Friday, August 5, 2016
A Law Society of Upper Canada Hearing Division Panel has held that an attorney cannot challenge orders imposing professional discipline in Florida and Illinois.
Jussi Kustaa Kivisto is licensed to practise law in Ontario. He was licensed to practise law in Florida and Illinois until he was disbarred in Florida and reciprocally disbarred in Illinois. The Law Society of Upper Canada seeks to rely on findings made in those discipline proceedings as part of its application for a finding that Mr. Kivisto engaged in conduct unbecoming a barrister and solicitor. The Law Society seeks to rely on six U.S. judgments from both Florida and Illinois (“the Foreign Decisions”). Those judgments are as follows:
(a) Report of the Referee of the Supreme Court of Florida dated December 17, 2008;
(b) Order of the Supreme Court of Florida dated September 28, 2010, Case No. SC07-2281;
(c) Report of the Referee in the Supreme Court of Florida dated September 3, 2013, Case No. SC12-770;
(d) Amended Order of the Supreme Court of Florida dated January 28, 2014, Case No. SC12-770;
(e) Order of the United States Court of Appeals for the Seventh Circuit, Chicago Illinois, dated August 14, 2012;
(f) Order of the Supreme Court of Illinois, dated September 20, 2011 collectively the “disbarment orders.”
This is the first time a panel of the Law Society Tribunal has considered the recognition of foreign judgments in support or in defence of a conduct application. Both the Law Society and Mr. Kivisto request that the judgments that they seek to rely on be given preclusive effect before us. To be clear, neither is saying that the judgments are to be enforced in Ontario, rather each asks that the findings of fact contained in those judgments be held to be preclusive of further dispute before this panel, once the judgments are recognized.
In opposing recognition of the discipline judgments, Mr. Kivisto raises the defences of fraud, public policy and lack of natural justice in respect of all the judgments relied upon by the Law Society. These defences will be explored in further detail below. In the case of the judgments regarding the estates, the Law Society takes the position that there has been no proof that they are final and thus they cannot be recognized.
The rejected defenses
The defence of public policy requires that the foreign law be contrary to Canada’s view of basic morality. The defence of public policy involves condemning the foreign law over which the judgment is based. It is a remedy that is not issued lightly. The fact that the law of the foreign court gives rise to a different or more harsh result, does not meet the public policy test in considering whether to recognize a foreign judgment. In this case, Mr. Kivisto takes issue with the manner in which the judgments of Judge Moe and Judge Usan were drafted. In accordance with Florida procedural law, Bar counsel prepared the initial draft of the Default Order and Final Report of Judge Moe. There was no evidence regarding Judge Usan’s drafting of his report but given the practice in Florida, it may have been drafted by Bar Counsel. Because Judge Moe and Judge Usan followed Florida procedural law, Mr. Kivisto’s argument also addresses public policy concerns. The issue is considered below.
The third defence to the recognition of a foreign judgment is that the conduct in the foreign proceeding, or an element of the foreign proceeding, is contrary to Canadian notions of natural justice. The intention is not to replicate Canadian or Ontario procedure. The domestic court must be satisfied that minimal standards of fairness have been applied to the parties. The burden is on the party challenging the foreign judgment’s recognition to prove the unfairness in the foreign legal system.
The attorney's effort to use other court pleadings to attack the findings was rejected.
The Law Society motion for recognition and preclusion in respect of those orders and findings identified in Schedule “C” of its Factum (“the Foreign Decisions”) is allowed. Mr. Kivisto is barred from relitigating those findings. The motion of Mr. Kivisto for recognition and preclusion of the estate orders (“the Probate Court Orders”) is dismissed.
Thursday, August 4, 2016
A tenured member of the Rutgers Law faculty has resigned from the Bar of the New York Appellate Division for the First Judicial Department.
Respondent avers his resignation is voluntary, free from coercion and duress, and he is fully aware of the implications of submitting his resignation. Respondent acknowledges that he is the subject of an investigation into allegations of misconduct in connection with his attorney escrow account based upon a dishonored check drawn from his IOLA Trust Account. Admittedly, respondent misappropriated approximately $255,000 from his IOLA Account, in connection with real estate matters, in order to meet his personal and business expenses. Respondent later replenished the funds from an operating account.
Respondent admits that he would be unable to successfully defend himself on the merits if Committee brought charges based upon his misappropriation client funds.
The Committee advises this Court that there are no other outstanding complaints against respondent. Respondent has taken full responsibility for his actions, made full restitution and cooperated fully with the Committee to assure that the public is fully protected and no party further damaged. Finally, respondent contends that he has not engaged in the practice of law since his suspension.
Respondent's affidavit of resignation complies with the requirements of 22 NYCRR 603.11. Accordingly, the Committee's motion should be granted, respondent's resignation accepted and his name stricken from the roll of attorneys, effective nunc pro tunc to May 25, 2016.
Our earlier reporting here.
The court described the charges in an order of interim suspension
Respondent is a tenured professor at Rutgers School of Law, who also maintains a transactional law practice. In two instances, respondent withdrew IOLA funds that did not belong to him in order to meet his personal and business expenses. In one instance, in December 2013, respondent received a $220,000 contract deposit on behalf of his client, the seller in a real estate transaction, which he deposited into his IOLA account. Between January 2 and February 14, 2014, when the transaction closed, respondent repeatedly invaded the $220,000 contract deposit such that, as of February 11, 2014, his account balance had fallen to $500. Respondent replenished the funds he withdrew with funds from his two operating accounts.
In the second instance, on August 5, 2014, respondent deposited a $100,000 contract deposit he received from his clients, a married couple, whom he represented in connection with their purchase of a condominium; he deposited the funds into his IOLA account. At the time, respondent was holding $10,395.96 on behalf of another client in his IOLA account. Between August 5 and August 20, 2014, when the transaction closed, respondent invaded the IOLA funds by making transfers to his business and personal accounts such that, as of August 14, 2014, his account balance had fallen to $74,495.96.
On the same day as the closing, respondent replenished the funds he withdrew by transferring funds from his two operating accounts. Nonetheless, an IOLA check in the amount of $15,914.93, representing the payment of a flip tax, was dishonored due to insufficient funds; this is the dishonored check that precipitated the Committee's investigation. On September 23, 2014, respondent replaced this check with a bank cashier's check drawn against his IOLA account.
Respondent's documentary responses also reveal that he commingled client funds with his personal and business funds, failed to maintain required IOLA account records, and, on one occasion, made a cash withdrawal from his IOLA account for $1,500.
The Florida Fourth District Court of Appeal has reversed a judgment in a personal injury action due to misconduct of defense counsel
Appellant, personal representative of the estate of decedent Lauren Robinson (the plaintiff below), appeals a final judgment for the defendant, appellee Dillard’s, Inc., alleging multiple errors on the part of the trial court and numerous instances of misconduct at trial on the part of defense counsel and arguing that these effectively denied plaintiff a fair trial...for the reasons given below, we hold that defense counsel’s misconduct was so prejudicial as to warrant a new trial, and we reverse the verdict on this basis.
During closing arguments, referring to plaintiff’s testimony that she had tapped her brakes to take her vehicle off cruise control before turning into her driveway, defense counsel told the jury, “Why is that important? We took her deposition for hours and it never came up.” Plaintiff’s counsel objected and requested a sidebar, to which defense counsel replied by turning to the jury, raising his hands and exclaiming, “Well, that lasted about 12 minutes.” Plaintiff’s counsel moved for a mistrial, arguing that it was improper to refer to the deposition because it had not previously been introduced into evidence and that defense counsel was using this characterization of extra-record evidence to accuse plaintiff of dishonesty.
The trial judge denied plaintiff's mistrial motion and instructed the jury but
It is undisputed that defense counsel’s attempted impeachment of plaintiff’s credibility by reference to alleged inconsistencies between her trial testimony and her pretrial deposition was improper, as was his open disparagement of plaintiff’s counsel after the latter had registered an eminently reasonable objection to the impropriety. While a single improper remark, properly and immediately cured by an instruction by the trial court, will not necessarily constitute adequate grounds for mistrial, we find that it did so in the instant case where the issue of the defendant’s liability essentially hinged on the comparative credibility of two opposing witnesses, plaintiff and Mr. Davis. A finding of harmfulness is especially appropriate when the context suggests that an error was made intentionally.
Goose and gander
We hasten to add that plaintiff’s counsel did not exit these proceedings with clean hands either. We decline to enter into a discussion of “who started it,” but we note that plaintiff’s counsel’s snide denigration of [defense expert] Dr. Ipser’s professional occupation in the presence of the jury and postings by plaintiff’s counsel on his own public Facebook page – which included commentary on the proceedings and the evidence and derogatory references to one of defendant’s attorneys – were well outside the bounds of professional conduct to which members of our profession are expected to adhere.
A dissent finds the argument improper but not reversal-worthy
As for whether the cumulative effect of the various statements made by defense counsel warrants a new trial, it is important to note that the trial was contentious on both sides, with the plaintiff’s attorney admitting that he was not “terribly proud” of his behavior during trial. At one point, the trial court advised both sides that it had “given [them] a little bit of leeway” but would tolerate nothing less than professionalism and civility going forward. I disagree with the majority that the point was reached in this case where the totality of all errors and improprieties was pervasive enough to raise doubts as to the overall fairness of the trial court proceedings.
Hat tip to the best ethics blog on Florida matters - sunEthics. (Mike Frisch)
A decision from the New York Appellate Division for the First Judicial Department
In 2004, respondent was charged in an indictment filed in County Court, Westchester County, with five counts of attempted disseminating indecent material to minors in the first degree in violation of Penal Law §§ 110.00 and 235.22. The charges alleged that respondent used a computer to transmit communications, which depicted sexual conduct and which were harmful to minors, to a person he believed to be a minor, and that he attempted by such communications to induce the minor to engage in sexual contact with him.
On May 11, 2005, following a nonjury trial before a Westchester County Court Judge, respondent was found guilty of all five counts of attempted disseminating indecent materials to minors in the first degree, which are class E felonies. On July 27, 2005, respondent was sentenced to five years probation, a $250 mandatory surcharge and was certified as a sex offender.
As night follows day
A conviction for any criminal offense classified as a felony under the laws of this State results in automatic disbarment by operation of law (Judiciary Law § 90[a], [e]). For purposes of disbarment, a conviction occurs at the time of the plea or verdict (Matter of Lurie, 207 AD2d 48, 49 [1st Dept 1995]). Respondent was convicted of five counts of the class E felony of attempted disseminating indecent material to minor in the first degree on May 11, 2005, which constitutes grounds for his automatic disbarment (see Matter of Heberling, 119 AD3d 90 [1st Dept 2014]; Matter of Stark, 309 AD2d 4 [1st Dept 2003]).
A Louisiana Hearing Committee has recommended that an attorney be permanently disbarred and, in so doing, noted some rather unusual procedural aspects that took place after the matter had been remanded by the Disciplinary Board
Respondent appeared at the hearing on March 29, 2016, accompanied by her husband and infant child. She presented an oral motion for continuance on the basis that she was gathering funds to hire Dane Ciolino, Esq. as her attorney. She brought no exhibits, witness lists, or anything else whatsoever to support her defense or request to delay the hearing. ODC objected, and it requested to be permitted to proceed, wishing to take Respondent as its first witness. The committee listened carefully to Respondent’s bases for a continuance, thoroughly considered them and found her arguments unpersuasive and lacking in merit. However, the committee allowed the hearing to commence with a number of protections for Respondent and any counsel who might subsequently enroll.
The committee went to great lengths to assure that the best interests of Respondent’s child were considered, and addressed while Respondent was attending the hearing. See Transcript Vol. 1, pp. 29-32, 70-72, 116-117.
Mr. Ciolino appeared at the scheduled hearing on May 6, 2016, and he reported about a bizarre series of text messages sent to him by Respondent’s phone earlier that morning. In those messages, Respondent complained of a medical problem and sent photographs of what appeared to be a human hand that was purportedly infected in some way. To be specific, other than the text messages reported by Mr. Ciolino, nothing whatsoever was or has been submitted by Respondent that would explain or excuse her absence from the May 6. 2016. Mr. Ciolino sought a continuance of the hearing, which ODC opposed. The request for continuance was denied. Because of the lack of cooperation and participation by Respondent, Mr. Ciolino sought to withdraw from representation of Respondent, which ODC did not oppose. The committee found merit with his request, and Mr. Ciolino was permitted to withdraw as counsel for Respondent. The hearing was resumed and concluded on May 6. 2016.
The committee reaffirmed findings of a host of violations but reconsidered its earlier sanction proposal
We wish to amend our recommended sanction set forth in our original report. In our original report, a majority of our committee recommended that Respondent be disbarred. One committee member dissented only from that recommendation, believing instead that permanent disbarment was warranted. Having listened carefully to and considered the evidence presented, along with the Respondent’s post remand course of conduct in these proceedings, we now are unanimous in our recommendation that Respondent should be permanently disbarred.
The Indiana Supreme Court reprimanded a senior judge
On the evening of Tuesday, November 17, 2015, Respondent was involved in a motor vehicle collision in Mooresville, Indiana when he made a wide right turn and collided with another vehicle that was waiting for traffic to clear. At the scene, police observed that Respondent appeared to be under the influence of alcohol, and Respondent failed or could not complete field sobriety tests. Respondent told police he had consumed one vodka on the rocks about two hours prior to the accident, and a preliminary breath test showed a blood alcohol concentration (BAC) of 0.14%. Respondent was transported to a hospital for a voluntary blood sample, the toxicology report of which reflected a blood alcohol concentration of 0.15%. En route to the hospital, Respondent asked the police officer, “Will you just take me home and forget about the drinking and driving?” At the hospital, Respondent made other statements reflecting that he did not want to be arrested and simply wanted to go home; and while the officer inventoried Respondent’s wallet, Respondent stated that he is a senior judge for the Court of Appeals. Respondent was arrested and subsequently charged with Operating a Vehicle While Intoxicated Endangering a Person, a Class A misdemeanor, see Ind. Code § 9-30-5-2(b), and Operating a Vehicle While Intoxicated, a Class C misdemeanor, see Ind. Code § 9-30-5-1(a). He self-reported his arrest to the Indiana Commission on Judicial Qualifications on November 19, 2015 and indicated that he already contacted the Judges and Lawyers Assistance Program (JLAP).
In mitigation, [the parties] agree that Respondent immediately self-reported his misconduct and voluntarily contacted JLAP; that he is compliant with all JLAP requests and regularly attends Alcoholics Anonymous meetings; that he has been fully cooperative with the Commission throughout its investigation; and that he is remorseful for his conduct. Finally, they agree that under the circumstances, the appropriate sanction is a public reprimand. The Court agrees with the parties.
A reciprocal one-year and fitness suspension has been imposed by the District of Columbia Court of Appeals as a result of a Missouri suspension for unauthorized communication with a represented party.
Mr. Chaganti‟s indefinite suspension from the Missouri bar stemmed from actions he took in a civil suit he filed against Lafayne Manse. Mr. Chaganti sued Mr. Manse for breach of contract in relation to heating and cooling services Mr. Manse was supposed to provide to Whispering Oaks Residential Care Facility, a business Mr. Chaganti not only represented as an attorney but also managed and owned. At various times throughout three years of litigation, Mr. Chaganti asked to talk directly with Mr. Manse, but in each instance, Mr. Manse‟s counsel, Thomas DeVoto, refused to permit direct contact between his client and Mr. Chaganti. At one point, Mr. Manse tried to reach out to Mr. Chaganti directly, but Mr. Chaganti declined to speak with him and referred him to Mr. DeVoto. Whispering Oaks‟s complaint was ultimately dismissed for failure to prosecute. Immediately after the case was dismissed, while the parties were still at the courthouse, Mr. Chaganti indicated that he was certain he could resolve his dispute if only he and Mr. Manse could speak directly. Mr. DeVoto then reminded Mr. Chaganti that he still represented Mr. Manse in the matter, and that Mr. Chaganti still did not have permission to communicate with Mr. Manse. Mr. DeVoto also warned Mr. Chaganti that he would file a complaint with the Missouri Bar if Mr. Chaganti contacted Mr. Manse.
Mr. Chaganti ignored Mr. DeVoto‟s warning and, the following day, wrote a letter to Mr. Manse. Mr. Chaganti informed Mr. Manse that he planned to refile the lawsuit and would add as a defendant Mr. Manse‟s employer, who apparently was unaware that Mr. Manse had independently contracted to do business with Whispering Oaks. Mr. Chaganti then advised Mr. Manse that he could avoid further litigation by discussing settlement, but he would have to “place a larger sum of money to settle than [Mr. DeVoto] has offered.” Mr. Chaganti warned Mr. Manse that he “should think seriously whether it is in your best interests to go to court again or to close this matter at this time.”
The suspended attorney argued that several of the exceptions to reciprocal discipline applied. The court rejected each claim.
As to the contention that D.C. would impose "substantially different" discipline
It appears that we have no cases discussing what discipline should be imposed, as an original matter, for contacting a represented party and making analogous intimidating and extortionary statements. But in In re Ras, 884 A.2d 44 (D.C. 2005), we imposed a one-year suspension as reciprocal discipline where another jurisdiction determined that the attorney had, inter alia, communicated with a represented party and threatened to pursue criminal charges to gain advantage in a civil matter.
Wednesday, August 3, 2016
A former state senator convicted of bribery has resigned from the Bar of the Oklahoma Supreme Court.
Respondent is unable to locate his OBA membership card but will forward it to the Office of the General Counsel should he find it.
NewsOK reported on the criminal case
Former state Senate leader Mike Morgan was sentenced Tuesday to probation on his bribery conviction after more than 400 supporters wrote letters to the judge urging leniency.
“You are well-loved in the community, in many communities,” U.S. District Judge Robin Cauthron said.
The longtime judge put Morgan on probation for five years.
She ordered him to complete 104 hours of community service and to pay a $100 special assessment to the federal government.
Morgan, 57, of Stillwater, was not fined but must forfeit $12,000 to the federal government. He had faced up to 10 years in federal prison.
The judge announced his punishment after a three-hour hearing at the Oklahoma City federal courthouse. “Yes!” whispered one Morgan supporter. Others wept.
A teary-eyed Morgan hugged several.
Outside the courthouse, a smiling Morgan thanked his family, friends and attorneys for sustaining him “through a nightmare that I wouldn't wish on any living person.”
“The last nine years of my life have been indescribable,” he told news reporters. “I'm looking forward today to the future for the first time in a long time.”
Jurors in March found Morgan, a Democrat, guilty of accepting $12,000 in bribes to influence legislation in 2007.
He was paid $1,000 a month for a year by an Edmond company that operated assisted-living centers. Prosecutors accused Morgan, an attorney, of disguising the bribes as monthly retainer fees.
Morgan at trial denied the payments were bribes. He said Tuesday he still may appeal.
“I didn't commit any crime. I am innocent of this crime, and I think someday, somehow, the truth will come out, and that will be proven,” he told reporters.
Federal prosecutors had sought a significant, lengthy prison term to deter other public officials “tempted by corruption.”
...Morgan was Senate president pro tem in 2005 and 2006. He was Senate co-president pro tem in 2007 and 2008.
He was indicted in 2011, along with a lobbyist and a prominent Oklahoma City attorney. Morgan originally faced 63 counts.
At his trial last year, prosecutors presented evidence Morgan took $12,000 in bribes from the assisted-living company, $250,000 in bribes from an energy company and $141,666 in bribes from a landfill company. He insisted he provided the companies legal services.
Prosecutors dropped a conspiracy count during the trial because of rulings by the judge.
Jurors convicted Morgan of only one felony count — bribery.
Tuesday, August 2, 2016
A Louisiana Hearing Committee has proposed the disbarment of an attorney who accepted a $500 fee while suspended for disciplinary violations. He entered an appearance in a case and submitted a proposed judgment for his client.
The violation was detected by the judge in the case.
The attorney's name is Edward Hebert.
The judge searched the court's case management system and "noted that there was an Edward W. Hebert with a bar number of 25086 who was listed as ineligible to practice law."
But the suspended attorney had proposed a judgment in the case that listed his name as "E. Hebert" with a bar number of 25412.
That number was assigned to a non-suspended attorney named Eric T. Hebert, who confirmed that he and his firm were not involved in the case. (Mike Frisch)
A Single Justice of the Maine Supreme Judicial Court has ordered the suspension of an attorney
The Rule 24 motion is based on information-which is undisputed-that over a period of time, Attorney Letourneau sent unwanted text messages, photographs, and video images of a graphically sexual nature to a client whom he represented in several criminal cases. The client ultimately sought legal advice from a different attorney, who then both assumed representation of her in at least some of the cases where Attorney Letourneau had been counsel of record, and, in June, reported the matter to the Board. I infer that the report, which led to Bar Counsel's investigation of the matter, has triggered an administrative disciplinary proceeding under Bar R. 13 and related provisions.
Attorney Letourneau, through counsel, admits most or all of the conduct that underlies the Board's motion and does not argue that his conduct falls short of constituting violations of the Maine Rules of Professional Conduct. The present record supports the conclusion that he has violated several Rules, including Rules 1.7, 1.16, and 8.4.
The attorney had been suspended for six months in 2010. (Mike Frisch)
A New Jersey attorney has consented to disbarment.
Mortgage Fraud Consultants had a story
A Red Bank lawyer admitted Monday to conspiring with others to steal more than $1 million from lenders by filing fraudulent mortgage applications, diverting mortgage proceeds and falsifying settlement statements, officials said.
Maeble L. Hairston, 57, of Red Bank pleaded guilty to second-degree racketeering in Morris County, according to a prepared statement released by the state Attorney General’s Office.
The state will recommend Hairston be sentenced to five-to-seven years in prison under the plea agreement. Hairston’s sentencing is scheduled for Dec. 7, according to the statement. Hairston also must forfeit her license to practice law in New Jersey and any other state, according to the statement.
Hairston conspired with others in a scheme to falsify mortgage-loan applications for loans to unqualified straw purchasers for homes at grossly inflated values, according to the statement. The co-conspirators then would steal loan proceeds by diverting them at closing, according to the statement. A straw purchaser is a person who makes a purchase on behalf of another person.
While serving as a settlement agent for four real estate closings involving a total of $1,051,804 in loans, Hairston admitted she diverted proceeds to other members of the conspiracy and covered up the thefts by submitting fraudulent HUD settlement statements, according to the statement. The charge is the result of an ongoing investigation led by the Essex County Inspector General’s Office, according to the statement.
Written By-Anthony Panissidi
Monday, August 1, 2016
From the August 2016 California Bar Journal
WENDY B. GABRIELLA [#149179], 57, of Laguna Niguel, was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she does not comply with the terms of her disciplinary probation. The order took effect March 18, 2016.
Gabriella falsely reported to the State Bar she had complied with her MCLE requirements when she had taken none of the necessary courses. She completed the necessary courses after she was audited.
In mitigation, she had no prior record of discipline and entered into a pretrial stipulation with the State Bar.
PATRICIA R. NOGUERA [#189040], 46, of Long Beach, was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she fails to comply with the terms of her disciplinary probation. The order took effect March 18, 2016.
Noguera reported under penalty of perjury to the State Bar she had met her MCLE requirements when she hadn’t. She only took the necessary hours to come into compliance after she was contacted for an MCLE audit.
In mitigation, she had no prior record of discipline and entered into a pretrial stipulation with the State Bar.
BOBAK ROSHAN [#259987], 33, of Santa Monica, was suspended from the practice of law for 60 days and ordered to take the MPRE. He was also placed on one year of probation and faces a one-year suspension if he does not comply with the terms of his disciplinary probation. The order took effect March 18, 2016.
Roshan falsely reported to the State Bar that he had met his MCLE requirements when he had not. He completed the necessary hours after the compliance period.
In mitigation, he entered into a prefiling stipulation with the State Bar, saving time and resources.
MARILYN DINA WEINSTEIN [#183748], 47, of Pleasanton, was suspended from the practice of law for 30 days and ordered to take the MPRE. She was also placed on one year of probation and faces a one-year suspension if she does not comply with the terms of her disciplinary probation. The order took effect March 19, 2016.
In June 2014, Weinstein falsely reported to the State Bar that she was in compliance with her MCLE requirements. She later provided proof she had completed the necessary hours – but the hours were completed after the compliance period.
In mitigation, Weinstein had no prior record of discipline and admitted to her misconduct.
Saturday, July 30, 2016
The District of Columbia Board on Professional Responsibility has issued its long-awaited report in the Kelly Cross case.
The BPR disagreed with a hearing committee recommendation and concluded that the attorney's crime involved moral turpitude on the facts.
The Board considers this to be a difficult case because of its novel facts and the absence of direct precedent and has concluded, contrary to the recommendation of the Hearing Committee, that Respondent’s crime involved moral turpitude on the facts. We thus recommend that Respondent be disbarred pursuant to the mandatory disbarment provision of D.C. Code § 11- 2503(a). We agree with the Hearing Committee’s determination that Respondent violated Rules 8.4(b) and 8.4(c), and in the event the Court disagrees with the Board’s moral turpitude finding, recommend that he be suspended for one year, with a requirement to prove fitness as a condition of reinstatement for these violations, as recommended by the Hearing Committee.
As recounted in detail in this prior post, the attorney was just back from a stint in Europe with the Freshfields firm, about to tie the knot with his longtime partner and looking for an encounter in the Washington Sports Club.
He videotaped a person who happened to be an attorney and former police officer without consent.
In the WSC locker room, Respondent encountered Complainant, another gym patron, who was changing from street clothes into workout clothes. FF 19; Tr. 37. Respondent positioned himself behind Complainant and used his video camera to record a 20-second video of Complainant undressing, including photographing Complainant’s buttocks and genitals. FF 6, 19, 45. Because Respondent’s camera was concealed within his bag, Complainant was not aware that he had been filmed. FF 19.
After Complainant finished dressing, he walked to the toilet area of the locker room, entered a middle toilet stall, and sat on the toilet. FF 20. The latch on that stall was defective, and the door did not close properly. Id. Respondent followed Complainant into the toilet area, and entered the neighboring stall. FF 21. Respondent slammed the door of his stall and placed the toiletry bag containing his camera on the floor between the two stalls, although the camera was not recording. Id. Respondent kept his hand on the toiletry bag, and slowly moved it toward Complainant. Id. Complainant noticed that a hole had been cut in the side of the bag and could see a camera lens pointing outward through the hole. Id. Complainant grabbed the toiletry bag, opened it, moved the toiletries in the bag, and discovered the camera. FF 22.
Crediting Complainant’s testimony, the Hearing Committee found that after Complainant grabbed the toiletry bag, Respondent went into Complainant’s toilet stall and demanded the bag back. FF 23. Complainant, still seated on the toilet, held on to the bag “like a football.” Id. Although Complainant perceived Respondent to be a smaller man, Complainant felt fearful because he believed Respondent was upset and “crazy or something.” Id. Complainant stood up to pull up his pants, still holding on to the bag, and Respondent “lunged” at him. FF 24. Complainant forced Respondent out of the stall, and toward the sink area. Id. Complainant held Respondent against the sinks and told another gym patron to call the police. FF 26. At some point during the scuffle, Complainant suffered a bruise to his right forearm. FF 25.
The attorney pled guilty to video voyeurism and was placed on probation
During the period of his probation, Respondent was prohibited from joining a gym, owning a camera or camcorder, or utilizing any social networking sites (such as Craigslist). Id. He was also ordered to stay away from Complainant.
The BPR's analysis of the moral turpitude issue
In the few moral turpitude cases involving sex-based offenses, the Court has held that a crime involves moral turpitude where “[t]he participant’s desire for . . . gratification [exceeded] his ability to demonstrate a public respect and appreciation of existing societal morals and values.” In re Wolff, 511 A.2d 1047 (D.C. 1986) (en banc) (adopting the opinion of In re Wolff, 490 A.2d 1118 (D.C. 1985) (citation omitted)). Thus, in Wolff, the Court found that the respondent’s conviction of distribution of child pornography involved moral turpitude, because the respondent sought out sexual gratification and attempted to profit by selling materials that exploit children. Id. at 1119-20. Similarly, in In re Bewig, 791 A.2d 908 (D.C. 2002) (per curiam), the Court found that the respondent’s conviction of misdemeanor sexual contact with a minor was a crime of moral turpitude on the facts. In In re Rehberger, 891 A.2d 249 (D.C. 2006), the Court found moral turpitude on the facts where a respondent was convicted of misdemeanor sexual battery and simple battery after he detained and physically abused a female client who had sought respondent’s advice in a divorce case. The Court explained that “misdemeanor sexual convictions” may involve moral turpitude where the victim is placed in a vulnerable position by being “subjected to [the respondent’s] forceful, unwelcome, sordid sexual conduct.” Id. at 252.
Thus, in cases where the Court has determined that a sex-based offense involves moral turpitude, it has found that the respondent knowingly exploited, intruded upon, or invaded the privacy of another person in the interest of his own sexual gratification. By contrast, the Court found no moral turpitude on the facts where a respondent was convicted of carnal knowledge, where there was not clear and convincing evidence that the respondent knew or should have known that the victim was not of the age of consent. In re Lovendusky, No. 84-1672 (D.C. April 4, 1986).
A trip down memory lane here for me.
The Georgia Court of Appeals tells the unsavory story of Rehberger's conviction and disbarment.
...Rehberger escorted [the 27-year-old divorce client] into his office, closed the door and the two stood in front of his desk discussing the papers. The victim was holding her umbrella, pocketbook and day-planner when Rehberger asked if she had the original of her husband's pay stub. She indicated it was in the planner and Rehberger took the book and tossed it on his desk. He grabbed her right arm and pulled her against him, holding her with his right arm. He rubbed his body against her while holding her so tightly she could feel he was aroused. He rubbed her backside with his hand, then took her hand and rubbed it up and down on his groin. The victim attempted to push away but he continued to grope her and pulled her skirt up high enough to reveal her underwear. At one point he said to her "What's the matter, you got a boyfriend? I'm sure you do. You're a beautiful girl."
Rehberger pulled her shirt open exposing her breast which he touched. The victim said, "Please don't; I need to go," and she clutched her shirt to her body. Rehberger said, "well, you can't fault me for trying" and put his mouth on hers. She continued to push him away and tell him, "Please don't," but when he let go and she turned to leave, he pulled her back. He began rubbing himself back and forth on her backside. He had one arm around her waist and with his other hand held her right arm over her head. She finally got free, grabbed her book and went out the door. When she got into her car she saw it was 3:19 p.m.
I told the story of the Bewig case - and did not offer plaudits to the BPR - in my article No Stone Left Unturned under the header A Tale of Two Associates.
He was an associate at a prominent law firm. He sexually abused a child entrusted to his care when the child was three years old.
He stopped the abuse for a period of time but as the BPR recounted
Sexual abuse resumed when the victim was six years old, again during a period when the victim was in Respondent’s care.
Over a period of three to four months, the pattern of sexual abuse included:
causing the victim to touch Respondent’s penis;
digital penetration of the victim’s anus; and
oral stimulation of the victim’s penis.
Respondent instructed the six-year-old not to tell anyone about their sexual interactions.
The victim disobeyed and Bewig pled to a misdemeanor sex offense.
The BPR had sympathy for this devil.
At the Board, Respondent represented himself. The Board can scarcely imagine how difficult it must be for a member of the Bar to appear before a panel of peers and members of the public to discuss such conduct. Respondent could not have handled the situation with greater decency and dignity. His sincere understanding of the harm he has caused – to the victim, to his own future, and to persons who care about him – is very clear to the Board. What happened here is tragic for all concerned.
I regard this as the single most abhorrent passage written in any matter that I litigated in my Bar Counsel career.
A former member of the Federal Communications Commission has been convicted of sexually assaulting a neighborhood boy in the early 1980's and twice engaging in sex acts with him.
The 44-year-old former official, still facing trial in two similar cases, is Stephen A. Sharp, who served 18 months on the F.C.C. after his appointment by President Ronald Reagan in 1982 and is now a member of a Washington law firm.
Mr. Sharp was convicted on Friday in Alexandria Circuit Court by jurors who then recommended that Judge Alfred D. Swersky sentence him to a year in prison on the assault count and to two years on each of two sodomy counts. Judge Swersky set sentencing for Oct. 8, revoked Mr. Sharp's bond and ordered him jailed immediately.
Mr. Sharp is a former official in Alexandria's youth soccer association. The victim of his assault, who is now a 22-year-old resident of Manassas, Va., testified that he had met Mr. Sharp through his interest in athletics and that the sex acts had occurred in Mr. Sharp's home.
Lovendusky was not mine but I well remember the case. His counsel was a pre-famous Greta Van Susteren.
I may have more to say about the Lovendusky case in the near future. Forewarned is forearmed.
The damning facts cited in here by the BPR
First, Respondent’s surreptitious filming was premeditated; he did not merely take out his camera on the spur of the moment. Rather, before arriving at the gym, he securely affixed the camera to the inside of the bag using heavy duty tape and used a sharp blade to neatly cut a hole in the bag for the lens so that he could film without being detected.
Second, Respondent brought the bag and video camera into the locker room, in contravention of club policy and a clearly visible sign that prohibited video recording. We disagree with the Hearing Committee’s observation that the sign reflects a societal recognition that “a camera can be expected to be everywhere,” thus making the filming less culpable. H.C. Rpt. at 36. To the contrary, the sign put Respondent on notice of the club’s prohibition on filming, and provided gym patrons some level of assurance that they would not be filmed while using the locker room. Tr. at 244-45.
Third, Respondent filmed Complainant from behind, with the camera concealed, so there was virtually no way Complainant could have known there was a camera in his changing area.
Fourth, the seriousness of Respondent’s crime is aggravated by his subsequent actions. Respondent followed Complainant into the toilet area, entered the stall next to him, and started pushing his toiletry bag into Complainant’s stall. 7 After Complainant discovered the camera, Respondent assaulted Complainant in an attempt to avoid the consequences of his actions. Respondent pushed into Complainant’s bathroom stall, effectively cornering Complainant in a vulnerable position, in an attempt to retrieve the bag. During the scuffle, Complainant suffered a bruise on his arm. Then, after the scuffle, Respondent offered Complainant $1,000, in an attempt to buy his silence...
In short, Respondent filmed Complainant and essentially stalked him through the locker room and the bathroom in pursuit of his own sexual desires, despite the fact that he knew there was a good chance Complainant was simply there to use the gym. While Rehberger and Bewig involved sexual assaults, and this case did not, here Respondent violated the Complainant’s reasonable expectation of privacy by surreptitiously filming him changing clothes. As in Wolff, Rehberger, and Bewig, Respondent sought out sexual gratification at the expense of Complainant’s legitimate and reasonable privacy interest. Respondent compounded the seriousness of his intrusion upon Complainant by assaulting him in an attempt to get the toiletry bag back and then offering Complainant money in order to avoid police involvement. Based on the foregoing, and the criteria set forth by the Court in other cases involving sex-based offenses, the Board finds that Respondent’s crime involves moral turpitude within the meaning of D.C. Code § 11-2503(a).
The report is in In re Kelly Cross and was authored by Mary Lou Soller. The report can be found by clicking on disciplinary decisions and entering the attorney 's name at this link.
I blogged on the undue length of the process here.
Correction: Elizabeth A. Herman tried the Rehberger case after I had moved to greener pastures.
If memory serves (an increasingly dubious proposition), I had argued that Rehberger was not entitled to a hearing but rather should have been disbarred as reciprocal discipline for his Georgia disbarment.
The BPR was uncomfortable because Rehberger was disbarred by order of the trial judge who presided at the criminal trial. That procedure was entirely lawful in Georgia and was affirmed by the Georgia Court of Appeals. I continue to believe that the BPR erred in granting him a hearing but could not appeal their order.
Betsy picked the case up by the time the heavy lifting was done. (Mike Frisch)
A Vermont assistant judge has been charged with violations of the Canons of Judicial Ethics relating to his dealings with an elderly relative.
In approximately October, 2009 Katherine ("Kay") Tolaro, who is Respondent's father's brother's second wife, moved into Respondent's home in Westminster, Vermont. She was 82 at the time and showing signs of dementia.
The charges allege misconduct both before and after Ms. Tolaro's death.
Perhaps the most unsavory charge
On July 31, 2015 Respondent filed a manifestly implausible claim against Ms. Tolaro's estate for $833,292.51. Among other things, Respondent's wage calculation left only 4 hours per week for Respondent to work, sleep or do anything other than care for Ms. Tolaro. Given that he was employed at the time, that is not possible. Asserting such a manifestly unsupportable claim does not comport with high standards of integrity and candor expected of judges by the Judicial Code.
He also is charged with giving "not entirely truthful" testimony in the related probate proceeding described below.
Seven Days has a detailed story on the situation and the history of so-called Side Judges.
Paul Kane filed a motion to try to avoid testifying in Windsor County Probate Court, but a judge ordered him to talk. As soon as he took the witness stand last November, it was obvious why he'd been reluctant. For 90 minutes, an attorney grilled Kane about whether he'd bilked an elderly woman with Alzheimer's disease of roughly $500,000.
Brattleboro attorney Jodi French asked Kane why, after the ailing Catherine Tolaro granted him power of attorney, he purchased an $180,000 annuity with her money and named himself the beneficiary.
Under French's questioning, Kane claimed that he did so with Tolaro's interests in mind...
Despite his apparent discomfort throughout the hearing, Kane knows his way around the courtroom. In fact, he's a Windham County assistant judge who was elected two years ago. But like most of Vermont's 27 other assistant judges, who advise regular judges in civil and family court cases and occasionally preside over minor cases, Kane does not have a law degree.
Nonetheless, attorneys in the Tolaro estate case say Kane, 63, may have flouted laws and regulations when he converted the funds of the elderly woman he called his "aunt." They are considering whether to refer the case for further investigation to the Department of Financial Regulation, a state agency that regulates bank transactions, once the estate is settled.
Kane has claimed that any irregularities in his handling of Tolaro's estate were due to mistakes and poor understanding of relevant laws. He says he is the victim of "character assassination."
As to Side Judges
The ongoing case is the latest controversy involving assistant judges, colloquially known as "side" or "lay" judges, who retain an antiquated role in the Vermont judiciary despite repeated attempts to strip them of power.
In recent years, side judges in Vermont have been caught directing taxpayer money to their own charities, shoplifting from local stores, doling out bonuses to themselves from public budgets and accusing each other of assault.
Those embarrassing episodes, along with concerns that side judges lack legal training and operate with almost no oversight, have fueled arguments against preserving their positions.
Their harshest critics tend to be traditional judges, some of whom believe that "these people aren't really adequately trained and prepared, and they ought not participate on important decisions in people's lives," said Vermont Law School professor Peter Teachout, who has consulted for the Vermont judiciary. "A prevailing view — not a unanimous view — in the judiciary is that they couldn't be relied upon to perform even a limited judicial function. There's been clear hostility to allowing lay judges to have any legal function."
VTDigger.com reported on the recently-filed ethics allegations.
The events leading up to the complaint filed against Paul Kane, of Westminster, began in October 2009, when Kane moved into the Westminster home of his uncle’s second wife, Catherine Tolaro, who was 82 at the time and showing signs of dementia. That same month, Tolaro executed a “Limited Power of Attorney For Finances” granting Kane and his wife the ability to obtain financial information on her behalf. One month later, Tolaro executed a will that gave 30 percent of her assets to charity and distributed the rest to six beneficiaries, one of whom was Kane. At the time, Tolaro’s net worth was $767,500. Over the next six years, Tolaro’s estate dwindled away, as Kane issued a pair of loans and made claims against the state for the costs of Tolaro’s care.
In July 2015, Kane filed a written statement of claim against Tolaro’s estate, claiming $833,292.51 was owed to him, including $722,740 for caring for her at $18 per hour, 159 hours per week (a week contains a total of 168 hours) for 135 weeks. This amounted to around the clock payment except when a home care nurse was there for two to three hours three times per week.
The claim also included $20,925 for 31 months of room and board calculated at $675 per month, $7,800 due to (Kane) and his wife for financial and property management and $31,827.51 for “expenses advanced to the estate by Paul Kane from April 21, 2012 to July 31, 2015.”
Friday, July 29, 2016
The Michigan Attorney Discipline Board Hearing Panel has disbarred an attorney.
Fox 17 West Michigan had a report on the nature of his practice.
A commercial property owner in Grand Rapids said attorney Matthew Herman vandalized and stole property from his building. Landlord Eric Butler said his contractor estimates $93,000 in damages and stolen property.
Herman, who has also been accused of ripping off his legal clients, ran a medical marijuana business inside Butler's property on Butterworth in Grand Rapids. Butler said Herman sublet space to pot growers.
"They were throwing numbers around, Matt was, that he was drawing $4,000 to $6,000 per pod, per month. That's a huge cash flow," Butler told FOX 17.
However, the landlord said Herman failed to keep up on rent and utilities. Butler said he learned through the city that Herman cut corners on doing upgrades.
"I started getting letters from the building code inspectors, and oh my God," Butler said.
The Problem Solvers retrieved court records showing Herman is also being sued by a company that owns a property in Portage. The suit states Herman owes more than $200,000 in unpaid rent, late fees and improvements.
The same source had this report that the attorney borrowed his marketing slogan from "Better Call Saul."
This story quotes the attorney as turning the warehouse into the "Fort Knox for Pot." (Mike Frisch)
The District of Columbia Court of Appeals has imposed a reciprocal 30 month suspension of an attorney based on discipline imposed by the Louisiana Supreme Court.
WAFB9 had the background
Baton Rouge police report the second man wanted in connection with the alleged rape of a 22-year-old man surrendered to them late Thursday night.
Samuel J. Moore, 25, was booked into the East Baton Rouge Parish Prison after turning himself in around 10 p.m. He was charged with aggravated rape. The alleged crime happened early Monday morning.
According to police, the victim was invited to the home of attorney James Michael Cutshaw, 59, on Sassy Lane by Moore. Sometime after arriving, the victim said he was given a drink, which he believes contained an incapacitating drug. The victim said he soon passed out and drifted in and out of consciousness.
The victim said he awoke several times to find his clothes had been removed. He had been placed into a sexual sling apparatus, bound, gagged and raped. Police report the victim eventually regained full consciousness and was able to gather his clothes and leave.
"The victim's story was graphic and disturbing. It was something that needed to be backed up with physical evidence," said Don Kelly with the Baton Rouge Police Department. "Many parts of the evening came fuzzy to him and he didn't really know the sequence of what happened."
Kelly said during a raid of Cutshaw's home, detectives found quite a bit of evidence inside to corroborate the victim's story. Among the evidence collected was what police believe are drugs. Reportedly, the evidence was sent to a lab for testing.
Cutshaw was arrested at his home Wednesday. He was booked into the East Baton Rouge Parish Prison on an aggravated rape charge. John Delgado, Cutshaw's attorney, issued a statement late Thursday.
"Mr. Cutshaw denies these spurious allegations and looks forward to clearing his good name at trial," Delgado said. "We are confident he will be fully exonerated."
"I don't want to believe that he would do something like that," said Danielle Clark, Moore's sister. "You just really never know. In my heart, I don't believe he did it."
Cutshaw practices law out of his home. In 1987, Cutshaw ran against Fox McKeithen for Louisiana Secretary of State and almost won the election, gaining 49% of the vote. He is a member of the choir at his church and has earned numerous honors through the years. He's published in the 2010 edition of "Best Lawyers in America." He also serves on various boards.
The Louisiana Supreme Court had imposed discipline by consent.
He must demonstrate his fitness to secure reinstatement in D.C. (Mike Frisch)
Correction: I erroneously reported that the subject of this order was a Florida attorney. I am advised that she is not licensed to practice law.
A Florida resident engaged in unauthorized practice in Ohio and has been fined and enjoined for the misconduct by the Ohio Supreme Court.
The three-count complaint alleged that Catalfina, who is not licensed to practice law in Ohio, engaged in the unauthorized practice of law by holding herself out to three individuals as an Ohio attorney. Catalfina initially sought and was granted leave to retain counsel and file an answer. However, to date she has not filed an answer or retained counsel. Following numerous attempts to engage Catalfina, relator filed a motion for default judgment on July 1, 2014, but Catalfina again failed to respond...
Catalfina has never been licensed to practice law in Ohio. We have previously held that “one who purports to negotiate legal claims on behalf of another and advises persons of their legal rights * * * engages in the practice of law.” Cleveland Bar Assn. v. Henley, 95 Ohio St.3d 91, 92, 766 N.E.2d 130 (2002). Also, representing that one is authorized to practice law in Ohio without such authorization, by directly or indirectly creating the misimpression of that authority through manipulation of credentials and strategic silence, constitutes the unauthorized practice of law. Casey at ¶ 11, citing Cleveland Bar Assn. v. Misch, 82 Ohio St.3d 256, 261, 695 N.E.2d 244 (1998). Thus, by purporting to negotiate Social Security disability claims on behalf of Lisa Kellett, accepting money to do so, and holding herself out as an attorney to Kellett, Catalfina engaged in the unauthorized practice of law. And by holding herself out as an attorney to Jason Gall, indicating that she would represent him in his divorce and collecting $150 from him purportedly for filing fees, Catalfina engaged in the unauthorized practice of law.
Kelly Catalfina is enjoined from engaging in the unauthorized practice of law, including performing legal services or directly or indirectly holding herself out to be authorized to perform legal services in the state of Ohio. We also impose a civil penalty against Catalfina in the amount of $6,000—$3,000 for each of the Kellett and Gall matters. Costs are taxed to Catalfina.
Thursday, July 28, 2016
A former New York lawmaker has been disbarred by the New York Appellate Division for the Second Judicial Department.
We conclude that the respondent's convictions of extortion under color of official right constitute felonies within the meaning of Judiciary Law § 90(4)(e) (see Matter of Margiotta, 60 NY2d 147). As such, upon his conviction of that crime, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).
USA Today had a story on the criminal case
Former New York Senate majority leader Dean Skelos and his son were sentenced to years in prison and hundreds of thousands in forfeitures Thursday for their convictions on federal corruption charges that further documented entrenched dysfunction in the state's political culture.
U.S. District Court Judge Kimba Wood ordered Skelos, 68, a Republican from suburban Long Island, to spend 5 years behind bars, pay $500,000 in fines and more than $300,000 in forfeitures for using his post to pressure companies with interests before the state government to give financial aid to his 33-year-old son.
Adam Skelos, who got a no-show job, $300,000 in consulting work and a $20,000 direct payment at his father's command, drew a 6-year, 6-month prison term and was ordered to pay forfeitures jointly with his father for his conviction in the criminal scheme.
"You sent a message that you, one of the three most powerful officials in New York state, were in some measure corrupt, and you used your official position for personal gain," Wood lectured the disgraced lawmaker. All New Yorkers were victimized by the crimes of bribery, extortion and conspiracy she said.
A criminal tax conviction for failure to pay state income tax over an extended period warrants a two-year suspension from practice, according to a decision of the New York Appellate Division for the Second Judicial Department.
The respondent asks that this matter be referred back to the Grievance Committee for issuance of a private reprimand, or, in the alternative, for the imposition of a public censure, in view of the following mitigating factors: (1) the respondent's personal and financial problems suffered during the relevant period (loss of $400,000 annual salary after having amassed significant debt, and before he could build up a new practice); (2) the aberrational nature of the misconduct; (3) his acceptance of full responsibility for his misconduct and full cooperation with the investigation; (4) his payment of full restitution; (5) his sincere remorse; (6) the lack of any harm to any client; (7) the respondent's pro bono and charitable activities in the community; (8) the respondent's general reputation in the community as an ethical and honest attorney; and (9) his unblemished disciplinary record. According to the respondent, his failure to file "resulted from an actual inability to pay and was not motivated by dishonesty or a desire to accumulate wealth."
Notwithstanding the aforementioned mitigating factors advanced by the respondent, we find that a suspension from the practice of law is warranted in view of the pattern of avoidance engaged in by the respondent and the protracted period of 10 years during which he did not file state personal tax returns (see Matter of Gamliel, 122 AD3d 125; Matter of Burns, 242 AD2d 49; Matter of Barnes, 241 AD2d 13). While the respondent did suffer a sudden reversal of fortune when he lost his partnership position at a law firm, the respondent attempted to maintain his lifestyle, including running a horse farm, which not only was not profitable, but required him to use personal income to help cover the expenses required to keep the farm running. The respondent made a calculated decision to pay his federal taxes, but not his state taxes, based on his stated belief that the Internal Revenue Service was the more aggressive tax entity. Although the respondent claimed that he was putting aside savings to pay his overdue taxes, and, indeed, had saved enough money, the respondent continued his pattern of avoidance until he learned that he was under investigation by the taxing authorities.
The East Hampton Star had a story on the charges. (Mike Frisch)
The District of Columbia Court of Appeals rejected an attack on its rule compelling arbitration of attorney-client fee disputes.
It is well established that this court has statutory and inherent authority to regulate all aspects of the District of Columbia Bar. See Sitcov, supra, 885 A.2d at 295, 297. [Attorney] Ms. Stuart attempts to challenge this court’s inherent authority to regulate the Bar by highlighting D.C. Code § 11-1322 of the Court Reform Act — a section that discusses arbitration, but is unrelated to the subject of managing the District of Columbia Bar. However, what is more relevant to this court’s power to promulgate Rule XIII, is the language in the Court Reform Act that gives this court the express authority to “make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion.” D.C. Code § 11-2501 (a) (2012 Repl.) (emphasis added); see also D.C. Code § 11-2502 (2012 Repl.).
The reasonableness of an attorney’s fee is a disciplinary matter subject to censure, suspension, and expulsion, and thus a matter to be regulated by this court. See, e.g., In re Martin, 67 A.3d 1032, 1035 (D.C. 2013) (issuing an eighteen month suspension for, inter alia, charging a grossly unreasonable fee); see also D.C. R. Prof. Cond. 1.5 (a) (“A lawyer’s fee shall be reasonable”). It follows that the method of disputing attorney’s fees is also subject to regulation by this court given that a dispute over attorney’s fees may lead to censure, suspension, or expulsion should an attorney’s fee be deemed unreasonable...
Moreover, “clients are at a significant disadvantage in litigating” attorneyclient fee disputes, and Rule XIII “protects their ability to present meritorious claims and defenses, and . . . thereby fosters public confidence in the bar.” BiotechPharma, supra, 98 A.3d at 997. Accordingly, the language “make such rules as it deems proper” in the Court Reform Act establishes the inherent authority to regulate attorney-client fee agreements, and this court created Rule XIII because it deemed it proper to mandate arbitration in order to ensure a fair process for resolving disputes over attorney’s fees.
The mandatory arbitration provision is Constitutional
Ms. Stuart argues that by preventing lawyers from accessing the judicial system for fee disputes, Rule XIII denies them the First Amendment right of “access to the courts” and equal protection under the Constitution. However, lawyers are not a protected class under the Constitution, and as we stated in BiotechPharma, it is a privilege, not a right, to practice law and that privilege must be regulated for the protection of clients. Id. at 997. This critical goal would be defeated if arbitration of fee disputes was voluntary for attorneys, as Ms. Stuart argues it should be. Our holding, with respect to Ms. Stuart’s First Amendment equal access to the courts argument, is consistent with the court’s holding in BiotechPharma that Rule XIII does not violate an attorney’s Seventh Amendment right to a jury trial for fee disputes with clients. Id. at 995.
The order denying the attorney's motion to vacate the arbitration award was affirmed. (Mike Frisch)