Tuesday, June 21, 2016

An Affair To Forget

A rescue squad employee made out a discrimination claim according to a decision of the New Jersey Supreme Court affirming the Appellate Division.

From the court's headnotes

 In this appeal, the Court considers whether the prohibition in the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, against discrimination based on marital status extends to a person who has separated from their spouse and is in the process of divorce. The Court then determines whether, on defendant’s motion for an involuntary dismissal of the complaint, plaintiff presented a prima facie case of discrimination under the LAD where he alleged that defendant terminated his employment based on his separation and impending divorce from his co-employee wife, after he began an extra-marital affair with a colleague.

In February 2006, plaintiff Robert Smith, who was then employed as director of operations of defendant Millville Rescue Squad, was terminated from employment. This occurred shortly after he informed his supervisor that he was engaged in an affair with a volunteer worker, and that he and his wife, who also worked for the rescue squad, were separated and about to commence divorce proceedings.

Plaintiff testified that, when he informed his supervisor about the affair, the supervisor stated that he could not promise that it would not affect plaintiff’s job. At a subsequent meeting in February 2006, plaintiff’s supervisor stated that he believed that plaintiff and his wife would have an "ugly divorce." The supervisor further stated that he had to take the matter to the rescue squad’s board. At the meeting, the board decided to terminate plaintiff’s employment. The minutes of the meeting referred to a corporate restructuring, plaintiff’s poor performance for some time, and the failure of efforts to remediate plaintiff’s performance, as grounds for the termination. Defendant terminated plaintiff’s employment on the following day.


... plaintiff presented a prima facie case of marital-status discrimination by direct evidence. The facts that plaintiff asserted demonstrate that he was discharged based, in significant part, on his employer’s stereotypical view of divorcing parties, and the presumed impact that plaintiff’s divorce would have on the work performance of plaintiff and others. The evidence further demonstrated that defendants were not enforcing an anti-nepotism policy because they had permitted plaintiff and his wife to work together for a number of years. The trial court improperly utilized the McDonnell-Douglas test to assess plaintiff’s proofs, because it is applicable only where the claim is based on circumstantial evidence.

(Mike Frisch)

June 21, 2016 | Permalink | Comments (0)

Monday, June 20, 2016

Due Process Denied To Defense Attorney

The Connecticut Appellate Court reversed a finding of misconduct and 20-day suspension imposed against a criminal defense attorney who was alleged to have violated a court  ruling by mentioning his client's acquittal on related federal charges.

The defendant attorney, John R. Williams, claims in relevant part that his right to due process was denied when the court failed to provide him with proper notice of a disciplinary hearing and a meaningful opportunity to be heard before rendering a judgment suspending him from the practice of law for twenty days. We agree and, accordingly, reverse the judgment of the trial court and remand the case for a new hearing.

The problem arose during the cross-examination of a cooperating witness

‘‘Q: Do you remember that Judge Shea said, ‘I also want to add, I echo what Mr. McConnell said. While your assistance did not result in a conviction, the fact is—’ ‘‘[The Prosecutor]: Objection. ‘‘The Court: Sustained. The jury will step out.’’ (Emphasis added.) After the jury was excused, the colloquy continued:

The Court: Mr. Williams, I respect you a great deal, but you have expressed your outrage several times already at various things that happened. I think that this is actually pretty outrageous, because we specifically addressed the question of whether the jury should be informed of what [was] the outcome of the federal trial before, and it was agreed that you were not to mention that without the specific consent of the court, and you— you should know that if you wanted to get into this, you needed to obtain my consent prior to mentioning this in front of the jury.

The attorney also mentioned that his client had not been convicted on federal charges in closing argument.


On October 9, 2014, the jury returned a guilty verdict on all counts against  [client] Reyes, and the court then scheduled a bail hearing for 2 p.m. that same day. Immediately following the bail hearing and the release of Reyes on bail with certain conditions, the court excused the prosecutor, and it requested that Williams remain in the courtroom. Immediately thereafter, the court proceeded to hold a hearing on Williams’ actions and the possibility of sanctions.

Williams told the court that he was not prepared to go forward at that time because he ‘‘had not anticipated that this hearing would be held this afternoon because [the court] had previously indicated that [he] would be given an opportunity [to] obtain such transcripts as [he] needed and review them in preparation [for the hearing].’’ Williams then informed the court that he had ordered the transcripts as the court had instructed him to do, but that they had not yet been delivered. As a result, he explained, he, therefore, had not had time to prepare for a hearing. Notwithstanding Williams’ protestations, the court proceeded with the hearing, found that Williams had violated the order of the court on more than one occasion, and sanctioned him by suspending him from the practice of law for twenty days. This appeal followed.

On appeal, Williams argues that the court caught him off guard at the end of his client’s bail hearing by immediately holding a hearing regarding his actions during his client’s trial. He argues that he tried to explain to the court that he was not prepared and that the court specifically had told him that he would be given time to obtain a transcript and to prepare for a hearing that would be scheduled after Reyes’ trial. He contends that trial does not end until after sentencing and that it certainly does not end with a contested bail hearing. He further argues that he ‘‘was given no opportunity at all to prepare to meet the accusations against him, and, in fact, was not even given notice that his summation would be considered a separate ground for discipline.’’ Under the particular circumstances of this case, we agree that Williams was not given adequate notice of and time to prepare for the hearing in which the court found him in wilful violation of its orders and ordered him suspended from the practice of law for twenty days.

The court agreed

In sum, although the court clearly wanted to address this extremely serious matter as soon as possible, it, nevertheless, did not rule summarily at the time of the conduct that it found offensive.6 See Practice Book § 2- 45. Rather, the court told Williams that he should order the relevant transcripts and be prepared for a hearing that would be scheduled after Reyes’ trial and at which Williams would be given the opportunity to try to explain why his conduct was not a violation of the court’s order. Williams, thus, was entitled to a properly noticed hearing regarding his conduct and whatever sanction might be appropriate, and he was entitled to time to prepare for that hearing. Accordingly, the judgment must be reversed and the case remanded to the trial court for a new hearing.

(Mike Frisch)

June 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Reprimand For Excess Zeal

A panel of the Maine Board of Bar Overseers has publicly reprimanded an attorney

Respondent Beth A. Maloney, Esq., of Kennebunkport, Maine has been at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in Maine. As such, she is subject to the Maine Bar Rules and the Maine Rules of Professional Conduct (M.R. Prof. Conduct). Attorney Maloney was admitted to the Maine Bar in 2002 and is a solo practitioner. In addition to being a lawyer, she is also a published author.

By way of background, for several years prior to her admission to the Maine bar, Attorney Maloney practiced transactional law in California. Such a practice resulted in her having virtually no courtroom experience as a trial lawyer. For most of Attorney Maloney's time in Maine, the bulk of her practice has been as a Guardian ad litem in M. R. S. Title 22 protective custody matters, representing the best interests of children in cases of alleged abuse and neglect.

The complaint matters at issue in this proceeding arose out of Attorney Maloney's trial conduct in two highly contested family law matters involving child custody concerns.

The attorney had been sanctioned for pursuing meritless claims

Of note, Attorney Maloney has never had any client file a complaint against her. Since the time of these cases at issue, she has referred all inquiries for representation in family matters to other attorneys. At the disciplinary hearing, Attorney Maloney candidly agreed that her conduct was regrettable and that her zeal for her clients' causes had interfered with her professional judgment. She apologized for her behavior and had already determined to no longer accept contested family matters. In the unlikely event that determination changes, Attorney Maloney will engage co-counsel for such contested matters.

(Mike Frisch)

June 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Harvard To Jail And Disbarment For Nursing Home Fraud

An attorney convicted of federal health care fraud has been disbarred by the Georgia Supreme Court.

Parent Advocates reported on the criminal case.

A federal judge this week convicted George D. Houser, a Harvard-educated lawyer and member of the State Bar of Georgia, of failing to provide services in three nursing homes for which he collected $32.9 million in Medicare and Medicaid payments. Houser, 63, was also convicted of failing to pay $800,000 in employee payroll taxes and failing to file personal income tax returns. After a monthlong bench trial, Judge Harold L. Murphy of the Northern District of Georgia issued his order with findings of fact and conclusions of law on Monday, according to a statement released Tuesday by the U.S. attorney's office.

The statement said it was the first time a defendant has been convicted in a federal court trial for submitting payment claims for "worthless services." The court concluded that the evidence showed "a long-term pattern and practice of conditions at defendant's nursing homes that were so poor, including food shortages bordering on starvation, leaking roofs, virtually no nursing or housekeeping supplies, poor sanitary conditions, major staff shortages and safety concerns that, in essence, any services that defendant actually provided were of no value to the residents." Sentencing has been tentatively set for June. Houser faces a maximum sentence of 20 years in prison and a $250,000 fine on the health care fraud charges, the government statement said. Houser declined to comment Wednesday. He previously has denied wrongdoing in the criminal case and in a related civil case in which he and his company were ordered to pay $43.5 million to the family of a man found to have died of malnourishment and dehydration in one of the nursing homes. Houser had court-appointed counsel in the criminal case, Michael Trost and William Morrison. Trost said Wednesday that Houser's case will be appealed, although he was not sure who would handle it. He added that the government's "novel civil theory of fraud" is likely to be a key issue.

The two assistant U.S. attorneys who prosecuted the criminal case—Glenn Baker and William Traynor—presented evidence indicating that Houser diverted $8 million of federal health care reimbursements to his own personal use, according to the U.S. attorney's statement. The items he is accused of purchasing with the money include: $4.2 million for real estate on which he planned to develop hotels in Atlanta, Brunswick and Rome; a $1.4 million house in Atlanta for his ex-wife in lieu of alimony; two Mercedes-Benz automobiles, furniture and vacations for himself and his current wife. The government also accused Houser of writing bad checks to employees, leading to staffing shortages; failing to pay vendors for such essentials as utilities and garbage pickup; and failing to repair leaking roofs and broken air-conditioning units. The nursing homes—two in Rome (Mount Berry and Moran Lake, with 100 patients each) and one in Brunswick (Wildwood, with 200 patients)—were part of a company Houser inherited from his parents, who started the business in 1963. The nursing homes have since been closed by the Georgia Department of Human Resources Office of Regulatory Services.

The U.S. attorney's statement said a state surveyor who inspected the Moran Lake nursing home in Rome testified that the heat, flies, filth and stench created an environment that was "appalling and horrendous." "It almost defies the imagination to believe that someone would use millions of dollars in Medicare and Medicaid money to buy real estate for hotels and a house while his elderly and defenseless nursing home residents went hungry and lived in filth and mold," U.S. Attorney Sally Quillian Yates said in the statement. "We will continue to aggressively protect our most vulnerable citizens and hold accountable those who prey on the elderly and steal precious health-care dollars." Houser didn't fare any better before a jury in a 2010 civil trial in Floyd County.

A Rome Judicial Circuit Superior Court jury returned a $43.5 million verdict against Houser and his company, Forum Group, in favor of plaintiff Loretta Turhune. Her father, Morris Ellison, died eight months after entering Moran Lake nursing home for post-operative rehabilitation. The medical examiner testified at the trial that the autopsy revealed Ellison died of malnourishment, dehydration and an undiagnosed, untreated broken hip. Turhune's lawyers, Michael A. Prieto of Perrotta, Cahn & Prieto in Cartersville and Stephen G. Lowry of Harris Penn Lowry DelCampo, said their post-trial conversations revealed that jurors were "absolutely disgusted."

The plaintiffs lawyers have had difficulty collecting that verdict, however. Houser filed for bankruptcy protection in the middle of the trial, claiming between $20 million and $100 million in assets. And although Prieto and Lowry staked their claim with the bankruptcy court, it was superseded by the government's indictment, which includes a forfeiture provision. Houser represented himself in the civil trial, and also in an unsuccessful motion for a new trial last October. He filed briefs blaming the patient, who he claimed was difficult to care for because of "violent dementia," and accusing Rome Judicial Circuit Judge J. Bryant Durham Jr. of mishandling his trial.

A 20-year sentence was imposed in the criminal case as reported in the Examiner.com.

The conviction was affirmed by the United States Court of Appeals for the Eleventh Circuit.

The federal appeals court characterized the conditions in the facilities as "barbaric" and "uncivilized ." Further, the court rejected the argument that the "worthless services" charge was void for vagueness

As the defendants in Chesbrough did, Mr. Houser sought reimbursement from Medicare and Georgia Medicaid for required services--pharmaceutical, diagnostic, medical and dietary--that simply were not provided.

(Mike Frisch)

June 20, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 18, 2016

All The Marbles (Were Surgically Removed)

The United States Court of Appeals for the Fourth Circuit affirmed and reversed in part an inmate's claim that his rights were violated when he allegedly was forced to have marble-removing surgery on his penis.

King filed suit under 42 U.S.C. § 1983 against several correctional officers, medical personnel, and prison administrators for alleged violations of his constitutional rights after he underwent surgery to remove penile implants while incarcerated. We conclude that King’s complaint properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims. We also hold that King stated a claim against Marvin Plumley. We reverse the district court’s decision on those bases, vacate the dismissal, and remand the case for further proceedings. We affirm the dismissal as to Stacy Scott, Cliff Goodin, and Jim Rubenstein, but modify the dismissal of the latter two to be without prejudice.

The member at issue

King is an inmate at Huttonsville Correctional Center (“HCC”) and has been incarcerated since March 23, 2012. In fall 2008, prior to his incarceration, King had marbles implanted in and tattoos drawn on his penis. He and his then fiancée, who is now deceased, decided to have the implants done during the “body modification” craze, as they had heard about the “intensification of sensitivity and euphoric climaxes” resulting from the procedure.

The problem

On January 8, 2013, King was called to the control booth in his unit, where a corrections officer told him to report to “medical” to be examined. Id. at 25. King was to be examined because an inmate reported seeing King and another inmate implanting marbles into their penises. The nurse who examined King verified that the marbles were not recently implanted and that there was no sign of infection.

King was escorted to the segregation unit, where an officer told him that the implants were not noted in his file. King responded that when he was being processed at Mt. Olive, he informed the processing officer of the marbles and tattoo. The officer told him, “This isn’t a pornographic camera, put [your] clothes back on.”

The inmate was found in violation of prison regulations "which prohibit[ed] exposing body fluids, tattoos, and piercings." 

Due to this violation, King was sentenced to sixty days of punitive segregation, sixty days loss of privileges, and ninety days of loss of good time.

After a medical exam, a deputy warden

told him, “Get comfortable you stupid Son of a Bitch, you’ll be placed in Administrative Segregation until you do as I say and have those marbles removed.” J.A. 26. King responded that Rosencrance could not punish him twice for the same violation. Rosencrance said, “I can do what the Fuck I want.” Id. King was then returned to administrative segregation. King alleges that HCC officials threatened him with segregation for the remainder of his sentence and loss of parole eligibility if he did not consent to surgery.

So consent he did

As a result of the surgery, King now experiences physical symptoms. He has tingling and numbness in his penis; pain in the area where the marbles were removed; an “uncomfortable, stretching feeling where the cut was made”; pain in his penis when it rains, snows, or gets cold; and “stabbing pain [that] shoots into [his] stomach” if he bumps into something or the scar on his penis is touched. Id. at 15, 27. King never experienced these symptoms until after his implants were removed.

He also alleges mental anguish

King also experiences mental and emotional anguish as a result of the surgery. He gets “very depressed every time [he] shower[s] or urinate[s]” because he sees the scarring and is reminded of his deceased fiancée...

He is ridiculed by the staff: they refer to him as “Marble Man” and when they search him, they ask where his marbles are.

The court

Throughout his complaint, King stated that the defendants had no penological justification in the surgery, J.A. 16, 18, and provided facts that support this contention. First, he alleged that the marbles were implanted prior to incarceration (an allegation supported by the findings of the two medical professionals who inspected the marbles). This, he argues, is inconsistent with the policy directive that he was found in violation of...

King also alleged that other prisoners “implanted foreign objects into their penises,” but unlike King, they have been permitted to keep them.

No penological justification!

Nor did the "consent" provide a defense.

While prison officials must be afforded wide deference in deterring security threats, the pleadings raise sufficient concerns about the legitimacy of the reasons for surgery. This is doubly so where defendants sought “to intrude upon an area in which our society recognizes a significantly heightened privacy interest,” requiring “a more substantial justification” to make the search “reasonable.” Lee, 470 U.S. at 767. Thus, at this early stage of the proceedings, we find that the justification for the search weighs in favor of unreasonableness...

We hold that King’s complaint plausibly satisfies both prongs of an Eighth Amendment claim and reverse the district court...

In dismissing the claim, the district court read too narrowly the extent of King’s harm...

Based on the foregoing, we conclude that King properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims.

(Mike Frisch)

June 18, 2016 | Permalink | Comments (0)

New Chief Judge For D.C. Superior Court

The web page of the District of Columbia Courts announces

The District of Columbia Judicial Nomination Commission (JNC) has designated Judge Robert E. Morin to serve as Chief Judge of the Superior Court of the District of Columbia. Judge Morin will assume the office on October 1, 2016.  

In addition to Judge Morin, the Commission considered four other candidates, including Judge Judith Bartnoff, Judge Erik P. Christian, Judge Hiram Puig-Lugo, and Judge Lee F. Satterfield, who currently serves as the D.C. Superior Court chief judge.

Judge Morin's career has been diverse, serving both in private practice as well as in numerous public interest organizations, including D.C. Law Students in Court Program, the Southern Center for Human Rights, and the Office of the Public Defender for the State of Maryland. In 1996 he was nominated by President Clinton and appointed to the D.C. Superior Court.   

During his 20 years on the court, Judge Morin has served in the criminal division, civil division, and family court, and was the presiding and deputy presiding judge of the criminal division. He was responsible for the reform and management of the Criminal Justice Act Panel of attorneys, which helped significantly improve the quality of legal representation of indigent persons. In addition Judge Morin served on and led numerous court committees.

In making the designation, the JNC reviewed the results of background investigations, interviews, public comments, and each candidate’s statement of interest, experience, qualifications, and judicial temperament. It also considered interest and experience in court administration, ethics, commitment to diversity, leadership skills, ability to advocate for and promote confidence in the court system, intellectual leadership, and their visions for the court, including plans for addressing the challenges facing the court in the next four years.  

The JNC received an unprecedented 700-plus letters, evaluations, and calls from a diverse group of members from the bench, bar, and public on the fitness of the candidates.

Read the JNC's full statement on the designation of Judge Morin. 

There are a number of significant changes in personnel about to take place in the District of Columbia Bar (more to follow on this subject). 

In my view, Judge Morin will perform his duties as Chief Judge in a manner that will reflect great credit on the city judiciary. A great choice. (Mike Frisch)

June 18, 2016 in Current Affairs | Permalink | Comments (0)

Reinstatement Denied

An application for reinstatement of a suspended attorney has been denied by the Rhode Island Supreme Court

On March 23, 2016, the petitioner filed his reinstatement petition. However, the petitioner has not met all of the requirements for reinstatement set forth in Article III of the Supreme Court Rules. Accordingly, his petition is not ripe for review by this Court.

We also note that there are several disciplinary matters currently pending before the Supreme Court Disciplinary Board regarding conduct of the petitioner that occurred both before and after our order of suspension. Pursuant to Rule 16(c), on a petition for reinstatement the petitioner “shall have the burden of demonstrating by clear and convincing evidence that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this State and that his or her resumption of the practice of law within the State will be neither detrimental to the integrity and standing of the Bar or the administration of justice nor subversive of the public interest.” Those pending matters must be brought to a conclusion prior to our consideration of this reinstatement petition.

Furthermore, we note that on March 6, 2015, a justice of the Superior Court issued sanctions against the petitioner pursuant to Rule 11 of the Superior Court Rules of Civil Procedure in a number of different cases based, in part, upon findings that the petitioner made misrepresentations to the court. The total amount of the sanctions imposed is $19,267.06. The petitioner filed an appeal in only one of those cases in which the sanction was $1,000. We affirmed that sanctions’ order when that appeal was before us. Wells v. Blanchard, No. 2015- 138-M.P. (April 15, 2016). The petitioner did not appeal from the remaining sanction orders, and they have become final orders of the court. The sanctions remain unsatisfied.

(Mike Frisch)

June 18, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 17, 2016

Utah Sanctions Prosecutor

A seven-month suspension of a prosecutor was affirmed and reversed in part by the Utah Supreme Court.

Tyler James Larsen was a prosecutor with the Davis County Attorney’s Office from 2007 to 2010. He was charged with two sets of violations of the Utah Rules of Professional Conduct in 2012. One charge alleged a misstatement of fact in violation of rule 3.3. The other alleged a failure of a prosecutor to make a timely disclosure of exculpatory evidence to the defense under rule 3.8. In the proceedings reviewed on this appeal, the district court found that Larsen had violated both rules. And it imposed a sanction of suspension for seven months—thirty days for the rule 3.3 violation and six months for the rule 3.8 violation.

The court overruled the false statement finding

...the district court erred in implicitly treating a reckless misstatement as the legal equivalent of a knowing one. It did so in concluding that Larsen’s misstatement was “knowing or reckless,” and in basing its determination of a violation of rule 3.3 on the finding that Larsen could have avoided making a misstatement if he had undertaken a “reasonably diligent inquiry.” This too was error. Our rules do not treat knowledge and recklessness as equivalents. They state that “‘[k]nowingly,’ ‘known’ or ‘knows’ denotes actual knowledge of the fact in question.” UTAH R. PROF’L CONDUCT 1.0(g) (emphasis added).

We reverse on the basis of this definition. Actual knowledge is distinct from recklessness. And our rules require actual knowledge to sustain a charge under rule 3.3. So we reverse on the ground that the district court conflated knowledge and recklessness and did not find that Larsen made a knowing misstatement.

But affirmed the failure to timely disclose

In so doing we reject Larsen’s plea for a reduced sanction. The prosecution’s duty of disclosure under rule 3.8(d) is an important one. And the district court found that Larsen’s violation of this rule was not only knowing but intentional. That strikes us as a sufficient reason to sustain a suspension and to reject Larsen’s request for a lesser sanction such as a public reprimand.

Yet we also reject OPC’s—and amicus Utah Association of Criminal Defense Lawyers’—request for more serious sanctions. OPC has asked for the imposition of a three-year suspension in this case. And amicus seeks an outright disbarment. Both requests are based on the same essential point—that the prosecutor plays an important role in our system of justice, and that a failure to disclose exculpatory evidence can do substantial harm to the administration of justice. We do not disagree with these premises. But we nonetheless affirm the six-month suspension imposed in this case. We do so on three grounds: (1) a suspension from the practice of law, even for six months, is a serious penalty for a practicing lawyer; (2) there are at least some mitigating circumstances in this case; and (3) the precedents involving sanctions against prosecutors under rule 3.8(d) include a few suspensions for six months but none for any greater period, and no disbarments

 The court noted that there are no precedential Utah cases but rejected the proposed approach of the Office of Professional Conduct

We see little upside and plenty of downside in the proposed requirement of a single, overarching sanction proposed by OPC. The downsides are apparent in our review of the decision below. If the district court had imposed a single, overarching sanction, our review on appeal would have been hampered in a couple of respects: We could not have identified the separate sanction imposed for the count on which we reverse and remand, and we could not have evaluated the propriety of the sanction imposed on the count on which we affirm. The latter point seems especially significant. Our review as to the propriety of a sanction imposed for a violation of one of our rules of professional conduct would be substantially impaired if we had before us only a single, overarching sanction in a case involving multiple ethics charges.

For these reasons we reject the OPC’s cross-appeal. We affirm the district court’s decision to impose separate sanctions for the separate charges at issue in this case—and, indeed, urge future courts to follow the pattern that was followed here, as it will aid our review of attorney discipline cases on appeal.

(Mike Frisch)

June 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Till Bench Do Us Part

The Iowa Supreme Court has opined on a magistrate's marketing of wedding services

A magistrate maintained a website where he posted information regarding his availability to perform marriage ceremonies at locations other than the courthouse for a fee. The website included some photos of the magistrate wearing his robes while performing such ceremonies. The magistrate self-reported his conduct to the Iowa Commission on Judicial Qualifications after becoming concerned that this website might violate our ethics rules for judicial officers. The Commission found that the magistrate violated the Iowa Code of Judicial Conduct and filed an application for the imposition of judicial discipline. The Commission recommended the magistrate be publicly reprimanded.

After the Commission issued its recommendation but before the matter was submitted to us, the magistrate resigned. Because of the importance of the underlying issues, we will address whether any violations of the Iowa Code of Judicial Conduct occurred. We conclude the code does not per se bar a judicial officer from publicizing his availability to perform marriage ceremonies, but some aspects of the advertising here violated the code.


...we conclude Magistrate Martinek committed violations of Canon 1 and rules 51:1.2 and 51:1.3 by (1) including advertising about performing marriage ceremonies on his private law practice website, (2) including photos of himself in his judicial robes on his private law practice website, and (3) not disclosing in his advertising that he would perform weddings for no charge during his regular office hours at the courthouse.

Justice Zager concurred

 I concur in the majority opinion. I write separately to voice my disagreement with what I see as the majority minimizing the violation of our rules. In my opinion, a judge placing a marriage tab on a private law practice website is clearly an "abuse [of] the prestige of judicial office to advance the personal or economic interests of the judge." Iowa Code of Judicial Conduct R. 51:1.3. The only reason that a private attorney would have such a tab on his or her website is because he or she is a judicial officer who can perform marriage ceremonies. In other words, the ability to perform marriage ceremonies is a prestige of judicial office...

...I would adopt the rule endorsed by the Colorado Judicial Ethics Advisory Board, which advised Colorado judicial officers that "a judge may not send fliers to wedding planners or otherwise advertise [his or] her availability to perform weddings, such as through a personal website or yellow pages advertisement." Colo. Judicial Ethics Advisory Bd., Op. 2007-05, 2007 WL 7603068, at *1 (2007). This is a commonsense, bright-line rule all judicial officers should be expected to follow. Here, as in many jurisdictions today, a judicial officer may have his or her name and contact information displayed on a court’s official website or posted at the courthouse. See id. at *2. The judicial officers are also generally free to make whatever arrangements are convenient for them and for members of the public who request their services. See Iowa Code § 595.12(1). Unlike the majority, I perceive judicial officers advertising services they are able to provide due to the prestige of judicial office to be a serious problem—even if the advertising is not associated with a private law practice. Do we really want our judicial officers advertising for wedding services on the Internet or through the yellow pages? I think such advertising amounts to a violation of our canons and rules—even when it is not connected to a private law practice. For these reasons, I specially concur.

(Mike Frisch)

June 17, 2016 in Judicial Ethics and the Courts | Permalink | Comments (0)

Incompetent Defense Leads To Lengthy Suspension

The New York Appellate Division for the Fourth Judicial Department found that an attorney had incompetently represented a DUI client

Respondent admits that, in July 2012, the client was in the custody of two sheriff’s deputies and made certain statements to the deputies that were recorded by a body camera worn by one of the deputies. Respondent admits that the prosecution subsequently alleged that certain of those statements constituted threats against the deputies and, on at least two occasions thereafter, the prosecution provided respondent with a DVD containing a video recording that depicted the alleged threats. Respondent also admits that the video recording was received into evidence in one of the criminal proceedings in which respondent represented the client. Respondent admits that, although he subsequently moved the trial court for an order suppressing the alleged threats, he failed to view the video recording prior to making the motion or prior to the Huntley hearing. The Referee found that respondent called his client as a witness at the Huntley hearing without advising the client as to the existence of the video recording and, on direct examination, the client testified that he had not made the alleged threats to the deputies and that the deputies had failed to advise him of his Miranda rights. On cross-examination by the prosecutor, the client again denied that he had made the alleged threats. Respondent admits that, had he viewed the body camera video recording prior to the Huntley hearing, he would have known that one of the deputies had issued Miranda warnings to the client and that the client had made the alleged threats to the deputies. He also would have known that the client had made the alleged threats because he was unable to make bail, rather than as a consequence of questioning or prompting by law enforcement. Respondent further admits that the record of the Huntley hearing indicates that he mistakenly believed that the prosecution was obligated to establish the voluntariness of the client’s statements by only a preponderance of the evidence, rather than beyond a reasonable doubt. In addition, in cross-examining a witness for the prosecution, respondent questioned only the ability of the witness to identify respondent’s client as the perpetrator of the alleged criminal conduct and did not ask questions concerning the voluntariness of the client’s statements to law enforcement. Respondent admits that the client was charged with perjury based on the client’s testimony at the Huntley hearing and was thereafter convicted, upon a jury verdict, of two counts of perjury in the first degree. Although the client was sentenced to a term of incarceration on the perjury conviction, that term was to run concurrently with a longer term of incarceration that was imposed for certain other criminal conduct of the client.

The attorney incompetently handled a second criminal matter and had a record of prior discipline.

He was suspended for two years and until further court order. (Mike Frisch)

June 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Flatly Unethical

The New Mexico Supreme Court has issued a public censure for an attorney's handling of a so-called "flat"  fee

Attorney Jason S. Montclare accepted a flat fee from a client in the form of real  property and transferred a half interest in that property to his legal assistant before he had fully earned it, making him unable to return the unearned portion when he was later discharged before completion of the case. Montclare’s actions violated Rule 16- 7 105 NMRA, Rule 16-108 NMRA, and Rule 16-115 NMRA of our Rules of Professional Conduct. We write to issue a public censure and to clarify the rules pertaining to nonmonetary flat fees

The facts

Montclare agreed to represent Wolfgang Bohm, the complainant, in a child support enforcement action brought by the State of New Mexico Human Services Division (State) in which Bohm had been incarcerated for failure to appear. On April 12, 2013, Bohm retained Montclare’s services to obtain his release from jail and  resolve the underlying child support action in exchange for a flat fee consisting of real property located at 101 Round Mountain, Bent, New Mexico. Bohm had transferred the property to Montclare on the preceding day by special warranty deed, which Montclare immediately recorded with the office of the county clerk.  

Montclare commenced work on Bohm’s case and filed a motion for his immediate release from custody. On May 8, 2013, the State stipulated to Bohm’s release without communicating with Montclare.Bohm was released from jail the next day and asked Montclare to return the property. Montclare refused, maintaining that he had earned it, and instead deeded half of the property to his office manager Tracy Perry as payment for her services.

Thereafter, the client experienced difficulty due to the title cloud.

The court

Montclare did present billing records to the Hearing Committee showing the time he spent on the case and calculating the fee he maintained he had earned. The Committee found that these calculations were not credible and consequently that Montclare had not earned the full value of the property. We defer to these findings and conclude that, because Montclare did not earn the full value of the property before transferring an interest to Perry and thereby making it nonrefundable, the property was an unreasonable fee in violation of Rule 16-105(A).

We clarify that the acceptance of a flat fee in the form of real property is not in itself contrary to our Rules of Professional Conduct. An attorney may accept a nonmonetary fee, but regardless of the form it takes any fee must be reasonable and must be refundable until it is fully earned.

The conduct here amounted to a failure to safeguard property.

We issue this public censure as a consequence of Montclare’s actions in accepting a flat fee and transferring a portion of that fee to a third party before he had earned it so that he was unable to refund the unearned portion when requested as is required by our Rules of Professional Conduct. Because Montclare has since made the required payments and filed the necessary documents to transfer all interest in the property back to his former client, we do not impose the previously deferred six- month suspension.

(Mike Frisch)

June 17, 2016 | Permalink | Comments (0)

No Obvious Miscarriage Of Justice

The District of Columbia Court of Appeals disbarred an attorney who had not participated in the disciplinary process.

Having agreed with a Hearing Committee’s findings and conclusion that respondent, Eleanor Nace, violated District of Columbia Rules of Professional Conduct 1.1(a)-(b), 1.3(a)-(c), 1.4 (a), 1.15 (a) & (e), 1.16 (d), 8.1 (b), and 8.4 (d), the Board on Professional Responsibility (“the Board”) recommends that respondent be disbarred from the practice of law in the District of Columbia. The Board agreed with the Committee’s find that, among other forms of misconduct, respondent recklessly misappropriated her client’s entrusted funds, conduct that in itself generally mandated disbarment under In re Addams...

A noteworthy footnote

respondent did not participate in the proceedings either before the Hearing Committee or before the Board. See D.C. Bar Rule XI, § 8 (f) (“Failure to answer and default”). Recently, in In re Green, No. 15-BG-894 (D.C. Apr. 21, 2016), we held that where an attorney has failed to make an argument before the Board, he has forfeited his right to raise that argument before us and that any safety valve would be limited to an obvious miscarriage of justice. If that be so where, as in Green, an attorney did file an exception with us, a fortiori the same standard would appear to apply where no exception was filed with us and the respondent defaulted at both levels of earlier proceedings. No miscarriage of justice is evident here.

(Mike Frisch)

June 17, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Thursday, June 16, 2016

"Everyone Hates You"

It seems like a busy time in the Arizona disciplinary system in matters involving excess emotion on the part of attorneys both in and out of the courtroom.

A 30-day suspension was imposed for behavior in two matters, one involving misconduct in defending a DUI case.

Mr. Mehrens represented a client charged with two counts of aggravated DUI, class 4 felonies. Deputy County Attorney, Soo Chang, originally offered a standard plea to one count of endangerment, a class 6 undesignated felony, which could ultimately be designated a misdemeanor, and one count of DUI, a class 1 misdemeanor. Mr. Mehrens would testify acceptance of the plea was only conditioned upon confirmation of the B.A.C. by the blood tests being over the legal limit. She agreed to keep the plea open pending the results of blood tests confirming the B.A.C. was over the legal limit. In anticipation of the status conference, Deputy County Attorney Chang staffed the case with her supervisor, Deputy County Attorney, Amy Diederich, who told her due to a change in office policy the endangerment had to be designated a felony.

On May 27, 2014. Ms. Chang and Mr. Mehrens met before the status conference in the negotiation room. Ms. Chang informed Mr. Mehrens of the change in office policy and that the endangerment count would be required to be designated a felony. Mr. Mehrens protested and demanded to speak with Ms. Chang’s supervisor. She called her supervisor, Ms. Diederich. In the agreement Mr. Mehrens states he had an unpleasant professional relationship with Ms. Diederich. The agreement states, if this matter proceeded to hearing, Ms. Diederich would testify when she entered the negotiation room, Mr. Mehrens yelled he was taking the original offer, the State could not change it and continued to yell while Ms. Diederich tried to explain the reason for the change. She would testify Mr. Mehrens accused her of being unprofessional, unethical, a “scumbag” and a “pig”. When Mr. Mehrens asked for her name, he replied, “Oh, that’s right. Everyone hates you.”

Mr. Mehrens admits that he portrayed and held himself out as being extremely upset and that his conduct was deliberate. He does not deny he yelled at Ms. Diederich and affirms he used “negative” language. He does not recall calling her these two names. He acknowledges he may have had an angry tone. Under the conditional admissions he acknowledges he was angry and may have used “negative” language.

If this matter went to hearing, Attorney Tyler Harrison would testify he observed Mr. Mehrens “yelling” at Ms. Diederich, “calling [her] names,” and “yelling in a voice loud enough for everyone in the room to hear” and Mr. Mehrens told her everyone “hates” her. He would also testify Mr. Mehrens “got in her face,” was “stomping around” and “parading to make a show.” Mr. Mehrens admits he left the negotiation room, went to the courtroom and affirmed the preliminary hearing date without calling the case on the record and then left.

The attorney stipulated to a Rule 4,4 (a)  violation. Also, it appears that not everyone hates Ms. Diederich. 

A separate matter

...Mr. Mehrens conditionally admits he was involved in an accident, arrested by police for leaving the scene of an accident, charged with five counts and convicted of three. Those were failure to yield in an intersection, A.R.S. § 28-772; DUI BAC over .08 within two hours of driving, A.R.S. § 28-1381; and leaving the scene of an accident, A.R.S. § 28-662. It is his second DUI in the past seven years. The criminal conviction is on appeal. Despite that appeal, for purposes of this agreement only, he admits the conviction of the DUI constitutes a violation of E.R. 8.4(b) [Misconduct] [It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.]

The sanction includes probation and was imposed based on conditional admissions.

It appears that the conditional agreement does not address other rule 4.4 (a) violations alleged in the complaint.

In one instance, the complaint alleged that the attorney opined that a prosecutor had "essayed a ham-fisted apercu... a nimble writer, of course, avoids such gaucheries." He also allegedly speculated in a pleading that a criminalist  was unavailable because she "ha[d] plans to get her nails done."

Glad I'm not supervising this probation. (Mike Frisch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Obsession To Suspension

An Arizona Hearing Panel has imposed a suspension of six months and a day

The single count complaint arose out of Ms. Killion’s actions over several years. The actions revolve around the unrefuted extreme abuse of alcohol by Ms. Killion, her threats to have Complainant Bart Barrett killed, a man with whom she had occasional sexual relations, her threats to misuse her position as an attorney to intimidate or cause him harm, and her long term and wide reaching harassment of him, his family members, and associates.

The attorney's initial response

Ms. Killion filed her answer on June 24, 2015. [See Response to Complaint filed June 24, 2015.] In her answer she requested: “protection against the State Bar of Arizona and any and all persons associated with the State Bar of Arizona”; “reasonable attorney salaries that Respondent could have earned but for Complainant’s actions from the year 2005 to retirement age”; “for all retirement funds that Respondent could have accrued but for Complainant’s actions from the year 2005 forward”; and “for all reasonable attorney salaries and law school tuition and costs that Respondent could have earned or has expended if the State Bar of Arizona admitted Respondent to practice law imprudently and/or with malicious or careless intent.” She also sought general, special, and punitive damages against the State Bar.

The panel

We find Ms. Killion’s harassing and threatening Mr. Barrett with criminal charges based on her “large file” of evidence in an effort to intimidate him is wrongful, with or without an existing attorney-client relationship. She also harassed others in order to further harass him. Attorneys bear ethical responsibility to the public and profession. When a member of the public knows someone is an attorney and is subsequently threatened by that attorney, the Panel cannot see how this would not be a misrepresentation of an attorney’s power or a dishonest use of legal knowledge. Ms. Killion used her status as an attorney as a tactic to encompass her target in fear of legal ramifications. [Testimony of Mr. Barrett, stating his fear of Ms. Killion using her abilities as an attorney because she was “potent with the pen”.] Ms. Killion also used an alias to harass individuals. [SB Ex. 18.] The Panel finds Ms. Killion violated ER 8.4(c)...

The Panel finds Ms. Killion went beyond negligence in her misconduct and acted knowingly, if not intentionally: her harassing behavior toward Mr. Barrett and those associated with him; the litigation threats toward Mr. Barrett through the use—and abuse—of her legal training; and abuse of her position as an attorney to impose fear on individuals.

The actions of Ms. Killion were obsessive. Whether caused solely by her use of alcohol or for some other underlying cause, Ms. Killion fixated on Mr. Barrett and acted out that fixation with harassing behavior to others to control him. These behaviors were apparent to us throughout the hearing. We are concerned at the imbalance demonstrated and her conduct in this proceeding. We find the evidence clear and convincing she violated the Ethical Rules failing her duty to the public and legal profession. The commentary to ER 8.4 states a “lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.”

The appended charging document recites some of the communications at issue, such as: "His Dick? Small. But did I love him? Yes. But you undid that. And now I will undo your life [name omitted]...and plus his dick barely works anyway."

The attorney had been an associate at Lewis & Roca. (Mike Frisch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Unsubstantiated Medical Claims Draw Three-Year Suspension

An Arizona attorney who made false statements to secure postponements in civil and bar matters was suspended for three years by the Presiding Disciplinary Judge.

Ms. Lyons was asked numerous times to substantiate she had cervical cancer. This request was based on Ms. Lyons’ use of her medical condition to request an extension of time to respond to the State Bar in count one. Ms. Lyons told the State Bar she “received devastating news regarding [her] on-going battle with cervical cancer in that additional surgery and treatment is needed and, if not removed from the surrounding organs, the cancer has been deemed terminal.” In count two, she used her cervical cancer as a justification for a continuance before Judge Trebesch.

After numerous requests for documentation to support this very serious medical condition, Ms. Lyons has failed to do so, even refusing to sign releases so the State Bar could obtain the records with no upfront expense to Ms. Lyons. We find Ms. Lyons was using this horrific, and apparently fraudulent, diagnosis to garner sympathy and inappropriate delays for her benefit and for her client’s benefit, as the only issue left to be determined in count two was the child support her client had to pay. [Exhibit 10, Bates 414 ; Exhibit 11, Bates 44.] Ms. Lyons also cited the death of her father as one of the substantial losses she had endured. The State Bar’s investigation revealed that the person who passed away was not her father.

The attorney had earlier been suspended for lapses in her CLE obligations. (Mike Fr isch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Legal Malpractice Claim Reinstated

The Oregon Supreme Court reversed and remanded a previously dismissed legal malpractice claim.

This is a legal malpractice and negligent misrepresentation case where we review a trial court judgment directing a verdict in favor of Platten (defendant). In an earlier lawsuit, defendant had represented the Harknesses (plaintiffs) against Kantor, a loan officer, and her successive employers, Sunset Mortgage (Sunset) and Directors Mortgage, Inc. (Directors), as the result of a fraudulent investment and loan scheme directed at plaintiffs by Kantor. That case did not settle to plaintiffs’ satisfaction, and plaintiffs sought to recover their remaining loss from defendant. In this case, the trial court granted defendant’s motion for a directed verdict based on the conclusion that plaintiffs’ liability theories of apparent authority and respondeat superior asserted against Sunset and Directors were not supported by sufficient evidence in the record and could not have led to a result more favorable than the settlement. Plaintiffs appealed the trial court ruling, and the Court of Appeals affirmed. Harkness v. Platten, 270 Or App 260, 348 P3d 1145 (2015). For the reasons explained below, we reverse the decisions of the trial court and the Court of Appeals.

As to the evidence of apparent authority

We conclude... that the Court of Appeals made two missteps in determining that Sunset and Directors had made no manifestations from which plaintiffs could reasonably have concluded that Kantor was authorized to perform the acts constituting the fraudulent scheme. First, the court disregarded evidence concerning the actual authority with which Sunset and Directors clothed Kantor. Second, the court does not appear to have considered evidence in the record relating to the usual or customary authority of a loan officer for a mortgage company...

Viewing that evidence in the light most favorable to plaintiffs, we conclude that a reasonable factfinder could infer that Sunset and Directors manifested their assent to be bound by the acts of Kantor through the observable connections between Kantor and those organizations...

We further conclude that a reasonable factfinder could infer from the evidence that it was reasonable for plaintiffs to believe that Kantor was authorized—as a loan officer for Sunset and Directors—to engage in the investment and loan scheme on behalf of those companies. In particular, a factfinder could infer that plaintiffs reasonably believed that Kantor’s actions were part of her usual or customary authority as a loan officer hired by Sunset and Directors to make and arrange loans on behalf of the mortgage companies.


Based on the evidence we have discussed in relation to plaintiffs’ theory of apparent authority, we also conclude that a factfinder could infer that the requirements for holding an employer vicariously liable under the doctrine of respondeat superior are met in this case.

(Mike Frisch)

June 16, 2016 | Permalink | Comments (0)

New Jersey Bar Sanctions: No Suspension When Attorney With Prior Discipline Finds New Rules To Violate

An attorney with a record of prior discipline that included failure to supervise an embezzling employee has been censured by the New Jersey Supreme Court.

Notably, the court followed the recommendation of the Disciplinary Review Board, which had rejected the District Ethics Committee's call for a six-month suspension.

In recommending a six-month suspension, the DEC placed great emphasis on respondent’s ethics history -- a reprimand (failure to supervise, negligent misappropriation, commingling, and recordkeeping violations) and a three-month suspension (charging improper expenses, failing to promptly deliver funds, recordkeeping violations and misrepresentations to ethics authorities), finding that his  prior suspensions  had little "impact" on him. However, the earlier cases involve different types of misconduct, from that present here and, therefore, cannot be said that he failed to learn from his prior mistakes.

 The board report reflects the rather sad state of New Jersey attorney ethics

In sum, the totality of respondent’s misconduct in both matters include violations of RP__~C 1.2, RPC 1.3, RPC 1.4(b), RP__C 3.2, RPC 8.4(c), and R. 1:21-IA(3). The only issue left for determination is the proper quantum of discipline. Generally, a misrepresentation to a client requires the imposition of a reprimand. In re Kasdan, 115 N.J. 472, 488 (1989). A reprimand may still be imposed even if the misrepresentation is accompanied by other ethics infractions. (citations to the many disheartening supporting precedents omitted)...

Had this been respondent’s first brush with the ethics system, a reprimand could have been justified. However, his disciplinary history warrants increasing the discipline to a censure.

Member Gallipoli and Member Zmirich voted to impose a sixmonth suspension. Vice Chair Baugh and Member Clark did not participate.

Hey New Jersey lawyers with prior serious discipline. Make sure you find new rules to violate when you have your third brush with New Jersey bar discipline. (Mike Frisch)


June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Not Disbarment Worthy

The Utah Supreme Court vacated a disbarment order while agreeing that the attorney engaged in misconduct meriting a suspension

Mr. Ciardi’s saga began with an incident in the Fifth District Court in 2011, where he was scheduled to appear to represent a client. Mr. Ciardi was not present when the judge called his case, so the judge dismissed it. During the next roll call, Mr. Ciardi interrupted the judge’s calendar and asked the court to recall his case. The judge told Mr. Ciardi not to interrupt his calendar and to sit down. Mr. Ciardi ignored these instructions and continued to argue with the judge. The judge then ordered Mr. Ciardi to leave the courtroom. As a bailiff escorted Mr. Ciardi from the courtroom, he caused a disturbance. Mr. Ciardi continued to yell and make disparaging remarks about the judge in the hallway outside the courtroom.

Mr. Ciardi then went to the clerk’s office and became belligerent with the clerk. The clerk found it necessary to request the assistance of a bailiff to deal with him. The bailiff asked Mr. Ciardi to leave the courthouse numerous times, but he refused and continued to yell at the bailiff and make disparaging remarks about the judge. A second, and then a third, bailiff was called to the clerk’s office, where the incident lasted approximately one hour. Eventually, two bailiffs escorted Mr. Ciardi out of the courthouse while he yelled obscenities at the bailiffs in front of members of the public.

He entered an Alford plea to disorderly conduct but at a bar screening panel hearing

At the hearing, Mr. Ciardi continued to behave badly, making disparaging remarks about the fifth district judge and the court, calling the latter’s proceedings “slipshod, amateurish” and, in the case of appeals from justice courts, “sham appeals.” Mr. Ciardi also expressed his disdain toward the screening panel members and the proceedings before the panel, referring to the hearing as a “complete sham” and a “joke proceeding.” He also repeatedly interrupted witnesses and referred to them as liars and idiots.

The court

We believe that a lengthy suspension, certainly one as long as the two years that have passed since the district court disbarred Mr. Ciardi, is an adequate response to the specific behavior charged and found by the district court. We therefore reinstate Mr. Ciardi’s right to practice law in the State of Utah as of the date of this opinion.

We note that in so holding, we do not take the view that there should be no consequences for Mr. Ciardi’s reckless and offensive allegations of bias, discrimination, and incompetence of Utah judges and Utah courts contained in his pleadings before the district court and this court. Should the OPC deem it advisable, these actions would certainly warrant investigation.

 (Mike Frisch)

June 16, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 15, 2016

But Only If You Pass

The Oklahoma Supreme Court has reinstated an attorney who had resigned, but have required him to pass the bar exam

He had resigned  without any charges pending

Due to personal family reasons, Petitioner voluntarily tendered his resignation from the practice of law to the OBA on June 16, 2006. The OBA approved Petitioner's resignation effective July 6, 2006, pursuant to Article II, Section 3 of the Rules Creating and Controlling the Oklahoma Bar Association.1 At the time of Petitioner's resignation, no disciplinary proceedings or grievances were pending against him. However, Petitioner was administratively suspended for failing to pay $100.00 in CLE late fees prior to the effective date of Petitioner's resignation...

In the ten (10) years since Petitioner's resignation, Petitioner has earned his living working in various employment positions. Relying heavily on his work as an instructor, director, and current paralegal, Petitioner advances those law-related duties as evidence of his competency in the law. While the valuable education Petitioner's students receive is related to the law, teaching paralegal courses to non-attorneys and working as a paralegal does not rise to the level of training and competency expected of Oklahoma practitioners. Similarly, Petitioner's additional evidence of competency-namely, that he regularly reads the Oklahoma Bar Journal, other legal publications, and has taken four hours of CLE (including one hour of legal ethics)-falls short of this Court's exacting standard. Oklahoma practitioners are required to take twelve hours of continuing legal education, including one hour of ethics, every year. See Rule 3, Rules for Mandatory Continuing Legal Education, Okla. Stat. tit. 5, ch. 1, app. 1-B. Yet, to date, Petitioner has only completed four hours since his resignation in 2006. Simply put, Petitioner's extended absence coupled with his failure to maintain competency in the law through OBA approved CLE courses weighs heavily against an affirmative finding in favor of Petitioner's competency.


Petitioner has failed to demonstrate his competency and learning in the law by clear and convincing evidence. In order for Petitioner to demonstrate his competency and learning in the law, Petitioner must retake and successfully pass the Oklahoma Bar Examination. Therefore, Petitioner, Harold Glenn Drain's application for reinstatement is granted contingent upon successful completion of the Oklahoma Bar Examination.

(Mike Frisch)

June 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)

Disbarment In The Side Pocket

An attorney was disbarred by the New York Appellate Division for the First Judicial Department as a result of a felony conviction

Respondent's conviction stems from conduct arising from his activities as the managing partner of Baystar Capital II, L.P. (Baystar), a private investment fund. Baystar primarily made short-term investments but it also invested in several illiquid, difficult-to-value investments, referred to as "side pockets." When these investments were realized, or deemed realized, gains or losses were allocated to investors' capital accounts.

In 2003, Baystar made an $8.4 million "side pocket" investment in Island Fund LLC. By 2006, the Island Fund side pocket investment had generated a return of more than $16 million to Baystar before deductions for expenses and taxes. Without consulting or informing the investors in Baystar, respondent used "a substantial amount" of those funds to invest in other entities, including some in which he had an economic interest. Respondent accounted for such diversions by, inter alia, creating loan notes between the other entities and the Island Fund side pocket. Further, in response to investor inquiries regarding whether Island Fund had made distributions to Baystar, respondent intentionally failed to disclose that such distributions had been made because he did not want investors to question him about his use of the funds. Additionally, respondent admitted that monthly fund updates sent to investors at his direction failed to disclose the monies remitted to Baystar by Island Fund and respondent's use of such funds.

In March 2011, respondent entered into both a deferred prosecution agreement with the U.S. Attorney's Office and a consent judgment with the SEC whereby he agreed to disgorge approximately $12 million and pay a civil fine of $130,000 pursuant to an agreed upon payment schedule. By decision and order of June 20, 2012, respondent was found in civil contempt for failing to comply with the terms of the consent judgment. The court found that, after making some of the agreed upon payments, respondent spent hundreds of thousands of dollars on personal indulgences, including private air travel and vacations (2012 WL 2343668, 2012 US Dist LEXIS 85628 [ND Cal 2012]). By subsequent order, the court appointed a receiver to identify and take control of respondent's assets and income, and to sell those assets to pay down the judgment (2013 WL 4504271, 2013 US Dist LEXIS 118942 [ND Cal 2013]). Respondent's failure to make the required payments under the judgment not only resulted in a contempt finding, but it was deemed a breach of his deferred prosecution agreement and the criminal case against him was allowed to proceed. As noted, respondent plead guilty to wire fraud in that prosecution.

He had failed to report the conviction as required. (Mike Frisch)

June 15, 2016 in Bar Discipline & Process | Permalink | Comments (0)