Thursday, June 14, 2018

Snowball's Chance

Permanent disbarment has been ordered by the Kentucky Supreme Court

In October 2016, Respondent represented Daniel Snowball at a mediation conference regarding Snowball's personal injury claims against several defendants. Upon conclusion of the mediation, Snowball and another plaintiff accepted aggregate settlement payment of $22,500.00, from which $9,166.66 would be paid to Humana Insurance Company to retire its subrogation claim against the defendants.

Defendant, State Farm Insurance Company, agreed to issue a check in the amount of $22,500.00 payable to both Snowball and Respondent. From  that check, Humana's subrogation payment and Respondent's fee were to be deducted. The check was issued in November 2016 and sent to Snowball. Snowball endorsed the check and delivered it to Respondent's legal assistant.

By January 2017, Humana had not been paid, prompting its legal counsel to email Respondent repeatedly seeking payment. After receiving no response, Humana filed a Motion to Enforce Settlement Agreement in Kenton Circuit Court. On January 27, 2017, the Kenton Circuit Court entered an Order to Enforce Settlement, requiring Respondent to pay Humana within fourteen days. Four days later, Respondent sent Humana's counsel an email seeking verification of the payee. Humana responded with the payee information the same day. Neither Snowball nor Humana has yet received their respective portions of the $22,500.00 settlement.

In March 2017, Snowball's new attorney, Todd McMurtry, sent  Respondent a demand for 'Snowball's portion of the $22,500.00 settlement. He also inquired about Humana's subrogation payment. Resporident never responded.

The attorney did not respond to the ensuing charges. (Mike Frisch)

June 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Master Of The Bluegrass

The Kentucky Supreme Court sanctioned a Master Commissioner with a four-year suspension with the last 18 months probated.

During her tenure, Chenault managed the Master Commissioner's bank accounts. Chenault's job duties included paying her own and her staff's salaries from the Master Commissioner's operating account. The Administrative .Office of the Courts (AOC) conducted annual audits of the bank accounts and noticed substantial discrepancies in the audits for 2013 and l2014.

Specifically, Chenault should have paid herself an annual salary of no  more than $58,000; however, in 2013, Chenault exceeded her authorized compensation by $32,663.07, and in 2014, by $27,520.83.

She entered an Alford plea to criminal charges.

Bar Counsel sought disbarment

We have held, "our precedent is crystal clear: we treat criminal financial misconduct by attorneys very seriously; and we have previously found that disbarment was appropriate for numerous attorneys who had committed criminal offenses involving dishonesty in. financial matters." Kentucky Bar Ass'n v. Rorrer, 222 S.W.3d 223, 229 (Ky. 2007). However, we look to the specific facts and circumstances of each case. Of the cases Bar Counsel points us to, we believe that Chenault's case is most like Polk's. Chenault had been the Master Commissioner for more than six years with no evidence of intentional misappropriation of funds prior to 2013. Furthermore, when she became aware of the amount of funds she had misappropriated, she deposited an amount sufficient to pay those funds back in her lawyer's escrow account prior to being ordered to repay the amount. She participated in the disciplinary process and, while providing mitigating circumstances" did not contest  the fact that her conduct violated our ethical rules-unlike Layton. In distinguishing the other cases cited by Bar Counsel, unlike King and Polk, Chenault did not move the Court for disbarment and her Alford plea did not require her to do so.

We also point out that, while we take financial crimes seriously, we have not always held permanent disbarment was the appropriate sanction.

She must satisfy outstanding claim judgment arising from the misconduct prior to reinstatement. (Mike Frisch)

June 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Eroded Trust

Disbarment has been imposed by the New York Appellate Division for the Third Judicial Department

Resulting from her involvement in a scheme to defraud certain mortgage lenders, respondent pleaded guilty in June 2010 to one count of conspiracy to commit mail and wire fraud in violation of 18 USC § 1349 in the United State District Court of the District of Connecticut, and she was sentenced in April 2012 to 366 days in prison with three years of post release supervision. As a result of her conviction, the Superior Court of Connecticut for the Judicial District of Danbury suspended respondent from the practice of law in Connecticut for four years, effective June 3, 2012.

Here

In determining the appropriate discipline in this matter, we take note of the nature of respondent's conduct underlying her conviction (see Matter of Mueller, 131 AD3d 762, 762 [2015]; Matter of Briggs, 120 AD3d at 1523). Specifically, respondent's use of her law license to perpetrate a scheme to defraud mortgage lenders directly implicates the honor and integrity of the profession by eroding the public's trust in attorneys (see Matter of Hernandez, 156 AD3d 1109, 1111 [2017]). Moreover, the severity of her misconduct is evidenced by the amount defrauded from the mortgage lender victims as a result of her actions, which totaled nearly $1 million. We find that the foregoing conduct, coupled with respondent's persistent biennial  registration delinquency that spans the last six reporting periods (see Matter of Nichols, 152 AD3d 1044, 1045 [2017]), warrants significant discipline. Accordingly, we conclude that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent should be disbarred in this state.

(Mike Frisch)

June 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

The Saving Grace Of New Jersey

An attorney's consent to disbarment in the District of Columbia and Maryland (and  disbarment in Pennsylvania) was reduced to virtually nothing by the New Jersey Disciplinary Review Board

Simply put, respondent did not engage in conduct that would constitute knowing misappropriation in New Jersey.

Unlike the District of Columbia, Maryland, and Pennsylvania, in New Jersey, attorneys may place advanced fees in either the attorney trust account or the attorney business account, and there is no requirement that the fees be taken only as they are earned, unless a specific agreement between the attorney and the client requires it.

I'd take no pride in that lawyer-loving rule. We used to have it in D.C. before we wised up about the use of Other People's Money.

The board

There are no aggravating factors for our consideration. In mitigation, this matter marks respondent’s first brush with disciplinary authorities in New Jersey in over twenty-five years at the bar. Therefore, we determine to impose an admonition.

Members Gallipoli and Zmirich voted to impose a reprimand.

The attorney had been suspended on an interim basis in New Jersey.

When an attorney consents to disbarment in D.C., the supporting facts simply are not contained in the affidavit.

This result should encourage misappropriating lawyers to join the New Jersey Bar, quietly consent if they are caught and use this precedent to avoid reciprocal discipline and keep their law license in a haven of lawyer forgiveness.  (Mike Frisch)

June 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Diving Into Misconduct

A report and recommendation of the Ohio Board of Professional Conduct proposes a two-year suspension with 18-months stayed for an attorney's conduct in his representation of his former diving coach.

The coach was a silver medalist in the 1956 Olympics.

The attorney drafted an estate plan for the client and his spouse in 2011. In 2014, the client was diagnosed with dementia and his spouse sought the attorney's assistance with a divorce. He advised her that he could not representation either of them due to the estate plan conflict.

Notwithstanding that, he not only represented him but charged excessive fees, filed a frivolous declaratory judgment action, made a false statement to a tribunal and communicated with the spouse rather than through her counsel.

The board noted that he continued to "equivocate, recast, and justify his conduct.." (Mike Frisch)

June 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Ohio Board Files Discipline Recommendations

From the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct today announced that it has filed 12 disciplinary case reports with the Supreme Court of Ohio.

  • Eleven reports recommend discipline for attorneys charged with professional misconduct.
  • One report recommends discipline for a magistrate who violated the Code of Judicial Conduct.

The parties in each case will have an opportunity to file objections to the Board’s report and recommendation with the Supreme Court. If objections are filed, the case will be scheduled for oral argument. No oral argument is scheduled in reinstatement proceedings, and objections are not permitted in a case submitted upon consideration of a consent to discipline agreement.

Additional information about each case, including the report and recommendation, may be obtained by clicking on the link for each case. Questions regarding pending cases should be directed to the Office of Public Information at 614.387.9250.

Cuyahoga County

Disciplinary Counsel v. Howard Alan Dunn
Supreme Court Case No. 2018-0813
Recommended sanction:  Six-month suspension, stayed

Disciplinary Counsel v. Charles Francis Wochna
Supreme Court Case No. 2018-0814
Recommended sanction: Six-month suspension, stayed

Cleveland Metropolitan Bar Association v. Jennifer Ellen Wintner (consent-to-discipline)
Supreme Court Case No. 2018-0810
Recommended sanction: One-year suspension, stayed

Erie County

Erie-Huron County Bar Association v. Robert Zelvy
Supreme Court Case No. 2018-0812
Recommended sanction: Six-month suspension, stayed

Franklin County

Disciplinary Counsel v. Phillip Louis Harmon
Supreme Court Case No. 2018-0817
Recommended sanction: Two-year suspension, 18 months stayed

Disciplinary Counsel v. Magistrate Marla R. Holben
Supreme Court Case No. 2018-0816
Recommended sanction: Public reprimand

Jefferson County

Disciplinary Counsel v. Michael J. Marshall
Supreme Court Case No. 2018-0809
Recommendation: Indefinite suspension

Licking County

Disciplinary Counsel v. Stephen Wallace Barns
Supreme Court Case No. 2018-0823
Recommended sanction: Public reprimand

Lucas County

Disciplinary Counsel v. Thomas Daniel Pigott
Supreme Court Case No. 2018-0815
Recommended sanction: Six-month suspension

Portage and Summit Counties

Disciplinary Counsel v. Thomas Charles Holmes and Ashleigh Brie Kerr (consent-to-discipline)
Supreme Court Case No. 2018-0818
Recommended sanction: Six-month suspension, stayed, for each respondent

Stark County

Disciplinary Counsel v. John David Clark (consent-to-discipline)
Supreme Court Case No. 2018-0808
Recommended sanction: Six-month suspension, stayed

Wood County

Wood County Bar Association v. Sarah Ann Miller Driftmyer
Supreme Court Case No. 2018-0811
Recommendation: Six-month suspension, stayed

(Mike Frisch)

June 14, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Wednesday, June 13, 2018

No Testing Accomodation

The Minnesota Supreme Court has revoked a conditional readmission of an attorney who was suspended for a minimum of 30 days in 2017.

He was required by the court to pass the professional responsibility portion of the state bar examination within one year and twice failed to pass the MPRE.

He then moved for an extension "because he was unable to adequately prepare for the Match 2018 MPRE due to pressing family obligations that required him to travel out of the country during the winter before the exam and the time it took him to prepare for and attend a sentencing hearing that was scheduled 2 days before the exam."

The Director of the Office of Lawyer Professional Responsibility opposed the request.

The court notes that such requests have been "routinely denied."

He may reapply when he passes.  (Mike Frisch)

June 13, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Monday, June 11, 2018

Pork Chop Hill

An attorney convicted of criminal solicitation relating to gambling devices was suspended for one year by the Pennsylvania Supreme Court.

TribLive reported on the story

The liquor-law attorney who worked with former State Rep. Marc Gergely to convince business owners to participate in an illegal gambling-machine ring has had his law license suspended by the state, the Pennsylvania Supreme Court announced Friday.

Louis F. Caputo's license was temporarily suspended following his conviction on one count of criminal solicitation related to gambling devices. Caputo and Gergely both pleaded guilty in August .

Because of the criminal conviction, the Disciplinary Board of the Supreme Court of Pennsylvania placed Caputo's license on temporary suspension pending a hearing and final decision from the disciplinary board. He can't take any new clients, but will have up to 30 days to wrap up or pass off any cases he was currently working on. Getting the court to reinstate his license could take years of proving his worthiness to be readmitted to practice.

Caputo referred questions to his attorney Craig Simpson, who said the temporary suspension was typical of such cases.

“We're not going to challenge the interim suspension; we'll let the process play out,” Simpson said.

In wiretapped phone calls Ronald “Porky” Melocchi had described Gergely and Caputo as his “Super PAC,” helping him identify opponents and persuade potential customers to buy illegal video-gambling machines from Melocchi's Glassport business. According to the grand jury presentment against Gergely, Caputo, 40, of Peters allegedly used connections and sources within the Bureau of Liquor Control Enforcement to identify someone who'd been reporting one of Melocchi's customers' machines, then he and Gergely took that information to the business owner to convince her to buy back in.

Melocchi's business was raided in “Operation Pork Chop” in 2013 and he pleaded guilty in 2014. He is serving 10 years on probation. Caputo was sentenced to five years of probation; Gergely resigned Nov. 6 and is awaiting sentencing on one count of conspiracy to operate illegal gambling devices and accepting illegal campaign contributions, both misdemeanors.

The suspension was imposed nunc pro tunc to December 2017. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Side Switching, Other Misconduct, Draws Suspension

The Pennsylvania Supreme Court has imposed a suspension of one year based on an attorney's consent to discipline.

One count involved the attorney's representation of a complainant who had alleged that she was the victim of a sexual assault at Swarthmore College. The attorney reached out to her and another student activist.

The complainant responded "I hire you!" and they engaged in extensive communications on Facebook, through 41 emails and other contacts. He assured her that their communications were confidential. .

The attorney assisted her and a number of other Swarthmore students in drafting a class complaint filed with the Department of Education Office of Civil Rights.

ThinkProgress reported on the OCR complaint. Inside Higher Education noted Swarthmore's response. 

One of the other students bringing the class complaint was Jane Doe (complainant #7) who alleged that Juan Doe had sexually assaulted her on September 10, 2011.

The complainant terminated the attorney by email in June 2013.

In 2015, he filed a civil action on behalf of Juan Doe in a federal district court against Swarthmore. He used extensive  information provided in confidence by the complainant in a section of the lawsuit captioned

The Angry Feminist Cabal Within Swarthmore's OCR And Cleary Complaint Against Juan

The complaint alleged that Jane Doe's accusations were false and made a number of statements harshly critical of the complainant (called student activist #1 in the complaint).

The federal court ordered disqualification as the matter was the same or substantially related to his prior representation of complainant and Jane Doe. 

He made misrepresentation to the Office of Disciplinary Counsel in response to the complaint by stating that the judge had found no conflict.

He also admitted misconduct in unrelated matters involving his representation of his mother.

Editor's note: I mistakenly added a day to the suspension. In Pennsylvania, an attorney suspended for more than a year must petition for reinstatement. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Very Very

An uncivil Canadian? 

Prince Albert Now has this report on recent discipline imposed by the Saskatchewan Law Society.

Interactions with a Crown prosecutor have landed a Prince Albert defence lawyer a hefty fine.

The Law Society launched an investigation into Dale Norman Blenner-Hassett on Feb. 16, 2015 following a letter alleging “a variety of misconduct,” filed by a Crown prosecutor referred to as “S.V” according to a decision published on May 30, 2018. The defence lawyer is facing a $2,500 fine, and paid $1,050 in legal fees after being found guilty of conduct unbecoming of a lawyer.

“It is an understatement to say the two did not have a positive working relationship,” the decision read.

A letter dated Oct. 27, 2014 sent to S.V. regarding a particular criminal client included a number of misstatements, accusations and innuendo according to the statement of facts. Blenner-Hassett’s letter alleged S.V. was aware of and even condoned police mistreatment of one of his clients.

In a letter sent Oct. 29, 2014 S.V. recommended Blenner-Hassett forward his concerns to the police commission. In response, on Nov. 4, 2014 the defence lawyer said her response was “woefully inadequate,” and alleged police officers reported directly to the Crown prosecutor.

“The Member stated that ‘these officers are under your supervision and management during this period certainly, they and you must be held accountable,’” the statement of facts read. “The member stated that S.V.’s conduct may be examined ‘using other avenues.’”

Blenner-Hassett acknowledged his comments in the letters dated Oct. 27, Nov. 4 and Nov. 17 of 2014 “exhibit an intemperate tone and go beyond zealous advocacy.”

The defence lawyer admitted the comments he made were unnecessary and inappropriate personal attacks on a fellow law society member according to the decision.

Further, on March 23, 2015, Blenner-Hassett left a voicemail message on the answering machine of a prospective employer of S.V., referred to as “W.S.” in the decision.

“In the voicemail the Member spoke negatively about [the Crown prosecutor], saying S.V. is ‘very unethical, very adversarial, very sharp, very dishonest… very mean, very nasty… outright lying in certain cases,’” the decision read, and added Blenner-Hassett said a “serious complaint” was filed against S.V.

The alleged serious complaint against the Crown prosecutor was investigated and warranted no further action by the law society.

“These comments were not made within confines of a heated litigation matter,” the decision read regarding the voicemail. “Rather, they were a calculated attempt to damage the reputation of S.V. and impact her employability.”

While Blenner-Hassett accepted responsibility for the voicemail, and expressed remorse, the law society’s decision noted he tried to “obfuscate and deflect blame.”

The decision handed down on May 30, 2018 stated this wasn’t Blenner-Hassett’s first time in hot water.

In May of 2009, the defence lawyer was involved in an informal conduct review, regarding more inappropriate and abusive correspondence to an unrepresented litigant, identified as L.B.

Almost five years later, in February of 2014, Blenner-Hassett was involved in a formal disciplinary hearing regarding other communications with another lawyer, who was representing the litigant who was part of the informal conduct review in 2009. The defence lawyer agreed to forgo civil defamation proceedings in exchange for the withdrawal of a complaint to the law society.

(Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Second Censure For Wyoming Attorney

The Wyoming Supreme Court has rejected a proposed censure by its Board of Professional Responsibility in favor of a 30-day suspension

Mr. Hiatt has been licensed to practice law in Wyoming since 1998, and he maintains a law practice in Rock Springs, Wyoming. This matter arises from his representation of Kyle Dudzik, who contacted Mr. Hiatt in early February 2016 regarding his desire to obtain custody of his son. On March 2, 2016, Mr. Hiatt entered an attorneyclient relationship with Mr. Dudzik. They executed an Attorney-Client Fee Agreement under which Mr. Hiatt agreed to perform the work for a $3,000.00 “non-refundable flat fee.” The agreement provided that Mr. Dudzik would “pay $250.00 per week by Friday of each week, until the $3000.00 BALANCE IS PAID IN FULL.” Mr. Dudzik fell behind in his payments and ultimately paid the balance due after Mr. Hiatt threatened to withdraw from the case.

There were several violations including Rule 1.5

Mr. Hiatt agreed to represent Mr. Dudzik for a “non-refundable flat fee in the amount of $3000.00.” While the fee does not appear to be unreasonable on its face, we make our determination of whether the fee was reasonable by applying the factors above, and we conclude that it was not...

Mr. Hiatt charged Mr. Dudzik a “non-refundable flat fee in the amount of $3000.00.” Mr. Hiatt performed very little work to earn that fee. Despite the “nonrefundable” contract provision, Mr. Hiatt had a continuing duty to charge a reasonable fee and to earn that fee. Because his representation of Mr. Dudzik was terminated before the matter was resolved, and because very little progress had been made in the matter when representation was terminated, we conclude that the full fee of $3,000 fee was unreasonable. However, we agree with the BPR that he did earn a portion of that fee. Based upon Mr. Hiatt’s testimony regarding the time he spent on the case and the work  that was actually done, we agree with the BPR that $1,850, or approximately two-thirds of the flat fee, would have been reasonable for the work performed.

A 2016 censure influenced the result

Despite receiving a public censure for nearly identical conduct in the past, Mr. Hiatt failed to adequately communicate with his client and keep him apprised of the status of his case; he failed to perform the work for which he was hired, which caused a delay that likely harmed his client; and, finally, once representation was terminated, he failed to return the unearned portion of his fee.

(Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

A Lot Of Money For A Country Lawyer: A "Professional Criminal"

An attorney who pleaded guilty to theft had his attacks on his sentence rejected by the Tennessee Supreme Court

At all times described herein, [the Defendant] was an attorney licensed to practice law in the State of Tennessee, that he was acting in that capacity when he received money from and/or on behalf of his clients who are the victims identified in [C]ounts 1 through 6 of the [i]ndictment.

[The Defendant] admitted his unlawful conduct before the Board of Professional Responsibility, and he has been disbarred as of October 3, 2016, by Order of the Tennessee Supreme Court...

The State did not file notice of any enhancement factors prior to the June 27, 2017 sentencing hearing. However, at the sentencing hearing, several victims provided impact statements. The State read into the record a letter from Kelly Ray, a representative of the Estate of Lois Faile. Ms. Ray stated she was humiliated and embarrassed and that the Defendant “preyed on the weak.” She stated, “Unfortunately, I cannot change the past, but the [c]ourt can rectify the past by issuing a sentence that involves prison time.”

Here

Here, although the Defendant has a consistent record of employment, the trial court found that the Defendant’s six thefts between 2009 and 2015 totaled nearly  $500,000, which “is a lot of money for a country lawyer and amounts to a ‘major source of livelihood’ for at least six years.” During his allocution, the Defendant stated that he “took funds [he] shouldn’t have” because his “family began to have financial problems.” This admission supports the trial court’s finding that the Defendant used the stolen funds as a “major source of livelihood” and was therefore a “professional criminal.”

...the evidence does not preponderate against the trial court’s finding that the Defendant had an extensive record of criminal activity because he committed numerous acts of theft over several years. Therefore, the imposition of consecutive sentences was proper.

Conclusion

the trial court acted within its discretion in applying the sentencing factors, imposing consecutive sentences, and denying alternative sentencing. The trial court imposed an in-range sentence for a standard offender. The record shows that the trial court stated its reasons for imposing mid-range sentences, followed the statutory sentencing procedure, made findings of fact that are adequately supported in the record, and gave due considerations to the relevant sentencing principles. The trial court sentenced the Defendant to an effective fourteen-year sentence for his six convictions for theft, a sentence consistent with the purposes and principles of sentencing and within the appropriate range. Based on our review, we conclude that the trial court did not abuse its discretion in ordering mid-range sentences within the applicable range, nor did it “wholly depart” from the purposes and principles of sentencing. Therefore, the judgments of the trial court are affirmed.

The Knoxville News Sentinel reported that he was a city court judge.

He was disbarred in a series of court orders.  Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Relativity

Ohio Disciplinary Counsel has filed charges of misconduct against an attorney in a large number of client matters.

The charged attorney has other issues.

The Journal News reported last August

An area attorney will appear in court today as a defendant being arraigned on a felony charge.

William Matthew Tinch, 35, is slated to have a video arraignment on a charge of burglary at 3 p.m. today in Franklin Municipal Court.

MORE: Attorney arrested for allegedly breaking into relative’s home

Tinch was arrested Friday and has been held in the Warren County Jail under a $100,000 cash-only bond. The charge is a second-degree felony.

Franklin police said Tinch allegedly broke into a relative’s Franklin home early Friday morning and accessed a computer leading to his arrest for burglary.

According to police, Linda Crawford, Tinch’s mother-in-law, called police Friday afternoon and reported the basement door of her Oxford Drive residence had been forced open overnight.

“Subsequent investigation found that the victim’s son-in-law, William M. Tinch, entered the residence without permission on today’s date at 3:53 a.m. While inside the house, Tinch accessed the victim’s personal computer and typed a message to the victim,” according to the police report.

Tinch is an attorney for Tinch Law, 301 N. Breiel Blvd. in Middletown, according to the Supreme Court of Ohio and Ohio Judicial System. The website shows no discipline or sanction history for Tinch.

He entered a treatment program shortly after the arrest.

The victim’s family consented for Tinch to enter the treatment program, according to [Judge] Ruppert.

Ruppert said the city prosecutor and Tinch’s lawyer will discuss whether to pursue the felony charge or have it reduced to a misdemeanor after he completes the program and how well he does in the program and how the family feels at that time.

Tinch was released on a $100,000 bond following his video arraignment last week. As a condition of his release, Tinch was ordered to stay 50 yards from his relative’s home on the southwest corner of Miami Avenue and Park Avenue.

He is  suspended on an interim basis. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

According To Hoyle

An answer has been filed to a two-count complaint filed by the North Carolina State Bar.

Count One alleges that the attorney had filed a Designation of Secured Leave for a time period that covered an October 11, 2013 trial date in a criminal matter.

The notice provides

I hereby certify that the secure leave period designated below is not being designated for the purpose of delaying, hindering or interfering with the timely disposition of any matter in any pending action or proceeding.

I further certify that no action or proceeding in which I have entered an appearance has been scheduled, peremptorily set or noticed for trial, hearing, deposition or other proceeding during the designated secure leave period.

He had a trial scheduled in the designated leave period.

He moved for a continuance on October 11 and the State Bar alleged that the designation was false.

Count Two alleges that he acted without authority of a purported client who had been subject to a bail forfeiture after the bail company referred the matter to him.

Bail companies are prohibited by statute from such referrals.

His answer is interesting.

His reason for the designation and continuance was an inadvertent error made without intent to deceive

every year since 1982, [defendant] and a group of friends have taken a Thursday-Sunday golf trip to Myrtle Beach on, usually, the second or third weekend of October...the existence and timing of this annual event are well known to attorneys in the District Attorney's Office, even to the extent that individual ADAs have on occasion reminded him of it when they calendar cases with him.

He alleges that the continuance motion was "so commonplace" that his secretary created it and affixed his rubber stamp signature. He would have stated "annual golf trip" if he had created it himself. 

As to Count Two, he states that he spoke with a client representative that he believed was authorized to speak for the client and did not know the referral was improper. (Mike Frisch)

June 11, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Sunday, June 10, 2018

Sanction Increased For Partner Misappropriation

The Tennessee Supreme Court raised the sanction a bar discipline matter

The appellee, Charles Edward Daniel, a Knoxville lawyer, received his license to practice law in 1991 following his fifteen-year career in law enforcement positions, including a position with the Internal Revenue Service criminal division. From 1991 to mid-2002, Mr. Daniel worked as a solo practitioner, handling mostly workers’ compensation and personal injury cases. In mid-2002 Mr. Daniel and attorney Mike Pemberton formed the law partnership of Daniel Pemberton (the “Partnership”). Mr. Pemberton came to this partnership from another Knoxville law firm where he had served for a time as managing partner. Mr. Daniel and Mr. Pemberton never had a written partnership agreement, and they did not observe formalities in managing the Partnership, including not formalizing any written agreement about how compensation would be handled for cases brought into the Partnership at its inception or how expense advances by any partner would be reimbursed.

Not a good situation when the partnership ends

The Partnership broke up in late 2009 or early 2010. After Mr. Daniel left, another partner, Dana Scott Pemberton, the wife of Mr. Pemberton, took over his financial oversight responsibilities, and QuickBooks had been installed on her computer by January 2010. Mrs. Pemberton soon discovered that from 2006 to 2009, Mr. Daniel had, on several occasions, deposited client settlement checks into the Partnership’s trust account and then written three checks on that account—one payable to the client and two payable to the Partnership. He would then deposit one of the checks payable to the Partnership into the Partnership’s operating account and deposit the second check payable to the Partnership into his own personal account.

As a result

In May 2010, the Pembertons reported these suspicious transactions to the Board of Professional Responsibility. The Board first contacted Mr. Daniel about the allegations on June 22, 2010. Meanwhile, civil litigation was initiated to dissolve the Partnership and divide its assets. The parties reached a confidential settlement of the civil litigation in July 2011.

After charges were filed in May 2014

The Board alleged that he had “willfully and knowingly engaged in a course of conduct whereby he embezzled money from the [P]artnership, misappropriated [P]artnership funds and falsified records in order to conceal his illicit activities.” The Board asserted that Mr. Daniel’s conduct violated subsections (b) and (c) of RPC 8.4

He claimed entitlement to reimbursements

Before the Hearing Panel, Mr. Daniel testified that, for a significant time after the Partnership’s formation, he had advanced funds as needed to cover all of the Partnership’s operating expenses, including compensation for the attorneys and support staff. Mr. Daniel testified that he had kept a handwritten ledger on a yellow legal pad of the amounts he had advanced the Partnership and the amounts he had reimbursed himself for these advances. By the time of the hearing Mr. Daniel had lost this legal pad, however, so it was not submitted into evidence before the Hearing Panel.

Key findings

The Panel finds that Respondent did not make the other partners of the Partnership aware of what he was doing. The Panel finds that the manner in which Respondent repaid himself money to which he thought he was owed was conducted in a way to conceal his actions from his other partners. The Panel finds that Respondent wrongfully took money from the Partnership.

...the Hearing Panel stated that “although the Panel finds that [Mr. Daniel] intended to permanently deprive his partners of the funds that he misappropriated from the Partnership, he did so based upon his sincere belief that these funds were owed to him from the Partnership.” The Hearing Panel then sanctioned Mr. Daniel to a three year suspension but ordered the entire suspension served on probation.

The Board appealed

the Chancery Court concluded that, even construing the Hearing Panel’s judgment as including findings “that equate to criminal intent,” given the multiple mitigating factors, the Hearing Panel did not abuse its discretion by imposing a sanction of suspension with complete probation rather than disbarment.

The court disagreed

In summary, the Hearing Panel failed to find an applicable aggravating factor, the vulnerability of Mr. Daniel’s law partner victims, and the sanction imposed by the Hearing Panel, probating the entire three-year suspension, is out of line with the sanctions in comparable cases. Other than noting that the parties’ civil litigation settlement removed the need for restitution as a probation condition, the Hearing Panel also gave no explanation for why it decided to probate Mr. Daniel’s entire period of suspension. Nor did the Hearing Panel impose any conditions, probation monitoring, or supervision of Mr. Daniel during the probationary period. See Tenn. Sup. Ct. R. 9, § 8.5 (currently Tenn. Sup. Ct. R. 9, § 14) (“Probation shall be used only in cases where there is little likelihood that the respondent will harm the public during the period of rehabilitation and where the conditions of probation can be adequately supervised.”). For all the foregoing reasons, we conclude that the Hearing Panel acted arbitrarily and capriciously by probating the entirety of Mr. Daniel’s suspension.

Thus, to attain an appropriate sanction, comparable to sanctions imposed in other similar cases and reflecting the aggravating and mitigating factors, we modify Mr. Daniel’s three-year suspension to include one year of active suspension followed by probation for the remainder of the suspension.

Knox News reported on the decision.

Daniel left the firm in 2010 after eight years of partnership to open a solo practice, and his former partners discovered the missing money soon afterward. Daniel said the partnership soured over division of a cash settlement he won for the family of Jennifer Hampton, a 21-year-old former homecoming queen from Waterloo, Ala., raped and killed in 2008 by an undocumented immigrant at a West Knoxville motel where the immigrant worked.

(Mike Frisch)

June 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

After The Flood

An 18 month suspension has been ordered by the Virgin Islands Supreme Court for an attorney's mishandling of an estate

In this case, Maynard violated his duty of competence on each of these grounds. Maynard testified that he did not maintain a separate trust account for the Bender estate, failed to file quarterly accounts with the Superior Court on behalf of the Bender estate as required by the Virgin Islands Code, and failed to distribute the estate’s assets to its beneficiaries. Moreover, the record reveals multiple lengthy delays, from 1996 to 2000, then from 2000 to 2006, and then again from 2006 until 2010, and Maynard testified that the estate still remains open. Maynard’s defense that his associates handled the Bender estate is unavailing because Maynard possessed a duty to supervise those associates, and is therefore accountable for their shortcomings. See V.I. S. CT. R.211.5.1. Accordingly, we agree with the panel’s conclusion that clear and convincing evidence demonstrates that Maynard violated Supreme Court Rule 211.1.1 in his handling of the Bender estate.

The court rejected findings of fee misconduct but sustained findings he had failed to safekeep property

The Board concluded that Maynard violated Rule 211.1.15 because Bender’s safety deposit box was never located and is presumed lost, because one of the three savings accounts is missing and the other two were never distributed to the estate’s beneficiaries, because the life insurance policies were never distributed to the estate’s beneficiaries, and because no records were kept with respect to disbursements of the proceeds from the Hurricane Hugo insurance litigation. Maynard claims he did not violate Rule 211.1.15 because he, “personally, has never received any assets belonging to the Estate that he did not promptly inform the probate court of or distribute to the clients.” Maynard further argues that the original stock certificates used to prepare the final accounting were destroyed when the bottom floor of Maynard’s office flooded...

Here, Maynard’s behavior evidences repeated violations of his duty under Rule 211.1.15. Contrary to the guidelines provided by the Rules, Maynard testified that he kept original stock certificates belonging to the estate in the downstairs portion of his office, and that as a result, flooding from Hurricane Marilyn destroyed those certificates. Additionally, Maynard failed to account for, and ultimately, to distribute either the proceeds from the VA life insurance policy, or the contents of the safety deposit box. Further, Maynard testified that he incrementally distributed all of the proceeds from the Hurricane Hugo insurance litigation to Thomas Sheridan, thereby evidencing that Prince did not receive a single dollar of those settlement proceeds, despite the Superior Court’s February 12, 1993 order that the precedes be distributed “to the personal representatives” of the Bender estate jointly.

Sanction

Considering the important nature of the duties violated, Maynard’s clear negligence in discharging those duties, and the substantial financial injuries suffered by the beneficiaries as a result of those violations, we agree with the Board that suspension represents the appropriate sanction in this case, rather than reprimand as Maynard contends.we conclude that Maynard should be suspended from the practice of law for a total period of eighteen months. Indeed, this case presents a picture of a highly experienced, reputable attorney who nevertheless engaged in a pattern of egregious neglect that ultimately resulted in losses to his client—not just of cash, but of personal property that should have passed from Bender to the beneficiaries of her estate. However, in light of our existing precedent, we conclude that suspension for a period of six, as opposed to twelve months is the appropriate baseline sanction...

 Maynard violated his duties under Supreme Court Rules 211.1.1, 211.1.3, 211.1.4, 211.1.15, and 211.8.1 by, among other things, permitting the probate of an estate to languish for over a decade, failing to communicate with Prince with respect to the liquidation of certain securities, and by failing to keep safe certain property of that estate. Maynard’s lethargic attitude toward the administration of the Bender estate not only significantly delayed the beneficiaries’ receipt of certain assets, it wholly precluded them from receiving other assets, which were lost due to the passage of time and Maynard’s generally negligent handling of the Bender estate. Accordingly, we order Maynard to pay restitution to the beneficiaries of the Bender estate in the amount of $29,269.85, representing the value of the assets lost due to his negligence, and we suspend Maynard from the practice of law in this jurisdiction for a period of eighteen months.

(Mike Frisch)

June 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

No Rule 4.3 Violation In Dealings With Opposing Party

The Maine Supreme Judicial Court imposed a public reprimand of an attorney for conduct in the course of representing a client 

The violations of the Maine Rules of Professional Conduct that are alleged arose out of events that occurred before and during a hearing that occurred before a magistrate at the Skowhegan District Court on March 9, 2015. That proceeding related to a petition for determination of paternity and assessment of child support obligations filed against Shusta's client by the Maine Department of Health and Human Services, FM-2014-00126, and a separate petition for determination of parental rights and responsibilities filed by Shusta on behalf of his client, the father of the child, against the mother of the child, FM-2015-0003.

At all times relevant to the ethics complaint, the mother was not represented. The mother was appointed counsel after she filed a petition for termination of the father's parental rights following the District Court hearing.

At some time prior to the District Court hearing date, Shusta, acting on behalf of the father, contacted the mother to explore the possibility of negotiating an agreement in the parental rights matter. The outlines of the proposed agreement were that (i) the mother would have sole parental rights and responsibilities for the child, (ii) the father would have no contact with or responsibility for the child, (iii) the father would pay retroactive child support for the child in an amount determined in the proceeding initiated by the Department of Health and Human Services until the parental rights and responsibilities order and a concurrent order terminating the father's parental rights were entered, and (iv) the mother would initiate a termination of parental rights proceeding that would be agreed to by the father. The object of the termination of parental rights and responsibilities proceeding would be to end any of the father's obligations toward or responsibilities for the child.

Significantly the court squarely rejected a Rule 4.3 violation

In domestic relations matters, many parties are unrepresented. And in many cases, as in this case, one party is represented and the other party may not be represented. In such circumstances, experience indicates that the attorney for the represented party often speaks with the unrepresented party about the substance of the case with an eye towards resolution of the matter without a full trial. There is no ethical violation in such contact. Such contact is encouraged by court processes in domestic relations matters with the hope of avoiding trauma to children by promoting resolution of cases by agreement without contested hearings. When, as here, agreements are reached in preliminary proceedings, magistrates are authorized to "enter agreements on the record at the conference." M.R. Civ. P. 110A(b)(1).

Such discussions and negotiations occur in all types of cases, including cases where determination of child support may be an issue. Sometimes, there may even be a partial unity of interest between the represented party and the unrepresented party. The unrepresented party may be desirous of having sole parental rights to the child, with the represented party having no participation in the unrepresented party's life or the child's life. Or, as here, the unrepresented party with the child may have no personal interest in collecting child support benefits from the represented party because the child support benefits would actually be paid to the Department. In such circumstances, it is neither unusual nor unethical for the attorney of the represented party to draft documents for the parties to sign to memorialize and implement agreements the parties have reached with regard to parental rights and responsibilities and child support.

In the child support collection case, the Department certainly had an interest adverse to both the mother and the father, because it wanted to continue to collect child support payments from the father to offset the payments that the State was making to the mother to support the child. However, this adverse interest does not create the type of conflict of interest between the represented father and the unrepresented mother that would make the father's attorney's dealings with the mother an ethical violation. In this proceeding, Shusta has been sanctioned based on the Grievance Commission's finding that he had misrepresented to the court the Department's position regarding the proposed settlement of the case. However, Shusta's dealings with the Department do not implicate Rule 4.3.

Thus, in the circumstances, the father's attorney's communications with the mother, his development of documents to implement their settlement agreement, and his drafting of a private termination of parental rights petition for the mother to file with the father's agreement, did not constitute a violation of Rule 4.3 or any other rule of ethics.

Any opinion suggesting that contact and drafting agreements between an attorney representing a party in a domestic relations matter and an unrepresented party in the same matter is an ethical violation could seriously complicate the processing of domestic relations cases. Such contacts must occur with the hope that, as occurred here, a domestic relations case can be resolved by agreements negotiated between the parties without the delay, cost and trauma to the child that result from fully contested proceedings. It must be noted also, that, beyond the contacts between the father's attorney and the mother, extra protection was provided by the fact that the trial court made an independent inquiry of the mother and the father about their understanding of the settlement agreement, and its implications and only indicated the court's approval of the represented terms of the settlement agreement after the court made its own inquiry of the parties. The Court concludes as a matter of law that the Grievance Commission erred in determining that the contact between the father's attorney and the mother, including the drafting of documents, where the court then made inquiry of both parties regarding their understanding of the settlement agreement, amounted to an ethical violation. Accordingly, the Grievance Commission's conclusion that Rule 4.3 was violated is vacated.

The violations

Considering what is left, the determination that Rule 3.3(a)(l) (Candor Toward the Tribunal) had been violated, the Court determines that appropriate sanction, in the circumstances, is a public reprimand. The Court determines that a period of probation, as ordered by the Grievance Commission after finding violations of both Rule 3.3 and Rule 4.3, is not merited. Testimony from the magistrate at the Grievance Commission hearing indicated considerable experience with Attorney Shusta and no indication of any significant problem with misrepresentation of matters to tribunals. Accordingly, a term of probation could add considerable cost and difficulty to an attorney's practice and is not warranted when there is no demonstrated problem that would be significantly resolved with a period of probation.

(Mike Frisch)

June 10, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Saturday, June 9, 2018

More On Discovery In Bar Discipline

How should discovery work in bar discipline proceedings?

That question was raised in a case I prosecuted involving an attorney named David L. Herndon. 

A native of Springfield, Illinois, he claimed kinship to attorney William Herndon of the Lincoln & Herndon law firm. 

In Herndon, the court rejected an asserted violation of his discovery rights

 Our review of the record of the disciplinary proceedings illustrates that the Hearing Committee permitted Herndon "reasonable discovery" under any tenable definition of that term. At a pre-hearing conference, Herndon presented his request for production of documents from [former client/complainant] MCC. After reviewing the request, Bar Counsel asked the Hearing Committee to limit the scope of the request, stating that "it obviously [is] a request for every document that this corporation has engendered during its history." The Hearing Committee Chairman, after hearing arguments by the parties, granted the portion of Herndon's discovery request for the production of documents to or from him and all checks made payable to him, documents relating to any communications between MCC and him, and documents supporting the allegations made by MCC in a memorandum dated April 5, 1988 to MCC's attorney, Gins, including records showing bills received and payments made to the various vendors.

The Chairman, however, denied Herndon's request for documents relating to the hiring and firing of MCC's accountants, documents relating to hiring and firing of MCC's outside consultants, documents showing MCC's financial status and documents *597 used in the preparation thereof, and documents relating to MCC's suppliers and customers, finding that Herndon had failed to demonstrate a compelling need by failing to "tie those requests into specific allegations of the Complaint and your Answer to the Complaint."[6] Nevertheless, the Chairman held "that to the extent Bar Counsel looks at additional documents [of MCC], it would seem proper that you be provided with an opportunity to examine those documents as well."

The Chairman also made clear at the prehearing conference that additional discovery would be allowed if "further need for additional documents emerges that are clearly related to the issues that are framed." After the first day of the hearing, the Chairman again reminded Herndon of the committee's earlier position with respect to his discovery request:

If documents turn up to which you have not had an opportunity to respond or deal with and which appear to be material and pertinent to your defense, and if further proceedings are necessary, we're going to hold them. So that we're going to see to it, as I've said before, that to the extent I as the Chair and the Committee understands the case and to the extent the Committee appreciates the relevance and the materiality and compelling need for these documents, we will not close the record until you have had an opportunity to respond to them at some point.

Several days later at the next hearing date, Herndon made a motion for contempt for MCC's failure to comply with discovery. Bar Counsel asserted that there had been substantial compliance with the discovery requests, indicating that nineteen documents had been produced before the hearing, that three vendor files had been produced pursuant to the Chairman's ruling from the first day of the hearing, that the Washington Post vendor file had not been produced because Herndon never returned it to MCC after MCC had given it to him, and that a checkbook and checkstubs for the relevant time frame had been produced. Finding compliance with the discovery request, the Chairman denied Herndon's motion. Thereafter, Herndon announced his intention to leave the proceedings and did so after the Chairman informed him that the hearing would continue even if he chose to leave. Herndon's voluntary absence from the proceedings foreclosed the possibility that the Chairman would award additional discovery to Herndon pursuant to his earlier ruling.

The Hearing Committee Chairman did not deny Herndon reasonable discovery by partially denying his request for production of these documents. Herndon's request for documents was sweeping in nature, covering virtually every document in MCC's files. Cf. Premium Serv. Corp., supra, 511 F.2d at 229; In re Electric Weld Steel Tubing Antitrust Litigation, 512 F. Supp. 81, 84 (N.D.Ill.1981). In light of MCC's status as a non-party, the Chairman acted reasonably in determining that Herndon's need for the excluded documents did not "sufficiently outweigh the burden and invasion of corporate privacy" which would have resulted to MCC. See Premium Serv. Corp., supra, 511 F.2d at 229; Hecht, supra, 46 F.R.D. at 607. Thus, we are satisfied that the Hearing Committee complied with the discovery requirements of Rule XI, § 8(f).

Authored by Associate Judge James Belson, joined by Associate Judge John Steadman and Michael Farrell. What a privilege it was to appear before them. 

In Maryland, once charges are filed, the civil discovery rules apply. (Mike Frisch)

June 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Baptism Of Fire

A motion for discovery was dismissed by the Tribunal Hearing Division of the Upper Canada Law Society

The respondent had an on and off relationship with Complainant A, and she is the mother of his child. The Notice of Application alleges that he attempted to intimidate her in the Law Society’s investigation of her complaint against him by threatening to file a professional discipline complaint against her with the College of Nurses if she did not withdraw her complaint against him to the Law Society. The Law Society also alleges that Mr. Fuhgeh engaged in a pattern of vexatious and harassing conduct towards the complainant in the course of their family law dispute to influence that litigation. Two aspects of his alleged harassment are: (a) filing an unfounded professional discipline complaint against Complainant A with the College of Nurses alleging that she had certain health issues; and (b) writing a letter to an Ottawa church about their son alleging that Complainant A was malicious and dishonest in actions relating to the son’s baptism.

Mr. Fuhgeh seeks: detailed medical records from Complainant A; communications between Complainant A and her family and the church; and information about whether their son was baptized, which was a subject of his letter to the church.

Mr. Fuhgeh argues that the medical information would help show that the complaint he made about Complainant A to the College of Nurses was true and well-founded, and that the information about the baptism and communications with the church would show that his comments in the letter were true. He says that the issues in this part of the case are fundamentally about credibility and reliability and that the documents he seeks would assist him in proving that what he says is true, and that what Complainant A says is false.

What is at issue in this professional discipline case before the Law Society Tribunal, however, is whether Mr. Fuhgeh’s actions were conduct unbecoming in light of what he knew at the time. Whether he can now show that what he alleged was in fact true is not likely relevant to whether his actions were harassment and/or an improper attempt to influence the court process. The key issue is the reasonableness of what Mr. Fuhgeh did and his own state of mind, not what his former partner did. The complainant’s credibility will be tested at the hearing through cross-examination, if she is called, on the key issues that are before the Tribunal. What are alleged to be credibility issues here are collateral issues and we find Mr. Fuhgeh has not shown that the documents sought from her are likely relevant.

We note that Mr. Fuhgeh will receive a witness statement from the Law Society setting out her anticipated evidence before the Tribunal if it decides to call Complainant A as a witness.

Accordingly, the motion for production from Complainant A is dismissed.

(Mike Frisch)

June 9, 2018 in Bar Discipline & Process | Permalink | Comments (0)

Friday, June 8, 2018

Practice Pointer: Avoid Telling Client To "Go F**k Yourself"

A paralegal engaged in misconduct and was suspended for four months by the Tribunal Hearing Division of the Upper Canada Law Society.

The Paralegal, Pasquale Perrelli Jr., admitted that he committed various acts of professional misconduct: sending a client an offensive text message; failing to attend court dates and to keep a client’s appointment without explanation; not depositing client monies into trust; and not promptly and completely responding to the Law Society in two investigations. This is Mr. Perrelli’s second time being disciplined: in 2011, he was suspended for not responding to the Law Society...

 Mr. Perrelli has been a licensed paralegal since the Law Society first began to regulate paralegals in 2008. His misconduct has a common theme: he has not acted with the professionalism and respect for duties owed to his regulator that are required of a regulated professional.

The first set of allegations relates to Mr. Perrelli’s assistance to an ongoing client, AB, in getting representation for the client’s cousin, CD, on an immigration matter. Mr. Perrelli contacted an acquaintance, David Caporiccio (who it later turned out was neither a licensed paralegal nor a licensed immigration consultant), to represent CD. Mr. Perrelli was present at meetings between Mr. Caporiccio and the clients and was involved in arranging payment of a $2,500 retainer to Mr. Caporiccio.

When Mr. Caporiccio did no work on the matter, AB wanted the money back and communicated with Mr. Perrelli by text about it. Mr. Perrelli sent CD $500, but the clients understandably also wanted the remaining $2,000. Mr. Perrelli told his client he should get the money from Mr. Caporiccio. In the course of this text discussion, Mr. Perrelli wrote to AB: “Go Fuck yourself.”

Costs

The most significant question is whether Mr. Perrelli’s financial circumstances warrant a reduction and if so, how much. An annual income of about $40,000 is modest for the lawyer and paralegal professions, although not as low as some licensees who come before the Tribunal. Mr. Perrelli has three children whom he supports. He is financially strapped right now. On the other hand, he has had a considerable amount of money to invest in an overseas venture that he expects to pay off within the next two years. In my view, while that should result in more time to pay, the licensees of the Law Society should not bear the cost of his investment choices. In these circumstances, taking into account his annual income, I am prepared to make a modest reduction from the starting point of $7,500 and award $6,000 in costs, payable within two years.

(Mike Frisch)

June 8, 2018 in Bar Discipline & Process | Permalink | Comments (0)