2013.

The acquittal did not prevent discipline for the underlying behavior.

This link takes the reader to Above the Law's earlier coverage.

This Chicago Sun-Times article reports on the aftermath of the incident.

The case drew a fair amount of attention because part of the incident was caught on video and posted on YouTube, where at last count there were more than 67,000 views and roughly 100 comments. Another video – from inside the squad car – surfaced later, during Naughton’s 2013 trial, at which a judge acquitted Naughton of every charge, including resisting a peace officer, attempted official misconduct and battery. She left the state’s attorney’s office shortly thereafter.

(Mike Frisch)

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

We Listen And We Care But We Can't Say We Win

An advisory  opinion from the Connecticut Statewide Grievance Committee concludes that a proposed logo violates advertising rules

The logo depicts a multi-point star enclosed in a circle. Underneath is the first listed partner name of the law firm followed by word "law." The proposed phrase is "we listen. we care. we win." Since this phrase will be used in various forms of undetermined future advertising material, the proposed phrase on its own does not contain the name of an attorney admitted in Connecticut responsible for its content as required by Rule 7 .2( d) of the Rules of Professional Conduct. This opinion assumes that the proposed phrase, when placed in the context of actual advertising material, will comply with that requirement when disseminated.

The problem

The proposed advertisement violates Rule 7 .1 of the Rules of Professional Conduct because the reference to the firm winning is likely to create an unjustified expectation as to success. Rule 7.1 prohibits communications that are false or misleading. It is misleading for a lawyer to make claims in an advertisement that cannot be substantiated. Id. In some instances, an appropriate disclaimer given equal weight could correct a statement that is likely to create unjustified expectations or otherwise mislead a consumer. Id.

 By stating, "we win" the firm is creating unjustified expectations for prospective clients. The firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits. The statement is misleading. The firm could correct this misleading statement by including a disclaimer, explaining that results are based on the merits ofthe case and that success in the past does not guarantee success in the future.

(Mike Frisch)

September 23, 2015 in Bar Discipline & Process, Current Affairs, Ethics | Permalink | Comments (0)

"Neither Accurate Nor Helpful"

The Maine Supreme Judicial Court denied reconsideration of the dismissal of an appeal in a probate matter due to the attorney's deficient briefs.

A pro se appellee had objected to the initial brief because "it contained myriad substantial errors."

The attorney admitted the errors but replied in part

However inartfully presented, counsel submits that the issues presented in this appeal are very important substantive issues for the future of the probate law and that the Arguments presented are persuasive.

Justice demands form should not be elevated over substance.

The court permitted the attorney two weeks to file a new brief.

Once again the pro se appellee "then filed a motion requesting that we reject the amended brief, which still contained numerous errors, including erroneous record citations."

The attorney 's response in part

Counsel is, however, a one man office without benefit of any secretary or any clerk, or law student, who like many sole practitioners scratches out a living during not the best economic times. Every expense is out of pocket.

The court

As he admits, Attorney Robinson’s amended brief still contains errors he was ordered to resolve in the July 30, 2015, order. Instead of accepting the opportunity to correct the errors that even he acknowledged, he used the time to chart a different path of analysis for the appeal. He again provided the Court and the appellee with a document replete with so many errors that no reader is able to evaluate the assertions on appeal.

"Limited resources" do not excuse

Although we are sympathetic, we cannot overlook two facts: first, he failed to comply with our order of July 30, 2015, and second, the document he filed in response to that order requires any reader—be it members of this Court or the appellee—to refer to an eight-page errata sheet in order to even attempt to assess the accuracy, persuasiveness, or merits of his arguments. Moreover, this errata sheet was not even filed until after [appelle] Gero filed a second motion to strike pointing out the errors in his replacement brief...

Robinson’s references to sole practitioners in the Maine Bar as individuals who cannot be expected to comply with the Rules of Procedure does Maine lawyers a serious disservice. Every day, Maine lawyers, in sole practices, small practices, and other firms, work diligently and successfully to comply with the Rules.

Substance counts, but so does form

Robinson’s assertion that the dismissal places form over substance is simply wrong. A failure to comply with the Maine Rules of Appellate Procedure in fact compromises both the appellee’s ability to defend against the appeal and our ability to decide it.

Time to dismiss the appeal

Ultimately, despite being afforded the opportunity to correct his initial brief, and despite a full two-week timeframe to do so, Robinson failed to comply with a direct order from this Court, and the result of his work is a document that is neither accurate nor helpful.

The attorney who initially represented the client (replaced by the attorney taken to task here) was reported to be the subject of a bar complaint in the matter by the Portland Press-Herald. The complainant is the appellee.

He was reinstated after his disbarment for a federal drug conviction.

The conviction also led to his disbarment in the District of Columbia. I handled that case. (Mike Frisch) 

September 23, 2015 in The Practice | Permalink | Comments (0)

Tuesday, September 22, 2015

No Eagle Scout

From the Idaho State Bar

On September 17, 2015, the Idaho Supreme Court entered an Order accepting the resignation in lieu of discipline of Eagle attorney, John T. Bujak.  The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to the following conduct.

 During his tenure as the Canyon County Prosecutor in 2009-2010, by agreement of Canyon County and Nampa, funds for prosecutorial services for Nampa were received and deposited in Mr. Bujak’s trust account, with an expected reimbursement from the trust account to Canyon County at the end of each fiscal year.  Mr. Bujak removed funds from his trust account for personal use.  At the conclusion of fiscal year 2010, there were insufficient trust account funds to reimburse Canyon County for expenses related to the Nampa prosecutorial services.  Mr. Bujak admitted that these circumstances violated I.R.P.C. 1.4(b) [Communication with Client], 1.7(a)(2) [Conflict of Interest: Current Clients], and 1.15(a), (b), (c) and (e) (effective 2009-2010) [Safekeeping Property].

In addition, during the criminal prosecution of Respondent on a felony charge of preparing false evidence and a computer crime, Respondent admitted one count of contempt for willfully failing to disclose expert materials pursuant to I.C.R. 16 by the deadline ordered by the court.  Mr. Bujak admitted that these circumstances violated I.R.P.C. 3.3(a) [Candor Toward the Tribunal], 3.4(c) (d) [Fairness to Opposing Party and Counsel], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].

A report from Idaho Statesman

John Bujak’s resignation last week from the Idaho State Bar ending the legal career, at least temporarily, of one of Idaho’s most controversial lawyers.

Bujak, 46, who survived four felony jury trials and a federal bankruptcy court trial without a guilty verdict, said he decided to give up his law license rather than continue to fight efforts to disbar him. Idaho State Bar Counsel Bradley Andrews filed a complaint against Bujak July 9, seeking disbarment and unspecified restitution.

More information at this link from Boise Weekly that links to reports of the Press-Tribune.  (Mike Frisch)

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

Disloyal Lawyer May Have To Disgorge

The New Jersey Supreme Court has held that disgorgement may be appropriate as a remedy against an attorney employee who engaged in egregious acts of disloyalty.

From the court's syllabus

Plaintiff Bruce Kaye, the controlling principal of three entities that sell and manage timeshare interests in resort properties in Atlantic County, hired defendant Alan P. Rosefielde, an attorney admitted to practice law in New York but not in New Jersey, initially as outside counsel, and then as an employee. After defendant had worked closely with plaintiff for approximately four months, the parties entered an agreement providing that, as compensation for his services, defendant would earn an annual salary of $500,000. For approximately two years, defendant served as Chief Operating Officer for several of the timeshare entities, and effectively functioned as their general counsel. In that capacity, defendant committed serious misconduct by acting on his own behalf instead of for his employers’ benefit, and exposing his employers to potential liability. Based on this misconduct, and dissatisfaction with defendant’s performance, plaintiff terminated defendant’s employment.

Plaintiff Kaye and the companies that employed defendant commenced suit against defendant, asserting claims for breach of fiduciary duty, fraud, legal malpractice, unlicensed practice of law, and breach of the duty of loyalty. In addition to claiming compensatory and punitive damages for the alleged disloyalty, plaintiffs sought rescission of the parties’ agreements and disgorgement of monies received by defendant or his company. Following a lengthy trial, the court found that defendant engaged in egregious conduct, including self-dealing, fraudulent acquisition of an ownership interest in one of the entities, and conspiracy to forge deeds to various properties, which the court held to constitute a breach of his duty of loyalty, breach of fiduciary duty, legal malpractice, and civil fraud. The trial court rescinded defendant’s interest in several entities, and awarded compensatory damages, punitive damages and legal fees. Although the trial court stated that it is difficult to imagine the commission of more egregious conduct by a corporate officer, it declined to order the equitable disgorgement of defendant’s salary as a remedy for breach of the duty of loyalty, because the breach did not result in any actual damage to the plaintiff entities, which it believed was required by Cameco, Inc. v. Gedicke, 157 N.J. 504 (1999).


One of the equitable remedies available for a breach of the duty of loyalty is the disgorgement of the disloyal employee’s past compensation. The remedy of disgorgement is derived from principles of contract law that recognize that if the employee breaches the duty of loyalty at the heart of the employment relationship, he or she may be compelled to forego the compensation earned during the period of disloyalty. The disgorgement remedy is consonant with the purpose of a breach of the duty of loyalty claim because, when an employee abuses his or her position and breaches the duty of loyalty, the employee fails to meet the employer’s expectation of loyalty in the performance of the job duties for which he or she is paid. Disgorgement may also have a valuable deterrent effect providing notice that adverse consequences will follow a breach of the duty of loyalty...

The trial court should consider the following factors in deciding whether disgorgement is an appropriate remedy: the employee’s degree of responsibility and level of compensation, the number of acts of disloyalty, the extent to which those acts placed the employer’s business in jeopardy, and the degree of planning to undermine the employer that is undertaken by the employee. Where appropriate, a trial court should apportion the employee’s compensation, rather than ordering a wholesale disgorgement that may be disproportionate to the misconduct at issue.

The court cites to a number of acts of misconduct including

in March 2004, Rosefielde billed Flagship $4000 for expenses incurred during a trip to Las Vegas that was not business-related. During that trip, Rosefielde stayed in a hotel suite with three women who, according to other employees who were also on the trip, were adult film stars.

Earlier coverage from Law360. (Mike Frisch)

September 22, 2015 | Permalink | Comments (0)

Clerk's Cousin As Witness Does Not Disqualify Magistrate

From the South Carolina Advisory Committee on Standards of Judicial Conduct

OPINION NO. 3-2015

RE:      Propriety of a full-time magistrate presiding over a case in which the Sheriff’s Deputy acting as the prosecuting officer is also the cousin of magistrate’s criminal clerk.


The criminal clerk of a full-time magistrate is the cousin of a Sheriff’s Deputy.  The Deputy sometimes appears as the prosecuting officer in Magistrate’s Court.  On several occasions, the inquiring magistrate has met the Deputy, when the Deputy came by the magistrate’s office in his official capacity.   The magistrate inquires as to whether disqualification or any disclosures are required when the Deputy appears as prosecuting officer before the magistrate.


A full-time magistrate is not disqualified from presiding over cases in which the prosecuting officer is the cousin of the magistrate’s clerk. 


Canon 3E(1) states that a "judge shall disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned."   Canon 3E includes certain instances where a judge’s impartiality, including (but not limited to) where the judge has a personal bias against a party or attorney; where the judge served as a lawyer in the controversy; where the judge, judge’s spouse, or other family member in the judge’s household has an economic interest that could be affected by the proceeding; and/or where the judge’s spouse or family member within three degrees of relationship appears as a party or attorney to a proceeding.1  In Op. No. 10-2004, this Committee considered whether a circuit court judge must recuse himself or herself if the judge’s first cousin appeared as either an attorney or a material witness in a case.  We determined that since a cousin was not within the "third degree of relationship," disqualification was not required (although we did advise the judge to disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the disqualification, and provide the parties the opportunity to object).

In this situation, the Deputy is not related to the magistrate at all, and is only a cousin to the magistrate’s clerk.  Furthermore, from the facts presented, the magistrate does not appear to have a personal friendship to the Deputy that would create the appearance that the magistrate’s impartiality had been affected.  (In contrast, see. Op. No. 17-2002, in which this Committee determined that a municipal judge should disqualify himself in a proceeding in which his girlfriend, a police officer, appeared).  Thus, the magistrate is not required to disqualify himself or herself or make any disclosures when the Deputy appears before the magistrate as the prosecuting officer.

 (Mike Frisch)

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

Ohio Education On Linkage Between Addiction And Bar Discipline

Disciplinary prosecutors have long been aware of the correlation between alcohol and drug issues and problems with bar discipline.

Ohio has for some time required education about this issue for both applicants for admission and as part of an admitted attorney's continuing legal education. 

A recent video posted on the Supreme Court's web page tells the story of a judge whose drinking led to such problems and may be useful as an educational tool. (Mike Frisch)

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

IOLTA Account Violations Leads To Suspension

An attorney who used his IOLTA account for personal expenses over an extended period of time consented to a three-year suspension by the Pennsylvania Supreme Court

From the report of the Disciplinary Board

Respondent, while knowing it was wrong to do, paid for hundreds of personal expenses out of his IOLTA, using it as a personal account for approximately one year and nine months. Respondent made an untimely distribution of settlement funds to a client. He caused many overdrafts in his IOLTA, and deposited his own money into his IOLTA to make his clients, including a minor, whole. Respondent did not have permission to use his client's funds. By doing this he commingled his own funds with client funds and misappropriated client funds, even if the misappropriation was in small amounts and only for a short time. Respondent has no prior history of discipline; expressed remorse; and admitted his wrongdoing, as evidenced by his agreement to enter into a joint petition for discipline on consent.

(Mike Frisch)

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

Not A Scintilla

An attorney admitted to practice in 2007 has been disbarred by the Pennsylvania Supreme Court.

The report of the Disciplinary Board notes that the initial misconduct was relatively minor and involved his failure to appear to receive an informal admonition.

However, he failed to participate in the ensuing proceedings and thus displayed his indifference t o his responsibilities.

Had he shown a "scintilla of interest" in retaining his license by responding to the charges, disbarment would likely not have been proposed and imposed. (Mike Frisch)

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

Monday, September 21, 2015

Bad Son And Brother

A recent Hearing Board report and recommendation from Illinois

Respondent acted as trustee of a trust his mother  established, to provide for her care during her lifetime and for distribution of  any remaining trust assets equally between Respondent and his siblings after her  death. Over a five-year period, which began while his mother was alive and  continued after she died, Respondent took more than $360,000 from the trust,  without authority. Respondent had not repaid any of this money, even though two  of his siblings filed a lawsuit, to which Respondent initially did not respond,  and obtained a judgment against Respondent.

In the other matter, Respondent allegedly failed to  properly communicate with a client he represented in a civil lawsuit and pursue  that case after trial. In his response to the ARDC's initial inquiry into that  matter and in his sworn statement to the ARDC, Respondent made false statements.

The Hearing Board found Respondent acted  dishonestly in taking the funds from the trust, conduct which warranted  professional discipline. In relation to the lawsuit against Respondent, the  Hearing Board found the Administrator did not prove misconduct, as the evidence  did not show Respondent's behavior actually prejudiced the administration of  justice and Respondent was acting solely as a party to the lawsuit.

The client Respondent represented in the civil  lawsuit did not testify. Consequently, the Hearing Board did not find sufficient  evidence to support any findings of misconduct as to that matter. The Hearing  Board found, however, that Respondent's statements to the ARDC about that case  were false and Respondent knew they were false.

The Hearing Board recommended that Respondent be  suspended for two years and until he satisfied the judgment against him in the  civil case brought by his siblings.

The board rejected a sanction imposed of suspension until further court order

From our perspective, the evidence presented as to  Respondent's mental health condition did not warrant a suspension until further  order. The personal losses Respondent experienced, while significant, occurred  in 2010 to 2011. No mental health symptoms were reported before fall 2010. By  that time, Respondent had been misappropriating funds from the Moran trust for  well over three years. The evidence did not indicate any genuine causal  relationship between Respondent's mental health condition and his misconduct;  the evidence of any link at all was inconclusive, at best. Further, the evidence did  not provide real grounds on which to believe Respondent's mental functioning was  currently impaired. From Dr. Henry's observations, Respondent's memory and  abstract reasoning were intact. Respondent reported he had returned to normal  functioning by 2012 or 2013, after receiving treatment.

We recommend Respondent's suspension also continue  until he makes restitution.

(Mike Frisch)

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

Admonition For Supreme Threat

A recent admonition from Massachusetts



Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]

Improper Threat or Presentation of Criminal or Disciplinary Charges [Mass. R. Prof.

C. 3.4(h)]


On September 16, 2013, a New Jersey lawyer filed a civil suit in New Jersey Superior Court on behalf of her corporate client (Company A). The lawsuit alleged that the defendants, a corporate entity and an individual doing business as Company B, had failed to pay Company A for services rendered. The respondent represented the interests of an investor and managing member of Company B as its outside general counsel.

In October 2013, the respondent contacted the lawyer for Company A in an attempt to resolve the civil dispute. The parties were unable to resolve the matter. On or about January 27, 2014, the New Jersey court entered a default judgment against the defendants in the civil lawsuit. The defendants did not contest the entry of the default judgment or move to vacate the default judgment or reopen the matter.

On September 2, 2014, the respondent sent an email to the plaintiff’s lawyer, in which he threatened to file a motion with the Supreme Court of the United States of America seeking her disbarment unless she removed the default judgment. The respondent stated that if he was forced to file any motions in the case, he would seek her disbarment and significant attorneys’ fees and costs. After the lawyer responded to the respondent’s initial email, he sent her a second email on September 2, 2014, again threatening to petition the Supreme Court of the United States of America for her disbarment unless she dismissed the civil action and removed the judgment secured in that case. The respondent set a deadline of 6:00 p.m. on the following Friday for her to remove the judgment, or he would seek her disbarment. Therespondent further stated, “Should you have any questions, please retain the service of a competent Supreme Court of the United States of America practitioner.” Mass. R. Prof. C. 3.4(h) prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter. To the extent that the defendants had a valid defense to the New Jersey civil action, the appropriate remedy would have been for the defendants to move to vacate or remove the default judgment and seek to present their defense. In addition, the respondent had no non-frivolous basis for filing a petition seeking the disbarment of the New Jersey lawyer with the Supreme Court of the United States. In these circumstances, the respondent’s conduct violated Mass. R. Prof. C. 3.1 (prohibiting lawyers from asserting frivolous claims) and 3.4(h) (threatening to file disciplinary charges solely to gain an advantage in a private civil matter).

The respondent, who was admitted to practice in 1989 and had no prior discipline, received an admonition for his conduct on the condition that he attend a continuing legal education class identified by bar counsel.

(Mike Frisch) 

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