Friday, October 6, 2017

Lucky Pierre

An attorney suspended for three years by the Pennsylvania Supreme Court was reciprocally disbarred by the New York Appellate Division for the First Judicial Department.

Notably, the Pennsylvania sanction was imposed in 2006

The [Pennsylvania] Board found that respondent had violated the Pennsylvania Rules of Professional Conduct regarding competent representation, acting with reasonable diligence and promptness, keeping a client informed about the status of a matter, explaining information to client to allow them to make informed decisions, communicating the basis or rate of fee in writing before or within a reasonable time after commencing legal representation, not withdrawing given that his representation violated the Rules of Professional Conduct, knowingly making a false statement of material fact of law to a tribunal, knowingly making a false statement to a third person, practicing in a jurisdiction in violation of professional regulations in that jurisdiction, and engaging in conduct that is prejudicial to the administration of justice. The Board also found that respondent willfully violated the Pennsylvania Rules of Disciplinary Enforcement by, inter alia, failing to notify various individuals, including clients and adverse parties, of his transfer to inactive status.

The Board noted that there was overlapping between the two disciplinary matters "as the acts of misconduct in the instant proceeding occurred during the same time frame as the misconduct in the previously determined matter" but respondent's misconduct of engaging in the unauthorized practice of law was not charged in the former, it was only considered in aggravation. The Board found that in addition to his unauthorized practice of law, respondent "demonstrated a clear lack of competence in his handling of [one] matter, a consequence of which was the dismissal of his clients' civil case," and, in aggravation, was the fact that respondent's competency or conduct had been placed in issue in at least seven civil cases, six of which were legal malpractice cases. Referring to respondent's suspension imposed in the previous disciplinary matter for his "multiple acts of misconduct....wherein he commingled and converted client funds and engaged in other acts of dishonesty," the Board recommended that respondent be suspended for three years, to run concurrent to his three-year suspension previously imposed by the court on August 30, 2005.

The position of the New York Departmental Disciplinary Committee

The Committee now moves for an order, pursuant to the Rules for Attorney Discipline Matters (22 NYCRR) § 1240.13, imposing reciprocal discipline on respondent, predicated upon discipline imposed by the Supreme Court of Pennsylvania. The Committee requests that respondent be disbarred, effective as of April 25, 2017, the date he reported his foreign discipline (rather than nunc pro tunc to August 30, 2005, when he was disciplined in Pennsylvania).

Respondent, pro se, was personally served in hand with this motion at his New York registered address but has not filed any response papers.

The court imposed disbarment nunc pro tunc

In light of all of the circumstances and the nature of disbarment versus the punishment imposed by the Supreme Court of Pennsylvania (a three-year suspension), the Committee's motion for reciprocal discipline should be granted, and respondent is disbarred from the practice of law in the State of New York and his name stricken from the roll of attorneys and counselors-at-law, nunc pro tunc to August 30, 2005.

(Mike Frisch)

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

A Cautionary Tale: Ineffective Assistance And State- Federal Concurrent Sentences

The Tennessee Court of Criminal Appeals found ineffective assistance of counsel

This case should serve as a cautionary tale for any prosecutor, defense attorney, or trial court who attempts to negotiate or accept a guilty plea involving concurrent state and federal sentencing. Petitioner, Tyler James Schaeffer, pled guilty to two counts of vehicular homicide, two counts of aggravated assault, nine counts of vehicular assault, and one count of possession of a controlled substance analogue. He received an effective sentence of forty years to be served concurrently with a separate 100-year federal sentence. Now, Petitioner appeals the denial of his petition for post-conviction relief, arguing the post-conviction court erred in finding that he received effective assistance of counsel due to trial counsel’s failure to retain a mental health expert, failure to request a change of venue, failure to properly investigate potential witnesses, and failure to adequately explain concurrent state and federal sentencing. The State concedes that Petitioner received ineffective assistance of counsel based on the sentencing issue alone. Following our review of the record and submissions of the parties, the majority concludes that Petitioner received ineffective assistance of counsel. Accordingly, we reverse the judgment of the post-conviction court.

The crimes

On September 16, 2012, Petitioner drove his vehicle on Highway 441 in Sevier County, Tennessee. While texting about an impending drug deal, Petitioner crossed the centerline of the highway and collided head-on with a church van. The violent crash killed two passengers and injured eleven others. At the time of the collision, Petitioner possessed a controlled substance, and his blood test results showed that Petitioner had methylone, methamphetamine, and marijuana metabolite in his bloodstream while he was driving. A Sevier County Grand Jury indicted Petitioner with two counts of vehicular homicide by intoxication; two counts of reckless vehicular homicide; eleven counts of reckless aggravated assault with a deadly weapon; nine counts of reckless aggravated assault resulting in serious bodily injury; nine counts of vehicular assault; one count of driving under the influence; one count of production, manufacture, distribution, or possession of a controlled substance analogue; and one count of possession of synthetic derivatives or analogues of methcathinone.

In March of 2013, a federal grand jury indicted Petitioner with fourteen counts arising from a string of robberies committed between July 26, 2010, and September 14, 2012. United States v. Schaeffer, 626 F. App’x 604, 605 (6th Cir. 2015). Petitioner pled guilty to all counts except for four counts of using a firearm in a crime of violence and one count of using a firearm in furtherance of a drug trafficking crime. Id. at 606. One of the firearms charges was dropped, and Petitioner was found guilty by a jury of the remaining counts. Id. On March 3, 2014, Petitioner received a 100-year sentence for his federal convictions.

The court rejected a number of claims but found that counsel's handling of the issue of concurrent sentences was deficient

If trial counsel had carried out his duty to investigate the terms of the plea agreement, he would have realized that a state court provision requiring federal and state sentences to run concurrently is not worth the paper on which it is written...

Alas, there is no indication in the record that trial counsel even attempted to investigate and determine if the conditions of the plea could be legally satisfied before recommending the plea to Petitioner. Accordingly, trial counsel’s actions fell below an objective standard of reasonableness according to the prevailing professional norm, and we find that trial counsel’s performance was deficient.

Forewarned is forearmed

we issue the following warning: without some sort of written agreement from the federal government, District Attorney Generals should not make plea offers which guarantee concurrent state and federal sentencing; defense attorneys should not agree to plea offers which guarantee concurrent state and federal sentencing; and trial court judges should not accept plea agreements which guarantee concurrent state and federal sentencing.

(Mike Frisch)

October 6, 2017 | Permalink | Comments (0)

Reinstated After Consent To Disbarment For Bankruptcy Misconduct

An attorney who had consented to disbarment in 2003 has been reinstated by the Kansas Supreme Court.

The misconduct

At the time the respondent surrendered his license, a formal complaint had been filed in which it was alleged that the respondent was dilatory in filing a bankruptcy for his client. In addition, it was alleged that the respondent misled his client about the filing of the bankruptcy and misled an attorney for a creditor in the bankruptcy as to the status of the bankruptcy case.

The conditions

The court grants the petitioner's petition for reinstatement of his license to practice law in Kansas subject to the following conditions: The petitioner continues to receive treatment from Dr. Parker until such time as Dr. Parker believes that treatment is no longer necessary, and prior to reinstatement the petitioner must satisfactorily complete a bar review course approved by this court. Petitioner shall furnish satisfactory proof to the Clerk of the Appellate Courts that he has attended an approved bar review course and include records tracking his participation in and interactions with the course curriculum as well as provide a certification of completion. The course must also include an ethics component. The petitioner must also prior to reinstatement pay all fees required by the Clerk of the Appellate Courts and pay all fees required by the Kansas Continuing Legal
Education Commission.

(Mike Frisch)

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

Estate Thefts Draw Interim Suspension

The Indiana Supreme Court has suspended a recently convicted attorney

The Court, being duly advised and upon consideration of all materials submitted, now finds that Respondent has been found guilty of the following felony offenses under Indiana law: theft (8 counts), check deception (5 counts), and corrupt business influence (2 counts).

IT IS THEREFORE ORDERED that Respondent is suspended from the practice of law in this State, effective immediately. Respondent is already under suspension as ordered in Case No. 48S00-1504-DI-175. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). The interim suspension shall continue until further order of this Court or final resolution of any resulting disciplinary action, provided no other suspension is in effect...

The HeraldBulletin.com covered his guilty plea

 Embattled local attorney Stephen Schuyler pleaded guilty to multiple criminal charges in Madison Circuit Court Division 3 on Thursday.

His trial on charges of theft and deception was to begin on Tuesday.

Judge Thomas Newman Jr. scheduled sentencing in his court for 9 a.m. June 22.

 Schuyler pleaded guilty to 15 felony counts of theft, check deception and corrupt business influence for alleged misappropriation of funds from six estates totaling more than $700,000.

His legal troubles emerged in January 2015 when a check he wrote to East Lynn Christian Church in the amount of $78,387.13 bounced. The church was named as a beneficiary in the estate of Sara Wilding.

Later that year, criminal Magistrate Judge Stephen Clase removed Schuyler from more than 130 cases in which he had a fiduciary interest in estates and guardianships. Those cases were assigned to other lawyers.

The Indiana Supreme Court accepted a recommendation from the Indiana Attorney Disciplinary Commission to indefinitely suspend Schuyler's law license because he didn't cooperate in the investigation of complaints filed against him.

Schuyler was forced to sell property he owned in Adams Township and Syracuse.

At sentencing, Newman will determine whether Schuyler will serve time in prison and whether he will be required to pay restitution.

What typically happens in cases like this is that a person will borrow money from an account and promise to pay it back with future earnings.

 "It becomes easy and then you're in over your head, and there's no way to pay it back," said Madison County Prosecutor Rodney Cummings.

"If he's got a $600,000 home in southern Madison County, and a lake home in northern Indiana, it's pretty hard not to consider that greed," Cummings added. "That's a fairly lavish lifestyle in my view."

Newman will decide whether Schuyler will serve any time in prison at sentencing later this month. The maximum number of years he could serve is eight years under the most serious Class C felony charge.

"A lot of people that he ripped off want to see him get the maximum sentence," Maxine Pitkin said Thursday in a phone call to The Herald Bulletin.

Schuyler handled the estate of an uncle, who bequeathed $150,000 to Pitkin's mother, and $60,000 to Pitkin and her brother. Checks Schuyler wrote all bounced, said Pitkin, who lives in California.

"We want justice, and that's the only justice we can get," Pitkin said.

US News reported that he was sentenced to an eight-year term of imprisonment. (Mike Frisch)

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

Thursday, October 5, 2017

Fallen Angel

Ohio Disciplinary Counsel has filed a complaint alleging serious neglect of several criminal matters on the part of the accused attorney.

While the recited factual averments tell a number of sad tales of client abuse, one allegation in particular caught my eye in describing the initial office meeting with the incarcerated client's relatives.

In respondent's office, there was a large statue of an angel holding a spear and standing with its foot on the head of the devil. Respondent told [the client's family members] that he...is the angel who fights the devil and evil doers on behalf of his clients.

Another count refers to an office statue of a winged angel.

An unrelated complaint involves allegation that a juvenile court magistrate falsely claimed to be working a 40-hour week.

The recent improvements that the Ohio Board of Professional Conduct undertook to provide easy access to pending charges are a model for other jurisdictions to follow.

If the above links do not work, the first case is In re Michael Cheselka. The second is In re Charles Wochna. (Mike Frisch)

October 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Second Solicitation Draws One-Year Florida Suspension

The Florida Supreme Court has rejected a referee's proposed 60-day suspension in favor of a one year term.

In July 2015, The Florida Bar filed a complaint against Dopazo, alleging that he engaged in misconduct in violation of the Bar Rules. The Bar made two distinct claims in its Complaint. First, the Bar alleged Dopazo participated in a patient-client recruiting scheme orchestrated by a nonlawyer, in which Dopazo obtained clients and paid the nonlawyer for those client referrals. Second, the Bar alleged Dopazo either directly himself or through an employee or agent knowingly solicited Penny Jones, the mother of a brain-injured child at the hospital, while the child was in a coma. A referee was appointed to consider the matter. Following a hearing, the referee submitted his report, in which he made the following findings and recommendation.

On December 22, 2011, after a federal trial on the matter concluded, the Federal Bureau of Investigation sent the Bar materials concerning the investigation and subsequent indictment of two nonlawyers for their involvement in an illegal patient-client recruiting scheme with medical clinics involving local lawyers. After reviewing those materials, the Bar suspected Dopazo to have been involved in the scheme and to have paid for client referrals. At the final hearing, the Bar presented evidence that Dopazo provided thirty-one payments to Miami-Dade Services, Inc., suggesting Dopazo made these payments as part of the scheme to receive potential client information. Dopazo acknowledged the payments but explained they were made on letters of protection for healthcare services furnished to his clients at the medical clinics. The Bar admitted there was no “smoking gun” to directly support its allegation that Dopazo was involved in the patient-client recruiting scheme.

The referee found insufficient evidence of the above charges but

In March 2007, days after her son suffered traumatic brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to become a client of his for a fee. There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf. The referee found that Dopazo’s appearance at the hospital was completely unexpected, and while she did apparently retain his services at that time, Jones’ limited education and fragile emotional condition at the time likely rendered her unable to make a rational decision whether to retain counsel or reject Dopazo’s efforts to sign her up as a client. In defense of his actions, Dopazo claimed that his office called him and told him to go see Jones in the hospital intensive care unit; however, the referee found that this explanation was insufficient.

The court rejected the attorney 's attacks on the evidence but weighed the Bar's appeal for a two-year suspension

Here, case law supports the Bar’s assertion that the referee’s recommended sanction of a sixty-day suspension is too lenient. In Weinstein, this Court disbarred a lawyer who solicited a stranger who was hospitalized with brain damage after a motorcycle accident when the lawyer also committed a series of lies to execute the solicitation...

In cases where the lawyer has been previously disciplined for engaging in conduct of a similar nature, this Court typically takes an incremental approach in imposing discipline, increasing the severity of discipline in each instance. See Fla. Bar v. Norkin, 132 So. 3d 77, 92 (Fla. 2013); Fla. Bar v. Morgan, 938 So. 2d 496, 499-500 (Fla. 2006). Dopazo previously received a public reprimand for solicitation in 2004, and he has committed the same rule violation a second time by soliciting Jones in this case. Therefore, a more severe sanction is warranted because Dopazo committed the same conduct for which he was previously disciplined. Further, “the Court has moved toward imposing stronger sanctions for unethical and unprofessional conduct” to protect the legal profession from dishonor and disgrace. Fla. Bar v. Rosenberg, 169 So. 3d 1155, 1162 (Fla. 2015). Unethical violations of the solicitation rule, such as the ones committed by Dopazo in this case, have the potential to harm people who are already in a vulnerable condition and bring dishonor and disgrace on the entire legal profession. This Court will not tolerate these improper solicitations and will “impose severe sanctions on those who commit violations of them.” Barrett, 897 So. 2d at 1277. Therefore, we conclude that a one-year suspension from the practice of law is warranted in this case.

(Mike Frisch)

October 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Censure Imposed In New York For Florida Reprimand

A reciprocal public censure has been ordered by the New York Appellate Division for the Third Judicial Department based on a sanction imposed in Florida and not reported as required.

The Florida proceeding

By judgment entered October 23, 2014, the Supreme Court of Florida, among other things, publicly reprimanded respondent based upon a complaint filed against him by The Florida Bar (The Florida Bar v Kaufman, 153 So 3d 910 [Fl 2014]). Respondent executed a document entitled Conditional Guilty Plea for Consent Judgment, wherein he voluntarily admitted that he had failed to properly communicate with clients and had improperly shared legal fees with nonattorneys...

The attorney objected

Respondent has filed papers in opposition, contending that there was an infirmity of proof establishing the misconduct in Florida and that the misconduct for which he was disciplined in that state does not constitute misconduct in New York (see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.13 [b] [2], [3]), to which AGC has replied in opposition.

The court concluded that there contentions were unsupported

Turning to the issue of the appropriate disciplinary sanction, we take note that respondent's public reprimand in Florida was tantamount to a censure in this state. Accordingly, we hold that, in order to protect the public, maintain the honor and integrity of the profession and deter others from committing similar misconduct, respondent should be censured in this state.

(Mike Frisch)

October 5, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Judge Who Facilitated Chesley Enjoined

The web page of the Ohio Supreme Court (Dan Trevas) summarizes a decision issued today

The Ohio Supreme Court has ordered a Hamilton County court not to proceed with a case involving the assets of disbarred attorney Stanley M. Chesley, calling the action a “product of fraud.”

The Supreme Court voted 4-3 to issue a writ of prohibition to block Hamilton County Probate Judge Ralph Winkler from considering a request to transfer the assets of Chesley’s former law firm. The writ was sought by 19 creditors, who were former clients of Chesley and are owed millions of dollars that they have not received from a class action lawsuit. They alleged Chesley and other attorneys have stolen millions of dollars from the settlement.

The per curiam majority opinion explained that a writ of prohibition is typically granted to prevent a lower court from acting when the court lacks jurisdiction to consider a matter. In this case, the Supreme Court concluded Judge Winkler does have jurisdiction, and Chesley’s clients would have the right to appeal any decision Judge Winkler would make if they objected to it. However, the Court was granting “extraordinary relief” because of the “long and egregious litigation history” that started in 2004 when the former clients first filed a lawsuit to receive their settlement shares from Chesley.

In a dissenting opinion, Justice R. Patrick DeWine wrote that although the Court was “understandably frustrated with Stanley Chesley’s actions in evading payment,” it should not apply its rules differently to the Hamilton County court. He noted a federal court has already issued an order blocking any attempts by Chesley and his alleged confederates to transfer funds.

Chesley Seeks to Move Money
The probate court action is an assignment for the benefit of creditors (ABC).The Supreme Court called the move the “latest chapter in the ongoing campaign” by Chesley to shelter assets from those who have won judgments against him.

Connie McGirr and others were represented by Chesley in a class action lawsuit regarding the diet drug fen-phen, which resulted in a settlement. In 2004, McGirr and 18 others filed a lawsuit in Kentucky against Chesley and three other attorneys alleging they stole millions of dollars from the settlement. In 2014, a Kentucky trial court ruled Chesley owed the clients $42 million, and the ruling was affirmed by a Kentucky appeals court.

For his conduct in the case, the Kentucky Supreme Court permanently disbarred Chesley in 2013, and Ohio in turn disbarred Chesley. Before he was disbarred, he was the president and sole shareholder of the law firm Waite, Schneider, Bayless & Chesley (WSBC). A month after his disbarment, Chesley drafted a windup agreement to shut the law firm and transferred the shares of WSBC to Thomas Rehme to hold for the purpose of conducting the winding up operations.

In 2015, a Kentucky judge ordered Chesley to transfer his interest in the WSBC shares from the trust he set up with Rehme to pay $42 million to the former clients. Chesley did not transfer the shares.

In 2016, Rehme incorporated the trust into a for-profit corporation. Two days later, he transferred all the WBSC shares into the new corporation. The corporation then attempted to assign all the WSBC shares to Eric Goering, who was named the representative of WSBC assigned to pay the bills associated with closing the shuttered law firm. Rehme filed the ABC action in probate court to move the money from the trust to Goering.

In April 2017, the former clients requested that Judge Winkler dismiss the case, which he denied. The clients then asked the Ohio Supreme Court for the writ of prohibition to prevent Judge Winkler from proceeding with the case. Judge Winkler and Goering responded asking the Supreme Court to refuse the writ and allow the case to proceed.

Probate Court Has Jurisdiction
The Court explained that to grant a writ of prohibition, a court must be about to exercise its power, the court must lack the authority to exercise the power, and the requester of the writ must have no other adequate remedy if the court acts.

The opinion noted that Judge Winkler was about to act by considering the ABC, and the Court agreed that the judge had the authority to take action. It stated R.C. Chapter 1313 gives the probate court jurisdiction over voluntary assignments of benefits of creditors, which is what Rehme was seeking. And the Court found that the former clients do have the remedy of appealing any ruling a probate judge makes in an ABC action.

The creditors argued that Judge Winkler does not have the authority to act because a Kentucky judge has already declared the wind-up agreement and the movement of WSBC funds from the law firm to Rehme “a sham.” They also argued that allowing Rehme to convert the shares of WSBC into money to give to Goering would violate the full faith and credit clause of the U.S. Constitution because a Kentucky court already ordered the WSBC money be used to pay the former clients.

The former clients have also filed a federal lawsuit to collect from Chesley and argued the ABC action was an attempt to “end run” the federal court. Because the federal court has accepted the case, the state court cannot take action, they claimed.

The Ohio Supreme Court rejected the arguments, noting that the clients have the right to appeal any order allowing the transfer. The Court also explained the “jurisdictional priority rule” applies when two different state courts are asked to settle a matter, and the court that is first to claim jurisdiction to hear the case keeps the case. The rule does not apply to federal court, and the actions of the federal court do not prevent the probate court from considering the ABC.

Writ Issued to Prevent Abuse
While the probate court has legal authority to consider the case, the Supreme Court wrote it will issue a writ of prohibition to prevent abuse of the legal process, and found the conduct of Chesley and WSBC warrants action.

The Court stated that Goering and WSBC admit the existence of the Kentucky judge’s order and Chesley’s noncompliance with it. And they admit they are aware of but disagree with the substance of the judge’s conclusion that Chesley is attempting to transfer his wealth, including $59 million in personal accounts, into WSBC to prevent his former clients from collecting it.

“The record evidence demonstrates a pattern of misuse of the judicial process in Ohio by Chesley and WSBC to obstruct collection efforts and conceal Chesley’s ongoing control of WSBC,” the Court wrote.

The Court wrote the ABC action, which was claimed to be an attempt to pay off the law firm’s debt, was the product of fraud. The opinion stated that U.S. District Court Judge Robert Cleland imposed a temporary restraining order barring Chesley, Rehme, WSBC, and their agents from transferring or distributing WSBC funds. The opinion quoted Judge Cleland stating the transfers from Rehme to Goering “appears to be with the intent to frustrate the judgment creditors.”

The Supreme Court also noted last year it granted a writ of prohibition against Hamilton County Common Pleas Court Judge Robert Ruehlman from presiding over another Chesley action to prevent the collection of the judgment and WSBC was a party in that case.

“And the record in that case is replete with examples of abusive litigation tactics,” the opinion stated.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Patrick F. Fischer joined the majority opinion. Justice William M. O’Neill did not participate in the case, and Tenth District Court of Appeals Judge William A. Klatt, sitting for Justice O’Neill, joined the majority opinion.

Dissent Maintains Writ Not Proper
In his dissent, Justice DeWine explained that the Court was disregarding its longstanding rules to issue the writ. According to Justice DeWine, it was fundamental that the Court will not issue a writ of prohibition when the party seeking it has an adequate remedy. The only exception to the rule is when a court “patently and unambiguously lacks jurisdiction,” he wrote, and in this case the Court ruled the exception does not apply.

Moreover, Justice DeWine stated, “It is far from clear that the radical action taken by this court does anything to help these creditors.” He noted the federal court has found the former clients are likely to succeed in their federal case against Chesley and the others, and Judge Cleland issued an injunction to prevent the movement of WSBC funds.

“Quite simply, this court’s action accomplishes little,” he wrote. “At the end of the day, what we have here is a court, frustrated by a litigant who won’t play by the rules, choosing to respond by ignoring its own rules.”

Justices Sharon L. Kennedy and Judith L. French joined the dissent.

2017-0474State ex rel. McGirr v. WinklerSlip Opinion No. 2017-Ohio-8046.

(Mike Frisch)

October 5, 2017 | Permalink | Comments (0)

Wednesday, October 4, 2017

Watergate Memories

From the July 2017 report of the North Carolina Office of Counsel on litigation brought by a prominent attorney against the State Bar

Eugene Boyce v. NC State Bar (Wake County Superior Court). Boyce alleges that he filed a grievance against Roy Cooper for conduct that allegedly occurred in 2000 when Cooper was a candidate running against Boyce’s son to become Attorney General of North Carolina. He seeks declaratory judgments that (1) the State Bar has a conflict in handling the grievance because the Attorney General represents the State Bar in various lawsuits and (2) the State Bar is obliged by law to refer the grievance to the courts for investigation and disciplinary action and an award of costs. The court dismissed the complaint. Boyce appealed to the North Carolina Court of Appeals. Oral argument was held on February 7. The State Bar was represented by Parker Poe Adams and Bernstein in the trial court but is represented by the OOC on appeal.

Carolina Journal reported on the litigation.

I worked with Mr. Boyce at the Senate Select Committee on Presidential Campaign Activities, popularly known as the Ervin Committee or the Watergate Committee.

His Watergate memories are linked here. There are some good (and generally accurate) stories. He discusses the cutting-edge use of computers by the committee, which involved the inputting of information by me and the other research assistants. 

My own Watergate memoirs are a work in progress but it is undeniable that my second year law summer as a research assistant had a dramatic impact on my career.

I was recently reminded of a panel that I participated in at Georgetown Law in 1999 on the Watergate affair. 

Sam Dash wanted the story of the work of the research assistants told and invited me to participate. The panel was Sam, John Dean, Charles Shaffer (John's lawyer), Bob Muse and me.

Two years later, I started as a Georgetown adjunct professor. 

I have no doubt that the panel and my relationship with Sam played an instrumental role in my 2001 appointment as Ethics Counsel. (Mike Frisch)

October 4, 2017 | Permalink | Comments (0)

The Son Also Vandalizes

A conflict of interest drew a public reprimand from the South Carolina Supreme Court

Respondent was employed by Oconee Medical Center (OMC) as General Counsel. A patient at OMC had no family or friends to care for her, so Respondent volunteered to act as her guardian and conservator. Respondent did not discuss the possible conflicts of interest that could arise out of her appointment with the patient and did not get the patient to waive these conflicts.

Respondent billed the patient for her time as conservator; the patient's bills totaled $8,687. The patient's home needed repairs, and Respondent hired her son to do cleaning and repair work on the home for $10 per hour. Respondent paid her son a total of $700. Respondent's son had a history of drug abuse, but Respondent believed him to be sober at that time. Respondent gave her son permission to stay in the home while he was working as he did most of the work at night after his day job. At some point, Respondent's son moved into the patient's home. Respondent was not aware of her son's move into the home, but she acknowledges she would have known if she had inspected the utility bills she was paying on the patient's  behalf.

Respondent admits she did not properly monitor the work her son was performing at the patient's house. She states she had meningitis and was required to be hospitalized both in and out of state over a three month period during the time her son was working on the house. When Respondent returned to work, she discovered the patient's home had been vandalized by her son and/or his friends. She also discovered her son had forged the patient's name to the patient's car title and sold the patient's car. Additionally, her son had sold some of the patient's possessions. Respondent promptly reported the matter to the police.

Respondent was arrested and charged with Failing to Report Exploitation of a Vulnerable Adult by the Seneca Police Department. She was accepted into pretrial intervention program (PTI), and her charge was expunged. Respondent made full restitution, including all fees she collected, and apologized to the patient. She also
performed 48 hours of community service and attended a class required of all PTI participants.

The attorney admitted the conflict. (Mike Frisch)

October 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Suspension For Stiffing Court Reporters

The South Carolina Supreme Court has imposed an 18-month  definite suspension of an attorney, who among other things, failed to pay for several depositions

Respondent admits his pattern and practice of failing to timely pay for court reporting services violates Rule 4.4 (in representing a client, lawyer must have respect for rights of third persons) and Rule 8.4(e) (it is professional misconduct to engage in conduct that is prejudicial to the administration of justice) of the Rules of Professional Conduct (RPC) found in Rule 407, SCACR.

He failed to respond to bar complaint and did not honor that terms of an agreed discipline

In the Agreement for Discipline by Consent that concluded the Swartz complaint, the second Graber complaint, and two client complaints, Respondent agreed to certain conditions. Those conditions included paying the investigation costs by November 29, 2014, completing the Legal Ethics and Practice Program (LEAPP) Ethics School and Law Office Management School by October 29, 2015, and maintaining $1,000 in his operating account to cover costs incurred on behalf of clients, including court reporting invoices.

The Commission sent letters reminding Respondent of his obligations on November 17, 2014, January 7, 2015, April 29, 2015, April 30, 2015, August 26, 2015, and January 8, 2016. Respondent did not complete the required LEAPP sessions, which were available to him in February 2015, September 2015, and February 2016. Furthermore, Respondent did not pay the investigation costs. 

(Mike Frisch)

October 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Suspended for Non-Support

An attorney who had failed to respond to charges of unpaid child support has been suspended by the New York Appellate Division for the Second Judicial Department

We find that the procedural requirements under Judiciary Law § 90(2-a)(b) were satisfied, and the respondent failed to appear at the hearing and present proof that full payment has been made of all child and spousal support arrears established by the Family Court order. Pursuant to Judiciary Law § 90(2-a)(d), “the license to practice law in this state of an attorney admitted to practice shall be suspended by the appellate division if, at the hearing provided for by paragraph b of this subdivision, the licensed attorney fails to present proof of payments as required by such subdivision.”

Accordingly, effective immediately, pursuant to Judiciary Law § 90(2-a)(d) the respondent is suspended from the practice of law (see Matter of Updegraff, 242 AD2d 119).

(Mike Frisch)

October 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

No Reasonable Likelihood

The Minnesota Supreme Court affirmed a crimiinal conviction, rejecting a claim that a press interview by the prosecutor was plain error requiring reversal

The State charged Parker with several offenses, including second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2016). That same day, on February 3, 2014, the county attorney held a press conference during which he announced the charges against Parker and answered questions from the media. In his introduction, the county attorney commented on Sonnenberg’s character, referring to him as a "fine man" and "a Good Samaritan who is doing what we always hope people do . . . help others." In addition to Sonnenberg’s character, the county attorney mentioned Parker’s prior record and sentencing history, saying, "Parker had a prior record of more minor crimes: obstruction with force; fifth-degree assault; interference with an MTC bus driver, but nothing significant. He had done time in the past, and ironically, he was supposed to appear on Friday, the day this incident occurred, in Hennepin County District Court to be sentenced on another crime." Finally, the county attorney twice alluded to Parker’s constitutional right against self-incrimination. He stated, in response to a question from the press, that "Apparently Parker knows people in the neighborhood, but we don’t know because the only person who really knows that is Parker, and he’s not talking." Similarly, in response to a question about Parker’s possible motive, the county attorney commented, "Our dilemma always is, the defendant’s got his constitutional right not to talk, he’s the one who can answer these questions frankly better than I can."

The county attorney’s office later posted the video of the press conference to its YouTube page, referring to Sonnenberg as a "Good Samaritan" in the title of the video...

 Here

 Here, we are convinced that there is no “reasonable likelihood” that the county attorney’s statements during the press conference, even if these comments formed the basis for the subsequent media coverage, affected Parker’s substantial rights.  As discussed above, none of the jurors were exposed to any pretrial publicity or had knowledge of Parker or the charges he faced, which is apparent from their responses to the questions by the court during voir dire.  Nor did any jurors recognize Parker during voir dire or claim to have any familiarity with the charges, suggesting that the county attorney’s statements from the press conference did not pervade the jurors’ considerations.

(Mike Frisch) 

October 4, 2017 | Permalink | Comments (0)

Conduct Unbecoming

The Law Society of Upper Canada revoked an attorney's license

The Law Society alleged that Mr. Sumner engaged in conduct unbecoming a licensee on account of threatening and harassing e-mail and voicemail communications that he made between April 2014 and June 2016. The communications included: death threats against a district attorney in California, Mr. Kochis; requests that two motorcycle clubs arrest the district attorney (forcefully if necessary); and threatening and profane communications to others in California, to Law Society staff, and to Tribunal staff.

Mr. Sumner did not attend. The hearing proceeded in his absence as he was properly served. The Law Society relied on its Request to Admit (“RTA”), served on Mr. Sumner on June 15, 2017. Pursuant to Rule 20.04(3) of the Rules of Practice and Procedure, Mr. Sumner, having not attended, is deemed to admit all of the facts and documents in the RTA. In addition, the Law Society relied on the evidence of Mr. Kochis who testified by telephone.

The communications at issue were threatening and harassing and tended to bring discredit upon the legal profession. Mr. Sumner was found to have engaged in conduct unbecoming a licensee.

Mr. Sumner’s threats and harassment started in September 2011 and continued to the eve of the hearing. He continued to engage in threatening and harassing communications after his California disbarment, after the Law Society investigation was commenced, after the interlocutory suspension of his licence was ordered in April 2016 and as late as the week prior to the commencement of this hearing.

In light of the seriousness of his actions and the lack of any indication that this behaviour was out of character or would stop, the appropriate penalty was the revocation of his licence to practise law, commencing immediately

 Sanction

Mr. Sumner’s threatening and harassing communications were the basis for the interlocutory suspension of his licence to practise law in Ontario on April 6, 2016. In giving evidence at that hearing, Mr. Sumner testified that he would not stop trying to have Mr. Kochis arrested and held accountable for his crimes. The suspension in Ontario did not deter him from continuing his threats.

 Mr. Sumner’s prolonged and repeated misconduct is most serious. Despite the criminal charges, disbarment in California and interlocutory suspension in Ontario, Mr. Sumner continues making threats of violence against those with whom he disagrees. The protection of the public, and its confidence in the legal profession, require that he not remain a licensee of the Law Society.

There are no mitigating factors that balance against a finding that his licence should be revoked. There is no character evidence, no evidence of remorse or a willingness to be governed and every indication that the misconduct will recur. Mr. Sumner has not co-operated with the Law Society in the context of this application. There was some medical evidence that Mr. Sumner may suffer from a mental health issue, but it does not assist.

(Mike Frisch)

October 4, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Tuesday, October 3, 2017

"It Was You And Your Abs"

The Wisconsin Supreme Court has ordered a six-month default suspension of an attorney who had previously been privately reprimanded for sex with a client.

Attorney Baratki was admitted to practice law in Wisconsin in 1990. He has twice been privately reprimanded. In 2006, he was privately reprimanded for engaging in a consensual sexual relationship with his client when he did not have such a relationship with the client prior to the establishment of their attorney-client relationship...

Here in a divorce case

Beginning in April 2014, Attorney Baratki began sending flirtatious, and sometimes sexual, text messages to [client] K.D. In April 2014, Attorney Baratki sent K.D. a text message that read, "I forgot to tell you yesterday your top was really pretty," and, "You[] are so bad." When K.D. responded, "I think it is your imagination," Attorney Baratki replied, "Nope, it was you and your abs." In May 2014, Attorney Baratki texted K.D. to suggest that she "could stop over for a 10 or 15 minute pawing before [K.D.'s daughter] stops over." Attorney Baratki later texted such appeals as, "Are you ignoring me?" and, "You don't love me anymore." Attorney Baratki also bragged to K.D. about how many women he had been with, suggested that she should "date," and forecasted her sexual predilections. In one of his meetings with K.D., Attorney Baratki lifted her shirt and kissed her abdominal area.

 The client found a new lawyer.

He also had practiced while suspended and failed to cooperate in the bar investigation.

The court

Attorney Baratki's first category of misconduct - his inappropriate statements and behavior toward K.D. by itself justifies a suspension longer than 60 days.

 The referee had proposed the 60-day suspension. (Mike Frisch)

October 3, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Monday, October 2, 2017

Novel Defense Fails

The Pennsylvania Supreme Court imposed a five-year consent suspension of an attorney who had been reported by a member of his law firm for possible possession of child pornography.

A search by police revealed 320 images and led to a guilty plea.

ABC Action News reported on the arrest

A Montgomery County [Pennsylvania] attorney has been arrested for allegedly possessing hundreds of images of child pornography.

George Bock Ditter of Perkiomenville was arraigned Tuesday on charges of sexual abuse of children and criminal use of a communication facility.

Ditter is accused of using a work computer at his law office in North Wales to view pictures of underage children performing sex acts.

Investigators said they found 24,000 image searches on the computer.

The Montgomery County district attorney said Ditter told a colleague he was doing research for a "sexually graphic novel" he was writing.

North Penn Life had more

The law firm partner told police that in mid- to late-September, he had walked over to the office copier machine to retrieve a fax when he discovered two printed images sitting in the copier tray, one of which showed two naked males engaged in a sexual act, according to the affidavit. The partner said that he observed Ditter — who is described in court documents as an employee of the firm; a cached version of the firm’s website from Oct. 6 listed Ditter as an attorney with the firm — retrieve the images from the copier, the affidavit states.

The next day, Ditter approached the partner to explain the images, claiming that he had been doing research for a sexually graphic novel that he was writing, according to court documents. During the meeting, the partner advised Ditter that possession and printing of such materials was a violation of company policy, but, the affidavit states, Ditter allegedly asked the partner, “Let’s just keep this between us. Please don’t tell anyone about this.”

On Oct. 3, the affidavit indicates, a computer virus was detected on the law firm’s computer server, and a tech company was brought in to identify and remove the virus. During that work, two sexually explicit images — both of lone teenaged males — were found on a shared drive, and while those files were not the cause of the virus, the tech company was allegedly able to determine that Ditter had placed them on the shared drive, according to the affidavit.

Further investigation of Ditter’s work computer by the tech company allegedly first uncovered numerous image searches using terms including “really young teen boys” and other much more sexually explicit search terms, then located several images on the computer’s temporary cache folder that were later determined by detectives to be child pornography, court documents state.

Law enforcement officials obtained and executed a search warrant for Ditter’s work computer and other electronic storage devices used by Ditter at the firm on Oct. 6, seizing 11 items and finding numerous images of child pornography on Ditter’s computer during an initial review, according to the affidavit.

(Mike Frisch)

October 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Condo Conduct No Ethics Violation

A defeat for the Illinois Administrator from a hearing board recommendation of dismissal of disciplinary charges

The Administrator charged that Respondent and an agent falsely represented Respondent as the president of a condominium association, in order to gain access to the association's bank account. Respondent owned units in the building. No attorney-client relationship was involved.

Respondent was added to the association's bank account the day after an election in which Respondent was made an assistant to the Board and another individual, Hull, was elected secretary. Those results were shown on the minutes of the meeting at which the election occurred. Hull changed those minutes, to show Respondent was the president, after she and Respondent attempted unsuccessfully to be added to the association's account. Respondent and Hull later met with a different banker, to whom the altered minutes were given, as well as additional information, which accurately identified the association officers. Respondent did not need to be president to be a signer on the account, and Hull's authority as secretary sufficed for the account changes to be made. No funds were misappropriated.

The Hearing Board concluded that the Administrator did not prove that Respondent engaged in dishonest conduct, directly or through Hull. The Hearing Board recommended that the Complaint be dismissed.

Analysis

According to the Complaint, Respondent violated Rule 8.4(c) by falsely representing to Chase Bank that she was the president of the Association's Board, in order to gain access to the Association's account at Chase. The Complaint alleges Respondent did so by assisting Hull, as Respondent's agent, to draft minutes that falsely stated that Respondent was the president and by Respondent's own representations at Chase's Hyde Park branch.

The Administrator did not prove Respondent violated Rule 8.4(c). We found no evidence, particularly not at a clear and convincing level, that Respondent directed Hull in changing the minutes, suggested that Hull should change the minutes, participated in changing the minutes or assisted Hull when Hull did so. Some evidence suggested Hull might have been at Respondent's office when Hull changed the minutes, although we did not find that testimony clear and convincing. Even if Hull changed the minutes at Respondent's office, we did not find evidence to show Respondent knowingly assisted Hull in doing so or even knew Hull was changing the minutes. Therefore, the Administrator did not prove this aspect of the charge under Rule 8.4(c).

We also did not find clear and convincing evidence to support the allegation that Respondent falsely represented herself as the president at Chase's Hyde Park branch. Further, we did not find clear and convincing evidence of dishonest intent by Respondent.

 (Mike Frisch)

October 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Left In Jail

The Georgia Supreme Court has disbarred an attorney who defaulted on charges of misconduct in two matters

We agree with the special master that Watkins’s multiple offenses, prior discipline, substantial experience in the practice of law, and disregard of the disciplinary process are aggravating factors. We also agree that disbarment is the appropriate sanction in these circumstances, especially considering Watkins’s failure to make restitution to the first client and his abandonment of the second client in a criminal matter, possibly resulting in a longer period of incarceration.

An order

The State Bar’s General Counsel is hereby directed to contact the prosecutor and court involved in Watkins’s second client’s criminal case to advise them of the disposition of this matter and the need to promptly ensure new representation for that client.

(Mike Frisch)

October 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Voice Of God Favors Reinstatement

A louisiana Hearing Committee recommends the reinstatement of a disbarred attorney

Mr. Jones testified at length about his rehabilitative process that began during his incarceration at the federal camp in Florida. He has also attended and graduated from United Theological Seminary and Bible college, with a Masters of Theology Degree. Mr. Jones is now an ordained Baptist minister and serves as an assistant pastor at Lone Wa Worship Center in Monroe, Louisiana. Also, Mr. Jones wrote a book entitled "7 Prayer Commands: a Response to the Voice of God." In addition to the testimony of Mr. Jones, numerous witnesses testified indicating that Mr. Jones possesses the requisite honesty and integrity to practice law. Character witnesses included Rosiland Jones Lewis, Judge Benjamin Jones, District Attorney Steven Tew, District Attorney John Belton, Judge James Garland Smith and Eva Wilson. In addition to the live testimony, there were various character letters issued by Judge Freddie Pitcher, Jr., Attorney John Hoychick, Jr., Attorney W. James Singleton, Attorney 1. Michael Small, Attorney Allyn Stroud, Retired District Attorney Jerry Jones, District Attorney James Stewart, Retired Judge Jimmy Dimos and Retired Judge Wilford Carter. Criteria No. 6 is satisfied...

Based upon the record in these proceedings, including voluminous stipulations and lengthy and detailed testimony, this committee believes that applicant Charles D. Jones has satisfied all of the readmission criteria by clear and convincing evidence. Hearing Committee # 18 recommends that Charles D. Jones be readmitted to the practice of law in the State of Louisiana.

(Mike Frisch)

October 2, 2017 in Bar Discipline & Process | Permalink | Comments (0)

Forward With Care

A majority of the United States Court of Appeals for the District of Columbia Circuit in the main upheld findings by the SEC

The Securities and Exchange Commission found that Francis Lorenzo sent email messages to investors containing misrepresentations about key features of a securities offering. The Commission determined that Lorenzo’s conduct violated various securities fraud provisions. We uphold the Commission’s findings that the statements in Lorenzo’s emails were false or misleading and that he possessed the requisite intent.

We cannot sustain, however, the Commission’s determination that Lorenzo’s conduct violated one of the provisions he was found to have infringed: Rule 10b-5(b). That rule bars the making of materially false statements in connection with the purchase or sale of securities. We conclude that Lorenzo did not “make” the false statements at issue for purposes of Rule 10b-5(b) because Lorenzo’s boss, and not Lorenzo himself, retained “ultimate authority” over the statements. Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142 (2011).

While Lorenzo’s boss, and not Lorenzo, thus was the “maker” of the false statements under Rule 10b-5(b), Lorenzo played an active role in perpetrating the fraud by folding the statements into emails he sent directly to investors in his capacity as director of investment banking, and by doing so with an intent to deceive. Lorenzo’s conduct therefore infringed the other securities-fraud provisions he was charged with violating. But because the Commission’s choice of sanctions to impose against Lorenzo turned in some measure on its misimpression that his conduct violated Rule 10b-5(b), we set aside the sanctions and remand the matter to enable the Commission to reassess the appropriate penalties.

Circuit Judge Kavanaugh dissented

Suppose you work for a securities firm. Your boss drafts an email message and tells you to send the email on his behalf to two clients. You promptly send the emails to the two clients without thinking too much about the contents of the emails. You note in the emails that you are sending the message “at the request” of your boss. It turns out, however, that the message from your boss to the clients is false and defrauds the clients out of a total of $15,000. Your boss is then sanctioned by the Securities and Exchange Commission (as is appropriate) for the improper conduct.

What about you? For sending along those emails at the direct behest of your boss, are you too on the hook for the securities law violation of willfully making a false statement or  willfully engaging in a scheme to defraud.  According to the SEC, the answer is yes. And the SEC concludes that your behavior – in essence forwarding emails after being told to do so by your boss – warrants a lifetime suspension from the securities profession, on top of a monetary fine.

That is what happened to Frank Lorenzo in this case. The good news is that the majority opinion vacates the lifetime suspension. The bad news is that the majority opinion – invoking a standard of deference that, as applied here, seems akin to a standard of “hold your nose to avoid the stink” – upholds much of the SEC’s decision on liability. I would vacate the SEC’s conclusions as to both sanctions and liability. I therefore respectfully dissent.

(Mike Frisch)

October 2, 2017 | Permalink | Comments (0)