Monday, December 1, 2014

License Annulled

The West Virginia Supreme Court of Appeals annulled the license of an attorney who had no record of prior discipline.

The findings below

In the instant disciplinary proceeding, the [Hearing Panel Subcommittee] concluded that Mr. Scotchel charged excessively high attorney’s fees despite performing little if any substantive work on a variety of legal matters involving the complainant, Mr. Lewis Snow, Sr., including: the sale of Mr. Snow’s sanitation business, certain misdemeanor charges, a workers’ compensation coverage issue, and claims before the Public Service Commission. The HPS also concluded that Mr. Scotchel improperly retained proceeds from the sale of Mr. Snow’s sanitation business in supposed payment for such unreasonable unpaid attorney’s fees and that he failed to provide a requested full accounting of the money to Mr. Snow from the sale of the business. Furthermore, despite being instructed during the course of the disciplinary proceedings below to re-create the time demonstrating his work and fees on his claimed representation for Mr. Snow, Mr. Scotchel failed to provide a detailed accounting to support his claimed fees.

The court

...the HPS properly concluded that there was clear and convincing proof that Mr. Scotchel violated duties owed to his client by charging unreasonable fees, failing to communicate the basis of the fees, failing to have a contingency fee in writing, failing to provide Mr. Snow with his money from the sale of the sanitation business, failing to provide a full accounting as requested by Mr. Snow, and failing to comply with Disciplinary Counsel’s request for itemized billings or accountings.

As to sanction

Mr. Scotchel’s violations in this case are egregious and touch the very essence of the public’s perception of the legal profession. While these are Mr. Scotchel’s first offenses of the Rules of Professional Conduct giving rise to discipline, this is not a case of simple negligence or neglect. We conclude that Mr. Scotchel misappropriated client funds and thereafter attempted to justify such a misappropriation by fabricating his involvement in other matters in which Mr. Snow was involved. The HPS had the opportunity to observe Mr. Scotchel’s testimony and found that much of his testimony lacked credibility. The HPS was also able to hear and observe the testimony of several witnesses which the HPS found to be credible.

(Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tennessee Ethics Board Sued

A news story from

A bombshell of a lawsuit goes in front of a Nashville  judge Thursday as a pair of Nashville lawyers are suing their own ethics board for what they call ethical violations and a cover-up.

That means they are suing the very people who punish lawyers for bad ethics.

It all started when one lawyer saw an email about his upcoming case sent to a judge without his knowledge.

When a lawyer is punished for some kind of ethical violation, it is the job of the Board of Professional Responsibility for the Supreme Court of Tennessee to hold a hearing and decide guilt or innocence.

However, when attorney Jim Roberts was looking  into defending himself, he saw an email from the board to the judge in his case describing the case.

It was a secret email he knew nothing about.

"We discovered that the Board of Professional Responsibility was systematically engaging in unethical conduct. They, on a regular basis, were having secret conversations with judges, and now they are trying to cover it up," Roberts said.

Attorney Connie Reguli made a Freedom of Information Act request for all emails regarding upcoming cases against lawyers.

"It's as if I would send a letter to a judge saying, 'judge, I'm coming into your courtroom tomorrow, and this guy is a real schmuck. And here is what I want you to do,'" Reguli said.

Reguli got the emails from the Board of Professional Responsibility, but there was a huge problem. There were at least 50 pages of redacted emails.

"They've taken it all out," Reguli said. "They've deleted everything else on that email, and it's high importance."

"There is no way that one side gets to have secret communications with a judge and the other side not know about it and not be told about it," Roberts said. "And we've caught them. We caught them red-handed, acting unethically, and they have to explain it."

Channel 4 News sought a statement from a representative for the Board of Professional Responsibility but we never heard back.

The issue goes to court Thursday, and Roberts and Reguli said they will demand unredacted, unerased emails.

(Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Lawyer Steals From His Secretary; Suspension Proposed

Sometimes a secretary or support staffer steals from a lawyer or the lawyer's escrow account.

Rarely is it the other way around.

An attorney who had misappropriated funds from his "retired elderly secretary" should be suspended for three years, according to a recent report and recommendation of the Illinois Review Board.

When Respondent's retired elderly secretary,  Generose Schweickert ("Schweickert"), became ill in 2005, she asked Respondent  for assistance in handling her financial affairs. Respondent prepared, and  Schweickert executed, two powers of attorney giving Respondent power to handle  Schweickert's finances. Beginning in 2005, Respondent actively managed her  affairs and he paid himself attorney fees for performing those services. In or  about 2009, Schweickert became mentally incompetent. Thereafter, over several  years, Respondent took $95,000 of Schweickert's funds and used the money for his  own personal purposes. In addition, Respondent failed to timely pay the nursing  home where Schweickert resided resulting in an action by the nursing home to  involuntarily transfer Schweickert and recover the delinquency. Respondent,  acting as Schweickert's attorney, failed to appear at a status conference and  failed to comply with an agreed order entered in the matter.

A lesser sanction than disbarment was appropriate

While Respondent's conduct could support a sanction  of disbarment, we agree with the Hearing Board's recommendation that  Respondent's misconduct warrants a three year suspension. However, we recommend  that the suspension continue until further order of the Court. Respondent's  failure to fully understand the impropriety of his acts, as evidenced by his  continued insistence that the takings were loans and his poor financial  condition, support the necessity of a future assessment before he resumes the  practice of law.

The secretary had worked for the attorney from 1964 until she retired in 1984. She never married and had no close relatives. (Mike Frisch)

December 1, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Sunday, November 30, 2014

California Upholds Internal Communication Law Firm Privilege

A decision issued last week by the California Court of Appeals, Second District, Division Three holds

The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called "fiduciary" and "current client" exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962 do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.

The court cites the Massachusetts and Georgia cases as well as the Chambliss law review article.

The client had retained the law firm to pursue an invasion of privacy claim against the Daily Mail. As the court noted

The relationship between [client] Mireskandari and the Firm was short lived and, for the most part, contentious.

The court rejected the suggestion that internal counsel and the client were "joint clients" of the firm

Shelton and Mireskandari were not joint clients for purposes of section 962. Shelton and Mireskandari did not retain the Firm "upon a matter of common interest." Mireskandari retained the Firm and Shelton to represent him in the Daily Mail case; Shelton consulted with in-house counsel not as a party to that action, but to obtain advice on how best to address Mireskandari's complaints about billing and his threats to hold the firm responsible for any damages he suffered. Mireskandari and Shelton were not co-parties; they did not employ the same attorney to oppose claims of an adversary or pursue a claim as joint plaintiffs; they were not represented by the same attorney in a business transaction.

The court vacated an order that had permitted discovery into the firm's internal communications.

Thank you to my former student Daniel Woofter for sending me the case. His article from the Georgetown Journal of Legal Ethics is cited in the opinion. (Mike Frisch)

November 30, 2014 in Hot Topics, Law Firms, Privilege | Permalink | Comments (0) | TrackBack (0)

A Strong Reminder To Do Your CLE

An attorney who twice signed verifications for CLE credit that he had not earned was publicly reprimanded by a North Carolina General Justice Court.

Because the attorney formally had served as Counsel to the State Bar, the matter had been independently reviewed for a probable cause determination.

The attorney had claimed twelve hours of credit after attending for only the first and last hour of a class in September 2013.

He had engaged in similar conduct two years earlier.

The court called the reprimand a "strong reminder of the high ethical standards of the legal profession."  (Mike Frisch)

November 30, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Saturday, November 29, 2014

Photo Finish

An attorney admitted to practice in 2009 was suspended for five years for engaging in sexual relations with a client in a domestic relations matter.

He sent three clients explicit text messages that included photographs of his erect penis.

He advised one client that he had had a vasectomy and thus that she could"ride bareback" with him.

The Disciplinary Hearing Commission found that the clients were vulnerable and that the explicit photographs demonstrated "a lack of judgment and integrity."

Two of the clients indicated that they had less trust in lawyers as a result of their interactions with the attorney.

The attorney also wrote off fees for one client without authority to do so from his firm and lied about his  conduct to disciplinary authorities.

The commission concluded that disbarment was not required. Rather, he may seek reinstatement after five years if can satifies the numerous conditions set forth in the order. (Mike Frisch)

November 29, 2014 in Bar Discipline & Process | Permalink | Comments (2) | TrackBack (0)

Friday, November 28, 2014

Sex OK If Attorney-Client Relationship Over; Dissent Calls Majority Decision A "Work Of Fiction"

The West Virginia Supreme Court of Appeals disagreed with a hearing panel subcommittee of its Lawyer Discipinary Board and found no misconduct resulted from a sexual relationship between an attorney and his former client.

Notably, the attorney had not opposed the recommended 90-day suspension.

On de novo review,  a majority of the court concluded that the sexual relationship began after the joint representation of the client and her husband on estate planning matters had ended.

The court majority concluded that the husband had fired the attorney at a January 2010 meeting that took place at The Greenbrier.

The termination was "because of [the husband's] concerns over the nature of [the attorney's] relationship with his estranged wife."

There was a concurring opinion by Justice Workman that agrees with the majority but noted that an attorney who terminates representation would be wise to send a "disengagement" letter.

Two  justices dissented.

Justice Ketchum saw no evidence of an attorney-client relationship at the time of the sex but noted that the attorney had agreed that violations meriting a 90-day suspension had taken place.

Strong words from Justice Loughry in dissent, who calls the majority opinion a "result of fiction" that will "send a message that the Court is more interested in protecting its own than policing its own."

Justice Loughry would find that there was an ongoing attorney-client relationship and chides the majority for its focus on testimony viewed in isolation (that the client thought of the attorney as a "friend") and its reliance on "utterly illogical" factors in support of its conclusions.

The hearing panel subcommittee report is linked here.

The subcommittee squarely found that the attorney-client relationship with both husband and wife continued well past the Greenbrier meeting and that the sex started during that period of time.

It further found that the attorney's claim that the end came at The Greenbrier was a knowing falsehood.

The husband did not retain new counsel until June 2010.

The Charleston Gazette reported that the attorney left his position as the Charleston managing partner of his firm in July 2014. (Mike Frisch)

November 28, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

Conviction Reversed; Prosecutor Knowingly Used Perjured Testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.

 The case involved the robbery of a Dollar General in December 2012.

A video showed that the perpetrator was a white female.

An employee named Greenlee (a white female) came under suspicion and confessed that it was she in the video. She implicated Smith (her black male boyfriend) and another female as accomplices.

Greenlee entered a guilty plea and admitted under oath that she was the one in the video.

She was awaiting sentencing when she was called as a witness in Smith's trial and offered to testify that it was Smith in the video.

After an objection by defense counsel (who was aware of Greenlee's plea) and a recess, the trial judge allowed the testimony.

The judge found that Greenlee's plea and trial was inconsistent but not necessarily false. Greenlee explained that her plea testimony was false because she was trying to aid Smith.

The prosecution granted Greenlee immunity for any false statements at her plea.

The court found that the issue had been preserved and that the prosecution had knowingly used perjured testimony. The witness gave mutually exclusive accounts of the robbery under oath and there was a "high probability" that her trial testimony was false.

Further, the grant of immunity did not solve the perjury problem, only Greenlee's problem.

Notably, a police witness testified that the video showed that the perpetrator was a white female.

Thanks to Don Lundberg for sending the case to us. (Mike Frisch)

November 27, 2014 in Highlights from bepress and Law & Society Review, Hot Topics | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2014

Domestic Violence Suspension

The Oklahoma Supreme Court has imposed a suspension of two years and a day for an attorney's domestic violence conviction

On or about the evening of July 3, 2011, Respondent's wife and two children were sleeping in their car to avoid Respondent who was intoxicated. Respondent approached the car and accused the son, who was 14 years of age, of breaking a television set. Respondent's son exited the vehicle and soon thereafter a verbal and physical altercation ensued. During the incident Respondent punched his son in the mouth causing a small cut and swollen lip. This occurred in the presence of Respondent's wife and 7 year old daughter. Tulsa Police were called and Respondent was arrested.

While on probation for the offense there was a second incident of violence toward his son.

The court

Respondent has presented no defense for his actions and his brief states he readily accepts any discipline. He claims to have reconciled with his son and has completed 52 weeks of DVIS classes. The attached letter written by Mr. Brett states Respondent has matured and grown from his disbarment experience and is now "professionally prepared to resume his obligations as a practitioner of the law." This letter was dated August 11, 2014, less than a month after Respondent received his interim suspension. Although, we encourage Respondent to continue his reconciliation efforts and remain sober, not enough time has passed to convince this Court he is prepared to resume the practice of law. This point is emphasized by the fact he reported having a relapse the day following the filing of his brief, August 22, 2014. As in Soderstrom, we find a suspension period of two years and one day is appropriate.

The suspension is effective as of the date of the interim suspension. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Neither Doctor Or Lawyer

The South Carolina Supreme Court has imposed a two-year suspension of an attorney who also was an opthalmologist.

The attorney achieved some level of notoriety last year when the same court suspended her for not having a current email address.

The problem here was the attorney's litigation (found to be frivolous) for denial of her hospital privileges.

From the fourth dismissal of these claims

Judge Harrington was warranted in ordering sanctions in this case, especially because Appellant, a licensed attorney, made identical legal arguments in the 2005 litigation and did not prevail on the merits. Appellant has continuously and repeatedly challenged the Hospital's credentialing decisions without any legal basis to do so, and in the process, has cost the Hospital untold amounts of time and resources in defending these claims. Therefore, we further find that Judge Harrington was warranted in enjoining Appellant from filing any future claims in the circuit court without first posting bond.

The court here rejected the attorney's efforts to relitigate the merits of the underlying claims. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Accident Derails Career Of Ohio Bar Applicant

An applicant for admission to the Ohio Bar disclosed two alcohol-related incidents that had taken place in 2010.

One involved a reckless driving conviction that was pled down from driving under the influence; the other an open container of beer.

He was provisionally allowed to sit for the July 2013 exam.

But shortly before that event he was involved in another alcohol-related driving event in which he struck a parked car and left the scene. He had been drinking after a night of studying.

As a result, he was not allowed to sit for the 2013 exam.

The Ohio Supreme Court has now denied him permission to sit again.

The court noted concerns about his candor in connection with the pre-exam incident. His hearing testimony was inconsistent and an email to the Board of Commissioners on Character and Fitness had mischaracterized the circumstances.

The applicant was not found to have a chemical dependence and the bar's program did not propose that he enter into treatment.

He may reapply to sit in July 2015. (Mike Frisch)

November 26, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Stroke That Wasn't Leads To Increased Reciprocal Discipline

The Maryland Court of Appeals has ordered an indefinite suspension with possible reinstatement after one year as reciprocal discipline based on sanctions imposed in Delaware.

Notably, the sanction in Delaware was a public reprimand.

The attorney had failed to complete CLE requirements and had not responded to bar inquiries. 

He also made a false statement

Poverman failed to complete his 2013 Annual Registration Statement by the March 1, 2013 deadline. On March 12, 2013, the Delaware Supreme Court issued an order directing Poverman to appear before the court and show cause why he should not be suspended or sanctioned for such failure. ODC sent the show cause order to Poverman’s Baltimore office on March 19, 2013. On March 27, 2013, the date on which he was due to appear before the court to respond to the show cause order, Poverman called Cathy Howard, Clerk of the Supreme Court, and advised her that he would complete his registration statement online.

Based on their conversation, Howard believed that Poverman had suffered two strokes, which hindered his completion of the registration statement. On the same day, Howard sent an email to ODC relaying that Poverman had experienced two strokes and that he would complete the registration prior to his scheduled appearance before the Supreme Court. On April 9, 2013, Poverman repeated this assertion to the ODC in an email, stating that he had a “second stroke” in December 2012. Poverman, however, was never formally diagnosed as having suffered a stroke.

The court

...we conclude that indefinite suspension with a right to apply for reinstatement after no less than one year would not be “too harsh.” Although Poverman also has no prior disciplinary history, the other mitigating factors that applied to Kepple do not apply to him. Poverman was not “youthful and inexperienced” when he committed the misconduct, and the Board did not find he made a timely good faith effort to rectify the consequences of his misconduct. Furthermore, Poverman, unlike Kepple, repeatedly ignored communications from a disciplinary authority. We conclude that Poverman’s misconduct warrants an indefinite suspension with a right to apply for reinstatement in one year.

(Mike Frisch)

November 25, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Suspension Proposed For Blogging On Probate Matters

An Illinois Hearing Board has proposed a suspension of three years of an attorney who it found had

made false statements concerning the integrity of the judges, knowing  they were false or with reckless disregard for their truth or falsity, and  engaged in dishonest conduct and conduct prejudicial to the administration of  justice. The Hearing Board found, while Respondent had accused judges and other  attorneys of criminal conduct, there was not clear and convincing evidence that  she presented or threatened to present criminal charges, in order to obtain an  advantage in a civil matter.

As set forth below, the statements involved a guardianship matter and were made on a blog

Beginning in November 2011, Respondent wrote and  administered an Internet blog about the Sykes case. The blog consists of a  series of writings, by various persons, including Respondent. Respondent made  numerous blog posts over time. Some of those writings concern probate court and  the probate system in general. Other writings relate specifically to the Sykes  case and persons involved in it. The blog alleges corruption, in probate court  in general and the Sykes case in particular. For a time, there were  two blogs, one of which described itself as "(a)n attorney blog concerning  corruption and greed in the Probate Court of Cook County," because Respondent  used hosting sites which offered different features. (Tr. 318-19, 606-610,  820-21, 1026-28, 1647; Adm. Exs. 17-32, 34-49). For simplicity, we designate  them as the blog.

Respondent testified she produced the blog as a  private person not as an attorney. (Tr. 384). Respondent also testified her  knowledge and skill as an attorney was required to post and author the  statements on the blog. (Tr. 410). On the blog, Respondent stated she published  the blog primarily from a legal standpoint and it took an attorney to make the  comments appearing on the blog. (Tr. 411-12). When Respondent began keeping  track of time she spent on the blog, she calculated its value using her hourly  rate as an attorney. (Tr. 410; Adm. Ex. 17 at 20). As admitted in Respondent's  Summary, the blog was open to the public. Respondent estimated, by the time of  the hearing, her blog had an audience of about 40,000. (Tr. 318).

The blog includes allegations of wrongdoing by  specific individuals involved in the Sykes case. (Tr. 608-610, 821, 1026-28).  These allegations are summarized in a "Table of Torts." While those persons are  referenced by initials, the Table identifies the persons to whom the initials  refer. Respondent prepared the Table of Torts. Because Respondent periodically  added material to the Table of Torts, more than one version is in evidence.  Respondent acknowledged the exhibits fairly represent snapshots of the Table of  Torts. (Tr. 288-91, 303, 1594-95, 1611-14; Adm. Exs. 33, 34).

On the blog, Respondent described the Table of  Torts as "TEN PAGES of questionable behavior, corruption, misfeasance,  malfeasance, perpetration of misdemeanors and felonies," occurring in the Sykes  case, (Adm. Ex. 24 at 16), and as a "Summary of the Case! - 90%+ of the wrongful  conduct all in one convenient place." (Adm. Ex. 21 at 10). We begin, therefore,  with the Table of Torts, for the purpose of providing an  overview of the blog and context for the statements with which Respondent is  charged.

The hearing board

Respondent was licensed to practice law in 1986,  nearly thirty years ago. She has no prior discipline.

While Respondent acted with reckless disregard for  the truth of her accusations, based on our impressions of Respondent, we do not  believe she was acting out of a deliberate purpose of harming the judges and  attorneys involved. Respondent genuinely, though unreasonably, believed  something was wrong with the proceedings in the Sykes case. Respondent knew Mary  and Gloria before the guardianship. While Respondent used decidedly misguided  means, we believe she was acting out of a sincere desire to help Mary. We were  also convinced Respondent truly believes there are abuses in the probate system  and the system needs to be changed, to protect persons who are the subject of  adult guardianship proceedings. From our perspective, it appears Respondent has  genuine concern for senior citizens and perceives the senior population as  vulnerable, especially to financial exploitation. This concern, as a general  matter, is a legitimate one, even though Respondent had no reasonable basis for  believing the judges or attorneys in Mary's case were corrupt.

We do not believe Respondent acted with a  self-serving motive. The evidence did not support a theory that Respondent was  reaping a significant financial benefit from her activities including operation  of the blog.

The proposed suspension will, if adopted, continue until reinstatement is ordered by the court.

As a blogger who frequently finds it necessary to criticize disciplinary processes in D.C. and elsewhere, I confess that I find this proposed sanction excessive given the absence of prior discipline and the conceded sincerity of the attorney's beliefs, even if unfounded.

Corruption in our courts does exist and attorneys have an obligation to speak out when it occurs.

In my view, that conduct should be, if not encouraged, at least allowed.

Once again, I applaud the District of Columbia Court of Appeals for declining to adopt Model Rule 8.2 (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (1) | TrackBack (0)

Mixing Business And Personal Did Not Violate Rules (But With A Dissent)

The Maryland Court of Appeals has agreed with the trial judge that an attorney engaged in  no misconduct in his alleged solicitation and representation of a client.

The attorney first met the client in a courthouse where she was filling out papers for a protective order.

They became Facebook friends and subsequently entered into an attorney-client relationship. They then stopped being Facebook friends.

The court found that none of Bar Counsel's array of charges were proven.

As to the alleged solicitation of business

Although Respondent initiated a conversation with Ms. Coates, informed Ms. Coates that he was an attorney, handed her his business card, discussed her case, and the two exchanged telephone numbers, Petitioner has failed to show, clearly and convincingly, that Respondent’s motive in doing so was for pecuniary gain. Indeed, the hearing judge found that Respondent declined to represent Ms. Coates in October 2008, when the two first met. That Respondent sent Ms. Coates an email two months later in which he detailed a case strategy does not indicate clearly that he was attempting to solicit business from Ms. Coates when the two individuals met. Moreover, Respondent and Ms. Coates did not enter into a retainer agreement until fifteen months after meeting in-person. The hearing judge made no finding that the circumstances were overwhelming or unduly influential for Ms. Coates. Respondent’s conduct appears to have arisen from his desire to provide Ms. Coates with information, as opposed to a desire to represent her. Where an attorney refuses initially to represent the prospective client, does not insist that he be retained immediately, and the circumstances do not indicate that the prospective client felt undue pressure to seek representation, the facts do not support the conclusion that MLRPC 7.3(a) has been violated.

As to an allegedly improper romantic motive

To bolster the contention that Respondent sought to develop a romantic relationship with Ms. Coates, Petitioner relies on several alleged interactions between Respondent and Ms. Coates, specifically: (1) Facebook communications; (2) Respondent’s offers to have Ms. Coates use his rental property; (3) Respondent’s unexpected, late-night visit to Ms. Coates’s home; (4) Respondent’s request for a back massage; (5) Respondent’s comments about Ms. Coates’s attire; (6) Respondent’s offer to help Ms. Coates move out of her marital home; and (7) Respondent’s lying on Ms. Coates’s bed following the move–which Bar Counsel refers to as “the culmination of months of his subtle prodding to become closer to [Ms. Coates].” Petitioner avers that each of these instances are supported by evidence contained in the record below, however, many of the allegations upon which Bar Counsel relies were not established as true by the hearing judge. Moreover, many of the allegations Bar Counsel relied upon, both before this Court and before the hearing judge, were in dispute. With regard to the allegations not in dispute, Bar Counsel failed to demonstrate how those facts were indicative of Respondent’s attempt to develop an improper, romantic relationship with Ms. Coates.

In sum

...a lawyer has discretion to communicate with clients or prospective clients through social media. Likewise, assisting or offering to assist a client or prospective client in obtaining shelter or in moving from one residence to another is not per se violative of the Maryland Lawyers’ Rules of Professional Conduct. Whether or not the attorney violates the Rules of Professional Responsibility will depend upon the facts and circumstances of each case. When a lawyer, in the exercise of discretion, involves him or herself in conduct that is unnecessary to the attorney-client relationship or exceeds the bounds of the attorney-client relationship, however, he or she runs the risk that his or her exercise of professional judgment may be found to be both unreasonable and subject to the disciplinary process.

Judge Watts (joined by two colleagues) dissented and would find conduct prejudicial to the administration of justice

Specifically, evidence offered by Bar Counsel indicated that Merkle, among other things: (1) “commented on” Coates-Black’s attire while she was visiting him in his office, and later described Coates-Black’s attire as having a “plunging neckline” and being “quite revealing from the middle”; (2) sat on the same side of his desk as Coates-Black while she was visiting him in his office and asked her to rub his shoulders, prompting Coates-Black to decline and move to the opposite side of Merkle’s desk “to keep [him] away from” her; (3) attempted to visit Coates-Black at her apartment after 10:00 p.m.; and (4) offered, on multiple occasions, to let Coates-Black use an apartment in a building that he owned. Despite this evidence, and despite the serious allegations of improper conduct that Coates-Black raised at the hearing, the hearing judge inexplicably failed to make any findings of fact whatsoever concerning these matters. The allegations were well-detailed and described Merkle’s alleged improper and unseemly conduct toward Coates-Black, yet the hearing judge did not address or even mention them.

She further would find that the trial judge's conclusion that the client was not vulnerable was clearly erroneous.

The dissent also expressed concern about the attorney's characterization of himself as a "father figure" to the client. (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Suspension And More Probation For Non-Compliance With Conditions Of Probation

A stayed two-year suspension with six months actual suspension and probation is the appropriate sanction for an attorney who had violated a previously-imposed probation, according to a recommendation of the California State Bar Review Department.

The original probation was as a result of threatening messages sent by the attorney after his removal as co-executor of his father's estate

 Thereafter, in 2004 and 2005, he left a total of 53 threatening and abusive voicemail messages for the successor administrator, the attorney for the administrator, and the ex officio judge of a North Carolina court.

The probation has not gone well and the attorney's explanations for his lapses did not persuade

Elkins has demonstrated that he fails to grasp the importance of strict compliance with probation conditions, despite reminders and warnings from Probation. Timely filing quarterly reports plays an important role in the rehabilitative process "because it requires the attorney, four times a year, to review and reflect upon his professional conduct . . . [and ] to review his conduct to ensure that he complies with all of the conditions of his disciplinary probation." (In the Matter of Wiener (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 759, 763.) Of equal importance is Elkins’s failure to timely attend and report completion of Ethics School. This information assures the State Bar that the attorney has reviewed and considered anew his professional responsibilities. Elkins’s failures constitute willful, repeated, and serious probation violations.

(Mike Frisch)


November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Ignorance No Defense

A disbarred attorney who persisted in notarizing documents after hid disbarment has been permanently disbarred by the Louisiana Supreme Court.

The court

The [Disciplinary B]oard also found respondent’s claim that he was unaware he could not act as a notary public following his disbarment was not credible. The board determined the hearing committee correctly applied the Rules of Professional Conduct. Additionally, the board noted that respondent violated La. R.S. 35:14 by continuing to act as a notary public following his disbarment.

The former attorney defaulted on the charges. (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Fourth Time No Charm But No Suspension Either

A fourth brush with the disciplinary system drew a public censure from the New Jersey Supreme Court.

The attorney and his former client had a fee dispute that went to arbitration.

The attorney had not kept records of his time as reported by the Disciplinary Review Board

At the ethics hearing, respondent admitted that the invoices that he had compiled for the fee arbitration proceeding did not reflect contemporaneous time records and that he had no such records. He told the panel that he had re-created the time spent on the case by reviewing the file, as well as some documents and information on a laptop computer and on an "electronic calendar." He explained that he had no "supporting documents" or "records from the computer" because of a September 2011 computer crash. He added that, for certain periods between September 2006 through January 2009, he had been unable to recreate the time spent on the file, either because he had found nothing on the file to back it up or because, as a sole practitioner, he had had no time "to look hard enough."


this is not the first time that he has run afoul of the recordkeeping rules. His 2007 reprimand stemmed from recordkeeping violations and were responsible for his negligent misappropriation of client’s funds. Having been disciplined for deficient accounting practices, respondent should have been especially attentive to the proper maintenance of his attorney records.

The attorney also failed to supervise non-lawyer assistants and pursued frivolous claims in seeking to challenge the arbitration award. (Mike Frisch)

November 24, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

Recusal Ordered As Result Of Alleged Threats Against Judges

The New Jersey Appellate Division has reversed an order denying judicial recusal and ordered that the entire Bergen County judiciary be recused from a criminal case.

The reason?

The defendant has allegedly threatened the lives of two county judges.

While there are other unthreatened judges in the county, the court here concluded that the "appearence of fairness" warranted the grant of the sought relief.

The defendant is charged with synagogue firebombings. (Mike Frisch)

November 21, 2014 in Judicial Ethics and the Courts | Permalink | Comments (1) | TrackBack (0)

Law School Application Non-Disclosures Lead To Bar Admission Denial

The Ohio Supreme Court has denied an application to sit for the July 2014 bar examination but will permit the applicant to reapply at a later date.

The problem involved the applicant's law school admission non-disclosure of alcohol-related incidents in the applicant's application to DePaul Law and his original and transfer applications to the Ohio State University, Moritz College of Law.

The court noted that the Board of Commisioners on Character and Fitness was "troubled by his ongoing efforts to hedge his responsibility and minimize the importance of candor" in bar admissions.

The applicant was remorseful and had stated that his "drinking days were over." (Mike Frisch)

November 21, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Unconditionally Rejected

The Florida Supreme Court has denied admission to an applicant who received his law degree in April 2005 and passed the bar exam in February 2006.

The court rejected the recommendation of the Board of Bar Examiners to admit the applicant on a conditional basis.

The applicant reported that he had defrauded his former employer, Florida State University, to the tune of $54,046.

He served a jail sentence and had his civil rights restored shortly before graduation from law school.

He also filed for bankruptcy and discharged over $40,000 in debt.

The bar investigation revealed that he had failed to disclose to an employer, Axia College of the University of Phoenix, that he was a convicted felon.

The court here found that he was not rehabilitated

J.R.B. has demonstrated a lifetime of dealing in falsehoods. He lacks the ability to be truthful and his conduct over the years demonstrates that he has no respect for the law. J.R.B. engaged in embezzlement, stealing funds from his employer on numerous occasions. Further, the funds he stole included funds for a university debate team, so his misdeeds could have directly impacted students who were working to achieve important goals in their lives. J.R.B. was adjudicated guilty on five felony counts of Grand Theft and he pled no contest to forty-fivecounts of misdemeanor Petit Theft. This is a significant criminal history, which is based on untruthful conduct. In addition, J.R.B. had to resign from his position with the university in disgrace; people who have left one profession in disgrace cannot find a haven by seeking to become a member of The Florida Bar.

The bad news

... the underlying facts of the instant case impact so adversely on the character and fitness of J.R.B. that the misconduct mandates that he not be admitted to The Florida Bar now or at any time in the future.

(Mike Frisch)


November 20, 2014 in Bar Discipline & Process | Permalink | Comments (0) | TrackBack (0)