Thursday, June 16, 2016
An Arizona Hearing Panel has imposed a suspension of six months and a day
The single count complaint arose out of Ms. Killion’s actions over several years. The actions revolve around the unrefuted extreme abuse of alcohol by Ms. Killion, her threats to have Complainant Bart Barrett killed, a man with whom she had occasional sexual relations, her threats to misuse her position as an attorney to intimidate or cause him harm, and her long term and wide reaching harassment of him, his family members, and associates.
The attorney's initial response
Ms. Killion filed her answer on June 24, 2015. [See Response to Complaint filed June 24, 2015.] In her answer she requested: “protection against the State Bar of Arizona and any and all persons associated with the State Bar of Arizona”; “reasonable attorney salaries that Respondent could have earned but for Complainant’s actions from the year 2005 to retirement age”; “for all retirement funds that Respondent could have accrued but for Complainant’s actions from the year 2005 forward”; and “for all reasonable attorney salaries and law school tuition and costs that Respondent could have earned or has expended if the State Bar of Arizona admitted Respondent to practice law imprudently and/or with malicious or careless intent.” She also sought general, special, and punitive damages against the State Bar.
We find Ms. Killion’s harassing and threatening Mr. Barrett with criminal charges based on her “large file” of evidence in an effort to intimidate him is wrongful, with or without an existing attorney-client relationship. She also harassed others in order to further harass him. Attorneys bear ethical responsibility to the public and profession. When a member of the public knows someone is an attorney and is subsequently threatened by that attorney, the Panel cannot see how this would not be a misrepresentation of an attorney’s power or a dishonest use of legal knowledge. Ms. Killion used her status as an attorney as a tactic to encompass her target in fear of legal ramifications. [Testimony of Mr. Barrett, stating his fear of Ms. Killion using her abilities as an attorney because she was “potent with the pen”.] Ms. Killion also used an alias to harass individuals. [SB Ex. 18.] The Panel finds Ms. Killion violated ER 8.4(c)...
The Panel finds Ms. Killion went beyond negligence in her misconduct and acted knowingly, if not intentionally: her harassing behavior toward Mr. Barrett and those associated with him; the litigation threats toward Mr. Barrett through the use—and abuse—of her legal training; and abuse of her position as an attorney to impose fear on individuals.
The actions of Ms. Killion were obsessive. Whether caused solely by her use of alcohol or for some other underlying cause, Ms. Killion fixated on Mr. Barrett and acted out that fixation with harassing behavior to others to control him. These behaviors were apparent to us throughout the hearing. We are concerned at the imbalance demonstrated and her conduct in this proceeding. We find the evidence clear and convincing she violated the Ethical Rules failing her duty to the public and legal profession. The commentary to ER 8.4 states a “lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.”
The appended charging document recites some of the communications at issue, such as: "His Dick? Small. But did I love him? Yes. But you undid that. And now I will undo your life [name omitted]...and plus his dick barely works anyway."
The attorney had been an associate at Lewis & Roca. (Mike Frisch)
An Arizona attorney who made false statements to secure postponements in civil and bar matters was suspended for three years by the Presiding Disciplinary Judge.
Ms. Lyons was asked numerous times to substantiate she had cervical cancer. This request was based on Ms. Lyons’ use of her medical condition to request an extension of time to respond to the State Bar in count one. Ms. Lyons told the State Bar she “received devastating news regarding [her] on-going battle with cervical cancer in that additional surgery and treatment is needed and, if not removed from the surrounding organs, the cancer has been deemed terminal.” In count two, she used her cervical cancer as a justification for a continuance before Judge Trebesch.
After numerous requests for documentation to support this very serious medical condition, Ms. Lyons has failed to do so, even refusing to sign releases so the State Bar could obtain the records with no upfront expense to Ms. Lyons. We find Ms. Lyons was using this horrific, and apparently fraudulent, diagnosis to garner sympathy and inappropriate delays for her benefit and for her client’s benefit, as the only issue left to be determined in count two was the child support her client had to pay. [Exhibit 10, Bates 414 ; Exhibit 11, Bates 44.] Ms. Lyons also cited the death of her father as one of the substantial losses she had endured. The State Bar’s investigation revealed that the person who passed away was not her father.
The attorney had earlier been suspended for lapses in her CLE obligations. (Mike Fr isch)
The Oregon Supreme Court reversed and remanded a previously dismissed legal malpractice claim.
This is a legal malpractice and negligent misrepresentation case where we review a trial court judgment directing a verdict in favor of Platten (defendant). In an earlier lawsuit, defendant had represented the Harknesses (plaintiffs) against Kantor, a loan officer, and her successive employers, Sunset Mortgage (Sunset) and Directors Mortgage, Inc. (Directors), as the result of a fraudulent investment and loan scheme directed at plaintiffs by Kantor. That case did not settle to plaintiffs’ satisfaction, and plaintiffs sought to recover their remaining loss from defendant. In this case, the trial court granted defendant’s motion for a directed verdict based on the conclusion that plaintiffs’ liability theories of apparent authority and respondeat superior asserted against Sunset and Directors were not supported by sufficient evidence in the record and could not have led to a result more favorable than the settlement. Plaintiffs appealed the trial court ruling, and the Court of Appeals affirmed. Harkness v. Platten, 270 Or App 260, 348 P3d 1145 (2015). For the reasons explained below, we reverse the decisions of the trial court and the Court of Appeals.
As to the evidence of apparent authority
We conclude... that the Court of Appeals made two missteps in determining that Sunset and Directors had made no manifestations from which plaintiffs could reasonably have concluded that Kantor was authorized to perform the acts constituting the fraudulent scheme. First, the court disregarded evidence concerning the actual authority with which Sunset and Directors clothed Kantor. Second, the court does not appear to have considered evidence in the record relating to the usual or customary authority of a loan officer for a mortgage company...
Viewing that evidence in the light most favorable to plaintiffs, we conclude that a reasonable factfinder could infer that Sunset and Directors manifested their assent to be bound by the acts of Kantor through the observable connections between Kantor and those organizations...
We further conclude that a reasonable factfinder could infer from the evidence that it was reasonable for plaintiffs to believe that Kantor was authorized—as a loan officer for Sunset and Directors—to engage in the investment and loan scheme on behalf of those companies. In particular, a factfinder could infer that plaintiffs reasonably believed that Kantor’s actions were part of her usual or customary authority as a loan officer hired by Sunset and Directors to make and arrange loans on behalf of the mortgage companies.
Based on the evidence we have discussed in relation to plaintiffs’ theory of apparent authority, we also conclude that a factfinder could infer that the requirements for holding an employer vicariously liable under the doctrine of respondeat superior are met in this case.
New Jersey Bar Sanctions: No Suspension When Attorney With Prior Discipline Finds New Rules To Violate
An attorney with a record of prior discipline that included failure to supervise an embezzling employee has been censured by the New Jersey Supreme Court.
Notably, the court followed the recommendation of the Disciplinary Review Board, which had rejected the District Ethics Committee's call for a six-month suspension.
In recommending a six-month suspension, the DEC placed great emphasis on respondent’s ethics history -- a reprimand (failure to supervise, negligent misappropriation, commingling, and recordkeeping violations) and a three-month suspension (charging improper expenses, failing to promptly deliver funds, recordkeeping violations and misrepresentations to ethics authorities), finding that his prior suspensions had little "impact" on him. However, the earlier cases involve different types of misconduct, from that present here and, therefore, cannot be said that he failed to learn from his prior mistakes.
The board report reflects the rather sad state of New Jersey attorney ethics
In sum, the totality of respondent’s misconduct in both matters include violations of RP__~C 1.2, RPC 1.3, RPC 1.4(b), RP__C 3.2, RPC 8.4(c), and R. 1:21-IA(3). The only issue left for determination is the proper quantum of discipline. Generally, a misrepresentation to a client requires the imposition of a reprimand. In re Kasdan, 115 N.J. 472, 488 (1989). A reprimand may still be imposed even if the misrepresentation is accompanied by other ethics infractions. (citations to the many disheartening supporting precedents omitted)...
Had this been respondent’s first brush with the ethics system, a reprimand could have been justified. However, his disciplinary history warrants increasing the discipline to a censure.
Member Gallipoli and Member Zmirich voted to impose a sixmonth suspension. Vice Chair Baugh and Member Clark did not participate.
Hey New Jersey lawyers with prior serious discipline. Make sure you find new rules to violate when you have your third brush with New Jersey bar discipline. (Mike Frisch)
The Utah Supreme Court vacated a disbarment order while agreeing that the attorney engaged in misconduct meriting a suspension
Mr. Ciardi’s saga began with an incident in the Fifth District Court in 2011, where he was scheduled to appear to represent a client. Mr. Ciardi was not present when the judge called his case, so the judge dismissed it. During the next roll call, Mr. Ciardi interrupted the judge’s calendar and asked the court to recall his case. The judge told Mr. Ciardi not to interrupt his calendar and to sit down. Mr. Ciardi ignored these instructions and continued to argue with the judge. The judge then ordered Mr. Ciardi to leave the courtroom. As a bailiff escorted Mr. Ciardi from the courtroom, he caused a disturbance. Mr. Ciardi continued to yell and make disparaging remarks about the judge in the hallway outside the courtroom.
Mr. Ciardi then went to the clerk’s office and became belligerent with the clerk. The clerk found it necessary to request the assistance of a bailiff to deal with him. The bailiff asked Mr. Ciardi to leave the courthouse numerous times, but he refused and continued to yell at the bailiff and make disparaging remarks about the judge. A second, and then a third, bailiff was called to the clerk’s office, where the incident lasted approximately one hour. Eventually, two bailiffs escorted Mr. Ciardi out of the courthouse while he yelled obscenities at the bailiffs in front of members of the public.
He entered an Alford plea to disorderly conduct but at a bar screening panel hearing
At the hearing, Mr. Ciardi continued to behave badly, making disparaging remarks about the fifth district judge and the court, calling the latter’s proceedings “slipshod, amateurish” and, in the case of appeals from justice courts, “sham appeals.” Mr. Ciardi also expressed his disdain toward the screening panel members and the proceedings before the panel, referring to the hearing as a “complete sham” and a “joke proceeding.” He also repeatedly interrupted witnesses and referred to them as liars and idiots.
We believe that a lengthy suspension, certainly one as long as the two years that have passed since the district court disbarred Mr. Ciardi, is an adequate response to the specific behavior charged and found by the district court. We therefore reinstate Mr. Ciardi’s right to practice law in the State of Utah as of the date of this opinion.
We note that in so holding, we do not take the view that there should be no consequences for Mr. Ciardi’s reckless and offensive allegations of bias, discrimination, and incompetence of Utah judges and Utah courts contained in his pleadings before the district court and this court. Should the OPC deem it advisable, these actions would certainly warrant investigation.
Wednesday, June 15, 2016
The Oklahoma Supreme Court has reinstated an attorney who had resigned, but have required him to pass the bar exam
He had resigned without any charges pending
Due to personal family reasons, Petitioner voluntarily tendered his resignation from the practice of law to the OBA on June 16, 2006. The OBA approved Petitioner's resignation effective July 6, 2006, pursuant to Article II, Section 3 of the Rules Creating and Controlling the Oklahoma Bar Association.1 At the time of Petitioner's resignation, no disciplinary proceedings or grievances were pending against him. However, Petitioner was administratively suspended for failing to pay $100.00 in CLE late fees prior to the effective date of Petitioner's resignation...
In the ten (10) years since Petitioner's resignation, Petitioner has earned his living working in various employment positions. Relying heavily on his work as an instructor, director, and current paralegal, Petitioner advances those law-related duties as evidence of his competency in the law. While the valuable education Petitioner's students receive is related to the law, teaching paralegal courses to non-attorneys and working as a paralegal does not rise to the level of training and competency expected of Oklahoma practitioners. Similarly, Petitioner's additional evidence of competency-namely, that he regularly reads the Oklahoma Bar Journal, other legal publications, and has taken four hours of CLE (including one hour of legal ethics)-falls short of this Court's exacting standard. Oklahoma practitioners are required to take twelve hours of continuing legal education, including one hour of ethics, every year. See Rule 3, Rules for Mandatory Continuing Legal Education, Okla. Stat. tit. 5, ch. 1, app. 1-B. Yet, to date, Petitioner has only completed four hours since his resignation in 2006. Simply put, Petitioner's extended absence coupled with his failure to maintain competency in the law through OBA approved CLE courses weighs heavily against an affirmative finding in favor of Petitioner's competency.
Petitioner has failed to demonstrate his competency and learning in the law by clear and convincing evidence. In order for Petitioner to demonstrate his competency and learning in the law, Petitioner must retake and successfully pass the Oklahoma Bar Examination. Therefore, Petitioner, Harold Glenn Drain's application for reinstatement is granted contingent upon successful completion of the Oklahoma Bar Examination.
An attorney was disbarred by the New York Appellate Division for the First Judicial Department as a result of a felony conviction
Respondent's conviction stems from conduct arising from his activities as the managing partner of Baystar Capital II, L.P. (Baystar), a private investment fund. Baystar primarily made short-term investments but it also invested in several illiquid, difficult-to-value investments, referred to as "side pockets." When these investments were realized, or deemed realized, gains or losses were allocated to investors' capital accounts.
In 2003, Baystar made an $8.4 million "side pocket" investment in Island Fund LLC. By 2006, the Island Fund side pocket investment had generated a return of more than $16 million to Baystar before deductions for expenses and taxes. Without consulting or informing the investors in Baystar, respondent used "a substantial amount" of those funds to invest in other entities, including some in which he had an economic interest. Respondent accounted for such diversions by, inter alia, creating loan notes between the other entities and the Island Fund side pocket. Further, in response to investor inquiries regarding whether Island Fund had made distributions to Baystar, respondent intentionally failed to disclose that such distributions had been made because he did not want investors to question him about his use of the funds. Additionally, respondent admitted that monthly fund updates sent to investors at his direction failed to disclose the monies remitted to Baystar by Island Fund and respondent's use of such funds.
In March 2011, respondent entered into both a deferred prosecution agreement with the U.S. Attorney's Office and a consent judgment with the SEC whereby he agreed to disgorge approximately $12 million and pay a civil fine of $130,000 pursuant to an agreed upon payment schedule. By decision and order of June 20, 2012, respondent was found in civil contempt for failing to comply with the terms of the consent judgment. The court found that, after making some of the agreed upon payments, respondent spent hundreds of thousands of dollars on personal indulgences, including private air travel and vacations (2012 WL 2343668, 2012 US Dist LEXIS 85628 [ND Cal 2012]). By subsequent order, the court appointed a receiver to identify and take control of respondent's assets and income, and to sell those assets to pay down the judgment (2013 WL 4504271, 2013 US Dist LEXIS 118942 [ND Cal 2013]). Respondent's failure to make the required payments under the judgment not only resulted in a contempt finding, but it was deemed a breach of his deferred prosecution agreement and the criminal case against him was allowed to proceed. As noted, respondent plead guilty to wire fraud in that prosecution.
He had failed to report the conviction as required. (Mike Frisch)
From the web page of the Ohio Supreme Court
The Ohio Supreme Court today suspended from the practice of law a Virginia man who worked for a Cleveland law firm and accessed his former employer’s email accounts after his termination.
In a unanimous per curiam opinion, the Supreme Court suspended Brandon L. Azman of Arlington, Virginia, for one year with six months stayed on conditions. The Court found Azman not only accessed the account of his former employer, but also other employees of the firm, and he deleted some email communications then lied about the deletions under oath.
Accessed Account for Weeks After Termination
Azman worked for the Piscitelli Law Firm in 2012 and 2013, but was terminated by Frank Piscitelli. Azman learned the login credentials and passwords for Piscitelli’s email and those of three other employees. The day of his termination he began accessing those accounts without authorization and continued for two-and-a-half weeks. Firm employees changed their passwords, but Azman was still able to obtain their updated information and continued to view their emails, accessing the system at least 20 times.
Azman sent two emails to Piscitelli asking if he would write a letter of recommendation, but Piscitelli did not respond. Azman then emailed Piscitelli indicating he met with one of the law firm’s clients and proposed that in exchange for the letter of recommendation, he would “be willing to negotiate a non-compete of sorts” with the firm.
Piscitelli replied that he terminated Azman for poor work performance and would not provide a letter. He told Azman he would pursue legal action against Azman if he contacted firm clients, harassed firm employees, or made additional threats to him or the firm. Piscitelli forwarded the email exchange to another employee in his office. Azman then logged into the firm’s email and deleted the communications between him and Piscitelli from both Piscitelli’s and the other employee’s accounts.
When Piscitelli discovered the emails were deleted, the firm contacted local police, who traced the unauthorized access to Azman’s residence. Piscitelli agreed not to pursue a criminal complaint against Azman if Azman reported his conduct to the Cleveland Metropolitan Bar Association. Azman notified the bar association of his termination and his unauthorized viewing of firm emails, but during a deposition he denied purposely deleting any firm emails. It was not until disciplinary hearings by the Board of Professional Conduct that Azman admitted he deleted the emails.
The board found Azman violated several rules governing the conduct of Ohio lawyers including unlawfully destroying or concealing material having potential evidentiary value, engaging in conduct that is prejudicial to the administration of justice, knowingly making a false statement in connection with a disciplinary matter, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Board Weighs Aggravating, Mitigating Factors
To determine a recommended sanction, the board considered the aggravating factors in Azman’s case including his selfish motive, engaging in a pattern of wrongful conduct over a two-week period, committing multiple offenses, and knowingly making a false statement. Mitigating factors the board considered included Azman having no prior discipline, ultimately acknowledging his wrongful conduct, and that the conduct did not involve the provision of legal services or negatively impact a client’s case. The board also noted that except for the false statement during his deposition, he displayed a cooperative attitude during the disciplinary process.
The Court accepted the board’s recommended sentence. Azman’s one-year suspension was stayed for six months on the conditions that he not engage in further misconduct and pay the costs of the disciplinary proceedings.
Dan Trevas wrote the summary. (Mike Frisch)
Tuesday, June 14, 2016
Dan Trevas has this summary of a bar discipline decision of the Ohio Supreme Court
Mahin Convicted of Felony Theft
In 2015, the Court suspended Mahin on an interim basis after receiving notice that he was convicted of fifth-degree felony theft for misappropriating funds from his former law firm. The Hamilton County Common Pleas Court sentenced him to one year of community control, and ordered him to perform 80 days of community service. The Office of Disciplinary Counsel filed a complaint against him with the Board of Professional Conduct based on the conviction.
The board considered a “consent-to-discipline agreement” in which Mahin admitted that beginning in 2013 he took about $15,000 of law-firm funds for his own personal use. He also fraudulently endorsed a client’s name on a nearly $271 settlement check and then deposited the proceeds into his personal account. In addition, he admitted signing a settlement document stating he witnessed a client’s signature, when in reality the client died before the document was signed.
Mahin and the disciplinary counsel stipulated that Mahin’s conduct violated several rules including the prohibition on a lawyer committing an illegal act that reflects adversely on the lawyer’s honesty and trustworthiness, and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Completed Sentence, Other Factors Considered
The parties presented mitigating factors including that Mahin had no prior discipline, made full restitution to the firm and former client, fully cooperated with the disciplinary process, presented evidence of good character, and completed his felony sentence. The board also noted that Mahin voluntarily entered into a mental health contract with the Ohio Lawyers Assistance Program (OLAP), and was diagnosed with a depressive disorder that his treating psychologist concluded contributed to the misconduct. The doctor indicated Mahin is ready to return to the ethical and professional practice of law.
Aggravating factors presented to the board included Mahin having a dishonest and selfish motive, engaging in a pattern of misconduct, and committing multiple offenses.
The Court adopted the parties’ proposed sanction of a two-year suspension with the second year stayed provided that Mahin continue psychological counseling, comply with his OLAP contract, submit to law-practice management counseling, serve two years of monitored probation upon his reinstatement, and not engage in further misconduct. The Court also granted Mahin credit for time served under his interim suspension.
Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the opinion.
Chief Justice Maureen O’Connor and Justice Terrence O’Donnell dissented, stating they would remand the case to the board to reconsider granting Mahin credit for time served.
Monday, June 13, 2016
A rather unfunny prank drew a 30-day suspension from the Delaware Supreme Court, which approved a recommendation of its Board on Professional Responsibility in favor of that sanction.
The incident involved a highly experienced Deputy Attorney General of Sussex County who had no record of prior discipline.
On the fateful and busy day of the misconduct (February 4, 2015), he and a number of colleagues were sharing a witness room in the courthouse while handling a number of cases.
It was a stressful day.
One of his colleagues (Donahue) decided to have some fun with him. They had worked closely together for years and considered themselves to be part of a "band of brothers." They had a history of pranking each other.
The prank started because of the sanctioned attorney 's well-known "aversion to the smell of hardboiled eggs" which caused a gag reflex. There was a running joke in the office over the so-called "hardboiled egg feud."
When the attorney came into the room, Donahue was "eating an egg over his files with additional eggs sitting in his box of files." This caused those in the room to engage in unrestrained laughter.
The attorney's response led to the suspension. He left the room and talked the court's security chief into entering the room with gun drawn and ordering Donahue to "keep the eggs away from his files."
The security chief (Garrison) succumbed to his importunings. He entered the witness room, pointed his gun at Donahue and uttered the following: "Gelof says keep the eggs away from his files."
Everyone thought it was quite funny. Except for another law enforcement officer in the room, who at first perceived a threat and reported the incident.
Authorities failed to see the humor. Extensive resources were poured into the ensuing investigation. Garrison had his gun taken away. The attorney was suspended for two months and demoted.
Disciplinary authorities also did not find the conduct funny either.
Earlier coverage from Delaware Online. (Mike Frisch)
The West Virginia Supreme Court of Appeals reversed the grant of summary judgment to the defendant attorney in a legal malpractice claim and directed that the plaintiff instead be awarded summary judgment.
The issue involved negligent title work that had led to serious repercussions.
Before turning to the arguments of the parties, we note that this case involves malpractice in the performance of transactional work (giving advice or preparing documents for a business transaction) as opposed to litigation malpractice...
The following example illustrates the proximate cause analysis utilized in a transactional legal malpractice claim.
If the client’s position is “my lawyer gave me bad advice that I followed, and it cost me money,” the client in effect is saying, “My lawyer gave me incorrect advice. I acted in reliance on this advice, and as a proximate result, I sustained $ x in damages. But for that advice, I would not have been damaged at all.” At times, the attorney’s negligence does not relate to decisions made in the course of litigation but involves some recommendation or guidance negligently given. Therefore, the “case within a case” will not entail the reconstruction of a trial or appeal; instead, the client must show alternative measures he could have taken “but for” the attorney’s faulty advice.
Richard H.W. Maloy, Proximate Cause: The Final Defense in Legal Malpractice Cases, 36 U. Mem. L. Rev. 655, 676 (2006) (emphasis added). The crux of Rubin’s argument is that the alternative measure here is obvious; had Mr. Morris alerted it to the declaration of pooling, Rubin would have availed itself of the substitution clause in its contract with WVE and avoided the losses at issue.
The court found that damages were established by the undisputed facts and that the plaintiff had mitigated the damages.
Applying this standard to the instant case, it is clear that Rubin took reasonable steps under the circumstances to mitigate its damages. After discovering the title defect, Rubin took responsible actions to minimize the liabilities arising from the problem, which is the essence of mitigation of damages. Rubin weighed the consequences to be avoided and assessed its overall exposure to liability at approximately $147,000 arising from Mr. Morris’s failure to alert it to the title defect.9 By contrast, Rubin negotiated a settlement with CNX that was much less expensive. Based on these facts, we find that Rubin’s decision to settle the matter with CNX instead of pursuing litigation on what it believed to be an unmeritorious affirmative defense of adverse possession was mitigation of damages. “Many settlements are a reasonable response to a difficult situation created by another’s negligence.”
The court also held that the plaintiff was entitled to damages for lost profits.
Application of these principles in a legal malpractice action does not make an attorney an insurer of pie-in-the-sky expectations of the client. Rather, this tenet simply operates to restore the client to the economic position that he or she would be in but for the attorney’s negligence.
An attorney convicted of a "serious crime" has been suspended on an interim basis by the District of Columbia Court of appeals.
The Washington Post reported on the conviction.
The onetime chief of staff of Vincent C. Gray’s campaign committee admitted to falsely obtaining almost $3,000 in unemployment benefits while still being paid by Gray’s successful 2010 campaign for D.C. mayor.
Stephanie Reich, 40, pleaded guilty in D.C. Superior Court late Friday to making a false statement to obtain unemployment compensation and was sentenced to 30 days of probation. Reich was charged with the misdemeanor in June.
According to prosecutors, Reich received $2,688 in unemployment compensation from the D.C. Department of Employment Services between September and November 2010. However, during that same period, Reich was paid $18,000 by Gray’s campaign to work as the campaign committee’s chief of staff. Prosecutors say Reich falsely told unemployment agency officials she was not working at the time.
Prosecutors then learned that in 2011, Reich was hired by the D.C. Department of Employment Services as the chief of staff for the agency’s director. Reich was later named the agency’s chief operating officer.
Prosecutors said Reich repaid the money in 2014. In January, Reich, who is also a lawyer, resigned from the agency.
Calls to Reich and to her attorney, Pamela Satterfield, were not returned.
The Ohio Board of Professional Conduct has issued an advisory opinion on imputed disqualification and legal interns.
A law student holding a legal intern certificate, issued by the Supreme Court under Gov.Bar R. II, is engaged in the limited practice of law and bound by the Rules of Professional Conduct. Conflicts of interest arising out of a legal intern’s current or former representation of clients are imputed to all lawyers in a private law firm when the intern is employed simultaneously as a law firm clerk. The conflicts of a former legal intern, newly employed as a lawyer, are not imputed to the lawyers in a law firm, but necessitate the screening of the lawyer from any matter he or she had substantial responsibility.
A legal intern certificate allows a law student to engage in the limited practice of law subject to the Rules of Professional Conduct. If a legal intern engages in simultaneous or future employment as a law firm clerk, any conflicts arising from his or her practice as a legal intern are imputed to the lawyers of the firm. Some imputed conflicts arising from a legal intern’s practice may be waived with client consent, but matters in which the legal intern had substantial responsibility cannot be waived under Prof.Cond.R. 1.10. Conflicts that may arise from a legal intern’s simultaneous employment as a law clerk in a law firm are not imputed to the legal interns or supervising attorneys in a legal clinic. Proper screening methods should be employed to prevent the exchange of confidential information possessed by the law clerk to the staff, legal interns, and supervising lawyers in the legal intern’s clinic. Once a legal intern’s certificate expires, and the former law student joins a law firm as a new lawyer, no conflicts from the lawyer’s limited practice as an intern are imputed to the lawyers in the firm, but screening of the lawyer is required.
An Illinois Hearing Board has recommended that an attorney suspended in 2006 for a year and until further court order be reinstated subject to conditions
Some of the Petitioner's conduct following his suspension in March 2006 was unacceptable. From September 2006 to November 2007, he failed to respond to requests from the ARDC for information regarding one of his clients. There was no justification or mitigating circumstances for his failure, and it demonstrated disrespect for the Supreme Court and the ARDC. In November 2008, Petitioner testified falsely before the Hearing Board at the hearing on his first reinstatement petition. Lying under oath and other acts of dishonesty by an attorney are egregious and cannot be tolerated. Petitioner in his testimony before us has acknowledged the above wrongdoing, has accepted sole responsibility for it, has made no attempt to justify it, and has expressed remorse for it.
Other conduct of Petitioner has been commendable and impressive. From 2007 to the present Petitioner has worked as a substitute teacher, and has earned certificates to teach full time in social studies and special education.
The committee also expressed concern that he had not been careful in ceasing to use the attorney title in a number of respects.
Also, while suspended, petitioner, for economic reasons, continued to use stationary that displayed the "scales of justice" logo or the words "Attorney at Law." He asked secretaries who typed his letters to white out the foregoing designations, but a "few letters" were sent out without the white out. Both the Hearing Board and the Review Board found that use of the foregoing stationary without the white out constituted "unintentional clerical errors" and "do not indicate that petitioner attempted to mislead others in believing he was an attorney."
The evidence showed that Petitioner failed to diligently utilize his conflicts checking system that he set up in January 2004. He lost track of clients' cases and files. He did not examine the sign in front of his office for several years to determine if the duct tape he applied still covered the word "law." He had no system to aid him in promptly communicating with clients. He failed to use care in regard to his tax returns and did not notice for three years that his returns listed his occupation as attorney, during the period he was suspended. Thereafter, he failed to inform a subsequent accountant of what occupation to list on his returns for two other years. Even though the accountant provided him with his tax returns for the two years before they were filed, Petitioner did not correct the occupation of attorney listed on those returns. He did not inform his accountant when he began using his former law office as his home and did not notice that his tax return continued to list business deductions for that building. Finally, Petitioner failed to seek advice from other attorneys, such as retired judge Maddox, regarding the use of checks, after he was suspended, that misrepresented him as an attorney.
We believe it is necessary for the Petitioner to have a mentor when he returns to the practice of law. The evidence shows, and Petitioner acknowledged, that before his suspension his law practice consisted of about one thousand active cases and that he was simply unable to manage such a large caseload. His voluminous caseload contributed to his conflicts of interest and his neglect of cases. Petitioner testified that, if reinstated, he will limit his caseload to no more then 200 active cases. We think it imperative for Petitioner to so limit his practice in order to protect the public and the administration of justice. A mentor, who is an experienced practitioner, would oversee Petitioner's practice, keep his active caseload under 200 cases, generally assist Petitioner in carrying out his intention to change his manner of practice, provide insight regarding the management of a law office, and be available to answer or find an answer to any question Petitioner may have. To his credit, Petitioner is agreeable to have a mentor and to comply with other conditions that may be imposed.
The Supreme Court has imposed a mentoring relationship as a condition of reinstatement when there has been concern about a petitioner's business or management skills and overall ability to properly operate a law practice.
A Rochester City Judge should be censured according to a report of the New York Commission on Judicial Conduct for ex parte communications with a colleague in her own personal injury case.
They were on a first name basis and worked in the same courthouse. She called chambers and was immediately put through
Upon reaching Judge Odorisi, respondent told him, in sum and substance, "I need to talk to you," and he responded, "Well, it can't be, it's not about this, your case, is it?" Respondent replied, "Well, actually, it is." Judge Odorisi immediately told respondent that he could not talk to her about her case.
Over Judge Odorisi's repeated objections and his efforts to terminate the conversation, respondent communicated to Judge Odorisi that she was unhappy with her attorney, that she wanted to avoid publicity, that she wanted to have the case transferred out of Rochester, and that she wanted a conference at which she, the attorneys and the insurance adjuster would be present.
Ms. Ware, who had left her desk after transferring the call, was in Judge Odorisi's office during the conversation. She heard Judge Odorisi tell the caller several times that they could not discuss the case. According to Ms. Ware, the phone call lasted approximately two to three minutes.
The judge testified that the call lasted for 12-15 seconds.
There was a second ex parte contact by letter.
On two occasions, respondent violated fundamental ethical principles by privately communicating with the Supreme Court Justice who was presiding over her pending lawsuit against her insurance company. First, in a telephone call to his chambers that she initiated, respondent asked the judge to schedule a conference in the matter and conveyed other concerns about her case. Several days later, after both Judge Odorisi and her lawyer had advised her that such communications were ethically impermissible, respondent ignored those warnings and sent the judge an ex parte letter that contained substantive information about her alleged injuries and medical treatment. By engaging in such conduct, respondent conveyed the appearance not only that she was seeking special consideration because of her judicial status, but that she was attempting to influence the judge handling her case through prohibited, unauthorized ex parte communications. Even absent a specific request for special consideration, such conduct is inimical to the role of a judge, who is required to observe the highest standards of conduct on and off the bench and is prohibited from asserting judicial influence to advance private interests.
Mr. Emery concurred
Judge Dixon is an individual who, through her faith, character, force of will and personality, got her education, became a lawyer and then a judge. She appears to have overcome numerous obstacles in her life to have attained her judicial position...
Judge Dixon got no more money than was offered and no one responded to her improper efforts. No ticket was fixed. No merchant gave her goods. No crime went unpunished or improperly imposed. No one, other than Judge Dixon, suffered the ignominy or injury of her lost bearings.
Judge Klonick would remove the judge from office.
While I recognize that in some instances judges who abused their judicial position have been censured or admonished, the aggravating factors noted above, in my view, make this case one of the most serious the Commission has ever encountered for this type of conduct. This is particularly so since in this case - unlike, for example, the assertion of judicial influence in traffic cases or in administrative matters with no adverse party - respondent's abuse of her judicial position to advance her own interests would be detrimental to the opposing party who lacks access to special influence...
although respondent has conceded - as she must-that her conduct was wrong, genuine contrition is lacking, given her persistent efforts to rationalize and minimize her behavior.
Judge Ruderman joined the dissent.
The Commission's press release describes the determination.
Commission Administrator Robert H. Tembeckjian made the following statement.
"No one should invoke the prestige of judicial office for private gain. While there is disagreement over the appropriate sanction in this case, there is no doubt that Judge Dixon’s misconduct was serious and warrants public discipline.
"This case is a study in ethical contrasts. Twice, Judge Dixon acted improperly and in the process put another judge at risk. Yet that other judge, J. Scott Odorisi, responded responsibly, tried to prevent a colleague from acting unethically and acted honorably throughout."
A panel of the Law Society of Upper Canada has reprimanded an attorney
After a contested hearing, this panel found that the Respondent, Philip Charles Tinianov (“the Lawyer”), engaged in professional misconduct in contravention of s. 33 of the Law Society Act: see 2016 ONLSTH 3 (CanLII). He assisted another lawyer Golnaz Vakili (whose licence has since been revoked), to breach the two-lawyer subrules relating to real estate transactions under the former Rules of Professional Conduct (“the Rules”).
We found that the Lawyer acted in circumstances where he ought to have known that he was assisting Golnaz Vakili to breach Subrule 2.04(11) of the former Rules by acting for both the lenders and the borrower in connection with two charges in September 2012. He also ought to have known that he assisted her to breach former Subrule 2.04.1(1) in connection with two transfers, registered in September and October of 2012.
Ms. Vakili acted for both the Chargor and the Chargee on each charge, and for both Transferor and Transferee on each transfer. The Lawyer provided independent legal advice (“ILA”) to the Chargors and the Transferees, in circumstances where the former Rules required each party to a mortgage or transfer transaction to have independent legal representation (“ILR”).
Ms, Vakili was an attorney who shared office space with Lawyer.
The Lawyer testified candidly that the distinction between ILA and ILR was not clear to him at the time of the transactions. In his evidence concerning the transactions, the Lawyer explicitly confirmed that he was providing ILA and not ILR to Ms. Vakili’s clients. He knew that the parties he was purportedly advising were not his clients but Ms. Vakili’s clients. Therefore, he did not provide the same legal services which he would normally provide to a paying client whom he independently represented, such as performing corporate searches, requesting further information on shareholders, and the like. He said he believed that by providing ILA he was assisting Ms. Vakili to comply with the Law Society’s two-lawyer subrules.
We found that the Lawyer did not knowingly assist Ms. Vakili to violate the two-lawyer subrules. He failed to appreciate the import and significance of the subrules, and he failed to appreciate the difference, and the importance of the difference, between ILA and ILR. We found that the Lawyer had engaged in professional misconduct in this regard, as he had acted in circumstances where he ought to have known that he was assisting Ms. Vakili to contravene the former subrules.
The Star.com reported that Ms. Vakili went into hiding after fraud charges were brought against her in 2014.
Here, the panel concluded that Lawyer was Vakili's unwitting dupe
The Lawyer submitted that his conduct had been neither dishonest nor fraudulent. He felt embarrassed about having been manipulated by Ms. Vakili. He considers himself her victim, but acknowledges that he ought to have been more familiar with the two-lawyer subrules. He acknowledges that he misunderstood and misinterpreted those subrules, and by so doing, assisted in Ms. Vakili’s violation of them. He now understands and is fully aware of the import of the subrules.
The Lawyer stressed that he was extremely sorry for the misconduct. He re-iterated that he thought he was helping a colleague by providing ILA to her clients without charging for his services. He thought he was acting honourably and benevolently. He also pointed out that in that specific situation, even ILR might not have prevented Ms. Vakili’s clients from signing the transfer documents, and that the fraud and damage resulted from her actions – not his own.
The Lawyer testified that he was called to the Bar in 1978, had no discipline history and a very good reputation in the legal community. As a sole practitioner he would be greatly affected by a suspension. He has four children, two of whom are still dependent on him for support.
The Lawyer testified that he is very involved in synagogue and community activities. He sings in the synagogue choir and participates in performances in community venues such as retirement homes. He is a Big Brother. He taught law clerks at Seneca College, did tutoring for the Bar Admission Course, and has also mentored younger lawyers.
He spoke to the physical, psychological and emotional toll which this proceeding has taken on him. He suffered from depression and anxiety on account of the proceedings. He stressed that he now understands the difference between ILA and ILR, and that his continuing to practise law would not pose a danger to anyone. He submitted that an appropriate penalty would be a reprimand accompanied by an order to take continuing professional education courses.
We consider that in the present case a further penalty, in the form of a fine, is not necessary for the purposes of either specific or general deterrence. We find that the Lawyer’s misconduct is on the very minor end of the spectrum of fault, and less serious than the misconduct in Zandi. We are satisfied that the reprimand which has been administered constitutes sufficient deterrence. In these circumstances, we find that a further punitive measure, in the form of a fine, is not necessary.
Friday, June 10, 2016
The Willoughby News-Herald has a story on a recommendation for discipline filed with the Ohio Supreme Court.
The attorney is a former prosecutor who is depicted in this clip from 48 Hours Mystery.
Members of the Ohio Supreme Court’s Board of Professional Conduct have recommended a former assistant Geauga County prosecutor who is a recovering heroin addict be suspended from practicing law for two years because of misconduct.
However, 18 months of attorney Carly Snavely’s suspension should be stayed if she remains sober, the three-member hearing panel has recommended.
According to Snavely’s consent to discipline agreement submitted by her lawyer, Joseph Dunson:
Snavely has practiced law for nine years. Now a solo practitioner in Chagrin Falls, she was previously employed as a public defender in Florida before serving as a Geauga County assistant prosecutor from 2008 to 2011.
On Feb. 25, 2013, Snavely met with William Russell to discuss his defense in a Geauga County domestic violence case. However, she failed to obtain written confirmation from Russell that he knew she did not carry the required malpractice insurance.
As Russell’s case went on, Snavely was admitted to the inpatient program at Glenbeigh Treatment Center to recover from her addiction to heroin.
“Ms. Snavely became addicted to heroin as a result of her need for and use of physician prescribed narcotic pain medication,” Dunson wrote in the agreement. “Ms. Snavely completed her inpatient program in a timely manner. She then continued to comply with her treatment regimen by undergoing several weeks of intensive outpatient treatment.”
On Nov. 4, 2013, Snavely pleaded guilty to possession of heroin, a fifth-degree felony, stemming from an incident that occurred the previous June.
In April 2014, Russell filed a grievance against Snavely with the Geauga County Bar Association because he was forced to retain substitute counsel because of Snavely’s addiction.
Geauga County Common Pleas Judge David L. Fuhry granted Snavely intervention in lieu of conviction and placed her on a two-year rehabilitation period that included intensive supervision probation.
In December 2014, Snavely complied with all the provisions of her program and was released from all court-ordered control nearly one year early.
On May 5, 2015, Snavely pleaded guilty to attempted forgery and spent three days in jail for lifting Russell’s signature and copying it onto the legal malpractice insurance waiver.
Last August, Snavely made full restitution to Russell for a $3,500 retainer.
In another matter, Alex Fisher retained Snavely to defend him in a Cuyahoga County drug trafficking case in March 2013.
Snavely did not advise Fisher that she lacked legal malpractice insurance and did not appear at a scheduled pretrial because of her drug treatment. Snavely has made full restitution of the $2,650 retainer that Fisher’s mother paid.
In its recommendation, the panel noted that Snavely had no prior disciplinary record. The panel determined that her addiction contributed to her misconduct and that she is currently capable of engaging in the competent and ethical practice of law.
Snavely referred questions to her attorney.
“Attorney Carly Snavely has worked tirelessly to rehabilitate herself following a battle with chemical dependency that has become all too common in today’s society,” Dunson said in an emailed statement to The News-Herald. “She has been clean and sober for two and a half years, and has committed her life to helping others recover from the disease of addiction. Ms. Snavely’s family, friends, clients, and colleagues stand in unity with her, as evidenced by the plethora of support letters submitted with the Consent to Discipline Agreement.”
The Board of Professional Conduct is a 28-member quasi-judicial body appointed by the state Supreme Court to adjudicate formal complaints of misconduct involving judges and attorneys. It consists of 17 lawyers, seven active or retired judges and four nonlawyers.
The recommendation is subject to review and approval by the Ohio Supreme Court.
A proposed six-month suspension was too lenient in light of the misconduct; rather, indefinite suspension was imposed by the Kansas Supreme Court for misconduct in connection with the attorney's sale of mineral rights on his residential and commercial property.
He falsely claimed to represent others, sought a $1.9 million payment to an offshore account and proposed destruction of all documentation of the transaction.
The uncontested findings demonstrate respondent committed multiple acts of professional misconduct, the most troubling being: (1) He engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. KRPC 8.4(c). Here, the respondent misrepresented information when he communicated with Donald Missey and Bill Metzler and in his proposed covenant not to sue. Specifically, the respondent claimed that he represented 50 other landowners when he did not. (2) He engaged in multiple acts of conduct that adversely reflect on his fitness to practice law. KRPC 8.4(g).
First, the respondent drafted the covenant not to sue. In that covenant, the respondent included a provision to permanently dispose of any and all documentation, records, recordings, witness statements, personal contact information for potential litigants, research, and all other forms of discovery as it pertains to evidence which could be used by his clients and others against defendants in a lawsuit of any nature. The respondent's offer to destroy evidence is conduct which adversely reflects on his fitness to practice law. Second, the respondent offered to settle his claims by having WCH wire transfer $1.9 million dollars to an offshore account. The respondent stated that he wished to have the money transferred to the offshore account as a form of "asset protection." The respondent, however, denied that he was attempting to avoid paying taxes on the money. The respondent was unable to offer any legitimate explanation for "asset protection." Based on all the evidence, it was reasonable for the hearing panel to conclude that the respondent was attempting to avoid paying taxes on the money he hoped to get from WCH.
The respondent refuses to acknowledge the wrongful nature of his conduct, particularly as it pertains to the covenant not to sue. We rarely see such behavior unaccompanied by any misgivings that reflects so poorly on our profession. We find his conduct, which ultimately evolved into a scheme of bribery and extortion, to be of such a serious magnitude and unconscionable nature that an indefinite period of suspension is warranted. If not fully accepting and appreciating that falsely claiming to the representation of over 50 litigants and offering to destroy all evidence that could be used on their and others' behalf in exchange for wiring $1.9 million to an offshore account is wrongful, nothing short of the action we are taking today will adequately protect the public.
He also had failed to supervise his non-lawyer employee-spouse and made website misrepresentations regarding his spouse.
Video of oral argument is linked here. (Mike Frisch)
A recent opinion of the Florida Judicial Ethics Advisory Committee
May a judicial candidate who is married to a judge utilize the judge’s photograph in campaign advertising?
ANSWER: Yes, so long as the judge’s position is not identified and the advertising does not imply that the judge actively endorses the spouse’s candidacy.
We conclude that this situation falls squarely within two previous opinions of this Committee, Florida Judicial Ethics Advisory Committee Opinions 06-13 and 07-13. The latter opinion was issued at the behest of a judge whose spouse was running for office but would apply equally to judicial candidates who are not incumbents. These opinions do emphasize the extremely limited role appropriate for the judicial spouse. For example, the advertisements must not imply that the judge actively endorses the spouse’s candidacy, and the judge must not attend campaign functions with the spouse.
In this case, the Committee’s opinion is based upon the fact that the inquiring judge makes clear that the spouse/judge will not in any way be identified as a judge, either by appearing in a robe in the photograph or by having the judge’s name included in the material.
An attorney who was disbarred in Vermont after a hit-and-run that killed a pedestrian has now been disbarred by the New York Appellate Division for the Third Judicial Department.
The court concluded that the attorney had not avoided discipline by resigning
We disagree. Although Sullivan has self-certified as retired from the practice of law since 2015, his retired status precludes him from practicing law for a fee and entitles him to a waiver of the biennial registration fees; however, it does not preclude him from providing legal services pro bono (see Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [g]) and his obligation to register as an attorney has continued unabated (see Judiciary Law § 468-a ; Rules of Chief Admin of Cts [22 NYCRR] § 118.1 [a]- [c]). Notably, Sullivan remains currently registered to date, having last registered in November 2015.
Resignation from the bar, on the other hand, "requires an order of this Court and may be accomplished only by sworn affidavit application" (Matter of Dawson, 133 AD3d 1083, 1084 ; see Rules of App Div, 3d Dept [22 NYCRR] § 806.8; see also Matter of O'Brien, 224 AD2d 170, 170 ). Here, no sworn affidavit application was ever filed by Sullivan requesting that this Court accept his resignation from the practice of law. Accordingly, since Sullivan has not undertaken the steps necessary to effectuate his resignation from the bar, his name remains on the roll of attorneys and he remains subject to the disciplinary authority of this Court (see Matter of Dawson, 133 AD3d at 1084).
WCAX.com reported on the crime
Gregor Outslay carried a photograph of his mother into the Rutland courtroom Thursday, a reminder of his mom he holds on to.
"We were each affected by my mother's presence in our lives, just as we were strongly affected by her loss," Outslay said.
In April 2013, Mary Jane Outslay of Mendon was hit and killed by a car as she crossed a Rutland Street. She was 71. The driver took off. But the next day, Christopher Sullivan, a former Rutland city attorney, came forward to say he was the driver.
"There isn't a day, moments of the day that don't go by that I don't think about this," Sullivan said in court.
Earlier this year, jurors found Sullivan guilty of driving under the influence and leaving the scene of the crash.
Sullivan addressed Outslay's family during his sentencing hearing.
"I was totally distraught and devastated. I didn't know what to do. I did the wrong thing and I take full responsibility for my actions," he said.
Prosecutors argued for the maximum sentence of 15 years, while Sullivan's lawyers argued for less. Sullivan's wife testified on his behalf.
"Tragic events alter a person's mental status. There's no doubt. No one knows how they're going to react to a tragedy," Margaret Sullivan said.
Superior Court Judge Theresa DiMauro sentenced Sullivan to 4-10 years behind bars. Outslay's loved ones say they are still grieving, but the sentence helps.
"It's just relief that we're past this point," Gregor Outslay said. "The sentencing has been rendered and it kind of validates the case and our loss a little bit. And we just move on to the next phase."
Sullivan was sentenced to 4-10 years for both of his convictions. He will be given credit for time he's already served, which is just a few months.