Monday, February 13, 2017

The Land Of Many Chances

An attorney with a prior history of sanctions was censured by the New Jersey Supreme Court.

The court followed the recommendation of its Disciplinary Review Board finding misconduct in two client matters

...respondent’s ethics history demonstrates that he has not learned from prior, similar mistakes. This is the third disciplinary proceeding involving respondent’s failure to cooperate with ethics authorities. Therefore, an admonition is insufficient to address his otherwise minor misconduct here.  On that basis alone, a reprimand is warranted.

When we add respondent's prior final discipline to the mix, enhanced discipline is warranted: an October 2002 admonition; a November 2011 reprimand; an April 2013 reprimand; a February 2014 three-month suspension; and a May 2016 censure.

Given respondent’s failure to learn from his past mistakes, and his significant disciplinary history, we determine to impose a censure.

 When admonition is insufficient, go with a censure. (Mike Frisch)

February 13, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Won An Election, Lost A Job And A Claim

The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a complaint brought by a former assistant county attorney who was terminated from longtime service after a successful run for public office

David Bobzien (“Bobzien”), the County Attorney for Fairfax County, Virginia, terminated the employment of Nancy Loftus (“Loftus”), an assistant county attorney, following her election to the Fairfax City, Virginia, City Council (the “City Council”). After an unsuccessful grievance proceeding, Loftus filed suit in the United States District Court for the Eastern District of Virginia, challenging Bobzien’s decision to terminate her employment “solely because she had been elected to the City Council.” J.A. 4. Loftus contended Bobzien’s actions violated her rights under the First Amendment to the United States Constitution as well as a Virginia statute and Fairfax County ordinance. The district court dismissed Loftus’ complaint, concluding the termination of her employment did not violate the First Amendment, Virginia law or the local ordinance. For the reasons set out below, we affirm the district court’s judgment.

Bobzian raised ethical concerns during the candidacy, citing Virginia bar ethics opinions

In response to Bobzien’s concerns, Loftus contacted the “Ethics Hotline” of the office of the Virginia State Bar’s Ethics Counsel (“Ethics Counsel”). She inquired: “is it unethical for me to be an [a]ssistant [c]ounty [a]ttorney for Fairfax County and also serve on the Fairfax City Council?” J.A. 57. Answering by letter, Ethics Counsel stated that the “short answer” is “it is not per se unethical for a lawyer to be employed in a law firm or government attorney’s office and concurrently hold a public position or office.” J.A. 57. Ethics Counsel then qualified his abstract answer by cautioning “lawyers that serve on public bodies will create conflicts of interest if the law firm in which the public official practices also interacts with the public body on which one of its lawyers sits.”

Loftus was placed on administrative leave and later terminated, leading to the suit

...Loftus’ claim must fail. Although Loftus contends her termination was in violation of the First Amendment, the Supreme Court has made clear that public employers may permissibly bar their employees from participating in a wide array of political activities, including running for elective office. If a public employee can be prohibited from running for office, it follows all the more strongly that she also can be barred from holding elective office while remaining a public employee. In large part, the constitutional questions raised by this case are resolved by Clements. If the resign-to-run and automatic resignation provisions of the Texas Constitution -- which stripped certain public employees of their office upon declaring their candidacy for the state’s legislature -- pass muster under the First Amendment, surely the termination of Loftus’ employment only after her election to the City Council survives First Amendment scrutiny.

...The record reflects multiple potential points of conflict that could face Loftus as a member of the City Council and an attorney in the Fairfax County Attorney’s Office. As the LEOs from the Standing Committee illustrate, it is not simply Loftus’ status as a public employee that creates a problem, but particularly her status as a lawyer for a public “law firm.” That role appears to create non-waivable conflicts of interest not simply limiting Loftus under her ethical duties as a lawyer, but imposing significant burdens on her public employer.

Moreover, Loftus is unable to point to any appellate authority to suggest that, all else being equal, her employment by a different municipality should be a dispositive factor in our analysis. In fact, she can muster only two district court cases to support her position, both of which are factually inapposite and of no precedential value. See Segars v. Fulton Cty., 644 F. Supp. 682 (N.D. Ga. 1986); Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979). Neither case involves an attorney representing one municipality while also running for office in another municipality to which her client potentially will be adverse in the future.

The court rejected other claims raised by the plaintiff. She had worked as an assistant county attorney since 1997.

The Washington Post reported on the firing. (Mike Frisch)

February 13, 2017 in Ethics, Hot Topics, Law & Society | Permalink | Comments (0)

Saturday, February 11, 2017

Swift Action In D.C. Bar Case

The District of Columbia Board on Professional Responsibility adopted a hearing committee recommendation in a case involving an attorney's neglect of seven appointed appellate matters.

In each of these cases, the Court issued multiple orders directing Respondent to file the brief and appendix within the requisite time. Respondent did not comply with these deadlines, and the Court vacated Respondent’s appointment as counsel for the appellants and directed Respondent to transmit all documents pertaining to the appeal to successor counsel within 20 days. Respondent was aware that he was appointed as counsel in each of the seven cases, and he received notice of the Court’s orders instructing him to file briefs. Respondent promptly turned over the client files for each of the seven cases to each successor counsel.

Sanction

we agree with the Hearing Committee’s findings of fact, conclusions of law and sanction recommendation, and we recommend that Respondent be suspended for six months, with all but sixty (60) days stayed in favor of one year of probation subject to the conditions recommended by the Hearing Committee.

Mitigation

Before the Hearing Committee, Respondent did not contest that he engaged in misconduct, and offered evidence in mitigation of sanction. In mitigation, the Hearing Committee found that Respondent was overwhelmed by his workload and personal difficulties that had arisen during the relevant time period. Respondent testified credibly that, at the time of the misconduct, he was experiencing marital problems, stress from caring for his young children, and sadness following the death of a close friend. At the time, Respondent rationalized his neglect with the belief he would be able to eventually catch up on his to-do list. Respondent did not miss any deadlines in any cases other than the seven appellate matters. Respondent testified that he appropriately handled his appellate cases until the “problematic period” that began in March 2012.

Respondent voluntarily took a number of credible and necessary steps to address the factors that contributed to his actions...

It is noteworthy that the hearing committee report was filed on December 28, 2016. In the absence of objections from either party, the Board adopted the findings and issued its report in roughly six weeks.

This is another in a series of recent signs of real progress in moving disciplinary matters along in D.C.

Kudos to the author of the report, Board member (and non-attorney) David Bernstein.

There may well be a direct causal link between these glimmers of hope and a recent change of leadership in the Board's Executive Office. 

The case is In re Jejomar Untalan and can be found at this link. (Mike Frisch)

February 11, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Sex And Loans

Sex with and a loan to a client in a domestic relations matter got a 2.5 month suspension of an attorney called to the Bar in 1997.

From the opinion of the Tribunal Hearing Division of the Upper Canada Law Society 

The Licensee was employed as an associate at a family law firm. During his employment with the firm, the Licensee acted for a female client for about a year. For about four months, starting from a few days after she retained him, the Licensee engaged in a secret consensual sexual relationship with Client A.

The client was a stay-at-home parent, financially dependent on her husband, with two children under the age of five. At the time, the husband was facing criminal charges relating to allegations that he had damaged her personal property.

About a month after she retained him, the matrimonial litigation deteriorated and became a high conflict matter. At that time, the client instructed the Licensee to file a motion for supervised access following an allegation of abuse. The father vehemently denied the allegations of physical assault.

After several months, the Licensee told the client that due to the high conflict nature of the matrimonial litigation, she had to choose between a professional or personal relationship with him. The client advised the Licensee that she could not afford to start afresh with a new lawyer. The sexual relationship between the Licensee and the client ended, but both parties still had feelings for each other and maintained a personal relationship.

The loans

After the sexual relationship ended, the Licensee loaned $60,000 to the client primarily to pay for legal fees and personal expenses. The Licensee characterized $10,000 of this amount as a gift. The client agreed to repay the remaining $50,000 once she received an equalization payment from the sale of the matrimonial home.

The Licensee did not properly document these transactions nor create a record confirming that the funds were in the nature of a loan and/or the terms of repayment. The client had acknowledged the debt in documentation presented to the court.

When the sale of the matrimonial home closed, more than $50,000 was released to the client. The Licensee requested the repayment of the $50,000 loan, but the client refused to reimburse the Licensee. 

There were "uncivil" texts over the loan

 when the client refused to repay the Licensee the money that he had loaned her, his conduct became antagonistic and intimidating. He implied that he would use confidential information to her detriment, which would have been a breach of the Rules of Professional Conduct had he done so. While the Licensee states that he had no intention of disclosing the confidential information, this aspect of his conduct raises serious concerns, since it shows his mixing of his personal relationship and professional duties. It shows why sexual relationships can run the risk of impairment of lawyers’ duties to their clients, because that impairment actually occurred in this case.

The attorney did not follow through on the threats but

Shortly after receiving these texts and the e-mail, the client reported the relationship and the communications to the Licensee’s employer. The employer met with the Licensee, and advised him of the allegations made by the client. The Licensee admitted to having had an inappropriate relationship with the client and that he had loaned her money. The Licensee was dismissed from his employment and his employer reported him to the Law Society.

His response was appropriate given the circumstances

In this case, there was no disclosure of confidential information. The Licensee showed considerable remorse for his actions and their broader repercussions. He expressed regret for his conduct and lack of judgment, including to the client and her children for putting them in a vulnerable position, to his former employer for betraying its trust, and to his current clients for the hardship that his suspension would cause them. Since the incident in 2013, the Licensee has sought counselling to obtain insight into his conduct, in order to address the situation. He committed to ensuring that he would never allow this to happen again.

(Mike Frisch)

February 11, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Friday, February 10, 2017

Computer Crime

An attorney who stole an iPad should be disbarred, according to a report and recommendation of the Louisiana Attorney Disciplinary Board.

A dissent of lawyer member Linda Bizzarro would make it permanent

Although he resolved his recent criminal charges through a pretrial diversion, a reading of the police report and application for search warrant reveals he actually committed multiple felonies. He stole a computer, lied to police and destroyed evidence. A brief review of the facts in the record is instructive.

While at the Louisiana State Capitol building in Baton Rouge, he stole a leather folder embossed with the owner’s initials, which contained numerous government documents, an iPad and a keyboard valued in excess of $1,000. Through the use of a GPS device and cellular data, the computer was traced to Respondent’s home in New Orleans. When police arrived there the device was “actively pinging” indicating it was present, but when confronted Respondent denied any knowledge of the stolen iPad. While in his home the police observed the leather folder with the owner’s embossed initials, “JWN”, and obtained a search warrant. They later located the iPad and keyboard “underwater, along a dark corner of an above ground, concrete pond, in the backyard” of Fahrenholtz’s home. The device was identified as belonging to the victim. It was inoperable and completely destroyed due to water damage.

Respondent’s prior misconduct, which resulted in a suspension, included an investigation into a violation of the Campaign Finance Disclosure Act while he was running for a seat on the Orleans Parish School Board and a complaint regarding his conduct as executor in a succession matter.

In both the current and prior disciplinary matters he failed to cooperate with the investigative inquiry and failed to respond in disciplinary proceedings.

Respondent has been consistent in his disregard and disrespect for the disciplinary system and law enforcement and he has violated duties owed to the public and the legal system. Although his current misconduct does not directly relate to the practice of law, his actions are a strong indication that he is not deserving of the public trust.

Through his serious misconduct, deceit and exceptionally poor judgement he has shown a lack of morality and character that will not improve with the passage of time. He is unfit to practice law and we should recommend that he not be permitted to do so.

(Mike Frisch)

February 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Pass/Fail

The Law Society of Saskatchewan Hearing Committee  barred application for admission until December 2018 as a result of an applicant's false submission of a passing grade in Evidence: 

The amended Formal Complaint alleged that Ms. Chaukla is guilty of conduct unbecoming a Student-at-Law in that she did, in the context of her application to be admitted as a member of the Law Society of Saskatchewan, intentionally mislead the Law Society of Saskatchewan by submitting an electronic document pertaining to her National Committee on Accreditation exam results that she had falsified by changing a failing grade to a passing grade.

From the agreed statement of facts

On or about July 17, 2015, Ms. Chaukla provided an email to the Law Society that included digital “screen shots” detailing her NCA results. One of the screen shots that Ms. Chaukla provided indicated that she had received a grade of “Pass’ in relation to her May 6, 2015 Evidence exam. This was advanced by Ms. Chaukla as an accurate digital screen shot image of her grades taken by her directly from the NCA Website.

Upon review of the NCA grade screen shots, it became apparent to the Director of the Admission and Education Department, Andrea Johnston that Ms. Chaukla’s most recent Evidence grade for the May 6, 2015 session indicating a ‘Pass” was in a different font than the other grades she had submitted from the NCA website. Ms. Johnston placed a call to the administrators of the NCA program to verify Ms. Chaukla’s grades. On July 20, 2015, NCA Examinations Manager, Christine Mayer, provided confirmation of Ms. Chaukla’s grades to Ms. Johnston. The report indicated that Ms. Chaukla had received a grade of “fail” on her Evidence exam from the May 6, 2015 session. On July 20, 2015, Ms. Mayer also logged into Chaukla’s Candidate Portal as Ms. Chaukla to confirm what Ms. Chaukla would have seen when she logged in and provided a screen shot to Ms. Johnston clearly illustrating a failing grade.

On July 20, 2015, Ms. Johnston and Jody Martin, Director of CPLED, telephoned Ms. Chaukla to discuss the situation. The call was transcribed. During the call the discrepancy was raised with Ms. Chaukla. She was adamant that she took the screen shot from the NCA website using her Apple MacBook via the ‘command+shift+3’ key combination and that the screen showed a grade of “Pass”. Ms. Chaukla suggested that she would be contacting the NCA administrators to figure out how this could have happened. Ms. Chaukla repeatedly denied that she had altered her grade before submitting it to the Law Society.

A forensic examination followed the denial

As a result of the outcome of the report regarding the screen shot, and the indicators consistent with the image modification, the Law Society made the decision to further its investigation by having the computer used to generate the screen shot analysed. Ms. Chaukla was asked in writing to produce the computer she used to take and send the screen shot in question. Ms. Chaukla’s counsel responded a short time later on August 10, 2015 and provided the computer given to him by Ms. Chaukla. The computer was forward to C.S.I. with a request that they undertake a forensic analysis to determine the origin of the screen shot submitted by Ms. Chaukla.

Findings

“ Based on a thorough analysis of the MacBook Pro submitted to the Law Society of Saskatchewan by Ambika Chaukla, there is no evidence to substantiate the claim that the laptop was used to record the screen shots from the NCA Portal on 07/17/2015. Furthermore, there is evidence that there were concerted efforts to make changes to the laptop, in an apparent effort to make it appear that it is owned by Ambika Chaukla. This laptop was in “sleep mode” when the screen shots were purportedly taken, and these images, along with other related materials were added to the computer at a later date, most of which originated from the Hotmail account of [Ambika Chaukla]. The images which were sent to the Law Society of Saskatchewan did not exist of the analysed MacBook Pro until between 07/22/2015 and 07/26/2015.

  Efforts were made to validate the claims, including an exhaustive search of the computer for any reference to the activities claimed by Ambika Chaukla; however, I am not satisfied that the computer used to download the images from the NCA Portal on 07/17/2015 has been produced for examination.”

The Student-at-Law then admitted the falsehood and as a result 

Ms. Chaukla is barred from applying to become a member of the Law Society of Saskatchewan until December 21, 2018.

She also must pay $5,000 in costs . (Mike Frisch)

February 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Iowa Suspends For Sex With Divorce Client

An intimate relationship with a divorce client led to admitted ethics violations and a minimum 30 day suspension by the Iowa Supreme Court.

In May 2014, Jane Doe met with Waterman for legal advice. Doe is a business professional with an M.B.A. and is a C.P.A. Doe had recently separated from her husband and sought advice from Waterman regarding dissolution of her marriage. After their initial May consultation, Waterman did not hear from Doe again until September. At that time, Doe wanted a protective order because her husband had threatened violence. Waterman explained to Doe the procedure for obtaining a protective order, and the next month, he filed a dissolution petition on Doe’s behalf. The main contested issue in the dissolution case was custody of the couple’s young children.

Waterman and Doe continued to meet to discuss the case. The conversation during those meetings, according to Waterman, started to “diverge from professional topics.”

Waterman and Doe also began having lunch together and texting each other. Waterman recognized his relationship with Doe had moved beyond that of an attorney and a client. He told Doe he should withdraw from representing her and gave her the names of two lawyers. In November, while Doe was still in the process of obtaining new counsel, she and her husband participated in a mediation without counsel present. The mediation appeared to have resolved many of the parties’ issues, including child custody.

Based on the outcome of the mediation, Waterman drafted a stipulation of settlement on Doe’s behalf and sent it to the husband’s lawyer. Because Doe believed the mediation had been successful, she did not retain new counsel. Around this time, Waterman and Doe began a sexual relationship.

Meanwhile, Waterman did not hear back from the husband’s counsel for several weeks regarding the settlement. Eventually, the husband’s counsel informed Waterman that the husband had changed his mind on custody and would not sign the stipulation. Negotiations between the two attorneys followed. Waterman once more discussed with Doe the need to engage replacement counsel. Doe agreed she would meet with a potential new attorney upon her return from a family vacation over the holidays.

On January 12, 2015, the husband’s attorney emailed Waterman indicating that the husband would accept the prior deal. Again believing settlement was imminent, Doe did not retain the substitute attorney, and Waterman remained her attorney of record.

In mid-February, the husband’s attorney advised Waterman that the husband had yet again changed his mind. Waterman told Doe that he did not anticipate settlement and she must retain new counsel. Waterman filed a motion to withdraw on February 27, and Doe hired new counsel.

During February, Doe’s husband became aware of a relationship between Doe and Waterman. On March 3, the husband’s counsel sent Waterman an email, stating that he intended to conduct additional discovery relating to custody, including discovery on Waterman’s relationship with Doe. Waterman responded that he would be self-reporting an ethical violation to the Board. Waterman in fact filed a detailed self-reporting letter with the Board on March 12.

Following Waterman’s replacement as Doe’s counsel, Doe and her husband participated in a second mediation in April. A stipulation of settlement was filed shortly thereafter. This settlement was a “tweaked” version of the earlier document drafted by Waterman. Waterman’s relationship with Doe ended in June.

He then self-reported and stipulated to the misconduct

After considering the relevant facts of this case, the recommendation of the commission, the aggravating and mitigating circumstances, and our own precedents, we agree with the parties that a thirty-day suspension of Waterman’s law license is warranted. We do not adopt the commission’s recommendation that Waterman be required to remain in therapy for two years. We often decline to impose conditions like this, in part because we do not have a mechanism for supervising their performance.

(Mike Frisch)

February 10, 2017 in Bar Discipline & Process | Permalink | Comments (0)

"Beer With Obama" Judge Suspended In West Virginia

The West Virginia Supreme Court of Appeals (reconstituted due to multiple recusals) has suspended a recently-elected judge for his false campaign flyer

Judge-Elect Callaghan approved a direct-mail flyer created by Mr. Heflin emblazoned with “photoshopped”  photographs of President Obama and Judge Johnson, along with the caption “Barack Obama & Gary Johnson Party at the White House . . . .” President Obama is depicted holding what appears to be an alcoholic beverage and party streamers form the background of the photographs...

Distilled to its essence, the ultimate question presented to this Court is whether the flyer is “false” and therefore stripped of First Amendment protection, or, as Judge-Elect Callaghan insists, merely the juxtaposition of two attenuated occurrences— coal job losses in Nicholas County and Judge Johnson’s attendance at a federal seminar in Washington, which was “hyperbolized” as “partying” at the White House. We conclude that the “gist” of the subject flyer conveys that Judge Johnson “partied with Obama” at his personal invitation and is therefore simply too far afield from the truth to be considered protected, hyperbolic free speech; it is, in every sense, materially false. Judge Johnson attended a federally-required meeting and conference in furtherance of his service to the State, which meeting and conference was utterly devoid of any meaningful connection to or interaction with the President. Judge Johnson’s attendance at the meeting and conference is exaggerated, repurposed and mischaracterized to the point that it is rendered patently untrue. When viewed in its entirety as instructed by various courts, we have little difficulty finding that the subject flyer contains knowingly, materially false statements in violation of the Code of Judicial Conduct and the Rules of Professional Conduct.

We therefore conclude that the First Amendment does not serve to shield Judge-Elect Callaghan from discipline as a result of the subject flyer. We further conclude, as did the Board, that the subject flyer contains a knowingly false statement and that Judge-Elect Callaghan’s actions in approving and disseminating the flyer are therefore violative of Rule 4.1(A)(9), Rule 4.2(A)(1), Rule 4.2(A)(4) of the Code of Judicial Conduct and Rule 8.2(a) of the West Virginia Rules of Professional Conduct.

Majority on sanction

With regard to his attempts at corrective measures and his level of regret, however, we find that although he removed the false assertions from his personal and campaign Facebook pages and ran radio advertisements ostensibly retracting the assertions contained in the flyer, the calculated and intentional timing of his mailings rendered it virtually impossible to engage in meaningful mitigation. As Judge Johnson testified, time constraints prevented him from taking meaningful action in response to the distribution of the flyer.  Nicholas County’s only newspaper was a weekly paper, and the timing of the mailing prevented inclusion of any response or countermeasure in that paper.  Thus, we find that the removal of the assertions from social media and the radio statements are entitled to limited weight in mitigation...

Judge-Elect Callaghan’s subsequent statements during his testimony continued to reveal a dismissive and cavalier attitude toward his behavior. He stated, “If I had to do it again, I probably would not approve the flier going out just because it’s not enjoyable - politics is not enjoyable in a lot of different ways, but when you cause outrage in somebody, that, I regret.” Moreover, his written response to the initial complaint disingenuously urges that “[s]ome members of the public may have been duly impressed by the fact that Judge Johnson was honored by the White House for the good works he had performed[.]” He further suggested that Judge Johnson could have “easily . . . boycotted this meeting, based upon his disagreement with President Obama’s policies, and he could have publicized such a boycott for political purposes.” In his testimony before the Board, Judge-Elect Callaghan minimized his conduct...

There is an opinion concurring in part by Judge Matish

The majority considers the recommendation of the Judicial Hearing Board of two concurrent one-year periods of suspension without pay to be too lenient, instead ordering two consecutive one-year suspensions without pay be imposed, plus a $15,000 fine, costs, and a public reprimand. While I concur with the majority’s reasoning as to the seriousness of this matter, I respectfully disagree as to the length of the suspension. The entire circumstance merits additional charges and punishment because, after reviewing the record presented and hearing oral argument, it is my opinion that the punishment is still not severe enough, because of the numerous violations that occurred with the so-called Obama flyer alone.

...the majority could have just as easily found violations for each untruthful statement of the so-called “Obama flyer,” which included: (1) the photoshopped pictures of President Obama and Judge Gary Johnson with the beer, since there was no party attended with President Obama where alcohol was served; (2) that Judge Johnson was not invited by the President; (3) that President Obama was not even present;( 4 ) that Judge Johnson did not go to the White House; and (5) none of this had anything to do with Judge Johnson defending jobs in Nicholas County. Each of these violations, having occurred in the so-called “Obama flyer” that was mailed to the voters and having been placed upon two separate Facebook posts, would amount to a multiplier of, at a minimum, three separate postings or publications, for a minimum of fifteen violations, in and of itself, justifying as much as a fifteen-year suspension. 

...As a country, we have gone far astray from what is right and what is good. We have become the most connected nation with our cell phones, smart phones, tablets, computers, and social media, while simultaneously becoming the most disconnected nation because of our cell phones, smart phones, tablets, computers, and social media. In trying to one up the next guy at his expense, we fail to realize that we harm ourselves in the process. Once you hit “Send,” it is out there forever, and you cannot take it back.

As a judge or judicial candidate, you are expected to have a standard to live up to, not only in your personal life and how you conduct yourself on the bench, but how you run a campaign to secure the trust of the public in voting to elect you. It is disturbing to me that Judge-elect Callaghan admitted to reading the Code of Judicial Conduct when he decided to run. However, the Code of Judicial Conduct was later changed and adopted December 1, 2015, yet Judge-elect Callaghan, in his testimony, never admitted to stating specifically that he read the new Code of Judicial Conduct nor talked about any Code of Judicial Conduct to the media company he hired. Also, the media company admitted to not having talked with Judge-elect Callaghan about it either. 

The falsity used by Judge-elect Callaghan in his campaign perpetrated a fraud upon the voters of Nicholas County, the 28th Judicial Circuit. By his own actions, he has shown that he is unfit to hold a judicial office, and, at the appropriate time, a new election should be held.

Judge-elect Callaghan may very well have won the election fair and square based upon other factors in Nicholas County, or the fact he pointed to in one of his other flyers that after a certain amount of time, things need changed, but instead he resorted to certain falsities, which definitely are not to be tolerated in a judicial election. We may now live in a world of “fake news” and “alternate facts,” but if we cannot trust, honor, and respect our Judges and Justices, who can we trust?

Since Judge-elect Callaghan was first an attorney running for a judicial office, I would give him a one-year suspension as an attorney, followed by a year for each violation of the Code of Judicial Conduct, for a total suspension of four years. However, the possibility exists under the facts of this case that the suspension could be for much longer, as stated above. Therefore, I respectfully dissent as to the length of punishment, and would order Judge-elect Callaghan to serve four one-year consecutive periods of suspension from the bench, without pay, in addition to the fines and costs imposed by the majority. 

MetroNews - the voice of West Virginia - has the story and the flyer. (Mike Frisch)

February 10, 2017 in Bar Discipline & Process, Judicial Ethics and the Courts | Permalink | Comments (0)

Thursday, February 9, 2017

Controversial Reprimand Proposed: Duty To Third Party Beneficiary At Issue

A recommendation for sanction by an Illinois Review Board is summarized in the headnote below.

The bar matter is unusual in that it raises a novel question of real consequence, namely whether the concept of third party beneficiary liability extends into an enforceable disciplinary obligation.

Respondent was charged in a one-count amended complaint with violating multiple Rules of Professional Conduct. The charged misconduct arose out of Respondent's drafting of a power of attorney and quitclaim deed at the request of a client. The client told Respondent that his friend, who was in the hospital, wanted to give the client his house and property, and asked Respondent to draft a power of attorney to enable the client to handle his friend's affairs. Without speaking to the client's friend or conducting any investigation of the friend's wishes or competency, Respondent drafted the documents requested by the client, who, using the documents, then withdrew all the money from his friend's bank account and took possession of his house.

Based on these events, the Administrator charged Respondent with failing to provide competent representation; failing to consult with a client concerning the objectives of the representation and means by which they are to be accomplished; failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; engaging in a conflict of interest; and permitting a person who employed and paid the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering the legal services, in violation of Rules 1.1, 1.2(a), 1.4(a)(2), 1.4(b), 1.7(a), and 5.4(c), respectively, of the 2010 Illinois Rules of Professional Conduct.

After a hearing, a majority of the hearing panel determined that Respondent owed no duties to the friend, and therefore could not be found to have committed the charged misconduct. It recommended that the amended complaint be dismissed. One hearing panel member dissented, finding that the friend was the intended third-party beneficiary of the attorney-client relationship and therefore that Respondent owed a duty to him, and had engaged in misconduct by failing to meet that duty.

The Administrator filed exceptions, challenging the majority's finding of no misconduct and arguing that Respondent should be suspended for 90 days for his misconduct.

A majority of the Review Board panel reversed the Hearing Board's finding of no misconduct. The majority found that the friend was an intended beneficiary of the attorney-client relationship between Respondent and his client, and therefore that Respondent owed a duty to the friend but failed to meet it. For his misconduct, the majority recommended that Respondent be reprimanded and required to complete the ARDC Professionalism seminar.

One member of the review panel dissented, agreeing with the hearing panel majority that the friend was not a third-party beneficiary of the relationship between Respondent and his client and therefore that Respondent owed no duty to the friend.

The dissent of Robert Henderson

As the hearing panel majority recognized, Respondent did nothing but prepare a document according to a statutorily-defined format. There is no suggestion that the document was prepared carelessly or inaccurately. The service Respondent provided his client was simply the preparation and delivery of a document that was not executed in Respondent's presence and might not have been executed for week, months, years, or ever.

I believe my colleagues' opinion will have negative and far-reaching ramifications beyond this matter. If a client asks a lawyer to prepare a power of attorney for the client's mother or father, must the lawyer investigate and determine whether the client's parent is competent to give power of attorney? When asked to prepare a power of attorney, must a lawyer anticipate all potential problems that could arise before preparing the power of attorney? Are we requiring a lawyer to both predict and prevent fault, even criminal conduct, by the client? Must the lawyer continually monitor to see that the third party is competent at some undetermined future date when the power of attorney is executed? Must the lawyer convince caregivers to provide information about the health of the third party without any evidence of the relationship between the lawyer and the third party? Under my colleagues' reasoning, the answer to these questions would be yes. The duties placed on lawyers by the majority's opinion are onerous and unreasonable.

I also am concerned that the majority's ruling will spell the end of affordable powers of attorney, and possibly even lawyer-prepared powers of attorney. Lawyers will be loath to take on potential liability if they are held responsible for their clients' actions. In this same vein, I believe the majority's opinion will establish an unreasonably high standard of practice that will be used in malpractice litigation.

Finally, I believe the majority's opinion creates an inherent conflict of interest. Under the majority's reasoning, a lawyer asked by a client to prepare a power of attorney on behalf of a third party must investigate his client's motives, inquire into the relationship between the client and third party, and determine the competency and wishes of the third party. Thus, the lawyer is essentially the servant of two masters - the client and the third party. To the extent the client's and the third party's interests diverge, or may later diverge at the time of execution, the lawyer is placed in a quandary and, more important, a conflict of interest. In fact, the majority found that Respondent engaged in a conflict of interest in this matter. I submit that, under the majority's analysis, a conflict will exist any time a lawyer is preparing a power of attorney form at the request of the person being given the power of attorney by another.

This is clearly a case in which the client, Mr. Zabielski, was guilty of very bad acts causing great harm to the third party, Mr. Muskala. But the magnitude of this harm should not serve to impose an onerous duty on attorneys who themselves have acted in good faith.

For these reasons, I would uphold the Hearing Board's finding of no misconduct and dismiss the complaint against Respondent.

My understanding is that the Illinois Supreme Court rarely issues written opinions. Rather, the court regularly enters orders either agreeing or not with the proposed disposition.

It will be interesting to see where this goes.

Note that My Shingle has some strong views on this case. (Mike Frisch)

February 9, 2017 in Bar Discipline & Process | Permalink | Comments (2)

Author! Author!

The Legal History Blog posts a review of the latest book by my colleague and friend  Brad Snyder

Brad Snyder, University of Wisconsin School of Law, has just published The House of Truth: A Washington Political Salon and the Foundations of American Liberalism (Oxford University Press):

In 1912, a group of ambitious young men, including future Supreme Court justice Felix Frankfurter and future journalistic giant Walter Lippmann, became disillusioned by the sluggish progress of change in the Taft Administration. The individuals started to band together informally, joined initially by their enthusiasm for Theodore Roosevelt’s Bull Moose campaign. They self-mockingly called the 19th Street row house in which they congregated the “House of Truth,” playing off the lively dinner discussions with frequent guest (and neighbor) Oliver Wendell Holmes, Jr. about life’s verities. Lippmann and Frankfurter were house-mates, and their frequent guests included not merely Holmes but Louis Brandeis, Herbert Hoover, Herbert Croly - founder of the New Republic - and the sculptor (and sometime Klansman) Gutzon Borglum, later the creator of the Mount Rushmore monument.

Weaving together the stories and trajectories of these varied, fascinating, combative, and sometimes contradictory figures, Brad Snyder shows how their thinking about government and policy shifted from a firm belief in progressivism - the belief that the government should protect its workers and regulate monopolies - into what we call liberalism - the belief that government can improve citizens’ lives without abridging their civil liberties and, eventually, civil rights. Holmes replaced Roosevelt in their affections and aspirations. His famous dissents from 1919 onward showed how the Due Process clause could protect not just business but equality under the law, revealing how a generally conservative and reactionary Supreme Court might embrace, even initiate, political and social reform.

Across the years, from 1912 until the start of the New Deal in 1933, the remarkable group of individuals associated with the House of Truth debated the future of America. They fought over Sacco and Vanzetti’s innocence; the dangers of Communism; the role the United States should play the world after World War One; and thought dynamically about things like about minimum wage, child-welfare laws, banking insurance, and Social Security, notions they not only envisioned but worked to enact. American liberalism has no single source, but one was without question a row house in Dupont Circle and the lives that intertwined there at a crucial moment in the country’s history.

Professor Snyder's story on the book in Politico Magazine is here.  And here are some endorsements:

“For the first time, we have the real story of this incredible little galaxy that included such disparate figures as Felix Frankfurter, Walter Lippmann, and Gutzon Borglum, and reached out to cultivate and invigorate the aged Justice Oliver Wendell Holmes--with profound and lasting influence on the course of American politics. Brad Snyder tells this story with verve and insight. This is a major work in the history of this nation’s public life.” -- John Milton Cooper, Jr., author of Woodrow Wilson: A Biography

“With his deep understanding of history and the law, Brad Snyder has crafted a notably illuminating and refreshing book. Deeply researched and finely written, The House of Truth brings to life a group of brilliant friends whose passion for justice helped shape what became known as the American Century.” -- David Maraniss, author of Once in a Great City: A Detroit Story

“This dazzling book provokes reconsideration of the Progressive era, legal reform and modern American liberalism. I know of no other work that so ably transports its readers into the packed and exciting years of the early twentieth century.” -- Laura Kalman, Professor of History, University of California, Santa Barbara

I heartily recommend two of Brad's earlier books In the Shadow of the Senators and A Well Paid Slave. (Mike Frisch)

February 9, 2017 in Lawyers & Popular Culture, Teaching & Curriculum | Permalink | Comments (0)

Fees Rules Are Shield Not Sword

The New York Court of Appeals resolved a dispute among attorneys over fees in a case involving an $8 million settlement

In February 2009, Menkes engaged Manheimer to act as co-counsel and provide advice in the action.  Their written agreement provided that Manheimer would receive 20% of net attorneys' fees if the case settled before trial and 25% once jury selection commenced. Neither attorney informed the clients of Manheimer's involvement, although Manheimer believed Menkes had done so.

The co-counsel relationship fell apart

In August 2009, Menkes wrote to Manheimer unilaterally discharging him and advising him that his portion of the fees would be determined on a quantum meruit basis. Manheimer did not respond to Menkes; he did no further work on the case.

The court here affirmed the Appellate Division for the First Department.

Holding

We conclude that Menkes's agreements with Manheimer are enforceable and entitle Manheimer to 20% of net attorneys' fees. Menkes's attempt to use the ethical rules as a sword to render unenforceable, as between the two attorneys, the agreements with Manheimer that she herself drafted is unavailing. Her failure to inform her clients of Manheimer's retention, while a serious ethical violation, does not allow her to avoid otherwise enforceable contracts under the circumstances of this case (see Samuel v Druckman & Sinel, LLP, 12 NY3d 205, 210 [2009]). As we have previously stated, "it ill becomes defendants, who are also bound by the Code of Professional Responsibility, to seek to avoid on 'ethical' grounds the obligations of an agreement to which they freely assented and from which they reaped the benefits" (Benjamin v Koeppel, 85 NY2d549, 556 [1995] [citation omitted]). This is particularly true here, where Menkes and Manheimer both failed to inform the clients about Manheimer's retention, Menkes led Manheimer to believe that the clients were so informed, and the clients themselves were not adversely affected by the ethical breach.

The court applied general contract principles in allocation of fees. (Mike Frisch) 

February 9, 2017 in Billable Hours, Current Affairs, Economics | Permalink | Comments (0)

Wednesday, February 8, 2017

When Chutzpah Is A Crime

A Washington State conviction led to automatic disbarment in New York.

The Second Department

On February 25, 2016, the respondent was convicted, upon a jury verdict, in Superior Court, King County, State of Washington, of, inter alia, theft in the first degree, in violation of Revised Code of Washington (hereinafter RCW) 9A.56.030(1)(a) and 9A.56.020(1). The respondent was charged in the First Amended Information with intentionally depriving, from June 17, 2014, to June 20, 2014, Desh International Law of United States currency in an amount exceeding $5,000. The jury found that the crime was a major economic offense, and that the respondent demonstrated an egregious lack of remorse. He was sentenced to 90 days of incarceration, of which 30 days were converted to 240 hours of community service. Restitution was to be determined at a future date. He was directed to pay a victim penalty assessment of $500 and a DNA collection fee of $100. In addition, a 10-year order of protection was issued against him in favor of the victims.

The conviction was "essentially similar" to a New York felony

A person is guilty of theft in the first degree under RCW 9A.56.030(1)(a) if he or she commits theft of "[p]roperty or services which exceed(s) five thousand dollars in value," a class B felony. The Washington offense of theft in the first degree is "essentially similar" to the New York offense of grand larceny in the third degree, in violation of Penal Law § 155.35, a class D felony, which provides: "A person is guilty of grand larceny in the third degree when he or she steals [*2]property and . . . when the value of the property exceeds three thousand dollars."

The Grievance Committee for the Tenth Judicial District now moves to strike the respondent's name from the roll of attorneys and counselors-at-law based on his conviction of a felony. Although served with a copy of the motion on June 13, 2016, the respondent has neither submitted a response nor requested additional time in which to do so.

By virtue of his felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).

Seattle.pi reported on the crimes

Philip Kong was convicted at trial of felony theft and barratry – practicing law without a license – after he stole $10,000 from a Bellevue law firm before walking off the job. Kong, 45, had claimed the allegations were groundless; a King County jury disagreed and convicted him while finding him to be exceptionally remorseless.

In a lengthy correspondence with seattlepi.com following an earlier story on the allegations against him, Kong assailed police and prosecutors for pursuing a criminal case against him. Kong claimed the money was an advance to which his boss at Desh International & Business Law had agreed.

At worst,” Kong said in July, “someone could accuse me of chutzpah, but nothing more.”

King County Superior Court Judge Laura Inveen sentenced Kong Wednesday to 60 days of electronic home detention as well as 30 days of community service. He was also placed on probation for two years.

Kong was charged in April on allegations stemming from his brief tenure at Desh Law, a small firm specializing in corporate and international law.

Kong had been serving as an “entrepreneur-in-residence” with a University of Washington business-outreach program, CoMotion. Kong said he separated from the university after the charge against him was publicized. He had also been involved in several health-oriented startup efforts in Seattle.

Kong went to work at Desh Law in 2013. His sole client was DF/Net, a Seattle firm that had hired Desh Law to facilitate the acquisition of a Canadian company.

Kong was not licensed to practice law in Washington. He said he has applied for admission to the Washington bar. Records show the Harvard Law graduate has been admitted to the bar in Massachusetts and New York.

At issue was a $17,000 check written by DF/Net managers to Kong in payment for services Desh Law provided. Court records indicate Kong was entitled to 40 percent of that payment as compensation. Kong contended he took the remainder – $10,200 – after reaching a compensation agreement with his employer.

Senior Deputy Prosecutor Patrick Hinds said Kong’s theft was only possible because his clients trusted him as their attorney. The DF/Net managers working with Kong found his request that they pay him directly “odd” and “unusual,” Hinds said, but they wrote it anyway.

“The only reason that they were ultimately willing to do what the defendant asked was that he was ‘their attorney’ and they felt compelled to trust him as a result,” the prosecutor said in court papers

Charging papers indicate Kong deposited the $17,000 check on June 17, 2014, two weeks before he quit. Writing in court papers, a Bellevue detective said Kong read his resignation letter aloud during a staff meeting, taking his colleagues by surprise.

Managing partner Pradnya Desh went to the police in mid-July 2014 with claims that Kong had stolen from her firm. A detective interviewed her and DF/Net managers before arresting Kong on July 31 at another Bellevue law office where he’d gone to work.

Describing his interview with police as an “inquisition,” Kong contended Desh violated a mutual release agreement inked when he left the firm when she went to police. Kong said his rights have been violated and that he would perform his “Lincoln-ian duty” by proving the allegations are false and malicious.

Returning a verdict Feb. 25, a jury convicted Kong on all counts. Importantly for the prosecution, jurors also found that Kong’s crimes and his “egregious lack of remorse” qualified him for an exceptionally stiff penalty. Kong has not been jailed in the matter.

(Mike Frisch)

February 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Suspension, Probation, For Attorney Who Said He Would "Rape The Shit" Out Of Female Bartender

A six-month suspension retroactive to a previously-imposed interim suspension and probation was ordered by the Oklahoma Supreme Court

On November 15, 2014, Respondent, Ian Michael Shahan, was arrested in Tulsa, Oklahoma, for Public Intoxication. Subsequently, on February 6, 2015, Respondent was arrested for Driving Under the Influence (DUI) of Alcohol and Leaving Scene of Collision Involving Property Damage, also occurring in Tulsa, Oklahoma. All counts were filed as misdemeanors.

Respondent entered a plea of guilty on January 8, 2016, to the crime of Public Intoxication. That same day, Respondent pleaded guilty to the crime of Driving Under the Influence and no contest to Leaving Scene of Collision Involving Property Damage. Respondent received a $50 fine for the Public Intoxication count and an eighteen month deferred sentence for the DUI count. Respondent self-reported these arrests to the Oklahoma Bar Association (OBA).

On February 1, 2016, this Court entered an Order of Immediate Suspension.

The story

 Respondent's pleas of guilty and/or no contest stem from two separate cases involving three criminal counts. In the first case, Respondent was arrested on November 15, 2014, for the misdemeanor of Public Intoxication. He had been to a birthday dinner for a colleague where he consumed alcohol. Respondent left the dinner with friends and continued to drink at a bar. From this bar, he took a cab to the VFW where he consumed even more alcohol and was witnessed to be extremely intoxicated.

While at the bar at the VFW, Respondent told the female bartender, "I'm going to rape the shit out of you." The bartender alerted her manager who called the police. The manager escorted Respondent outside to wait for the police. The manager testified that Respondent was not argumentative nor did he attempt to flee. Police arrived and transported Respondent to jail.

Respondent stated he was horrified when he learned of his comment to the VFW bartender. Although he testified that he cannot imagine making such an awful statement, Respondent does not contest that he said it and has since apologized to the bartender.

Regarding the second incident, Respondent testified that on February 6, 2015, he attended a Young Lawyer's Association bowling event where he consumed alcohol. After this event, Respondent went to a bar near his home where he consumed even more alcohol. While driving home, Respondent crashed his car into a utility pole. No other vehicles or people were involved in the accident. Respondent testified that he was dazed from the collision and left the scene to walk to his nearby home when he was stopped by the police and arrested. Respondent's breath test revealed a blood alcohol level of .22. Respondent pleaded guilty to the misdemeanor of Driving Under the Influence of Alcohol and no contest to Leaving Scene of Collision Involving Property Damage, also a misdemeanor.

Respondent self-reported his DUI arrest to the OBA. He stated that after this second arrest, he took all of the actions he would have counseled his own clients to take: he completed a DUI/substance abuse assessment, attended AA meetings and drug classes, and stopped drinking. Respondent also testified that he began meeting with Lawyers Helping Lawyers and volunteering with the Youthful Drunk Driving program, hoping to help others learn from his mistakes.

Respondent admits that he had become a problem drinker. He testified that for approximately eleven months following his second arrest that he did not consume any alcohol. After that point, Respondent stated that he had drinks on two occasions, as a test. Although he remained in control and did not drive on these occasions, he felt that he had worked too hard and wished to continue his sobriety. Respondent continues to meet with mentors from the Lawyers Helping Lawyers program, volunteers his time with various community service projects and shares his experiences in cooperation with the Tulsa County Youthful Drunk Driving Program in the hopes that he will prevent others from making similar poor choices to his own.

The OBA investigator testified that all of Respondent's witnesses spoke very highly of Respondent as a criminal attorney who shared great care and concern for his clients. He further testified that each witness believed that Respondent's actions leading to this matter were completely out of character for him. For example, Robert "Skip" Durbin, a Tulsa criminal defense attorney who shares office space with Respondent called him a "credit to the profession" and someone who has always been respectful of women.

Likewise, Kimberly Jantz, a family law attorney in Tulsa and close friend and law school classmate of Respondent, testified to Respondent's dedication to his sobriety and that she has never heard him utter a rude or sexist comment toward women. Tulsa County Assistant Public Defender Laura Howard is also a close friend of Respondent's. She testified that he has always been respectful and appropriate towards women. Howard further testified that Respondent's DUI accident was a "wake up call" and that he has since taken great measures to ensure a healthy lifestyle, such as attending AA meetings, volunteering at high school drinking programs and working with Lawyers Helping Lawyers. Finally, Tulsa Municipal Judge Mitchell McCune testified via telephone that Respondent was a very bright attorney who is well-liked by, and very respectful to, court staff.

The Trial Panel found that Respondent has found healthier ways to manage his personal and professional stress and that he continues to use his arrests as an opportunity to effect positive change in himself and others. As evidenced at the hearing, Respondent has a large, supportive circle of friends and professional colleagues who care about his well-being and believe in his good character. The Trial Panel found that he is in a healthy place and has made voluntary, genuine efforts to redeem himself.

Sanction

Respondent's criminal convictions provide clear and convincing evidence of his actions that reflect adversely on the legal profession. His misconduct serves as a basis for the imposition of discipline, which we must determine. We appreciate Respondent's honesty, remorse and voluntary efforts to remain sober while helping others learn from his mistakes. He has garnered the support of numerous well-respected attorneys, judges, police officers, family and friends who have faith that Respondent has been rehabilitated. We find that Respondent has accepted full responsibility for the poor choices he made while consuming alcohol and that he has taken the proper steps to ensure that such behavior will not be repeated in the future.

(Mike Frisch)

February 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Cleaning Arrangement With Client Draws Charges

The Illinois Administrator has filed a complaint alleging that an attorney made an improper business arrangement with a divorce client who could not keep up with her fee payments

In May 2014, Respondent told [client] Joenne that he needed her to pay something towards expenses in her case. Respondent told Joenne he had lost his cleaning service and said she could work off part of the expenses by cleaning his house. Joenne initially did not agree to clean Respondent's house.

In July 2014, Respondent again asked Joenne if she would clean his house. In July 2014, Joenne agreed that she would clean Respondent's house to help pay off her bill for his legal services.

In July 2014, Joenne requested that Respondent give her credit of $35-$40 per hour for her services.

Respondent said he would only credit her $25 per hour for her services. Joenne agreed to the $25 per hour rate offered by Respondent.

Respondent instructed Joenne not to tell anyone about their arrangement, and told Joenne he did not want Jesse or his attorney, Stephanie Johnson ("Johnson"), to know about the arrangement.

At no time did Respondent advise Joenne in writing that she may seek the advice of independent counsel on the housekeeping transaction.]

At no time did Respondent advise Joenne in writing that she may seek the advice of independent counsel on the housekeeping transaction.

At no time did Respondent advise Joenne that she may have to disclose her housekeeping services to Jesse, and that her employment could negatively affect her pending claim for spousal maintenance, as she was claiming she could not work because she was caring for her disabled daughter, and that she could not find work.

At no time did Respondent advise Joenne that if she did not disclose in discovery her housekeeping services to Respondent that she may be filing inaccurate discovery responses, which could harm her case or subject her to sanctions.

At no time did Respondent disclose and transmit the terms of the housekeeping arrangement to Joenne in writing.

Between July and December 2014, Joenne spent approximately 160 hours cleaning Respondent's house, and earned $4,000. In December 2014, Joenne told Respondent she no longer wanted to clean his house, and the arrangement ended.

The attorney is also charged with making false statements and other misconduct. (Mike Frisch)

February 8, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, February 7, 2017

Group Drive To Double Disbarment

The Rhode Island Supreme Court has  imposed reciprocal discipline based on a Massachusetts disbarment

The facts giving rise to the respondent’s disbarment in the Commonwealth are briefly summarized as follows. In late 2008, the respondent was involved in a group drive of automobile enthusiasts in Massachusetts. Tragically, the driver of the vehicle immediately in front of the respondent’s vehicle struck and killed a pedestrian. The respondent was a potentially necessary witness in any future civil or criminal action that could ensue from this incident, and may also have been subject to possible civil liability due to his participation in the group drive.

Despite these glaring conflicts, the respondent offered to provide legal representation to the other driver, and failed to obtain his informed consent to the conflicts. The other driver was subsequently criminally charged for his actions leading to the death of the pedestrian. The respondent, who had limited experience representing defendants in criminal cases, provided woefully inadequate legal representation, including improperly advising the client and failing to timely obtain an opinion from an accident reconstruction expert. Moreover, the respondent made misrepresentations to the client regarding the nature of his legal fee, payments to the expert, and the payment of fees to co-counsel. The respondent intentionally misused approximately $17,500 that he had obtained on behalf of the client. He also entered into an improper business arrangement with this client relating to an agreement to repair and either lease or rent the client’s car.

The Sentinel & Enterprise reported on the accident and trial, in which the attorney represented the defendant. 

Rhode Island attorney George Philip, who was driving behind Conant the day of the accident, represented him along with attorney Susan Turner.

Conant was the first in a line of BMWs driving up Wachusett Street when he went around a curve and lost control, said Assistant District Attorney Blake J. Rubin.

The BMW he was driving crossed the roadway and struck McCaffrey near the driveway of744 Wachusett St.

Police measured 284 feet of tire marks indicating where the car was sliding out of control, said Leominster Police Sgt. Ryan Malatos.

Leominster Police Sgt. Richard Kinney reconstructed the accident for the investigation and determined Conant's BMW was traveling about 62 mph in a 40 mph zone when it went into the spin.

The attorney appeared in response to a show cause order and had not opposed disbarment. (Mike Frisch)

February 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Extraordinary Case Justifies Permitting Canadian-Educated Applicant To Sit For Utah Bar

The Utah Supreme Court permitted an applicant who had sought waiver of admission rules to sit for the bar examination

This case requires us to establish for the first time a standard for evaluating petitions for waiver of the admission rules set forth in the Rules Governing the Utah State Bar (the Utah Rules Governing Bar Admission). Petitioner James Kelly graduated from the University of Toronto Faculty of Law (Toronto law school) in June 2000 and practiced law for over a decade in Massachusetts. He now asks us to waive rule 14-704(c)(5) of the Utah Rules Governing Bar Admission, which requires a graduate of a foreign law school to obtain additional education at an ABA-approved law school before becoming eligible to take the Utah bar examination. We conclude that waiver of our rules is appropriate only in extraordinary cases where the applicant demonstrates by clear and convincing evidence that the purpose of the rule for which waiver is sought has been satisfied. Because those conditions are met in this case, we grant Mr. Kelly’s petition for waiver.

The story

Petitioner James Kelly graduated from Toronto law school in June 2000, receiving an LL.B. Toronto law school is located in Toronto, Ontario, Canada, and, because it is a foreign law school, it is not accredited by the American Bar Association (ABA).  Even though unaccredited by the ABA, the law school is accredited by the Law Society of Upper Canada and considered the top-ranked law school in Canada.  Following graduation, Mr. Kelly passed the Massachusetts bar examination and was admitted in January 2001 to practice law in Massachusetts.  Initially, he worked for Testa, Hurwitz & Thibeault LLP, but eventually he became a partner at Morse, Barnes-Brown & Pendleton P.C. (Morse), developing "a highly specialized legal practice focused on federal securities regulation and private investment fund formation."

In July 2013, Mr. Kelly moved with his family to Utah, intending to seek admission to the Utah State Bar (Bar) in order to help Morse open a Salt Lake City office. Throughout 2013 he worked from home for Morse clients who were not located in Utah. In March 2014, Mr. Kelly contacted the Bar about submitting an application and was told he would need to meet the foreign law school graduate education requirements to be eligible for the bar exam.

His foreign education did not qualify

Even though he received his education from a highly ranked school rooted in English common law, we cannot conclude on the available evidence that Toronto law school provides an education that is functionally equivalent to the education provided at an ABA-approved law school. Mr. Kelly did not receive the same extensive instruction in U.S. law that a graduate from an ABA-approved law school would receive. To be sure, he did focus on a legal corpus that, like U.S. law, derives from the same parent—English common law. And this corpus may have provided Mr. Kelly with legal knowledge and skills bearing a resemblance to U.S. law.  But this information alone does not establish by clear and convincing evidence that the education he received at Toronto law school was "functionally equivalent to the education provided at ABA-approved schools."

But his combination of education and experience justified the waiver  and the court granted him permission to sit for the Utah bar exam

Because Mr. Kelly’s unique background and experience distinguishes him from other applicants—a guiding star in our analysis—waiver is appropriate. We hold that where an attorney has graduated from a highly regarded foreign law school that is rooted in the English common law, and has been actively, lawfully, and recently engaged in the full-time practice of law for over ten years, we will grant a waiver of rule 14-704(c)(5). This waiver does not guarantee Mr. Kelly’s admission to the Utah State Bar. It only provides him with the opportunity to sit for the bar examination and demonstrate he possesses the basic legal knowledge and skill needed to practice in this jurisdiction.

The court noted

Massachusetts, unlike Utah, allows graduates of Toronto law school "to sit for the general bar examination or apply for admission on motion on the same basis as graduates of law schools approved by the American Bar Association."

(Mike Frisch)

February 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

District Of Columbia Seeks New Disciplinary Counsel

A job listing is now posted for a new District of Columbia Disciplinary Counsel.

 For the first time in the 45 year history of the D.C. Bar, a search firm has been "exclusively retained" to handle the process.

This raises a number of questions that I suspect will never be answered. 

Why is the use of a search firm either necessary or appropriate to select the new Disciplinary  Counsel?

Who selected this firm to oversee the selection process?

What is the cost?

Will the process exclude the views of the staff of the office, which have been considered in the past?

Will the process exclude or screen applicants rather than have that done by the Board on Professional Responsibility and the Court of Appeals?

From the posting

The District of Columbia Board on Professional Responsibility (“D.C. Board on Professional Responsibility” or the “Board”) has exclusively retained Major, Lindsey & Africa to conduct a search for its Disciplinary Counsel to be located in Washington, D.C. Interested candidates please submit your resume and cover letter in MS Word to the recruiters managing this search, Deborah Ben-Canaan at dbencanaan@mlaglobal.com, Michael J. Herald at mherald@mlaglobal.com, or to the MLA recruiter who contacted you about this position, or by submitting your resume to DisciplinaryCounsel@mlaglobal.com. The D.C. Board on Professional Responsibility is an equal opportunity employer.

Overview

The Disciplinary Counsel is responsible for investigating and disposing of all matters involving alleged misconduct by an attorney subject to disciplinary jurisdiction of the Court of Appeals. The Disciplinary Counsel participates in the development and communication of professional standards, directs the investigation of complaints, conducts or directs prosecutions of selected cases, and manages the resources and staff of the office. This position reports to the Chair of the Board on Professional Responsibility.

The position also, if done properly, actually is an independent actor that reports to the Court of Appeals. 

I find that part of the "overview" poorly understands the dynamic between Disciplinary Counsel and the BPR, although it may accurately reflect the BPR's view. 

 Education:

o A Juris Doctorate from an accredited law school.

o An active member of the D.C. Bar or eligible to become an active D.C. Bar member.

 Required Experience:

o Attorney with a minimum of 15+ years of relevant work experience. o At least 8 years of experience including litigating complex civil and criminal cases and supervising other attorneys in such work.

o Demonstrated leadership and management skills with the ability to develop and manage collaborative business relationships both internally and externally.

o Strong familiarity with information technology systems, with the ability to keep abreast of new technologies.

o Ability to handle and maintain the confidentiality of highly sensitive information

The last time Disciplinary (then-Bar) Counsel was selected, there was a coronation rather than a competitive process.

That Board chose unwisely and there is a huge mess to start cleaning up.

It has thus never been more important to choose the next Disciplinary Counsel in the public interest rather than the interest of the Bar.

While I applaud a broad outreach to interested applicants, the use of an "exclusively retained" search firm is a disquieting start to this vitally important process. (Mike Frisch)

February 7, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, February 6, 2017

Publication Of Bar Action Not Substantial Mitigation

The Law Society of British Columbia Review Board affirmed imposition of a two-month suspension of an attorney for

professional misconduct by improper handling of clients’ trust funds, failure to maintain proper accounting records, intentional misrepresentation to the Law Society by backdating statements of account, and breaches of undertakings.

In brief overview, the citation in this case arose from the Respondent receiving funds from clients and depositing them directly into his general account in payment of fees for services when he had not issued or delivered statements of accounts.  After receiving notice of a compliance audit, and prior to the audit, the Respondent and his bookkeeper created numerous “backdated” statements of account, which made it appear as if the statements of account had been issued at the time that the funds were received.  The citation included a number of allegations related to this conduct, including improper handling of trust funds and failure to maintain accounting records.  The citation also included unrelated conduct involving the Respondent breaching undertakings imposed by ICBC that required him to obtain his clients’ signatures prior to disbursing settlement funds.

One interesting claim came post-hearing

The Respondent seeks to introduce evidence pertaining to events that have occurred since the release of the hearing panel’s decision.  The Respondent seeks to admit new evidence in relation to four issues:

(a)   The Law Society’s press release following his disciplinary matter, which the Respondent says was unfair and damaging (the “Press Release”).  The Press Release described the Respondent’s conduct as “misuse of trust funds,” which the Respondent says led readers to believe that he had misappropriated trust funds.  The Press Release did not report the hearing panel’s conclusion that the Respondent’s clients had not suffered any harm from his actions (nor had he gained from them);

(b)   An alleged breach of a publication ban by the Law Society with respect to a prior disciplinary matter involving the Respondent;

(c)   The Law Society’s online posting of incorrect information concerning the Respondent’s practice status in July, 2015; and

(d)   The general impact of the above on the Respondent’s character, reputation and professional standing.

The fresh evidence consists of two affidavits presented at the commencement of this Review on March 8, 2016 and at the continuation of the Review on May 31, 2016.

The "fresh evidence" was rejected

It is our view that the evidence regarding the impact of the publication of details regarding the disciplinary action upon the Respondent’s practice and reputation should not be admitted as fresh evidence in this Review.  The hearing panel considered at length the Respondent’s submissions concerning the stress and embarrassment caused by the disciplinary process.  The hearing panel expressly accepted that this matter involved a serious impact on the Respondent, stating at paragraphs 67 and 68:

The disciplinary process to date has caused the Respondent a great deal of embarrassment and stress.  He has been practising in the shadow of this process.  The decision on Facts and Determination is the second “hit” when his name is searched on Google.  He has also had people calling him to ask about the decision.  He has found those calls gut-wrenching and feels that he has let colleagues down.

The Panel finds that the suspension will have a serious impact on the Respondent and his practice.  His practice is his only source of income.  He has already endured substantial embarrassment and stress as a result of the disciplinary process.  The Panel finds this to be a mitigating factor in its consideration of the appropriate disciplinary action.

The evidence that the Respondent seeks to introduce is of a similar nature to the evidence already provided to the hearing panel.  Evidence regarding the effects of the disciplinary process on the Respondent’s practice and reputation was already before the hearing panel.  In our view, the additional evidence provided by the Respondent when taken with the evidence that was already presented at the penalty hearing, would not have affected the penalty imposed. 

Further, as set out in greater detail later in these reasons, it is this Review Board’s view that the impact of publication of disciplinary proceedings on a respondent lawyer should generally not attract much weight in determining the appropriate penalty.  We consider that publication is necessary to meet the statutory duties of the Law Society.  We also consider that publication will in most instances have a negative effect on the respondent lawyer, including stress, anxiety, embarrassment and loss of reputation.  These results are to be expected from disciplinary proceedings.  In our view, however, it should generally not have a substantial effect on the nature of the penalty imposed.

 We therefore find that the fresh evidence that the Respondent seeks to admit does not meet all elements of the Palmer test and as such cannot be admitted.  The application to admit fresh evidence is dismissed.

As to sanction review

The appropriate range approach acknowledges that there is no single correct result in penalty decisions.  It avoids second-guessing the hearing panel and avoids allowing any party “two kicks at the can.”  This is also reflected in the “no tinkering” admonition.  If the penalty is within the appropriate range, it should not be changed simply because the review board may have picked another spot on that range.  Notwithstanding the monetary examples given by the Benchers in Hordal, we are of the view that “no tinkering” is not only a quantitative admonition.  It is also qualitative in the sense that it discourages substitution of the review board’s assessment for that of the hearing panel unless the review board finds that the hearing panel’s decision was not within an appropriate range of outcomes based on the circumstances of the case.

(Mike Frisch)

February 6, 2017 in Bar Discipline & Process | Permalink | Comments (1)

Costs Denied Against Law Society For Abandoned Charges

An attorney's motion for costs against the Law Society of Upper Canada was denied by the Tribunal Appeal Division

the appeal is dismissed. There was ample reason for the hearing panel to deny the Lawyer an award of costs as against the Law Society, particularly having regard to the onus which lies upon the Lawyer under the provisions of Rule 25.01 of the Rules of Practice and Procedure, and, accordingly, the decision was reasonable. Similarly, the award of costs against the Lawyer under the second Order was a reasonable and justifiable exercise of the hearing panel’s discretion relating to costs of the motion which gave rise to the first Order.

The complaint was filed by a former client who sought refugee status

A Proceeding Management Conference (“PMC”) was set for April 13, 2015 but adjourned to April 27 after the Lawyer retained Pantea Jafari as his counsel. By letter dated April 29 the prosecutor advised the Lawyer that she was withdrawing the Notice of Application and enclosed her Notice of Abandonment. She had earlier advised the Lawyer that the Application would be abandoned, in a telephone call on April 24, and so advised the Tribunal at the PMC held on April 27, 2015.

But

The Lawyer filed a Notice of Motion seeking an award of costs against the Law Society on a number of grounds which can be summarized as an allegation that the Law Society failed, from 2013 forward, to discover the futility of its case. He submitted to the hearing panel that high-handed conduct by the Law Society should merit an award of costs in his favour for the hardship, time and expenditure incurred by him in defending against charges known to be spurious since January 2013.

The governing law

Under Rule 25.01, the onus is on the Lawyer to establish either that: (i) the proceeding was unwarranted; or (ii) the Law Society "caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default." Even if the test is met under either branch, the panel retains the residual discretion to refuse to award costs.

The hearing panel did not find the proceeding to be unwarranted as there existed an arguable evidentiary basis on which a panel might reasonably have concluded that the Lawyer engaged in misconduct. There was no evidence of bad faith or patent unreasonableness.

Neither did the hearing panel find that the test for costs was met under the second branch. The panel noted that discontinuance of an application alone is not a basis on which to award costs. Discipline Counsel is not being procedurally wasteful or taking an unreasonable position by withdrawing an application on the basis that there is no longer a reasonable prospect of obtaining a finding.

A parting shot

The second matter of concern to us is the Lawyer’s repeated use of egregious and demeaning language when describing members of the PAC, the hearing panel, Discipline Counsel and investigators employed by the Law Society. While we disregarded this language in reaching our decision, we observe that unnecessary and inappropriate use of rude, abusive and unfounded descriptive language does nothing to advance the cause of the party engaging in such behavior. The Law Society Tribunal expects licensees and counsel to conduct themselves in accordance with the high standards of civility and proper decorum that are contemplated by our Rules of Professional Conduct.

(Mike Frisch)

February 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Unhappy Complainant Lacks Standing To Appeal Dismissal Of Bar Grievance

The New Hampshire Supreme Court dismissed a petition for writ of certiorari, holding that an unhappy complainant lacks standing to challenge dismissal of a bar grievance.

The petitioners, Sanjeev Lath and Barbara Belware, have petitioned for a writ of certiorari, see Sup. Ct. R. 11, challenging the decisions of the Office of General Counsel of the Attorney Discipline Office (ADO) and the Complaint Screening Committee (CSC). The ADO had dismissed a grievance filed by the petitioners against Attorney John F. Bisson. Upon the petitioners’ request for reconsideration, the CSC affirmed the ADO’s decision. In their petition, the petitioners argue that the ADO and the CSC erred by declining to docket their grievance as a complaint, and that the CSC erred by failing to answer the questions raised in the petitioners’ request for reconsideration. The respondents—the ADO and Attorney Bisson—challenge the merits of the petitioners’ claims, and also assert that the petitioners lack standing to bring this petition. Because we conclude that the petitioners lack standing, we dismiss the petition.

The posture

...the record reflects the following facts. On December 30, 2015, the petitioners filed a grievance with the ADO. The petitioners’ grievance arises out of the annual meeting of the Oak Brook Condominium Owners’ Association, which took place in November 2015. The petitioners are unit owners at Oak Brook Condominium. Attorney Bisson represented the condominium association at the meeting. The petitioners allege that, during the meeting, Attorney Bisson violated the Rules of Professional Conduct by, among other things, recording the meeting without the petitioners’ knowledge or consent.

The ADO reviewed the factual allegations in the petitioners’ grievance, along with the exhibits that the petitioners provided. On January 15, 2016, the ADO’s assistant general counsel sent a three-page letter to the petitioners, in which he reviewed the allegations, assessed the claimed violations, and explained the reasoning that led to his conclusion that “a hearing panel would not likely find clear and convincing evidence that” Attorney Bisson violated the Rules of Professional Conduct. Regarding the claim that Attorney Bisson made a recording without the petitioners’ knowledge or consent, he noted that one of the petitioners’ exhibits showed that, in fact, the meeting had not been recorded. Based upon the analysis of the petitioners’ allegations, the ADO declined to docket the petitioners’ grievance as a complaint.

A request for reconsideration was denied and the appeal followed.

...disciplinary proceedings are not treated as “lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent [attorney].” Merski, 121 N.H. at 909 (quotation omitted). The grievant participates in the proceedings not to enforce his or her own rights, but to “supply evidence of the alleged attorney malfeasance.” Akinaka v. Disciplinary Board, 979 P.2d 1077, 1085 (Haw. 1999). This principle is reflected in the rules governing the attorney discipline system, which make clear that a grievant may not control the prosecution of a charge, see Sup. Ct. R. 37(18), and that the complainant is not a party to the disciplinary proceeding, Sup. Ct. R. 37A(I)(j).

Because attorney disciplinary proceedings are structured in this manner, no personal rights or remedies of the grievant are adjudicated in, or directly affected by, a disciplinary proceeding. The grievant neither receives a legally cognizable benefit when an attorney is disciplined, nor sustains a legally cognizable injury when the attorney is not disciplined. Rather, the benefit of attorney discipline is bestowed upon the public at large...

...in light of the nature and purposes of the attorney discipline system, we conclude that a grievant does not have a personal interest in the outcome of an attorney disciplinary proceeding that is sufficient to confer standing. In reaching this conclusion, we join the many courts that have likewise held that a grievant does not have standing to challenge the disciplinary authority’s disposition of a grievance.

(Mike Frisch)

February 6, 2017 in Bar Discipline & Process | Permalink | Comments (0)