Wednesday, September 23, 2015

We Listen And We Care But We Can't Say We Win

An advisory  opinion from the Connecticut Statewide Grievance Committee concludes that a proposed logo violates advertising rules

The logo depicts a multi-point star enclosed in a circle. Underneath is the first listed partner name of the law firm followed by word "law." The proposed phrase is "we listen. we care. we win." Since this phrase will be used in various forms of undetermined future advertising material, the proposed phrase on its own does not contain the name of an attorney admitted in Connecticut responsible for its content as required by Rule 7 .2( d) of the Rules of Professional Conduct. This opinion assumes that the proposed phrase, when placed in the context of actual advertising material, will comply with that requirement when disseminated.

The problem

The proposed advertisement violates Rule 7 .1 of the Rules of Professional Conduct because the reference to the firm winning is likely to create an unjustified expectation as to success. Rule 7.1 prohibits communications that are false or misleading. It is misleading for a lawyer to make claims in an advertisement that cannot be substantiated. Id. In some instances, an appropriate disclaimer given equal weight could correct a statement that is likely to create unjustified expectations or otherwise mislead a consumer. Id.

 By stating, "we win" the firm is creating unjustified expectations for prospective clients. The firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits. The statement is misleading. The firm could correct this misleading statement by including a disclaimer, explaining that results are based on the merits ofthe case and that success in the past does not guarantee success in the future.

(Mike Frisch)

September 23, 2015 in Bar Discipline & Process, Current Affairs, Ethics | Permalink | Comments (0)

"Neither Accurate Nor Helpful"

The Maine Supreme Judicial Court denied reconsideration of the dismissal of an appeal in a probate matter due to the attorney's deficient briefs.

A pro se appellee had objected to the initial brief because "it contained myriad substantial errors."

The attorney admitted the errors but replied in part

However inartfully presented, counsel submits that the issues presented in this appeal are very important substantive issues for the future of the probate law and that the Arguments presented are persuasive.

Justice demands form should not be elevated over substance.

The court permitted the attorney two weeks to file a new brief.

Once again the pro se appellee "then filed a motion requesting that we reject the amended brief, which still contained numerous errors, including erroneous record citations."

The attorney 's response in part

Counsel is, however, a one man office without benefit of any secretary or any clerk, or law student, who like many sole practitioners scratches out a living during not the best economic times. Every expense is out of pocket.

The court

As he admits, Attorney Robinson’s amended brief still contains errors he was ordered to resolve in the July 30, 2015, order. Instead of accepting the opportunity to correct the errors that even he acknowledged, he used the time to chart a different path of analysis for the appeal. He again provided the Court and the appellee with a document replete with so many errors that no reader is able to evaluate the assertions on appeal.

"Limited resources" do not excuse

Although we are sympathetic, we cannot overlook two facts: first, he failed to comply with our order of July 30, 2015, and second, the document he filed in response to that order requires any reader—be it members of this Court or the appellee—to refer to an eight-page errata sheet in order to even attempt to assess the accuracy, persuasiveness, or merits of his arguments. Moreover, this errata sheet was not even filed until after [appelle] Gero filed a second motion to strike pointing out the errors in his replacement brief...

Robinson’s references to sole practitioners in the Maine Bar as individuals who cannot be expected to comply with the Rules of Procedure does Maine lawyers a serious disservice. Every day, Maine lawyers, in sole practices, small practices, and other firms, work diligently and successfully to comply with the Rules.

Substance counts, but so does form

Robinson’s assertion that the dismissal places form over substance is simply wrong. A failure to comply with the Maine Rules of Appellate Procedure in fact compromises both the appellee’s ability to defend against the appeal and our ability to decide it.

Time to dismiss the appeal

Ultimately, despite being afforded the opportunity to correct his initial brief, and despite a full two-week timeframe to do so, Robinson failed to comply with a direct order from this Court, and the result of his work is a document that is neither accurate nor helpful.

The attorney who initially represented the client (replaced by the attorney taken to task here) was reported to be the subject of a bar complaint in the matter by the Portland Press-Herald. The complainant is the appellee.

He was reinstated after his disbarment for a federal drug conviction.

The conviction also led to his disbarment in the District of Columbia. I handled that case. (Mike Frisch) 

September 23, 2015 in The Practice | Permalink | Comments (0)

Tuesday, September 22, 2015

No Eagle Scout

From the Idaho State Bar

On September 17, 2015, the Idaho Supreme Court entered an Order accepting the resignation in lieu of discipline of Eagle attorney, John T. Bujak.  The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to the following conduct.

 During his tenure as the Canyon County Prosecutor in 2009-2010, by agreement of Canyon County and Nampa, funds for prosecutorial services for Nampa were received and deposited in Mr. Bujak’s trust account, with an expected reimbursement from the trust account to Canyon County at the end of each fiscal year.  Mr. Bujak removed funds from his trust account for personal use.  At the conclusion of fiscal year 2010, there were insufficient trust account funds to reimburse Canyon County for expenses related to the Nampa prosecutorial services.  Mr. Bujak admitted that these circumstances violated I.R.P.C. 1.4(b) [Communication with Client], 1.7(a)(2) [Conflict of Interest: Current Clients], and 1.15(a), (b), (c) and (e) (effective 2009-2010) [Safekeeping Property].

In addition, during the criminal prosecution of Respondent on a felony charge of preparing false evidence and a computer crime, Respondent admitted one count of contempt for willfully failing to disclose expert materials pursuant to I.C.R. 16 by the deadline ordered by the court.  Mr. Bujak admitted that these circumstances violated I.R.P.C. 3.3(a) [Candor Toward the Tribunal], 3.4(c) (d) [Fairness to Opposing Party and Counsel], and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].

A report from Idaho Statesman

John Bujak’s resignation last week from the Idaho State Bar ending the legal career, at least temporarily, of one of Idaho’s most controversial lawyers.

Bujak, 46, who survived four felony jury trials and a federal bankruptcy court trial without a guilty verdict, said he decided to give up his law license rather than continue to fight efforts to disbar him. Idaho State Bar Counsel Bradley Andrews filed a complaint against Bujak July 9, seeking disbarment and unspecified restitution.

More information at this link from Boise Weekly that links to reports of the Press-Tribune.  (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Disloyal Lawyer May Have To Disgorge

The New Jersey Supreme Court has held that disgorgement may be appropriate as a remedy against an attorney employee who engaged in egregious acts of disloyalty.

From the court's syllabus

Plaintiff Bruce Kaye, the controlling principal of three entities that sell and manage timeshare interests in resort properties in Atlantic County, hired defendant Alan P. Rosefielde, an attorney admitted to practice law in New York but not in New Jersey, initially as outside counsel, and then as an employee. After defendant had worked closely with plaintiff for approximately four months, the parties entered an agreement providing that, as compensation for his services, defendant would earn an annual salary of $500,000. For approximately two years, defendant served as Chief Operating Officer for several of the timeshare entities, and effectively functioned as their general counsel. In that capacity, defendant committed serious misconduct by acting on his own behalf instead of for his employers’ benefit, and exposing his employers to potential liability. Based on this misconduct, and dissatisfaction with defendant’s performance, plaintiff terminated defendant’s employment.

Plaintiff Kaye and the companies that employed defendant commenced suit against defendant, asserting claims for breach of fiduciary duty, fraud, legal malpractice, unlicensed practice of law, and breach of the duty of loyalty. In addition to claiming compensatory and punitive damages for the alleged disloyalty, plaintiffs sought rescission of the parties’ agreements and disgorgement of monies received by defendant or his company. Following a lengthy trial, the court found that defendant engaged in egregious conduct, including self-dealing, fraudulent acquisition of an ownership interest in one of the entities, and conspiracy to forge deeds to various properties, which the court held to constitute a breach of his duty of loyalty, breach of fiduciary duty, legal malpractice, and civil fraud. The trial court rescinded defendant’s interest in several entities, and awarded compensatory damages, punitive damages and legal fees. Although the trial court stated that it is difficult to imagine the commission of more egregious conduct by a corporate officer, it declined to order the equitable disgorgement of defendant’s salary as a remedy for breach of the duty of loyalty, because the breach did not result in any actual damage to the plaintiff entities, which it believed was required by Cameco, Inc. v. Gedicke, 157 N.J. 504 (1999).


One of the equitable remedies available for a breach of the duty of loyalty is the disgorgement of the disloyal employee’s past compensation. The remedy of disgorgement is derived from principles of contract law that recognize that if the employee breaches the duty of loyalty at the heart of the employment relationship, he or she may be compelled to forego the compensation earned during the period of disloyalty. The disgorgement remedy is consonant with the purpose of a breach of the duty of loyalty claim because, when an employee abuses his or her position and breaches the duty of loyalty, the employee fails to meet the employer’s expectation of loyalty in the performance of the job duties for which he or she is paid. Disgorgement may also have a valuable deterrent effect providing notice that adverse consequences will follow a breach of the duty of loyalty...

The trial court should consider the following factors in deciding whether disgorgement is an appropriate remedy: the employee’s degree of responsibility and level of compensation, the number of acts of disloyalty, the extent to which those acts placed the employer’s business in jeopardy, and the degree of planning to undermine the employer that is undertaken by the employee. Where appropriate, a trial court should apportion the employee’s compensation, rather than ordering a wholesale disgorgement that may be disproportionate to the misconduct at issue.

The court cites to a number of acts of misconduct including

in March 2004, Rosefielde billed Flagship $4000 for expenses incurred during a trip to Las Vegas that was not business-related. During that trip, Rosefielde stayed in a hotel suite with three women who, according to other employees who were also on the trip, were adult film stars.

Earlier coverage from Law360. (Mike Frisch)

September 22, 2015 | Permalink | Comments (0)

Clerk's Cousin As Witness Does Not Disqualify Magistrate

From the South Carolina Advisory Committee on Standards of Judicial Conduct

OPINION NO. 3-2015

RE:      Propriety of a full-time magistrate presiding over a case in which the Sheriff’s Deputy acting as the prosecuting officer is also the cousin of magistrate’s criminal clerk.


The criminal clerk of a full-time magistrate is the cousin of a Sheriff’s Deputy.  The Deputy sometimes appears as the prosecuting officer in Magistrate’s Court.  On several occasions, the inquiring magistrate has met the Deputy, when the Deputy came by the magistrate’s office in his official capacity.   The magistrate inquires as to whether disqualification or any disclosures are required when the Deputy appears as prosecuting officer before the magistrate.


A full-time magistrate is not disqualified from presiding over cases in which the prosecuting officer is the cousin of the magistrate’s clerk. 


Canon 3E(1) states that a "judge shall disqualify himself or herself in a proceeding where his/her impartiality might reasonably be questioned."   Canon 3E includes certain instances where a judge’s impartiality, including (but not limited to) where the judge has a personal bias against a party or attorney; where the judge served as a lawyer in the controversy; where the judge, judge’s spouse, or other family member in the judge’s household has an economic interest that could be affected by the proceeding; and/or where the judge’s spouse or family member within three degrees of relationship appears as a party or attorney to a proceeding.1  In Op. No. 10-2004, this Committee considered whether a circuit court judge must recuse himself or herself if the judge’s first cousin appeared as either an attorney or a material witness in a case.  We determined that since a cousin was not within the "third degree of relationship," disqualification was not required (although we did advise the judge to disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the disqualification, and provide the parties the opportunity to object).

In this situation, the Deputy is not related to the magistrate at all, and is only a cousin to the magistrate’s clerk.  Furthermore, from the facts presented, the magistrate does not appear to have a personal friendship to the Deputy that would create the appearance that the magistrate’s impartiality had been affected.  (In contrast, see. Op. No. 17-2002, in which this Committee determined that a municipal judge should disqualify himself in a proceeding in which his girlfriend, a police officer, appeared).  Thus, the magistrate is not required to disqualify himself or herself or make any disclosures when the Deputy appears before the magistrate as the prosecuting officer.

 (Mike Frisch)

September 22, 2015 in Judicial Ethics and the Courts | Permalink | Comments (0)

Ohio Education On Linkage Between Addiction And Bar Discipline

Disciplinary prosecutors have long been aware of the correlation between alcohol and drug issues and problems with bar discipline.

Ohio has for some time required education about this issue for both applicants for admission and as part of an admitted attorney's continuing legal education. 

A recent video posted on the Supreme Court's web page tells the story of a judge whose drinking led to such problems and may be useful as an educational tool. (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

IOLTA Account Violations Leads To Suspension

An attorney who used his IOLTA account for personal expenses over an extended period of time consented to a three-year suspension by the Pennsylvania Supreme Court

From the report of the Disciplinary Board

Respondent, while knowing it was wrong to do, paid for hundreds of personal expenses out of his IOLTA, using it as a personal account for approximately one year and nine months. Respondent made an untimely distribution of settlement funds to a client. He caused many overdrafts in his IOLTA, and deposited his own money into his IOLTA to make his clients, including a minor, whole. Respondent did not have permission to use his client's funds. By doing this he commingled his own funds with client funds and misappropriated client funds, even if the misappropriation was in small amounts and only for a short time. Respondent has no prior history of discipline; expressed remorse; and admitted his wrongdoing, as evidenced by his agreement to enter into a joint petition for discipline on consent.

(Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Not A Scintilla

An attorney admitted to practice in 2007 has been disbarred by the Pennsylvania Supreme Court.

The report of the Disciplinary Board notes that the initial misconduct was relatively minor and involved his failure to appear to receive an informal admonition.

However, he failed to participate in the ensuing proceedings and thus displayed his indifference t o his responsibilities.

Had he shown a "scintilla of interest" in retaining his license by responding to the charges, disbarment would likely not have been proposed and imposed. (Mike Frisch)

September 22, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Monday, September 21, 2015

Bad Son And Brother

A recent Hearing Board report and recommendation from Illinois

Respondent acted as trustee of a trust his mother  established, to provide for her care during her lifetime and for distribution of  any remaining trust assets equally between Respondent and his siblings after her  death. Over a five-year period, which began while his mother was alive and  continued after she died, Respondent took more than $360,000 from the trust,  without authority. Respondent had not repaid any of this money, even though two  of his siblings filed a lawsuit, to which Respondent initially did not respond,  and obtained a judgment against Respondent.

In the other matter, Respondent allegedly failed to  properly communicate with a client he represented in a civil lawsuit and pursue  that case after trial. In his response to the ARDC's initial inquiry into that  matter and in his sworn statement to the ARDC, Respondent made false statements.

The Hearing Board found Respondent acted  dishonestly in taking the funds from the trust, conduct which warranted  professional discipline. In relation to the lawsuit against Respondent, the  Hearing Board found the Administrator did not prove misconduct, as the evidence  did not show Respondent's behavior actually prejudiced the administration of  justice and Respondent was acting solely as a party to the lawsuit.

The client Respondent represented in the civil  lawsuit did not testify. Consequently, the Hearing Board did not find sufficient  evidence to support any findings of misconduct as to that matter. The Hearing  Board found, however, that Respondent's statements to the ARDC about that case  were false and Respondent knew they were false.

The Hearing Board recommended that Respondent be  suspended for two years and until he satisfied the judgment against him in the  civil case brought by his siblings.

The board rejected a sanction imposed of suspension until further court order

From our perspective, the evidence presented as to  Respondent's mental health condition did not warrant a suspension until further  order. The personal losses Respondent experienced, while significant, occurred  in 2010 to 2011. No mental health symptoms were reported before fall 2010. By  that time, Respondent had been misappropriating funds from the Moran trust for  well over three years. The evidence did not indicate any genuine causal  relationship between Respondent's mental health condition and his misconduct;  the evidence of any link at all was inconclusive, at best. Further, the evidence did  not provide real grounds on which to believe Respondent's mental functioning was  currently impaired. From Dr. Henry's observations, Respondent's memory and  abstract reasoning were intact. Respondent reported he had returned to normal  functioning by 2012 or 2013, after receiving treatment.

We recommend Respondent's suspension also continue  until he makes restitution.

(Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Admonition For Supreme Threat

A recent admonition from Massachusetts



Knowingly Advancing Frivolous Claim or Defense [Mass. R. Prof. C. 3.1]

Improper Threat or Presentation of Criminal or Disciplinary Charges [Mass. R. Prof.

C. 3.4(h)]


On September 16, 2013, a New Jersey lawyer filed a civil suit in New Jersey Superior Court on behalf of her corporate client (Company A). The lawsuit alleged that the defendants, a corporate entity and an individual doing business as Company B, had failed to pay Company A for services rendered. The respondent represented the interests of an investor and managing member of Company B as its outside general counsel.

In October 2013, the respondent contacted the lawyer for Company A in an attempt to resolve the civil dispute. The parties were unable to resolve the matter. On or about January 27, 2014, the New Jersey court entered a default judgment against the defendants in the civil lawsuit. The defendants did not contest the entry of the default judgment or move to vacate the default judgment or reopen the matter.

On September 2, 2014, the respondent sent an email to the plaintiff’s lawyer, in which he threatened to file a motion with the Supreme Court of the United States of America seeking her disbarment unless she removed the default judgment. The respondent stated that if he was forced to file any motions in the case, he would seek her disbarment and significant attorneys’ fees and costs. After the lawyer responded to the respondent’s initial email, he sent her a second email on September 2, 2014, again threatening to petition the Supreme Court of the United States of America for her disbarment unless she dismissed the civil action and removed the judgment secured in that case. The respondent set a deadline of 6:00 p.m. on the following Friday for her to remove the judgment, or he would seek her disbarment. Therespondent further stated, “Should you have any questions, please retain the service of a competent Supreme Court of the United States of America practitioner.” Mass. R. Prof. C. 3.4(h) prohibits a lawyer from presenting, participating in presenting, or threatening to present criminal or disciplinary charges solely to obtain an advantage in a private civil matter. To the extent that the defendants had a valid defense to the New Jersey civil action, the appropriate remedy would have been for the defendants to move to vacate or remove the default judgment and seek to present their defense. In addition, the respondent had no non-frivolous basis for filing a petition seeking the disbarment of the New Jersey lawyer with the Supreme Court of the United States. In these circumstances, the respondent’s conduct violated Mass. R. Prof. C. 3.1 (prohibiting lawyers from asserting frivolous claims) and 3.4(h) (threatening to file disciplinary charges solely to gain an advantage in a private civil matter).

The respondent, who was admitted to practice in 1989 and had no prior discipline, received an admonition for his conduct on the condition that he attend a continuing legal education class identified by bar counsel.

(Mike Frisch) 

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Lien Times In Florida

From sunEthics (the premier Florida ethics blog)

In 2012 the Supreme Court rejected a proposal from the Bar that would have allowed a personal injury lawyer handling a case that required “extraordinary subrogation or lien resolution services” to refer that matter to someone outside the lawyer's law firm for these services, with that person or entity charging the client a separate fee (with the referring lawyer not sharing in that fee).  The Court made it clear that it disagreed with the underlying premise.  “After considering the concerns raised in the comment and the discussion at oral argument, we decline to adopt new subdivision (f)(4)(E).  Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.”  In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report), 101 So.3d 807 (Fla. 2012).

          The Bar reworked the lien resolution services proposal and submitted the revised version to the Court in in October 2014.  After oral argument in May 2015, the Bar petitioned the Court for a stay to allow the Bar to submit a third proposal on the subject.

          On September 17, 2015, the Court granted the Bar’s motion for stay, stating that the Bar “is directed to file a new petition with its alternative proposal on or before January 15, 2016.”   In re: Amendments to Rule Regulating The Florida Bar 4-1.5 – Fees and Costs for Legal Services, __ So.3d __ (Fla., No. SC14-2112, 9/17/2015).

(Mike Frisch)

September 21, 2015 | Permalink | Comments (0)

Convicted in Illinois And Reinstated In Wisconsin

The Wisconsin Supreme Court has reinstated an attorney who consented to license revocation in the wake of a federal wire fraud aiding and abetting conviction

Attorney Hurtgen's petition for consensual license revocation stated that he could not successfully defend against pending charges of professional misconduct relating to a conviction, entered following a guilty plea entered in the Federal District Court for the Northern District of Illinois, to one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2, in connection with a long-running federal investigation of corruption in the administration of former Illinois Governor Rod Blagojevich.

The favorable evidence

 The referee noted that letters supporting Attorney Hurtgen's petition were filed by numerous persons, including former Wisconsin Governor James E. Doyle, that each writer spoke very highly of Attorney Hurtgen, and that several mentioned their belief that Attorney Hurtgen never acted inappropriately. The referee noted that Attorney Hurtgen currently serves as a managing partner of a private investment company and as an operating director of a Chicago-based investment and merchant bank. At this time, he does not intend to use his law license, if reinstated, to practice as an attorney but instead will use the license in his own business affairs.

Huffpost Chicago reported on the guilty plea. (Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Disbarred After 59 Years; Reinstatement Denied

The Maryland Court of Appeals denied reinstatement to an attorney disbarred in 2007

Common sense also demonstrates the impropriety of Respondent's action.   In the process of crafting a clever argument to prove that no conflict existed because the confidential information lost its confidential value, Respondent loses sight of a fundamental test by which these questions ought to be resolved.   The Comment to MRPC 1.9 reads, in relevant part:  “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”   We are of the opinion that when Respondent filed a suit sounding in contract against a former client, an entity he created, over a business transaction he helped construct by creating the relevant documents now central to the contract suit, he effectively changed sides. 

The fact that Respondent joined the side of his former client's former business partner (who he also represented in the disputed transaction) bodes worse, not better, for Respondent.   Were we to accept Respondent's position on this question, we would be approving precisely the type of betrayal of confidence and fiduciary duty the Maryland Rules of Professional Conduct are designed to protect.   See Hughes v. McDaniel, 202 Md. 626, 633, 98 A.2d 1, 4 (1953) (“[T]he confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client's necessities, credulity and liberality.”).   It does not take too vivid an imagination to perceive a situation where an attorney represents two parties who become embroiled in a controversy over a business transaction with one another.   Under Respondent's view of what constitutes a conflict of interest, the attorney would be permitted to choose to represent the party he or she, in his or her professional judgment, stood the best chance of prevailing.   This type of fair-weather loyalty and former client poaching is forbidden;  an attorney may not abandon the duty not to harm a former client when circumstances make it expedient and/or self-serving to do so.   As the Comment to MRPC 1.9 says, in pertinent part:  “Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client.”

The court agreed that the conflict had not been waived and that the petitioner had acted dishonestly

The hearing judge found no mitigating circumstances.   With 59 years experience as a member of the Maryland Bar, Respondent should have appreciated the extent

(Mike Frisch)

September 21, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Friday, September 18, 2015

Hair Unapparent

The Louisiana Supreme Court has disbarred an attorney for misconduct in several matters.

One notable episode of client counseling

Attorney Jonathan Johnson represented the father in a child custody matter in which respondent represented the mother of the minor child. On April 12, 2012, Mr. Johnson notified respondent that he would be filing an emergency custody petition on behalf of his client based on allegations that respondent’s client was abusing illegal drugs. That afternoon, respondent went to a health store and purchased a product called Ultra Clean, a shampoo advertised as purifying buildup of medication from the hair and commonly used in attempts to avoid a positive hair follicle drug test. After purchasing the shampoo, respondent visited his client at her home.

The following day, Mr. Johnson presented the emergency custody petition, and the presiding judge conducted a pre-trial conference in chambers. During the pre-trial conference, respondent adamantly denied that his client was taking illegal drugs. The judge ordered respondent’s client to submit to drug screening, including cuticle and hair follicle testing. The hair follicle test was negative, but the cuticle test was presumed positive for marijuana, amphetamines, and methamphetamines.


On March 11, 2013, respondent pleaded guilty to one count of theft of utility service and one count of theft. He was fined $500 and sentenced to serve one hundred eighty days in jail on each count. The court suspended the sentences and placed respondent on supervised probation for one year.

The court

By his knowing and intentional misconduct, respondent has demonstrated a lack of concern for the welfare of his clients, third persons, the administration of justice, and the viability of his law license. After further considering the aggravating factors present in this case – in particular respondent’s selfish motive and his indifference to making restitution to his clients – the sanction of disbarment is fully supported.

(Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Virginia Suspends Non-Virginia Attorney

A New York attorney not admitted to practice in Virginia has been sanctioned for misconduct relation to her immigration law practice by the Virginia State Bar Disciplinary Board

Respondent practiced immigration law in the Commonwealth of Virginia. Specifically, Respondent practiced in or was associated with law offices located in Fredericksburg and Arlington County, Virginia. In October of 2011, Respondent opened her own law office in Falls Church, Virginia. From October of 2011 to March of 2012, Respondent represented a client in an immigration matter in Virginia.

She had failed to comply with the terms of a reprimand and did not respond in the bar case predicated on the non-compliance

The Chair opened the hearing by calling the case in the hearing room and causing the Assistant Clerk to call Respondent’s name three times in the adjacent hall. The Respondent did not answer or appear.

Result: six month suspension in a jurisdiction where the attorney never was admitted. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (2)

Former City Attorney Suspended

The Vermont Supreme Court has ordered the interim suspension of an attorney convicted of felony hit-and-run.

Details from the Rutland Herald

Former city attorney Christopher Sullivan will serve at least four years behind bars in the hit-and-run death of Mary Jane Outslay.

Sullivan, 55, of Rutland, was sentenced this afternoon in Rutland criminal court. A jury convicted Sullivan in March of driving under the influence with death resulting and leaving the scene of an accident with death resulting.

Judge Theresa DiMauro sentenced Sullivan to four to 10 years in prison on each charge, with the sentences to be served concurrently.

And from Vermont Today  in July 2013

New filings in the hit-and-run case against former Rutland City official Christopher Sullivan show that prosecutors conducted secret inquest hearings before charges were brought.

Three weeks passed between the April 10 crash that killed 71-year-old Jane Outslay and the arrest of the attorney who pleaded innocent to felony counts of leaving the scene of a fatal crash and driving under the influence with death resulting.

Investigators and prosecutors with the Vermont attorney general’s office have been mostly close-mouthed about the reason for the delay in charging Sullivan, 53, who came to the city police department the day after the fatal crash to identify himself as the driver. 

The lengthy investigation outraged some in the community who believed Sullivan was receiving special treatment. But investigators said the delays were due to a thorough investigation that included numerous interviews and the analysis of autopsy and crash reconstruction evidence.

In a motion filed in Rutland criminal court this month, an attorney representing an insurance company providing coverage to Sullivan indicated that prosecutors also conducted inquest hearings: closed-door court proceedings in which a witness answers a prosecutor’s questions under oath and in the presence of a judge.

“The state proceeded with a criminal inquest,” Springfield attorney Brendan Donahue wrote in a motion filed with the court June 7, adding that Sullivan’s wife was compelled to testify along with other witnesses. “The state subsequently filed charges against Mr. Sullivan.”

The content of the inquest proceedings is unknown. Assistant Attorney General Cindy Maguire, who is handling the case, declined to comment this week, as did Donahue.

The revelation that inquests were conducted was contained in a motion from Donahue who is trying to block a subpoena from prosecutors trying to obtain an insurance claim filed by the Sullivans.

Donahue, who represents GEICO auto insurance, wrote that Sullivan’s wife reported an incident to the insurance company April 11 but no recorded statement was obtained.

The motion doesn’t indicate whether the damage to Sullivan’s 2004 Lexus sedan was reported before or after he told police he was the driver in the crash. The subpoena ordered by the attorney general’s office indicates that prosecutors don’t know the answer to that question, either, as the request seeks “the time the claim was reported, who reported the claim and any statements made by the policy holders.”

After the initial claim was filed, Donahue said GEICO was directed to conduct all further communications regarding the claim through Rutland attorney William O’Rourke.

O’Rourke couldn’t immediately be reached for comment Wednesday.

In his motion to quash the state’s subpoena, Donahue argues that the company shouldn’t be compelled to turn the claim over to prosecutors because the file is protected by a number of exemptions, including attorney-client privilege and insurer-insured privileges. He also asked that if the documents must be turned over that they be examined in a private hearing.

Donahue also argued that prosecutors didn’t need the insurance records because of the inquest hearing.

“The state cannot make any showing that it is in substantial need of the information it seeks or that it is unable to obtain the equivalent information without undue hardship,” Donahue wrote. “The state has the benefit of the police investigation as well as the inquest testimony it gathered from various witnesses, including Mrs. Sullivan.”

The attorney general’s office has not filed a response to the motion and no hearing date has been set to consider the request.

Prosecutors say Sullivan was impaired by alcohol when he struck and killed Outslay, of Mendon, who was crossing Strongs Avenue at about 5:10 p.m.

Investigators said the impact did considerable damage to the hood and windshield of Sullivan’s car — including a significant hole in the passenger side of the windshield — but Sullivan did not stop at the scene.

Instead, police say he drove to a parking lot in Rutland Town where he called his legal partner for advice before going home.

The court has set a trial ready date in Sullivan’s case for January 15.

Sullivan served in City Hall as the city attorney and assistant city attorney for 19 years until 2007.

The suspension will remain in effect while the circumstances are investigated. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Informal Admonition For Commingling: Attorney Left Earned Fee In Escrow Account For Six Weeks

The District of Columbia Office of Bar Counsel informally admonished an attorney who commingled funds by failing to remove an earned fee from her escrow account

Because you failed to promptly remove your earned fees from your IOLTA account, you commingled your funds with entrusted funds from two client matters for a six-week period of time. Such commingling violated the Rule, in that you failed to segregate your funds from those held in trust for clients and/or third persons.

We have determined that an informal admonition, rather than a more substantial sanction, is warranted under the circumstances of this case. Specifically, during the pertinent period of time, you properly placed client funds in trust rather than in your operating or personal account, which would have placed your clients' funds at risk. Here, there was no apparent risk to the clients and you made prompt disbursement to the clients and third party providers from the settlements. We also take into consideration that you do not regularly handle entrusted funds in the course of your practice and that you no longer manage the IOLT A account, but rather, have delegated that duty to the managing partner of your firm.

In deciding to issue this Informal Admonition rather than institute formal disciplinary charges against you, we have taken into consideration that you cooperated with our investigation, you have accepted responsibility for your actions, and you have no prior discipline although you have been practicing in this jurisdiction for 34 years. You also have agreed to take six hours of Continuing Legal Education (CLE) classes, pre-approved by this office, and on the subject of trust accounts. You agree to forward proof of attendance of the CLE classes within six months of the date of this Informal Admonition and you agree that if this proof of attendance is not submitted to Bar Counsel within six months of this Informal Admonition, then this Informal Admonition will be considered null and void and we will re-open this matter.

Access the informal admonition at this link by entering the name Patricia Barnes . (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (1)

"Strong" Censure Not Enough

The New Jersey Supreme Court approved a recommendation by its Disciplinary Review Board for a three-month suspension of an attorney.

From the board report

This matter was before us on a recommendation for a (strong) censure filed by the District VB Ethics Committee (DEC).... The Office of Attorney Ethics (OAE) urged the imposition of a one-year suspension. Respondent’s counsel, in turn, took the position that either a reprimand or a censure is appropriate. For the reasons expressed below, we determine to impose a three-month suspension.

The misconduct involved ethical violations in three real estate closings.

In one

Respondent stipulated that she had not properly collected or disbursed the closing funds, despite having certified that the HUD-I contained an accurate accounting of her disbursements for the transaction. For example, even though the HUD-I showed $212,874 in total proc,eeds to the sellers, respondent disbursed only $15,000 to the Grahams. Also, she wired $93,074.46 directly to Jorge Abbud, even though he was not listed on the HUD-I.

 Her counsel argued

In his summation, respondent’s counsel characterized respondent as not a venal person, but an "unwitting dupe," who trusted Abbud and the parties to the transactions. She thought that Abbud had the lenders’ authorization to direct her to act as she did.


Respondent agreed to represent three buyers in real estate transactions arranged by loan officer Jorge Abbud. In all three matters, which closed between April 2007 and March 2008, respondent served as the settlement agent and drafted the HUD-Is. Respondent gave the parties the use and occupancy agreements and other customary closing documents for their signature, including sellers’ and buyers’ affidavits of title. She prepared some of those documents, while others were prepared by the lender. Nevertheless, respondent witnessed the signing of various false affidavits and certifications for the closings. She also disbursed funds in a manner inconsistent with the HUD-Is in all of the transactions. Throughout the proceedings below, she admitted that to the extent that she disbursed to Abbud funds that did not appear at all on the HUD-Is and disbursed to the buyers and the seller’s funds in amounts that were at odds with the HUD-Is, she was guilty of conduct involving dishonesty, fraud, deceit, or misrepresentation, violations of RPC 8.4(c).

Respondent also admitted that RPC 1.5(b) required her to provide her buyer clients, whom she did not regularly represent, with a writing setting forth the rate or basis of her fee and that, by failing to do so, she violated that RPC. She denied, however, that she had violated that rule with regard to the sellers...

In furnishing affidavits of title or owner occupancy agreements to the buyers for their signatures and having them sign those documents with the above representations, respondent facilitated what is commonly known as occupancy fraud. That type of fraud takes place when, in order to obtain more favorable loan terms, the borrower (the buyer) misrepresents to the lender that the property will be owner-occupied. Lenders typically offer lower mortgage rates and higher loans for owner-occupied homes, because investment properties historically present a higher delinquency risk.

The board rejected conflicts allegations

That respondent represented both buyers and sellers in some aspects of these transactions is undisputed, however. But we cannot find a violation of RPC 1.7(a). Respondent testified that she had explained the conflict to all of the clients in the three transactions and had obtained written conflict waivers from them. Those waivers are both comprehensive and fully informative. There is no evidence to contradict respondent’s version of the events in this regard. Because the clients gave informed consent, confirmed in writing, after full disclosure, we determine to dismiss the RPC 1.7(a) charges in all three matters.

A strong censure was deemed an insufficient sanction. (Mike Frisch)

September 18, 2015 in Bar Discipline & Process | Permalink | Comments (0)

Hygienic Procedure Leads To Approval Of Class Action Settlement

The Delaware Chancery Court approved a class action settlement and discussed the role of class counsel

As a bench judge in a court of equity, much of what I do involves problems of, in a general sense, agency: insuring that those acting for the benefit of others perform with fidelity, rather than doing what comes naturally to men and women— pursuing their own interests, sometimes in ways that conflict with the interests of their principals. In this task, I am generally aided by advocates in an adversarial system, each representing the interest of his client. Of course, these counsel are themselves agents, but their actions are generally aligned with that of their principals in a way that does not require Court involvement. The area of class litigation involving the actions of fiduciaries stands apart from this general rule, however, especially in litigation like the instant case, involving the termination of ownership rights of corporate stockholders via merger. Such cases are particularly fraught with questions of agency: among others, the basic questions regarding the behavior of the fiduciaries that are the subject of the litigation; questions of metaagency involving the adequacy of the actions of the class representative—the plaintiff—on behalf of the class; and what might be termed meta-meta-agency questions involving the motivations of counsel for the class representative in prosecuting the litigation. At each remove, there may be interests of the agent that diverge from that of the principals. This matter, involving the deceptively straightforward review of a proposed settlement, bears a full load of such freight.

The case involves the proposed settlement of claims involving Riverbed Technology.

The court certified the class action 

The only remaining question regarding certification of the Class representatives involves whether the representatives and their counsel had adequate incentives to pursue faithfully the interests of the Class, which is subsumed in the analysis of the Settlement.

And with respect to a law professor who purchased stock and objected

The Plaintiffs opine that if objectors in Mr. Griffith‘s position are permitted to be heard, "professional" objectors with nefarious strike-suit motives will pop up like mushrooms after a two-day rain. This Court has tools, however, including application of the doctrine of unclean hands, to deal with that problem, should it occur. At any rate, given that Mr. Griffith is a member of the Class and thus interested in the Settlement, I find that he is entitled to oppose the Settlement.


Settlements in class actions present a well-known agency problem: A plaintiff‘s attorney may favor a quick settlement where the additional effort required to fully develop valuable claims on behalf of the class may not generate an additional fee as lucrative to the plaintiff‘s attorney as accepting a quick and moderate fee, then pursuing other interests. The interest of the principal—the individual plaintiff/stockholder—is often so small that it serves as scant check on the perverse incentive described above, notwithstanding that the aggregate interest of the class in pursuing litigation may be great—the very problem that makes class litigation appropriate in the first instance. This agency problem is, in part, ameliorated—but not entirely eliminated— by requiring counsel for both sides to refrain from negotiating fees until a settlement of the underlying matter is reached. I am assured that this hygienic procedure was followed scrupulously here. Nonetheless, the agency problem remains, as both sides are necessarily aware that the common benefit doctrine will permit the plaintiffs to seek an award of fees. Nothing in this discussion should be read as a criticism of plaintiffs‘ counsel in class actions, either collectively or with reference to the individuals here. In fact, the proper functioning of our system of common-law review of corporate actions could not occur absent an active plaintiffs‘ bar, and much conduct by corporate fiduciaries inimical to the interests of the stockholders—the core agency problem—would never see the light of day if not for the efforts of counsel and the risks they take in the prosecution of cases for a contingency fee, on behalf of the stockholders. It has also been my experience that counsel appearing on behalf of a class take their professional responsibilities to that class seriously. Nonetheless, in reviewing settlements, the incentives that operate on the representatives and their counsel bear examination.

That examination led to approval of both the settlement and the attorneys fees. (Mike Frisch)

September 18, 2015 | Permalink | Comments (0)

Improper Argument Dooms Murder Conviction

A prosecutor's improper closing argument requires the Commonwealth to accept either a reduced verdict or a new trial, according to a recent opinion of the Massachusetts Supreme Judicial Court

It is improper for a prosecutor to characterize a criminal trial as a dispute between a deceased victim on the one hand, and the defendant on the other, and to exhort the jury to dispense justice evenly between them. The deceased is not a party to the case. A criminal trial places the interests of the Commonwealth and the defendant against one another. An argument that asks the jury to give justice to the victim is an improper appeal to sympathy for the victim. The prosecutor's improper call to justice for the victim was aggravated by his inclusion of the paramedics and the civilian witnesses to the victim's last moments in his appeal to sympathy. Similarly, the prosecutor's argument that the victim's life mattered, and that the victim had a constitutional right to live, were improper appeals to sympathy.

These improprieties were not just fleeting comments or minor aspects of his closing argument, nor were they the type of afterthought that we have said does not require reversal. The improper comments at the end of the closing comprised a structural segment, indeed, the denouement of the prosecutor's closing.

The court's denoument

The Commonwealth shall have the option of either retrying the defendant on the murder indictment or accepting a reduction of the verdict to manslaughter, which was the verdict urged by the defendant at his first trial, and which is the verdict he could best hope to obtain after a request for an instruction on reasonable provocation. See Commonwealth v. Howard, 469 Mass. 721, 750 (2014). The Commonwealth shall inform this court within fourteen days of the date this opinion issues whether it will retry the defendant for murder in the first degree or move to have the defendant sentenced for manslaughter. After the Commonwealth so informs us, we will issue an appropriate rescript to the Superior Court.

(Mike Frisch)

September 18, 2015 | Permalink | Comments (0)